January 30, 2024 Summary

As was previously announced in August 2023, New Millennium Concepts, Ltd., the brand owner of Berkey Water Systems, filed a lawsuit against the EPA for classifying Berkey Water Filters as pesticides and is seeking an injunction to lift the Stop-Sale order (SSURO) placed on Berkey International—which manufactures and supplies Berkey products to NMCL.

  • In November, NMCL’s case is dismissed due to what the court felt was NMCL’s “lack of standing”. New Millennium Concepts then filed an appeal with the Fifth Circuit Court of Appeals because the court failed in its requirement to accept the Plaintiffs’ arguments and evidence.
  • In January, NMCL’s request for immediate temporary injunction to lift the EPA’s Stop-Sale order against Berkey International was denied by Fifth Circuit Court of Appeals. NMCL files a motion (Appellant’s Brief) rebutting the EPA’s arguments and disputing the District Court’s previous decision regarding NMCL’s lack of standing and how the court erred in dismissing the case.

The Bottom Line

  • District Court Judge in original case stated: “In finding that standing is lacking in this case, the Court is in no way disparaging, or opining on, Plaintiffs’ claims. Indeed, if true, the claims are quite concerning.” By this statement it seems the Judge agrees there is a valid case which deserves action by the court to remedy, if Appellants’ standing could be substantiated.
  • While the Court of Appeals has denied our initial appeal for an immediate injunction, the lawsuit was not dismissed and is still an active case being reviewed by the Fifth Circuit Court of Appeals.
  • NMCL is continuing to conduct business as we have been doing, and hope the court will make a speedy decision that will enable us to resume manufacturing Berkey products. Rest assured that NMCL and its legal counsel are considering all other legal remedies to resolve the issue.

In-Depth

As was previously announced on August of 2023, New Millennium Concepts, Ltd. (“NMCL”) and the James B. Shepherd Trust, the brand owner of Berkey Water Systems, filed a lawsuit as an interested third party against the EPA for classifying Berkey Water Filters as pesticides and is seeking an injunction to lift the Stop-Sale order (SSURO) placed on Berkey International—which manufactures and supplies Berkey products to NMCL. The EPA argued that neither NMCL nor the JBS Trust, which owns and receives royalties from Berkey International, have been financially harmed by the Stop-Sale order, and therefore requested the court not to grant an injunction.

On November 17, 2023, United States District Judge Mark T. Pittman initially dismissed the case due to what the court felt was NMCL’s and the JBS Trust’s “lack of standing”. However, the Judge did opine,  “In finding that standing is lacking in this case, the Court is in no way disparaging, or opining on, Plaintiffs’ claims. Indeed, if true, the claims are quite concerning.” By this statement it seems the Judge agrees there is a valid case which deserves action by the court to remedy, if Appellants’ standing could be substantiated.

On November 20, 2023, the JBS Trust and New Millennium Concepts filed an appeal with the Fifth Circuit Court of Appeals in New Orleans, Louisiana. This was because the court failed in its requirement to accept the Plaintiffs’ arguments and evidence.

On January 4, 2024, NMCL’s request for an immediate temporary injunction to lift the EPA’s Stop-Sale order against Berkey International was denied by Fifth Circuit Court of Appeals.

While the Court of Appeals has denied our initial appeal for an immediate injunction, the lawsuit was not dismissed and is still an active case being reviewed by the Fifth Circuit Court of Appeals.

Key Issue: Why NMCL and the JBS Trust have filed the Appeal

On Wednesday, January 17, 2024 NMCL filed a motion (Appellant’s Brief) rebutting the EPA’s arguments and disputing the court’s previous decision regarding NMCL’s lack of standing. The appeal contends that the District Court erred in its dismissal for lack of standing. Not only did the District Court’s analysis fail to accept all well-pleaded facts as true and construe them in favor of Appellants, but the District Court also erred because the analysis for APA standing meets the requirements of Article III. Appellants have statutory standing because the EPA has determined to operate without following its required hearing and feedback process for rule making, instead merely deciding without notice that Appellants’ filter elements are a pesticide.

Note: The Administrative Procedure Act (APA) governs the process by which federal agencies develop and issue regulations. Article III establishes constitutional guidelines for standing in a case.

Both the trial and reviewing courts must accept as true all material allegations of the complaint, and must construe the complaint in favor of the complaining party but after citing that standard, the District Court argues with and then rejects Appellants’ allegations. Therefore, the District Court’s analysis of our standing did not follow the proper standard for evaluating the facts on a motion for dismissal. For purposes of ruling on a motion to dismiss for want of standing, the court should accept the well-pleaded allegations of the plaintiff. Yet, the District Court simply ignored the stated threats by EPA agents against NMCL and the record of their interactions. Further, the District Court completely supplants our well-pleaded facts for its own judgment. Therefore, it failed its obligation to accept the well-pleaded and reasonable allegation that the loss of all manufacturing royalties from Berkey Int’l to JBS Trust are due to the EPA’s SSUROs.

Moreover, the District Court misstated the requested relief: “the relief sought is a preliminary injunction enjoining the EPA from issuing such SSUROs.”  The actual relief sought was “a preliminary injunction preventing enforcement of the EPA’s determination that Berkey filters are pesticides and the SSUROs subject of this suit.” Because the District Court’s standing analysis did not accept as true all well pleaded facts and construe them in favor of Appellants throughout the entirety of the analysis, the District Court erred in dismissing the case.

Key Issue: Why Berkey Products are not Pesticides, as Claimed by EPA

The fact is that silver is used industry-wide in water filters to protect the filter from biological grow through, which makes them a treated article exempt from pesticide registration. Our contention is that the EPA has selectively and solely targeted Berkey and unjustly reclassified Black Berkey filters as pesticides and placed an immediate Stop-Sale order on our supply chain, while not following proper protocols as required by law.

The following is a simple, common-sense explanation that shows why the EPA’s contention that Black Berkey filters are pesticides is false:

The EPA’s definition of “pesticides” are substances or mixtures of substances that are intended to prevent, destroy, repel, or mitigate pests. This definition is so broad that if you stepped on a spider, without certain exemptions, your shoe would be required to be registered with the EPA as a pesticide. For practical reasons, the EPA has historically exempted for all Americans, including Berkey, the killing or removing of pests mechanically with a device so that people do not have to register ridiculous items such as their shoes and fly swatters with the EPA as pesticides. This exception from regulation has protected Berkey filters from registration requirements for more than twenty years, as they remove pests from water by mechanically trapping them in a tortuous maze of micro pores. Therefore, they are exempt mechanical devices.

Again, the definition of pesticides is so broad that, without certain exemptions, you would be required to register your countertop as a pesticide with the EPA if you sprayed it with Lysol, to kill the germs and prevent them from spreading. This is because Lysol is a registered pesticide. For practical reasons, the EPA has historically exempted for all Americans, including Berkey, articles that are treated with a registered pesticide so that people are not required to register ridiculous items such as their countertops as pesticides when they spray them with something to kill or prevent germs from growing. The EPA website for silver pesticide registrations can be found here: https://ordspub.epa.gov/ords/pesticides/f?p=113:6:::::P6_XCHEMICAL_ID:3769. This is a list of all pesticides utilizing silver that can be used in treated articles. You will note that there is not one outdoor water filter in the list. Rather, the media utilized for filters that are exempt treated articles are listed here as pesticides as they have already been tested for their safety. Because of this treated article exemption, the EPA has not required registration of Berkey filters, though Berkey has protected its filters with a registered pesticide (silver) for more than 20 years.

Now suppose you spray Lysol on your countertops to prevent the spread of germs, your countertops are now exempt treated articles, exempt from pesticide registration. Now suppose a fly lands on your countertop and so you kill it with a flyswatter. Your countertop and fly swatter have both been involved with mechanically killing the fly. However, the countertop is an exempt Mechanical Device and so it does not need to be registered as a pesticide because it was used to mechanically kill the fly.

Therefore, your countertop now has two EPA Pesticide Exemptions, the Treated Article Exemption and the Mechanical Device Exemption. Another way to say it mathematically is 1 + 1 = 2 exemptions.

In the same way, Berkey filters have two exemptions. First, they mechanically remove waterborne pathogens from water and so they qualify for the Exempt Device Exemption. Secondly, they utilize a form of silver that is already a registered pesticide to protect the filter itself, and so they also have the Treated Article Exemption. However, the EPA has utilized a strange and previously unknown type of math to specifically target Berkey products alone. Using this strange math, the EPA claims that 1 + 1 = 0 exemptions and therefore Berkey products are pesticides.

We disagree with the EPA utilizing this ridiculous form of math and for this reason Berkey is suing the EPA asking the court for a determination that the EPAs strange and ridiculous math is not legitimate math at all.

While the Court of Appeals has denied our initial appeal for an injunction, the lawsuit was not dismissed and is still an active case being reviewed by the Fifth Circuit Court of Appeals.

We encourage our dealers and anyone interested in further understanding the case to read the full Appellant’s Brief which can be accessed here: NMCL vs EPA APPELLANT’S BRIEF 1-18-2024.

Please be assured that we are fully committed to protecting the Berkey brand, its dealers, and the consumers that use our products. We intend to continue business as we have been doing, and hope the court will make a speedy decision that will enable us to resume manufacturing Berkey products. Additionally, NMCL and its legal counsel are considering all other legal remedies to resolve the issue.

We appreciate your loyalty and support and ask for your continued prayers that the court will decide on this matter according to the rule of law.