TURNING BEER INTO WATER

According to a recent report in the Wall Street Journal, residents in the Czech Republic have the highest per capita consumption of beer in the world. It is asserted that a glass of beer is less expensive than a glass of water. (Wall Street Journal, January 25, 2013, p. A1).

Reacting to the situation, the country's health minister allegedly has proposed a regulation that would require restaurants and bars to offer at least one non-alcoholic beverage, such as tap water, at a price less than a similar amount of beer.

Cost comparisons between beer and water may not be quite what they seem, however. Tap water generally is not offered in restaurants. Instead, it is more likely for bottled still or "with gas" mineral water to be offered, and the price of that water may be higher than equivalent beer.

Of course, there appears to be some resistance to the proposed regulation. The country is famous for its beers, which have been made there for over 1,000 years, and is the birthplace of "pilsner." For some, beer is known as "liquid bread." The Journal quotes one enthusiast as saying "Beer is like mother's milk for adults." On a different level, it appears some object to additional regulations and attempted social engineering of beverages.

Personally, I can relate to the importance of Czech beer with some of my experiences. On one occasion, I had a business meeting in Prague scheduled with several local men. They suggested that the meeting take place in a nearby bar at 10 am. Still foggy with jet lag, I looked forward to a stiff cup of coffee. No! We all sat at the bar at 10 am drinking mugs of beer. That was a power breakfast!

On another occasion, my wife and I were wandering through the Old Town Square in Prague, and sat down to rest at one of the many touristic cafes that line the Square. In Czech, beer is called "pivo." Feeling energized, I ordered a "gran pivo", thinking it must be a superior blend. To my surprise, and shock, the waiter brought a huge pitcher, of at least 64 oz, and set it on the table. It seemed like he brought the whole keg. I drank it all, slowly and somewhat painfully, to save face with watching locals, and then dashed away in search of the always hidden WC.

One of our favorite neighborhood cafes in Prague is located in a university student area. It is a small cafe, with old furniture and a beat up upright piano in the center. It's the kind of place where you see students sitting at tables reading books and sipping a brew, whether beer. coffee or hot tea. Maybe I like it because who knows what famous or to become famous writers, artists or musicians may be sitting next to us; and maybe some of that bohemian intellectualism may rub off on us. But more likely, I like it because of my lunch there: a bowl of cabbage soup, a slice of fresh rye bread with caraway seeds and a mug of smooth beer.

Certainly, there are arguments for promoting drinking of water over beer, particularly in the case of children. On the other hand, I have read that some researchers assert that beer is good for one's vascular system, if not waist line. At any rate, I have doubts that legislation in the Czech Republic can reverse history and culture by turning beer into water for its citizens.

A Paradox of Water

Water is essential for life. But, sometimes it has an opposite effect.

On October 8, 1871 the great Chicago Fire ignited its devastation. Over 2,000 acres burned; 13,000 homes were destroyed; over 200 people died; some 100,000 --one third of the population-- were left homeless; major commercial properties, such as city hall, Marshall Field, and the Palmer House were destroyed.

While Chicago had a central water utility system, the raging scope of the fire quickly made water unavailable to firemen to control the spread of the flames. As one witness wrote, "By midnight the water stopped running. The fire had engulfed the Water Tower on Chicago Avenue. The catastrophe of it, in an instant caused the most horrible dimensions in other parts of the city because there was no water with which to put out the fire. The entire north side of the city was beyond help given the odds of wild flames." (1)

But where there was water, there was not necessarily life. Another witness said "The din and pandemonium was beyond description, into which mingled wailing, screams and calls of people, some of whom seemed to be going berserk. Suddenly a half-naked woman raced out of the running crowd and, waving her arms, dashed above the entrance of the tunnel. As she did, she laughed crazily, until it cut into one's ears. 'My darling!! My darling!' she cried amidst her laughter, and began spinning around in wild whirling around the railing. When she reached the entrance to the tunnel, she fell to her knees and began praying aloud. Suddenly she leaped up in the air and before someone berated her, she was on the railing from which with shrieking laughter she plunged down on the heads of the horrified people who ran out of the tunnel. The poor woman remained lying dead below and terrified people ran over her body out into the street. Suddenly a man ran up to us and asked what the woman looked like. He could not make out her face for all the smoke. He spoke German. 'She had fair hair and blue eyes and on her bare neck she wore some kind of amulet,' I told him. 'She threw herself down!' 'That was my Agnes! She became crazy when our only child burned to death--little Robert!' Then he ran down into the tunnel and dragged out the lifeless body of his wife onto the sidewalk, and sank down to it. We stood behind him. 'What will I do myself?' whispered the poor man and took his dead wife into his arms and walked with her to the River, and before someone took him to task, he disappeared into the River...That horrible moment will never leave my memory." (2)

What water gives, it also can take away. Fortunately, for most customers of a public utility central water system today, fire protection water service is available. State laws and regulations, as well as sound engineering practice, generally dictate requirements for adequacy of systems to provide "fire flow" volume and pressure in mains. Accordingly, utility water service means more than just the convenience of water at a faucet. It also means the availability of water for fire protection. Before one is tempted to object to a rate increase, one should bear in mind all the benefits of water service.
__________________________

(1) Bubenicek, A History of the Czechs in Chicago, 1939, Sheppard translation, Czech & Slovak American Genealogy Society of Illinois, 2011, p. 235.
(2) Id. at 237.

REDISTRIBUTION OF SOURCE WATERS: SOCIAL ENGINEERING OF WATER

On December 12, 2012 a report called the Colorado River Basin Water Supply and Demand Study was released by the U.S. Bureau of Reclamation and seven western states--Arizona, California, Colorado, New Mexico, Nevada, Utah and Wyoming. The study is intended to examine how more water could be provided to these western states, which have growing populations and limited water resources.

One of the options discussed in the study is the importation of water from other parts of the United States. For example, to provide more water to the Colorado River basin, it is proposed that a pipeline or pipelines, some 700 miles long, be constructed to import water from the Missouri River. The report estimates that the capital cost would be $8.6 billion and it would take 30 years to complete. An alternative is given to take water from the Mississippi River.

The study also discusses the possible importation to the Green River from the Bear, Snake and Yellowstone Rivers in Wyoming. In addition, the report reviews importation to Southern California from the Columbia River, icebergs hauled by tugboats from Alaska, and tankers hauling water from Alaskan rivers. (See usbr.gov)

The study does recognize that importation of source water is not without permitting, legal and policy issues. Moving water from one basin across the country to another basin, of course, likely will raise concerns--particularly in the case of the Missouri River, which is a major tributary of the Mississippi. The Missouri provides a source of drinking water, irrigation water and hydro-power in six states. With the current drought conditions in several midwestern states, there already is concern about the continued viability of these water uses as well as navigation on the Mississippi.

Discussion of such importation options raises broader questions, as well. Could the federal government propose importation pipelines from the Great Lakes, such as Lake Michigan, already the source of drinking water for millions? Or, could some agency develop a well farm in the midwest or east mining water from one of the major aquifers and piping the water to a western basin?

Moving water resources from one basin to another-the redistribution of water assets-would seem to have obvious consequences for the rivers, lakes and aquifers from which water would be taken. All of these sources themselves have limitations. And they have dedicated present uses in their areas. To deplete a basin or source already committed to uses for the benefit of another basin and its uses would seem problematic. Thus, the study also discusses such alternatives as water conservation, reuse, etc.

Perhaps one very important conclusion coming out of this study is that every person in this country has the important responsibility of protecting our limited and essential water resources, no matter where that person resides and where that resource may be.

ENVIRONMENTAL FOIA REQUEST HAS LIMITATIONS

USEPA initiated enforcement litigation against several companies that allegedly discharged polychlorinated biphenyls ("PCBs") into certain waterbodies. To prepare for this CERCLA litigation, the government hired an environmental consultant to make a report estimating the amounts of PCBs allegedly discharged into the water by each of the companies.

One of the companies sought discovery of the report by challenging a consent decree between the government and one of the other companies. When such discovery was denied, the company filed a Freedom of Information Act ("FOIA") request with the government for the report. When the government refused the request, asserting that the report was privileged as "attorney work product", the company sued in federal court.

On December 26, 2012, the US Circuit Court of Appeals, 7th Circuit, affirmed the District Court decision upholding denial of the FOIA request. (Appleton Papers, Inc. v. Environmental Protection Agency, et al, NO. 12-2273)

The Court of Appeals acknowledged that FOIA generally requires federal agencies to disclose records to the public. However, FOIA provides certain exemptions from this requirement. One of these exemptions, the Court stated, is for attorney work product: the exemption prevents a party from discovering material prepared in anticipation of litigation or for trial. (See Federal Rules of Civil Procedure 26(b)(3)(A)). While a party in litigation generally can discover information relevant to a claim or defense, exception is made for attorney work product, and that exemption also applies to FOIA, the COurt held.

In ordinary civil federal civil litigation, the work product privilege sometimes can be overcome by a showing of need for the information or if the author of the information plans to testify. But,in the case of FOIA requests, such specific exceptions to the exemption would be hypothetical and, therefore, do not apply.

This decision suggests a couple of additional points: first, although it involves the federal FOIA, most states have FOIA laws of their own; therefore, this case may provide some guidance in state enforcement matters. Second, the decision illustrates potential procedural issues facing an environmental defendant in attempting to learn what information the federal or state EPA may have against it.

BELIEVING IN SANTA

As a young child, age 5 or 6, I was conflicted about Santa Claus. Shortly before one Christmas, my parents took me to the magical kingdom (in my eyes) of the Sears, Roebuck & Co. headquarters store on Homan Ave. in Chicago. It was a massive complex, stretching for blocks and soaring several stories high, complete with a tower.

The toy department seemed never ending. But at one end, there was Santa on his throne, with a long line of hyper kids waiting to sit on his knee and whisper their wants. As my parents pushed me toward the line, I resisted and began to cry. I refused to join! I was afraid of Santa! He frightened me! I tried to run and hide behind a nearby display. My parents gave up embarrassed, and Santa did not get my wants.

On Christmas morning, I sneaked down the stairs. I immediately saw that overnight Santa had been to the house! There was a fully decorated tree, circled by Lionel trains, and surrounded by brightly wrapped gifts. Surely, Santa knew exactly what would please me and was very generous, even though I had refused to talk to him.

So, what to believe? Santa in person sitting before me or circumstantial evidence of Santa--no body but surely he had visited and brought gifts. As a "grown-up, I have come to reinforce my belief in Santa Claus--not as a visible person in the flesh such as the Sears Santa, but belief in the Santa that lives within each of us, a Santa that unselfishly gives gifts of friendship, hospitality, love and and generosity.

I hope that this Christmas, and through out the new year, you are able to reinforce your belief in Santa and let your Santa within come out to visit others.

Merry Christmas to all...

MAKING BUBBLES ON THE WATER

A water utility hired a man as the distribution superintendent of its drinking water treatment plant. The utility agreed to rent to the employee a house owned by the utility located on a portion of the treatment plant site. The house apparently was not separated from the plant by fencing. Visitors to the house had to enter the plant site through the single gated entry, which was monitored by a plant operator and security cameras.

During a family gathering at the house, hosted by the employee, one of the guests was bitten by a dog that another guest had brought. The injured guest sued both the utility and the employee. On appeal, the court affirmed the trial court's ruling that the utility was not liable. The court reasoned that the utility did not own or have control over the dog, and did not have control over the residence. (Howle v. Aqua Illinois, Inc., 2012 IL.App(4th)120207)

This October, 2012 court decision got me thinking that I have not seen much recent discussion about security in the water and waste water utility industry. The events of 9-11 caused water utilities to rush into place various security measures, ranging from armed guards to electronic monitoring and fencing. Then utilities were required to prepare and submit vulnerability assessments of their facilities. Subsequently, utilities became aware that many of enacted and proposed security measures came with high capital or operating costs, not easily recoverable in rates.

Recently, a television documentary featured the life story of a man who as a young boy loved to go fishing with friends at a rural river. His pals would catch loads of fish. But, he never caught any. All he did, he said, was to make bubbles on the water with his line.

I wonder whether, and to what extent, water utility security measures really are effective or are utilities merely making bubbles on the water with their efforts. Even where fences, gates, locks, cameras and monitors have been installed, are all vulnerabilities realistically addressed? Even when access to facilities is screened, nevertheless such access can create security risks by reason of information about a facility that a visitor receives, whether visual or in the form of documents.

By analogy to the Illinois decision discussed above, a utility could enhance its security with old fashion "junk yard dogs." If such dogs were to bite an invited visitor, a court likely would reach a different conclusion. However, if a utility relied primarily on dogs for security, the person bitten might wind up to be the utility itself, who had only made bubbles on the water.

ODE TO A FLU SHOT

The government says the flu season has arrived. We all know that the government is always correct. Nevertheless, I have resisted getting a flu shot for some time. Finally, after much pressure from the wife, and much hacking, horking and sneezing wherever I go in public, I finally acknowledged that my time had come for the annual jamming of the flabby arm. So, I journeyed to my local "emergency medical clinic" for the ritual.

Now, was I naive to assume that an emergency medical clinic implies speedy attention? Well, just the opposite. One must first sign in on a form calling for a multiple choice answer to why one bothered to come there. The choices ranged from "flu shot" to "immediate surgery", and my mind flashed back to the horrors my SAT test. My first choice was "flu shot" and I wisely resisted changing my answer.

Then one sits in the waiting room with dozens of hacking, horking and sneezing patients all waiting for relief from the flu because they waited to long to get a flu shot. After 15 minutes, but it seemed longer than a super bowl halftime, one is called forth for the ordeal of the PAPERWORK. Form after form requiring signature, waiving and releasing everything except my body fluids--I think I still have those. Then came the verbal questions, such as why are you here, why do you have insurance. are you allergic to the world, do you have or want the flu?

Back to the waiting room hacking, horking and sneezing for another 15 minutes. Finally, I was summoned to a closet where a nurse larger than life was salivating to do the deed. But first, she asked the same questions that blotted my mind at the check-in desk, and added are you allergic to chicken, do you like chicken, what about eggs, omelets, eggs benedict, etc. Then, as the needle attacked my flabby arm, she announced that I could not get the flu from the shot, but I may experience flu-like symptoms. So, what is the difference, I wondered. All in all, it took an hour to get a 10 second flu shot.

Upon reflection, I wonder if I would have been better off just drinking 8 glasses of water every day coupled with I-V chicken soup. Or, maybe all that sitting time with hacking, horking and sneezing immunized me from the flu anyway.

On the way home, I heard on my car radio that a science laboratory was asking the general public to send it their stool samples. It seems that scientists there want to accumulate an inventory of all the bacteria, good and bad, found in human intestines. What a great idea! This will reduce loading at the local sewage treatment plants. And, since my flu shot does not protect me from intestinal flu, I may have plenty to send the laboratory in the future.