Monday, November 15, 2004

Still More on Copepods, A letter to the editor of the Jewish Press

The Copepod Debate

David Berger`s op-ed essay on the copepods, while it struck an emotional cord, could have taken a more technical and halachic approach (“On the Prohibition of Water: An Appeal to Poskim,” Oct. 22).

1) To categorize a copepod as "h`ayin sholet bo" (something visible to the eye) when it was in our water supply for over a hundred years without being seen until someone spotted it with the help of a buglight — this is a difficult stretch of logic.

2) To say the shiur (size) of an item that makes it impermissible is so small that for more than a hundred years no one spotted it and therefore transgressed — this would appear to violate the basic principle of "Torah lo bashomayim he" (Torah is not in the heavens).

3) If you want to hypothesize that prior to the advent of the buglight this size was not assur but after the buglight was invented the shiur is now lower, you violate the principle of “im cain nosata d’vorecha l’shiurin” — you can’t have different sizes for different people.

Zevi Wolf
(Via E-Mail)
Some reactions. First, I think Dr. David Berger's article did take a technical and halachic approach. He was trying to show how what seemed to be an emotional gut reaction to the issue was actually encoded in halacha. Whether he is correct or not is another issue.

What this letter essentially tries to do is to take the basic gist of Dr. Berger's article - that how could we say that water that was perfectly clear and was consumed by previous generations is traif - and focus it in what seem to be more halachic categories.

My first reaction was that Dr. Berger's article was explicitly aimed at those posekim who held there was no problem with the water, in order to provide encouragement and not at the general reader, and that these posekim (such as Rav Belsky) surely already had similar ideas regarding the size and visibility of the copepods, among other reasons to permit. If so, I am not sure what purpose this letter serves to the posekim, who surely can think through this issue themselves. Dr. Berger at least contributed something novel to the discussion. However, on reflection I suppose that it perhaps might be useful to show how the attitude can manifest itself in terms of these halachic concepts.

My objection, though, is that the conclusions the letter writer offers are not without problems. While posekim will realize this, I fear the intended or likely audience of the letter is the average Orthodox Jew, who will not realize that the issues are not that clear-cut. Thus, part of my aim in responding to this letter is to show the complexity of making such a determination, and that the issue is not in fact clear-cut.
1) To categorize a copepod as "h`ayin sholet bo" (something visible to the eye) when it was in our water supply for over a hundred years without being seen until someone spotted it with the help of a buglight — this is a difficult stretch of logic.
1) This really depends upon your definition of העין שולטת בו, as well as the issue of why העין שולטת בו is a determining factor.

If you examine the Aruch HaShulchan I cited in an earlier post (ערוך השלחן, יורה דעה א, סימן פ"ד), he was asked about bacteria in vinegar, and dismissed the issue. Then he turned to the issue of bacteria in water, and said it was no issue because the Torah was not given to angels, and so what the eye does not rule over is not to be considered a problem. For if not, the air is filled similarly with bacteria and it would not be possible to avoid swallowing them. The reasoning seems to be that it would be impossible to avoid these bacteria so they could not be an issue. As a result, he says that anything that the eye does rule over - that is, that you can see, even if only in direct sunlight, even the smallest of the small, would present a problem, and so you must filter just as they filtered their water for chametz on Pesach.

At least here, the definition of העין שולטת בו seems to be "Can the (naked) eye see it, or can it not see it?" That seems to be the definition with the least amount of stretch. That is, if I gave you a sample of water now and had you look, could you see it or not? Not whether people happened to have looked for it and saw it over the last century.

Let us say it did take someone with a buglight to spot it initially. Does that mean they are not visible without a buglight? I think any good light would allow them to be seen in the proper conditions. That is, the Aruch Hashulchan says you cannot just drink the water at night or in poor lighting and say you cannot see it, but it is considered העין שולטת בו if you take it into good light and look really closely at the really tiny bugs and can see them.

According to the OU fact sheet,

    How to view NYC tap water copepods:

    The copepods that come out of the tap are dead, in almost all cases. It is believed that the prolonged exposure to chlorine, along with the rigorous journey through the delivery system, is the cause. Their lack of movement contributes to the difficulty in finding them.

    All of the types of copepods in our water are translucent. This makes it virtually impossible to spot them in a cup of water.

    The fact that some areas generally receive only small copepods further contributes to the difficulty in spotting them. In general, the size of copepods starts at ~0.1mm length for the larvae, and ranges up to 1.4 mm for adults. The average length is 0.8mm. Their thickness ranges from ~0.1mm to ~0.3mm.

    They are best viewed in a shallow bowl of clear plastic, with black background behind it. The antennae and tails of the larger copepods are discernable without magnification.

    Copepods can be found more easily by inspecting a spent filter cartridge. Alternately, a cloth placed at the tap (unfiltered, of course) will catch the copepods of the water that passes through it. The cloth should be carefully inverted into a shallow bowl of water, and the copepods shaken off into the water.
No mention is made of using a bug light. Since they are translucent, they are difficult to spot in a regular glass of water. However, looking carefully in good light, especially against a black background, one can spot the copepods in the water, and even see the antennae and tails of the larger ones. This requirement of a good black background is not one given in the Aruch Hashulchan, but my sense of his position is that if is is visible to normal people under some normal conditions, one must account for it, and it is considered as visible to the naked eye - that is, העין שולטת בו.

2) Furthermore, it is possible that people in fact did see these copepods throughout the years. If they are visible in good light against certain backgrounds, then people may have seen them. They did not necessarily think they were a problem because these creatures (especially the ones that are not largest) may look like a speck in the water. A speck is visible but someone will might think it is just lead from the pipe, or a speck of dirt. Someone fairly recently spotted it and recognized it as a "bug," but it is not clear that העין שולטת בו means that the eye recognizes it is a bug.

Now, there are those that in fact say that it must be visible as a bug rather than a speck to be consider a sheretz. However once you know that there are in fact copepods prevalent in the water it may no longer be halachicly acceptable to pretend that what it looks like a speck is not with some likelihood actually a copepod (as I think Rav Bleich said). Further, for the largest of these copepods, as I cited above, you can actually spot the antennae and tails. Further, that they were once visible as creatures (only) by virtue of their motion might make them a sheretz on the basis of a Rashi which defines sheretz in once instance as something you can identify as such by virtue of its crawling (as I think Rav Schachter said).

3) Furthermore, I would point out that it is in fact even easier to make a determination. Go up to the reservior, and they are clearly visible as creatures, because they are alive and moving. Only dead ones are hard(er) to see. From what Dr. Berger cited in his article, it looked like these posekim were saying that once they are visible in the reservior, it does not matter if they are not visible later in the tap water. (I have not had the opportunity to read the teshuva yet.) As a result, one can say that the eye does in fact rule over them, העין שולטת בו.

I offer a poor analogy. Take some pig fat which is visible/physically present - בעין. Mix it into a chulent such that it is not visible. Even though it is not visible it still poses a problem. So too if is poses a problem initially when it is visible, it may still pose a problem later, even if we were to say that it is no longer visible.

How can we say that? How can someone combat that? That is, how can someone avoid what he do not know is there? Well, to be mean, this is not the first time humanity has known about copepods in the water. It is not even the first time humanity has known about copepods in NYC water. They are prevalent in the reservior; scientists knew of their existence. For example, see here, dealing with West Nile Virus:
Most freshwater zooplankton that are found in the New York area are crustacean arthropods (either copepods or cladocerans). They are quite small and their larval and juvenile stages will for the most part also occur in the water column. Therefore, there is a concern that any mosquito larvicide may have potentially deleterious effects on the zooplankton as well.
It was thus possible to know about the problem - had they visited the reservior, or read the scientific literature, they could have known about these copepods. Then, they could have checked their water and found this many years ago. Especially given that the Aruch HaShulchan dealt with this and said one must be concerned about really tiny bugs which are visible only in direct sunlight, they might have looked into the matter. Not that I would have expected them to do so, or fault them for not doing so, chas veshalom, but they might have.

That they did not does not mean that it is impossible for them to have done so.

The letter continued...
2) To say the shiur (size) of an item that makes it impermissible is so small that for more than a hundred years no one spotted it and therefore transgressed — this would appear to violate the basic principle of "Torah lo bashomayim he" (Torah is not in the heavens).
This seems to be a continuation of the point he was making above about that which the eye rules over. Where he says that the Torah is not in Heaven, the Aruch HaShulchan expressed it as the "Torah was not given to angels." Yet as I outlined above, it was not impossible for them to have found it out by simply travelling to the reservior, asking scientists, or subjecting their water to close examination on occassion, especially after seeing the Aruch HaShulchan. Thus we cannot necessarily use this as a criterion for determining whether something is visible.

How could Hashem have made the shiur so small that people for 100 years in NYC did not see it and transgressed? Well, they could have seen it if certain things had happened.

4) However, he seems to be referencing another idea. That is, how can we say that all of the Jews for the past 100 years in NYC (as I detailed in a previous post, before this the copepods in the water were probably moving and thus visible) sinned. To this I would answer that there is a series of pesukim in Vayikra 4:13 and on that speak to the issue:

וְאִם כָּל-עֲדַת יִשְׂרָאֵל, יִשְׁגּוּ, וְנֶעְלַם דָּבָר, מֵעֵינֵי הַקָּהָל; וְעָשׂוּ אַחַת מִכָּל-מִצְו‍ֹת ה, אֲשֶׁר לֹא-תֵעָשֶׂינָה--וְאָשֵׁמוּ.
"And if the whole congregation of Israel shall err, the thing being hid from the eyes of the assembly, and do any of the things which the LORD hath commanded not to be done, and are guilty:"

That is, it is possible for all of klal yisrael to sin beshogeg. The case in the parasha, when they must bring a par heelem davar shel tzibbur, is when the Sanhedrin issued an incorrect ruling which was followed by the community. A large portion of masechet Horayot deals with this issue.

Thus, it is not impossible for the entire community to sin accidentally. How could Hashem have allowed the Sanhedrin to make such an error? It happens.

Here, the argument is, how could Hashem have made the shiur where it would be assur so low that a specific community in history (NYC, 1900's) would accidentally sin? I answer: it can be.

Let me ask: if for some portion of time people did not think to check their water (in the Aruch Hashulchan's day) for tiny bugs that were not visible except in direct sunlight, how could it be that that (such tiny bugs) would be the shiur? After all, the Torah was not given to angels?

That is not to say that I find no merit in his argument. It is just that I do not see this as clear-cut. The Torah was not given to angels, but this was in fact determinable 100 years ago. It was not, but it was able to be determined. That people at a specific time will have accidentally sinned might not be sufficient cause to appeal to this principle.

Alternatively, Rabbi Tendler was cited in a recent New York Times article as referring to the pasuk in Devarim 29:28 that הַנִּסְתָּרֹת--לַה, אֱלֹקֵינוּ; וְהַנִּגְלֹת לָנוּ וּלְבָנֵינוּ, עַד-עוֹלָם--לַעֲשׂוֹת, אֶת-כָּל-דִּבְרֵי הַתּוֹרָה הַזֹּאת.

3) If you want to hypothesize that prior to the advent of the buglight this size was not assur but after the buglight was invented the shiur is now lower, you violate the principle of “im cain nosata d’vorecha l’shiurin” — you can’t have different sizes for different people.
I would not hypothesise this - I would say they would pose a problem before the advent of the buglight, since they would be visible in the reservior or would be visible in direct sunlight against a good background.

However, whether new scientific innovations should cause a change in what we are concerned with halachically - that is a complicated issue. In this case, natata devorecha leshiurin might be an applicable principle.

I will attempt to play devil's advocate here. Firstly, there are times that shiurim do in fact differ for different people. (I hope I do not get any of the examples wrong.) The gemara in eruvin about the length a person may travel in a 4 cubit square might be dependent upon the cubits for this particular person.

Another example - the shoe used for chalitza has to fit the wearer - that is, it must cover the majority of the brother-in-law's foot. But if people have different feet, that would be different shiurim for different people.

If you eat enough to be be satisfied you must bentch, on a di`orayta` level. But do not different people's appetites differ?

Controversial: We say shema in the morning as long as people are waking. Our current time until which to say shema is based on the fact that in the times of chazalprinces were still getting up at this time. But if now people (academics; yeshiva and college students) are getting up later, then perhaps the shiur, which was when people are still getting up, should be different. (There are answers to why this may not be so.) The shiur has not changed. It is defined as whenever people are getting up.

Further, the principle of natata devarecha lishiurim certainly applies synchronically. But would we apply the same diachronically? It might, and it might not.

(Examples: in many cases we say that we all are considered istenis, or that our women are considered chashuvim.)

There are cases where we say nishtana hateva' - that nature has changed. Perhaps we can say the same here as an halachic fiction - that is, now they are considered something that the eye rules over...

Finally, perhaps we can say this was not given as a shiur for bugs/copepods in the water. All that was given is that you must watch out for beria. However, as the Aruch HaShulchan points out, we would not assume that there will be an issue if the eye rules not over them. Now that they are visible to the naked eye because of better lighting, we would no longer have this exemption. But there was no shiur per se that was given - just a principle which applies or does not. Here, if the shiur is what is visible, then perhaps the argument can be made that with the advent of the buglight, what is visible has now changed.

(Please note that I do not believe that they were not visible in the past. I am just assuming that they were not for the purpose of making this argument.)

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