Great Barrington — The town’s Board of Health is scheduled to meet on Thursday, October 3, at 6:30 p.m., at Town Hall. On the agenda is an executive session to discuss pending litigation from Housatonic Water Works (HWW) against the town and the Board of Health in the Berkshire Superior Court regarding the board’s Order to Correct.
On September 27, the company filed for a preliminary injunction against the town and the Board of Health in Berkshire Superior Court in an attempt to stop the Order to Correct. In a separate filing, the company asked for a short order of notice for a hearing on the injunction. The filings were made by company attorneys Timothy Van Dyck, Ashley Barnes, and Patrick Capodilupo on behalf of Boston-based legal firm Bowditch & Dewey, LLP.
“This matter stems from the Town of Great Barrington’s illegitimate attempt to place blame and responsibility on HWWC for a highly publicized and polarizing issue within the community – discolored drinking water caused by increased manganese levels during warm summer months,” the attorneys argue in their complaint on behalf of the company. “The Massachusetts Department of Environmental Protection, not the board, is is responsible for enforcement of drinking water safety rules in Massachusetts, and MassDEP has not brought any enforcement claims, or otherwise asserted any penalties, against HWWC in connection with the discolored water. Despite this, in an effort to placate ill-informed public sentiment, the Board issued an Order to Correct and modified Order to Correct to HWWC.”
The company made similar arguments at a previous Board of Health public hearing in August.
“The modified Order to Correct cannot stand as it is preempted by the Federal Safe Drinking Water Act,” the complaint argues.
The attorneys claim that the Order to Correct “is arbitrary and capricious” and “is not supported by substantial evidence.”
They also claim that HWW cannot comply with the part of the Order to Correct stating that they must provide customers within Great Barrington with “an alternative supply of safe, potable water, through the distribution and supply of bottled water in containers larger than ‘single-use containers’” daily at the company’s expense. The Order to Correct states that the water supply must be “equal to or no greater than 1.5 gallons per day, per inhabitant in each such household.”
“To date in 2024, HWW’s average monthly income is $59,265,” the complaint states. “If [the company] is required to incur costs associated with water distribution … it will experience a shortfall greater than $40,000 per month on average, requiring all available revenue to be diverted to bottled water distribution with no defined end date. This would place HWW at significant risk of financial insolvency within a short period—a matter of months, at most—and would leave insufficient funds leftover to cover routine operational costs and critical infrastructure improvements, particularly those necessary to complete installation of the green sand filtration system, which is required to permanently remediate increased manganese levels within HWW’s water system.”
The attorneys argue that the Board of Health acted unlawfully in issuing its order and that the order is unenforceable as it is preempted by the federal Safe Drinking Water Act.
The company asks for the court to vacate the Order to Correct, have the town pay for attorney fees, and grant the company “such and further relief as this court deems just and proper.”
Click here for to view the full court documents filed by Housatonic Water Works.
