Great Barrington — The town’s Board of Health approved an Order to Correct for Housatonic Water Works at its public hearing on Wednesday, August 22. The hearing was the third in a series discussing and debating details about the order, with the first public hearing on August 8, and the second on August 15.
The order has been issued through Massachusetts General Law Chapter 111 Public Health, under Section 122 “Regulations relative to nuisances; examinations” and Section 123 “Abatement of nuisance by the owner; penalty.” The order forces HWW to conduct multiple actions, including taking actions toward water-quality compliance and water testing. It also forces HWW to provide its customers with “an alternative supply of safe, potable water.”
As per the Order to Correct, representatives from HWW are required to appear at the next regularly scheduled Board of Health meeting, which is scheduled for Thursday, September 5.
Board member Ruby Chang said that the company must submit a work plan with scheduled date milestones for compliance with the order within 14 days of its issuance. “What I would like to see is that [the company] presents us with who they’re going to use for engineers and consultants since we’re not providing that to them,” Chang said. “I’d like to see all of that because we’re getting into warmer [weather], so obviously there’s a good chance that the water color may change by the time the cooler days come.”
Chang was referring to manganese levels in HWW’s water supply, which the company has cited as the source of the water’s brownish color.
“I really would like to get a sense of [the company’s] plan before we vote on it, which means we need a couple of days to review exactly what the [company’s] plan calls for, who they’re going to use for an engineer, and what does that site engineer recommend for testing purposes,” Chang said.
Both town Health Agent Rebecca Jurczyk and Board of Health Chair Michael Lanoue said they were concerned that any set schedule of enforcing the order made by the board may be interfered with if HWW appeals the order.
At the previous public hearing on August 15, HWW attorney Robert Cox, of the Boston-based law firm Bowditch & Dewey, accused the board of exceeding its authority in issuing the Order to Correct.
At the August 22 hearing, Town Counsel David Doneski, of K.P. Law P.C. of Boston, said that two potential scenarios could take place after the board issued its Order to Correct. “The board could take legal action to enforce the order,” Doneski said. “The company could also file an appeal under what’s called the ‘Certiorari Statute,’ which is a provision of law that allows for appeals of orders that allows for appeals of orders that are not necessarily subject to any statutory appeal provision.”
Doneski said that if the company appealed the Order to Correct, it would substantially slow down any potential enforcement by the Board of Health. “In the Superior Court, where the [appeal] would likely be filed, there is a court standing order regarding the procedure and timing for submission of documents and then scheduling of hearings and issuance of a decision,” Doneski said. “[The court case could take] a matter of months, at least, and not weeks, simply by the virtue of the timetable that exists under the applicable provisions.”
Michael Hugo, director of policy and government relations at the Massachusetts Association of Health Boards, said that he predicts that HWW will file an appeal or possibly a court injunction to block the order. “In the order, you have [HWW forced to produce] 1.5 gallons of water per person per day to households [impacted by poor water quality],” Hugo said. “The fine [of not providing water] that’s attached to that is $1,000 per day per household. So assuming, even if it’s only 100 houses that they’re not supplying water to, they run the hook for $100,000 a day. So I think you will see some very quick action [by the company]. I’m predicting the water company [will try to] either stop this from happening or to come before you with an appeal and try to see if they can strike some sort of a middle ground with you and David [Doneski].”
The board eventually approved the order with no debate, requiring HWW representatives to appear at the September 5 meeting.
During the public comment portion of the meeting, residents said that they were thankful for the board’s work on the order. “I just want to congratulate you on taking this step,” said resident Deborah Herman. “I have been involved with legal wranglings with Housatonic Water Works, and my feeling is that they will fight you to the death. I wish you the best of luck and courage. We, the people of Housatonic, thank you.”
“Thank you for stepping in and making this finally happen for our residents,” resident James Garzon said. “The only request I make is that I hope we know that HWW is going to litigate. They already [implied] that at the last meeting. I hope that our legal counsel is ready to fight vigorously and makes sure that whatever action [the board] takes will be enforced because we have seen the actions of HWW that they continue to deny and point fingers rather than take care of the issues.”
“My one comment on that would be that the town manager and Selectboard have both communicated that they stand behind us,” Board Chair Lanoue said in response. “They are ready to provide us with the resources we need to take this as far as we can.”
The Berkshire Edge emailed Health Agent Jurczyk asking for a copy of the approved Order to Correct. While Jurczyk said that she received the email during the board’s August 22 meeting, as of press time, The Berkshire Edge has not received a copy of the approved Order to Correct.
