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Berkshire Superior Court rules against Great Barrington Board of Health in Housatonic Water Works Order to Correct case

The preliminary injunction was issued by John Agostini, Associate Justice for the Berkshire County Superior Court several days after a court hearing on Thursday, Oct. 17.

Great Barrington  — The town’s Health Department has been barred from enforcing an Order to Correct against Housatonic Water Works as part of a preliminary injunction issued on Monday, Oct. 21.
The preliminary injunction was issued by John Agostini, Associate Justice for the Berkshire County Superior Court several days after a court hearing on Thursday, Oct. 17.
The board first issued the original order on August 22 after three public hearings.
As expected, however, the long-troubled company appealed the Order to Correct at a board meeting on September 5.
On September 10, the board upheld its Order to Correct, and 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.
As part of Judge Agostini’s decision, a status conference will be held on Thursday, Nov. 14 at 2 p.m. via Zoom to determine a final judgment and permanent injunction. Judge Agostini noted in his decision that a final judgment would permit an immediate appeal.
In his ruling, Judge Agostini noted:

“The manner the Order was established puts the Court at a disadvantage with respect to the facts. There was no evidentiary hearing with witnesses testifying under oath or specific findings of facts by the Board. Most importantly, there is no administrative record; a body of information that is typically required for administrative hearings. It appears that the Order was initially drafted in a closed meeting and presenting to Housatonic in essentially final form. Accordingly, I have taken the facts [used for the ruling] from the verified complaint and the affidavits that were submitted for this motion. Under these circumstances, it would be appropriate to remand the matter back to the Board for an evidentiary hearing and findings of facts. However, since Housatonic has asserted that the Board lacks jurisdiction to hear the matter due to preemption, this issue is properly before the Court.”

Further on in his written decision, Judge Agostini wrote about the company’s assertions that water quality issues are within the exclusive domain of federal and state authorities, and that any action by a municipal board of health is preempted by federal and state regulations.
“The Order has the potential to upset the timing of the DEP (Massachusetts Department of Environmental Protection) solution to the manganese problem (green sand filtration) and would frustrate state regulations stated purpose of providing a statewide and uniform regulatory process,” Judge Agostini wrote. “DEP has been assigned the responsibility to address water issues. Allowing a local agency to exercise an additional layer of regulatory review would allow the municipality improperly to second guess DEP’s decisions.”
He added that, as per state legislation, “…if communities were allowed to impose separate standards, the inevitable result would be a serious interference with the purposes and objectives of legislation. I do not believe the Legislature intended to undermine these statutes by permitting municipalities to circumvent the process.”

Read Judge Agostini’s decision order at this link.

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