Great Barrington — At their meeting on Monday, August 11, the Selectboard voted unanimously to drop litigation against Housatonic Water Works (HWW). The vote came a few days after the town’s Board of Health voted to drop its litigation against the company.
Back on August 22, 2024, the Board of Health issued an Order to Correct against the company 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 would have forced HWW to conduct multiple actions, including taking actions toward water-quality compliance and water testing. It also would have forced HWW to provide its customers with “an alternative supply of safe, potable water.”
On September 27, 2024, 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.
On October 21, 2024, Associate Justice for the Berkshire County Superior Court John Agostini barred the Board of Health from enforcing the Order to Correct as part of a preliminary injunction.
On December 19, 2024, the Selectboard hired attorney Eric Krathwohl as special counsel in negotiations between the town and HWW regarding a potential acquisition of the company.
On January 24, HWW gave notice to the Department of Public Utilities that it would delay the installation of a manganese filter system, a step that had been part of the rate-increase plan approved by the DPU in July 2024. As proposed, HWW customer rates would increase by over 90 percent over five years. The plan, as agreed to by the DPU, contains a capital project list that includes a manganese filter system, an interconnection with the Great Barrington Fire District, a new water storage tank, and a main replacement.
In its January 24 filing, HWW attorneys cited the Board of Health’s Order to Correct as the primary reason for the delay in installing the filtration system, adding, “This project has been delayed because the company’s lenders have declined to finance the project due to financial risks that arose subsequent to the Department’s approval of the Settlement Agreement.”
On February 5, the town of Stockbridge filed a motion with the DPU requesting that the company roll back its planned rate increases and that the DPU investigate the company.
Great Barrington joined in Stockbridge’s motion on February 14, with West Stockbridge later joining in on March 3.
On February 13, Massachusetts Department of Environmental Protection (MassDEP) representative Andrew Kelly wrote to HWW Treasurer James Mercer insisting that the company go forward with the installation of a manganese filtration system.
On February 18, Mercer wrote back to Kelly that the company would not move forward with the project until the legal issues with Great Barrington and West Stockbridge were resolved.
On March 3, the same day West Stockbridge joined the motion, the Attorney General’s Office came out against the towns’ complaints against the company.
At a special town meeting on April 17, Great Barrington residents voted against acquiring HWW and the Great Barrington Fire District.
On July 1, DPU Chair James M. Van Nostrand rejected a motion of enforcement made by Stockbridge, Great Barrington, and West Stockbridge that requested HWW roll back its planned rate increases and that the department investigate the long-troubled utility.
On July 14, HWW agreed to a consent order issued by MassDEP, outlining certain terms and conditions of how the company must proceed to conduct business. As part of the consent order, the manganese treatment plant must be complete and operational by March 1, 2026. HWW will also now have to submit monthly status reports to MassDEP by no later than the 15th of each month. The consent order states that the company has been fined $12,360 for various violations; however, MassDEP has suspended the fine as long as HWW does not violate any of the terms outlined in the consent order.
At their August 7 meeting, Great Barrington’s Board of Health voted to drop its legal actions against HWW.
At the meeting, Chairman Michael Lanoue explained that the legal actions taken by the board have prevented the company from obtaining financing for the treatment plant.
At their meeting on August 11, the Selectboard followed suit with the Board of Health and voted to drop all litigation. “The [Order to Correct] states that if the company is unable to obtain financing required to construct the filtration plant because of ongoing litigation, then it may request an extension of the completion deadline by submitting evidence that the financing has been denied for reasons outside of the company’s control,” Selectboard Chair Steve Bannon said, reading a prepared statement before the vote. “The Selectboard has received what it believes to be reliable information that the company cannot get financing approval for the filtration plant while the town’s litigation remains active.” Bannon did not cite or explain the information that the Selectboard received.
“While the town’s litigation remains active in light of the importance of the manganese filtration plan and other remedial actions contained in the DEP submitted administrative consent order, the Select Board will consider dropping its appeal upon the approval of a settlement agreement in order to allow the manganese filtration plant to be funded and completed,” Bannon said. “This has been a challenging situation, but the Selectboard finds that the system-wide benefits which are expected from the manganese filtration plan are reasons to consider ending the litigation.”
Bannon added that the litigation “has also been an obstacle to progress on talks relative to the town acquiring the company.”
During the discussion before the vote to drop the litigation, Bannon said that “we’ve made it clear that we want to progress to purchasing this company.” “It’s important that we move ahead with this and not wait for years stuck in the courts and stuck in other litigation,” Bannon said. “I think this is a positive, and I think what we are doing tonight will help move this along.”
“I think that this is a compromise,” Selectboard member Ben Elliott said. “And which, by definition, it’s not going to feel 100 percent great. I think that MassDEP is finally taking this seriously due to the work of our board, the Board of Health, town government, town staff, and community activists who have been putting pressure on [the state] and keeping the story where it needs to be at the forefront. It’s not enough, and it won’t be enough until we have clean water for everyone in Housatonic.”
