Great Barrington — As expected by the Board of Health, Housatonic Water Works appealed the board’s Order to Correct at its meeting on Thursday, September 5.
The meeting included a public hearing about the company’s appeal, which, over the course of two hours, became contentious at times as board members and Town Counsel David Doneski faced off with company attorney Ashley Barnes of Boston-based law firm Bowditch & Dewey.
On August 22, after three public hearings, the board issued its Order to Correct. The order was 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.”
On behalf of HWW, Barnes asked that the board rescind its order. “I think we can all agree that discolored drinking water in Great Barrington is a matter of great public concern,” Barnes told the board. “HWW is understanding of this concern and is willing to work with the board in a good faith effort to ease the concerns of the public and of the board. However, the order fails to indicate that HWW has actually done anything wrong and contains penalties so excessive that the company would almost certainly be forced out of business within days and cannot stand.”
Barnes said that the board’s Order to Correct is preempted by the federal Safe Drinking Water Act and state regulations.
Representatives from HWW made similar claims at a previous public hearing on August 15.
“The [Order to Correct] is not supported by any evidence that HWW is causing a nuisance,” Barnes said. “Through the order, the board is attempting to substitute its interpretation of drinking water safety for that of the U.S. [Environmental Protection Agency], and [the order] is in direct conflict with [the Massachusetts Department of Environmental Protection’s] regulations. In the order, the board cites its power to address nuisances within the town. However, this power does not permit the board to take action that conflicts with the state’s uniform regulation of drinking water. The board, through its Order to Correct, is essentially second-guessing the U.S., EPA, and the DEP regulations concerning drinking water safety.”
Barnes went on to claim that the penalties outlined in the order “are exorbitant and threaten to force HWW out of business.” “There is a $1,000 fine per day for each day that HWW deviates from the board’s undetermined supplemental water testing demands,” Barnes said. “There is a $1,000 fine per day for each household to which HWW fails to provide 1.5 gallons of bottled water to each inhabitant per day. There is also a $1,000 for any violation of the order with respect to the bottled-water fine. Housatonic has approximately 750 service connections in Great Barrington. As such, the board is threatening to fine HWW over $750,000 per day, every day, indefinitely, when HWW fails to provide bottled water to those residents, despite the fact that not all households are experiencing discolored water.”
Barnes insisted that “[HWW] has done nothing wrong.” “The board’s attempt to multiply penalties by each household is unlawful,” Barnes said. “The directives and penalties associated with noncompliance carry with them the near certainty of destroying HWW’s business.”
Barnes added that if the Board of Health does not rescind the Order to Correct, the company would file litigation against the board. “We are confident that the Order to Correct will not hold up in court and believe that it would be a much better use of the [board’s] time and resources and the public’s resources to reach a resolution regarding this matter,” Barnes said.
In response, Town Counsel Doneski disagreed with many of the assertions made by Barnes, including her claim that action by the Board of Health is preempted by the federal Safe Drinking Water Act. “There is case law regarding the authority of a [town’s] Health Department or a Board of Health to take action with respect to matters of a local concern,” Doneski told members of the board. “You as a board have considered a lot of evidence before issuing the order. So I think you yourselves are able to take stock, take account, and determine whether what you have seen and considered supports the order that you issued.”
Doneski said that, under state law, the Board of Health has the authority to issue the Order to Correct.
Barnes said that, instead of complying with the order, HWW would be willing to work with the board to address the water quality situation:
- She said that HWW would be willing to increase its manganese testing from monthly to weekly for 30 days.
- She said HWW uses the current testing sites of the HWW’s water plant, the housing authority on Park Street, Brookside School, Depot Street, and new testing sites in the center of town and North Plain Road, and that the company is “willing to negotiate with the board” in choosing two additional sites based on company consultants’ recommendations.
- The company would also be willing to let the board choose an independent laboratory for testing.
“The manganese levels are going to drop next month after the system is flushed, and we don’t anticipate them increasing again,” Barnes said. “This problem is going to go away. But if [the company’s suggestions] would provide a level of comfort to the board and the public, we’re happy to do that.”
Barnes said that manganese levels in water systems across the Northeast increase in warmer weather, but that in cooler weather when HWW flushes its water system, the levels of manganese drop back down.
In response, Board of Health Chair Michael Lanoue said, “I can understand the level of fines argument, to a point, but I think it’s a little difficult for me, at this moment tonight, to rescind this order entirely.”
Board member Ruby Chang cited Section 123 and stated that HWW’s water quality is a nuisance to residents. “This has been a [water-quality] condition for many years, and I don’t think that this is a one-time issue,” Chang said. “We have requested over and over again [action by HWW], and nothing has been done to address the nuisance. It’s a nuisance to the people who have to use and deal with this water day in and day out, and it’s harassment to the people that the company serves. You’re looking at scientific data, but I’m looking at nuisance data, and that has been ongoing for such a long time that people are desperate for some sort of answer.”
“Just to point out that [HWW] is looking not at the solutions that were proposed [by the board], but only at the fines if they don’t do anything,” said board member Peter Stanton.
Barnes went on to say that the company would install a green sand filtration system to address the manganese problems. Back in June 2023, HWW filed an application with the state’s Department of Public Utilities requesting a 112.7 percent overall revenue increase, with the installation of the green sand filtration system cited as one of the primary reasons for the increase.
In June, the company received a $350,000 EPA and MassDEP grant for the installation of the green sand filtration system, and in July, the DPU approved an altered rate-increase request that will allow the company to raise its rates on customers by over 90 percent over the next five years.
Board member Chang asked Barnes when the green sand filtration would be completed. Barnes could not give an exact date but said “the plan is before next summer” for the installation of the filtration system.
Board Chair Lanoue told Barnes that he did not feel that the board could rescind the order in its entirety. “We’ve heard [from HWW] in our recent meetings that this problem doesn’t go back that far, but we’ve heard many accounts from many people that it goes back many, many years,” Lanoue said. “The flood of complaints, the pictures [of customer’s discolored water] we’ve seen, and the testimonies we’ve heard [from customers] in just this one summer, that’s the most we’ve ever had before. I think in terms of what we heard about [HWW] being in compliance with all the regulations and stipulations by DEP, for us and our board, there’s a disconnect there. We see official results come through, yet we have ample evidence that there’s a problem, and no one [at HWW] has been able to give us a satisfactory answer of exactly why that problem is happening.”
After some discussion, the board decided to stay the Order to Correct until another public hearing. While the public hearing has not officially been scheduled as of press time, Chair Lanoue said that the hearing will be held virtually via Zoom on Tuesday, September 10.
In the meantime, on Monday, September 9, the Selectboard is scheduled to meet in executive session to discuss “strategy with respect to litigation, Housatonic Water Works Company rate increase.”
Selectboard Vice Chair Leigh Davis was at the Board of Health’s September 5 public hearing and spoke during public comment, addressing HWW President Frederick Mercer and Treasurer James Mercer. “I appeal to the Mercers that they show empathy and that they look at the short-term impact and the financial hardship of those customers of theirs that they serve,” Davis said. “I don’t see anything that points to the fact that they recognize that people are scared of drinking the water. Every single day, [customers] are faced with dirty water and public-health concerns. What I would do is that I would appeal to the Mercers to offer some olive branch in the interim, either in terms of a financial compensation [to customers] or some timeline that addresses the real concerns of public safety.”
