Housatonic water lawyer says Great Barrington Health Department has no ‘authority’ to impose order on company | South Berkshires
Reed Anderson, a customer of Housatonic Water Works Co., holds a sample of his water in July 2021. A remedy proposed by the health department is being challenged by an attorney for the water company, who says a local agency does not have the authority to impose its requirements on the company.
GREAT BARRINGTON — An attorney representing the Housatonic Water Works Co. told city health officials they do not have the authority to issue the proposed corrective order to the company because federal law takes precedence over local law.
Robert Cox, an environmental attorney with the firm Bowditch & Dewey, attended the city’s health department’s public hearing via Zoom Thursday evening as the board continued to work on drafting the order that would force the company to address its customers’ water quality issues.
That public hearing will continue through Thursday, August 22, and will also be held via Zoom only so the board can continue to work on drafting the ordinance with the help of consultants and the city’s attorney.
The panel’s order, as currently drafted, would require the company to pay for independent testing at times and locations of its choosing and would require the water company to deliver 5-gallon containers of water daily to its 800 homes and businesses.
The decision follows ongoing discoloration problems caused by manganese, which are common in summer. The committee also wants another set of test data to confirm that there is no health risk. There are delays in reporting results for certain compounds.
This comes amid pressure from Housatonic residents on the city to take action and a state-approved rate increase that went into effect Aug. 1. The city is prepared to appeal to the court. But the rate increase will remain in place regardless of whether an appeal is filed, according to a Department of Public Utilities spokesperson.
The gradual increase in tariffs over a five-year period is intended to help finance $4.5 million in improvements the company hopes to make to address quality problems.
Cox told the panel that the resolution he proposed “exceeded” his authority.
“Congress anticipated the area of public drinking water and the regulation of public drinking water decades ago through the Safe Drinking Water Act,” said Cox, who specializes in drinking water cases.
Cox said the state Department of Environmental Protection is responsible for this. This oversight has been delegated to the department by the federal agency, the Environmental Protection Agency, he noted.
He pointed to the DEP-mandated testing plan for a variety of contaminants that water plant co-owner and treasurer James Mercer sent to the board and that was displayed on the Zoom screen.
It is unclear what impact Cox’s testimony will have on the committee’s future work on the order.
Mercer issued a statement reminding the board and the public that all aspects of the company are strictly regulated.
“In addition, we are continuously taking samples to determine key water quality indicators,” Mercer said, adding that the system will be electronically monitored and equipped with alarms “to report when there are changes … in turbidity or chlorine levels or high flow.”
Mercer addressed customer concerns about one of the testing sites being his father’s house on North Plain Road. His father is Frederick Mercer, the company’s co-owner.
“His water is being tested because it’s available,” he said. “It’s an open situation where the lab can take samples.”
State approves plan for Housatonic waterworks that increases rates by 90 percent over five years to fund system repairs
He also mentioned the other locations, saying that lab staff “can just come by. You don’t have to wait for anything.”
Mercer also answered questions from board member Dr. Ruby Chang about manganese testing, saying it is a monthly test that occurs year-round.
He angered several residents by claiming that elevated manganese levels were due to “climate change” and pointed to an interactive DEP map showing that his company is not the only affected water source.
And he said the discoloration of the water was “not toxic.”
“It’s not pleasant,” Mercer said. “From the DEP’s perspective, these are aesthetic issues, but for everyone, it’s very concerning.”
He also said some of the discoloration and sediment problems occur in private mains and utility lines, which the company is not responsible for. That’s likely why some homes are affected and others aren’t, he said.
