MassDEP cites Housatonic Water Works for withholding poor test results

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The Massachusetts Department of Environmental Protection (MassDEP) on Tuesday cited the troubled Housatonic Water Works Company (HWWC) for withholding required water-test results from late July that showed levels of manganese well beyond a regulatory limit considered safe for infants less than a year old.

According to the agency’s “unilateral administrative order,” test results from water sampled in Housatonic on July 24 and provided to MassDEP on August 5 left out data showing manganese at a concentration of 0.74 mg/liter, more than double the 0.30 mg/liter regulatory limit. It also failed to include test results for iron levels. Other results, including for color, alkalinity, and total dissolved solids, were provided as required.

MassDEP said it immediately asked HWWC about the missing iron and manganese test results on August 5. According to the order, the company told regulators that “iron and manganese were being analyzed by a different laboratory, [that] results were expected that week, and HWWC would ensure that MassDEP would receive those results simultaneously with HWWC.”

But the company never provided the missing July results, the agency said. According to the order, agency officials did not learn of the elevated manganese level until two months later, on September 24, when it bypassed the water company and reached out directly to Eurofins Labs, which had performed the water analysis. Eurofins provided the results the same day as the MassDEP request.

The agency’s fact sheet on manganese notes that “infants and children younger than 12 months old are potentially most susceptible to excess manganese exposure because of their developing neurological and gastrointestinal systems. Infants appear to absorb more manganese than older age children and adults but excrete less.”

The water company—which has been embroiled in years of controversy and customer complaints related to discolored water from elevated manganese levels, potentially unsafe levels of manganese and cancer-causing disinfection byproducts, underinvestment in its capital assets, and a recently approved rate hike that will nearly double water fees over five years to fund $4.5 million of system upgrades—also failed to perform required follow-up “confirmation testing” within twenty-four hours, according to MassDEP.

As a result, HWWC also did not issue a required public notice that water with that level of manganese should not be used in infant formula or be consumed by infants for more than ten days each year, as per MassDEP’s regulatory guidance. The company provides water to approximately 800 customers.

In its October 8 order, the agency, which oversees all the state’s public-water supplies, wrote that HWWC is required under 2018 and 2020 agreements with MassDEP to test monthly for several water contaminants.

The order requires the company to post a public notice of the July test results, which it did this week on its website—though without an explanation for the delayed test-result submission; submit engineering plans by November 7 for the $1.7 million manganese-treatment system approved by MassDEP in March, and for which the state has so far contributed $350,000; submit a “corrective action plan” by November 7 that includes construction of the proposed treatment facility; and begin construction within 90 days of agency approval of the submitted plan.

If the company fails to comply, MassDEP’s order warns of potential legal action, both civil and criminal, and possible fines of up to $25,000 per violation per day. HWWC can appeal MassDEP’s order within 21 days.

On Friday, a MassDEP spokesperson said the agency has “made no determination at this time regarding penalties” that may be assessed for HWWC’s failure to provide water-test results as required.

James Mercer, the company’s treasurer and frequent spokesperson, did not immediately respond to an email seeking comment sent on Friday evening.

The violations in MassDEP’s order fall under the agency’s “Tier 2” public-notification requirement, which is for “violations and situations with potential to have serious, but not immediate, adverse effects on human health.”

Michael Lanoue, chair of the Great Barrington Board of Health, did not immediately respond to an email seeking comment sent on Friday evening.

The company’s apparent withholding of manganese test results, and the MassDEP action, come amid a busy summer and fall of HWWC-related activity. The Great Barrington Board of Health in late August issued a detailed “order to correct,” noting serious concerns about health impacts from poor water quality and water-system management that it called “a present and future risk to the public health of the residents of Great Barrington.”

The Board of Health also raised substantial concerns about the company’s water-testing regimen, which it said relies on “locations selected by [HWWC] or its agents, at which locations representatives of the [company], including senior management and/or owners, are present [and] may produce subjective, and scientifically unreliable data.”

The July test results that were withheld from MassDEP came from a water sample the company said was taken at 314 North Plain Road in Housatonic, which real-estate records show is a property owned by the Mercer family. It was approved as a sample-collection site by MassDEP in August, 2020.

Results of a water sample also taken at that address in late August, and provided as required to MassDEP in early September, showed manganese levels at 0.025 mg/liter, 30 times lower than the July result and well below regulatory limits.

The Board of Health’s August 22 order requires water-sample collection by an agent of the board and independent testing by a lab selected by the board. It also ordered HWWC to provide 1.5 gallons of bottled water to residents daily, and said penalties for noncompliance could reach $1,000 per day.

The company responded with a lawsuit, filed in Berkshire Superior Court on September 27, seeking to block the Board of Health’s order.

Last week, Mercer sent a letter to all Great Barrington residents recommending that the town purchase the water company, something the town’s current Select Board has been considering for several years. HWWC will hold a public Zoom meeting on Wednesday at 6:00pm to explain its recommendation.

Newspaper accounts over the last 100 years have chronicled frequent water-quality issues related to HWWC, as well as numerous discussions of a municipal purchase.

Earlier this year, a consultant hired by the Town of Great Barrington estimated the water system’s fair market value at $2.3 million. In regulatory filings this year related to its proposed rate hikes, the company told the state Department of Public Utilities that owners James and Frederick Mercer were owed a total of $2 million in deferred, unpaid compensation—something likely to be an issue in any sale discussions.

Later this month, the town also expects to present a long-awaited report on a possible purchase. Aside from any purchase price, an earlier study from 2021 suggested that upgrading HWWC’s systems could cost $31 million over twenty years.

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