A previously unreported penalty-assessment notice sent to the company in November called the facts “undisputed” and the company’s violations “willful.” The penalty was revealed in a response to a public-records request filed by The Argus.
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(UPDATE: This story was updated on Saturday, December 14, 2024, at 9:00 a.m., to include new details of past enforcement actions that were posted to the state’s environmental-data portal shortly after the story—which highlighted incomplete data provided in that portal—was published. A sentence was also added to note that test results from late summer and early fall showed manganese concentrations well below regulatory limits.)
GREAT BARRINGTON – One of the state’s drinking-water regulators has fined the Housatonic Water Works Company a total of $10,205 for violations related to its “willful” hiding of July water-test results that showed manganese concentrations at nearly two-and-a-half times the regulatory limit.
That’s a level that can cause adverse neurological effects, particularly if consumed for more than ten days by infants less than twelve months old.
As first reported by The Argus, the Massachusetts Department of Environmental Protection issued a unilateral administrative order on October 8, 2024, citing the privately owned water utility for withholding poor test results—a violation of state drinking-water regulations and earlier consent agreements between HWWC and the agency. At the time, a MassDEP spokesperson said financial penalties had not yet been determined.
According to details included in the administrative order, a water sample collected by HWWC on July 24, 2024, showed manganese at 0.74 milligrams per liter, well above the 0.30 mg/liter regulatory limit. But the company did not forward the results to the agency within twenty-four hours of receipt, perform confirmation re-testing, or publicly notify customers within thirty days as required. It wasn’t until a late September investigation by MassDEP officials that the missing results were provided to the agency by Eurofins Lab, a testing contractor hired by HWWC.
MassDEP’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.”
At levels as low as 0.05 mg/liter—well below the regulatory limit—manganese can give water an unpleasant taste and make it appear light yellow to dark brown. That’s the range of discoloration reported by HWWC customers for at least the last six years, primarily during the summer months. The company and regulators have said that even if unsightly, the discolored water is safe to drink if manganese does not exceed 0.30 mg/liter.
According to the state’s drinking-water database, test results provided by HWWC from samples taken in August, September, and October this year show manganese well below the regulatory limit, ranging from “non-detect” to 0.065 mg/liter.
In a previously unreported November 5, 2024 penalty-assessment notice, MassDEP pointed to its earlier findings and detailed its rationale for the amount of the fine. According to the letter sent to HWWC co-owner and treasurer James Mercer, most of the penalty—$8,625 of $10,205—was levied for the company’s failure to comply with previous agreements with the agency that require more-frequent testing for several contaminants including manganese.
Both the penalty notice and civil fine were disclosed in response to public-records requests made by The Argus for documents related to October’s administrative order. MassDEP declined to provide most of the requested materials, including correspondence between the agency, HWWC, and several labs involved in water testing, citing exemptions it said apply to a matter “under active investigation and enforcement by MassDEP.”
Last week an agency spokesperson told The Argus that the company paid the fine and has so far met all conditions outlined in the October administrative order. That includes filing a corrective-action plan and moving forward with implementation of the “greensand” manganese-filtration system that the company has been testing since 2022. According to the agency’s order, construction of that system must begin within ninety days of MassDEP’s approval of submitted plans.
The spokesperson could not immediately confirm if the submitted plan has been reviewed or approved.
HWWC faced potential fines of up to $25,000 per day, as well as possible criminal prosecution, if it did not comply with the October order.
A new manganese-filtration system has been inching forward slowly for several years. In late March, MassDEP signed off on the results of HWWC’s approved pilot test of the system, which consisted of two-to-four-week-long experiments that began in September, 2022, and that continued once per season through September, 2023.
According to an agency review, the test implementation was “effective for removal of manganese and demonstrated no deleterious side effects or by-products as an outcome of the greensand filtration process.” The agency called for careful monitoring of chlorination in the final system to ensure “microbiological control,” and noted that the first year of full operation will be considered a “demonstration.”
In July, HWWC also received a $350,000 grant from MassDEP toward construction of the system. The funds came via the federal Environmental Protection Agency’s Emerging Contaminants in Small or Disadvantaged Communities grant program. That program will distribute up to $5 billion from the $1.2 trillion Bipartisan Infrastructure Law passed by Congress in November, 2021.
According to documents filed with the state Department of Public Utilities, the filtration system will cost nearly $1.7 million. While filings with the DPU last year suggested it was “expected to be in service in the fourth quarter of 2024,” the company’s application for the $350,000 grant projected it would not begin operating until September, 2025.
Mercer did not respond to emailed questions about the withheld test results, civil penalty, or the expected operational date of the manganese-filtration system.
A history of noncompliance, consent agreements, and monetary penalties
Under longstanding state regulations, MassDEP has significant flexibility to determine when and how to levy fines and propose consent-agreement conditions. Like other state agencies, it may balance monetary fines against other priorities, including incentivizing regulated entities to come into compliance.
In its penalty letter to HWWC, it listed a range of factors it may consider, including “actual and potential impact on public health”; “whether the person has previously failed to comply with any regulation, order, license or approval issued or adopted by the Department”; “making compliance less costly than failure to comply”; and “deterring future noncompliance.”
Last month’s penalty was not the first time MassDEP fined the company for noncompliance with state drinking-water regulations. In May, 2016, it assessed a $28,750 penalty for failure to meet requirements for filtration and disinfection procedures applicable to utilities that draw water from surface-water supplies. That includes HWWC, which uses water from its Long Pond reservoir to provide an average of 100,000 gallons per day to approximately seven hundred customers in the northern section of Great Barrington and roughly ninety others in Stockbridge and West Stockbridge.
Most Great Barrington homes and businesses that are served by a water system and not private wells—including the town’s crucial downtown commercial district and its nearby “The Hill” neighborhood—are customers of the Great Barrington Fire District. That utility pumps an average of 500,000 gallons per day from an underground aquifer located near the Green River and beneath the Walter J. Koladza Airport.
In an email, a MassDEP spokesperson said the 2016 penalty—which has also not been previously reported—was levied for “failure to appropriately monitor for pH, temperature, or peak flow; failure to demonstrate proper disinfection; failure to record and retain records relative to disinfection residual; failure to provide notification of a treatment technique violation; and insufficient automation considering reduced hours of operation.”
The company was required to immediately pay $12,500, take necessary actions to return to regulatory compliance, and add automated water-quality-monitoring equipment. A consent agreement allowed that if HWWC met those requirements, the balance of $16,250 would be waived.
Images from Housatonic Water Works customers that were uploaded to a “Discoloration Map” assembled by Housatonic Water Action.
In August, 2018, HWWC was also assessed a fine of $5,750 for violations related to “lead and copper action-level exceedances,” but the monetary penalty was suspended provided HWWC installed a corrosion-control system to address contamination issues. It’s unclear if such a system was ever installed; records suggest the company eventually met the requirements through other system improvements.
At other times, the agency has entered into noncompliance-related consent agreements with HWWC without assessing a financial penalty. Some are listed in the state’s environmental-data portal, but the site does not include all enforcement actions or provide many documents or details. A MassDEP disclaimer says, “This portal does not include all of the agency’s regulatory data, and therefore should not be relied upon to determine overall compliance.”
Several hours after this story was first published on Thursday, December 12, details of previously undisclosed past enforcement actions against the company appeared for the first time in the data portal. The new entries include several administrative consent orders and two “demand actions” from June and September, 2019, with accompanying fines of $750 and $5,000, respectively.
According to MassDEP’s list of enforcement terms, a demand action “is a formal notice, in letter format, demanding that the recipient party comply with certain regulatory requirements, and/or take action under a previously executed agreement.” The new entries in the data portal do not include copies of the enforcement letters, so it’s unclear which previously ordered actions were incomplete and the subject of the demand letters.
Fabienne Alexis, MassDEP’s deputy-press secretary, did not respond to multiple messages on Friday seeking information about the newly disclosed enforcement actions. The Argus has filed a public-records request for the documents.
Water-quality concerns and takeover discussions have been ongoing for nearly a century
Last month’s penalty for withholding manganese test results came as a decades-long water-quality saga continues to swirl around the company, its customers, state regulators, local elected and municipal officials, and the broader Great Barrington community.
Indeed, community activists have long complained that action by town officials and state regulators has been maddeningly slow, and often note that Housatonic is the historically working-class, lower-income neighborhood of Great Barrington.
Recent developments include:
- The Great Barrington Select Board’s ongoing, multi-year discussion about whether—and how—to acquire HWWC and remake it into a publicly owned utility. Studies over the last few years have put the water system’s value at $2.3 million and estimated that more than $30 million is needed for system upgrades over the next two decades.
- Continuing complaints from residents over discolored water, particularly in the warm summer months when elevated manganese levels can overwhelm the company’s existing water-filtration systems.
- An appeal filed by the towns of Great Barrington and West Stockbridge in opposition to a state-approved, phased-in rate increase, which was authorized in a settlement agreement between HWWC and the Massachusetts attorney general and endorsed by the DPU. That plan will increase customer costs for water by ninety percent over the next five years to help pay for the manganese-filtration system and other upgrades.
- Active litigation in Berkshire Superior Court, where the company has sued the Great Barrington Board of Health to block a September “order to correct” that would require HWWC to provide bottled water to all customers and pay for independent water testing. A judge has issued an injunction to pause the order while the case plays out.
- Concerns over cancer-causing disinfection byproducts that have at times climbed above state regulatory limits.
- The Town of Great Barrington’s recent doubling—to $600 per household—of available reimbursement to HWWC customers for purchases of bottled water, filtration systems, and for other water-related expenses.
- An appeal from HWWC to the residents of Great Barrington to support a municipal purchase of the company and possible integration with the Great Barrington Fire District.
- Growing community organizing and activism to spur action by local, state, and federal officials. A group called Housatonic Water Action, which hosts an online “Discoloration Map” highlighting customer complaints, has so far distributed forty cases of bottled water and ten 2.5 gallon containers of drinking water, according to organizer and Housatonic resident Cecilia Turner. (Turner is married to Ben Elliott, who was elected to the Great Barrington Select Board in May, 2023.)
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For more about HWWC’s withholding of July’s manganese test results, see this Berkshire Argus story. For more coverage, follow ongoing reporting by Heather Bellow at The Berkshire Eagle and Shaw Israel Isikson at The Berkshire Edge.
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