Housatonic Water Works Litigation
Two of the three users of Housatonic Water Works (HWW), Great Barrington (GB), and West Stockbridge, opted to sue HWW. Stockbridge declined to join the suit.
The GB Board of Health issued an order on September 13, 2024, modified on the 17th, directing certain corrections and imposing fines if not undertaken in the time allowed. HWW entered a motion for injunctive relief from that order.
COMMONWEALTH OF MASSACHUSETTS, BERKSHIRE SUPERIOR COURT
HOUSATONIC WATER WORKS COMPANY, Plaintiff v. TOWN OF GREAT BARRINGTON, TOWN BOARD OF HEALTH, and REBECCA JURCZYK as GREAT BARRINGTON HEALTH AGENT, Defendants
INTRODUCTION
This litigation is based on a dispute between the Housatonic Water Works Company (Housatonic) and the Board of Health of the Town of Great Barrington (Board). Housatonic is a privately-owned public water supplier to approximately 750 customers in the towns of Great Barrington and West Stockbridge. On September 17, 2024, the Board issued a Modified Order requiring Housatonic to comply with its terms or face fines. Housatonic has filed this Certiorari action to vacate this order.
IT IS ORDERED by Judge John Agostini:
A. That Housatonic Water Works Company shall be awarded a preliminary injunction.
B. During the pendency of this action, the defendants, together with their agents, successors and assigns, are enjoined and restrained from enforcing the Board’s modified Order to Correct, dated September 13, 2024 (Modified Order), requiring Housatonic Water Works Company to take any action pursuant to the Modified Order or issuing any penalty to Housatonic Water Works Company by the Modified Order.
C. As the plaintiffs’ motion was limited to a preliminary injunction, the parties shall confer and determine whether any further action should be taken prior to the issuance of a final judgment and permanent injunction. Accordingly, a status conference is scheduled for Thursday November 14, 2024, at 2:00 p.m., by way of ZOOM. A final judgment would permit immediate appeal of this Order.
D. With respect to the engagement of boards of health in public safety, the seminal case is Town o/Wendell v. Attorney General, 394 Mass. 518 (1985). Wendell involved preemption by the Massachusetts Pesticide Control Act (PCA) of a pesticide regulation by the Town of Wendell’s Board of Health. The Legislature had established a pesticide board and promulgated a comprehensive plan governing the distribution and registration of pesticides and the certification and licensing of pesticide users. Wendell passed a regulation which required the board of health to hold a public hearing on any proposed pesticide use in the Town. Under the regulation, the board was to determine whether the applicant had complied with all the requirements of the State statute and also that the application of the pesticide was not a danger to the health, environment or safety of the town residents.
From these findings, the Supreme Judicial Court concluded: The legislature has placed in the subcommittee the responsibility of determining on a statewide basis, pesticide by pesticide, whether its use will cause unreasonable adverse effects to the environment. An additional layer of regulation at the local level, in effect second-guessing the subcommittee, would prevent the achievement of the identifiable statutory purpose of having a centralized, statewide determination of the reasonableness of the use of a specific pesticide in particular circumstances.”
Therefore, the SJC held that the local ordinance frustrated the purpose of the statute and therefore was preempted by the statute.
