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Legionnaire's Disease and New Regulations Respecting Cooling Towers

Mann Report: Management - January 2016

By: Carol A. Sigmond

In August 2015, 16 New Yorkers died and at least 133 were made seriously ill by an outbreak of Legionnaire's Disease in the South Bronx. Legionnaire's Disease or Legionellosis is a form of pneumonia, first diagnosed in 1976 following an outbreak in Philadelphia, PA, at the Bellevue- Stratton Hotel during an American Legion Convention. In the initial outbreak, thirty-four of the 221 made ill by the bacteria died.

Middle-aged and elderly people, particularly smokers and those with compromised pulmonary or immune systems are most at risk from Legionnaire's Disease. The most effective treatment for Legionnaire's Disease is antibiotics.

Legionnaire's Disease is caused by a water-borne bacteria. It thrives in warm water (75° F - 113° F), with its maximum growth recorded at 95° F. The bacteria is not transmitted from person to person, it is transmitted by inhaling Legionella contaminated aerosolized water or soil. Central air conditioning systems with cooling towers are a common source of contamination, as are water towers, whirlpool spas, evaporator coolers, misting systems, humidifiers, and nebulizers. Building cooling towers were implicated in the 2015 outbreak in the Bronx.

In response to the outbreak of Legionnaire's Disease in the Bronx, on August 6, 2015, the New York City Commissioner of Health and Mental Hygiene (DOHMH) issued an order that all building cooling systems be inspected and remediated (meaning treated with disinfectant to kill the Legionella bacteria) within 14 days. The DOHMH Commissioner's Order was followed by action by the New York City Council in the form of passage of Local Law 77 of 2015 and an order dated August 18, 2015, from the Commissioner of the Department of Buildings (DOB) mandating the registration of all cooling towers by September 17, 2015.

The DOB Commissioner issued a follow up order mandating the permanent registration, testing, inspection, cleaning and disinfecting of cooling towers in New York City. The definition of "cooling tower" for this purpose includes a building cooling system, as well as any industrial process, refrigeration system or energy production systems with a cooling tower, evaporative condenser or fluid cooler.

Under this new program, all existing cooling towers are required to be registered and any new cooling towers must be registered, tested, inspected and disinfected before operation. Once registered, annually each cooling tower must be inspected, tested, cleaned and disinfected in accordance with ASHRAE (American Society of Heating, Refrigeration and Air-Conditioning Engineers) Standard 188P and Cooling Technology Institute Guideline WTV-148 annually. This means that building owners must retain "environmental consultants with demonstrated experience" inspecting, testing, cleaning and disinfecting cooling towers. The disinfectant procedure is also included in the order. A biocide with a commercial pesticide process is required.

In order to apply pesticides commercially in New York State, the business and the technician must be licensed by the New York State Department of Environmental Protection. (www.dec.ny.gov/ permits/209/html) The DOB Commissioner's Order includes a partial listing of licensed commercial pesticide firms.

The inspection, testing, cleaning and disinfecting of cooling towers must be annually performed and then certified to the DOB by the service provider and building owner. Needless to say, this being New York, there are pitfalls for the unwary. Failure to register a cooling tower and/or failure to have the annual inspections, tests, cleanings and disinfecting performed is subject to a $10,000 fine. Failure to decommission cooling towers in accordance with DOHMH standards is a misdemeanor punishable by fine or imprisonment.

There has been significant criticism to the effect that the City and affected property owners were slow to react to the outbreak of Legionnaire's Disease. However, the long term program of annual inspecting, testing, cleaning and disinfecting water towers should reduce the risk of another Legionnaire's Disease outbreak. Moreover, the use of technology to track the commissioning, testing, inspecting, cleaning disinfecting and decommissioning of cooling towers (use that phrase in the broad sense of the Commissioner Orders and Local Law 77 of 2015) should make this process more efficient and less costly.

This column presents a general discussion; it isn't intended to provide legal advice. You should consult your attorney for specific legal advice.

This article was originally published by Mann Report: Management. You can access the article on their website.