Audit, Compliance and Risk Blog

New York’s Legionella Program Hitting Stride

Posted by Jon Elliott on Tue, Nov 07, 2017

Tower.jpgAlthough Environmental Health and Safety (EH&S) requirements target hundreds of micro-organisms (primarily viruses and bacteria), important hazards remain unregulated. Many await definitive scientific conclusions, but others need testing and control methodologies that would allow requirements to be designed and administered, sufficient regulator and regulated entity resources, and/or high enough political priorities. Until recently, one of these unregulated pathogens has been the legionella bacterium, first identified in 1976 as the cause of “Legionnaire’s disease,” which appears as a form of pneumonia.

This void is now being filled in New York, however. During four weeks during July and August 2015, an outbreak of Legionnaire’s disease in the South Bronx eventually sickened over 100 people and killed 12. As the infections progressed, New York City and State escalated their responses, eventually imposing important new testing and cleanup requirements on tens of thousands of cooling towers statewide. I summarized the events, including the City ordinance and the state Department of Health (DOH) emergency regulations, in an earlier blog here. Today’s blog provides an update on those requirements.Other agencies are observing New York’s efforts and considering whether to develop their own. I identify several examples below.

What does New York Require?

DOH replaced its emergency regulations with final regulations effective July 6, 2016. (NY State Sanitary Code Part 4). These consist of two sets of regulations:

  • General regulations applicable to all cooling towers.

  • Additional requirements for potable water systems in general hospitals and residential health care facilities.  

Requirements for All Cooling Towers

DOH regulations apply to the owners of all cooling towers, regardless of system capacity. This term is defined as follows:

“The term cooling tower means a cooling tower, evaporative condenser, fluid cooler or other wet cooling device that is capable of aerosolizing water, and that is part of, or contains, a recirculated water system and is incorporated into a building’s cooling process, an industrial process, a refrigeration system, or an energy production system.”

Owners of cooling towers are responsible for the following:

  • Register the system with DOH (electronic), providing basic information including location; make, model and installation year of the tower; cooling tower capacity and system volume; use; whether operation is year-round or seasonal; who performs maintenance, and whether it includes systematic disinfection that meets DOH requirements. Registration is electronic; as of October 3, 2017, DOH identifies 9,412 cooling towers on its website.

  • Report every 90 days while the cooling tower is in use (electronic), providing dates of last (general) biological and legionella-specific sample collection and analytical result, and any required remedial action if system found to be contaminated.

  • Establish and implement a maintenance program and plan meeting DOH criteria prior to each startup: 

    • Comply with section 7.2 of “Legionellosis: Risk Management for Building Water Systems” (ANSI/ASHRAE 188-2015).
    • Include a schedule for routine bacteriological culture sampling and analysis at least every 30 days while the cooling tower is in use

    • Include a schedule for routine legionella culture sampling and analysis at least every 90 days while the cooling tower is in use (beginning within 14 days after startup), and after specified failure events (e.g., lengthy power outage, loss of disinfection).

    • Provide for legionella analyses only by state-certified lab.

    • Provide for specified immediate response to culture analyses showing contamination above levels specified in the DOH regulations.

    • Provide for treatment and/or flushing after idle periods, and disinfection after 5 day idle period and at end of service period

  • Inspect cooling tower before seasonal startup and at least every 90 days while in operation, in compliance with DOH requirements.

  • Notify local health department within 24 hours after receiving sample result showing legionella contamination (local department must then notify state DOH within 24 hours), and meet local public notification requirements.

  • Ensure disinfection only by a commercial pesticide applicator (or under direction), using EPA or state-registered pesticidal biocide.

  • Comply with certification and record keeping requirements 

Requirements for potable water systems in general hospitals and residential health care facilities

 The DOH regulations apply similar, parallel requirements to all potable water systems at state-regulated general hospitals and residential health care facilities. These “covered facilities” must perform initial and annual (or post-contamination-event) environmental assessments.They must also establish and implement “sampling and management plans” similar in content to the maintenance program and plan provisions described above.

What Are Other Jurisdictions and Industry Associations Doing?

Other agencies provide general requirements to address legionella risks in water systems, and undoubtedly are watching the development of these New York requirements. For example, the Department of Veterans Affairs’ Veterans Health Administration issued such requirements in 2014 for VA facilities. As another example, the federal Centers for Medicare & Medicaid Services (CMS) issued a formal letter to state agencies interpreting its ongoing requirements that Medicare certified health facilities implement water management policies to cover legionella risk management. Recently, the US Centers for Disease Control and Prevention (CDC) published a formal Request for Information in the Federal Register seeking comments by October 27, 2017 on “Effective Methods for Implementing Water Management Programs (WMPs) To Reduce Growth of Transmission of Legionella spp.”

Non-governmental standard development is also continuing. For example, NSF International, a global public health and safety organization, is cooperating with the American Society of Heating, Refrigeration and Air Conditioning Engineers (ASHRAE) to develop a building water health standard to help building owners and operators evaluate and minimize the risk of disease and injury associated with building water systems, including legionella.

Self-Evaluation Checklist

Does the organization operate any facilities that use cooling towers as part of heating, ventilation and air conditioning (HVAC) systems?

  • If so, do these facilities have ongoing system management programs?

  • If so, do these programs include monitoring of towers and systems for biological contaminants such as legionella?

  • If so, can the organization document that these programs are effectively implemented, including whether any incidents of contamination and disinfection have taken place?

Does the organization operate any potable water systems in general hospitals and residential health care facilities?"

  • If so, do these facilities have ongoing system management programs?

  • If so, do these programs include monitoring of storage and other system componentsfor biological contaminants such as legionella?

  • If so, can the organization document that these programs are effectively implemented, including whether any incidents of contamination and disinfection have taken place?

Where Can I Go For More Information?

Specialty Technical Publishers (STP) provides a variety of single-law and multi-law services, intended to facilitate clients’ understanding of and compliance with requirements. These include:

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About the Author

Jon Elliott is President of Touchstone Environmental and has been a major contributor to STP’s product range for over 25 years. He was involved in developing 13 existing products, including Environmental Compliance: A Simplified National Guide and The Complete Guide to Environmental Law.

Mr. Elliott has a diverse educational background. In addition to his Juris Doctor (University of California, Boalt Hall School of Law, 1981), he holds a Master of Public Policy (Goldman School of Public Policy [GSPP], UC Berkeley, 1980), and a Bachelor of Science in Mechanical Engineering (Princeton University, 1977).

Mr. Elliott is active in professional and community organizations. In addition, he is a past chairman of the Board of Directors of the GSPP Alumni Association, and past member of the Executive Committee of the State Bar of California's Environmental Law Section (including past chair of its Legislative Committee).

You may contact Mr. Elliott directly at: [email protected]

photo credit: Simon & His Camera Touch The Sky - London City Office Life by Simon & His Camera via photopin (license)

Tags: Health & Safety, OSHA, Environmental risks, Environmental, EPA