New York State cooling tower regulations move from "emergency" to "final"—with new requirements added

July 20, 2016

Environmental & Health Care Alert

Author(s): Libby Ford, QEP, CHMM, CEP, Jean H. McCreary

A year after 16 people died and more than 115 other people were sickened in the Bronx by legionellosis, the New York State Department of Health (NYSDOH) has finalized its cooling tower registration, testing, operation and maintenance regulations that are intended to protect against Legionella bacteria. These final regulations, codified at 10 NYCRR Sections 4.1 and 4.2, replace the emergency regulations the state put in place in August 2015. The final regulations include changes and new requirements that were not in the emergency regulations. Some requirements must be met as of September 1, 2016.

After the source of the Bronx legionellosis outbreak was determined to be a cooling tower, NYSDOH rapidly adopted emergency regulations and embarked on a program to register and regulate cooling towers. Cooling towers utilize recirculated water systems and often are an integral part of a building’s heating and cooling system. They are also used in industrial and energy production systems to cool water before it is reused or discharged to the environment. Cooling towers were not regulated in New York State prior to August 2015. Legionella bacteria occur naturally in the environment, usually living in water. If cooling towers are not operated and maintained properly, bacteria—including Legionella—can grow in the water and be dispersed (aerosolized) into the air. When people breathe in mist from the cooling towers containing the bacteria they can get legionellosis.

What needs to be done?

As described below, the regulations require that cooling towers be registered, inspected and tested for Legionella. Consistent with the emergency regulations they replace, cooling tower owners, including tenants with operational responsibility for the cooling tower, must:

  • Register existing cooling towers in the statewide electronic system. This can be done online. New towers must be registered prior to initial operation and all tower registrations must be updated in the system whenever ownership or operational control of the tower or building changes. (10 NYCRR Sec. 4-1.3.)
  • Inspect cooling towers prior to seasonal start-up, after all maintenance and at intervals no longer than every 90 days while the tower is in use. The purpose of the inspection is to check for deficiencies or problems. (10 NYCRR Sec. 4-1.8.)
  • Have an updated maintenance program and plan in place and implemented by September 1, 2016. This plan must include a schedule for routine bacteriological culture sampling, routine Legionella culture sampling and analysis and immediate Legionella culture sampling and analysis under specific conditions. (10 NYCRR Sec. 4-1.4.) The laboratory doing the Legionella culture analyses must be one that has been approved by NYSDOH. (10 NYCRR Sec. 4-1.5 and 4-2.5.)
  • Respond appropriately to any elevated Legionella culture sampling results, including notifying the local health department within 24 hours of getting a Legionella culture sample result exceeding 1,000 colony-forming units (CFU) per milliliter (ml). (10 NYCRR Sec. 4-1.6.) Appendix 4A to the final regulations contains mandated responsive actions.
  • Utilize only certified pesticide applicators or technicians, Professional Engineers or other appropriately credentialed professionals to apply biocides for disinfection. (10 NYCRR Sec. 4-1.8.a.2.)

In addition, by November 1 of each year a certification must be obtained from the credentialed inspector that states that each cooling tower is covered by a maintenance plan, that it has been followed and that all requirements of the regulations have been met. (10 NYCRR Sec. 4-1.8.b.) These and other records related to cooling towers’ maintenance and compliance must be kept for a minimum of three years, and made available to NYSDOH and the local Health Department. (10 NYCRR Secs. 4-1.10 and 4-2.6.)

Finally, the full weight of civil and criminal penalties allowed under current law can be brought to bear during any enforcement action. Each day an owner or operator is in violation of any provision constitutes a separate and distinct violation. (10 NYCRR Secs. 4-1.9 and 4-2.7.)

Additional requirements for health care facilities

The Sec. 4-1 regulations summarized above apply to all cooling towers in New York State. Because of the increased vulnerability of hospital and nursing home populations due to compromised immune systems, the new regulations include additional requirements for hospitals and residential health care facilities that have cooling towers, termed “covered facilities” in the final regulations, including one with a very short deadline:

  • By September 1, 2016 they must perform or update an environmental assessment, using forms mandated or approved by NYSDOH, in order to evaluate the building and the potable water systems, and identify sampling locations. This plan must be updated annually. If an environmental assessment was done after September 1, 2015, it will count as the 2016 assessment. (10 NYCRR Sec. 4-2.3.)
  • Adopt and implement a sampling and management plan by December 1, 2016 for potable water systems, which includes routine Legionella culture sampling and analysis and immediate Legionella sampling and analysis under specific conditions, including where NYSDOH determines that one or more cases of legionellosis is or may be associated with the facility. (10 NYCRR Sec. 4-2.4.)
  • Conduct Legionella culture sampling and analysis at intervals no greater than 90 days for the first year and annually thereafter. Potable water systems that serve stem cell or organ transplant patients must be sampled and analyzed at intervals not to exceed 90 days even after the first year. (10 NYCRR Sec. 4-2.4.a.)

Some variances allowed

A written application may be made for a temporary (90 day) variance or waiver, based at least in part on an adequate explanation of why there is a lack of risk, to allow time for compliance with the new regulations. Nixon Peabody’s Health Care Compliance and Environmental practice teams can help you evaluate whether you qualify for a variance and, if you do, assist you in putting together an effective variance application.

The foregoing has been prepared for the general information of clients and friends of the firm. It is not meant to provide legal advice with respect to any specific matter and should not be acted upon without professional counsel. If you have any questions or require any further information regarding these or other related matters, please contact your regular Nixon Peabody LLP representative. This material may be considered advertising under certain rules of professional conduct.

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