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.
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:
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.)
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:
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.