As promised, this blog will cover US legislative attempts to control the bacteria legionella that causes Legionnaires’ disease. While many states have requirements as to the amount of residual chlorine that must be present in spas, no state has legislation to curtail legionella in cooling towers than New York. Unfortunately, the New York legislation does not cover the potable water system (showers, faucets, holding tanks, etc.) in a building, or any water feature such as a lobby fountain. This is completely different from the approach taken in the UK as explained in an earlier blog, which is national in nature and covers an entire building. The New York requirements for cooling towers require the electronic registration of the tower, which includes information about the manufacturer, and the disinfection being used. The owner of the tower is also required to every 90 days reveal the results of sampling for bacteria and any remedial action, as well as certain dates such a the date of last inspection. The sampling requirement is a big step forward in controlling legionella, as the industry standard ASHRAE 188 does not but should require such sampling. Having said that, the owner of the tower is also required to have a maintenance program in place that does comply with ASHRAE 188. The legislation goes on to require sampling for legioenlla every 90 days and within 14 days of any seasonal startup. Conditions that require immediate culture sampling for legionella include power failure and loss of biocide treatment. More will be written about the new York legislation in a later blog.
Another case of Legionnaires’ disease has occurred in Sioux Falls, South Dakota, bringing the total to 15 including one death since July 2018. All of the victims either lived or traveled in the city. The CDC has completed its environmental assessment by taking water samples from cooling towers and water features such as decorative fountains. Final results have not been released. What is interesting is the local health department’s comment that often a single source for the outbreak is not found. That is not the experience of this law firm. The most recent example is the outbreak associated with the Opera House in the Bronx where a cooling tower was found to be the source of the outbreak. A more relevant example is the water feature in a restaurant that was the source of an outbreak of Legionnaires’ disease in Rapid City, South Dakota from June to November 2005. In that outbreak, the South Dakota Department of Health teamed with the CDC to conduct an investigation as to the source of the outbreak. Although various cooling towers had the legionella bacteria in them, only one site, the restaurant with the water feature, had the strain of bacteria that matched between the patient and the environmental source. Perhaps the health department in the current outbreak should hold off on making any comments until the investigation is completed.
There is no national legislation controlling the propagation of the legionella bacteria in buildings, cooling towers, or jacuzzis in the United States. In fact, there is only one state, New York, that has any statewide legislation to control legionella growth in the state’s cooling towers. Various states have levels of residual chlorine that must be in spas. This haphazard and inadequate approach is very different from that taken by the United Kingdom as indicated in a previous blog. It is time therefore, for Congress to address a national problem and enact national legislation to control the increasing incidence of Legionnaires’ disease in the Unite States. The content of the legislation will be addressed in future blogs.
According to news reports, at least four people were diagnosed with Legionnaires’ disease after staying at The Osthoff Resort in Elkhart Lake, Wisconsin. Legionella bacteria, which causes Legionnaires’ disease, was found in the men’s restroom near an indoor pool and in a cooling tower at the resort. Cooling towers continue to play an important role as to how persons contract Legionnaires’ disease, including numerous clients of this firm currently being represented. Cooling towers are a source of infestation because of how they are designed and operate. The warm air from inside the building is cooled by coming into contact with cool water in the tower. Biofilm, or sludge, builds up over time which contains the legionella bacteria. The mist resulting from the interaction of the warm building air with the cool water in the tower then picks up bacteria from the biofilm and transmits it int the air. The mist containing the potentially deadly legionella bacteria then is inhaled by an unsuspecting pedestrian or occupant of the building with the cooling tower. Cooling towers need to be regularly treated and not just inspected to prevent this catastrophe from happening.
Without giving away too much about how I try a case, my firm’s focus has always been about the behavior of the party where my client contracted Legionnaires’ disease. All too often Judges and defense attorneys focus on the extent of the damages, i.e. how long the client was in the hospital and whether the client is still suffering from any residue from contracting the disease. This is a false emphasis and only one part of the equation as to how much the jury verdict should be. Rather, evidence such as a hotel where the client stayed not having a permit to operate its spa , spending little if any monies on maintaining the infrastructure, including the potable water system, and destroying any evidence of legionella being present in the hotel’s spa water before sampling for the presence of legionella bacteria could occur , are just a few examples of how the behavior of the defendant should drive the verdict amount and not just hospital bills. Incidentally, all three types of defendant injurious behavior are present in cases this firm is currently representing numerous clients.
As mentioned in a previous blog, the United Kingdom takes a very different approach to controlling Legionnaires’ disease. Unlike the United States, the UK has a national law, the Health and Safety Act of 1974 as amended, whereby owners of premises can be criminally prosecuted if in violation of the Act. The Act requires a regular risk assessment to identify any areas in a building such as a hotel that has or could develop the legionella bacteria. Outbreaks of Legionnaires’ disease result in a full investigation as well as a possible criminal prosecution. Greater detail will be provided about the UK approach in future blogs, as well as the US (states) approach.
A second cluster of Washington Heights residents have been hospitalized because of Legionnaires’ disease. The prior outbreak in the same geographic area in July of this year resulted in numerous persons being hospitalized and one person dying. The New York City Health Department has implicated a cooling tower at the Sugar Hill Project as the source of the second outbreak. The department has directed the Sugar Hill Project to disinfect its cooling tower for the second time. This second direction by the health department points up a major weakness in the current legislative scheme. Many of the cooling towers that are being sanitized and monitored because of the regulations and legislation passed in 2015 are not being properly treated. Proper sanitation of a cooling tower requires compliance with various national standards. It will be interesting to learn if the company which monitored the Sugar Hill Project’s cooling tower followed these national procedures. This firm has represented clients who contracted Legionnaires’ disease from a cooling tower atop the Opera House in the Bronx, as well as a person who contracted the disease from cooling towers at Co-OP City. In both instances the cooling towers were not properly maintained.
This law firm will issue a white paper on the need for stringent legislation at the national level to curtail the increasing incidence of Legionnaires’ disease throughout the United States. Rather than rolling out the paper at one time, various chapters will be issued that when taken as a whole make up the white paper. While many of you might not be familiar with the term white paper, it refers to reports that were issued by the British government regarding matters of concern to the general public. What could be more pressing in this country than Congress passing legislation that inhibits Legionnaires’ disease, or maybe over time eliminates it?
The owner of the Hampton Sands Resort has stated there is no reason for signs warning of Legionnaires’ disease at the hotel to remain after recent sampling by a contractor for the presence of the legionella bacteria hired by the hotel have proven negative. The New Hampshire Department of Health has denied this request as of Tuesday and required more sampling for the presence of legionella because additional sampling by the hotel owner which resulted in negative results did not meet the health department’s requirements. The health department stated the samples done by the hotel’s contractor came in portions smaller than the one liter requirement and were taken too soon. It should be mentioned that the state health department previously found legionela in the hotel’s water system and spa.
A recent outbreak of Legionnaires’ disease at the Guildford Town Centre mall in Surrey, British Columbia indicates that cooling towers at the mall may be the source of the disease. This firm has represented numerous persons who contracted the disease from a cooling tower at the Opera House Hotel in the Bronx, New York. The dynamics of a cooling tower outbreak are interesting. The cooling tower works by warm air coming from inside the building passing over cooler water in the tower. Unfortunately, biofilm builds up at the base of the tower which contains the legionella bacteria causing Legionnaires’ disease. The biofilm is aerosolized and then distributed by the air coming off the biofilm to the surrounding locale. This invisible air containing the sometimes deadly bacteria which then strikes people unawares of the dangerous condition. Indeed, this is what happened to pedestrians walking on the sidewalk surrounding the Opera House Hotel and most likely happened to customers of the Surrey mall.