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As previously reported in a blog posted October 12, 2018, the US approach to controlling legionella is different from the United Kingdom. The UK approach is national in nature and very strict. Two recent examples include a leisure center in Walton-on-the-Naze being criminally prosecuted by the Health and Safety Executive ( UK government agency responsible for the encouragement, regulation and enforcement of workplace health, safety and welfare) for an outbreak of Legionnaires’ disease two years ago. Another case involved a care home being fined 600,000 pounds (approximately $777,000.00) after pleading guilty to the death of a 90 year old who died from Legionnaires’ disease. This approach is in distinction  to the US approach which is haphazard at best. The only state to pass legislation dealing with curtailing Legionnaires’ disease is New York. Apparently this approach is not working, as it has been determined that a Harlem high-rise apartment is once again the source of a deadly outbreak of Legionnaires’ disease. Perhaps stiffer fines and criminal prosecution similar to those of the UK may be in order, particularly when people are dying.

Connecting the dots is part of what this blog is all about. You may remember that significant regulations were passed in New York City in 2015 because of the outbreak of Legionnaires’ disease (see my blog of October 25, 2018). Unfortunately, these regulations are not being properly enforced by the city health department. As a result, 90% of the cooling tower cases heard by an administrative agency charged with enforcing the regulations have been dismissed. This is despite the fact that there has been 65% increase in Legionnaires’ disease cases from 2016 to 2017. Even Mayor De Blasio has criticized the implementation of the regulations by the health department. What is troubling, however, despite the Mayor’s criticism as well as many building owners subject to the regulations, is the fact that there was a second outbreak in the same geographic area. Only time will tell whether it was lax implementation of the regulations or the behavior of the building owner that may  have been  the cause of the second outbreak in Washington Heights.

Every case involving Legionnaires’ disease that this office has been involved in has always had the defense attorney arguing that the bacteria causing Legionnaires’ disease is ubiquitous (found everywhere). By this the defense attorneys mean that because the bacteria legionella can be found naturally in nature, their clients should not be liable to pay money damages to my clients. What the defense attorneys don’t tell you is that although legionella bacteria may be found in water everywhere, it only causes disease such as Legionnaire’s disease when the property owner does not properly maintain the water system. Failure to properly maintain the water system such as water feeding a spa or the potable water system (showers and faucets) in a building is what causes people to get sick. Examples of legionella growing in various buildings are all over the country. A South Loop Chicago nursing home has been associated with two residents contracting Legionnaires’ disease. A Johnsburg Walmart in McHenry County, Illinois has been identified as the potential exposure source for three customers of the store, although the strain of legionella found in the store was apparently not the same as found in the three customers. It should be mentioned here that when a patient is tested for Legionnaires’ disease in the hospital, the test used by the hospital only looks for one strain of legionella, which may explain why the strain found at the store did not match because the store strain was different from one the looked for in the hospital. It should be also mentioned that the Walmart store turned off its water produce sprayers which has also been the source of persons contracting Legionnaires’ disease. Eleven cases of Legionnaires’ disease have been associated with a church in Parma, Ohio. Health officials think that the source of the outbreak was from a cooling tower (see previous blogs on cooling towers as sources for Legionnaires’ disease) of the church. Four cases have been confirmed in Hancock County, West Virginia, with one of the four being an employee of the Mountaineer Casino Racetrack and Resort in Chester, West Virginia. The county health department has indicated it is still too early in the investigation to identify the source of the outbreak, although live racing has been suspended at the racetrack. The point of all this is that although legionella may be ubiquitous in nature, because there are cases of Legionnaire’s disease all over the country or everywhere, there is another meaning of the word ubiquitous. So the next time someone uses the word ubiquitous to avoid being held accountable for not properly maintaining their water supply, make sure to ask them what they mean by the word ubiquitous.

New York City Council enacted a law in 2015 after a deadly outbreak of Legionnaires’ disease in the Bronx. The law requires that every cooling tower in New York City be identified, registered and inspected on a regular basis. The city has admitted recently that it is not sure it has found all cooling towers, three years after the legislation was passed (the city health department uses experts on the street and satellite imagery to find cooling towers). This failure to even identify all cooling towers takes on added significance after one remembers that there have been two recent outbreaks of Legionnaires’ disease in the Washington Heights area. Even worse is recently released information by the city that of the 1,190 towers around the city that have been identified, more than 20% are behind on their quarterly inspections. In addition, almost 1000 violations were issued of the 1000 towers inspected by the health department in 2016. Of these 1000 violations, 65% were considered critical and nearly 20% were considered a public health hazard. This noncompliance of the law should not be tolerated by the citizens of New York, particularly in light of the two recent outbreaks.

This office has had numerous inquiries regarding persons contracting Legionnaires’ disease. Often times the person does not know where they acquired the disease. Unfortunately, many times the person acquired the disease from a cooling tower. The cooling tower need not be in the vicinity of the person who acquired the disease,  or  even have been identified by health authorities. Consequently, the person may not know that a cooling tower has caused him or her to get sick. These cases are considered sporadic in nature. On the other hand, when a cooling tower has been identified as the source, as in the outbreak in the Bronx at the Opera House Hotel, legal help can be given. A cooling tower is identified as the source when the health authority having jurisdiction over the tower samples the environmental biofilm (the sludge at the bottom of the tower) with the results from testing the patient in the hospital for Legionnaires’ disease. If there is a match,  the health authority can then state that a particular tower was the source of the outbreak. It is up to your legal team to then determine why the cooling tower was the source. Records for the tower are examined to determine if the tower was properly maintained. These records will show how frequently the tower was cleaned among other things. There are standards in the industry, as well as legislative standards in the State of New York, to determine the appropriate way the towers should have been maintained. The cases that this office has been involved in unfortunately show that the towers were not properly maintained, which in turn caused the buildup of legionella in the tower. Because of the buildup of legioenlla from the poor maintenance, the legionella bacteria causing Legionnaires’ disease is transmitted to an unsuspecting person (see previous blog of October 11, 2108 “Osthoff Resort and Cooling Towers”). National legislation regulating cooling towers similar to that of  New York (see previous blog of October 17, 2018 “New York State Regulation of Legionella-A Real Step Forward”) should be passed as soon as possible. No longer should someone suffer from an unknown, or known, cooling tower.

This office has handled many cases of Legionnaires’ disease acquired from a spa, hot tub or Jacuzzi. The recent outbreak in Hampton, New Hampshire is a case in point. One possible source of this outbreak is in the indoor spa at the Sands Resort in Hampton. The reasons a spa may be a source is due to the nature of the system supplying water to the spa. The system itself is called a closed loop system. This means that the water supplying the spa, hot tub or Jacuzzi is in a continuous loop closed off from other water systems in the building. The potential for legionella buildup is obvious. The buildup will occur unless the water in the spa water system is properly filtered and treated. Different types of filters exist but they all have the same purpose, i.e. to filter out contaminants that could act as a host for the legionella bacteria to grow. The filter could also act as a source for the legionella to grow if the bacteria lodges in the filter itself. The other requirement to prevent legionella bacteria propagation in a spa, hot tub or Jacuzzi is the proper dosing of the water with a biocide such as bromine or chlorine which thereby kills the bacteria causing Legionnaires’ disease. Many cases handled by this office have been resolved because the property owner where the spa was located could not produce adequate records to show proper maintenance of the filter or adequate chlorine or bromine being added to the spa water. One case in Daytona Beach handled by this office included victims who acquired Legionnaires’ disease even though they did not physically go in the indoor spa but merely walked passed it when they were going to the room where breakfast was served each morning by the hotel.

Many people are not aware that showers are a major source of the legionella bacteria being transmitted to a human. This transmission occurs because of a buildup of the legionella bacteria, which causes Legionnaires’ disease, in the showerhead. Once the bacteria is in the showerhead, water containing the bacteria passes through the showerhead holes, thereby aeroslozing  the water and allowing for the inhalation of the bacteria into the lungs of the person getting Legionnaires’ disease. One way to prevent the buildup of the bacteria in the showerhead is to replace the showerheads periodically. Another method is to take off the showerhead and put it into a bucket of bleach, thereby killing the bacteria. A final method is to make sure that the temperature of the water when it gets to the showerhead is hot enough to kill any bacteria that may be in pipes supplying water or in the showerhead itself.  These simple maintenance procedures, as part of an overall water management plan, can save thousands of people from getting sick or dying from Legionnaires’ disease.

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.