Don’t Breathe the Water

Three years ago, after a contaminated cooling tower at a South Bronx hotel caused an outbreak of Legionnaires’ disease that killed 12 people and sickened more than 100 others, city officials wasted no time adopting sweeping regulations aimed at preventing future outbreaks. Known as Local Law 77, the rules lay out a strict schedule for the testing, cleaning and inspection of the ubiquitous towers, which recirculate and cool water used in commercial and residential buildings’ air-conditioning systems. While the rules are among the toughest in the nation, they’re not fail-safe – which became apparent this summer when one person died and 18 were sickened by a fresh outbreak of Legionnaires’ disease in upper Manhattan.

The close monitoring of the towers is intended to prevent the dangerous proliferation of Legionella bacteria, which can cause pneumonia-like illness – and death – when breathed in through water mist. While inspectors from the city’s Department of Health and Mental Hygiene have allowed for a learning curve on the requirements, it’s now becoming harder for building owners and managers to plead ignorance.

“The period of leniency with regard to the law has passed,” says Greg Frazier, managing partner at Clarity Water Technologies, a water treatment company in Nanuet, New York, that maintains towers at hundreds of buildings in the city.
The city’s health department currently has 70 inspectors conducting more than 5,000 cooling-tower inspections a year. They’re armed with a hit list of 30 potential violations – and the power to levy fines from $500 to $2,000 per violation. Inspections occur once a year, and boards can fight at hearings before the Environmental Control Board (ECB). But it isn’t cheap to fight costly violations.

That means co-op and condo boards should make certain they’re in compliance and have procedures in place to stay that way. Here are some of the most important things to know about the law:

Your cooling tower(s) must be registered with both the city and the state.

The state has its own set of regulations concerning cooling towers, many of which overlap with city requirements. However, when it comes to registering the tower, that must be done through two separate online portals, one with the state and one operated jointly by the city’s health and buildings departments.

Registration includes such information as the tower’s make, serial number, and location. It also requires contact information for the owner of the property. In the event of a violation, it is the property owner who receives the summons and bears responsibility, Frazier says.

That can cause headaches for co-ops with commercial tenants served by separate cooling towers, says Brendan Keany, onsite manager at Penn South, a 2,820-unit, limited-equity co-op in Chelsea. The co-op has two cooling towers for its residential units. But its three commercial tenants have their own cooling towers serviced by three different water treatment vendors. If those vendors don’t stay on schedule with city reporting requirements, it’s the co-op that receives notice of violation, Keany says, adding: “We have to make sure they’re maintaining the towers properly. It can be very, very difficult.”

You must keep a Maintenance Program and Plan (MPP) for each cooling tower onsite at all times.

The MPP is “the bible” of your tower maintenance program, and it must be written to city specifications, Frazier says. A useful reference material for boards, it must include everything from the names and contact information for everyone performing maintenance on the towers, to diagrams of how the tower works, to checklists of system control and maintenance requirements.

Certain maintenance procedures must be performed by “qualified personnel.”

When it comes to writing the MPP, the city wants it done by a licensed engineer, industrial hygienist, water technologist, or environmental consultant. The same goes for the required compliance inspections (every 90 days) and the annual certification, which must be filed with the city as confirmation that the building owner is following the plan.

When a tower must be disinfected, which requires the use of approved biocides, the cleaning must be done by a certified pesticide technician or commercial pesticide applicator.

Two types of water testing must be done on the system every week.

Water quality in the tower must be tested at least three times a week, with no more than two days between tests. Each test must evaluate water temperature, pH, conductivity, and biocide concentration. “If you have someone on staff who can do this testing and won’t screw it up, by all means have them do it,” Frazier says. If not, many treatment vendors offer “smart controller” systems that will do it electronically. The cost runs around $500 a month.Testing for bacteria and fungi must be done once a week. This test is done by simply dipping a treated slide into a water sample. It is often done in-house.

Testing for Legionella must be conducted no less frequently than every 90 days.

By testing “no less frequently than 90 days,” the city does not mean every three months or every quarter – it means no less frequently than 90 days, Frazier says. Test results must be kept onsite and made available for inspection. The fine for failing to test within the proper time frame is $1,000 for the first offense, $2,000 for the second. “We’re typically testing our clients’ towers five times a year to make sure they’re in compliance,” he says.

If Legionella levels exceed specified limits, corrective action must be taken within 24 hours.

The law calls for treating towers with biocides within 24 hours of receiving a higher-than-normal Legionella test result. At a certain threshold (more than 1,000 colony-forming units), however, it becomes a much bigger deal. In addition to disinfection, the tower must be drained and cleaned. And, importantly, the property owner must also notify the health department of the high bacteria reading within that 24-hour window.

“The city is now looking into the number of hours between the test and the corrective action,” says Joseph McEvoy, the chief technology officer at Vitralogy, which offers compliance software specifically designed for Local Law 77. “If it’s 25 hours, you’re getting fined. If people can’t prove it was within 24 hours, they’re getting fined.”

It’s not enough to just do the tests and inspections – someone has to be responsible for recording and reporting.

Record-keeping is crucial to compliance. The annual certification must be filed with the city. Other data must be submitted to the state. And records of all required maintenance activities, compliance inspections, and test results must be maintained onsite for three years.

Keany counts Penn South fortunate to have a person in charge of its onsite power plant who is tech-savvy enough to stay on top of all the documentation requirements himself. “But it requires a fair amount of work,” he says, and many co-ops simply don’t have the staff with the time or training to dedicate to the many tasks.

Vitralogy can help property managers be in control of compliance, with software that tracks scheduled maintenance and testing, collects data, and submits results to the city and/or state. The service also kicks into action when treatment vendors aren’t sticking to the program. “When things are going sideways, and people aren’t doing what they’re supposed to do, we’re following up,” McEvoy says. “We’re making phone calls, finding out what’s going on, and reporting it up the chain if we need to.” The cost is about $6,000 a year.

The city is getting tougher on violations.

Until recently, city inspectors mainly concentrated on  the most obvious shortcomings. But now, McEvoy says, “they are digging more into how you do things – the process.” Water treatment vendors who handle this work range widely in price, depending on the company, the number of towers, and the level of services provided. Penn South shells out roughly $85,000 a year for a full water treatment plan with Clarity that covers both its two water towers and domestic water tanks. So far, they’ve managed to keep Legionella at bay. “When Co-op City had it a couple of years ago, I was very nervous about it, and we tested and tested,” Keany says. “But we’ve never had a problem.”

But with the rising level of scrutiny by inspectors, violations are sure to become a fact of life for many co-op and condo boards. “The bottom line is that if you obey the law and keep good records, you can beat the violations,” says Michael Bogart, in-house counsel at the management company Maxwell-Kates, who has successfully appealed violations. “The best defense is compliance with the law.”