Cooling tower violations prove problematic for NYC officials

Despite having passed the country’s most stringent law to prevent cooling tower violations, New York City continues to see a rise in Legionnaires’ disease cases because of contaminated cooling towers.

Many of those contaminated cooling towers are due to the failure of building owners to comply with Local Law 77, which went into effect in 2016 and is considered one of the most protective laws ever passed to prevent Legionella bacteria, which causes Legionnaires’ disease.

The cooling tower violations are not merely the domain of non-compliant building owners. The New York City Department of Health and Mental Hygiene (DOHMH) shares some of the responsibility.

Cooling tower violations: increased inspections

New York City invested more than $7 million to increase staff for oversight in 2016. The city now has 70 inspectors conducting more than 5,000 inspections per year.

Those inspectors are armed with a list of 30 potential violations. In addition, they have the power to levy fines from $500 to $2,000 per violation.

Health department inspectors wrote 27,000 tower-related summonses last year, which would seem a step in the right direction. But 15,700 of those cases – more than half – were challenged by respondents, who took their claims to the Office of Administrative Trials and Hearings (OATH). Nearly 90 percent of those cases (14,000) were dismissed, according to an analysis by WNYC radio and the Gothamist website.

Cooling tower violations: mistakes made

The reason those violations were tossed at administrative trials? Simple: Mistakes made by inspectors, such as:

• regularly neglecting to list relevant dates;
• citing the wrong section of the law;
• and making “material alterations” to documents submitted to OATH.

The mistakes were made, in part, because of confusion by inspectors about the new law. The inspectors appear to be unclear about the particulars of the legislation and how to accurately identify violations.

“The inspection regime that we put in place does give New York City a leg up over most other cities,” said City Council Member Mark Levine, chair of the Committee on Public Health. “But to see how many cases are being dismissed is really worrisome, especially since so many of the dismissals seem to be for technical reasons.”

Despite Local Law 77, New York City continues to see a rise in Legionnaires’ disease cases because of cooling tower violations.

Cooling tower violations: insufficient evidence

The vast majority of cases dismissed last year occurred because “no violation” was found; the DOHMH presented insufficient evidence; or there was a “defective notice of violation” issued, according to the analysis by Gothamist and WNYC.

“[T]he inspectors seemed novice and inexpert,” an OATH hearing officer said after a case in which an inspector failed to supply “evidence to support the allegation” when claiming a building manager failed to provide weekly cooling tower maintenance records.

Cooling tower violations: confusion

Health inspectors also struggled with a task that would seem paramount to the job, which was the ability to differentiate between cooling towers and water towers. The former helps cool buildings; the latter holds drinking water.

Levine said the health department’s enforcement method “really needs to be fixed, so that New Yorkers have the confidence that cooling towers are being inspected in line with the highest standards.”

Cooling tower violations: registration slow

To compound matters, despite regulations that every cooling tower be registered and inspected regularly by the city, the city still has not located all the towers – a full two years after Local Law 77 was instituted.

A health department spokesperson told a City Council committee in October that the city is “closing in” on finding all of the city’s cooling towers.

Cooling tower violations: a busy 2018

Levine’s district experienced two separate large outbreaks in Upper Manhattan this year alone.

“In both clusters in my district, you identified unregistered towers just in that little neighborhood, so there must be many around the city,” Levine said.

In the first incident, 27 people were sickened this summer, and one died. That outbreak source was identified as a cooling tower at the Sugar Hill Project in Harlem. In the second incident, which still has not been officially closed, 29 people were infected and one died; the source for that has not been found.

Cooling tower violations: Legionella friendly

Cooling towers provide two things that Legionella bacteria need to thrive: a place to grow, and a way to enter people’s respiratory systems.

The warm water in cooling towers provide an ideal environment for bacteria to thrive. Cooling towers also circulate air, and when water from the tanks evaporates, it forms droplets or mist that spread Legionella through the air.

A 2016 study by the Centers for Disease Control and Prevention (CDC) revealed that 164 of 196 cooling towers (84 percent) tested around the country were positive for Legionella DNA. That included 79 cooling towers with live Legionella in their systems.