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Recent Events Highlight Legionella Risks for Commercial Real Estate, Hospitality, and Health Care Industries

Legionnaires Disease has grabbed headlines in recent weeks, with high profile outbreaks that have resulted in sicknesses and deaths, along with calls for stricter regulation of water systems, particularly HVAC cooling towers. In New York City this summer, an outbreak traced to a cooling tower at a Bronx hotel resulted in over 110 cases of Legionnaires Disease and 12 deaths, triggering the issuance of an Order requiring prompt registration and disinfection of all cooling towers in the City. That news was followed last week by the voluntary shutdown of a GlaxoSmithKline pharmaceutical manufacturing facility in North Carolina, where high concentrations of legionella bacteria were detected in a cooling tower and determined to present a risk to the health of employees. Cases of Legionnaires Disease have also occurred this summer in Canada, the UK, and Europe.

Given these highly-publicized outbreaks, commercial real estate investors and facility owners and operators would be wise to add legionella assessments to their due diligence protocols, and legionella-specific preventative measures to their property management and building maintenance programs.

Background

Legionella Pneumophila is a naturally-occurring and ubiquitous bacteria that thrives in warm, stagnant water. Legionnaires Disease is a pneumonia-like respiratory ailment caused by aspirating water vapor or mist that contains elevated concentrations of the bacteria. It is estimated that Legionnaires Disease infects as many as 18,000 people in the United States each year – primarily those with compromised immune systems.   

Although Legionnaires Disease is not contagious, the bacteria can infiltrate and colonize water systems within buildings, creating a continuing threat of exposure to building occupants. Health care and hospitality facilities are particularly at risk. Legionella colonization occurs primarily in places where warm water stagnates. In addition to HVAC cooling towers, this can include dead legs and rarely used segments of internal potable water plumbing systems. The most common routes of exposure include showers, hot tubs, decorative water features and, as in most of the cases this summer, mist from HVAC cooling towers.

Cooling towers are an essential component of many larger-scale HVAC systems, as they are an efficient mechanism for removing heat from buildings through evaporation. When the weather is warm, however, conditions within a poorly maintained cooling tower can become optimal for the amplification of legionella bacteria, and mist and water vapor ejected from the cooling tower can lead to migration of the bacteria. Failure to regularly maintain and disinfect a cooling tower can thus result in legionella amplification and exposures to employees, occupants and guests, and even the general public, leading to costly financial and legal liabilities. Being identified as the source of a legionella outbreak also can cause irreparable damage to a building or business’s public image and marketability.

Response and Prevention

Following the highly publicized Legionnaires Disease outbreak in New York City, the Commissioner of the Department of Health and Mental Hygiene issued an Order on August 8, 2015, requiring registration and disinfection of all cooling towers in the City by August 27, 2015. If you received notice of this Order, or if it is potentially applicable to you, we encourage you to take appropriate measures now.

Looking forward, protocols for preventative maintenance have been developed by the American Society of Heating, Refrigerating and Air-Conditioning Engineers (“ASHRAE”), including the new ASHRAE 188-2015 standard, “Legionellosis: Risk Management for Building Water Systems.” This new standard, among other things, requires the implementation of a water management program in every building and facility. While it is a voluntary standard, it is very likely to be considered the industry standard and a best management practice for maintaining water systems. Thus, implementing the ASHRAE 188 standard can limit both the potential for legionella colonization, as well as the liability of a building or facility owner or operator should an outbreak occur. Furthermore, with the ASHRAE 188 standard possibly establishing a new standard of care for preventing legionella exposure, failure to follow the standard could subject an owner or operator to negligence claims if legionella exposure occurs.

Based on the recent Legionnaires Disease outbreaks and the issuance of the ASHRAE 188-2015 standard, it is recommended that assessments of legionella within water systems be added to environmental due diligence protocols, and that property management protocols be updated to incorporate the new ASHRAE 188 standard. While Legionella can represent a significant liability, with ominous worst case results, prevention is relatively simple and inexpensive, requiring only routine periodic maintenance and chemical disinfection in conjunction with a relatively basic legionella prevention and water quality management plan.  

Please contact any of the attorneys in our Environmental Practice Group if you would like more information regarding compliance with the DOH cooling tower Order, or to discuss legionella assessments, prevention plans, or other related risk mitigation measures in more detail. 

Disclaimer: this E-Flash does not offer specific legal advice, nor does it create an attorney-client relationship. You should not reach any legal conclusions based on the information contained in this E-Flash without first seeking the advice of counsel.

Disclaimer: This post does not offer specific legal advice, nor does it create an attorney-client relationship. You should not reach any legal conclusions based on the information contained in this post without first seeking the advice of counsel.

About the Authors

Paul R. McIntyre is a Principal and Co-Chair of the Firm's Environmental Practice Group. He focuses his practice on environmental issues associated with real estate and corporate transactions, and in heavily regulated industries, including environmental due diligence, contractual allocation of environmental risks and liabilities, regulatory compliance, environmental insurance, brownfields remediation and financing, remediation tax credits, and related regulatory counseling.

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Aaron S. Mapes is a Principal in the Firm's Environmental Practice Group. He counsels clients on a wide variety of environmental matters, including environmental diligence for real estate transactions and energy infrastructure projects, brownfields redevelopment, compliance with environmental laws, environmental permitting, and litigation of complex environmental lawsuits and administrative appeals. Mr. Mapes’ clients include real estate private equity funds, local municipalities, and companies in the energy distribution and industrial sectors.

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