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In 2016, New York City passed Local Law 77, which is the country’s most stringent oversight of cooling towers. Despite the requirements, NYC continues to see a rise in Legionnaires’ disease cases, many of which are due to failures of cooling tower owners to comply with the most protective laws ever passed to prevent Legionella, the bacteria that causes Legionnaires’ disease.

The problem, however, does not lay only with non-compliant cooling tower owners. The New York City Department of Health and Mental Hygiene (DOHMH) must share some of the responsibility.

The city invested more than $7 million to increase staff for oversight in 2016 and expected to triple the team by 2019. The city currently has 70 inspectors conducting more than 5,000 inspections per year. They’re armed with a list of 30 potential violations and the power to levy fines from $500 to $2,000 per violation.

With the increase in inspections, health department inspectors wrote 27,000 tower-related summonses in 2017 to try and make the city safer, which would seem to be a step in the right direction.

However, more than half (15,700) of those cases were challenged by respondents, who took their claims to a hearing at the Office of Administrative Trials and Hearings (OATH). That resulted in the dismissal of about 14,000 cases, according to an analysis by WNYC radio and the Gothamist website.

The reason that nearly 90 percent of the violations were tossed at administrative trials? Mistakes by inspectors.

Those mistakes included regularly neglecting to list relevant dates, citing the wrong section of the law, and making “material alterations” to documents submitted to OATH.

The sloppy citations stemmed in part from confusion by inspectors about the new laws covering the towers. 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.”

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

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

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

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

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

When asked at a City Council hearing last month how many cooling towers aren’t registered, a health department spokesperson told the committee: “There are certainly some,” but added they the city is “closing in” on finding them all.

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, during the summer, 27 people were sickened, and one of them died. The source for that outbreak was identified as a cooling tower at the Sugar Hill Project in Harlem. In the second incident, which occurred in October, 29 people were infected, and there was another fatality. The source for that has not been found.

Ideal home for Legionella
Cooling towers are a significant source of Legionnaires’ disease because they provide two things Legionella bacteria need to thrive: a place to grow, and a way to enter people’s respiratory systems, according to Live Science. The enormous tanks of warm water in these towers provide an ideal environment for the bacteria to thrive. These cooling towers also circulate air, and when water from the tanks evaporates, it forms droplets or mist that spread the disease through the air.

A study by the Centers for Disease Control and Prevention (CDC) presented at the CDC’s 66th annual Epidemic Intelligence Service Conference in 2016 revealed that 164 of 196 cooling towers (84 percent) tested around the country were positive for Legionella DNA, including 79 that had live Legionella in their systems.

Legionella can grow in many parts of a building’s water system that is continually wet, and certain devices can spread contaminated water droplets. Some examples of other devices where Legionella can grow and spread through aerosolization include:

• hot- and cold-water storage tanks
• water heaters
• shower heads and hoses
• electronic and manual faucets
• ice machines
• hot tubs
• medical equipment (such as CPAP machines, hydrotherapy equipment, bronchoscopes, etc.)
• faucet flow restrictors
• water filters
• pipes, valves, and fittings
• aerators
• centrally installed misters, atomizers, air washers, and humidifiers
• non-stream aerosol-generating humidifiers
• water hammer arrestors
• expansion tanks
• infrequently used equipment including eyewash stations
• decorative fountains.