Marianne Schaefer in Bricks & Bucks on June 6, 2018
New York City has the nation’s toughest laws governing the maintenance of cooling towers – those rooftop behemoths that run central air-conditioning systems. The laws, a response to a deadly outbreak of Legionnaires’ disease in the South Bronx in 2015, are now backed by considerable muscle. Co-op and condo boards need to take steps to avoid getting into hot water as the hot weather arrives.
The city’s Department of Health and Mental Hygiene currently has 70 inspectors conducting more than 5,000 cooling-tower inspections per 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 violations at hearings before the Environmental Control Board (ECB). But it isn’t cheap to fight costly violations.
“There has been a considerable shift of the focus [in New York City] from the primary goal of water treatment, asset protection, and public health and safety,” says Kevin Battaglini, regional manager at Chem-Aqua, a Texas-based water-treatment company with contracts worldwide. “We now spend significantly more time with the paperwork associated with the regulations.”
And the paperwork is mountainous. Every building must have a cooling tower Maintenance Program & Plan (MPP) completed and on site. Most boards hire a water-treatment company to write an MPP and also to conduct and record mandated actions, including: twice-yearly cleaning and disinfecting of cooling towers; legionella bacteria analysis prior to start-up and every 90 days during operating season; manual water testing three times a week (frequently performed by the super); and a biological water test once a week.
When violations come, they tend to come in flurries. “We had to defend six to eight violations at one of our buildings,” says Max Freedman, vice president at Maxwell-Kates, a management company. “I don’t know why the inspectors chose to write up violations while, in fact, we were compliant. As long as you do all the required testing, document it properly and work with a reputable water-treatment company, you should be prepared to fight any kind of violation you receive from the Department of Health. We were in good hands [with Chem-Aqua].”
Violations send Battaglini into detective mode. “We spend time with the customer to help diagnose why the fine was issued,” he says. “Was it something we missed? Was it something the client missed, or was it something the inspectors missed? It could be that the inspectors missed something because they have hundreds and hundreds of papers to look through. It’s very possible that the work was done and documented, but the inspector didn’t see it. We will help the customer figure out where the breakdown was.”
Freedman recommends that boards have a lawyer present when challenging violations at the ECB. Maxwell-Kates’s in-house counsel, Michael Bogart, has had a high success rate getting violations dismissed. “A lot of violations get thrown out because the information was available at the building, but the inspectors don’t ask for it,” he says. “It’s onerous the way they write these violations.” Appearing before the ECB makes for “a long day,” he adds, which is an unwelcome but unavoidable expense for boards.
Board involvement might be the best way to avoid violations in the first place. “Many customers are looking to have more and more work outsourced to a third-party vendor,” says Chem-Aqua’s Battaglini. “But the regulations are written in a way that it...should be a team effort between the customer and the water-treatment provider. Even though we are doing most of the work, the customer should also keep track of the all the paperwork. That will result in the greatest level of consistency and success.”
Bogart agrees. “The bottom line is that if you obey the law and keep good records, you can beat the violations,” he says. “The best defense is compliance with the law.”
PRINCIPAL PLAYERS – MANAGEMENT: Maxwell-Kates. WATER TREATMENT: Chem-Aqua.
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