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PRINTER'S NO. 1924
THE GENERAL ASSEMBLY OF PENNSYLVANIA
SENATE BILL
No.
1285
Session of
2020
INTRODUCED BY FONTANA, FARNESE, SANTARSIERO, TARTAGLIONE,
BREWSTER AND COSTA, SEPTEMBER 8, 2020
REFERRED TO ENVIRONMENTAL RESOURCES AND ENERGY,
SEPTEMBER 8, 2020
AN ACT
Providing for legionnaires' disease prevention and reporting and
imposing duties on the Department of Environmental Protection
and the Department of Health.
The General Assembly of the Commonwealth of Pennsylvania
hereby enacts as follows:
Section 1. Short title.
This act shall be known and may be cited as the Legionnaires'
Disease Prevention and Reporting Act.
Section 2. Definitions.
The following words and phrases when used in this act shall
have the meanings given to them in this section unless the
context clearly indicates otherwise:
"Covered building." A building that meets any of the
following criteria:
(1) A health care facility where patient stays exceed 24
hours.
(2) A building that contains one or more areas for the
purpose of housing or treating occupants receiving treatment
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for burns, chemotherapy, solid organ transplantation or bone
marrow transplantation.
(3) A building that contains one or more areas for the
purpose of housing or treating occupants that are
immunocompromised or at-risk, on medications that weaken the
immune system or have renal disease, diabetes or chronic lung
disease.
(4) A building that contains a whirlpool or spa either
in the building or on the site.
(5) A building that is more than 10 stories high,
including any level that is below grade.
(6) A building that includes multiple housing units with
one or more centralized potable water-heater systems.
(7) A building identified by the owner or designee as
being for the purpose of housing occupants over 65 years of
age.
(8) A building containing open-circuit and closed-
circuit cooling towers or evaporative condensers that provide
cooling or refrigeration, or both, for the heating, venting,
air-conditioning or refrigeration system or other systems or
devices in the building.
(9) A building that contains ornamental fountains,
misters, atomizers, air washes, humidifiers or other
nonpotable water systems or devices that release water
aerosols in the building or on the site.
"Department." The Department of Environmental Protection of
the Commonwealth.
"Health care facility." As defined in section 802.1 of the
act of July 19, 1979 (P.L.130, No.48), known as the Health Care
Facilities Act.
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"Legionnaires' disease." A pulmonary disease caused by the
Legionella bacterium.
"Public water system." As defined in section 3 of the PSDWA.
"PSDWA." The act of May 1, 1984 (P.L.206, No.43), known as
the Pennsylvania Safe Drinking Water Act.
Section 3. Powers and duties of Environmental Quality Board.
In consultation with the Department of Health, the
Environmental Quality Board may adopt rules and regulations
under the PSDWA, as necessary, to require disinfectant
requirements that exceed the provisions of section 6(a) or
testing requirements of public water systems under the PSDWA to
minimize the growth and transmission of Legionella bacteria and
requirements for the monitoring of public water systems during
construction activities that may impact public water systems.
Section 4. Powers and duties of department.
(a) Public drinking water supply program.--The department
shall amend the public drinking water supply program established
under section 5 of the PSDWA to incorporate the requirements
under sections 3 and 6 of this act.
(b) Enforcement.--
(1) The department shall enforce the drinking water
standards established under this act.
(2) In implementing and enforcing the provisions of this
act, including monitoring and reporting regarding a covered
building, the powers and duties under section 5(b), (c), (d),
(e), (f), (g) and (h) of the PSDWA shall apply.
(c) Samples and testing.--Upon receipt of notification from
the Department of Health under section 5(a), the department
shall sample and test the public water system for the presence
of Legionella bacteria at all locations identified by the
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Department of Health. The following shall apply:
(1) A Legionella culture analysis must be performed by a
laboratory that is approved to perform the analysis by the
department's Environmental Laboratory Accreditation Program.
(2) The laboratory under paragraph (1) must have
certification through the Environmental Legionella Isolation
Techniques Evaluation (ELITE) Program of the Centers for
Disease Control and Prevention or an internationally
recognized Legionella identification proficiency program.
(d) Further testing.--The department shall conduct, or
require the owner or operator of the applicable public water
system to conduct, further testing to confirm the presence of
Legionella bacteria in any source in which the bacteria is
detected through initial testing under this subsection, as the
department determines to be necessary.
(e) Qualified professionals.--When testing for the
Legionella bacteria is required under this act, the department
shall ensure that the sampling shall be conducted by qualified
water safety and management professionals certified in
accordance with ASSE Series 12000-2018, Professional
Qualifications Standard for Infection Control Risk Assessment
for All Building Systems.
(f) Publication of notice requirements.--Not later than 120
days after the effective date of this subsection, in
consultation with the Department of Health, the department shall
transmit notice to the Legislative Reference Bureau for
publication in the Pennsylvania Bulletin of the form and manner
of the notice required under section 6(b), including the
specific information to be included in that notice.
Section 5. Powers and duties of Department of Health.
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For every reported diagnosis of Legionnaires' disease, the
Department of Health shall immediately provide notification to
the department of the diagnosis in a manner that is compliant
with the Health Insurance Portability and Accountability Act of
1996 (Public Law 104-191, 110 Stat. 1936). The notification
shall include addresses where the individual diagnosed with
Legionnaires' disease resided, frequently visited or was
employed in the 14 days immediately prior to the individual's
diagnosis.
Section 6. Duties of owner or operator of public water system.
(a) Residuals and testing.--Notwithstanding any other
provision of law, the owner or operator of a public water system
shall:
(1) Maintain a minimum free chlorine residual of 0.5
milligrams per liter or a minimum combined chlorine residual
of 1.0 milligrams per liter in all active parts of the
distribution system at all times. For purposes of this
paragraph, maintaining the residual shall be based on 95% of
samples monitored weekly at the total coliform rule sites.
(2) Conduct disinfectant residual testing at frequent
and regular intervals to determine the amount and type of
detectable disinfectant residual existing at different points
in the public water system.
(b) Notice.--
(1) The owner or operator of a public water system shall
provide a timely written notice, in a form and manner as
determined by the department under section 4(f), to all
residential, commercial and institutional customers and
residents served by the public water system and located in an
affected area of disruptions in the water distribution system
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that could result in increased levels of Legionella bacteria
being present in the public water system.
(2) The notice under this subsection shall include, but
not be limited to, the following:
(i) Notification of planned or unplanned events that
reduce water delivery pressure below 20 pound-force per
square inch, or 140 kilopascal, caused by, but not
limited to, new construction tie-ins, replacement of
valves, hydrants or meters, pumping failures, pipeline
breaks or other system repairs or emergency conditions
that may affect Legionella bacteria in the water
distribution system and temporarily increase the level of
Legionella bacteria in the public water system.
(ii) The estimated length of time that the level of
Legionella bacteria may remain elevated, as determined by
the department.
(iii) General information on the possible sources of
Legionella bacteria in the public water system and the
health effects of Legionnaires' disease and related
illnesses to at-risk populations.
(iv) Measures that consumers can take to reduce or
eliminate exposure to Legionella bacteria, including, but
not limited to, flushing water lines during and after
completion of construction work, removing and cleaning
faucet aerator screens and showerheads and installing a
water filter or water treatment device certified to
remove Legionella bacteria.
(v) Recommendations for severely immunocompromised
individuals who wish to take extra measures to avoid
waterborne Legionella and other types of infection,
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including, but not limited to, bringing water to a full
boil for one minute, use of a point-of-use personal use,
end-of-tap or under-sink filter or use of bottled water
as described in "Guidance for People with Severely
Weakened Immune Systems" by the Environmental Protection
Agency (1995).
(3) If a public water system serves a municipality in
which the primary language of 10% or more of the residents is
a language other than English, the owner or operator of the
public water system shall provide the notice required under
this subsection in both English and the other language to the
residents.
(4) The owner or operator of a public water system shall
not be required to provide the notice required under this
subsection until the department has published the public
notice required under this section.
Section 7. Duties of owner or operator of covered building.
(a) Management program and plan.--
(1) Not later than one year after the effective date of
this subsection, the owner or operator of a covered building
shall implement a water management program to minimize the
growth and transmission of Legionella bacteria in the water
system of the covered building, consistent with the American
Society of Heating, Refrigeration, and Air Conditioning
Engineers (ASHRAE) Standard 188-2018 or comparable standards
adopted by a nationally recognized, accepted and appropriate
organization.
(2) A copy of the sampling and management plan and
sampling results shall be retained for at least three years
and provided to the department and the Department of Health
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upon request.
(3) The owner or operator of a covered building shall
make the water management program available upon request to
an employee of the department, the Department of Health or
any other department or agency with license or inspection
authority for the covered building.
(b) Procedures.--Consistent with Standard 188-2018 under
subsection (a)(1), the water management program team must
establish procedures to confirm initially and on an ongoing
basis that the Legionnaires' disease risk management plan is
implemented as designed and that, when implemented as designed,
the Legionnaires' disease risk management plan controls the
hazardous conditions throughout the building water systems.
(c) Sampling and analysis.--In addition to the sampling
required by the water management plan, an owner or operator of a
covered building shall conduct Legionella culture sampling and
analysis of the potable water system in a time frame to be
determined by the department upon any of the following:
(1) A determination by the department that one or more
cases of Legionnaires' disease are, or may be, associated
with the covered building.
(2) Any other conditions specified by the department or
the Department of Health.
(d) Reviews.--The owner or operator of a covered building
shall annually review its sampling and water management plan and
shall conduct an additional review under any of the following
conditions:
(1) If one or more cases of Legionnaires' disease are,
or may be, associated with the covered building.
(2) Upon completion of any construction, modification or
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repair activities that may affect the potable water system of
the covered building.
(3) Upon expansion or relocation of the covered
building's hematopoietic stem cell transplant and solid organ
transplant units.
(4) Any other conditions specified by the department or
the Department of Health.
(e) Covered buildings with cooling tower systems.--For
covered buildings with cooling tower systems, the owner or
operator shall obtain or update a maintenance program and plan
for each cooling tower developed in accordance with Standard
188-2018 under subsection (a)(1). In addition, the maintenance
program and plan shall include the following elements:
(1) A schedule for routine bacteriological culture
sampling and analysis to assess microbiological activity at
intervals not to exceed 30 days while the cooling tower is in
use and that requires additional bacteriological culture
sampling and analysis, as needed, to validate process
adjustments.
(2) A schedule for routine Legionella culture sampling
and analysis within 14 days of seasonal start-up and,
thereafter, at intervals not to exceed 90 days while the
cooling tower is in use. Cooling towers in use year-round
must sample at intervals not to exceed 90 days and within two
weeks after start-up following maintenance.
(3) In addition to the routine Legionella culture
sampling and analysis required under this subsection,
conditions that require immediate Legionella culture sampling
and analysis, which shall include, but are not limited to,
the following:
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(i) Power failure of sufficient duration to allow
for the growth of bacteria.
(ii) Loss of biocide treatment of sufficient
duration to allow for the growth of bacteria.
(iii) Failure of conductivity control, or any other
control methods, to maintain proper cycles of
concentration.
(iv) A determination by the department or local
health department that one or more cases of Legionnaires'
disease is, or may be, associated with the cooling tower,
based upon epidemiologic data or laboratory testing.
(v) Any other conditions specified by the department
or the d of Health.
(4) Provisions requiring immediate and appropriate
action, including remedial action, in response to
bacteriological and Legionella culture analyses.
(5) Provisions requiring that any Legionella culture
analyses must be performed in accordance with section 4(c).
(6) A shutdown and disinfection plan for removing or
permanently discontinuing use of a cooling tower.
(7) Provisions requiring treatment and manual or
automated flushing of any piping, basin, sump or wetted
surface during idle conditions.
(8) Provisions requiring cleaning and disinfection prior
to start-up of a stagnant cooling tower that has been shut
down without treatment and recirculation for more than five
consecutive days.
Section 8. Covered building water systems.
(a) Development of rules and regulations.--Not later than
180 days after the effective date of this subsection, in
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consultation with the Department of Health and a public
stakeholder group that shall be comprised of no more than five
public members, including one representative of a public health
organization dedicated to eradicating Legionnaires' disease and
one representative of an organization representing owners or
operators of public water systems, the department shall adopt
rules and regulations applicable to the water systems of covered
buildings to implement the provisions of this act.
(b) Contents.--
(1) The rules and regulations adopted under this section
shall include requirements for the monitoring and testing for
Legionella bacteria in the water system of covered buildings.
(2) In potable water systems, the sampling and
management plan must include at a minimum:
(i) Legionella culture sampling sites as determined
by the environmental assessment.
(ii) Provisions requiring Legionella culture
sampling and analysis at intervals not to exceed 90 days
for the first year following adoption of the sampling and
management plan. The following shall apply:
(A) Thereafter, the plan shall include
provisions for annual Legionella culture sampling and
analysis.
(B) The plan shall further require that those
portions of any potable water system that serve
hematopoietic stem cell transplant or solid organ
transplant patients shall continue to be sampled and
analyzed at intervals not to exceed 90 days.
(iii) Provisions requiring actions in response to
Legionella culture analysis results, including all
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responsive actions required and specific time frames for
such actions.
(c) Sample sites.--
(1) Sample sites shall include, but not be limited to,
the following locations:
(i) One sample of the inlet cold water supply at the
first available tap.
(ii) One sample from the return piping of the
circulated potable water heating system.
(iii) One sample from the outlet of a heating
system.
(iv) At least three samples collected from each
floor as follows:
(A) One sample from the tap closest to first
delivery of hot water from the riser.
(B) One sample from the middle of the water
system.
(C) One sample from the last outlet before the
water returns to the piping that conveys water back
to the heater.
(D) During an investigation of Legionnaires'
disease, samples from the portion of the water supply
that serves locations in the covered building that
housed affected patients or residents.
(2) If risers supply multiple circulation loops with
each loop providing water to a group of rooms, sample sites
shall be designated to represent each loop.
(3) One additional random sample shall be collected from
each floor when wings have extensive lengths of piping and
complex paths.
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(4) During the initial building assessment, a surface
sample shall be performed at locations representing the
middle or end of the hot water line on each floor.
Section 9. Public nuisance.
(a) Violation.--A violation of a provision of this act, rule
or regulation of the department, order of the department or term
or condition of a permit shall constitute a public nuisance.
(b) Liability.--A person or municipality committing a
violation as described in subsection (a) shall be liable for the
costs of abatement of any pollution and any public nuisance
caused by the violation.
(c) Jurisdiction.--The Environmental Hearing Board and a
court of competent jurisdiction shall have jurisdiction over
actions to recover the costs of abatement of a public nuisance
under this act.
(d) Abatement.--An activity or condition that is declared by
this act to be a public nuisance, or that is otherwise in
violation of this act, shall be abatable in the manner provided
by law or equity for the abatement of public nuisances.
(e) Equitable remedies.--The department may proceed in
equity to abate the nuisance or restrain or prevent a violation
of this act.
Section 10. Penalties and remedies.
(a) Duty, penalty and remedy.--It shall be the duty of a
person to proceed diligently to comply with an order issued
under this act. If the person fails to proceed diligently or
fails to comply with the order within the time, if any, as may
be specified, the person shall be guilty of contempt and shall
be punished by the court in an appropriate manner. For this
purpose, application may be made by the department to
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Commonwealth Court, which shall have jurisdiction over the
matter.
(b) Actions.--A person having an interest that is or may be
adversely affected may commence a civil action on the person's
own behalf to compel compliance with this act or a rule,
regulation, order or permit issued under this act against any of
the following:
(1) The department, if there is alleged a failure of the
department to perform an act that is not discretionary with
the department. Commonwealth Court shall have jurisdiction
over this action.
(2) Another person alleged to be in violation of a
provision of this act or a rule, regulation, order or permit
issued under this act. The following shall apply:
(i) Notwithstanding any other provision of law, a
court of common pleas shall have jurisdiction over this
action.
(ii) Venue for this action shall be as specified
under the Rules of Civil Procedure concerning actions in
assumpsit.
(c) Specific penalties.--
(1) A person who violates a provision of this act, rule
or regulation of the department, order of the department or
term or condition of a permit issued under this act is guilty
of a summary offense and, upon conviction, shall be subject
to a fine of not less than $50 nor more than $5,000, and
costs, for each separate offense. In default of the payment
of the fine or costs, the person shall be subject to
imprisonment for not less than 30 days nor more than 90 days.
(2) A person who willfully or negligently violates a
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provision of this act, rule or regulation of the department,
order of the department or term or condition of a permit
issued under this act is guilty of a misdemeanor of the third
degree and, upon conviction, shall be subject to a fine of
not less than $1,250 nor more than $12,500 for each separate
offense or to imprisonment for a period of not more than one
year, or both.
(3) A person who, after a conviction of a misdemeanor
for a violation within two years as provided in paragraph
(2), willfully or negligently violates a provision of this
act, rule or regulation of the department, order of the
department or term or condition of a permit issued under this
act is guilty of a misdemeanor of the second degree and, upon
conviction, shall be subject to a fine of not less than
$1,250 nor more than $25,000 for each offense or to
imprisonment for a period of not more than two years, or
both.
(d) Pre-enforcement conference.--Notwithstanding any other
provision of this act, before the department shall institute a
criminal proceedings against a person under subsection (c), the
department shall, in writing, provide the person with an
opportunity for a pre-enforcement conference.
(e) Civil penalties.--In addition to proceeding under any
other remedy available at law or in equity for a violation of a
provision of this act, rule or regulation of the department,
order of the department or term or condition of a permit issued
under this act, the department may assess a civil penalty upon a
person for the violation. The following shall apply:
(1) The penalty may be assessed whether or not the
violation was willful or negligent.
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(2) When the department assesses a civil penalty, the
department shall inform the person of the amount of the
penalty.
(3) The person charged with the penalty shall then have
30 days to pay the penalty in full or, if the person wishes
to contest the amount of the penalty or the fact of the
violation, the person shall within the 30-day period, file an
appeal of the action with the Environmental Hearing Board.
(4) Failure to appeal within 30 days shall result in a
waiver of all legal rights to contest the violation or the
amount of the penalty.
(5) The maximum civil penalty which may be assessed
under this section shall be $5,000 per day for each
violation.
(6) Each violation for each separate day and each
violation of a provision of this act, rule or regulation of
the department, order of the department or term or condition
of a permit issued under this act shall constitute a separate
and distinct offense under this section.
(f) Nonexclusive penalties and remedies.--The penalties and
remedies prescribed by this act shall be deemed concurrent and
the existence of or exercise of a remedy shall not prevent the
department from exercising any other remedy at law or in equity.
(g) Violations on separate days.--Violations on separate
days shall constitute separate offenses for purposes of this
act.
Section 11. Reports.
Not later than one year after the effective date of this
section and annually thereafter, in conjunction with the
Department of Health, the department shall submit a report to
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the Governor and the General Assembly that shall include the
following:
(1) The number of cases of Legionnaires' disease in this
Commonwealth reported in each of the previous 10 years.
(2) The number of reported Legionella-positive test
results received by the department or the Department of
Health.
(3) The number and type of violations of this act for
which penalties were assessed.
(4) Recommendations for legislative action as may be
necessary to further control Legionella bacteria in the
public water supply and affected covered buildings.
Section 12. Effective date.
This act shall take effect immediately.
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