Response to issues paper exempt selling regime madeleine kingston

Recent Incidence

http://www.health.wa.gov.au/envirohealth/hazards/legionella.cfm

In Australia during 2007 an outbreak of legionella¹⁴⁸¹⁶ was believed to have started during the NYE celebrations at Circular Quay on Sydney’s harbour originating in a cooling tower (where 1,400 cfu/ml Legionella was found) from an adjacent office building, four cases were initially confirmed but there were concerns due to the fact that Circular Quay is one of the most populated areas in Sydney on NYE.

As a result there could have been potentially many more cases. By 20 January the NSW authority reported three more cases, bringing the NSW total to 7.

As recently as 8 June 2006 an outbreak of Legionnaire’s disease ease reported in Melbourne, Victoria by the DHS thought to have a common source.

These were related to cooling towers around Footscray and Seddon.

Health Risk, Liability, Water and Energy Efficiency – some considerations

Legionella Bacteria – courtesy Advanced Environmental technologies

Under general health and safety law in the UK and in parallel laws in other countries, certain legal responsibilities are encumbent on those managing to consider the risks from legionella that may affect staff or members of the public and to take suitable precautionary measures. An employer or a person in control of premises (e.g. a landlord) must

Identify and assess the source of risk:

Prepare a scheme (or course of action) for preventing or controlling the risk

• 
  Implement and manage the scheme – appointing a person to be managerially responsible (the responsible person)
  
• 
  Keep records and check that what has been done is effective and
  
• 
  If appropriate notify the local authority if there is a cooling tower on the premises
  

These considerations have implications for those responsible for cooling towers, evaporative condensers, hot water and cold water, systems, humidifiers and spa baths.

Contractors and others under the control and direction of the responsible party (for example manager of public housing or private landlord) may nevertheless also be employees under the law with similar liability

It follows that any public policy to mandate certain types of systems, including hot water systems (especially those receiving energy supplied to a single water tank supplying water to multiple individual apartments), needs to take into account any such legal and moral responsibilities applicable and to ensure that in proposed existing buildings proper protections are in place for maintenance of such property.

That is one of the many reasons why contractual responsibilities of landlords, whether of public or private rental properties must be clearly understood by all.

In private rental property especially those of sub-standards with bulk hot water systems, the responsibilities described are the minimum expected and represent an enhanced responsibility for situations where end-consumers have no choices, do not legally have contractual relationships with energy or water suppliers in the absence of separate metering for each utility consumed, including gas, electricity, and water efficient devices.

Whilst energy retailers and apparently also current state policies both implicitly and explicitly refuse to recognize the numerous contractual issues raised in passing in this document, the implications for fair trading, trade practice and trade and utility measurement provisions and consumer rights generally, the fact is that the proper contract does lie with a Body Corporate entity (Owner’s Corporation) for the provision of cost of providing hot water services and air conditioning services that form part of common property infrastructure, and for ensuring through cooperative efforts that such services, particularly bulk hot water are monitored and maintained, and to have a clear plan of action for dealing with risk.

Risk from legionella in water systems can be controlled but careful planning, a successful management policy, competent staff (or body corporate entities in the case of private rental property) and attention to proper control strategies are all essential, with regular review of risk factors.

If such strategies are not part of the overall existing plan to upgrade and mandate changeover of hot water systems, and if existing sub-standard properties including public housing and private rental apartments are not covered, decades may pass before these issues are addressed at all, leaving the public at risk, and many parties facing potential legal liability.

Conditions that promote growth¹⁴⁹/¹⁷:

• 
  Scale and sediment supply the environment needed for growth of Legionnaires' disease bacteria (LDB) and other microorganisms.
  
• 
  Dead legs and non-recirculated plumbing lines that allow hot water to stagnate also provide areas for growth of the organism.
  
• 
  Temperatures maintained below 60°C (140°F) encourage growth of LDB and other microorganisms.
  

Source: US Department of Labour Health Administration. Osha Technical Manual Section 2C-1 Domestic Hot-Water Systems.

http://www.osha.gov/dts/osta/otm/legionnaires/hotwater.html

Accepta, a company specializing in advanced environmental technologies¹⁵⁰/¹⁸ reports¹⁵¹/¹⁹ new research from the US which has “identified home hot water pipes and domestic hot water systems as common sources of Legionnaires’ disease”

Janet Stout of the Veterans’ Administration Medical Center in Pittsburgh said “The evidence suggests that the residential water system is an under-appreciated source of Legionnaire’s disease,” first identified in 1976. There is worldwide concurrence on the culprit bacteria.

As reported by Accepta, Janet Stout estimates that between 2% and 5% of the 600,000 pneumonia cases requiring hospitalization in the US each year are caused by the Legionella pneumophilia bacteria, with correct diagnosis often being missed because identification requires both a bacterial culture and a special urine test.

In the Pennsylvania and Ohio study headed by Stout’s team, 21 victims had allowed testing of their home water, with Legionella pneumophilia bacteria being found in 24% of those tested. Two study patients died of infection so caused. ¹⁵²/²⁰

“The bacterium, which causes Legionnaires' disease, is widespread in nature, flourishing at temperatures of between 90 and 105 Degrees F. It mainly lives in water, for example ponds, where it does not usually cause problems. Outbreaks normally occur from purpose-built water systems where temperatures are warm enough to encourage growth of the bacteria, e.g. in cooling towers, evaporative condensers, showers, whirlpool spas and from water used for domestic purposes.

People often keep the temperature in their hot water tanks set low to prevent scalding, but to kill the Legionnaires bacteria, Stout recommends temporarily turning up the temperature to above 140 Degrees F and running the hot water outlets for half an hour. Since the bacteria quickly return, this should be done regularly, especially if people prone to the infection are using the water. If the temperature is kept high, the bacteria return much more slowly or not at all.

"The overall perception we have that drinking water in the home is free of bacteria is a misconception," said Stout. "Although Legionnaires’ is a naturally occurring organism in water, people should be aware this is a potential source of disease.”

As far back as 1991, Alary and Joly had reported¹⁵³/²¹ as follows on risk factors for contamination of domestic hot water systems by legionellae.

“To assess risk factors associated with the contamination of the domestic environment by legionellae, 211 houses in the Quebec City area were randomly selected and water samples were collected from the hot water tank, the shower heads, and the most frequently used faucet. After centrifugation, concentrated samples were seeded in triplicate on BCYE and GPV media. Data on the characteristics of the hot water system and plumbing in the house and on the personal habits of the occupants were collected for each house. Among these 211 houses, hot water was provided by either an oil or gas heater in 33 and by an electric heater in 178. Legionellae were isolated from none of the samples from houses with oil or gas heaters and from 39% (69 of 178) of those with electric water heaters (P less than 0.0001). This association remained highly significant after control for water temperature and other variables in a stratified analysis. In the 178 houses with an electric heater, 12% of the faucets, 15% of the shower heads, and 37% of the water heaters were contaminated.”

“Legionella pneumophila serogroups 2 and 4 were the most frequently isolated strains. Logistic regression showed that factors associated with electric water heater contamination were (i) location of the house in older districts of the city (P less than 0.0001), (ii) old age of the water heater (P = 0.003), and (iii) low water temperature (P = 0.05). Contamination of the water heater was the only factor significantly associated with the contamination of peripheral outlets (P less than 0.0001). “

Some of the best conditions for Legionella growth are found in¹⁵⁴/22:

• 
  Large air-conditioning water-cooling towers,
  
• 
  Evaporative condensers domestic hot water systems with water heaters that operate below 60°C humidifiers and
  
• 
  Decorative fountains spas and
  
• 
  Whirlpools warm water pipes that operate at a temperature above 20°C but below 60°C stagnant water bodies
  

Water stored below 20°C is generally not a source for Legionella.

However, high levels of the microorganism have been measured occasionally in the water supply of cold water and ice making machines.

Cooperative Research Centres (CRC) reports that¹⁵⁵/²³

“The majority of communities in central Australia rely on groundwater aquifers as the primary source for the water supply. Groundwaters can contain high concentrations of dissolved minerals that reduce the functional life and increase the infrastructure maintenance requirements, such as water systems, hot water systems and air conditioners. In some cases, hard waters cause the failure of key health hardware, impacting on the health of residents.”

In May 2006 Quinlan Miller, Treston, Lawyers reported as follows¹⁵⁶/²⁴

“As the (legionella) bacteria is inevitably present in nature, the law does not oblige the owner to eradicate it, merely minimise the risk of exposure by minimising the opportunity for growth. An owner/ building manager with well documented regular inspections and maintenance of its cooling towers and supporting mechanical equipment may satisfy a court it took a reasonable response to a recognised risk of foreseeable injury. In so doing an action in negligence may be unsuccessful by the injured party.

However, in most outbreaks investigated to date the presence of the legionella bacteria has been caused by infrequent maintenance, inadequate inspection of cooling towers, poor design making access for leaning purposes difficult, insufficient chemical additives applied to cooling tower recycled water, and breakdown of mechanical equipment causing increase in water temperature or loss or capacity to siphon and replace water.

“If investigation of an incident arising in Queensland did result in a successful prosecution by Workplace Health & Safety for unsafe plant, then an individual suffering legionnaire’s disease will have a reasonable prospect in convincing a court harm from unsafe plant was reasonably foreseeable. If it can then be shown that more regular maintenance or monitoring would have prevented the spread of airborne particles of the bacteria then it is open to a court to find the owner or manager of the cooling tower has breached its duty of care. In Queensland any damages claim brought for legionnaire’s disease must be proceeded with via compliance with the requirements of the Personal Injuries Proceedings Act 2002.

This requires a compulsory set of pre-court procedures to be completed before legal proceedings (which must be commenced within 3 years of the exposure) can be commenced. The pre-court procedures must be commenced within 9 months of the exposure although lodging at a later time is possible if there is a reasonable excuse for delay in lodging the requisite notice.

Financial dependents of an individual who dies from legionnaire’s disease also have a right to make a claim where negligence can be proven for loss of the benefit of the income which they derived from the deceased.”

In Australia, Australian Standard 3666.1 1995 regulates the design, installation operation and maintenance of water systems in Australian buildings. The purpose of the standard is to impose minimum preventative obligations upon owners and operators of cooling towers to minimise legionella growth to maximise health and safety.

Underpinning the Australian Standard in most states are additional guidelines and legislation, systems of registration and in some states mandatory testing by the owner or manager of the cooling tower.

The use of water heaters as a means of meeting the requirements for limiting the hot water temperature to 50°C for water used for ablutions and the use of tempering valves for tempering hot water to 50°C and thermostatic mixing valves for hospitals and aged care has been clarified.¹⁵⁷/²⁵

The Canada Safety Council makes the following observations and recommendations¹⁵⁸/²⁶:

To minimize bacteria contamination, water must be stored at 60 C or higher. For example, temperatures under 50 C may increase the risk of Legionnaires’ disease, a form of pneumonia, due to bacterial growth in the tank. That disease is caused by Legionella bacteria, which live in water. Temperature is a critical factor for Legionella to grow. The risk of colonization in hot water tanks is significant between 40 and 50 C.

Legionella bacteria most often enter the lungs due to aspiration. (Aspiration means choking such that secretions in the mouth bypass the choking reflexes and enter the lung.) Drinking contaminated water is not a major cause of Legionnaire’s disease.

The Centers for Disease Control and Prevention estimates 8,000 to 18,000 Americans contract the disease annually. Five to 30 per cent of the cases are fatal. While Canada has no national statistics, Hydro-Québec says about 100 people a year are hospitalized in that province for pneumonia caused by contaminated residential water heaters.

Plumbing Code Changes on Hold

In 2001, the Canadian Commission on Building and Fire Codes (CCBFC) was informed that the Canadian Medical Association had passed a resolution urging provincial and territorial governments to amend existing building and plumbing codes to require the default setting of new residential hot water heating devices to a maximum of 49 C in order to address the safety of children and elderly who were being scalded in significant numbers.

The CCBFC asked the Standing Committee on Building and Plumbing Services to examine the scalding issue and to recommend changes to the National Plumbing Code of Canada.

The Standing Committee on Building and Plumbing Services has the responsibility to balance concerns about all known risks into its decisions. The Code process must scrupulously examine every possible impact of proposed changes. This level of precaution and consensus is critical to the health and safety of Canadians.

The Standing Committee did not recommend the lower maximum temperature for hot water heaters. Instead, it proposed a maximum 49 C hot water temperature at fixture outlets in residential occupancies with the exception of installed dishwashers or clothes washers. Automatic compensating mixing valves at each fixture, or a master mixing valve, could be installed to meet the objective. The change, which would only apply to new construction, was to appear in both the National Plumbing Code (NPC) and the National Building Code (NBC) in 2005.

In 2003, during the public consultation on proposed changes for the 2005 NBC and NPC, industry and some provincial governments opposed the committee’s proposal. Those most likely to be held responsible for illness from contaminated water still had concerns.

In October 2004, after much discussion and consultation, the CCBFC withdrew the proposed change. It requested a national task group be set up to examine the health and safety risks associated with hot water delivery in buildings. The task group has reviewed the medical knowledge, statistics and circumstances of Legionella contamination, as well as information about injuries related to scalding. Its recommendations and a proposed course of action have been submitted to the Standing Committee on Building and Plumbing Services for consideration. That committee meets at the end of June 2005 to review the proposals of the task group, and will make recommendations on this matter to the CCBFC.

In hot water tanks, scale, corrosion, sludge and other precipitators of legionalla bacterium growth are culprits. Has enough serious attention has been paid to these factors in addressing liabilities encumbent on nursing homes, public housing authorities and delegates, private landlords of apartment blocks.

Phillipa Chetman has studied the economic cost to the nation and the relative savings that could be made by adoption of proactive measures compared with the economic health burden of addressing issues after the fact, especially in terms of hospital costs.

Whilst those areas may be outside the direct scope of the E2WG brief, these issues cannot be swept aside in making recommendations for upgrading or replacement of hot water systems.

The issue of the long-term consequences removing electric hot water heaters is outside the scope of my knowledge, but these issues have been publicly raised by industry stakeholders.

This submission is primarily focused on a range of issues associated with liability, contract, maintenance and changes made with regard to both energy efficiency and competition policy initiatives in advanced stages of planning and implementation. In a climate of policy change that may allow scope for addressing issues otherwise left on backburners with inconclusive outcomes, confusion, potential for expensive litigation and complaint.

Time pressures preclude a more comprehensive examination of this topic, but the few references cited should suffice to promote discussion of appropriate measures to adopt when recommending overhaul of hot water service mandates for new and existing buildings, with particular regard to the social responsibilities to vulnerable and disadvantaged low fixed income groups living in apartment buildings; those in caravan parks and rooming houses; and other residents in nursing homes and other care situations 19 of 39

Selected control measures

Some of the recommended control measures are as follows¹⁵⁹/²⁷:

• 
  Ensuring that the release of water spray is properly controlled
  
• 
  Avoid water temperatures and conditions that favour the growth of legionella and other microorganisms
  
• 
  Ensure water cannot stagnate anywhere in the system by keeping pipe lengths as short as possible or by removing redundant pipework
  
• 
  Avoid materials that encourage the growth of legionella
  
• 
  Keeping the system and water in it clean and
  

Treating water to either kill legionella (and other micro-organisims or limit their ability to grow

Note though keeping the system clean will help prevention of legionella as well as ensure that through scaling and defouling other advantages such as improved efficiency will be gained.

The US Department of Health¹⁶⁰/²⁸ recommends the following system control measures, in addition to biocide measures and other alternatives:

Temperature

• 
  Maintain domestic water heaters at 60°C (140°F) and water delivered at the faucet at a minimum of 50°C (122°F). Where these temperatures cannot be maintained, control LDB growth with a safe and effective alternative method. Also see What to consider in the system design.
  
• 
  Proper insulation of hot-water lines and heat tracing of lines can help maintain distribution and delivery temperatures at 50°C (122°F).
  

If potential for scalding exists, employ appropriate fail-safe scald-protection.

System Controls:

• 
  Run recirculation pumps continuously and exclude them from energy conservation measures.
  
• 
  Eliminate or minimize the use of rubber, plastic and silicone gaskets in the plumbing system. These materials may serve as growth substrates for LDB. Frequent flushing of these lines also reduces growth.
  
• 
  Identify and test the integrity of all backflow preventers (to ensure protection of domestic water from cross-contamination with process water) through a building code-approved method.
  

Biocides:

• 
  Hot-water tanks should be drained periodically to remove scale and sediment.
  
• 
  Periodically chlorinate the system at the tank to produce 10 ppm free residual chlorine and flush all taps until a distinct odor of chlorine is evident as a means of control. The tank should be thoroughly rinsed to remove excess chlorine before reuse.
  
• 
  In-line chlorinators can be installed in the hot water line; however, chlorine is quite corrosive and will shorten the service life of metal plumbing.
  
• 
  Control of the pH in the range of 6.8 - 7.0 is extremely important to ensure that there is adequate residual chlorine in the system.
  

Though raised here primarily in the context of health, legal liability and contractual considerations, the energy efficiency goals achieved secondary to meeting those responsibilities should be part of the overall agenda at the initial planning stage given the massive changes proposed with energy efficiency in mind.

Some possible solutions for addressing the Bulk Hot Water and Stationery Boiler Hazard:

1. 
   Withdraw the existing the BHW arrangements from energy provisions. Revisit departmental local authority Infrastructure and Planning arrangements that allow perpetuation of the BHW arrangements (see for example Queensland Department of Infrastructure and Planning sanctions Fact Sheet under Building Codes Queensland.
   
2. 
   Allocate responsibility to the appropriate contractual parties - OCs
   
3. 
   Make sure metering databases and service compliance is undertaken
   
4. 
   Apply appropriate trade measurement practices using the right instrument to measure the right commodity in the correct unit of measurement and scale.
   
5. 
   Ban communal hot water systems and install individual utility meters for gas electricity and water in all new buildings.
   
6. 
   Assist existing OCs and Landlords to upgrade and retrofit with individual meters and instantaneous hot water systems in each residential abode - meeting efficiency and health risk issues in one fell swoop and enabling proper application of metrology procedures that are transparent.