Have You Thought About … Water Systems in Dormant Buildings?
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Have You Thought About … Water Systems in Dormant Buildings?

Brownstein Client Alert, June 12, 2020

Economic downturns always pose a complex array of problems for the real estate industry. But this time, COVID-19 has produced a new hurdle with stay-at-home orders: how to safely reoccupy entire buildings after almost three months of essentially immediate desertion. While entire building systems need to be reviewed—from air filtration systems to physical layouts to plumbing and automated controls—one of the most important issues is building water systems. Following news headlines and guidance from the Centers for Disease Control (CDC) noting concerns over what happens when building water in plumbing lies stagnant for prolonged periods, investors, operators and occupants are questioning how safe it is to enter buildings that have been near-dormant since March 2020. Building owners and managers now have to consider:

  • How to safeguard operational systems, including ensuring the safety of workers providing system maintenance.
  • How to ensure occupants/tenants feel confident in reoccupying buildings.
  • How to prioritize new system safeguards with already strained budgets in mind.

Commercial building water systems are typically designed with the assumption of consistent use, so with the pandemic halting virtually all building operations, unexpected risks arise. Among other hazards, the CDC notes that building operators should be aware of at least two potential water quality issues after a period of building inactivity: mold and Legionella (which causes pneumonia- and flu-like illnesses). The bacteria that can cause Legionnaires’ disease is of serious concern, and the CDC estimates approximately 10% of cases can be fatal. Legionella is spread through bacteria transmission via water droplets, and can be inhaled through dispersion, such as via central air conditioning systems or showers. Buildings with cooling towers are at higher risk for conditions where excessive growth of Legionella could threaten building health.

Legionella incubates depending on plumbing-specific factors, disinfectant practices, water heater temperature, water usage and whether there was previously an outbreak. This is distinguishable from factors causing mold, such as duration of time and seasonal weather during periods of vacancy.

Other microbial hazards may exist for returning occupants that have been identified by the CDC, such as non-tuberculous mycobacteria, changes in water chemistry that lead to corrosion, leaching of metals (such as lead and copper) into stagnant water, disinfection by-products, and sewer gases that enter buildings through dry sanitary sewer drain traps.

Evaluation of additional building systems or amenities should include:

  • water plumbing
  • water-heating equipment
  • decorative and non-decorative water fountains
  • water features
  • evaporative condensers, fluid coolers and cooling towers
  • hot tubs
  • water softeners
  • heating, ventilation and air conditioning (HVAC).

While there is no standard or one way to ensure building systems are hazard-free, the CDC recommends eight steps before reopening a building to minimize the risk of Legionella, including ensuring the water heater is properly maintained, checking temperatures and residual disinfectant levels, and flushing the water system through all points of use. Proper maintenance and inspections must prevent scale buildup, sediment and gradual water organism accumulation on structural surfaces.

Moreover, the process for carrying out this maintenance should include measures both to train and protect workers from exposure before and during maintenance and disinfection. Personal protective equipment (PPE) including eye, face and respiratory protection may be necessary. See link to the OSHA Legionnaires’ Disease Control and Prevention below for further details and potentially relevant OSHA standards that employers should consider for workers performing maintenance, cleaning and disinfection measures when contamination is suspected.

Protecting individuals from health risks upon re-entry triggers the question of premises liability. Liability will rest upon whether all reasonable steps are taken to protect visitors from risks or face the consequences for potential harm. A stagnant water issue is the responsibility of the building owner or manager. A water utility, on the other hand, is simply responsible for delivering treated and disinfected drinking water to a property. Once delivered, the water and condition of the water is the responsibility of the owner or manager to ensure water safety within the building systems.

While reviewing how a building meets current expectations for public safety, the associated costs of system upgrades may constrain capital improvements. Beyond actual costs, occupants’ perception of safety is also a factor. Building experiences can now be tracked similar to online restaurant reviews; the cost of poor public perception may outweigh the hard dollar investment in system upgrades to achieve and/or maintain high occupancy rates and higher rents. Regardless of whether you are an owner, manager or occupant, reviewing what steps have been taken to ensure the safe return to a healthy building is a universal benefit.

Finally, while government standards do not yet exist for assessing whether commercial building water systems are safe occupancy following COVID-19 closures, resources and guides are quickly emerging to help inform one’s process for maintaining and disinfecting plumbing to reduce potential for waterborne disease and exposure.

Additional resources:

Information is changing daily and some of the content included in this alert may have changed or been updated since publication.

Click here to read more Brownstein alerts on the legal issues the coronavirus threat raises for businesses.


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