Facts About the Lake Jackson Amoeba Incident and N. Fowleri

Facts About the Lake Jackson Amoeba Incident and N. Fowleri By Charles Perkins, Energy Efficiency Circuit Rider, Texas Rural Water Association

In September, a 6-year-old boy who lived in Lake Jackson, Texas became infected with Naegleria fowleri (N. fowleri), described by the media as a “brain eating amoeba.” Unfortunately, the youngster ultimately succumbed to the effects of infection, and he died on September 8. His death prompted city officials to investigate potential sources of contamination in the city’s water system.

In actuality, N. fowleri infections are very rare. In the decade from 2010 to 2019, only 34 infections were reported in the United States. The N. fowleri amoeba cannot infect a person through ingestion of water. The amoeba enters the body through the nose and can travel to the brain where it destroys tissue. Unlike other pathogens, this one can only cause infection when entering the body in this Investigations determined that the source of the N. fowleri was a "Splash Pad located at the City of Lake manner and drinking contaminated water will not Jackson's Civic Center. cause infection as the human digestive system is sufficiently hostile to kill it. which is treated to the same level as swimming pool

The water source for the city of Lake Jackson water. is blended, making source-tracing difficult. The city The Centers for Disease Control (CDC) issued utilizes both groundwater produced from its wells findings that determined the water storage tank located in the Gulf Coast/Chicot Aquifer, and surface for the “Splash Pad” created the environment water purchased from the which allowed the amoeba Brazos River Authority "While the N. fowleri amoeba (N. fowleri) to grow. City which has the Harris Aquifer as its source. is very susceptible to destruction officials working with Texas Commission on

The discovery of the N. by chlorination, it can survive Environmental Quality fowleri initially lead to Lake Jackson officials issuing for prolonged periods when (TCEQ) investigators and other governmental a “Do-Not-Use” notice encased within the protective agencies determined that on September 25. This notice was rescinded on biofilm that can form inside the storage tank in question had a low disinfectant September 26 and replaced water distribution pipes." residual and that the timer with a Boil Water notice. system used to operate Investigations determined that the source of the N. fowleri was limited to a “Splash Pad” located at the City of Lake Jackson’s Civic Center. A “Splash Pad” is a recreation area in a public park that has little or no standing water and the spray nozzle system reduced the flow of water through the tank and helped to create the conditions under which algae and other microbes such as the N. fowleri amoeba were able to grow. which utilizes ground nozzles to spray water into This incident at the City of Lake Jackson would the air. Typically, the water used in these systems be the first case of an infection of the N. fowleri is either “fresh” potable water or “recycled” water amoeba in Texas associated with a public water

source. This tragedy received nationwide news coverage, understandably stoking public anxiety across the country about the quality of their own water.

The N. fowleri amoeba can be found in warm freshwater lakes and rivers, as well as hot springs and in the soil. This amoeba possesses no special resistance to chlorination, and a 5-minute exposure to a free chlorine concentration of 0.5mg/l will kill the organism.

While the N. fowleri amoeba is very susceptible to destruction by chlorination, it can survive for prolonged periods when encased within the protective biofilm that can form inside water distribution pipes. Not only do these biofilms absorb the free chlorine that comes into contact with the outer layers of the microbes, but they shield and protect the microbes that dwell within this protective coating. To guard against this, periodic flushing of distribution lines and proper circulation of water in storage tanks will prevent the conditions which would allow its growth.

The Lake Jackson incident is a tragic example of how easily the conditions that allow pathogenic microorganisms to grow can be present in even the most well-run utilities. The combination of slightly lower disinfectant residuals, longer than average detention times, possible cross-connection contamination, and water which may have been allowed to pool even slightly on the surface of the play area were the perfect recipe for disaster which claimed the life of an innocent young boy. While the N. fowleri amoeba may be rare and infections even rarer, this incident should serve as a stark reminder of why we, as providers of public drinking water, must remain ever vigilant in our efforts to protect the public from the hidden dangers of which many remain unaware.

If you have any questions about this article, you can contact charles.perkins@trwa.org or your area Circuit Rider. If you are unsure of what Circuit Rider is assigned to your area, please call us at 512-4728591 and we will get you in touch with your contact to answer your questions or schedule a visit.

Ask Larry

A Q&A column with TRWA Technical Assistance Director Larry Bell

Q:Can you explain the difference between the USDA-RD “general” and “location-required” easement forms? complete right to come back at a later date and tie onto the end of that original line and continue across the rest of the property frontage or turn the next When should we use one over the other? phase of pipeline construction down another side of

A: The question of when to use one of the the same property. Systems should be sensitive to standard USDA-RD easement types is a common the landowner’s rights and permissions they provide question. The 442-8 is the line-specific type to the system and not abuse the trust established easement, while the 442-9 is the “general easement” during the first construction project. form. Both of these easement forms have been Some systems and even some attorneys contend evolving for more than 50 years, and each one has that once a 442-9 general type easement is signed, its own specific purpose. the system has the right to continue installing new

The 442-8 line-specific form should be used when water lines anywhere they desire whenever they a landowner wants the water, wish. However, the general easement form says that sewer line, or meter installed in a specific place on their property. For instance, a landowner may "For systems with only one operator, it is critical the easement is “as installed,” not “as installed now or in the future.” Personally, in my years be planning some landscaping along the front of their property that they have a backup as a system manager, I probably would not have successfully and want the line to be installed plan to ensure the proper obtained as many easements as along a predetermined route. This could be with either a functioning of their water I did had I not made it clear that the easement was only for the surveyed route or some other drawing which shows the exact location of where valves are system when that person is out on either scheduled or pipeline currently being installed, and not for some unknown future project. In my opinion, the safest located or where the pipelines turn or drift away from the unscheduled leave." approach is for the system to secure another easement for normal property boundary to bypass a pond, building future construction projects. or other feature. More often, landowners want to New projects need to have new easements. have a recordable document showing the exact Finally, I want to add that if the system wants location where the lines are installed so that in the to just deal with this property owner on this one future there will be no guessing as to where the line occasion to secure an easement across the entire crosses their property. frontage of the property, they should probably use

The 442-9 general easement form is not as formal the 442-8 line-specific form. This form allows for the and allows the landowner and the system to mutually system and the owner to agree that the easement agree that the lines, meters, valves, and other is not just for the current line to be installed, but infrastructure are to be installed along the property future line extensions that would continue across boundary. Then thereafter the “center line of this the frontage of the property even though the initial easement is established by where the system’s construction project would not include the full water facilities are initially installed. “Initially installed” just or sewer line. means that once the system has completed the final Q: I have a question about a utility’s liability installation of the current related equipment and for damage on a customer’s side of the meter. pipes the easement’s center line is set. We have a customer who wants us to replace a

This does not mean that the system has the water heater due to a buildup of calcium. Who is

responsible for replacement?

A: We see this question quite a bit for all different types of in-house appliances, fixtures, and even clothes. First, you should check your tariff or district service policy to see what it says about such liability. The TRWA Sample Tariff specifically states that “the corporation is not liable for damages caused by … events beyond its control…”. Also, in the sample service application and agreement, applicants specifically agree to hold the corporation harmless from any and all claims for damages caused by “events beyond the corporation’s control.”

The system has no control over whether the customer properly maintained or regularly flushed the water heater. The purpose of the drain valve on hot water heaters is to drain the hot water tank to make repairs, change elements and to periodically flush sediment out of the tank. Also, all water supplies contain some chemicals or minerals whose properties can change when placed into a hot water environment, thereby accelerating the settling process within the tank. Periodic flushing removes some of this sediment or accumulation from the tank so that it does not become corrosive. It is not the utility’s responsibility to ensure that this is done properly, as the utility’s responsibility ends at the meter.

If your tariff contains statements similar to those found in the TRWA Sample Tariff above, you might consider showing the customer a copy of the relevant provisions. With all this being said, some systems still feel obligated to help customers replace damaged appliances such as this water heater. The problem with doing this is that once the system begins taking the responsibility for replacing hot water heaters, or anything else within the customer’s house or property, where does this stop? More and more customers will begin saying the water made something in their house fail, and the system ends up on a slippery slope to replacing more and more items.

Q: We are a small utility and only have one employee with a Class C or higher operator’s license. What policies and procedures would you recommend we implement for when this person goes on vacation or is sick?

A: TCEQ rule 290.46(e) requires that the production, treatment, and distribution facilities of a public water system be under the direct supervision of a licensed operator at all times. Thus, for systems with only one operator, it is critical that they have a backup plan to ensure the proper functioning of their water system when that person is out on either scheduled or unscheduled leave.

Many systems in this situation work out a mutual aid agreement with a neighboring system so that if their operator is out on leave the other system’s licensed operator can step in and see that all applicable state regulations continue being met. Of course, these agreements will require your operator to be available to step in if the neighboring system’s operator is out on leave as well. Other systems may hire an operations company to fill in for their licensed operator on an as needed basis. This can be beneficial because reputable operations companies should be able to send someone on relatively short notice or be able to work around your operator’s schedule. If you are fully dependent on a neighboring utility’s operator to step in when needed, you could be out of luck if that utility’s operator is also sick or on vacation at the same time as your operator.

Finally, some systems ensure coverage by doubling up on operator licenses in house. These systems may opt to send one of their board members, office staff, or manager to take the appropriate operator training courses so they can obtain a proper water license that would allow them to operate their system during the regular operator’s time off.

If you have a technical question you would like answered, please e-mail larry.bell@trwa.org.

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Keep It Legal

Answers to Members’ Questions by TRWA Assistant General Counsel Trent Hightower

Q:A nearby city is considering imposing a “franchise fee” on our utility. What is this fee and is there any way we can recoup this additional cost?

A: Franchise fees are fees assessed by cities on utilities operating within their limits. Section 13.247 of the Water Code gives cities the authority to regulate certain activities within their city limits, including the use of their facilities, such as streets, alleys, and right of ways. Each time a city-owned facility gets used, the city incurs incremental costs associated with that use in the form of everyday wear and tear, which the city will ultimately have to pay for in the form of maintenance and repairs. Franchise fees allow the city to recoup some of that cost from utilities who contribute to that wear and tear through their use of those facilities. Section 182.025 of the Texas Tax Code caps these fees at 2% of gross receipts generated within the city.

Utilities, however, aren’t using the city’s facilities for their own benefit; they are using the city’s streets and right of ways to install and maintain the infrastructure necessary to deliver water service to their customers who reside in the city. Since the end user is the indirect cause of the wear and tear on the city’s facilities as well as the ultimate beneficiary of that use, utilities may pass the franchise fee on to their customers in the form of a franchise fee assessment. To collect this fee, the utility must clearly account for it in its current tariff or district service policy. It is important to note that utilities may only impose a franchise fee assessment on those customers whose meters are located within the corporate limits of the city. Also, the utility should make sure that the assessment is truly pass through in nature; in other words, the amount the utility assesses against its customers should mirror the fee being imposed on the utility by the city.

Q: Can employers maintain cameras in the workplace as a means of monitoring their employees? If so, should employees be aware of the cameras or can they be hidden?

A: The sources I've been able to find indicate that employers can generally make video recordings of their employees as long as cameras aren’t placed in sensitive areas where people have an expectation of privacy. Places like restrooms, locker rooms, and changing areas have generally been found to be locations where employees have such an expectation, but for other, less sensitive locations, courts must conduct a fact-specific analysis to determine whether placement of a camera violates an employee’s reasonable expectation of privacy. In doing so, courts will typically consider things like the employer’s interest in monitoring their employees, the means employed to do so, and whether the employees knew about the monitoring beforehand, among other factors.

Based on what I've seen, video recordings are much less regulated than audio recordings, which I will discuss in greater detail below. I believe most employer video surveillance would likely pass the expectation of privacy test described above if cameras are located in common areas of the office, such as meeting spaces, break areas, or customer lobbies. Personal offices might be a closer call. For example, in some offices it's not uncommon for employees to occasionally change clothes in their office — maybe before or after going to the gym, or perhaps if they have a social event after work that requires a quick change. Another example is a new mother that may need to use her office as a lactation room. These uses could give employees an expectation of privacy in those more private

spaces even if they are typically open to access by First, the Texas Open Meetings act does not other coworkers. explicitly prohibit a board member from making a

With that in mind, I think it's probably a good idea recording of an open meeting, either with or without to notify your employees ahead of time if you're the consent of the other directors. Further, the Act going to install video cameras on your premises. even explicitly allows the general public to record That way they can't later claim that they had an meetings, so it makes sense that directors can also expectation of privacy in the workplace if they were make such recordings if they elect to do so. aware of the cameras beforehand. Also, putting If your directors are recording discussions taking them on notice could have a desirable deterrent placed during closed sessions, however, I would effect that could prevent the behavior that prompted strongly advise that they discontinue doing that the question about cameras in the first place. I immediately for a couple of reasons. First, when a would also suggest adding this to your employee board meets in closed session, they are required policies and requiring each employee to sign a to keep either a certified agenda (a technical term release acknowledging that they are aware of for written minutes of the closed session) or record the cameras. The policy should clearly establish the meeting. If they opt for the recording, that where and when the recordings will be happening, recording is supposed to be kept private and only particularly if there will be cameras in an individual be disclosed if a court orders its production. The office with a closed door — that way they do not Act prohibits a director from revealing a certified have the expectation of privacy. agenda or recording of a closed session to people

Finally, if your cameras also pick up audio, they who are not on the board. Thus, if a director were could run afoul of federal and state wiretapping to make his or her own recording and then shared laws. In Texas, you can only record a conversation it with someone outside the boardroom, they could if one party to the be subject to the Open conversation consents to the recording. Because of this, I would advise against "Audio recordings are typically allowed in Texas Meetings Act's criminal penalties provisions, which makes such disclosure a any kind of recording as long as one party to the Class B misdemeanor. that captures audio. As I mentioned earlier, audio conversation consents to the Further, if the purpose of the closed session was recordings are much more highly regulated than video, recording." to allow the board to meet with the system's attorney and in most cases the to discuss pending or recording party (i.e. the employer) will not be a party contemplated litigation, sharing such a recording to the conversations being recorded — this would with people who aren't on the board could potentially make many such recordings illegal and expose you waive the attorney/client privilege attached to those to potential liability. discussions. This could substantially prejudice

Q: We have had a couple board members the system’s position in the litigation at issue. It bring recording devices to our monthly board could also put the system in a precarious position meetings and make recordings without the rest if the discussions relate to personnel matters or of the board’s knowledge. Is this legal? Does real estate transactions, because statements that it violate any provisions of the Texas Open would have otherwise been legally protected could Meetings Act? be used in future negotiations or litigation relating

A: As mentioned in the previous question, a closed session could expose the director to a audio recordings are typically allowed in Texas as lawsuit if it is found to be a breach of their duty to long as one party to the conversation consents to act in the corporation's best interest.the recording, so from a pure legality perspective, I don’t think there is anything criminal about your In general, I would strongly advise against board members’ conduct. However, they could be individual board members creating their own subjecting themselves to liability under the Texas recordings of a closed session for the above Open Meetings Act if they are making recordings of reasons. If the board elects to record the closed the directors’ closed sessions. to those matters. Also, revealing a recording of Continued on page 16

session instead of keeping a written record of what happened in the meeting, there should be one official recording that is kept sealed and restricted as required by the Act. There is simply no good reason for multiple recordings of a closed session to exist, and these extra recordings just present multiple avenues for trouble if they are shared with people who should not be privy to those discussions.

Q: What legal resources are available to TRWA members on your website?

A: The Legal Department recently overhauled our website to make a wide range of resources more accessible to TRWA members than ever. To get there, either go to www.trwa.org/page/legal, or click the “Legal/Legislative” tab on the TRWA home page. Once there, you can find links to all of our legal policies and forms, our online Legal Handbook, a full database of past Keep it Legal questions and answers, and much more.

The legal home page also includes links to our “Ask the Attorney” service where you can submit a question that may appear here in Keep it Legal, our sales tax exemption certification service for water supply corporations and investor-owned utilities, and our eminent domain reporting service. As a reminder, now is the time for subscribers to send us your information for the annual, mandatory eminent domain report. Those are due by February 1, 2021, and the Comptroller began accepting reports on November 1, 2020.

If you have a legal question you would like answered, please email legal@trwa.org.