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District DEPARTMENT OF THE ENVIRONMENT
NOTICE OF EMERGENCY AND PROPOSED RULEMAKING
Action to Amend the Ban on Swimming in the Potomac River
The Acting Director of the District Department of the Environment, in accordance with the authority set forth in the District Department of the Environment Establishment Act of 2005, effective February 15, 2006 (D.C. Law 16-51; D.C. Official Code §§ 8-151.01, et seq.), sections 5 and 21 of the Water Pollution Control Act of 1984, effective March 16, 1985 (D.C. Law 5-188; D.C. Official Code §§ 8-103.04 and 8-103.20), and Mayor’s Order 2006-61, dated June 14, 2006, hereby gives notice of a rulemaking action to amend the ban on swimming set forth in Chapter 11, “Water Quality Standards,” of Title 21,“Water and Sanitation,” of the District of Columbia Municipal Regulations (DCMR).
These proposed rules would amend subsection 1158.5 of Title 21 of the District of Columbia Municipal Regulations (21 DCMR § 1158.2) to create an exemption to the prohibition against swimming in the Potomac River and Anacostia River to annually authorize two triathlon events - the Washington DC Triathlon, and the Nation's Triathlon, in the Potomac River. Prior to the event, the rules require that the event organizer to conduct a study of the segment of the Potomac River where swimming will occur to determine whether it meets the District’s water quality standards that are protective of swimming. The study itself, and the results of the study, must be reviewed and approved by the Department in order for the event to occur. The event organizer will also be required to maintain adequate insurance with the District as beneficiary, and to ensure that the organization and event participants waive all liability of the District. Similar temporary suspensions of the swimming ban were authorized by regulation in 2008, 2009, and 2010, and by statute in 2007. As of today, the District has received no reports of illness resulting from the water quality of the Potomac River during these events. Further, the District enjoyed substantial monetary gain and notoriety as a result of the event. Finally, and most importantly, the analyses conducted in each of those years demonstrated to the satisfaction of the Department that the water quality met applicable standards.
Emergency rulemaking action is necessary to preserve the public safety of persons who will be swimming in the Potomac River during the Washington DC Triathlon and the Nation's Triathlon, to prevent threats to their health, safety and welfare as a result of their being exposed to contaminants or conditions that do not comply with the District’s standards and criteria for Class A waters set forth in 21 DCMR § 1104. The emergency rule was adopted as an emergency rule on December 9, 2010, and became effective immediately on that date. The emergency rulemaking will expire one hundred twenty (120) days from the date of effectiveness.
The Department also gives notice of its intent to take final rulemaking action to adopt these regulations in not less than thirty (30) days from the date of publication of this notice in the D.C. Register. All persons desiring to comment on the proposed amendment to create a temporary, and event-specific suspension of the prohibition on swimming in the Potomac River in 21 DCMR § 1158.2 should file comments, in writing, not later than (30) days after the publication of this notice in the D.C. Register. Comments should be labeled “Swimming Exemption” and filed with the District Department of the Environment, Water Quality Division, 1200 First Street, N. E., 5th Floor, Washington D.C. 20002, Attention: Collin Burrell, or by e-mail to collin.burrell@dc.gov.
The public may also present its views on the proposed amendments to the water quality standards at a public hearing. Notice of this public hearing will be published in the D.C. Register.
Chapter 11 of Title 21, DCMR is amended as follows:
Section 1158 is amended by amending subsection 1158.5 and adding new subsections 1158.6 to 1158.12 to read as follows:
1158.5 Except as provided in § 1158.6, primary contact recreation shall be prohibited in the Potomac and Anacostia Rivers and Rock Creek until such time as the standards in § 1104.8 for Class A beneficial use are consistently maintained.
1158.6 The Director may allow two (2) single-day special swimming events, and two (2) single-day event practice days, per year in the Potomac River, if a study conducted by the special event organizer of samples collected during a thirty (30) day period prior to each event shows that the numeric criteria for Class A listed in § 1104.8 are being attained. The study shall be conducted as follows:
(a) At least thirty (30) business days prior to collecting samples, the special event organizer shall submit to the Department for review and approval a quality assurance project plan (QAPP) that shall be prepared and implemented by a qualified professional environmental monitoring firm in accordance with “EPA Requirements for Quality Management Plans (QA/R-2),” (EPA/240/B-01/002, March 2001 or subsequently issued guidance) or equivalent documentation as determined by EPA. Samples cannot be collected before the QAPP is approved. All samples shall be collected as required in the approved QAPP.
(b) Samples for Escherichia coli (E. coli), pH, and turbidity shall be collected and analyzed according to 40 CFR Part 136.
(d) The laboratory conducting the sample analysis shall be capable of providing complete environmental analytical services, consistent with EPA protocols according to a Laboratory Quality Management Plan. The contract laboratory used must be accredited or certified. A current certificate of accreditation by a state or the EPA must be submitted along with documentation that the specific methods identified in the QAPP are covered by the certification. The laboratory quality management plan shall be submitted as part of the QAPP.
(d) The study and report of the sample analysis shall be submitted to the Department at least forty-eight (48) hours before any scheduled swimming event. Failure to submit the study and report by the deadline will result in the Department’s denial of authorization for the event. The study and report shall include:
(1) All completed chain of custody forms and lab reports;
(2) An assessment of whether the water quality criteria for Class A in 21 DCMR § 1104 has been attained; and
(3) An evaluation of any relevant factors, including prior rainfall and other environmental conditions that may affect the water quality.
1158.7 The Director shall deny permission to swim in the Potomac River if the results of the study indicate:
(a) The water quality standards are not being attained;
(b) An emergency health hazard caused by any dangerous contaminant or condition has occurred; or
(c) There may be health risks from a known pollution source, such as combined sewer overflow, failing sewer infrastructure, wastewater treatment discharge, or other source.
1158.8 At least thirty (30) business days before the respective event practice day, the special event organizer shall submit to the Director a Certificate of Insurance, or other proof of coverage, signed by an authorized representative of the insurer, as well as any other document the Director shall require, to evidence insurance coverage for the event. The Director, in his sole discretion, shall determine whether the insurance coverage provided by the special event organizer is satisfactory. The event shall not be authorized unless the Certificate of Insurance or other proof of coverage is submitted to the Director in the time required by this subsection. The special event organizer shall, at its own expense, obtain the minimum insurance coverage set forth below prior to the event and keep such insurance in force throughout the event period, as follows:
(a) If they have paid employees, carry liability coverage of at least one million dollars ($1,000,000).
(b) Carry bodily injury liability insurance coverage written on the comprehensive form of policy of at least two million dollars ($2,000,000) per occurrence, and five million dollars ($5,000,000) per aggregate.
(c) If the owner of any vehicles, including boats, shall carry vehicle liability insurance written on the comprehensive form of policy. The policy will provide for bodily injury and property damage liability covering the operation of all vehicles used in connection with conducting the event. Policies covering vehicles will provide coverage of at least one million dollars ($1,000,000) per person and five hundred thousand dollars ($500,000) per occurrence for bodily injury and twenty thousand dollars ($20,000) per occurrence for property damage.
(d) Carry workers' compensation insurance covering all of its employees on the Potomac River and in connection with its other operations pertaining to this event. The organizer will comply at all times with the provisions of the workers' compensation laws of the District of Columbia.
(e) All insurance provided by the special event organizer as required by this section, except comprehensive vehicle liability and workman’s compensation insurance, shall set forth the District of Columbia as an additional insured. All insurance will be written with responsible companies licensed by the District of Columbia. The policies of insurance shall provide for at least thirty (30) days written notice to DDOE prior to their termination or material alteration.
1158.9 The Director shall be given notice in the event the insurance coverage required by § 1158.8 is substantially changed, canceled, or not renewed prior to the respective event practice day. The special event organizer shall use all reasonable efforts to notify the Director as soon as possible after the coverage change, cancellation, or non-renewal, but in no event later than two (2) days before the practice day. Upon receiving notice of a coverage change, cancellation, or non-renewal, the Director may rescind authorization for the event.
1158.10 As a condition of event authorization, the special event organizer shall secure from the event organization, and from each participant a signed Department-approved form that expressly assumes the risk of event participation and waives liability of the District of Columbia government, its officers, employees, and agents, for any damages or injuries arising out of participation in the event.
1158.11 The special event organizer shall take whatever steps as may be deemed necessary by the Director to ensure that the requirements of § 1158.10 are satisfied. Such steps shall include, but are not limited to, presenting the signed forms to the Director within thirty (30) days following the event.
1158.12 The special event organizer shall pay a fee of one thousand dollars ($1,000) per event for the costs the Department incurs in determining whether it will allow swimming in accordance with §§ 1158.6 to 1158.9. The fee shall be paid in full at the time of submitting the quality assurance project plan to the Department. Review of the QAPP and study will not commence until the fee is received.
Section 1199 is amended by amending subsection 1199.1 as follows:
The following definitions are amended to read as follows:
Department – the District Department of the Environment.
Director – the Director of the District Department of the Environment.
The following definitions are added:
Special event organization – The Washington DC Triathlon, and the Nation's Triathlon.
Special event organizer – the principal organizer for an event organization.
