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DISTRICT DEPARTMENT OF THE ENVIRONMENT
NOTICE OF EMERGENCY RULEMAKING
Action to Amend the Ban on Swimming in the Potomac River
The Director of the District Department of the Environment (DDOE), 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. (2008 Repl.)), 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 (2008 Repl.)), and Mayor’s Order 2006-61, dated June 14, 2006, hereby gives notice of an emergency rulemaking action to amend the ban on swimming set forth in title 21 (Water and Sanitation), chapter 11, (Water Quality Standards) of the District of Columbia Municipal Regulations (DCMR). These emergency rules were adopted on June 13, 2011, and became effective immediately on that date. The emergency rulemaking will expire one hundred twenty (120) days from the date of adoption.
This emergency rulemaking amends § 1158 of title 21 of the District of Columbia Municipal Regulations (21 DCMR § 1158) by amending § 1158.5 and adding §§ 1158.6 - 1158.24 to create an exemption to the prohibition against swimming in the District’s portion of the Potomac River, to authorize qualifying swimming events in the river for limited amounts of time and under limited conditions. The rules require that prior to each event the event organizer conduct a study of the segment of the District’s 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 DDOE in order for the event to occur. The event organizer must also implement safety measures, coordinate with government public safety agencies, maintain substantial adequate insurance with the District as beneficiary, ensure that the organization and event participants waive all liability of the District, and maintain a contingency plan if the river is determined unsafe for the swim.
Similar temporary suspensions of the swimming ban were authorized by statute in 2007 and by rule in each of the years 2008 through 2010. Triathlon competitive swim events took place in the Potomac River during each of those years. The District has received no reports of illness resulting from the Potomac River’s water quality from these events. The analyses conducted in each of those years demonstrated to the satisfaction of DDOE that the water quality met applicable standards. Two (2) Potomac River-related triathlons are planned for 2011, on Sunday, June 19, and on Sunday, September 11.
Emergency rulemaking is necessary to preserve the public safety, including the safety of persons who will be swimming in the Potomac River during similar events in 2011, 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. A similar version of these rules was announced as an emergency rule on December 9, 2010, and became effective immediately on that date. See 57 DCR 11971 (December 17, 2010). That emergency rulemaking expired one hundred twenty (120) days from the date of adoption. Proposed rules were also published with notice on December 17, 2010. Id.
Pursuant to the December 17 notice, DDOE conducted a public hearing on February 17, 2011, at the DDOE headquarters, 1200 First Street, NE, Washington, DC. A thirty-three (33)-page transcript was produced. At the hearing eight (8) witnesses testified, including District residents and triathletes, the past president of the DC Triathlon Club, and other athletes. The founder of the Nation’s Triathlon and the DC Triathlon testified that the groups had conducted more than a dozen swim events and put more than fifteen thousand (15,000) triathletes safely into and out of the Potomac River, and had conducted Potomac River events in the immediately preceding years. He stated that every such swim event had met Class A water quality testing standards, safety boats and equipment were part of each event, and participants were monitored with electronic chips. All of the witnesses supported the proposed rules’ event-specific suspension of the prohibition on swimming in the Potomac River for the triathlons.
DDOE received a total of sixty-eight (68) written comments on the proposed rules. Among them, the medical director for the Nation's Triathlon, for the ITU Triathlon and for this past year's DC Triathlon (DC Tri) stated that for four (4) years there have been no health issues with the Potomac. All of the comments were favorable, many describing the two (2) events as important nationally.
The DC Tri, in anticipation of a final rule, has been planning the June event and has been submitting the requirements of the proposed rule to DDOE. It has delivered two certificates of insurance exceeding the proposed rule’s requirements, a quality assurance project plan (QAPP), and is collecting water quality sampling data for submittal pursuant to its QAPP. Competitors have been registering for the two (2) mentioned triathlons. The triathlon organizers have been contracting for support, negotiating with local government agencies, and coordinating volunteers and public vendors.
While the public comments and DDOE’s consideration of the rules’ purpose and general requirements appear to merit the rules’ adoption as final, DDOE has determined that material changes should be made to correct technical errors, apply the rules as a matter of policy and fairness to more than two (2) named events, add further protections for the public, and present the rules in the proper regulatory format for the District. Due to time constraints, it will not be possible to publish the rules as proposed, take additional comments, analyze them, and adopt them without causing substantial disruption or outright cancellation of the upcoming June and September triathlons. For all of these reasons DDOE has adopted these rules on an emergency basis.
These emergency rules correct typographical errors in the proposed rules’ § 1158.8(c) that erroneously required a lower per-occurrence coverage ($500,000) than the per-person coverage ($1 million). These emergency rules also eliminate unnecessary definitions in the proposed rule, and, importantly, define a qualifying special swimming event generically. Finally, two (2) subsections add reporting requirements, including event-day sampling, and require a contingency plan for unsafe swimming conditions.
Title 21, WATER AND SANITATION, chapter 11, WATER QUALITY STANDARDS, section 1158, ENFORCEMENT, of the DCMR is amended by amending § 1158.5 and adding §§ 1158.6 through 1158.24, to read as follows:
1158.5 Except as provided in §§ 1158.6 through 1158.24, 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 a special swimming event in the Potomac River, if a study conducted by the special swimming event organizer shows that the numeric criteria for Class A listed in § 1104.8 are being attained.
1158.7 The study required by § 1158.6 shall be conducted as follows:
(a) At least twenty-eight (28) days before collecting samples, the special swimming event organizer shall submit to DDOE 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:
(1) "EPA Requirements for Quality Management Plans (QA/R-2)," (EPA/240/B-01/002, March 2001 or subsequently issued guidance); or
(2) Equivalent documentation as determined by EPA;
(b) Samples cannot be collected before the QAPP is approved;
(c) All samples shall be collected as required in the approved QAPP
(d) Samples for Escherichia coli (E. coli), pH, and turbidity shall be collected and analyzed according to 40 CFR Part 136;
(e) The qualifications of the persons undertaking the sample collection and analysis for the special swimming event organizer shall be subject to DDOE's review, for verification that such persons meet minimum technical background and experience requirements; and
(f) The laboratory conducting the sample analysis:
(1) Shall be capable of providing complete environmental analytical services, consistent with EPA protocols, and according to a Laboratory Quality Management Plan;
(2) The contract laboratory used must be accredited or certified;
(3) 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; and
(4) The laboratory quality management plan shall be submitted as part of the QAPP.
1158.8 The study and report of the sample analysis shall be submitted to DDOE at least forty-eight (48) hours before a scheduled special swimming event.
1158.9 Failure to submit the study and report by the deadline will result in the Director's denial of authorization for the special swimming event.
1158.10 The study and report shall include
(a) All completed chain of custody forms and lab reports;
(b) An assessment of whether the water quality criteria for Class A in 21 DCMR § 1104 have been attained; and
(c) An evaluation of relevant factors, including:
(1) Rainfall;
(2) Upstream sewage or chemical releases; and
(3) Other environmental conditions that may affect the water quality.
1158.11 The Director shall deny permission to swim in the Potomac River if the results of the study or the Director's independent investigation indicate:
(a) The water quality standards are not being attained;
(b) An emergency health hazard caused by a dangerous contaminant or condition has occurred; or
(c) There may be health risks from a known pollution source, including but not limited to:
(1) Combined sewer overflow;
(2) Failing sewer infrastructure;
(3) Chemical release; or
(4) Wastewater treatment discharge.
1158.12 At least twenty-eight (28) days before the respective special swimming event practice day, the special swimming 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.
1158.13 The Director, in his sole discretion, shall determine whether the insurance coverage provided is satisfactory.
1158.14 The Director shall not authorize the special swimming event unless the Certificate of Insurance or other proof of coverage is submitted to the Director in the time required by § 1158.12.
1158.15 The special swimming 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 it has a paid employee, 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) in the aggregate;
(c) If the owner of a vehicle, including a boat:
(1) Shall carry vehicle liability insurance written on the comprehensive form of policy; and
(2) The policy shall provide for bodily injury and property damage liability covering the operation of all vehicles used in connection with conducting the special swimming event;
(d) Policies covering vehicles shall provide coverage of at least:
(1) One million dollars ($1,000,000) per occurrence;
(2) Five hundred thousand dollars ($500,000) per person for bodily injury; and
(3) Twenty thousand dollars ($20,000) per occurrence for property damage;
(e) Carry workers' compensation insurance:
(1) Covering all of its employees on the Potomac River and in connection with its other operations pertaining to this event; and
(2) The organizer shall comply at all times with the provisions of the workers' compensation laws of the District of Columbia;
(f) All insurance provided by the special event organizer as required by this section, except comprehensive vehicle liability and worker's compensation insurance, shall set forth the District of Columbia as an additional insured;
(g) All insurance shall be written with responsible companies licensed by the District of Columbia; and
(h) The policies of insurance shall provide for at least twenty-eight (28) days written notice to DDOE prior to their termination or material alteration.
1158.16 If the insurance coverage required by this section is denied, canceled, not renewed, or any of the required coverages are lowered below the stated amounts, a special swimming event organizer shall:
(a) Notify the Director immediately by phone and email; and
(b) Notify the Director by letter and fax at least forty-eight (48) hours before the special swimming event.
1158.17 Upon receiving notice of a coverage change, cancellation, or non-renewal, the Director may rescind authorization for a special swimming event.
1158.18 As a condition of event authorization, the special swimming event organizer shall secure from each employee, contractor and volunteer of the special swimming event organization, and from each participant, a signed Department-approved statement that expressly:
(a) Assumes the risk of event participation; and
(b) 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.
1158.19 The special swimming event organizer shall take steps which:
(a) The Director deems necessary to ensure that the requirements of § 1158.18 are satisfied; and
(b) Shall include, but are not limited to, presenting the signed forms to the Director within twenty-eight (28) days after the event.
1158.20 The special swimming 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 pursuant to this section.
1158.21 The fee shall be paid in full at the time of submitting the QAPP to the Department.
1158.22 Review of the QAPP and study will not commence until the fee is received.
1158.23 The special swimming event organizer shall provide to the Director at least seven (7) days in advance of the special swimming event documentation showing:
(a) Coordination with municipal public safety agencies;
(b) On-site first aid facilities, including a licensed physician; and
(c) A contingency plan for the special swimming event in the circumstance that either the Director or the event organizer determines that swimming would not be safe.
1158.24 The special swimming event organizer shall provide to the Director within fifty-six (56) days (eight (8) weeks) after the special swimming event a report of:
(a) Incidents from municipal public safety agencies;
(b) Medical issues or incidents from on-site first aid facilities, including from the on-site physician;
(c) Use of the contingency plan for unsafe swimming; and
(d) Sampling of event day water and subsequent testing.
Title 21, WATER AND SANITATION, chapter 11, WATER QUALITY STANDARDS, section 1199, DEFINITIONS, of the DCMR is amended by adding the following defintions in the correct alphabetical order in § 1199.1, to read as follows:
1199 DEFINITIONS:
Special swimming event – A single-day competition or other sporting event requiring full body contact in a body of water in which swimming is generally prohibited, including, but not limited to a triathlon swimming leg, or a swim meet, and, if any, a companion preceding single-day practice event.
Special swimming event organization – An organization, business, government agency or other entity which organizes and sponsors a special swimming event.
Special swimming event organizer – The special swimming event organization principally responsible for staging the special swimming event.
