Title of Regulation: 12VAC5-135. Recreational Advisories (adding 12VAC5-135-10 through 12VAC5-135-40).

Statutory Authority: § 32.1-12 of the Code of Virginia.

Public Hearing Information: No public hearings are scheduled.

Public Comment Deadline: September 18, 2019.

Effective Date: October 3, 2019.

Agency Contact: Joseph Hilbert, Deputy Commissioner, Governmental and Regulatory Affairs, Virginia Department of Health, 109 Governor Street, Richmond, VA 23219, telephone (804) 864-7001, FAX (804) 864-7022, or email joe.hilbert@vdh.virginia.gov.

Basis: Statutory authority to promulgate this regulation is granted to the State Board of Health pursuant to §§ 32.1-2, 32.1-12, and 32.1-23 of the Code of Virginia.

Purpose: This regulation is necessary to ensure continued public notification whenever there is a higher risk of illness when swimming in public beach water. The Virginia Department of Health (VDH) participated in a regulatory advisory panel (RAP) with the Department of Environmental Quality (DEQ) to amend regulations in 9VAC25-260-170. The RAP participants came to the consensus that DEQ would eliminate regulatory language related to issuing beach advisories and closures, given this is a primary function of VDH's Beach Monitoring and Notification Program. In order for VDH to continue to manage beach advisories in recreational water, promulgation of a new VDH regulation is necessary.

Rationale for Using Fast-Track Rulemaking Process: This regulatory action was initiated as the result of a board decision in response to an action by DEQ. The DEQ RAP, which included representatives of VDH, other local and state agencies, and nonprofit organizations, reached consensus on the removal of the beach advisory and closure language from DEQ regulation provided VDH promulgates a regulation to manage beach advisories in recreational water. VDH does not expect this rulemaking to be controversial. Further, promulgation of this regulation will not result in any changes to the current practice of issuing and lifting recreational water advisories. This regulatory action moves requirements from one title of the Virginia Administrative Code to another and adds procedures for issuing and lifting beach advisories.

Substance: DEQ is repealing 9VAC25-260-170 A 5, which reads: "For beach advisories or closures, a single sample maximum of 235 E. coli cfu/100 ml in freshwater and a single sample maximum of 104 enterococci cfu/100 ml in saltwater and transition zones shall apply." For VDH to continue to manage beach advisories in recreational water, a new VDH regulation with these provisions is necessary. While VDH is maintaining the principle of the DEQ regulation, there are some minor differences. Substantive changes include the removal of individual reference values for the single sample maximum (235 E. coli cfu/100 ml in freshwater and 104 enterococci cfu/100 ml in saltwater and transition zones). The VDH regulation uses a beach action value (BAV). The BAV is set at 104 enterococci mpn/100 mL in saltwater and transition zones. There is no established VDH monitoring protocol for E. coli in recreational freshwater for the issuance of advisories. Further, through this regulation, VDH establishes procedures for issuing and lifting beach advisories. The VDH Beach Monitoring and Notification Program, funded by the U.S. Environmental Protection Agency BEACH Act Grant, requires the use of a BAV. The BAV is contained within the VDH Beach Monitoring and Notification Protocol. The proposed regulation directs readers to the protocol.

Issues: The primary advantage to the public is that VDH currently has this authority through 9VAC25-260-170 A 5 and therefore, there will be no additional impact to the management of recreational water advisories. There are no known disadvantages to the public or agency to promulgating this regulation.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. The State Board of Health (Board) proposes to promulgate a new regulation concerning the issuance and lifting of beach advisories and beach warnings for public beaches.

Result of Analysis. The benefits likely exceed the costs for all proposed changes.

Estimated Economic Impact. The Virginia Department of Health (VDH) Beach Monitoring and Notification Program is funded by the United States Environmental Protection Agency (EPA)'s BEACH Act Grant.¹ Under the program, staff from VDH regional offices collect public beach water samples on a weekly basis from mid-May through September at the various public beaches² in the Commonwealth. The samples are tested for the presence of enterococci.³ If the concentration of enterococci is equal to or above 104 colony forming units per 100 milliliter (beach action value), VDH issues a beach advisory for the tested beach. A beach advisory is a public announcement that the beach action value of enterococci has been met or exceeded, and that there is a higher risk of illness when swimming. After the issuing of the beach advisory, if the results of subsequent testing of samples are below the beach action value, the agency lifts the beach advisory.

VDH issues beach warnings whenever it is not possible for agency staff to collect samples of the public beach water on the scheduled day as a result of practical or safety concerns, or if the proximity of other imminent hazards, such as those of a chemical spill, pose a health risk to public beach water users. A beach warning is a public announcement issued as a result of VDH suspecting a public beach water hazard to be present, such as during extreme weather events or chemical spills, or when the agency staff have been unable to test public beach water as scheduled. When the event or imminent health hazard has passed or public beach water sampling has resumed, the warning is lifted.

Currently, these specifications and other details of the program are in neither statute nor regulation. The Board proposes to put these specifications, procedures for monitoring, definitions, and other information in regulation. According to VDH, promulgation of this regulation would not result in any changes to the current practice of issuing and lifting advisories and warnings. Further, the proposed regulation contains no requirements for local governments, private entities, or anyone else outside of VDH. Thus, the proposed regulation is beneficial in that it provides clarity to the public, but otherwise would not likely have a significant effect.

Businesses and Entities Affected. Beach advisories and beach warnings affect businesses that are dependent on beach attendance, such as nearby restaurants and retail stores. Placing specifications and other details of the VDH Beach Monitoring and Notification Program in regulation, but not changing the actual practice of issuing and lifting advisories and warning, does not significantly affect these entities, though.

Localities Particularly Affected. The proposed regulation particularly applies to Gloucester, Mathews, Hampton, Newport News, York, Norfolk, Virginia Beach, Northumberland, and Accomack.⁴

Projected Impact on Employment. The proposed regulation would not likely affect employment.

Effects on the Use and Value of Private Property. The proposed regulation would not likely significantly affect the use and value of private property.

Real Estate Development Costs. The proposed regulation would not likely affect real estate development costs.

Small Businesses.

Definition. Pursuant to § 2.2-4007.04 of the Code of Virginia, small business is defined as "a business entity, including its affiliates, that (i) is independently owned and operated and (ii) employs fewer than 500 full-time employees or has gross annual sales of less than $6 million."

Costs and Other Effects. The proposed regulation would not likely significantly affect costs for small businesses.

Alternative Method that Minimizes Adverse Impact. The proposed regulation does not adversely affect small businesses.

Adverse Impacts:

Businesses. The proposed regulation does not adversely affect businesses.

Localities. The proposed regulation does not adversely affect localities.

Other Entities. The proposed regulation does not adversely affect other entities.

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¹https://www.epa.gov/beach-tech/about-beach-act

^2"Public Beach" is defined as "a sandy beach located on a tidal shoreline adjacent to water that is suitable for swimming and that remains open and accessible for public use."

³See https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3510518/

⁴Source: Virginia Department of Health

Agency's Response to Economic Impact Analysis: The Virginia Department of Health concurs with the findings of the economic impact analysis.

Summary:

The regulation establishes the Virginia Department of Health's role in issuing and lifting recreational water advisories based on the beach action value, including procedures for issuing and lifting beach advisories.

CHAPTER 135
RECREATIONAL ADVISORIES

12VAC5-135-10. Definitions.

The following words and terms when used in this chapter shall have the following meanings unless the context clearly indicates otherwise:

"Beach action value" or "BAV" means the concentration of an indicator organism that shall determine whether a beach advisory is issued or lifted.

"Beach advisory" means a public announcement that the beach action value has been met or exceeded and informing the public of a higher risk of illness when swimming.

"Beach warning" means a public announcement issued as a result of the department suspecting a public beach water hazard to be present, such as during extreme weather events or chemical spills or when the department has been unable to test public beach water as scheduled.

"Commissioner" means the State Health Commissioner or the commissioner's designee.

"Department" means the Virginia Department of Health.

"Public beach" means a sandy beach located on a tidal shoreline adjacent to water that is suitable for swimming and that remains open and accessible for public use.

"Public beach water" means the water adjacent to a public beach.

12VAC5-135-20. Beach Monitoring and Notification Program.

Through the Virginia Department of Health Beach Monitoring and Notification Program, funded by the U.S. Environmental Protection Agency BEACH Act Grant, the commissioner issues and lifts beach advisories and beach warnings for public beach water.

12VAC5-135-30. Issuance and lifting of beach advisories and beach warnings.

A. The BAV value that determines issuance or lifting of a beach advisory equals 104 most probable number (MPN) per 100 mL enterococci.

B. The commissioner shall issue beach advisories whenever public beach water samples are equal to or greater than the BAV. After the issuing of the beach advisory, if the results of subsequent testing of public beach water samples are less than the BAV, the commissioner shall lift the beach advisory.

C. The commissioner shall issue beach warnings whenever it is not possible for department staff to collect samples of the public beach water on the scheduled day as a result of practical or safety concerns, or if the proximity of other imminent hazards, such as those of a chemical spill, pose a health risk to public beach water users. The commissioner shall lift beach warnings when the event or imminent health hazard has passed or public beach water sampling has resumed. The appropriate laboratory analysis for the hazard shall be used when available to demonstrate public beach water conditions are safe for public use.

D. Acceptable means of public notification of beach advisories and beach warnings include public beach signage, press releases, contacting of local government officials, social media posts, and other forms of communication to convey a beach advisory or beach warning.

12VAC5-135-40. Procedures for beach monitoring.

The procedures for beach monitoring are as follows:

1. The department shall collect public beach water samples on a weekly basis from the middle of May through September or as otherwise determined by the department based on factors such as the size of the beach-going population and the climate at any particular public beach.

2. The department shall analyze public beach water samples using methods approved by the U.S. Environmental Protection Agency.

3. If the department does not collect and test a public beach water sample as scheduled, the commissioner shall issue a beach warning, or if there is an existing beach advisory, the commissioner shall continue the beach advisory.

4. If multiple public beach water samples are taken at several sites within public beach water, the department may average and compare the samples with the BAV. If the average result of the public beach water samples is equal to or greater than the BAV, then the commissioner shall issue a beach advisory.

5. If a public beach water sample is equal to or greater than the BAV, the commissioner-issued beach advisory shall remain in effect until follow-up samples can be taken that demonstrate that levels are less than the BAV.

6. In the event of the issuance of a beach advisory, the department shall collect and analyze follow-up public beach water samples as soon as reasonably possible. Follow-up public beach water samples that are equal to or greater than the BAV shall result in a continuation of the beach advisory.