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Montana Administrative Register Notice 37-471 No. 1   01/14/2010    
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BEFORE THE DEPARTMENT OF PUBLIC

HEALTH AND HUMAN SERVICES OF THE

STATE OF MONTANA

 

In the matter of the adoption of New Rule I - CLXVIII, amendment of 37.5.117, 37.5.304, 37.95.127, 37.95.227, 37.106.2506, 37.111.104, 37.111.123, 37.111.305, 37.111.339, 37.111.504, 37.111.523, and repeal of 37.111.1001, 37.111.1002, 37.111.1003, 37.111.1010, 37.111.1011, 37.111.1012, 37.111.1013, 37.111.1021, 37.111.1022, 37.111.1023, 37.111.1024, 37.111.1025, 37.111.1101, 37.111.1102, 37.111.1105, 37.111.1112, 37.111.1113, 37.111.1114, 37.111.1115, 37.111.1130, 37.111.1131, 37.111.1132, 37.111.1133, 37.111.1138, 37.111.1139, 37.111.1140, 37.111.1141, 37.111.1142, 37.111.1143, 37.111.1147, 37.111.1148, 37.111.1149, 37.111.1150, 37.111.1151, 37.111.1152, 37.111.1153, 37.111.1154, 37.111.1155, 37.111.1156, 37.111.1158, 37.111.1159, 37.111.1160, and 37.111.1161 pertaining to swimming pools, spas, and other water features

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NOTICE OF ADOPTION, AMENDMENT, AND REPEAL

TO:  All Concerned Persons

 

1.  On May 14, 2009, the Department of Public Health and Human Services published MAR Notice No. 37-471 pertaining to the public hearing on the proposed adoption, amendment, and repeal of the above-stated rules at page 604 of the 2009 Montana Administrative Register, Issue Number 9, and on July 16, 2009 published MAR Notice No. 37-471 pertaining to the notice of the second public hearing and extension of comment period on proposed adoption, amendment, and repeal on page 1104 of the 2009 Montana Administrative Register, Issue Number 13.

 

2.  The department has amended ARM 37.5.117, 37.5.304, 37.95.127, 37.95.227, 37.106.2506, 37.111.104, 37.111.123, 37.111.305, 37.111.339, 37.111.504, and 37.111.523; adopted New Rule I (37.115.101), XII (37.1115.308), XXI (37.115.321), XXIV (37.115.502), XXVI (37.115.504), XXVII (37.115.505), XXVIII (37.115.506), XXXII (37.115.510), XXXVI (37.115.517), XXXVIII (37.115.519), XLI (37.115.523), XLIII (37.115.602), XLIV (37.115.603), XLVIII (37.115.702), XLIX (37.115.703), L (37.115.705), LI (37.115.706), LIV (37.115.802), LVII (37.115.807), LX (37.115.904), LXIII (37.115.1001), LXX (37.115.1009), LXXIII (37.115.1012), LXVI (37.115.1017), LXXVIII (37.115.1021), LXXX (37.115.1103), LXXXII (37.115.1202), LXXXIII (37.115.1203), LXXXV (37.115.1302), LXXXVII (37.115.1305), XCI (37.115.1310), XCII (37.115.1311), XCIX (37.115.1404), C (37.115.1405), CII (37.115.1501), CIV (37.115.1505), CV (37.115.1507), CVIII (37.115.1603), CIX (37.115.1604), CX (37.115.1701), CXI (37.115.1702), CXII (37.115.1703), CXIII (37.115.1704), CXV (37.115.1803), CXVI (37.115.1804), CXVII (37.115.1805), CXVIII (37.115.1806), CXIX (37.115.1807), CXX (37.115.1808), CXXII (37.115.1810) ,CXXVIII (37.115.1817), CXXIX (37.115.1819), CXXXI (37.115.1823), CXXXIII (37.115.1825), CXXXIV (37.115.1826), CXXXV (37.115.1827), CXXXVI (37.115.1828), CXXXVII (37.115.1835), CXXXIX (37.1151.1837), CXLI (37.115.1839), CXLIV (37.115.1846), CXLVI (37.115.1901), CXLVII (37.115.1902), CXLVIII (37.115.1903), CL (37.115.1907), CLI (37.115.1909), CLII (37.115.1910), CLIII (37.115.1911), CLV (37.115.2001), CLVI (37.115.2002), CLVII (37.115.2003), CLVIII (37.115.2101), CLX (37.115.2103), CLXI (37.115.2104), CLXII (37.115.2105), CLXIII (37.115.2201), CLXIV (37.115.2203), CLXV (37.115.2205), CLXVI (37.115.2207), and CLXVIII (37.115.2211) as proposed; and repealed ARM 37.111.1001, 37.111.1002, 37.111.1003, 37.111.1010, 37.111.1011, 37.111.1012, 37.111.1013, 37.111.1021, 37.111.1022, 37.111.1023, 37.111.1024, 37.111.1025, 37.111.1101, 37.111.1102, 37.111.1105, 37.111.1112, 37.111.1113, 37.111.1114, 37.111.1115, 37.111.1130, 37.111.1131, 37.111.1132, 37.111.1133, 37.111.1138, 37.111.1139, 37.111.1140, 37.111.1141, 37.111.1142, 37.111.1143, 37.111.1147, 37.111.1148, 37.111.1149, 37.111.1150, 37.111.1151, 37.111.1152, 37.111.1153, 37.111.1154, 37.111.1155, 37.111.1156, 37.111.1158, 37.111.1159, 37.111.1160, and 37.111.1161 as proposed.

 

            3.  The department will not be adopting New Rule XI, XXIII, and LXII at this time.

 

4.  The department has adopted the following rules as proposed with the following changes from the original proposal.  Matter to be added is underlined.  Matter to be deleted is interlined.

 

            RULE II (37.115.104)  REQUIRED UPGRADING TO EXISTING FACILITIES AND OPERATIONS  (1)  Existing licensed public swimming pools, spas, or other water features that were in use or under construction prior to March 1, 2010 and which do not fully comply with the upgraded requirements for the physical plants set out in ARM Title 37, chapter 115, subchapter 5 through 10, but met the rules in effect at the time of construction, may continue to be operated as long as the facility meets the requirements of the grandfather clause in ARM 37.115.1905 and the operating requirements in this chapter, poses no significant health or safety risks, and is operated and maintained as designed, except that:

            (a) remains as proposed.

            (b)  Existing public swimming pools, spas, and other water features, must comply with the barrier requirements set out in ARM 37.115.601, 37.115.602, and 37.115.603 by March 1, 2010 December 31, 2010, or later date set in these rules.  Facilities that do not meet this requirement will not be licensed after December 31, 2009 2011.

            (c)  Existing wading pools that are permanent structures and that use the daily fill and drain method of operation in conjunction with hand or manual chlorination shall not be licensed and may not operate after December 31, 2009 2010.  No wading pool may be operated between adoption of these rules and December 31, 2009, until unless the wading pool complies with the requirements of the Virginia Graeme Baker Pool and Spa Safety Act, 15 USC 8001-8005 (2007) (VGBPSSA).

            (d)  Diving boards may not be used in any pool designed before or after March 1, 2010 until the pool and diving board meets the requirements of ANSI-I-1991 or ARM 37.115.801 through 37.115.807.

            (e)  License holders of indoor pools, spas, or other water features that currently use isocyanurates or cyanuric acid forms of chlorine stabilized with cyanuric acid as a disinfectant must convert to a different disinfectant system no later than March 1, 2011.

            (f)  Under the provisions of the Virginia Graeme Baker Pool and Spa Safety Act VGBPSSA, existing pools and spas are required to now be in compliance with the applicable standards set out in 15 USC 8001-8005.  Pools, spas, or other water features that have drains that are not in compliance with these requirements may not operate until they are brought into compliance.  Licensees must submit certification to the department on or before March 1, 2011 that the drains are in compliance with the Virginia Graeme Baker Pool and Spa Safety Act.  If that certificate is not provided to the department by that date, the pool, spa, or other water feature may not operate until the certificate is provided even if the drain complies with federal law.

            (2)  All swimming pools, spas, and other water features must meet the operating requirements set in these rules with the following exception:

            (a)  current licensees of any swimming pools, spas, or other water features, do not need to meet the requirement of having an operator who meets the qualifications set in ARM 37.115.1101 until January 1, 2011 December 31, 2011.

 

AUTH:  50-53-103, MCA

IMP:     50-53-101, 50-53-102, 50-53-103, 50-53-104, 50-53-106, 50-53-107, MCA

 

            RULE III (37.115.105)  DEFINITIONS  In addition to the definitions in 50-53-102, MCA, the following definitions apply to these rules.

            (1) through (25) remain as proposed.

            (26)  "Certified pool operator" means someone who has successfully completed the Certified Pool Operator (CPO) course sanctioned by the National Swimming Pool Foundation, the Aquatic Facility Operator (AFO) course sanctioned by the National Recreation and Park Association, or an equivalent course approved by the department.  A certified pool operator must be currently certified, recertified, or must have obtained any Continuing Education Units (CEUs) required by the sanctioning organization.

            (27) through (32) remain as proposed.

            (33)  "Circulation equipment" means the mechanical components that are a part of a circulation system on a pool, spa, or other water feature.  The components have different functions but when connected to each other by piping, perform as a coordinated system for purposes of maintaining water in a clear, sanitary, and desirable condition.  The term "recirculation" may be used interchangeable with the term "circulation".  Some components of circulation equipment include, but are not limited to:

            (a) through (72) remain as proposed.

            (73)  "Invited guest" means an individual who is visiting a family member or friend and uses the privately owned private pool, spa, or other water feature upon invitation.

            (73) through (78) remain as proposed but are renumbered (74) through (79).

            (79) (80)  "lifeguard" means a qualified person who is responsible for supervision and lifesaving at a licensed public bathing place or public swimming pool.  Under this chapter, "lifeguard" means either a certified lifeguard or a licensed lifeguard with the following certification or training as set forth in ARM 37.115.1604.

            (80) through (85) remain as proposed but are renumbered (81) through (86).

            (87)  "Nonself-contained hot tub" means a hot tub that is made of an acrylic or thermoplastic shell molded at the factory to comfortably fit the body's contours.  It does not have water heating and circulating equipment as an integral part of the product, and may employ separate components such as an individual filter, pump, heater, and controls or assembled combinations of various components.

            (86) through (104) remain as proposed but are renumbered (88) through (106).

            (105) (107)  "Public swimming pool" means an artificial pool and related facilities for swimming, bathing, wading, or other aquatic therapy or recreation.  The term includes, but is not limited to, natural hot water pools, spas, splash decks, water slides, lazy rivers, and wave pools.  The term does not include swimming pools located on private property, including the private common area property of owner-occupied condominium developments that is used for swimming or bathing only by the owner, members of the owner's family, or their invited guests.  The term also does not include medicinal hot water baths for individual use.  For purposes of these rules, a "swimming pool" or "pool" is either a privately owned public swimming pool or spa, or a public swimming pool as defined here:

            (a) remains as proposed.

            (b)  "Public swimming pool or spa" means any swimming pool, spa, or other water feature operated by a person as owner, licensee, lessee, or concessionaire, whether or not a fee is charged.  Any person who is charged money or any other consideration to use the pool is not an invited guest for the purposes of this definition.  Swimming pools are classified as Class A - D and Types VI - IX and Type N in [RULE XXIII] and Table 4.  See Table 3 for minimum water envelopes for diving pools.

            (106) through (112) remain as proposed but are renumbered (108) through (114).

            (113) (115)  "Remodel" or "renovate" mean a substantial or material alteration.  In the context of these rules, the terms mean the activity of restoring or upgrading all or part of a public bathing place or public swimming pool structure and its component parts including, but not limited to, the rebuilding and/or replacement of worn and broken components.  Remodeling or renovation may include rebuilding or replacing pipes, system components that are not identical or substantially similar to existing components such as pipes, drains, filtration systems, disinfectant systems, circulation systems, and/or pool decks that use different materials or different from the existing component or design.  The terms do not include painting, replacing tile or caulk, or other such cosmetic changes, or replacing a worn or broken component for the same component, such as replacing a pump with a pump that is identical or substantially similar.

            (114) through (123) remain as proposed but are renumbered (116) through (125).

            (124) (126)  "Self-contained hot tub" means a hot tub that has a cabinet that houses the controls, the pump, heater, and filter.  Most portable hot tubs are made of an acrylic thermoplastic shell and are surrounded by a cabinet made of wood, alternative wood, or thermoplastic.  It can be moved to another location and reinstalled, and all control, water heating, and water circulating equipment are an integral part of the product.  It may be permanently wired or cord connected.  It is also known as a "portable hot tub".  Nonself-contained hot tub means a hot tub that is made of an acrylic or thermoplastic shell molded at the factory to comfortably fit the body's contours.  It does not have water heating and circulating equipment as an integral part of the product, and may employ separate components such as an individual filter, pump, heater, and controls, or assembled combinations of various components.

            (125) through (139) remain as proposed but are renumbered (127) through (141).

            (140) (142)  "Splash deck" means a constructed area over which water is sprayed or jetted to contact bathers, but is not allowed to pool gather and stand.  A splash deck may also be known as an "Interactive Play Attraction", a "spray pool", or a "zero depth spray pool".

            (141) through (160) remain as proposed but are renumbered (143) through (162).

            (163)  "Virginia Graeme Baker Pool and Spa Safety Act" (VGBPSSA) means the Virginia Graeme Baker Pool and Spa Safety Act, 15 USC 8001-8005 (2007).

            (161) through (169) remain as proposed but are renumbered (164) through (172).

            (170) (173)  "Zero depth pool" means a pool with a sloping entry starting above the water line at deck level and ending below the water line.  There is no depth to the pool at the point a swimmer enters the water.  It is also known as a "beach entry".

            (171)  "Zero depth spray pool" means an area where water is dispersed using a fountain or similar installation and in which the water that is sprayed does not accumulate on the ground.  The water from a zero depth spray pool may be recirculated or drained to waste.  The water must be chlorinated or must come from an approved municipal water system.  A zero entry spray pool may also be known as a splash deck or as a spray pool.

 

AUTH:  50-53-103, MCA

IMP:     50-53-101, 50-53-102, 50-53-103, 50-53-104, 50-53-106, 50-53-107, MCA

 

RULE IV (37.115.201)  ADOPTION OF ANSI/NSPI STANDARDS  (1)  Unless otherwise specified in the a rule, the following American National Standards Institute, American Society of Mechanical Engineers, National Sanitation Foundation International, American Society of Testing Materials, and American Society of Heating, Refrigeration, and Air-Conditioning Engineers (ANSI/NSPI) standards and codes are adopted by reference and apply to all new construction or remodeling or renovation of existing facilities:

            (a) through (c) remain as proposed.

            (d)  ANSI/NSPI-8 1996 Model Barrier Code for Residential Swimming Pools, Spas, and Hot Tubs; approved December 19, 1995 and published by National Spa and Pool Institute (now Association of Pool & Spa Professionals), 2111 Eisenhower Avenue, Suite 500, Alexandria VA 22314-4695;

            (e) (d)  ANSI/IAF APSP-9 2005 American National Standard for Aquatic Recreational Facilities; approved October 7, 2004, and published by International Aquatic Foundation, P.O. Box 4038, Alexandria VA 22303;

            (f) through (i) remain as proposed but are renumbered (e) through (h).

 

AUTH:  50-53-103, MCA

IMP:      50-53-101, 50-53-102, 50-53-103, 50-53-104, 50-53-106, 50-53-107, MCA

 

            RULE V (37.115.301)  CRITICAL HEALTH AND SAFETY VIOLATIONS THAT REQUIRE IMMEDIATE CLOSURE  (1)  The following items are critical health and safety violations that require a pool owner or operator to immediately close a swimming pool, spa, or other water feature and related facilities until the safety violations have been resolved:

            (a) and (b) remain as proposed.

            (c)  sanitizer falls outside the parameters set in ARM 37.115.1308, Table 7 6;

            (d) through (e) remain as proposed.

            (f)  pool clarity falls outside the parameters set in ARM 37.115.1308, Table 7 6, or is insufficient to allow an observer to see the main drain from anywhere in or around the pool;

            (g) remains as proposed.

            (h)  there are not lifeguards or attendants on duty in required numbers where lifeguards or attendants are required;

            (i) through (m) remain as proposed.

            (n)  at an outdoor pool, when thunder is heard, the pool shall close and remain closed until 30 minutes after the last thunder clap is heard, or when one or more lightning flashes is observed, the pool shall remain closed for one hour after the last lightning flash is observed; and/or

            (o)  a drowning or other serious accident has occurred and emergency responders or investigators are still present to render aid to the victim or to gather evidence.;

            (p)  pH of the water is higher than 7.8 and the chlorine or bromine reading is at or near the minimum required levels; and

            (q)  the main drain does not comply with the requirements of the VGBPSSA or if, after March 1, 2011, the department has not been provided with certification from an engineer licensed in Montana that the main drain complies with the requirements of the VGBPSSA.

            (2) through (5) remain as proposed.

 

AUTH:  50-53-103, MCA

IMP:      50-53-101, 50-53-102, 50-53-103, 50-53-104, 50-53-106, 50-53-107, MCA

 

            RULE VI (37.115.302)  HEALTH AND SAFETY VIOLATIONS THAT MAY REQUIRE IMMEDIATE POOL CLOSURE  (1)  The department may order a swimming pool, spa, or other water feature immediately closed where there have been repeated or ongoing or a combination of the following health and safety violations:

            (a)  pH of the water is higher than 7.8 and the chlorine or bromine reading is at or near minimum required levels;

            (b) through (d)(iii) remain as proposed but are renumbered (a) through (c)(iii).

            (d)  if, during an inspection, the department requests the facility to contact its certified pool operator by telephone and the certified pool operator does not respond within 30 minutes.

            (2) and (3) remain as proposed.

 

AUTH:  50-53-103, MCA

IMP:      50-53-101, 50-53-102, 50-53-103, 50-53-104, 50-53-106, 50-53-107, MCA

 

            RULE VII (37.115.303)  REQUIRED INSTALLATION OF ULTRAVIOLET DISINFECTANT SYSTEM  (1)  In instances in which a swimming pool, spa, or other water feature has more than ten two users contract waterborne disease such as crytosporadia cryptosporidium or giardia within a period of 30 days the department may require the licensee of a pool, spa, or other water feature licensee to develop a corrective action plan and submit to the department for approval approved by the department.

            (2)  If the corrective action fails to bring the disease outbreak under control, the department may will require that the facility install and utilize an ultraviolet disinfectant system as a secondary disinfectant system or other type of additional disinfection approved by the department that has been proven to control disease outbreaks as a secondary disinfectant system.

            (3)  Any licensee operating a splash deck or related water feature is required to install a secondary ultraviolet disinfection system approved by NSF and installed according to the manufacturer's directions into the main water line of the filtration system.

 

AUTH:  50-53-103, MCA

IMP:      50-53-101, 50-53-102, 50-53-103, 50-53-104, 50-53-106, 50-53-107, MCA

 

            RULE VIII (37.115.305)  PLAN REVIEW REQUIRED FOR POOLS, SPAS, AND OTHER WATER FEATURES  (1)  Complete plans and specifications for work or installation must be submitted to the Montana Department of Public Health and Human Services for review and approval before any construction begins or before any change is made to the existing facility whenever the owner or operator of a public swimming pool, spa, or other water feature intends to:

            (a) remains as proposed.

            (b)  install equipment or replace existing equipment with components that are not identical or substantially similar or are new to the design at the location of the pool, spa, or other water features.

            (2) remains as proposed.

            (3)  The plan review checklist form, plans and specifications, and the applicable plan review fee, shall be submitted to the Food and Consumer Safety Section, Department of Public Health and Human Services, 1400 Broadway, Helena, Montana  59620, or to the local health department agency at least:

            (a) remains as proposed.

            (b)  30 days prior to the anticipated installation date of new or replacement equipment which is new to the facility design and has not been previously approved.

            (4)  Whenever a piece of equipment is replaced with equipment that is identical or substantially similar, the licensee must notify the department, in writing, within 30 days.

 

AUTH:   50-53-103, MCA

IMP:      50-53-103, MCA

 

            RULE IX (37.115.306)  QUALIFICATIONS REQUIRED FOR PERSONS PREPARING PLANS FOR REVIEW  (1)  Plans, specifications, and supporting data for design of a new pool, spa, or other water feature or for reconstruction or remodeling of a currently operating pool, spa, or other water feature must be prepared by a professional engineer who is registered in Montana., an architect who is registered in Montana, or a construction contractor registered in Montana.  A The licensed professional engineer or a registered architect shall include his seal and signature on any plans and specifications submitted to the health authority.  Stamps or seals may be provided electronically.  A registered construction contractor shall include an original signature on any plans and specifications submitted to the health authority. 

            (2)  Plans for all municipal pools and for all other pools exceeding 2000 square feet total in size, pools more than 70 feet long in one dimension, or pools that include lazy rivers, slide pools, or wave pools, or other complex designs must be stamped by a Professional Engineer or an American Institute of Architecture (AIA) licensed architect.  Stamps or seals may be provided electronically.  Plan specifications and supporting data for any facilities related to operation of a pool, spa, or other water feature, such as restrooms or bathhouses, may be submitted by a licensed architect or by a registered construction contractor as long as the design meets all applicable building codes and as long as all applicable permits have been obtained.

            (3)  Any plans for any slide structure must be reviewed and approved by a licensed structural engineer licensed in the state of Montana and the plan for the slide must include his seal.

            (4)  It is the responsibility of any builder, engineer, or architect involved in the construction of a new facility or involved in the design or reconstruction of a major remodel of any pool, spa, or other water feature, to ensure that all requirements of these rules are met.

 

AUTH:  50-53-103, MCA

IMP:     50-53-103, MCA

 

            RULE X (37.115.307)  SCOPE OF REVIEW BY THE DEPARTMENT 

            (1)  remains as proposed.

            (2)  In reviewing whether a plan complies with all applicable standards, the The department may conduct preliminary inspections of any construction or of any reconstruction to any existing pool, spa, or other water feature during the construction or reconstruction and upon completion to determine whether the design and construction or reconstruction complies with the plans that were submitted.

            (3) through (3)(c) remain as proposed.

            (4)  In any instance in which there is a conflict between the requirements set in these rules or requirements set by another agency that has jurisdiction over some aspect of the design, construction, or operation of a pool, spa, or other water feature, or related facility, the more stringent requirement must be met.

            (5)  If the department determines it is necessary to have an engineering review conducted on facets of the design including, but not limited to, such things as the total dynamic head (TDH), pipe flow velocities, air exchange, or other complex calculations, it may contact with an engineering firm to conduct that portion of the plan review.  Costs for such an engineering review will be charged to the applicant or licensee and must be paid to the department before the license is issued.

 

AUTH:   50-53-103, MCA

IMP:      50-53-103, MCA

 

            RULE XIII (37.115.309)  INCOMPLETE PLAN REVIEW APPLICATIONS 

            (1) and (2) remain as proposed.

            (3)  If the department is required to send a second or subsequent letter requesting that the applicant submit previously identified items, the packet review fee set in [RULE XIV] will be charged each time the department must review the submissions to determine if they are yet complete and must then notify the applicant that items are still missing from the plan review application packet.

            (4)  (3)  The department may request, in writing, that the applicant provide additional information pursuant to [RULE XII].  Any such request will be made by the department as soon as practicable.  In some circumstances the department may need information in addition to what the applicant is asked for in the plan review packet to submit.  In those cases, the department will require additional information as soon as practicable.  Where the department has requested this additional information, review of the remainder of the plan review checklist packet and supporting documents will continue to the extent possible while the department waits to receive the additional information.  No additional fee for reviewing an incomplete application will be charged in these circumstances.

 

AUTH:   50-53-103, MCA

IMP:      50-53-103, MCA

 

            RULE XIV (37.115.311) BASE FEE TABLE

 

Table 1.

 

Type

Square Footage

Fee(s)

Swimming Pool

Less than 500 sq. ft.

$175

Swimming Pool

500-999

$275

Swimming Pool

1,000-1,999

$385

Swimming Pool

2,000-3,999

$550

Swimming Pool

4,000+ sq. ft.

$625

Spa pool

Less than 500 sq. ft.

$175

Spa pool

500 sq. ft. or larger

$275

Wading pool

 

$175

Spray attraction

By size, see above

 

Lazy river

By size, see above

 

Wave pool

By size, see above

 

Other pools not listed above

By size, see above

 

Filter system change

 

$75

Disinfection system change

 

$75

Remodel or renovations

 

$300+$75/hour over 4 hours review time

Incomplete application

 

After the department has on one occasion notified the applicant in writing of items from the plan review that still need to be submitted, a $75 fee will be assessed for each subsequent notification listing previously identified missing items.

Fee for interim plan  review conducted as determined needed under [RULE XIX] to determine if construction is complying with submitted plans

 

$200

Fee for inspection for final plan approval before opening or large or complex projects

Facilities with multiple water features

$300

Fee for additional review of plan and facility to determine if licensee or license applicant has corrected previously identified deficiencies

 

$75/hour for actual review time

Fee for department to review requested changes to an approved plan

 

$75/hour for actual review time

Engineering review

 

reasonable fees

Fee for final inspection of small project plans to determine if construction complied with plan

Spa less than 810 sq. ft. or pool less than 20,000 gallons

$60

 

Type

Design Volume

Plan Review Fees

Pre-opening Inspections and Interim Visit Fees

Pool, Spa, Wading Pool, Spray Attraction, Lazy River, Others

Less than 4,000 gallons;

 

$200

$60

Pool, Spa, Wading Pool, Spray Attraction, Lazy River, Others

4,000 – 9,999 gallons

$400

$80

Pool, Spa, Wading Pool, Spray Attraction, Lazy River, Others

10,000 gallons or more

$600

$100

Review Fees for a Substantial Modification to Existing Filtration or Disinfection systems

 

$75

 

Engineering Review

 

$75

 

 

AUTH:  50-53-103, MCA

IMP:     50-53-103, MCA

 

            RULE XV (37.115.312)  PAYMENT OF PLAN REVIEW FEES  (1)  The applicant shall submit any required fee identified in Table 1 based on square footage of specific type of pool, spa, or other water feature in ARM 37.115.311 to the department at the time the plan review checklist and supporting documents are submitted.  Pools not located on contiguous properties are considered separate projects for purposes of the fee schedule.  Plan review will not begin until the fee is received.

            (2)  After the first time that a notice of incomplete application is sent to the applicant identifying items that are missing and needed for review, each time a subsequent notice is sent to the applicant identifying one or more of those items as still missing, a $75 incomplete plan review fee must be submitted with the additional materials that are subsequently provided to the department.  Plan review will not begin until the fee is received.

            (3) remains as proposed but is renumbered (2).

 

AUTH:   50-53-103, MCA

IMP:      50-53-103, MCA

 

            RULE XVI (37.115.313)  OUTSIDE ENGINEERING REVIEW FEES 

            (1)  The department may incur reasonable  engineering fees for an engineering consultation on aspects of the application for plan review that are beyond the in-house expertise of department personnel, including, but not limited to, such things as the total dynamic head (TDH), pipe flow velocities, air exchange, or other complex calculations.

            (2)  If the department contracts with an engineering firm to conduct an engineering review, the applicant will be required to reimburse the department for those the engineering costs based upon the costs charged to the department by the engineering firm charges the department for the engineering review.  This fee is in addition to any other applicable review fees set out in ARM 37.115.311, Table 1.

            (3) remains as proposed.

 

AUTH:   50-53-103, MCA

IMP:      50-53-103, MCA

 

            RULE XVII (37.115.314)  PAYMENT OF REVIEW FEES  (1) remains as proposed.

            (2)  If the department requires plan review at identified phases of construction of water parks or complex projects to ensure that the construction is in compliance with the plans, a fee of $200 any interim fee outlined in Table 1 must be paid at the time of each such additional review.  The fee applies to each pool, spa, or other water feature.

            (3)  The plan review fee for any pre-opening or final plan review of a swimming pool, complex, water park, or other complex project is $300 spa, or other water feature is outlined in Table 1.  That A pre-opening fee encompasses the review of all applies to each pools, spas, or other water features opening at the facility to ensure that construction is in compliance with the plan.

            (4)  A fee of $60 will be charged for a pre-opening or final review for a simple project such as a spa less than 800 gallons in size or a swimming pool less than 20,000 gallons in size.

 

AUTH:  50-53-103, MCA

IMP:     50-53-103, MCA

 

            RULE XVIII (37.115.316)  PLAN REVIEW APPROVAL AND EXTENSIONS              (1)  Plan review approval by the department is valid for one two years and substantial and continuous construction must be initiated within 12 months of the date of approval.

            (2)  If substantial and continuous construction has not been initiated within 12 months from the date of the department's plan approval, the owner must obtain an extension in writing from the department.  In no case shall an extension of the plan approval be granted for more than six 18 months beyond the one year expiration date of the original approval.  The department is not required to approve a request for an extension of the plan approval.

            (3) remains as proposed.

 

AUTH:   50-53-103, MCA

IMP:      50-53-103, MCA

 

            RULE XIX (37.115.317)  PLAN REVIEW DURING CONSTRUCTION PHASE 

            (1) remains as proposed.

            (2)  Depending upon the complexity of the project, the department may require interim site visit reviews to be conducted at phases of construction that the department identifies to the applicant during the initial plan review.

            (3) through (5) remain as proposed.

 

AUTH:   50-53-103, MCA

IMP:      50-53-103, MCA

 

            RULE XX (37.115.319)  CERTIFICATION AND DEVIATIONS CHANGES FROM ORIGINALLY APPROVED PLANS AND FINAL CERTIFICATION  (1)  The pool or spa and related facilities shall be built in accordance with the plans as approved unless a modification of the approved plans is approved in writing by the department prior to construction or installation of the modification.

            (2)  The department's fee for conducting a review of a change to an approved plan schematic or disinfectant system will be calculated and assessed at a rate of $75 per hour $75.

            (3)  Within 30 days of the completion and licensing of any swimming pool, spa, or other water feature or related facilities, the architect, or the professional engineer, or contractor of record, overseeing the project must submit a final certification to the department.  The certification shall be submitted in the form of an "as-built" letter to the department indicating that the facility was built according to the plans submitted or which identifies and documents any changes that were made on-site that identifies any changes that were made from the originally approved plans and it shall include scaled drawings that incorporate any changes that were made.  The scaled plans and the "as built" letter shall be submitted to the department in hard copy and electronic copy.  The electronic copy must be submitted in a format acceptable to the department.  Any change from the approved plans must still meet all requirements of these rules.

 

AUTH:   50-53-103, MCA

IMP:      50-53-103, MCA

 

            RULE XXII (37.115.323)  UNAPPROVED CONSTRUCTION OR INSTALLATION  (1) through (3) remain as proposed.

            (4)  If construction, renovation, alteration, or installation of the pool structure, equipment, or other components, other than replacing an existing part with a part or component that is identical or substantially similar, was completed before obtaining the required approval from the department and it is determined upon review that one or more aspect of the construction, renovation, alteration, or installation of equipment does not comply with these rules, no license will be granted for operation of the facility until the owner or license applicant takes any and all steps necessary to bring the pool, spa, or other water feature into compliance with the rules.  No member of the public may be allowed to use the pool, spa, or other water feature until the department has determined that it is in compliance with these rules and a license has been issued.

 

AUTH:   50-53-103, MCA

IMP:      50-53-103, MCA

 

            RULE XXV (37.115.503)  MATERIALS  (1) remains as proposed.

            (2)  Nontempered window glass is prohibited in the entrance of close proximity to any pool, spa, or other water feature.

            (3) remains as proposed.

 

AUTH:  50-53-103, MCA

IMP:     50-53-101, 50-53-102, 50-53-103, 50-53-104, 50-53-106, 50-53-107, MCA

 

            RULE XXIX (37.115.507)  LEDGES AND BENCHES  (1) through (2)(e) remain as proposed.

            (3)  In any nonspa pools with a benches along the side of any wall, markings on the deck must be provided to indicate that there is a bench below the water surface by marking the deck in lettering that is at least four inches tall and in a contrasting color, stating "Caution: Bench".

 

AUTH:  50-53-103, MCA

IMP:      50-53-101, 50-53-102, 50-53-103, 50-53-104, 50-53-106, 50-53-107, MCA

 

            RULE XXX (37.115.508)  DRAINS AND SUCTION OUTLETS 

            (1) remains as proposed.

            (2)  All pools, spas, and other water features constructed after March 1, 2010, shall have dual or multiple main drains.

            (3)  Drain covers must meet the requirements of ASME A112.19.8 (2007). 

            (4) remains as proposed but is renumbered (3).

            (5) (4)  All main drains and suction outlets of any pool, spa, or other water feature must meet the requirement of the Virginia Graeme Baker Pool and Spa Safety Act, H.R. HR6 303-309 (2007) 15 USC 8001-8005 (2007), or the pool, spa, or other water feature may not be operated.

            (5)  No pool, spa, or other water feature may operate after March 1, 2011 unless the licensee submits written certification to the department from an engineer licensed in the state of Montana, that documents that the drains and suction outlets meet the requirements of the Virginia Graeme Baker Pool and Spa Safety Act, even if the pool, spa, or other water feature meets those requirements.

 

AUTH:  50-53-103, MCA

IMP:      50-53-101, 50-53-102, 50-53-103, 50-53-104, 50-53-106, 50-53-107, MCA

 

            RULE XXXI (37.115.509)  DEPTH MARKERS  (1)  The water depth shall be plainly marked in units of feet and inches at or above the water surface on the vertical pool wall and on the flat edge of the deck or walk next to the pool.

            (2) through (6) remain as proposed.

 

AUTH:  50-53-103, MCA

IMP:      50-53-101, 50-53-102, 50-53-103, 50-53-104, 50-53-106, 50-53-107, MCA

 

            RULE XXXIII (37.115.511)  VENTILATION  (1)  All bathhouses, dressing rooms, shower rooms, toilet rooms, and indoor pools, spas, and other water features Pools built before [the effective date of this rule] must provide air turnover that is adequate to prevent the buildup of odors, excessive condensation, and chloramines.

            (2)  Bathhouses, dressing rooms, shower rooms, and toilet rooms constructed or renovated after [the effective date] shall meet the following ventilation requirements: 

            (a)  air temperatures on indoor facilities shall be kept within a range of 1ºF to 3ºF warmer than the water temperature;

            (b)  relative humidity on indoor facilities should be kept near 50 percent;

            (c)  ventilation rates on indoor facilities should be at least eight complete air exchanges per hour;

            (d)  air supply should be 100 percent fresh air, but never less than 40 percent fresh air with the capability of bringing in 100 percent fresh air when needed during peak usage times or when attempting breakpoint chlorination; and

            (e) (2)  vVentilation in pools built after March 1, 2010 must meet ventilation requirements of the American Society of Heating, Refrigerating and Air-Conditioning Engineers (ASHRAE) or the building code in force for that location for air turnover, or the requirements listed immediately above, whichever is more stringent.

 

AUTH:  50-53-103, MCA

IMP:      50-53-101, 50-53-102, 50-53-103, 50-53-104, 50-53-106, 50-53-107, MCA

 

            RULE XXXIV (37.115.513)  LIGHTING  (1)  All indoor pools, spas, or other public bathing places, and all outdoor pools, spas, and public bathing places operating at night shall have safe and adequate artificial lighting sufficient to meet the clarity as requirements of [RULE XCV].  All indoor pools, spas, or other water features and their decking areas that operate at night or that have insufficient natural light to meet the clarity requirements in ARM 37.115.1315 must install and use safe artificial light that is adequate to meet those clarity requirements at all times during operation of the pool, spa, or other water feature.  Such lights shall be spaced to provide illumination so that all portions of the pool, spa, or other water feature, including the bottom, may be readily seen without glare.

            (2) remains as proposed.

 

AUTH:  50-53-103, MCA

IMP:      50-53-101, 50-53-102, 50-53-103, 50-53-104, 50-53-106, 50-53-107, MCA

 

            RULE XXXV (37.115.515)  MAXIMUM FACILITY OCCUPANCY LIMITS BATHER LOAD  (1) and (2) remain as proposed.

 

Table 2.  Maximum user bather load, pools, and other water features.

 

AUTH:  50-53-103, MCA

IMP:      50-53-101, 50-53-102, 50-53-103, 50-53-104, 50-53-106, 50-53-107, MCA

 

            RULE XXXVII (37.115.518)  DECK SURFACES  (1) through (3) remain as proposed.

            (4)  If deck carpet is used six feet or more away from the pool, spa, or other water feature, it must be clean, dry, and be maintained in good repair and the deck must slope away from the carpet.

            (5)  Where deck carpet is used, the deck must slant away from the carpet.

 

AUTH:  50-53-103, MCA

IMP:     50-53-101, 50-53-102, 50-53-103, 50-53-104, 50-53-106, 50-53-107, MCA

 

            RULE XXXIX (37.115.521)  HOSE CONNECTIONS  (1)  Hose connections or plumbing equipped with vacuum breakers backflow prevention shall be installed at intervals that enable all parts of any swimming pool or spa area to be reached with a hose no longer than 50 feet.  The installed backflow prevention must be adequate to withstand the water pressure needed for the length of hose in use and to prevent back siphonage into the potable water supply system.

            (2) remains as proposed.

            (3)  Care must be taken so the dDeck wash material and debris is shall not be washed into the pool, spa, or other water feature. 

 

AUTH:  50-53-103, MCA

IMP:      50-53-101, 50-53-102, 50-53-103, 50-53-104, 50-53-106, 50-53-107, MCA

 

RULE XL (37.115.522)  WATER SUPPLY  (1)  The department hereby adopts and incorporates by reference ARM 17.38.207, stating maximum microbiological contaminant levels for public water supplies, and the following Department of Environmental Quality publications setting construction, operation, and maintenance standards for springs, wells, and cisterns, respectively:

(a)  Circular #11, "Springs";

(b)  Circular #84-11, "Minimum Design Standards for Small Water Systems"; and

(c)  Circular #17, "Cisterns for Water Supplies".  Copies of ARM 17.38.207 and Circulars #11, #84-11, and #17 may be obtained from the Department of Public Health and Human Services, Health Policy and Services Division, Food and Consumer Safety Section, 1400 Broadway, P.O. Box 202951, Helena, Montana  59620-2951.

(2)  In order to ensure an adequate and potable supply of water, a pool, spa, or other water feature must either:

(a)  connect to a water supply system meeting the requirements of ARM Title 17, chapter 38, subchapters 1, 2, and 5; or

(b)  if the pool, spa, or other water feature is not utilized for more than 25 persons daily at least 60 days out of the calendar year, including guests, staff, and residents; and an adequate public water supply system is not accessible; utilize a nonpublic system:

(i)  whose construction and use meet these standards set in Department of Environmental Quality Circular #84-11; or

(ii)  if construction of the establishment was commenced on or after June 28, 1985, which is designed by an engineer registered in Montana and determined by the department or the local health authority to provide assurance of an adequate and potable water supply equivalent to that in Circular #84-11; or

(iii)  if construction of the establishment was commenced prior to June 28, 1985, and utilizes a spring or cistern, which is operated and maintained in accordance with the standards set in either Department of Environmental Quality Circular #11 (for a spring) or Circular #17 (for a cistern), whichever is applicable.

(3)  If a nonpublic water supply system is used in accordance with (2)(b), an establishment must submit a water sample at least quarterly to a laboratory licensed by the department to perform microbiological analysis of public water supplies in order to determine that the water does not exceed the maximum microbiological contaminant levels stated in ARM 17.38.207, incorporated by reference in (1).

(4)  An establishment must replace or repair the water supply system serving it whenever the water supply:

(a)  contains microbiological contaminants in excess of the maximum levels contained in ARM 17.38.207, as incorporated by reference in (1); or

(b)  does not have the capacity to provide water adequate to meet the circulation requirements for sanitization of the water used in the pool, spa, or other water feature and with sufficient additional quantity for drinking, showering, other personal hygiene, laundry, and water-carried waste disposal.

(1)  An adequate and potable supply of water must be provided.  Water may be used from an approved public water supply system or from a source that meets the requirements of (2) and (3).

(2)  Before a license may be issued, an establishment using an individual, shared, or multiple user water supply must submit the following to the department or its designee coliform bacteria and nitrate test results that meet the requirements of ARM 17.38.207.

            (a)  A supplier of an individual, shared, or multiple user water supply shall conduct a coliform bacteria test of the system at least twice a year with one sample collected between April 1 through June 30 and the second sample collected between August 1 through October 31, and;

            (b)  conduct a nitrate test of the system at least once every three years.  Water tests must be analyzed at a certified laboratory.  A supplier shall keep sampling result records for at least three years.

            (3)  Nonpotable water sources must be marked "not for human consumption". 

            (4)  Plumbing must be installed and maintained in a manner to prevent cross connections between the potable water supply and any nonpotable or questionable water supply or any source of pollution through which the potable water supply might become contaminated.  The potable water system must be installed to preclude the possibility of backflow.  A hose may not be attached to a faucet unless a backflow prevention device is installed.

            (5)  A water supply system is determined to have failed and to require treatment, replacement, repair, or disinfection, when:

            (a)  it exceeds the maximum contamination levels allowed in ARM Title 17, chapter 38, subchapter 2.

            (6)  Extension, alteration, repair, or replacement of a water supply system or development of a new water supply system must comply with all applicable state and local laws.

            (7)  Bottled and packaged potable water may only be obtained from a licensed and approved source and shall be handled and stored in a manner that protects it from contamination.

 

AUTH:  50-53-103, MCA

IMP:      50-53-101, 50-53-102, 50-53-103, 50-53-104, 50-53-106, 50-53-107, MCA

 

            RULE XLII (37.115.601)  BARRIERS:  GENERAL REQUIREMENTS 

            (1)  Barriers shall be provided to prevent unauthorized persons from gaining access to public swimming pools, spas, and other water features and related facilities, except natural bodies of water.

            (2)  A barrier of durable material shall be provided outside the minimum required deck area of all outdoor public swimming pools, spas, and other water features.  The barrier must separate the public swimming pool, spa, or other water feature from all other areas and/or structures.

 

AUTH:  50-53-103, MCA

IMP:      50-53-101, 50-53-102, 50-53-103, 50-53-104, 50-53-106, 50-53-107, MCA

 

            RULE XLV (37.115.604)  BARRIERS FOR INDOOR POOLS  (1)  All entries to any indoor public swimming pool, spa, or other water feature must be equipped so that they can be locked at all times when there is no supervision of the swimming when the pool, spa, or other water feature is closed, to prevent unauthorized bathers from using the facilities.

 

AUTH:  50-53-103, MCA

IMP:      50-53-101, 50-53-102, 50-53-103, 50-53-104, 50-53-106, 50-53-107, MCA

 

            RULE XLVI (37.115.605)  DEADLINE FOR RETROFITTING BARRIERS IN EXISTING FACILITIES  (1)  Existing public swimming pools, spas, and other water features must install barriers that meet the requirements of these rules on or before January 1, 2010 December 31, 2011.

 

AUTH:  50-53-103, MCA

IMP:      50-53-101, 50-53-102, 50-53-103, 50-53-104, 50-53-106, 50-53-107, MCA

 

            RULE XLVII (37.115.701)  ENTRIES AND PLACEMENT OF STEPS AND LADDERS  (1) remains as proposed.

(2)  Where the distance from the pool or spa floor to the top of the wall is 24 inches or less, such areas shall be considered as providing their own natural mode for entry and exit.

(3) through (5) remain as proposed but are renumbered (2) through (4).

 

AUTH:  50-53-103, MCA

IMP:      50-53-101, 50-53-102, 50-53-103, 50-53-104, 50-53-106, 50-53-107, MCA

 

RULE LII (37.115.707)  HANDRAILS  (1)  When ladders, stairs, or recessed treads are provided to assist in entering or exiting a swimming pool, spa, or other water feature, handrails are required.  Handrails are required wherever ladders, stairs, or recessed treads are provided.

(2) and (3) remain as proposed.

(4)  The leading edge of a handrail that facilitates pool exit on stairs shall not be more than 18 inches back from the vertical face of the bottom riser.

(4)  A ladder installed to assist a person exiting a pool must be installed no less than three inches away from the pool wall and no more than five inches away from the pool wall.

(5)  The water level of the pool must be maintained at a sufficiently high level during operation that a handrail installed to assist a person existing a pool on a

ladder extends to within 12 inches of the surface of the water when the pool is being used.

 

AUTH:  50-53-103, MCA

IMP:      50-53-101, 50-53-102, 50-53-103, 50-53-104, 50-53-106, 50-53-107, MCA

 

            RULE LIII (37.115.801)  DIVING BOARDS - GENERALLY  (1) remains as proposed.

            (2)  Existing diving boards may not be used until documentation has been provided to the department showing that unless they meet manufacturer's specifications the requirement of ANSI-1-1991 or any manufacturer's specifications that are more stringent than ANSI-1-1991.

            (3) remains as proposed.

 

AUTH:  50-53-103, MCA

IMP:      50-53-101, 50-53-102, 50-53-103, 50-53-104, 50-53-106, 50-53-107, MCA

 

            RULE LV (37.115.804)  DIVING BOARDS - MINIMUM WATER DEPTHS AND MINIMUM DIVING ENVELOPE DESIGN REQUIREMENTS  (1)  Swimming pPools having diving equipment shall be designed to comply with the design requirements of Figure 2 and to provide at least the minimum water depths required in Table 3.

 

Figure 2.

This graph is being struck.

 

This graph is being added.

Diving envelope design requirements

 

RULE LVI (37.115.805)  DIVING BOARDS - MAXIMUM LENGTH OF DIVING BOARDS AND MAXIMUM HEIGHT ABOVE WATER MINIMUM REQUIREMENTS FOR DIVING ENVELOPE RELATIVE TO LENGTH AND HEIGHT OF DIVING BOARD  (1)  A diving board may not be installed or utilized if it exceeds the maximum allowable length for diving boards or the maximum board height over the water set out in Table 4.  No diving board may be installed or utilized in any pool unless the minimum dimensions of the pool's diving envelope meet or exceed the requirements set out in Table 3 below for the length of the diving board and unless the diving board is set at or lower than the maximum height set out in Table 3 for the length of the diving board.

 

Table 3.  (Proposed Table 3 and proposed Table 4 have been deleted and are being combined into New Table 3.)

 

Pool Type

Minimum Dimensions

Minimum width of pool at:

D1

D2

R

L1

L2

L3

L4

L5

Pt.A

Pt.B

Pt.C

VI

7'-0"

8'-6"

5'6"

2'-6"

8'-0"

10'-6"

7'-0"

28'-0"

16'-0"

18'-0"

18'-0"

VII

7'-6"

9'-0"

6'-0"

3'-0"

9'-0"

12'-0"

4'-0"

28'-0"

18'-0"

20'-0"

20'-0"

VIII

8'-6"

10'-0"

7'-0"

4'-0"

10'-0"

15'-0"

2'-0"

31'-0"

20'-0"

22'-0"

22'-0"

IX

11'0"

12'-0"

8'-6"

6'-0"

10'-6"

21'-0"

0

37'-6"

22'-0"

24'-0"

24'-0"

NOTE:  For definition of pool types see definitions in [RULE XXIII]

 

Table 4.

 

Related Diving Equipment - Pool Type

Maximum Diving Board Length

Maximum Board Height Over Water

Type VI

10'

26" or 2/3 meter

Type VII

12'

30" or 3/4 meter

Type VIII

16'

1 meter

Type IX

16'

3 meter

NOTE:  For definition of pool types see definitions in [RULE XXIII]

 

Table 3.

 

 

Related Diving Equipment

 

MINIMUM DIMENSIONS

 

Minimum Width of Pool at:

Max. Diving Board Length

Max. Board Height Over Water

 

 

D1

 

 

D2

 

 

R

 

 

L1

 

 

L2

 

 

L3

 

 

L4

 

 

L5

 

 

PT. A

 

 

PT. B

 

 

PT.C

 

10'

 

26"

2/3 meter

 

2.13m

7'0"

 

2.59m

8'6"

 

1.68m

5'6"

 

.76m

2'6"

 

2.44m

8'0"

 

3.20m

10'6"

 

2.13m

7'0"

 

8.53m

28'0"

 

4.89m

16'0"

 

5.49m

18'0"

 

5.49m

18'0"

 

12'

 

30"

1/4 meter

 

2.29m

7'6"

 

2.74m

 

1.83m

6'0"

 

.91m

3'0"

 

2.74m

9'0"

 

3.65m

12'0"

 

1.22m

4'0"

 

8.53m

28'0"

 

5.49m

18'0"

 

6.10m

20'0"

 

6.10m

20'0"

 

 

 

16'

 

1 meter

 

2.59m

8'6"

 

3.05m

10'0"

 

2.13m

7'0"

 

1.22m

4'0"

 

3.05m

10'0"

 

4.57m

15'0"

 

.61m

2'0"

 

9.45m

31'0"

 

6.10m

20'0"

 

 

6.71m

22'0"

 

6.71m

22'0"

 

16'

 

3 meter

 

3.35m

11'0"

 

 

3.65m

12'0"

 

2.59m

8'6"

 

1.23m

6'0"

 

3.20m

10'6"

 

6.40m

21'0"

 

0

 

11.43m

37'6"

 

 

6.70m

22'0"

 

7.32m

24'0"

 

7.32m

24'0"

 

L2, L3, and L4 combined represent the minimum distance from the tip of board to pool wall, opposite diving equipment.

 

AUTH:  50-53-103, MCA

IMP:      50-53-101, 50-53-102, 50-53-103, 50-53-104, 50-53-106, 50-53-107, MCA

 

RULE LVIII (37.115.902)  DRESSING ROOMS, TOILETS, AND SHOWER AREAS  (1)  The requirements set forth in this subchapter apply to all public pools, spas, and other bathing places water features, including those privately owned public facilities where nonmembers or nonlodging guests are allowed to use the facility.

(2)  With the following two exceptions, of existing Class B pools operated in conjunction with lodging and open only to guests of the motel or hotel, every Class A, Class B, and Class C pools, spas, or water features shall be equipped with dressing rooms that are located adjacent to the locker room or the showering areas.:            (a)  seasonal splash decks and other water features may locate showers in the public area of the pool facility, using tempered water; and

(b)  existing hotels, motels, and lodgings are not required to provide dressing rooms and bathrooms adjacent to the pool.  New hotels and motels must provide at least one unisex bathroom with a toilet, a hand sink, a changing table, and a shower.  The shower may be located in the public area of the pool facility.

(3) through (9) remain as proposed.

(10)  Separate shower facilities shall be provided in the dressing rooms, and shall be located so that bathers must pass from the shower room directly into the pool, spa, or other water feature area for year round pools, spas, or water features.

(11)  All showers must be equipped with a mixing valve or cold and hot water plumbing no warmer than 120 degrees.

(12)  Liquid, foam, or powdered soap shall be provided for each shower unit.

 

AUTH:  50-53-103, MCA

IMP:      50-53-101, 50-53-102, 50-53-103, 50-53-104, 50-53-106, 50-53-107, MCA

 

RULE LIX (37.115.903)  NUMBER OF FIXTURES REQUIRED  (1)  In facilities built or extensively remodeled after March 1, 2010, showers, toilets, urinals, and hand washing facilities shall, at a minimum, meet the number required by Table 5 4.

 

Table 5.  Fixture Ratio Required remains as proposed, but is renumbered 4.

 

(2) through (7) remain as proposed.

 

AUTH:  50-53-103, MCA

IMP:      50-53-101, 50-53-102, 50-53-103, 50-53-104, 50-53-106, 50-53-107, MCA

 

RULE LXI (37.115.905)  BABY CHANGING TABLES  (1)  All pool dressing rooms or restrooms must provide at least one baby changing table with an adjacent waste receptacle with lid and hand sanitizing available to clean the changing table and EPA approved sanitizing wipes available to clean the changing table.

 

AUTH:  50-53-103, MCA

IMP:      50-53-101, 50-53-102, 50-53-103, 50-53-104, 50-53-106, 50-53-107, MCA

 

RULE LXIV (37.115.1002)  TURNOVER RATES  (1)  Pools, spas, and other water features constructed or modified after March 1, 2010 must have a circulation system that is capable of producing a recirculation turnover rate for the entire volume of water within the time period specified in Table 6 5 for the specific pools, spas, or other water features listed.

(2) remains as proposed.

            (3)  Table 6 5.

 

Pool or Other Water Feature Type

Required Minimum turnover Rate (Hours)

Wave Pool

2

Activity Pool -less than 24 inches in depth

1

Activity Pool -24 inches or greater in depth

2

Catch Pool (for slides and flumes)

1

Lazy River

2

Vortex Pool

1

Interactive Play Attractions

1

Swimming Pools - volume of 30,000 gal or less

4

6

Swimming Pool - volume of more than 30,000 gal

6

Wading Pool

30 minutes 1

Flow through Hot Springs

8

Spa

30 minutes

Hydrotherapy Pool

1 hour or less if pool is less than 1,000 gallons or 2 hours or less if pool is 1,000 gallons or more

Spray pools, splash decks (no standing water)

30 minutes 1

 

(4) remains as proposed.

 

AUTH:  50-53-103, MCA

IMP:      50-53-101, 50-53-102, 50-53-103, 50-53-104, 50-53-106, 50-53-107, MCA

 

RULE LXV (37.115.1003)  OPERATION OF CIRCULATION SYSTEM 

(1)  The circulation system shall be operated in a manner that creates a pattern of recirculation that uses at least 70 percent return water from the skimmers or gutters and the remainder from the main drain.  The main drain percentage may be increased during nonoperational hours to assist in debris removal.

(2) remains as proposed.

(3)  No more than two spa units may use one recirculation system and no spa may utilize the recirculation or disinfection system of a swimming pool or other water feature.  Wading pools and spas constructed after March 1, 2010 must have their own recirculation system separate from any other pool or spa.

(4) remains as proposed.

(5)  The direction of recirculation shall be counterclockwise unless manufacturer specifications require a clockwise flow.

(6) and (7) remain as proposed but are renumbered (5) and (6).

 

AUTH:  50-53-103, MCA

IMP:      50-53-101, 50-53-102, 50-53-103, 50-53-104, 50-53-106, 50-53-107, MCA

 

RULE LXVI (37.115.1005)  PUMPS  (1) and (2) remain as proposed.

(3)  A cleanable strainer or screen shall be provided on all pressure filter systems upstream of all recirculation pumps to remove solids, debris, hair, lint, and other such matter.  The strainer shall be constructed of noncorrosive material and shall be located so as to be easily accessible for regular cleaning.  Strainers are not required in systems that use vacuum diatomaceous earth filters or vacuum sand filters. 

(4) remains as proposed.

(5)  All pumps shall comply with ANSI/NSF NSF/ANSI 50-2008.

 

AUTH:  50-53-103, MCA

IMP:      50-53-101, 50-53-102, 50-53-103, 50-53-104, 50-53-106, 50-53-107, MCA

 

RULE LXVII (37.115.1006)  INLETS  (1)  Inlets are features of the pool, spa, or other water feature which return water to the pool or spa from the filters as a part of the recirculation system.  Inlets shall be submerged, and located to:

(a) and (b) remain as proposed.

(2)  A pool, spa, or other water feature shall have a minimum of two return inlets regardless of the size of the pool, spa, or other water feature.  A third inlet is required for any pool, spa, or other water feature with 900 square feet or more of surface area.  An additional return inlet is required for each additional 300 square feet of surface area or fraction thereof.

(3) through (3)(b) remain as proposed.

(4)  Any pool having a width greater than 40 feet must have floor inlets meeting the requirements of (3)(b) or a combination of wall and floor units meeting the requirements of this rule.

(5) remains as proposed but is renumbered (4).

(6) (5)  All inlets must be located at least five feet away from any skimmer and there must be an inlet within five feet of any pool corner.

 

AUTH:  50-53-103, MCA

IMP:      50-53-101, 50-53-102, 50-53-103, 50-53-104, 50-53-106, 50-53-107, MCA

 

RULE LXVIII (37.115.1007)  OUTLETS  (1) remains as proposed.

(2)  All pools, spas, and other water features must have main drain outlets at the deepest point to permit the water to be completely and easily removed unless the department has approved a complete shutoff of the main drain and allows alternative use of skimmers or 100 percent flow through as a way for the pool, spa, or other water feature to comply with the VGBPSSA.

(3)  The grated areas of any outlet shall be of sufficient size to decrease the possibility of clogging or creating suction hazards dangerous to the safety of the bathers and must meet the VGBPSSA.

(4)  All pools, spas, or other water features must have dual main drains or must use other equivalent drain methods that conform to ANSI/APSP 7-2006 and ASME A112.19.8-2007 standards to prevent sufficient suction from building up to create an entrapment hazard.  On or before March 1, 2011, the licensee shall provide the department with certification by an engineer licensed in Montana which documents that the main drain velocity of the pool, spa, or other water feature complies with the requirements of the VGBPSSA.  The velocity may not exceed a flow of 1.5 feet per second.  The pool, spa, or other water feature may not operate after that date until the certificate of compliance is provided to the department.

(5)  A minimum of two hydraulically balanced suction outlets per pump suction line are required except as described in (6) and must meet the following criteria:

(a) remains as proposed.

(b)  there must be an inlet within five feet of any corner in the pool;

(c) and (d) remain as proposed but are renumbered (b) and (c).

(e) (d)  each suction outlet, other than skimmers, that measures less than 18 inches by 24 23 inches or a diagonal of less than 29 inches shall be provided with a cover that has been tested by a nationally recognized testing laboratory and complies with ASME A112.19.8-2007 the VGBPSSA; and

(f) remains as proposed but is renumbered (e).

(6)  A single outlet shall be permitted only where the outlet's dimensions are at least 18 inches by 24 23 inches or a diagonal of at least 29 inches or it otherwise meet the requirement of ANSI/APSP-7 2006 or the federal pool/spa safety Act of 2007 the VGBPSSA.

 

AUTH:  50-53-103, MCA

IMP:      50-53-101, 50-53-102, 50-53-103, 50-53-104, 50-53-106, 50-53-107, MCA

 

RULE LXIX (37.115.1008)  OVERFLOW GUTTERS  (1)  Overflow gutters are a type of surface skimming system.  Overflow gutters shall be provided on all pools having a surface area over 1600 square feet unless the license applicant can demonstrate that use of more skimmers than minimally required will provide sufficient recirculation to meet or exceed required turnover rates. 

(2) and (3) remain as proposed.

(4)  The hydraulic capacity of the overflow gutter shall be designed to be capable of handling 100 percent of the recirculation flow.

(5) through (7) remain as proposed.

 

AUTH:  50-53-103, MCA

IMP:      50-53-101, 50-53-102, 50-53-103, 50-53-104, 50-53-106, 50-53-107, MCA

 

RULE LXXI (37.115.1010)  VACUUM EQUIPMENT  (1) through (3) remain as proposed.

(4)  Any vacuum equipment shall be used in accordance with manufacturer's guidelines and with all parts in place.

 

AUTH:  50-53-103, MCA

IMP:      50-53-101, 50-53-102, 50-53-103, 50-53-104, 50-53-106, 50-53-107, MCA

 

RULE LXXII (37.115.1011)  FILTRATION EQUIPMENT  (1) through (3) remain as proposed.

(4)  Flow meters shall be installed in a straight section of the piping unless the manufacturer's guidelines require the flow meter to be installed in some other location.  There shall be straight pipe upstream and downstream from the location of the flow meter.  The upstream pipe section must be a minimum of four pipe diameters in length.  The downstream straight pipe section must be a minimum of ten pipe diameters in length.

(5) through (8)(b) remain as proposed.

 

AUTH:  50-53-103, MCA

IMP:      50-53-101, 50-53-102, 50-53-103, 50-53-104, 50-53-106, 50-53-107, MCA

 

RULE LXXIV (37.115.1015)  PIPING SYSTEM  (1) remains as proposed.

(2)  The piping system of the pool, spa, or other water feature shall be marked in distinguishing colors to identify filtered water, make-up water, waste water, vacuum lines, and heating lines and shall be marked to identify the direction of flow.  The color system used for distinguishing the different piping systems shall be as follows:

(a)  green pipes are designated for filtered water;

(b)  yellow pipes are designated for raw or make-up water;

(c)  black pipes are designed for waste water;

(d)  red pipes are designated for the heating line;

(e)  blue pipes are for vacuum lines; and

(f)  orange pipes are for unfiltered water.

(3)  As an alternative to color coding the piping system, labels which identify the pipe function and which show the direction of flow with arrows may be used as an acceptable pipe identification method.

 

AUTH:  50-53-103, MCA

IMP:      50-53-101, 50-53-102, 50-53-103, 50-53-104, 50-53-106, 50-53-107, MCA

 

RULE LXXV (37.115.1016)  DISINFECTANT AND CHEMICAL FEEDERS 

(1)  The swimming pool, spa, or other water feature shall be equipped with a continuously operating disinfectant feeder.  The water must be continuously automatically disinfected by a chemical which distributes an easily measured, free available chlorine or bromine residual.  The water shall at all times contain sanitizer residuals as required in this rule and which are measured by industry-accepted field tests.

(2)  All proposed disinfectants sanitizers must be approved by the department.  Only Environmental Protection Agency (EPA) registered sanitizers approved by the department shall be used.

(3)  All disinfectant equipment other than compressed chlorine gas feeders must be approved by the National Sanitation Foundation International which must certify that the equipment meets the requirements of ANSI/NSF 50-2008.  The disinfectant equipment shall be capable of introducing a sufficient quantity of EPA-approved disinfectant to maintain the required levels for disinfectant under all conditions of intended use.

(4)  Sanitizer and pH shall be monitored and controlled automatically by suitable regulators.  After March 1, 2010, all new pools, spas, and other water features and all existing pools, spas, and other water features that undergo major renovations shall install automatic chemical feed equipment and an Oxygen Reduction Potential ("ORP" or "HRR") controller to monitor and to adjust chemical levels.  Automatic controllers shall be standardized in accordance with the manufacturer's instructions. 

(5) through (7) remain as proposed.

(8)  The water must be continuously disinfected by a chemical which imparts an easily measured, free available residual effect.  The water shall contain sanitizer residuals as required in these rules at all times and they must be measured by industry-accepted field tests.  Only EPA-registered sanitizers approved by the department shall be used.

 

AUTH:  50-53-103, MCA

IMP:      50-53-101, 50-53-102, 50-53-103, 50-53-104, 50-53-106, 50-53-107, MCA

 

RULE LXXVII (37.115.1019)  SALT GENERATORS  (1) remains as proposed.

(2)  Salt generators shall not be used for spas, splash decks, catch pools for slides or flumes, wading pools, or other water features that may experience heavy use.

 

AUTH:  50-53-103, MCA

IMP:      50-53-101, 50-53-102, 50-53-103, 50-53-104, 50-53-106, 50-53-107, MCA

 

RULE LXXIX (37.115.1101)  OPERATOR QUALIFICATIONS  (1)  remains as proposed.

(2)  Except for a licensee operating a spa at a tourist home which is drained and cleaned between each use, Tthe licensee of any public swimming pool, spa, or other water feature shall employ at least one staff member who is currently certified as a Certified Pool Operator (CPO), as an a certified Aquatic Facility Operator (AFO), or a person who has equivalent current certification approved by the department. 

(3)  The certified pool operator for the facility shall be at the facility or whenever it is open or shall be available to be called respond to the swimming pool, spa, or other water feature whenever it is open within 30 minutes of being telephoned.  If during an inspection the department telephones the certified pool operator and there is no response within 30 minutes, the inspector will note that.  If during the next inspection at the same facility the certified pool operator fails to respond to a telephone call within 30 minutes, the department may require that within 30 days the licensee employ a different certified pool operator.

(a)  In remote locations, the department may approve having one certified operator oversee more than one pool, spa, or other water feature, if that person is not responsible for more than three pools, spas, or other water features located on physically separate properties.

(b)  Each municipally-owned swimming pool, spa, or other water feature must have its own certified operator with the following exceptions:

(i)  municipally-owned or operated pools may have one certified operator responsible for all wading pools located throughout the municipality; or 

(ii)  one certified operator may be responsible for multiple water features if they are located on one contiguous property.

(4)  If a pool, spa, or other water feature has been closed during an inspection for any violation of the critical items listed in ARM 37.115.301 or 37.115.302 and is then reclosed on the next inspection visit for any violation of the critical items listed in ARM 37.115.301 and ARM 37.115.302 and the violation is something that cannot be corrected during the inspection visit, the department may require the licensee to take corrective action that may include, but is not limited to, employing a fulltime certified pool operator or requiring remedial training for the licensee's certified pool operator.

(3) remains as proposed but is renumbered (5).

(4) (6)  Current licensees of swimming pools, spas, or other water features must meet the requirements of this rule no later than January 1, 2011 December 31, 2011.

(5) (7)  New pools, spas, or other water features opened after March 1, 2010 must meet this requirement in order to operate.

 

AUTH:  50-53-103, MCA

IMP:      50-53-101, 50-53-102, 50-53-103, 50-53-104, 50-53-106, 50-53-107, MCA

 

RULE LXXXI (37.115.1201)  CHLORINE GAS STORAGE AND OPERATIONS  (1)  Gas chlorine may be used as a disinfectant only when the pump is operated and vacuumed with a booster pump.  Gas chlorine may be used as a disinfectant only when the main pool recirculation pump is running and circulating pool water and the chlorine supply to the recirculation system is delivered under a vacuum condition.

(2)  When compressed chlorine gas is used, whether by an existing pool or spa or on a pool, spa, or other water feature constructed after March 1, 2010, the provisions of (3) through (6) must also be complied with.

(3) through (6) remain as proposed.

(7)  Locker style chlorine storage may be used rather than a large room, when practical, following MT-DEQ Circular #1 provisions as well as the rules above.

 

AUTH:  50-53-103, MCA

IMP:      50-53-101, 50-53-102, 50-53-103, 50-53-104, 50-53-106, 50-53-107, MCA

 

RULE LXXXIV (37.115.1301)  TEST KITS  (1)  No chemical or other agent may be used in the water of any public pool, spa, or other water feature unless a recognized and approved test kit is available on the market to test the use of the chemical or other agent and which can identify and quantify the amounts of the chemical or other agent in the water.

(2) through (4) remain as proposed but are renumbered (1) through (3).

(5) (4)  Test strips are not an approved method of accurate testing, but may be used for a quick reading between regular testing intervals to see if adjustments are needed.

(5)  If a DPD test kit is not available for reading the higher pH readings allowed for hot springs, the licensee may request that the department approve use of a test kit that meets an accuracy standard set by the manufacturer that falls within ± 0.2 pH.  Testing equipment verified for accuracy by the manufacturer may be approved by the department.

 

AUTH:  50-53-103, MCA

IMP:      50-53-101, 50-53-102, 50-53-103, 50-53-104, 50-53-106, 50-53-107, MCA

 

RULE LXXXVI (37.115.1304)  OXIDATION REDUCTION POTENTIAL (ORP) READING  (1) through (4) remain as proposed.

(5)  The water in the pool, spa, or other water feature shall be closed if the ORP is less than 700 mV 650 mV as measured by the controller or by the ORP measuring equipment, regardless of the chlorine residual measurement and it shall remain closed until the ORP is at least 700 mV 650 mV.

 

AUTH:  50-53-103, MCA

IMP:      50-53-101, 50-53-102, 50-53-103, 50-53-104, 50-53-106, 50-53-107, MCA

 

RULE LXXXVIII (37.115.1307)  DISINFECTANT USE  (1) and (2) remain as proposed.

(3)  In pools, spas, and other water features using chlorine as a disinfectant, breakpoint chlorination ("super chlorination" or "shocking") is required when the combined chlorine reading reaches 0.3 0.5 ppm or greater. 

(4)  To super chlorinate or shock a pool, spa, or other water feature that has a combined chlorine reading of 0.3 0.5 ppm or higher, the operator must, at one time, add free chlorine equivalent in an amount that will bring the free chlorine reading to a level at least ten times greater than the combined chlorine reading.

(5) remains as proposed.

 

AUTH:  50-53-103, MCA

IMP:      50-53-101, 50-53-102, 50-53-103, 50-53-104, 50-53-106, 50-53-107, MCA

 

RULE LXXXIX (37.115.1308)  WATER CHEMISTRY PARAMETERS 

(1) remains as proposed.

 

Table 7 6.

 

Parameter

Acceptable range

Ideal range

Maximum

Chlorine

2-8ppm

3-5ppm

8ppm

Combined

chlorine

0.2 0 to 0.5

0.0

0.2 5ppm

Bromine

2-10ppm

2-8ppm

10ppm

Total Alkalinity

60-180ppm

60-220ppm (varies by chemical type and pool surface)

80-100ppm for Cal Hypo, lithium hypo, and sodium hypochlorite; hypochlorine;

100-120ppm for Sodium dichlor, trichlor, chlorine gas and bromine compounds

180ppm 

220ppm

 

If total alkalinity is too high:

-cloudy water

-increased scaling potential

-pH tends to be too high

Oxygen Reduction Potential (ORP or HRR, which stands for High Resolution Reduction)

700 650 minimum millivolts (mV)

700 650-750 minimum millivolts (mV)

no maximum

pH

7.2-7.8

7.4-7.6

7.2-7.8 for all pools, spas, or other water features except flow through hot springs, which may have a pH up to 9.4

Cyanuric Acid (allowed only in outdoor pools)

10-30ppm

0-100ppm

25ppm

10-50ppm

50ppm

100ppm

Calcium Hardness

Pools 150-1,000ppm

Pools 200-400ppm; Spas 150-250ppm

Pools 1,000ppm

Spas 800ppm

Temperature

Varies

Varies

Spas 104ºF

Pools 100ºF EXCEPTION: flow through hot spring pools and spas, which may have a maximum temperature of 100ºF and 106ºF

Clarity

In the deepest part of the pool, spa, or other water feature, the main drain shall be clearly visible and sharply defined.  NTUs must be in the range of 0.0-1.0

In the deepest part of the pool, spa, or other water feature, the main drain shall be clearly visible and sharply defined.

NTUs must be less than .5

NTUs up to 1.0

 

(2) and (3) remain as proposed.

 

AUTH:  50-53-103, MCA

IMP:      50-53-101, 50-53-102, 50-53-103, 50-53-104, 50-53-106, 50-53-107, MCA

 

RULE XC (37.115.1309)  CLOSURE OF POOL BASED ON WATER CHEMISTRY READINGS  (1)  A pool, spa, or other water feature shall be closed immediately whenever a reading falls into one or more of the following categories:

(a)  the chlorine or bromine reading is outside the minimum and maximum reading levels set in ARM 37.115.1308, Table 7 6;

(b)  water temperature exceeds the maximum set in ARM 37.115.1308, Table 7 6;

(c)  pool clarity fails to meet the parameters set in ARM 37.115.1308, Table 7 6; or

(d)  chlorine or bromine readings exceed the maximum set in ARM 37.115.1308, Table 7 6.

(2) remains as proposed.

(3)  When the critical water quality parameters are brought within the acceptable range set out in ARM 37.115.1308, Table 7 6, the pool may be reopened with the approval of the department.

 

AUTH:  50-53-103, MCA

IMP:      50-53-101, 50-53-102, 50-53-103, 50-53-104, 50-53-106, 50-53-107, MCA

 

RULE XCIII (37.115.1313)  SATURATION INDEX  (1) remains as proposed.

(2)  If the total dissolved solids (TDS) are less than 1,000 ppm, 12.1 is used as the total dissolved solids factor.  If the total dissolved solids are greater than 1,000 ppm, 12.2 is used as the total dissolved solids factor.

(2) through (4) remain as proposed but are renumbered (3) through (5).

 

AUTH:  50-53-103, MCA

IMP:      50-53-101, 50-53-102, 50-53-103, 50-53-104, 50-53-106, 50-53-107, MCA

 

RULE XCIV (37.115.1314)  SATURATION INDEX TABLE  (1)  The following is the saturation index table.  If the total dissolved solids (TDS) are less than 1,000 pm then 12.1 is used as the total dissolved solids factor.  If the total dissolved solids are greater than 1,000 ppm then 12.2 is used as the total dissolved solids factor.

 

Table 8 remains as proposed but is renumbered 7.

 

(2) through (2)(c) remain as proposed.

 

AUTH:  50-53-103, MCA

IMP:      50-53-101, 50-53-102, 50-53-103, 50-53-104, 50-53-106, 50-53-107, MCA

 

RULE XCV (37.115.1315)  WATER CLARITY  (1)  Acceptable water clarity of a swimming pool, spa, or other water feature shall be maintained at all times.  It shall be determined by one of the following methods:

(a) remains as proposed.

(b)  a two-inch diameter black and red plastic disk must be visible through 15 feet of water.

(2)  A hot springs pool, spa, or other water feature may alternatively demonstrate sufficient clarity by the following method:

(a) (b)  water must, at all times, have sufficient clarity so that a black disc, six inches in diameter, and placed on a white background in the deepest point of the pool, spa, or other water feature, must be clearly visible and sharply defined when viewed from any point on the deck within five feet of any pool edge.

(3) through (4)(c) remain as proposed but are renumbered (2) through (3)(c).

 

AUTH:  50-53-103, MCA

IMP:      50-53-101, 50-53-102, 50-53-103, 50-53-104, 50-53-106, 50-53-107, MCA

 

RULE XCVI (37.115.1401)  TYPES OF SIGNS REQUIRED  (1)  Every pool, spa, or other water feature shall conspicuously post signs which meet the requirements of this subchapter and which address the following categories of safety issues:

(a)  signs identifying prohibited conduct;

(b)  signs providing warnings of medical or safety hazards;

(c)  signs identifying potential disease hazards;

(d)  signs that notify notification the patrons of the supervision that is or is not provided by the facility; and

(e)  signs pertaining to diving requirements.

 

AUTH:  50-53-103, MCA

IMP:      50-53-101, 50-53-102, 50-53-103, 50-53-104, 50-53-106, 50-53-107, MCA

 

RULE XCVII (37.115.1402)  GENERAL POOL SIGN REQUIREMENT 

(1) and (2) remain as proposed.

(3)  Pools and other water features must post signs with the following wording or substantially similar wording:

(a)  "Take a cleansing shower before using the pool or the deck area";

(b)  "Please do not use the pool if you have had diarrhea or any other disease communicable transmittable by water in the past two weeks";

(c) through (6) remain as proposed.

 

AUTH:  50-53-103, MCA

IMP:      50-53-101, 50-53-102, 50-53-103, 50-53-104, 50-53-106, 50-53-107, MCA

 

RULE XCVIII (37.115.1403)  SPA SIGNS  (1)  The following rules shall be posted adjacent to the spa.  The wording shall be in the following language or substantially similar language:

(a)  "Take a cleansing shower before using the pool spa";

(b)  "Please do not use the spa if you have had diarrhea or any disease communicable transmittable by water in the past two weeks";

(c) and (d) remain as proposed.

(e)  "Enter and exit the spa slowly";

(f)  "Staying in a spa too long may result in dizziness, fainting, and nausea"; and

(e) (g)  "Heat stroke warning - Users limited to 15 minutes in spa".

(2) through (4) remain as proposed.

 

AUTH:  50-53-103, MCA

IMP:      50-53-101, 50-53-102, 50-53-103, 50-53-104, 50-53-106, 50-53-107, MCA

 

RULE CI (37.115.1406)  SPRAY POOL SIGNS  (1)  One or more signs with the following language or substantially similar language shall be posted adjacent to the spray pool:

(a)  Spray hours must be listed and the sign must then state, "Spray pool use at any other time is prohibited";

(b)  "Anyone who has had diarrhea or any other disease communicable transmitted by water in the last two weeks may not use the spray pool";

(c) through (f) remain as proposed.

 

AUTH:  50-53-103, MCA

IMP:     50-53-101, 50-53-102, 50-53-103, 50-53-104, 50-53-106, 50-53-107, MCA

 

RULE CIII (37.115.1503)  ROPES, FLOAT LINES, AND MARKING LINES     (1)  Unless otherwise provided in this rule, a rope and float line with floats spaced no more than five feet apart shall separate the shallow portion of the pool from the deep portion of the pool.  It shall be strung across the pool at one linear foot from the shallow end and no deeper than the five foot depth level, toward the shallow end of the pool.

(a) through (4) remain as proposed.

 

AUTH:  50-53-103, MCA

IMP:      50-53-101, 50-53-102, 50-53-103, 50-53-104, 50-53-106, 50-53-107, MCA

 

RULE CVI (37.115.1601)  WHEN LIFEGUARDS ARE REQUIRED 

(1)  Lifeguards are required to be present and on duty during the operation of any municipally owned or operated swimming pool, spa, or other water feature except spray park splash deck and wading pools. 

(2) through (5) remain as proposed.

(6)  Lifeguards shall be stationed around any pool, spa, or other water feature in a pattern that provides them clear line of sight to all areas of the pool, spa, or other water feature.

 

AUTH:  50-53-103, MCA

IMP:      50-53-101, 50-53-102, 50-53-103, 50-53-104, 50-53-106, 50-53-107, MCA

 

RULE CVII (37.115.1602)  WHEN LIFEGUARDS ARE NOT REQUIRED  

(1) through (1)(b) remain as proposed.

(2)  A tourist home providing a pool, spa, or other water feature to its guests must post a sign as required in ARM 37.115.301 (1)(a), but is exempt from the requirements of (1)(b).

 

AUTH:  50-53-103, MCA

IMP:      50-53-101, 50-53-102, 50-53-103, 50-53-104, 50-53-106, 50-53-107, MCA

 

            RULE CXIV (37.115.1801)  REVIEW OF NONCONFORMING SPECIALTY POOLS AND WATER FEATURES  (1)  The department may approve specialty water pools and water features not specifically addressed in these rules if, upon its plan review, the department determines that the design complies with all substantive requirements of these rules or any other applicable federal or state laws or rules and presents no public health and safety concerns. 

 

AUTH:  50-53-103, MCA

IMP:      50-53-101, 50-53-102, 50-53-103, 50-53-104, 50-53-106, 50-53-107, MCA

 

            RULE CXXI (37.115.1809)  ZERO DEPTH ENTRY TO POOL  (1)  Any Zzero depth or "beach" entry to a swimming pools shall comply with all other applicable sections of ARM Title 37, chapter 34, subchapters 1 through 22, and with (2) through (4) (3).

            (2)  There shall be an overflow drain or weir installed across the full width of the zero depth end of the swimming pool or around the entire perimeter, whichever is more effective in recirculating the water or removing the water properly to the sewer system.

            (a) through (3) remain as proposed.

            (4)  A perimeter overflow gutter shall be provided.  The gutter around the perimeter of the rest of the pool may be interrupted in the area where the water is less than one foot deep, provided that the length of the perimeter overflow gutter and the overflow drain shall be at least 60 percent of the total pool perimeter.

 

AUTH:  50-53-103, MCA

IMP:      50-53-101, 50-53-102, 50-53-103, 50-53-104, 50-53-106, 50-53-107, MCA

 

            RULE CXXIII (37.115.1811)  ZERO DEPTH SPRAY POOLS SPLASH DECKS - WATER RECIRCULATION  (1)  Spray pools Splash decks may be constructed so that the water drains immediately to a waste water system.  Such pools Splash decks must use water from an approved water supply.  The water that is drained to a waste water system shall be disposed of in a manner approved by the Department of Environmental Quality.

            (2)  If the water from a spray pool splash deck does not drain immediately to a waste water system, then a chlorination system and filtration system must be in place that meets the requirements of these rules.

            (3)  A recirculation system consisting of pumps, piping, filters, water conditioning and disinfectant equipment and other accessory equipment which meet the requirements of these rules shall be provided which will clarify, chemically balance, and disinfect the water.  The spray pool's splash deck's treatment tank filtration circulation and chemical disinfectant equipment must operate 24 hours a day.

            (4)  Water may be used one time and immediately drained to waste water or it may be recirculated and disinfected.  Existing zero depth spray pools splash decks that recirculate water must recirculate the entire volume of water through an approved treatment system every thirty minutes hour or less.  Zero depth spray pools constructed after [the effective date of this rule] must recirculate the entire volume of water through an approved treatment system every thirty minutes or less.

            (5)  A surge tank constructed or installed after March 1, 2010 for the spray pool a splash deck must hold a minimum of 4000 gallons. The surge tank capacity must also be at least three times the combined flow rates of all attraction features and recirculation pumps based upon a minimum flow of five gallons per minute. 

            (6)  An automatic water level controller shall be provided for the spray pool splash deck treatment tank.

            (7)  A screen or similar device shall be provided through which all water from the spray pool splash deck shall pass before entering the spray pool splash deck recirculation tank.  In the alternative, the spray park splash deck may use another method or process that is approved by the department and provides for the removal of debris on the surface layer of the water in the recirculation tank.

            (8)  Sufficient numbers of filtered or treated water inlets shall be provided and located to ensure complete mixing and circulation of treated water within the spray pool splash deck recirculation tank.

            (9)  At least one main drain suction outlet that supplies water to the spray pool splash deck recirculation tank filtration system shall be provided at the deepest point in the spray pool splash deck recirculation tank.

            (10)  The pipers pipes, fittings, and valves of the recirculation system shall be sized so that velocities of water in the piping do not exceed six feet per second under suction, ten feet per second under pressure, or three feet per second in gravity flow.  The water velocity limits may be exceeded when hydraulic computations indicate that use of higher velocities will not adversely affect the spray pool splash deck recirculation system.

            (11) and (12) remain as proposed.

 

AUTH:  50-53-103, MCA

IMP:      50-53-101, 50-53-102, 50-53-103, 50-53-104, 50-53-106, 50-53-107, MCA

 

            RULE CXXIV (37.115.1812)  ZERO DEPTH SPRAY POOL SPLASH DECKS - GENERAL REQUIREMENTS

            (1)  Each zero depth spray pool splash deck shall have:

            (a) and (b) remain as proposed.

 

AUTH:  50-53-103, MCA

IMP:      50-53-101, 50-53-102, 50-53-103, 50-53-104, 50-53-106, 50-53-107, MCA

 

            RULE CXXV (37.115.1813)  ZERO DEPTH SPRAY POOL SPLASH DECKS - DRAIN SYSTEMS  (1)  Outlets must be located at the low point of the spray pool splash decks.

            (2)  Spray pools Splash decks must have two or more main drains located a minimum of three feet apart.

            (3)  Drain covers must meet the following requirements:

            (a)  outlet drains to each spray pool splash deck recirculation pump must have drain covers that measure 12 inches x 12 inches or greater in size;

            (b) and (c) remain as proposed.

            (4)  Flow through the drains to the treatment tank shall be gravity flow only. Direct suction outlets from the spray pool splash deck are prohibited.

            (5)  In any zero depth spray pool splash deck that recirculates the water after sanitizing it, the cleaning drains that drain directly to waste water must be located around the perimeter of the pad at a sufficient number of locations to drain water used to clean the pad so that it does not enter a main drain to be recirculated.  The slope of the spray pad must change around the perimeter to slope toward the cleaning drains.

            (6) remains as proposed.

 

AUTH:  50-53-103, MCA

IMP:      50-53-101, 50-53-102, 50-53-103, 50-53-104, 50-53-106, 50-53-107, MCA

            RULE CXXVI (37.115.1814)  ZERO DEPTH SPRAY POOLS SPLASH DECKS - RESTROOM REQUIREMENTS  (1)  General use recirculating spray pool splash deck facilities shall provide separate restroom facilities for each gender containing at least one toilet and hand washing sink and diaper changing area.  Toilet facilities and lavatories shall be maintained and conveniently located at a spray pool splash deck.  All facilities shall be provided with liquid soap, paper towels or electrical hand drying units, and covered waste receptacles.

 

AUTH:  50-53-103, MCA

IMP:      50-53-101, 50-53-102, 50-53-103, 50-53-104, 50-53-106, 50-53-107, MCA

 

            RULE CXXVII (37.115.1815)  ZERO DEPTH SPRAY POOLS SPLASH DECKS - CLEANING REQUIREMENTS  (1)  Hose bibs with anti-siphonage devices shall be provided around spray pool splash decks at a maximum spacing of one hundred fifty feet.  At the beginning of each day prior to use and at other times when needed, the spray pool splash deck must be adequately cleaned and flushed to remove any materials or contaminants on the surface area of the spray pool splash deck.  The water must be flushed to the waste water system and not discharged into the spray pool splash deck recirculation tank.

            (2)  The spray pool splash deck recirculater tank must be designed to provide ready access for cleaning and must be capable of draining.  An overflow pipe to convey excess water to an approved wastewater discharge system must be provided.

            (3)  The spray pool splash deck recirculation tank shall be completely drained and cleaned whenever needed to maintain water quality parameters set by these rules, including but not limited to the parameters for alkalinity, pH, and chlorine.

            (4)  The spray pool splash deck recirculation tank shall be completely drained and cleaned whenever needed to maintain water quality parameters set by these rules, including but not limited to the parameters for alkalinity, pH, and chlorine.

 

AUTH:  50-53-103, MCA

IMP:      50-53-101, 50-53-102, 50-53-103, 50-53-104, 50-53-106, 50-53-107, MCA

 

            RULE CXXX (37.115.1821)  SPA SANITATION REQUIREMENTS 

            (1) remains as proposed.

            (2)  Chlorine generator (salt) disinfectant systems may not be used in spas.

            (3) remains as proposed but is renumbered (2).

 

AUTH:  50-53-103, MCA

IMP:     50-53-101, 50-53-102, 50-53-103, 50-53-104, 50-53-106, 50-53-107, MCA

 

            RULE CXXXII (37.115.1824)  EXTERNAL SPA EQUIPMENT REQUIREMENTS  (1) and (2) remain as proposed.

            (3)  After March 1, 2010 all new spa installations shall have a master shutoff switch that shuts off the power to all components of the spa, including the main drain, jet pumps, and the circulation pumps. The master shutoff switch must be adjacent to the spa, easily accessible, and clearly visible in case of an emergency.

AUTH:  50-53-103, MCA

IMP:      50-53-101, 50-53-102, 50-53-103, 50-53-104, 50-53-106, 50-53-107, MCA

 

            RULE CXXXVIII (37.115.1836)  WADING POOLS - CIRCULATION AND DISINFECTANT SYSTEM REQUIREMENTS  (1) remains as proposed.

            (2)  Wading pools must have a recirculation and disinfectant system of its own that is capable of a 30 minute one hour turnover rate.

 

AUTH:  50-53-103, MCA

IMP:      50-53-101, 50-53-102, 50-53-103, 50-53-104, 50-53-106, 50-53-107, MCA

 

            RULE CXL (37.115.1838)  WADING POOLS - DEPTH AND SLOPE 

            (1) and (2) remain as proposed.

            (3)  The maximum distance from the top of the deck to the design waterline shall not exceed six inches, unless seven inches is required under manufacturer specifications.

 

AUTH:  50-53-103, MCA

IMP:      50-53-101, 50-53-102, 50-53-103, 50-53-104, 50-53-106, 50-53-107, MCA

 

            RULE CXLII (37.115.1840)  WADING POOL RESTROOM AND CHANGING TABLE REQUIREMENTS  (1)  Changing and toilet facilities must be provided.  They must provide the minimum required fixtures set in ARM 37.115.903, Table 5 4.

            (2)  remains as proposed.

 

AUTH:  50-53-103, MCA

IMP:      50-53-101, 50-53-102, 50-53-103, 50-53-104, 50-53-106, 50-53-107, MCA

 

            RULE CXLIII (37.115.1845)  HOT SPRINGS POOLS AND SPAS AND FLOW-THROUGH HOT SPRINGS POOLS AND SPAS - GENERALLY  (1)  Hot springs pools and other than a flow-through hot springs pool, must comply with all other provisions of these rules, except for the following: 

            (a) remains as proposed.

            (b)  the temperature of a hot spring pool or spa or a flow-through hot spring pool or spa may not exceed 106°F in a pool or spa primarily used for soaking and may not exceed 106°F 100°F in a pool used primarily for swimming; and

            (c)  through (2)(b) remain as proposed.

 

AUTH:  50-53-103, MCA

IMP:      50-53-101, 50-53-102, 50-53-103, 50-53-104, 50-53-106, 50-53-107, 50-53-108, 50-53-115, MCA

 

            RULE CXLV (37.115.1847)  OTHER SPECIAL PURPOSE POOLS 

            (1)  Special purpose pools including, but not limited to, wave action pools, rafting rides, wave surf rides, activity pools, catch pools, leisure rivers, vortex pools, interactive play attraction pools, amusement park attraction features, scuba training pools, and therapy pools shall meet all requirements of these rules.

            (2) through (4)(e) remain as proposed.

 

AUTH:  50-53-103, MCA

IMP:      50-53-101, 50-53-102, 50-53-103, 50-53-104, 50-53-106, 50-53-107, MCA

 

            RULE CXLIX (37.115.1905)  GRANDFATHER CLAUSE  (1)  Any existing currently licensed and regularly operating swimming pool, spa, or other water feature that is regularly operating on or before March 1, 2010 is entitled to a grandfather clause exemption from any requirement to upgrade to new design and construction standards set in ARM Title 37, chapter 115, subchapters 1 through 22, except as otherwise specifically provided in ARM Title 37, chapter 115, subchapters 1 through 22, until one or more of the following occurs:

            (a)  the swimming pool, spa, or other water feature undergoes reconstruction, remodeling, or renovation;

            (b)  the swimming pool, spa, or other water feature fails for any reason to be operating and open to the public at least 60 days in the calendar year of the license;

            (c) through (2) remain as proposed.

 

AUTH:  50-53-103, MCA

IMP:     50-53-101, 50-53-104, 50-53-204, 50-53-216, MCA

 

RULE CLIV (37.115.1912)  WHEN LICENSE NOT REQUIRED  (1)  Licenses are not required for the following:

(a) and (b) remain as proposed.

(c)  swimming pools located in a private apartment complex with fewer than ten apartments and which are used for swimming or bathing only by the tenants or their invited guests;

(d) remains as proposed but is renumbered (c).

(e) (d)  single unit tourist home a pools or spas at a tourist home, if it is not they are not used by the parties renting or leasing the home or if the spa it is completely drained, cleaned, and refilled between guests;

(f) (e)  spa pools in individual hotel or motel rooms or in individual cabins that are completely drained, cleaned, and refilled between patron use; and

(g) (f)  pools or spas at condominium units that are leased for periods of one month or greater;. and

(h)  spray pools that drain immediately to waste.

 

AUTH:  50-53-103, MCA

IMP:     50-53-101, 50-53-102, 50-53-103, 50-53-104, 50-53-106, 50-53-107, MCA

 

            RULE CLIX (37.115.2102)  IMMEDIATE SUSPENSION OF LICENSE; EMERGENCY CLOSURE OF POOL, SPA, OR OTHER WATER FEATURE 

            (1)  The department may order immediate suspension of any license or may order emergency closure of any swimming pool, spa, or other water feature or both if an inspector determines that an operator has refused or failed to immediately close the swimming pool, spa, or other water feature after occurrence of any health or safety violation identified in ARM 37.115.301.  Any violation of ARM 37.115.301 constitutes an imperative imminent risk to public health, safety, or welfare that imperatively requires immediate closure of the swimming pool, spa, or other water feature.

            (2) through (5) remain as proposed.

 

AUTH:  50-53-103, MCA

IMP:     2-4-631; 50-53-201; 50-53-211; 50-53-212, MCA

 

            RULE CLXVII (37.115.2209)  LIMITS ON CONSIDERATION OF PRIOR VIOLATIONS  (1)  Except as provided in (2) and (3) through (4), the hearing examiner may not consider any prior violations that were included on a notice of violation delivered to the licensee, license applicant, or operator of a swimming pool, spa, or other water feature if:

            (a)  satisfactory corrective action was taken and accepted by the department or,

            (b)  if the licensee, license applicant, or operator requested a fair hearing to challenge the notice of violation and prevailed., the hearing examiner issued a dispositive order that denied all of the department's claims against the licensee and that order was not appealed or it was upheld after any appeal.

            (2)  The hearing examiner may consider any related prior violations or any history of a pattern of unrelated prior violations to support the violations that are the basis for the request for the order to show cause if satisfactory corrective action was not taken and accepted by the department and if the licensee, license applicant, or operator did not timely request and prevail at a fair hearing.  Any previous violation cited at the swimming pool, spa, or other water feature is deemed admitted unless it was timely contested.

            (3) (2)  The hearing examiner may consider any history of corrective action that was taken in response to a notice of violation and that was accepted by the department only for the limited purpose of determining whether:

            (a)  the history of past violations taken together with the current violations supports a penalty as severe as the level of adverse action imposed by or requested by the department; or whether

            (b)  the department's imposition of the penalty or proposed penalty is so severe as to be arbitrary and capricious.

            (3)  In considering any prior violations by the licensee for purposes of (2), any prior violation cited at the pool, spa, or other water feature is presumed admitted unless it was timely contested.

            (4)  In considering any such prior violations, the hearing examiner shall weigh the frequency and the seriousness of the prior violations and the willingness and ability the licensee has demonstrated in the past to take corrective action that prevented reoccurrence of violations.

 

AUTH:  50-53-103, MCA

IMP:     2-4-612, 26-1-103, 26-1-501, 26-1-502, 26-1-602, 26-1-605, 26-1-606, 26-1-623, MCA

 

6.  Two hearings were held on proposed New Rules I through CLXVIII and the amendments and repeal of several other rules.  The hearings were held on June 3, 2009, and on August 7, 2009.  A total of five individuals attended the hearing on June 30, 2009 and presented testimony.  Written testimony was submitted by two of those attending.  On August 7, 2009, two individuals attended the hearing and supplied testimony.  In addition a total of 30 individuals submitted written comments during the two comment periods.  That includes those persons attending the hearing who submitted written testimony and those who testified at one or both hearings and also submitted their testimony in written form.  Five individuals each submitted two or more sets of comments.  All together, a total of 30 written comments were received by the department by mail, facsimile, or e-mail.

 

The department has compiled its responses to the comments by breaking down the written comments received into specific individual comments which each relate to one rule or one issue.  The department has attempted to organize the comments and responses to comments in numeric order by proposed rule and to group them together so that a reader can review all comments pertaining to a specific proposed rule easily.

 

Several general comments were made requesting that the department attempt to eliminate possible redundancies to make the rules more succinct and to review the rules to determine if they could be consolidated or could be made clearer.  The department has attempted to do this and there are therefore a number of small grammatical changes included throughout the rules as adopted.

 

The department has thoroughly considered the comments and testimony received.  A summary of the comments received and the department's responses are as follows:

 

COMMENT #1:  A commentor requested that the department extend the comment period, provide a second draft, and have an additional hearing.

 

RESPONSE #1:  The department believes it has allowed sufficient time and opportunity for public comment.  The department has already made efforts to allow public comment by adding a second comment period and hearing, and does not believe that an additional comment period is necessary.

 

COMMENT #2:  A commentor believed the rules could be more clear and succinct, and that the current draft has redundancies and some conflicting statements, and further believed that the department should work with local sanitarians to improve this aspect of the proposed regulations.

 

RESPONSE #2:  The department disagrees.  The rules as drafted are structured to provide easy reference to topics a user is seeking information on.  While that results in a few instances of duplication, it is necessary and beneficial to the user.  However, the department has reviewed the rules and has provided a more succinct language or clarifying language where it could.

 

Rule II – 37.115.104

 

COMMENT #3:  A commentor suggested that the renovations required in Rule II(1)(a) (37.115.104) would be too difficult or costly, and also that the existing slope rule was intended to prevent diving board accidents.

 

RESPONSE #3:  The department believes that the change in slope requirement will eliminate a drowning hazard in pools with a steep drop-off.  Pools with diving equipment will still be required to comply with the diving board standard, as stated in Rule LV (37.115.804).

 

COMMENT #4:  A commentor agreed with the change required in Rule II(1)(a) (37.115.104), stating that older pools with great slope are dangerous for swimmers in distress.

 

RESPONSE #4:  The department agrees.

 

COMMENT #5:  Does the barrier requirement in Rule II(1)(b) (37.115.104) apply to a splash deck in a pool?

 

RESPONSE #5:  The department finds this comment somewhat unclear.  A splash deck is not in a pool.  It is on a flat surface with a drain.  If the splash deck is in a complex with multiple water features, it will not need to be separated from the other water features with a fence.  However if there is only a splash deck at a facility, a barrier is required.

 

COMMENT #6:  A commentor questioned whether drain-and-fill wading pools are a true safety concern and whether elimination in Rule II(1)(c) (37.115.104) is necessary.

 

RESPONSE #6:  The department is aware of multiple studies demonstrating the high risk of disease transmission through drain and fill wading pools and is aware of multiple disease outbreaks in such pools.  The chlorine levels are not maintained or stabilized in such a pool and the age of users, including users in diapers, contribute to the problem.

 

COMMENT #7:  A commentor supports the phase-out of drain-and-fill wading pools because it is very difficult to maintain chlorine levels with this type of pool, and very young children, a high-risk population, are the main users.

 

RESPONSE #7:  The department acknowledges the statement and appreciates the comments.

 

COMMENT #8:  The dates for changing wading pools that are drain-and-fill to circulation filtration is too soon (December 31, 2009).  Rule CXXXVII (37.115.1835) prohibits drain-and-fill wading pools after December 31, 2010 rather than 2009, so the dates are not consistent.

 

RESPONSE #8:  The department agrees the dates are not consistent in the proposed rules and has made the changes so that both rules set a deadline of December 31, 2010.

 

COMMENT #9:  The Center for Disease Control (CDC), World Health Organization (WHO), and State of Florida just recently rewrote their health codes, and all of these entities accept the 100 ppm maximum for cyanuric acid (CYA).  The draft pool rules do not allow use of cyanuric acid for indoor pools.

 

RESPONSE #9:  The department agrees that cyanuric acid byproducts related to pools is not an issue.  However, the buildup of cyanuric acid in pool water makes free chlorine less effective.  The CDC also recommends not using cyanuric acid for indoor pools but says it is useful for outdoor pools due to the effects of the sun and wind on the chlorine.  The CDC at one time recommended a maximum concentration of cyanuric acid of 150 ppm but now recommends a maximum concentration of 100 ppm.  Any chemical used in a pool can be hazardous to staff or guests when manufacturer guidelines are not followed.  The comment is not clear with regard to whether the State of Florida accepts the CYA amount for outdoor pools only or for both indoor and outdoor pools.  Many other states are only allowing the use of CYA for outdoor pools.

 

COMMENT #10:  Using less stable sanitizers increases the change of a hazard for the pool operators and the public.  Cyanuric acid does not have anything to do with cyanide byproducts.  Switching to a higher oxidizing sanitizer is much more dangerous.

 

RESPONSE #10:  The department recognizes other states, such as Utah, prohibit the use of cyanuric acid for indoor pools.  Cyanuric acid is to be used as a chlorine stabilizer for outdoor pools that are affected by sun and wind.  Misuse of cyanuric acid by allowing its use for indoor pools is not condoned by the department.  Commentor states that switching to a higher oxidizer is more dangerous.  Any chemical, including tri-chlor or di-chlor, is dangerous to handle when done so incorrectly.

 

COMMENT #11:  What is the rationale for the change in this rule?  Any chemical/electric disinfection or pH system will be a safety threat if misused.  Why isolate one system in the rule?

 

RESPONSE #11:  The department does not condone improper use of a stabilizer.  The misuse of CYA is more common than with other standard pool chemicals.  All chemical, electric disinfection, or pH systems should be used properly.  The department realizes that cyanuric acid misuse is an issue, and notes that other states have recognized this issue as well.  MSDS sheets need to be available for staff when handling certain products.  For example, a spill of muratic acid on bare skin can cause serious burns to the handler if the handler is not wearing protective equipment or handling the product per the manufacturer's specifications.  The concern with CYA is that it has been added to chemicals and used improperly by allowing its use of indoor pools.  If any concerns about other systems or chemicals exist, they may be brought to the attention of the department for investigation as well as to the attention of CDC or any other regulatory or scientific entity.

 

COMMENT #12:  A Commentor provided references to articles and other states' rules for additional information concerning cyanuric acid.

 

RESPONSE #12:  The department appreciates the information.

 

COMMENT #13:  A Commentor recommended a change in wording to the following, "isocyanurates or forms of chlorine stabilized with cyanuric acid".  Chlorine stabilized with cyanuric acid has a very low pH and acid is added consistently with chlorine whenever the chlorine feeder is operating.  While all forms of chlorine affect pH to some extent, stabilized chlorine seems to seriously impact pH levels and may contribute to pool closures based on low pH.  The commentor stated that he/she has frequently observed operators have difficulty maintaining a pH above 7.2 when using stabilized chlorine for indoor swimming pools.

 

RESPONSE #13:  The department agrees and has modified the proposed rule.

 

Rule III (37.115.105) and Rule XXXV (37.115.515)

 

COMMENT #14:  The definitions set a maximum bather load, but can an owner set a lower number for its own pool based on operational requirements?

 

RESPONSE #14:  The bather load is actually calculated by looking at the chart in Rule XXXV (37.115.515).  The department acknowledges that there is always a potential for a facility to choose to set a lower maximum occupancy limit.  However, design of a facility must meet the requirements to support the maximum bather load the size of the pool, spa, or other water feature could accommodate pursuant to the chart in that rule.

 

Rule III – 37.115.105

 

COMMENT #15:  A commentor recommended clarifying the term "pool and related facilities" in Rule III(105) (37.115.105) so that a splash deck does not have to be associated or "related" to a pool in order to be termed a public swimming pool.

 

RESPONSE #15:  The department disagrees and finds the comment confusing.  Splash decks are listed as an example of a swimming pool in both this definition and in state statute, 50-53-102(a), MCA.

 

COMMENT #16:  A commentor would like clarification on the phrase "invited guests" so that facilities charging a nominal fee, a fee through a subcontract, or no fee at all, but who are not friends with all users cannot use this argument to refuse to license.

 

RESPONSE #16:  The department agrees that the term "invited guests" needs clarification.  The department has added "invited guest" to the list of definitions in Rule III (37.115.105).  This is important to include because it excludes a transient population.  The individuals cannot be strangers to the owner(s) of the water feature and must be invited or asked to use the facility.

 

COMMENT #17:  A commentor stated that the definition of public pools makes it unclear whether a pool at a condominium is considered a private or privately owned public pool.  The commentor asked whether a resort pool on private property is exempt from licensure.

 

RESPONSE #17:  Pools associated with condominiums that are leased or rented are listed in Rule III(105)(a) (37.115.105) as examples of privately owned public swimming pool or spas.  A condominium or resort pool providing aquatic recreation may be privately owned, but is not exempt from licensure as a privately owned public pool, spa, or other water feature if a transient population is served.  The definition of a "transient guest" is found in Public Sleeping Accommodations, 50-51-102(12), MCA as a guest for only a brief stay, such as the traveling public.  Hotels and motels are grouped by function and the definition is found in Public Sleeping Accommodations, 50-51-102(5), MCA.

 

COMMENT #18:  Rule III(105)(a) (37.115.105) indicates that a hotel pool is considered a privately owned public pool, yet Rule XXIII(1)(c) states a hotel pool is a semi-public class C pool.  The hotel/motel pool classification needs to be clarified.

 

RESPONSE #18:  The department agrees there is confusion caused by references to the pool classifications that were set out in Rule XXIII.  That rule will not be adopted.

 

COMMENT #19:  Is a resort pool on private property exempt under Rule III(105)?

 

RESPONSE #19:  Rule III(105) (37.115.105) states that only a pool located on private property and used solely by the owner, friends, or invited guests is considered a private pool for the purposes of these rules.  Any time a pool is used by the general public or use is used by a transient population such as tenants, the pool is defined as a privately owned public pool.  A resort pool providing aquatic recreation is a privately owned public pool since a transient population is served.

 

COMMENT #20:  A commentor asked for clarification of whether pools associated with schools, camps, churches, and retreats are clearly included in here and in definition of swimming pool.

 

RESPONSE #20:  These types of facilities could be either a publicly owned or privately owned public pools.  The classification is based on both ownership and the population served by the pool.

 

COMMENT #21:  Many of the licensed tourist homes in our county are occupied by the owner when guests are not present.  Are the attached pools considered public or private?

 

RESPONSE #21:  Rule CLIV(1)(e) (37.115.1912) provides that a license is not required for, "single unit tourist home pools or spas if they are not used by the parties renting or leasing the home, or if the spa is completely drained, cleaned, and refilled between guests".

 

COMMENT #22:  The definition of "Lifeguard" in Rule III(79) (37.115.105) uses the words "following certification", but no certification follows.  The word "following" could be deleted.

 

RESPONSE #22:  The department agrees and has removed the word "following" from proposed Rule III(79)(37.115.105).

 

COMMENT #23:  "Recreational water" is defined in proposed Rule III(111) (37.115.105) but the term is not used in the rules.

 

RESPONSE #23:  The purpose of the definition is to show that natural bodies of water are not to be licensed under these rules.  It also clarifies which agency licenses these outdoor recreational facilities.

 

COMMENT #24:  Proposed Rule III(124) (37.115.105) includes a definition of "nonself-contained".  Should it be listed as its own term/definition?

 

RESPONSE #24:  The department agrees that "nonself-contained hot tub" should be listed as its own definition and has changed Rule III (37.115.105).

 

COMMENT #25:  Some of the definitions in Rule III (37.115.105) go beyond defining terms and contain regulatory requirements.  For example, proposed Rule III (37.115.105)(171) defines "zero depth spray pool" and contains requirements that are also contained in the body of the rules.

 

RESPONSE #25:  The department agrees and has removed descriptions of substantive requirements in the definition in Rule III (37.115.105).

 

COMMENT #26:  Rule III(113) (37.115.105) includes all maintenance and repairs with renovations.  A repair is not necessarily a remodel or renovation.

 

RESPONSE #26:  The department agrees with the comment and has added language in Rule III (37.115.105) to clarify that replacement of existing equipment or components with equipment or components that are identical or substantially similar is not considered a remodel or renovation.

 

COMMENT #27:  Rule III(81) (37.115.105) needs to change "ASME A112.19.8-2007" to "ASME.19.17.-2002" and here is why:  http://catalog.asme.org/Codes/PrintBook/A1121917_2002_Mfd_Safety.cfm.

 

RESPONSE #27:  This is the standard for SVRS devices.  Not all pools require these devices. 

 

COMMENT #28:  A commentor stated that the definition in proposed Rule III(85) should be changed.

 

RESPONSE #28:  It is unclear to the department why proposed Rule III(85) should be changed.  Proposed wording was not provided by the commentor and the commentor did not explain what was inaccurate in the definition.  Therefore the rule will not be modified.

 

Rule IV (37.115.201)

 

COMMENT #29:  A commentor recommended removing the reference to ANSI-I-1991.

 

RESPONSE #29:  The department disagrees.  The ANSI-I-1991 is an appropriate set of standards for the design and construction of a pool, and many engineering firms have copies of ANSI standards for reference.  These standards contain basic definitions for pools.

 

COMMENT #30:  The ANSI standards are intended to be used as a design guideline, not a regulatory document.

 

RESPONSE #30:  The department disagrees.  It is adopting the ANSI standards as enforceable standards.  The adopted rule will incorporate by reference the 1991 version of the ANSI Standards.  That version of the ANSI standards will remain set as the department standard unless the rule is amended at some point in the future to reference a later version of the ANSI standards.

 

COMMENT #31:  The NSPI/ANSI standards are intended to be used as a design guideline, not a regulatory document.

 

RESPONSE #31:  See Response #30.

 

COMMENT #32:  The diving board area requirements are in the body of the rules.  Why reference the standards?

 

RESPONSE #32:  There are many other ANSI components for pool design located in ASNI-I-1991.  Additional ANSI standards address such issues as the specifications for pumps and the plumbing needed to connect them.  The standards will be needed at various points in the design, construction, or operation of a pool, spa, or other water feature.  The ANSI standards are therefore incorporated by reference.

 

COMMENT #33:  The pool type classifications in Table 3 do not match the pool classifications in proposed Rule XXIII.

 

RESPONSE #33:  The department agrees and will not be adopting Rule XXIII.  The classification of pool types in letter or numerical value is generally not mentioned throughout the proposed rules, even though those designations match some ANSI standards.  Therefore the reference to the classification of pool types creates unnecessary confusion here and has been removed.

 

COMMENT #34:  A commentor was concerned that if the ANSI standards adopted in Rule IV (37.115.201) changed, there will be a conflict with these rules.

 

RESPONSE #34:  Any future changes to the ANSI standards will not be incorporated into these rules without additional rulemaking including a notice and comment period.  If standards change, the standard in this rule will still refer to the 1991 ANSI standards unless amended.

 

COMMENT #35:  ANSI standards adopted in Rule IV (37.115.201) are not intended to be regulations and have no enforcement components.

 

RESPONSE #35:  The department believes that ANSI standards are appropriately adopted as design standards.  Since they are now being adopted as the department's standards they are enforceable.

 

COMMENT #36:  A commentor supported adoption of ANSI/ASME standards but believed that the rule will need to be updated periodically to reflect changes to the standards based on current information.

 

RESPONSE #36:  The department acknowledges and appreciates the comment.  Any time the ANSI/ASME standards change, the department may review those changes.  If the department feels it is beneficial to adopt the new standards, a change in the rules will occur through proper legal steps, including a comment period.

 

COMMENT #37:  There are conflicts between the ANSI standards and specific rules.

 

RESPONSE #37:  The department acknowledges that in some instances the rules depart from an ANSI standard.  Rule IV (37.115.201) specifically provides that the ANSI standards apply "unless otherwise specified in these rules".

 

Rule V (37.115.301)

 

COMMENT #38:  A commentor stated that the inclusion of ANSI and NSPI references makes ensuring "all requirements of these rules" problematic for a design professional, owner, and contractor.  The rules from these documents should be published in the rules rather than incorporated by reference.

 

RESPONSE #38:  The inclusion of all of the wording found in the ANSI documents and other standards incorporated by reference would create an extremely large and unfriendly rule book for each facility to maintain.  Many of the ANSI and NSPI standards incorporated by reference apply only to the design and construction phase.  The rules that will apply to all pool operators during operation and while considering upgrades or renovation are included in their entirety.  The incorporated standards are readily available to engineers, architects, and registered contractors for use in designing new pools, spas, or other water features or for upgrading existing pools, spas, or other water features.

 

COMMENT #39:  If a violation of Rule V(1)(c) (37.115.301) can be rectified in a short time (e.g. one hour or less), will a facility have to be closed? 

 

RESPONSE #39:  Yes.  Anytime the sanitizer does not meet the standard, patrons should not be in the pool until the problem is corrected.

 

COMMENT #40:  A commentor supported the inclusion in Rule V (37.115.301) of specific critical health and safety violations that lead to closure.

 

RESPONSE #40:  The department acknowledges and appreciates the comment.

 

COMMENT #41:  Several commentors stated that while they supported incorporation of the Virginia Graeme Baker Pool and Spa Safety Act (VGBPSSA) into these rules, there are many difficulties with assessing compliance with this Act.  They stated that the department will need official interpretation on how local jurisdictions are to determine compliance, since this cannot be assessed at poolside.  If the department is to enforce compliance, it must be able to accurately determine whether or not a pool is in compliance.  It may be that operators must be required to contract with an engineer or pool installation company and provide documentation of compliance.

 

RESPONSE #41:  The department agrees it will be necessary to receive certification that a drain is in compliance with the VGBPSSA.  The department has amended the proposed rules to require licensees to obtain such certification and to then submit it to the department.

 

COMMENT #42:  A commentor asked whether not having a "lifeguard not on duty" sign found in Rule V(1)(j) (37.115.301) should be on the list for self closure, but rather considered as one of additional repeat violations that can lead the health department to close a pool.

 

RESPONSE #42:  The department disagrees.  If the swimming public believes a lifeguard is on duty when that is not the case, there is a greater risk of a drowning.  A temporary sign can easily be posted if a short term situation leaves the pool without an available lifeguard for a short period of time.

 

COMMENT #43:  There are too many forms required by Rule V(4) (37.115.301) and other parts of the proposed rules.

 

RESPONSE #43:  The department disagrees.  It is imperative that the department obtains information concerning any serious accident or injury.  Much of the information required for documentation will be created in a checklist form, helping to minimize paperwork.

 

Rule VI (37.115.302)

 

COMMENT #44:  The requirement stated in Rule V(1)(n) (37.115.301) to close the pool when you hear thunder may be hard to enforce.

 

RESPONSE #44:  The department disagrees.  If thunder is heard, the pool is to be closed.

 

COMMENT #45:  Rule VI(1)(d)(iii) (37.115.302) requires that a backboard be readily available.  Only EMTs are allowed legally to handle a backboard, and having it available as a safety device forces liability on the pool operator.  The commentor did not want the backboard available to the public and would rather keep it behind a hotel desk.  What does "readily available" mean?

 

RESPONSE #45:  "Readily available" means easy access to the persons in charge of the pool.  Lifeguards are trained in using backboards as part of their certification process.  If the backboard can be retrieved from behind the desk or a closed room and immediately brought to the pool, it would meet the requirement.

 

COMMENT #46:  A commentor, referring  to Rule VI(3) (37.115.302), stated that this rule involved more paperwork, requiring the creation of a written corrective-action plan.  The details of corrective plans are also explained in Rule CLX (37.115.2103).

 

RESPONSE #46:  The department disagrees.  Appropriate documentation is necessary for the pool inspector to determine whether the facility has ongoing problems.  Additionally, written corrective-action plans were required in the past.

 

Rules V (37.115.301) and VI (37.115.302)

 

COMMENT #47:  A commentor believed Rules CLIX (37.115.2102) and CLX (37.115.2103) should be combined with Rule V (37.115.301) and Rule VI(3) (37.115.302).

 

RESPONSE #47:  The department disagrees.  Rules CLIX (37.115.2102) and CLX (37.115.2103) specifically set forth the enforcement procedures and are appropriately located in that section.  Violations of other rules may also result in the enforcement procedure in Rules CLIX (37.115.2102) and CLX (37.115.2103) being used.

 

COMMENT #48:  Rule LXXIX (37.115.1101) states there must be a certified pool operator (CPO) available, but that was not added to the immediate closure rule.  The wrong rule is cited in Rule VI(2) (37.115.302).

 

RESPONSE #48:  The department has added language to Rule VI(1)(e) (37.115.302) to clarify that the failure of the licensee to have a certified pool operator available within 30 minutes may result in an immediate closure violation and has corrected the typographical error.

 

COMMENT #49:  A commentor believed immediate closure of a pool is appropriate if it is not in compliance with Rule XLVIII (37.115.702).

 

RESPONSE #49:  The department agrees that adoption of the federal law requires that a pool, spa, or other water feature not in compliance with the VGBPSSA may not operate.  The department has added (1)(p) to Rule V (37.115.301) to address that issue.

 

COMMENT #50:  Owners should be able to develop a corrective action plan for disease outbreaks and the department should not prescribe the use of a UV system.

 

RESPONSE #50:  The rule as written allows a licensee the opportunity to try to resolve a disease outbreak before the department would require a UV system to be installed.  The department acknowledges the comment and appreciates the statement.  Scientific evidence shows that UV systems are the most current, effective way to provide a substantial reduction of giardia, cryptosporidium, and other waterborne illnesses.  Many other states are also requiring UV systems; therefore, the department will not remove the requirement.

 

COMMENT #51:  Commentor supports the use of a UV system for outbreaks.

 

RESPONSE:  #51:  The department acknowledges the statement and appreciates the comments. 

 

COMMENT #52:  A commentor noted that cryptosporidium and giardia are spelled incorrectly.

 

RESPONSE #52:  The department acknowledges the statement and appreciates the comments.  The department has changed the spelling in Rule VII (37.115.303).

 

COMMENT #53:  A commentor requested that the department add language to incorporate any identification of a waterborne disease outbreak in relation to a licensed recreational water facility, and to require a quick response with a corrective action plan and possible installation of UV equipment.

 

RESPONSE #53:  The commentor did not provide any suggested language to the rule.  It will remain as drafted.

 

COMMENT #54:  A commentor stated that many pool operators are not well informed about cyanuric acid and may not know how to test for it.

 

RESPONSE #54:  The department agrees that the comment may be correct.  However, if an operator follows the water testing requirement in Rule LXXXIV (37.115.1301), the test for Cyanuric acid is included in DPD test kits.

 

COMMENT #55:  The department should require UV disinfection on new pools that will be heavily used or subject to contamination from animals in order to help reduce the probability of a waterborne illness outbreak.

 

RESPONSE #55:  The department agrees.  For existing pools that have an outbreak and are not corrected under Rule CLX (37.115.1203), the department may require the licensee to install a UV system.  Splash decks will also be required to install a UV system.  Language in the rule has been changed to clarify that where existing equipment or components is replaced or repaired with identical or substantially similar equipment, no review process is required.

 

COMMENT #56:  The department should add the following language:  "UV or other type of additional disinfection approved by the department that has been proven to control disease outbreaks".  This would allow for new advances in technology without requiring the department to change the rule.

 

RESPONSE #56:  The department will change the rule should it determine that a new disinfectant method could be used as effectively as a UV system as a secondary disinfectant system.

 

COMMENT #57:  A commentor asked why UV is required after ten users contract waterborne diseases.  The commentor noted that it would make more sense to rely on the CDC or some other scientific authority as the basis for this requirement.  It could be very expensive for large water features to comply with this requirement.  The requirement should be justified by either a best practice or a national standard.  Instead, the rule could state that if two or more outbreaks of waterborne diseases (as defined by the CDC) occur within a thirty-day period, the department could require UV disinfection.

 

RESPONSE #57:  The department agrees that the number of persons affected by a waterborne disease that constitutes an outbreak should be based on the number provided by the CDC and has lowered that number from ten to two.  Additionally, due to the high risk of contracting waterborne diseases and given a history of outbreaks at water recreational facilities, new splash decks will be required to install UV disinfection systems.  UV disinfection may also be required for swimming pools, spas, and other water features that have a confirmed outbreak.  The department has added new language to Rule VII (37.115.303).

 

COMMENT #58:  A commentor asked whether Rule VIII(1) (37.115.305) applies to the replacement of broken equipment.  If it does apply, the time required for approval will adversely affect business operations.  Instead, plan review should be required when equipment is installed that differs from the equipment that was previously in place.

 

RESPONSE #58:  The department agrees with the comments and appreciates the statement.  The department feels the commentor may have intended for the comment to apply to the entire rule and not just Rule VIII(1)(37.115.305).  Language in the rules, including in the definitions, has been changed to clarify that where existing equipment or components is replaced or repaired with identical or substantially similar equipment, no review process is required.

 

COMMENT #59:  The department should add language to the rule to include a designee (e.g. a local agency), should the local agency choose to provide plan review.

 

RESPONSE #59:  Language that addresses plan reviews for pools, spas, or other water features will be included in the cooperative agreement between the local agency and the department.

 

COMMENT #60:  A commentor pointed to Rule VIII(2) (37.115.305), which references Rule XI, and asked whether an owner is required to submit additional plan sets to an outside entity based on direction from the department.  If outside review is required by the department, the department should be responsible for forwarding plan sets to the reviewer and paying any additional fees.

 

RESPONSE #60:  If the department feels it is necessary to have some aspect of the plan reviewed by a professional engineer, it may do so and the cost of the review will be paid by the applicant.

 

COMMENT #61:  Regarding Rule VIII(3) (37.115.305), if an owner submits plans, specifications, and the checklist to the department, can the owner advertise for bids on a public project, open construction bids, and then wait for approval from the department to issue the Notice to Proceed for construction?

 

RESPONSE #61:  The applicant is allowed to obtain bids on a project at any time.

 

COMMENT #62:  Rule VIII(2) (37.115.305) references Rule XI when it should reference Rule XII (37.115.308).

 

RESPONSE #62:  The department agrees and has made the correction.

 

COMMENT #63:  A commentor believed that it is the responsibility of any builder, engineer, or architect involved in the construction of a new facility to ensure that the rules are met.  However, it is difficult to comply with the rules when Rule XI has requirements that are not inclusive and identified.  Rule IX (37.115.306) and XI conflict.

 

RESPONSE #63:  The department does not understand what the commentor means by saying Rule XI has requirements that are "inclusive and indentified".  The rule gave examples of the type of queries an engineer may need to make for the department.  Ultimately, the department has the responsibility to ensure that an application meets the public health and safety requirements.  It therefore has a right to obtain any information it needs to determine if public health and safety concerns are met.  If it cannot obtain that information, it will need to deny the application for a license.  If needed, the department will obtain that information by retaining a private engineer to conduct the review and those costs will be paid by the applicant.

 

COMMENT #64:  A commentor stated that Texas had a rule similar to Rule XI and has since elected to amend the rule because of the number of problems the rule caused. 

 

RESPONSE #64:  The department hopes to avoid whatever unspecified problems that the commentor asserts occurred.  It is not possible to address the comment further where no details are provided.

 

COMMENT #65:  Maintenance staff often install or replace equipment.  The department should clarify the rule so that plans and specifications for minor changes that do require review but that are not part of a major remodel or construction of a new facility can be submitted by pool maintenance personnel.

 

RESPONSE #65:  The department agrees that a full plan review is not required for a maintenance repair or when equipment or components are replaced with identical or substantially similar equipment or components.  However, language has been added to clarify that the department must be notified of the change.  See changes to Rule VIII (37.115.305) under response to Comment #58.  Maintenance personnel may notify the department when equipment or components are replaced with identical or substantially similar equipment or components. 

 

COMMENT #66:  A commentor refers to Rule IX (37.115.306) and states that the department should require engineers, not pool contractors, to create plans because the department does not have an engineer to provide technical plan review.  This would also alleviate the burden on the department for the additional fees as the state grows.

 

RESPONSE #66:  The department agrees in part.  Engineers are licensed and insured for liability.  However, it is unclear what the department not having an engineer has to do with where the plans should originate when submitted.  The department will still have the right to obtain an engineering review by an engineer it retains under Rule X (37.115.307).

 

COMMENT #67:  Rule X(2) (37.115.307) is unclear because it states that the department may conduct preliminary inspections of any construction project to determine whether the actual design complies with the plans.  The plans and certified checklist are submitted for department review and approval before the project is constructed, not during construction.

 

RESPONSE #67:  The department disagrees.  In some instances the complexities of the project will require a department inspector to make one or more site visits at benchmarks that are identified in the phases of construction.

 

COMMENT #68:  A commentor referred to Rule X(3) (37.115.307) and stated that there are times when fixture/plumbing requirements are in conflict with local building/plumbing codes, and asks which entity has final authority in the event of a conflict.  The proposed rules state that the department's review will not include any determination of whether a plan is in compliance with building, electric, plumbing, mechanical, or ventilation codes.  Do the proposed rules contain plumbing requirements?

 

RESPONSE #68:  The department agrees that there may be conflict with local requirements.  In order to clarify, the department is requiring that where a conflict exists between standards set by various agencies with jurisdiction, the most stringent requirements must be met.  Written approval by other departments will be required prior to final approval by the department.  The department has modified Rule X (37.115.307).

 

COMMENT #69:  A commentor refers to Rule IX (37.115.306) and asks the department to define a "registered construction contractor".  Can a registered construction contractor seal and submit plans and specifications for a public entity?

 

RESPONSE #69:  The term "registered construction contractor" is defined in 39-9-102, MCA.  It refers to a contractor who is certified by the Montana Department of Labor and Industry, as meeting worker compensation insurance and unemployment insurance requirements.  Registration does not ensure that a contractor has any particular level of competency or expertise and no seal.  Therefore, a registered construction contractor has no seal and cannot sign off on plans and specifications that require the seal of a professional engineer.

 

COMMENT #70:  Regarding Rule XI, if a licensed engineer has signed off on the design plans, what is the added benefit for the plans to be reviewed by another firm?  The department should instead ask for the plan designer's calculations and paperwork.  Review by another firm will only cause delays and more financial hardship than necessary.  These comments also apply to Rule XL (37.115.522).

 

RESPONSE #70:  First, Rule XI has been absorbed into Rule X(37.115.307).  In responding to the above comment, the department disagrees.  While in some cases, it may be appropriate for the department to only double check calculations submitted by the applicant, in other cases it will need to retain an engineer to conduct an adequate review.  The department will require the calculations worksheet and any other data necessary from the licensed engineer that submitted the plans in order to allow or complete a review to occur and to ensure that rules are met.  The department does not see the same concern with Rule XL (37.115.522).

 

COMMENT #71:  A commentor did not object to a secondary review, but stated that the fee should be covered in the department budget.  If a conflict in plan interpretation occurs and the reviewing firm requests a change, does their liability insurance cover it the change, or will the state of Montana liable?

 

RESPONSE #71:  The Legislature has imposed the costs of the plan review upon pool owners and operators rather than requiring the taxpayers to pay these costs.  They are costs that are simply part of the cost of doing business.  The plan review will be provided to the contracted plan reviewer or engineer by the department and the applicant will be responsible for the entire cost.  Necessary corrections as a result of the review must be made by the applicant and not by the reviewer.  Additional paperwork and calculations can be submitted to the reviewer if needed.  Liability will rest with the applicant and any engineers employed by the applicant.  The applicant's design must comply with the rules before it will be approved.

 

COMMENT #72:  A commentor referred to Rule XII(1) (37.115.308) and states that they do not have a scaled drawing of their pool due to the age of the pool.  Obtaining a scaled drawing would take a great deal of time.

 

RESPONSE #72:  The department understands that an older water facility may not have existing scaled drawings.  However, if any upgrades, remodels, or replacements occur, the plans must be submitted to the department by a professional engineer, architect, or construction contractor overseeing the project.  At that time a scaled drawing is required.  The burden is outweighed by benefit for the owner and the public alike.

 

COMMENT #73:  A commentor pointed to Rule XII(2)(l) (37.115.308) and asks whether the estimation of the bather load can be less than the maximum bather load based on maximum pool capacity.

 

RESPONSE #73:  The department disagrees with allowing a lower bather load.  Designs approved must be for the maximum bather load.  This is common practice with designing a septic system, choosing an adequate size of walk-in refrigerator for a restaurant, and designing a potable water supply system for the public.

 

COMMENT #74:  A commentor referred to Rule XII(2) (37.115.308) and asks the department to simplify the plan review fee tables.

 

RESPONSE #74:  The department has simplified the fee rule.

 

COMMENT #75:  With respect to Rule XIII(3) and (4), (37.115.309) it is unclear when an additional review fee will be charged.  In Rule III(3) (37.115.309), if a set of plans and specifications are submitted, the department returns a comment letter, and the owner responds with clarifications that the initial reviewer missed, is a new review fee charged?  Rule III(4) (37.115.309) states at the end there will be additional fees charged.  Rule XIII(3) and (4) (37.115.309) appear to conflict.

 

RESPONSE #75:  The department agrees.  Rule XIII (37.115.309) has been modified.

 

COMMENT #76:  With respect to Rule XIV (37.115.311), a commentor stated that the fee table is cumbersome and hard to understand.  In the draft rules, an outside reviewer fee is listed as "reasonable", which is very open-ended.  Instead, the fee should be based on a percentage of the construction costs or a maximum fee amount.

 

RESPONSE #76:  The department agrees in part with this comment.  The fee table has been simplified.  However, the department specifically rejects the suggestion that a flat fee based on a percentage of the construction costs should be set as the review fee.  The fees have been set based upon an assessment of the time that will be needed to complete the assessment and the cost to the taxpayers for that time.  If fees were set based on construction costs, licensees who chose to build more luxurious facilities by using the highest grade materials would be assessed more for the same inspection based solely on the higher cost of those materials.  That would not be related to the amount of work done during the inspection.  It is therefore not an appropriate basis for setting the fees.  The department has set the fees for outside experts retained by it to conduct some aspect of the review as "reasonable" fees.  The department did this to avoid setting a range in the rule, which would encourage or allow experts to always charge at the high end of the range regardless of what was involved.  Under law defining the reasonableness of expert fees, the following factors are applied:  (1)  the education and training required to provide the expert insight that is sought; (2)  the prevailing rates of other comparably respected available experts; (3)  the nature, quality and complexity of the inquiry required; and (4) the fees the expert usually charges for such work.  Grady v. Jefferson County, 249 F.R.D. 657, 658 2008 U.S. Dist. LEXIS 19853 (Feb. 25, 2008).

 

COMMENT #77:  A commentor supported the use of a fee schedule to fund staff time for plan review.  The plan review fee structure could be simpler, however.

 

RESPONSE #77:  See Response #76.

 

COMMENT #78:  Is it possible for counties to do plan review under a cooperative agreement if they have qualified personnel?  Counties should be allowed to set their own plan review fees, based on local costs.  In addition, if counties are going to conduct the preopening inspections, there should be a mechanism for counties to get paid for that work.

 

RESPONSE #78:  These rules address the regulation of operators of pools, spas, or other water features.  They do not address the relationship between the state of Montana Department of Public Health and Human Services and local health departments.  Under the cooperative agreement provided for in 50-53-209, MCA, local health departments and the department will jointly define which inspection duties the local department is reasonable for.  Payment is governed by the provisions of 50-53-203(3), MCA.

 

COMMENT #79:  A commentor stated that it needs to be made clear how funds will be allocated to the local agency that provides the interim and preopening inspections.

 

RESPONSE #79:  See Response #78 and 50-53-203(3), MCA.

 

COMMENT #80:  A commentor proposed a one-time construction fee so owners do not have to worry about having to pay more fees.  This comment applies to all rules dealing with fees.

 

RESPONSE #80:  The department understands the concern and has modified the fee table.  However, if a project requires additional inspections due to its complexity or because there were problems with the applicant failing to comply with requirements and extra review is needed, that applicant will need to pay the additional inspection fees.

 

COMMENT #81:  A commentor requested that language be added to the rule to allow for local health agencies to charge for preopening inspections.

 

RESPONSE #81:  See Response #78.

 

COMMENT #82:  Rule XV(2) (37.115.312) conflicts with the last sentence of Rule XIII(4) (37.115.309).

 

RESPONSE #82:  The department disagrees.  Rule XV(2) (37.115.312) addresses the situation in which the department determines it must ask for additional information beyond that originally requested in the plan review packet.  Rule XIII(4) (37.115.309) addresses the situation where the applicant has failed to submit all information originally requested in the plan review packet.

 

COMMENT #83:  Several commentors explained that, regarding Rule XVI (37.115.313), following a second reviewer's advice concerning pool review presents an issue of liability may arise if there is a difference of opinion between the applicant's engineer and the reviewer's engineer retained by the department since the completed work may not be certified by the applicant's engineer and that engineer's liability insurance covers the work.  The commentors contend that outside review of plans for items the department staff does not have the expertise to review should be paid for under the fees already submitted.

 

RESPONSE #83:  The department disagrees.  The department has the obligation to conduct sufficient review to ensure compliance with the rules.  If needed, the department will retain an outside review to assist it.  If there is conflict between the applicant's engineer and the engineer retained by the department, the license will not be issued until that conflict is resolved.

 

COMMENT #84:  A commentor supported contracting with an outside engineer in order to ensure compliance with the rules.

 

RESPONSE #84:  The department acknowledges and appreciates the comment.

 

COMMENT #85:  The language in Rule XVI (37.115.313) should be changed to provide that if there are challenges to the department's review, the department may contract with an outside engineer for review.  The fees associated with an outside engineer should be the responsibility of the party submitting plans for review.  These fees must be paid prior to licensing.

 

RESPONSE #85:  The department disagrees.  If a legal dispute arises and the department then retains an expert engineer to assist in defending its decision, the engineer is the department's expert for purposes of the legal proceedings and the cost for that expert must be paid by the department.

 

COMMENT #86:  A commentor asked whether Rule XVII(2) (37.115.314) allowed the department to visit project sites arbitrarily and charge visit fees relating to project components after an owner has already paid the plan review fee for the entire project.

 

RESPONSE #86:  No.  Rule XVII(2) (37.115.314) allows the department to identify benchmark points in the construction process where it will need to verify the construction site.  Decisions about the benchmarks will be based on the complexities of the project.

 

COMMENT #87:  It is redundant for Rule XVII (37.115.314) to allow the department to charge a fee to verify whether an application is complete.  The rule could be omitted.

 

RESPONSE #87:  The department disagrees.  Rule XVII (37.115.314) refers to fees for site visits conducted during predetermined benchmark points in the construction process.  In addition, Rule XVII(4) (37.115.314) needs to be included into the plan review fee and not stand as its own feet.  Table 1 has been retitled "Fee Table". 

 

COMMENT #88:  The time for construction to commence after plan review has been approved is too short as set forth in Rule XVIII (37.115.316).

 

RESPONSE #88:  The department agrees and has revised Rule XVIII (37.115.316).

 

COMMENT #89:  Does the state have the manpower and expertise to perform construction observation under Rule XIX (37.115.317)?  Does observation relieve the pool designer from design responsibility?

 

RESPONSE #89:  Although the department will not be on the construction site throughout construction, any time there is a question or concern about a component, the department has a right to visit the construction site.  Additionally, the department may require the licensee to notify the department of upcoming benchmark points in the construction so that the department's inspector may make a visit before construction continues beyond that point.

 

COMMENT #90:  It is unclear when and how local health departments will be reimbursed for construction inspections.

 

RESPONSE #90:  See Response #75.

 

COMMENT #91:  Rule XX(2) (37.115.319) refers to the review of changes in approved plans.  It is unclear what level of change requires department review.

 

RESPONSE #91:  Any time a change occurs from an approved plan the department must receive documentation in advance and must approve the change in writing.  The department has added language to Rule XX (37.115.319).

 

COMMENT #92:  A commentor referred to Rule XX (37.115.319) and stated that the designer needed to certify and submit the "record drawing" and noted that the project was built in accordance to the approved plans and current regulations, which is what MT-DEQ utilizes.

 

RESPONSE #92:  The department appreciates the comment to Rule XX (37.115.319) and has taken care of the concerns by revising the language in Rule XX (37.115.319).

 

COMMENT #93:  A commentor believed that Rule XXI (37.115.321) is a good addition to the rules.

 

RESPONSE #93:  The department acknowledges and appreciates the comment.

 

COMMENT #94:  A commentor stated that Rule XXII (37.115.323) is unreasonable.  It is unreasonable to require an owner to wait for review when a piece of equipment like a pump needs to be replaced.  It could take 30 days and the delay would affect business.

 

RESPONSE #94:  The department agrees and has clarified throughout the rules that review is not required when equipment is replaced with identical or substantially similar equipment or components.  However, the department must be notified of the change to equipment.

 

COMMENT #95:  Several commentors referred to Rule XXIII and stated that the classifications listed in the draft rules do not match ANSI, that the classifications contain many discrepancies, and that the classifications have no real purpose in rule application.

 

RESPONSE #95:  The department agrees and appreciates the comment.  The department will not be adopting Rule XXIII.

 

COMMENT #96:  Rule XXV(2) (37.115.503) states that nontempered glass is not allowed in the entrance of any pool.  Does entrance refer to the pool room or the pool itself?

 

RESPONSE #96:  The department agrees that Rule XXV(2) (37.115.503) is not clear and has changed the language in Rule XXV (37.115.503) to clarify this concern.

 

COMMENT #97:  Rule XXIX(3) (37.115.507) talks about the depth being marked if there is a bench in the pool.  The rule does not state what owners should use to mark the depth or how the depth should be marked.  If a bench is of a contrasting color, why would the depth have to be marked?  Additionally, a bench placed in the shallow end of a pool would already be marked with "No Diving".

 

RESPONSE #97:  The department agrees that the additional marking requirements in the rule are not clear and has made changes to Rule XXIX (37.115.507).  Due to the design of such a pool that is not a spa, there is an increased risk of injury.

 

COMMENT #98:  Rule XXIX (37.115.507) contains numerous discrepancies and redundancies.

 

RESPONSE #98:  The department disagrees and is unable to respond further since any alleged discrepancies and redundancies are not identified.

 

COMMENT #99:  Rule XXVII (37.115.505) needs to be clarified.  The rule contradicts the rules on lazy rivers and other special water features.

 

RESPONSE #99:  The department disagrees that the rule is contradictory.  Locations of lifeguards are paramount to protecting public safety.  ANSI standards state that lifeguard shall be placed in locations that ensure the adequate supervision of bathers.

 

COMMENT #100:  Rule XXVII(37.115.505) is redundant.

 

RESPONSE #100:  The department disagrees.  This rule is set out in the design and construction section of the rules to identify general factors that must be considered at this phase of a project.  That does not make it redundant even though other aspects of that topic (shape) must also be considered in the subchapters addressing circulation systems and in sections on lifeguard placement.

 

COMMENT #101:  Rule XXX(3) (37.115.508) does not refer correctly to ASME.

 

RESPONSE #101:  The department acknowledges and appreciates the comment.  The correct description should say "ANSI/ASME A112.18.8-2007".  For easier interpretation and meaning, this will be removed and the general phrase "VGBPSSA" will be used instead.  The Virginia Graeme Baker Act incorporates ANSI/ASME A112.19.8-2007.

 

COMMENT #102:  A commentor stated that some pools are being sold as "Virginia Graeme Baker Act-approved" main drain covers.  The design of the pump and filtration does not hold the main drain cover to VGBPSSA compliance; therefore, the filtration is greater than 1.5 feet per second.  An engineer should be required to verify that the flow through the VGBPSSA cover on the pool is in compliance.

 

RESPONSE #102:  The department agrees and is requiring certification by a professional engineer that the main drain complies with the requirements of the VGBPSSA, which sets a maximum velocity of 1.5 feet per second for a main drain.  The certification will need to be submitted to the department within one year after the effective date of these rules, though no pool, spa, or other water feature may operate until its main drain is in compliance with the VGBPSSA.

 

COMMENT #103:  A commentor stated that the rule needs to be clarified to explain that the sanitarian is not determining the compliance.  This responsibility of compliance must rest on the operator to document compliance or have a P.E. provide documentation. 

 

RESPONSE #103:  The department acknowledges and appreciates the comment.  The pool facilities will have to provide documentation that the velocity through the main drains with the VGBPSSA covers in place do not exceed 1.5 feet per second.  Operators will not have the expertise to ensure the velocity through the main drains is 1.5 feet per second or less.

 

COMMENT #104:  A commentor referred to Rule XXXI(1) (37.115.509) and requests that the word "flat" or "horizontal" be inserted before the word "edge".

 

RESPONSE #104:  The department agrees and has added the word "flat" to Rule XXXI (37.115.509).

 

COMMENT #105:  With respect to Rule XXXIII(1) (37.115.511), a commentor supported Rule XXXIII(1) (37.115.511) because many older pools have poor ventilation systems, and the buildup of chloramines can be substantial.

 

RESPONSE #105:  The department acknowledges and appreciates the comment.  The buildup of chloramines can be harmful to the lungs and mucus membranes of swimmers and employees when ventilation does not add adequate fresh air from the outdoors.

 

COMMENT #106:  A commentor, referring to Rule XXXIII (37.115.511), recommended adding language that requires any future remodels to bring a facility into compliance with the most current air quality standards.  Such facilities should also be required to have a written air-improvement plan to mitigate air quality issues, should problems occur.

 

RESPONSE #106:  The department agrees and has added language to Rule XXXIII (37.115.511).

 

COMMENT #107:  A commentor directed the department's attention to the September 2006 Morbidity and Mortality Weekly Report (MMWR) concerning an outbreak causing respiratory illness in at least 24 people associated with the build-up of chloramines and a lack of ventilation in an indoor swimming pool.  Another MMWR documents respiratory illness among employees that work in an indoor water park.

 

RESPONSE #107:  The department acknowledges and appreciates the comment.

 

COMMENT #108:  A commentor referred to Rule XXXIII(2)(a) through (e) (37.115.511) and stated that the rule appears to address ventilation at poolside, but the rule can only be applied to dressing rooms, shower rooms, and bathrooms.  It appears that the standards in the rule were meant to apply to the entire facility, including these rooms.

 

RESPONSE #108:  The department agrees and appreciates the comment.  Clarification has been added to Rule XXXIII (37.115.511).

 

COMMENT #109:  A commentor stated that there is a conflict with a statement in Rule X(3)(b) (37.115.307).  If Rule X(3)(b) (37.115.307) does not relate to air quality, and the department will not be measuring humidity, why is (b) included as a requirement?

 

RESPONSE #109:  Although the department will not be responsible for calculating the air flow in an indoor pool, for new pools, the applicant or operator will be required to have documentation stating that the ventilation meets local building code or ASHRAE requirements.  Additionally, if any empirical evidence shows poor air ventilation as shown under Rule XXXIII (37.115.511) as seen to the response for comment #110 below, then the facility will be required to correct the problem.

 

COMMENT #110:  A commentor stated that the standards cannot be met for an indoor pool in October.  This has to do with the one degree temperature difference between the air and the pool temperatures and with the amount of air change.

RESPONSE #110:  Any indoor pool facility shall have the air recycled adequately to prevent the buildup of stagnant air.  This would help prevent condensation buildup as well as provide enough fresh air to not create a health hazard for swimmers or workers due to chloramines.  The temperature of the room should be 2 to 3 degrees warmer than the pool water for comfort.  The department does not understand how the month of October would create an issue with airflow for a building or altering the temperature of the air in an indoor pool facility.  Because many sanitarians as well as pool operators will not be taking ambient (air) temperatures or recording the humidity (which affects condensation), Rule XXXIII(1) (37.115.511) is adequate enough to empirically determine if the air quality is acceptable.

 

COMMENT #111:  Rule XXXIV (37.115.513) does not specify whether it applies to in-pool or deck lighting.  The rule should contain more specific or measurable lighting requirements.

 

RESPONSE #111:  The department acknowledges and appreciates the comment.  The clarification has been added to Rule XXXIV (37.115.513).

 

COMMENT #112:  A commentor believed that language should be added to Rule XXXIV (37.115.513) to state:  "These new rules will help reduce the risk of drowning".

 

RESPONSE #112:  The department acknowledges and appreciates the comment.  However, the proposed language need not be added to the rule.  The risk of drowning is more related to Rule XCV (37.115.1315) concerning clarity of water.

 

COMMENT #113:  A commentor pointed to Rule XXIV (37.115.502) and stated that the proposed two-inch disk that is supposed to be seen at the bottom of a pool would not be able to be seen with the glare.  The commentor believed that the use of a two inch disk is not reasonable and that a six inch should be required by the rule.

 

RESPONSE #113:  The department believes that the commentor most likely meant for this comment to apply to Rule XCV (37.115.1315).  The clarity of the water necessary to see the bottom of the pool is the defining measurement for safety.  As stated in Rule LXXXIX (37.115.1308) and Rule XCV (37.115.1315), the clarity of the water can be measured using a turbidity test.  The department agrees that the six inch disk should be used instead of a two inch disk.  The department has changed the language accordingly in Rule XCV (37.115.1315).

 

COMMENT #114:  A commentor referred to Rule XXXV (37.115.515) and would like to see the design requirement based on another factor other than the maximum loading rate of a pool area.  Commentor would like to adjust the facility occupancy to a "safer" lower number of allowed occupants and adjust the bath house facilities based upon that number.

 

RESPONSE #114:  The department disagrees.  All design requirements are based on maximum capacity.  There may always be a lower number of occupants allowed entry to a facility.

 

COMMENT #115:  A commentor referred to Rule XXXVI(2) (37.115.517) and stated that commentor's pool facility has a four-foot deck around the pool.  The six-foot requirement in the rule means that a wall would have to be removed at commentor's facility, and removing a wall would not be practical or possible.

 

RESPONSE #115:  The department acknowledges the comment.  Rule XXXV(2) provides that the decking around an existing privately owned public pool is only required to have a four-foot deck around the pool.  Existing municipal owned pools are required to have a six-foot deck.  Any time an applicant undertakes an upgrade or major repair, current standards will need to be met.

 

COMMENT #116:  With respect to Rule XXXVII(3) and (5) (37.115.518), if the deck carpet is six feet from the pool and the deck cannot slope to the carpet, it will have to slope toward the pool.  This is not permitted.  A deck drain system is needed.  The phrase "and to a deck drain" should be added at the end if Rule XXXVII(5) (37.115.318) to clarify the rule.

 

RESPONSE #116:  The department appreciates the comment but does not see how adding "and to a deck drain" would clarify the rule.  In many designs the decking slopes toward a gutter or a drain.  The carpet, being six feet away from the pool, would not be within the area of the decking.  If carpet is provided six feet away from the pool, typically it is at a higher elevation than the gutter or drain because the decking around it is sloping to the gutter or drain.

 

COMMENT #117:  A commentor stated that its facility uses carpet on the step leading into and out of the spa.  The commentor believes that the carpet is an important safety feature.

 

RESPONSE #117:  The department acknowledges and appreciates the comment.  This comment appears to reflect a unique situation.  However, carpet on a step leading into or out of a spa will become unclean and its condition will deteriorate.  Therefore, another method will be required to prevent the steps from becoming slippery without creating cleaning concerns.  Rubber matting has been utilized in many pool facilities, as well as nonslip surfaces.  Deck carpet may no longer be used within six feet of a pool, spa or other water feature.

 

COMMENT #118:  Several commentors referred to Rule XXXVII (37.115.518) and recommended that the department add clarifying language about where indoor deck drains – versus outdoor deck drains – are required to connect.  For example, are indoor deck drains required to go to the sanitary sewer?  Is landscaping considered a perimeter drain system for outdoor pools, or do outdoor pool drains also have to connect to the sanitary sewer?

 

RESPONSE #118:  The department believes it is clear in Rule XXXVII (37.115.518) of the rule stating "effectively drain either to perimeter areas or to deck drains.  Drainage shall be designed to remove splash water, deck cleaning water, and rain water to the waste water disposal system without leaving standing water".  Rule XXXVII (3) (37.115.518) also states that outdoor pools shall utilize either perimeter or drain systems.  Indoor pools will be required to move grey water to the sanitary sewer with an air gap provided as well.  Outdoor pools will be allowed to use a landscape design as long as standing water is not evident.

 

COMMENT #119:  Rule XXXIX (37.115.521) should state that hose connections must be installed to enable all parts of the swimming pool or spa area to be reached for cleaning.  Currently the rule only demands that small pools comply.

 

RESPONSE #119:  The department disagrees with the commentor's interpretation.  The pressure against a backflow prevention device may be too great if a hose is longer than 50 feet.  The rule requires hose connection at many locations as needed to allow all parts of the pool, spa or other water feature to be cleaned by a hose no longer than 50 feet.

 

COMMENT #120:  The 50-foot hose length should be deleted and the existing rule wording "are easily manipulated lengths" kept.

 

RESPONSE #120:  Because many types of backflow prevention are available, the department agrees with the spirit of the comment.  The length of hose must be supported by the appropriate backflow prevention device.  The department has modified the rule accordingly.

 

COMMENT #121:  It is unclear whether water supply in Rule XL (37.115.522) refers to a public water system.

 

RESPONSE #121:  Any time a privately or publicly owned pool or water feature provides water for transient guests or the community, it is considered a public water supply.  A public water supply can originate from a well, spring, reservoir, or public utilities.  An example of a water system that is not a public water supply is a private well serving one household and used only by that family.

 

COMMENT #122:  Rule XL (37.115.522) refers to DEQ publications and administrative rules that are not current.  The entire rule needs to be replaced with the most current approved DEQ water supply rules.

 

RESPONSE #122:  The department agrees that at the time the proposed draft pool rules were created, the reference to the DEQ water supply rules was not current.

 

COMMENT #123:  Rule XLI(5) (37.115.523) states that mop water or cleaning solutions cannot be disposed of in a toilet or mop sink.  How should mop water or cleaning solutions be disposed of?

 

RESPONSE #123:  The department disagrees with the interpretation of Rule XLI(5) (37.115.523).  Rule XLI(5) (37.115.523) states that mop water or soiled cleaning water may not be disposed of in any sink other than a mop or utility sink or toilet.

 

COMMENT #124:  A commentor referred to Rule XLIII and stated that the 60 inch fence requirement does not match the ANSI-2 Standard incorporated in Rule IV (37.115.201).

 

RESPONSE #124:  The department agrees.  However, the ANSI standard concerning barriers is found in ASI/NSPI-8-1996, and the reference has been removed from Rule IV (37.115.201).  Rule XLIII (37.115.602) is more specific and will take priority over the standards in ANSI for height of fencing.

 

COMMENT #125:  With respect to Rule XLIII (37.115.602), a commentor stated that his or her facility gates open inward and asked why the proposed rule says that the gates must open outward.

 

RESPONSE #125:  Since plan review is generally conducted by multiple agencies, the department is attempting to avoid conflicting requirements.  Typically the fire department requires gates to open outward.

 

COMMENT #126:  A commentor, referred to Rule XLIV (37.115.603), and asked whether barriers are required for flow-through splash decks and splash decks on recirculation systems and asserts that a five-foot barrier could create more problems than it would solve.

 

RESPONSE #126:  The department will require barriers at least five feet high around splash decks to reduce the potential for contamination by animals that carry diseases and parasites such as cryptosporidium or giardia.

 

COMMENT #127:  A commentor stated that fences are meant to protect splash decks from animals.  Splash decks are unattended, which will reduce the effectiveness of the barriers.

 

RESPONSE #127:  The department agrees that an attendant would help facilitate the closing of a gate.  However, self-closing gates are available.

 

COMMENT #128:  Rule XLV (37.115.602) is confusing.  Clearer wording is needed.

 

RESPONSE #128:  The department has modified the language in Rule XLV (37.115.602) to make it clearer.

 

COMMENT #129:  The date referenced in Rule XLVI (37.115.603) should be changed from January 1, 2010 to January 1, 2012, in order to give owners sufficient time to budget for improvements.

 

RESPONSE #129:  The department agrees that more time is appropriate but will extend the time only to December 31, 2010.

 

COMMENT #130:  A commentor asks whether Rule XLIV (37.115.603) applies to class C or semi-private pools.

 

RESPONSE #130:  Classification of pool rules is being removed and won't be adopted.  Rather than considering "class C" or "semi-private" pools, consider the following:  indoor pools usually already have walls for barriers; however, a barrier of four feet must remain between a wading pool and a swimming pool.  Any outdoor pool that is not a splash deck will still be required to have a barrier 60 inches in height.  An indoor pool that does not have a barrier and is in open area such as an atrium will also need to install a barrier to keep anyone using the open area from having unsupervised access to the pool.

 

COMMENT #131:  Rule XLVII(2) and (3) (37.115.701) are confusing and redundant.

 

RESPONSE #131:  The department agrees and has modified Rule XLVII (37.115.701).

 

COMMENT #132:  Rule XLVIII (37.115.702) requires recessed treads and should have similar descriptions.  Instead, descriptions vary greatly.

 

RESPONSE #132:  The department disagrees.  The rule describes entries into a pool and placement of steps and ladder may be provided in the deep end.  Steps or ladders may be provided in the shallow end.

 

COMMENT #133:  It is unreasonable for Rule XLVIII (37.115.702) to require two handrails.

 

RESPONSE #133:  The department disagrees.  Rule XLVIII (37.115.702) is specific to ladders, not handrails.

 

COMMENT #134:  What is the intent of Rule LI (37.115.706)?  It is unclear whether handholds are required to extend into the pool.  There are many different types of coping available.  Typically, a place to hang on is inherent with the deck and edge of pool.

 

RESPONSE #134:  Coping or the end of decking may be designed for a handhold.  The handhold is not to be any further than 12 inches above the height of the water.  In other words, it has to stay within easy reach of a swimmer at the side of the pool.  If the commentor is referring to Rule LII (37.115.707), the handrail attached to the ladder must reach to the bottom step of the ladder.

 

COMMENT #135:  Rule LII (37.115.707) conflicts with some building codes.  In the event of a conflict, which standard will govern?

 

RESPONSE #135:  The commentor did not identify any specific conflicts, so the department was unable to respond.  Rule LII (37.115.707) has been modified to clarify the minimum distance these rules require a handrail to cover.

 

COMMENT #136:  Rule LII(1) (37.115.707) should be simplified to state that handrails are required wherever ladders, stairs, or recessed treads are provided.

 

RESPONSE #136:  See Response #135.

 

COMMENT #137:  A commentor stated that Rule LII(2) and (4) (37.115.707) contradict each other.  Either the handrail should go to the last step or it should be 18 inches shy of the last step.

 

RESPONSE #137:  See Response #135.

 

COMMENT #138:  Rule LIII (37.115.801) should be modified to reflect that diving boards may not be used until documentation has been provided showing that the diving boards meet manufacturer specifications.

 

RESPONSE #138:  The department agrees.  Rule I(1)(d)(37.115.101) prohibits use of any diving board unless it complies with ANSI-1-1991.  The rule has been modified to require documentation that the diving board complies with ANSI-1-1991 or with any manufacturer's guidelines that are more stringent.

 

COMMENT #139:  The title of Rule LIV (37.115.802) should be modified.  The rule deals more with general applicability than specific.

 

RESPONSE #139:  The department disagrees.  The title of the rule will main as proposed.

 

COMMENT #140:  Figure 2 in Rule LV (37.115.804) references "pt. A" but does not define it.  Clarification is needed.

 

RESPONSE #140:  The department agrees and also notes that the use of pool classification labels also confused use of proposed Tables 3 and 4 which are used in conjunction with Figure 2.  The figures and tables have been modified to clarify them.  The figure and table from the existing rule has been used with correction of a typographical error.

 

COMMENT #141:  With respect to Table 3, the column heading "Pool Type" is confusing.  The classifications refer to diving well types listed in the pool classifications in Table 4.  The department should consider changing the column headings to height and board length.  Combining Tables 3 and 4 into one table would make the rule easier to understand.

 

RESPONSE #141:  See Response #140.

 

COMMENT #142:  Rule LVIII (37.115.902) should be modified to make it clear to which facilities Rule LVIII (37.115.902) applies.  Are all facilities required to have toilets, showers, and dressing rooms?

 

RESPONSE #142:  The department appreciates the comment and has clarified the rule.  Classification of facilities has been removed.

 

COMMENT #143:  The table for the number of required bathrooms in Rule LIX (37.115.903) begins at too high a number and does not take into account smaller facilities.

 

RESPONSE #143:  The department disagrees.  The ratios adopt the International Building Code (IBO) requirements which have been adopted in Montana for building standards.

 

COMMENT #144:  With respect to Rule LIX (37.115.903), how are fixtures in a family changing room or unisex bathroom counted?

 

RESPONSE #144:  Unisex rooms are additional restrooms added at the election of the facility.  Installing a unisex or family restroom or changing room does not allow a facility that is otherwise not meeting the minimal requirements for facilities for men and women to come into compliance with the rule.  A unisex bathroom would need to meet the requirements under Rule LXII for a pool associated with a motel, a hotel, or other lodging.  That means at a minimum it must have at least a toilet, sink, and changing table available.  If it is a unisex or family changing room, it must also have a shower and dressing room.

 

COMMENT #145:  One commentor stated that the standards set forth in Rule LIX (37.115.903) are not very stringent standards, especially for hand sinks.  Does Rule LIX (37.115.903) provide an adequate fixture count to help prevent waterborne outbreaks?  Does the Department of Labor and Industry control the number of fixtures?

 

RESPONSE #145:  The department disagrees with the comment.  The numbers of fixtures required are set by the International Building Code (IBC).  Those are the current applicable standards used in Montana.

 

COMMENT #146:  Do the shower requirements in Rule LX(1) (37.115.904) apply to Class C pools?

 

RESPONSE #146:  The classification of "Class C" will be removed from the rules.  However, new pools at hotels, motels or lodging need to provide at least one shower near the pool.  Rule LVIII (37.115.902) has been clarified to described what is required.

 

COMMENT #147:  A commentor asked whether hand sanitizer is strong enough to be used in lieu of soap and water at changing tables.  It is better to wash hands with soap and water, and it takes 800 ppm of bleach to kill E coli.

 

RESPONSE #147:  The department agrees and has clarified the rule to require EPA approved disinfectant wipes to be available to clean the changing table.  Sinks with tempered water and soap are also required in the restroom.

 

COMMENT #148:  A commentor states that having changing tables in locker rooms will increase safety risks and vandalism.  Also, the diaper changing stations will increase the risk of transmission of disease.  Moreover, maintaining supplies will be an unnecessary expense.

 

RESPONSE #148:  The department disagrees.  The benefit of having the changing table outweighs the burden associated with a risk of vandalism.  Moreover, when diapers are changed at a central location and hand-washing facilities are available, there is a decrease in disease transmission.  This will eliminate diaper changing poolside.

 

COMMENT #149:  Rule LXIII (37.115.1001) is redundant.  It repeats definitions found elsewhere.  The portion of the rule that references circulation and recirculation can be added to Rule III (37.115.105).

 

RESPONSE #149:  The department appreciates the comment, but is keeping the rule.

 

COMMENT #150:  The department should maintain current turnover rates.  Costs increase 45 percent by increasing the turnover rates due to electricity use, chemical use, and possibly having to replace existing pipes with larger pipes and larger pumps.  If the water becomes cloudy, the owner has to shut down the pool anyway.  This is a subject for resolve between an owner and an engineer.

 

RESPONSE #150:  The department has reviewed the issue of turnover rates, particularly with the length of time that a secondary ultraviolet disinfectant needs to increase its effectiveness and is modifying the proposed rule to retain current turnover rates.

 

COMMENT #151:  There are many factors that influence the transmission of waterborne diseases other than turnover rate.  There are also many methods of water treatment to prevent illness.  Turnover rate is not the problem concerning disinfection; the problem is whether the chlorine level is adequate.

 

RESPONSE #151:  See Response #150.

 

COMMENT #152:  The turnover rates listed for catch pools, lazy rivers, vortex pools, and interactive play attractions are inconsistent among themselves in terms of time/bather load composition.  If you use ultraviolet or ozone for giardia or cryptosporidium inactivation, the time of exposure to those elements increases the success of inactivation.  If turnover rates are increased, the time of concentration is reduced therefore lowering the inactivation possibility.

 

RESPONSE #152:  See Response #150.

 

COMMENT #153:  A commentor proposed that a maximum 6-hour turnover rate be imposed on pools with an average depth greater than five feet; a 4-hour turnover rate on pools with an average depth of four feet; and a 3-hour turnover rate on pools with an average depth of three feet.  Pools that have a maximum depth of 24 inches should have a turnover rate of one hour.  A filtration system for a splash deck with no standing water should be 30 minutes.  All spas and hydrotherapy pools should have a 30-minute turnover, and all flow-through pools should have an 8-hour turnover.  Proposed Table 6 of the rule conflicts with ANSI/AF-9-2005 Section 4.15 (Turnover Time).

 

RESPONSE #153:  See Response #150.

 

COMMENT #154:  What is the purpose of clockwise flow, as referenced in Rule LXV(5) (37.115.1003)?

 

RESPONSE #154:  Clockwise flow is the natural circulation of water flow in the northern hemisphere.  The department has removed the reference to clockwise flow from the rule to prevent misunderstanding.  Rule LXV (37.115.1003) has been modified.

 

COMMENT #155:  Commentor requests that the use of vacuum sand filters should be listed as not needing a strainer or screen.

 

RESPONSE #155:  The department has reviewed information on sand filters and has modified the proposed rule to address this issue.

 

COMMENT #156:  Commentor believes that (5) should be removed from Rule LXVI (37.115.1005) or moved to the construction portion of the rule.  The reference to the Standard is incorrect and should say NSF/ANSI 50 2008.

 

RESPONSE #156:  The department acknowledges and appreciates the comment.  However, the pump requirement of meetings standards will remain in this rule.  The typographical error has been corrected.

 

COMMENT #157:  The reference to ANSI/NSF 50-2000 should be removed.  The department should add the requirements of the standards in this section.

 

RESPONSE #157:  The department acknowledges and appreciates the comment.  The reference to ANSI/NSF has been corrected.  Adding the requirements of the standards would be too cumbersome.  Many pumps can be found on an approved list by NSF/ANSI.

 

COMMENT #158:  The requirement for floor inlets is problematic in light of Montana's northern climate.  The inlets freeze and break if they are not drained.  Why is the department requiring floor inlets on pools over 40 feet in width?  Floor inlets are maintenance items.  They cause more problems than they solve.

 

RESPONSE #158:  The department agrees that the climate in Montana is not conducive to the use of floor inlets.  The department will not require such designs; instead, the department will allow owners to choose whether they want to use floor inlets.  Rule LXVII(4) (37.115.1006) has been eliminated.

 

COMMENT #159:  Rule LXVII(2) (37.115.1006) requires a minimum of two inlets regardless of the size of the pool.  This provision contradicts (3)(a) and (3)(b)

 

RESPONSE #159:  The department disagrees with commentor's interpretation that there is a conflict.  Rule LXVII(2) (37.115.1006) creates a minimum requirement for two inlets for smaller water features.  They cannot be more than 15 feet apart, but can obviously be closer to allow the minimum of two inlets. 

 

COMMENT #160:  A commentor believed that Rule LXVII(4) (37.115.1006) is incorrect.  Pools with widths greater than 40 feet will require gutter systems.

 

RESPONSE #160:  The department is confused by the comment.  Inlets are addressed in Rule LXVII (37.115.1006).  Gutters are addressed in Rule LXIX (37.115.1008).

 

COMMENT #161:  The first sentence of Rule LXVII(1) (37.115.1006) is a definition.  A definition should not be included in the rule section.

 

RESPONSE #161:  The department agrees and has deleted the redundant portion of (1) in Rule LXVII (37.115.1006).

 

COMMENT #162:  The reference to ANSI/APSP-7 2006 in Rule LXVIII (37.115.1007) should be replaced with corresponding wording into the body of the rules.

 

RESPONSE #162:  The department has clarified the applicable standard for safety features for outlets by referring to the VGBPSSA throughout these rules where outlets are addressed.

 

COMMENT #163:  Rule LXVIII(5)(b) (37.115.1007) states that "there must be an inlet within five feet of any corner in the pool".  This statement should be placed in Rule LXVII (37.115.1006) instead of Rule LXVIII (37.115.1007).

 

RESPONSE #163:  The department agrees and has relocated the statement from Rule LXVIII (37.115.1007) to Rule LXVII (371.115.1006).

 

COMMENT #164:  With respect to Rule LXVIII(5)(c) (37.115.1007), a commentor stated that if skimmer drains cannot be isolated from other skimmers, it will be impossible to vacuum a pool.  The commentor believed that without the use of shut-off valves, a certain percentage of water flow cannot be regulated through the skimmers.

 

RESPONSE #164:  The department has reviewed the comment.  However, the change will not be made because it would not comply with the safety requirements of the VGBPSSA,

 

COMMENT #165:  The reference to ANSI/APSP-7 2006 should be removed from Rule LXVIII(6) (37.115.1007).  The department should add the language found in ANSI/APSP-7 2006 to the rule.

 

RESPONSE #165:  See Response #164.

 

COMMENT #166:  The 100 percent requirement in Rule LXIX(4) (37.115.1008) conflicts with the 70 percent requirement in Rule LXV(1) (37.115.1003).  The 100 percent requirement will cause pipes to be oversized so that during normal operation, the velocity of flow could cause sediment deposition.  This could foster growth of bacteria.

 

RESPONSE #166:  The department agrees with the comment and appreciate the statement.  Because the department has not observed any issues with undersized gutters, Rule LXIX(4) (37.115.1008) has been removed. 

 

COMMENT #167:  Rule LXIX(7) (37.115.1008) should say percent below the overflow gutter, not above.  The rule should also be changed to say that the water level in the pool, spa, or other water feature must be maintained within two inches to the overflow of the gutter, or as required by the manufacturer.

 

RESPONSE #167:  The department acknowledges and appreciates the comment.  However, in order to obtain a continuous skimming of water from the pool and filling the gutter system, the requirement must be "above" the gutter.  If a gutter system includes skimmers, it may operate as designed by the manufacturer, which might require the water level to be maintained at a lower level.

 

COMMENT #168:  Rule LXX(3) (37.115.1009) conflicts with the 70 percent requirement in Rule LXV(1) (37.115.1003).

 

RESPONSE #168:  The department disagrees with the comment.  Rule LXX(3) (37.115.1009) refers to requirement that the skimmer be designed to handle 100 percent of the flow, while Rule LXV(1) (37.115.1003) requires at least 70 percent of actual filtration to occur by the skimmers, when used along with a main drain.

 

COMMENT #169:  With respect to Rule LXX(6) (37.115.1009), a commentor stated there are not equalizer covers available. 

 

RESPONSE #169:  The department disagrees.  According to CPSC, the Consumer Product Safety Commission, there are equalizer line covers available and currently in production to include other equalizer designs.  Also, another method for meeting compliance is to have the equalizer lines completely blocked off.  For newly installed skimmers, owners have the option of not installing the equalizer line component of the skimmer.  Equalizer lines should not be used until they comply with VGBPSSA.

 

COMMENT #170:  A commentor referred to Rule LXXI (37.115.1010) and states that the department should add sand vacuum filters and hair lint filers on vacuum D-E filters into the rule.

 

RESPONSE #170:  The department acknowledges and appreciates the comment; however, it is unclear where the commentor thinks the language should be placed in Rule LXXI (37.115.1010).  If the commentor is meaning to ensure that all components are included, (4) was added.  This rule is intended for vacuum equipment that attaches to a skimmer and cleans the bottom of the pool where the patrons swim. 

 

COMMENT #171:  Rule LXXII(3) (37.115.1011) identifies one particular manufacturer's specifications for the installation of a flow meter.  Instead, the rule should state that the flow meter must be installed per manufacturer specifications. 

 

RESPONSE #171:  The department acknowledges and appreciates the comment.  Language has been modified to require compliance with the manufacturer's guidelines.

 

COMMENT #172:  Rule LXXII(5) (37.115.1011) references ANSI/NSF 50-2008.  The reference should be removed and the department should add corresponding wording to the rules. 

 

RESPONSE #172:  The department disagrees.  See Response #38.

 

COMMENT #173:  Rule LXXII(6) (37.115.1011) uses the word "filter" when it should state "replacement cartridges". 

 

RESPONSE #173:  The department acknowledges and appreciates the comment.  However, by using the term "filter" to replace a cartridge, the rule may be interpreted as sand filter media.  "Cartridge" will remain in Rule LXXII (37.115.1011).

 

COMMENT #174:  The color specifications in Rule LXXIV (37.115.1015) are contrary to standards used by the water treatment industry.

 

RESPONSE #174:  The department agrees that specifying the method marking of pipes is not necessary for these regulations and is revising Rule LXXIV (37.115.1015).

 

COMMENT #175:  Small community pools do not have the labor force to take care of ORP readers required by Rule LXXV (37.115.1016) correctly, so they read precisely and they do fine with the approved DPD test kit approved by the state.

 

RESPONSE #175:  The department disagrees.  A certified pool operator should have no problem in taking care of an ORP reader.  The department does agree that some facilities do perform accurate and timely water testing and successfully maintain proper chemistry for their pool.  The department has therefore modified the rule so that new upgraded pools are not all required to install ORP systems.  However, if there are repeated problems with water quality during successive inspections, the department may require the installation and use of an ORP system.

 

COMMENT #176:  A commentor supported Rule LXXV (37.115.1016).  The commentor has seen a marked decrease in the number of critical item violations and pool closures in facilities that have automatic systems.  These systems are able to respond quickly to increases in bather load keeping water chemistry more consistent.

 

RESPONSE #176:  The department acknowledges and appreciates the comment.

 

COMMENT #177:  A commentor requested scientific reasoning for requiring the ORP when manual testing and documentation works.

 

RESPONSE #177:  Please visit the TCC website for scientific study done on ORP and chlorine readings in NSPI Water Chemistry Symposium, Phoenix, AZ published in NSPI Symposium Series, Vol. I (1996).  Additional information on ORP can be found by logging into www.montanapublichealthtcc.org.

 

COMMENT #178:  A commentor referring to Rule LXXV (37.115.1302), stated that a 0.2 ppm combined chlorine level is unrealistic; 0.5 pmm is the current standard and is very difficult to reach once swimmers are in the pool; maintain the current standard.

 

RESPONSE #178:  The department agrees that identifying a 0.2 ppm combined chlorine level is difficult to identify with many DPD test kits and difficult to maintain with high bather loads.  By requiring use of showers for aquatic facilities and by not allowing the use of cyanuric acid for indoor pools, the combined chlorine levels should take longer to build up, leaving more free chlorine available for a longer period of time.  Most pools do not have a reader that discriminates in 0.1 increments.  The department has therefore modified the rule and will monitor the effectiveness of these measures to determine if in the future it should amend the rule to set a lower level.

 

COMMENT  #179:  A commentor, referring to Rule LXXXVII(2) (37.115.1305), asked about (2)(a) through (c), whether the limits in the rule were established from existing data, industry standards, or other state requirements and would like a comparison.

 

RESPONSE #179:  The numerical values included in the rule have been set by EPA, Quality Criteria for Water, for the maximum amount of bacteria that may be found in water before an individual becomes sick from contact with that water.  Additional information may be found by contacting Procedures for Developing compliance Rules for Water Quality Protection, Criteria and Standards Division, Office of Water Regulations and Standards Environmental Protection Agency, 401 M Street SW, Washington, DC  20640 or www.epa.gov/waterscience/criteria.  See also response #178.

 

COMMENT #180:  A commentor stated that maintaining a level of 0.2 for combined chlorine is very difficult to achieve and that the rules should remain with the 0.5 ppm value.

 

RESPONSE #180:  The department agrees and has revised the language in Rule LXXXVIII (37.115.1307).  See also response #178.

 

COMMENT #181:  A commentor asked the department to remove the word "continuous" in Rule LXXV (37.115.1016) and use a more appropriate word.

 

RESPONSE #181:  The department appreciates the comment and has modified Rule LXXV (37.115.1016).

 

COMMENT #182:  The commentor also asked to define or explain "industry standard". 

 

RESPONSE #182:  The department believes the term "industry standard" may have been confusing and has modified the proposed rule as noted in subsection (1) and (8) of Rule LXXV (37.115.1016).

 

COMMENT #183:  A commentor recommended specific changes to the language of Rule LXXV, requiring that the water be automatically disinfected and to change the term "disinfectant" to "sanitizer".

 

RESPONSE #183:  The department has modified the rule.

 

COMMENT #184:  Automatic systems are required in the pool code of Alaska, Florida, Illinois, Ohio, South Carolina and Utah.

 

RESPONSE #184:  The department thanks the commentor for the information.

 

COMMENT #185:  One commentor, referring to Rule LXXV(4) (37.115.1016) requests that the department remove the reference to ANSI/NSF 50-2008 and add "corresponding wording".

 

RESPONSE #185:  See Response #38.

 

COMMENT #186:  The commentor pointed out that requiring written approval for a change in method of disinfection as indicated in Rule LXXV(7) (37.115.1016), would result in another fee.

 

RESPONSE #186:  The department has modified the fee table in Rule LXXV(7) (37.115.1016) to clarify that a fee is required for change in a disinfectant system only where there is a substantial modification in the disinfectant system.

 

COMMENT #187:  Portions of Rule LXXV (37.115.1016) are redundant. 

 

RESPONSE #187:  The department has modified Rule LXXV (37.115.1016) to eliminate redundancy.

 

COMMENT #188:  Several commentors asked for the department's rationale for excluding catch pools for slides in Rule LXXVII(2) (37.115.1019), and point out that many saline solution pools are well maintained and should be allowed.

 

RESPONSE #188:  The department has reviewed this issue and agrees to modify the rule.  There is no data conclusively showing health concerns for salt generators used in Montana.  The department is allowing the use of salt generators for now.

 

COMMENT #189:  A commentor supported the adoption of Rule LXXIX (37.115.1101) requiring a Certified Pool Operator (CPO) on staff, noting a marked increase in compliance from pools with a CPO on staff, and would prefer the effective date to be sooner.

 

RESPONSE #189:  The department appreciates the comment, but believes the current effective date will allow most licensees reasonable time to either train or hire a CPO.

 

COMMENT #190:  A commentor noted that Rule LXXXIX(2)(a) (37.115.1308) allows for one CPO to supervise multiple pools and requests that the rule allow the local jurisdiction to approve or disapprove of that.

 

RESPONSE #190:  The department agrees that CPO availability may be more difficult for remote areas.  Also, larger communities with a greater number of pools close by one another may be effectively maintained by a single CPO and placing a number in the rule as to the number of facilities a CPO can manage may not be practical.  However, assessing the response of the CPO in a time of need and their ability to react is crucial.  The department has modified the rule to require the CPO to respond to a telephone contact within 30 minutes and provides measures to address a failure to do so.

 

COMMENT #191:  One commentor indicated that Rule LXXIX (37.115.1101), is confusing and contradictory.

 

RESPONSE #191:  The department has made multiple changes to the rule, which will hopefully remove any confusion.

 

COMMENT #192:  The term "remote areas" is not defined.

 

RESPONSE #192:  The department agrees that the term is not defined, but as noted, the term has been removed from the rule.

 

COMMENT #193:  Becoming a CPO is not cost effective because of the travel required, the cost of the training, and because on-the-job training is more appropriate than classroom training.

 

RESPONSE #193:  CPO certification is a nationally recognized certificate and is recognized in many other states.  The department will provide opportunities as it is able to, for what it believes will be very affordable training.  Private entities will also likely be providing seminars.  The training is needed to protect public health and safety.

 

COMMENT #194:  Is Rule LXXIX (37.115.1101) applicable to all pools, spas, and water features?  It will be difficult and costly for small operators such as tourist homes to employ a CPO for such a limited basis.

 

RESPONSE #194:  Yes, the rule is applicable to all licensees.  However, tourist homes will not be required to employ a CPO unless the use of any pool, spa or other water features exceeds the exception provided in Rule CLIV(1)(d).

 

COMMENT #195:  There was a study done by the Nebraska Health Department is 2006 that showed the facilities with Certified Pool Operators on site were less likely to have critical violations during inspection.

 

RESPONSE #195:  The department appreciates your comment.

 

COMMENT #196:  The forms in Rule LXXX(5) (37.115.1103) and throughout the document are cumbersome. 

 

RESPONSE #196:  The department disagrees.  Most information that must be maintained for a month will fit on one or two pages of forms.  Other forms are needed only if an accident or serious incident occurs.

 

COMMENT #197:  A commentor stated that in Rule LXXXI(1) (37.1115.1201) there is no mention of chlorine gas detector or alarm.  The commentor asserted that the rules should follow the recommended guidelines and need review.  The commentor stated he believes the intent is to read:  "Gas chlorine may be used as disinfectant only when the main pool recirculation pump is running and circulating pool water and the chlorine supply to the recirculation system is delivered under a vacuum condition".  The commentor indicated the suggested language would mean that if a leak occurs in the vacuum gas supply line, no chlorine gas can be pulled out of the chlorinator.

 

RESPONSE #197:  The department agrees and has modified the language in Rule LXXXI(1) (37.115.1201).

 

COMMENT #198:  A commentor disagreed with requirements set forth in Rule LXXXI(3) (37.115.1201), and stated, "If you are blowing chlorine out, then it will strip the vent".

 

RESPONSE #198:  The department disagrees.  It is common practice that any gas chlorine storage room has a vent located at the floor.

 

COMMENT #199:  Rule LXXXI(3) (37.115.1201) does not allow for locker-style chlorine storage.  The use of a locker-style chlorine storage cabinet where no person can enter need not have a ventilation system if it has double doors that open and all chlorine equipment is accessible without entering the storage closet.  This is currently allowable by the MT-DEQ.  See Section 5.4.2 from Mt-DEQ Circular #1.

 

RESPONSE #199:  Review of MT-DEQ Circular #1 does allow for a locker type of chlorine.  Language has been added to Rule LXXXI(7) (37.115.1201).

 

COMMENT #200:  Rule LXXXIII(b) (37.1115.1203) states the area not large enough to allow a person to enter so the oxygen requirement is not an issue here.

 

RESPONSE #200:  The department disagrees with the commentor.  The size of the room is not noted here.  If the room is designed for physical entry by the personnel then the oxygen demand requirements for safe entry is 19.5 percent.

 

COMMENT #201:  Rule LXXXIV (37.115.1301) says that no chemical or other agent may be used in the water unless an approved test kit is available.  There aren't any testing kits for water clarifiers, algaecides, and other chemicals used in basic pool maintenance.  If the health department uses a different test kit and gets different readings what is approved and what is recognized?

 

RESPONSE #201:  Many of the pool chemicals used and approved by EPA do have test kits available.  However, knowledge of the ingredients is essential.  For example, many algaecides have chlorine as a main ingredient and are already identified with the basic DPD test kit.  To prevent confusion, however, (1) has been removed and a portion of (5) has been removed.  Test strips are not accurate and do not meet accuracy reading criteria as outlined in this rule.  Finally, new (5) has been added to allow the department to approve a test kit in situations where a DPD kit will not test for higher pH levels allow in some hot springs. 

 

COMMENT #202:  Why Rule LXXXV(1) (37.115.1302) requires that testing has been done every four hours when an electronic or automatic equipment is required?

 

RESPONSE #202:  The two most important readings that need to be done every four hours are the chlorine and pH values.  If an ORP reader is in place, simply writing down the values and understanding the meaning is an accurate way to keep control of your water chemistry after initial water testing with the DPD test kit.  Actual water testing may be required for calibrating ORP equipment as well.

 

COMMENT #203:  A commentor, referring to Rule LXXXV(3) (37.115.1302), noted that it provides that adjustments shall be made to the water as needed to maintain the water chemistry within established parameters.  The commentor asserted that this should be done without anyone in the pool, spa, or other water feature.

 

RESPONSE #203:  The department agrees.  The pool must be closed pursuant to Rule XC (37.115.1309) if the water chemistry is outside the established parameter.  Additionally, Rule LXXXVII(3) (37.115.1305) requires that all bathers be out of the water if super chlorination (shocking) is used.

 

COMMENT #204:  A commentor believed more research is needed because ORP at 700 mV (as required in Rule LXXXVI (37.115.1304)) will be too high in many applications.

 

RESPONSE #204:  The department agrees that data at this time does not support raising the maximum ORP level reading from 650 mV to 700 mV.  The proposed rule has been modified to retain the standard currently set in ARM 37.111.1147(6).

 

COMMENT #205:  A commentor was in favor of Rule LXXXVI (37.115.1304) and had seen a decrease in violations and pool closures that use the ORP readers.  The commentor also favored the idea of using the ORP reader as a potential requirement to correct repeat violations.

 

RESPONSE #205:  The department acknowledges and appreciates the comments.  While new or remodeled pool facilities will not be required to install an ORP reader, the department will be able to require licensees with repeated violations to install an ORP reader.

 

COMMENT #206:  The ORP has other influences than chlorine levels, so must be calibrated based on chlorine levels – each pool water source should be calibrated to the ORP reading and chlorine residual.

 

RESPONSE #206:  The department acknowledges and appreciates the comments.  Any ORP device should be calibrated, installed, maintained, and used per the manufacturer's instructions.

 

COMMENT #207:  A commentor referred to proposed Table 7 of Rule LXXXIX (37.115.1308) and states that there is some evidence indicating that cyanuric acid interferes with the oxidation reduction potential of sanitizers.  This evidence supports a limit of 50 ppm and indicates that levels over 10-30 ppm CYA have no benefit.  Commentor directs the department to the article located at:  www.ppoa.org/pdfs/PrP_Cyanurics%20Benefactor%200r%20Bomb.pdf.

 

RESPONSE #207:  The department agrees and has modified the values in the table as appropriate and as supported by scientific evidence.

 

COMMENT #208:  Rule XCI(37.115.310) is redundant.

 

RESPONSE #208:  The department disagrees. 

 

COMMENT #209:  A commentor stated that the saturation index in Rule XCIII (37.115.1313) is missing TDS (total dissolved solids). 

 

RESONSE #209:  The department agrees and has corrected Rule XCIII (37.115.1313) to include the needed figures.

 

COMMENT #210:  The saturation index table in Rule XCIV (37.115.1314) is missing TDS.

 

RESPONSE #210:  See Response #209.

 

COMMENT #211:  Elements of (2) and (2)(a) are redundant within Rule XCV (37.115.1315).

 

RESPONSE #211:  The department appreciates the comment and has modified the rule to make it more clear.

 

COMMENT #212:  A commentor asked where the 1.0 NTU level, referred to in Rule XCV(3) (37.115.1315) as the required clarity level, was obtained.  Were tests run at various NTU levels to verify the visual test, and do the NTU values have a correlation?

 

RESPONSE #212:  The Association of Pool and Spa Professionals have created NTU values for water clarity for pools.  Information is available at www.apsp.org/200906NewsletterClarity.html.

 

COMMENT #213:  With respect to Rule XCV(3) (37.115.1315), a commentor agreed with the rule and stated that it is imperative to include a quantifiable measurement such as can be taken with a turbidity meter in these rules for situations in which there is dispute over the subjective clarity reading.

 

RESPONSE #213:  The department agrees and appreciates the response.

 

COMMENT #214:  A commentor stated, regarding Rule XCV(3) (37.115.1315), that "[a]ccording to National Swimming Pool Foundations Pool Inspector Training, NSF recommends a turbidity standard of .5 NTU. NSF also mentions that there are several states that have adopted this standard into their code.  This is an industry standard".

 

RESPONSE #214:  The department agrees that the standard NTU of 0.5 is ideal; however, the American Pool and Spa Professionals (APSP) states that during peak bather loads the NTU reading may reach 1.0 and that the turbidity has six hours to reach 0.5.  That is the range the department includes in the new rule.

 

COMMENT #215:  A commentor referred to Rule XCV(4)(c) (37.115.1315) and states that "poor" water clarity requires closing of pool or spa.

 

RESPONSE #215:  The department agrees and appreciates the comment.

 

COMMENT #216:  A commentor agreed with the types of signs required in Rule XCVI (37.115.1401).  The language of the rule is clearer and better addresses public health and safety.

 

RESPONSE #216:  The department agrees and appreciates the comment.

 

COMMENT #217:  A commentor referred to Rule XCVI (37.115.1401) and states that it needs to be clear that the signage is required for all water attractions.

 

RESPONSE #217:  The department believes the statement "Every pool, spa, or other water feature shall conspicuously post signs" is clear because it includes every water facility and states the three categories the facility may fall under.

 

COMMENT #218:  A commentor asked whether Rule XCVI (37.115.1401) applies to class C pools.

 

RESPONSE #218:  The department has removed the classification "C pools" from the rules.

 

COMMENT #219:  Some of the signs required by Rule XCVI (37.115.1401) are offensive.

 

RESPONSE #219:  The department disagrees.  Rule XCVI (37.115.1401) merely sets out the categories of warning that must be provided.

 

COMMENT #220:  A commentor stated that the wording for signs in Rule XCVI (37.115.1401) is similar to what is proposed by the National Spa & Pool foundation (NSPF) in their inspector training.  In fact, the proposed wording in that training contains more stringent signage, including a message about entering and exiting the spa slowly and notification that long exposures in a spa may result in dizziness, fainting, and nausea.  NSPF or APSP may have guidelines for pool and splash deck features also.  Signage specifying no swimmers with diarrhea is much better; no one other than a health professional understands the term "communicable disease". 

 

RESPONSE #220:  The department agrees that the term "communicable disease" may not be clear to all users, therefore that term has been replaced with "transmitted" or with reference to a specific disease.  The additional spa safety languages requested have been added.

 

COMMENT #221:  Rule XCVI (37.115.1401) contains redundant or unnecessary language.

 

RESPONSE #221:  The department appreciates the comment and has modified the rule.

 

COMMENT #222:  A commentor referred to Rule XCVII (37.115.1402) and states that there are several new signs and requirements set forth in the rule.  From where were these signs and requirements derived, and what is their basis?  Do other states impose similar requirements?  These new signs need to be reviewed.  Commentor states that his or her comment also applies to Rule XCIX (37.115.1404), C (37.115.1405), and CI (37.115.1406).

 

RESPONSE #222:  Many of the same requirements are listed in California regulations.  See:  www.abag.ca.gov/plan/members/secure/Pool%20And%20Spa%Sample%20Checklists#20and%20Rules.pdf.  They are also found in Indiana regulations, as well.  Because there are new water facilities in Montana, as well as outbreaks of waterborne illness; the added language is necessary to inform the public of proper, hygienic behavior.  The department does not feel a need to have the signs reviewed because other states have adopted the same signs in their rules.

 

COMMENT #223:  The word "communicable" in Rule XCVII(3)(b) (37.115.1402) should be replaced.

 

RESPONSE #223:  See Response #221.

 

COMMENT #224:  The department should remove "or the deck area" from Rule XCVII(3)(a) (37.115.1402). 

 

RESPONSE #224:  The department agrees and has modified Rule XCVII (37.115.1402).

 

COMMENT #225:  A commentor asked whether the spa sign requirements in Rule XCVIII (37.115.1403) apply to Class C pools.

 

RESPONSE #225:  The department has removed the pool classifications from the proposed rules, including reference to Class C pools.  Any spa for public use, except those at tourist homes, must have the required spa signs posted.  That includes the pools operated in conjunction with lodges, such as hotel and motel pools.

 

COMMENT #226:  Rule XCVIII(1)(a) (37.115.1403) refers to pool when it should refer to spa.

 

RESPONSE #226:  The department agrees and has modified Rule XCVIII (37.115.1403).

 

COMMENT #227:  The word "communicable" in Rule CXI (37.115.1702) should be replaced with a word that is more generally understood.

 

RESPONSE #227:  See Response #220.

 

COMMENT #228:  A commentor referred to Rule CIII(1) (37.115.1503) and asks why the rule specifies within one foot to the shallow side.  The rule should specify that it be on the shallow side of five feet to indicate the change (by definition) of shallow to deep water.

 

RESPONSE #228:  The department has modified CIII(1) (37.115.1503).

 

COMMENT #229:  A commentor asked whether the first-aid kit referred to in Rule CIV (37.115.1505) can be located at the front desk, or whether the kit must be available by the pool.

 

RESPONSE #229:  The first-aid kit may be kept at the front desk as long as it is readily accessible at all times.

 

COMMENT #230:  A commentor referred to Rule CV (37.115.1507) and asks whether an intercom rather than a phone can be used, so long as the intercom or phone routed to the office or front desk is manned at all times.  Please specify how far away the phone or intercom can be from the spa, pool, or other water feature.

 

RESPONSE #230:  An intercom may not be used to route to the front desk.  Many times front-desk personnel have to attend to another job task that is away from the front desk.  The rule states that the phone must be affixed to the wall near the pool.

 

COMMENT #231:  A commentor asked whether the portion of Rule CIX (37.115.1604) that states that the "pool must have at least one lifeguard per 2,000 square feet of pool area or fraction thereof, with a minimum of one lifeguard regardless of the size of the pool" is worded correctly.  It is not clear if the 2,000 square feet also includes decking around the pool or just pool surface area.  The commentor referred to ARM 37.111.1154(2)(e), which is not addressed in the new proposed pool rules.  Commentor states:  "The required number of lifeguards must be on duty at all times when a swimming pool is open for use by bathers".  This change will force facilities to close or severely limit hours the pool is open for use. 

 

RESPONSE #231:  The requirements for lifeguards for municipal pools or the square footage area requirement of pool surface has not changed from the rule presently in force.  The square footage area does not include decking.  The new requirements for lifeguards include the requirement for lifeguards for newer water features such as flume slides, wave pools, and vortex pools, but excludes wading pools and splash decks.  The newer features are more likely to present potential safety issues.  For such features, owners must employ lifeguards, as specified, whether or not the water feature is in a municipal pool or a privately owned public pool.  When a smaller population is served, a portion of the pool may be closed, which would result in fewer lifeguards being needed.

 

COMMENT #232:  A commentor stated that under Rule XVI (37.115.313), his or her facility would always need a minimum of two lifeguards on duty at all times, regardless of the number of patrons.  The community is small and it will be difficult to find lifeguards to fulfill this requirement.  Why is there a need for two lifeguards when there are twenty-five patrons or less?  The facility would have to cut back on activities, limit public services and revenue, and at the same time double hourly cost.

 

RESPONSE #232:  The department believes the commentor is referring to Rule CIX (37.115.1604).  The rule states there must be at least one lifeguard for the first 2,000 square feet of pool area and another lifeguard for any amount over that up to 6,000 square feet.  The rule is used in the lifeguard training programs where a lifeguard has 10 seconds to scan the area for a troubled swimmer and 20 seconds to reach the swimmer.  Again, a portion of the pool may be closed if the area is greater than 2,000 square feet and another lifeguard is not available. 

 

COMMENT #233:  A commentor referred to Rule CVI (37.115.1601) and Rule CVII (37.115.1602) and states that the requirements for lifeguards at privately owned public pools are unclear.  Rule CVII (37.115.1602) states that private pools do not need lifeguards.  Rule CVI (37.115.1601) lists the specific types of pools that need lifeguards.

 

RESPONSE #233:  Rule CVI (37.115.1601) identifies the situations in which lifeguards are required.  It includes all municipal pools.  It also includes all privately owned public pools with the specifically listed water features.  If a pool does not fall within rule CVI (37.115.1601), it falls within Rule CVII (37.115.1602).

 

COMMENT #234:  Rule CVII(1) (37.115.1602) refers to Rule CVII (37.115.1602) when it should refer to Rule CVI (37.115.1601).

 

RESPONSE #234:  The department agrees and appreciates the response.  The department has modified Rule CVII (37.115.1602).

 

COMMENT #235:  A commenter referred to Rule CIX (37.115.1604) and asks whether the number of lifeguards and lifeguard placement requirements are coordinated with the Red Cross – Montana Municipal Insurance Authority (MMIA) requirements.

 

RESPONSE #235:  Although the department is unsure of MMIA's requirements for insurance, the 2,000 square foot of pool surface area per lifeguard requirement is widely accepted in states across the United States.  This requirement does not differ from the requirement in the rule currently in place.  There have been no requests or comments from insurance companies concerning lifeguard placement or ratios.

 

COMMENT #236:  Does Rule CXII (37.115.1703) apply to class C pools?

 

RESPONSE #236:  Rule CXII (37.115.1703) applies to all municipal or privately owned public pools, including pools operated in conjunction with lodging, such as motels and hotels.  If the MMIA requirements for lifeguards is higher, a licensee may  always exceed the minimum set in the rules. 

 

COMMENT #237:  A commenter believed that Rule CXIII(2) (37.115.1704) may conflict with rules pursuant to the Americans with Disabilities Act (ADA).

 

RESPONSE #237:  The department disagrees.  Public health, safety and welfare requires animals not be near enough to a pool to contaminate it with parasites or insects or other disease-bearing micro-organisms.  It is not a reasonable accommodation to allow a service animal nearer to the water than what is provided in the rule.

 

COMMENT #238:  A commenter asked whether the approval process referred to in Rule CXIV (37.115.1801) will occur during plan review.

 

RESPONSE #238:  Rule CXIV (37.115.1801) states that the department has a right to review a nonconforming specialty pool and apply the rules for compliance.  That would occur during the plan review process.

 

COMMENT #239:  A commenter stated that it is unclear whether all sections of these rules apply to these special purpose pools, or only the pertaining sections in this subchapter.

 

RESPONSE #239:  Any nonconforming specialty pool that has components in the design that are addressed in the rules must meet the requirements of those rules.  In the future, if any new pool designs that are not are created yet classified in these rules, Rule CXIV (37.115.1801) allows the department to apply these rules to such water features and to require that they comply with these rules.

 

COMMENT #240:  Splash decks and wading pools should not be exempt from the rest of the rules by the language in Rule CXIV (37.115.1801).  The way the current rules are written, only the section on wading pools can be applied to wading pools.  A section at the beginning of this subchapter that identifies that "all special use pools and water features must meet all applicable standards and those specifically identified as follow" would eliminate confusion as to which rule applies.

 

RESPONSE #240:  The department disagrees with this interpretation of Rule CXIV (37.115.1801).  Rule CXIV (37.115.1801) requires that any specialty pool, spa, or other water feature must meet all substantive requirements in these rules.  In addition, they must also meet any requirements specific to that type of water attraction.  Additionally, because of the nature of wading pools not all substantive provisions in these rules that apply to other pools will be applicable.  The language in Rule XCIV (37.115.1801) merely acknowledges that.

 

COMMENT #241:  Some of the slide configurations referenced in Rule CXVIII(1)(b)(i) (37.115.1806) require a 24-foot minimum plunge pool.

 

RESPONSE #241:  Rule CXVIII (37.115.1806) provides mandatory distances from sides and other vertical surfaces.  The department is unclear if the commenter is describing a 24-foot distance to a wall.  The department has modified the rule to provide for longer distances if such distances are required by the manufacturer.

 

COMMENT #242:  A commenter stated that a speed slide with a run-out trough or a plunge pool option needs to be included in Rule CXIX (37.115.1807).

 

RESPONSE #242:  The department acknowledges and appreciates the comment.  Use of a run-out trough or plunge pool shall be determined by the design of the slide per the manufacturer's instructions.  The rule requires installation in accordance with those instructions.

 

COMMENT #243:  Parts (2) and (4) of Rule CXXI (37.115.1809) conflict.

 

RESPONSE #243:  The department agrees and has modified the rule. 

 

COMMENT #244:  A commenter referred to Rule CXXIII(4) (37.115.1811) and states that there is a need to reference the table for recirculation rates to prevent misunderstanding if the rules are modified in the future.

 

RESPONSE #244:  The department disagrees.  The rules properly reference the time limits in more than one location in the rules.  If the time limits are changed, both rules will be amended.  (See Response #244.)

 

COMMENT #245:  A commenter referenced Rule CXXIII(8) (37.115.1811) and asks, "[w]hat is the purpose of having inlets in the tank?"

 

RESPONSE #245:  The inlets referenced in Rule CXXIII(8) (37.115.1811) are not the same as pool inlets.  When discussing a holding or surge tank, there are inlets that allow water to enter or leave the tank.  These are the type of inlets referenced in (8).  These inlets allow a holding tank to acquire a certain volume of water before the water spills out of the chamber and exits through an inlet.

 

COMMENT#246:  A commenter asked why splash decks referred to in Rule CXXVI (37.115.1814) are not required to have shower facilities.  A large number of current cryptosporidium cases in the United States are associated with splash decks.  Why does the department exempt splash decks from providing shower facilities?

 

RESPONSE #246:  The department agrees that splash decks should not be exempt from providing shower facilities.  The rule has been changed.

 

COMMENT #247:  Rule CXXVI (37.115.1814) is redundant because Rule LVIII (37.115.902) also includes "other water feature".

 

RESPONSE #247:  The department disagrees.  The department has chosen to identify requirements specific to a particular water feature even if that requirement may also be included in general provisions.

 

COMMENT #248:  Rule CXXIX(f) (37.115.1819) states the recirculation rate instead of referencing the table.  This is confusing.

 

RESPONSE #248:  The department agrees that restating a 30-minute turnover rate may be repetitive and appreciates the comment.  However, stating in (f) and also (g) that circulation components such as the pump and the filter must be of a design to accommodate a 30-minute turnover rate helps support the circulation design of a commercial type of spa, and also helps to exclude the residential type of circulation system.

 

COMMENT #249:  Why does Rule CXXX(2) (37.115.1821) disallow the use of salt generators in spas?

 

RESPONSE #249:  Salt generators are corrosive to decking, parts of pools, and equipment.  However, there are a handful of salt generators in the state that have proved adequate for providing sanitizer to the water facility based on inspection reports.  The department will allow salt generators.  The department has modified Rule CXXX (37.115.1821).

 

COMMENT #250:  With respect to Rule CXXXII(3) (37.115.1824), commentor states there is no power to the main drain.  Rule CXXXII(3) (37.115.1824) does not make sense.

 

RESPONSE #250:  The department agrees and has removed main drain from the description in Rule CXXXII (37.115.1824).  The main purpose is to cut off power to the pumps.

 

COMMENT #251:  Why does Rule CXXXIII (37.115.1825) require permanent depth markers visible from all obvious points of entry instead of on the vertical walls of the spa itself?

 

RESPONSE #251:  Depth markers for spas are treated differently than depth markers for pools and other water features because the depth of a spa is constant.  Markers are to be 25 feet apart; therefore, only one marking is required for a spa.

 

COMMENT #252:  With respect to Rule CXXXVIII (37.115.1836), what is the basis for a 30 minute turnover rate?

RESPONSE #252:  The department has reviewed this proposed change and has decided to change the turnover rate to one hour until more data supports shorter turnover times.

 

COMMENT #253:  Rule CXXXVIII conflicts with the compliance date referenced in Rule II(1)(c).

 

RESPONSE #253:  Rule II(1)(c) (37.115.104) refers to fill and drain wading pools that will no longer be allowed in use after December 31, 2010.  Rule CXXXVIII references those wading pools with a recirculation and disinfectant system.

 

COMMENT #254:  What does the term "applicable provisions" mean?  This is unclear and unenforceable.  Please do not exempt the wading pools from the rest of the rules.

 

RESPONSE #254:  The department does not understand this comment.  Rule CXXXVII (37.115.1835) does not use the term "applicable provisions".  See Response #247.

 

COMMENT #255:  A commentor stated that the turnover time in Rule CXXXVIII (37.115.1836) should remain at one hour.  There would have to be major changes to the filtration equipment to accommodate a thirty-minute turnover rate.  Commentor would like the department to provide scientific evidence that the change in the turnover rate is necessary.

 

RESPONSE #255:  See Response #252.

 

COMMENT #256:  What is the intent of Rule CXL (37.115.1838)?  Wouldn't the maximum distance be seven inches?  What type of pool manufacturer requires seven inches?  What is the purpose for specifying the deck-to-water distance?  Manufacturers only make a standard-sized skimmer.

 

RESPONSE #256:  The department has reviewed (3) and decided to remove it from the rule to eliminate confusion.

 

COMMENT #257:  The eight-hour turnover rate in Rule CLXIII (37.115.1845) is unreasonable when a spa is emptied and cleaned every night.  Rules require cleaning every three days.  To help maintain acceptable temperature, the flow into the pool must be turned off for a period of time.  A pH of 9.4 seems high; other parts of the rules state 8.5.  The natural 106 degree temperature is duplicated in the rule.

 

RESPONSE #257:  A facility may choose to empty and clean a spa every night if the facility so chooses.  If there is a high bather load, more frequent cleaning of the spa is in the best interest of the bathers.  The rule sets minimum standards.  The department notes that pH and the hot spring swimming temperature is high; however, the standards are set at 9.4 by statute.  Section 50-53-115, MCA allows the pH for flow-through hot springs to be as high as 9.4.  The repetition in the temperature is a typographical error.  A hot springs pool used for active swimming shall not be higher than 100° F, even though a hot springs spa may be as high as 106° F.  The department has corrected the typographical error.

 

COMMENT #258:  A commentor stated that an ORP meter is needed to prove the oxidation reduction potential in the water when facilities are allowed to have a pH over 7.8.  What are the public health reasons to justify a pH over 7.8?  These facilities could add hypochlorous acid concentration to lower pH levels.

 

RESPONSE #258:  The Legislature has specifically allowed flow-through hot springs to operate and be licensed with a pH up to 9.4.  Hot springs water is naturally hard and typically has a higher pH.  Hot springs are typically flow-through systems; they may maintain a higher pH because they do not use chlorine.  If a hot springs licensee wishes to use chlorine, the licensee will need to comply with DEQ requirements and would need to establish a dechlorination chamber prior to releasing the water into a nearby stream or channel.

 

COMMENT #259:  A commentor referred to Rule CXLV (37.115.1847) and asks whether the department will itself set additional safety requirements or whether it will just follow the attraction supplier's requirements for items (b) through (e).

 

RESPONSE #259:  The department will review the safety recommendation provided by the manufacturers.  At a minimum they must be followed.  If the department determines that more stringent requirements are needed to protect public health and safety, it will set any such requirements as licensing requirements.

 

COMMENT #260:  A commentor referenced Rule CXLVI (37.115.1901) and asks whether the late fee is not the same as other licensed establishments.  Twenty-five dollars per month is different than some other licenses. 

 

RESPONSE #260:  The department believes that the comment is in reference to Rule CL(1)(c) (37.115.1907).  That late fee is set by the Legislature in 50-43-203(2), MCA.  The Legislature may have set different late fees for other types of licenses.

 

COMMENT #261:  With respect to Rule CLII (37.115.1910), may the license be displayed at the front desk rather than in the pool area?

 

RESPONSE #261:  The pool license shall be displayed at the pool, at the water feature, or at the front desk in a conspicuous place to be seen by the public.  It should not be stored in a folder where it cannot be seen by patrons.

 

COMMENT #262:  Rule CLIV (37.115.1912) should contain a separate section for tourist homes and bed and breakfasts.

 

RESPONSE #262:  The department acknowledges and appreciates the comment.  The department agrees that tourist homes should have their own written rules; however, at bed and breakfasts, multiple transient guests use the facilities and food is also served by hosts.

 

COMMENT #263:  A commentor stated that if a public accommodation or other type of consumer license is required, pools and tubs associated with them should also be licensed.  Most, if not all, of these tubs are of a "residential" type and currently do not meet codes.  Under the draft pool rules, they may fall under "self-contained tubs".  Commentor currently offers the owner an option to drain, clean, and refill after each guest, or to have a Certified Pool Operator to monitor and balance the water prior to each guest. 

 

RESPONSE #263:  The department acknowledges and appreciates the comment.

 

COMMENT #264:  A commentor disagreed with Rule CLIV(1)(c) (37.115.1912).  Apartment pools should be licensed.  Members of the public rent these apartments.  The public would likely expect these pools to be licensed and inspected. 

 

RESPONSE #264:  The department agrees and has removed (c) from Rule CLIV (37.115.1912). 

 

COMMENT #265:  A commentor disagreed with Rule CLIV(1)(e) (37.115.1912) and believes that it is unenforceable.  Tourist home spas may require a different set of rules for spas that are provided for a single tourist home.  Perhaps spas that are located at very small bed and breakfasts could also be regulated under a different set of rules.  Spas that are shared by more than one tourist home, or, at most, bed and breakfasts, should be regulated under these rules. 

 

RESPONSE #265:  The department agrees and appreciates the comment.  Bed and breakfasts, however, will need to be inspected because multiple transient guests frequent the facility.  The rules provide that tourist homes that drain and clean the spa between guests do not need to be licensed.  If a complaint comes to a health department  about a tourist home, an investigation can be initiated as to whether the spa is being drained and cleaned between each use.  If the department finds that it is not being drained and cleaned between each use, the spa will need to be licensed or will not be allowed to operate.

 

COMMENT #266:  A commentor referred to Rule CLVI (37.115.2002) and states that sanitarians inspecting pools should be certified pool operators, at a minimum.  Training by the department for inspections needs to be available and affordable to local health departments.  The commentor's biggest concern was with the new enforcement and administrative procedures.  These rules undoubtedly spell out the state procedures well, but they will not be effective in counties that do pool inspections and enforcement.  The department needs to allow counties working under a cooperative agreement to adopt local enforcement procedures and administrative procedures for swimming pools and spas to provide training to local sanitarians.

 

RESPONSE #266:  The department agrees in part and disagrees in part.  See Response #78.  Cooperative agreements will spell out the duties local inspectors have.  Additionally, the department will be providing training for local inspectors.  However, the Legislature has not delegated rulemaking authority for enforcement to local departments.  The enforcement provisions have been carefully drafted to comply with constitutional requirements, the specific statutory provisions for enforcement actions involving pools, spas, and other water features, the Montana Administrative Procedure Act, and State ARM requirements for contested cases.  They must be followed state wide.

 

COMMENT #267:  A commentor referred to Rule CLVI (37.115.2002) and stated that there is a comprehensive and detailed data collection tool available for use the first time a pool is opened.  Please refer to www.cdc.gov/nceh/ehs/Docs/Pool_Systems_Tool_06-2005.pdf.  After the initial inspection, the monthly, quarterly, and annual follow-up inspections are shorter and oriented towards process verification and monitoring.  This approach is the best of both worlds and promotes closer understanding between public health officials, facility operators, and management. 

 

RESPONSE #267:  The department thanks commentor for the information and reference material.

 

COMMENT #268:  A commentor referred to Rule CLVI(5)(a) (37.115.2002) and states that a particular year-round facility only gets inspected once a year.  The rules state that it should be inspected twice a year. 

 

RESPONSE #268:  The rule requires year-round facilities to be inspected twice a year.  Only one is required to be a full inspection.

 

Rules CLXIII through CLXVIII

 

A total of four comments were received on the published proposed rules pertaining to the hearing procedures to be followed when there is a hearing set or requested regarding negative action that has occurred or is proposed against a license issued for a swimming pool, spa, or other water feature.

 

COMMENT #269:  A commentor noted that the term "imperative risk" used in Rule CLIX(37.115.2102) is not used correctly and suggests that the term "imminent" would be more appropriate.

 

RESPONSE #269:  The department agrees.  The language of Rule CLIX(37.115.2102) has been modified to correct the grammatical use of the terms "imperative" and "imminent", while still reflecting the statutory use of the word "imperatively" in Section 2-4-631(3), MCA.

 

COMMENT #270:  A commentor expressed concern that the language in Rule CLXV (37.115.2205) which requires that a notice of hearing indicate that formal proceedings may be waived pursuant to Section 2-4-603, MCA, may conflict with Section 2-4-603(2), MCA.  That subsection provides that formal proceedings may not be waived if the proceedings are held under Title 37 or under "any other provision relating to licensure to pursue a profession or occupation".

 

RESPONSE #270:  The department has reviewed the language in the statutes and disagrees that there is a conflict. Section 2-4-601, MCA, specifically requires that the notice include a statement that formal proceedings may be waived.  Any negative licensing action involving a license for a swimming pool, spa, or other water feature is not a license for a profession or occupation.  It is a business license for operation of the specific pool, spa, or other water feature.  No changes will be made to this language.

 

COMMENT #271:  A commentor expresses concern that the term "prevailed" as used in Rule CLXVII(37.115.2209) might be a term that is unclear and which will result in disputes.

 

RESPONSE #271:  The department agrees.  The language in Rule CXLVII(1)(37.115.2209) using the term "prevailed" has been changed to instead describe what relief would constitute prevailing in a fair hearing.

 

COMMENT #272:  A commentor expresses concern that some of the provisions in Rule CLXVII(37.115.2209) may conflict with Article IV of the Montana Rules of Evidence and that the Rules of Evidence should govern. 

 

RESPONSE #272:  The department has reviewed Rule CLXVII(37.115.2209 and agrees that subsection (2) could arguably conflict with some rules of evidence in particular situations.  The department also agrees that the Rules of Evidence would prevail in those instances.  Therefore, Rule CXLVII(2)(37.115.2209) has been eliminated, subsection (3) has been modified and renumbered as subsections (2) and (4), and only a narrow portion of the original (2) that is consistent with the Rules of Evidence has been kept as subsection (3). 

 

 

 

/s/  Shannon McDonald                                /s/  Hank Hudson for                        

Rule Reviewer                                               Anna Whiting Sorrell, Director

                                                                        Public Health and Human Services

 

Certified to the Secretary of State January 4, 2010

 

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