Administrative Rules of the State of Montana

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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CORRECTED 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 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. On January 14, 2010 the department published the notice of adoption, amendment, and repeal at page 80 of the 2010 Montana Administrative Register, Issue Number 1.

2. This corrected notice is being filed to correct errors in ARM 37.5.117, 37.111.104, 37.111.123, Rule VI (37.115.302), Rule VIII (37.115.305), Rule XIV (37.115.311), Rule XXII (37.115.323), Rule XXXVI (37.115.517), Rule XLIV (37.115.603), Rule LV (37.115.804), Rule LXXXIX (37.115.1308), Rule XCIII (37.115.1313), Rule XCV (37.115.1315), Rule XCVIII (37.115.1403), Rule CV (37.115.1507), Rule CVII (37.115.1602), Rule CXVII (37.115.1805), Rule CXXXVI (37.115.1828), and Rule CLXVII (37.115.2209)

3. The following rules are corrected as follows, new material underlined, deleted material interlined:

37.5.117 CERTAIN TITLE 50 PROGRAMS AND OTHER PROGRAMS FOR WHICH NO PROCEDURE IS OTHERWISE SPECIFIED: APPLICABLE HEARING PROCEDURES (1) through (1)(n) remain as adopted.

(o) requests for departmental review of final grievance decisions by contractors under the ~~Children's Health Insurance Plan (CHIP)~~ Healthy Montana Kids (HMK) Plan;

(n) through (v) remain as adopted.

AUTH: 50-1-202, 53-2-201, 53-6-113, MCA

IMP: 41-3-1103, 41-3-1142, 42-10-104, 50-1-202, 50-4-612, 50-5-103, 50-6-103, 50-6-402, 50-15-102, 50-15-103, 50-15-121, 50-15-122, 50-31-104, 50-52-102, 50-53-103, 52-2-111, 53-2-201, 53-4-1004, 53-6-101, 53-6-111, 53-6-113, 53-6-402, 53-20-305, 53-24-208, MCA

37.111.104 PRECONSTRUCTION REVIEW (1) through (1)(d) remain as adopted.

(e) location and detail of laundry facilities including description of equipment, floor and wall finish material, and a flow chart indicating the route of laundry through sorting, washing, drying, ironing, folding, and storage;

(f) specifications for a swimming pool, spa, or other water feature to serve the establishment unless the ~~swimming~~ pool, spa, or other water feature has been previously approved by the department;

(g) through (3) remain as adopted.

AUTH: 50-51-103, MCA

IMP: 50-51-103, MCA

37.111.123 ~~SWIMMING~~ POOLS, SPAS, AND OTHER FEATURES (1) The department adopts and incorporates by reference ARM Title 37, chapter 115, subchapters 1 through 22, stating construction and operating requirements for ~~swimming~~ pools, spas, and other water features. A copy of ARM Title 37, chapter 115, subchapters 1 through 22 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, MT 59620-2951.

(2) remains as adopted.

AUTH: 50-51-103, MCA

IMP: 50-51-103, MCA

RULE VI (37.115.302) HEALTH AND SAFETY VIOLATIONS THAT MAY REQUIRE IMMEDIATE POOL CLOSURE (1) through (1)(b) remain as adopted.

(c) except during lap swimming or competitive swimming, no guard line is in place at the break between the shallow and deep ends of the swimming pool, spa, or other water feature; or

(i) through (3) remain as adopted.

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

(2) All plans and specifications ~~listed in [RULE XI]~~ for new facilities and all plans and specifications pertaining to any planned changes or additions to existing facilities shall be submitted as attachments to a plan review checklist form. The forms are available from the department by contacting the Department of Public Health and Human Services, Food and Consumer Safety Section, 1400 Broadway, P.O. Box 202951, Helena, MT 59620-2951 or at www.fcss.mt.gov.

(3) through (4) remain as adopted.

AUTH: 50-53-103, MCA

IMP: 50-53-103, MCA

RULE XIV (37.115.311) FEE TABLE

Table 1.

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 XXII (37.115.323) UNAPPROVED CONSTRUCTION OR INSTALLATION (1) remains as adopted.

(2) If construction on the pool shell, pool piping, or ~~an other~~ another component associated solely with the pool, spa, or other water features begins before the plan is submitted for review and approved, the construction must cease immediately until the plans, specifications, and applicable fees provided for in these rules are submitted, the review is completed, and the project is approved.

(3) and (4) remain as adopted.

AUTH: 50-53-103, MCA

IMP: 50-53-103, MCA

RULE XXXVI (37.115.517) DECK AREAS (1) All swimming pools constructed after ~~the~~ March 1, 2010 or operated by a municipality shall have a deck surrounding it that is a minimum width of six feet of unobstructed deck area as measured from the pool edge.

(2) through (6) remain as adopted.

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 XLIV (37.115.603) BARRIERS FOR SPLASH DECKS (1) Splash decks and interactive play attractions built after ~~the~~ March 1, 2010 must have a barrier that is at least 60 inches high around the deck. Splash decks built before March 1, 2010 must install a barrier meeting this requirement by March 1, 2010.

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 - DIVING ENVELOPE DESIGN REQUIREMENTS (1) Swimming pools having diving equipment shall be designed to comply with the design requirements of Figure 2 and to provide at least the minimum water depth required in Table 3 found in ARM 37.115.805.

Figure 2 remains as adopted.

~~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]~~

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) Water chemistry, temperature, and clarity measurements must fall within the parameters set forth in Table 7 6:

Table 6.

Parameter

Acceptable range

Ideal range

Maximum

Chlorine

2-8ppm

3-5ppm

8ppm

Combined

chlorine

0 to 0.5ppm

0.0

0.5ppm

Bromine

2-10ppm

2-8ppm

10ppm

Total Alkalinity

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

80-100ppm for Cal Hypo, lithium hypo, and sodium hypochlorite; 100-120ppm for Sodium dichlor, trichlor, chlorine gas and bromine compounds

220ppm

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

650 minimum millivolts (mV)

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)

0-100ppm

10-50ppm

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 adopted.

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) The following equation and ARM 37.115.1314, Table 8 7 shall be used to calculate the saturation index: the saturation index equals pH plus temperature factor (TF) plus calcium factor (CF), plus alkalinity factor (AF) minus 12.1. (SI=(pH + TF + CF + AF) - 12.1.)

(2) through (5) remain as adopted.

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) remains as adopted.

(2) When the licenseholder or operator disputes the department's determination that a pool, spa, or other water feature does not meet clarity requirement as defined in (1) ~~or (2)~~, the department may use an NTU reading to make its final determination. A pool will be determined to have sufficient clarity only where the NTU reading is 1.0 NTU or less.

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

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) through (1)(c) remain as adopted.

(d) "Warning - people using prescription medications and/or having the following medical conditions should consult with their physician before entering the spa: pregnancy, heart disease, diabetes, high blood pressure, or other serious medical condition"; ~~and~~

(e) remains as adopted.

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

(g) through (4) remain as adopted.

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 CV (37.115.1507) TELEPHONE REQUIRED (1) remains as adopted.

(2) Emergency supplies required in ~~[RULE CV (37.115.1507]~~ ARM 37.115.1505 must be located in a place where the person making a call for emergency medical services can conveniently render assistance after making the call or while on the telephone with emergency services.

(3) through (3)(e) remain as adopted.

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) Except as provided in ~~[RULE CVII (37.115.1602)]~~ ARM 37.115.1601, privately owned public pools, spas, and other water features, are not required to have a lifeguard on duty if:

(a) and (b) remain as adopted.

(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, 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 CXVII (37.115.1805) DROP WATER SLIDES (1) through (1)(c) remains as adopted.

(d) The area from the slide terminus outward six feet in front of the slide terminus must have a depth as established from Table 9 8. The slide must be constructed so the rider enters the water in this six foot area. If the depth of the catch pool is five feet or less, the bottom of the catch pool must have a maximum slope of one inch in 12 inches (1:12), and the slide must be located at least five feet from any change to steeper slopes of the pool bottom.

(2) remains as adopted.

(3) If the water slide flume ends in a swimming pool, the water level shall not be lowered more than one inch when the flume pump is operating.

Table 9 8. (Table remains as adopted.)

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 CXXXVI (37.115.1828) SPA ENTRY REQUIREMENTS (1) Spa steps that meet the requirements of these rules must be provided when the spa is more ~~that~~ than two feet deep.

(2) through (4) remain as adopted.

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 CLXVII (37.115.2209) LIMITS ON CONSIDERATION OF PRIOR VIOLATIONS (1) remains as adopted.

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

(b) and (2) remain as adopted.

(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

(b) through (4) remain as adopted.

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

4. The department is correcting grammatical, typographical, and nonsubstantive changes in this notice of correction to avoid any future confusion.

In ARM 37.5.117(1)(o) the department is updating program name "Children's Health Insurance Plan (CHIP)" to Healthy Montana Kids (HMK) Plan. No substantive change is intended.

In ARM 37.111.104(1)(e) a comma is being inserted after the word folding and in (1)(f) the words swimming are being struck and commas added after the words pool. No substantive change is intended.

In ARM 37.111.123 the word swimming is being struck from the catchphrase. In (1) the word swimming is being struck and a comma inserted after the word pools. No substantive change is intended.

In Rule VI(1)(c) (37.115.302) following the word "feature;" the word "or" was inadvertently left in and should have been omitted. No substantive change is intended.

In Rule VIII(2) (37.115.305) the words "listed in [RULE XI]" were inadvertently left in the adopted notice and should have been removed as Rule XI is not being adopted.

In Rule XIV (37.115.311) in Table 1 under Design Volume the semicolon following the word "gallons" was inadvertently left in and should have been omitted.

The department is correcting a typographical error in Rule XXII(2) (37.115.323). The words "an other" should have read "another".

In Rule XXXVI (37.115.517)(1) the word "the" was inadvertently left in and is being struck.

In Rule XLIV (37.115.603) the word "the" was inadvertently left in and is being struck.

In Rule LV(1) (37.115.804) the language "found in ARM 37.115.805" is being added and no substantive change is intended. Table 3 was inadvertently omitted from the adopted notice and should have been shown as struck out.

The department is correcting a typographical error in Rule LXXXIX(1) (37.115.1308). The text "Table 7" should have been shown as struck out and replaced with new text "Table 6". In the table under "combined chlorine maximum column" 0. was inadvertently struck out and should have been left it. It should read 0.5ppm.

The department is correcting a typographical error in Rule XCIII(1) (37.115.1313). The text "Table 8" should have been shown as struck out and replaced with new text "Table 7".

In Rule XCV(1) (37.115.1315) the words "or (2)" were inadvertently left in and have been struck. No substantive change is intended.

In Rule XCVIII(1)(d) (37.115.1403) the word "and" was inadvertently left in and is being struck. In the adopted notice in (1)(f) there was text added that was not underlined. The underlining has been added to show the new text.

In Rule CV(2) (37.115.1507) a typographical error resulted in an incorrect cross-reference to "[RULE CV (37.115.1507]". The correct cross-reference should have been to "ARM 37.115.1505". No substantive change is intended.

In Rule CVII(1) (37.115.1602) a typographical error resulted in an incorrect cross-reference to "[RULE CVII (37.115.1602]". The correct cross-reference should have been to "ARM 37.115.1601". In the adopted notice in (2) new text "ARM 37.115.301" was added but not shown as underlined. The underlining has been added in to show the new text.

The department is correcting a typographical error in Rule CXVII(1)(d) and (3) (37.115.1805). The text "Table 9" should have been shown as struck out and replaced with new text "Table 8".

The department is correcting a typographical error in Rule CXXXVI(1) (37.115.1828). The word "that" should have been "than". No substantive change is intended.

The department is correcting a typographical and grammatical error in Rule CLXVII(1)(a) and (2)(a) (37.115.2209). In (1)(a) following the word "department" a semicolon should be inserted and following the word "or" the comma should be struck. In (2)(a) following the word "department;" a semicolon should be added as new text.

5. Replacement pages for the corrected notice were submitted to the Secretary of State on May 3, 2010.

6. All other rule changes adopted and amended remain the same.

/s/ Shannon McDonald /s/ Laurie Lamson for

Rule Reviewer Anna Whiting Sorrell, Acting Director

Public Health and Human Services

Certified to the Secretary of State May 3, 2010.