BEFORE THE DEPARTMENT OF PUBLIC

HEALTH AND HUMAN SERVICES OF THE

STATE OF MONTANA

 

In the matter of the adoption of New Rules I and II, the amendment of ARM 37.115.104, 37.115.105, 37.115.301, 37.115.302, 37.115.303, 37.115.306, 37.115.307, 37.115.311, 37.115.312, 37.115.313, 37.115.316, 37.115.317, 37.115.319, 37.115.321, 37.115.504, 37.115.505, 37.115.508, 37.115.509, 37.115.513, 37.115.517, 37.115.518, 37.115.521, 37.115.522, 37.115.602, 37.115.603, 37.115.604, 37.115.605, 37.115.701, 37.115.707, 37.115.804, 37.115.807, 37.115.902, 37.115.905, 37.115.1001, 37.115.1002, 37.115.1003, 37.115.1006, 37.115.1007, 37.115.1009, 37.115.1011, 37.115.1101, 37.115.1202, 37.115.1301, 37.115.1302, 37.115.1307, 37.115.1308, 37.115.1309, 37.115.1314, 37.115.1402, 37.115.1403, 37.115.1406, 37.115.1501, 37.115.1505, 37.115.1507, 37.115.1601, 37.115.1602, 37.115.1701, 37.115.1704, 37.115.1803, 37.115.1809, 37.115.1810, 37.115.1811, 37.115.1814, 37.115.1815, 37.115.1817, 37.115.1819, 37.115.1823, 37.115.1837, 37.115.1839, 37.115.1840, 37.115.1845, 37.115.1905, 37.115.2101, the repeal of 37.115.314, 37.115.904, 37.115.1021, and 37.115.2102 pertaining to pools, spas, and other water features

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NOTICE OF ADOPTION, AMENDMENT, AND REPEAL

 

             TO:  All Concerned Persons

 

1.  On August 11, 2011, the Department of Public Health and Human Services published MAR Notice No.37-553 pertaining to the public hearing on the proposed adoption, amendment, and repeal of the above-stated rules at page 1482 of the 2011 Montana Administrative Register, Issue Number 15.

 

2.  The department has adopted New Rule I (37.115.1022) as proposed.

 

3.  The department has amended ARM 37.115.306, 37.115.307, 37.115.311, 37.115.313, 37.115.316, 37.115.319, 37.115.321, 37.115.504, 37.115.505, 37.115.509, 37.115.518, 37.115.521, 37.115.522, 37.115.602, 37.115.701, 37.115.707, 37.115.804, 37.115.807, 37.115.902, 37.115.1001, 37.115.1003, 37.115.1007, 37.115.1009, 37.115.1011, 37.115.1202, 37.115.1302, 37.115.1314, 37.115.1406, 37.115.1505, 37.115.1701, 37.115.1704, 37.115.1809, 37.115.1810, 37.115.1811, 37.115.1815, 37.115.1817, 37.115.1819, 37.115.1823, 37.115.1837, 37.115.1839, 37.115.1840, 37.115.1845, 37.115.1905, 37.115.2101 and repealed ARM 37.115.314, 37.115.904, 37.115.1021, and 37.115.2102  as proposed.

 

4.  The department has decided to repeal ARM 37.115.603 and 37.115.1814 based on comments received.

 

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

 

NEW RULE II (37.115.1020)  EQUIPMENT ROOM  (1)  The equipment room shall be so located that it cannot be entered directly from the shower rooms.  If the equipment room is accessed from a public area, the equipment room must be kept locked at all times when not attended.

            (2) through (4) remain as proposed.

 

6.  The department has amended the following rules as proposed, but with the following changes from the original proposal, new matter underlined, deleted matter interlined:

 

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, subchapters 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, 37.115.603, and 37.115.604 subchapter 6 by December 31, 2012 2013, or later date set in these rules.  Facilities that do not meet this requirement will not be licensed after December 31, 2013.

            (c) and (d) remain as proposed.

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

            (f) and (2) remain as proposed.

 

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

            (1) through (71) remain as proposed.

            (72)  "Hydrotherapy pool" or "therapeutic pool" or "therapy pool" means a unit that may have a therapeutic use; a heated pool used for aerobic exercise classes or physical therapy which may be prescribed by a physician and excludes general swimming recreation.  Its features may include, but are not limited to:

            (a) through (172) remain as proposed.

 

            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 pool, spa, or other water feature and related facilities until the safety violations have been resolved:

            (a) through (o) remain as proposed.

            (p)  pH of the water is less than 7.0 or higher than 7.8, except flow through hot springs which may have a pH up to 9.4; and

            (q)  the pool, spa, or other water feature does not comply with the requirements of the VGBPSSA based on a visual inspection from the pool or spa deck, and documentation.

            (2) remains as proposed.

            (3)  The pool owner or operator shall prepare and maintain a record of each instance in which the pool is self-closed to correct a safety violation under this rule.  The report record shall be signed by the person responsible for correcting the safety violation and it shall document:

            (a) through (e) remain as proposed.

            (4) If any drowning or other serious accident has occurred, the a report shall be submitted to the department within 48 hours of the incident by faxing it to the Food and Consumer Safety Division, Department of Public Health and Human Services, (406) 444-5055.

            (5) remains as proposed.

 

            37.115.302  VIOLATIONS THAT MAY REQUIRE IMMEDIATE POOL CLOSURE  (1) remains as proposed.

            (2)  The department or its designee may order immediate closure of any swimming pool, spa, or other water feature that is operating without a valid license.

            (3)  The department may close any pool, spa, or other water feature for any of the violations listed in ARM 37.115.301 or 37.115.1309.

            (4) remains as proposed.

 

            37.115.303  REQUIRED INSTALLATION OF ULTRAVIOLET OR OZONE SECONDARY DISINFECTION SYSTEM  (1) remains as proposed.

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

            (3) remains as proposed.

            (4)  The department or its designee may require a supplemental UV or ozone disinfection system on a pool, spa, or other water feature in a plan of corrective action when health and safety is threatened as indicated by repeated and documented violations.

 

            37.115.312  PAYMENT OF PLAN REVIEW FEES  (1) and (2) remain as proposed.

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

            (4) remains as proposed.

 

            37.115.317  PLAN REVIEW DURING CONSTRUCTION PHASE

            (1)  remains as proposed.

            (2)  Depending upon the complexity of the project, the department or its designee 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.

 

            37.115.508  DRAINS AND SUCTION OUTLETS  (1) through (3) remain as proposed.

            (4)  Existing covers that do not have a VGBPSSA stamp on it, certificate, such as site-made covers, must provide a letter by licensed structural/mechanical engineer stating that the cover meets VGBPSSA.

 

            37.115.513  LIGHTING  (1)  All indoor pools, spas, or other water features and their deck 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 and drains, may be readily seen without glare.

            (2) remains as proposed.

 

            37.115.517  DECK AREAS  (1) through (7) remain as proposed.

            (8)  All deck width requirements must be met and require that no No deck equipment or furniture occupies the may occupy the deck area.  Additional decking area must be added provided for lounging use, seating, or storage of pool equipment.

 

            37.115.604  BARRIERS FOR INDOOR POOLS  (1) remains as proposed.

            (2)  Existing or new indoor pPools or spas located in an atrium or common area with direct access by lodging or room doors or from other common areas must have a minimum four foot high, see-through barrier or fence with lockable gate which does not create a hazard.

            (3)  Any new or existing pPools or spas located in locker rooms or separated by an unsecured door during hours of use must either utilize a self-closing mechanism and latch on a door or put in place a barrier with a minimum height of four feet and a latch for the barrier at 54 inches high on the pool side of the gate facing the pool, spa, or other water feature at least three inches from the top of the gate and may not have openings greater than one-half inch within 18 inches of the latch, or another design approved, in writing, by the department.  Existing pools or spas must meet this requirement no later than December 31, 2013.

 

            37.115.605  DEADLINE FOR RETROFITTING BARRIERS IN EXISTING FACILITIES  (1)  Existing public pools, spas, and other water features must install barriers that meet the requirements of these rules on or before December 31, 2011 2013 except existing splash decks.

 

            37.115.905  BABY CHANGING TABLES  (1)  All dressing rooms or restrooms must provide at least one baby changing table with an adjacent waste receptacle with lid which shall be located in an area not obstructing a hallway.  A pool, spa, or other water feature must have a baby changing table in a convenient, useable area.

            (2)  If the dressing rooms or restrooms in existing facilities are too small for installation of a baby changing table, there may be a common area on the outside wall used as a diaper changing station located within 25 feet of a hand sink and include a barrier, or demarcation designed around the changing area which is approved by the department to prevent general traffic from passing through.  A hand sink must be within 25 feet of the baby changing table.

            (3)  If a restroom or bathroom does not exist for facilities built before March 1, 2010, another location shall be created near the pool side.  The area must be restricted with a barrier, or demarcation designed to prevent general traffic passage.  A hand washing station or covered receptacle must be provided in the diaper changing area and approved by the department.  The table must be constructed of cleanable, durable, and nonabsorbent material.

            (4)  All diaper changing stations shall post a CDC or similar sign stating how to wash properly including washing of the child's bottom as well as the child's hands and post it in the diaper changing vicinity.  The table must be kept clean at all times.

            (5)  Any nonabsorbent surface dedicated to diaper changing must be designed to prevent the infant from falling while not creating any other hazard.  All surfaces must be nonabsorbent and cleanable.  A lined garbage can must be near the baby changing table.

            (6)  Any facility that allows only bathers older than diaper age may present documentation of exclusion of children on the premises, for consideration to exempt the facility from the diaper changing area requirement.  A facility that does not allow diaper-aged children is not required to provide a baby changing table.

 

            37.115.1002  TURNOVER RATES  (1) through (4) remain as proposed.

            (5)  When a pool, spa, or other water feature is designed with multiple sections, the most stringent turnover rate must be applied to the entire system, unless otherwise approved by the department.

 

            37.115.1006  INLETS  (1) through (5) remain as proposed.

            (6)  If floor inlets from the circulation system are used, they must be flush with the floor.  Floor inlets shall be placed at maximum 15-foot intervals.  The distance from floor inlets to a pool wall shall not exceed 7.5 feet if there are no wall inlets on that wall.  Each floor inlet must be designed such that the flow can be adjusted to provide sufficient head loss to ensure balancing of flow through all inlets.  All floor inlets must be designed such that the flow cannot be adjusted without the use of a special tool to protect against swimmers being able to adjust the flow.  The return supply piping must be sized to provide less than 2.5 feet of head loss to the most distant orifice to ensure approximately equal flow through all orifices.  Floor inlets must:

            (a)  be flush with the floor;

            (b)  provide equal balanced flow through all inlets; and

            (c)  be adjustable with the use of a specialized tool to prevent bathers from adjusting the flow.

 

            37.115.1101  OPERATOR QUALIFICATIONS  (1) and (2) remain as proposed.

            (3)  The certified pool operator for the facility shall be at the facility whenever it is open or available to respond by phone or in person to the pool, spa, or other water feature within 30 minutes of being telephoned.  Failure to respond in the prescribed time shall be treated as any other violation, and a documented history may require a corrective action plan be submitted to the department or its designee.

            (4) through (6) remain as proposed.

 

            37.115.1301  TEST KITS  (1)  Water testing shall measure the following parameters using an FAS-DPD test kit which measures concentrations with precision through the process of filtration titration:

            (a) and (b) remain as proposed.

            (c)  pH (colorimetric test);

            (d) through (5) remain as proposed.

            (6)  Electronic testers may be approved for use by the department or its designee if the accuracy of said kit meets or exceeds parameters listed above.  The department may approve an alternative testing method if the method can accurately measure the parameters listed in ARM 37.115.1301(1).

 

37.115.1307  DISINFECTANT USE  (1) remains as proposed

(2)  All pools, spas, and other water features when open or in use must be continuously disinfected by a chemical that imparts a residual effect and must maintain an alkaline pH.  Dispersal of the disinfectant agent must occur by mechanical means when bathers are present. 

(3) through (5) remain as proposed.

 

            37.115.1308  WATER CHEMISTRY PARAMETERS  (1)  Water chemistry, temperature, and clarity measurements must fall within the parameters set forth in Table 6:

 

Table 6.

 

Parameter	Acceptable	Ideal	Maximum/Comments
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
Oxidation 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	flow-through hot springs may have a pH up to 9.4 with proper signage
Cyanuric Acid (allowed only in outdoor pools)	0-50 100ppm	10-50ppm	100ppm
Calcium Hardness	Pools 150-1,000ppm	Pools 200-400ppm; Spas 150-250ppm
Temperature	Varies Pools may not exceed 100º F   Spas may not exceed 104ºF   Flow through hot springs may not exceed 106ºF	Varies	Spas 104ºF maximum Pools 100ºF maximum EXCEPTION: flow-through hot spring pools and spas, which may have a maximum temperature of 100ºF for pools and 106ºF for spas
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.  See ARM 37.115.1315(1)	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 0 NTU	greater than 1.0 NTU is "poor" and the facility closed

 

            (2) remains as proposed.

 

            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) through (c) remain as proposed.

            (d)  pH of the water is less than 7.0 or higher than 7.8 or pH is 7.8 and the chlorine or bromine reading is at or near the minimum required levels except flow through hot springs which can have a pH up to 9.4.

            (2) and (3) remain as proposed.

 

            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) and (b) remain as proposed.

            (d)  "Nonswimmers and children under age 14 shall not use the pool without a responsible adult or lifeguard in attendance";

            (e) through (6) remain as proposed.

 

            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) through (e) remain as proposed.

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

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

            (h)  flow-through hot springs shall post a separate sign indicating current temperature and pH if said pH is above 7.8 as well as child health warning as described in ARM 37.115.1845(1)(f).

            (2)  All non-flow-through spas must have a sign in letters not less than one inch high stating:  "Children age 5 and under are not allowed in the spa".

            (3) and (4) remain as proposed.

 

            37.115.1501  SAFETY EQUIPMENT  (1)  Every pool, spa, and other water feature involving pooled water must have the following equipment readily available on-site:

(a) remains as proposed.

(b)  a shepherd's crook or reaching pole (made from nonconductive material if underwater lights are used).

(2) and (3) remain as proposed.

 

            37.115.1507  TELEPHONE REQUIRED  (1)  A telephone with an attached handset shall be affixed to the wall near the new or existing pool, spa, or other water feature for the purpose of contacting emergency medical services except for flow-through and recirculation splash decks.

            (2) through (4) remain as proposed.

 

            37.115.1601  WHEN LIFEGUARDS ARE REQUIRED  (1) remains as proposed.

            (2)  Water slides that are 11 feet or greater in height may be required to provide a lifeguard at the bottom of the slide and an attendant at the top of the slide as decided by the department or its designee.

            (3) through (9) remain as proposed.

 

            37.115.1602  WHEN LIFEGUARDS ARE NOT REQUIRED  (1) remains 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)(ii), but is exempt from the requirements of (1)(b).

            (3)  No lifeguards are required during organized competitive events or swim lessons when swimmer supervision has already been addressed.

 

            37.115.1803  WATER SLIDES GENERALLY  (1)  When a water slide is provided in conjunction with a pool, the slide must:

            (a) through (d) remain as proposed.

            (e)  water slides that are 11 feet or greater in height may be required to provide a lifeguard at the bottom of the slide and an attendant at the top of the slide when no clear line of sight is possible from the slide entrance platform to slide exit; and

            (f) through (6) remain as proposed.

 

7.  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 commenter stated that there are times during testing, maintenance, or product delivery, the room may be unlocked, but attended. The commenter would like clarification to New Rule II (37.115.1020).

 

RESPONSE #1:  The department agrees and has added language to allow for times when the chemical storage room may be unlocked while attended by pool operators or facility staff.

 

COMMENT #2:  A commenter stated that there are conflicting compliance dates for retrofitting barriers in ARM 37.115.104(1)(b), 37.115.604(3), and 37.115.605(1).

 

RESPONSE #2:  The department has changed the compliance dates for retrofitting barriers at existing facilities allowing reasonable time for corrections to be made.

 

COMMENT #3:  A commenter stated that ARM 37.115.105(72) relating to hydrotherapy pools, was too limiting.

 

RESPONSE #3:  The department agrees and language has been returned to original content.

 

COMMENT #4:  A commenter stated that the requirement for immediate closure in ARM 37.115.301(1)(p) as related to pH does not take "flow through hot springs" into account.

 

RESPONSE #4:  The department agrees and has added language to accommodate flow through hot springs where a higher pH is allowed.

 

COMMENT #5:  A commenter proposed that ARM 37.115.301(1)(q) be changed to allow the operator to verify that appropriate actions have been taken to remain in compliance with the VGBPSSA.

 

RESPONSE #5:  The department has changed the language to allow the operator to determine lack of compliance.  However, the language in ARM 37.115.301 allows the pool owner or operator to take steps to resolve the safety violations.  Furthermore, the pool must still comply with the requirement in ARM 37.115.508.

 

COMMENT #6:  A commenter stated concern over the use of the words "record" and "report" in ARM 37.115.301(3).

 

RESPONSE #6:  The department believes "record" is an indication of the need to keep documentation, and "report" is to be turned into the department.  The language has been clarified in the rule.

 

COMMENT #7:  Several commenters stated that the term "or their designee" was unnecessary because it is already addressed in the definition of "department" in ARM 37.115.302(2).

 

RESPONSE #7:  The department agrees and has removed the language.

 

COMMENT #8:  A commenter requested clearer language as it related to acceptable secondary disinfection methods in ARM 37.115.303(2).

 

RESPONSE #8:  The department agrees, and has added language to allow for proven methods of disinfection that the department may approve.

 

COMMENT #9:  A commenter noted that in ARM 37.115.312(3) the plan review is done off site, and site visits are part of the construction process.

 

RESPONSE #9:  The department agrees, and has added language for clarification.

 

COMMENT #10:  A commenter had suggestions for reworking ARM 37.115.321(1).

 

RESPONSE #10:  The department believes the existing language is substantially similar and the wording will remain as proposed.

 

COMMENT #11:  A commenter suggested adding language consistent with the requirements of the VGBPSSA, and drain covers are required to have a stamp on them.

 

RESPONSE #11:  The department agrees and has changed the language in ARM 37.115.508(4).

 

COMMENT #12:  A commenter noted that the language in ARM 37.115.513(1) only addresses "indoor" pools, and lighting is needed at outdoor facilities operating after dark.

 

RESPONSE #12:  The department agrees and "indoor" has been removed to account for lighting requirements at outdoor pools.

 

COMMENT #13:  A commenter suggested new language for ARM 37.115.517(2) pertaining to deck areas surrounding pools.

 

RESPONSE #13:  The department believes the proposed language is substantially similar and will remain as proposed.

 

COMMENT #14:  Several commenters suggested more concise "decking" language in ARM 37.115.517(8).

 

RESPONSE #14:  The department agrees and has consolidated language.

 

COMMENT #15:  A commenter suggested using "ing" on deck to be consistent with ARM 37.115.513.

 

RESPONSE #15:  The department believes the language is substantially similar and conveys the intent.  The language will remain as proposed.

 

COMMENT #16:  A commenter noted that the requirements for barriers around splash decks already exists in ARM 37.115.602.

 

RESPONSE #16:  The department agrees and has removed ARM 37.115.603 as it was redundant.

 

COMMENT #17:  A commenter agreed with language and suggested adopting FCS Circular 1 in reference to water supply.

 

RESPONSE #17:  The department agrees with the commenter's assessment of Circular 1, but believes this would be a substantial change that will be addressed in the next administrative rule proposal.  Substantial changes require a public comment period.  Since the intent is still met, the language will remain as proposed.

 

COMMENT #18:  A commenter noted that this section appears to only deal with pools, while (3) deals with both pools and spas, in ARM 37.115.604(2).

 

RESPONSE #18:  The department agrees and added language to include spas.

 

COMMENT #19:  Several commenters noted that language concerning gate latches at 54 inches and a fence at 48 inches was confusing and apparel a physical impossibility.

 

RESPONSE #19:  The department concedes, while there are mechanisms to achieve this, new language consistent with the International Code Council was put in place of previous language in ARM 37.115.604(3).

 

COMMENT #20:  Commenter noted that a compliance date in ARM 37.115.605(1) was in conflict with ARM 37.115.144 and 37.115.605.

 

RESPONSE #20:  The department agrees and has changed said date to be consistent with ARM 37.115.104(1)(b).

 

COMMENT #21:  A commenter suggested adding language in ARM 37.115.902(1)(b) to specify flooring conductive to wet areas and be nonslip.

 

RESPONSE #21:  The department believes this issue is already addressed in building code and the language will remain as proposed.

 

COMMENT #22:  Commenter felt language in ARM 37.115.902 was confusing and suggested a wording change.

 

RESPONSE #22:  The department believes the existing language is substantially similar, and will remain as proposed.

 

COMMENT #23:  Several commenters suggested simplified language in reference to Baby Changing Tables, in ARM 37.115.905.

 

RESPONSE #23:  The department concurs, thus language was simplified and condensed, while maintaining adequate health and safety.

 

COMMENT #24:  A commenter was concerned about multisection pools and turnover rates in "multiuse" pools, in ARM 37.115.1002(5).

 

RESPONSE #24:  The department believes there is a misunderstanding as the term "multiuses" is actually "multisection" in the latest proposal.  Wording was added however, for situations brought to light by the commenter of situations that require further site specific evaluation.

 

COMMENT #25:  Commenter suggested simplified language concerning floor inlets, in ARM 37.115.1006(6).

 

RESPONSE #25:  The department concurs and believes the suggested language addresses all health and safety requirements intended.

 

COMMENT #26:  Commenter was concerned the authority to require adequately trained staff was going to be limited, or eliminated in ARM 37.115.1101(4).

 

RESPONSE #26:  The department believes the requirement for qualified operators has been addressed in ARM 37.115.1101(2) and will the changes will be amended as shown in the notice.

 

COMMENT #27:  Several commenters noted errors in naming method of testing for individual parameters, and that proposed language in ARM 37.115.1301(6) could be simplified and expanded.

 

RESPONSE #27:  The department agrees and has corrected grammatical errors and modified language in (6) to better define alternative methods that may be employed.

 

COMMENT #28:  A commenter felt it is unrealistic to require testing four times per day in some pools as required in ARM 37.115.1302.

 

RESPONSE #28:  The department believes sampling every four hours is necessary to monitor pool chemistry and will not change the language.

 

COMMENT #29:  Several commenters noted the language in ARM 37.115.1307(2) implied sanitizer only need be introduced when the pool or spa is open, and that occasional hand dosing is necessary.

 

RESPONSE #29:  The department agrees and removed language implying sanitizing only done during open hours, and language added to accommodate hand dosing when bathers are not present.

 

COMMENT #30:  Several comments noted errors in ARM 37.115.1308, Table 6 from grammatical to conflicting and confusing parameters.  The primary and prominent concern was that concerning the upper limit of Cyanuric Acid (CYA).  While this comment was not universally agreed upon, empirical data was submitted and reviewed; several professionals and equipment manufacturers were contacted.

 

RESPONSE #30:  The department agrees with the vast majority of commenters that in field studies a level of CYA up to 100ppm does not significantly interfere with the efficacy of chlorine, and automatic equipment when properly maintained and calibrated is not hindered by CYA levels up to 100ppm:  The department will return the maximum CYA level at 100ppm.  Several other changes were made to the table for consistency, clarification, and simplification.  The last column was eliminated as it was unnecessary to outline parameters.

 

COMMENT #31:  Commenter noted that language in ARM 37.115.1309 was not concise and open to interpretation and further, did not take into account that Flow Through Hot Springs are allowed to reach a pH of 9.4.

 

RESPONSE #31:  The department agrees and has removed unclear language and accounted for Flow Through Hot Springs.

 

COMMENT #32:  In ARM 37.115.1402(3)(d), several commenters noted that "lifeguards are not baby sitters", and undue burden of watching unattended children may cause more risk for other bathers.

 

RESPONSE #32:  The department agrees and the new language has been removed.

 

COMMENT #33:  A commenter noted that the additional sign requirement in ARM 37.115.1403(1)(h) is covered in the more appropriate section ARM 37.115.1845(4) dealing specifically with Flow Through Hot Springs.

 

RESPONSE  #33:  The department agrees and language has been removed from ARM 37.115.1403(l)(h).

 

COMMENT #34:  A commenter noted that proposed language was confusing and unnecessary in ARM 37.115.1403(2).

 

RESPONSE #34:  The department agrees and has removed proposed language from ARM 37.115.1403(2).

 

COMMENT #35:  A commenter noted that the language in ARM 37.115.1501(1)(b), is not achievable as all hooks have components that are conductive.

 

RESPONSE #35:  The department agrees and has removed the proposed language.

 

COMMENT #36:  A commenter was opposed to removing language addressing recirculated water in a splash deck in ARM 115.1406(1)(c).

 

RESPONSE #36:  The department believes a single sign for all splash decks, not just recirculating splash decks is more inclusive and appropriate.  The language will remain as proposed.

 

COMMENT #37:  A commenter noted that there was proposed language in ARM 37.115.1507(1) that was unnecessary to define a splash deck.

 

RESPONSE #37:  The department agrees and has removed superfluous language.

 

COMMENT #38:  A commenter was concerned about enforceability of lifeguards being "attentive" in ARM 37.115.1601(9).

 

RESPONSE #38:  The department believes that this is an avenue to document a situation that is observed at the time of inspection and does not extend liability beyond the time of inspection.  The language will remain as proposed.

 

COMMENT #39:  A commenter noted that tourist home pools and spas, ARM 37.115.1602(2), are not licensed, therefore have no signage requirements in this rule.

 

RESPONSE #39:  The department agrees and has deleted ARM 37.115.1602(2).

 

COMMENT #40:  Regarding ARM 37.115.1602(3), several commenters stated that during organized events such as swim meets and swim lessons the attending staff may be easily distracted, whereas a lifeguard should be attentive to all swimmers at all times.

 

RESPONSE #40:  The department agrees. The proposed language in ARM 37.115.1602(3) has been deleted.

 

COMMENT #41:  Several commenters noted that without further guidance the requirement remains unclear in reference in ARM 37.115.1803(1)(e) to attendance at water slides eleven feet in height or greater.

 

RESPONSE #41:  The department acknowledges the issue and has added further clarification as to when an attendant may be required.

 

COMMENT #42:  A commenter noted that restroom requirements in ARM 37.115.1814, have previously been addressed in ARM 37.115.902 and ARM 37.115.903.

 

RESPONSE #42:  The department agrees.  ARM 37.115.1814 has been deleted.

 

COMMENT #43:  A comment was made regarding ARM 37.115.1845(4), the enforceability of restricting children under five from hot water environments.

 

RESPONSE #43:  While the department acknowledges the difficulty with restricting children from hot water environments, the department believes notification to parents is necessary.  The proposed language will remain as proposed.

 

 

/s/ Shannon L. McDonald                          /s/ Hank Hudson for                                               

Rule Reviewer                                             Anna Whiting Sorrell, Director

                                                                      Public Health and Human Services

           

Certified to the Secretary of State November 28, 2011