|37.115.101||PURPOSE AND APPLICABILITY|
(2) This chapter defines public swimming pools, spas, and other water features; establishes minimum standards for the construction, maintenance, and operation of public swimming pools, spas, and other water features and related facilities; regulates the inspection of such features and facilities; and provides for the enforcement of this chapter.
|37.115.104||REQUIRED UPGRADING TO EXISTING FACILITIES AND OPERATIONS|
|37.115.201||ADOPTION OF ANSI/NSPI STANDARDS|
(a) ANSI/NSPI-1 2003 American National Standard for Public Swimming Pools; approved March 10, 2003 and published by National Spa and Pool Institute (now Association of Pool & Spa Professionals), 2111 Eisenhower Avenue, Suite 500, Alexandria VA 22314-4695;
(b) ANSI/NSPI-2 1999 American National Standard for Public Spas; approved February 4, 1999 and published by Association of Pool & Spa Professionals, 2111 Eisenhower Avenue, Suite 500, Alexandria VA 22314-4695;
(c) ANSI/APSP-7 2006 American National Standard for Suction Entrapment Avoidance in Swimming Pools, Wading Pools, Spas, Hot Tubs, and Catch Basins; approved September 11, 2006, and published by Association of Pool & Spa Professionals, 2111 Eisenhower Avenue, Suite 500, Alexandria VA 22314-4695;
(d) ANSI/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;
(e) ASME A112.19.8-2007 Suction Fittings for Use in Swimming Pools, Wading Pools, Spas, and Hot Tubs; issued March 30, 2007 and published by The American Society of Mechanical Engineers, 3 Park Avenue, New York, NY 10016-5990, (800)843-2763;
(f) NSF/ANSI Standard 50-2008 Pool, Spa & Recreational Water Products; approved February 2008, published by American National Standards Institute, 1819 L Street, NW, Washington, DC 20036;
(g) ASHRAE 62.1-2007 Ventilation for Acceptable Indoor Air Quality; published by American Society of Heating, Refrigerating, and Air-Conditioning Engineers, 1791 Tullie Circle NE, Atlanta, GA 30329; and
(h) ASTM F 2376-06 Standard Practice for Classification, Design, Manufacture, Construction, and Operation of Water Slide Systems; American Society for Testing Materials International, 100 Barr Harbor Drive, P.O. Box C700, West Conshohocken, PA 19428-2959.
|37.115.301||CRITICAL HEALTH AND SAFETY VIOLATIONS THAT REQUIRE IMMEDIATE CLOSURE|
|37.115.302||VIOLATIONS THAT MAY REQUIRE IMMEDIATE POOL CLOSURE|
|37.115.303||REQUIRED INSTALLATION OF ULTRAVIOLET OR OZONE SECONDARY DISINFECTION SYSTEM|
|37.115.305||PLAN REVIEW REQUIRED FOR POOLS, SPAS, AND OTHER WATER FEATURES|
(a) construct, reconstruct, alter, convert, or repair any aspect of the swimming pool, spa, other water feature, or any related facility and the work will be more extensive than what occurs in routine maintenance; or
(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) All plans and specifications 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, Public Health and Safety Division, Food and Consumer Safety Section, 1400 Broadway, P.O. Box Helena 202951, MT 59620-2951 or at www.fcss.mt.gov.
(3) The plan review checklist form, plans and specifications, and the applicable plan review fee, shall be submitted to the Department of Public Health and Human Services, Public Health and Safety Division, Food and Consumer Safety Section, 1400 Broadway, P.O. Box 202951, Helena, MT 59620-2951, or to the local health department agency at least:
(a) 90 days prior to the anticipated date that the construction or reconstruction, alteration, or conversion of an existing public swimming pool, spa, or other water feature, or related facility is set to begin; or
(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.
|37.115.306||QUALIFICATIONS REQUIRED FOR PERSONS PREPARING PLANS FOR REVIEW|
|37.115.307||SCOPE OF REVIEW BY THE DEPARTMENT|
|37.115.308||SUBMITTING PLANS FOR REVIEW|
(1) Plans and specifications shall be submitted to the department in duplicate with a completed plan review checklist. All plans and specifications shall be drawn to a standard scale and with sufficient detail to permit a comprehensive review of whether the plan complies with all applicable standards.
(2) All specifications for any plans submitted for review must comply with the standards set by these rules. An inadvertent failure of the department to reject a specification that does not meet the requirements of these rules does not excuse the licensee or license applicant from its duty to meet the standards set here.
(3) The plan submittal package for the construction of a public swimming pool, spa, or other water feature or related facility, or for the reconstruction, alteration, or conversion of an existing public swimming pool, spa, or other water feature or related facility, shall include, but not be limited to:
(a) a plan view and a sectional view of both the pool, spa, or other water feature or related facility, and surrounding area;
(b) one or more drawings showing cross-sections through the main drain;
(c) a drawing of the overall plan showing the pool, spa, or other water feature in relation to other facilities in the area, including any equipment room;
(d) a detailed view of the equipment layout in the equipment room;
(e) a piping schematic that shows the piping configuration, pipe size, valves, inlets, main drains, over flow outlets, skimmers, make-up water, backwash from the filter, and treatment facilities;
(f) scaled drawings of the pool bottom and sidewalls;
(g) cross section drawings with measurements of the step risers and treads and of any handrails;
(h) all manufacturer specifications for all required components of the pool, spa, or other water features including, but not limited to, treatment equipment, pumps, disinfectant feeders, chemical feeder filters, and strainers;
(i) specifications for the materials that will be used to construct the pool or spa and for the materials used as finishes on any of the walkways;
(j) specifications for the slope and drainage of pool bottoms, decks, and other surface requiring drainage;
(k) plans and drawings related to all bathhouse or other sanitary facilities;
(l) an estimation of the anticipated bather load of the pool or spa;
(m) calculations of the surface area and volume of the pool, spa, or other water features, calculations of the turn-over rate, flow rate, water velocities, total dynamic head, and pump curve showing design flow for each swimming pool, spa, or other water feature;
(n) all specification sheet(s) pertaining to suction outlet cover/grates that will be used and documentation that they comply with ASME A112.19.8M-2007;
(o) the name and location of any water source that will or may supply water to the swimming pool, spa, or other water feature;
(p) details on the method that will be used to dispose of pool water and all other wastewater in compliance with applicable law;
(q) details on barrier construction;
(r) the plan review fee established in Table 1 of ARM 37.115.311; and
(s) any other information specifically requested by the department.
|37.115.309||INCOMPLETE PLAN REVIEW APPLICATIONS|
(2) If the department determines that all items required in ARM 37.115.308 for the review have not been submitted, it will notify the applicant in writing and will identify which items still need to be submitted. Review of the plans will not proceed until those items of information are submitted.
(3) 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 packet and supporting documents will continue to the extent possible while the department waits to receive the additional information.
|37.115.312||PAYMENT OF PLAN REVIEW FEES|
|37.115.313||OUTSIDE ENGINEERING REVIEW FEES|
|37.115.314||PAYMENT OF REVIEW FEES|
This rule has been repealed.
|37.115.316||PLAN REVIEW APPROVAL AND EXTENSIONS|
|37.115.317||PLAN REVIEW DURING CONSTRUCTION PHASE|
|37.115.319||CHANGES FROM ORIGINALLY APPROVED PLANS AND FINAL CERTIFICATION|
|37.115.321||INFORMATION AND TRAINING TO BE PROVIDED TO LICENSE APPLICANT|
|37.115.323||UNAPPROVED CONSTRUCTION OR INSTALLATION|
(2) If construction on the pool shell, pool piping, or 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) If construction, renovation, alteration, or installation of equipment was completed before the department was notified by the owner or license applicant of the project, the pool, spa, or other water feature may not operate and no member of the public may be allowed to use the facility until the plans, specifications, and applicable fees provided for in these rules are submitted and the project is reviewed and approved.
(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.
|37.115.502||LOCATION OF SWIMMING POOL, SPA, AND OTHER WATER FEATURES|
(2) Nontempered glass is prohibited in close proximity to any pool, spa, or other water feature.
(3) No wooden spa units are permitted.
(2) Swimming pool walls shall be vertical for a water depth of at least two feet, nine inches with a slope no greater than 11° from vertical, as shown in Figure 1.
(3) The maximum allowable wall slope for all pools except Class A pool walls where racing lanes end is 11º. Any wall section must be vertical for at least 2'9" and then it may have a radius of slope to meet the pool floor.
|37.115.507||LEDGES AND BENCHES|
(2) Underwater seats or benches, when provided, shall conform to the following:
(a) the horizontal surface shall be 20 inches maximum below the waterline;
(b) underwater seats and benches shall not be used as the required pool entry/exit access;
(c) underwater seats and benches are allowed in conjunction with pool stairs;
(d) the leading edge of an underwater bench or seat shall be visually set apart from the surrounding pool surfaces by either a contrasting color or other visual image; and
(e) the seats and benches shall have slip-resistant surfaces.
(3) In any nonspa pool with a bench 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".
|37.115.508||DRAINS AND SUCTION OUTLETS|
|37.115.510||WATER DEPTHS IN SHALLOW END OF POOL|
(a) wading pools;
(b) zero entry pools; and
(c) therapy pools.
(2) Maximum water depth at the shallow end of a swimming pool shall not exceed three feet six inches, except in special purpose swimming pools, special instructional pools or restricted or recessed areas of a pool that are separated from the shallow portion of the pool by safety lines attached to the sides of the pool and supported by buoys.
(3) Such specialized pools must be approved by the department. Such pools include but are not limited to:
(a) lap pools not exceeding four feet in depth at the shallow end;
(b) therapy pools; or
(c) instructional pools for scuba diving or for other specialized training.
(4) Use of specialized pools with shallow ends deeper than three feet, six inches, must be restricted to swimmers who have demonstrated their competency to swim in the deep end of a pool.
(2) Ventilation 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.
|37.115.515||MAXIMUM FACILITY BATHER LOAD|
(2) All other pools and other water features shall meet the minimum square footage for bather load as described in Table 2:
Table 2. Maximum bather load, pools, and other water features.
|Pool/Deck area||Shallow instructional or wading areas||Deep area (not including the diving area)||Diving area (per each diving board)|
Pools with minimum deck area required elsewhere in this chapter
15 sq. ft. per user
20 sq. ft. per user
300 sq. ft.
Pools with deck area at least equal to water surface area
12 sq. ft. per user
15 sq. ft. per user
300 sq. ft.
Pools with deck area at least twice the water surface area
8 sq. ft. per user
10 sq. ft. per user
300 sq. ft.
(2) Deck drains shall be provided on all indoor pools and spas and shall be located so that no deck drain services more than 400 square feet of the deck.
(3) Outdoor pools shall utilize either deck or perimeter drain systems.
(4) The deck area drains shall not be connected to the recirculating piping system.
|37.115.523||SEWAGE SYSTEM AND SOLID WASTE|
(2) All sewage, including liquid waste, must be disposed of by a public sewage system approved by the Montana Department of Environmental Quality or by a sewage treatment and disposal system constructed and operated in accordance to applicable state and local laws. Nonwater-carried sewage disposal facilities are prohibited.
(3) A wastewater system has failed and requires replacement or repair if any of the following conditions occur:
(a) the system fails to accept, treat, or dispose of wastewater as designed;
(b) effluent from the wastewater system contaminates a potable water supply or state waters; or
(c) the wastewater system is subjected to mechanical failure, including electrical outage, or collapse or breakage of a septic tank, lead line, or drainfield line.
(4) Extension, alteration, replacement, or repair of any wastewater system must be done in accordance with all applicable state and local laws.
(5) Mop water or soiled cleaning water may not be disposed of in any sink other than a mop or utility sink or a toilet.
(6) Solid waste must be collected, stored, and disposed of in a manner that does not create a sanitary nuisance and meets the requirements of ARM 37.112.137 for disposal of infectious waste. Solid waste must be removed from the premises at least weekly to a licensed solid waste disposal facility.
|37.115.601||BARRIERS: GENERAL REQUIREMENTS|
(2) A barrier of durable material shall be provided outside the minimum required deck area of all outdoor public pools, spas, and other water features.
|37.115.602||BARRIERS FOR OUTDOOR POOLS AND WATER FEATURES|
|37.115.603||BARRIERS FOR SPLASH DECKS|
This rule has been repealed.
|37.115.604||BARRIERS FOR INDOOR POOLS|
|37.115.605||DEADLINE FOR RETROFITTING BARRIERS IN EXISTING FACILITIES|
|37.115.701||ENTRIES AND PLACEMENT OF STEPS AND LADDERS|
(2) Ladder steps must be sloped to drain.
(3) All ladder steps and treads shall have a slip-resistant surface.
(4) There shall be a uniform distance between ladder treads, with a seven inch minimum width. Except for the bottom riser, all ladder step risers at the centerline shall have a maximum uniform height of 12 inches.
(5) Ladder treads shall have a minimum horizontal uniform depth of two inches.
(6) All ladders shall be designed to provide two handholds and shall be securely attached to the side of the pool or spa. There shall be a clearance of three inches minimum and five inches maximum between the pool wall and the ladder.
(2) All steps shall be sloped to drain.
(3) All stairs shall have slip-resistant treads.
(4) The leading edge of all stairs shall be distinguished by a color contrasting with the color of the steps and pool floor. The contrasting accent must be at least one inch wide and must extend across the entire width of the stair.
(5) Stair treads shall have a minimum unobstructed horizontal width of ten inches.
(6) There shall be a uniform distance between stair steps with a seven inch minimum distance. Except for the bottom stair step, all step risers at the center line shall have a maximum uniform height of 12 inches. The bottom riser height shall be allowed to vary from the other risers as may be required to meet the floor, but shall not exceed 12 inches in height.
(a) All recessed treads shall have slip-resistant surfaces;
(b) Recessed treads shall have a uniform vertical spacing of seven inches minimum to nine inches maximum;
(c) Recessed treads shall have a depth of five inches minimum and a width of 12 inches minimum;
(d) Recessed treads shall be provided with a handrail on each side of the treads; and
(e) Recessed treads shall drain into the pool.
(2) Coping, perimeter overflow system, or decking along the immediate top edge of the pool must not be more than 12 inches above the waterline.
(3) The handholds must have rounded, slip-resistant edges and must not exceed four inches in thickness.
|37.115.801||DIVING BOARDS - GENERALLY|
(2) Existing diving boards may not be used until documentation has been provided to the department showing that they meet the requirement of ANSI-1-1991 or any manufacturer's specifications that are more stringent than ANSI-1-1991.
(3) New diving boards must meet the requirements of these rules when installed.
|37.115.802||DIVING BOARDS - SPECIFICATIONS|
(2) Steps shall be of corrosive-resistant material which is easily cleanable and they shall have slip-resistant tread surfaces.
|37.115.804||DIVING BOARDS - DIVING ENVELOPE DESIGN REQUIREMENTS|
|37.115.805||DIVING BOARDS - MINIMUM REQUIREMENTS FOR DIVING ENVELOPE RELATIVE TO LENGTH AND HEIGHT OF DIVING BOARD|
Minimum Width of Pool
Max. Diving Board Length
L2, L3, and L4 combined represent the minimum distance from the tip of board to pool wall, opposite diving equipment.
|37.115.807||DIVING BOARD INSTALLATION|
|37.115.902||DRESSING ROOMS, TOILETS, AND SHOWER AREAS|
|37.115.903||NUMBER OF FIXTURES REQUIRED|
Table 4. Fixture Ratio Required.
|Toilets water closet)||
1:75 for first
(2) A facility may substitute urinals for up to 50 percent of the toilets in the men's room.
(3) All fixtures shall be properly protected as required by the appropriate plumbing code.
(4) All fixtures must be so designed that they may be readily cleaned, disinfected, and maintained.
(5) Hand washing facilities must provide liquid, foam, or powdered soap and either disposable towels with adjacent waste receptacles or hand blowers.
(6) One drinking fountain is required for every 1000 bathers.
(7) A service sink is required for each facility. It shall be located somewhere other than the dressing rooms.
This rule has been repealed.
|37.115.905||BABY CHANGING TABLES|
|37.115.1003||OPERATION OF CIRCULATION SYSTEM|
(2) The pump shall not be operated if any main drain grate plate or other suction cover or vacuum outlet cover is missing, broken, or loose. If such an event should occur, the pool, spa, or other water feature shall be shut down immediately and must remain closed until a proper repair or replacement has been accomplished.
(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) Pumps located below the waterline shall have valves installed on suction and discharge lines. The valves shall be located in a readily accessible place, to allow regular maintenance and to allow easy removal of the pumps. Pumps not located below the waterline shall be self-priming.
(5) All pumps shall comply with NSF/ANSI 50-2008.
(2) Pools having a surface area less than 1600 square feet may use either overflow gutters or skimmers.
(3) Overflow gutters shall extend around the entire perimeter of the pool, except at steps or recessed ladders.
(4) The hydraulic capacity of the overflow gutter shall be designed to be capable of handling 100 percent of the recirculation flow.
(5) Where large or surge gutters are used they shall be designed to prevent entrance or entrapment of a bather's arms or legs.
(6) The overflow gutter edge or lip shall also be designed to serve as a handhold.
(7) The water level in the pool, spa, or other water feature shall be maintained at a level one-quarter inch above the overflow gutter or as designed by the manufacturer.
(2) When not in use, all vacuum fittings shall be covered with an automatic closure device that cannot be opened without a special tool. Where a skimmer is used for vacuuming, automatic closure is not required.
(3) A missing vacuum filtering cover is an entrapment hazard which requires the pool operator to immediately close the pool, spa, or other water feature until the cover is replaced and reinstalled.
(4) Any vacuum equipment shall be used in accordance with manufacturer's guidelines and with all parts in place.
|37.115.1012||CROSS-CONNECTIONS AND FILL LINES|
(2) Where water from an approved water source is added to the pool, spa, or other water feature, cross connections between the public water system and water in the pool, spa, or other water feature shall be eliminated by pumping make-up water from a pump suction well or by admitting water by means of an air-gapped supply, preferably located under a low diving board.
(3) If an over-the-rim water supply spout is used it shall be located under a diving board, adjacent to a ladder, or shall otherwise be properly shielded in order to minimize tripping hazards. Additionally:
(a) the open end of the spout shall have no sharp edges and shall not protrude more than two inches beyond the edge of a pool; and
(b) the spout shall be separated from pool water by an air gap of at least six inches between the flood level of the pool and the lowest point of the spout.
(4) No direct connections to sewers shall be permitted. The drain system for any pool, spa, or other water feature may not be directly connected to a sewer in a manner that would permit back flow of the sewer into the pool, spa, or other water feature.
(5) Where a surge or balancing tank is used, the point of discharge from the make-up water line into the surge or balancing tank shall be at least six inches above the rim of the tank.
(2) The piping system of the pool, spa, or other water feature shall be marked to identify filtered water, make-up water, waste water, vacuum lines, and heating lines and shall be marked to identify the direction of flow.
|37.115.1016||DISINFECTANT AND CHEMICAL FEEDERS|
(2) All proposed 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.
(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 to adjust chemical levels. Automatic controllers shall be standardized in accordance with the manufacturer's instructions.
(5) Chemical feeders must be capable of supplying not less than the equivalent of three pounds of chlorine for outdoor pools or one pound of chlorine for an indoor pool, per 10,000 gallons of pool, spa, or other water feature capacity during a 24-hour period.
(6) Skimmer baskets shall not be used as chemical feeders.
(7) A change in the method or type of disinfection used must be approved in writing by the department before it is implemented.
(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. Only EPA-registered sanitizers approved by the department shall be used.
|37.115.1017||HAND DOSING OF DISINFECTANT NOT PERMITTED|
(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) The equipment room shall have a floor drain.
(3) The floor shall have a minimum slope of one-quarter inch per foot toward the drains with no low spots which would allow the water to stand.
(4) The circulation equipment shall be located for convenient inspection and servicing. Adequate headroom shall be provided above pressure filters to allow easy observation and reading of gauges.
This rule has been repealed.
(1) Chemicals and testing equipment shall be stored in a manner that prevents spillage and intermixing, that may cause dangerous chemical reactions such as poisonous gas, fire, or explosion.
(2) Chemicals shall be stored with the covers in place and not in proximity of dripping, leaking, or standing water.
(3) Scoops may not be shared between containers with different chemicals.
(4) Chemicals shall be stored in a correctly labeled container.
(5) Placards identifying the oxidation reactivity must be located on the main door where the chemicals are kept.
(2) Records shall be maintained on forms approved by the department.
(3) The facility shall maintain daily records on the following water tests:
(a) disinfectant residual;
(b) combined chlorine concentration;
(d) water temperature (spas and hot spring pools only);
(e) maintenance information;
(f) bather loads; and
(g) clarity readings.
(4) The facility shall maintain records of weekly readings of the following:
(a) the cyanuric acid concentration;
(c) calcium concentration; and
(d) saturation index calculations.
(5) The facility shall maintain records on all of the following:
(a) serious injury accident reports;
(b) incident reports for incidents not requiring medical attention; and
(c) fecal and vomit accidents.
(6) The pool operator shall post the facility's license and all applicable operators' licenses. Copies of all other required certifications must be available whenever the pool, spa, or other water feature is open upon request of the department or any member of the public. This includes life guard certifications and first aid, AED, and CPR certifications.
(7) The pool, spa, or other water feature licensee, owner, or operator shall obtain and retain a copy of all Material Safety Data Sheets (MSDS) for each chemical used in the facility. The facility shall maintain records which document that each person that works with a specific chemical has read the relevant MSDS sheet.
(8) All records must be kept on file and in a readily accessible location for a minimum of 36 months for review by the department, except that accident and incident reports must be maintained at the facility for 60 months.
(9) The operator of the swimming pool, spa, or other water feature must furnish copies of any or all records to the department upon request.
(10) A copy of these rules must be maintained at the facility premises.
|37.115.1201||CHLORINE GAS STORAGE AND OPERATIONS|
(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) The chlorine and chlorinating equipment shall be in a separate, locked, well-ventilated room. Such rooms shall not be below ground level and shall provide positive air pressure with vents near the floor which terminate out-of-doors. The door of the room shall not be open to the swimming pool, but shall open to the outside.
(4) Chlorine cylinders, whether full or empty, shall be anchored to prevent them from falling over. A valve stem wrench shall be present on the chlorine cylinder so that the chlorine supply can be shut off quickly in case of an emergency. A valve protection hood shall be kept in place except when the cylinder is connected.
(5) The chlorine feeding device shall be designed so that in the event of accidents or during interruption of the water supply any leaking chlorine gas will be conducted to the outdoors.
(6) Chemicals must be stored in accordance with the manufacturer's instructions.
(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.
|37.115.1202||CHLORINE GAS SAFETY EQUIPMENT AND TRAINING|
|37.115.1203||CARBON DIOXIDE USE AND STORAGE|
(a) carbon dioxide cannot be stored below grade level;
(b) carbon dioxide must be stored in well ventilated rooms to prevent the accumulation of a high concentration of carbon dioxide that could reduce the oxygen level in the air to less than 19.5 percent;
(c) carbon dioxide must be used according to the safety requirements in the material safety data sheets provided by the supplier for carbon dioxide, including providing and using all recommended safety equipment;
(d) carbon dioxide tanks must be thoroughly secured to prevent any tipping or rolling cylinders;
(e) only authorized personnel who have been trained with the material safety data sheets provided by the manufacturer may have access to the carbon dioxide storage rooms; and
(f) only personnel trained in the handling of carbon dioxide shall be allowed to adjust or replace carbon dioxide tanks.
|37.115.1302||FREQUENCY OF WATER TESTING|
|37.115.1304||OXIDATION REDUCTION POTENTIAL (ORP) READING|
(1) An operator of any pool, spa, or other water feature that has installed an ORP meter shall use the ORP as an indicator of disinfectant level.
(2) An ORP meter must be properly maintained in compliance with the manufacturer's recommendations for the routine periodic maintenance of the ORP sensor.
(3) ORP readouts may be used as an indicator of disinfectant level following the manual water testing prior to opening.
(4) Daily record logs must include manual water testing results before opening and ORP reading every four hours after opening and at closing every day.
(5) The water in the pool, spa, or other water feature shall be closed if the ORP is less than 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 650 mV.
(2) The water in pools, spas, and other water features shall meet the following standards of bacteriological quality:
(a) heterotrophic plate counts may not exceed 200 bacteria per milliliter in two consecutive tests;
(b) total coliforms or E. coli may not exceed an average of one coliform per sample of 100 milliliters in two consecutive tests when using the membrane filter test; and
(c) total coliforms or E. coli may not exceed 2.2 bacteria per sample of 100 milliliters of water in two consecutive samples when using the most probable number (MPN) method.
(3) Upon request by the department, the pool operator of a pool, spa, or other water feature must collect water samples for bacteriological or other testing for public health investigations. The department may also require that test samples be taken and analyzed by an independent laboratory with the results transmitted to the department from the independent laboratory.
(4) Water samples must be:
(a) collected, dechlorinated, transported, and analyzed in compliance with the procedures outlined in the twentieth edition of Standard Methods for the Examination of Water and Wastewater (published jointly by the American Public Health Association, Water Environment Federation, and the American Water Works Association); and
(b) analyzed at a laboratory approved by the department.
(5) Not more than two consecutive samples in a one month period may exceed the levels set in these rules.
|37.115.1308||WATER CHEMISTRY PARAMETERS|
|37.115.1309||CLOSURE OF POOL BASED ON WATER CHEMISTRY READINGS|
|37.115.1310||ALTERNATIVE DISINFECTANT METHODS|
(a) provides a readily measurable residual;
(b) is equally effective in disinfecting water as the chlorine or bromine concentrations set in these rules;
(c) has been shown to not be dangerous to public health; and
(d) is approved for use as a disinfectant by the Environmental Protection Agency (EPA).
(2) Department approval must be obtained prior to using any other such disinfectant method.
|37.115.1311||CHEMICALS USED TO CONTROL ALGAE|
(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.
(3) Saturation index values shall be calculated weekly. Perfectly balanced water has a saturation index value of 0.0. A saturation index value below -0.5 shows corrosive water and a saturation index value higher than +0.5 shows scale forming water.
(4) The saturation index value should be maintained between -.5 and +.5. Ideal values are -.2 to +.2 on the saturation index.
(5) If the reading falls outside the range of -.5 and +.5 the licenseholder/operator shall initiate the saturation index adjustments to the pool water within 24 hours.
|37.115.1314||SATURATION INDEX TABLE|
(a) when standing anywhere on the perimeter or deck of the pool, spa, or other water feature, the grates on the main drain(s) at the deepest portion of the pool floor must be clearly visible and sharply defined at all times; or
(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.
(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), 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) Clarity readings shall be marked daily on the log sheets for the facility. Clarity readings are defined by the following terms:
(a) "excellent" means that the water is sparkling clear or it has an NTU reading <.5;
(b) "good" means that the water is clear to very clear or it has an NTU reading of 0.5-1.0; and
(c) "poor" means the water clarity is significantly deteriorated so that the main drain cannot be seen clearly or the bottom of the pool is obscured, or the water has an NTU reading in excess of 1.0.
|37.115.1401||TYPES OF SIGNS REQUIRED|
(a) prohibited conduct;
(b) warnings of medical or safety hazards;
(c) potential disease hazards;
(d) notification of the supervision that is or is not provided by the facility; and
(e) diving requirements.
|37.115.1402||GENERAL POOL SIGN REQUIREMENT|
|37.115.1404||SIGNS FOR WATER SLIDES|
(a) "One rider at a time. Wait until the landing area is clear before starting down the slide";
(b) "Slide in a sitting position or feet first on the back only";
(c) "Do not attempt to stop on the slide";
(d) "Leave plunge area immediately";
(e) "WARNING: Water depth is ____ feet"; and
(f) "Nonswimmers not permitted if landing area water depth is over five feet".
(2) The facility shall fill in the depth of the portion of the pool in which the water slide terminates on the sign posted under (1)(e).
|37.115.1405||SIGNS FOR FLUME WATER SLIDES|
(a) "Do not use this slide while under the influence of alcohol and/or drugs";
(b) "Follow the instructions of the flume attendant";
(c) "No running, standing, kneeling, rotating, tumbling, or stopping in the flume";
(d) "Only one person at a time";
(e) "Keep your hands inside the flume";
(f) "No diving from the flume"; and
(g) "Leave the flume pool promptly after entering".
|37.115.1406||SPRAY POOL/SPLASH DECK SIGNS|
|37.115.1503||ROPES, FLOAT LINES, AND MARKING LINES|
(a) The rope and float line shall be securely fastened to wall anchors of corrosion-resistant materials which shall be recessed or have no projection that will constitute a hazard when the line is removed. The line shall be of sufficient size and strength to offer a good handhold and to support loads normally imposed by users.
(b) A rope and float line must be in place at all times except when the pool use is restricted to lap swimming by competent swimmers, during water exercise classes, or during supervised swim instruction by a swimming instructor.
(2) In pools with uniform slopes not exceeding one foot of drop in 12 feet of run from the shallow end to the deep end a safety float line is not required, but a marking line must be installed or painted across the bottom of the pool at the five foot depth in at least a four inch wide marking in a color contrasting with the color of the floor of the pool.
(3) A rope and float line must be provided between pools that are interconnected if one of the pools is or has a portion that is deeper than five feet.
(4) A rope and float line must be provided to separate water slide catch pools from other swimming areas. On all new pools constructed after March 1, 2010, a marking line on the bottom of the pool must be installed in a color contrasting with the color of the floor and must be at least four inches wide to designate the location of each rope and float line required by this rule in order to provide an additional designation showing a change in pool depth or pool type.
|37.115.1505||FIRST AID KIT|
|37.115.1601||WHEN LIFEGUARDS ARE REQUIRED|
|37.115.1602||WHEN LIFEGUARDS ARE NOT REQUIRED|
|37.115.1603||CERTIFICATION OF LIFEGUARDS|
(a) American Red Cross Lifeguard Training;
(b) YMCA Lifeguarding;
(c) Boy Scouts of America Lifeguard;
(d) International Lifeguard Training Program (ILTP) of Jeff Ellis and Associates; or
(e) another program that is substantially equivalent to the above programs and which is approved by the department.
(2) "Licensed lifeguard" means an individual who holds a current license from the National Pool and Waterpark Lifeguard Training Program in one of the following programs:
(a) National Pool and Waterpark Pool Lifeguard;
(b) National Pool and Waterpark Lifeguard Training; or
(c) National Pool and Waterpark Deep Water Lifeguard.
(3) In addition to holding a current certification or license from one of the agencies listed in (1) or (2), each lifeguard must also hold current certification:
(a) by the American Red Cross or the American Heart Association in infant, child, and adult cardiopulmonary resuscitation (CPR); and
(b) by the American Heart Association in standard first aid or an equivalent first-aid course.
(4) Each lifeguard must meet the minimum age requirement set by the certifying or licensing agency as listed in (1) or (2).
|37.115.1604||NUMBERS OF LIFEGUARDS AND LIFEGUARD PLACEMENT|
(1) When required by these rules or when provided voluntarily, at least one lifeguard shall be on duty at all times per 2000 square feet of pool area or fraction thereof, except:
(a) during organized swim lessons with certified lifeguards as instructors for no more than ten swimmers each, a lifeguard must be on duty for the first 2000 square feet of pool area with an additional lifeguard for each additional 4000 square feet of pool area; or
(b) a pool facility may temporarily reduce the number of lifeguards required by closing an appropriately sized portion of the pool.
(2) Lifeguards must be stationed in a position which gives the lifeguard an unobstructed view of the area of the pool the lifeguard is responsible to patrol to ensure that the lifeguard is able to recognize a person in distress and provide for a rescue if needed.
|37.115.1703||FOOD, DRINK, TOBACCO USE|
(2) Eating and drinking may be allowed in areas adjacent to the pool or spa areas if designed by the management for this use, unless the pool is intended for use for accredited competitive aquatic events by sanctioning groups such as the La Federation Internationale De Natation Amateur (FINA), the National Collegiate Athletic Association (NCAA), or the National Federation of State High School Associations (NFSHSA).
(3) Any food or drink served or consumed in areas adjacent to any pool that are designed for consumption of food or drinks must be in unbreakable containers.
(4) Trash containers must be provided in areas designed for food consumption.
(5) Smoking is prohibited in all indoor public facilities. Tobacco products including, but not limited to, cigarettes, cigars, pipe tobacco or spit or chew tobacco shall not be permitted in an area adjacent to an outdoor pool, spa, or other water feature, unless the area is specifically designed and authorized by the management for this use.
|37.115.1704||NO ANIMALS PERMITTED IN OR NEAR POOLS|
|37.115.1801||REVIEW OF NONCONFORMING SPECIALTY POOLS AND WATER FEATURES|
|37.115.1803||WATER SLIDES GENERALLY|
|37.115.1804||CHILDREN'S ACTIVITY SLIDE|
|37.115.1805||DROP WATER SLIDES|
(a) The drop slide catch pool must extend five feet on either side of the center line of the slide and must extend to 20 feet in front of the slide.
(b) The drop slide catch pool must be clearly designated by float ropes.
(c) The terminus of the slide chute must extend beyond the pool wall into the pool and must be oriented so that the safety area in front of the slide does not interfere with the safety area of another slide or other pool equipment.
(d) The area from the slide terminus outward six feet in front of the slide terminus must have a depth as established from Table 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) The deck around a water slide plunge pool shall be at least four feet wide, except on the side where the flume enters the pool. A walkway which is at least four feet wide and meets the requirements of a deck shall be provided between the plunge pool and the slide steps.
(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.
Maximum Slide Exit Height
Above the Water
Required Minimum Water Depth from
the Slide Terminus to Six Feet in
Front of the Terminus
4 feet minimum
8 feet minimum
|37.115.1806||FLUME WATER SLIDES|
(a) A water slide flume shall comply with the following construction requirements:
(i) the last ten feet of flume shall be straight no closer than five feet to the plunge or swimming pool wall;
(ii) the flume shall be sloped no more than one foot vertical for ten feet horizontal for at least the last ten feet before the end of the flume;
(iii) the flume shall terminate between six inches below and two inches above the design water level in the plunge pool or swimming pool;
(iv) at the level the flume approaches the water, it shall be at least five feet away from any sides of the plunge pool or swimming pool and adjacent flumes shall be at least ten feet apart on center at the exit point;
(v) the inside surface of a flume shall be smooth and continuous; and
(vi) the flume shall be designed so that users cannot be thrown out of the flume and to minimize user collisions with the sides of the flume.
(b) The landing area for a water slide flume shall comply with the following:
(i) there shall be at least 20 feet between the end of the flume and any barrier or steps; and
(ii) if the water slide flume ends in a swimming pool, the landing area shall be divided from the rest of the swimming pool by a float line.
(2) A speed slide shall provide for the safe deceleration of the user. A run-out system or a special plunge pool entry system shall control the body position of the user relative to the slide to provide for a safe exit from the ride.
(3) The slide must be installed according to manufacturer's instructions.
|37.115.1808||CRITERIA FOR WATER SLIDES ENTRAPMENT PREVENTION|
(a) Multiple intakes may be used. Intakes shall be at least three feet apart. The intakes shall be covered with grates or other protective covers designed to prevent user entrapment. Water velocity through the intake covers shall not exceed one and one-half feet per second; or
(b) The pump intake for the water slide shall have an area of at least 342 square inches.
(2) An intake cover shall be designed to prevent user entrapment. It shall be in place at all times and it shall be securely fastened to the pool or to the intake pipe so it cannot be removed without specific tools.
(3) Water slide pump intakes must meet the requirements of the Virginia Graeme Baker Act, 15 USC 8001-8005 and ASME A112.19.8 (2007).
|37.115.1809||ZERO DEPTH ENTRY TO POOL|
|37.115.1810||MULTISECTION RECREATIONAL POOLS|
|37.115.1811||SPLASH DECKS - WATER CIRCULATION|
|37.115.1812||SPLASH DECKS - GENERAL REQUIREMENTS|
(a) surfaces with nonslip finishes that are impervious to water and easily cleanable; and
(b) uniform pool floor slopes not exceeding 1/2 inch per foot of horizontal floor length and which are sloped to drain to prevent water from collecting on the pad.
|37.115.1813||SPLASH DECKS - DRAIN SYSTEMS|
(2) 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 splash deck recirculation pump must have drain covers that measure 12 inches x 12 inches or greater in size;
(b) the maximum width of any opening in the main drain cover must not exceed 1/2 inch; and
(c) drain covers must withstand the anticipated force of users and must be removable only with specific tools.
(4) Flow through the drains to the treatment tank shall be gravity flow only. Direct suction outlets from the splash deck are prohibited.
(5) In any 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) Spray or play features must drain completely at night with no water left standing on the surface.
|37.115.1814||SPLASH DECKS - RESTROOM REQUIREMENTS|
This rule has been repealed.
|37.115.1815||SPLASH DECKS - CLEANING REQUIREMENTS|
|37.115.1819||SPA CIRCULATION REQUIREMENTS|
|37.115.1821||SPA SANITATION REQUIREMENTS|
(2) Disinfectant levels for spas shall be 2-8 ppm for chlorine or 2-10 ppm bromine at all times.
|37.115.1823||SPA CLEANING REQUIREMENTS|
|37.115.1824||EXTERNAL SPA EQUIPMENT REQUIREMENTS|
(1) Control switches for the spa jets must be located outside of the spa so that the bathers must physically get out of the spa to turn the jets on or off. Jet timers allow a maximum of 15 minutes of spa operation at a time.
(2) Every spa must have a clock visible from the spa so that bathers can monitor the time they have spent in the spa.
(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 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.
(2) Spas shall have permanent depth markers plainly and conspicuously visible from all obvious points of entry.
|37.115.1827||SPA DECK REQUIREMENTS|
|37.115.1828||SPA ENTRY REQUIREMENTS|
(2) A spa must be equipped with at least one handrail at each point of entry and exit.
(3) The surfaces within the spa intended to provide footing for users shall be made of slip resistant surfaces. The texture of such surfaces shall not cause injury or discomfort during normal use.
(4) The spa shall be provided with a handhold around the perimeter in areas where water depths exceed three feet six inches.
(2) After December 31, 2011, fill and drain wading pools are prohibited.
|37.115.1836||WADING POOLS - CIRCULATION AND DISINFECTANT SYSTEM REQUIREMENTS|
(2) Wading pools must have a recirculation and disinfectant system of its own that is capable of a one hour turnover rate.
|37.115.1837||WADING POOLS - BARRIER REQUIREMENTS|
|37.115.1838||WADING POOLS - DEPTH AND SLOPE|
(2) Floors of wading pools shall be uniform and sloped to drain completely with a maximum slope of one foot in 12 feet; and the floors must have a slip-resistant finish.
|37.115.1839||WADING POOL ATTENDANT REQUIREMENTS|
|37.115.1840||WADING POOL RESTROOM AND CHANGING TABLE REQUIREMENTS|
|37.115.1845||FLOW-THROUGH HOT SPRINGS POOLS AND SPAS - GENERALLY|
|37.115.1846||HOT SPRINGS POOLS AND SPAS AND FLOW-THROUGH HOT SPRINGS POOLS AND SPAS - CLEANING REQUIREMENTS|
(2) Each hot springs pool or spa or flow-through hot springs pool or spa must be maintained to prevent corrosion, algae growth, and other mineral accumulation on the pool wall, floor, and equipment.
(3) Each hot springs pool or spa or flow-through hot springs pool or spa that does not use a chemical disinfectant must be drained, cleaned, and sanitized every 72 hours, along with all surfaces that flow into the pool. Records of the cleaning must be maintained in accordance with the record keeping requirements of these rules.
(4) If the hot springs pool or spa or the flow-through hot springs pool or spa is not chemically disinfected, a sign must be conspicuously posted at pool side that states the following in the same words or words of substantially the same meaning: "State law does not require chemical disinfection of this pool (or spa) if it is completely drained and sanitized every 72 hours. No one with any disease communicable by water is allowed in the pool or spa."
|37.115.1847||OTHER SPECIAL PURPOSE POOLS|
(2) Any specialty pool or attraction must install and operate all features in compliance with the manufacturer's recommendations.
(3) An engineer or architect must oversee plans for all specialty attractions.
(4) The department may set additional requirements for specialty attractions in the following areas as needed to protect public health and safety:
(b) minimum times required between users beginning the ride;
(c) minimum and maximum water velocities;
(d) water turnover time; and
(e) required use of Coast Guard approved personal flotation devices.
|37.115.1901||ANNUAL LICENSING AND FEES|
(2) A license must be obtained for each separate public swimming pool, spa, or other water feature. A public swimming pool is considered separate if:
(a) its water does not commingle with water from any other public swimming pool; or
(b) it is serviced by a separate water filtration system.
|37.115.1902||LICENSE TO BE RENEWED ANNUALLY|
(2) License fees are due on or before January 1 of the license year.
|37.115.1903||LICENSE EXPIRATION; CONTINUATION OF LICENSE DURING RENEWAL PROCESS|
(2) Except as provided in (3), if the department denies the application for renewal of the license or newly limits the license, the license will continue in effect until the last day available for seeking review of the agency order or until a later date fixed by order of a reviewing court.
(3) If grounds exist to order emergency closure of a swimming pool, spa, or other water feature, the department may do so in compliance with these rules even though the licensee or license applicant is in the process of challenging the denial or renewal of the license.
|37.115.1907||APPLICATION AND FEE FOR LICENSE OR FOR LICENSE RENEWAL|
(a) $200 for any swimming pool or other water feature; or
(b) $75 for a spa or wading pool with a total water capacity not exceeding 4000 gallons; and
(c) a late renewal fee of $25 for each calendar month past the license renewal due date that the license fee is not paid. The pool, spa, or other water feature may not operate until the license fee or late renewal fee are both paid in full.
(2) Licenses are only valid if signed by an authorized representative of the department.
|37.115.1909||LICENSE NOT TRANSFERRABLE|
|37.115.1910||LICENSE TO BE DISPLAYED|
|37.115.1911||RETURN OF LICENSE|
(2) Cancellation of a license by the department is effective even if the licensee fails to return the license to the department.
|37.115.1912||WHEN LICENSE NOT REQUIRED|
(a) natural or recreational bodies of water;
(b) swimming pools located on private property, including owner-occupied condominium developments, and which are used for swimming or bathing only by the owner, members of the owner's family, or their invited guests;
(c) hot water baths for single use;
(d) a pool or spa at a tourist home, if it is not used by the parties renting or leasing the home or if it is completely drained, cleaned, and refilled between guests;
(e) spa pools in individual hotel or motel rooms or in individual cabins that are completely drained, cleaned, and refilled between patron use; and
(f) pools or spas at condominium units that are leased for periods of one month or greater.
(2) Whenever an inspection of a public swimming pool, spa, or other water feature or related facility is made to determine compliance with these rules, the findings shall be recorded on an inspection form provided by the department.
(3) If the inspecting agent determines that one or more violations exist, the inspection form shall be marked to designate the violation the inspector has identified, any correction which needs to be made, and the date by which the correction must be made.
(4) A copy of the completed inspection report form shall be furnished to the person in charge of the swimming pool, spa, or other water feature at the conclusion of the inspection. Except for portions of a completed inspection form, which implicate an individual right of privacy, the completed inspection form is a public document that shall be available for public review or distribution to any person upon request and upon payment of a reasonable copying fee.
(5) The department may close any public swimming pool, spa, or other water feature not operating in conformity with these rules.
|37.115.2002||INSPECTIONS BY LOCAL HEALTH OFFICERS|
(2) A local board of health that has entered into a cooperative agreement may have its trained sanitarian conduct the inspections.
(3) The local sanitarian must be trained by the department in swimming pool inspection techniques. The department shall periodically make such training available.
(4) Upon request of the department, a local board of health acting under a cooperative agreement shall ensure that its trained sanitarian conducts a prelicensing inspection pursuant to ARM 37.115.2002.
(5) A local board of health acting under a cooperative agreement shall ensure that its trained sanitarian conducts the following annual inspections:
(a) at least one full facility inspection and one critical point inspection of each swimming pool, spa, or other water feature that is open and operating on a year round basis; and
(b) at least one full facility inspection of each swimming pool, spa, or other water feature that is operated on a seasonal basis.
|37.115.2003||VALIDATION OF LICENSE|
(2) Within 15 days of receiving the license from the department, the local health officer shall validate or refuse to validate the license.
(3) A local health officer may refuse to validate a license if it has not met the requirements of Title 50, chapter 53, MCA, or these rules.
(4) If a local health officer refuses to validate a license, the officer shall notify the license applicant and the department within five days of the officer's decision. The notice must state the grounds for the refusal.
(5) The license applicant may appeal a decision by a local health officer to refuse to validate the license to the local board of health within 30 days after the officer's refusal or within 30 days after the period for the officer's decision has expired, whichever is first.
(6) A license applicant who has filed a notice of appeal with the local board of health is entitled to a hearing before that board to determine the applicant's eligibility for the license. The hearing shall be conducted as a contested case hearing under the Montana Administrative Procedure Act.
(7) If the local board of health determines that the applicant is entitled to a validated license, the presiding officer of the board shall validate the license by signing the license.
(8) Validation is not required if there is no cooperative agreement between the department and the local board of health providing for the local board of health to act as agents of the department to conduct inspections and to enforce applicable statutes and rules relating to swimming pools, spas, and other water features.
|37.115.2101||NOTICE OF VIOLATION|
|37.115.2102||IMMEDIATE SUSPENSION OF LICENSE; EMERGENCY CLOSURE OF POOL, SPA, OR OTHER WATER FEATURE|
This rule has been repealed.
|37.115.2103||CORRECTIVE ACTION PLAN|
(2) Submission of a plan of correction will bar any further administrative enforcement action by the department against the operator if:
(a) the department approves the plan in writing, including the time proposed by the operator to correct the violation; and
(b) the operator complies with the corrective action plan within the time period prescribed by the department.
|37.115.2104||REOPENING AFTER EMERGENCY CLOSURE|
(2) If the department determines that an in-person inspection is needed to verify that the problem has been corrected, that shall occur within five working days after the department has received written notification from the licensee, license applicant or facility operator that the problem has been resolved. The department may request that a local health department that has entered into a cooperative agreement with the department for inspection of pools have one of its qualified inspectors conduct the in-person inspection.
|37.115.2105||OTHER ENFORCEMENT ACTIONS, RECOVERY OF COSTS BY THE DEPARTMENT|
(a) criminal misdemeanor prosecution; or
(b) civil penalties; or
(c) injunctive relief; or
(d) an order for summary abatement of a public nuisance.
(2) Where the department pursues civil or criminal action to enforce Title 50, chapter 53, MCA, or ARM Title 37, chapter 115, subchapters 1 through 22 or any condition of a license or to assess civil penalties, the court may assess the licensee, the license applicant, or the operator the costs of investigation and the costs of the criminal or civil action, including reasonable attorney fees.
|37.115.2201||REQUEST FOR FAIR HEARING|
(2) A request for fair hearing must be in writing and must specify the alleged mistakes in facts or law relied upon by the department.
(3) Hearing requests must be mailed or delivered to the department's Office of Fair Hearings, P.O. Box 202953, 2401 Colonial Drive, 3rd Floor, Helena, MT 59620-2953.
(4) A request for fair hearing to contest an order for suspension or cancellation of a license or to contest corrective action ordered by the department must be received by the Office of Fair Hearings within ten days after the department serves the written notice of violation upon the licensee, license applicant, or on-site operator of the swimming pool, spa, or other water feature.
(5) Fair hearings are held pursuant to the contested case procedures of the Montana Administrative Procedure Act (MAPA) and the applicable provisions of ARM Title 37, chapter 5, subchapter 3.
(6) Hearing shall be held in Helena, Montana, unless the department agrees that it is necessary for the hearing examiner to conduct an on-site visit of the facility in which the swimming pool, spa, or other water feature is located. In that case, the hearing or a portion of the hearing may be held in a location convenient to where the swimming pool, spa, or other water feature is located.
|37.115.2203||SHOW CAUSE HEARING|
(2) Show cause hearings are held pursuant to the contested case procedures of the Montana Administrative Act and the applicable provisions of ARM Title 37, chapter 5, subchapter 3.
(3) The department may initiate a show cause hearing by including in a notice of violation an order for the licensee, license applicant, or operator to appear before the department within ten days to show cause why the license should not be denied, suspended, cancelled, or why other compliance with Title 50, chapter 53, MCA, and ARM Title 37, chapter 115, subchapters 1 through 22 should not be ordered.
(4) The notice of violation containing the show cause order may be hand delivered to the licensee, license applicant, or operator, but shall also be served by U.S. mail, postage prepaid, by internal departmental mail, or by facsimile, or other electronic means followed by a hard copy. Service of the request for a show cause hearing is complete upon mailing or electronic delivery.
(5) Hearing shall be held in Helena, Montana, unless the department agrees that it is necessary for the hearing examiner to conduct an on-site visit of the facility in which the swimming pool, spa, or other water feature is located. In that case, the hearing or a portion of the hearing may be held in a location convenient to where the swimming pool, spa, or other water feature is located.
(2) The hearing examiner shall set a scheduling conference to be held by telephone within ten days after the request for hearing or the notice of violation containing the order to show cause is received by the Office of Fair Hearing. The licensee, license applicant, or operator of the swimming pool, spa, or other water feature may agree to set the scheduling conference at a later date.
(3) At the telephone scheduling conference, the hearing examiner shall:
(a) set the date, time, and physical location for the hearing;
(b) set deadlines for any discovery requested by the parties;
(c) set deadlines for exchange of witness lists and exchange of exhibits; and
(d) set a date by which any prehearing order required by the hearing examiner shall be filed by the parties.
(4) Following the scheduling conference, the hearing examiner shall issue a written order that:
(a) sets out its rulings on the issues listed in (3);
(b) notifies the parties that the proceedings are a contested case proceeding under the Montana Administrative Procedure Act;
(c) notifies the parties that formal proceedings may be waived under 2-4-603, MCA;
(d) provides the legal authority and jurisdiction of the hearing examiner;
(e) a reference to the particular sections of the statutes and rules involved;
(f) a short plain statement of the matters asserted; and
(g) a statement that a formal proceeding may be waived pursuant to 2-4-603, MCA.
(5) The hearing examiner may require the parties to submit a prehearing order signed by the representatives or both parties which includes such things as: the parties' contentions, any agreed facts or other stipulations, the issues of fact and law, witnesses, expert witnesses, exhibits, and any relevant statutes and rules, and the anticipated length of hearing. The parties may use electronic signatures to sign and submit the prehearing order.
(6) If a swimming pool, spa, or other water feature has been closed, the hearing examiner shall expedite the proceedings to the extent possible while still providing the parties reasonable time for discovery.
|37.115.2207||HEARING, ORDER OF PRESENTATION, BURDENS OF PROOF|
(2) In a hearing concerning the denial or proposed denial of a license, the department shall open the hearing by providing evidence to establish the background facts and any reasons relied upon by the department for the denial of the license or the proposed denial of the license. The license applicant or operator shall then present its case-in-chief. The license applicant has the burden of proof to establish by a preponderance of the evidence that the denial of the license has no reasonable basis and that all requirements of Title 50, chapter 53, MCA, and ARM Title 37, chapter 115, subchapters 1 through 22 have been met and the license applicant is therefore entitled to the license. The department shall then have an opportunity to present its case-in-chief. The department has the burden of persuasion to show that there is some reasonable basis for denial of the license or that the license applicant has not met all requirements of Title 50, chapter 53, MCA, and ARM Title 37, chapter 115, subchapters 1 through 22. The license applicant or operator shall have the opportunity to present rebuttal evidence.
(3) If the department has established by a preponderance of the evidence that there have been violations of Title 50, chapter 53, MCA, or ARM Title 37, chapter 115, subchapters 1 through 22, the department's exercise of discretion in deciding the level of negative licensing action to take must be upheld unless the hearing examiner finds that in light of all the circumstances, the penalty the department has imposed or proposed to impose is so disproportionate or excessive as to be arbitrary and capricious.
|37.115.2209||LIMITS ON CONSIDERATION OF PRIOR VIOLATIONS|
(1) Except as provided in (2) 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) the licensee, license applicant, or operator requested a fair hearing to challenge the notice of violation, 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 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
(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.
|37.115.2211||RECORD, TRANSCRIPT, COSTS OF TRANSCRIPTION|
(1) The hearing examiner shall maintain the record as provided in 2-4-214, MCA, including all pleadings, all evidence submitted, all prehearing rulings, and either an audio recorded or stenographic transcription of the hearing.
(2) A party who requests that a court reporter attend the hearing to provide a record must pay the costs of the court reporter's time spent at the hearing. If more than one party requests a court reporter, any fee for the court reporter's time spent at hearing shall be split among the requesting parties.
(3) The stenographic record of oral proceedings or any part of the stenographic record must be transcribed on request of any party.
(4) The cost of transcription of any portion of the record, whether transcribed from an audio recording or from a court reporter's electronic or other notes, must be paid by the party requesting that portion of the record. If both parties request copies of a transcript, the transcription costs, including the costs of a transcript to be provided to the hearing examiner or to a court on judicial review, will be split between the parties and each party shall pay for its own copy of the transcript.
(5) The court reporter shall submit an invoice with the transcript when it is furnished. The court reporter may withhold delivery of the transcript until the transcription fee is paid or satisfactory arrangements have been made for payment of the transcript.