DATCP Docket No. 19-R-04 Proposed Final Rule
Rules Clearinghouse No. 22-021 April 21, 2022
THE DEPARTMENT OF AGRICULTURE, TRADE AND CONSUMER PROTECTION’S PROPOSED ORDER TO ADOPT PERMANENT RULES
PROPOSED ORDER
The Wisconsin Department of Agriculture, Trade and Consumer Protection proposes an order to repeal and recreate ch. ATCP 76, relating to the Safety, Maintenance, and Operation of Public Pools and Water Attractions and affecting small business.
Analysis Prepared by the Department of
Agriculture, Trade and Consumer Protection
The Wisconsin Department of Agriculture, Trade and Consumer Protection (department) proposes an order to repeal and recreate Wis. Admin. Code ch. ATCP 76 Safety, Maintenance, and Operation of Public Pools and Water Attractions and affecting small business. This new rule, if adopted, will bring Wisconsin into substantial accord with the current industry technology, innovations, and pool patron experiences. Statutes Interpreted
Statutory Authority
Explanation of Statutory Authority
The department has broad general authority, pursuant to s. 93.07 (1), Stats., to adopt rules to implement programs under its jurisdiction. The department has specific authority, pursuant to s. 93.07 (24) (e), Stats., to enforce the laws for the maintenance and operation of public pools, and the department has authority pursuant to ss. 97.67 (1) and (4), Stats., to adopt rules for public pools dealing with fees; license issuance, pre-licensing inspection fees, reinspection fees, fees for operating without a license, and late fees for untimely license renewal. The department has authority pursuant to ss. 93.06 (7) and (8), and 97.71, Stats., to set conditions on a license, suspend a license, or void a license. The department may also issue a special order requiring corrections before a public pool resumes operations, pursuant to s. 97.65 (2), Stats. Related Statutes and Rules
Since the transfer of several programs from the Wisconsin department of health service’s food safety and recreational licensing section in July of 2016, the department has regulated public pools and water attractions. A public pool operator is responsible for safely operating and maintaining a pool pursuant to ch. 97, Stats. Reference to Wisconsin department of safety and professional services rules can also be found in ch. ATCP 76 for new pool construction or pool modifications plan approval pursuant to ch. SPS 390. Rules enforced by the Wisconsin department of natural resources are referenced in ch. ATCP 76, pursuant to chs. NR 108, 811 and 812 for water supply standards. Plain Language Analysis
A revised ch. ATCP 76 is needed because new technologies and trends within the pool and water attraction industry need to be acknowledged and addressed. In addition, in using the existing ch. ATCP 76, industry, inspectors, and the general public continually note places within the code where clarification is needed to facilitate understanding of the rule and its intent. Because of the need for clarification, many new definitions are needed. The pool industry encompasses a broad variety of businesses from small motels and campgrounds, to homeowner associations, schools, healthcare, and municipal and resort waterparks. In order to ensure development of a rule that considers all the various niches within industry, robust representation from within the pool industry, public health, and the Wisconsin department of safety and professional services pool plan review was sought in rule development. Also included in the pool industry are limited-use public pools that now are rented to the general public in a residential environment.
After receiving public comment and based on Joint Committee for the Review of Administrative Rules (JCRAR) action, the department removed subchapter VII, relating to limited-use public pools. On April 26, 2022, JCRAR adopted a motion under s. 227.26 (2) (d), Stats., that suspended s. ATCP 76.02 (1) (a) in part as it applies to a tourist rooming house. In response, the department has also removed tourist rooming houses and bed and breakfast establishments from s. ATCP 76.02 (1) (a). Sections have been added and formatted to align with other retail and recreational rules.
The process for assigning a pool license fee has relied on a licensing structure that is complicated to understand and implement. The license fee has not kept pace with the department's costs for issusing a license and conducting an inspection. The State has not had a license fee increase for pools and water attractions since 2007. In the revised ch. ATCP 76, a pool is licensed using a modernized three-tier risk and complexity model that acknowledges the risks of the pool operation and the associated features. The proposed licensing model more clearly reflects the risks and complexity of the pool operation and more accurately reflects the time it takes for the department to perform its licensing and inspection responsibilities. This licensing model will promote fairness to small business owners by having the license fee reflect inspection time, and risk associated with their facilities. License fees will not be based on a one-size-fits-all model. Significant input was received from industry and public health partners related to methods for the operation of a pool’s recirculation system and methods for chemical testing. Much of the language is outdated, including references that are no longer accurate or relevant. The input received ensured that the rule is updated to allow for new materials that perform more effectively in filtering pool water, and potentially newer water testing kits that employ technologies that may be more accurate or more efficient than the traditional approach. In these sections, the language of the rule has been intensively reviewed and clarified so that it is more easily understood by industry and regulators alike.
Supervision and staffing of pools is key to safely operating the pool as well as addressing risks that may require staffing by a lifeguard or attendant. The input received from industry and local health departments was used to revise the rule to address supervision of pools in general, and supervision of the nearly infinite types of features that may be added to a pool. At one time, a pool was a plain rectangle in the ground. Now there are pools that offer experiences such as waves, vortexes, and slide-based rides. It would be impossible to determine an exhaustive list of safety rules that would be applicable to all possible types of water experiences. The tables that describe attendant and lifeguard staffing were clarified so that they cover each type of water experience in detail, including a whirlpool, waterslide, and pool slide under six feet, and describe what the requirement is for that type of pool. The revised rule requires a pool operator and responsible supervisor to develop rules that make sense and accomplish a common goal of safely participating in the water experience.
When a waterborne illness outbreak occurs, early intervention is essential to identify and contain the outbreak. The rule supports expeditious investigation and resolution of any waterborne outbreaks. Sometimes when a suspected outbreak is occurring, it is difficult to know exactly what is expected of pool operators. The revised rule clearly states requirements for operators in the event of a suspected or confirmed outbreak so that it supports efficient and effective investigation of potential waterborne illnesses.
In recent years, there has been an upward trend in demand for dog swims. The revised rule aims at addressing the risks to ensure health and safety at these events by eliminating time spent on the variance process by pool operators, public health staff, and the department.
Federal Virginia Graeme Baker Act requirements are intended to prevent entrapment and evisceration from submerged drains in the pool. These requirements specify ratings for drain covers as well as placement of drain covers. The revised rule clearly states the requirements and aligns with federal regulations.
Input received from pool operators and pool technical service companies has been incorporated into the rule to reflect current technologies and trends.
With this rule revision, the department has sought to eliminate duplication, clarify expectations, and to simplify licensing and align fees with costs.
Wisconsin has a greater variety of requirements for disinfectant levels in order to address the risks and unique chemical environment for each type of pool. The revised rule continues to require higher disinfectant residuals in situations where there is more demand on the free chlorine, such as within whirlpools, where free chlorine disinfectant dissipates relatively rapidly, and within wading pools, where toddlers may be playing and there is a concern to keep the level above the minimum so that it does not rapidly drop below the minimum needed to kill many pathogens that may be present in feces. Some of the disinfectant requirements outside of those where specific requirements are necessary, however, have been streamlined, to make the requirements easier to find and follow. The revised rule streamlines and simplifies disinfectant residual requirements to be in line with those of surrounding states, while maintaining more stringent requirements in settings where appropriate.
In the revised rule, Wisconsin will be the first to address the toxicity of cyanuric acid by recognizing that a level of 300 parts per million (ppm) is toxic to humans, per the National Sanitation Foundation (2019).
Summary of, and Comparison with, Existing or Proposed Federal Statutes and Regulations
There are no existing or proposed federal regulations that address the activities to be regulated by this proposed rule as a whole. However, the consumer product safety commission pursusant to 15 United States Code s. 8003 requires specific construction and placement of drain covers.
The United States centers for disease control and prevention, oversees the guidance, Model Aquatic Health Code. This is a comprehensive guidance document for pools, created with input from state health departments and industry partners. The department referred to this guidance document in the revision process.
