CHAPTER 462
SWIMMING POOL REGULATIONS GOVERNING THE POSTING OF WATER QUALITY TEST RESULTS

Part I
Definitions

12VAC5-462-10. Definitions.

The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise.

"Agent" means a legally authorized representative of the owner.

"Commissioner" means the State Health Commissioner or his subordinate who has been delegated powers in accordance with 12VAC5-462-40.

"Disinfectant" means the agent that disinfects by inhibiting, neutralizing, or destroying the growth of harmful microorganisms.

"District health department" means a consolidation of local health departments as authorized in § 32.1-31 C of the Code of Virginia.

"Free residual disinfectant" means the amount of measurable chlorine or bromine remaining in the water following disinfection.

"Local health department" means the department established in each city and county in accordance with § 32.1-30 of the Code of Virginia.

"Owner" means any person who owns, leases, or proposes to own or lease a public swimming pool or water recreational facility.

"Private residential swimming pool" means any swimming pool or spa located on private residential property under the control of the homeowner or a tenant, the use of which is limited to swimming or bathing by members of the homeowner's or tenant's family or their invited guests.

"Public swimming pool" means any swimming pool or spa, other than a private residential swimming pool or spa, intended to be used collectively by numbers of persons for swimming or bathing and operated by any person, whether as owner, lessee, operator or concessionaire, regardless of whether a fee is charged for such use. The term "Public swimming pool" includes, but is not limited to, tourist establishment pools, pools owned or operated by a condominium, private club or association of persons, apartment, or any association of persons. The term "public swimming pool" shall not include single occupant tanks and showers used exclusively for therapeutic purposes.

"Spa" means a hydrotherapy unit designed for recreational or therapeutic use which is not drained, cleaned, or refilled after each use. It may include, but is not limited to, units designed for hydro-jet circulation, hot water, cold water, mineral bath, air induction bubbles, or any combination thereof. Common terminology for a spa includes, but is not limited to, therapeutic pool, hydrotherapy pool, whirlpool, hot spa, and hot tub.

"Swimming pool" or "pool" means any structure, basin chamber, or tank, located either indoors or outdoors, containing an artificial body of water intended to be used for swimming, wading, diving or recreational bathing, including spas and hot tubs, and having a water depth of 24 6 inches or more at any point.

"Tourist establishment" means any tourist facility such as hotels, motels, bed and breakfast facilities, campgrounds, or summer camps that is regulated by the State Health Department.

"Water recreational facility" means any facility, other than a swimming pool, operated for public use or in conjunction with a tourist facility or health spa where one's body comes in contact with an artificial body of water either the spraying of water into the air.  The term "water recreational facility" includes fountains and spray basins were wading is permitted or encouraged, regardless of water depth.  The term "water recreational facilities" does not include misters that are used during periods of hot weather at public gatherings or sporting events such as distance running or other recreational events where the water is not recycled through the system.

Part II
General Purposes

12VAC5-462-20. Purpose of chapter.

This chapter has been promulgated by the State Board of Health to:

1. Ensure that owners or operators of all public swimming pools and water recreational facilities post daily water quality test results and water quality standards so that users are informed of pool water quality conditions that affect the public health, welfare, and safety.

2. Guide the owner or his agent in the requirements necessary to ensure safe pool and water recreational facility maintenance including pH level, disinfectant type and concentration level, and water temperature.

3. Establish the recommended standards for the safe and sanitary maintenance of public swimming pools and water recreational facilities including the safe levels for: pH, chlorine, bromine, and water temperature for spas.

12VAC5-462-30. Relationship to the regulations governing hotels, summer camps, and campgrounds.

This chapter is independent of and in addition to the requirements of the regulations governing hotels, summer camps, and campgrounds adopted pursuant to § 35.1-11 of the Code of Virginia. Prior to obtaining a permit to operate a hotel, summer camp, or campground, an applicant must comply with the provisions of this chapter.

12VAC5-462-40. Administration of chapter.

A. The State Board of Health, hereinafter referred to as the board, has the responsibility to promulgate, amend, and repeal regulations necessary to ensure the daily posting of water quality test results and water quality standards at public swimming pools and water recreational facilities.

B. The State Health Commissioner, hereinafter referred to as the commissioner, is the chief executive officer of the State Department of Health. The commissioner has the authority to act within the scope of regulations promulgated by the board and for the board when it is not in session. The commissioner may delegate his powers under these regulations in writing to any subordinate, with the exception of (i) his power to issue variances under § 32.1-12 of the Code of Virginia and 12VAC5-462-150 and (ii) his power to issue orders under § 32.1-26 of the Code of Virginia and 12VAC5-462-100.

The commissioner has final authority to adjudicate contested case decisions of subordinates delegated powers under this section prior to appeal of such case decisions to the circuit court.

C. The State Department of Health, hereinafter referred to as the department, is designated as the primary agent of the commissioner for the purpose of administering this chapter.

D. The district or local health departments are responsible for implementing and enforcing the regulatory activities required by this chapter.

12VAC5-462-50. Right of entry and inspections.

In accordance with the provisions of § 32.1-25 of the Code of Virginia, the commissioner or his designee shall have the right to enter any property to ensure compliance with these regulations.

12VAC5-462-60. Exemption.

This chapter shall not apply to private residential swimming pools or recreational waters other than public swimming pools.

Part III
Procedural Regulations

Article 1
General

12VAC5-462-70. Compliance with Administrative Process Act.

The provisions of the Virginia Administrative Process Act [§ 9-6.14:1 et seq. of the Code of Virginia] shall govern the promulgation and administration of this chapter and shall be applicable to the issuance and appeal of any case decision under this chapter.

12VAC5-462-80. Powers and procedures of chapter not exclusive.

The commissioner may enforce this chapter through any means lawfully available.

Article 2
Enforcement of Regulations

12VAC5-462-90. Notice.

Subject to the exceptions below, whenever the commissioner or the district or local health department has reason to believe a violation of any of these regulations has occurred or is occurring, the alleged violator shall be notified. Such notice shall be made in writing, shall be delivered personally or sent by certified mail, shall cite the regulation or regulations that are allegedly being violated, shall state the facts which form the basis for believing the violation has occurred or is occurring, shall include a request for a specific action by the recipient by a specified time and shall state the penalties associated with such violation. When the commissioner deems it necessary, he may initiate criminal prosecution or seek civil relief through mandamus or injunction prior to giving notice.

12VAC5-462-100. Orders.

Pursuant to the authority granted in § 32.1-26 of the Code of Virginia, the commissioner may issue orders to require any owner, or other person, to comply with the provisions of this chapter. The order shall be signed by the commissioner and may require:

1. The immediate cessation and correction of the violation;

2. Appropriate remedial action to ensure that the violation does not recur;

3. The submission of a plan to prevent future violation to the commissioner for review and approval;

4. The submission of an application for a variance; or

5. Any other corrective action deemed necessary for proper compliance with this chapter.

12VAC5-462-110. Hearing before the issuance of an order.

Before the issuance of an order described in 12VAC5-462-100, a hearing must be held, with at least 30 days notice by certified mail to the affected owner or other person of the time, place and purpose thereof. The procedures at the hearing shall be in accordance with 12VAC5-462-230 or 12VAC5-462-240 and with §§ 9-6.14:11through9-6.14:14 of the Code of Virginia.

12VAC5-462-120. Order; when effective.

All orders issued pursuant to 12VAC5-462-100 shall become effective not less than 15 days after mailing a copy thereof by certified mail to the last known address of the owner or person violating this chapter. Violation of an order is a Class 1 misdemeanor. See § 32.1-27 of the Code of Virginia.

12VAC5-462-130. Compliance with effective orders.

The commissioner may enforce all orders. Should any owner or other person fail to comply with any order, the commissioner may:

1. Apply to an appropriate court for an injunction or other legal process to prevent or stop any practice in violation of the order;

2. Commence administrative proceedings to suspend or revoke the operations permit if the public swimming pool is a tourist establishment pool.

3. Request the Attorney General to bring an action for civil penalty, injunction, or other appropriate remedy; or

4. Request the Commonwealth's Attorney to bring a criminal action.

12VAC5-462-140. Not exclusive means of enforcement.

Nothing contained in Article 2 of this part shall be interpreted to require the commissioner to issue an order prior to commencing administrative proceedings or seeking enforcement of any regulations or statute through an injunction, mandamus or criminal prosecution, nor shall anything in this chapter affect the authority of the board or commissioner from issuing an emergency order under § 32.1-13 of the Code of Virginia.

Article 3
Variances

12VAC5-462-150. Granting a variance.

Only the commissioner or the deputy commissioners may grant a variance to this chapter. (See §§ 32.1-12 and 32.1-22 of the Code of Virginia and 12VAC5-462-40.) The commissioner or the deputy commissioners shall follow the appropriate procedures set forth in this article in granting a variance.

12VAC5-462-160. Requirements for a variance.

The commissioner may grant a variance if a thorough investigation reveals that the hardship imposed by this chapter outweighs the benefits that may be received by the public. Further, the granting of such a variance shall not subject the public to unreasonable health risks.

12VAC5-462-170. Application for a variance.

Any owner who seeks a variance shall apply in writing. The application shall be signed by the owner, addressed and sent to the commissioner at the State Department of Health in Richmond. The application shall include:

1. A citation to the regulation from which a variance is requested;

2. The nature and duration of the variance requested;

3. Any relevant analytical results including results of relevant tests conducted pursuant to the requirements of this chapter;

4. Statements or evidence why the public health and welfare would not be degraded if the variance were granted;

5. Suggested conditions that might be imposed on the granting of a variance that would limit the detrimental impact on the public health and welfare;

6. Other information, if any, believed pertinent by the applicant; and

7. Such other information as the district or local health department or commissioner may require.

12VAC5-462-180. Evaluation of a variance application.

A. The commissioner shall act on any variance request submitted pursuant to 12VAC5-462-170 within 60 calendar days of receipt of the request.

B. In the evaluation of a variance application, the commissioner shall consider the following factors:

1. The effect that such a variance would have on informing swimming pool or water recreational facility users of water quality test results and water quality standards;

2. The cost and other economic considerations imposed by this requirement;

3. The effect that such a variance would have on protection of the public health, welfare and safety;

4. Such other factors as the commissioner may deem appropriate.

12VAC5-462-190. Disposition of a variance request.

A. The commissioner may deny any application for a variance by sending a denial notice to the applicant by certified mail. The notice shall be in writing and shall state the reasons for the denial.

B. If the commissioner proposes to grant a variance request submitted pursuant to 12VAC5-462-170 the applicant shall be notified in writing of this decision. Such notice shall identify the variance, swimming pool or water recreational facility covered, and shall specify the period of time for which the variance will be effective. The effective date of a variance shall be as stated in the variance.

C. No owner may challenge the terms or conditions set forth in the variance after 30 calendar days have elapsed from the effective date of the variance.

12VAC5-462-200. Posting of variances.

All variances granted shall be posted in plain view of swimming pool or water recreational facility users.

12VAC5-462-210. Hearings on disposition of variances.

Hearings on denials of an application for a variance or on challenges to the terms and conditions of a granted variance may be held pursuant to 12VAC5-462-230 or 12VAC5-462-240, except that informal hearings under 12VAC5-462-230 shall be held by the commissioner or his designee.

Article 4
Hearings and Appeals

12VAC5-462-220. Hearing types.

Hearings before the commissioner or the commissioner's designees shall include any of the forms described in 12VAC5-462-230 or 123VAC5-462-240 depending on the nature of the controversy and the interests of the parties involved.

12VAC5-462-230. Informal hearings.

An informal hearing is a meeting with a district or local health department with the district or local health director presiding and held in conformance with § 9-6.14:11 of the Code of Virginia. The district or local health department shall consider all evidence presented at the meeting which is relevant to the issue in controversy. Presentation of evidence, however, is entirely voluntary. The district or local health department shall have no subpoena power. No verbatim record need be taken at the informal hearing. The local or district health director shall review the facts presented and based on those facts render a decision. A written copy of the decision and the basis for the decision shall be sent to the appellant within 15 working days of the hearing, unless the parties mutually agree to a later date in order to allow the department to evaluate additional evidence. If the decision is adverse to the interests of the appellant, an aggrieved appellant may request an adjudicatory hearing pursuant to 12VAC5-462-240.

12VAC5-462-240. Adjudicatory hearing.

The adjudicatory hearing is a formal, public adjudicatory proceeding before the commissioner, or a designated hearing officer, and held in conformance with § 9-6.14:12 of the Code of Virginia. An adjudicatory hearing includes the following features:

1. Notice.

Notice which states the time and place and the issues involved in the prospective hearing shall be sent to the owner or other person who is the subject of the hearing. Notice shall be sent by certified mail at least 15 calendar days before the hearing is to take place.

2. Record.

A record of the hearing shall be made by a court reporter. A copy of the transcript of the hearing, if transcribed, will be provided within a reasonable time to any person upon written request and payment of the cost.

3. Evidence.

All interested parties may attend the hearing and submit oral and documentary evidence and rebuttal proofs, expert or otherwise, that are material and relevant to the issues in controversy. The admissibility of evidence shall be determined in accordance with § 9-6.14:12 of the Code of Virginia.

4. Counsel.

All parties may be accompanied by and represented by counsel and are entitled to conduct such cross-examination as may elicit a full and fair disclosure of the facts.

5. Subpoena.

Pursuant to § 9-6.14:13 of the Code of Virginia, the commissioner or hearing officer may issue subpoenas on behalf of himself or any person or owner for the attendance of witnesses and the production of books, papers or maps. Failure to appear or to testify or to produce documents without adequate excuse may be reported by the commissioner to the appropriate circuit court for enforcement.

6. Judgment and final order.

The commissioner may designate a hearing officer to conduct the hearing as provided in §§ 9-6.14:12 and 9-6.14:14.1 of the Code of Virginia, and to make written recommended findings of fact and conclusions of law to be submitted for review and final decision by the commissioner. The final decision of the commissioner shall be reduced to writing and will contain the explicit findings of fact upon which his decision is based. Certified copies of the decision shall be delivered to the owner affected by it. Notice of a decision will be served upon the parties and become a part of the record. Service may be by personal service or certified mail return receipt requested.

12VAC5-462-250. Request for hearing.

A request for an informal hearing shall be made by sending the request in writing to the district or local health department. A request for an adjudicatory hearing shall be made in writing and directed to the commissioner at the State Department of Health in Richmond. Requests for hearings shall cite the reason(s) for the hearing request and shall cite the section(s) of this chapter involved.

12VAC5-462-260. Hearing as a matter of right.

Any owner or other person whose rights, duties, or privileges have been or may be affected by any decision of the board or its subordinates in the administration of this chapter shall have a right to both informal and adjudicatory hearings. The commissioner may require participation in informal and adjudicatory hearings. The commissioner may require participation in an informal hearing before granting the request for a full adjudicatory hearing.

12VAC5-462-270. Appeals.

Any request for hearing on the denial of an application for a variance pursuant to 12VAC5-462-190 must be made in writing and received within 60 days of receipt of the denial notice.

Part IV
Posting Requirements

12VAC5-462-280. Posting of water quality test results and water quality standards.

A. The test results and water quality standards shall be posted in a location where it is readily observable by the users of the swimming or water recreational facility.

B. The test results and water quality standards shall be posted on durable waterproof material.

C. The owner is responsible for meeting the requirements set forth in this chapter.

D. The water quality tests shall be performed and posted at least once daily and as often as necessary to maintain the standards as set forth in this chapter. When more than one test is conducted during an operating day, the most recent test results shall be posted.

12VAC5-462-290. Water quality standards.

Free chlorine and bromine residuals and pH values and temperature shall be continuously maintained within the following ranges:

1. Pools and water recreational facilities.

2. Spas.

12VAC5-462-300. Test kits.

Test kits for the measurement of all required chemistry parameters in this chapter shall be provided and maintained at each public swimming pool and water recreational facility. The test kits shall be capable of measuring the disinfectant residuals accurately to within 0.5 ppm.

FORMS (12VAC5-462)

Water Quality Test Results.