AS VGB Deadline Approaches, Aquatics Leaders Plead for More Time
The Virginia Graeme Baker Pool and Spa Safety Act was signed into law last December, giving public pool operators exactly one year to ensure that their drain covers and suction systems would adequately prevent a pool user from being entrapped or eviscerated. In June, the Consumer Product Safety Commission, the entity that will enforce compliance, laid out its interpretations of the legislation, named for a seven-year-old girl fatally eviscerated in a Maryland spa in 2002 (see "Pool Rules," August, p. 58). At that point, with the compliance deadline clock at six months and ticking, a wave of panic began to wash over the pool industry.
"Most of the aquatics community was on the same page when this legislation passed through Congress," says Mike Phillips, public policy manager at the National Recreation and Park Association, which supported the legislation. "Where the challenge came is when the CPSC staff interpretation redefined what a blockable drain is and made additional safety requirements on these drain covers to consider hair entanglement and finger entrapment. Most parks and recreation facility managers thought they were in compliance until this past summer."
On Nov. 6, NRPA, which had seen its initial recommendation for a three-year implementation window rejected, released a statement about the fast-approaching Dec. 19 deadline, imploring NRPA members to contact their Congressional leaders and plead for more time. As of this writing, word was that Congress would be focused first and foremost on the U.S. economy, according to Phillips, even as the economic health of thousands of pool operators, not to mention the physical health of their patrons, floated in limbo.
To their credit, manufacturers have rushed compliant covers into the marketplace, but purchase and installation of the products by individual pool operators on such short notice has been, in many cases, impossible. "There's not enough product out there that they can use, and there are budget implications," Phillips says. "We're hearing that this could cost from $1,000 to $15,000 a pool that is unbudgeted, and when you deal with a small town, those are very difficult numbers to work with."
In a Sept. 30 letter to the CPSC authored by Tom Lachocki, chief executive officer of the National Swimming Pool Foundation, worst-case compliance scenarios put the cost to local operators at $200,000 or more. That's in the event that the CPSC held to its interpretation that drain covers by design must match the sump to which they are attached. Because many larger pools feature field-fabricated covers and sumps, the prospect of draining a pool and digging out its plumbing to install factory-matched replacements not only represents a potentially crippling up-front investment, but a likely devastating yearlong shutdown of operations — even if the field-fabricated equipment was perfectly safe to begin with.
The CPSC has indicated a willingness to compromise on this point, allowing for field-fabricated equipment that is inspected and determined by an expert to sufficiently protect against entrapment or entanglement. But as of the first week of November, even Lachocki wasn't sure what to think, despite hearing CPSC representatives address the issue during a conference call and at NSPF's World Aquatic Health Conference in October. "They were saying and the PowerPoint slides were saying that so long as you have an expert verify that the cover is okay with the sump beneath it, that's okay. That's the good news," Lachocki says. "The bad news is that in the slides, there's a disclaimer saying that the information in the slides may not reflect the official position of the CPSC."
Moreover, the American Society of Mechanical Engineers/American National Standards Institute specifications that provide the framework for the Baker Act state that drain covers, even those that are field-fabricated, must undergo a test simulating years of UV exposure to ensure the cover's protective properties will not be compromised. "That's a smart thing to do," Lachocki says. "However, these tests are very expensive. No one is going to test their one field-fabricated cover. Testing would really have to come from a manufacturer."
Securing an expert to conduct the requisite onsite safety inspection could be problematic, adds Lachocki, since the CPSC has not clearly defined the term. "Let's just assume that it has to be a defensible expert — a professional engineer, for example," he says. "Experts that I talk to are very hesitant to put their name on a verification that a drain is okay. Here's why: In the good old days, they would just get sued; now it opens them up to criminal penalties, including jail. It's a federal law, and they could be prosecuted by the federal government. The CPSC has limited ability to inspect and find gaps in compliance with the law, but if someone ever gets hurt, the backlash on those people is going to be extraordinary."
NRPA's Phillips doesn't fault the law on its face, only its implementation. "Everybody wants safe pools for people, and these are good requirements," he says. "However, communities can only do so much to comply within just a few months when you take into consideration municipal budget processes, water restrictions and ongoing recreation programming."
Using the rule that hazard multiplied by exposure equals risk, Lachocki has recommended that the CPSC first target pools with three feet of water or less — giving them a one-year extension from the Dec. 19 deadline to retrofit drain covers as needed. All other pools should comply within 18 months, he says. If the original Dec. 19 deadline holds and the compliance requirements remain intact, "there's certainly a high likelihood that almost every aquatic facility in America will be breaking federal law," he admits. "And if a facility is placing users at a substantial risk, then maybe 'lawbreaker' is the category that it should fall into. However, if the facility is not, then that seems extreme. In times when there are real challenges economically, for the federal government to set the expectation that you comply or you close, that even pools that are okay should close, then what's the economic impact of that?"
Death by pool entrapment remains extremely rare — occurring an estimated one or two times each year. That fact is no comfort to the survivors of those whose lives have ended prematurely due to poorly designed or defective circulation systems and drain covers. Thanks to the swift action of Congress, the aquatics industry is heading toward zero tolerance of entrapment-related accidents. In the meantime, aquatics advocates remain concerned that unrealistic regulatory expectations could cause unnecessary industry-wide suffering. "We have to give our citizens healthy places to exercise, and those bodies of water are terrific from when you're a baby to when you're in your late years," Lachocki says. "Closing them all down does have a public health impact. Having one open that's not safe or as safe as it can be certainly places people at risk, but having them all closed places people at risk, too."
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