United States: Operate Or Own A Swimming Pool? Immediate Action Is Required By The Virginia Graeme Baker Pool And Spa Safety Act

WHAT IS THE POOL AND SPA SAFETY ACT?

Drowning is the second leading cause of injury-related death in children aged 1 to 14 in the United States and entrapment in drains, often because of suction, is a common culprit. The Virginia Graeme Baker Pool and Spa Safety Act ("Act"), 15 U.S.C. § 8002, et. seq., aims to prevent the drowning of young children from entrapment by mandating federal standards for suction entrapment avoidance. Effective December 19, 2008, the Act imposes mandatory federal requirements for suction entrapment avoidance, establishes a voluntary grant program for states that enact laws meeting certain minimum requirements to reduce death and injury through safety measures and education, and authorizes $25 million to be spent over five years for a national drowning prevention education program.

WHO IS AFFECTED BY SECTION 1404(C) OF THE ACT?

All public pools and spas, including outdoor and indoor swimming pools, hot tubs, spas, portable spas, and non-portable wading pools, are required to have ASME/ANSI A112.19.8-2007 compliant drain covers installed and a second anti-entrapment system installed where there is only a single main drain. A public pool or spa, as defined by Section 1404(c)(2), is one that is open to (1) the public generally, whether for a fee or free of charge, (2) members of an organization and their guests, (3) residents of a multi-unit apartment building, apartment complex, residential real estate development, or other multi-family residential area, or (4) patrons of a hotel or other public accommodations facility operated by or on behalf of the Federal Government. Each public pool and spa in the United States must comply with the Act. There is no grandfather clause for public pools and spas constructed prior to December 19, 2008. Therefore, the Act affects a host of individuals and institutions that own or operate swimming pools and spas, including colleges and universities, hotels, and residential complexes.

WHAT IS REQUIRED UNDER SECTION 1404(C) OF THE ACT?

The Act requires that public swimming pools and spas be equipped with certified covers on every suction outlet or drain. In addition, pools and spas in the United States with a single main drain, other than an unblockable drain, must be equipped with one or more additional safety features designed to prevent entrapment such as a safety vacuum release system, a suction-limiting vent system, a gravity drainage system, an automatic pump shut-off system, drain disablement, or any other system determined by the Consumer Product Safety Commission ("CPSC") to be equally effective at preventing or eliminating the risk of injury or death from entrapment. If the pool or spa has dual or multiple drains more than three feet apart, it may be exempt from the additional safety feature requirement.

HOW DO INDIVIDUALS AND INSTITUTIONS COMPLY WITH THE ACT?

Seasonal pools and spas that were closed on December 19, 2008 are not required to be in compliance with the Act until they are re-opened to the public. Therefore, if you have an outdoor pool, take action now. Public pools and spas that operate year-round were expected to be in compliance by December 19, 2008. If a drain cover is broken, damaged, not secure or missing, the pool or spa should be immediately closed. Under the Act, a pool or spa cannot be reopened until the non-compliant drain covers are replaced.

To facilitate compliance with the Pool and Spa Safety Act, the CPSC prepared a "guidance document" which provides the staff's interpretation of statutory terms. It is available here. The CPSC website also provides a list of certified equipment manufacturers as a reference guide. It is available here.

To be certain a drain cover is ASME/ANSI certified, an individual or institution can contact the manufacturer and ask for a copy of the certificate. Also, it is good practice, although not mandatory under the Act, to keep a record of where and when the cover or other equipment was purchased. The CPSC encourages all impacted parties to pre-purchase any products that are not immediately available, hire a certified, licensed professional to assess the facility, and have an installer ready to complete the work once the certified products become available. Click here.

It is important to note that the Act sets forth "minimum" federal requirements, above which individual states may create and enforce their own stricter regulations.

WHAT ARE THE PENALTIES FOR A VIOLATION OF SECTION 1404 OF THE ACT?

The requirements of the Pool and Spa Safety Act are treated as consumer product safety rules issued by the CPSC under the Consumer Product Safety Act ("CPSA"), 15 U.S.C. 2051, et seq. Therefore, a violation of the Act is considered to be a violation of section 19(a)(1) of the CPSA. Both the CPSC and the state Attorneys General are empowered to enforce the Act and can close down any pool or spa that fails to meet the Act's requirements.

By operation of Section 19(a)(1) of the CPSA, any person who knowingly violates the Act shall be subject to a civil penalty not to exceed $8,000 for a single violation. Each violation of the Act will constitute a separate offense of the CPSA, with a maximum civil penalty not to exceed $1.825 million for a series of related offenses. Note that the civil penalties will increase to $100,000 for a single violation, with a maximum civil penalty not to exceed $15 million for a related series of violations, no later than August 14, 2009. Moreover, a willful violation of the drain cover standard could result in criminal penalties, including fines or imprisonment of up to one year under the current law and up to five years under the 2008 amendments.

In determining the amount of any penalty under Section 19(a) of the CPSA, the Commission will consider a variety of factors including the nature, circumstances, extent, and gravity of the violation. In its enforcement position, the CPSC staff states that in utilizing its limited resources it will prioritize enforcement of the law to facilities that pose the greatest risk of drain entrapment to children, including wading pools, in-ground spas, and pools designed specifically for young children, especially where they use flat drain grates and single main drain systems. The CPSC staff encouraged public pool and spa owners and operators to continue to make good faith efforts to comply with the Act. Non-compliant facilities may be able to minimize civil penalties if they can show that their good faith efforts to come into compliance with the Act have been hindered by market conditions. However, no public pools or spas are exempt from the Act, and all must be brought into compliance or risk penalties.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.