The U.S. Consumer Product Safety Commission has voted to remove allowances given to certain unblockable drains in the federal pool and spa safety law.
On Sept. 28, CPSC’s voting commissioners decided to change the definition of an unblockable drain to require that the sump, in addition to the drain cover, measure more than 18-by-23-inches and meet certain other testing criteria. The measure passed 3 to 2, in what some say was a predetermined outcome.
The decision is retroactive, so pools brought into VGB-Act compliance with the installation of an unblockable–sized cover over a single, blockable-sized drain will have be treated like a single drain. Every commercial pool with a single, blockable drain is required to have a backup system, such as an SVRS.
While the agency set a compliance date of May 28, 2012, it declared a 60-day public comment period for affected parties to remark on the feasibility of that deadline.
This latest vote has a history beginning in 2010, when the Commission decided a drain can be considered unblockable — regardless of sump size — if its cover complies with the VGB Act. That measure sparked protest among safety advocates and others, who claimed that such a drain would become hazardous if its cover came off to expose a smaller sump.
The recent vote occurred when one of the commissioners who approved last year’s interpretation, Robert Adler, initiated a new ballot. Adler had received input from parties on both sides of the question.
The CPSC is composed of five commissioners — two Republicans, two Democrats and a chairman appointed by the U.S. president. This ruling was split along partisan lines, with Adler, a Democrat, joining his party when he changed his vote.
Both Republican commissioners publicly protested the new ballot. While it was originally scheduled to take place Sept. 21, one of the Republican members (Nancy Nord) moved the hearing back a week.
High-ranking Republican legislators chimed in. Two days before the vote, the CPSC received a letter from Reps. Mary Bono Mack (R-CA) and Cliff Stearns (R-FL), chairmen of the Subcommittee on Commerce, Manufacturing and Trade, and the Subcommittee on Oversight and Investigations, respectively. Both subcommittees have some oversight authority over CPSC.
In the letter, the Congress members urged CPSC to delay its vote until after taking public comments. This was about more than pools and spas, Bono Mack and Stearns went on to say: Such a move could serve as a bad precedent and reduce public confidence in CPSC. “If the regulated community perceives that the Commission may spontaneously reverse any rule or guidance — even without supporting evidence, analysis or due process — regulatory chaos is inevitable,” they said. (Shortly after, a letter of support for the revote came from Democratic legislators — some from the same subcommittees.)
The agency held the vote as scheduled. At the meeting, Adler said he changed his position after consulting with VGB Act author Debbie Wasserman Schultz. He also received input from parents of entrapment victims, safety advocates and legislators who supported the bill.
“Every one of the citizens who wrote expressed serious objection to an interpretation of the VGB Act that allowed for no backup system for a single main drain that could be obstructed,” he said in his statement.
While Adler originally believed an unblockable drain cover protected swimmers from entrapment better than a smaller drain plus a backup system, he was persuaded otherwise. “Because all drain covers come off, it is no longer my conclusion that in all circumstances this is the case,” he said.
In the nearly two-hour proceedings, Nord and Northup continued their resistance, citing the lack of public comment and saying the decision would compromise safety. This contention largely sprang from their concerns regarding safety vacuum release systems, the most popular backup option named in the VGB Act. Because SVRS’s don’t protect against all five forms of entrapment, and a properly installed unblockable drain cover does, Nord and Northup believed CPSC was voting to swap out the safest option with one that is less so. They also said they received input from industry professionals saying the devices often would be shut down to avoid false tripping.
“We are putting out there this false safety protection and giving people a false sense of security, and that just sends cold shivers up my spine,” Nord said.
Adler said he also has concerns about SVRS technology, but that it isn’t the only backup option. “We’re not mandating the SVRS,” he said. “We’re mandating that it would be a secondary system. It would be my hope that they would not necessarily go for the SVRS.”
Northup proposed an amendment postponing the vote until public input was taken, but it was voted down. Nord proposed an amendment that would grandfather in facilities that had already complied with the VGB Act by placing an unblockable drain over a smaller sump. It, too, failed.
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Industry Reacts to Recent CPSC Change
 Bob Nichols, Owner
Precision Pool, Glendora, Calif.
I don’t think this will make [pools] any safer. The larger drain cover, when properly installed, would make that drain, in all actuality, unblockable. There hasn’t been any evidence that [those covers] don’t satisfy the requirements.
What are we getting into here? First we decided that it was good, and who knows how many pools were modified; now they’re going to have to go back and do something else again. The credibility of the people making these decisions, going back and forth ... makes regular citizens wonder, “What’s going on?” Do they know what they’re doing?
Thomas Lachocki, CEO
National Swimming Pool Foundation, Colorado Springs, Colo.
We have reason to celebrate that there have been no suction entrapment deaths in the past three years. In stark contrast, more than 1,500 families have lost loved ones due to drowning this year alone.
The recession has resulted in hundreds of pool closures, reducing swim lessons and increasing unemployment. The Commission’s decision to include another level of entrapment protection may increase drowning risk as pools close and fewer children learn to swim.
Bill Rowley, President
Rowley International Inc., Palos Verdes Estates, Calif.
I don’t know what the economic impact is, but I know that there will be pools shut down. There must have been some credibility [to the previous unblockable definition] because it was a 3-to-2 vote.
They’ve just gone through a recall on all these grates. Now they have a recall, so to speak, on the unblockable grate that they said was OK a year ago. You’ve got to be consistent. If you start going one way and then the other, it’s like the person who cried, “Wolf.” People are not going to have a whole lot of understanding or any desire to follow what you’re trying to do.
Why doesn’t the CPSC do something proactive, like do a study and start working on the elimination of main drains? If you get rid of them, this whole problem goes away.
Ron Schroader, Aquatic Safety Consultant
DrainSafe/New Water Solutions, Fort Worth, Fla.
I don’t believe in unblockable drains. Any drain can be a hazard for a child, period. The only way to make it 100 percent safe is to have it at gravity feed and make sure the velocity doesn’t exceed 1.5 feet per second through the cover.
But if you have a regular 12-by-12-inch sump with a 2-inch pipe coming into it — or a 4-inch pipe — and it’s a single suction outlet, it’s a death trap for little kids. To put a big cover over it and say, “There, it’s intrinsically safe,” I’m afraid I just can’t go there.
Karen and Brian Cohn, Founders
The ZAC Foundation, Fairfield, Conn.
We applaud Chairwoman [Inez] Tenenbaum and the CPSC for overturning the previous ruling made [by] the Commission last year that dismantled the layers of protection for pool drains as required by the VGB Act. While this action is long overdue, the Commission has bravely stood up against a relentless campaign by the pool and spa industry to ensure the VGB Act remained weakened.
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