Recent decisions by the Consumer Product Safety Commission regarding the VGB Act have garnered some very public disagreement.
In February, CPSC’s five commissioners voted on the definition of unblockable drains. The agency also outlined the minimum legislative requirements to be imposed on states trying to receive the grant money allotted for the law.
To be considered unblockable, a drain must be large enough so that it does not become blocked when covered by the 18-by-23-inch element used in testing. Furthermore, flow around the blocking element must fall within a given value. CPSC also decided that a drain is unblockable if it has an adequately sized cover, even if the sump is smaller.
But that definition has provoked public protest by certain groups.
The balloting itself was by no means unanimous: the vote was 3 to 2, with CPSC Chairwoman Inez Tennenbaum being one of the dissenters.
Those who disagree with the decision are concerned about a hazard that may occur if an unblockable-sized drain cover comes off and exposes a smaller sump. Pools with unblockable drains are not required to have a second drain or backup system.
Public dissenters include two mothers who lost children to entrapment — Nancy Baker, the mother of Virginia Graeme Baker, for whom the law is named, and Karen Cohn, mother of Zachary Archer Cohn, a 6-year-old Connecticut boy whose entrapment death led to the first-ever arrest of a pool builder in association with a drowning-related incident.
Baker and Cohn have asked CPSC to reconsider its decision.
“Those who rendered this decision are operating under the assumption that drains in pools and spas are continuously and accurately installed and maintained,” they stated in a letter addressed to Tennenbaum. “We personally know this is not the case. Zachary Cohn lost his life because the drain cover failed, and had there been a secondary layer of protection, this precious child would be living today.”
The Pool Safety Council, a Washington, D.C.-based advocacy group, also went public with its disapproval, issuing a press release titled, “Consumer Product Safety Commission Reverses Federal Law, Puts Swimmers in Grave Danger.”
PSC objects to allowing unblockable drains to serve as the only means for preventing entrapment, saying that VGB called for layers of protection.
The release contained perhaps the most accusatory language that PSC has issued against the pool and spa industry in such a public forum.
“Industry advocates, more interested in financial gain than swimmer safety, got exactly what they wanted,” stated PSC spokesman John Proctor in the document.
The group criticized CPSC as well. “The announcement brings into question the influence representatives of the pool industry have in CPSC’s decision-making process,” the press release continued. Pool Safety Council did not return requests for additional comment.
At least one commissioner was feeling frustrated with the issue. On her ballot, she indirectly referred to a specific entity that apparently stated its disagreement with the language before it came to vote.
“Certain purveyors of backup systems have made it known that they will challenge in court any decision like the one made today approving unblockable drain covers,” said Anne M. Northup. “I do not believe that such a threat — or, indeed, any threatened lawsuit by a group with a vested interest in a Commission decision (financial or otherwise) — should ever influence the Commission’s decision process one way or the other. Taking such threats into account would bias the Commission’s thinking toward those special interests most willing to sue (such as self-styled consumer groups or, as here, an industry group invested in promoting a particular technology).”
These concerns were addressed in a statement by Commissioner Robert Adler, who said that only compliant drain covers can prevent all five types of entrapment, and he believes the drain-cover standard addresses proper attachment.
He said his decision might have been different if secondary anti-entrapment systems were known to prevent all five kinds of entrapment. But, he added, these backup systems cannot prevent evisceration or hair entrapment.
“If a drain cover were to come off, a pool or spa owner might choose not to worry because he or she had a secondary anti-entrapment system,” Adler said. “Thus, one might be lulled into thinking that protections exist that really do not.”
There are some who accept the concept that a drain is unblockable on the merits of its cover, and they think the language was not thorough enough.
Unblockable drains have been used in large waterparks for some time, said David Stingl, founding partner of Stingl Products, LLC, in Sterling, Va. But in those settings they usually measured 6-by-8 feet. Applying this concept on a smaller scale is fairly new, he said.
Stingl believes more directions are necessary to dictate how to install these drains so they don’t become loose, considering that an unblockable drain is being trusted to prevent entrapment on its own, without a second drain or backup device.
“As it’s written right now, you could take a cover, screw it down into the two screw holes in an 8-inch sump and it would pass,” Stingl said. “But you have this huge cover and two little screws down into an 8-inch sump. What’s holding the rest of it down? Somebody can stick their fingers right under it and break it in half.”
Additionally, Stingl would like to see that unblockable drains be tested to ensure that they prevent body entrapment and hair entrapment simultaneously.
“The person who is blocking the element is lying on the drain cover or, if it’s wall-mounted, they’re up against it,” he said.
“What are the odds of their hair coming in contact with the cover that they’re blocking? Extremely good.”
The committee writing IAPMO/APSP-16 — the drain cover standard meant to replace A112.19.8 — is currently discussing unblockable drains.
Stingl wishes CPSC would wait for the IAPMO/APSP committee to hash out its language and use that as a reference. However, nearly 11/2 years after the deadline for commercial pools to comply with VGB, the agency was under the gun.
Both the unblockable-drain definition and state grant requirements are moving through final channels and are expected to be published in April.