s many as 80 percent of U.S. public pools and spas may be out of compliance with the Virginia Graeme Baker Pool and Spa Safety Act, according to the National Swimming Pool Foundation.

There’s no definitive way to tell exactly how many of the nation’s approximately 300,000 pools are out of compliance and must close permanently, said Tom Lachocki, NSPF’s CEO, who provided industry statistics in an interview with The Wall Street Journal.

Many operators who have not complied are still wondering whether to close permanently to avoid potential legal liability or continue on in violation of the federal law.

Meanwhile, industry leaders are questioning whether states and state attorney generals are obligated to enforce the law. In a December statement, CPSC Acting Chairwoman Nancy Nord said the agency’s priority would be high-risk pools — children’s pools, wading pools and spas, and it would be looking to states to act as “co-enforcers of the law.” But according to Don Burns, president/CEO of the California Spa and Pool Industry Education Council, or SPEC, states need legislative authority to enforce federal law. As a leading lobbyist for California’s pool and spa industry, he cites Supreme Court precedent and is planning to request a formal legal decision from the California legislature.

Lachocki said many pools still are noncompliant for “a whole host of reasons,” but most facilities that have closed permanently, or will soon, are older pools with custom “field-fabricated” drains that would be costly to retrofit.

As of Jan. 1, 2009, many operators still were waiting on back-ordered covers. A number of pool cover sizes were not approved or available until late last year. Manufacturers still are scrambling to produce them.

Other problems include late notice about the new requirements and lack of funding for retrofits. Industry estimates say the work could run anywhere from $1,000 to $10,000 or more, depending on the pool configuration.

Some operators, particularly those with large-size unblockable grates or unique field-fabricated drain configurations, still may be awaiting answers from CPSC. Approved cover options for unblockable drains now are available per the ASME/ANSI A112.19.8-2007 standard referenced in the legislation. CPSC has authorized licensed pool engineers to test and certify pre-existing field-fabricated grates. But there’s been no additional guidance.

CPSC spokesman Scott Wolfson said questions remain over whether unblockable drain covers can be placed on blockable-sized drains to avoid installing a second anti-entrapment system.

Many states such as Minnesota, which passed the Abigail Taylor Act, effective Jan. 1, 2009, already have or will be actively enforcing the law, but others have not committed. Health officials in California, Illinois, North Carolina and Oklahoma have been quoted in news reports saying they won’t begin actively enforcing the VGB Act until their states adopt it.

Locally, while cities such as Los Angeles have proposed adopting regulations beyond what the federal law requires, others — hoping to avoid public outcry over municipal pool closures — have voted to allow pools to remain open as they’re being brought into compliance.

“If a pool is safe, it shouldn’t be forced to close,” Lachocki said. “But higher-risk facilities should do so if they can’t come into compliance. They’ll either have to bear the financial consequences or the larger costs of an entrapment incident.”