On July 29, 2009, Seattle was blazing. The Emerald City had just reached 103 degrees Fahrenheit for the first time in recorded history.
Municipal workers were mobilized to deliver water to the homeless and check on elderly residents, while the Meals on Wheels program offered extra fluids with its regular food distribution.
There may never have been a better time to seek relief in one of the city’s 25 shallow-water pools. Why, then, were nearly half of those pools closed?
The answer, simply, is the Virginia Graeme Baker Pool and Spa Safety Act. Signed by President Bush on Dec. 19, 2007, the now infamous law took effect one year later, going down in history as the industry’s first-ever federal mandate. In just over a year, VGB, as it is known, has become synonymous with government ineptness, budgetary nightmares and operational snafus.
No accurate records exist, but anecdotally, the law forced hundreds, possibly thousands of public aquatics facilities to shut their doors. Meanwhile, it left operators in the lurch, caught between media reports that painted them as uncaring about child safety — one national news show reported more than 60 percent were noncompliant — and government bureaucrats who couldn’t even agree on rules of enforcement, let alone who would do the enforcing.
Even now, confusion remains, and the very mention of VGB stirs up anger and sometimes disgust. Industry professionals can only wonder: How did a law intended to reduce the number of childhood drownings go so wrong? And who is ultimately responsible?
Entrapment vs. drowning
The short answer to the latter question is Virginia Graeme Baker. The 7-year-old for whom the law was named died in 2002 from an entrapment in a backyard spa.
From 1999 to 2008, there were 83 such incidents of suction entrapment, according to the Consumer Product Safety Commission, which was charged with interpreting and enforcing the VGB law. Eleven of those entrapments were fatal, including Graeme Baker, who also happened to be the granddaughter of former Secretary of State James Baker III.
While that death, and all others caused by entrapment, was horrific, those numbers seem insignificant when compared with accidental drownings. Consider that as of Aug. 4, 2009, the state of Texas alone had lost 84 children to drowning for the year, and not a single one by suction entrapment.
Indeed, it was drowning statistics, not entrapment, that influenced the law — so much so that in the “Findings” section of the VGB Act, there’s not a single reference to suction entrapment. There are, however, references to drowning as the second leading cause of death in American children ages 1 to 14; and the act does note that “in 2004, 761 children aged 14 and under died as a result of unintentional drowning.”
“I think those findings utilize the numbers and emotion of drownings,” says Johnny Johnson, president of the National Drowning Prevention Alliance and founder of the Blue Buoy Swim School in Tustin, Calif. “It’s misrepresenting the issue. There’s no mention of entrapment there. You’re comparing apples to oranges.
“The intent of the VGB Act was to protect against suction-entrapment, and the goal was noble,” says Dan Johnson, past president of the Florida Swimming Pool Association and founder of Swim Inc. in Sarasota, Fla. “But it’s not an effective drowning-prevention act. ... I’ve been told the chances of a child being entrapped on a drain are 40 times less than they would be for that child to be struck by lightning.”
Tom Griffiths, founder of the Aquatic Safety Research Group, spent more than two decades as director of the Aquatics and Safety Office for Athletics at Penn State University in State College, Pa. Like many other professionals, Griffiths believes a more effective law would have focused on teaching children to swim.
“That would have saved many more lives than changing the drain grates,” he says. “The bottom line is, you now have a huge law to prevent double-digit deaths. And the sad thing is, we accept thousands of drownings each year. We just shrug it off.”
The law writers
The answer for why that happened in the case of VGB may lie in who wrote the law.
SVRS’s are made by various manufacturers. The devices send air into the system and/or power down the pump motor when a vacuum increase is sensed. Relatively easy to install, they cost approximately $500 to $1,000.
Though VGB doesn’t require that these products be fitted on every pool, they are listed as one of only a few permissible options.
Before the law passed, SVRS’s were virtually unknown outside aquatics. The new legislation changed that.
Jennifer Hatfield, director of government and public affairs at the Florida Swimming Pool Association, recalls a meeting she attended in Washington, D.C. Also at the gathering were Debbie Wasserman Schultz, the Congresswoman who sponsored the act; Bill Weber, CEO of the national trade association APSP; and Alan Korn, an official with Safe Kids USA, a Washington, D.C.-based advocacy group.
Hatfield went into the meeting believing it was an opportunity to discuss the language of what would become VGB. But the playing field, she says, was noticeably uneven.
“[We] really had no part in drafting the original bill,” she says. “Our understanding was that it had already been done by Safe Kids and the Pool Safety Consortium.”
PSC was a group of safety equipment manufacturers founded by Paul Pennington, owner of Vac-Alert, an SVRS-maker in Santa Rosa, Calif. The organization has since been expanded and renamed the Pool Safety Council.
Korn confirms his group was involved in the bill’s drafting, though not in the “hyper-technical aspects.”
“The Baker family helped craft a legislative response,” Korn says. “A few pool service companies from Florida, drain manufacturers, Vac-Alert and Stingl Products (another SVRS manufacturer) were also brought in. And the Association of Pool & Spa Professionals was there representing the industry.”
Pennington declined to be interviewed for this story. Calls to David Stingl of Stingl Products were not returned.
According to Carvin DiGiovanni, APSP senior director, standards and government relations, the association did review drafts and provide guidance on certain technical aspects of the act.
But to suggest the trade group played a significant role in writing the bill conflicts with the accounts of those who entered the discussions along with it.
“My involvement came late — the same time as APSP,” says Larry Caniglia, executive director of the Northeast Spa & Pool Association. “I just knew it was very late in the process. At that point, what was written was written, and we were just trying to get the language fixed. ... But we knew it was an uphill battle.
“Honestly, I wish I knew who in the industry was involved in writing it,” he adds.
When asked recently about who was responsible for the language contained in the bill, Wasserman Schultz remembered a different list of contributors.
“In drafting the bill, we worked with the staffs of the Energy and Commerce committees, the CPSC and Safe Kids Worldwide — that’s it,” she said. “We didn’t have a legislative writing party.”
After VGB became law, numerous organizations — including the National Recreation and Park Association and YMCA of the USA — contacted CPSC requesting that the deadline for compliance be postponed.
They were joined by Thomas Lachocki, Ph.D., CEO of the National Swimming Pool Foundation in Colorado Springs, Colo. Shortly before the compliance date, Lachocki issued a press release titled, “Controversial New Pool & Spa Safety Act Will Create Public Pool Closures Nationwide.”
“Suction entrapment claims about one to two victims per year based on historic data from the CPSC,” he wrote. “In contrast, drowning claimed the lives of 761 children aged 14 and under in 2004, and those numbers may increase since fewer children will attend swim lessons when pools are closed.” Lachocki added that operators across the nation would be unable to comply with the VGB Act for a number of reasons.
First was education. Despite the act having budgeted $5 million a year for a sweeping educational program directed toward the pool industry, no such program existed. The result, Lachocki said, would be confusion or outright ignorance of the law.
Next was the question of drains. Though manufacturers were working diligently, compliant drain covers still were not available in the quantities required to satisfy the needs of 300,000 public pools nationwide.
Moreover, the law meant the area below the cover (the sump) might have to be excavated and replaced to be compliant. This could add thousands to the cost of repairs at a time when budgets already were stressed.
In addition, under state laws, local health departments must review and approve changes before work on pools could begin. But health departments didn’t have the resources to inspect all public pools in their jurisdictions before the Dec. 19, 2008, deadline. Operators would be forced to either break state law by making the changes before local departments could inspect them, or violate the federal statute by first seeking approval from the state.
In each case, the only other alternative would be to close the pool. Lachocki argued that a delay would create time to “resolve technical issues and solve the entrapment problem — without causing a drowning problem, reducing public services, and hurting our fragile economy.”
However, no delay was granted, and on the day of the deadline, hundreds of thousands of public swimming pools and spas suddenly found themselves under the jurisdiction of the VGB Act.
Parts and labor
With the law’s compliance date quickly approaching, drain cover manufacturers struggled to certify their products in time. Though the issue was discussed prior to the bill’s passage, Wasserman Schultz says there was no concern over whether the supply of compliant drain covers would be able to meet an expected spike in demand.
But in the weeks before and the months after VGB took effect, scores of operators had little choice but to close down as manufacturers strained to fill order backlogs.
In Florida, pools in Martin, Port St. Lucie and Indian River counties sent away for new drain covers in autumn 2008. By Dec. 20, 2008, those deliveries still had yet to arrive. The manufacturer, according to published news reports, was bogged down with orders.
The following month, the El Paso Parks and Recreation Department was fielding 20 calls a day from residents asking when their area pools would reopen after at least three were closed due to a delay in the shipment of compliant drain covers, according to reports in the El Paso Times.
Similar scenarios played out again and again, from Maine to California. Jeremy Shoffner has been working with local suppliers for months to find drain covers that fit the nine pools he oversees for the aquatics program in San Jose, Calif.
“All of our pools had different covers,” Shoffner says. “It wasn’t a cookie-cutter method of getting the new grates.” Obtaining compliant drain covers wasn’t the only issue. Many operators had trouble finding qualified professionals to install them.
Paul Norris was one of them.
“This thing was massive,” says the director of recreation and leisure services for the town of Windsor, Conn. “It was hitting hotels, condo associations, YMCAs. … We couldn’t get a vendor to open our pools on time. We were late. There just aren’t a lot of contractors around who can do the work.”
Worse yet, in many cases just because a contractor can’t do the work, doesn’t mean he won’t. Rick Earnhardt knows this firsthand.
As one of only a few licensed service professionals in western Pennsylvania, he completed upwards of 50 retrofits in 2009, from large-scale college pools to private country clubs.
“What’s happening now is, people are making the situation more dangerous than before,” he says. “And nobody’s checking it.”
“I’ve seen everything,” he adds. “I saw one pool where the covers were literally welded onto the bottom, which is illegal. Other pools are now less safe hydraulically. It’s a little scary.”
Before the VGB Act was passed, the Congressional Budget Office conducted an analysis of its projected financial impact.
The CBO’s study concluded the law would not adversely affect those who would be subject to its regulations, according to Wasserman Schultz. “It was given an insignificant score,” she says. “The drains are not expensive … and the renovation requirements were minimal. I would say $5,000 is a rare exception.”
But across the nation, the fixes required of public pools and spas have varied wildly in price, with some requiring tens of thousands of dollars in certified repairs. Again, the only viable option for many has been closure.
In Seattle, where 11 of the Parks and Recreation Department’s 25 public wading pools were shuttered on the hottest day on record, officials still were scrambling to locate the funds to pay for needed repairs in late 2009.
“It’s been a big effort,” Kathy Whitman, Seattle’s aquatics manager said at the time. “Some of our bigger pools have three full replacement drains. We’re looking at about $10,000 per pool just for parts. And that doesn’t include application fees, paying an engineer to conduct an analysis of the pools’ mechanical systems, and labor.
“Clearly, it’s going to be in the range — just for the physical pieces and labor — of $400,000,” she says.
Seattle is far from the exception. Renovations to 21 public pools in Phoenix cost the city approximately $350,000 (average price for each pool: $16,000).
Recreation officials in Dickinson, N.D., were quoted $55,000 to bring a single outdoor pool up to code, according to The Dickinson Press. No fewer than 10 public pools in Georgia were closed for the season after state officials said they couldn’t afford the $150,000 required to make the necessary repairs.
In Woodbridge, Conn., families this winter were locked out of the town’s indoor swimming facility at Beecher Road. The pool was built in 1971 and carried L-shaped drains, recreation department officials say. Because no compliant covers could be located, the town instead planned to install new drains at an estimated cost of up to $80,000.
But Wasserman Schultz believes it’s a matter of priorities. “The entities that haven’t [made the fixes] quite simply don’t want to,” she says. “The industry continues to resist safety requirements. It’s frustrating and it’s irresponsible. ... It’s the law, it’s time — get over it.”
The best effort?
There’s consensus among many of the nation’s leading water safety experts over how the VGB Act could have been made more effective. Besides properly funding an educational element, and perhaps adding a component for child swim lessons, a graduated methodology would have at least identified and targeted pools that posed the greatest risk, they say.
“This really was a hot tub and wading pool problem,” Griffiths says. “The law has merits, but to say in one calendar year that all pools needed to change out their [drain covers], to me was way out of line.”
He adds that a phased approach based on pool depth might have been better. “More than 5 feet deep and it’s very hard to get entrapped,” he says.
For his part, Dan Johnson wishes the law had been incorporated over two years, with clearly defined, staggered goals, such as creating an effective delivery system to disseminate information from the federal level down the chain. That, he says, also would have allowed manufacturers sufficient time to produce enough compliant equipment. Year two could have been dedicated to educating health departments, building officials and the aquatics industry about the act.
“And I think [the law] went astray in that it was fast-tracked,” Johnson says. “The language was unfocused. They didn’t even consider all the issues involved in suction-entrapment avoidance.”
But there’s another, darker truth that should not escape mention. According to 2007 statistics collected by the Phoenix Children’s Hospital, 85 percent of all child drownings occur in backyard pools and spas.
So perhaps there should be a greater sense of urgency, in light of the fact that CPSC still has yet to release its residential guidelines for the new federal law; as of early fall, there was no defined mandate covering private vessels.
It means, tragically, that the same type of spa that claimed the life of Virginia Graeme Baker more than 71/2 years ago, is no safer today than it was the day she died.