|
|
Virginia Graeme Baker Pool Safety Act  The Virginia Graeme Baker Pool and Spa Safety Act (the “Act”) went into effect December 19, 2008. The Act sets a federal swimming pool and spa drain cover standard as a consumer product safety rule. This means that the Act is governed by the Consumer Product Safety Commission (the “CPSC”). The Act requires the EACH swimming pool or spa drain cover manufactured, distributed or entered into commerce after December 19, 2008 SHALL conform to the entrapment protection standards of ASME/ANSI A112.19.8 performance standard or any successor regulation. The Act defines swimming pool or spas to mean “any outdoor or indoor structure intended for swimming or recreational bathing, including in-ground and above-ground structures, and includes hot tubs, spas, portable spas, and non-portable wading pools.”
CONSUMERS, POOL OWNERS AND OTHERS: This is a safety issue. This in NOT an effort by a contractor to make an additional sale or to scam you. Failing to comply may endangerment not only yourself but your families and guest. Ask your pool contractor, even if the work is unrelated to the pool, to explain the issues. There are may sources of information that explain the risk. See these news videos to know the risks: Today Show, CBS video and ABC video. Want more information? See the website for the US Consumer Product Safety Commission and the Southern Pool Alliance. To an owner without children who says “this will not be a problem”, although the news stories were about children, reports involving adults in similar situations. The danger may not only impact the visitors and guests, the danger may become an issue on the resale of the home. It may also be an issue for your liability insurance. Homeowners should discuss this matter with their insurer.
Practice Tips for Contractors A discussion of differences in the Act between public pools and non-public pools (such as private residences) may be found below. Remember this is general legal information and NOT legal advice but there are several considerations I discuss with clients, while we wait for more definitive answers:
For public pools: Require strict compliance with the Act. If the pool owner or operator does not want to comply with the Act, I strongly recommend to my client that they refuse to perform any work and that they send written notice of non-compliance. I have advised some clients that I would not even recommend that they maintain a public pool that is not in compliance and that they may have a duty to report the non-compliant public pool owner/operator. Each situation is different and your should consult with your legal advisor. If you decide to proceed despite this, I would strongly suggest you contact your liability insurer to discuss your legal risks. For private non-public pools: consult with your legal advisor about your legal options but consider: NO owner can waive the requirements of the Act. Replacement of the drain cover absolutely requires conformance with the Act. The sale or offer of sale or distribution in commerce of a non-compliant drain cover is unlawful. Any person who knowingly commits a violation is subject to civil penalties. If the contractor is working on the drain cover or related systems, without replacing the drain cover or system, and the private pool owner refuses to authorize work to bring the drain cover into compliance, a waiver or other similar instrument signed by the owner may not provide adequate protection for the risk taken. If the contractor is working on systems other than the drain cover or related systems, the better practice would be to have the owner sign a written acknowledgement that the pool contractor made the owner aware of the law, the danger and that the owner determined not to bring the pool into compliance. Your contract should clearly detail the scope of work as excluding the drain cover and related systems and the owner should acknowledge this in writing. You can consult with your legal advisor about size of type, typeface, signature requirements and similar matters. Public pool requirements include requirements that may not be applicable to private pools but that does not mean that they may not be advisable or that you should not discuss these with the owner and discuss the safety aspects.
Most importantly, be sure to check with your general liability insurer to determine what the requirements are for your insurance. Be aware that if you work on the pool and it is not brought up to conformity with the Act, there is a very distinct possibility that you will be named in any legal action. As always, I am available to provide specific legal advice for clients, including a discussion about contract language, acknowledgment forms and other practice information. Please contact me to discuss your specific needs.
Enforcement Finally, enforcement of the act is the responsibility of the CPSC. Violation of the drain cover standard would be a violation of a rule issued under the Consumer Product Safety Act (the “CPSA”) and prohibited under Section 19 of the CPSA. Knowing violations of Section 19 is subject to civil penalties under Section 19 of the CPSA. Violation also triggers the reporting requirements of Section 15(b) of the CPSA. Failure to report violations to the CPSC as required by Section 15(c) of the CPSA may result in civil penalties. As to public pools and spas, the Act directs that the requirements of §1404(c)(1) of the Act are to be enforced under Section 19 of the CPSA. Thus a violation may result in civil penalties. How is the CPSC policing the marketplace? Even prior to its enforcement date, bill sponsor Congresswoman Wasserman Schultz was noting that staff interpretation documents failed to describe how the agency would police the marketplace nor the ramifications of non-compliance and that the Congresswoman strongly believed that public guidance documents should address these issues. The Congresswoman also noted that civil penalties of Section 1404 can result in civil penalties of as much as $1.8 million and that then-pending legislation would increase those penalties to $10 million or higher. The CPSC has also noted that, although it has the ability to bring multi-million dollar fines or prison sentence against individual pool and spa operators, it does allow for the closure of a non-compliant pool until the owner/operator can successfully bring the facility into compliance. The choice of action by the CPSC may depend upon something as simple as a knowing violation versus an inadvertent violation. As has been noted, many local governments are under the impression that enforcement of these regulations is solely within the purview of the CPSC and that local governments have no enforcement responsibilities. The CPSC has noted that they have been communicating with state enforcement agencies about the Act and that CPSC staff is relying on state enforcement agencies to be co-enforcers. Impact on State Law Although the Act does not expressly preempt state law, because Section 1404(b) of the Act (regarding the drain cover standard) is expressly characterized as a “consumer product safety rule”, the preemption provisions of the CPSA come into effect. However Section 1404(c) of the Act is not characterized as a rule, there is no express or implied preemption. As to public pools and spas, compliance must be made with both state and federal law.
| Public Pools  As to public pools and spas, the Act requires that they be equipped with anti-entrapment devices and, if they have an single main drain other than an unblockable drain, they are to be equipped with one of more of the following devices designed to meet the drain cover standard requirements: (1) safety vacuum release system, (2) suction-limiting vent system, (3) gravity drainage system, (4) automatic pump shut-off system, (5) drain disablement and (6) other systems determined by the CPSC to be equally effective. “Public pool and spa” means pools and spa open to the public either for a fee or free of charge, open exclusively to members of an organization or residents of a multi-unit residential property, hotels or other public accommodations facility or operated by or on behalf of the federal government. Public pools and spas, even those constructed prior to December 19, 2008, must comply with the Act and must be promptly retrofitted. As noted by the CPSC, pools and spa do not need to be in compliance on December 19, 2008 but they are required to be in compliance on the date they are re-opened. Does the issuance of a permit by a local government entity mean that the pool does not have to be in compliance? ABSOLUTELY NOT. Some local officials have noted that they may not have legal authority or the funds at their level to enforce the Act. The issuance of a permit does not mean that the pool is in compliance or that the pool owner need not do anything. While federal and state officials may not agree upon who will enforce, liability for noncompliance is not in doubt and the danger to the public remains. Public pool owners and operators who are NOT in compliance are risking serious liability and, as in some cases, may not have insurance coverage. | Non-Public Pools In contrast to public pools, non-public pools (such as most private residential back yard family pools and spas - but not those at a clubhouse), constructed prior to December 19, 2008 do not have to be immediately retrofitted. Numerous contractors have asked what work can be performed on a non-public pools and spas before the requirements of the Act are trigger. While there are no absolute definitive answers, maintenance work on a non-public pools that involves replacing a drain cover absolutely requires that the drain cover be in compliance with the Act. Pool contractors who have a supply of non-conforming drains would be in violation of the Act if they were to sell them or otherwise place them in commerce after December 19, 2008. But does maintenance work on the drain cover or system that does NOT require replacement of the drain cover require compliance? Suppose the cover is removed, can the contractor put the same cover back in place? Does other maintenance work require replacement? These are questions that are not clearly answered. I hope to update this page with additional answers. |
|