A Baltimore County administrative judge dismissed a health department citation that the combined chlorine levels were too high in Kids First Swim School's Perry Hall pool.
An additional step must now be taken when testing combined chlorine levels in all Baltimore County pools, Judge Lawrence Stahl ordered in a memo released Monday. The current test does not produce accurate combined chlorine levels for enforcement purposes, Stahl wrote, and a mathematical calculation must now be performed to adjust the readings.
Suing Carroll, others
The decision comes after Kids First Swim School filed a $2 million lawsuit in July against Carroll and Baltimore county health departments and the Maryland Department of Health and Mental Hygiene. Swim school officials alleged negligence, libel, slander and interference with contractual regulations. State motions to dismiss the lawsuit were heard last month, and a decision is still pending.
The lawsuit came on the heels of a Carroll County Health Department news release last June alleging the Kids First Swim School Finksburg location had violated health and safety standards and operated without a valid pool permit for at least 15 months. Alleged violations included excessive levels of combined chlorine and pH levels above 7.8.
Owner Gary Roth said the Baltimore County decision is a step forward in showing the current maximum level of combined chlorine permissible in Maryland - 0.2 ppm - was impossible to meet when using a specific test called a Taylor FAS/DPD test.
"The point was no pool in the state of Maryland could be held to the standard that we were being held to," he said.
Time to appeal
Baltimore County has 15 days from when the decision was released Monday to appeal. Monique Lyle, Baltimore County Health Department spokeswoman, wrote in an email that the county is weighing its options and does not have any further comment at this time.
Stahl heard the matter of combined chlorine levels earlier this year in regard to Kids First Swim School's location on the 9600 block of Belair Road in Perry Hall and issued his decision this week. He had heard the argument before but new testimony was crucial to his decision this time
Blatchley's testimony
Ernest Blatchley III, a Purdue University professor, gave testimony that was "informative and exceedingly credible," Stahl wrote.
Blatchley is a co-author of a 2009 study that tested more than 400 samples taken from 11 pools using both the DPD test - such as the Taylor kit - and a test called Membrane Introduction Mass Spectrometry.
The study found the MIMS test to be more accurate, Blatchley testified, but said it is highly specialized, a bench tool for laboratory use only and costs about $50,000 each. The DPD technology's result depends on several factors, including a human applying the drops and accurate timing.
A combined chlorine level of 0.2 ppm is difficult to meet using the DPD test as it overestimated the levels, Blatchley said, suggesting adjusting the level by dividing the DPD test number by 3.63, according to the decision memo.
The central issue of Stahl's decision circled around a question: "Is the testing regime and equipment, as presently available, accurate? And if not, what if anything can be done to improve its accuracy?"
Stahl concluded that Baltimore County Health Department officials acted appropriately in issuing citations within the current law. However, Stahl dismissed the citations, stating the readings were not accurate for enforcement purposes.
"The Taylor test kit, while it may be the best portable tester presently available, is exceedingly subjective as to many factors and to each individual using it," Stahl wrote in the memo.
He ordered Baltimore County Health Department officials use the "Blatchley adjustment" calculation when measuring combined chlorine levels in pool water.
Maryland Department of Health and Mental Hygiene spokeswoman Karen Black wrote in an email Wednesday that the state is reviewing the order, and it would be premature for DHMH to comment at this time.
Kids First Swim School attorney Mark Mixter forwarded the verdict to the judge overseeing the motion to dismiss the lawsuit, according to Gary Roth.
