The owner of a high-rise office building in mid-town Manhattan sued the manufacturer of the asbestos-containing fireproofing product that had been used in the building, claiming that the manufacturer had a non-asbestos alternative that could have been supplied for use in the building.
We secured records and meeting minutes of the agencies in New York City, the Board of Standards and Appeals (BSA), and the Materials and Equipment Acceptance (MEA) Division, that review and approve fireproofing materials. Under the New York City Building Code, a fireproofing material could not be used until it had been approved by the BSA or MEA. While the building in question was under construction after the City had passed a regulation banning the use of asbestos-containing fireproofing, fireproofing was installed in the building prior to the effective date of the regulation, and prior to approval of any non-asbestos-containing fireproofing material by the BSA or MEA. As such, at the time of the fireproofing installation, only asbestos-containing fireproofing could be used in NYC, non-asbestos formulations were not allowed.
Based on this finding, and review of the construction schedule for the building, it became apparent that the developer of the building was unwilling to delay the construction schedule to wait for the City to approve a non-asbestos-containing fireproofing, and instead elected to expedite completion of the project and use an asbestos-containing material.