New York State Vermiculite Regulations: Decision Time for Building Owners


The New York State Department of Health (NYS DOH) has officially certified method LAB.055.1* for the analysis of spray-on fireproofing that contains vermiculite (SOF-V). RJ Lee Group developed LAB.055.1 and is the only laboratory accredited to perform this test.

History: In June 2012, the (NYS DOH) provided guidance that the current methods for analyzing vermiculite-containing fireproofing materials may not reliably detect the presence of asbestos. Soon after, they provided interim guidance that even reports using testing methods approved by NYS DOH had to include a disclaimer on the results. Unfortunately, the practical effect of this disclaimer nullifies any certification that the material does not contain asbestos–providing building owners and other responsible parties little protection other than knowing they are using the “best available” methods. Even after that interim guidance, building owners have been in transition, facing the difficult and expensive choice between abating buildings that don’t need it, moving forward with projects using asbestos tests that satisfy current regulatory requirements (but may not protect them from exposure to future lawsuits), or delaying projects at significant cost while they wait for a state-approved method.

On July 22, 2014, the NYS DOH provided a path forward by announcing new regulatory guidance. The guidance states that new test methods must be used to identify and quantify asbestos in spray-on fireproofing that contains vermiculite (SOF-V). One of these methods, LAB.055.1*, was developed by RJ Lee Group, which is the only laboratory accredited for this test. The advantage of LAB.055.1 is that it dissolves vermiculite to make accurate asbestos quantification possible, even at low concentrations. The development of LAB.055.1, as well as the NYS DOH’s review and acceptance of this new method, represents a best-case collaborative effort to protect public health and advance the state of scientific capability. Building owners now have the opportunity to both demonstrate regulatory compliance and have scientifically defensible certification that non-abated properties do not contain more than 1% asbestos. While the NYS DOH has given all involved parties until October 31, 2014 to begin compliance with the regulation, previously used methods can no longer be considered “best available” now that new methods have been announced and there is an accredited commercial laboratory providing SOF-V analysis services.

Decision Time: Now building owners and other responsible parties will have to evaluate the impact of the new regulations, particularly in the context of long-term liability and perhaps even insurance coverage. There are also questions surrounding whether these regulatory changes may open the door to litigation for older projects during which abatement was not performed based on the results of previous test methods. The latest guidelines also define when re-sampling must be done, even if testing was completed previously using the old methods. For example, retesting after October 31,2014 appears to be required for any projects where testing with old methods was performed, but where work has not exceeded the specified completion stage as of November 1st.

Laboratories holding NY-ELAP accreditation (Environmental Laboratory Approval Program) will be precluded from performing the previous methods on SOF-V after October 31, 2014, since LAB.055.1 has been proven superior to previous methods.

While the latest guidance by the NYS DOH has established a path forward for building owners and other responsible parties, there are still many decisions to be made between now and November. The end result of this regulation change, however, provides a much needed solution to an issue that has long-confronted building owners in New York State.

*LAB.055.1 is Patent Pending #13/918,071

**Nothing in this blog post should be construed as offering legal advice.

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