46:3B-15. Procedure followed by commissioner when claim filed

3. a. Whenever a claim which appears or purports to be eligible for advance funding pursuant to this act is filed with the commissioner, the commissioner shall:

(1) Order an examination of the subject premises to determine whether the damage claimed is ascribable to the FRT plywood or the FRT treatment applied to it, resulting or materially contributing to the creation of a major construction defect, and, if it is so determined, shall declare the claim eligible for such advance funding; and

(2) Require the claimant to propose an appropriate method of remediation, which method and the estimated cost thereof shall be within the guidelines set pursuant to subsection b. of this section.

b. The commissioner shall adopt and promulgate, in accordance with the provisions of the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.):

(1) Standards, procedures and technical criteria for making an examination and determination pursuant to paragraph (1) of subsection a. of this section; and

(2) Guidelines for determining permissible and appropriate methods of remediation, for estimating the costs thereof, and for approving proposed methods for application in particular cases as required pursuant to paragraph (2) of subsection a. of this section.

In carrying out the provisions of paragraph (1) of this subsection the commissioner shall cause to be developed a method of nondestructive testing or other procedure capable of ascertaining inevitable premature failure of an FRT plywood installation. As used in this section "inevitable premature failure" means a condition in which deterioration of the FRT plywood, ascribable to a defect: in any of the materials or techniques used in its manufacture, in its fire retardant treatment, or due to other actions or omissions by responsible parties; and which is ascertainable within the ten-year warranty period and can be accurately predicted in accordance with the commissioner's testing procedure to make replacement of the material necessary within the ten-year warranty period. Inevitable premature failure shall be deemed to constitute a major construction defect as of the time of its detection.

A person aggrieved by any ruling, action, order or notice of the commissioner denying an FRT plywood claim, in whole or in part, filed pursuant to section 2 of this act, shall be entitled to an administrative hearing. The application for the hearing shall be filed with the commissioner by the 15th day after receipt by the person of the notice of the ruling, action, order or notice. The only issues that may be raised in the administrative hearing are whether the test or other method used by the commissioner to determine if the subjected premises were damaged in accordance with the requirements of paragraph (1) of this subsection was administered properly, or whether the proposed method of remediation was within the guidelines set pursuant to paragraph (2) of this subsection. The aggrieved person shall have the burden to demonstrate that the test or other method was administered improperly or that the proposed method of remediation was within the guidelines.

c. When a claim has been filed with the commissioner pursuant to this section and has been accepted for filing pursuant to section 6 of this act, if the commissioner (1) determines that a major construction defect ascribable to FRT plywood or FRT treatment exists in accordance with subsection b. of this section and (2) approves a proposed method of remediation, then the commissioner shall approve the claim for advance funding and authorize disbursement of money from the fund, except as prohibited or limited by section 6 of this act. Disbursement shall be prohibited until the presentation and verification of invoices for work and materials actually provided and installed in accordance with the approved method.

d. Disbursements of advance funding shall be the actual cost of the work and materials as shown by verified invoices.

L.1991,c.202,s.3.