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Recent Developments in Flak Jacket Protection Issues

Developers and builders who build homes with structural joists manufactured by the Weyerhaeuser Company need be aware of certain issues with Weyerhaeuser’s TJI® Joists with Flak Jacket® Protection.  Weyerhaeuser has recently announced that due to a recent formula change, the Flak Jacket coating is defective and emits, or “off-gases”, formaldehyde, a chemical that is hazardous at certain levels.  The issue, Weyerhaeuser stated, was isolated to Flak Jacket products manufactured after December 1, 2016.

These joists have been installed in homes across the country.  According to the New Jersey Department of Community Affairs (“DCA”), Weyerhaeuser has indicated that there are 320 homes in New Jersey that are affected; all are in various stages of construction.  Anectodal evidence suggests there may be more.

Weyerhaeuser has developed and advised of three Flak Jacket remediation methods:  replacing the TJI joists entirely; applying a top coating to prevent the formaldehyde emissions; or mechanical removal of the Flak Jacket protection.  Weyerhaeuser has distributed written protocols for each option.

The DCA has provided comments on these remediation methods, which should be carefully considered, but has also made it clear that the building community should not expect the DCA to address issues other than fire resistance code compliance.  The DCA’s comments on Weyerhauser’s remediation options can be summarized as follows:

Replacement:

If a builder decides to replace the TJI joists with a similar product, the DCA recommends obtaining a letter from the architect stating that the substitution is acceptable and an inspection to ensure that the new components are properly installed.  Likewise, if the builder replaces the TJI Joists with a different product, it is to be expected that revised drawings will be required by the municipal officials, as well as an inspection to ensure proper installation.

Top Coating Solution:

If this method is chosen, the DCA advises that additional measures are required to ensure the home continues to meet the applicable fire protection requirements.  There is no applicable International Code Council Evaluation Services report that documents the impact of the top coat method on the fire resistance of the Flak Jacket-treated TJI Joists.  As such, once a fire-resistance measure is chosen, the DCA recommends revised drawings and an inspection to verify fire protection code compliance.

Coating Removal:

When this method is employed, the DCA advises additional measures to ensure compliance with the fire protections requirements of the IRC.  Again, builders must expect an inspection and revised drawings to ensure code compliance.

Beyond heeding the DCA’s advice regarding code compliance, Weyerhaeuser’s announcement raises multiple important questions and concerns for builders and developers.  These include:

1)         How should builders deal with home buyers, including those under contract, those who have already purchased and future buyers.  For instance, how can buyers be assured that the formaldehyde emitted has been reduced to acceptable levels?  The DCA has advised that it has no plans to address what is the applicable formaldehyde standard. What disclosures should be made and when?

2)         What risks exist as to each TJI joist remediation option.

3)         What process or strategy can a builder employ to recoup the costs of replacing the joists and/or remediating the homes, as well as other expenses, from Weyerhaeuser.

Christopher J. Marino and Timothy J. Dehaut also contributed to this article.

© 2021 Giordano, Halleran & Ciesla, P.C. All Rights Reserved National Law Review, Volume VII, Number 270
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About this Author

Michael J. Canning, Giordano Law Firm, Litigation Professional Liability Insurance Law
Shareholder

Mr. Canning, co-chair of the Litigation Practice Area, has been certified by the New Jersey Supreme Court as a civil trial attorney. He devotes his practice primarily to commercial litigation with emphasis in the following areas: professional malpractice, general civil and commercial litigation; insurance litigation; contract and corporate litigation. Mr. Canning litigates and tries contested civil cases in state and federal courts including the Third Circuit Court of Appeals and U.S. District Court.

Mr. Canning represents policyholders seeking declaratory judgments for insurance...

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Paul H. Schneider, Giordano Law Firm, Litigation Attorney
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Paul, Chair of the Environmental & Land Use Litigation Practice Area, focuses his practice in environmental, redevelopment, land use, regulatory, real estate and affordable housing law, and litigation. He also handles a wide variety of redevelopment matters as well as corporate and commercial litigation. In addition to handling major litigation before both the state and federal courts and the Office of Administrative Law, he has extensive experience before the New Jersey Supreme Court and the Appellate Division.

Paul represents real estate...

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James M. Andrews, Giordano Law Firm, Corporate litigator,Litigation Matrimonial & Family Law,Insurance Law,Corporate Commercial Litigation, Employment Litigation, Patent Litigation, Product Liability Defense, Matrimonial
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Jim Andrews focuses his practice in the areas of corporate/commercial litigation, environmental law, matrimonial law and product liability defense. He has tried over seventy significant corporate/commercial cases to conclusion in both federal and state courts and has been recognized for his work in legal malpractice cases and attorney ethics. An accomplished litigator, Mr. Andrews has appeared before the New Jersey Supreme Court on three occasions, and the U.S. Court of Appeals for the First, Second and Third Circuits on three occasions. Jim has received the highest...

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Catherine J. Bick, Giordano Law Firm, Business Litigation, Litigation Construction Law & Litigation Insurance Law Community Association Law
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Cathy devotes her practice to commercial and business litigation matters. She represents individuals and entities in the business community on all manners of disputes and stages of litigation, as well as in alternative dispute resolution including mediation and arbitration. Cathy counsels and represents clients involved in contract and corporate disputes, business tort claims, insurance disputes and other general business matters.

Cathy has specific experience representing and counseling developers, contractors and other members of the construction and real estate communities in...

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Sean E. Regan Shareholder Giordano Law Firm, Commercial Litigation Attorney
Shareholder

Sean focuses his practice on commercial litigation and general litigation. He is primarily involved in real estate, construction and corporate disputes.

With regard to real estate, Sean handles all varieties of matters involving construction, liens, real estate development, commercial leasing, municipal land use and zoning disputes. Sean litigates and counsels clients in connection with public contracting and public contract disputes. Sean also provides construction contracting services and subcontractor program reviews, and contract reviews for compliance with New Jersey public...

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