Bill Text: PA HB698 | 2011-2012 | Regular Session | Introduced

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Bill Title: Establishing the Landslide Insurance and Assistance Program within the Department of Environmental Protection; providing for related powers and duties of the Pennsylvania Emergency Management Agency; establishing and providing for the powers and duties of the Landslide Insurance and Assistance Board; establishing the Landslide Insurance Fund and the Landslide Assistance Fund; and providing for loans from the Coal and Clay Mine Subsidence Insurance Fund.

Spectrum: Moderate Partisan Bill (Democrat 10-3)

Status: (Introduced - Dead) 2011-02-15 - Referred to INSURANCE [HB698 Detail]

Download: Pennsylvania-2011-HB698-Introduced.html

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PRINTER'S NO. 703
THE GENERAL ASSEMBLY OF PENNSYLVANIA
HOUSE BILL
No. 698 Session of2011
INTRODUCED BY DeLUCA, CALTAGIRONE, D. COSTA, GEORGE, KIRKLAND, KOTIK, MATZIE, MURT, MUSTIO, READSHAW, YOUNGBLOOD AND KORTZ, FEBRUARY 15, 2011
REFERRED TO COMMITTEE ON INSURANCE, FEBRUARY 15, 2011
AN ACT
Establishing the Landslide Insurance and Assistance Program
within the Department of Environmental Protection; providing
for related powers and duties of the Pennsylvania Emergency
Management Agency; establishing and providing for the powers
and duties of the Landslide Insurance and Assistance Board;
establishing the Landslide Insurance Fund and the Landslide
Assistance Fund; and providing for loans from the Coal and
Clay Mine Subsidence Insurance Fund.
TABLE OF CONTENTS
Chapter 1. Preliminary Provisions
Section 101. Short title.
Section 102. Declaration of policy.
Section 103. Definitions.
Chapter 3. Program Generally
Section 301. Program goals.
Section 302. Board.
Section 303. Appeals.
Section 304. Program generally.
Section 305. Program authority.
Section 306. Land use controls and rate structure.
Chapter 5. Landslide Insurance Fund
Section 501. Landslide Insurance Fund.
Section 502. Schedule of premiums.
Section 503. Surplus.
Section 504. Insurance program.
Section 505. Application for increase in insurance.
Section 506. Automatic inflation protection increase.
Section 507. Audit by Auditor General.
Section 508. Claims against insurance fund.
Section 509. Defenses against claims and procedure.
Section 510. Subrogation to rights of claimants.
section 511. Insurance companies may cover risk.
Section 512. Escrow of premium payments.
Section 513. Properties in violation of State or local law.
Chapter 7. Mitigation Assistance
Section 701. Mitigation assistance.
Section 702. Landslide Assistance Fund.
Section 703. Construction permits.
Chapter 9. Program Administration and Funding
Section 901. Regulations.
Section 902. Department report.
Section 903. Program funding.
Section 904. Reimbursement.
Section 905. Loans.
Section 906. Cost of administration.
Section 907. Commissions.
Chapter 21. Miscellaneous Provisions
Section 2101. Effective date.
The General Assembly of the Commonwealth of Pennsylvania
hereby enacts as follows:
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CHAPTER 1
PRELIMINARY PROVISIONS
Section 101. Short title.
This act shall be known and may be cited as the Landslide
Insurance and Assistance Program Act.
Section 102. Declaration of policy.
The General Assembly finds and declares as follows:
(1) Geologists have studied with increasing concern the
underground movement of the geological formations in this
Commonwealth and its impeding effects on the vertical and
horizontal natural and manmade surfaces.
(2) Landslides and slope movement have historically been
the norm throughout most parts of this Commonwealth.
(3) Landslides and slope movements occur without regard
for municipal boundaries, ordinances, planning codes,
politics and economies, making it difficult for local
officials to deal effectively with the development and
implementation of methods and standards to control the
devastation these natural forces can cause.
(4) Landslides and slope movement have caused an
enormous amount of damage to homes and roadways in this
Commonwealth, particularly the southwestern region of the
State.
(5) Landslides and slope movement will continue to
plague southwestern Pennsylvania.
(6) Landslides affect every state in the nation causing
an estimated $1,000,000,000 to $3,000,000,000 in damages a
year.
(7) Landslide damage caused by flooding is not covered
by the National Flood Insurance Program.
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(8) While landslide damage caused by mining practices is
covered by the Coal and Clay Mine Subsidence Insurance Fund
and mudslide damage is covered by the National Flood
Insurance Program, other types of landslide damage are
usually not covered by insurance.
(9) Problems associated with landslide damage are
becoming more widespread.
(10) It would be to the advantage of residents of the
landslide-prone areas of this Commonwealth to form a common
bond to combat distress resulting from landslides.
Section 103. Definitions.
The following words and phrases when used in this act shall
have the meanings given to them in this section unless the
context clearly indicates otherwise:
"Assistance fund." The Landslide Assistance Fund established
in section 702.
"Board." The Landslide Insurance and Assistance Board
established in section 302.
"Community." Either of the following:
(1) A political subdivision that has zoning and building
code jurisdiction over an area having landslide hazards.
(2) A political subdivision that is designated to
develop and administer a mitigation plan.
"Department." The Department of Environmental Protection of
the Commonwealth.
"Extremely hazardous area." An area where all of the
following factors that contribute to landslides occur in the
same location:
(1) Steep slopes.
(2) Soils prone to landslides.
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(3) Landslide features.
"Further review area." An area for which additional site-
specific review is needed based on a geological map or model
identifying the area as including a site prone to experience a
landslide.
"GIS." Geographic Information Systems.
"Hazardous area." An area where one of the following factors
that contribute to landslides occurs:
(1) Steep slopes.
(2) Soils prone to landslides.
(3) Landslide features.
"Insurance fund." The Landslide Insurance Fund established
in section 501.
"Landslide." Any detached mass of soil, rock, earth or
debris that moves down a slope and is of sufficient size to
cause damage. The term includes sinkholes.
"Landslide features." Includes, but is not limited to,
rockfall areas, creep, red beds and historic landslides.
"Mitigation." An activity relative to landslides that
prevents an emergency from occurring, reduces the likelihood of
an emergency occurring or lessens the damaging effects of
unavoidable emergencies.
"Mitigation plan." A plan designed by a community that when
implemented provides mitigation.
"Program." The Landslide Insurance and Assistance Program
established in section 304.
CHAPTER 3
PROGRAM GENERALLY
Section 301. Program goals.
The goals of the program are as follows:
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(1) To provide actuarially sound insurance coverage.
(2) To make program policies universally available and
competitively priced.
(3) To make use of the most effective scientific and
technological advances available, including technology such
as GIS.
(4) To process claims promptly, fairly and consistently.
(5) To provide tools and incentives for landslide loss
reduction, including the assistance fund.
(6) To collaborate with other organizations that operate
in the public interest to assist in achieving program goals.
Section 302. Board.
(a) Board established.--The Landslide Insurance and
Assistance Board is hereby established within the department.
(b) Members.--The board shall consist of the following
members:
(1) The Secretary of Community and Economic Development
or a designee.
(2) The Secretary of Conservation and Natural Resources
or a designee.
(3) The Secretary of Environmental Protection or a
designee.
(4) The Insurance Commissioner or a designee.
(5) The State Treasurer or a designee.
(c) Chairperson.--The secretary of the department or a
designee shall serve as the chairperson of the board.
(d) General counsel.--The Office of General Counsel shall,
ex officio, be the general counsel of the board and shall
appoint an attorney or attorneys as may be deemed necessary to
aid the board in its functioning.
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(e) Employees.--All employees of the board shall be employed
by and located in the department and shall be subject to the
administrative jurisdiction and authority of the department.
Section 303. Appeals.
Any party aggrieved by an action of the board shall have the
right to appeal in accordance with 2 Pa.C.S. (relating to
administrative law and procedure).
Section 304. Program generally.
(a) Establishment.--The Landslide Insurance and Assistance
Program is hereby established within the department.
(b) Program components.--The program shall consist of the
following components:
(1) A grant program.
(2) A revolving loan program.
(3) An insurance program.
(c) Purposes.--The grant program and the revolving loan
program are established for the primary purposes of mitigation
and repairing minor structural damage. The board shall employ
the grant program and the revolving loan program as tools to aid
in the success of the insurance fund.
Section 305. Program authority.
(a) Intergovernmental cooperation.--The program shall:
(1) Work closely with Federal, State and local agencies
and any other government agencies, including those of other
states, to accomplish program goals.
(2) Create and implement a Statewide landslide
mitigation plan that would encourage and support local
mitigation efforts.
(3) Investigate sites to define hazards.
(4) Recommend legislation, regulations, ordinances and
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zoning to mitigate slope instability contributed by
excavation and drainage.
(5) Work with local governments to evaluate risk
associated with certain homesite development.
(6) Share the most up-to-date geological surveys, in the
form of maps, GIS data or other useful form, and related
information, free of charge to government agencies and
appropriate representatives of communities, and at a
reasonable cost to all other persons. Receipts under this
paragraph shall be deposited in the assistance fund.
(7) Inform the Department of Transportation which
highways are at greatest risk from landslides.
(8) Notify local governments in areas with the greatest
risk from landslides.
(9) Have the authority to consult, receive information
and enter into any agreements or other arrangements in order
to identify and publish information with respect to all
landslide-prone areas, establish or update landslide-risk
zone data and make estimates with respect to the rates of
probable landslide-caused loss for the various landslide risk
zones for each of these areas.
(10) Publish any change to landslide insurance map
panels.
(11) Ensure that it is consistent in landslide control,
landslide forecasting and landslide damage prevention.
(b) Studies and investigations.--
(1) The program is authorized to carry out necessary
studies and investigations, utilizing to the maximum extent
practicable the existing facilities and services of other
Federal and Commonwealth departments or agencies, local
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governmental agencies and any other organizations, with
respect to the adequacy of State and local measures in
landslide-prone areas as to:
(i) Land management and use.
(ii) Landslide control.
(iii) Zoning.
(iv) Landslide damage prevention.
(2) The program may enter into any contracts, agreements
or other appropriate arrangements to carry out its authority
under this section. The studies and investigations shall
include, but not be limited to, the following:
(i) Laws.
(ii) Regulations.
(iii) Ordinances.
(iv) Zoning.
(v) Building codes.
(vi) Building permits.
(vii) Subdivision or other building restrictions.
(c) State and local measures.--On the basis of studies and
investigations under subsection (b) and other information as the
department deems necessary, the program shall develop
comprehensive criteria designed to encourage, where necessary,
the adoption of adequate State and local measures which, to the
maximum extent feasible, will:
(1) Constrict the development of land which is exposed
to landslide damage where appropriate.
(2) Guide the development of proposed construction away
from locations which are threatened by landslide hazards.
(3) Assist in reducing damage caused by landslides.
(4) Otherwise improve the long-range land management and
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use of landslide-prone areas.
(d) Technical assistance.--The program shall work closely
with and provide any necessary technical assistance to State and
local governmental agencies to encourage the application of the
criteria and the adoption and enforcement of the measures under
this section.
Section 306. Land-use controls and rate structure.
Local governments may initiate land-use controls for the
benefit of their residents. The following shall apply:
(1) No new landslide insurance coverage shall be
provided to new construction without preapproval by an
appropriate local public body, which shall have the option of
adopting adequate land use and control measures with
effective enforcement provisions.
(2) A community rating system shall be employed by the
board as an incentive for community landslide management.
(3) Rate structures shall provide incentives for
measures that reduce the risk of landslide damage and
evaluate the measures. The program shall provide incentives
in the form of credits on premium rates for landslide
insurance coverage in communities that the department
determines have adopted and enforced measures that reduce the
risk of landslide damage.
(4) The credits on premium rates for flood insurance
coverage shall be based on the estimated reduction in flood
and erosion damage risks resulting from the measures adopted
by the community under the program. If a community has
received mitigation or other assistance under the program,
the credits may be used in a manner determined by the
department to recover the amount of assistance provided for
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the community.
CHAPTER 5
LANDSLIDE INSURANCE FUND
Section 501. Landslide Insurance Fund.
(a) Establishment.--The Landslide Insurance Fund is
established as a separate fund in the Treasury Department. The
insurance fund shall be administered by the board for the
purpose of insuring subscribers against the damages to their
structures resulting from landslides if the damage is not
covered by other insurance programs or coverage.
(b) Administration.--The insurance fund shall be
administered by the board without liability on the part of the
Commonwealth beyond the amount of the fund except as provided
under this act and shall be applied to the payment of damage as
described under subsection (a).
(c) State Treasurer as custodian of insurance fund.--The
State Treasurer shall be the custodian of the insurance fund,
and all disbursements from the insurance fund shall be paid at
the request of the board. For making payments without audit, the
State Treasurer shall not be under any liability whatsoever. The
State Treasurer may deposit any portion of the insurance fund
not needed for immediate use as other State funds are lawfully
deposited. The interest shall be placed to the credit of the
insurance fund.
Section 502. Schedule of premiums.
At any time during each year the board shall prepare and
publish a schedule of premiums or rates of insurance for
subscribers. This schedule shall be printed and distributed free
of charge to any person upon application. Any subscriber may at
the subscriber's option pay to the insurance fund the amount of
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premium appropriate, and upon payment of the premium shall be
insured for the year for which the premium is paid. The
insurance shall cover all payments becoming due for which the
premium is paid. The premium shall be adequate to enable payment
of all sums which may become due and payable under this act, and
adequate reserve sufficient to carry all policies and claims to
maturity. In establishing the premiums payable by any
subscriber, the board may take into account the condition of the
premises of the subscriber in respect to the possibility of
landslide damage as shown by the report of any inspector
appointed by the board or by the department. The board may
change the amount of premiums payable by any of the subscribers
as circumstances may require and the condition of the premises
of the subscribers in respect to the possibility of a landslide
may justify. The board may increase the premiums of any
subscriber whose loss experience warrants a change. The
insurance of any subscriber shall not be effective until the
premium so fixed and determined has been paid in full.
Section 503. Surplus.
The board shall set aside 5% of all premiums collected for
the creation of a surplus until the surplus is sufficiently
large to cover catastrophic hazard of all the subscribers to the
insurance fund and to guarantee the solvency of the fund. At
such point, the board shall reevaluate the set-aside and
investment of the surplus and make a recommendation to the
General Assembly.
Section 504. Insurance program.
(a) General rule.--Any owner of a structure located within a
landslide-prone region who desires to become a subscriber to the
insurance fund for the purpose of insuring a structure in the
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region against damage from landslides shall make a complete
application as prescribed by the board to the board, its agents
or insurance producers. Upon receipt of an application, the
board shall make an investigation as may be necessary if the
application complies with the rules and regulations of the
board. Within 60 days after the request for an application is
received the board shall issue a certificate showing the
acceptance of the application and the amount of premium payable
by the applicant for one, two or three years as the board may
establish. No insurance shall become effective until the premium
has been paid. All premiums shall be made payable to the State
Treasurer whereupon a receipt shall be issued therefor. The
receipt for premium together with a certificate of the board
shall be evidence that the applicant has become a subscriber to
the insurance fund and is insured from the date of application.
The following apply:
(1) The insurance may be subject to later reductions,
and premiums adjusted accordingly, if the board determines
that the amount of insurance coverage requested is in excess
of the current replacement cost of the structure or the
maximum amount of coverage established by the fund, whichever
is less.
(2) The insurance shall be void if, upon investigation
of the structure, the board determines that either landslide
damage occurred before the application was submitted or the
applicant is responsible for not allowing the board to
inspect the structure within 60 days of receipt of the
application.
(3) The use of the most current science available to
identify landslide-prone areas shall be employed. If the
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property is located in a further review area within a
hazardous area, the property owner may be required to
complete a site assessment with a licensed professional,
which may include an onsite evaluation. The property owner
shall fund this assessment. This assessment may also be
required before a local government accepts an application for
a development permit.
(4) Notwithstanding any other provision of law, any
structure repaired or restored to its original condition with
moneys from the insurance fund shall not be eligible for
duplicative disaster relief assistance from programs
administered by the Pennsylvania Emergency Management Agency
or other Commonwealth agency.
(5) In order to assist insurance producers and potential
policyholders in identifying structures that could be at risk
from landslides, the board shall publish and update in the
Pennsylvania Bulletin a list of areas in this Commonwealth
that are believed to be at risk for landslide damage.
(b) Penalty.--A person who knowingly furnishes or makes any
false certificate, application or statement required under this
section commits a misdemeanor and shall, upon conviction, be
sentenced to pay a fine of not more than $1,500 or to
imprisonment for not more than one year, or both.
Section 505. Application for increase in insurance.
Additions in the amount of insurance are subject to the same
standards as initial applications.
Section 506. Automatic inflation protection increase.
The board shall make available to all subscribers an annual
inflation protection option on the anniversary date of each
policy issued only if the total insurance remains at or under
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the value of the structure itself. An inflation protection
increase shall not be subject to a reinspection of the
structure.
Section 507. Audit by Auditor General.
The Auditor General shall at least once each year make a
complete examination and audit of the insurance fund, including
all receipts and expenditures, cash on hand, investments and
property held representing cash or cash disbursements. For these
purposes the Auditor General is hereby authorized to employ
agents and staff as the Auditor General may deem necessary. The
expense incurred in making the examination and audit shall be
certified to the insurance fund by the Auditor General and shall
be paid from the program.
Section 508. Claims against insurance fund.
Any subscriber to the insurance fund must file with the board
a true statement of the subscriber's claim for any landslide
damage and shall give to the board an opportunity to investigate
and to determine whether the board will pay the claim.
Section 509. Defenses against claims and procedure.
In every case where a claim is made against the insurance
fund, the fund shall be entitled to every defense against the
claim under the policy and shall be subrogated to every right of
the subscriber arising out of such accidents against any third
persons. The insurance fund may, in the name of the fund, sue or
be sued to enforce any right given against or to any subscriber
or other persons under this act.
Section 510. Subrogation to rights of claimants.
Nothing in this act shall relieve any person, partnership or
corporation otherwise liable therefor from any liability for
damages sustained by a subscriber. The insurance fund shall be
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subrogated to the rights of any property owner's insurance under
this act.
Section 511. Insurance companies may cover risk.
Any insurance company may issue policies covering the type of
risk provided for under this chapter subject to the prior
approval of the Insurance Commissioner as to policy form and
rates.
Section 512. Escrow of premium payments.
Mortgage lenders shall escrow the landslide insurance premium
payments if they offer the purchase of the insurance.
Section 513. Properties in violation of State or local law.
No new landslide insurance coverage shall be provided for any
property which the department finds has been declared by a State
or local zoning authority, or other authorized public body, to
be in violation of State or local laws, regulations or
ordinances which are intended to discourage or otherwise
restrict land development or occupancy in landslide-prone areas.
CHAPTER 7
MITIGATION ASSISTANCE
Section 701. Mitigation assistance.
(a) Financial assistance generally.--The department shall
carry out a program to provide financial assistance to
communities and individuals for planning and carrying out
activities designed to reduce the risk of landslide damage to
structures covered under contracts for landslide insurance.
Financial assistance may be made available to communities and
individuals in the form of grants or revolving loans for the
carrying out of mitigation activities. Loans shall carry an
interest rate of no more than 3%.
(b) Grants.--The department may make grants under this
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section to communities to assist in developing mitigation plans.
(c) Eligibility.--To be eligible to receive financial
assistance, a community shall develop a mitigation plan that
describes the mitigation activities to be carried out with
assistance provided under this section. The mitigation plan must
be consistent with the criteria established by the department
and provide protection against landslide losses to structures
for which contracts for flood insurance are available under this
act. The mitigation plan shall be consistent with a
comprehensive strategy for mitigation activities for the area
affected by the mitigation plan that has been adopted by the
community following a public hearing.
(d) Procedure.--The department shall notify a community
submitting a mitigation plan of the approval or disapproval of
the plan not later than 120 days after submission of the plan.
If the department does not approve a mitigation plan submitted
under this section, the department shall notify in writing the
community submitting the plan of the reasons for the
disapproval.
(e) Limitation.--Amounts provided under this section may be
used only for mitigation activities specified in a mitigation
plan approved by the department. The department may approve only
mitigation plans that specify mitigation activities that are
technically feasible and cost effective and that are cost
beneficial under Chapter 5.
(f) Approval.--The department shall approve funding for
mitigation plans based on criteria that include:
(1) Criteria under subsection (e).
(2) Proposed activities to address repetitive loss
structures and structures that have incurred substantial
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damage.
(g) Matching funds.--The department may require a community
to match grant funds.
(h) Oversight.--The department shall conduct oversight of
recipients of mitigation assistance to ensure that the
assistance is used in compliance with the approved mitigation
plans of the recipients and that any matching fund requirements
are fulfilled.
(i) Failure to comply.--If the department determines that a
community that has received mitigation assistance has not
carried out the mitigation activities as set forth in the
mitigation plan or has not secured required matching funds, the
department shall recapture any unexpended amounts and redeposit
the amounts in the assistance fund.
Section 702. Landslide Assistance Fund.
The Landslide Assistance Fund is hereby established as a
restricted account in the Treasury Department. The assistance
fund shall be administered by the department and shall be
comprised of moneys provided to it for purposes of this chapter.
Section 703. Construction permits.
No Commonwealth agency shall approve any financial assistance
for the acquisition of land for construction purposes in any
area that has been identified by the department as an extremely
hazardous zone without approval to proceed by the department
based on the results of a risk assessment.
CHAPTER 9
PROGRAM ADMINISTRATION AND FUNDING
Section 901. Regulations.
The department, in conjunction with the board, may promulgate
rules and regulations and establish other conditions of the
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policies as it deems just and expedient in keeping with the
fulfillment of the purposes of this act, including reasonable
classification of risks eligible for coverage under this act,
limits of coverage and rules covering the adjustment and
settlement of claims.
Section 902. Department report.
The department shall make an annual report on the program and
on experience with landslide insurance sales through producers
to the General Assembly. Each report shall include mitigation
efforts, an analysis of the cost-effectiveness of the program,
accomplishments or shortcomings of the program and
recommendations for legislation regarding the program.
Section 903. Program funding.
The program shall be funded by loans under section 905 until
the insurance fund and assistance fund are deemed self-
sufficient by the General Assembly, but not more than ten years
from the effective date of this act.
Section 904. Reimbursement.
The program shall reimburse any Commonwealth departments for
agreed-upon costs of services that aid in administering the
program.
Section 905. Loans.
(a) Insurance fund.--The Coal and Clay Mine Subsidence
Insurance Fund shall lend the sum of $2,500,000, or as much
thereof as may be necessary, to the Landslide Insurance Fund for
the fiscal year July 1, 2012, through June 30, 2013.
(b) Assistance fund.--The Coal and Clay Mine Subsidence
Insurance Fund shall lend the sum of $2,500,000, or as much
thereof as may be necessary, to the Landslide Assistance Fund
for the fiscal year July 1, 2012, through June 30, 2013.
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(c) Department.--Moneys in the Landslide Insurance Fund and
the Landslide Assistance Fund are hereby appropriated to the
department in such amounts as may be determined annually by the
Governor to be used for the specified purposes of this act.
Section 906. Cost of administration.
The board shall keep an accurate account of the money paid in
premiums by the subscribers and the disbursements on account of
damages to premises. If, at the expiration of any year there
shall be a balance remaining after deducting the disbursements,
the unearned premiums on undetermined risks and the percentage
of premiums paid or payable to create or maintain the surplus
provided under this act, and after setting aside an adequate
reserve, the board may determine to allocate to the cost of
administering the insurance fund.
Section 907. Commissions.
Moneys from the insurance fund shall be available to pay a
one-time commission as determined by the board to insurance
producers who forward applications for landslide insurance to
the board if a policy is issued pursuant to an application
submitted by an insurance producer. The amount of the commission
shall be determined by the board on an annual basis.
CHAPTER 21
MISCELLANEOUS PROVISIONS
Section 2101. Effective date.
This act shall take effect July 1, 2011, or immediately,
whichever is later.
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