LEGAL RAMIFICATIONS OF THE WINDSTAR DISASTER

LEGAL RAMIFICATIONS OF THE WINDSTAR DISASTER

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The rule of law, in its most basic form, is the principle that no one is above the law. The rule follows logically from the idea that truth, and therefore law, is based upon fundamental principles which can be discovered, but which cannot be created through an act of will.

CITY OF FRANKLIN LAWS
(so far, not applied to Windstar):

Chapter 13.20 CONSTRUCTION SITE AND POST-CONSTRUCTION SITE STORM WATER CONTROL

13.20.010 Purpose/intent.
A. Site Construction Control. The purpose of this chapter is to establish requirements for storm water discharges from construction activities of one acre or more so that the public health, existing water uses, and aquatic biota are protected. This chapter establishes methods for controlling the introduction of pollutants into the municipal separate storm sewer system (MS4) in order to comply with requirements of the National Pollutant Discharge Elimination System (NPDES) permit process. The objectives of this chapter are:
1. To regulate construction activities disturbing more than one acre of land as governed by 327 IAC 15-5;
2. To require construction site operators to develop and implement a construction plan including a storm water pollution prevention plan in order to receive a land disturbance permit from the city.
B. Post-Construction Control. The purpose of this chapter is to implement planning procedures that promote and improve water quality. The planning procedures will include, at a minimum, the post-construction requirements of 327 IAC 5-5-6.5(a)(8). The city may require the use of any storage, infiltration, filtering, and/or vegetative practices to reduce the impact of pollutants on storm water runoff. Where appropriate, and to the extent of the MS4 operator’s authority, the planning procedures may also include the following:
1. Buffer strip and riparian zone preservation;
2. Filter strip creation;
3. Minimization of land disturbance and surface imperviousness;
4. Minimization of directly connected impervious areas;
5. Maximization of open space;
6. Directing the community’s growth away from sensitive areas and towards areas that can support growth without compromising water quality. (Ord. 06-16 § 1)

13.20.130 Enforcement.
Enforcement of this chapter shall be subject to the severity of the infraction and the construction site operator’s efforts to comply. The city shall reserve the right to interpret enforcement on a case by case basis. Tiered enforcement will be practiced at the mayor’s discretion. The tiered enforcement may include:
A. Verbal warning to the construction site operator to make corrections;
B. Written warning to the construction site operator to make corrections within a specified period of time. The period of time shall take into account issues such as the severity of the problem, pending weather, seasonal conditions, and the level of effort necessary to correct the problem;
C. Warning of noncompliance with directions to the construction site operator that site conditions require immediate action;
D. Stop Work Order. If abatement of a violation and/or restoration of affected property is required, the notice shall set forth a deadline within which such remediation or restoration must be completed. Said notice shall further advise that, should the violator fail to remediate or restore within the established deadline, the work will be done by a designated governmental agency or a contractor and the expense thereof shall be charged to the violator. (Ord. 06-16 § 13)

13.20.140 Injunctive relief.
It is unlawful for any person to violate any provision or fail to comply with any of the requirements of this chapter. If a person has violated or continues to violate the provisions of this chapter, the authorized enforcement agency may petition any court of competent jurisdiction for a preliminary or permanent injunction restraining the person from activities which would create further violations. Such enforcement may also include compelling the person to perform abatement or remediation of the violation. Costs, including attorney fees, for injunctive relief may be assessed against the violator. (Ord. 06-16 § 14)

13.20.150 Compensatory action.
In lieu of enforcement proceedings, penalties, and remedies authorized by this chapter, the authorized enforcement agency may impose upon a violator alternative compensatory action, such as storm drain stenciling, attendance at compliance workshops, creek cleanup, etc. (Ord. 06-16 § 15)

13.20.160 Civil penalty.
Any person that has violated or continues to violate this chapter shall be liable to civil penalties to the fullest extent of the law, and shall be subject to a fine of up to two thousand five hundred dollars ($2,500.00) per violation per day.
The authorized enforcement agency may recover all attorney’s fees, court costs, consultant costs and other expenses associated with enforcement of this chapter, including sampling and monitoring expenses. (Ord. 06-16 § 16)

13.20.170 Violations deemed a public nuisance.
In addition to the enforcement processes and penalties provided, any condition caused or permitted to exist in violation of any of the provisions of this chapter is a threat to public health, safety, and welfare, and is declared and deemed a nuisance, and may be summarily abated or restored at the violator’s expense, and/or a civil action to abate, enjoin, or otherwise compel the cessation of such nuisance may be taken. Costs, including attorney fees, for injunctive relief may be assessed against the violator. (Ord. 06-16 § 17)

13.20.180 Remedies not exclusive.
The remedies listed in this chapter are not exclusive of any other remedies available under any applicable federal, state or local law and it is within the discretion of the authorized enforcement agency to seek cumulative remedies. (Ord. 06-16 § 18)

2.1 Administration & Enforcement

A. Administrative Officer: The administrator of this Ordinance shall be the City of Franklin Planning Director (including any designee(s) of the Planning Director).
1. Enforcement Authority: The Planning Director is hereby authorized and directed to enforce and carry out all provisions of this Ordinance both in letter and spirit, pursuant to state statute.
2. Delegation Authority: The Planning Director is hereby empowered to delegate the duties and the powers granted to, and imposed upon, him/her under this Ordinance. As used in this Ordinance,
“Planning Director” shall include any authorized representative(s).

C. Enforcement: The enforcement of this Ordinance shall be consistent
with the following provisions:
1. Investigation of Suspected Violations: Suspected violations of the provisions of this Ordinance shall be investigated by the Planning Director consistent with the Enforcement and Penalties provisions of the Franklin Zoning Ordinance.

From the Franklin Subdivision Control Ordinance which was in effect at the time that Thomas & Thomas Developers applied for approval for the Windstar subdivision.

Letter from Franklin Planning Director David Weir to Thomas & Thomas Developers, 1996. See condition #2. What about the trees, Dave? Weir now works for the City of Las Cruces, New Mexico. We hope there are no forests there.

FEDERAL LAWS:
http://cfpub.epa.gov/npdes/home.cfm?program_id=6
National Pollutant Discharge Elimination System (NPDES)

STATE OF INDIANA LAWS:

http://www.in.gov/idem/4896.htm
Storm Water Permitting

Storm water runoff is a natural part of the hydrological cycle. The hydrologic cycle is the distribution and movement of water between the earth's atmosphere, land, and water bodies. Storm water runoff includes rainfall, snowmelt, and other forms of precipitation that falls to the earth's surface. When precipitation reaches the earth's surface it can either infiltrate into the natural landscape or runoff. Infiltration and runoff is heavily influenced by land use. Typically, runoff will be less from a forested landscape than that from an urbanized landscape.

Physical, chemical, and biological characteristics of a watershed are generally altered as land disturbance occurs on active construction sites and for post-construction runoff conditions. Urban storm water runoff quantity and quality are significantly affected as the watershed undergoes development. The hydrology of the land is altered and the generation of pollutants that are unique to the land use become a threat to water quality. Land that is developed undergoes a significant change when impervious surfaces replace natural landscapes. The impact of impervious surfaces typically results in increased runoff volumes and pollutant loading.

According to a United States Environmental Protection Agency (EPA) fact sheet on storm water, “When it rains or snows, the water that runs off of city streets, parking lots, and construction sites can wash sediment, oil, grease, toxics, pathogens, and other pollutants into nearby storm drains. Once this pollution has entered the sewer system, it is discharged-(usually)untreated-into local streams and waterways. Known as storm water runoff, this pollution is a leading threat to public health and the environment today.” Phase I, promulgated by U.S. EPA in November 1990, set up the initial, basic storm water program for states to adopt in the early 1990s. However, new regulations, known on the federal level as storm water Phase II, have now been established in Indiana to reduce the impacts of storm water runoff from certain construction site, industrial facility, municipal, governmental, and institutional sources. The following descriptions and links will describe these new regulations.

The emphasis of Indiana Department of Environmental Management (IDEM) storm water permits is water quality. Water quantity, while an integral part of storm water, is typically regulated through ordinances developed and implemented by local governmental entities. Following are three storm water permitting programs that are administered by IDEM and related information associated with urbanization and land development.
Storm Water Permitting

* Construction/Land Disturbance Storm Water Permitting (327 IAC 15-5, Rule 5)
o IDEM administers a General Permit program that targets construction activities that result in land disturbance of one acre or more. These permits are applicable to a variety of projects including, but not limited, to residential, commercial, institutional, industrial, public, and specials land uses.
o 327 IAC 15-5 is a performance-based regulation designed to reduce pollutants, principally sediment, that are a result of soil erosion and other activities associated with construction and/or land disturbing activities.

http://www.in.gov/idem/4902.htm
Construction/Land Disturbance Storm Water Permitting (327 IAC 15-5, Rule 5)

327 IAC 15-5 [PDF] (Scroll to bottom of page 10 to access the Rule) is a performance-based regulation designed to reduce pollutants that are associated with construction and/or land disturbing activities.

The requirements of Rule 5 now apply to all persons who are involved in construction activity (which includes clearing, grading, excavation and other land disturbing activities) that results in the disturbance of one (1) acre or more of total land area. If the land disturbing activity results in the disturbance of less than one (1) acre of total land area, but is part of a larger common plan of development or sale, the project is still subject to storm water permitting.

In Indiana most construction projects subject to Rule 5 are administered through a general permit. A general permit is a permit by rule, and as such it is not "issued" in the same manner as an individual NPDES permit would be issued. Rather, Rule 5 was "conditionally issued" to all future "project site owners" at the time that the rule was adopted by the Indiana Water Pollution Control Board. The permit conditions within Rule 5 apply universally to all "project site owners" who are eligible to operate under the rule.

Therefore the application for a Rule 5 general permit is called a Notice of Intent, or NOI, because the "applicant" or "project site owner" is essentially notifying IDEM of his or her intent to operate their proposed construction project in a manner consistent with the Rule. The applicant follows all guidelines and requirements for submittal of the general permit, which includes the submittal of a Construction Plan and a Notice of Intent. The Notice of Intent must include the fee, notice of publication, and verification from the review authority that the plans meet the requirements of the Rule.

Project Site Owner is any developer or other person(s) who has financial and operational control over construction activities and project plans at a construction site, including the ability to modify those plans.

If an adverse environmental impact from a project site is evident, a Rule 5 permit or, in more significant situations, an individual storm water permit may be required. An individual storm water permit is typically required only if IDEM determines the discharge will significantly lower water quality. If an individual storm water permit is required, notice will be given to the project site owner. The Individual Storm Water Permit has its own set of application requirements.

http://www.in.gov/idem/5422.htm
Storm Water Program Contacts

Indiana Department of Environmental Management - Watershed Planning Branch
Wetlands and Storm Water Section - Storm Water Quality Program
100 North Senate Avenue
MC 65-42, Room 1255
Indianapolis, Indiana 46204

Toll Free Number: 1-800-451-6027
Storm Water – Construction/Land Disturbance

ARTICLE 15. NPDES GENERAL PERMIT RULE PROGRAM
Rule 1. General Provisions
327 IAC 15-1-1 Purpose
Authority: IC 13-1-3-4; IC 13-1-3-7; IC 13-7-7; IC 13-7-10-1
Affected: IC 13-1-3; IC 13-7
Sec. 1. The purpose of this article is to establish NPDES general permit rules for certain classes or categories of point source discharges by prescribing the policies, procedures, and technical criteria to operate and discharge under the requirements of a NPDES general permit rule...

327 IAC 15-1-4 Enforcement
Authority: IC 13-1-3-4; IC 13-1-3-7; IC 13-7-7; IC 13-7-10-1
Affected: IC 13-1-3; IC 13-7
Sec. 4. This article shall be enforced through the provisions of IC 13-7-10-5, IC 13-7-11, or IC 13-7-12, or any combination thereof, as appropriate. Penalties for violation of this article shall be governed by IC 13-7-13. (Water Pollution Control Board; 327 IAC 15-1-4; filed Aug 31, 1992, 5:00 p.m.: 16 IR 16; readopted filed Jan 10, 2001, 3:23 p.m.: 24 IR 1518; readopted filed Nov 21, 2007, 1:16 p.m.: 20071219-IR-327070553BFA)

327 IAC 15-2-5 Notice of intent letter
Authority: IC 13-1-3-4; IC 13-1-3-7; IC 13-7-7; IC 13-7-10-1
Affected: IC 13-1-3; IC 13-7
Sec. 5. (a) Any person subject to the requirements of this article shall submit a NOI letter that complies with this section, 327 IAC 15-3, and the additional requirements in any applicable general permit rule.
(b) A NOI letter shall be submitted to the commissioner by the time specified under 327 IAC 15-3 or the time indicated in the applicable general permit rule.
(c) The person responsible for the operation of the facility from which a point source discharge of pollutants and/or storm water occurs must submit a NOI letter. (Water Pollution Control Board; 327 IAC 15-2-5; filed Aug 31, 1992, 5:00 p.m.: 16 IR 17)

BELOW: Thomas & Thomas Developers' technical review, performed by the Johnson County Soil & Water Conservation District in 2006, just before the trees started coming down. 3 pages.

BELOW: Site inspection report produced after complaints to IDEM. 2 pages. Thomas & Thomas Developers had ignored pretty much all of it as of July, at least.