On June 27, 2022, EPA Region 2 issued an Administrative Compliance Order to The Cliff Corp. and Grupo Caribe, LLC, to stop discharges of stormwater and runoff coming from their hotel and country club construction project in Aguadilla, Puerto Rico, from flowing into the Atlantic Ocean.

Upon investigation of the site, the EPA found inadequate erosion and sediment controls and stabilization measures. The Agency concluded that the developers began work at the site and discharged pollutants into the Atlantic Ocean without the required Clean Water Act (CWA) permit authorization.

The Agency also recently ordered the Kanaan Corp. to comply with critical CWA permitting and pollution reduction measures in order to address discharges of stormwater from a 19-acre site in Aguadilla where Kanaan is building a commercial center.

This investigation found Kanaan lacked the proper CWA permits for discharges of stormwater from a site associated with the construction of the proposed shopping mall. Kanaan had been discharging polluted stormwater from the site into a sewer system owned and operated by the Puerto Rico Department of Transportation and Public Works, which is connected to a creek that flows to the Culebrinas River and ultimately into the Atlantic Ocean.

It’s the latest in a series of enforcement actions on the island to stop construction site stormwater violations.

Regulated construction activities

When it rains, as stormwater washes over the loose soil on a construction site, it can pick up pollutants like sediment, debris, and chemicals and transport the loose, polluted soil to nearby storm sewer systems or directly into rivers, lakes, or coastal waters. The EPA works with construction site operators to make sure they have the proper stormwater controls in place so construction can proceed in a way that protects clean water and the surrounding environment.

Controlling pollution from stormwater runoff at construction sites is part of the CWA’s National Pollutant Discharge Elimination System (NPDES) program.   Individual states often have authority for one or more of the NPDES program components, but the EPA retains NPDES authority for construction activities in Massachusetts, New Hampshire, New Mexico, and the District of Columbia, as well as various territories, including Puerto Rico. See the EPA NPDES State Program Authority website for more information on individual state NPDES information.

A CWA NPDES permit is required for stormwater discharges from any construction activity disturbing:

• 1 acre or more of land
• Less than 1 acre of land but that is part of a common plan of development or sale that will ultimately disturb 1 or more acres of land

Construction activity includes earth-disturbing activities such as clearing, grading, and excavating land and other construction-related activities that could generate pollutants.

Federal C&D Rule

All NPDES permits for construction stormwater must address the minimum federal effluent limitation guidelines for the construction and development point source category (C&D Rule).

The C&D Rule lays out minimum NPDES effluent limitations, including:

• Design, install, and maintain effective erosion and sediment controls and pollution prevention measures to minimize the discharge of pollutants.
• Stabilize disturbed areas immediately when construction has ceased and will not resume for more than 14 days.
• Prohibit dewatering discharges unless managed by appropriate controls.
• Prohibit the discharge of:
• Wastewater from concrete washout (unless managed by appropriate control) or washout/cleanout of stucco, paint, form release oils, and other wastewater materials;
• Fuels, oils, or other pollutants used for vehicles; and
• Soaps or solvents to wash vehicles and equipment.

2022 Construction General Permit (CGP)

In jurisdictions where the EPA is the NPDES permitting authority, authorized stormwater discharges from construction activities are subject to the 2022 CGP.   In many instances, states with NPDES program authority adopt the CGP.

Key requirements of the 2022 CGP include:

• Develop a stormwater pollution prevention plan (SWPPP), and keep it up to date.
• Complete and submit a Notice of Intent (NOI) to the EPA via the NPDES eReporting Tool (NeT).
• Implement erosion and sediment controls and pollution prevention practices throughout the entire construction project.
• Conduct required inspections to verify compliance with the permit. Inspections may only be conducted by a qualified person who either (1) completed the EPA construction inspection course and passed the exam or (2) holds a current construction inspection certification or license from a program that covers the same core material as the EPA’s inspection course.
• Conduct routine maintenance, and take corrective action to fix problems with controls or discharges.
• Complete documentation of all site inspections, dewatering inspections, and corrective actions.
• Comply with turbidity monitoring requirements for dewatering discharges to sensitive waters (if applicable).
• Comply with any state-, tribal-, or territory-specific requirements in Part 9 of the permit.

Puerto Rico construction company enforcement consequences

The EPA required the Cliff Corp. and Grupo Caribe, LLC, to submit an action plan within 30 days of the receipt of the order and take steps to come into compliance and properly control discharges from the site. The companies are also ordered to provide monthly reports to the EPA describing the status and progress of the actions taken to comply with the provisions of the order.

The Agency ordered Kanaan to develop a plan to fully implement erosion and sediment controls for the site in Aguadilla and apply for a new permit under the CWA’s NPDES. The order also requires the company to stabilize certain areas at the site and control the spread of dust.