C.F.R. » Title 40 » CHAPTER I—ENVIRONMENTAL PROTECTION AGENCY › SUBCHAPTER D—WATER PROGRAMS › PART 122—EPA ADMINISTERED PERMIT PROGRAMS: THE NATIONAL POLLUTANT DISCHARGE ELIMINATION SYSTEM › Subpart A—Definitions and General Program Requirements

40 C.F.R. § 122.6

Continuation of expiring permits

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(a) EPA permits. When EPA is the permit-issuing authority, the conditions of an expired permit continue in force under 5 U.S.C. 558(c) until the effective date of a new permit (see § 124.15) if:

(1) The permittee has submitted a timely application under § 122.21 which is a complete (under § 122.21(e)) application for a new permit; and

(2) The Regional Administrator, through no fault of the permittee does not issue a new permit with an effective date under § 124.15 on or before the expiration date of the previous permit (for example, when issuance is impracticable due to time or resource constraints).

(b) Effect. Permits continued under this section remain fully effective and enforceable.

(c) Enforcement. When the permittee is not in compliance with the conditions of the expiring or expired permit the Regional Administrator may choose to do any or all of the following:

(1) Initiate enforcement action based upon the permit which has been continued;

(2) Issue a notice of intent to deny the new permit under § 124.6. If the permit is denied, the owner or operator would then be required to cease the activities authorized by the continued permit or be subject to enforcement action for operating without a permit;

(3) Issue a new permit under part 124 with appropriate conditions; or

(4) Take other actions authorized by these regulations.

(d) State continuation. (1) An EPA-issued permit does not continue in force beyond its expiration date under Federal law if at that time a State is the permitting authority. States authorized to administer the NPDES program may continue either EPA or State-issued permits until the effective date of the new permits, if State law allows. Otherwise, the facility or activity is operating without a permit from the time of expiration of the old permit to the effective date of the State-issued new permit.

[48 FR 14153, Apr. 1, 1983, as amended at 50 FR 6940, Feb. 19, 1985]
Notes of Decisions
Cited in 30 cases (5 in the last 5 years), 1981–2023 · leading case: Voices of the Wetlands v. State Water Resources Control Bd., 257 P.3d 81 (Cal. 2011).
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Voices of the Wetlands v. State Water Resources Control Bd., 257 P.3d 81 (Cal. 2011). · cites it 2× “(See 40 C.F.R. § 122.6 (2011).) [5] The EPA had previously issued regulations governing BTA for the cooling systems of new powerplants (Phase I regulations).”
Nat. Resources Council of Maine v. Int'l Paper Co., 424 F. Supp. 2d 235 (D. Me. 2006). · cites it 16× “See 40 C.F.R. § 122.6 (d). Since at least that date, all of the Jay mill’s discharges of pollutants to the Androscoggin River have been illegal.”
Nat. Resources Def. Council v. United States Env't Prot. Agency, 526 F.3d 591 (9th Cir. 2008). · cites it 2× “at 58033 (codified at 40 C.F.R. § 122.6 (b)(10)). [9] EPA concluded that the language in Section 402( l )(2) did not justify excluding oil and gas construction from permit requirements that applied to all other types of construction.”
United States v. Robison, 505 F.3d 1208 (11th Cir. 2007). “Compare 40 C.F.R. § 122.6 (d) (1981) (requiring EPA certifications to state that “under penalty of law .”
Student Pub. Interest Rsch. Grp. of New Jersey, Inc. v. Georgia-Pac. Corp., 615 F. Supp. 1419 (D.N.J. 1985). · cites it 2× “40 C.F.R. § 122.6 ; N.J.A.C. 7:14A-2.3. The DEP permit, NJPDES Permit No.”
City of Taunton v. U.S. Env't Prot., 895 F.3d 120 (1st Cir. 2018). “While the 2001-issued NPDES permit for the Facility expired in 2006, it was administratively continued pursuant to 40 C.F.R. § 122.6 . The permit did not require the City to give immediate effect to its nitrogen limit, but rather set out a 10-year staged compliance schedule for…”
United States v. Zenon, 285 F. Supp. 2d 109 (D.P.R. 2003). · cites it 3× “Such an administrative continuance is regulated by 40 C.F.R. § 122.6 . This regulation, in relevant part, states: (a) EPA permits.”
Student Pub. Interest Rsch. Grp. of New Jersey, Inc. v. Fritzsche, Dodge & Olcott, Inc., 579 F. Supp. 1528 (D.N.J. 1984). “The regulations to the Act establish that the conditions of an expired permit continue in force until the effective date of a new permit, 40 C.F.R. § 122.6 (a) (1983), and such “continued” permits “remain fully effective and enforceable.”
Pub. Interest Rsch. Grp. of New Jersey, Inc. v. Hercules, Inc., 830 F. Supp. 1525 (D.N.J. 1993). “40 C.F.R. § 122.6 . In April 1982, the EPA delegated responsibility to the New Jersey Department of Environmental Protection and Energy (“NJDEPE”) for administering the NPDES program in New Jersey.”
Sierra Club v. City & Cnty. of Honolulu, 415 F. Supp. 2d 1119 (D. Haw. 2005). · cites it 2× “Plaintiffs base this assertion on their claim that administrative extensions of NPDES permits under 40 C.F.R. § 122.6 are ultra vires. Section 122.”
Pub. Interest Rsch. Grp. of New Jersey, Inc. v. New Jersey Expressway Auth., 822 F. Supp. 174 (D.N.J. 1992). “See 40 C.F.R. § 122.6 (1991). No new permit has apparently been issued.”
Arkansas Wildlife Fed'n v. Bekaert Corp., 791 F. Supp. 769 (W.D. Ark. 1992). “40 C.F.R. § 122.6 . The Administrator of the EPA authorized the Arkansas Department of Pollution Control and Ecology (ADPC & E) pursuant to 33 U.”
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— 40 C.F.R. § 122.6(a) — 1 case
Nat. Resources Def. Council, Inc. v. U.S. Env't Prot. Agency, 859 F.2d 156 (D.C. Cir. 1988).
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