40 C.F.R. § 124.16

Stays of contested permit conditions

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(a) Stays. (1) If a request for review of a RCRA, UIC, or NPDES permit under § 124.19 of this part is filed, the effect of the contested permit conditions shall be stayed and shall not be subject to judicial review pending final agency action. Uncontested permit conditions shall be stayed only until the date specified in paragraph (a)(2)(i) of this section. (No stay of a PSD permit is available under this section.) If the permit involves a new facility or new injection well, new source, new discharger or a recommencing discharger, the applicant shall be without a permit for the proposed new facility, injection well, source or discharger pending final agency action. See also § 124.60.

(2)(i) Uncontested conditions which are not severable from those contested shall be stayed together with the contested conditions. The Regional Administrator shall identify the stayed provisions of permits for existing facilities, injection wells, and sources. All other provisions of the permit for the existing facility, injection well, or source become fully effective and enforceable 30 days after the date of the notification required in paragraph (a)(2)(ii) of this section.

(ii) The Regional Administrator shall, as soon as possible after receiving notification from the EAB of the filing of a petition for review, notify the EAB, the applicant, and all other interested parties of the uncontested (and severable) conditions of the final permit that will become fully effective enforceable obligations of the permit as of the date specified in paragraph (a)(2)(i) of this section . For NPDES permits only, the notice shall comply with the requirements of § 124.60(b).

(b) Stays based on cross effects. (1) A stay may be granted based on the grounds that an appeal to the Administrator under § 124.19 of one permit may result in changes to another EPA-issued permit only when each of the permits involved has been appealed to the Administrator.

(2) No stay of an EPA-issued RCRA, UIC, or NPDES permit shall be granted based on the staying of any State-issued permit except at the discretion of the Regional Administrator and only upon written request from the State Director.

(1) Comply with the conditions of that permit during any modification or revocation and reissuance proceeding under § 124.5; and

(2) To the extent conditions of any new permit are stayed under this section, comply with the conditions of the existing permit which correspond to the stayed conditions, unless compliance with the existing conditions would be technologically incompatible with compliance with other conditions of the new permit which have not been stayed.

[48 FR 14264, Apr. 1, 1983, as amended at 65 FR 30911, May 15, 2000; 78 FR 5285, Jan. 25, 2013]

Notes of Decisions

Cited in 6 cases (1 in the last 5 years), 1985–2023 · leading case: Student Pub. Interest Rsch. Grp. of New Jersey, Inc. v. Monsanto Co., 600 F. Supp. 1479 (D.N.J. 1985).

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Student Pub. Interest Rsch. Grp. of New Jersey, Inc. v. Monsanto Co., 600 F. Supp. 1479 (D.N.J. 1985). · cites it 2× “But the regulations promulgated pursuant to the Act (see 40 C.F.R. § 124.16 ) estop the defendant from claiming reliance on the agency’s conduct and from claiming that its permit obligations were uncertain.”

Connecticut Fund for the Env't, Inc. v. Upjohn Co., 660 F. Supp. 1397 (D. Conn. 1987). · cites it 2× “at 216 (failure to commence administrative challenge to NDPES permit precluded defendant from doing so in this action); Monsanto, 600 F.”

Ciba-Geigy Corp. v. Sidamon-Eristoff, 3 F.3d 40 (2d Cir. 1993). “See 40 C.F.R. § 124.16 . We do not understand that Ciba wishes to challenge those regulations.”

Sierra Club, Inc. & Conservation Law Found., Inc. v. Granite Shore Power LLC; GSP Merrimack LLC; & Pub. Serv. Co. of New Hampshire d/b/a Eversource Energy, 2020 DNH 205P (D.N.H. 2020). · cites it 6× “10 See 40 C.F.R. § 124.16 (a). 5 contested, or (iii) uncontested but inseverable from contested conditions.”

Sierra Club, Inc. v. Granite Shore Power LLC (D.N.H. 2020). · cites it 5× “10 See 40 C.F.R. § 124.16 (a). contested, or (iii) uncontested but inseverable from contested conditions.”

Sierra Club, Inc. & Conservation Law Found., Inc. v. Granite Shore Power LLC; GSP Merrmack LLC; & Pub. Serv. Co. of New Hampshire d/b/a Eversource Energy, 2023 DNH 149P (D.N.H. 2023). “at 3 (“As required by 40 C.F.R. § 124.16 (c)(2), to the extent that conditions of the Permit are stayed, the Permittee must comply with the conditions of its existing permit (i.”

— 40 C.F.R. § 124.16(c)(1) — 1 case

Student Pub. Interest Rsch. Grp. of New Jersey, Inc. v. Monsanto Co., 600 F. Supp. 1479 (D.N.J. 1985). “But the regulations promulgated pursuant to the Act (see 40 C.F.R. § 124.16 ) estop the defendant from claiming reliance on the agency’s conduct and from claiming that its permit obligations were uncertain.”

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