40 C.F.R. § 124.5

Modification, revocation and reissuance, or termination of permits

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(a) (Applicable to State programs, see 40 CFR 123.25 (NPDES), 145.11 (UIC), and 271.14 (RCRA).) Permits (other than PSD permits) may be modified, revoked and reissued, or terminated either at the request of any interested person (including the permittee) or upon the Director's initiative. However, permits may only be modified, revoked, and reissued or terminated for the reasons specified in 40 CFR 122.62 or 122.64 (NPDES), 144.39 or 144.40 (UIC), and 270.41 or 270.43 (RCRA). All requests shall be in writing and shall contain facts or reasons supporting the request.

(b) If the Director decides the request is not justified, he or she shall send the requester a brief written response giving a reason for the decision. Denials of requests for modification, revocation and reissuance, or termination are not subject to public notice, comment, or hearings. Denials by the Regional Administrator may be informally appealed to the Environmental Appeals Board by a letter briefly setting forth the relevant facts. The Environmental Appeals Board may direct the Regional Administrator to begin modification, revocation and reissuance, or termination proceedings under paragraph (c) of this section. The appeal shall be considered denied if the Environmental Appeals Board takes no action on the letter within 60 days after receiving it. This informal appeal is, under 5 U.S.C. 704, a prerequisite to seeking judicial review of EPA action in denying a request for modification, revocation and reissuance, or termination.

(c) (Applicable to State programs, see 40 CFR 123.25 (NPDES), 145.11 (UIC), and 271.14 (RCRA)). (1) If the Director tentatively decides to modify or revoke and reissue a permit under 40 CFR 122.62 (NPDES), 144.39 (UIC), or 270.41 (other than 40 CFR 270.41(b)(3) or 40 CFR 270.42(c) (RCRA)), he or she shall prepare a draft permit under 40 CFR 124.6 incorporating the proposed changes. The Director may request additional information and, in the case of a modified permit, may require the submission of an updated application. In the case of revoked and reissued permits, other than under 40 CFR 270.41(b)(3), the Director shall require the submission of a new application. In the case of revoked and reissued permits under 40 CFR 270.41(b)(3), the Director and the permittee shall comply with the appropriate requirements in subpart G of this part for RCRA standardized permits.

(2) In a permit modification under this section, only those conditions to be modified shall be reopened when a new draft permit is prepared. All other aspects of the existing permit shall remain in effect for the duration of the unmodified permit. When a permit is revoked and reissued under this section, the entire permit is reopened just as if the permit had expired and was being reissued. During any revocation and reissuance proceeding the permittee shall comply with all conditions of the existing permit until a new final permit is reissued.

(3) “Minor modifications” as defined in 40 CFR 122.63 (NPDES), and 144.41 (UIC), and “Classes 1 and 2 modifications” as defined in 40 CFR 270.42 (a) and (b) (RCRA) are not subject to the requirements of this section.

(d) (Applicable to State programs, see §§ 123.25 (NPDES) of this chapter, 145.11 (UIC) of this chapter, and 271.14 (RCRA) of this chapter.) (1) If the Director tentatively decides to terminate: A permit under § 144.40 (UIC) of this chapter, a permit under §§ 122.64(a) (NPDES) of this chapter or 270.43 (RCRA) of this chapter (for EPA-issued NPDES permits, only at the request of the permittee), or a permit under § 122.64(b) (NPDES) of this chapter where the permittee objects, he or she shall issue a notice of intent to terminate. A notice of intent to terminate is a type of draft permit which follows the same procedures as any draft permit prepared under § 124.6 of this chapter.

(2) For EPA-issued NPDES or RCRA permits, if the Director tentatively decides to terminate a permit under § 122.64(a) (NPDES) of this chapter, other than at the request of the permittee, or decides to conduct a hearing under section 3008 of RCRA in connection with the termination of a RCRA permit, he or she shall prepare a complaint under 40 CFR 22.13 and 22.44 of this chapter. Such termination of NPDES and RCRA permits shall be subject to the procedures of part 22 of this chapter.

(3) In the case of EPA-issued permits, a notice of intent to terminate or a complaint shall not be issued if the Regional Administrator and the permittee agree to termination in the course of transferring permit responsibility to an approved State under §§ 123.24(b)(1) (NPDES) of this chapter, 145.25(b)(1) (UIC) of this chapter, 271.8(b)(6) (RCRA) of this chapter, or 501.14(b)(1) (sludge) of this chapter. In addition, termination of an NPDES permit for cause pursuant to § 122.64 of this chapter may be accomplished by providing written notice to the permittee, unless the permittee objects.

(e) When EPA is the permitting authority, all draft permits (including notices of intent to terminate) prepared under this section shall be based on the administrative record as defined in § 124.9.

(f)(1) (Reserved for PSD Modification Provisions).

(2) PSD permits may be terminated only by rescission under § 52.21(w) or by automatic expiration under § 52.21(r). Applications for rescission shall be precessed under § 52.21(w) and are not subject to this part.

[48 FR 14264, Apr. 1, 1983, as amended at 53 FR 37934, Sept. 28, 1988; 54 FR 18785, May 2, 1989; 57 FR 60129, Dec. 18, 1992; 65 FR 30910, May 15, 2000; 70 FR 53449, Sept. 8, 2005; 89 FR 103499, Dec. 18, 2024]

Notes of Decisions

Cited in 12 cases, 1986–2017 · leading case: Sierra Club v. Franklin Cnty. Power of Illinois, LLC, 546 F.3d 918 (7th Cir. 2008).

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Sierra Club v. Franklin Cnty. Power of Illinois, LLC, 546 F.3d 918 (7th Cir. 2008). · cites it 2× “” 40 C.F.R. § 124.5 (g)(2) (“PSD permits may be terminated only by recission under § 52.”

Congaree Riverkeeper, Inc. v. Carolina Water Serv., Inc., 248 F. Supp. 3d 733 (D.S.C. 2017). · cites it 2× “Finally, Defendant asserts that because its modification request was initially denied, it no longer has to comport with the modification requirements of 40 C.F.R. § 124.5 : “Denials of requests for modification, revocation and reissuance or termination are not subject to public…”

United States v. Bethlehem Steel Corp., 829 F. Supp. 1023 (N.D. Ind. 1993). · cites it 3× “*1027 40 C.F.R. § 124.5 (c)(2) (1991) (emphasis added).”

Ciba-Geigy Corp. v. Sidamon-Eristoff, 3 F.3d 40 (2d Cir. 1993). · cites it 3× “Such review is provided under 40 C.F.R. § 124.5 (b), which allows an “informal appeal” to the Administrator of a Regional Administrator’s refusal to terminate a permit.”

United States v. CPS Chem. Co., Inc., 779 F. Supp. 437 (E.D. Ark. 1991). “40 C.F.R. § 124.5 . NPDES permits can be modified only for the reasons specified in 40 C.”

Pub. Interest Rsch. Grp. v. United States Metals Refining Co., 681 F. Supp. 237 (D.N.J. 1987). “These precise requirements cannot be waived in the off-handed way defendant suggests.”

Sierra Club v. Hankinson, 939 F. Supp. 872 (N.D. Ga. 1996). “This includes the following: a) Once the TMDL is established, EPA shall (or ensure that the State shall) cause the modification, revocation and reissuance, or termination of permits where appropriate as necessary to implement the TMDLs, within one year of the TMDL establishment,…”

United States v. City of Toledo, 867 F. Supp. 603 (N.D. Ohio 1994). “This absence of specific authority is noteworthy in light of the specific provisions of 40 C.F.R. § 124.5 (Modification, Revocation, and Reis-suance, or Termination of Permits).”

Texas Mun. Power Agency v. Adm'r of the United States of Am. Env't Prot. Agency, 799 F.2d 173 (5th Cir. 1986). “The regulations state: “In a permit modification under this section, only those conditions to be modified shall be reopened when a new draft permit is prepared.”

Texas Mun. Power Agency v. Adm'r of the United States Env't Prot. Agency, 836 F.2d 1482 (5th Cir. 1988). “Similarly, 40 C.F.R. § 124.5 (c)(2) states: In a permit modification under this section, only those conditions to be modified shall be reopened when a new draft permit is prepared.”

Sierra Club v. Franklin Cnty. Powe (7th Cir. 2008). · cites it 2× “” 40 C.F.R. § 124.5 (g)(2) (“PSD permits may be terminated only by recission under § 52.”

Greenpeace, Inc. v. Env't Prot. Agency, 43 F.3d 701 (D.C. Cir. 1995). · cites it 2× “See 40 C.F.R. § 124.5 (a). The Acting Administrator denied the request, finding no unreasonable risk to human health or the environment.”

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