C.F.R. » Title 40 » CHAPTER I—ENVIRONMENTAL PROTECTION AGENCY › SUBCHAPTER D—WATER PROGRAMS › PART 124—PROCEDURES FOR DECISIONMAKING › Subpart A—General Program Requirements

40 C.F.R. § 124.9

Administrative record for draft permits when EPA is the permitting authority

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(a) The provisions of a draft permit prepared by EPA under § 124.6 shall be based on the administrative record defined in this section.

(b) For preparing a draft permit under § 124.6, the record shall consist of:

(1) The application, if required, and any supporting data furnished by the applicant;

(2) The draft permit or notice of intent to deny the application or to terminate the permit;

(3) The statement of basis (§ 124.7) or fact sheet (§ 124.8);

(4) All documents cited in the statement of basis or fact sheet; and

(5) Other documents contained in the supporting file for the draft permit.

(6) For NPDES new source draft permits only, any environmental assessment, environmental impact statement (EIS), finding of no significant impact, or environmental information document and any supplement to an EIS that may have been prepared. NPDES permits other than permits to new sources as well as all RCRA, UIC and PSD permits are not subject to the environmental impact statement provisions of section 102(2)(C) of the National Environmental Policy Act, 42 U.S.C. 4321.

(c) Material readily available at the issuing Regional Office or published material that is generally available, and that is included in the administrative record under paragraphs (b) and (c) of this section, need not be physically included with the rest of the record as long as it is specifically referred to in the statement of basis or the fact sheet.

(d) This section applies to all draft permits when public notice was given after the effective date of these regulations.

Notes of Decisions
Cited in 8 cases (2 in the last 5 years), 1981–2025 · leading case: City of Morgan Hill v. Bay Area Air Quality Management District
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City of Morgan Hill v. Bay Area Air Quality Management District (2004) calctapp “§ 793 (c)(1); *871 40 C.F.R. § 124.9 (b)(6) (2003); In re Knauf Fiber Glass (U.”
Prutehi Litekyan: Save Ritidian v. United States Department of the Air Force (2025) ca9 “40 C.F.R. § 124.9 (b)(6). According to the Air Force, this regulation supports the conclusion that NEPA does not apply when RCRA does.”
Sierra Club v. Wyoming Department of Environmental Quality (2011) wyo “[¶ 23] When the EPA reviews an application for an air quality permit, the agency must compile a record, as set forth in 40 C.F.R. § 124.9 . The decision to issue or deny a permit is made by the Regional Administrator, and is based on the record compiled by the agency.”
Manasota-88, Inc. v. Thomas (1986) ca11 · cites it 3× “the issuance of a permit under section 1342 of this title for the discharge of any pollutant by a new source as defined in section 1316 of this title, no action of the Administrator taken pursuant to this chapter shall be deemed a major federal action significantly affecting the…”
Alabama ex rel. Siegelman v. United States Environmental Protection Agency (1990) ca11 · cites it 2× “See 40 C.F.R. § 124.9 (b)(6). 6 The petitioners in this case are the State of Alabama and four citizen organizations: Alabamians for a Clean Environment; the Alabama Chapter of the Sierra Club; the Alabama Conservancy; and Greenpeace, U.”
In re the Prevention of Significant Deterioration (PSD) Air Quality Permit Application of Hyperion Energy Center (2013) sd “§ 793 (c)(1) (West 2012); 40 C.F.R. § 124.9 (b)(6). See also In re Knauf Fiber Glass, 8 E.”
Virginia Electric & Power Company v. United States Environmental Protection Agency (1981) ca4 “6 (draft permits); 40 C.F.R. § 124.9 (administrative record for draft permits).”
Prutehi Litekyan: Save Ritidian v. United States Department of the Air Force (2022) gud “1 It appears that the Eleventh Circuit is the only appellate court who has specifically 2 addressed the issue of whether the Resource Conservation and Recovery Act is a functional 3 equivalent of the National Environmental Policy Act.”
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