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71 1 for Washington Uelay Service • Persons with a speecl1 disability cc1n call877-833·6341 

July 31,2013 

TO: Jim Pendowski, Manager 

Toxics Cleanup Program 

FROM: Maia D. Bellon, Director 

SUBJECT: Determination of Application of MTCA Permit Exemption, RCW 70.1 05D.090, 

to Air Quality Program Permits 

Under RCW 70.105D.090(2), Model Toxics Control Act (MTCA) exempts patties conducting 

cleanups under order or decree from having to obtain certain permits. However, the permit 

exemption "shall not apply if [Ecology] determines that the exemption would result in loss of 

approval from a federal agency necessary for the state to administer any federal law, including 

.. . the federal clean air act[.]" 

The Department of Ecology (Ecology or we) has determined that we can no longer use the 

MTCA exemption to exempt from permitting air emissions from remedial actions at MTCA 

clean-up sites that are sufficient to trigger the need for Title V air operating permits (AOPs), 

prevention of significant deterioration permits (PSD permits), or nonattainment new source 

review permits (nonattainment NSR permits). These permits are mandated by the Federal Clean 

Air Act (CAA). See 42 U.S.C. § 7475 (requiring PSD permits); 42 U.S.C. § 766la (requiring 

Title V air operating permits); 42 U.S.C. §7502(c)(5) (requiring Nonattainment NSR permits). 

Pursuant to the CAA, the United States Environmental Protection Agency (EPA) has authorized 

Ecology to issue these permits. 

Only Congress can create exemptions to the CAA's requirement that these permits be issued 

when air emissions are sufficient to trigger the need for them. Based on this analysis, we are 

determining, pursuant to RCW 70.1 05D.090(2), that the application of the permit exemption 

RCW 70. I 05D.090(1) to air emissions from remedial actions at MTCA cleanup sites that would 

otherwise require PSD permits, Title V AOPs, or Nonattairunent NSR permits would result in the 

state's loss of federal authorization to implement these CAA permitting requirements in 
regulating its air emissions. Washington

s SIP has been approved by EPA and, as a result, has 

become enforceable federalla\v. Ecology's failure to implement the permit requirements in the 

SIP could result in sanctions against the state and the issuance of a federal plan (FIP). 

Based on this analysis, we are determining, pursuant to RCW 70.1 05D.090(2), that until the 

MTCA exemption for minor source permits are approved into Washington's SIP, application of 

the permit exemption RCW 70.1 05D.090(1) to remedial actions at MTCA cleanup sites that emit 

NAAQS pollutants or their precursors would result in the state's loss of federal authorization to 

implement these CAA permitting requirements in Washington. This determination applies solely 

to NAAQS pollutants which would be emitted into the air from remedial actions at MTCA 

cleanup sites, and is not intended to apply to any other circumstance. 

cc: Toxics Cleanup Program Management Team 

Air Quality Program Management Team 

Kay Shirey, Assistant Attorney General 

Ivy Anderson, Assistant Attorney General