Background:

Regulation of new or modified sources of air pollution in Washington is carried out primarily at the state and local level pursuant to a mix of authority conferred by the federal and state Clean Air Acts. The Washington State Department of Ecology (ECY) and seven local air pollution control authorities (local air authorities) share this responsibility.

Before constructing or modifying a source or potential source of any air contaminant in the state, individuals must receive approval through ECY or their local air authority. Approval to construct is granted only if all applicable state and federal requirements are met. The particular requirements may vary by type of source and industry and the particular air quality designation of the surrounding area, but always include, for example, compliance with visible emissions standards, construction/demolition standards, and other health and safety standards. Additionally, every new or modified source must be equipped with the best available control technology (BACT) for each emitted regulated pollutant.

Additionally, under state-specific regulations, if the new or modified source or potential source emits more than de minimis quantities of any one of around 400 toxic air pollutants (TAPs), other pre-construction approval requirements apply. Examples of TAPs include carbon monoxide, asbestos, ammonia, and various lead compounds. New sources of TAPs applying for permits must:

demonstrate use of the best available control technology for toxics;
quantify the amounts of TAPs emitted; and
demonstrate that the increase in emissions of TAPs is sufficiently low to protect human health and safety from potential carcinogenic effects, toxic effects, or both.

The ECY's Three-Tier Review Process.

The ECY, by rule, has identified the TAPs that require the additional layer of review described above. The ECY is also responsible for setting the threshold "de minimis" quantities of each TAP as well as the maximum safe emission levels for each TAP.

The ECY has adopted a three-tiered approach to carrying out this responsibility.

First tier.

The ECY, by rule, has established a general schedule that includes a list of air pollutants designated as TAPs, de minimis values of each TAP, and threshold safe concentration standards — Acceptable Source Impact Levels (ASILs) —for each TAP.

A person seeking to construct or modify a source of TAPs must submit an application to ECY or the local air authority. If an applicant demonstrates that the proposed emissions of TAPs are at or below the ASIL for each TAP, then the authority may approve the notice of construction application.

If the applicant cannot demonstrate that TAPs emitted by the new or modified source are at or below the ASILs for each TAP, the applicant may instead seek approval through the "second tier" and/or "third tier" review.

Second tier.

After a pre-application conference, an applicant seeking second tier review must submit a detailed health risk report and a $10,000 fee to ECY, as well as comply with other requirements. A public hearing may be held. The ECY may approve the project if it determines from information submitted by the applicant that the increased emissions are not likely to result in an increased cancer risk of more than one in 100,000 and determines that the non-cancer hazard is found to be acceptable.

Third tier.

If the applicant cannot prove that the proposed TAP will be below ASIL levels, the applicant may make a third tier review petition concurrently with the second tier review petition. The materials required for a third tier review are the same as for a second tier review. The ECY may approve a project under third-tier review if it determines that approval of the project will result in a greater environmental benefit to the state of Washington.