Chapter NR 489

NR 489.01(1) (1) The purpose of this rule is to implement section 176 (c) of the clean air act (42 USC 7406 (c)) and regulations under 40 CFR part 51 subpart W as in effect on July 1, 1998 with respect to the conformity of general federal actions to the applicable implementation plan. Under those authorities, no department, agency or instrumentality of the federal government may engage in, support in any way or provide financial assistance for, license or permit, or approve any activity which does not conform to an applicable implementation plan. This chapter sets forth policy, criteria and procedures for demonstrating and assuring conformity of such actions with the applicable implementation plan.

NR 489.01(2) (2) Under section 176 (c) of the act (42 USC 7506 (c)) and 40. CFR part 51 subpart W, a federal agency must make a determination that a federal action conforms to the applicable implementation plan in accordance with the requirements of this chapter before the action is taken.

NR 489.01(3) (3) Subsection (2) does not include federal actions where either:

NR 489.01(3)(a) (a) A national environmental policy act (NEPA) analysis was completed as evidenced by a final environmental assessment (EA), environmental impact statement (EIS), or finding of no significant impact (FONSI) that was prepared prior to January 31, 1994; or

NR 489.01(3)(b) (b)

NR 489.01(3)(b)1. 1. Prior to January 31, 1994, an EA was commenced or a contract was awarded to develop the specific environmental analysis;

NR 489.01(3)(b)2. 2. Sufficient environmental analysis was completed by March 15, 1994, so that the federal agency may determine that the federal action is in conformity with the specific requirements and the purposes of the applicable implementation plan pursuant to the agency’s affirmative obligation under section 176 (c) of the act (42 USC 7506 (c)); and

NR 489.01(3)(b)3. 3. A written determination of conformity under section 176 (c) of the act (42 USC 7506 (c)) has been made by the federal agency responsible for the federal action by March 15, 1994.

NR 489.01(4) (4) Notwithstanding any provision of this chapter, a determination that an action is in conformity with the applicable implementation plan does not exempt the action from any other requirements of the applicable implementation plan, the NEPA, or the act.

NR 489.01 History History: Cr. Register, September, 1995, No. 477, eff. 10-1-95; am. (1) Register, November, 1999, No. 527, eff. 12-1-99.

NR 489.02 NR 489.02 Definitions. The definitions contained in ch. NR 400 apply to the terms used in this chapter. In addition, terms used but not defined in ch. NR 400 or this chapter shall have the meanings given them by the act and the environmental protection agency’s (EPA) regulations promulgated under the act as of July 1, 1998, in that order of priority. The following definitions apply to the terms used in this chapter:

NR 489.02(1) (1) “Affected federal land manager” means the federal agency or the federal official charged with direct responsibility for management of an area designated as class I under section 162 of the act (42 USC 7472) that is located within 100 km of the proposed federal action.

NR 489.02(2) (2) “Applicable implementation plan” means the portion, or portions, of the state implementation plan, or most recent revision thereof, which has been approved under section 110 of the act (42 USC 7410), a federal implementation plan promulgated under section 110 (c) of the act (42 USC 7410 (c)), or a tribal implementation plan promulgated or approved pursuant to regulations promulgated under section 301 (d) of the act (42 USC 7601 (d)) and which implements the relevant requirements of the act.

NR 489.02(3) (3) “Areawide air quality modeling analysis” means an assessment on a scale that includes the entire nonattainment or maintenance area which uses an air quality dispersion model to determine the effects of emissions on air quality.

NR 489.02(4) (4) “Cause or contribute to a new violation” means a federal action that:

NR 489.02(4)(a) (a) Causes a new violation of a national ambient air quality standard (NAAQS) at a location in a nonattainment or maintenance area which would otherwise not be in violation of the standard during the future period in question if the federal action were not taken; or

NR 489.02(4)(b) (b) Contributes, in conjunction with other reasonably foreseeable actions, to a new violation of a NAAQS at a location in a nonattainment or maintenance area in a manner that would increase the frequency or severity of the new violation.

NR 489.02(5) (5) “Caused by”, as used in conjunction with the terms “direct emissions” and “indirect emissions”, means emissions that would not otherwise occur in the absence of the federal action.

NR 489.02(6) (6) “Criteria pollutant” means any pollutant for which there is established a NAAQS under 40 CFR part 50 as in effect on July 1, 1998.

NR 489.02(7) (7) “Direct emissions” means those emissions of a criteria pollutant or its precursors that are caused or initiated by the federal action and occur at the same time and place as the action.

NR 489.02(8) (8) “Emergency” means a situation where extremely quick action on the part of the federal agencies involved is needed and where the timing of such federal activities makes it impractical to meet the requirements of this chapter, such as natural disasters like hurricanes or earthquakes, civil disturbances such as terrorist acts, and military mobilizations.

NR 489.02(9) (9) “Emissions budgets” are those portions of the total allowable emissions defined in an EPA-approved revision to the applicable implementation plan for a certain date for the purpose of meeting reasonable further progress milestones or attainment or maintenance demonstrations, for any criteria pollutant or its precursors, specifically allocated by the applicable implementation plan to mobile sources, to any stationary source or class of stationary sources, to any federal action or class of action, to any class of area sources, or to any subcategory of the emissions inventory. The allocation system shall be specific enough to assure meeting the criteria of section 176 (c) (1) (B) of the act (42 USC 7506 (c) (1) (B)). An emissions budget may be expressed in terms of an annual period, a daily period, or other period established in the applicable implementation plan.

NR 489.02(10) (10) “Emissions offsets”, for purposes of s. NR 489.08, are emission reductions which are quantifiable, consistent with the attainment and reasonable further progress demonstrations of the applicable implementation plan, surplus to reductions required by, and credited to, other applicable implementation plan provisions, enforceable under both state and federal law, and permanent within the time frame specified by the program. Emissions reductions intended to be achieved as emissions offsets under this chapter shall be monitored and enforced in a manner equivalent to that under EPA’s new source review requirements.

NR 489.02(11) (11) “Emissions that a federal agency has a continuing program responsibility for” means emissions that are specifically caused by an agency carrying out its authorities, and does not include emissions that occur due to subsequent activities, unless such activities are required by the federal agency. Where an agency, in performing its normal program responsibilities, takes actions itself or imposes conditions that result in air pollutant emissions by a non-federal entity taking subsequent actions, such emissions are covered by the meaning of a continuing program responsibility.

NR 489.02(12) (12) “Federal action” means any activity engaged in by a department, agency or instrumentality of the federal government, or any activity that a department, agency or instrumentality of the federal government supports in any way, provides financial assistance for, licenses, permits or approves, other than activities related to transportation plans, programs and projects developed, funded or approved under title 23 USC or the federal transit act (49 USC 1601 to 1625). Where the federal action is a permit, license or other approval for some aspect of a non-federal undertaking, the relevant activity is the part, portion or phase of the non-federal undertaking that requires the federal permit, license or approval.

NR 489.02(13) (13) “Federal agency” means, for purposes of this chapter, a federal department, agency or instrumentality of the federal government.

NR 489.02(14) (14) “Increase the frequency or severity of any existing violation of any standard in any area” means to cause a nonattainment area to exceed a NAAQS more often or to cause a violation at a greater concentration than previously existed or would otherwise exist during the future period in question, if the project were not implemented.

NR 489.02(15) (15) “Indirect emissions” means those emissions of a criteria pollutant or its precursors that:

NR 489.02(15)(a) (a) Are caused by the federal action, but may occur later in time or may be farther removed in distance from the action itself but are still reasonably foreseeable; and

NR 489.02(15)(b) (b) The federal agency can practicably control and will maintain control over due to a continuing program responsibility of the federal agency, including, but not limited to:

NR 489.02(15)(b)1. 1. Traffic on or to, or stimulated or accommodated by, a proposed facility which is related to increases or other changes in the scale or timing of operations of the facility;

NR 489.02(15)(b)2. 2. Emissions related to the activities of employes of contractors or federal employes;

NR 489.02(15)(b)3. 3. Emissions related to employe commuting and similar programs to increase average vehicle occupancy imposed on all employers of a certain size in the locality;

NR 489.02(15)(b)4. 4. Emissions related to the use of federal facilities under lease or temporary permit;

NR 489.02(15)(b)5. 5. Emissions related to the activities of contractors or leaseholders that may be addressed by provisions that are usual and customary for contracts or leases or within the scope of contractual protection of the interests of the United States.

NR 489.02 Note Note: This term does not have the same meaning as given to an indirect source of emissions under section 110 (a) (5) of the act (42 USC 7410 (a) (5)).

NR 489.02(16) (16) “Local air quality modeling analysis” means an assessment of localized impacts on a scale smaller than the entire nonattainment or maintenance area, including, for example, congested roadway intersections and highways or transit terminals, which uses an air quality dispersion model to determine the effects of emissions on air quality.

NR 489.02(17) (17) “Maintenance area” means any geographic region of the United States previously designated nonattainment pursuant to the 1990 amendments of the act, which took effect November 15, 1990, and subsequently redesignated to attainment subject to the requirement to develop a maintenance plan under section 175A of the act (42 USC 7505a).

NR 489.02(18) (18) “Maintenance plan” means a revision to the applicable implementation plan, meeting the requirements of section 175A of the act (42 USC 7505a).

NR 489.02(19) (19) “Metropolitan planning organization” or “MPO” is that organization designated as being responsible, together with the state, for conducting the continuing, cooperative and comprehensive planning process under 23 USC 134 and 49 USC 1607.

NR 489.02(20) (20) “Milestone” has the meaning given in sections 182 (g) (1) and 189 (c) (1) of the act (42 USC 7511a (g) (1) and 7513a (c) (1)). A milestone consists of an emissions level and the date on which it is required to be achieved.

NR 489.02(21) (21) “National ambient air quality standards” or “NAAQS” means those standards established pursuant to section 109 of the act (42 USC 7409) and include standards for carbon monoxide (CO), lead (Pb), nitrogen dioxide (NO2), ozone, particulate matter (PM10), and sulfur dioxide (SO2).

NR 489.02(22) (22) “NEPA” means the national environmental policy act of 1969 (42 USC 4321 to 4347) as in effect on July 1, 1998.

NR 489.02(23) (23) “Nonattainment area” means any geographic area of the United States which has been designated as nonattainment under section 107 of the act (42 USC 7407) and described in 40 CFR part 81 as in effect on July 1, 1998.

NR 489.02(24) (24) “Precursors of a criteria pollutant” are:

NR 489.02(24)(a) (a) For ozone, nitrogen oxides (NOx), unless an area is exempted from NOx requirements under section 182 (f) of the act (42 USC 7511a (f)), and volatile organic compounds (VOC); and

NR 489.02(24)(b) (b) For PM10, those pollutants described in the PM10 nonattainment area applicable implementation plan as significant contributors to the PM10 levels.

NR 489.02(25) (25) “Reasonably foreseeable emissions” are projected future indirect emissions that are identified at the time the conformity determination is made, where the location of such emissions is known to the extent adequate to determine the impact of such emissions, and the emissions are quantifiable, as described and documented by the federal agency based on its own information and after reviewing any information presented to the federal agency.

NR 489.02(26) (26) “Regionally significant action” means a federal action for which the direct and indirect emissions of any pollutant represent 10% or more of a nonattainment or maintenance area’s emissions inventory for that pollutant.

NR 489.02(27) (27) “Regional water or wastewater projects” include construction, operation and maintenance of water or wastewater conveyances, water or wastewater treatment facilities, and water storage reservoirs which affect a large portion of a nonattainment or maintenance area.

NR 489.02(28) (28) “Total of direct and indirect emissions” means the sum of direct and indirect emissions increases and decreases caused by the federal action, i.e., the net emissions considering all direct and indirect emissions. Any emissions decreases used to reduce the total shall be enforceable under federal law. The portion of emissions which are exempt or presumed to conform under s. NR 489.03 (3), (4), (5) or (6) are not included in the total of direct and indirect emissions, except as provided in s. NR 489.03 (10). The total of direct and indirect emissions includes emissions of criteria pollutants and emissions of precursors of criteria pollutants. The segmentation of projects for conformity analyses when emissions are reasonably foreseeable is not permitted by this chapter.

NR 489.02 History History: Cr. Register, September, 1995, No. 477, eff. 10-1-95; am. (12), (17), (22), Register, January, 1997, No. 493, eff. 2-1-97; am. (intro.), (6), (22) and (23), Register, November, 1999, No. 527, eff. 12-1-99.

NR 489.03 NR 489.03 Applicability.

NR 489.03(1) (1) Conformity determinations for federal actions related to transportation plans, programs and projects developed, funded or approved under title 23 USC or the federal transit act, 49 USC 1601 to 1625, shall meet the procedures and criteria of the state implementation plan provision adopted under 40 CFR part 51 subpart T in lieu of the procedures in this chapter.

NR 489.03(2) (2) For federal actions not covered by sub. (1), a conformity determination is required for each pollutant where the total of direct and indirect emissions in a nonattainment or maintenance area caused by a federal action would equal or exceed any of the rates in par. (a) or (b).

NR 489.03(2)(a) (a) For purposes of this subsection, the following rates apply in nonattainment areas:

- See PDF for table

NR 489.03(2)(b) (b) For purposes of this subsection, the following rates apply in maintenance areas:

- See PDF for table

NR 489.03 Note Note: There are no counties located in an ozone transport region in Wisconsin.

NR 489.03(3) (3) The requirements of this chapter do not apply to:

NR 489.03(3)(a) (a) Actions where the total of direct and indirect emissions are below the emissions levels specified in sub. (2).

NR 489.03(3)(b) (b) The following actions, which would result in no emissions increase or an increase in emissions that is clearly de minimis:

NR 489.03(3)(b)1. 1. Judicial and legislative proceedings.

NR 489.03(3)(b)2. 2. Continuing and recurring activities such as permit renewals where activities conducted will be similar in scope and operation to activities currently being conducted.

NR 489.03(3)(b)3. 3. Rulemaking and policy development and issuance.

NR 489.03(3)(b)4. 4. Routine maintenance and repair activities, including repair and maintenance of administrative sites, roads, trails and facilities.

NR 489.03(3)(b)5. 5. Civil and criminal enforcement activities, such as investigations, audits, inspections, examinations, prosecutions and the training of law enforcement personnel.

NR 489.03(3)(b)6. 6. Administrative actions such as personnel actions, organizational changes, debt management or collection, cash management, internal agency audits, program budget proposals, and matters relating to the administration and collection of taxes, duties and fees.

NR 489.03(3)(b)7. 7. The routine, recurring transportation of material and personnel.

NR 489.03(3)(b)8. 8. Routine movement of mobile assets, such as ships and aircraft, in home port reassignments and stations, when no new support facilities or personnel are required, to perform as operational groups or for repair or overhaul.

NR 489.03(3)(b)9. 9. Maintenance dredging and debris disposal where no new depths are required, applicable permits are secured, and disposal will be at an approved disposal site.

NR 489.03(3)(b)10. 10. With respect to existing structures, properties, facilities and lands where future activities conducted will be similar in scope and operation to activities currently being conducted at the existing structures, properties, facilities and lands, actions such as relocation of personnel, disposition of federally-owned existing structures, properties, facilities and lands, rent subsidies, operation and maintenance cost subsidies, the exercise of receivership or conservatorship authority, assistance in purchasing structures, and the production of coins and currency.

NR 489.03(3)(b)11. 11. The granting of leases, licenses such as for exports and trade, permits and easements where activities conducted will be similar in scope and operation to activities currently being conducted.

NR 489.03(3)(b)12. 12. Planning, studies and provision of technical assistance.

NR 489.03(3)(b)13. 13. Routine operation of facilities, mobile assets and equipment.

NR 489.03(3)(b)14. 14. Transfers of ownership, interests and titles in land, facilities and real and personal properties, regardless of the form or method of the transfer.

NR 489.03(3)(b)15. 15. The designation of empowerment zones, enterprise communities, or viticultural areas.

NR 489.03(3)(b)16. 16. Actions by any of the federal banking agencies or the federal reserve banks, including actions regarding charters, applications, notices, licenses, the supervision or examination of depository institutions or depository institution holding companies, access to the discount window, or the provision of financial services to banking organizations or to any department, agency or instrumentality of the United States.

NR 489.03(3)(b)17. 17. Actions by the board of governors of the federal reserve system or any federal Reserve Bank to effect monetary or exchange rate policy.

NR 489.03(3)(b)18. 18. Actions that implement a foreign affairs function of the United States.

NR 489.03(3)(b)19. 19. Actions, or portions thereof, associated with transfers of land, facilities, title and real properties through an enforceable contract or lease agreement where the delivery of the deed is required to occur promptly after a specific, reasonable condition is met, such as promptly after the land is certified as meeting the requirements of the comprehensive environmental response, compensation and liability act (CERCLA), and where the federal agency does not retain continuing authority to control emissions associated with the lands, facilities, title or real properties.

NR 489.03(3)(b)20. 20. Transfers of real property, including land, facilities and related personal property from a federal entity to another federal entity and assignments of real property, including land, facilities and related personal property from a federal entity to another federal entity for subsequent deeding to eligible applicants.

NR 489.03(3)(b)21. 21. Actions by the department of the treasury to effect fiscal policy and to exercise the borrowing authority of the United States.

NR 489.03(3)(c) (c) Actions where the emissions are not reasonably foreseeable, such as electric power marketing activities that involve the acquisition, sale and transmission of electric energy.

NR 489.03(3)(d) (d) Individual actions which implement a decision to conduct or carry out a program that has been found to conform to the applicable implementation plan, such as prescribed burning actions which are consistent with a land management plan that has been found to conform to the applicable implementation plan. The land management plan shall have been found to conform within the past 5 years.

NR 489.03(4) (4) Notwithstanding the other requirements of this chapter, a conformity determination is not required for the following federal actions, or portion thereof:

NR 489.03(4)(a) (a) The portion of an action that includes major new or modified stationary sources that require a permit under the new source review (NSR) program, section 173 of the act (42 USC 7503), or the prevention of significant deterioration (PSD) program, title I, part C of the act (42 USC 7470 to 7492).

NR 489.03(4)(b) (b) Actions in response to emergencies or natural disasters such as hurricanes, earthquakes, etc., which are commenced on the order of hours or days after the emergency or disaster and, if applicable, which meet the requirements of sub. (5).