Chapter NR 489

NR 489.05 History History: Cr. Register, September, 1995, No. 477, eff. 10-1-95; am. Register, November, 1999, No. 527, eff. 12-1-99.

NR 489.06 NR 489.06 Public participation and consultation.

NR 489.06(1) (1) Upon request by any person regarding a specific federal action, a federal agency shall make available for review its draft conformity determination under ss. NR 489.08 and 489.085 with supporting materials which describe the analytical methods, assumptions and conclusions relied upon in making the applicability analysis and draft conformity determination.

NR 489.06(2) (2) A federal agency shall make public its draft conformity determination under ss. NR 489.08 and 489.085 by placing a notice by prominent advertisement in a daily newspaper of general circulation in the areas affected by the action and by providing 30 days for written public comment prior to taking any formal action on the draft determination. This comment period may be concurrent with any other public involvement, such as occurs in the NEPA process.

NR 489.06(3) (3) A federal agency shall document its response to all the comments received on its draft conformity determination under ss. NR 489.08 and 489.085 and make the comments and responses available, upon request by any person regarding a specific federal action, within 30 days of the final conformity determination.

NR 489.06(4) (4) A federal agency shall make public its final conformity determination under ss. NR 489.08 and 489.085 for a federal action by placing a notice by prominent advertisement in a daily newspaper of general circulation in the areas affected by the action within 30 days of the final conformity determination.

NR 489.06 History History: Cr. Register, September, 1995, No. 477, eff. 10-1-95; am. Register, November, 1999, No. 527, eff. 12-1-99.

NR 489.07 NR 489.07 Frequency of conformity determinations.

NR 489.07(1) (1) The conformity status of a federal action automatically lapses 5 years after the date a final conformity determination is reported under s. NR 489.05, unless the federal action has been completed or a continuous program has been commenced to implement that federal action within a reasonable time.

NR 489.07(2) (2) Ongoing federal activities at a given site showing continuous progress are not new actions and do not require periodic redeterminations so long as the emissions associated with such activities are within the scope of the final conformity determination reported under s. NR 489.05.

NR 489.07(3) (3) If, after the conformity determination is made, the federal action is changed so that there is an increase in the total of direct and indirect emissions above the levels in s. NR 489.03 (2), a new conformity determination is required.

NR 489.07 History History: Cr. Register, September, 1995, No. 477, eff. 10-1-95.

NR 489.08 NR 489.08 Criteria for determining conformity of general federal actions. An action required under s. NR 489.03 to have a conformity determination for a specific pollutant will be determined to conform to the applicable implementation plan if, for each pollutant that exceeds the rates in s. NR 489.03 (2), or otherwise requires a conformity determination due to the total of direct and indirect emissions from the action, the action meets the requirements of s. NR 489.085 (2), and meets any of the following requirements:

NR 489.08(1) (1) For any criteria pollutant, the total of direct and indirect emissions from the action are specifically identified and accounted for in the applicable implementation plan’s attainment or maintenance demonstration;

NR 489.08(2) (2) For ozone or nitrogen dioxide, the total of direct and indirect emissions from the action are fully offset within the same nonattainment or maintenance area through a revision to the applicable implementation plan or a measure similarly enforceable under state and federal law that effects emission reductions so that there is no net increase in emissions of that pollutant;

NR 489.08(3) (3) For any criteria pollutant, except ozone and nitrogen dioxide, the total of direct and indirect emissions from the action meets:

NR 489.08(3)(a) (a) The requirements specified in s. NR 489.085 (1), based on areawide air quality modeling analysis and local air quality modeling analysis; or

NR 489.08(3)(b) (b) The requirements specified in sub. (5) and, for local air quality modeling analysis, the requirements of s. NR 489.085 (1);

NR 489.08(4) (4) For CO or PM10:

NR 489.08(4)(a) (a) Where the department determines, in accordance with ss. NR 489.05 and 489.06 and consistent with the applicable implementation plan, that an areawide air quality modeling analysis is not needed, the total of direct and indirect emissions from the action meets the requirements specified in s. NR 489.085 (1), based on local air quality modeling analysis; or

NR 489.08(4)(b) (b) Where the department determines, in accordance with ss. NR 489.05 and 489.06 and consistent with the applicable implementation plan, that an areawide air quality modeling analysis is appropriate and that a local air quality modeling analysis is not needed, the total of direct and indirect emissions from the action meets the requirements specified in s. NR 489.085 (1), based on areawide modeling, or meets the requirements of sub. (5); or

NR 489.08(5) (5) For ozone or nitrogen dioxide, and for purposes of subs. (3) (b) and (4) (b), each portion of the action or the action as a whole meets any of the following requirements:

NR 489.08(5)(a) (a) Where EPA has approved a revision to an area’s attainment or maintenance demonstration after 1990 and the state makes a determination as provided in subd. 1. or where the state makes a commitment as provided in subd. 2.:

NR 489.08 Note Note: Any such determination or commitment shall be made in compliance with ss. NR 489.05 and 489.06.

NR 489.08(5)(a)1. 1. The total of direct and indirect emissions from the action, or portion thereof, is determined and documented by the department to result in a level of emissions which, together with all other emissions in the nonattainment or maintenance area, would not exceed the emissions budgets specified in the applicable implementation plan.

NR 489.08(5)(a)2. 2. The total of direct and indirect emissions from the action, or portion thereof, is determined by the department to result in a level of emissions which, together with all other emissions in the nonattainment or maintenance area, would exceed an emissions budget specified in the applicable implementation plan and the department makes a written commitment to EPA which includes the following:

NR 489.08(5)(a)2.a. a. A specific schedule for adoption and submittal of a revision to the applicable implementation plan which would achieve the needed emission reductions prior to the time emissions from the federal action would occur;

NR 489.08(5)(a)2.b. b. Identification of specific measures for incorporation into the applicable implementation plan which would result in a level of emissions which, together with all other emissions in the nonattainment or maintenance area, would not exceed any emissions budget specified in the applicable implementation plan;

NR 489.08(5)(a)2.c. c. A demonstration that all existing applicable implementation plan requirements are being implemented in the area for the pollutants affected by the federal action, and that local authority to implement additional requirements has been fully pursued;

NR 489.08(5)(a)2.d. d. A determination that the responsible federal agencies have required all reasonable mitigation measures associated with their action; and

NR 489.08(5)(a)2.e. e. Written documentation including all air quality analyses supporting the conformity determination.

NR 489.08 Note Note: When a federal agency makes a conformity determination based on a state commitment under subd. 2.., such a state commitment is automatically deemed a call for an implementation plan revision by EPA under section 110 (k) (5) of the act (42 USC 7410 (k) (5)), effective on the date of the federal conformity determination and requiring response within 18 months or any shorter time within which the state commits to revise the applicable implementation plan.

NR 489.08(5)(b) (b) The action, or portion thereof, as determined by the MPO, is specifically included in a current transportation plan and transportation improvement program which has been found to conform to the applicable implementation plan under 40 CFR part 51, subpart T or part 93, subpart A as in effect on July 1, 1998;

NR 489.08(5)(c) (c) The action, or portion thereof, fully offsets its emissions within the same nonattainment or maintenance area through a revision to the applicable implementation plan or an equally enforceable measure that achieves emission reductions equal to or greater than the total of direct and indirect emissions from the action so that there is no net increase in emissions of that pollutant;

NR 489.08(5)(d) (d) Where EPA has not approved a revision to the relevant implementation plan attainment or maintenance demonstration since 1990, the total of direct and indirect emissions from the action for the future years, described in s. NR 489.09 (4), do not increase emissions with respect to the baseline emissions, and:

NR 489.08(5)(d)1. 1. The baseline emissions reflect the historical activity levels that occurred in the geographic area affected by the proposed federal action during:

NR 489.08(5)(d)1.a. a. The calendar year 1990;

NR 489.08(5)(d)1.b. b. The calendar year that is the basis for the classification or, where the classification is based on multiple years, the year that is most representative in terms of the level of activity, if a classification is promulgated in 40 CFR part 81 as in effect on July 1, 1998; or

NR 489.08(5)(d)1.c. c. The year of the baseline inventory in the PM10 applicable implementation plan; and

NR 489.08(5)(d)2. 2. The baseline emissions are the total of direct and indirect emissions calculated for the future years, described in s. NR 489.09 (4), using the historic activity levels, described in subd. 1., and appropriate emission factors for the future years; or

NR 489.08(5)(e) (e) Where the action involves regional water or wastewater projects, the projects are sized to meet only the needs of population projections that are in the applicable implementation plan, based on assumptions regarding per capita use that are developed or approved in accordance with s. NR 489.09 (1).

NR 489.08 History History: Cr. Register, September, 1995, No. 477, eff. 10-1-95; corrections made under s. 13.93 (2m) (b) 1. and 7., Stats., Register, January, 1997, No. 493; am. (intro.), (3) (a), (b), (4) (a), (b), (5) (b) and (d) 1. b., renum. (6) to (8) to be s. NR 489.085 (1) to (3), Register, November, 1999, No. 527, eff. 12-1-99.

NR 489.085 NR 489.085 Additional requirements for determining conformity of general federal actions.

NR 489.085(1) (1) The areawide and local air quality modeling analyses shall:

NR 489.085(1)(a) (a) Meet the requirements in s. NR 489.09; and

NR 489.085(1)(b) (b) Show that the action does not:

NR 489.085(1)(b)1. 1. Cause or contribute to any new violation of any NAAQS in any area; or

NR 489.085(1)(b)2. 2. Increase the frequency or severity of any existing violation of any NAAQS in any area.

NR 489.085(2) (2) Notwithstanding any other requirements of this section and s. NR 489.08, an action subject to this chapter may not be determined to conform to the applicable implementation plan unless the total of direct and indirect emissions from the action is in compliance or consistent with all relevant requirements and milestones contained in the applicable implementation plan, such as elements identified as part of the reasonable further progress schedules, assumptions specified in the attainment or maintenance demonstration, prohibitions, numerical emission limits, and work practice requirements, and such action is otherwise in compliance with all relevant requirements of the applicable implementation plan.

NR 489.085(3) (3) Any analyses required under this section and s. NR 489.08 shall be completed, and any mitigation requirements necessary for a finding of conformity shall be identified in compliance with s. NR 489.10, before the determination of conformity is made.

NR 489.085 History History: Renum. (1) to (3) from NR 489.08 (6) to (8) and am. (2) and (3), Register, November, 1999, No. 527, eff. 12-1-99.

NR 489.09 NR 489.09 Procedures for conformity determinations of general federal actions.

NR 489.09(1) (1) The analyses required under this chapter shall be based on the latest planning assumptions.

NR 489.09(1)(a) (a) All planning assumptions, including, but not limited to, per capita water and sewer use, vehicle miles traveled per capita or per household, trip generation per household, vehicle occupancy, household size, vehicle fleet mix, vehicle ownership, wood stoves per household, and the geographic distribution of population growth, shall be derived from the estimates of current and future population, employment, travel and congestion most recently developed by the MPO, or other agency authorized to make such estimates for the area. The conformity determination shall also be based on assumptions and estimates about current and future background concentrations that are included in the current applicable implementation plan and based on the latest assumptions and estimates about other federal actions.

NR 489.09(1)(b) (b) Any revisions to these estimates used as part of the conformity determination, including projected shifts in geographic location or level of population, employment, travel and congestion, shall be approved by the MPO or other agency authorized to make such estimates for the area.

NR 489.09(2) (2) The analyses required under this chapter shall be based on the latest and most accurate emission estimation techniques available as described below, unless such techniques are inappropriate. If such techniques are inappropriate and written approval of the EPA regional administrator is obtained for any modification or substitution, they may be modified or another technique substituted on a case-by-case basis or, where appropriate, on a generic basis for a specific federal agency program.

NR 489.09(2)(a) (a) For motor vehicle emissions, the most current version of the motor vehicle emissions model specified by EPA for use in the preparation or revision of implementation plans in the state or area shall be used for the conformity analysis as specified below in subds. 1. and 2.:

NR 489.09(2)(a)1. 1. A new motor vehicle emissions model shall be used after EPA publishes in the federal register a notice of its availability.

NR 489.09(2)(a)2. 2. A grace period of 3 months shall apply during which the motor vehicle emissions model previously specified by EPA as the most current version may be used. Conformity analyses for which the analysis was begun during the grace period or no more than 3 years before the federal register notice of availability of the latest emission model may continue to use the previous version of the model specified by EPA, if a final determination as to conformity is made within 3 years of such analysis.

NR 489.09(2)(b) (b) For non-motor vehicle sources, including stationary and area source emissions, the latest emission factors specified by EPA in the Compilation of Air Pollutant Emission Factors, AP-42, incorporated by reference in s. NR 484.05, shall be used for the conformity analysis unless more accurate emission data are available, such as actual stack test data from stationary sources which are part of the conformity analysis.

NR 489.09(3) (3) The air quality modeling analyses required under this chapter shall be based on the applicable air quality models, databases, and other requirements specified in the most recent version of the Guideline on Air Quality Models in Appendix W of 40 CFR part 51, incorporated by reference in s. NR 484.04, unless:

NR 489.09(3)(a) (a) The guideline techniques are inappropriate, in which case the model may be modified or another model substituted on a case-by-case basis or, where appropriate, on a generic basis for a specific federal agency program; and

NR 489.09(3)(b) (b) Written approval of the administrator is obtained for any modification or substitution.

NR 489.09(4) (4) The analyses required under this chapter shall be based on the total of direct and indirect emissions from the action and shall reflect emission scenarios that are expected to occur under each of the following cases:

NR 489.09(4)(a) (a) The act mandated attainment year or, if applicable, the last year for which emissions are projected in the maintenance plan;

NR 489.09(4)(b) (b) The year during which the total of direct and indirect emissions from the action for each pollutant analyzed is expected to be the greatest on an annual basis; and

NR 489.09(4)(c) (c) Any year for which the applicable implementation plan specifies an emissions budget.

NR 489.09 History History: Cr. Register, September, 1995, No. 477, eff. 10-1-95.

NR 489.10 NR 489.10 Mitigation of air quality impacts.

NR 489.10(1) (1) Any measures that are intended to mitigate air quality impacts shall be identified, including the identification and quantification of all emission reductions claimed, and the process for implementation, including any necessary funding of such measures and tracking of such emission reductions, and enforcement of such measures shall be described, including an implementation schedule containing explicit timelines for implementation.

NR 489.10(2) (2) Prior to determining that a federal action is in conformity, the federal agency making the conformity determination shall obtain written commitments from the appropriate persons or agencies to implement any mitigation measures which are identified as conditions for making conformity determinations. Such written commitment shall describe such mitigation measures and the nature of the commitment, in a manner consistent with sub. (1).

NR 489.10(3) (3) Persons or agencies voluntarily committing to mitigation measures to facilitate positive conformity determinations shall comply with the obligations of such commitments.

NR 489.10(4) (4) In instances where the federal agency is licensing, permitting or otherwise approving the action of another governmental or private entity, approval by the federal agency shall be conditioned on the other entity meeting the mitigation measures set forth in the conformity determination, as provided in sub. (1).

NR 489.10(5) (5) When necessary because of changed circumstances, mitigation measures may be modified so long as the new mitigation measures continue to support the conformity determination in accordance with ss. NR 489.08 to 489.09 and this section. Any proposed change in the mitigation measures is subject to the reporting requirements of s. NR 489.05 and the public participation requirements of s. NR 489.06.

NR 489.10(6) (6) Written commitments to mitigation measures shall be obtained prior to a positive conformity determination and such commitments shall be fulfilled.

NR 489.10(7) (7) After this implementation plan revision is approved by EPA, any agreements, including mitigation measures, necessary for a conformity determination shall be both state and federally enforceable. Enforceability through the applicable implementation plan shall apply to all persons who agree to mitigate direct and indirect emissions associated with a federal action for a conformity determination.

NR 489.10 History History: Cr. Register, September, 1995, No. 477, eff. 10-1-95; am. (5), Register, November, 1999, No. 527, eff. 12-1-99.

NR 489.11 NR 489.11 Savings provision. The federal conformity regulations under 40 CFR part 51 subpart W and part 93 as in effect on July 1, 1998, in addition to any existing applicable state requirements, establish the conformity criteria and procedures necessary to meet the requirements of section 176 (c) of the act (42 USC 7506 (c)) until such time as this conformity implementation plan revision is approved by EPA. Following EPA approval of this revision to the applicable implementation plan, or a portion thereof, the approved state criteria and procedures govern conformity determinations and the federal conformity regulations contained in 40 CFR part 93 apply only for the portion, if any, of the state’s conformity provisions that is not approved by EPA. In addition, any previously applicable implementation plan requirements relating to conformity remain enforceable until the state revises its applicable implementation plan to specifically remove them and that revision is approved by EPA.

NR 489.11 History History: Cr. Register, September, 1995, No. 477, eff. 10-1-95; am. Register, November, 1999, No. 527, eff. 12-1-99.