Chapter NR 489

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:

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

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).

NR 489.03(4)(c) (c) Research, investigations, studies, demonstrations or training, other than those exempted under sub. (3) (b), where no environmental detriment is incurred or the particular action furthers air quality research, as determined by the department.

NR 489.03(4)(d) (d) Alteration of and additions to existing structures as specifically required by new or existing applicable environmental legislation or environmental regulations, such as hush houses for aircraft engines and scrubbers for air emissions.

NR 489.03(4)(e) (e) Direct emissions from remedial and removal actions carried out under the comprehensive environmental response, compensation and liability act (CERCLA) and associated regulations to the extent such emissions either comply with the substantive requirements of the PSD or NSR permitting program or are exempted from other environmental regulation under the provisions of CERCLA and applicable regulations issued under CERCLA.

NR 489.03(5) (5) Federal actions which are part of a continuing response to an emergency or disaster under sub. (4) (b) and which are to be taken more than 6 months after the commencement of the response to the emergency or disaster under sub. (4) (b) are exempt from the requirements of this chapter only if:

NR 489.03(5)(a) (a) The federal agency taking the actions makes a written determination that, for a specified period not to exceed an additional 6 months, it is impractical to prepare the conformity analyses which would otherwise be required and the actions cannot be delayed due to overriding concerns for public health and welfare, national security interests and foreign policy commitments; or

NR 489.03(5)(b) (b) For actions which are to be taken after those actions covered by par. (a), the federal agency makes a new determination as provided in par. (a).

NR 489.03(6) (6) Notwithstanding other requirements of this chapter, individual actions or classes of actions specified by individual federal agencies that have met the criteria set forth in either sub. (7) (a) or (b) and the procedures set forth in sub. (8) are presumed to conform, except as provided in sub. (10).

NR 489.03(7) (7) The federal agency shall meet the criteria for establishing activities that are presumed to conform by fulfilling the requirements set forth in either par. (a) or (b):

NR 489.03(7)(a) (a) The federal agency shall clearly demonstrate using methods consistent with this chapter that the total of direct and indirect emissions from the type of activities which would be presumed to conform would not:

NR 489.03(7)(a)1. 1. Cause or contribute to any new violation of any NAAQS in any area;

NR 489.03(7)(a)2. 2. Interfere with provisions in the applicable implementation plan for maintenance of any NAAQS;

NR 489.03(7)(a)3. 3. Increase the frequency or severity of any existing violation of any NAAQS in any area; and

NR 489.03(7)(a)4. 4. Delay timely attainment of any NAAQS or any required interim emission reductions or other milestones in any area including, where applicable, emission levels specified in the applicable implementation plan for purposes of:

NR 489.03(7)(a)4.a. a. A demonstration of reasonable further progress;

NR 489.03(7)(a)4.b. b. A demonstration of attainment; or

NR 489.03(7)(a)4.c. c. A maintenance plan; or

NR 489.03(7)(b) (b) The federal agency shall provide documentation that the total of direct and indirect emissions from such future actions would be below the emission rates for a conformity determination that are established in sub. (2), based, for example, on similar actions taken over recent years.

NR 489.03(8) (8) In addition to meeting the criteria for establishing exemptions set forth in sub. (7) (a) or (b), the following procedures shall also be complied with by the federal agency for activities that are presumed to conform:

NR 489.03(8)(a) (a) The federal agency shall identify through publication in the federal register its list of proposed activities that are presumed to conform and the analysis, assumptions, emissions factors and criteria used as the basis for the presumptions;

NR 489.03(8)(b) (b) The federal agency shall notify the appropriate EPA regional office, state and local air quality agencies and, where applicable, the agency designated under section 174 of the act (42 USC 7504) and the MPO and provide at least 30 days for the public to comment on the list of proposed activities presumed to conform;

NR 489.03(8)(c) (c) The federal agency shall document its response to all the comments received and make the comments, response and final list of activities available to the public upon request; and

NR 489.03(8)(d) (d) The federal agency shall publish the final list of such activities in the federal register.

NR 489.03(9) (9) Notwithstanding the other requirements of this chapter, when the total of direct and indirect emissions of any pollutant from a federal action does not equal or exceed the rates specified in sub. (2), but represents 10% or more of a nonattainment or maintenance area’s total emissions of that pollutant, the action is defined as a regionally significant action and the requirements of ss. NR 489.01 and 489.05 to 489.10 shall apply for the federal action.

NR 489.03(10) (10) Where an action presumed to be de minimis under sub. (3) (a) or (b) or otherwise presumed to conform under sub. (6) is a regionally significant action or where an action otherwise presumed to conform under sub. (6) does not in fact meet one of the criteria in sub. (7) (a), that action may not be considered de minimis or presumed to conform and the requirements of ss. NR 489.01 and 489.05 to 489.10 shall apply for the federal action.

NR 489.03(11) (11) The provisions of this chapter shall apply in all nonattainment and maintenance areas.

NR 489.03 History History: Cr. Register, September, 1995, No. 477, eff. 10-1-95; am. (1), (2) (a), Register, January, 1997, No. 493, eff. 2-1-97.

NR 489.04 NR 489.04 Conformity analysis. Any federal department, agency, or instrumentality of the federal government taking an action subject to 40 CFR part 51 subpart W, as in effect on July 1, 1998, and this chapter shall make its own conformity determination consistent with the requirements of this chapter. In making its conformity determination, a federal agency shall consider comments from any interested parties. Where multiple federal agencies have jurisdiction for various aspects of a project, a federal agency may choose to adopt the analysis of another federal agency, to the extent the proposed action and impacts analyzed are the same as the project for which a conformity determination is required, or develop its own analysis in order to make its conformity determination.

NR 489.04 History History: Cr. Register, September, 1995, No. 477, eff. 10-1-95; am. Register, November, 1999, No. 527, eff. 12-1-99.

NR 489.05 NR 489.05 Reporting requirements.

NR 489.05(1) (1) A federal agency making a conformity determination under ss. NR 489.08 and 489.085 shall provide to the appropriate EPA regional office, the department, local air quality agencies and, where applicable, affected federal land managers and the MPO a 30-day notice which describes the proposed action and the federal agency’s draft conformity determination on the action.

NR 489.05(2) (2) A federal agency shall notify the appropriate EPA regional office, the department and local air quality agencies and, where applicable, affected federal land managers and the MPO within 30 days after making a final conformity determination under ss. NR 489.08 and 489.085.

NR 489.05 Note Note: Federal agencies should send notifications of federal actions proposed for Wisconsin projects to the Wisconsin Department of Natural Resources, Bureau of Air Management, 101 South Webster Street, PO Box 7921, Madison WI 53707-7921. The appropriate EPA office to notify for Wisconsin projects is EPA-Region 5, 77 West Jackson Boulevard, Chicago IL 60604.

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: