Chapter NR 489

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:

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.