Chapter NR 489

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.