Section 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:

(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;

(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;

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

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

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

(4)  For CO or PM 10 :

(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

(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

(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:

(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. :

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.

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:

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;

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;

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;

d. A determination that the responsible federal agencies have required all reasonable mitigation measures associated with their action; and

e. Written documentation including all air quality analyses supporting the conformity determination.

(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;

(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;

(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:

1. The baseline emissions reflect the historical activity levels that occurred in the geographic area affected by the proposed federal action during:

a. The calendar year 1990;

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

c. The year of the baseline inventory in the PM 10 applicable implementation plan; and

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

(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) .

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.

Note

Any such determination or commitment shall be made in compliance with ss. NR 489.05 and 489.06 . Microsoft Windows NT 6.1.7601 Service Pack 1 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. Microsoft Windows NT 6.1.7601 Service Pack 1