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[Federal Register Volume 89, Number 242 (Tuesday, December 17, 2024)]
[Rules and Regulations]
[Pages 101894-101896]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-29482]

[[Page 101894]]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R06-OAR-2022-0311; FRL-12123-02-R6]

Finding of Failure To Attain the Primary 2010 One-Hour Sulfur 
Dioxide Standard; Texas; Rusk and Panola Counties Nonattainment Area

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is making a 
determination that the Rusk and Panola Counties, Texas nonattainment 
area (Rusk-Panola area) \1\ failed to attain the 2010 one-hour primary 
sulfur dioxide (SO2) national ambient air quality standard 
(NAAQS) by the Clean Air Act (CAA or the Act) applicable attainment 
date of January 12, 2022. This determination is based upon 
consideration of and review of air quality information for the Rusk-
Panola area leading up to the area's attainment date of January 12, 
2022. The EPA proposed this finding of failure to attain on August 2, 
2024, as part of a larger action that included proposed action on the 
attainment plan. EPA will be taking final action on our proposed 
limited approval and limited disapproval of Texas' attainment plan for 
the Rusk-Panola area in a separate action.
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    \1\ The Rusk-Panola nonattainment area encompasses portions of 
Rusk and Panola County in the vicinity of the Martin Lake Power 
Station.

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DATES: This rule is effective on January 16, 2025.

ADDRESSES: The EPA has established a docket for this action under 
Docket ID No. EPA-R06-OAR-2022-0311. All documents in the docket are 
listed on the https://www.regulations.gov website. Although listed in 
the index, some information is not publicly available, e.g., 
Confidential Business Information or other information whose disclosure 
is restricted by statute. Certain other material, such as copyrighted 
material, is not placed on the internet. Publicly available docket 
materials are available electronically through https://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Andrew Lee, EPA Region 6 Office, Air 
and Radiation Division, Ozone and Infrastructure section, tel. 214-665-
6750, [email protected]. Please call or email the contact listed if 
you need alternative access to material indexed but not provided in the 
docket. Modeling files and other files related to the alternative model 
review are available upon request. Copyrighted materials are available 
for review in person at EPA Region 6 office located at 1201 Elm Street, 
Suite 500, Dallas, Texas 75270.

SUPPLEMENTARY INFORMATION: Throughout this document ``we,'' ``us,'' and 
``our'' means the EPA.

I. Background

    The background for this action is discussed in detail in our August 
2, 2024, proposal.\2\ In that document, we proposed to determine that 
the Rusk-Panola area failed to attain the 2010 1-hour SO2 
NAAQS by the statutory attainment date of January 12, 2022. This 
proposed determination is based on the air quality, as evidenced by 
emissions and monitoring data, in the Rusk-Panola nonattainment area as 
of the January 12, 2022, attainment date.
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    \2\ See 89 FR 63117.
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    In response to the August 2, 2024, proposal, we received several 
comments concerning our proposed finding of failure to attain by the 
January 12, 2022, attainment date. This final notification will only 
address comments on the finding of failure to attain by the attainment 
date portion of the proposal. Other comments on the August 2, 2024, 
proposal, including comments addressing the limited approval and 
limited disapproval, will be addressed in a future document. After 
careful consideration of public comments, the EPA is finalizing our 
proposed finding that the Rusk-Panola area has failed to attain the 
2010 1-hour SO2 NAAQS by the January 12, 2022, attainment 
date. In the following section, the EPA is providing responses to the 
relevant comments received on the proposal pertaining to the finding of 
failure to attain for the Rusk-Panola area.

II. Response to Comments

    Comment: The commenter, Texas Commission on Environmental Quality, 
requested that, upon finalization of the EPA's finding of failure to 
attain for the Rusk-Panola area, the deadline for the resulting SIP 
submittal requirement should be no earlier than 18 months from the 
effective date of the finding.
    Response: CAA section 179(d)(1) explicitly states that if the EPA 
determines that an area did not attain the NAAQS by the applicable 
attainment date, ``[w]ithin 1 year after the Administrator publishes 
the notice . . . relating to notice of failure to attain,'' the 
responsible State ``shall submit a revision to the applicable 
implementation plan'' that meets the requirements of CAA section 
179(d)(2) (i.e., a SIP for the area that demonstrates attainment and 
shall include any additional measures that the EPA may reasonably 
prescribe, including all measures that can be feasibly implemented in 
the area in light of technological achievability, costs, and any non-
air quality and other air quality-related health and environmental 
impacts as required).
    The request from the commenter to extend the 12-month deadline for 
Texas to submit a revised SIP for the Rusk-Panola area is not 
permissible under the plain text of the CAA.
    Comment: The commenter, Luminant Generation Company LLC, owner of 
the major source--Martin Lake facility (Luminant), claims that the 
EPA's proposed finding of failure to attain the 2010 1-hour 
SO2 NAAQS is unsupported and should not be finalized. The 
commenter states that the Agreed Order containing the emissions 
limitations for the Martin Lake facility requires compliance by the 
attainment date and ``simply phases in one additional control measure 
after the attainment date.'' The commenter states that the EPA provided 
no evidence that the provisions implemented by the attainment date were 
insufficient to provide for attainment.
    Another commenter, Sierra Club, offered support for EPA's finding 
and supporting evidence, stating that the EPA must determine attainment 
based on the area's design value as of the attainment date, and whether 
the area attained the standard by that date. The commenter references 
support for the EPA's finding in Texas's own monitoring data for 2019-
2021--the time period with three full calendar years of data before the 
January 12, 2022, attainment date. The commenter then references EPA's 
proposal for this action, arguing the data in that proposal makes clear 
that the Martin Lake area did not meet the 2010 1-hour SO2 
NAAQS by the January 12, 2022, statutory attainment date.
    Response: We disagree with the commenter Luminant on the claim that 
the finding of failure to attain is unsupported, and we agree with 
commenter Sierra Club that monitoring showing a violating design value 
for this area as of the attainment date is a sufficient basis for the 
EPA to find that the area failed to attain by its attainment date. The 
attainment date for the area was January 12, 2022. The EPA may only 
determine an area attained based on air quality monitoring data when 
the design value, based on complete, quality assured monitored air 
quality data from three consecutive calendar years (here, 2019-2021), 
at each eligible monitoring site is equal or less than the 75 ppb

[[Page 101895]]

NAAQS. The Martin Creek monitoring site located within the Rusk-Panola 
area shows a 2019-2021 design value of 93 ppb in violation of the 2010 
1-hour SO2 NAAQS, and thus, the EPA is making the 
determination that the Rusk-Panola area did not attain by its statutory 
attainment date of January 12, 2022.\3\ We also note that the 2020-2022 
monitoring period (which goes beyond the attainment date) produced a 
design value of 81 ppb, also a violation of the 2010 1-hour 
SO2 NAAQS.
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    \3\ As discussed in the proposed action, the monitoring site is 
not located in the area of maximum concentration; however, if any 
monitors were located in the area of maximum concentration, they 
would likely show concentrations greater than or equal to those 
recorded at the existing monitor at the Martin Creek site (EPA AQS 
Site ID 48-401-1082).
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    The commenter Luminant's claims regarding the timing of the 
controls in the Agreed Order are therefore irrelevant to EPA's finding 
that the Rusk-Panola area failed to attain by the attainment date. The 
monitoring data evaluated prior to the attainment date is sufficient to 
support a finding of failure to attain.
    While not determinative in light of the ambient monitoring data 
discussed above, we note that, regardless of the text of the Agreed 
Order, the Order was not entered into by the parties or enforceable 
until one month after the attainment date of January 12, 2022 \4\ In 
fact, one provision of the Agreed Order included a compliance deadline 
set for six months after the attainment date.
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    \4\ The Agreed Order between Luminant and Texas was entered on 
February 14, 2022.
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    Commenter Luminant claims that a delay in compliance past the 
attainment date for the ``additional control measure'' (i.e. the lb/
MMBtu limits discussed in the preceding paragraph) established in the 
Agreed Order would not have a negative effect on the area attaining the 
standard. However, the modeling demonstration and statements made by 
TCEQ in the SIP refute Luminant's contention; both the modeling 
demonstration and TCEQ's statements establish that meeting these limits 
is necessary to ensure no modeled exceedances of the NAAQS.\5\ Further, 
the commenter offers no evidence, modeling, or demonstration to support 
their claims that compliance with all of the SIP requirements (as 
provided for in the attainment demonstration modeling) was not 
necessary, and, monitoring data from the time period in question 
directly refutes commenter's position. Between January 12, 2022, and 
July 11, 2022, four exceedances of the standard were measured at the 
Martin Creek monitor in Rusk County,\6\ suggesting that the area could 
not attain without the limits that had not yet taken effect.
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    \5\ See page 3-2 of Texas' Rusk-Panola Attainment Demonstration 
State Implementation Plan Revision for the 2010 SO2 
National Ambient Air Quality Standard.
    \6\ On February 5, March 29, March 30, and April 13, the Martin 
Creek Monitor measured values at 119 ppb, 109 ppb, 95 ppb, and 77 
ppb, respectively.
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    Comment: One commenter, Sierra Club, stated that in addition to the 
EPA's finding of failure to attain by the attainment date for the Rusk-
Panola area, the EPA should also prescribe additional measures that 
Texas must implement as expeditiously as practicable for the area to 
attain the standard.
    Response: In accordance with CAA section 179(d), issuance of this 
finding of failure to attain triggers the requirement for the State of 
Texas to submit a SIP revision for the Rusk-Panola area within one year 
of the publication date of this document. The required SIP revision for 
the area must, among other elements, demonstrate attainment of the 
SO2 NAAQS as expeditiously as practicable, but no later than 
5 years from the date of this document. CAA section 179(d) also grants 
authority to the Administrator to reasonably prescribe additional 
measures that must be addressed, including all measures that can be 
feasibly implemented in the area in light of technological 
achievability, costs, and any non-air quality and other air quality-
related health and environmental impacts. We are not prescribing 
additional measures for the SO2 SIP revisions under CAA 
section 179(d)(2) in this document.

III. Final Action

    Under CAA section 179(c)(1)-(2), the EPA is making a determination 
that the Rusk-Panola area has failed to attain the 2010 1-hour 
SO2 NAAQS of 75 ppb by the applicable statutory attainment 
date of January 12, 2022. In accordance with CAA section 179(d), 
issuance of this finding of failure to attain triggers the requirement 
for the State of Texas to submit a SIP revision for the Rusk-Panola 
area within one year of the publication date of this document. The 
required SIP revision for the area must, among other elements, 
demonstrate attainment of the 2010 1-hour SO2 NAAQS as 
expeditiously as practicable, but no later than 5 years from the date 
of this document and shall include such additional measures as the 
Administrator may reasonably prescribe, including all measures that can 
be feasibly implemented in the area in light of technological 
achievability, costs, and any non-air quality and other air quality-
related health and environmental impacts. At this time, we are not 
prescribing additional measures for the SO2 SIP revisions 
under CAA section 179(d)(2). In addition to triggering requirements for 
a new SIP submittal, a final determination that a nonattainment area 
failed to attain the NAAQS by the attainment date triggers the 
implementation of contingency measures adopted under 172(c)(9).

IV. Environmental Justice Considerations

    Information on Executive Order 12898 (Federal Actions To Address 
Environmental Justice in Minority Populations and Low-Income 
Populations, 59 FR 7629, February 16, 1994) and how EPA defines 
environmental justice (EJ) can be found in the section titled ``V. 
Statutory and Executive Order Reviews.'' EPA provided analysis of 
environmental justice associated with this action solely for 
informational purposes, and the results of this analysis were presented 
in our proposal.
    In accordance with section 179(c)(1)-(2) of the CAA, this final 
action formalizes EPA's determination that the Rusk and Panola 
Counties, Texas SO2 nonattainment area has failed to attain 
the 2010 one-hour SO2 NAAQS of 75 ppb by the applicable 
attainment date of January 12, 2022. This action provides notice to the 
public that the area has failed to attain the NAAQS and informs the 
State of Texas of CAA requirements the State needs to meet. After 
publishing this final rule, the State of Texas is required under CAA 
section 179(d) to submit revisions to the SIP for the Rusk-Panola area 
within one year of the publication of this document. The required SIP 
revision for the area must, among other elements, demonstrate 
attainment of the 2010 1-hour SO2 NAAQS as expeditiously as 
practicable, but no later than 5 years. This final rule is not 
anticipated to have disproportionately high or adverse human health or 
environmental effects on communities with environmental justice 
concerns.

V. Statutory and Executive Order Reviews

    This action finds that an area has failed to attain the NAAQS by 
the relevant attainment date and does not impose additional or modify 
existing requirements. For that reason, this action:
     Is not a significant regulatory action subject to review 
by the Office of Management and Budget under Executive Orders 12866 (58 
FR 51735,

[[Page 101896]]

October 4, 1993) and 14094 (88 FR 21879, April 11, 2023);
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4);
     Does not have federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not subject to Executive Order 13045 (62 FR 19885, 
April 23, 1997) because it approves a State program;
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001); and
     Is not subject to requirements of section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the Clean Air Act.
    In addition, the SIP is not approved to apply on any Indian 
reservation land or in any other area where EPA or an Indian Tribe has 
demonstrated that a Tribe has jurisdiction. In those areas of Indian 
country, the rule does not have Tribal implications and will not impose 
substantial direct costs on Tribal governments or preempt Tribal law as 
specified by Executive Order 13175 (65 FR 67249, November 9, 2000). 
Executive Order 12898 (Federal Actions To Address Environmental Justice 
in Minority Populations and Low-Income Populations, 59 FR 7629, Feb. 
16, 1994) directs Federal agencies to identify and address 
``disproportionately high and adverse human health or environmental 
effects'' of their actions on communities with environmental justice 
(EJ) concerns to the greatest extent practicable and permitted by law. 
Executive Order 14096 (Revitalizing Our Nation's Commitment to 
Environmental Justice for All, 88 FR 25251, April 26, 2023) builds on 
and supplements E.O. 12898 and defines EJ as, among other things, the 
just treatment and meaningful involvement of all people, regardless of 
income, race, color, national origin, or Tribal affiliation, or 
disability in agency decision-making and other Federal activities that 
affect human health and the environment.
    TCEQ did not evaluate EJ considerations as part of its SIP 
submittal; the CAA and applicable implementing regulations neither 
prohibit nor require such an evaluation. Consistent with EPA's 
discretion under the CAA, EPA has evaluated the EJ considerations of 
this action, as is described in the proposed action at 89 FR 63117 
(August 2, 2024) in the section titled, ``EJ Considerations.'' Due to 
the nature of the action being taken here, this action is expected to 
have a neutral to positive impact on the air quality of the affected 
area. In addition, there is no information in the record inconsistent 
with the stated goal of E.O. 12898/14096 of achieving EJ for 
communities with EJ concerns.
    This action is exempt from the Congressional Review Act because it 
is a rule of particular applicability. The rule makes factual 
determinations for an identified entity (the Rusk-Panola area of 
Texas), based on facts and circumstances specific to that entity. The 
determination of failure to attain the 2010 SO2 NAAQS does 
not in itself create any new requirements beyond what is mandated by 
the CAA.
    Under section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of this action must be filed in the United States Court 
of Appeals for the appropriate circuit by February 18, 2025. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this action for the purposes of 
judicial review nor does it extend the time within which a petition for 
judicial review may be filed, and shall not postpone the effectiveness 
of such rule or action. This action may not be challenged later in 
proceedings to enforce its requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Intergovernmental relations, Reporting and recordkeeping 
requirements, Sulfur oxides.

    Dated: December 9, 2024.
Earthea Nance,
Regional Administrator, Region 6.

    For the reasons stated in the preamble, the Environmental 
Protection Agency amends 40 CFR part 52 as follows:

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

0
1. The authority citation for part 52 continues to read as follows:

    Authority: 42 U.S.C. 7401 et seq.

Subpart SS--Texas

0
2. Amend Sec.  52.2277 by adding paragraph (c) to read as follows:

Sec.  52.2277  Control strategy and regulations: Sulfur Dioxide.

* * * * *
    (c) Determination of failure to attain. Effective January 16, 2025, 
the EPA has determined that the Rusk and Panola Counties, Texas 
nonattainment area failed to attain the 2010 1-hour primary sulfur 
dioxide (SO2) national ambient air quality standards (NAAQS) 
by the applicable attainment date of January 12, 2022. This 
determination triggers the requirements of CAA section 179(d) for the 
State of Texas to submit a revision to the Texas SIP for the Rusk and 
Panola Counties nonattainment area to the EPA by December 17, 2025. The 
SIP revision must, among other elements, provide for attainment of the 
1-hour primary SO2 NAAQS in the Rusk and Panola Counties, 
Texas SO2 nonattainment area as expeditiously as practicable 
but no later than December 17, 2029.

[FR Doc. 2024-29482 Filed 12-16-24; 8:45 am]
BILLING CODE 6560-50-P
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