101894 Federal Register / Vol. 89, No. 242 / Tuesday, December 17, 2024 / Rules and Regulations 

1The Rusk-Panola nonattainment area 

encompasses portions of Rusk and Panola County 

in the vicinity of the Martin Lake Power Station. 2See 89 FR 63117. 

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. 

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 RuskPanola area in a separate action. 

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, lee.andrew.c@epa.gov. 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 RuskPanola 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. 

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 RuskPanola 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 


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Federal Register / Vol. 89, No. 242 / Tuesday, December 17, 2024 / Rules and Regulations 101895 

3As 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). 

4The Agreed Order between Luminant and Texas 

was entered on February 14, 2022. 

5See page 3–2 of Texas’ Rusk-Panola Attainment 

Demonstration State Implementation Plan Revision 

for the 2010 SO2 National Ambient Air Quality 

Standard. 

6On 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. 

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. 

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. 

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. 

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 RuskPanola 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 RuskPanola 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, 


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101896 Federal Register / Vol. 89, No. 242 / Tuesday, December 17, 2024 / Rules and Regulations 

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 

■ 1. The authority citation for part 52 

continues to read as follows: 

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

Subpart SS—Texas 

■ 2. Amend § 52.2277 by adding 

paragraph (c) to read as follows: 

§ 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 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Parts 52 and 81 

[EPA–R10–OAR–2024–0371; FRL–12159– 

02–R10] 

Designation of Areas for Air Quality 

Planning Purposes; Redesignation 

Request and Associated Maintenance 

Plan for Whatcom County, WA 2010 

SO2 Nonattainment Area 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: On July 25, 2024, the State of 

Washington (WA) submitted a request 

for the Environmental Protection 

Agency (EPA) to redesignate to 

attainment a portion of Whatcom 

County immediately surrounding the 

now permanently closed aluminum 

smelter, Intalco Aluminum LLC, which 

the EPA designated nonattainment for 

the 2010 1-hour primary sulfur dioxide 

(SO2) National Ambient Air Quality 

Standard (NAAQS). Washington also 

submitted a request for the EPA to 

approve a State Implementation Plan 

(SIP) revision containing a maintenance 

plan for the area. The EPA is taking the 

following final actions: we have 

determined that the Whatcom County 

(partial) SO2 nonattainment area 

(Whatcom County area or area) is 


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