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

<RULE> ENVIRONMENTAL PROTECTION AGENCY <CFR>40 CFR Part 52</CFR> <DEPDOC>[EPA-R06-OAR-2022-0311; FRL-12123-02-R6]</DEPDOC> <SUBJECT>Finding of Failure To Attain the Primary 2010 One-Hour Sulfur Dioxide Standard; Texas; Rusk and Panola Counties Nonattainment Area</SUBJECT> <HD SOURCE="HED">AGENCY:</HD> Environmental Protection Agency (EPA). <HD SOURCE="HED">ACTION:</HD> Final rule. <SUM> <HD SOURCE="HED">SUMMARY:</HD> The Environmental Protection Agency (EPA) is making a determination that the Rusk and Panola Counties, Texas nonattainment area (Rusk-Panola area)  <SU>1</SU> <FTREF/> failed to attain the 2010 one-hour primary sulfur dioxide (SO <E T="52">2</E> ) 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. <FTNT> <SU>1</SU>  The Rusk-Panola nonattainment area encompasses portions of Rusk and Panola County in the vicinity of the Martin Lake Power Station. </FTNT> </SUM> <EFFDATE> <HD SOURCE="HED">DATES:</HD> This rule is effective on January 16, 2025. </EFFDATE> <HD SOURCE="HED">ADDRESSES:</HD> 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 <E T="03">https://www.regulations.gov</E> website. Although listed in the index, some information is not publicly available, <E T="03">e.g.,</E> 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 <E T="03">https://www.regulations.gov.</E> <FURINF> <HD SOURCE="HED">FOR FURTHER INFORMATION CONTACT:</HD> Andrew Lee, EPA Region 6 Office, Air and Radiation Division, Ozone and Infrastructure section, tel. 214-665-6750, <E T="03">lee.andrew.c@epa.gov.</E> 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. </FURINF> <SUPLINF> <HD SOURCE="HED">SUPPLEMENTARY INFORMATION:</HD> Throughout this document “we,” “us,” and “our” means the EPA. <HD SOURCE="HD1">I. Background</HD> The background for this action is discussed in detail in our August 2, 2024, proposal. <SU>2</SU> <FTREF/> In that document, we proposed to determine that the Rusk-Panola area failed to attain the 2010 1-hour SO <E T="52">2</E> 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. <FTNT> <SU>2</SU>   <E T="03">See</E> 89 FR 63117. </FTNT> 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 SO <E T="52">2</E> 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. <HD SOURCE="HD1">II. Response to Comments</HD> <E T="03">Comment:</E> 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. <E T="03">Response:</E> 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) ( <E T="03">i.e.,</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. <E T="03">Comment:</E> 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 SO <E T="52">2</E> 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 SO <E T="52">2</E> NAAQS by the January 12, 2022, statutory attainment date. <E T="03">Response:</E> 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 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 SO <E T="52">2</E> 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. <SU>3</SU> <FTREF/> 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 SO <E T="52">2</E> NAAQS. <FTNT> <SU>3</SU>  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). </FTNT> 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  <SU>4</SU> <FTREF/> In fact, one provision of the Agreed Order included a compliance deadline set for six months after the attainment date. <FTNT> <SU>4</SU>  The Agreed Order between Luminant and Texas was entered on February 14, 2022. </FTNT> Commenter Luminant claims that a delay in compliance past the attainment date for the “additional control measure” ( <E T="03">i.e.</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 ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━ Preview showing 10k of 22k characters. Full document text is stored and available for version comparison. ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━