Rule2025-17029
Withdrawals of Findings of Failure To Submit State Implementation Plan and Finding of Failure To Attain for the Rusk and Panola Counties, Texas 2010 Sulfur Dioxide Primary National Ambient Air Quality Standard Area
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
September 5, 2025
Effective
September 5, 2025
Issuing agencies
Environmental Protection Agency
Abstract
On May 16, 2025, the United States Court of Appeals for the Fifth Circuit (the Court) granted petitions for review of the EPA's nonattainment area designation for the Rusk and Panola Counties area, Texas for the 2010 SO<INF>2</INF> National Ambient Air Quality Standard (NAAQS). Accordingly, that nonattainment designation for the area has been vacated. The vacatur of the nonattainment designation necessarily requires the withdrawal of two contingent actions since the underlying designation is no longer valid: EPA's finding of failure to submit an attainment plan (FFS) issued on August 10, 2020, and EPA's finding of failure to attain the NAAQS by the attainment date (FFA) issued on December 17, 2024. The EPA is withdrawing these two final actions in accordance with the court's decision and finds that any requirements deriving from either the FFS or the FFA are no longer applicable.
Full Text
<html>
<head>
<title>Federal Register, Volume 90 Issue 170 (Friday, September 5, 2025)</title>
</head>
<body><pre>
[Federal Register Volume 90, Number 170 (Friday, September 5, 2025)]
[Rules and Regulations]
[Pages 42831-42833]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2025-17029]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R06-OAR-2022-0311; FRL-12956-01-R6]
Withdrawals of Findings of Failure To Submit State Implementation
Plan and Finding of Failure To Attain for the Rusk and Panola Counties,
Texas 2010 Sulfur Dioxide Primary National Ambient Air Quality Standard
Area
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: On May 16, 2025, the United States Court of Appeals for the
Fifth Circuit (the Court) granted petitions for review of the EPA's
nonattainment area designation for the Rusk and Panola Counties area,
Texas for the 2010 SO<INF>2</INF> National Ambient Air Quality Standard
(NAAQS). Accordingly, that nonattainment designation for the area has
been vacated. The vacatur of the nonattainment designation necessarily
requires the withdrawal of two contingent actions since the underlying
designation is no longer valid: EPA's finding of failure to submit an
attainment plan (FFS) issued on August 10, 2020, and EPA's finding of
failure to attain the NAAQS by the attainment date (FFA) issued on
December 17, 2024. The EPA is withdrawing these two final actions in
accordance with the court's decision and finds that any requirements
deriving from either the FFS or the FFA are no longer applicable.
DATES: This final rule is effective September 5, 2025.
ADDRESSES: The EPA has established a docket for this action under
Docket ID No. EPA-R06-OAR-2022-0311, at <a href="https://www.regulations.gov">https://www.regulations.gov</a>.
Docket: The index to the docket for this action is available
electronically at <a href="https://www.regulations.gov">https://www.regulations.gov</a>. While all documents in
the docket are listed in the index, some information may not be
publicly available due to docket file size restrictions or content
(e.g., Confidential Business Information (CBI)).
FOR FURTHER INFORMATION CONTACT: Andrew Lee, EPA Region 6 Office,
Infrastructure and Ozone Section, telephone number: (214) 665-6750,
email address: <a href="/cdn-cgi/l/email-protection#6c000909420d02081e091b420f2c091c0d420b031a"><span class="__cf_email__" data-cfemail="c8a4adade6a9a6acbaadbfe6ab88adb8a9e6afa7be">[email protected]</span></a>. Please call or email the contact
listed above if you need alternative access to material indexed but not
provided in the docket.
SUPPLEMENTARY INFORMATION: Throughout this document ``we,'' ``us,'' and
``our'' means the EPA.
I. Background
On June 22, 2010, the EPA published a new 1-hour primary
SO<INF>2</INF> NAAQS of 75 parts per billion (ppb).\1\ Subsequently,
the EPA designated portions of Rusk and Panola Counties, Texas as
nonattainment for this 2010 1-hour primary SO<INF>2</INF> NAAQS,
effective January 12, 2017.\2\ The primary major source of emissions in
the area is the Martin Lake Steam Electric Station (Martin Lake), a
coal-fired power plant owned by Luminant Generation Company LLC
(Luminant), a subsidiary of Vistra Energy Corporation (Vistra). Under
section 191 of the Clean Air Act (CAA), Texas was required to submit an
SO<INF>2</INF> attainment plan to the EPA within 18 months of the
effective date of the nonattainment designation, i.e., by no later than
July 12, 2018, for the Rusk-Panola area. Under CAA section 179(c)(1),
the EPA was required to determine whether the nonattainment area had
attained the NAAQS by the applicable attainment date, in this case,
January 12, 2022.
---------------------------------------------------------------------------
\1\ See 75 FR 35520. See also 40 CFR 50.17(a)-(b).
\2\ See 81 FR 89870 See also 40 CFR part 81, subpart C.
---------------------------------------------------------------------------
On August 10, 2020, the EPA published ``Findings of Failure to
Submit State Implementation Plans Required for Attainment of the 2010
1-Hour Primary Sulfur Dioxide (SO<INF>2</INF>) National Ambient Air
Quality Standard (NAAQS)'' addressing requirements for three
SO<INF>2</INF> nonattainment areas, including the finding that Texas
failed to submit the required SIP for the Rusk Panola nonattainment
area by the July 12, 2018 CAA deadline.\3\ This finding, effective on
September 9, 2020, triggered sanction clocks and the CAA section 110(c)
requirement for the EPA to promulgate a federal implementation plan
(FIP) for the area within two years of the finding (September 9, 2022)
unless the state submitted and obtained EPA approval of a SIP revision
correcting the deficiency. On February 28, 2022, the Texas Commission
on Environmental Quality (TCEQ) submitted an attainment plan SIP for
the Rusk Panola area. On August 24, 2022, the EPA determined that the
submittal was complete under 40 CFR part 51, appendix V, which stopped
the mandatory emissions offsets sanctions that were in effect and the
24-month sanction clock for the imposition of highway funding
sanctions.\4\ However,
[[Page 42832]]
this completeness determination did not eliminate the EPA's FIP
obligation required by the FFS.
---------------------------------------------------------------------------
\3\ See 85 FR 48111; this document also addressed another 2010
SO<INF>2</INF> nonattainment area.
\4\ Completeness Determination Letter from David Garcia, Air and
Radiation Division Director--EPA Region 6 to Jon Niermann, Chairman,
TCEQ, (August 24, 2022), available in the docket for this action.
---------------------------------------------------------------------------
On December 17, 2024, the EPA published a ``Finding of Failure To
Attain the Primary 2010 One-Hour Sulfur Dioxide Standard'' determining
that Texas failed to attain the NAAQS for the Rusk Panola area by the
January 12, 2022, CAA deadline. Under CAA section 179(d)(2), following
a Finding of Failure to Attain, the responsible air agency has up to 12
months from the effective date of the determination to submit a revised
SIP for the area demonstrating attainment. According to CAA section
179(d)(3), this revised SIP is to achieve attainment of the one-hour
SO<INF>2</INF> NAAQS as expeditiously as practicable, but no later than
5 years from the effective date of the area's failure to attain.
II. Rationale for Withdrawals of the Finding of Failure To Submit and
Finding of Failure To Attain for the Rusk Panola Area
Following the January 12, 2017, nonattainment designation of the
Rusk Panola area, the State of Texas and industry petitioners
(collectively, Petitioners) filed Petitions for Review challenging
EPA's final action. The Fifth Circuit initially denied the petitions
for review and upheld the nonattainment designation on January 11,
2024. Texas v. EPA, 91 F.4th 280 (5th Cir. 2024), vacated by, 137 F.4th
353 (5th Cir. 2025). Subsequently, Petitioners filed a petition for
rehearing en banc. On May 16, 2025, the Court, in a panel rehearing,
issued a revised opinion granting the petitions for review. Texas v.
EPA, 137 F.4th 353 (5th Cir. 2025). The Court's mandate took effect on
July 8, 2025, which vacated the nonattainment designation for the Rusk
Panola area and remanded the designation of the area ``. . . for EPA to
consider the data that is available now . . . .'' Id. at 375. As a
result of the court's decision in Texas v. EPA, the Rusk Panola area no
longer retains a nonattainment designation and therefore the EPA is
withdrawing the August 2020 FFS and December 2024 FFA. The August 2020
FFS was required under CAA section 179(a)(1) where the EPA ``. . .finds
that a state failed, for an area designated as nonattainment. . . to
submit a plan . . .''. However, this finding is no longer appropriate
in light of the court's decision. The December 2024 FFA was required
under CAA section 179(c) where the EPA must determine whether a
nonattainment area has attained the NAAQS by the relevant attainment
date. However, this finding is also no longer appropriate following the
court's vacatur of the designation. Pursuant to the court's decision,
the FFS for Rusk Panola must be withdrawn and the FFA for Rusk Panola
must be withdrawn and removed from the Code of Federal Regulations
(CFR).
III. Final Action
In accordance with the court's decision in Texas v. EPA, the EPA is
withdrawing the August 2020 finding that Texas failed to submit an
attainment plan SIP for the Rusk Panola area. EPA is also withdrawing
the December 2024 finding that the Rusk Panola area failed to attain
the NAAQS by its applicable CAA attainment date. This action does not
impact the other areas addressed in the August 2020 FFS action. The
requirements for the EPA to impose sanctions under CAA sections 179(a)
and (b) and promulgate a FIP under CAA section 110(c) following an
effective FFS are no longer applicable. The CAA requirement for Texas
to submit a revised SIP for the Rusk Panola area demonstrating
attainment under 179(d)(2) and the requirement for the Rusk Panola area
to attain under an updated attainment date under 179(d)(3) following an
effective FFA are no longer applicable.
The EPA is taking this action as a final rule without providing an
opportunity for public comment or a public hearing because the EPA
finds that the Administrative Procedure Act (APA) good cause exemption
applies. In general, the APA requires that general notice of proposed
rulemaking shall be published in the Federal Register. Such notice must
provide an opportunity for public participation in the rulemaking
process. However, the APA does provide an avenue for an agency to
directly issue a final rulemaking in certain specific instances. This
may occur when an agency for good cause finds (and incorporates the
finding and a brief statement of reasons in the rule issued) that
notice and public participation are impracticable, unnecessary, or
contrary to the public interest. See 5 U.S.C. 553(b)(B). Because the
court's mandate has already vacated the nonattainment area designation,
EPA actions following are no longer valid and EPA must now reflect
those changes. The EPA has determined that it is unnecessary to provide
a public hearing or an opportunity for public comment on this action
because the withdrawals of the August 2020 FFS as it applies to the
Rusk Panola area and the December 2024 FFA are simply necessary
ministerial acts to carry out the Fifth Circuit's judgment in Texas v.
EPA. Because the court vacated the 2017 nonattainment designation for
the Rusk Panola area, the EPA no longer has the authority to uphold
findings relying on the former, now vacated designation. Therefore, in
as much as this action to withdraw these findings merely implements the
binding, nondiscretionary decision of the court, it would serve no
useful purpose to provide an opportunity for public comment or a public
hearing on this issue as EPA no longer has authority to uphold those
actions.
In addition, notice and comment would be contrary to the public
interest because it would unnecessarily delay the withdrawal of the FFS
and FFA and removal of the FFA from the CFR which could result in
uncertainty for the state air agency and regulated industry about how
the court's decision impacts the 2017 nonattainment designation, the
2020 and 2024 findings relying on this designation, and the sanctions
and other requirements stemming from these findings. Promulgation of
this rule soon after the court's decision serves to clarify that the
vacatur of the nonattainment designation also serves to eliminate the
basis for, and therefore requires a withdrawal of, the FFS and FFA.
Given the potential costs and burdens on the State of Texas and
industry associated with this uncertainty, it is in the public interest
for the EPA to issue the withdrawals and amend the CFR without delay.
For those reasons, the EPA finds good cause to issue a final
rulemaking pursuant to section 553 of the APA, 5 U.S.C. 553(b)(B).
IV. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review
This action is not a significant regulatory action as defined in
Executive Order 12866, as amended by Executive Order 14094, and was
therefore not subject to a requirement for Executive Order 12866
review.
B. Executive Order 14192: Unleashing Prosperity Through Deregulation
This action is considered an Executive Order 14192 deregulatory
action. This final rule provides burden reduction by withdrawing two
rules that are no longer applicable to the State of Texas and
associated industry.
C. Paperwork Reduction Act (PRA)
This action does not impose an information collection burden under
the
[[Page 42833]]
PRA. This proposed action does not establish any new information
collection requirements.
D. Regulatory Flexibility Act (RFA)
This rule is not subject to notice and comment requirements because
the Agency has invoked the APA ``good cause'' exemption under 5 U.S.C.
553(b)(B).
E. Unfunded Mandates Reform Act (UMRA)
This action does not contain an unfunded mandate as described in
UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect
small governments. The action imposes no enforceable duty on any state,
local or Tribal governments or the private sector.
F. Executive Order 13132: Federalism
This action does not have federalism implications. It will not have
substantial direct effects on the states, on the relationship between
the national government and the states, or on the distribution of power
and responsibilities among the various levels of government.
G. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
This action does not have Tribal implications as specified in
Executive Order 13175. This action withdraws two rules impacting the
State of Texas. No Tribe is subject to the requirement to submit an
implementation plan under the findings of inadequacy relevant to this
action. Thus, Executive Order 13175 does not apply to this action.
H. Executive Order: 13045 Protection of Children From Environmental
Health & Safety Risks
The EPA interprets Executive Order 13045 as applying only to those
regulatory actions that concern health or safety risks that the EPA has
reason to believe may disproportionately affect children, per the
definition of ``covered regulatory action'' in section 2-202 of the
Executive Order. This action is not subject to Executive Order 13045
because it withdraws two rules that are no longer applicable to the
State of Texas and does not directly or disproportionately affect
children
I. Executive Order 13211: Actions That Significantly Affect Energy
Supply, Distribution or Use
This action is not subject to Executive Order 13211, because it is
not a significant regulatory action under Executive Order 12866.
J. National Technology Transfer and Advancement Act
This proposed action does not involve technical standards.
This action is subject to the Congressional Review Act (CRA), and
the EPA will submit a rule report to each House of the Congress and to
the Comptroller General of the United States. This action is not a
``major rule'' as defined by 5 U.S.C. 804(2).
Under section 307(b)(1) of the CAA, petitions for judicial review
of this action must be filed in the United States Court of Appeals for
the appropriate circuit by November 4, 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: August 26, 2025.
Walter Mason,
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
Sec. 52.2277 [Amended]
0
2. Amend Sec. 52.2277 by removing and reserving paragraph (c).
[FR Doc. 2025-17029 Filed 9-4-25; 8:45 am]
BILLING CODE 6560-50-P
</pre><script data-cfasync="false" src="/cdn-cgi/scripts/5c5dd728/cloudflare-static/email-decode.min.js"></script></body>
</html>Indexed from Federal Register on September 5, 2025.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.