[Federal Register Volume 77, Number 228 (Tuesday, November 27, 2012)]
[Rules and Regulations]
[Pages 70689-70693]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-27974]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R04-OAR-2009-0786; FRL-9752-5]


Approval and Promulgation of Implementation Plans; Tennessee; 
Regional Haze State Implementation Plan; Best Available Retrofit 
Technology Requirements for Eastman Chemical Company

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is finalizing approval of the Best Available Retrofit 
Technology (BART) requirements for the Eastman Chemical Company 
(Eastman) that were provided in a revision to the Tennessee State 
Implementation Plan (SIP) submitted by the State of Tennessee, through 
the Tennessee Department Environment and Conservation (TDEC), on April 
4, 2008, as later modified and supplemented on May 14, 2012, and May 
25, 2012. EPA previously proposed action on the BART requirements for 
Eastman in association with action on Tennessee's April 4, 2008, 
regional haze SIP revision. On April 24, 2012, EPA took final action on 
all aspects of the April 4, 2008, SIP revision to address regional haze 
in the State's and other states' Class I areas except for the BART 
requirements for Eastman. The May 14, 2012, SIP revision (as clarified 
in a May 25, 2012, SIP revision) changed the compliance date for the 
Eastman BART determination included in Tennessee's April 4, 2008, SIP 
revision and provided a BART alternative determination option for 
Eastman. EPA is finalizing approval of the BART requirements for 
Eastman, as provided in Tennessee's April 4, 2008, May 14, 2012, and 
May 25, 2012, SIP revisions because these SIP revisions are consistent 
with the regional haze provisions of the Clean Air Act (CAA) and EPA's 
regulations.

DATES: Effective Date: This rule will be effective December 27, 2012.

ADDRESSES: EPA has established a docket for this action under Docket 
Identification No. EPA-R04-OAR-2009-0786. All documents in the docket 
are listed on the www.regulations.gov Web site. Although listed in the 
index, some information is not publicly available, i.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 and will be publicly available 
only in hard copy form. Publicly available docket materials are 
available either electronically through www.regulations.gov or in hard 
copy at the Regulatory Development Section, Air Planning Branch, Air, 
Pesticides and Toxics Management Division, U.S. Environmental 
Protection Agency, Region 4, 61 Forsyth Street SW., Atlanta, Georgia 
30303-8960. EPA requests that if at all possible, you contact the 
person listed in the FOR FURTHER INFORMATION CONTACT section for 
further information. The Regional Office's official hours of business 
are Monday through Friday, 8:30 a.m. to 4:30 a.m., excluding Federal 
holidays.

FOR FURTHER INFORMATION CONTACT: Michele Notarianni, Regulatory 
Development Section, Air Planning Branch, Air, Pesticides and Toxics 
Management Division, U.S. Environmental Protection Agency, Region 4, 61 
Forsyth Street SW., Atlanta, Georgia 30303-8960. Michele Notarianni can 
be reached at telephone number (404) 562-9031 and by electronic mail at 
[email protected].

SUPPLEMENTARY INFORMATION:

Table of Contents

I. What is the background for this final action?
II. What is the update to the response to comments received on EPA's 
June 9, 2011, proposal related to Eastman?
III. What is the response to comments received on EPA's August 27, 
2012, proposal related to Eastman?
IV. Final Action
V. Statutory and Executive Order Reviews

[[Page 70690]]

I. What is the background for this final action?

    Regional haze is visibility impairment that is produced by a 
multitude of sources and activities which are located across a broad 
geographic area and emit fine particles (e.g., sulfates, nitrates, 
organic carbon, elemental carbon, and soil dust), and their precursors 
(e.g., sulfur dioxide (SO2), nitrogen oxides, and in some 
cases, ammonia and volatile organic compounds). Fine particle 
precursors react in the atmosphere to form fine particulate matter 
(PM2.5) which impairs visibility by scattering and absorbing 
light. Visibility impairment reduces the clarity, color, and visible 
distance that one can see. PM2.5 can also cause serious 
health effects and mortality in humans and contributes to environmental 
effects such as acid deposition and eutrophication.
    In section 169A of the 1977 Amendments to the CAA, Congress created 
a program for protecting visibility in the nation's national parks and 
wilderness areas. This section of the CAA establishes as a national 
goal the ``prevention of any future, and the remedying of any existing, 
impairment of visibility in mandatory Class I areas which impairment 
results from manmade air pollution.'' On December 2, 1980, EPA 
promulgated regulations to address visibility impairment in Class I 
areas that is ``reasonably attributable'' to a single source or small 
group of sources, i.e., ``reasonably attributable visibility 
impairment.'' See 45 FR 80084. These regulations represented the first 
phase in addressing visibility impairment. EPA deferred action on 
regional haze that emanates from a variety of sources until monitoring, 
modeling, and scientific knowledge about the relationships between 
pollutants and visibility impairment were improved.
    Congress added section 169B to the CAA in 1990 to address regional 
haze issues. EPA promulgated a rule to address regional haze on July 1, 
1999 (64 FR 35713), the Regional Haze Rule (RHR). The RHR revised the 
existing visibility regulations to integrate into the regulation 
provisions addressing regional haze impairment and established a 
comprehensive visibility protection program for Class I areas. The 
requirements for regional haze, found at 40 CFR 51.308 and 51.309, are 
included in EPA's visibility protection regulations at 40 CFR 51.300-
309. The requirement to submit a regional haze SIP applies to all 50 
states, the District of Columbia, and the Virgin Islands. 40 CFR 
51.308(b) requires states to submit the first implementation plan 
addressing regional haze visibility impairment no later than December 
17, 2007.
    On April 4, 2008, TDEC submitted a revision to Tennessee's SIP to 
address regional haze in the State's and other states' Class I areas. 
On June 9, 2011, EPA published an action proposing a limited approval 
and a limited disapproval of Tennessee's April 4, 2008, SIP revision 
(including the BART determination for Eastman--hereafter referred to as 
the ``original Eastman BART determination'') to address the first 
implementation period for regional haze. See 76 FR 33662. After 
publication of EPA's June 2011 proposed action on Tennessee's regional 
haze SIP revision, the State and Eastman entered into discussions 
regarding a BART alternative determination that would give Eastman the 
option to comply with the regional haze BART requirements by converting 
its B-253 Powerhouse to natural gas in lieu of continuing to use coal 
and retrofitting its facility pursuant to the BART determination for 
SO2 emissions (hereafter referred to as the ``Eastman BART 
alternative determination'').
    On April 24, 2012, EPA took final action on Tennessee's April 4, 
2008, regional haze SIP revision, with the exception of the original 
Eastman BART determination. See 77 FR 24392. As noted in that action, 
EPA took no action on the original Eastman BART determination provided 
in the April 4, 2008, SIP revision at that time since EPA expected 
Tennessee to submit a supplemental SIP addressing an Eastman BART 
alternative determination. EPA's proposed action for the original 
Eastman BART determination remained in place after EPA's April 24, 
2012, action on the remainder of Tennessee's regional haze SIP 
revision. On May 14, 2012, TDEC submitted a modification and supplement 
to its April 2008 Tennessee regional haze plan to address BART 
requirements for Eastman. On May 25, 2012, Tennessee modified the 
permit to clarify that Eastman would fully implement BART or notify 
TDEC and EP of the selection of the Eastman BART alternative 
determination no later than April 30, 2017.
    In summary, Tennessee's May 14, 2012, SIP revision: (1) Modifies 
the final compliance date to April 30, 2017, for the original Eastman 
BART determination; and (2) establishes a BART alternative 
determination option for Eastman to convert its B-253 Powerhouse 
(Boilers 25-29) to burn natural gas. The May 14, 2012, SIP revision and 
Eastman's CAA title V operating permit stipulate that if Eastman elects 
to implement the Eastman BART alternative determination instead of the 
original Eastman BART determination, Eastman must begin construction on 
the Eastman BART alternative prior to April 30, 2017, and complete 
construction no later than the earlier of: December 31, 2018; the end 
of the period of the first long-term strategy for regional haze as 
determined by EPA; or the compliance deadline for the one-hour 
SO2 national ambient air quality standard (NAAQS). 
Tennessee's May 14, 2012, SIP revision (as clarified in a May 25, 2012, 
SIP revision) also stipulates that if Eastman elects to implement the 
original Eastman BART determination instead of the Eastman BART 
alternative determination, it must comply with the BART requirements by 
April 30, 2017.
    The Tennessee Air Pollution Control Board approved this SIP 
revision and associated operating permit as Board Order 12-008 on May 
9, 2012. TDEC submitted the modifications to the compliance date for 
the original Eastman BART determination; the additional Eastman BART 
alternative determination; and the Board Order as a SIP revision on May 
14, 2012, and submitted a clarifying SIP revision on May 25, 2012.
    On August 27, 2012 (77 FR 51739), EPA proposed to approve the 
modifications to the compliance date for the original Eastman BART 
determination and the Eastman BART alternative determination option, as 
provided in Tennessee's May 14, 2012, SIP revision. In that action, EPA 
preliminarily determined that implementation of the BART alternative 
option would achieve greater reasonable progress than would be achieved 
through the installation and operation of BART at Eastman and that the 
BART alternative option met the requirements of 40 CFR 51.308(e)(2). As 
mentioned earlier, EPA previously proposed approval of Tennessee's 
original Eastman BART determination as provided in the State's April 4, 
2008, SIP revision. EPA proposed approval of Tennessee's SIP revision 
implementing BART requirements for Eastman (as submitted by the State 
in an April 4, 2008, SIP revision, and later modified and supplemented 
in a May 14, 2012, SIP revision) because EPA preliminarily determined 
that these requirements are consistent with the CAA and EPA's 
regulations on regional haze BART determinations and BART alternative 
determinations. The May 25, 2012, SIP revision simply clarified an 
established requirement and does not substantively modify the proposed 
action.

[[Page 70691]]

II. What is the update to the response to comments received on EPA's 
June 9, 2011, proposal related to Eastman?

    EPA received six sets of comments on the June 9, 2011, rulemaking 
proposing a limited approval and limited disapproval of Tennessee's 
April 4, 2008, regional haze SIP revision. Specifically, the comments 
were received from the American Coalition for Clean Coal Electricity, 
Eastman, TDEC, the National Park Service, the Tennessee Valley 
Authority, and the Utility Air Regulatory Group (UARG).\1\ Full sets of 
the comments provided by all of the aforementioned entities 
(hereinafter referred to as ``the Commenter'') are provided in EPA's 
docket for the April 24, 2012, final rulemaking, which is the same 
docket for today's final action.
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    \1\ EPA notes that in the April 24, 2012, final rulemaking (77 
FR 24392), EPA did not specifically mention UARG as one of the 
Commenters for which EPA was providing response to comments. UARG's 
comments were one of the six sets of comments considered and 
responded to in the April 24, 2012, final rulemaking. These comments 
were included in the docket for the April 24, 2012, final 
rulemaking.
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    EPA addressed these comments in the April 24, 2012, final 
rulemaking, and is only providing an update to the comments related to 
the original Eastman BART determination since EPA is now taking final 
action on this component of Tennessee's April 4, 2008, regional haze 
SIP revision. Please refer to EPA's April 24, 2012, final rulemaking on 
Tennessee's regional haze SIP revision for EPA's further response to 
comments on Tennessee's regional haze SIP. See 77 FR 24392. A summary 
of the comments related to action on the original Eastman BART 
determination and EPA's responses are provided below.
    Comment 1: The Commenter requests that EPA delay final action on 
the June 9, 2011, proposed rulemaking related to Tennessee's regional 
haze SIP revision so that the BART requirements are harmonized with 
other pending federal air quality regulatory actions that affect 
Eastman's Tennessee facility (e.g., 1-hour SO2 NAAQS, the 
maximum achievable control technology (MACT) rule for industrial 
boilers (Industrial Boiler MACT), and the Transport Rule). The 
Commenter asserts that this will provide Eastman with an opportunity to 
meet all of the requirements of these numerous programs at one time and 
will allow Eastman to comply with all pending requirements in an 
efficient and cost-effective manner.
    Response 1: Under section 110(k)(2) of the CAA, EPA is required to 
act within specified timeframes to approve or disapprove SIP revisions. 
As mentioned above, Tennessee submitted its regional haze SIP revision 
for EPA review on April 4, 2008, and EPA is already past-due on its 
action per the statutory deadlines. There is no authority in the CAA 
for EPA to further delay action for the reasons provided by the 
Commenter, and EPA committed to take final action by November 15, 2012, 
on the BART requirements for Eastman.
    Comment 2: The Commenter indicates that it is fundamentally 
inequitable to set the BART compliance deadline earlier for non-
electric generating units (EGUs), in reference to the Eastman facility, 
than for EGUs and to require non-EGUs to make necessary investments 
earlier than EGUs. Further, the Commenter asserts that this step is not 
required to ensure reasonable progress in visibility improvement in 
Class I areas.
    Response 2: EPA previously responded to this comment in the April 
24, 2012, final rulemaking on the remainder to the Tennessee regional 
haze SIP. See 77 FR 24392. Today, EPA is responding to this comment as 
it relates specifically to the BART determination for Eastman. EPA 
reiterates that it is not clear what compliance dates the Commenter is 
referring to. Pursuant to 40 CFR 51.308(e), Tennessee submitted a 
regional haze SIP containing BART determinations for each BART-eligible 
source that may reasonably be anticipated to cause or contribute to any 
impairment of visibility in any Class I area and schedules for 
compliance with BART for each of these sources. Tennessee's April 4, 
2008, regional haze SIP also contains a requirement, based on the 
provisions of 40 CFR 51.308(e)(1)(iv), that each source subject to BART 
be required to install and operate BART as expeditiously as 
practicable, but in no event later than five years after approval of 
the SIP revision. EPA finalized action on the State's April 4, 2008, 
SIP submission (excluding the BART determination for Eastman) on April 
24, 2012, and the State's May 14, 2012, SIP revision, as clarified 
through a May 25, 2012, SIP revision, requires Eastman to comply with 
BART by April 30, 2017, should it elect not to implement the BART 
alternative option. Therefore, the latest BART compliance date under 
the Tennessee regional haze SIP for the State's subject-to-BART sources 
(including Eastman) is in 2017. These timelines are consistent with CAA 
requirements for implementing the regional haze program.
    In comparison, the Utility Boiler MACT and the Industrial Boiler 
MACT require compliance with their respective standards by 2015 as does 
the Clean Air Interstate Rule (CAIR),\2\ a rule that applies only to 
EGUs. It is therefore possible that an EGU relying on CAIR to satisfy 
BART will be required to implement controls that would satisfy BART 
requirements (via CAIR) before a non-EGU in Tennessee.
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    \2\ Although remanded to EPA, CAIR continues to apply in the 
interim until EPA adopts a replacement.
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III. What is the response to comments received on EPA's August 27, 
2012, proposal related to Eastman?

    EPA received one set of comments on the August 27, 2012, proposed 
rulemaking to approve Tennessee's May 14, 2012, SIP revision to: (1) 
Modify the compliance date for the original Eastman BART determination; 
and (2) establish a BART alternative determination option for Eastman 
to convert its B-253 Powerhouse (Boilers 25-29) to burn natural gas. 
Specifically, the comments were received from Eastman (hereinafter 
referred to as ``the Commenter'') and are provided in the docket for 
today's final action.
    In section II of this action, EPA updated its response to comments 
from the April 24, 2012, final rulemaking as it relates to the original 
Eastman BART determination. In addition, EPA is addressing comments 
received in response to the Agency's August 27, 2012, proposed 
rulemaking to approve Tennessee's May 14, 2012, SIP revision to: (1) 
Modify the compliance date for the original Eastman BART determination; 
and (2) provide the option for an Eastman BART alternative 
determination. Additional detail for EPA's rationale for the proposed 
approval of Tennessee's May 14, 2012, SIP revision can be found in 
EPA's August 27, 2012, proposed rulemaking. See 77 FR 51739. A summary 
of the comments related to EPA's August 27, 2012, proposal, and EPA's 
responses to those comments are provided below.
    Comment 3: The Commenter asks EPA to clarify that December 31, 
2018, is the end of the first long-term strategy period to avoid any 
confusion regarding the completion date for the Eastman BART 
alternative. Tennessee's May 14, 2012, SIP revision and Eastman's CAA 
title V operating permit stipulate that if Eastman elects to implement 
the Eastman BART alternative determination instead of the original 
Eastman BART determination, Eastman must begin construction on the 
Eastman BART alternative prior to April 30, 2017, and complete 
construction no later than the earlier of: December 31, 2018; the end 
of the period of the first

[[Page 70692]]

long-term strategy for regional haze as determined by EPA; or the 
compliance deadline for the one-hour SO2 NAAQS.
    Response 3: As stated in EPA's August 27, 2012, proposed rulemaking 
notice, ``[a] December 31, 2018, date for the end of the period of the 
first long term strategy is consistent with the requirement to evaluate 
visibility over calendar year periods and the requirement for each 
state to submit an initial regional haze SIP that covers the period 
from submittal through 2018.'' See 77 FR 51741. Therefore, Eastman must 
complete construction of the BART alternative by December 31, 2018, or 
the compliance deadline for the one-hour SO2 NAAQS, 
whichever is earlier, should it elect to implement the BART 
alternative.

IV. Final Action

    EPA is finalizing approval of the BART requirements for Eastman 
that were submitted by the State of Tennessee as a part of a revision 
to the Tennessee SIP on April 4, 2008, and as later modified and 
supplemented in a SIP revision provided on May 14, 2012, and May 25, 
2012. Specifically, EPA is finalizing approval of the original Eastman 
BART determination as provided in Tennessee's April 4, 2008, SIP 
revision, with the modified compliance date provided in Tennessee's May 
14, 2012, SIP revision, and as clarified in a May 25, 2012, SIP 
revision. EPA is also finalizing approval of Tennessee's May 14, 2012, 
and May 25, 2012, SIP revisions to provide an option for Tennessee to 
implement a BART alternative determination for Eastman in lieu of the 
original Eastman BART determination that was provided in Tennessee's 
April 4, 2008, SIP revision (with the modified compliance date provided 
in Tennessee's May 14, 2012, SIP revision). EPA has concluded that 
implementation of the BART alternative option would achieve greater 
reasonable progress than would be achieved through the installation and 
operation of BART at Eastman and that the BART alternative option meets 
the requirements of 40 CFR 51.308(e)(2). These actions are consistent 
with the CAA and EPA's regulations on regional haze, BART 
determinations, and BART alternative determinations.

V. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the Act and applicable 
federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in 
reviewing SIP submissions, EPA's role is to approve state choices, 
provided that they meet the criteria of the CAA. Accordingly, this 
action merely approves state law as meeting federal requirements and 
does not impose additional requirements beyond those imposed by State 
law. For that reason, this action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Order 
12866 (58 FR 51735, October 4, 1993);
     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 an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     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 CAA; and
     Does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).
    In addition, this rule does not have tribal implications as 
specified by Executive Order 13175 (65 FR 67249, November 9, 2000), 
because the SIP is not approved to apply in Indian country, and EPA 
notes that it will not impose substantial direct costs on tribal 
governments or preempt tribal law.
    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this action and 
other required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. 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 January 28, 2013. 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, Nitrogen dioxide, Particulate 
matter, Reporting and recordkeeping requirements, Sulfur oxides, 
Volatile organic compounds.

    Dated: November 6, 2012.
A. Stanley Meiburg,
Acting Regional Administrator, Region 4.

    For the reasons stated in the preamble, 40 CFR chapter I is amended 
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 RR--Tennessee

0
2. Amend Sec.  52.2220 by:
0
a. In paragraph (d) by adding two new entries for ``Eastman Chemical 
Company'' and ``Eastman Chemical Company--Amendment 1'' at the 
end of the table; and
0
b. In paragraph (e) by adding a new entry for ``Regional Haze Plan--
Eastman Chemical Company BART determination'' at the end of the table.
    The added text reads as follows.


Sec.  52.2220  Identification of plan.

* * * * *
    (d) * * *

[[Page 70693]]



                                                   EPA-Approved Tennessee Source-Specific Requirements
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           Name of source                  Permit No.           State  effective date       EPA approval date                  Explanation
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                                                                      * * * * * * *
Eastman Chemical Company...........  BART Permit 066116H...  May 9, 2012................  November 27, 2012....  BART determination.
                                                                                          [Insert citation of
                                                                                           publication].
Eastman Chemical Company--Amendment  BART Permit 066116H,    May 22, 2012...............  November 27, 2012....  Clarifying amendment to BART
 1.                          Amendment 1.                               [Insert citation of     Determination.
                                                                                           publication].
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     (e) * * *

                                                    EPA-Approved Tennessee Non-Regulatory Provisions
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    Name of non-regulatory SIP       Applicable geographic or
             provision                  nonattainment area         State  effective date      EPA approval date                 Explanation
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                                                                      * * * * * * *
Regional Haze Plan--Eastman         Statewide.................  May 9, 2012...............  November 27, 2012...  Applicable only to the Eastman
 Chemical Company BART                                                                      [Insert citation....   Chemical BART determination.
 determination.                                                                             of publication].....
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Sec.  52.2234  [Amended]

0
3. Amend Sec.  52.2234 by removing and reserving paragraph (b).

[FR Doc. 2012-27974 Filed 11-26-12; 8:45 am]
BILLING CODE 6560-50-P