Rule2026-10754
Partial Approval and Partial Disapproval of Air Quality Implementation Plans; Hawaii; Regional Haze State Implementation Plan for the Second Implementation Period
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
May 29, 2026
Effective
June 29, 2026
Issuing agencies
Environmental Protection Agency
Abstract
The Environmental Protection Agency (EPA) is partially approving and partially disapproving the regional haze state implementation plan (SIP) revision submitted by Hawaii on August 2, 2024, under the Clean Air Act (CAA) and the EPA's Regional Haze Rule (RHR) for the program's second implementation period. Hawaii's SIP submission is intended to address the requirement that states must periodically revise their long-term strategies for making reasonable progress towards the national goal of preventing any future, and remedying any existing, anthropogenic impairment of visibility, including regional haze, in mandatory Class I Federal areas. The SIP submission also addresses other applicable requirements for the second implementation period of the regional haze program. The EPA is approving the portions of Hawaii's submission relating to calculations of baseline, current, and natural visibility conditions, progress to date, the uniform rate of progress, reasonably attributable visibility impairment, progress report requirements, and monitoring strategy and other implementation plan requirements. The EPA is disapproving the long-term strategy, including the enforceable shutdown of several electric generating units at facilities on the islands of Hawaii and Maui. Additionally, we are disapproving the portions of the submission relating to reasonable progress goals and Federal land manager (FLM) consultation requirements.
Full Text
<html>
<head>
<title>Federal Register, Volume 91 Issue 103 (Friday, May 29, 2026)</title>
</head>
<body><pre>
[Federal Register Volume 91, Number 103 (Friday, May 29, 2026)]
[Rules and Regulations]
[Pages 31941-31947]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2026-10754]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R09-OAR-2025-0152; FRL-12584-02-R9]
Partial Approval and Partial Disapproval of Air Quality
Implementation Plans; Hawaii; Regional Haze State Implementation Plan
for the Second Implementation Period
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Environmental Protection Agency (EPA) is partially
approving and partially disapproving the regional haze state
implementation plan (SIP) revision submitted by Hawaii on August 2,
2024, under the Clean Air Act (CAA) and the EPA's Regional Haze Rule
(RHR) for the program's second implementation period. Hawaii's SIP
submission is intended to address the requirement that states must
periodically revise their long-term strategies for making reasonable
progress towards the national goal of preventing any future, and
remedying any existing, anthropogenic impairment of visibility,
including regional haze, in mandatory Class I Federal areas. The SIP
submission also addresses other applicable requirements for the second
implementation period of the regional haze program. The EPA is
approving the portions of Hawaii's submission relating to calculations
of baseline, current, and natural visibility conditions, progress to
date, the uniform rate of progress, reasonably attributable visibility
impairment, progress report requirements, and monitoring strategy and
other implementation plan requirements. The EPA is disapproving the
long-term strategy, including the enforceable shutdown of several
electric generating units at facilities on the islands of Hawaii and
Maui. Additionally, we are disapproving the portions of the submission
relating to reasonable progress goals and Federal land manager (FLM)
consultation requirements.
DATES: This rule is effective on June 29, 2026.
ADDRESSES: The EPA has established a docket for this action under
Docket ID No. EPA-R09-OAR-2025-0152. All documents in the docket are
listed on the <a href="https://www.regulations.gov">https://www.regulations.gov</a> 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 and will be publicly available
only in hard copy form. Publicly available docket materials are
available through <a href="https://www.regulations.gov">https://www.regulations.gov</a>, or please contact the
person identified in the FOR FURTHER INFORMATION CONTACT section for
additional availability information.
FOR FURTHER INFORMATION CONTACT: Michael Dorantes, Geographic
Strategies and Modeling Section (AIR 2-2), EPA Region IX, 75 Hawthorne
Street, San Francisco, CA, telephone number: (415) 972-3934, email
address: <a href="/cdn-cgi/l/email-protection#94f0fbe6f5fae0f1e7baf9fdf7fcf5f1f8d4f1e4f5baf3fbe2"><span class="__cf_email__" data-cfemail="a8ccc7dac9c6dccddb86c5c1cbc0c9cdc4e8cdd8c986cfc7de">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION: Throughout this document, ``we,'' ``us,''
and ``our'' refer to the EPA.
Table of Contents
I. Background
II. Summary of Public Comments and Responses
III. Final Action
IV. Statutory and Executive Order Reviews
I. Background
On August 12, 2022, the Hawaii Department of Health (HDOH)
submitted a revision to its SIP, titled ``Hawaii State Department of
Health Regional Haze State Implementation Plan, Second Planning
Period'' to address regional haze for the second implementation
period.\1\ Then, on August 2, 2024, HDOH withdrew its original SIP
submission and simultaneously submitted a revised regional haze SIP
submission, titled ``Hawaii State Department of Health Regional Haze
State Implementation Plan, Revision 1, Second Planning Period'' (the
``2024 Hawaii Regional Haze Plan'' or ``the Plan'') for the second
implementation period.\2\ HDOH made this SIP submission to satisfy the
requirements of the CAA's regional haze program pursuant to CAA
sections 169A and 169B and 40 CFR 51.308.
---------------------------------------------------------------------------
\1\ Letter dated August 11, 2022, from Elizabeth Char, Director
of Health, Hawaii Department of Health, to Martha Guzman, Regional
Administrator, EPA Region IX (submitted electronically on August 12,
2022).
\2\ Letter dated August 2, 2024, from Kenneth Fink, Director of
Health, Hawaii Department of Health, to Martha Guzman, Regional
Administrator, EPA Region IX (submitted electronically on August 2,
2024).
---------------------------------------------------------------------------
On February 17, 2026, the EPA proposed to partially approve and
partially disapprove the 2024 Hawaii Regional Haze Plan.\3\
Specifically, we proposed to approve the elements of the 2024 Hawaii
Regional Haze Plan related to requirements contained in 40 CFR
51.308(f)(1), (f)(4) through (6), and (g)(1) through (5) and to
disapprove the elements of the 2024 Hawaii Regional Haze Plan related
to requirements contained in 40 CFR 51.308(f)(2), (f)(3), and (i)(2)
through (4). In particular, the EPA noted that Hawaii's long-term
strategy included the enforceable shutdown of six boiler units at the
Kanoelehua-Hill and Kahului Generating Stations, on the islands of
Hawaii and Maui, respectively, and the option to shut down several
diesel engine generators at the Maalaea Generating Station on the
island of Maui. However, the owner of these units, Hawaiian Electric
Company (``Hawaiian Electric'' or the ``Company''),\4\ no longer
consents to these shutdowns due to concerns that they would result in
potential energy reserve shortfalls which would endanger grid
reliability. We proposed to find that approval by the EPA of source
closures that are now opposed by the sources' owner (hereinafter
``forced'' or ``unconsented'' closures) without just compensation,
could violate the Takings
[[Page 31942]]
Clause of the U.S. Constitution and possibly comparable provisions of
State law, and that Hawaii has not provided the necessary assurances
that such violations would not occur as required by CAA section
110(a)(2)(E)(i). Therefore, the EPA proposed to find that the long-term
strategy did not meet the requirements of CAA 110(a)(2)(E)(i) and
therefore did not meet the requirements of 40 CFR 51.308(f)(2). We also
noted that, in the absence of an approved long-term strategy, we could
not approve the associated reasonable progress goals (RPGs) under 40
CFR 51.308(f)(3) or the FLM consultation requirements under 40 CFR
51.308(i)(2) through (4).
---------------------------------------------------------------------------
\3\ 91 FR 7204 (February 17, 2026).
\4\ ``Hawaiian Electric'' or the ``Company'' refers to Hawaiian
Electric Company, Inc., Hawai[revaps]i Electric Light Company, Inc.
and/or Maui Electric Company, Limited.
---------------------------------------------------------------------------
II. Summary of Public Comments and Responses
During the public comment period, the EPA received 13 unique
comment submissions on the proposed rule. The full text of comments
received is included in the publicly posted docket associated with this
rulemaking at <a href="https://www.regulations.gov">https://www.regulations.gov</a>. Below we provide brief
summaries of some of the significant comments received and our
responses. Our response to comments (RTC) document, which is included
in the docket for this rule, provides detailed responses to all
significant comments received and is a part of the administrative
record for this action.
Four commenters expressed overall support for our proposed action.
One of these commenter's primary concern is that the unit retirement
dates in the SIP may not allow for enough time to successfully procure
and place in service replacement projects needed to maintain grid
reliability and integrity. Referencing the significant challenges that
have arisen for numerous projects on which Hawaiian Electric was
relying to replace generation scheduled to retire, Hawaiian Electric
urged the EPA to finalize the partial disapproval. Hawaiian Electric,
additionally provided information regarding grid reliability and the
cost of controls and stated that it ``agrees with EPA's additional
bases for disapproval.'' Another commenter expressed support for the
proposed rule because it shows the need to balance State flexibility
with Federal oversight, and that States should be able to create plans
that fit their own situations, but there also has to be accountability.
That commenter supported the EPA's decision to ``disapprove the parts
of the SIP about the long term strategy and extra emission controls.''
A different commenter supported the EPA's proposal because while
shutting down electrical facilities ``may produce the desired affect
[sic],'' overall the decision will have backlash and we cannot get rid
of one problem by creating another, especially for a State as small as
Hawaii.
Other commenters opposed the EPA's proposed partial disapproval. We
briefly summarize and respond to these comments below.
A. Comments Regarding Necessary Assurances
The EPA received comments regarding the proposed finding that
Hawaii failed to provide necessary assurances that unconsented
enforceable source closures would not be prohibited by State or Federal
law, as required by CAA section 110(a)(2)(E). The EPA proposed that the
unconsented closure of operating sources, without just compensation,
could violate the Takings Clause of the U.S. Constitution and possibly
comparable provisions of State law, and that Hawaii has not provided
necessary assurances that such violations would not occur. Some
commenters opposing our proposed partial disapproval of the 2024 Hawaii
Regional Haze Plan asserted that partially disapproving a SIP based on
lack of necessary assurances under CAA section 110(a)(2)(E) would be
unlawful, speculative, arbitrary, and capricious. Those commenters
stated that a disapproval based on CAA section 110(a)(2)(E)(i) would be
arbitrary and capricious because, among other reasons, Hawaii has a
reliance interest in the RHR and the 2019 Guidance that commenters
understood as supporting the ability of a State to include enforceable
source closure deadlines as part of its long-term strategy for regional
haze SIPs. Additionally, commenters emphasized that when a State
includes ``voluntary'' requirements in a SIP, it is unreasonable for
States to consider a potential violation of the Takings Clause. Those
commenters represented that the necessary assurances argument
mischaracterizes closure deadlines as forced or unconsented, and thus
that the EPA failed to provide a legal rationale for requiring Hawaii
to provide necessary assurances that a ``voluntary'' closure deadline
would not violate the Takings Clause.
On the takings argument, specifically, some commenters argued that
``voluntary'' closure deadlines do not constitute takings under the
Supreme Court's analysis in Penn Central Transportation Co. v. New York
City, 438 U.S. 104 (1978) or Lucas v. South Carolina Coastal Council,
505 U.S. 1003 (1992). The commenters asserted that our reliance at
proposal on per se takings case law is misplaced because the closures
are not permanent physical intrusions and do not deprive owners of
their properties' complete economic value. As for regulatory takings,
commenters stated that we failed in the proposed rulemaking to consider
the Penn Central factors.\5\
---------------------------------------------------------------------------
\5\ See Penn Cent., 438 U.S. at 124-25. The Court enumerated
three factors to consider based on the specific facts of the case in
determining if a government regulation goes too far and amounts to
an unconstitutional ``taking'' of private property, requiring
compensation under the Fifth Amendment. These factors are (1)
economic impact on the owner; (2) owner's investment-backed
expectation; and (3) character of the government action.
---------------------------------------------------------------------------
Some commenters also challenged the EPA's authority to decide
constitutional questions.
We disagree with the comments questioning the EPA's authority to
consider issues involving the Takings Clause under CAA section
110(a)(2)(E)(i). CAA section 110(a)(2)(E)(i) provides that State plans
must provide ``necessary assurances'' that the State ``is not
prohibited by any provision of Federal or State law from carrying out
such implementation plan or portion thereof.'' The best reading of this
provision is that the EPA may not approve a SIP revision that risks
violating Federal or State law in the course of implementation and for
which the State has not provided necessary assurances that there will
be no such violation. The Takings Clause of the Fifth Amendment,
applicable to the States via the Fourteenth Amendment, provides that
the government shall not take private property for public use without
just compensation. Under the CAA's cooperative-federalism framework,
States can determine what emission limits and other measures to include
in their SIPs as long as they meet the requirements of the Act.\6\
However, those state-selected measures must observe statutory and
constitutional limits, as contemplated by the text of CAA section
110(a)(2)(E). Thus, in this case, while a constitutional issue is
implicated, the fundamental issue is that the SIP lacks necessary
assurances under CAA section 110(a)(2)(E)(i). In this context, the EPA
disagrees with comments stating that ensuring the requirements of the
CAA are satisfied, including the requirement that State plans are
supported by necessary assurances regarding compliance with the law, is
not within or relevant to the EPA's authority. We are not adjudicating
constitutional claims in this final rule. Rather, we are ensuring that
our exercise of authority to approve or disapprove the SIP revision
before us, thereby making it enforceable as a matter of Federal law,
[[Page 31943]]
is consistent with applicable requirements and limitations on the EPA's
authority.
---------------------------------------------------------------------------
\6\ Train v. Natural Res. Def. Council, 421 U.S. 60, 79 (1975).
---------------------------------------------------------------------------
The EPA disagrees with comments alleging that we improperly
characterized the enforceable closure of six boiler units at the
Kanoelehua-Hill and Kahului Generating Stations as unconsented closures
and thus that we failed to provide a proper legal rationale requiring
Hawaii to provide necessary assurances that such ``voluntary'' closure
deadlines would not violate the Takings Clause.\7\ According to these
commenters, Hawaiian Electric voluntarily decided to close specific
units and Hawaii relied on the utilities' decisions when it
incorporated enforceable closure provisions into State permits.
Therefore, commenters opine that, at the time, Hawaii would not have
known to provide necessary assurances that an unconsented source
closure would not amount to a taking without just compensation.
However, after Hawaii submitted the Plan to the EPA and prior to us
acting on it, Hawaiian Electric retracted its decision to voluntarily
close the affected units. Specifically, in a letter to the EPA dated
August 29, 2025, Hawaiian Electric stated that:
---------------------------------------------------------------------------
\7\ As discussed further in the RTC document, the closure of
additional units at Maalaea Power Plant is optional and therefore
does not pose a risk of a taking.
. . . the Company was forced under the SIP to accept enforceable
retirement deadlines for units the Company plans to retire, due
[sic] the high costs of controls and fuels switches. However, these
retirement deadlines are no longer acceptable because of potential
negative impacts to generation reliability due to actual or
potential cancellations and delays in replacement generation
projects that were planned by independent power producers.\8\
---------------------------------------------------------------------------
\8\ Letter dated August 29, 2025, from Karin Kimura, Director,
Environmental Division, Hawaiian Electric, to Josh F.W. Cook,
Regional Administrator, EPA Region 9, pp. 1-2.
The Company then explained that 115 MW of planned generation had
been cancelled on the island of Hawaii, meaning that ``grid reliability
will be at risk in 2029 following the retirement of the Kanoelehua-Hill
boilers.'' \9\ The Company similarly noted that 20 MW of planned
generation had been cancelled for Maui, and thus ``a delay to the
shutdown of the Kahului boilers and Maalaea generating units would
reduce reliability risks,'' if there were delays with additional
replacement generation projects on Maui.\10\ Citing Adequacy of Supply
Reports dated January 30, 2025, for Hawaiian Electric Light Company and
Maui Electric Company, the Company stated that ``retirement of the
generating units as required by the SIP deadlines will create higher
probability of energy reserve margin shortfalls that increase risk to
reliability on both islands.'' \11\ The Company also emphasized that
``each island must be entirely self-sufficient and cannot rely on power
by wire transmission from other jurisdictions as is common in the
continental United States to address reliability emergencies.'' \12\
---------------------------------------------------------------------------
\9\ Id. at 3.
\10\ Id. at 3.
\11\ Id.
\12\ Id.
---------------------------------------------------------------------------
Once the EPA and Hawaii received notification that Hawaiian
Electric withdrew its consent for the enforceable closure provisions
contained in the long-term strategy, the EPA and Hawaii were on notice
that approving the long-term strategy with the inclusion of unconsented
closure deadlines for the Kanoelehua-Hill and Kahului Generating
Stations into the SIP could result in violation of a Federal
requirement and it became incumbent upon Hawaii to provide the
necessary assurances that EPA approval of these unconsented source
closure would not amount to a taking without just compensation.\13\
Without any representations from Hawaii to the contrary in the Plan, it
is not possible for the EPA to approve the long-term strategy as
meeting all applicable requirements of the Act because the submission
does not contain necessary assurances that Hawaii ``is not prohibited
by any provision of Federal . . . law'' from executing the unconsented
source closures at the Kanoelehua-Hill and Kahului Generating Stations
with the imprimatur of Federal approval. The long-term strategy in the
2024 Hawaii Regional Haze Plan is not compliant with all applicable
requirements of the CAA and, because of that defect, also does not meet
the requirements of 40 CFR 51.308(f)(2). As a result, the EPA is
disapproving the long-term strategy and associated elements of the
Plan.
---------------------------------------------------------------------------
\13\ See 42 U.S.C. 7410(a)(2)(E)(i).
---------------------------------------------------------------------------
Moreover, the EPA disagrees with commenters' representations that
the lack of the necessary assurances required by the CAA is not a
lawful basis to disapprove the unconsented source closures at the
Kanoelehua-Hill and Kahului Generating Stations on the ground that the
disapproval would conflict with the RHR and 2019 Guidance document.\14\
Specifically, commenters state that the RHR provides for the
consideration of additional factors, including source retirement and
replacement schedules.\15\ Similarly, the comments note that the 2019
Guidance indicates that a State can shorten the remaining useful life
of a source for purposes of a control analysis to account for an
announced retirement but only if the State makes the retirement
federally enforceable. However, neither the RHR nor the CAA's regional
haze provisions reference or contemplate forced closures. Moreover, the
2019 Guidance document referenced by commenters does not address the
situation here. Rather, the 2019 Guidance states that ``[i]f a source
is expected to close by December 31, 2028, under an enforceable
requirement, a State may consider that to be sufficient reason'' not to
select the source for a four-factor analysis.\16\ The 2019 Guidance
also states that, ``[i]n the situation of an enforceable requirement
for the source to cease operation before the end of the useful life of
the controls under consideration, a State may use the enforceable
shutdown date as the end of the remaining useful life.'' \17\ Nothing
in the 2019 Guidance suggests that States may force unconsented
closures as part of a regional haze plan. We therefore do not agree
with comments suggesting that disapproval of the unconsented closures
at the Kanoelehua-Hill and Kahului Generating Stations reflects a
change in the EPA's position with respect to such closures.
Circumstances change, and insisting on the unconsented plant closures
at the Kanoelehua-Hill and Kahului Generating Stations under these
circumstances threatens violations of Federal law, including additional
CAA provisions instructing states and the EPA to account for the
consequences of requirements adopted to promote regional haze goals.
---------------------------------------------------------------------------
\14\ Guidance on Regional Haze State Implementation Plans for
the Second Implementation Period. <a href="https://www.epa.gov/visibility/guidance-regional-haze-state-implementation-plans-second-implementation-period">https://www.epa.gov/visibility/guidance-regional-haze-state-implementation-plans-second-implementation-period</a>. The EPA Office of Air Quality Planning and
Standards, Research Triangle Park (August 20, 2019) (``2019
Guidance'').
\15\ 40 CFR 51.308(f)(2)(iv)(C).
\16\ 2019 Guidance at 20 (emphasis added); see also id. at 42
n.74 (providing further that this discussion applies ``if a source
is certain to close . . . under an enforceable requirement, a State
can reasonably consider that to be sufficient reason to remove the
source from further analysis and reasonable progress
consideration'') (emphasis added).
\17\ Id. at 34.
---------------------------------------------------------------------------
Even if Hawaii had a legitimate reliance interest in the RHR and
the 2019 Guidance document and shortened the remaining useful life of a
source in its control analysis accordingly, the commenters fail to
address that a SIP containing a forced shortened remaining useful life
for a source does not meet all the requirements of the CAA, including
[[Page 31944]]
ensuring that a SIP or SIP revision includes necessary assurances
consistent with CAA section 110(a)(2)(E)(i). The EPA can only approve a
SIP revision if it meets all the requirements of the CAA.\18\ This
includes ensuring that the SIP contains the necessary assurances under
CAA section 110(a)(2)(E)(i) that the implementation of the SIP is not
prohibited by Federal or State law, including here, prohibitions on
uncompensated takings of property interests without consent. Without
these assurances, the EPA lacks authority to approve the long-term
strategy containing unconsented closure provisions for the Kanoelehua-
Hill and Kahului Generating Stations.
---------------------------------------------------------------------------
\18\ 42 U.S.C. 7410(k)(3).
---------------------------------------------------------------------------
Finally, some commenters assert that the EPA inappropriately relied
on Cedar Point Nursery v. Hassid, 594 U.S. 139 (2021) and Horne v.
Department of Agriculture, 576 U.S. 351 (2015), which involved physical
per se takings, to argue that a taking cannot occur when a source
voluntarily agrees to a closure and that the cases are inapplicable to
the circumstances in Hawaii, positing that there is not a physical or
per se taking. For the reasons described elsewhere in this document and
the RTC, we do not agree that the closures in the Plan are voluntary.
Moreover, commenters misunderstand these cases. Cedar Point Nursery,
for example, established that a per se taking may occur when the
government deprives property owners of exclusive rights to even a
portion of their property, in that case, by forcing owners to allow
union organizers onto the property for relatively brief periods.
Commenters do not explain or point to necessary assurances provided by
Hawaii in the Plan that approving unconsented closure of units at the
Kanoelehua-Hill and Kahului Generating Stations would not similarly
involve or amount to any form of per se taking.
Some commenters cited to Lucas v. South Carolina Coastal Council in
support of their assessment that because approval of the closure
deadline into Federal law would not deprive the utility of ``all
economically beneficial or productive use of land,'' compensation would
not be required under the Federal Takings Clause.\19\ But Lucas applies
only to instances of total deprivation of use, and it relied on
``background principles of State's law of property and nuisance,''
which are not the issues in this action.\20\ An unconsented deadline to
close electric generating units reasonably appears to be the equivalent
to a per se taking, permanently restricting Hawaiian Electric's right
over its property. Critically, the EPA is not adjudicating
constitutional claims in this final rule. Rather, we are finding that
Hawaii failed to provide necessary assurances that the unconsented
closure permit provisions for the Kanoelehua-Hill and Kahului
Generating Stations are not unlawful.
---------------------------------------------------------------------------
\19\ 505 U.S. 1003 (1992).
\20\ Id. at 1029.
---------------------------------------------------------------------------
We recognize the U.S. Supreme Court has explained in several cases
that there are two categories of action that can result in a per se
taking: (1) where the government requires an owner to suffer a
permanent physical invasion of property; and (2) when regulations
completely deprive an owner of ``all economically beneficial us[e]'' of
property.\21\ In this case, we disagree with commenters that because
Horne and Cedar Point involve physical takings, they are inapplicable.
Under the Court's jurisprudence, a physical taking occurs when the
government physically appropriates or occupies private property for
public use. As explained below, the Court in Horne and Cedar Point
addressed questions that are pertinent to the facts at issue in the
Hawaii action.
---------------------------------------------------------------------------
\21\ See Horne, 576 U.S. at 351; Tahoe-Sierra Pres. Council,
Inc. v. Tahoe Reg'l Planning Agency, 535 U.S. 302, 330 (2002)
(citing Lucas, 505 U.S. at 1019-20).
---------------------------------------------------------------------------
According to commenters, closure deadlines are not a physical
appropriation of property for various reasons. In Cedar Point, a
government regulation restricted an owner's ``right to exclude'' from
the owner's property.\22\ The Court emphasized the importance of this
right, and how the appropriation of the right to physically invade
private property requires compensation.\23\ Because incorporating the
unconsented closures at the Kanoelehua-Hill and Kahului Generating
Stations into the SIP would make the unconsented closures federally
enforceable, this could cause the permit provisions to appropriate the
Company's right to control the operation of its facilities. The CAA and
RHR do not require sources to close to meet reasonable progress. Hawaii
did not provide necessary assurances in the Plan that the enforceable
closures at the Kanoelehua-Hill and Kahului Generating Stations would
not involve the type of property right deprivation at issue in Cedar
Point.
---------------------------------------------------------------------------
\22\ Cedar Point Nursery, 594 U.S. at 139.
\23\ Id. at 158.
---------------------------------------------------------------------------
In Horne, the Court determined that whenever there is a physical
appropriation, it is not right to question whether the appropriation
deprives the owner of all economically valuable use of the item
taken.\24\ This question was also addressed in Tahoe, where the Court
determined that if the government takes possession of an interest in
property for public purpose, ``it has a categorical duty to compensate
the former owner, regardless of whether the interest that is taken
constitutes an entire parcel or merely a part thereof.'' \25\
Similarly, the unconsented closure of Hawaiian Electric's units would
force the utility to change the use of its property--which would be
comparable to the government deciding how to dispose of the goods set
aside in Horne--even though a source closure is not a statutory or
regulatory requirement under CAA section 169A and 40 CFR 51.308(f).
Thus, the EPA disagrees with commenters' proposition that Cedar Point
and Horne are inapplicable to the unconsented closures at the
Kanoelehua-Hill and Kahului Generating Stations in the 2024 Hawaii
Regional Haze Plan.
---------------------------------------------------------------------------
\24\ Horne, 576 U.S. at 363.
\25\ Tahoe-Sierra Pres. Council, 535 U.S. at 323.
---------------------------------------------------------------------------
As already discussed, it is reasonable to conclude that the facts
at issue involve a per se taking. Therefore, the framework of Penn
Central,\26\ which governs regulatory takings, is likely not directly
relevant to this final action, as ``[i]t is `inappropriate to treat
cases involving physical takings as controlling precedents for the
evaluation of a claim that there has been a ``regulatory taking,'' and
vice versa.' '' \27\ Nonetheless, for completeness, we also consider
whether the unconsented closure of the Kanoelehua-Hill and Kahului
units, absent necessary assurances under CAA section 110(a)(2)(E)(i),
could constitute a regulatory taking.
---------------------------------------------------------------------------
\26\ Penn Central, 438 U.S. 104 (1978).
\27\ Tahoe-Sierra Pres. Council, 535 U.S. at 323.
---------------------------------------------------------------------------
Without necessary assurances under CAA section 110(a)(2)(E)(i),
there is no demonstration that neither a total nor partial regulatory
taking will occur from implementation of the unconsented closure
provisions for Kanoelehua-Hill and Kahului Generating Stations
contained in the 2024 Hawaii Regional Haze Plan. A total regulatory
taking would occur if the closure would fully deprive the source owner
of all economic use of the land under the standard described in
Lucas.\28\ ``The general rule at least is, that while property may be
regulated to a certain extent, if regulation goes too far it will be
recognized as a taking.'' \29\ The U.S.
[[Page 31945]]
Supreme Court has defined ``a regulation which `denies all economically
beneficial or productive use of land' will require compensation under
the Takings Clause'' and is a ``regulation that goes too far.'' \30\
Without necessary assurances under CAA section 110(a)(2)(E)(i), it is
not possible for the EPA to ensure that approval of the unconsented
closures at the Kanoelehua-Hill and Kahului Generating Stations will
not constitute a regulatory taking under the U.S. Constitution, given
the administrative record. For this reason, the EPA is authorized under
the CAA to disapprove Hawaii's long-term strategy to avoid a takings
situation. The effect of such a taking could result in permanent
deprivation of property and would be a textbook example of a
``regulation going too far.'' \31\
---------------------------------------------------------------------------
\28\ Lucas, 505 U.S. at 1003.
\29\ Pa. Coal Co. v. Mahon, 260 U.S. 393, 415 (1922).
\30\ Palazzolo v. Rhode Island, 533 U.S. 606, 617 (2001)
(quoting Lucas, 505 U.S. at 1015).
\31\ Mahon, 260 U.S. at 415.
---------------------------------------------------------------------------
A partial regulatory taking results when a regulation hinders the
use of property but does not deprive the owner of all economically
beneficial use. Here, the analysis involves considering whether
approving the closures in the long-term strategy into the SIP results
in (1) a significant economic impact on the claimants; (2) interference
with distinct investment-backed expectations; and (3) shares
characteristics with similar governmental actions considered
takings.\32\ Without necessary assurances to the contrary in the Plan,
it is not possible for the EPA to ensure that approval of the long-term
strategy containing unconsented closure provisions will not constitute
a partial regulatory taking under the U.S. Constitution, given the
administrative record.
---------------------------------------------------------------------------
\32\ Penn Central, 438 U.S. at 124.
---------------------------------------------------------------------------
Additionally, building on the analysis earlier in this section, the
EPA disagrees with commenters' conclusion that the Penn Central test
does not support a determination that a partial regulatory taking would
result if the EPA codified Hawaii's unconsented closure provisions for
the Kanoelehua-Hill and Kahului Generating Stations. A use restriction
may constitute a taking if not reasonably necessary to the effectuation
of a substantial public purpose or if it has an unduly harsh impact
upon the owner's use of the property.\33\ First, contrary to
commenters` statements, the purpose of the CAA's regional haze
provisions is to address visibility impairment in Class I areas, not to
address public health. Moreover, the unconsented closure of units at
the Kanoelehua-Hill and Kahului Generating Stations could threaten grid
reliability on the islands of Hawaii and Maui.\34\
---------------------------------------------------------------------------
\33\ Id. at 127 (internal citation omitted).
\34\ Letter dated August 29, 2025, from Karin Kimura, Director,
Environmental Division, Hawaiian Electric, to Josh F.W. Cook,
Regional Administrator, EPA Region 9, pp. 1-2.
---------------------------------------------------------------------------
Second, the economic impact of the government regulation ``is
determined by comparing the total value of the affected property before
and after the government action.'' \35\ Here, if the EPA approves
unconsented closure requirements for the Kanoelehua-Hill and Kahului
units into the SIP, they would be federally enforceable, and would
diminish the units' economically beneficial use and value. Thus, after
considering the Penn Central factors in relation to the unconsented
closures of the Kanoelehua-Hill and Kahului Generating units, it is not
possible for the EPA to ensure that approval of these unconsented
closures will not constitute a partial regulatory taking under the U.S.
Constitution. An uncompensated partial regulatory taking violates
Federal law and without the CAA section 110(a)(2)(E)(i) necessary
assurances to the contrary, the EPA does not have the authority to
approve these uncompensated unconsented closures into the SIP.
---------------------------------------------------------------------------
\35\ Colony Cove Props., LLC v. City of Carson, 888 F.3d 445,
451 (9th Cir. 2018).
---------------------------------------------------------------------------
The EPA shall approve a SIP revision as a whole only if it meets
all applicable CAA requirements.\36\ Given the necessary assurances
requirement in CAA section 110(a)(2)(E)(i) and the withdrawal of
consent from Hawaiian Electric for closure of its units, Hawaii is
required to provide necessary assurances to the EPA to ensure that
approval of the unconsented closure provisions at the Kanoelehua-Hill
and Kahului units is not prohibited by Federal law including the
Takings Clause of the U.S. Constitution. However, Hawaii did not
provide as part of the Plan the necessary assurances required by CAA
section 110(a)(2)(E)(i) that approval of the long-term strategy
containing these unconsented closure provisions will not violate
Federal law by effecting uncompensated takings per se or a partial or
full regulatory takings. Because the unconsented closures at the
Kanoelehua-Hill and Kahului Generating Stations are not approvable
under CAA section 110(a)(2)(E)(i), we are disapproving Hawaii's long-
term strategy and related elements of the Plan.
---------------------------------------------------------------------------
\36\ 42 U.S.C. 7410(k)(3).
---------------------------------------------------------------------------
B. Comments Regarding Grid Reliability
Commenters asserted that grid reliability is not a relevant
consideration for regional haze plans and that Hawaiian Electric had
not adequately substantiated its concerns regarding grid reliability.
As noted in the proposal, the EPA's partial disapproval of the 2024
Hawaii Regional Haze Plan is not based on Hawaii's consideration of the
energy impacts associated with the source closures.\37\ Nonetheless, we
maintain that Hawaii did not independently assess the source closures
under the ``energy and non-air quality environmental impacts of
compliance'' statutory factor, including impacts on maintaining grid
reliability and Hawaiian Electric's ability to meet energy demand.
---------------------------------------------------------------------------
\37\ 91 FR 7204, 7218 (February 17, 2026).
---------------------------------------------------------------------------
Despite the shortcomings in Hawaii's analysis of grid reliability
concerns, and the significant concerns related to grid reliability if
the contested closure is enacted, the EPA recognizes that our prior
statements may have generated a reliance interest that led to how
Hawaii developed the Plan.\38\ For example, the EPA's 2019 Guidance
provided a limited scope of considerations generally involved under the
``energy and non-air quality factor'' and it was reasonable for Hawaii
to rely on the interpretation provided in that guidance-although the
2019 Guidance did not prohibit the consideration of grid reliability.
---------------------------------------------------------------------------
\38\ See, e.g., Kentucky v. EPA, 123 F.4th 447, 467-471 (4th
Cir. 2025).
---------------------------------------------------------------------------
C. Comments Regarding ``Control Measures'' under CAA section 110 and
169A
One commenter opposed our proposed finding that the best reading of
the phrase ``control measures'' in CAA section 110(a)(2)(A) and
169A(b)(2) does not encompass the authority to force a source to close,
or to close on timeframe not agreed to by the owner/operator. Following
our careful consideration of these comments, the EPA is no longer
relying on the rationale that forced source closures contained in the
2024 Hawaii Regional Haze Plan are inconsistent with ``control
measures'' in CAA sections 110 and 169A and that rationale is not an
independent basis for our final disapproval of the 2024 Hawaii Regional
Haze Plan. However, the EPA is not taking the position in this rule
that forced source closures are allowed under the CAA. We note that the
use of unconsented closure deadlines is different in kind from the
practice of recognizing consensual, certain closures in the near future
as a basis for limiting
[[Page 31946]]
the analysis of a source to a shorter period of remaining useful life.
Instead, as explained in this document and the RTC, the use of forced
closures to satisfy regional haze requirements is, at minimum, legally
suspect under the CAA and other applicable sources of Federal law.
III. Final Action
For the reasons stated in the proposal, the RTC document and in
this document, we are partially approving and partially disapproving
the 2024 Hawaii Regional Haze Plan. Specifically, we are approving the
elements of the 2024 Hawaii Regional Haze Plan related to requirements
contained in 40 CFR 51.308(f)(1), (f)(4) through (6), and (g)(1)
through (5) and disapproving the elements of the 2024 Hawaii Regional
Haze Plan related to requirements contained in 40 CFR 51.308(f)(2),
(3), and (i)(2) through (4). A FIP or an approved SIP revision will be
required to satisfy these outstanding regional haze rule
requirements.\39\
---------------------------------------------------------------------------
\39\ 42 U.S.C. 7410(c).
---------------------------------------------------------------------------
IV. Statutory and Executive Order Reviews
Additional information about these statutes and Executive Orders
can be found at <a href="https://www.epa.gov/laws-regulations/laws-and-executive-orders">https://www.epa.gov/laws-regulations/laws-and-executive-orders</a>.
A. Executive Order 12866: Regulatory Planning and Review and Executive
Order 13563: Improving Regulation and Regulatory Review
This action is not a significant regulatory action and was
therefore not submitted to the Office of Management and Budget (OMB)
for review.
B. Executive Order 14192: Unleashing Prosperity Through Deregulation
This action is not an Executive Order 14192 regulatory action
because this action is not significant under Executive Order 12866.
C. Paperwork Reduction Act (PRA)
This action does not impose an information collection burden under
the PRA because this action does not impose additional requirements
beyond those imposed by State law.
D. Regulatory Flexibility Act (RFA)
I certify that this action will not have a significant economic
impact on a substantial number of small entities under the RFA. This
action will not impose any requirements on small entities beyond those
imposed by State law.
E. Unfunded Mandates Reform Act (UMRA)
This action does not contain any unfunded mandate as described in
UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect
small governments. This action does not impose additional requirements
beyond those imposed by State law. Accordingly, no additional costs to
State, local, or Tribal governments, or to the private sector, will
result from this action.
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: Coordination With Indian Tribal Governments
This action does not have Tribal implications, as specified in
Executive Order 13175, because the SIP is not approved to apply on any
Indian reservation land or in any other area where the EPA or an Indian
Tribe has demonstrated that a Tribe has jurisdiction, and will not
impose substantial direct costs on Tribal governments or preempt Tribal
law. Thus, Executive Order 13175 does not apply to this action.
H. Executive Order 13045: Protection of Children From Environmental
Health Risks and Safety Risks
The EPA interprets Executive Order 13045 as applying only to those
regulatory actions that concern environmental 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. Therefore, this action is not
subject to Executive Order 13045 because it merely partially approves
and partially disapproves State law as meeting Federal requirements.
Furthermore, the EPA's Policy on Children's Health does not apply to
this action.
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 (NTTAA)
Section 12(d) of the NTTAA directs the EPA to use voluntary
consensus standards in its regulatory activities unless to do so would
be inconsistent with applicable law or otherwise impractical. The EPA
believes that this action is not subject to the requirements of section
12(d) of the NTTAA because application of those requirements would be
inconsistent with the CAA.
K. Congressional Review Act (CRA)
This action is subject to the 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).
L. Judicial Review
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 July 28, 2026 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 CAA section 307(b)(2).
List of Subjects in 40 CFR part 52
Environmental protection, Air pollution control, Incorporation by
reference, Nitrogen dioxide, Particulate matter, Recordkeeping and
reporting, Sulfur oxides.
Dated: May 15, 2026.
Michael Martucci,
Acting Regional Administrator, Region IX.
For the reasons stated in the preamble, the EPA amends chapter I,
title 40 of the Code of Federal Regulations 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 M--Hawaii
0
2. In Sec. 52.620, amend the table in paragraph (e), by adding an
entry for ``Hawaii State Department of Health Regional Haze State
Implementation Plan, Revision 1, Second Planning
[[Page 31947]]
Period excluding the Executive Summary, Chapters 2.2, 5, 6, 7, 8, and
9.5, and 10 and the Appendices'' immediately after the entry for
``Hawaii State Department of Health 5-Year Regional Haze Progress
Report for Federal Implementation Plan, excluding Appendix H, I and J''
to read as follows:
Sec. 52.620 Identification of plan.
* * * * *
(e) * * *
EPA Approved Hawaii Nonregulatory Provisions and Quasi-Regulatory Measures
----------------------------------------------------------------------------------------------------------------
Applicable
Name of SIP provision geographic or State EPA approval date Explanation
nonattainment area submittal date
----------------------------------------------------------------------------------------------------------------
* * * * * * *
State of Hawaii Air Pollution Control Implementation Plans for Regional Haze
* * * * * * *
Hawaii State Department of Health State-wide......... 08/02/2024 05/29/2026, 91 FR ...................
Regional Haze State [INSERT FEDERAL
Implementation Plan, Revision 1, REGISTER PAGE
Second Planning Period excluding WHERE THE DOCUMENT
the Executive Summary, Chapters BEGINS].
2.2, 5, 6, 7, 8, and 9.5, and 10
and the Appendices.
* * * * * * *
----------------------------------------------------------------------------------------------------------------
0
3. Amend Sec. 52.633 by adding paragraph (f) to read as follows:
Sec. 52.633 Visibility protection.
* * * * *
(f) Disapproval. On August 2, 2024, the Hawaii State Department of
Health submitted the ``Hawaii State Department of Health Regional Haze
State Implementation Plan, Revision 1, Second Planning Period.''
(1) The following portions of the ``Hawaii State Department of
Health Regional Haze State Implementation Plan, Revision 1, Second
Planning Period'' are disapproved because they do not meet the
applicable requirements of Clean Air Act sections 169A and 169B and the
Regional Haze Rule in 40 CFR 51.301 through 51.308.
(i) Executive Summary;
(ii) Chapters 5, 6, 7, 8, and 9.5; and
(iii) Appendices K, P, V, and X.
(2) [Reserved]
[FR Doc. 2026-10754 Filed 5-28-26; 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 May 29, 2026.
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.