UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAII

____________________________________ ) PRESERVE PEPE‘EKEO HEALTH ) AND ENVIRONMENT, a Hawai‘i ) nonprofit unincorporated a ssociation ) ) Plaintiff, ) ) v. ) CIVIL NO. 1:15-CV-00412-ACK-BMK ) GINA MCCARTHY, UNITED ) STATES ENVIRONMENTAL ) PROTECTION AGENCY ) Administrator, ) ) Defendant. ) ____________________________________) CONSENT DECREE WHEREAS, Plaintiff Preserve Pepe‘ekeo Health and Environment (“PPHE”) filed this action pursuant to section 304(a) (2) of the Clean Air Act (“C AA”), 42 U.S.C. § 7604(a)(2), alleging that Defendant Gina McCa rthy, in her official capacity as Administrator, United States Environmental Protection Agency (“EPA”), faile d to perform a non-disc retionary duty under CAA § 505(b)(2), 42 U.S.C. § 7661d(b)(2), to grant or deny a Title V Petition submitted by PPHE on September 13, 2014, requesting that EPA review a CAA Title V permit (“Permit”) issued by the Environmental Management Division of the Clean Air Branch (“CAB”), Hawaii Department of Health (“HDOH”), to Hu Honua Bioenergy, LLC, authorizing the operat ion of the Hu Honua Bioenergy Facility located in Pepe‘ekeo, Hawaii; WHEREAS, PPHE and EPA (collectively “the Parties”) wish to effect a settlement of the above-captioned matter without expens ive and protracted litigation;-2- WHEREAS, the Parties consider this Consent Decree to be an adequate and equitable resolution of the claims in the above-captioned matter; WHEREAS, the Court, by entering this Consen t Decree, finds that the Consent Decree is fair, reasonable, in the public interest, and consistent with th e CAA, 42 U.S.C. §§ 7401 et seq.; NOW THEREFORE, before the taking of tes timony, without trial or determination of any issue of fact or law, and upon the consent of the Parties, it is here by ORDERED, ADJUDGED, and DECREED that: 1. On or before September 16, 2016, EPA shall sign a response to PPHE’s CAA Title V Petition on the Permit, pursuant to 42 U.S.C. § 7661d(b)(2). 2. Following signature of such response to PPHE’s Title V Petition, EPA shall expeditiously deliver notice of EPA’s response to the Office of the Federal Register for publication. Following such transmission, EPA shall not take any step (other than as necessary to correct any typographical error or other errors in form) to dela y or otherwise interfere with publication of such notice(s) in the Federal Register. 3. If EPA’s response to PPHE’s Title V Petition includes the gran ting of any portion of either petition in whole or in part, EPA shall promptly transmit its response to the CAB, HDOH. 4. The deadline for filing a motion for costs of litigation, including attorneys’ fees, incurred prior to entry of this Consent Decree is hereby extende d until sixty (60) days after the entry of this Consent Decree by th is Court. During this time, th e Parties shall seek to resolve informally any claim for costs of litigation, in cluding attorneys’ fees, and if they cannot, will submit that issue to th is Court for resolution. The United States does not waive or limit any defenses it may have to such claim. This Court shall retain jurisdiction to resolve any requests for costs of litigation, includ ing attorneys’ fees.-3- 5. Extension of the deadline set forth herein may be effectuated by (a) written stipulation of the Parties with notice to the C ourt, or (b) by the Court following motion of any party to this Consent Decree, pursuant to th e Federal Rules of Civ il Procedure, and upon consideration of any response by the non-moving party. 6. The Parties recognize that th e possibility exists that a lapse in the appropriations that fund EPA could delay compliance with the timetables contained in this Consent Decree. Should a delay occur due to a lapse in appropriations, any resulting failure to meet the timetables set forth herein shall not constitute a fa ilure to comply with the terms of this Consent Decree, and any deadlines occurri ng within one hundred twenty (120) days of the termination of the delay shall be automatically extended one day for each day of the delay. Nothing in this paragraph shall preclude EPA from seeking an additional extension thr ough modification of this Consent Decree pursuant to Paragraph 5. 7. PPHE and EPA shall not chal lenge the terms of this Consent Decree or this Court’s jurisdiction to enter and enfo rce this Consent Decree. 8. PPHE and EPA agree that this Consent Decr ee shall constitute a complete and final settlement of all claims that PPHE has asserted against the United States, including EPA, under any provision of law in connection with Preserve Pepe‘ekeo Health and Environment v. McCarthy, Civil Case No. 1:15-CV-00412-ACK-BM K (D. Haw.), except as provided in Paragraph 4 of this Consent Decree. PPHE therefore discharges and covenants not to sue the United States, including EPA, for any such claims. 9. Nothing in this Consent D ecree shall be construed to lim it or modify any discretion accorded EPA by the CAA or by general principles of administrative law in taking the actions that are the subject of this Consent Decree, including di scretion to alter, amend, or revise any responses-4- or final actions contemplated by this Consent Decree. EPA’s ob ligation to perform the actions specified in Paragraphs 1, 2, and 3 of this Cons ent Decree by the time specified therein does not constitute a limitation or modifi cation of EPA’s discretion within the meaning of this paragraph. 10. Nothing in this Consent Decree shall be construed as an admission of any issue of fact or law nor as a waiver or limitation regarding any claim or defense, on any grounds, related to any final action EPA may take with respect to the Permit. 11. Nothing in this Consent Decree shall be construed to confer u pon the District Court jurisdiction to review any final decision made by EPA pursuant to this Consent Decree. Nothing in this Consent Decree shall be construed to conf er upon the District Court jurisdiction to review any issues that are within the exclusive jurisdiction of the United States Court of Appeals pursuant to CAA section 307(b)(1), 42 U.S.C. § 7607(b)(1). Nothing in the terms of this Consent Decree shall be construed to waive any remedies or defenses the Parties may have under CAA section 307(b)(1), 42 U.S.C. § 7607(b)(1). 12. The obligations imposed upon EPA under this Consent Decree can only be undertaken using appropriated funds . No provision of this Consent Decree shall be interpreted as or constitute a commitment or re quirement that EPA obligate or pa y funds in contravention of the Anti-Deficiency Act, 31 U.S.C. § 1341, or any other applicable provision of law. 13. Any notices required or provided for by this Consent Decree shall be made in writing and sent to the following: For Plaintiff: John G. Horak Horak, LLLC P.O. Box 10374 Honolulu, HI 96816 Tel: 808-735-5366 Fax: 808-735-5399-5- johnh@horaklllc.com For Defendants: Chief, Environmental Defense Section Re: DJ # 90-5-2-4-20595 Environment and Natura l Resources Division United States Department of Justice P.O. Box 7611 Washington, DC 20044 Tel: (202) 514-2640 Fax: (202) 514-8865 Anthony Moffa Office of General Counsel United States Environmental Protection Agency William Jefferson Clinton Building 1200 Pennsylvania Avenue, N. W. Mail Code: 2322A Washington, DC 20460 Tel: (202) 564-1087 14. In the event of a disp ute between the Parties con cerning the interpretation or implementation of any aspect of this Consent De cree, the disputing Party shall provide the other Party with a written notice outlini ng the nature of the dispute and requesting informal negotiations. If the Parties cannot reach an agreed-upon resolution within twenty (20) business days after receipt of the notice, any party may move the Court to resolve the dispute. 15. No motion or other proceeding seeking to enforce this Consent Decree or for contempt of Court shall be f iled unless PPHE has followed the procedure set forth in Paragraph
14. 16. The Court shall retain jurisdiction to determine and effect compliance with this Consent Decree. When EPA’s obligations under Paragraphs 1 through 3 of this Consent Decree have been completed, and PPHE’s claim for costs of litigation has been resolved pursuant to Paragraph 4, the above-captioned ma tter shall be dismissed with prej udice. The Parties may either-6- jointly notify the Court that the Consent Decree should be terminat ed and the case dismissed, or EPA may so notify the Court by motion. If EPA notifies the C ourt by motion, then PPHE shall have twenty (20) days in which to respond. 17. The Parties agree and acknowledge that before this Consent Decree can be finalized and entered by the Court, EPA must provide notice in the Federal Register and an opportunity for comment pursuant to CAA sec tion 113(g), 42 U.S.C. § 7413(g). EPA shall promptly submit a public notice of this Consent D ecree to the Federal Regi ster for publication and public comment after lodging this C onsent Decree with the Court. After this Consent Decree has undergone an opportunity for notice and comment, th e Administrator and/or the Attorney General, as appropriate, shall promptly consider any su ch written comments in determining whether to withdraw or withhold consent to this Consent Decree, in accordance with se ction 113(g) of the CAA. If the federal government el ects not to withdraw or withhold consent to this Consent Decree, the Parties promptly shall file a motion that requests the Court to enter this Consent Decree. If for any reason the Court does not ente r the Consent Decree, the obligati ons set forth in this Consent Decree are null and void. 18. It is hereby expressly un derstood and agreed that th is Consent Decree was jointly drafted by PPHE and EPA and that any and all rules of construction to the effect that ambiguity is construed against the drafting party shall be ina pplicable in any dispute concerning the terms, meaning, or interpretation of this Consent Decree. 19. The undersigned representative of each Pa rty certifies that he or she is fully authorized to bind that Party to the terms of this Consent Decree.-7- SO ORDERED on this ___ day of _________________, 2016.

_________________________________ HON. Alan C. Kay United States District Judge SO AGREED:
FOR PLAINTIFF John G. Horak Horak, LLLC P.O. Box 10374 Honolulu, HI 96816 Tel: 808-735-5366 Fax: 808-735-5399 johnh@horaklllc.com Dated: _________________________
FOR DEFENDANT JOHN C. CRUDEN Assistant Attorney General Environment & Natural Resources Division

Debra J. Carfora United States Department of Justice Environmental Defense Section P.O. Box 7611 Washington, DC 20044 Tel: (202) 514-2640 Fax: (202) 514-8865 debra.carfora@usdoj.gov Dated: _________________________