UNITED STATES DISTRICT COURT 

 FOR THE DISTRICT OF HAWAII 

____________________________________ 

 ) 

PRESERVE PEPE‘EKEO HEALTH ) 

AND ENVIRONMENT, a Hawai‘i ) 

nonprofit unincorporated association ) 

 ) 

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 (“CAA”), 42 U.S.C. § 7604(a)(2), 

alleging that Defendant Gina McCarthy, in her official capacity as Administrator, United States 

Environmental Protection Agency (“EPA”), failed to perform a non-discretionary 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 operation 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 expensive and protracted litigation; 
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 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 Consent Decree, finds that the Consent Decree is 

fair, reasonable, in the public interest, and consistent with the CAA, 42 U.S.C. §§ 7401 et seq.; 

 NOW THEREFORE, before the taking of testimony, without trial or determination of any 

issue of fact or law, and upon the consent of the Parties, it is hereby 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 delay 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 granting 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 extended until sixty (60) days after the 

entry of this Consent Decree by this Court. During this time, the Parties shall seek to resolve 

informally any claim for costs of litigation, including attorneys’ fees, and if they cannot, will 

submit that issue to this 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, including attorneys’ fees. 
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 5. Extension of the deadline set forth herein may be effectuated by (a) written 

stipulation of the Parties with notice to the Court, or (b) by the Court following motion of any 

party to this Consent Decree, pursuant to the Federal Rules of Civil Procedure, and upon 

consideration of any response by the non-moving party. 

 6. The Parties recognize that the 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 failure to comply with the terms of this Consent 

Decree, and any deadlines occurring 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 through modification of this 

Consent Decree pursuant to Paragraph 5. 

 7. PPHE and EPA shall not challenge the terms of this Consent Decree or this Court’s 

jurisdiction to enter and enforce this Consent Decree. 

8. PPHE and EPA agree that this Consent Decree 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-BMK (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 Decree shall be construed to limit 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 discretion to alter, amend, or revise any responses 
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or final actions contemplated by this Consent Decree. EPA’s obligation to perform the actions 

specified in Paragraphs 1, 2, and 3 of this Consent Decree by the time specified therein does not 

constitute a limitation or modification 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 upon 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 confer 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 requirement that EPA obligate or pay 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 
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johnh@horaklllc.com 

For Defendants: 

Chief, Environmental Defense Section 

Re: DJ # 90-5-2-4-20595 

Environment and Natural 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 dispute between the Parties concerning the interpretation or 

implementation of any aspect of this Consent Decree, the disputing Party shall provide the other 

Party with a written notice outlining 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 filed 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 matter shall be dismissed with prejudice. The Parties may either 
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jointly notify the Court that the Consent Decree should be terminated and the case dismissed, or 

EPA may so notify the Court by motion. If EPA notifies the Court 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 section 113(g), 42 U.S.C. § 7413(g). EPA shall 

promptly submit a public notice of this Consent Decree to the Federal Register for publication and 

public comment after lodging this Consent Decree with the Court. After this Consent Decree has 

undergone an opportunity for notice and comment, the Administrator and/or the Attorney General, 

as appropriate, shall promptly consider any such written comments in determining whether to 

withdraw or withhold consent to this Consent Decree, in accordance with section 113(g) of the 

CAA. If the federal government elects 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 enter the Consent Decree, the obligations set forth in this Consent 

Decree are null and void. 

 18. It is hereby expressly understood and agreed that this 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 inapplicable in any dispute concerning the terms, 

meaning, or interpretation of this Consent Decree. 

 19. The undersigned representative of each Party certifies that he or she is fully 

authorized to bind that Party to the terms of this Consent Decree. 
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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: _________________________