IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF HAWAI’I 

PRESERVE PEPE’EKEO HEALTH AND 

ENVIRONMENT, a Hawai’i nonprofit 

unincorporated association, 

 

 Plaintiff, 

 

 v. 

 

LISA P. JACKSON, in her official capacity 

as Administrator of the United States 

Environmental Protection Agency, 

 

 Defendant. 

 Case No. CV 12 00520 ACK-RLP 

CONSENT DECREE 

CONSENT DECREE 

 WHEREAS, on September 19, 2012, Plaintiff Preserve Pepe’ekeo Health And 

Environment filed this action pursuant to § 304(a)(2) of the Clean Air Act (“CAA”), 42 U.S.C. § 

7604(a)(2), alleging that Defendant Lisa P. Jackson, in her official capacity as Administrator of 

the United States Environmental Protection Agency (“EPA”), failed to perform a nondiscretionary duty under CAA § 505(b)(2), 42 U.S.C. § 7661d(b)(2), to grant or deny a petition 

timely submitted by Plaintiff on August 29, 2011, requesting that EPA object to a CAA permit 

issued by the Hawai’i Department of Health to Hu Honua to operate a Bioenergy Facility, a 

power generating facility that is proposed to be built in Pepe’ekeo, Hawai’i, and that such 

alleged failure to act on Plaintiff’s Petition within 60 days pursuant to CAA § 505(b)(2), 42 

U.S.C. § 7661d(b)(2), is actionable under § 304(a)(2) of the CAA, 42 U.S.C. § 7604(a)(2); 

 WHEREAS, Plaintiff 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, by entering into this Consent Decree, do not waive or limit any 

claim, remedy, or defense, on any grounds, related to any final EPA action; 

 WHEREAS, the Parties consider this Decree to be an adequate and equitable resolution 

of the claims in the above-captioned matter; 

 WHEREAS, the Court, by entering this Decree, finds that the 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. This Court has subject matter jurisdiction over the claims set forth in the 

Complaint related to Plaintiff’s administrative Petition on the Permit dated August 29, 2011, and 

to order the relief contained in this Decree. Venue is proper in the United States District Court, 

District of Hawai’i. 

 2. By August 7, 2013, or within 30 days of the entry of this Consent Decree, 

whichever is later, EPA shall sign a decision or decisions, pursuant to 42 U.S.C. § 7661d(b)(2), 

responding to Plaintiff’s CAA Title V Petition dated August 29, 2011, on the Hu Honua 

Bioenergy Facility Title V Permit (“Permit”). 

 3. Following signature of such response to Plaintiff’s Title V Petition, EPA shall 

expeditiously deliver notice of such action on the Petition to the Office of the Federal Register 

for publication. EPA shall also promptly transmit its determination to Plaintiff, and, if such 

determination contains an objection in whole or in part, to the State of Hawai’i, Department of 

Health. 
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 4. Any provision of this Decree may be modified by: (a) written stipulation of the 

Parties with notice to the Court; or (b) by the Court following motion of any party to this Decree 

for good cause shown, pursuant to the Federal Rules of Civil Procedure, and upon consideration 

of any opposition by the non-moving party and any reply. 

 5. Plaintiff and EPA shall not challenge the terms of this Decree or this Court’s 

jurisdiction to enter and enforce this Decree. Upon entry, no party shall challenge the terms of 

this Decree. 

 6. The deadline for filing a motion for costs of litigation (including attorneys’ fees) 

for activities performed prior to execution of this Decree is hereby extended until ninety (90) 

days after the Decree is entered by the Court. During this 90-day period, 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 the 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 reasonable attorneys’ fees. 

 7. Nothing in this 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 

which are the subject of this Decree, including discretion to alter, amend, or revise any responses 

or final actions contemplated by this Decree. EPA’s obligation to perform the actions specified 

in Paragraphs 2 and 3 by the time specified therein does not constitute a limitation or 

modification of EPA’s discretion within the meaning of this paragraph. 

 8. Nothing in this Decree shall be construed as an admission of any issue of fact or 

law or to waive or limit any claim or defense, on any grounds, related to any final action EPA 

may take with respect to the Permit. 
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 9. Nothing in this Decree shall be construed to confer upon the district court 

jurisdiction to review any decision made by EPA pursuant to this Decree. Nothing in this 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 §§ 

307(b)(1), 42 U.S.C. § 7607(b)(1), and § 505(b)(2), 42 U.S.C. § 7661d. Nothing in the terms of 

this Decree shall be construed to waive any claims, remedies or defenses the Parties may have 

under CAA § 307(b)(1), 42 U.S.C. § 7607(b)(1). 

 10. The obligations imposed upon EPA under this Decree can only be undertaken 

using appropriated funds. No provision of this Decree shall be interpreted as or constitute a 

commitment or requirement that EPA obligate or pay funds in contravention of the AntiDeficiency Act, 31 U.S.C. § 1341, or any other applicable provision of law. 

 11. Any notices required or provided for by this Decree shall be made in writing, via 

facsimile or email, with hard copy by U.S. Mail or other means and sent to the following: 

For Plaintiffs: 

Marc Chytilo 

LAW OFFICE OF MARC CHYTILO 

P.O. Box 92233 

Santa Barbara, CA 93190 

Telephone: 805-682-0585 

Fax: 805-682-2379 

marc@lomcsb.com

John G. Horak 

HORAK, LLC 

P.O. Box 10374 

Honolulu, HI 96816 

Telephone: (808) 735-5366 

Fax: (808) 735-5399 

johnh@horaklllc.com 

For Defendants: 
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Kim Smaczniak 

United States Department of Justice 

ENRD/Environmental Defense Section 

P.O. Box 7611 

Washington, DC 20044 

Ph. (202) 514-0165 

Fax (202) 514-8865 

kim.smaczniak@usdoj.gov

Susan Stahle 

Air and Radiation Law Office (Rm 7502B) 

Office of General Counsel 

U.S. Environmental Protection Agency 

1200 Pennsylvania Avenue, NW (ARN: MC 2344A) 

Washington, D.C. 20460 

ph: (202) 564-1272 

fax: (202) 564-5603 

stahle.susan@epa.gov

 12. In the event of a dispute between the Parties concerning the interpretation, 

implementation or compliance with any aspect of this 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 ten (10) business days 

after receipt of said notice, any party may move the Court to resolve the dispute. 

 13. No motion or other proceeding seeking to enforce this Decree or for contempt of 

Court shall be filed unless the Plaintiff has followed the procedure set forth in Paragraph 12. 

 14. The Court shall retain jurisdiction to determine and effect compliance with this 

Decree. When EPA’s obligations under Paragraphs 2 and 3 have been completed and the 

Plaintiff’s claims for costs of litigation have been resolved pursuant to the process described in 

Paragraph 6, the above-captioned matter shall be dismissed with prejudice. The Parties shall file 

the appropriate notice with the Court so that the Clerk may close the file. 
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 15. 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 § 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 the requisite 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 § 113(g) of the CAA, 

42 U.S.C. § 7413(g). If the Administrator and/or the Attorney General elect(s) to not withdraw 

or withhold consent to this Consent Decree, the Parties shall promptly file a motion that jointly 

requests the Court to enter this Consent Decree. If the Administrator and/or the Attorney 

General elect(s) to withhold consent to this Consent Decree pursuant to CAA § 113(g), EPA 

shall promptly advise Plaintiff. 

 16. It is hereby expressly understood and agreed that this Consent Decree was jointly 

drafted by Plaintiff 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. 

 17. The undersigned representatives of each Party certify that they are fully 

authorized by the Party they represent to bind that Party to the terms of this Decree. 

 SO ORDERED on this ___ day of _________________, 2013. 

 _______________________________ 

 THE HON. JUDGE ALAN C. KAY 

 UNITED STATES DISTRICT JUDGE