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, Plainti ff Preserve Pepe’ekeo Health And Environment filed this action purs uant 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 (c ollectively “the Parties”) wish to effect a settlement of the above-captioned matter without e xpensive and protra cted litigation;2 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 adequa te 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 te stimony, without trial or determination of any issue of fact or law, and upon the consen t 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 administrati ve Petition on the Permit dated August 29, 2011, and to order the relief contained in th is Decree. Venue is proper in th e 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 Pe tition 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.3 4. Any provision of this Decree may be modi fied 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 Rule s of Civil Procedure, and upon consideration of any opposition by the non-movi ng party and any reply. 5. Plaintiff and EPA shall not challenge th e terms of this Decree or this Court’s jurisdiction to enter and enforce this Decree. Upon entry, no part y shall challeng e the terms of this Decree. 6. The deadline for filing a motion for cost s of litigation (inclu ding attorneys’ fees) for activities performed prior to execution of this Decree is here by 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 litiga tion (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. Th is Court shall retain jurisdiction to resolve any requests for costs of li tigation, including reason able attorneys’ fees. 7. Nothing in this Decree shall be c onstrued 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 a lter, 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 construe d as an admission of a ny 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.4 9. Nothing in this Decree shall be c onstrued to confer upon the district court jurisdiction to review any decision made by EPA pursu ant to this Decree. Nothing in this Decree shall be construed to confer upon the district co urt jurisdiction to review any issues that are within the exclusive jurisdiction of the Unite d 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 clai ms, 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 interprete d 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 a ny 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 :5 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 dis pute between the Parties c oncerning the interpretation, implementation or compliance with any aspect of this Decree, the dispu ting 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 agre ed-upon resolution within ten (10) business days after receipt of said notice, any party may move the Cour t 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 fo llowed 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 Paragr aphs 2 and 3 have been completed and the Plaintiff’s claims for costs of lit igation have been resolved pursua nt to the process described in Paragraph 6, the above-captioned ma tter shall be dismissed with prej udice. The Parties shall file the appropriate notice with the Court so that the Clerk may close the file.6 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 Cons ent 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 accord ance with § 113(g) of the CAA, 42 U.S.C. § 7413(g). If the Admini strator and/or the A ttorney General elect( s) to not withdraw or withhold consent to this Cons ent 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 ag reed that this Cons ent Decree was jointly drafted by Plaintiff and EPA and that any and al l rules of construction to the effect that ambiguity is construed against th e drafting party shall be inappli cable in any dispute concerning the terms, meaning, or interpre tation of this Consent Decree. 17. The undersigned representatives of e ach Party certify that they are fully authorized by the Party they represent to bi nd 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