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�JMtV OF N, COUNTY OF HAWAII �• 7r� OF•N►i� RESOLUTION NO. STATE OF HAWAII J9 J 1. A RESOLUTION REQUESTING THE OFFICE OF THE CORPORATION COUNSEL TO INITIATE A DECLARATORY JUDGMENT ACTION TO DETERMINE THE APPLICABILITY OF ORDINANCE NO. 12-151 TO PUNA GEOTHERMAL VENTURE'S DRILLING OPERATIONS UNDER GEOTHERMAL RESOURCE PERMIT NO. 2, AND/OR TO SEEK INJUNCTIVE RELIEF. WHEREAS, Puna Geothermal Venture ("PGV") is permitted to develop a geothermal power project at its current operating location in Puna under Geothermal Resource Permit No. 2, as approved by the Planning Commission on October 3, 1989, and amended on January 19, 2001; and WHEREAS, in response to noise concerns caused by the drilling of geothermal production well KS -15, the County on December 5, 2012, enacted Ordinance No. 12-151, which provides, among other things: "Geothermal resources exploration drilling and geothermal production drilling operations being conducted one mile or less from a residence, shall be restricted to the operating hours of 7:00 a.m. — 7:00 p.m."; and WHEREAS, PGV intends to establish production well KS -16 by drilling four holes, beginning on or about January 25, 2015, and ending on April 1, 2015, at its current operating location less than one mile from residences; and WHEREAS, PGV has expressed its intention of conducting 24-hour drilling for production well KS -16 and has maintained that such drilling is not subject to Ordinance No. 12- 151; and WHEREAS, a legitimate argument can be made in support of the applicability of Ordinance No. 12-151 to PGV's current operation for the following reasons (among others): 1. The language contained in Ordinance No. 12-151 is unambiguous. 2. Hawaii Administrative Rules, Title 11, Chapter 46, Section 13, relating to Community Noise Control and promulgated by the Department of Health under the authority of chapter 342F, Hawaii Revised Statutes, states that: "The council of any county may adopt and provide for the enforcement of ordinances regulating any matter relating to excessive noise. No such ordinance shall be held invalid on the ground that it covers any subject or matter embraced within any statute or rule of the State; provided that in any case of conflict between the statute or rule and ordinance, the law which affords the most protection to the public shall apply."