2008-07-22 Resolution_702-08_re_Violations_of_federal_clean_air_act_gas_emissions_and_controls_for_West_Hawaii_Landfill

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SETTLEMENT AND SEP FUNDING AGREEMENT This SETTLEMENT AND SEP FUNDING AGREEMENT("Agreement")is made and entered into between WASTE MANAGEMENT OF HAWAII, INC. ("WMH")and the COUNTY OF HAWAII("County"). The parties shall be collectively referred to herein as the "Parties"and individually as a"Party", unless specifically identified otherwise. RECITALS WHEREAS the County owns the West Hawaii Sanitary Landfill(the"Landfill")located at 71-1111 Queen Kaahumanu Highway, Waikoloa on the Island of Hawaii; WHEREAS WMH operates the Landfill pursuant to the Landfill Construction, Operation, and Closure Agreement between the County of Hawaii and Waste Management of Hawaii, Inc. April 23, 1993),and as thereafter amended(the"Operating Agreement"); WHEREAS on or about April 4,2006,the U.S. Environmental Protection Agency ("EPA")issued to WMH and the County the Finding and Notice of Violation,Docket No. R9- 06-07 in which EPA alleged various violations of the federal Clean Air Act in connection with WMH's operation of the Landfill; WHEREAS pursuant to Section 7.1 of the Operating Agreement, WMH has agreed to hold harmless, indemnify, and defend the County from and against the violations alleged by EPA; WHEREAS WMH,the County,and EPA have negotiated a settlement of the alleged violations and wish to enter into the Consent Agreement and Final Order Pursuant to 40 CFR §§22.13 and 22.18(the "CAFO"), attached hereto as Exhibit A, in order to resolve fully and finally the alleged violations; WHEREAS in lieu of EPA's demand for a civil penalty in the amount of$135,000(the "Settlement Amount"),EPA has agreed that WMH and the County shall satisfy the civil penalty of the CAFO by paying $33,500 in cash to EPA and completing a Supplemental Environmental Project(the"SEP")for the closed Kailua-Kona Landfill at a cost of no less than$184,400,as more fully described in the SEP Workplan dated March 14, 2008 and more fully described in the CAFO; WHEREAS WMH has agreed to pay to EPA a civil penalty in the amount of$33,500 and to pay the remaining balance of the Settlement Amount—i.e., $101,500—to the County to help pay for the SEP, and the County has agreed to pay for the balance of the costs of the SEP and to assume responsibility for performing the SEP; WHEREAS the Parties wish to enter into this Agreement to define each Party's respective obligations and responsibilities for payment of the civil penalty, for payment of the SEP costs,and for ensuring completion of the SEP in accordance with the CAFO; TERMS AND CONDITIONS NOW,THEREFORE, in consideration of the mutual covenants and promises contained herein,the Parties mutually agree,represent, and warrant as follows: ATTACHMENT"B"