Navy says it will contest state’s order demanding suspension of Red Hill fuel operations

The U.S. Navy told the Hawaii Department of Health on Tuesday that it intends to contest its emergency order demanding that the Navy suspend operations at its Red Hill fuel farm and drain its massive underground fuel tanks.

The administrative order, announced by DOH during a news conference Monday, also requires the Navy to clean up the petroleum-contaminated drinking water in its Red Hill shaft and fix any deficiencies at its Red Hill fuel facility.

DOH said the Navy needs to satisfy the requirements before seeking permission from the state to resume operations at the fuel facility.

But an attorney for the Navy on Tuesday sent a letter to DOH saying Rear Adm. Timothy Kott, commander of Navy Region Hawaii, intends to contest the order.

A hearing was set for 1 p.m Tuesday during which a hearings officer would make the order “final and enforceable,” according to the order.

However, the hearing was postponed after the Navy requested a continuance.

“The Department of Health and Navy are negotiating the terms of a continuance and we will provide an update when one is available,” said Kaitlin Arita-Chang, a DOH spokeswoman, in a statement.

Arita-Chang didn’t respond to a question about what terms are being negotiated. She said a new hearing date had not been agreed upon.

The Navy didn’t respond to a question about whether it had specific concerns about the order.

Capt. J. Dorsey, a spokesman for the secretary of the Navy, said the order “is currently under legal review.”

The order was issued in response to petroleum contamination in the Navy’s drinking water system, which serves about 93,000 people. Since Nov. 28, hundreds of military families, and several schools, have complained of a fuel-like smell, abnormal taste or sheen in their tap water. Residents also have reported nausea, diarrhea, skin rashes and headaches, symptoms that health officials say are consistent with exposure to petroleum contamination.

The investigation into the cause of the water contamination is ongoing. But DOH said Monday that it is looking at fuel releases at the Red Hill facility that occurred on May 6 and Nov. 20. The fuel tanks and pipeline system are in close proximity to the Navy’s Red Hill shaft, which the Navy has confirmed as the source of the petroleum contamination.

The Navy’s request for a contested case on the order could spur years of legal wrangling.

David Kimo Frankel, an attorney for the Hawaii Sierra Club, which has fought the Navy for years over its Red Hill fuel tanks, said that generally states have no authority to tell the federal government, including the military, what to do. But he said there are exceptions. Frankel said when Congress enacted the underground storage tank law, it required that all federal agencies be subject to state requirements relating to those tanks and required federal agencies to comply with administrative orders issued by state officials.

But the Navy has argued for years that its Red Hill fuel facility is critical to national security and has not always complied with the state’s regulatory demands.

The facility provides fuel for the U.S. Indo-Pacific Command and is part of the “nation’s critical infrastructure — vital to national security, safety and defense,” Navy officials told the Honolulu Star-Advertiser in October, adding that “Red Hill is more vital today than ever.”

The Navy currently has paused its Red Hill fueling operations, but it’s not clear how long military officials think they can continue the suspension before compromising national security. Top Navy officials also indicated this week that they intend to clean up the contamination in the Red Hill shaft.

A growing number of community leaders and public officials have thrown their support behind the DOH’s emergency order, some going further to say that the Navy needs to shut down the facility permanently and as quickly as possible.

The Office of Hawaiian Affairs issued a statement Tuesday in support of DOH’s emergency order, calling the Navy’s lack of transparency “shocking.”

“Trust is earned and the Navy has not demonstrated that it can be entrusted with the stewardship of our most precious resource, clean water,” said OHA board Chairwoman Carmen “Hulu” Lindsey in a statement. “Indeed, the Navy’s lack of transparency with an issue this critical to Hawai‘i nei has simply been shocking.”