Navy continues fight against emergency order on Red Hill

The Navy is continuing its fight against a state order to drain its Red Hill fuel tanks and suspend fueling operations until the Hawaii Department of Health is satisfied the facility can be operated safely.

On Wednesday, an attorney for the Navy filed 43 pages worth of objections to a determination issued Monday by a DOH hearing officer that the state’s emergency order should be upheld. Navy attorney Craig Jensen argued that the basis for many of the state official’s conclusions lack supporting evidence and that the state overstepped its statutory authority in issuing the emergency order.

While the Navy already is working to satisfy many of the requirements detailed in the emergency order, it particularly objects to the requirement that it remove all the fuel from its underground tanks. The emergency order also makes the Navy subject to the state’s determination of when, and if, it can resume fueling operations.

DOH issued the emergency order Dec. 6 amid a mounting crisis in which thousands of residents in and around Joint Base Pearl Harbor-Hickam were displaced from their homes amid fuel odors coming from faucets. Approximately 93,000 residents on the Navy’s water system have been advised not to drink the water as the Navy works to flush and test it.

The Navy contested the emergency order, prompting a contested case hearing last week that involved roughly 13 hours of testimony from witnesses called by the Navy and DOH, as well as the Honolulu Board of Water Supply and Hawaii Sierra Club, which were allowed to intervene as parties to the proceedings.

On Monday, David Day, the DOH hearing officer overseeing the contested case, issued a proposed decision and order that called the Red Hill fuel facility a “ticking time bomb” that was guaranteed to continue to leak fuel. Day said the aging facility posed an imminent peril to human health and the environment.

The Navy objected to many of the findings and conclusions in Day’s proposed order, saying they lacked evidentiary support and that there was no indication the hearing officer weighed competing and critical evidence.

For instance, the Navy said that Day’s conclusions “about the nature of the imminent peril or the characteristics of the Red Hill facility as a whole” lacked citations that would allow the Navy to respond to the evidence on which they were based.

The Navy also argued that Day had “expressly refused to consider or weigh evidence” on the Navy’s actions to comply with a corrective action plan for the fuel facility that dates back to 2015, as well as its current efforts to address the petroleum pollution in its Red Hill drinking water shaft and distribution system.

“Arbitrarily excluding an entire category of evidence pertaining to the Navy’s testing, monitoring, sampling, environmental efforts and knowledge is an error, to which the Navy takes exception,” Jensen wrote.

The Navy also argued the state lacked the authority to issue the emergency order, which it said should relate strictly to the current water contamination crisis, not the broader question of whether continuing to operate the Red Hill facility is safe for human health and the environment.

The Navy also objected to findings in the proposed order that there have been 76 recorded fuel releases at the Red Hill facility since its construction in the 1940s, noting that 30 of those were tied to a now-removed leak detection system that was known to show “false positives.” An expert witness for the Board of Water Supply had testified there were likely many more leaks at the facility that were never recorded. But the Navy said there was no evidence to support this.

DOH Deputy Director Marian Tsuji now has 30 days to make a final decision on whether to uphold the emergency order, though that might not be the end of the legal wrangling. The Navy can appeal an unfavorable decision in court.

Navy officials have not responded to questions from the Honolulu Star-Advertiser about whether they intend to do so if the state keeps the emergency order in place.

The Navy filing was quickly panned by Earthjustice attorney David Henkin, who is representing the Hawaii Sierra Club.

Henkin noted the Navy has a right to file exceptions to the hearing officer’s proposed decision and order. “But it also has a moral obligation to acknowledge the reality that every day it fights this emergency order, is another day that O‘ahu’s (principal) source of drinking water remains at risk for catastrophic and irreversible contamination,” he said in a statement.

Navy’s Exceptions to Pr… by Honolulu Star-Advertiser