A provision inserted by Congress into the fiscal year 2023 national defense spending law has sparked concerns that the secretary of defense now has more control over when and if the Navy will defuel its Red Hill facility, diluting the state’s authority and making the shut down of Red Hill less assured.

The Pentagon announced last year that it was permanently closing Red Hill after a fuel leak from the facility contaminated the Navy’s drinking water system serving areas in and around Joint Base Pearl Harbor-Hickam, sickening military families. But language in the National Defense Authorization Act, signed by President Joe Biden in December, seems to give military officials a ready escape from that commitment if the Defense Department wants to change course.

The NDAA states that the secretary of defense must first certify to the congressional defense committees that defueling the facility won’t adversely affect the military’s ability to fuel its Indo-­Pacific operations before the Navy can begin draining 104 million gallons of fuel that is sitting in massive underground tanks, a process that is expected to begin in January.

Secretary of Defense Lloyd Austin has yet to issue that sign-off and it’s not clear when that approval is expected. A spokesperson for his office said she is working to provide responses to Honolulu Star-Advertiser questions.

U.S. Sen. Brian Schatz (D, Hawaii) said he is confident Austin will issue the certification and that Red Hill will be shut down.

Still, David Kimo Frankel, an attorney who has represented the Hawaii Sierra Club in legal matters related to Red Hill, said the NDAA’s notification requirement is “more disturbing than you might imagine.”

“The NDAA effectively strips (the Hawaii Department of Health) of its authority, allowing the secretary of defense to decide unilaterally when and if it will defuel,” said Frankel. “One could say that my concern is a mere hypothetical, that DOD is committed to defueling. But I’ve seen so many bad things come from DOD that I find the provision profoundly disturbing.”

Frankel’s concerns stem from years of legal wrangling over whether the federal or state governments have authority over the Navy’s underground storage tanks. The environmental group has held that Congress gave states the authority to regulate federal underground storage tanks and issue orders under the Resource Conservation and Recovery Act.

“It took a long time for folks to understand this special federal law because generally states do not get to tell the federal government what to do,” Frankel said. “This law was an exception to the general rule.”

He said the law allows DOH to issue emergency orders related to the closure of Red Hill that the Navy is required to comply with, but that the language inserted into the NDAA undermines that authority.

Legal maneuvers

After the Red Hill drinking water fiasco in November 2021, state and federal agencies sparred over who had the legal authority to determine the fate of Red Hill.

DOH issued an emergency order soon after the spill instructing the Navy to drain the tanks and indefinitely halt all fuel operations at Red Hill until it could be determined the facility could be operated safely.

The Navy challenged that order and lost through a state administrative appeals process. A state DOH hearings officer ruled in favor of the state in December 2021, saying the Red Hill facility was a “ticking time bomb” that posed an imminent peril to human health and the environment. The hearings officer dismissed the Navy’s arguments that it had sufficiently dealt with the immediate emergency, mitigated any ongoing threat, and that the facility, which for decades has powered military operations in the Pacific, was critical to national security.

The U.S. Department of Justice then sued the state in court over the order, but dropped the case after Austin announced in March 2022 that he was permanently closing Red Hill.

It was an about-face for the military. For years, the Navy argued Red Hill was vital to the country’s security in the Indo-Pacific region as it pushed back against calls from the Honolulu Board of Water Supply and Hawaii Sierra Club to relocate its aging, underground fuel tanks away from an important drinking water source for Oahu. Austin was now indicating that the facility was obsolete after all and that distributing the fuel reserves would be better aligned with the needs of the military.

In announcing his decision, Austin said it was the “right thing to do” to advance the nation’s strategic interests and ensure the military is being a good steward of the land.

The Navy has since been complying with a second emergency order issued by DOH governing the facility’s shutdown, and top defense officials have been firm in their statements that Red Hill will not be resurrected for fueling operations in the future.

The Hawaii Sierra Club and BWS have remained cautiously optimistic, cheering the Pentagon’s decision to shut down Red Hill on the one hand while pushing the military to do it faster.

BWS Manager and Chief Engineer Ernie Lau told the Star-Advertiser last month that while he believes the current administration in Washington, D.C., is committed to shutting down Red Hill, he worries what might happen under a new administration.

The Navy is currently embarking on $75 million in repairs and upgrades that it says are needed to remove the fuel that has sat idle in the tanks for more than a year. The Navy says those fixes are needed to make sure the fuel is removed safely and that no further spills threaten the critical drinking water aquifer that sits just 100 feet below the tanks.

But the extensive repairs, coupled with Department of Defense plans to keep all the infrastructure in the ground afterward, has raised concerns that the fuel facility could be easily resurrected even as defense officials have said they plan to render the tanks unusable for fuel storage.

Bipartisan negotiations

The military spending act, which spans hundreds of pages and allots $816.7 billion to the Defense Department, is the product of bicameral and bipartisan negotiations. U.S. Sen. Mazie Hirono (D, Hawaii), who sits on the Senate Armed Services Committee, said she didn’t advocate for the notification requirement. Her office said it was a priority of the Republicans and was agreed to as a compromise to ensure Hirono’s other Red Hill provisions made it in.

Schatz said top military leaders have made clear that Red Hill is no longer considered an important fueling asset.

“I worry every day about Red Hill and I’ve learned to be distrustful, and I think we ought to be skeptical about everything that comes from Department of Defense and scrutinize it and pressure-test it,” said Schatz. “This is not one of the things that worries me terribly much … . I think that there are other things that could go wrong and I’m tracking them and managing them and doing everything I can to make sure this comes to a successful conclusion. But this is not something that I think is a red flag yet.”

Schatz said military officials have expressed confidence in their new fuel layout that accommodates the lost capacity from Red Hill.

“So I am very confident that the Department of Defense will not and cannot reverse their position, because this really is a better plan for fuel and because the law requires the draining of tanks and because anything other than that would have to be approved by the Hawaii congressional delegation, and it will never be approved by the Hawaii delegation,” said Schatz. “And because going back on their word would be expensive and destroy their relationship with the state of Hawaii.”