In response to a Hawaii health department order to drain the World War II-era fuel facility at the center of a water contamination crisis, the U.S. Navy is arguing that the state does not have the power to make such a demand.

The state’s proposed order “operates in a regulatory vacuum, unlawfully exceeding DOH’s authority,” according to more than 40 pages of objections the Navy filed on Wednesday evening.

Secretary of the US Navy Carlos Del Toro during press conference regarding the Red Hill Fuel petroleum water pollution held at CINPAC Command Center.
Secretary of the Navy Carlos Del Toro said earlier this month that he would interpret a state demand to shut down Red Hill to be a “request.” Cory Lum/Civil Beat/2021

The state order came after the Navy’s water system, which serves 93,000 people, was contaminated with fuel, with families reporting serious health impacts.

A Department of Health hearing officer affirmed the order on Monday as lawful and necessary. The hearing officer, David Day, called the situation a “humanitarian and environmental disaster” that puts the public in imminent peril. That designation gives the state the power to shut down the Red Hill fuel facility until it makes safety improvements, according to Day’s report.

The Navy disagreed. In its filing, Navy attorney Craig Jensen argues that DOH cannot take action because the community is not in immediate danger.

“Only a finding of actual imminent peril and actions tailored to the immediate emergency are authorized under DOH’s emergency power,” the filing states.

Protestors have been demanding the closure of Red Hill, which has threatened Oahu’s drinking water for years. Cory Lum/Civil Beat/2021

The contamination has already occurred, so the state cannot use it to justify the shutdown of the facility, the Navy argued.

“There is no evidence in the record showing that Facility operations pose an inherent risk of causing harm, such that merely resuming operations would automatically give rise to ‘grave risk; jeopardy; danger’ that is ‘likely to occur at any moment,’” the filing states.

Jensen also took exception to several other parts of the hearing officer’s report. He alleges that Day wrongfully considered some pieces of information while ignoring other evidence and that he factored inaccurate information into his decision. The Navy also objects to Day’s contention that the facility is “simply too old, too poorly designed, too difficult to maintain, too difficult to inspect, along with being too large to realistically prevent future releases.”

Department of Health Deputy Director Marian Tsuji will review the Navy’s filing and render a decision within 30 days, according to DOH.

David Henkin, an attorney with Earthjustice who represents the Sierra Club of Hawaii, said the Navy has a legal right to file its disagreements with the hearing officer’s proposed 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 principle source of drinking water remains at risk for catastrophic and irreversible contamination,” he wrote in a statement.

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