The U.S. Navy is opposing an order Gov. David Ige issued on Monday to suspend all operations at its Red Hill fuel facility and start formulating a plan to empty its tanks, a dispute that may test the legal and political firepower of both sides.

Ige’s emergency order requires the Navy to submit a plan within 30 days to “assess the operations and system integrity to safely defuel the Bulk Fuel Storage Tanks.” It also requires the Navy to install a drinking water treatment system at the Red Hill well.

The order stated that it would become “final and enforceable” after a hearing that was scheduled for Tuesday at 1 p.m. with a state Department of Health hearing officer via Zoom. However, DOH issued a statement on Tuesday afternoon saying that the hearing would not occur.

Secretary of the US Navy Carlos Del Toro speaks to people as he leaves a town hall meeting at Hokulani Community Center.
Secretary of the Navy Carlos Del Toro spoke to affected residents during his visit this week. Cory Lum/Civil Beat/2021

“This morning, the Navy informed the Department of Health of its intent to contest the emergency order on Red Hill operations,” DOH spokeswoman Kaitlin Arita-Chang said via email.

“However, the Navy requested a continuance. The 1:00 p.m. contested case hearing is postponed. The Department of Health and Navy are negotiating the terms of a continuance and we will provide an update when one is available.”

No further details were provided. In an email, Navy spokesman Capt. J. Dorsey said that Ige’s order is currently under legal review.

Navy Secretary Carlos Del Toro said during a press conference yesterday afternoon, after meeting with Ige, that he would view any demand from the governor to shut down the Navy’s fuel facility to be a request.

“It’s not an order,” he said. “It’s a request that’s being made.”

Hawaii Department of Health Director Libby Char said she hopes the state and Navy can work together to resolve the water contamination issue related to Red Hill.
Hawaii Health Director Libby Char said she hopes the state and Navy can work together to resolve the water contamination issue related to Red Hill. Screenshot: Zoom

DOH Director Libby Char declined to comment yesterday on whether the state is willing to take the military to court to enforce its order. Instead, Char expressed her hope that the Navy would comply.

“We all have the same goal, and that is that we have safe drinking water for everybody and we have a safe environment for our community,” she said.

Marti Townsend, an attorney and the former director of the Sierra Club of Hawaii, said she was “flabbergasted” by the Navy’s response.

Hawaii has a right to regulate the Navy’s underground storage tanks, Townsend said. Under federal law, the federal government regulates underground storage tanks but can delegate permitting and enforcement authority to states, she said.

“In exchange for taking on that responsibility, the federal government voluntarily subjects itself to state oversight,” Townsend said. “They have to listen to the state.”

Because of Hawaii’s regulatory authority, the Navy has been seeking the approval of a DOH permit application since 2019. However, the Navy’s pursuit of that permit was delayed after a whistleblower accused the Navy of providing false testimony during hearings and withholding information about corrosion at Red Hill, including “holes in tanks.”

The Navy’s objection to Ige’s order could set the state and military up for years of litigation, Townsend said.

She noted that New Mexico sued the U.S. Air Force in 2019 after it was discovered that firefighting foam had contaminated groundwater there. Two years later, the “legal wrangling,” continues, the Associated Press reported in October.

Townsend acknowledged there is an exemption to the underground storage regulation for tanks that are of “paramount interest of the United States.” However, that exemption would have to be personally approved on an annual basis by the president, she said.

Demonstrators hold signs during a protest against the recent US Navy fuel spill while standing fronting the Federal Building.
Protests against the Navy’s Red Hill fuel operations have gained momentum in recent weeks. Cory Lum/Civil Beat/2021

There is also a legal concept called federal preemption which means that when state and federal laws are in conflict, the federal legislation trumps the state law. However, Townsend said she doesn’t believe that is applicable here.

Lance Collins, a lawyer with a history of pursuing “good government” and environmental cases, agreed that the governor is within his authority to demand that Red Hill be drained of fuel.

Court cases can drag on for years, and judges can be reticent to use their powers when the federal government invokes national security, according to Collins. But that argument has its limits, he said. 

“If there is an imminent threat to health, safety and welfare of the public, the national security or defense interest has to be relatively great for them to say: Well, it’s OK to basically poison the water supply for half a million people while this case goes through years and years of litigation,” he said.

Another solution may be political, Collins said. For instance, Congress could pass a law that forces Red Hill to shut down. Calls to shut down Red Hill have gained significant political momentum in recent days.

In an unprecedented show of unity on the subject, Hawaii House Speaker Speaker Scott K. Saiki and 45 members of the Hawaii House of Representatives called on the Navy on Monday to prepare a plan to decommission the Red Hill Bulk Fuel Storage Facility and store its fuel at an alternate location. 

On Tuesday, Carmen “Hulu” Lindsey, chair of the board of the Office of Hawaiian Affairs, released a statement supporting Ige’s emergency order.

“The Navy’s abysmal failure to address this major, ongoing environmental issue has already drastically impacted military families affected by the latest Red Hill fuel leak,” she said.

“The wellbeing of all Hawaii residents that depend on the Southern Oahu aquifer are being severely jeopardized by the Navy’s egregious negligence. The Navy can no longer brush aside public concerns.”

And last week, Honolulu City Council members introduced a bill that would prohibit the operation of large fuel tanks on Oahu if the operator cannot demonstrate that it “will not leak any regulated substance into the environment during its operating life.” In the past, the council only passed resolutions to proclaim its stance on Red Hill matters but did not seek to regulate it or shut it down.

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