The Hawaii Department of Health is standing by its order to the Navy to drain the Red Hill fuel facility, where leaks allowed petroleum to contaminate the drinking water of nearly 100,000 people.

DOH Deputy Director Marian Tsuji issued the decision on Monday. It affirms the findings of a hearing officer who listened to 13 hours of testimony in the case and determined last week that the order was legal and necessary.

David K. Brixius, U.S. Army Garrison Hawaii, Environmental Division Chief (left), partakes in a Joint Water Distribution System Recovery Plan Agreement signing ceremony alongside Sherri R. Eng, Naval Facilities Engineering Systems Command (NAVFAC) environmental business line leader and Navy Region Hawaii environmental program manager (N45), Kathleen S. Ho, Hawaii Department of Health, deputy director of environmental health, and Ben Castellana, U.S. Environmental Protection Agency, Region 9, on-scene coordinator
Military officials and environmental regulators recently signed a water sampling plan. U.S. Navy/2021

“The Red Hill Facility has already damaged human health and the environment and, as currently situated, inevitably threatens to do so into the future,” the hearing officer, David Day, found. “The Navy lacks the ability to control the substantial risks associated with the Red Hill Facility, as currently situated.”

On Tuesday, Tsuji wrote in a three-page decision that Day’s report “accurately and completely states the relevant facts and accurately states the applicable law.”

Under the order, the Navy has 30 days to submit a plan to “safely defuel” its World War II-era fuel facility.

In a video statement, Deputy Director Kathleen Ho lauded Tsuji’s decision as a step toward protecting drinking water and the environment from “irreparable harm.”

“We call upon the Navy to comply with the order without further attempts to delay,” she said.

The Navy has already agreed to comply with some parts of the order, including pausing operations at Red Hill and taking steps to establish a water treatment plant. But the military, which considers Red Hill to be a vital national security asset, has strongly protested the demand to drain the fuel entirely.

Marian Tsuji was appointed Deputy Director of Behavioral Health at the Department of Health as of June 28, 2021
Marian Tsuji affirmed a Department of Health hearing officer’s decision. Hawaii Department of Health/2021

In more than 40 pages of legal arguments filed last week, a Navy attorney asserted that the state lacks the power to require the facility’s shutdown, among other objections. The state can only use these emergency powers if people are in “imminent peril,” both sides acknowledge, but the Navy believes that danger does not exist.

The Navy can now appeal Tsuji’s decision to the courts, but it’s unclear if it will do so.

In a statement, Cmdr. Reann Mommsen with the Navy Office of Information in Washington D.C. said only: “The Navy is reviewing the decision.”

Even if the Navy complies with the order and empties its facility of an estimated 180 million gallons of fuel, the order still leaves open the possibility that the Navy could start using its tanks again at a later time. That would only happen, though, if DOH determines the Navy is able to do so in a way that is “protective of human health and the environment,” according to the order.

Meanwhile, the Navy is engaged in another legal case before DOH in an effort to secure a permit to operate the Red Hill facility. That matter, which is being contested by the Sierra Club of Hawaii and the Honolulu Board of Water Supply, is ongoing.

On Monday afternoon, environmental activists praised Tsuji’s decision.

“This is huge,” Wayne Tanaka, executive director of the Sierra Club of Hawaii, said in a statement. “We commend the Department of Health for taking this critical stand, and urge it to continue holding the Navy’s feet to the fire, until it defuels its decrepit facility and defends us from itself.”

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