After initially saying the Navy would comply with a state health department order to drain the Red Hill fuel facility, the U.S. military has decided to take the state of Hawaii to court to fight the order, according to a statement from Deputy Secretary of Defense Kathleen Hicks on Monday.

The Department of Health issued the emergency order after fuel from the World War II-era Red Hill facility leaked into the water supply for 93,000 members of the military community, sickening families and displacing thousands from their homes.

Hicks said that while the military remains “laser-focused on addressing the Red Hill situation,” the military plans to appeal the order in both federal and state court by Wednesday.

“This will afford us time to make evidence-based and transparent decisions,” she said. “Despite these legal process requirements, we hope to collaborate with the State of Hawaii in a way that would allow the parties the time and space needed to reach solutions together.”

Deputy Secretary of Defense Dr. Kathleen Hicks tours Red Hill Bulk Fuel Storage Facility with senior Naval leadership on Oahu, Hawaii, Dec. 14, 2021. (DoD photo by Navy caption: U.S. Air Force Staff Sgt. Brittany A. Chase)
Deputy Secretary of Defense Kathleen Hicks toured the Red Hill Bulk Fuel Storage Facility with Navy officials on Dec. 14. Department of Defense/2021

About three weeks ago, Navy officials told members of Congress that the military would “comply” with the health department’s order to “defuel” the facility at the center of the water contamination crisis. Rear Adm. Blake Converse, deputy commander of the Pacific Fleet, called it a “lawful order.”

Hawaii’s Deputy Director of Environmental Health Kathleen Ho said in a statement that the department is “very disappointed” in the Navy’s decision to fight the order.

“The Navy committed to Congress and in multiple public forums that it would comply with the emergency order,” she said. “Today’s announcement that they intend to appeal the emergency order is yet another breach of trust between the Navy and the people of Hawai‘i.”

“We will continue our fight in court to force the Navy to render the Red Hill facility safe. DOH will continue to act to protect Hawai‘i residents and our environment,” she added.

DOH’s emergency order will remain in effect throughout the appeal process, according to the department.

The military’s decision was not received positively by community groups and members of Hawaii’s congressional delegation.

U.S. Sen. Brian Schatz spoke out against the military’s decision to appeal. CSPAN/2020

U.S. Sen. Brian Schatz said the defense department’s decision is a “grave and unforced error that undermines public trust.”

“Fortunately, we have civilian oversight of the military, and this inexplicable and maddening resistance to the defuel order will not succeed,” the Hawaii Democrat said in a statement. “They will lose in court, and they will lose in Congress.”

Rep. Ed Case, whose district includes the communities who drank fuel-tainted water, said in a statement that he strongly disagreed with the military’s challenging of the order.

“I will do everything I can to fully effectuate the order and, if necessary, to confirm that Hawai’i and any other state is legally entitled to protect its drinking water,” he said.

Rep. Kai Kahele called the military’s move “a betrayal to the people of Hawaii.”

“There is no more precious resource than our water,” he wrote on Twitter. “If they are incapable of being a good neighbor and stewards of our environment, they must shut down Red Hill. I will do everything I can to protect Hawaii’s drinking water.”

Sen. Mazie Hirono, a member of the Senate Armed Services Committee, said in a statement on Tuesday that she spoke to Hicks on Monday evening. The deputy secretary assured the senator that the intent of the appeal is to provide “the necessary time to continue working towards a solution with the State,” Hirono said.

The senator said the process needs to happen without any unnecessary delays.

“Let me be clear: the safety and well-being of the people of Hawaii must be the top priority,” she said. “I will oppose any appeal by DoD that challenges the State’s authority to regulate Red Hill operations.”

Hirono also said she will continue to hold the Navy accountable for complying with the state’s order to establish a defueling plan while a longterm solution is being developed.

“I urge all parties to continue working together to reach our shared goals of protecting Oahu’s drinking water, well remediation, returning families to their homes, and developing and implementing a plan for the future of the strategic fuel reserve for our national security,” Hirono said.

Wayne Tanaka, executive director of the Sierra Club of Hawaii, was also not pleased with the military’s announcement.

“If it wasn’t clear before, it is now.  The Navy is pulling out all the stops to keep us in harm’s way for as long as possible,” he said in an email. “In their statement, they say that they are committed to our people and our environment, yet they won’t even commit to defuelling Red Hill, much less shutting it down. Wake up, Navy – you’re fooling no one.”

Hicks said the federal government is taking action to address the fuel contamination and restore safe drinking water and hasn’t ruled out the possibility of shutting down Red Hill forever.

“Our efforts are consistent with the Biden Administration’s dedication to caring for the health and safety of the people of Hawaii and protecting the environment,” she said. “We will continue to do everything that we can to protect the population, the environment, and the security of the nation. We are confident these goals are mutually supportive and can coexist.”

Deputy Secretary of Defense Dr. Kathleen Hicks tours Red Hill Bulk Fuel Storage Facility on Dec. 14, 2021.
The Red Hill fuel facility is located 100 feet above Oahu’s main drinking water aquifer. U.S. Navy/2021

Hicks spoke to Gov. David Ige on Monday, and they “discussed how we can work together through some pending legal matters,” she said.

She said the military continues to take actions that are consistent with parts of the health department’s order, including suspending fuel transfers at Red Hill, testing and sampling water and installing new water treatment equipment.

As required by the emergency order, the military also will submit a work plan and implementation schedule by Wednesday after which a “qualified, independent third party commercial firm” will assess the Red Hill facility’s operations and system integrity by April 30.

“We understand the importance of transparency as we continue these near-term efforts,” Hicks said.

Red Hill

Meanwhile, the defense department is leading another assessment, separate from the one required by DOH, Hicks said.

“As to the long-term future of Red Hill, we are on an aggressive schedule to analyze and determine the distribution of fuel reserves for our operations in the Pacific theater,” Hicks said.

That review will be completed within 60 days to “enable the Secretary of Defense to make a decision on the role of Red Hill moving forward,” Hicks said.

“We know the importance of getting this right for the people of Hawaii, our Service Members, and our military families,” Hicks said. “We are taking this seriously, and the Secretary has prioritized resources from across the Department to effectively and efficiently take the steps required to address this problem.”

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