In two legal appeals filed on Wednesday, the U.S. Justice Department argued that Hawaii can’t use the recent fuel leak at the center of a water contamination crisis as a justification to order the draining of the Navy’s World War II-era fuel facility.

It was the latest legal move in emerging tensions between the military and the state after the contamination of a Red Hill well that provides drinking water for some 93,000 people in the military community. The crisis also raised concerns about the safety of civilian water sources since they share an aquifer with the Navy.

The Hawaii Department of Health could use its emergency powers to order the Navy to take direct action to remediate a Nov. 20 leak that released 14,000 gallons of water and fuel, but ordering the shutdown of the entire facility was a step too far, the federal appeal said.

Red Hill well pipe will pump up to 5 million gallons of contaminated water to 8 tanks that contain granulated carbon to filter the contaminants and then be discharged into the Halawa Stream.
The Navy wants a judge to reject Hawaii’s order, saying a fuel leak that led to a water contamination crisis wasn’t reason enough to shut down the Red Hill tank facility. Cory Lum/Civil Beat/2022

Whether the entire facility is operated in a way that protects human health and the environment is the subject of ongoing permitting proceedings, the appeals said. And an existing administrative order on consent is designed to manage the long-term risk of the facility as a whole, federal government attorneys wrote.

The federal government is seeking a declaration from a judge that the state exceeded its authority and was wrong to make a decision on the basis that the Red Hill Bulk Fuel Storage Facility as a whole constitutes “an imminent peril requiring immediate action.”

The Department of Justice filed the appeals in both federal and state courts. The filing states that the federal government hopes to resolve any differences with the state through negotiation but filed the lawsuits in order to meet a 30-day statute of limitations under Hawaii law.

“Though the Navy shares DOH’s commitment to improving Red Hill and securing the health and safety of Hawaiian citizens and the environment, the Final Order here was not a lawful means for achieving these ends,” the appeal said. “The Emergency Order does not state that the Red Hill Facility itself is an imminent peril requiring immediate action.”

In response, the state health department promised to keep fighting for the order.

“This appeal proves undeniably the Navy is unwilling to do what’s right to protect the people of Hawaiʻi and its own service members,” Deputy Director of Environmental Health Kathleen Ho said in a statement.

“Despite the Navy claiming time and again that it would comply with the DOH emergency order, its actions consistently prove otherwise. We look forward to taking our fight to court to protect Hawaiʻi residents and our environment,” she added.

Protests have been going on for weeks to demand the shutdown of the fuel facility. Cory Lum/Civil Beat/2021

After the Red Hill well was found to be contaminated in late November, impacting thousands of military families, the health department issued an emergency order on Dec. 6.

It called on the Navy to pause all fuel operations at Red Hill, install a water treatment plant, make repairs and start planning to “defuel” the facility. The order left open the possibility that the fuel could be returned to the facility if the health department determines doing so would be “protective of human health and the environment.”

The Navy didn’t take kindly to the defueling order. Secretary of the Navy Carlos Del Toro said he would consider a state demand to shut down Red Hill to be a request, and Navy attorneys filed numerous legal objections with the health department. The Navy has argued it needs the Red Hill fuel facility for national security reasons as it is a “strategic reserve” for the military throughout the Pacific.

But the health department affirmed the order after a hearing officer determined it was a reasonable response to a “humanitarian and environmental disaster.”

Despite the appeals, the Navy submitted materials on Wednesday in response to the part of the DOH order that required it to produce a work plan and implementation schedule for defueling, according to DOH.

David Henkin, an attorney with Earthjustice, said the appropriate venue for the debate is state court.

“The Navy’s federal court filing attempts an end run around the bedrock principle of federalism on which our country was founded,” he said in a statement. “State courts, not federal courts, interpret state laws. We will fight vigorously to keep this case in state court, where it belongs.”

Meanwhile, calls from the community and political leaders to permanently shut down the tank farm are growing louder. Even Rep. Ed Case, who previously said shutting the facility down was impractical, told Civil Beat last week that his opinion has changed.

“It’s very hard for me to envision an option under which you would continue Red Hill on a permanent basis,” he said.

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