Residents will get to talk with the military about emptying the tanks but are unlikely to see anyone punished for previous violations. 

As the Department of Defense works to remove fuel from the Red Hill storage facility, the U.S. Environmental Protection Agency has secured a commitment from the military to meet regularly with community members, but the regulator is resisting calls from residents to take stronger enforcement action.

The EPA, Navy and Defense Logistics Agency signed a new administrative consent order on Friday. The voluntary regulatory agreement outlines the EPA’s oversight of Red Hill’s defueling and closure, implements deadlines and requires public disclosures of leaks. 

It also requires the formation of a Community Representation Initiative, a 10-person panel that will meet with military leaders eight times a year.

“They can ask for information, and we hope it will create a back and forth, and not just being talked to, but actually a dialogue,” Amy Miller, the regional director of the EPA’s compliance and enforcement division, said in an interview. 

Amy Miller, pictured here with Adm. John Wade of Joint Task Force – Red Hill, said the EPA incorporated hundreds of public comments in the final version of the consent agreement. (David Croxford/Civil Beat/2023)

But the deal won’t satisfy the desire of many to see the EPA crack down in response to the military’s poor environmental stewardship. Violations would result in fines of up $10,000 a week, a drop in the bucket for the U.S. Department of Defense. 

“It would be punitive just in and of itself if we issued a penalty to the Navy,” Miller said. 

Overall, Miller said the EPA tried to be responsive to community concerns contained in approximately 1,700 public comments. With that feedback, the parties implemented defueling deadlines, agreed to seek input from local subject matter experts and instituted new spill reporting requirements. 

Andre Perez at the camp at the base of the Maunakea Access Road.
Andre Perez said fines of a few thousand dollars won’t fix the damage the Navy did to Oahu’s aquifer. (Cory Lum/Civil Beat/2019)

In addition, the agreement acknowledges the importance of water, or wai, to Native Hawaiians. 

In a statement, the Navy said the finalized agreement is a positive development.

“The consent order assists the Navy in maintaining compliance for safe drinking water and tank closure, and provides an additional measure of confidence to the public,” a spokesman said.

Andre Perez, a Hawaiian activist, said it all feels like “too little too late.” 

“The question is: How much is the Navy going to listen to the community?” he said. “If they had, we wouldn’t be in this situation in the first place.” 

Lack Of Accountability Questioned

In comments, many residents expressed concern that the EPA is not holding the Navy accountable for leaks. Fuel from Red Hill spilled into the water supply in 2021 after multiple structural and leadership failures.

“There was a comment that, had a private company been responsible for the Red Hill releases, federal and state consequences would have been more severe,” the EPA wrote in a summary of public comments.

After the November 2021 leak, the Navy waited over a week to acknowledge the drinking water was threatened.

That was a violation of the Safe Drinking Water Act, according to Miller. But she wouldn’t say what the EPA intends to do about it.

“That will need to be further evaluated,” she said.

Amy Miller director enforcement compliance assurance division EPA Red Hill water
Amy Miller said the Navy violated the Safe Drinking Water Act, but the EPA isn’t taking any immediate action in response. (Kevin Fujii/Civil Beat/2023)

Perez said the delayed notification was a violation of human rights.

“I know people who got permanent organ damage,” he said. “Where is the accountability there?” 

The EPA also won’t be taking action to establish an on-island lab for water samples, Miller said. This was another area of concern among those who submitted comments. 

Samples are sent to the mainland for processing, creating a lag in getting the results. Local labs don’t have to ability to test water samples to the necessary level of detail.

After the fuel contamination crisis came to light, the Navy’s test results were delayed, state health department samples were damaged in transit and state lawmakers said an on-island lab was essential. 

In a recent deposition, one of the Navy’s own drinking water experts also noted the need for a local lab. 

Fuel operators with Joint Task Force-Red Hill (JTF-RH) collect a fuel sample during dewatering at the Red Hill Bulk Fuel Storage Facility in Halawa, Hawaii, April 18, 2023. Dewatering removes the water from the fuel storage tanks. This is a routine task for maintenance of underground fuel storage tanks and is essential to prevent corrosion and protect fuel quality. Regulators from the Hawaii Department of Health and the Environmental Protection Agency are on site during dewatering. JTF-RH is committed to working with regulators, government officials, and stakeholders to ensure Red Hill is defueled safely, expeditiously and in compliance with all applicable laws and regulations.
A year and a half after the contamination crisis came to light, Oahu still doesn’t have a local lab to test water samples for fuel and PFAS. (U.S. Army/2023)

“I think the state should or the federal government should collaborate and get a lab that can do these — these real finite tests in more quick or efficient manner instead of taking five days to fly to the mainland and get done,” said Joseph Nehl, a supervisor at the Navy drinking water distribution system. 

The Hawaii Department of Health is working to stand up a lab funded by state taxpayers but it could take another year or two, DOH spokesman Shawn Hamamoto said in an email.

Miller said a local lab would be helpful but not necessary. 

“Sending samples to the West Coast hasn’t been a limitation in our ability to respond quickly to incidents,” she said. 

The consent order does not address PFAS, the forever chemicals that became an acute concern after a Red Hill contractor spilled some 1,300 gallons of PFAS-laden firefighting chemicals last year. 

PFAS are addressed under separate regulatory agreements, Miller said.

Military officials say most of Red Hill’s 100 million gallons of fuel will be removed by January. The remainder will be drained sometime after. The military has not committed to a timeline on the removal of that residual fuel, and the EPA isn’t holding them to one. 

“We don’t know about that because they need to come up with the engineering approach for that,” she said. 

Overall, the agreement with the EPA is aimed at ensuring the defueling and closure of Red Hill are done safely. The EPA has about 20 people working on the project, according to Miller. 

“Our job is to prevent another spill from happening,” Miller said. “This is a national priority for the EPA.” 

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