HONOLULU — A contested case hearing was held over two days to consider whether the U.S. Navy must abide by the Department of Health’s emergency order, which says fuel in the 20 underground storage tanks at its Red Hill facility must be removed. 

What You Need To Know

  • The Navy is fighting an emergency order to defuel its Red Hill storage tanks in a contested case hearing

  • The Department of Health issued the emergency order on Dec. 6  

  • DOH was joined by the Board of Water Supply and Earthjustice on behalf of the Sierra Club in the fight against the Navy

  • The hearing's officer said he would make a decision about the case by early next week
 

The Department of Health’s emergency order also said the Navy must suspend operations at the Red Hill Storage Facility and take measures to treat contaminated drinking water at the Red Hill shaft. The Navy has said it temporarily suspended its fuel operations at Red Hill.

The Navy is fighting the order, saying they should be allowed to analyze what happened first.

The Department of Health’s attorney, Wade Hargrove, said in his opening statement, “There can be no greater national interest, state interest, community interest or council interest in access to safe, clean water. Water is life.”

Last week, the Board of Water Supply and Earthjustice, on behalf of the Sierra Club, filed motions to intervene on Dec. 14 in the Department of Health’s case against the Navy. They were both granted full party status as interveners.

David Henkin, the lawyer for Earthjustice who is working with the Sierra Club, told Spectrum News Hawaii on Dec. 14 they intervened in the case in order to ensure “the Department of Health does not back down from its demand that the Navy promptly get the fuel out of this facility.”  

The contested case hearing was held virtually and lasted for 13 hours on Monday while closing arguments were made the following day. The “findings of facts and conclusions of law” is scheduled for Thursday at 5 p.m, and will also be held virtually with the public able to watch the proceedings.

Hearings Officer David Day said Tuesday he would make a decision on the case “no later than early next week.”

The Navy stores 180 million gallons of fuel in giant underground storage tanks that are located within Red Hill. There have been many questions from the Sierra Club, Board of Water Supply and Hawaii residents regarding the tanks that were built in the 1940s, as they have leaked numerous times, including in 2014 when the Navy reported 27,000 gallons of fuel leaked. 

The Department of Health’s emergency order was issued on Dec. 6 after people on the Navy’s water system started smelling fuel in the tap water and experiencing physical symptoms, such as nausea and vomiting. The Department of Health later confirmed that the water pumped from the Navy’s water tested positive for petroleum products.  

Red Hill is located above an aquifer that also supplies water to residents of Honolulu, prompting concerns from the Board of Water Supply that the leaked fuel will contaminate the general population’s water too. The Board of Water Supply has said that tests for their Moanalua and Halawa wells have shown no signs of petroleum. The tests for their Aiea well are expected this week. 

“It’s difficult to conceive of a situation in which the health of the citizens and the environment of Oahu are more at imminent peril than that situation which currently exists, and will continue to exist, for so long as the Red Hill fuel storage facility is running,” said Ella Foley Gannon, an attorney for the Board of Water Supply, on Monday at the hearing.

She noted that more than 5,000 service members and their families, who live on the contaminated water lines, had to move from their homes, and schools and businesses had to shut down. 

On Tuesday during closing statements, Craig Jensen, a lawyer for the Navy, argued that the two most recent fuel leaks, which occurred in May and November 2021, were not from the tanks, but were from pipes related to the storage facility. 

Jensen said that the last release from the tanks was the 2014 leak. However, he agreed that the May and November releases were related to contamination of the Navy’s water system, and said that was why the Red Hill shaft was closed and wouldn’t open until the water meets the Environmental Protection Agency and Hawaii’s Department of Health requirements. 

Jensen said the Navy wants to analyze what happened and make a plan first as opposed to immediately defueling the tanks. Jensen said the Department of Health’s order was “putting the cart before the horse.”

“Forever suspension is not appropriate,” said Jensen about the underground tanks.  

In response, David Henkin, the lawyer for Earthjustice, said that the emergency order "has to do with the entire underground storage tank system — the entire facility, not just the tanks, but also the pipes.” 

Henkin said it “provides cold comfort to the public that the Navy” still doesn’t know exactly where the fuel contamination came from. For example, he said one of the witnesses, James Meyer, commanding officer of the Naval Facilities Engineering Command, had said Monday the May fuel leak may have been 1,600 gallons, but it might have been as much as 19,000 gallons.

Henkin argued the Navy would like to decide for itself what should happen with the Red Hill storage facility while avoiding regulations from the Department of Health. He added the emergency order does not say the storage tanks needed to remain empty forever, but just until it’s safe to refill them with fuel. 

Ella Foley Gannon, who represents the Board of Water Supply, emphasized in her closing statements that Hawaii’s legislature had enacted a statute regarding underground storage tanks that gives the governor the authority to stop activity determined to be an imminent peril to human health and safety or the environment. 

Gov. David Ige has not yet commented.

Dec. 22 Editor's Note: The story has been updated with additional information.