HONOLULU — The Navy filed its appeal Wednesday to the Department of Health’s emergency order that mandates the Navy drain the Red Hill Bulk Fuel Storage Facility.

What You Need To Know

  • The Navy appealed the final ruling in a contested case hearing that says it must drain the Red Hill fuel tanks

  • The appeal was filed in federal court on the last day allowed

  • The Navy argues in its appeal that the order “exceeds the emergency powers granted DOH”

The Navy announced Monday that they would appeal the emergency order. The state upheld the order earlier this month after a contested case hearing.

The Navy filed the appeal in federal court on the last day that they could file an appeal. 

“The Final Order unlawfully imposes certain requirements on the Navy’s management of the Red Hill Bulk Fuel Storage Facility, which stores fuel to support U.S. military forces throughout the Indo-Pacific Command area of responsibility,” the court filing said. “The Navy hopes to resolve any differences with the State of Hawaii regarding the Final Order through negotiation, but files this suit out of an abundance of caution to satisfy the 30-day statute of limitations that Hawaii law imposes on judicial review of such orders.”

The Department of Health issued the emergency order on Dec. 6 that said the Navy must drain the 20 fuel tanks at the Navy’s Red Hill Storage Facility, suspend operations at Red Hill and take measures to treat contaminated drinking water. 

The emergency order came after fuel leaked from the Red Hill Storage Facilities in November and May 2021, and it was also confirmed that petroleum levels within the Navy’s Red Hill Shaft were much higher than safe levels. Those who use the Navy’s water system said they became sick after drinking and bathing in the water. 

The Navy fought the order in a contested case hearing held on Dec. 20 and 21, while the Sierra Club, represented by Earthjustice, and the Board of Water Supply intervened in the hearing. The Department of Health’s Deputy Director issued a final ruling on Jan. 3 that upheld the Emergency Order. 

The Navy was required to come up with a plan within 30 days to safely drain the tanks. The emergency order allows the Navy to refuel the tanks when the state says that they can safely be operated. 

The Navy argues in its filing Wednesday that the operation of the Red Hill does not pose an “imminent peril” that requires immediate action as defined under state law, and that the order “exceeds the emergency powers granted DOH.” 

“Rather than direct action that may be necessary to remediate the November 2021 release, the Final Order goes further, effectively seeking to shut down the Red Hill facility itself,” the Navy said. 

“The swift and truncated nature of the hearing DOH provided for review of the Emergency Order was inadequate to evaluate the entire Red Hill facility,” the Navy added in its filing. 

In response to the Navy’s appeal, David Henkin, a lawyer for Earthjustice who argued against the Navy in the contested case hearing, said in a statement sent to Spectrum News Hawaii that the filing was all about the state. 

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