After a catastrophic leak from the Red Hill fuel facility in 2014, the Navy agreed to work with state and federal regulators on an oversight plan that they hoped would help prevent a similar incident from happening again. 

But now that military families have been sickened and displaced by jet fuel contamination, that regulatory agreement – called the Administrative Order on Consent – is widely considered a failure, environmental advocates say.

The U.S. Environmental Protection Agency, which was a party to that agreement signed in 2015, said Thursday that it is launching an investigation into Red Hill next week. But Marti Townsend, who advocated for Red Hill’s shutdown for years as the Sierra Club of Hawaii’s executive director, said that’s too little, too late. 

“The EPA needs to understand that they were complicit in the business as usual at Red Hill,” she said. “It’s great that they are attempting to take a more active and critical role in regulating the Navy, but honestly, I wish they had done that in 2014.” 

Military families in the Pearl Harbor area began complaining that they smelled fuel in their water in late November, prompting the Navy to confirm that its Red Hill shaft had been contaminated. Authorities say the civilian water supply is safe to use.

Honolulu Board of Water Supply Chief Engineer Ernie Lau has also said that the AOC process failed to keep people safe. Lau had warned for years about the dangers of the World War II-era fuel facility located just 100 feet above the island’s drinking water source. 

“Now, we’re eight years later, and there’s still no real progress on the AOC,” he said during a December press conference. “So, if the process needs to be kept, it needs to be a process that allows for quick action and quick decisions by the regulators to hold the Navy’s feet to the fire.” 

Martha Guzman, EPA’s regional administrator, acknowledged at a press conference Thursday that regulators were aware that Red Hill could leak. However, she said they had been preparing for a crisis similar to the one in 2014, in which an estimated 27,000 gallons spewed from one of the 20 tanks.

The main fear then was that fuel from a tank would leak, contaminate the groundwater below and eventually migrate toward a source like the Navy’s Red Hill shaft or the BWS Halawa shaft. That’s why the AOC included the use of monitoring wells to track contamination.

However, the leaks suspected of contaminating the water last year allegedly spewed from pipelines, not the tanks. And the second one released thousands of gallons of jet fuel almost directly into the water supply via a pipeline the Navy has said it didn’t know was there.

“This incident was not forecasted,” Guzman said.

But it should have been, given the years of studies that were conducted, Townsend said. 

“The AOC overemphasized the studying of things – the act of studying without actually knowing,” she said. 

The voluntary deal also didn’t have any teeth. It called for the Navy to either fortify the tanks or empty the fuel from the facility by 2037, with a possible extension to 2042. Instead, in 2019, the Navy said it actually would not meet that requirement until 2045 and a solution for fortifying its tanks didn’t yet exist.

As of last year, the EPA had not announced any intention to hold the Navy to the original deadline. 

The AOC was further hampered by a lack of transparency, according to Kamanamaikalani Beamer, a University of Hawaii professor who at the time was on the Hawaii Commission on Water Resource Management.

The regulators had to sign nondisclosure agreements with the Navy, and most conversations about the AOC occurred behind closed doors. 

“If we are to learn something, it’s that we can’t have a process like that ever again,” Beamer said. 

Gary Gill was the acting director of the Hawaii Department of Health when the AOC was being negotiated. 

Federal officials were saying then that a voluntary consent decree was the way to go, according to Gill. And while there was a desire to include stronger enforcement capabilities, Gill said that was overtaken by concern that too many demands from the regulators could backfire.

“The issue before us during the drafting of the AOC, the consent order, was how far can we push the Navy before they say that we can’t push them and they’ll just do what they want?” said Gill, a former Honolulu city councilman who is now running for a statehouse seat.

Indeed, after the contamination last year, DOH issued an emergency order requiring the Navy to drain its tanks.

Military lawyers fought it, arguing the state lacked the power to make such a demand. The U.S. Department of Justice has since sued DOH in state and federal court. Those cases are pending. 

Looking back at the AOC negotiations, Gill said he regrets that he didn’t push harder for a shorter timeline. He said he had wanted a 10-year turnaround on improvements. The group ultimately settled on 20 years. 

“There are arguments about how long it takes to procure things and how fast can you make the Pentagon make a decision and congressional appropriations – you can think of all kinds of reasons about why it’ll take a long time,” Gill said. “But I still regret that.”

On the other hand, the state government was welcoming a new governor’s administration, and Gill was about to leave his DOH post. 

“I felt it was better to close the deal and get something rather than see it get kicked down the road,” he said. 

In the end, Gill said, Red Hill is a lost cause. His voice is one of many calling for the facility’s permanent closure.

“There are many hardworking, well-qualified civil servants in the military and in the Navy, and they are mission-driven. The problem with Red Hill is it’s a mission impossible,” he said. 

“There’s no way with a facility this old and of this design that they can fulfill the mission of keeping the groundwater safe. It has already failed,” he added. “The bottom line is they could work twice as hard and this thing still would have failed.”