Hawaii activists launch new lawsuit over Red Hill

A local community group has filed a new “citizen lawsuit” in federal court calling for the closure of the Navy’s underground Red Hill fuel storage facility, and for the Navy to pay for past environmental violations tied to its fueling operations.

Community group Wai Ola Alliance formed last year to demand the Navy make repairs to the aging facility and gave the Navy a 90-day notice of its intent to sue just weeks before a military jet fuel spill in November contaminated the Navy’s water system that serves over 93,000 Oahu residents, most of them military families.

WOA announced Monday that it had formally filed its lawsuit. The group will be represented by Daniel Cooper of San Francisco-based Sycamore Law Inc. and Honolulu attorney William Harrison of Harrison &Matsuoka.

After resisting demands from the state to defuel the facility’s tanks, the Pentagon in March made a reversal in which Defense Secretary Lloyd Austin announced he had ordered the facility to be permanently shut down and start a transition to a more distributed fuel storage system around the region. Military officials initially said the process would take up to a year, but already the timeline is becoming more uncertain.

“Right now we need the Navy to put their promises on the record and then have somebody in position to enforce these promises the Navy has been making instead of having us do everything according to their timeline,” said Clarence “Ku” Ching, a former OHA trustee and community activist who is one of the plaintiffs in the suit. “We can’t rely on the state government to protect our interests.”

The Navy has cited potential danger of defueling the facility too quickly. It’s unclear to where the fuel will ultimately be moved.

“Defueling operations are very complex operations, so for us the defueling itself is just as big a threat, if not a larger threat, to our waters than the current operation is,” said John Miller, a Navy veteran and WOA organizer. “Something going wrong with one tank is all it takes to destroy, permanently, the aquifer. That’s the real issue.”

A Navy-commissioned report by contractor Simpson Gumpertz &Heger found that the facility was in dire condition, and identified more than 200 repairs that would be required to safely drain the fuel. The version of the report released to the public redacted estimates on how much these efforts would cost and provided no timeline.

“We have heard that it may take a year to complete all of these repairs to the pipeline and then thereafter another year to two years in order to defuel,” said one of the plaintiffs, Melodie Aduja, a former state senator and current co-chair of the Democratic Party of Hawaii’s Environmental Caucus. “So (there’s a) big possibility this might be three years-plus in order to get where we want to be, which is basically free of this risk of contamination, petroleum contamination.”

The massive tanks in the facility sit 100 feet above a critical aquifer that about 70% of Oahu residents rely on for water and which can hold up to 250 million gallons of fuel. The Navy has cited security reasons for not confirming how much fuel is in the facility, but it’s believed to be around 180 million gallons.

The Red Hill facility feeds into a series of pipelines connecting the tanks to fueling stations around Joint Base Pearl Harbor-Hickam. The sprawling infrastructure is vast and aging. Navy documents from 2016 showed officials were deeply worried about their condition and safety.

“I think now people are realizing that we have focused so much on the tanks, but it’s really not the tanks at this point, it is the pipelines,” said Aduja.

The suit calls for civil penalties to be imposed for past leaks and safety violations up to $56,460 per day, per violation. Among them WOA noted discharges of petroleum from the Navy’s Hotel and Kilo piers at Pearl Harbor.

On March 17 and June 2, 2020, the Navy notified the Department of Health that Red Hill discharged pollutants from the Hotel Pier, and on July 23, 2021, the Navy confirmed a release of contaminants between July 16 and 19 at Kilo Pier. The source of the Hotel Pier spill remained unidentified for at least 365 days after the Navy first reported the discharge.

Members of the group criticized state agencies, particularly the Department of Health, for not exercising oversight over the Navy in the years leading up to the contamination.

“These leaks, some of them that we’re calling out for punitive damages, that’s the job of the Department of Health to go after them and fine them for that so they can correct it,” said Miller. “But they haven’t even penalized them. So Department of Health actually isn’t providing any oversight or holding them accountable.”

In a statement to the Honolulu Star-Advertiser, the DOH defended its record and pointed to its own legal battle with the Navy as it resisted an emergency order to drain the tanks.

“DOH overcame multiple objections and legal roadblocks by the Navy between issuance on December 6, 2021, of the DOH Emergency Order to defuel the Red Hill Facility and the announcement on March 7, 2022, by U.S. Secretary of Defense Lloyd Austin that the Navy would abide by that order,” the statement said. “DOH continues to enforce its May 2022 Emergency Order — the Navy must provide a phased defueling plan and implementation schedule to DOH by June 30 and a plan for permanent closure of the Red Hill facility by November 1.”

“We believe that there are lots of other violations that have happened that we know nothing about, and we would like to know what the true story is and if we can do something about it,” said Ching, who argued that documents that may be obtained through the suit could shed more light on the Navy’s fueling operations.

“The fact that we’re getting information from whistleblowers confirms internally there is a issue of suppression and deception, even amongst (the Navy’s) own members,” said Pete Shimazaki Doktor, one of the plaintiffs in the suit and a co-founder of the Hawaii chapter of Veterans for Peace.

The suit also calls on the Navy to halt discharges from the Navy’s water system into streams and the ocean. The Navy’s efforts to flush fuel-contaminated water out of its water system have been heavily scrutinized.

“I am particularly concerned about what is being flushed,” said Aduja. “The flushing is at 5 million gallons per day. That’s quite substantial.”

The DOH gave the Navy a cease-and-desist order in December on grounds that it wasn’t following state guidance when the service began flushing water from fire hydrants to clean out main distribution lines.

Soon after the military shipped several massive granulated activated carbon filtration systems — better known as GACs — large tanks that could collect and filter thousands of gallons of contaminated water and release treated water into the environment. Both the Navy and the DOH say water released from the GAC systems is safe.

In January the Navy began discharging water extracted from the Red Hill well with the GACs into Halawa Stream. But Aduja said Oahu lacks EPA-certified labs and asserts that there hasn’t been adequate testing. The Navy, for its part, defends its efforts.

“Stream ecological monitoring is done at several points above and below the discharge point to survey terrestrial and aquatic biota, through a cooperative agreement between the Navy and scientists at the University of Hawaii,” said Navy spokeswoman Lydia Robertson in an emailed statement. “The Navy is using multiple testing methods, including in-line analyzers measuring total hydrocarbons; periodic manual samples analyzed for total petroleum hydrocarbon (TPH)-diesel, TPH-gasoline, and TPH-oil; and samples sent to 3rd party laboratories on the mainland.”

Miller said the group acknowledges the water will have to be discharged eventually but that it wants to see more data released to the public and independent testing.

“We’ve seen Department of Health kind of move that bar of what’s safe. Literally, they changed the levels of drinking water contaminants and even against the Board of Water Supply’s own recommendations,” said Miller. “So it’s just a matter of valid testing that is safe.”

Miller argued that it’s in the Navy’s own interest to come up with a concrete plan and to move swiftly, asserting that if the aquifer were contaminated, the Navy would be unable to operate out of Pearl Harbor, one of its most important bases. He also noted that Navy leaders are experiencing a historic crisis of confidence among troops and their families who were exposed to the tainted water.

“I spent time in the Navy for 11 years, and the way that they’ve handled things never would have been allowed in the Navy that I was used to,” said Miller.