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Navy, intervenors argue over 'imminent peril' in contested case to defuel Red Hill tanks

Counsel representing the U.S. Navy, Hawaiʻi Department of Health, Honolulu Board of Water Supply and Sierra Club at a evidentiary hearing on Dec. 21, 2021.
Hawaiʻi Department of Health YouTube
Counsel representing the U.S. Navy, Hawaiʻi Department of Health, Honolulu Board of Water Supply and Sierra Club at a evidentiary hearing on Dec. 21, 2021.

After a nearly 13 hour hearing on Monday, the Navy, Honolulu Board of Water Supply, state Department of Health and the Sierra Club presented their closing arguments Tuesday on whether or not the Navy should defuel its Red Hill storage tanks.

Deputy Attorney General Wade Hargrove, who represented the health department, said the arguments reminded him of Charles Dickens's "A Christmas Carol."

"As we barrel towards the season rapidly approaching, I am reminded of a classic tale whereby a stubborn man is visited upon by his colleague Jacob Marley, who warns his old friend of imminent peril," Hargrove said in his closing arguments. "Then, before the stubborn man appears three ghosts: Christmas past, Christmas present, Christmas yet to be. We heard yesterday evidence of past historical releases, faint memories poorly documented, many happening long before environmental laws were in place. But somehow their presence still haunts us to this day."

On Dec. 6, the state filed an emergency order requiring the Navy to take several steps to deal with the problem of jet fuel in drinking water in the area of Joint Base Pearl Harbor-Hickam.

The Navy contested the order, and this will determine whether the state or Navy prevails.

Craig Jensen, an attorney for the Navy, argued that many of the directives required by the executive order have already been met. It notified the public of the leak, and is currently flushing and filtering the contaminated parts of its water system.

The Secretary of the Navy ordered the Red Hill shaft shut down on Dec. 7 — the day after the state’s emergency order was delivered.

"The Navy is not saying that the contamination at the Red Hill shift was not significant. It was," Jensen said. "The Navy and I, personally, am deeply, deeply sorry for the impact of that contamination on the lives and the people of Oʻahu. What we are saying is that our efforts to address this issue have mitigated the immediate impacts and kept any further significant impacts from happening. No one is at actual risk of harm today. And there is no justification for any provision of this order."

David Henkin, an attorney representing the Sierra Club, pushed back and said the health department needs to act now.

"The statute defines the trigger. What the legislature said is whether the operation of the facility, whether it poses imminent peril now, or in the future," Henkin said. "And the thing that needs to be imminent is peril. Risk. It doesn't have to be actuality, you don't need to wait until the oil is poisoning the water to act. In fact, consistent with the precautionary principle and its constitutional duty to protect the public trust. The department has to act now."

The Navy contends that the fuel releases from earlier this year were due to faulty pipes — not the fuel tanks themselves. Jensen also argued that the Navy has vapor warning systems to detect fuel leaks.

But Ella Foley Gannon, an attorney representing the Board of Water Supply, questioned the reliability of those systems.

"Did those systems stop the recent leaks from happening? Did those systems allow them to track where that fuel was going? Did those systems do what Mr. Jensen called the early warning signs? So we would make sure that nobody in the public was damaged? No. How did we find out that there was fuel in the drinking water? Because people turned on their taps, and they smelled it and they tasted it. And they saw their dogs getting sick and their children getting rashes on their bodies," Gannon said.

Hargrove hopes the lessons from "A Christmas Carol" will be heeded.

"The question for the Navy now is having seen the ghosts of Christmas past, present and future: Why is now not the right time to move the fuel? Why not remove the threat and take the time to figure out what the vulnerabilities are? Why insist stubbornly that the fuel cannot be stored somewhere other than above our aquifer? Dickens didn't write a Christmas story, he wrote a morality tale about how it's never too late to do the right thing. We should not have to wait for the Navy to come to this realization."

Health department hearings officer David Day hopes to have a final recommendation prepared by early next week. The recommendation will then go to Deputy Director of Health Marian Tsuji for a final determination.

Jason Ubay is the managing editor at Hawaiʻi Public Radio. Send your story ideas to him at jubay@hawaiipublicradio.org.
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