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Military appeals Hawaiʻi order to drain Red Hill fuel tanks

Kathleen Hicks tours Navy Red Hill Bulk Fuel Storage Facility
Staff Sgt. Brittany Chase/Office of the Secretary of Defense
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Deputy Secretary of Defense Dr. Kathleen Hicks tours Red Hill Bulk Fuel Storage Facility with senior Naval leadership on Oʻahu, Hawaiʻi, Dec. 14, 2021. (DoD photo by U.S. Air Force Staff Sgt. Brittany A. Chase)

Attorneys for the U.S. Navy on Wednesday appealed Hawaiʻi's order to drain the Red Hill fuel tanks above Pearl Harbor, saying the state wrongly concluded the tanks posed an imminent threat that requires immediate action.

A complaint filed in U.S. District Court in Honolulu asks a judge to stop the order. It also argues the state overstepped its authority.

The motion said the Navy hopes to resolve its differences with Hawaiʻi through negotiation but filed a complaint anyway because of time restrictions under Hawaiʻi law.

Hawaiʻi last month ordered the Navy to drain its tanks at the Red Hill Bulk Fuel Storage Facility after fuel leaked from the complex into a drinking water well and contaminated tap water at Pearl Harbor homes and offices. Thousands of people have been treated for physical ailments and 4,000 military families are staying in hotels because of the leak.

The state Department of Health said it looked forward to taking its “fight to court.”

“This appeal proves undeniably the Navy is unwilling to do what’s right to protect the people of Hawaiʻi and its own service members,” Kathleen Ho, Hawaiʻi’s deputy director of environmental health, said in a statement. "Despite the Navy claiming time and again that it would comply with the DOH emergency order, its actions consistently prove otherwise."

Gov. David Ige issued the emergency order on Dec. 6. The order said the Navy wouldn’t be allowed to use the tanks again until it showed it could do so safely.

The Navy appealed, prompting the state Department of Health to hold a hearing to consider the challenge. The department’s deputy director then issued a final order on Jan. 3.

The Navy said last month it would comply with the final order, but did not dismiss the prospect of legal challenges. On Monday Deputy Defense Secretary Kathleen Hicks said the military would appeal. Doing so would give the military time “to make evidence-based and transparent decisions,” she said in a statement.

Wednesday's complaint argued the state failed to present evidence that the Red Hill facility itself poses an “imminent peril.” It said the Department of Health failed to give the Navy sufficient opportunity to present evidence and argue whether such imminent peril exists.

There would be plenty of time for the Navy to negotiate with the state about the long-term fate of the facility after it removes fuel from the tanks, said David Henkin, an attorney for Earthjustice. The group is representing the Sierra Club of Hawaiʻi, which intervened in the case as an interested party.

“It is now time for the Navy to stop fighting the emergency order, which seeks to remove the existential threat that the Red Hill facility poses to Oʻahu’s people,” Henkin said. “If the Navy won’t voluntarily defuel the Red Hill tanks, we will vigorously defend the emergency order in court.”

Henkin said he would fight to keep the case in state courts.

"Basically the Navy is asking the federal courts to tell the state of Hawaiʻi what its own laws mean, and that’s not how our system of government works. We have a federal system, where there’s an area of federal law and there’s an area of state law, and state courts decide state law, not federal courts," Henkin said.

Attorneys for the Navy filed a similar motion in state court in case a federal judge decided not to act on its complaint, the filing said.

Separately, the state Department of Health received documents from the Navy submitted to comply with the emergency order. The documents included a plan by an independent third party to assess Red Hill operations for the safe defueling of the tanks. The third party, an engineering firm, will also study design and operational deficiencies and recommended changes to correct those problems.

According to the timeline, contractor Simpson Gumpertz & Heger is expected to complete a final report by April 25.

Read below the federal court filing or click here to open a new tab.

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