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U.S. V Dept .Of Health Hawaii
U.S. V Dept .Of Health Hawaii
TODD KIM
Assistant Attorney General
Environment & Natural Resources Division
U.S. Department of Justice
LUCY E. BROWN (HI Bar #10946)
LESLIE M. HILL (DC Bar #476008)
DAVID D. MITCHELL (IL Bar #6302250)
Environmental Defense Section
P.O. Box 7611
Washington, D.C. 20044-7611
Tel: (202) 598-1868 (Brown)
Fax: (202) 514-8865
Email: [email protected]
Email: [email protected]
Email: [email protected]
AND INJUNCTIVE
DEPARTMENT OF HEALTH, STATE OF RELIEF
HAWAII; ELIZABETH A. CHAR, in her official
capacity as Department of Health Director;
MARIAN E. TSUJI, in her official capacity as
Department of Health Deputy Director;
Defendants,
and
Intervenor-Defendants.
INTRODUCTION
1. The United States Department of the Navy (the “Navy”) fi les this
(“HRS”) §§ 91-14 and 342L-13 to protect its rights respecting an order issued by
(the “Final Order”). See Exhibit A. The Final Order ounlawfully imposes certain
requirements on the Navy’s management of the Red Hill Bulk Fuel Storage
Facility (“Red Hill” or “Facility”), which stores fuel to support U.S. military forces
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
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statute of limitations that Hawaii law imposes on judicial review of such orders.
2. Since 2015, the Navy has worked closely with the Hawaii Department
and other partners as the Navy conducts environmental analyses and infrastructure
improvements to minimize the threat of any fuel releases at Red Hill. This work
DOH, the Navy, EPA, and the Defense Logistics Agency. The Navy has also
endeavored to obtain all necessary authorizations from DOH for the operation of
gallons of a fuel-and-water mixture that had been released from a fire suppression
drain line located about a quarter of a mile downhill of the fuel tanks at Red Hill.
The Navy quickly initiated an investigation into the release. Following reports of a
chemical or petroleum odor in the water in the Navy’s water distribution system,
the Navy immediately began testing the water and, along with the United States
Army and others, providing potable and bottled water to residents. The Navy has
also provided information and held town halls for the Joint Base Pearl Harbor-
Hickam community and arranged for alternative housing, laundry service, and
medical assistance.
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4. On November 28, 2021, the same day the Navy began receiving
reports of a chemical or petroleum odor in drinking water, the Navy shut down the
Red Hill Shaft, one of three wells the Navy used to service the Navy’s water
distribution system. The Navy later verified that the Red Hill Shaft was
contaminated by the November 20, 2021 release. In coordination with DOH and
EPA, the Navy is in the process of completely flushing and testing the system.
directing the Navy to suspend operations at Red Hill, to install a drinking water
treatment system at Red Hill Shaft, and to take a variety of other actions, including
the defueling of the underground storage tanks at Red Hill. See Exhibit B. On
January 3, 2022, after an expedited hearing, DOH adopted the requirements of the
emergency powers and procedures only when “an imminent peril to human health
and safety or the environment is or will be caused by: (1) A release; (2) Any action
that requires immediate action[.]” The Final Order adopted the reasoning of the
administrative hearings officer that two such “imminent perils” required immediate
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action: first, the November 20, 2021 release; and second, the very existence of Red
Hill.
7. The Navy recognizes that the November 2021 release and subsequent
remediating the situation. The Final Order, however, reaches beyond the
November 2021 release and, in so doing, exceeds the emergency powers granted
DOH under HRS § 342L-9. 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. HRS § 342L-9 was not written to
address long-term issues, which are the subject of other Hawaii statutes. And 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.
protects human health and the environment is the subject of ongoing permitting
storage tanks in June 2021. And the actions necessary to manage long-term risk
for the entire facility are also the subject of the pre-existing administrative
agreement. Though the Navy shares DOH’s commitment to improving Red Hill
and securing the health and safety of Hawaiian citizens and the environment, the
Final Order here was not a lawful means for achieving these ends.
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pursuant to 28 U.S.C. §§ 2201–02 and HRS §§ 91-14 and 342L-13 to protect its
right to present these objections, and, if unable to resolve this matter through
negotiation, requests the Court to reverse, modify, or remand the Final Order in the
PARTIES
11. Defendants in this action are DOH, Elizabeth A. Char, in her official
below and are joined as defendants pursuant to Federal Rule of Civil Procedure
19(a)(1).
States as plaintiff).
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substantial part of the events or omissions giving rise to the claims asserted herein
occurred in this judicial district, and the Facility is situated in this judicial district.
HRS § 342L-9(a).
19. The hearing determined applicable rights, duties, and privileges with
21. On December 27, 2021, the hearings officer issued Proposed Findings
23. On January 3, 2022, Deputy Director Tsuji issued the Final Order,
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25. The United States files this action in federal district court because
federal court when the United States acts as a plaintiff. 28 U.S.C. § 1345.
26. Following the filing of this action, the United States will file a similar
action in Hawaii state circuit environmental court in Honolulu County. That suit
will be filed only out of an abundance of caution in the event that, for any reason,
LEGAL BACKGROUND
the management of solid and hazardous wastes from generation to final disposal.
government must comply with state and local “requirements, both substantive and
§ 6991f(a). “Requirements” include “all administrative orders and all civil and
administrative penalties and fines, regardless of whether such penalties or fines are
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30. Hawaii sought and obtained EPA’s approval to regulate UST systems
Storage Tank Program, 67 Fed. Reg. 60,161, 60,161 (Sept. 25, 2002) (approving
program under EPA’s 1988 UST regulations). On July 30, 2020, EPA proposed to
approve Hawaii’s program revision addressing the 2015 revisions to the federal
HRS division 1, title 19, chapter 342L and Hawaii Administrative Rules title 11,
the event “that an imminent peril to human health and safety or the environment is
or will be caused by: (1) A release; (2) Any action taken in response to a release
immediate action[.]”
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action,” section 342L-9(a) provides that the Governor of Hawaii or the Director of
DOH “may order any person causing or contributing to the peril to immediately
reduce or stop the release or activity, and may take any and all other actions as may
be necessary.”
34. HRS § 342L-9(a) further provides that “[t]he order shall fix a place
and time, not later than twenty-four hours thereafter, for a hearing to be held before
the director.”
35. The term “any person” as used in section 342L-9 includes federal
health and safety and the environment. See generally HAR Chapter 11-280.1,
Subchapter 12.
the long-term operation of a UST system is protective of human health and safety
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38. Under Hawaii state law, “[a] contested case hearing is one that is (1)
required by law and (2) determines the rights, duties, and privileges of specific
parties.” Matter of Haw. Elec. Light Co., Inc., 145 Haw. 1, 13, 445 P.3d 673, 685
Administrative Procedure Act, HRS division 1, title 8, chapter 91, and HAR
40. HRS § 91-9(a) and (b) require that an agency’s notice for a contested
case “shall include . . . the particular sections of the statutes and rules involved”
and “[a]n explicit statement in plain language of the issues involved and the facts
alleged by the agency in support thereof,” as well as “an opportunity for hearing
42. HRS § 91-12 states that “[e]very decision and order adverse to a party
stated in the record and shall be accompanied by separate findings of fact and
conclusions of law. If any party to the proceeding has filed proposed findings of
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fact, the agency shall incorporate in its decision a ruling upon each proposed
finding so presented.”
the “substantial rights” of the aggrieved party have been prejudiced by the order
remand the case to the agency with instructions for further proceedings without
FACTUAL BACKGROUND
45. The Navy owns and operates the Red Hill Bulk Fuel Storage Facility
46. The Facility stores jet propellant fuel, aviation turbine fuel, and
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47. The Facility was built by the United States during World War II and
48. There are 20 bulk USTs at the Facility, 14 of which currently contain
fuel. Each tank is 100 feet in diameter, 238 to 250 feet in height, and can store up
49. Each UST has a double block and bleed valve for isolation (positive,
verifiable shutoff) of the UST and its fuel from the rest of the Facility.
50. Fuel is transferred in and out of the tanks via pipelines located in a
concrete tunnel that runs between the tanks and Pearl Harbor. The pipelines are
responsibility.
(“AOC”) with DOH, EPA, and the Defense Logistics Agency (“DLA”) to take
steps to ensure that the groundwater resource in the vicinity of the Facility is
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protective manner. The AOC “provides for the performance by Navy and DLA of
of future releases in connection with the . . . Facility . . . and on any property that
requirements that the Navy and DLA must fulfill to ensure that Red Hill is
resource in the vicinity of the Facility is protected. The AOC and Statement of
Work require the Navy and DLA to submit deliverables to EPA and DOH for
approval or modification.
[HRS § 342L-9 enforcement] shall be taken in relation to any activity within the
scope of this AOC unless a Party has first made good faith efforts to address the
issue through a modification to this AOC and, if necessary, through the Dispute
56. DOH is the regulatory agency authorized to issue permits for the
operation of USTs in the State of Hawaii. The DOH Director may issue such
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permits for up to five years if the Director determines that doing so would “be
57. DOH’s UST regulations required the Navy to apply for a permit to
operate the USTs at Red Hill by July 15, 2019. See HAR §§ 11-1-280.1-
10(a)(1)(A), 11-280.1-323.
59. In a letter dated July 16, 2019, DOH confirmed the Navy’s application
to be timely. DOH further stated that it intended to allow the Navy to continue to
operate the Red Hill UST system until a decision on the permit application was
rendered.
60. When DOH issued the draft permit for public notice and comment,
Sierra Club and BWS requested a contested case hearing. DOH Environmental
hearing.
61. A contested case hearing was held before a DOH hearings officer
from February 1–8, 2021 and was reopened on July 7, 2021 to receive additional
62. The hearings officer took evidence and testimony on geology and
subsurface characteristics at Red Hill; groundwater at and near Red Hill; past
releases of fuel; soil vapor and groundwater monitoring; tank construction and
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compliance with the Hawaii Administrative Rules; tank inspection, repair, and
and repair; extent of the monitoring well network; seismicity; and a release that
Decision and Order, Findings of Fact, and Conclusions of Law (“Permit Proposed
Order”) recommending that DOH issue a permit authorizing the Navy to operate
and maintain Red Hill for a period of five years subject to certain conditions.
64. In November 2021, EHA, Sierra Club, and BWS moved to reopen the
65. The hearings officer has withdrawn the Permit Proposed Order “for
possible revision following the receipt of further evidence and information” in the
66. On or about May 6, 2021, operator error during a fuel transfer caused
a transient pressure surge in a pipe near some of the Red Hill USTs.
67. The pressure surge caused a rupture in the pipe, from which fuel was
released into the lower access tunnel area beneath the USTs.
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68. The Navy promptly notified DOH about the spill. The Navy
estimated that approximately 1,600 gallons of fuel had been released, but believed
69. The May 6, 2021 release was from a ruptured pipe, and not from the
USTs.
70. On or about November 20, 2021, a drain line for the fire suppression
system at Red Hill was damaged at a point in the concrete tunnel approximately a
quarter-mile downslope from the Red Hill USTs, releasing a fuel-water mixture
72. The fire suppression system is designed to collect dispersed agent and
other liquids from firefighting incidents in retention sumps. The contents are then
transferred via sump pump to a fire suppression system retention tank. The
collection lines are ordinarily empty and are not connected to the fuel pipelines or
USTs.
73. There is no evidence that the November 20, 2021 release was due to a
74. The Navy believes the May 6 and November 20, 2021 releases are
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75. On November 23, 2021, the Commander, U.S. Pacific Fleet, convened
76. The Navy owns and operates a water system that pumps water from
77. Three wells supply the Navy’s drinking water system: the Red Hill
Shaft, Navy Aiea-Halawa Shaft, and Waiawa Shaft. The November 20, 2021
release migrated to the Red Hill Shaft and contaminated the Red Hill Shaft.
78. The Navy shut down Red Hill Shaft on November 28, 2021, after
receiving complaints from residents of PPV Housing and JBPHH about the odor of
79. The Navy immediately began sampling water within its water
distribution system, and has continued to do so. The Navy promptly conveys
81. By November 30, 2021, the Navy had begun providing bottled and
bulk replacement water supplies to all affected residents and users served by its
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the command investigation convened on November 23, 2021, directing that the
investigating officer investigate whether the events of May 6 and November 20,
84. On December 7, 2021, the Secretary of the Navy directed the Chief of
Naval Operations to continue isolating the Red Hill and Aiea-Halawa Shafts until
the water distribution main and all affected homes and buildings have been flushed
and can be supplied with potable water that meets EPA drinking water standards.
85. To treat the water at Red Hill Shaft, the Navy purchased two Granular
million gallons per day, a system that can be replaced by a permanent water
86. The Navy is supplying water from the unaffected Waiawa Shaft to
affected housing.
87. The Navy utilized 25 smaller GACs to flush and treat the water
distribution system. Initial flushing of all distribution lines has been completed.
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88. The Navy is also flushing and testing all affected homes and
buildings.
89. The Navy voluntarily suspended operations at the Red Hill USTs until
HRS § 342L-9.
91. The Emergency Order states that it is “based upon recent impacts on
the [Navy’s] drinking water system incident to the operation of the Red Hill Bulk
92. The Emergency Order describes the “Situation” presented as: the
complaints from water users of a gas or fuel odor from their drinking water, the
Navy’s acknowledgment that Red Hill Shaft is the source of the fuel
contamination, and the absence of on-site remedies available to treat the water
prior to distribution.
failures on the part of the Navy to submit deliverables under the AOC that satisfy
DOH, uncertainty as to the amount of fuel released in the May 6, 2021 incident,
the possibility that the November 20, 2021 incident released fuel into the
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94. The Emergency Order does not state that the Red Hill Facility itself is
an imminent peril requiring immediate action. Nor does the Emergency Order
state that the “configuration and operation of the Facility” is the basis for the order.
The Emergency Order does not specify that “the configuration and operation of the
Facility” itself authorizes action under HRS § 342L-9. However, DOH’s later
including, but not limited to, fuel transfers at the Bulk Fuel Storage Tanks at the
regulations.”
97. Directive Two requires the Navy to “[t]ake immediate steps to install
Drinking Water Act and applicable regulations and minimize movement of the
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practicable.”
98. Directive Three directs the Navy to, “[w]ithin 30 days of receipt of
Facility operations and system integrity to safely defuel the Bulk Fuel Storage
99. Directive Four requires the Navy to, “[w]ithin 30 days of completion
of required corrective actions under Item 3, defuel the Bulk Fuel Storage Tanks at
100. Directive Five directs the Navy to perform an overall long-term risk
party approved by the Department, to assess operations and system integrity of the
Facility to determine design and operational deficiencies that may impact the
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101. The Emergency Order does not state how the Directives relate to, and
102. Emergency Order Directive 1 does not provide how or when it will
terminate.
environment.” Directive 4 does not state how or when such a determination would
be made.
104. DOH has not utilized the dispute resolution requirements of the AOC
to address any alleged long-term risk associated with the configuration and overall
VIII. Contested Case Hearing on the Emergency Order and Final Order
Director Tsuji “all powers, rights, and duties necessary to make a final
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108. The hearings officer scheduled one day for hearing testimony; Navy
and DOH were each allowed three hours to conduct direct and cross-examination
of witnesses. Sierra Club and BWS were each allowed two hours for the same.
109. At the hearing, the Navy introduced four witnesses and 65 exhibits,
DOH introduced four witnesses and 51 exhibits, BWS introduced two witnesses
and 342 exhibits (amounting to over 42,000 pages), and Sierra Club introduced six
110. The Navy filed 223 proposed findings of fact (“FOFs”) and 22
proposed conclusions of law (“COLs”). DOH, Sierra Club, and BWS jointly filed
111. The hearings officer issued a Proposed Order on December 27, 2021.
Although the Emergency Order states that it is based on “recent impacts to the
[Navy’s] drinking water system,” the Proposed Order concludes that the
Emergency Order “alleges two separate, but related ‘perils.’” The Proposed Order
states that the “first alleged ‘peril’ concerns the November 2021 Release, the
contamination of the Red Hill Shaft, the harm caused to Hawaii residents, and the
response thereto.” The Proposed Order states that the “second alleged ‘peril’ is the
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Red Hill Facility itself, based upon the history of releases, the lack of ‘necessary
environmental protection to rapidly identify and remediate fuel leaks,’ and the
assertion that the Navy ‘has not demonstrated that immediate and appropriate
response actions are available, and therefore cannot ensure that immediate and
appropriate response actions will be available should another release occur[] in the
future.’” The Proposed Order adopts all five Directives of the Emergency Order
but does not explain how or why each Directive may be necessary based on the
November 2021 release or based on the Red Hill Facility as currently configured
and operated.
113. FOFs 33, 42, 60, and 61 of the Proposed Order are the only findings
114. The Final Order did not rule on any of the FOFs proposed by any
party.
115. The Final Order adopted the Proposed Order in all respects except for
116. The Final Order does not take into account efforts the Navy has taken
or will take in response to the November 2021 release pursuant to orders from the
Secretary of the Navy. With respect to future actions of the Navy, the Final Order
states that the commitments of the Secretary of the Navy “can be rescinded, in
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whole or in part . . . at any time.” The Final Order does not appear to take into
The Evidence Presented Does Not Support a Finding that the Configuration
and Operation of the Red Hill Facility Itself Poses an Imminent Peril
Requiring Immediate Action Under HRS § 342L-9
117. The United States realleges and incorporates, as though fully set forth
herein, each and every allegation in paragraphs 1 through 116 of this Complaint.
118. The Final Order is based on a finding that there are two alleged
imminent perils requiring immediate action, the first being the November 2021
release and the second being the configuration and operation of Red Hill itself.
119. Contrary to the second finding, the configuration and operation of the
Red Hill Facility itself is not an imminent peril that requires immediate action
120. The Final Order Directives, insofar as they are based on an imminent
peril requiring immediate action that is caused by or that will be caused by the
configuration and operation of the Red Hill Facility itself, are in excess of DOH’s
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DOH Has Not Shown That the Final Order Directives Are Necessary to
Address the Configuration and Operation of the Red Hill Facility Itself, And
Hence Could Be Authorized Under HRS § 342L-9
121. The United States realleges and incorporates, as though fully set forth
herein, each and every allegation in paragraphs 1 through 120 of this Complaint.
122. DOH has not shown that the Final Order Directives may be necessary
to address the second alleged imminent peril requiring immediate action, i.e., the
123. The Final Order Directives, to the extent they are based on the
configuration and operation of Red Hill itself are thus in excess of DOH’s statutory
law.
DOH Has Not Shown that Final Order Directives 3, 4, and 5 Are
Authorized Under HRS § 342L-9 to Address the November 2021 Release
124. The United States realleges and incorporates, as though fully set forth
herein, each and every allegation in paragraphs 1 through 123 of this Complaint.
125. DOH has not shown that Final Order Directives 3, 4, and 5 may be
action that was caused by or will be caused by the November 2021 release.
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law.
Directives 1 and 4 Are Not Authorized Under HRS § 342L-9 Because They Do
Not Provide Sufficient Standards for Their Termination
127. The United States realleges and incorporates, as though fully set forth
herein, each and every allegation in paragraphs 1 through 126 of this Complaint.
not provide sufficient standards for its termination under HRS § 342L-9.
129. Final Order Directive 4, requiring the defueling of the USTs, does not
130. Final Order Directives 1 and 4 do not consider actions that the Navy
has taken and will take to address the perils alleged to require immediate action in
the Final Order. Final Order Directives 1 and 4 do not provide for relief from or
Navy’s completion of the corrective actions alone. Final Order Directives 1 and 4
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and, on the record presented in the contested case hearing, is clearly erroneous;
herein, each and every allegation in paragraphs 1 through 131 of this Complaint.
133. DOH did not provide adequate notice under HRS § 91-9(b) that the
requiring immediate action that was caused by or that will be caused by the current
134. DOH did not provide adequate notice under HRS § 91-9(a) and (b)
that any contested hearing would consider whether an imminent peril requiring
135. The contested hearing did not afford the Navy sufficient opportunity
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action exists or will be caused by the current configuration and operation of the
Red Hill Facility itself was in violation of HRS § 91-9; in excess of DOH’s
herein, each and every allegation in paragraphs 1 through 136 of this Complaint.
138. The Final Order failed to provide citation to any evidence from the
contested hearing record for all FOFs other than the FOFs in paragraphs 33, 42, 60,
and 61.
139. The Final Order failed to rule on any of the proposed FOFs submitted
hearing record for its FOFs and failure to rule on any of the proposed FOFs was in
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WHEREFORE, the United States respectfully requests that this Court grant
(1) Declare that DOH exceeded its authority under HRS § 342L-9;
(2) Declare that the Final Order Directives are not authorized under
HRS § 342L-9 to the extent they are founded on a finding that the configuration
and operation of the Red Hill Facility itself constitutes an imminent peril requiring
immediate action; and, with respect to said peril, that the Directives are clearly
(3) Declare that Final Order Directives 3, 4, and 5 are not authorized
under HRS § 342L-9 to the extent they are founded on a finding of imminent peril
requiring action resulting from the November 2021 Release; and, with respect to
said peril, that Directives 3, 4, and 5 are clearly erroneous; arbitrary, capricious,
(4) Declare that Final Order Directives 1 and 4 are not authorized under
HRS § 342L-9 because they lack sufficient standards for their termination;
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(7) Vacate those portions of the Final Order that are based on a finding
that the configuration and operation of the Red Hill Facility itself is an imminent
(8) Remand the Final Order to DOH for actions consistent with the
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TODD KIM
Assistant Attorney General
Environment & Natural Resources Division
U.S. Department of Justice
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Exhibit A
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Exhibit A
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Case 1:22-cv-00051 Document 1-2 Filed 02/02/22 Page 1 of 6 PageID #: 38
Exhibit B
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Exhibit B
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Case 1:22-cv-00051 Document 1-2 Filed 02/02/22 Page 4 of 6 PageID #: 41
Case 1:22-cv-00051 Document 1-2 Filed 02/02/22 Page 5 of 6 PageID #: 42
Case 1:22-cv-00051 Document 1-2 Filed 02/02/22 Page 6 of 6 PageID #: 43
Case 1:22-cv-00051 Document 1-3 Filed 02/02/22 Page 1 of 34 PageID #: 44
Exhibit C
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Filed 12/27/2021, 12:10 p.m.
DEPARTMENT OF HEALTH
STATE OF HAWAII
Complainant,
HEARINGS OFFICER’S PROPOSED
vs. DECISION AND ORDER, FINDINGS OF
FACT, AND CONCLUSIONS OF LAW
UNITED STATES DEPARTMENT OF
THE NAVY,
Respondent,
vs.
Intervenors.
Exhibit C
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The Hearings Officer held an evidentiary hearing on December 20 and 21, 2021.
Respondent United States Department of the Navy (“Navy”); Intervenor Honolulu Board
The record of the evidentiary hearing consists of the following, including any
other evidence admitted into the record not expressly mentioned here:
Testimony
· Declaration of James B. Balocki (filed Dec. 18, 2021; also Ex. N-1)
· Declaration of James G. Meyer (filed Dec. 18, 2021; also Ex. N-2)
· Declaration of Sherri R. Eng (filed Dec. 18, 2021; also Ex. N-3)
· Declaration of Captain Michael B. McGinnis (filed Dec. 18, 2021; also Ex. N-
4)
Case 1:22-cv-00051 Document 1-3 Filed 02/02/22 Page 4 of 34 PageID #: 47
Exhibits
The following exhibits were uploaded into the joint Sharepoint exhibit database
· Intervenor Board of Water Supply’s Updated Exhibit List (filed Dec. 21, 2021)
· Navy’s Witness List and [Amended] Exhibits (found in the Exhibit database,
The parties submitted their own proposed findings of fact and conclusions of law.
Pursuant to instructions of the Hearings Officer on December 17 and 21, 2021, on the
record, the Hearings Officer advised the parties that due to the size of the evidentiary
record and the emergency nature of the proceedings, he would be entitled to rely upon
the parties to direct the Hearings Officer to the relevant portions of the evidentiary
record in support of their arguments. See HRS § 91-10 (“[N]o sanction shall be
imposed or rule or order be issued except upon consideration of the whole record or
declarations and exhibits admitted into evidence, and heard the statements and
arguments of counsel. The Hearings Officer is fully advised. Pursuant to HAR § 11-1-
1The declarations of the Navy’s counsel in this proceeding Marnie E. Riddle are
exhibits N-5, N-6, and N-7.
2
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42(a)(1), the Hearings Officer makes the following Proposed Decision and Order,
***
I. FINDINGS OF FACT
To the extent that these findings of fact contain conclusions of law, they shall be
considered as such.
examination, the weight of the evidence supports the following findings of fact.
3. The findings herein are brief, definite, and pertinent findings. They are not
elaborate findings nor negative findings in every instance. The findings do not state
every option considered, but that does not mean that such options were not considered.
See Jarrell v. Jarrell, No. 29124, 2013 WL 216302, at *5 (App. Jan. 18, 2013) (SDO).
evidence.
5. The Red Hill Bulk Fuel Storage Facility (“Red Hill Facility”) is a field-
constructed underground storage tank (“UST”) system on the Island of Oʻahu in the
6. The Navy is the owner and operator of the Red Hill Facility.
3
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7. The Red Hill Facility was constructed by the United States during World
8. The Red Hill Facility occupies approximately 144 acres of land along the
western edge of the Ko‘olau Range situated on a topographic ridge that divides the
9. The twenty USTs were constructed during the early 1940s by mining into
the ridge to create cavities for concrete tanks lined with ¼ inch steel plates welded
together. The USTs are constructed of concrete lined with steel, with the floor
constructed out of ½ inch steel and walls constructed of ¼ inch steel. The lower dome
is surrounded by reinforced concrete that has a minimum thickness of 4 feet, except for
the 20-foot diameter flat bottom plate at the center of the lower dome which sits on top
the cylindrical barrel of the UST is an estimated minimum of 2.5 to 4 feet of concrete.
10. Each UST is approximately 250 feet tall, 100 feet in diameter, and
provides a fuel storage capacity of up to 12.5 to 12.7 million gallons of jet or marine fuel.
11. In addition to the twenty USTs, the Red Hill Facility includes seven miles
of tunnels with 29 miles of pipelines, ventilation systems with air intakes and exhaust
portals, a pumphouse, control room, surge tanks, slop oil and oil recovery facilities, and
///
///
4
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12. The Red Hill USTs store marine diesel (F-76) and two types of jet fuel (JP-
5 and F-24).
13. The Red Hill Facility provides fuel to domestic military services that
operate in the Pacific Area of Responsibility, including the Navy, U.S. Air Force, U.S.
Marine Corps, U.S. Army, Hawaiian National Guard, and the U.S. Coast Guard, and is
also available to support civilian authorities in the event of a local emergency or natural
disaster.
14. The USTs are connected to three pipelines that run for approximately 2.5
Harbor. The fuel can be moved from the Red Hill Facility USTs to Pearl Harbor via
gravity.
15. Two of the USTs (Tanks 1 and 19) are permanently empty and are no
longer in use. Another four USTs are currently empty as part of the Navy’s ongoing
clean, inspect, and repair program. The Navy generally stores fuel in 14 or 15 USTs at
the Red Hill Facility, with a total capacity of over 187 million gallons of fuel.
D. The Red Hill Facility is Situated Directly Above the Southern Oʻahu
Basal Aquifer
16. The Red Hill Facility sits directly above O‘ahu’s federally designated sole-
17. The bottoms of the USTs are located approximately 100 feet above the
groundwater aquifer used as a drinking source by the BWS and the Navy.
19. This aquifer is the principal source of drinking water for the island.
5
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20. Seventy-seven percent of the total island-wide water supply comes from
21. The BWS draws on the same aquifer that underlies the Red Hill Facility to
sources, which provides fifty percent or more of the drinking water to the designated
area, nor is there any demonstrated available alternative future source capable of
23. The environment that underlies the Red Hill Facility is sensitive.
25. There have been numerous reported releases from the Red Hill Facility
over the past 80 years or so: at least 76 incidents involving nearly 200,000 gallons of
fuel. More likely than not, these figures understate the true number of releases or the
26. Fuel releases have been a constant threat since the Red Hill Facility
27. In January 2014, the Navy reported a release into the environment of
approximately 27,000 gallons of fuel from Tank 5 (“January 2014 Release”). This
release occurred during the filling of Tank 5. Although the release occurred between
December 12, 2013 and January 6, 2014, the Navy did not verbally report the release to
6
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28. On May 6, 2021, there was a pressure surge event resulting in the release
of an initially reported approximately 1,600 gallons of jet fuel from supply piping in the
lower access tunnel tanks during the refilling of Tank 20 on May 6, 2021 (“May 2021
Release”). The 1,600 gallons of fuel reported released was likely lower than what was
actually released.
29. On July 16, 2021, there was a fuel release from a pipeline at Kilo Pier of
evidenced by detection of fuel and fuel constituents in the Navy’s drinking water supply,
the groundwater under the Red Hill Facility, and the soil vapor monitoring probes in the
31. In September 2015, the Navy and the Defense Logistics Agency—the
owner of the fuel stored at Red Hill—entered into an administrative order of consent
(“AOC”) with the Environmental Protection Agency and the DOH requiring the Navy to
conduct certain investigations and other work to address fuel releases from Red Hill.
The AOC includes a Statement of Work (“SOW”) that outlines various actions that are
“necessary to address potential impacts to human health, safety and the environment …
due to historical, recent and potential future releases at the [Red Hill] Facility.”
32. The AOC SOW consists of eight sections including: Section 1: Overall
Testing; Section 5: Corrosion and Metal Fatigue Practices; Section 6: Investigation and
7
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part:
34. On November 20, 2021, a release of fuel occurred at the Red Hill Facility
approximately 14,000 gallons of a mixture of fuel and water from the fire-suppression
system at the Red Hill Facility from the Navy’s fire suppression system on November
20, 2021.
35. At the evidentiary hearing, the Navy presented a “working theory” for what
happened. The Navy’s theory was that the May 2021 Release was the source of the
fuel, or that the two releases are related, and that fuel made its way into the fire-
suppression system. The Navy did not state with any exacting reliability a full picture of
8
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36. The November 2021 Release caused the Red Hill Shaft, a drinking-water
37. Approximately one week following the November 2021 Release, fuel
flowed from the Red Hill Shaft to occupied structures, including the homes of residents
38. Men, women, children, and pets drank and used the contaminated water.
40. The testimony of Kimberly Charters and Carly Lintner and the video
evidence of other victims relating their experiences were highly credible and perhaps
the most important to the overall factual balancing in a finding that the November 2021
41. Everything about this evidence spoke three words: disaster, crisis,
emergency. This evidence, in conjunction with the other record evidence, establishes
that:
a. The water contamination was widespread and not unique to any one
person.
b. The water coming from their taps into their homes was not just mildly
c. The Navy did not provide sufficient warning; people discovered for
themselves that the water was poisoned based upon strong odors of
fuel emanating from the water, or when they or their pets got sick.
9
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f. Pets became ill, requiring medical attention, and at least one was
potentially killed.
42. The testimony of the Navy’s witnesses Captain James G. Meyer and
Captain Michael B. McGinnis is also important. Both witnesses testified that the
November 2021 Release and the water contamination caused a crisis that is still being
addressed.
43. Additionally, the Navy does not yet know the full extent of the health
effects of the contamination. People whose homes received contaminated water from
the Navy’s water system had suffered stomachaches, vomiting, nausea, diarrhea, skin
rashes, sore throats, burning eyes, headaches, and difficulty breathing, including
illnesses requiring emergency medical attention. People are still suffering mental and
44. The Navy shut down its Red Hill Shaft and the ‘Aiea-Hālawa Shaft in
10
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45. After the November 2021 Release, BWS shut off three of its well stations
46. The Secretary of the Navy ordered the cessation of all operations at the
samples taken by DOH on December 5, 2021 from the Navy’s Red Hill Shaft drinking
water well indicates that the Navy’s drinking water supply was contaminated with TPH-d
levels as high as 140,000 µg/L, significantly higher than DOH environmental action level
(“EAL”). TPH-g levels (regarding other fuel) were as high as 20,000 µg/L. The TPH-d
level is 350 times the DOH’s EAL for drinking water toxicity, which is 400 µg/L. The
DOH’s EAL for drinking water toxicity is 300 µg/L for TPH-g.
48. In December 2021, diesel fuel levels in samples from the Navy’s water
distribution system at its ‘Aiea Hālawa Shaft were more than double the state-approved
levels for drinking water. This indicates that the environmental damage extends beyond
49. The Navy does not have a permanent water treatment system to address
11
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55. The Navy does not know precisely what happened. The Navy does not
know why or how the November 2021 Release happened at this time.
56. The Navy does not know exactly how the environment has been damaged
57. The Navy does not know the exact long-term consequences of the
58. The Navy still does not know what it intends to do to address any root
and operated, poses an imminent threat to human health and safety or the environment.
60. The most weighty, important evidence underpinning this finding are (1) the
expert report and testimony of David M. Norfleet, and (2) the facts relating to the history
of releases from the Red Hill Facility (and especially the facts surrounding the
November 2021 Release and the aftermath) notwithstanding the Navy’s best efforts.
61. First, Mr. Norfleet’s expert report and testimony were perhaps the most
important pieces of evidence in the whole evidentiary hearing. Mr. Norfleet was
credible. His ultimate opinions survive scrutiny and are weighty enough to establish the
presented.
62. The facts established by his report and testimony and borne out by the
a. More releases of fuel from the Red Hill facility are basically inevitable.
12
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b. The Red Hill USTs have a history of leaking and will continue to leak.
understated percentage.
f. The Navy cannot prevent future releases at the Red Hill Facility.
h. The Red Hill Facility is nearing the end of its life and has reached the
“end-of-life” phase.
release, the probability of a release over the next five years is approximately 80%, with
a release of that size occurring over the next ten years approximately 96%, and a
64. Among the additional facts established by Mr. Norfleet and the record
evidence are:
a. The 76 reported fuel releases are more likely than not only a portion
b. The size and scope of the Red Hill USTs are unprecedented in the oil
13
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c. The Red Hill USTs have a serious corrosion problem that the Navy
d. Leaked fuel can reach the environment at large and cause harm.
65. Second, the history of releases, notwithstanding the Navy’s best efforts to
66. The November 2021 Release is in a way unique like all releases are in
their way unique. But taking a larger view, the November 2021 Release is simply
another datapoint along the Red Hill Facility’s track record establishing that the
problems with the Red Hill Facility, as it is currently situated, are beyond the Navy’s
ability to control.
67. In just this year, there were at least two releases before the November
2021 Release.
68. The Navy is not reliable with respect to monitoring whether leaks are
occurring, determining how much fuel is released into the environment when leaks
14
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69. The Navy initially estimated the May 2021 Release from the transfer of
fuel between Red Hill tanks at approximately 1,000 gallons. Four months later, the
Navy revised its estimate upward to 1,618 gallons and claimed that it successfully
recovered all but 38 gallons of fuel. The Navy now hypothesizes—but does not know—
that the May 2021 Release may be the source of the November 2021 Release of jet
fuel.
70. The fact that the Navy theorizes that the May 2021 Release and the
November 2021 Release are connected evidences a lack of understanding of, and
71. The Navy obviously does not want the Red Hill Facility to release fuel, and
the Navy is trying to prevent releases. But despite everything the Navy is attempting to
do, it is not enough: the evidence shows that the Red Hill Facility is simply too old, too
poorly designed, too difficult to maintain, too difficult to inspect, along with being too
large to realistically prevent future releases. It is not just one problem but a combination
of many.
72. The Navy’s inability to prevent the previous releases, or the November
2021 Release, from happening, and inability to sufficiently respond to the November
2021 Release to prevent harm to Oʻahu residents—despite all of its efforts to prevent
73. In sum, the situation is beyond the Navy’s ability to adequately mitigate
the threats posed by the continued operation of the Red Hill Facility, with USTs filled
15
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74. The threat of future releases poses an imminent peril to human health and
75. Not only does the year-to-year probability of a significant release make a
future release basically inevitable, the contamination of the Red Hill Shaft and its effect
on Oʻahu residents in just the past month is incontrovertible evidence of the peril.
76. It could be much worse. An unprecedently large UST system 100 feet
dangerous.
77. There are pathways for fuel to travel from the Red Hill Facility to the
environment at large.
78. Fuel released from the Red Hill Facility presents a risk to the groundwater
underlying the Red Hill Facility and the sole source aquifer generally.
79. Sampling from under and around the Red Hill Facility has demonstrated
80. The area beneath the Red Hill Facility does not absorb fuel well enough to
mitigate the peril to human health and safety or the environment at large.
81. The layers of protection intended to prevent releases from entering the
82. Test results indicate that, prior to the November 2021 Release, petroleum
constituents have been detected in Red Hill Shaft as high as 490 µg/L in 2020 and in
Red Hill Shaft as high as 540 µg/L in August 2021 and in Red Hill Monitoring Wells 16
16
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83. As long as fuel remains in the Red Hill USTs, both acute and chronic fuel
84. The presence of fuel in the Red Hill USTs is an ongoing threat to human
85. Both parties have raised other points regarding what the Navy is or is not
doing, sampling, monitoring, modeling, testing, deliverables under the AOC, who is at
fault for delays, and the like. Specific findings on these points are unnecessary in this
emergency proceeding where the weight of the evidence underlying the above findings
are dispositive.
authorized an investigation into the cause of the May 2021 and November 2021
sufficiently high-ranking Naval authority, without the DOH or anyone else being able to
prevent it.
89. On December 6, 2021, the DOH issued the Emergency Order to the Navy.
The Emergency Order requires the Navy to (1) “[i]mmediately suspend operations
including, but not limited to, fuel transfers at the Bulk Fuel Storage Tanks at the Facility.
release response protocols, and compliance with applicable regulations,” (2) “[t]ake
immediate steps to install a drinking water treatment system or systems at Red Hill
17
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the Safe Drinking Water Act and applicable regulations and minimize movement of the
contaminant plume(s). The treatment system(s) shall be reviewed and approved by the
(3) “[w]ithin 30 days of receipt of this EO, submit a workplan and implementation
to assess the Facility operations and system integrity to safely defuel the Bulk Fuel
Storage Tank. Upon the Department’s approval of the assessment, workplan and
of completion of required corrective actions under Item 3, defuel the Bulk Fuel Storage
Department that it is protective of human health and the environment,” and (5) “[w]ithin
operations and system integrity of the Facility to determine design and operational
deficiencies that may impact the environment and develop recommendations for
corrective action. Submit the assessment, proposed work and recommendations for
18
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90. By letter dated December 7, 2021, the Navy informed the DOH of its intent
Memorandum for the Chief of Naval Operations, titled “Immediate Actions: Red Hill
a. The cessation of all operations at the Red Hill USTs until the
b. The continuing isolation of the Red Hill and Halawa wells which the
Navy operates, until the water distribution main and all affected
homes and buildings have been flushed and can be supplied with
that may impact the environment and to develop a work plan and
as expeditiously as possible.
19
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operation.
93. The December 7, 2021 Memorandum was partially modeled upon, and
the five directives in the Emergency Order are necessary and appropriate in the
circumstances.
96. There is no guarantee that the Navy will begin operating the Red Hill
Facility again only after the perils to human health and safety or the environment
97. There is no guarantee that the Navy will not act in the perceived best
interest of the Navy, notwithstanding the threats to the health and safety of the people of
98. Under the December 7, 2021 Memorandum, the Navy ultimately decides
suspend operations including, but not limited to, fuel transfers at the Bulk Fuel Storage
20
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release detection and release response protocols, and compliance with applicable
regulations.” These actions are necessary and designed to reduce or stop the imminent
peril caused by the November 2021 Release and continuing operations at the Red Hill
100. Item 2 of the Emergency Order requires the Navy to “[t]ake immediate
steps to install a drinking water treatment system or systems at Red Hill Shaft to ensure
distribution of drinking water conforms to the standards prescribed by the Safe Drinking
Water Act and applicable regulations and minimize movement of the contaminant
plume(s). The treatment system(s) shall be reviewed and approved by the Department
are necessary and designed to reduce or stop the imminent peril caused by the
November 20, 2021 Release and continuing operations at the Red Hill Facility as
101. Item 3 of the Emergency Order requires the Navy to “[w]ithin 30 days of
qualified independent third party approved by the Department, to assess operations and
system integrity of the Facility to determine design and operational deficiencies that may
impact the environment and develop recommendations for corrective action to the
perform work and implement correct actions. Corrective actions shall be performed as
stop the imminent peril caused by continuing operations at the Red Hill Facility as
21
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102. Item 4 of the Emergency Order requires the Navy to “[w]ithin 30 days of
completion of required corrective actions under Item 3, defuel the Bulk Fuel Storage
Department that it is protective of human health and the environment.” These actions
are necessary and designed to reduce or stop the imminent peril caused by continuing
103. Item 5 of the Emergency Order requires the Navy to, “[w]ithin 30 days of
qualified independent third party approved by the Department, to assess operations and
system integrity of the Facility to determine design and operational deficiencies that may
impact the environment and develop recommendations for corrective action. Submit the
perform work and implement corrective actions. Corrective actions shall be performed
stop the imminent peril caused by continuing operations at the Red Hill Facility as
104. The weight of the evidence establishes that the November 2021 Release
was a humanitarian and environmental disaster. This disaster was caused by a release
of fuel from the Red Hill Facility. Citizens and residents of the State of Hawai‘i drank
and used water out of their taps that was contaminated with fuel, which caused
substantial physical injury to people and their pets and intolerably upended their lives. It
22
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caused environmental harm to a source of drinking water in the State of Hawai‘i. The
emergency is not over. The disaster caused by the November 2021 Release has not
been resolved. The State of Hawai‘i, DOH, BWS, the individuals affected, and the
public at large have a strong interest in ensuring that the harm caused to people and the
environment is resolved in accordance with the directives of the DOH in the Emergency
Order, which were legally authorized and appropriate. That the November 2021
Release and aftermath constitute an imminent peril to human health and safety or the
105. The weight of the evidence establishes that the Red Hill Facility, as
currently situated, is a metaphorical ticking timebomb located 100 feet above the most
important aquifer on Hawaii’s most populous island. The Red Hill Facility has already
damaged human health and the environment and, as currently situated, inevitably
threatens to do so into the future. The Navy lacks the ability to control the substantial
106. The State of Hawai‘i, DOH, BWS, and the public at large all have a strong
interest in ensuring that the threats posed by the Red Hill Facility do not come to pass.
They have a strong interest in being protected in accordance with the directives of the
DOH in the Emergency Order, which were legally authorized and appropriate. That the
Red Hill Facility, as currently constituted, poses an imminent peril to human health and
To the extent that these conclusions of law contain findings of fact, they shall be
considered as such.
23
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3. The first alleged “peril” concerns a specific event: the November 2021
Release, the contamination of the Red Hill Shaft, the harm caused to Hawai‘i residents,
4. The second alleged “peril” is the Red Hill Facility itself, based upon the
and remediate fuel leaks,” and the assertion that the Navy “has not demonstrated that
immediate and appropriate response actions are available, and therefore cannot ensure
that immediate and appropriate response actions will be available should another
established principles:
24
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Haw. Gov’t Emps. Ass’n, AFSCME Local 152, AFL-CIO v. Lingle, 124 Hawaiʻi 197, 202,
(a) Notwithstanding any other law to the contrary, if the governor or the
director determines that an imminent peril to human health and safety or
the environment is or will be caused by:
(1) A release;
1. Defined Terms
who executed the Emergency Order, is the Deputy Director for Environmental Health
accumulation of regulated substances, and the volume of which (including the volume of
the underground pipes connected thereto) is ten per cent or more beneath the surface
25
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of the ground. HRS § 342L-1. Each of the twenty Red Hill Bulk Fuel Storage Tanks is
10. “Underground storage tank system” means “an underground storage tank,
system, if any.” HRS § 342L-1. The Red Hill Facility constitutes an underground
11. A “release” “includes, but is not limited to, any spilling, leaking, emitting,
12. The Red Hill Facility has a long history of “releases.” Among them, the
January 2014 Release, the May 2021 Release, the Kilo Pier Release, and the
any other legal entity.” The Navy is a “person” for purposes of HRS § 342L-9.
15. The plain meaning of the word “peril” is straightforward. It implies risk, not
See https://www.dictionary.com/browse/peril.
26
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17. Under HRS § 342L-9, a release does not need to be imminent. It is the
18. A release that has already occurred that has damaged human health or
the environment and that is not resolved to DOH’s satisfaction constitutes “an imminent
peril to human health and safety or the environment.” Here, the environment has
already been damaged by the November 2021 Release and remains damaged.
19. With respect to USTs, frequently—as evidenced by the Red Hill Facility’s
substantial history of releases—the DOH is forced to react to an event that has already
occurred. The purpose of HRS § 342L-9, on the other hand, is plainly to provide the
DOH with the ability to prevent harm to human health and safety or the environment
caused by USTs before the harm occurs based upon an assessment of risk. This
assessment of risk does not require the finding of a hole in a tank or that a hole is
likes of which were presented at the evidentiary hearing: a history of releases, scientific
that future releases would cause harm to human health and safety or the environment,
and the continuation of releases even with protocols in place where prior attempts to
take less drastic measures have failed. The analysis will almost inevitably require
prediction and forecasting to have any ability to prevent actual harm to the environment
20. This interpretation is consistent with the fact that the “imminent peril” need
not arise from a release, but may also arise from the “operation of an underground
storage tank or tank system[.]” HRS § 342L-9(a)(3). In other words, the DOH does not
27
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need to show that a release is right upon us before invoking emergency powers.
HRS § 342L-9. The Legislature has stated that this provision is intended to address,
among other things, any improper management of solid and hazardous waste because
the impact on our ground and surface water poses a serious threat to public health and
safety.” 1995 Hawaiʻi Senate Journal, Standing Committee Report No. 1193, at 1276
(emphasis added). As the Legislature has read the statute, “improper management” is
sufficient to trigger HRS § 342L-9 as an “imminent peril to human health and safety or
the environment.”
environmental law, with which HRS § 342L-9 is fully in accord, and the Legislature
acted in accordance with these principles. See, e.g., Haw. Const. art. XI, §§ 1, 7, 9; In
re Waiāhole Ditch Combined Contested Case Hr’g, 94 Hawai‘i 97, 9 P.3d 409 (2000).
23. The Navy argues for an interpretation of “imminent peril” that would
require that the threatened harm become actual harm in a very short period of time, like
a hurricane about to make landfall tomorrow. This interpretation is inconsistent with the
purpose of HRS § 342L-9 and the legislative intent because the purpose of HRS
///
///
///
28
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C. The DOH Was Authorized to Issue the Emergency Order to the Navy
24. Federal law requires all federal agencies, including the Navy, to comply
underground storage tanks in the same manner, and to the same extent, as any person
is subject to such requirements,” including, “but … not limited to, all administrative
orders and all civil and administrative penalties and fines, regardless of whether such
penalties or fines are punitive or coercive in nature or are imposed for isolated,
25. The United States’s express waiver of sovereign immunity subjects the
Navy to the same substantive and procedural requirements as any person under state
laws regulating USTs. See id. (“The United States hereby expressly waives any
immunity otherwise applicable to the United States with respect to any such substantive
or procedural requirement (including, but not limited to, any injunctive relief,
26. The Navy and the Red Hill Facility are subject to federal law, as well as
27. The AOC does not preclude the DOH from exercising its “emergency
part:
29
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29. The right to take action on an emergency basis under HRS § 342L-9 is
31. Emergencies are what the Emergency Order seeks to address, and
32. The November 2021 Release caused an imminent peril to human health
and safety or the environment that still exists and is ongoing. An emergency does exist.
33. The five directives in the Emergency Order are appropriate, authorized,
34. The Navy’s investigation, the December 8, 2021 Memorandum, and any
subsequent remedial measures do not change the analysis. It is the DOH’s job to
ensure that the November 2021 Release is properly remediated and that the Red Hill
USTs are only allowed to operate again once safe. That was the entire point of the
30
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Emergency Order. The fact that the Navy is voluntarily doing some—but not all—of
what the Emergency Order requires, except almost entirely upon the Navy’s own terms,
35. The Red Hill Facility, as currently configured and operated, constitutes an
imminent peril to human health and safety or the environment. An emergency does
exist.
36. The five directives in the Emergency Order are appropriate, authorized,
37. The importance of the Red Hill Facility as fuel storage for the U.S. military
the administrative hearing provided should balance the utility of the USTs with the
imminent perils to human health or the environment caused by those same USTs.
Instead, HRS § 342-9 focuses entirely on protecting people and the environment from
harm. In other words, when there is an emergency situation, the Legislature has made
the policy decision to protect human lives and the environment over any functional utility
of USTs.
///
///
///
31
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JS 44 (Rev. 12/12) CIVIL COVER SHEET
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provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the
purpose of initiating the civil docket sheet. (SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM.)
(b) County of Residence of First Listed Plaintiff County of Residence of First Listed Defendant Honolulu
(EXCEPT IN U.S. PLAINTIFF CASES) (IN U.S. PLAINTIFF CASES ONLY)
NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF
THE TRACT OF LAND INVOLVED.
(c) Attorneys (Firm Name, Address, and Telephone Number) Attorneys (If Known)
(see attachment) (see attachment)
II. BASIS OF JURISDICTION (Place an “X” in One Box Only) III. CITIZENSHIP OF PRINCIPAL PARTIES (Place an “X” in One Box for Plaintiff
(For Diversity Cases Only) and One Box for Defendant)
’ 1 U.S. Government ’ 3 Federal Question PTF DEF PTF DEF
Plaintiff (U.S. Government Not a Party) Citizen of This State ’ 1 ’ 1 Incorporated or Principal Place ’ 4 ’ 4
of Business In This State
’ 2 U.S. Government ’ 4 Diversity Citizen of Another State ’ 2 ’ 2 Incorporated and Principal Place ’ 5 ’ 5
Defendant (Indicate Citizenship of Parties in Item III) of Business In Another State
The JS 44 civil cover sheet and the information contained herein neither replaces nor supplements the filings and service of pleading or other papers as
required by law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is
required for the use of the Clerk of Court for the purpose of initiating the civil docket sheet. Consequently, a civil cover sheet is submitted to the Clerk of
Court for each civil complaint filed. The attorney filing a case should complete the form as follows:
I.(a) Plaintiffs-Defendants. Enter names (last, first, middle initial) of plaintiff and defendant. If the plaintiff or defendant is a government agency, use
only the full name or standard abbreviations. If the plaintiff or defendant is an official within a government agency, identify first the agency and
then the official, giving both name and title.
(b) County of Residence. For each civil case filed, except U.S. plaintiff cases, enter the name of the county where the first listed plaintiff resides at the
time of filing. In U.S. plaintiff cases, enter the name of the county in which the first listed defendant resides at the time of filing. (NOTE: In land
condemnation cases, the county of residence of the "defendant" is the location of the tract of land involved.)
(c) Attorneys. Enter the firm name, address, telephone number, and attorney of record. If there are several attorneys, list them on an attachment, noting
in this section "(see attachment)".
II. Jurisdiction. The basis of jurisdiction is set forth under Rule 8(a), F.R.Cv.P., which requires that jurisdictions be shown in pleadings. Place an "X"
in one of the boxes. If there is more than one basis of jurisdiction, precedence is given in the order shown below.
United States plaintiff. (1) Jurisdiction based on 28 U.S.C. 1345 and 1348. Suits by agencies and officers of the United States are included here.
United States defendant. (2) When the plaintiff is suing the United States, its officers or agencies, place an "X" in this box.
Federal question. (3) This refers to suits under 28 U.S.C. 1331, where jurisdiction arises under the Constitution of the United States, an amendment
to the Constitution, an act of Congress or a treaty of the United States. In cases where the U.S. is a party, the U.S. plaintiff or defendant code takes
precedence, and box 1 or 2 should be marked.
Diversity of citizenship. (4) This refers to suits under 28 U.S.C. 1332, where parties are citizens of different states. When Box 4 is checked, the
citizenship of the different parties must be checked. (See Section III below; NOTE: federal question actions take precedence over diversity
cases.)
III. Residence (citizenship) of Principal Parties. This section of the JS 44 is to be completed if diversity of citizenship was indicated above. Mark this
section for each principal party.
IV. Nature of Suit. Place an "X" in the appropriate box. If the nature of suit cannot be determined, be sure the cause of action, in Section VI below, is
sufficient to enable the deputy clerk or the statistical clerk(s) in the Administrative Office to determine the nature of suit. If the cause fits more than
one nature of suit, select the most definitive.
VI. Cause of Action. Report the civil statute directly related to the cause of action and give a brief description of the cause. Do not cite jurisdictional
statutes unless diversity. Example: U.S. Civil Statute: 47 USC 553 Brief Description: Unauthorized reception of cable service
VII. Requested in Complaint. Class Action. Place an "X" in this box if you are filing a class action under Rule 23, F.R.Cv.P.
Demand. In this space enter the actual dollar amount being demanded or indicate other demand, such as a preliminary injunction.
Jury Demand. Check the appropriate box to indicate whether or not a jury is being demanded.
VIII. Related Cases. This section of the JS 44 is used to reference related pending cases, if any. If there are related pending cases, insert the docket
numbers and the corresponding judge names for such cases.
Date and Attorney Signature. Date and sign the civil cover sheet.
Case 1:22-cv-00051 Document 1-4 Filed 02/02/22 Page 3 of 5 PageID #: 80
I.(a). DEFENDANT-INTERVENORS
SIERRA CLUB;
BOARD OF WATER SUPPLY, CITY AND COUNTY OF HONOLULU
1
Case 1:22-cv-00051 Document 1-4 Filed 02/02/22 Page 4 of 5 PageID #: 81
2
Case 1:22-cv-00051 Document 1-4 Filed 02/02/22 Page 5 of 5 PageID #: 82