`
`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: lucy.e.brown@usdoj.gov
`Email: leslie.hill@usdoj.gov
`Email: david.mitchell@usdoj.gov
`
`ELLIOT ENOKI (HI Bar #1528)
`Executive Assistant U.S. Attorney
`District of Hawaii
`Attorney for the United States,
`Acting under Authority Conferred by
`28 U.S.C. § 515
`DANA A. BARBATA (HI Bar #9112)
`Assistant U.S. Attorney
`PJKK Federal Bldg., Room 6-100
`300 Ala Moana Boulevard
`Honolulu, HI 96850
`Telephone: (808) 541-2850
`Facsimile: (808) 541-3752
`Email: dana.barbata@usdoj.gov
`
`
`
`Attorneys for Plaintiff
`
`UNITED STATES DISTRICT COURT
`
`DISTRICT OF HAWAII
`
`UNITED STATES OF AMERICA,
`
` Plaintiff,
` v.
`
`CIVIL NO.
`
`COMPLAINT FOR
`DECLARATORY
`
`
`
`Case 1:22-cv-00051-DKW-RT Document 1 Filed 02/02/22 Page 2 of 33 PageID #: 2
`
`AND INJUNCTIVE
`RELIEF
`
`
`DEPARTMENT OF HEALTH, STATE OF
`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
`
`SIERRA CLUB; BOARD OF WATER SUPPLY,
`CITY AND COUNTY OF HONOLULU,
`
` Intervenor-Defendants.
`
`
`INTRODUCTION
`
`1.
`
`The United States Department of the Navy (the “Navy”) files this
`
`Complaint pursuant to 28 U.S.C. §§ 2201–02 and Hawaii Revised Statutes
`
`(“HRS”) §§ 91-14 and 342L-13 to protect its rights respecting an order issued by
`
`the Hawaii Department of Health, Docket No. 21-UST-EA-02, on January 3, 2022
`
`(the “Final Order”). See Exhibit A. The Final Order unlawfully 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
`
`throughout the Indo-Pacific Command area of responsibility. The Navy hopes to
`
`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
`
`2
`
`
`
`
`
`Case 1:22-cv-00051-DKW-RT Document 1 Filed 02/02/22 Page 3 of 33 PageID #: 3
`
`statute of limitations that Hawaii law imposes on judicial review of such orders.
`
`See HRS § 91-14(b).
`
`2.
`
`Since 2015, the Navy has worked closely with the Hawaii Department
`
`of Health (“DOH”), the United States Environmental Protection Agency (“EPA”),
`
`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
`
`has been carried out in accordance with an administrative agreement between
`
`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
`
`the underground storage tanks at Red Hill.
`
`3.
`
`On November 20, 2021, the Navy recovered approximately 14,000
`
`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.
`
`3
`
`
`
`
`
`Case 1:22-cv-00051-DKW-RT Document 1 Filed 02/02/22 Page 4 of 33 PageID #: 4
`
`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.
`
`5.
`
`On December 6, 2021, DOH issued an ex parte Emergency Order
`
`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 Order in a Final Order.
`
`6.
`
`These Orders were premised on HRS § 342L-9, which authorizes
`
`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
`
`taken in response to a release from an underground storage tank or tank system; or
`
`(3) The installation or operation of an underground storage tank or tank system . . .
`
`that requires immediate action[.]” The Final Order adopted the reasoning of the
`
`administrative hearings officer that two such “imminent perils” required immediate
`
`4
`
`
`
`
`
`Case 1:22-cv-00051-DKW-RT Document 1 Filed 02/02/22 Page 5 of 33 PageID #: 5
`
`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
`
`contamination of the Red Hill Shaft was an emergency and is committed to
`
`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.
`
`8. Whether the entire facility is built and operated in a manner that
`
`protects human health and the environment is the subject of ongoing permitting
`
`proceedings following DOH’s proposal to issue a permit for the underground
`
`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.
`
`5
`
`
`
`
`
`Case 1:22-cv-00051-DKW-RT Document 1 Filed 02/02/22 Page 6 of 33 PageID #: 6
`
`9.
`
`Accordingly, Plaintiff, United States of America, files this Complaint
`
`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
`
`manner identified herein.
`
`PARTIES
`
`10. Plaintiff in this action is the United States of America.
`
`11. Defendants in this action are DOH, Elizabeth A. Char, in her official
`
`capacity as Director of DOH (“Director”), and Marian E. Tsuji, in her official
`
`capacity as Deputy Director of DOH (“Deputy Director Tsuji”).
`
`12.
`
`Intervenor-Defendants in this action are Sierra Club and Board of
`
`Water Supply, City and County of Honolulu (“BWS”).
`
`13. Sierra Club and BWS intervened in the administrative proceedings
`
`below and are joined as defendants pursuant to Federal Rule of Civil Procedure
`
`19(a)(1).
`
`JURISDICTION & VENUE
`
`14. This Court has jurisdiction pursuant to 28 U.S.C. § 1345 (United
`
`States as plaintiff).
`
`15. Venue is proper in the District of Hawaii pursuant to
`
`28 U.S.C. § 1391(b)(1)–(2) because DOH resides in this judicial district, a
`
`6
`
`
`
`
`
`Case 1:22-cv-00051-DKW-RT Document 1 Filed 02/02/22 Page 7 of 33 PageID #: 7
`
`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.
`
`EXHAUSTION OF ADMINISTRATIVE REMEDIES
`
`16. A hearing on the Emergency Order was required by law.
`
`HRS § 342L-9(a).
`
`17. DOH appointed an administrative hearings officer to preside over a
`
`virtual hearing on the Emergency Order.
`
`18. A hearing was held on December 20 and 21, 2021.
`
`19. The hearing determined applicable rights, duties, and privileges with
`
`respect to the Navy’s operation of the Facility.
`
`20. The Navy participated in the hearing.
`
`21. On December 27, 2021, the hearings officer issued Proposed Findings
`
`of Fact, Conclusions of Law, and Decision and Order (“Proposed Order”),
`
`adopting all five Directives of the Emergency Order. See Exhibit C.
`
`22. Pursuant to Hawaii Administrative Rules (“HAR”) § 11-1-42(b), the
`
`Navy timely filed exceptions to the Proposed Order.
`
`23. On January 3, 2022, Deputy Director Tsuji issued the Final Order,
`
`adopting the Proposed Order in all substantive respects.
`
`24. The United States has exhausted all administrative remedies.
`
`7
`
`
`
`
`
`Case 1:22-cv-00051-DKW-RT Document 1 Filed 02/02/22 Page 8 of 33 PageID #: 8
`
`25. The United States files this action in federal district court because
`
`Congress established that “civil actions, suits or proceedings” can be brought in
`
`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,
`
`this Court does not exercise jurisdiction over this action.
`
`LEGAL BACKGROUND
`
`I.
`
`The Resource Conservation and Recovery Act
`
`27. The Resource Conservation and Recovery Act (“RCRA”),
`
`42 U.S.C. §§ 6901–6992k, sets forth a comprehensive regulatory framework for
`
`the management of solid and hazardous wastes from generation to final disposal.
`
`28. RCRA Subchapter IX, 42 U.S.C. §§ 6991–6991m, governs the
`
`regulation of underground storage tanks (“USTs”).
`
`29. Departments, agencies, and instrumentalities of the federal
`
`government must comply with state and local “requirements, both substantive and
`
`procedural . . . , respecting underground storage tanks in the same manner, and to
`
`the same extent, as any person is subject to such requirements[.]” 42 U.S.C.
`
`§ 6991f(a). “Requirements” include “all administrative orders and all civil and
`
`administrative penalties and fines, regardless of whether such penalties or fines are
`
`8
`
`
`
`
`
`Case 1:22-cv-00051-DKW-RT Document 1 Filed 02/02/22 Page 9 of 33 PageID #: 9
`
`punitive or coercive in nature or are imposed for isolated, intermittent, or
`
`continuing violations.” Id.
`
`II. Hawaii’s UST Program
`
`30. Hawaii sought and obtained EPA’s approval to regulate UST systems
`
`within Hawaii’s jurisdiction. Hawaii; Final Approval of State Underground
`
`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
`
`UST regulations. Hawaii: Proposed Authorization of Underground Storage Tank
`
`Program Revisions, 85 Fed. Reg. 49,611 (Aug. 14, 2020).
`
`31. DOH implements Hawaii’s UST regulatory program as set forth in
`
`HRS division 1, title 19, chapter 342L and Hawaii Administrative Rules title 11,
`
`subtitle 1, chapter 280.1.
`
`32. HRS § 342L-9 governs DOH’s emergency powers and procedures in
`
`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
`
`from an underground storage tank or tank system; or (3) The installation or
`
`operation of an underground storage tank or tank system . . . that requires
`
`immediate action[.]”
`
`9
`
`
`
`
`
`Case 1:22-cv-00051-DKW-RT Document 1 Filed 02/02/22 Page 10 of 33 PageID #: 10
`
`33.
`
`In the event of such an “imminent peril . . . requir[ing] immediate
`
`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
`
`agencies. See HRS § 342L-1.
`
`36. DOH requires a permit to operate UST systems and provides a
`
`permitting procedure to determine whether such operation is protective of human
`
`health and safety and the environment. See generally HAR Chapter 11-280.1,
`
`Subchapter 12.
`
`37. Permit decisions are subject to a contested hearing at which a
`
`permittee is afforded the opportunity to present evidence and argument on whether
`
`the long-term operation of a UST system is protective of human health and safety
`
`and the environment. See HRS § 91-9.
`
`10
`
`
`
`
`
`Case 1:22-cv-00051-DKW-RT Document 1 Filed 02/02/22 Page 11 of 33 PageID #: 11
`
`III. Hawaii Contested Case Hearings
`
`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
`
`(2019) (internal citation omitted); see also HAR § 11-1-3.
`
`39. DOH’s contested case hearings are governed by the Hawaii
`
`Administrative Procedure Act, HRS division 1, title 8, chapter 91, and HAR
`
`chapter 1, subchapter 2, §§ 11-1-21 through 11-1-43.
`
`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
`
`after reasonable notice.”
`
`41. HRS § 91-9(d) further requires that “[o]pportunities shall be afforded
`
`all parties to present evidence and argument on all issues involved.”
`
`42. HRS § 91-12 states that “[e]very decision and order adverse to a party
`
`to the proceeding, rendered by an agency in a contested case, shall be in writing or
`
`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
`
`11
`
`
`
`
`
`Case 1:22-cv-00051-DKW-RT Document 1 Filed 02/02/22 Page 12 of 33 PageID #: 12
`
`fact, the agency shall incorporate in its decision a ruling upon each proposed
`
`finding so presented.”
`
`43.
`
`Judicial review of emergency orders issued by DOH under
`
`HRS § 342L-9 is governed by HRS §§ 91-14 and 342L-13.
`
`44. A reviewing court may reverse or modify an administrative order if
`
`the “substantial rights” of the aggrieved party have been prejudiced by the order
`
`and it is “in violation of constitutional or statutory provisions,” “in excess of the
`
`statutory authority or jurisdiction of the agency,” “made upon unlawful
`
`procedure,” “affected by other error of law,” “clearly erroneous in view of the
`
`reliable, probative, and substantial evidence on the whole record,” “arbitrary, or
`
`capricious, or characterized by abuse of discretion,” or based on a “clearly
`
`unwarranted exercise of discretion.” HRS § 91-14(g). A reviewing court may also
`
`remand the case to the agency with instructions for further proceedings without
`
`making such findings. Id.
`
`FACTUAL BACKGROUND
`
`I.
`
`Red Hill Bulk Fuel Storage Facility
`
`45. The Navy owns and operates the Red Hill Bulk Fuel Storage Facility
`
`on the Island of Oahu, Hawaii.
`
`46. The Facility stores jet propellant fuel, aviation turbine fuel, and
`
`marine diesel fuel in bulk underground storage tanks.
`
`12
`
`
`
`
`
`Case 1:22-cv-00051-DKW-RT Document 1 Filed 02/02/22 Page 13 of 33 PageID #: 13
`
`47. The Facility was built by the United States during World War II and
`
`began operating in 1943.
`
`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
`
`to 12.5 million gallons of fuel.
`
`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
`
`visible within the tunnel for inspection.
`
`51. Fuel stored at the Facility constitutes strategic reserve available to
`
`support U.S. military forces throughout the Indo-Pacific Command area of
`
`responsibility.
`
`II.
`
`2014 Release and Administrative Order on Consent
`
`52.
`
`In 2014, approximately 27,000 gallons of fuel leaked from a UST at
`
`Red Hill that had been incorrectly repaired by a contractor.
`
`53.
`
`In 2015, the Navy entered into an Administrative Order on Consent
`
`(“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
`
`protected and the Facility is operated and maintained in an environmentally
`
`13
`
`
`
`
`
`Case 1:22-cv-00051-DKW-RT Document 1 Filed 02/02/22 Page 14 of 33 PageID #: 14
`
`protective manner. The AOC “provides for the performance by Navy and DLA of
`
`a release assessment, response(s) to release(s), and actions to minimize the threat
`
`of future releases in connection with the . . . Facility . . . and on any property that
`
`may be affected now or in the future by petroleum or other substances released
`
`from the Facility.”
`
`54. The Statement of Work for the AOC contains comprehensive
`
`requirements that the Navy and DLA must fulfill to ensure that Red Hill is
`
`operated in an environmentally protective manner and that the groundwater
`
`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.
`
`55. The AOC provides that, “unless required on an emergency basis, no
`
`[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
`
`Resolution process set forth” in the AOC.
`
`III. Red Hill UST Permit Proceeding
`
`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
`
`14
`
`
`
`
`
`Case 1:22-cv-00051-DKW-RT Document 1 Filed 02/02/22 Page 15 of 33 PageID #: 15
`
`permits for up to five years if the Director determines that doing so would “be
`
`protective of human health and the environment[.]” HRS § 342L-4(c).
`
`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.
`
`58. The Navy timely submitted a permit application to DOH.
`
`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
`
`Health Administration (“EHA”) also joined as a party to the contested case
`
`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
`
`evidence and testimony.
`
`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
`
`15
`
`
`
`
`
`Case 1:22-cv-00051-DKW-RT Document 1 Filed 02/02/22 Page 16 of 33 PageID #: 16
`
`compliance with the Hawaii Administrative Rules; tank inspection, repair, and
`
`maintenance; leak detection methods and requirements; corrosion extent, detection,
`
`and repair; extent of the monitoring well network; seismicity; and a release that
`
`occurred on May 6, 2021.
`
`63. On September 20, 2021, the hearings officer issued a Proposed
`
`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
`
`hearing, which the Navy opposed.
`
`65. The hearings officer has withdrawn the Permit Proposed Order “for
`
`possible revision following the receipt of further evidence and information” in the
`
`Permit Proceeding. That proceeding is ongoing.
`
`IV. May 6, 2021 Release
`
`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.
`
`16
`
`
`
`
`
`Case 1:22-cv-00051-DKW-RT Document 1 Filed 02/02/22 Page 17 of 33 PageID #: 17
`
`68. The Navy promptly notified DOH about the spill. The Navy
`
`estimated that approximately 1,600 gallons of fuel had been released, but believed
`
`that most had been recovered.
`
`69. The May 6, 2021 release was from a ruptured pipe, and not from the
`
`USTs.
`
`V. November 20, 2021 Release
`
`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
`
`into the tunnel between the tanks and Pearl Harbor.
`
`71. Approximately 14,000 gallons were contained and recovered.
`
`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
`
`flaw, hole, or other problem in a UST.
`
`74. The Navy believes the May 6 and November 20, 2021 releases are
`
`likely related, but its investigation is not yet final.
`
`17
`
`
`
`
`
`Case 1:22-cv-00051-DKW-RT Document 1 Filed 02/02/22 Page 18 of 33 PageID #: 18
`
`VI. The Navy’s Response to the November 20, 2021 Release
`
`75. On November 23, 2021, the Commander, U.S. Pacific Fleet, convened
`
`an investigation into the May 6 and November 20, 2021 incidents.
`
`76. The Navy owns and operates a water system that pumps water from
`
`underground aquifers to provide drinking water to the military community and
`
`facilities associated with Joint Base Pearl Harbor-Hickam (“JBPHH”), including
`
`Public-Private Venture Housing (“PPV”).
`
`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
`
`the drinking water supplied by the Navy’s drinking water system.
`
`79. The Navy immediately began sampling water within its water
`
`distribution system, and has continued to do so. The Navy promptly conveys
`
`sampling results to DOH as they are received.
`
`80. Red Hill Shaft remains shut down.
`
`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
`
`water system, and alternative facilities for bathing and laundry.
`
`18
`
`
`
`
`
`Case 1:22-cv-00051-DKW-RT Document 1 Filed 02/02/22 Page 19 of 33 PageID #: 19
`
`82. On December 3, 2021, the Commander, U.S. Pacific Fleet, amended
`
`the command investigation convened on November 23, 2021, directing that the
`
`investigating officer investigate whether the events of May 6 and November 20,
`
`2021 contributed to or caused the contamination of the Red Hill Shaft.
`
`83. Out of an abundance of caution, the Navy shut down Aiea-Halawa
`
`Shaft on December 3, 2021.
`
`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
`
`Activated Carbon water filtration units (“GACs”) capable of filtering up to 10
`
`million gallons per day, a system that can be replaced by a permanent water
`
`treatment system in the future.
`
`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.
`
`Testing of the distribution lines is ongoing.
`
`19
`
`
`
`
`
`Case 1:22-cv-00051-DKW-RT Document 1 Filed 02/02/22 Page 20 of 33 PageID #: 20
`
`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
`
`the investigation into the cause of the contamination is complete.
`
`VII. The Emergency Order
`
`90. On December 6, 2021, DOH issued an Emergency Order pursuant to
`
`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
`
`Fuel Storage Facility.”
`
`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.
`
`93. As “additional justifications,” the Emergency Order cites purported
`
`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
`
`20
`
`
`
`
`
`Case 1:22-cv-00051-DKW-RT Document 1 Filed 02/02/22 Page 21 of 33 PageID #: 21
`
`environment, and a lack of infrastructure and procedures to rapidly identify and
`
`contain subterranean fuel spills.
`
`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
`
`order repeatedly refers to the configuration and operation of the Facility as an
`
`imminent peril requiring immediate action.
`
`95. The Emergency Order has five Directives.
`
`96. Directive One requires the Navy to “[i]mmediately suspend operations
`
`including, but not limited to, fuel transfers at the Bulk Fuel Storage Tanks at the
`
`Facility. [The Navy] shall, however, maintain environmental controls, release
`
`detection and release response protocols, and compliance with applicable
`
`regulations.”
`
`97. Directive Two 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
`
`21
`
`
`
`
`
`Case 1:22-cv-00051-DKW-RT Document 1 Filed 02/02/22 Page 22 of 33 PageID #: 22
`
`the Department prior to installation and shall be installed as expeditiously as
`
`practicable.”
`
`98. Directive Three directs the Navy to, “[w]ithin 30 days of receipt of
`
`this [Emergency Order], submit a workplan and implementation schedule, prepared
`
`by a qualified independent third party approved by the Department, to assess the
`
`Facility operations and system integrity to safely defuel the Bulk Fuel Storage
`
`Tanks. Upon the Department’s approval of the assessment, workplan and
`
`implementation schedule, conduct necessary repairs and make necessary changes
`
`in operations to address any deficiencies identified in the assessment and
`
`workplan. Corrective actions shall be performed as expeditiously as possible.”
`
`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
`
`the Facility. Any refueling shall be subject to a determination by the Department
`
`that it is protective of human health and the environment.”
`
`100. Directive Five directs the Navy to perform an overall long-term risk
`
`assessment and implementation of conditions to mitigate long-term risk,
`
`specifically, “[w]ithin 30 days of receipt of this [Emergency Order] submit a
`
`workplan and implementation schedule, prepared by a 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
`
`22
`
`
`
`
`
`Case 1:22-cv-00051-DKW-RT Document 1 Filed 02/02/22 Page 23 of 33 PageID #: 23
`
`environment and develop recommendations for corrective action. Submit the
`
`assessment, proposed work and recommendations for corrective action to the
`
`Department with an implementation schedule. Upon the Department’s approval,
`
`perform work and implement corrective actions. Corrective actions shall be
`
`performed as expeditiously as possible.”
`
`101. The Emergency Order does not state how the Directives relate to, and
`
`may be necessary with respect to, any findings made by DOH.
`
`102. Emergency Order Directive 1 does not provide how or when it will
`
`terminate.
`
`103. Emergency Order Directive 4 states that “[a]ny refueling shall be
`
`subject to a determination by [DOH] that it is protective of human health and the
`
`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
`
`operation of the Facility.
`
`VIII. Contested Case Hearing on the Emergency Order and Final Order
`
`105. Pursuant to HRS § 26-38, DOH Director Char delegated to Deputy
`
`Director Tsuji “all powers, rights, and duties necessary to make a final
`
`determination in this matter, in accordance with section 11-1-42(c), HAR.”
`
`23
`
`
`
`
`
`Case 1:22-cv-00051-DKW-RT Document 1 Filed 02/02/22 Page 24 of 33 PageID #: 24
`
`106. A hearings officer presided over a virtual hearing on December 20
`
`and 21, 2021.
`
`107. Sierra Club and BWS intervened in the hearing.
`
`108. The hearings officer scheduled one day for hearing testimony;