Case 1:22-cv-00272-RT-NONE Document 1 Filed 06/14/22 Page 1 of 50 PageID #: 1
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`William A. Harrison (#2948)
`HARRISON & MATSUOKA
`American Savings Bank Tower
`1001 Bishop Street, Suite 1180
`Honolulu, Hawai`i 96813
`Tel: (808) 523-7041
`wharrison@hamlaw.net
`
`Daniel Cooper (CA Bar No. 153576)
`daniel@sycamore.law
`SYCAMORE LAW, INC.
`1004 O’Reilly Avenue, Ste. 100
`San Francisco, California 94129
`Tel: (415) 360-2962
`
`Attorneys for Plaintiff
`WAI OLA ALLIANCE
`
`[PRO HAC VICE APPLICATION PENDING]
`
`UNITED STATES DISTRICT COURT
`DISTRICT OF HAWAII
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`COMPLAINT FOR DECLARATORY
`RELIEF, INJUNCTIVE RELIEF,
`AND CIVIL PENALTIES
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`Federal Water Pollution Control Act,
`33 U.S.C. §§ 1251 to 1387
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`WAI OLA ALLIANCE, a public
`interest association; MELODIE
`ADUJA, CLARENCE KU CHING,
`PETER DOKTOR, KIM COCO
`IWAMOTO, and MARY MAXINE
`KAHAULELIO, as individuals and as
`members of the WAI OLA
`ALLIANCE,
`
`
` Plaintiffs,
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`vs.
`
`THE UNITED STATES
`DEPARTMENT OF THE NAVY,
`
` Defendant.
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`Case 1:22-cv-00272-RT-NONE Document 1 Filed 06/14/22 Page 2 of 50 PageID #: 2
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`The Wai Ola Alliance, a community association of Hawai`i residents seeking to
`protect the waters of O`ahu, by and through its counsel, hereby alleges:
`I.
`INTRODUCTION
`1.
`This is a citizen enforcement action for injunctive relief, civil penalties,
`and attorney’s fees initiated by the Wai Ola Alliance and its individual members (the
`“Alliance” or “Plaintiffs”) for ongoing violations the Federal Water Pollution Control
`Act (“Clean Water Act” or “Act”), 33 U.S.C. §§ 1251–1389, resulting from the
`United States Department of the Navy’s (“Navy” or “Defendant”) operation of the
`Red Hill Bulk Fuel Storage Facility (the “Facility” or “Red Hill”). See 33 U.S.C. §
`1365(a)(1).
`2.
`Defendant has violated, and will continue to violate, the Clean Water
`Act’s statutory prohibition on the unpermitted discharge of pollutants to waters of the
`United States, section 301(a). See id. § 1311(a).
`3.
`The Navy has and will continue to discharge pollutants, including but not
`limited to petroleum-based pollutants (e.g., jet propellant-5, jet propellant-8), from
`point sources at the Facility to waters of the United States, including but not limited to
`Pearl Harbor (hereinafter “Pu`uloa”) and Hālawa Stream, without permit authorization
`from the United States Environmental Protection Agency (“U.S. EPA”) or any agency
`of the State of Hawai`i (“Hawai`i”) in violation of the prohibition on such discharges
`in the Act’s section 301(a). See id.
`II. JURISDICTION
`4.
`This Court has subject matter jurisdiction over the Alliance and the Navy
`(collectively the “Parties”) and over the subject matter of this action pursuant to
`section 505(a)(1)(A) of the Act. See 33 U.S.C. § 1365(a)(1)(A); 28 U.S.C. § 1331 (an
`action arising under the laws of the United States).
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`5.
`This Court has federal question jurisdiction pursuant to 28 U.S.C. § 1331
`because this action arises under the Clean Water Act and the Declaratory Judgment
`Act, 28 U.S.C. §§ 2201–2240.
`6.
`Plaintiffs seek declaratory relief establishing that Defendant has violated
`the Clean Water Act. See 28 U.S.C. § 2201(a).
`7.
`Plaintiffs seek injunctive relief directing Defendant to:
`a. Abate all discharges of pollutants from the Facility to waters of the United
`States without a permit; and
`b. Require the Navy to take appropriate actions to prevent unlawful
`discharges of pollutants to waters of the United States during defueling and
`closure;
`8.
`Plaintiffs request the Court order Defendant to pay statutory penalties of
`up to $59,973.00 per day per violation. See 33 U.S.C. §§ 1319(d), 1365(a); 40 C.F.R.
`§§ 19.1–19.4.
`9.
`Plaintiffs request the Court award reasonable litigation costs, including
`fees for attorneys, experts, and consultants, incurred in bringing this action. See 33
`U.S.C. § 1365(d).
`10.
`The relief requested is authorized pursuant to 28 U.S.C. §§ 2201–2202
`(power to issue declaratory relief in case of actual controversy and further necessary
`relief based on such a declaration) and 33 U.S.C. §§ 1319(d), 1365(a) (civil penalties
`and injunctive relief).
`11.
`As a jurisdictional pre-requisite to enforcing the Clean Water Act in
`Federal District Court, prospective citizen plaintiffs must prepare a Notice of
`Violation and Intent to File Suit letter (“Notice Letter”) containing, inter alia,
`sufficient information to allow the recipient to identify the standard, limitation, or
`order alleged to be violated, and the activity alleged to constitute a violation. 33
`U.S.C. § 1365(a); 40 C.F.R. § 135.3(a).
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`12.
`The Notice Letter must be sent via certified mail at least sixty (60) days
`prior to filing a complaint (“Notice Period”) to the owner of the facility alleged to be
`in violation of the Act. 33 U.S.C. § 1365(b); 40 C.F.R. § 135.2(a)(1).
`13.
`A copy of the Notice Letter must be mailed to the Administrator of the
`U.S. Environmental Protection Agency (“U.S. EPA”), the Regional Administrator of
`the U.S. EPA for the region in which a violation is alleged to have occurred, and the
`chief administrative officer for the water pollution control agency for the State in
`which the violation is alleged to have occurred. 33 U.S.C. § 1365(b); 40 C.F.R.
`§ 135.2(b)(1)(A).
`14.
`On February 7, 2022, the Alliance sent by certified mail a Notice Letter
`to the Navy, including specifically Lloyd J. Austin III, Secretary of Defense (Certified
`Mailing No. 7021 1970 000 1422 8468), the Honorable Carlos Del Toro, Secretary of
`the Navy (Certified Mailing No. 7021 1970 0000 1422 8444), Admiral Samuel J.
`Paparo, Commander of the U.S. Pacific Fleet (Certified Mailing No. 7021 1970 0000
`1422 8437), and Rear Admiral Timothy Kott, Commander of Navy Region Hawai`i
`(Certified Mailing No. 7021 1970 0000 1422 8420).
`15.
`A true and correct copy of the February 7, 2022 Notice Letter is attached
`hereto as Exhibit A and is incorporated by reference.
`16.
`On February 7, 2022, the Alliance sent by certified mail a copy of the
`Notice Letter to the United States Attorney General (Certified Mailing No. 7021 1970
`0000 1422 8482), the Administrator of the U.S. EPA (Certified Mailing No. 7021
`1970 0000 1422 8475), the Regional Administrator of U.S. EPA Region IX (Certified
`Mailing No. 7021 1970 0000 1422 8413), the Governor of Hawai`i (Certified Mailing
`No. 7021 1970 0000 1422 8406), and Director of the Hawai`i State Department of
`Health (Certified Mailing No. 7021 1970 0000 1422 8390).
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`17.
`As a courtesy, the Alliance also gave notice to Lieutenant General
`Darrell K. Williams, Director of Defense Logistics Agency (Certified Mailing No.
`7021 1970 0000 1422 8451), the agency that owns the fuel stored at Red Hill.
`18. More than sixty (60) days have passed since the Notice Letter was issued
`to the Navy, and the above listed Federal and State agencies. See 33 U.S.C. §
`1365(b)(1).
`19.
`Plaintiffs are informed and believe, and allege, that neither the U.S. EPA
`nor the State of Hawai`i has commenced or is diligently prosecuting a court action to
`redress violations alleged in the Notice Letter and this complaint. See id. § 1365(b)(2).
`20.
`Plaintiffs’ claim for civil penalties is not barred by any prior
`administrative penalty under section 309(g) of the Act. See id. § 1319(g).
`21.
`Venue is proper in the District of Hawai`i pursuant to section 505(c)(1)
`of the Act because the source of the violations is located within this judicial district.
`See id. § 1365(c)(1).
`III. THE PARTIES
`A. Wai Ola Alliance
`22.
`The Hawaiian words “wai ola,” from which the Alliance’s name is
`derived, translate into English as “the water of life.”
`23.
`The Alliance is a community-based organization composed of
`environmentally- and culturally-focused individuals and organizations dedicated to
`protecting the waters of Hawai`i from the effects of past and ongoing discharges of
`petroleum pollutants from Red Hill to Pu`uloa, Hālawa Stream, and other nearby
`surface waters.
`24.
`The Alliance and its individual members are committed to preserving the
`human right to water, and to healthy aquatic ecosystems for present and future
`generations.
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`25.
`The Alliance seeks to protect interests that are related to its
`organizational purposes.
`26.
`Founding members of the Alliance, and the named plaintiffs in this
`action, include:
`a. Mary Maxine Kahaulelio, who was born and raised on O`ahu, is a native
`Hawaiian kupuna, and is currently a community organizer and activist for
`the rights of native Hawaiians;
`b. Clarence Ku Ching, who was born and raised on O`ahu, served as a trustee
`to the Office of Hawaiian Affairs, is a native Hawaiian kupuna, and is
`currently a community organizer, and activist for the rights of native
`Hawaiians;
`c. Melodie Aduja, who lives on O`ahu, served as a Hawai`i State Senator for
`District 23 (2003–2004), and is currently the co-chair of the Environmental
`Caucus, Democratic Party of Hawai`i;
`d. Kim Coco Iwamoto, who lives on O`ahu, served as a member of Hawai`i’s
`State Board of Education (2006–2011), and currently owns and operates a
`business on O`ahu; and
`e. Peter Doktor, who lives on O`ahu, is a U.S. military veteran, was a high
`school teacher, and is currently a social justice and peace activist.
`27.
`The Alliance is based in Honolulu.
`28.
`The Alliance has members who reside in and around Honolulu.
`29.
`At all relevant times, Plaintiffs were and are “citizens” within the
`meaning of Act. See 33 U.S.C. §§ 1362(5), 1365(a), (g).
`30.
`The Navy’s ongoing violation of the Act harms Alliance Member’s use
`and enjoyment of Pu`uloa, Hālawa Stream, and other surface waters on O`ahu. See id.
`§ 1365(g).
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`31.
`The environmental, health, aesthetic, spiritual, economic, and
`recreational interests of Alliance members have been, are being, and will continue to
`be adversely affected by the Navy’s ongoing violations of the Clean Water Act. See
`id.
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`32.
`Continuing commission of the acts and omissions alleged herein will
`cause Plaintiffs irreparable harm, for which they have no plain, speedy, or adequate
`remedy at law.
`33.
`The relief sought herein will redress the harms to Plaintiffs caused by
`Defendant’s violations of the Act.
`B. The United States Department of the Navy
`34.
`The Navy is the maritime service branch of the United States Armed
`Forces.
`35.
`36.
`37.
`38.
`39.
`40.
`1365(a)(1).
`41.
`The Navy is the owner and operator of Red Hill.
`IV. STATUTORY BACKGROUND: THE CLEAN WATER ACT
`42.
`According to the Supreme Court, “[t]he Clean Water Act [] was enacted
`[] to restore and maintain the chemical, physical, and biological integrity of the
`Nation's waters. [33 U.S.C.] § 1251(a).” Gwaltney of Smithfield v. Chesapeake Bay
`Foundation (1987) 484 U.S. 49, 52 (internal quotations and citation omitted).
`43.
`Section 301(a) of the Act is titled ILLEGALITY OF POLLUTANT DISCHARGES
`EXCEPT IN COMPLIANCE WITH LAW. 33 U.S.C. § 1311(a).
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`The Navy is led by the Secretary of the Navy.
`Carlos Del Toro is the Secretary of the Navy.
`The Navy is a military department of the Department of Defense.
`The Department of Defense is led by the Secretary of Defense.
`Lloyd J. Austin III is the Secretary of Defense.
`The Navy is a “person” as defined in the CWA. 33 U.S.C. §§ 1362(5),
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`44.
`Section 301(a) provides: “Except as in compliance with this section and
`sections 1312, 1316, 1317, 1328, 1342, and 1344 of this title, the discharge of any
`pollutant by any person shall be unlawful.” Id.
`45.
`“In order to achieve [its] goals, § 301(a) of the Act makes unlawful the
`discharge of any pollutant into navigable waters except as authorized by specified
`sections of the Act. 33 U.S.C. § 1311(a).” Gwaltney of Smithfield, 484 U.S. at 52
`(internal quotations and citations omitted); see also David M. Bearden et. al., Cong.
`Rsch. Serv., RL30798, Environmental Laws: Summaries of Major Statutes
`Administered by the Environmental Protection Agency 25 (2011) (“To achieve its
`objectives, the [A]ct embodies the concept that all discharges into the nation’s waters
`are unlawful, unless specifically authorized by a permit.”).
`46.
`The Act provides for the issuance of permits that authorize the discharge
`of pollutants into navigable waters in compliance with specified effluent standards. In
`section 402(a), 33 U.S.C. § 1342(a), the Act established the National Pollutant
`Discharge Elimination System, under which the U.S. EPA (or a state authorized by
`U.S. EPA) may issue a permit for the discharge of any pollutant provided that the
`authorized discharge complies with the effluent standards specified in the permit or
`otherwise imposed by the Act. Sierra Club v. Va. Elec. & Power Co., 903 F.3d 403,
`405 (4th Cir. 2018).
`47.
`The term “navigable waters” includes waters of the United States. 33
`U.S.C. § 1362(7).
`48.
`“The term “discharge” when used without qualification includes a
`discharge of a pollutant, and a discharge of pollutants.” Id. § 1362(16).
`49.
`“The term ‘pollutant’ means dredged spoil, solid waste, incinerator
`residue, sewage, garbage, sewage sludge, munitions, chemical wastes, biological
`materials, radioactive materials, heat, wrecked or discarded equipment, rock, sand,
`cellar dirt and industrial, municipal, and agricultural waste discharged into water.” Id.
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`§ 1362(6); see also Cty. Of Maui v. Haw. Wildlife Fund (2020) 140 S. Ct. 1462, 1465
`(“the Act defines ‘pollutant’ broadly.”)
`50.
`“The term ‘discharge of a pollutant’ and the term ‘discharge of
`pollutants’ each means (A) any addition of any pollutant to navigable waters from any
`point source, [and] (B) any addition of any pollutant to the waters of the contiguous
`zone or the ocean from any point source other than a vessel or other floating craft.” 33
`U.S.C. § 1362(12); see also Cty. Of Maui, 140 S. Ct. at 1469 (the Act “defines the
`term discharge of a pollutant as any addition of any pollutant to
`navigable waters [including navigable streams, rivers, the ocean, or coastal waters]
`from any point source.” (brackets in original) (internal quotations omitted)).
`51.
`“[F]or an addition of pollutants to be from a point source, the relevant
`inquiry is whether—but for the point source—the pollutants would have been added
`to the receiving body of water. . . . [A]n addition from a point source occurs if a point
`source is the cause in fact of the release of pollutants into navigable waters.” S. Fla.
`Water Mgmt. Dist. v. Miccosukee Tribe of Indians, 541 U.S. 95, 103 (2004) (brackets
`in original) (citing to Court of Appeals affirmation of District Court grant of summary
`judgment).
`52.
`The Act also requires a permit “when there is the functional equivalent of
`a direct discharge. . . . That is, an addition falls within the statutory requirements that
`it be ‘from a point source’ when a point source directly deposits pollutants into
`navigable waters, or when the discharges reaches the same result through roughly
`similar means.” Cty. Of Maui, 140 S. Ct. at 1476 (emphasis in original).
`53.
`“The term “point source” means any discernible, confined and discrete
`conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well
`. . . from which pollutants are or may be discharged.” 33 U.S.C. § 1362(14); Cmty.
`Ass'n for Restoration of the Env't v. Henry Bosma Dairy, 305 F.3d 943, 955 (9th Cir.
`2002) (“the definition of a point source is to be broadly interpreted.”)
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`54.
`Section 505(a)(1) of the Act provides for citizen enforcement against any
`“person” who is alleged to be in violation of an “effluent standard or limitation . . . or
`an order issued by the Administrator or a State with respect to such a standard or
`limitation.” 33 U.S.C. § 1365(a)(1), (f).
`55.
`“Effluent standard or limitation” is defined to include the prohibition in
`section 301(a) against unpermitted discharges. Id. § 1365(f)(1); see also Am. Frozen
`Food Inst. v. Train, 539 F.2d 107, 128 (D.C. Cir. 1976) (the Act’s section 301(a)
`prohibition on unpermitted discharges is self-executing).
`56.
`A “person” under the Act includes individuals, corporations,
`partnerships, associations, States, municipalities, commissions, and political
`subdivisions of a State, or any interstate body. Id. § 1362(5).
`57.
`Each separate violation of the Act subjects a violator to a penalty of up to
`$59,973.00 per day per violation. Id. §§ 1319(d), 1365(a); 40 C.F.R. §§ 19.1–19.4.
`58.
`Section 505(d) of the Act allows a prevailing or substantially prevailing
`party to recover litigation costs, including fees for attorneys, experts, and consultants
`where it finds that such an award is appropriate. 33 U.S.C. § 1365(d); see also St.
`John’s Organic Farm v. Gem County Mosquito Abatement Dist., 574 F.3d 1054,
`1062–1064 (9th Cir. 2009) (holding that the court’s discretion to deny a fee award to a
`prevailing plaintiff is narrow, and denial is “extremely rare.”).
`V.
`STATEMENT OF FACTS
`A. The Red Hill Bulk Fuel Storage Facility
`59.
`The Facility was constructed between 1940 and 1943.
`60.
`The Facility includes twenty (20) “field constructed” underground
`storage tanks (“USTs”).
`61.
`The Facility includes approximately seven (7) miles of tunnels.
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`The Facility includes a control room.
`The Facility includes surge tanks.
`The Facility includes slop oil and oil recovery facilities.
`The Facility includes the remains of burn pits for petroleum product
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`62.
`The Facility includes approximately twenty-nine (29) miles of pipelines
`that connect the USTs to fueling stations at various piers along Pu`uloa, including but
`not limited to Hotel Pier, Kilo Pier, Mike Pier, Bravo Pier, and Sierra Pier.
`63.
`The Facility includes ventilation systems with air intakes and exhaust
`portals.
`64.
`65.
`66.
`67.
`disposal.
`68.
`The Facility derives its name from the ridge into which the USTs were
`built, known as Kapūkaki or “Red Hill.”
`69.
`Each UST has the capacity to hold 12.5 million gallons of petroleum-
`based fuel.
`70.
`fuel.
`71.
`Each UST is used to store petroleum-based fuels.
`72.
`The USTs currently contain diesel marine fuel (“F-76”) and multiple
`types of jet propellent fuel (“JP-5,” “JP-8,” and “F-24”).
`73.
`Petroleum products stored at Red Hill are “pollutants” under the Act,
`including but not limited to fuel oil and jet propellent fuel. See 33 U.S.C. § 1362(6).
`74.
`Two tunnels connect the USTs and allow partial access.
`75.
`The upper tunnel provides access to the top of each tank.
`76.
`The lower tunnel houses pipelines and other equipment that carry fuel
`from the USTs to distribution points at Pu`uloa.
`77.
`Some of the Facility’s pipelines are exposed.
`78.
`Some of the Facility’s pipelines are buried.
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`As of April 2022, at least fourteen (14) USTs contain petroleum-based
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`Some of the Facility’s pipelines are, depending on tides, located under
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`79.
`water.
`80.
`Each tank is constructed with a quarter-inch steel “liner.”
`81.
`Each steel “liner” is reinforced with three to four feet of concrete.
`82.
`The concrete reinforces the steel “liners,” but does not provide fluid
`containment.
`83.
`The tops and bottoms of each tank are domed half-inch steel.
`84.
`The quarter-inch steel “liners” each have approximately two acres of
`surface area. Bechtel Corp., Engineering Survey of U.S. Navy Petroleum Facilities at
`Pearl Harbor (1949).
`B. The Affected Surface Waters
`85.
`Pu`uloa was an abundant food source for communities of the sovereign
`Hawaiian Kingdom on O`ahu.
`86.
`Pu`uloa was a sacred feature for communities of the sovereign Hawaiian
`Kingdom on O`ahu.
`87.
`Historically, Pu`uloa’s waters were known as “Wai Momi” or “pearl
`waters.”
`88.
`Native oysters, and oyster reefs, were once abundant and integral parts of
`the marine ecosystem and local culture.
`89.
`Stories about Pu`uloa are recorded in history through native Hawaiian
`chants, songs, and legends.
`90.
`According to Kānaka Maoli beliefs, Pu`uloa is home to the shark
`goddess Ka`ahupahau, who protected O`ahu and strictly enforced kind, fair behavior
`on the part of both sharks and humans.
`91.
`Pu`uloa has been degraded by decades of intense use and misuse by the
`U.S. military.
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`92.
`Pu`uloa continues to serve as a spiritually and politically important place
`to Hawai`i’s native people.
`93.
`Pu`uloa is a navigable water and a water of the United States.
`94.
`Pu`uloa and hydrologically connected portions of the Pacific Ocean that
`provide commercial and recreational fisheries, habitat for endangered species,
`wetlands, and water-contact recreation areas. Env’t Prot. Agency, National Priorities
`List Site Narrative for Pearl Harbor Naval Complex 1 (July 29, 1991), available at
`https://semspub.epa.gov/work/09/2400179.pdf.
`95.
`Ahupua`a is the Hawaiian term that describes distinct geographic,
`socioeconomic, and cultural regions.
`96. Most commonly, an ahupua`a extends from the sea into the mountains, or
`from “ridge to reef.”
`97.
`Hālawa Valley is an ahupua`a.
`98.
`Hālawa Valley is located on the southern portion of the island of Oahu.
`99.
`The ahupua`a of Hālawa is highly sacred to Kānaka Maoli.
`100. According to Kānaka Maoli beliefs, Hālawa is the birthplace and home to
`the Mother Earth goddess called Papahānaumoku.
`101. Hālawa Valley is home to one of only two or three known remaining
`Hale o Papa, which are women’s temples where Papahānaumoku is worshipped.
`102. Hālawa Stream flows from East to West through Hālawa Valley.
`103. Hālawa Stream empties into Pu`uloa south of the Pearl Harbor National
`Memorial, and immediately north of Hotel Pier.
`104. Hālawa Stream is a navigable water and a water of the United States.
`C. Environmental Impacts of Oil Spills
`105.
`Petroleum can be rapidly lethal to fish, birds, mammals, and shoreline
`organisms due to the readily dissolved components of oil and the physical effects of
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`smothering and destruction of the thermal insulation and buoyancy provided by fur
`and feathers.
`106. Chronic and sublethal effects are associated with the less soluble
`components of oil such as the polycyclic aromatic hydrocarbons, and some effects
`may be expressed long after brief exposures.
`107. Exposure to oil can occur through coating of the epidermis (skin, fur,
`feathers), inhalation of aerosols of particulate oil and volatile hydrocarbons by air-
`breathing wildlife in contact with surface oil, ingestion of oil by birds and mammals
`via preening, and ingestion of contaminated sediments and plant materials.
`108. Oil can be acutely toxic to fish in the 24- to 48-hour period following a
`discharge or spill.
`109. This acute toxicity is typically attributable to the light molecular weight
`petroleum hydrocarbons such as benzene, toluene, ethylbenzene, xylene, and other
`light petroleum distillates.
`110. Effects include the first genetic and molecular responses of cells to
`impacts on rates of reproduction, growth, disease, and survival.
`D. Hotel Pier—Pollutant Discharges to Hālawa Stream and Pu`uloa
`Basic Information About Hotel Pier
`111. Hotel Pier is located immediately south to the mouth of Hālawa Stream
`(see IMAGE 1).
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`IMAGE 1
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`Manifold Area (Red)
`Hālawa Stream (Blue)
`Hotel Pier (Yellow)
`112. Hotel Pier was built in 1941. Ramon Mendoza, Pearl Harbor Hotel Pier
`Release 3 (2021), available at https://health.hawaii.gov/ust/files/2021/11/R-Pearl-
`Harbor-Hotel-Pier-Release.USCG_.Area_.Mtg_.ppt.pdf.
`113. Hotel Pier has been used as a refueling hub for large Navy vessels since
`World War II. Id.;
`114.
` Naval Facilities Eng’g Command, Hotel Pier Plume Delineation Pearl
`Harbor Naval Supply Center 2 (Draft, 2021).
`115. Hotel Pier is used for both “receipt and issue” of fuel. (Michael Baker
`Int’l, 2019 One-Time Static Liquid Pressure Testing Report of Four Sections
`([redacted] Feet) of Petroleum Pier Pipelines 1 (2019), available at
`https://health.hawaii.gov/ust/files/2021/11/R-2019-08-13-REDACTED-JBPHH-2019-
`One-time-SLPT-of-Four-Sections-xxxxx-Feet-of-Pier-Pipelines.pdf.
`116.
`Petroleum products, including fuel, for distribution from Hotel Pier are
`supplied via Valve Station 3 (VS-3). Mendoza, supra, at 3.
`117. Valve Station 3 (VS-3) is supplied by large subsurface product lines
`connected to the Facility’s USTs. Id.
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`118. A 2015 report assessing pipeline integrity recommended “[i]solating and
`temporarily deactivating or permanently closing the defuel line on the Hotel Pier.”
`Enter. Eng’g, Inc., INTEGRITY MANAGEMENT PLAN – POL PIPELINES NAVSUP
`FLC Pearl Harbor, HI (PRL) 6 (Interim Final Submission, 2015).
`Historical Contamination at the Hotel Pier Site
`119.
`In 1989, the Navy’s investigation of underground fuel storage tanks in
`the area near Valve Station 3 (VS-3) at Hotel Pier found soils contaminated with
`hydrocarbons. Mendoza, supra, at 3.
`120.
`In 1992, the Pearl Harbor Naval Complex, an area that includes Hotel
`Pier, was listed on the National Priorities List. Id.
`121. Between 1992 and 1996, the Navy conducted a Remedial Investigation
`that identified a subsurface plume containing diesel fuel (F-76) and residual oil
`adjacent to Hotel Pier. Id. at 4.
`122.
`In 1994, the Navy spilled approximately 8,000 gallons of waste oil near
`Hotel Pier. Id.
`123.
`In 1997, the Navy spilled at least 2,500 gallons of F-76 near Hotel Pier
`due to a damaged pressure gauge. Id.
`124. A 1997 Remedial Investigation/Feasibility Study identified a subsurface
`petroleum plume of approximately 127,000 gallons adjacent to Hotel Pier that was
`migrating into Pu`uloa. Naval Facilities Eng’g Command (2021), supra, at 2.
`125. The Navy suspected that source of the 127,000 gallon leak was Valve
`Station 3 (VS-3) and subsurface petroleum pipelines. Id.
`126.
`In 1999, the Navy identified electrical lines, sewer and utility lines, and
`storm drains located throughout the Hotel Pier site were acting as preferential
`pathways for the migration of subsurface petroleum contaminants into Pu`uloa. Id. at
`9.
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`127.
`In 2001, the Navy installed liners, collection sumps, skimming
`equipment, and cutoff walls in the storm drain near Hotel Pier in an effort to limit
`contaminant migration into Pu`uloa. Id.
`128. On June 2, 2009, DOH issued a No Further Action letter to the Navy
`related to contamination at Remedial Action Area 1, which includes Hotel Pier. Letter
`from Fenix Grange, Hazard Evaluation & Emergency Response Off., State of Haw.
`Dep’t of Health, to Michelle Yoshioka, Naval Facilities Eng’g Command (June 2,
`2009).
`129. Between 2009 and 2017 the Navy conducted periodic “gauging events”
`to assess the status of ongoing groundwater contamination at Hotel Pier. Naval
`Facilities Eng’g Command (2021), supra, at 10.
`130. The last gauging event was in September 2017, during which the Navy
`observed ongoing contamination, including a 2.4-inch thick layer of contaminants. Id.
`131. The Navy’s next scheduled “gauging event” is September 2022. Id.
`132. On August 23, 2016, the Navy stated the following with respect to the
`historical contaminant plume at Hotel Pier: “The sources of subsurface petroleum may
`have been spills in the vicinity of Valve Station 3 (VS-3), associated subsurface
`product lines for VS-3, and subsurface pipelines running parallel to [REDACTION1]
`(ATS 2014).” Naval Facilities Eng’g Command, Annual Performance Monitoring
`Report Product Recovery System Remedial Action Area 1 (RAA-1) 1-1 (2015),
`available at
`https://health.hawaii.gov/ust/files/2021/11/42nd.HPier_.Monitoring.Report.pdf; see
`also Naval Facilities Eng’g Command, Annual Performance Monitoring Report
`Product Recovery System Remedial Action Area 1 (RAA-1) 1-1 (2016), available at
`https://health.hawaii.gov/ust/files/2021/11/43AnnualReport.HPier2017.pdf.
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`Ongoing Release Near Hotel Pier (2020–2022)
`133. On June 21, 2013, DOH approved a request from the Navy to reduce
`monitoring frequency at the Hotel Pier site from semi-annually to annually. Letter
`from Steven P. Mow, Remedial Project Manager, Hazard Evaluation & Emergency
`Response Off. to Jeffrey Klein, Restoration Project Manager, Naval Facilities Eng’g
`Command (June 21, 2013).
`134. On March 17, 2020, at approximately 9:14 a.m. HST, the Navy notified
`Hawai`i Department of Health (“DOH”) of a discharge of oil to Pu`uloa and Hālawa
`Stream at Hotel Pier (“Hotel Pier Release”). Haw. Dep’t of Health, Notice of Interest
`in a Release Or Threatened Release of Hazardous Substances 1 (December 21, 2020);
`see also Hawai`i Dep’t of Health, Emergency Order 2 (December 5, 2021), available
`at https://health.hawaii.gov/about/files/2021/12/Emergency-Order-12.05.2021-
`signed.pdf.
`135.
`Some public documents state that the Hotel Pier Release started on
`March 12, 2020. Pac. Env’t Corp., Photograph of Spreadsheet Excerpt, in
`PencoFuelUpdate2 (2021), available at
`https://health.hawaii.gov/ust/files/2021/11/PencoFuel.Update2.pdf.
`136. The Navy initially suspected that the “discharge of petroleum into
`Hālawa Stream” (Wharf H-6) and the ocean (Wharf H-5) was from a 4-inch diameter
`steel pipe oriented perpend