Anatomy of the Response to Oil-Contaminated Water at a US Naval Base

By Jeffrey Karp, Senior Counsel, and Edward Mahaffey, Legal Research and Writing Attorney

A November 2021 leak of 14,000 gallons of jet fuel at the US Navy’s Red Hill underground fuel storage facility, at Pearl Harbor on the Hawaiian island of Oahu, contaminated a well providing drinking water, displacing thousands of people and making many sick.[1] In response, in December, the Hawaii Department of Health issued an emergency order requiring the Navy to suspend operations at the facility and drain the fuel tanks there. The Navy began to comply in January 2022, but at the end of the month, it decided to contest the order in the courts.

Background: The Red Hill Fuel Storage Facility

The Red Hill facility, built by the Navy during World War II, had posed contamination problems in the past. In 2014, 27,000 gallons of jet fuel leaked from a tank there. In 2019, the Navy sought a five-year underground storage tank permit for the Red Hill facility from the Hawaii Department of Health, which was denied. A contested case hearing was held in 2021, but the final decision was delayed and has yet to be issued. Early in 2020, oil was detected on surface water at Pearl Harbor, which the Navy failed to disclose until June 2021.[2]

In May 2021, a pipeline operator’s error caused the release of 1,618 gallons of fuel, according to a Navy statement in October. During a hearing in December 2021, however, the Navy admitted that the actual quantity may have been as much as 19,000 gallons.[3] Although the fuel was leaked into a concrete tunnel, the Navy eventually admitted the possibility that some of it entered nearby soil.[4]

On October 27, 2021, the state Department of Health fined the Navy $325,000 for operations and maintenance violations based on the Department’s inspections of the facility in 2020.[5]

The most recent known leak occurred on November 20 and 21, when 14,000 gallons of a mixture of water and fuel flowed from a fire suppression system into a tunnel. At the time, the Navy claimed that none of the fuel had escaped into the broader environment to endanger drinking water.[6] Nevertheless, in the last few days of November, military base residents began complaining of a "chemical smell" in their drinking water.

Response

The Navy halted use of the storage tank facility on November 27 and took the Red Hill water well offline on November 28 (although it did not reveal to the public that it had taken either action until December)[7] and the state Department of Health recommended on November 29 that "all Navy water system users avoid using the water for drinking, cooking, or oral hygiene."[8] The Navy began distributing clean water, brought in by truck, to base residents beginning.[9] December 1. Also on December 1, the Department confirmed the presence of a petroleum product in the water at an elementary school on the Navy water system.[10] On December 3, the Honolulu Board of Water Supply shut down the Halawa well, Oahu’s largest water source, because it tapped the same aquifer as the Navy’s Red Hill well. The Board drew more heavily on its other water resources to provide residents with water.[11]

On December 6, the Hawaii Department of Health ordered the Navy to further suspend operations at Red Hill, to install a drinking water treatment system, and to drain its fuel tanks within thirty days. The Navy paused operations at the storage tank facility on December 7, but did not drain the fuel tanks. It began attempts to remove the jet fuel from the water shaft on December 13 and began filtering its water on December 20.[12]

The Navy contested the order in a Department of Health hearing beginning December 20,[13] at which its witnesses testified that the pause in operations, use of water-filtration systems, and investigations constituted an adequate response.[14] The hearing officer recommended that the state emergency order be upheld, stating: "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 prevent future releases."[15] The Department of Health upheld the order on January 3, 2022.[16] On January 10, the Navy announced that it would comply with the order by emptying the fuel tanks and making repairs at the storage facility.[17]

The Navy also reached a separate agreement with state and federal authorities regarding cleanup of the water on January 27. The plan involves pumping water from the well, filtering it through a granular activated carbon system, and monitoring and testing it before releasing it into the Halawa stream.[18]

Appeal of Emergency Order to Federal and State Courts

Notwithstanding the Navy’s earlier announcement of its intention to comply with the state health department’s order,[19] on January 31, the military announced it would appeal the order in both federal and state courts;[20] the complaints were filed on February 2, 2022.

The emergency order was issued pursuant to the state’s statutory emergency powers to regulate underground storage tanks, not under federal law.[21] The federal court complaint asserts that federal jurisdiction is proper because the United States is the plaintiff, although a similar action was filed in state court "out of an abundance of caution in the event that, for any reason, this Court does not exercise jurisdiction over this action."[22]

In its complaint, the Navy contended that ordering the shutdown of the entire facility was overreaching by the state agency and requested "the Court to reverse, modify, or remand the Final Order."[23] The complaint also asserted that although the fuel leak was dangerous, "[t]he Emergency Order does not state that the Red Hill Facility itself is an imminent peril requiring immediate action,"[24] and that the evidence in the record is insufficient to support that conclusion.[25] Moreover, the Navy contended that the Department of Health failed "to provide sufficient standards for the termination of" parts of the order and "did not provide adequate notice…that any contested hearing would consider whether an imminent peril requiring immediate action exists or will be caused by the current configuration and operation of the Red Hill Facility itself."[26]

The Navy did not challenge the general applicability of state environmental law to its base. Federal law requires federal agencies to follow state laws regarding underground storage tanks, including "all administrative orders and all civil and administrative penalties and fines," although the President may exempt specific storage tanks "if he determines it to be in the paramount interest of the United States to do so."[27] This latter assertion was not included, though, in either of the complaints.

Conclusion

The Red Hill matter is one of several recent and ongoing cases involving environmental pollution from current and former US military bases.[28] These cases pose questions, not only about the application of environmental law, but also of federalism and the appropriate limits of judicial deference to military decision-making. In addition to the importance of the result here to the State and its impacted residents, the Red Hill litigation provides an interesting test of the limits of state authority to make the military accountable for the pollution that it causes.

[1] https://www.npr.org/2021/12/15/1064514935/water-contamination-hawaii.

[2] https://www.hawaiipublicradio.org/local-news/2021-12-21/confused-about-the-timeline-for-the-red-hill-fuel-storage-facility-and-contaminated-water-read-this.

[3] Id.

[4] https://www.civilbeat.org/2021/11/congressional-delegation-troubled-by-navys-red-hill-fuel-leaks-and-wants-answers/.

[5] https://health.hawaii.gov/shwb/files/2021/10/SHWB-NOVO.21-UST-EA-01-signed.pdf.

[6] https://www.hawaiipublicradio.org/local-news/2021-11-22/navy-says-14k-gallons-of-fuel-and-water-leaked-from-a-drain-line-near-the-red-hill-facility.

[7] Id.

[8] https://www.hawaiipublicradio.org/local-news/2021-11-29/navy-investigating-reports-of-a-chemical-smell-in-drinking-water-at-pearl-harbor-housing.

[9] https://www.cpf.navy.mil/News/Article/2861096/navy-sets-water-distribution-plan-for-dec-1-at-affected-housing/.

[10] https://www.hawaiipublicradio.org/local-news/2021-12-21/confused-about-the-timeline-for-the-red-hill-fuel-storage-facility-and-contaminated-water-read-this.

[11] https://www.hawaiipublicradio.org/local-news/2021-12-03/board-of-water-supply-shuts-down-halawa-well-as-a-precaution-following-navy-well-contamination.

[12] Id.