Navy argues Department of Health does not have the power to shut down Red Hill

In response to an order from the Hawaii Department of Health to empty the WWII fuel facility at the center of a water contamination crisis, the U.S. Navy argues that the state does not has no authority to make such a request.

The order proposed by the state “operates in a regulatory vacuum, illegally exceeding the authority of the DOH”, according to more than 40 pages of objections the Navy filed Wednesday evening.

Secretary of the Navy Carlos Del Toro said earlier this month he would interpret a state demand to shut down Red Hill as a “request.” Cory Lum / Civil Beat / 2021

The state’s order came after the Navy’s water supply system, which serves 93,000 people, was contaminated with fuel, with families reporting serious health effects.

A Ministry of Health hearing officer confirmed on Monday that the order was legal and necessary. Hearing Officer David Day called the situation a “humanitarian and environmental catastrophe” that puts the public in imminent danger. The designation gives the state the power to shut down the Red Hill fuel facility until it makes safety improvements, according to Day’s report.

The Navy disagreed. In his case, Navy lawyer Craig Jensen argues that the DOH cannot take action because the community is not in immediate danger.

“Only the discovery of a real imminent danger and actions adapted to the immediate emergency are authorized under the emergency power of the DOH,” the file said.

Protesters demand the closure of Red Hill, which has threatened Oahu’s drinking water for years. Cory Lum / Civil Beat / 2021

Contamination has already taken place, so the state cannot use it to justify shutting down the facility, the Navy argued.

“There is no evidence on the record to show that the operations of the facility present an inherent risk of causing damage, so simply resuming operations would automatically result in a ‘serious risk; peril; danger ‘which is’ likely to occur at any time’ ”, indicates the file.

Jensen also objected to several other parts of the Hearings Officer’s report. He alleges that Day erroneously considered certain information while ignoring other evidence and that he factored inaccurate information into his decision. The Navy also opposes Day’s claim that the facility is “just too old, too poorly designed, too difficult to maintain, too difficult to inspect, in addition to being too large to realistically prevent future releases “.

The Department of Health’s deputy director of health, Marian Tsuji, will review the Navy’s case and render a decision within 30 days, according to the DOH.

David Henkin, an Earthjustice lawyer who represents the Sierra Club of
Hawaii said the Navy had a legal right to file its disagreements with the order proposed by the hearing officer.

“But he also has a moral obligation to recognize the reality that every day he fights this emergency ordinance is another day when O’ahu’s primary source of drinking water remains threatened with catastrophic contamination and irreversible, “he wrote in a statement.


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