Bad Habits That Are Hard to Break? Fuel Tank Advisory Committee meeting repeats the past by violating Sunshine Law, favoring Navy convenience over public participation
by Wayne Tanaka | Reading Time: 7min
The latest twice-a-year Fuel Tank Advisory Committee (FTAC) meeting, held on October 1, provided a textbook example of how government officials have historically railroaded community members’ concerns over the Navy’s activities at the Red Hill Bulk Fuel Storage Facility, including by illegally limiting public participation notwithstanding the requirements of the Sunshine Law.
2025 marks the 50th anniversary of Hawaiʻi’s open meetings statute, otherwise known as the Sunshine Law, which applies to government boards, commissions, and committees like the FTAC. The law recognizes that
In a democracy, the people are vested with the ultimate decision-making power. Governmental agencies exist to aid the people in the formation and conduct of public policy. Opening up the governmental processes to public scrutiny and participation is the only viable and reasonable method of protecting the public's interest.
Hawaiʻi Revised Statutes (HRS) § 92-1 (emphasis added).
With the magnitude of the public interest in the Red Hill crisis and the remediation of Oʻahu’s still-contaminated sole-source aquifer, it isn’t unreasonable to expect FTAC coordinators at Governor Josh Green’s Hawaiʻi Department of Health to whole-heartedly follow and uphold both the letter and spirit of the Sunshine Law in FTAC’s biannual meetings.
Unfortunately, as in the past, the most recent October 1 meeting failed to do so.
First, public testimony on all agenda items was relegated to the end of the meeting, well after committee members’ discussions on the various agenda items were completed - a violation of the Sunshine Law’s requirement for meaningful public participation. As the Office of Information Practices has opined, “if a board did not permit public comment until after it discussed or acted on an item the board would have failed to allow ʻtestimony’ on the item as the Sunshine Law requires.” See Office of Information Practices Op. Ltr. No. 06-01, Public Testimony (Feb. 8, 2006)).
As a result, misleading assertions and omissions by the Navy in its various presentations to FTAC and audience members were allowed to go unchallenged for hours - as has been the case in many past FTAC meetings as well.
Second, despite years’ of experiences demonstrating how long FTAC meetings normally take - a result of the committee meeting only twice a year - FTAC coordinators failed to arrange for sufficient wireless internet service time. As a result, virtual Zoom participants in the hybrid meeting, who had waited for four hours to provide verbal testimony to committee members, were totally prevented from commenting on the vast majority of agenda items.
This, again, was a violation of the explicit requirements of the Sunshine Law.
FTAC members, including elected officials and community representatives, therefore were not alerted by public testifiers to significant issues and concerns with the Navy’s presentations. These include:
The need to test for and report on the full range of toxic compounds that could have entered the groundwater from associated military sources, such as the Red Hill oily waste disposal pit;
Numerous other irregularities in Navy groundwater testing and reporting that call for much greater transparency and objectivity in water testing going forward;
The Navy’s continued use of water tanks that had not been cleaned in over a decade - including after the November 2021 spill - and its inexplicable refusal to test the visible sludge on the tank bottoms for toxins or pathogens known to occur in water tank sediment (read more on this pressing issue here);
The fact that none of the Navy’s touted “proactive” remediation efforts - namely, soil vapor extraction and monitoring - do nothing to clean up PFAS, or jet fuel under the water table;
The potential risks of reactivating the Navy’s ʻAiea-Hālawa and Red Hill drinking water shafts with neither a working groundwater model nor a contaminant fate and transport model - both needed to help determine whether and how Navy water consumers can be protected by sudden “plugs” or surges in contaminants entering their water system; and
The Navy’s reliance on the EPA to guide them in “community engagement” planning, after both entities rejected the requests of nearly 5 dozen community organizations to not muzzle the Red Hill Community Representation Initiative (CRI) with arbitrary “ground rules,” and refused to recognize the need for trauma-informed facilitation for impacted community representatives on the CRI (see also the EPA’s non-answers in response to community concerns here);
among others.
As the Office of Information Practices has advised, in order to address these ongoing violations of the Sunshine Law, the FTAC must reconvene and take public testimony on each October agenda item, and to ensure that testimonies are taken on future agenda items as they are discussed instead of at the end of each meeting. It remains to be seen if this will happen in a timely manner.
However, Sunshine Law violations were not the only indication of our government entities falling back on their same old habits of elevating military convenience over public participation and oversight.
For example, the Department of Health, legislative representatives, the EPA, and the Navy all voted against holding FTAC meetings on a quarterly basis, to provide more timely updates and to allow for more manageable meeting agendas that could accommodate much more meaningful public participation.
Notably, the Hawaiʻi Water Commission and the Honolulu Board of Water Supply - the two agencies focused on water - and FTAC community representatives all voted, unsuccessfully, in favor of more frequent meetings, with the Board of Water Supply even offering to assist in hosting meetings going forward.
While FTAC coordinators cited a $20,000-per-meeting cost as a reason for not holding more frequent meetings, they could not explain the reason for this incredibly hefty price tag - as other agencies like the Board of Water Supply and Water Commission hold hybrid, Sunshine-compliant meetings at least once a month without spending such an exorbitant amount of taxpayer dollars; the volunteer-driven Red Hill CRI has also coordinated monthly public meetings for two years with no budget whatsoever. In a subsequent e-mail, FTAC coordinator Kelly Ann Lee admitted that the $20,000 figure was grossly inflated, and that the actual cost of October’s meeting was $12,000 - still inexplicably high, but different enough to raise concerns about the Health Department’s willingness to misrepresent facts in order to sway FTAC votes and decisionmaking.
Similar antipathy to public accessibility arose in a proposal to hold FTAC meetings later in the day, to accommodate Oʻahu community members with jobs and school obligations. The Department of Health environmental health program administrator argued that this would make it harder for former Pearl Harbor water system customers on the continent to participate - using nonresidents’ convenience as an excuse to shut out those whose water supply remains under continued direct threat. Ironically, even those impacted by the 2021 fuel spills and who had relocated to the continent shared their willingness to meet later in the evening in the Zoom chat.
Most tellingly, Navy officials were allowed to dodge questions regarding whether water labs could be told to report original water test results directly to regulators; whether the Navy could provide test results for previously-detected banned pesticides in the Red Hill drinking water shaft; and whether and how the public could view original water lab results rather than Navy-modified versions. Their purported excuse for refusing to address these reasonable concerns - that these were matters subject to litigation - went completely unchallenged, despite the fact that future water test results and the presence of non-fuel related pesticides have no apparent bearing on any current lawsuit. Nonetheless, just as the Navy has used baseless claims of “national security” to evade their commitments to transparency, Navy officials are now apparently being allowed to completely avoid inconvenient questions by simply claiming they are under “litigation.”
Governor Josh Green’s Department of Health accordingly appears to be falling back into its dangerous past practice of granting uncritical deference to the Navy, at the expense of public participation and access. This is not unlike, and perhaps connected to, his most recent attempts to negotiate a backroom land deal with the military, notwithstanding the protests of the public, Native Hawaiian groups, the Land Board, and even the county councils of Hawaiʻi and Maui.
The October FTAC meeting highlights the need for continual public pressure to hold our agencies accountable to their mission, and to our communities, our wai, and our keiki and future generations. You can commit to upholding our generational kuleana in this regard, by taking the “Pledge to Our Wai, Pledge to Our Keiki” here (read more about the background behind this pledge here).
In addition, be sure to visit this page to send the Governor a message urging him to stand with the people of Hawaiʻi nei, and to not sell our ‘āina, wai, and communities short via his secret dealmaking with the Department of War.