Red Hill Contested Case Hearing Highlights + Background (2021)
Another one for the books—6 days and over 47 hours of witness testimony and cross examination, all in the name of protecting Oʻahu’s precious and irreplaceable drinking water supply.
After the Navy presented its 10 witnesses, it remains more clear than ever that its tanks are an incredible threat to our drinking water future and they have no plans to make substantive upgrades to the facility, nevermind relocating the tanks.
The Sierra Club and Board of Water Supply are detailing the history of “unscheduled fuel movements” (that’s Navy-speak for jet fuel leaks) at Red Hill, the Navy’s failure to fulfill its objectives and goals, and its failure to comply with its own inspection and repair standards. The Navy’s track record at Red Hill is an indication of what we can expect from future operations at this facility.
The Navy’s position appears to be that what happened in the past, is in the past and is not relevant to the future. New repair procedures, new inspection protocols, new hopes and promises for operating the best massive, antiquated tank field ever are the only factors the Health Department should consider in evaluating this permit to operate. That’s outrageous.
There could another explanation…if the Navy has always had the objective of not releasing fuel into the environment and despite their best efforts at the time, fuel has consistently leaked at Red Hill from 1949 to the present, then maybe—just maybe—it is not actually possible to store this much fuel in tanks this old without it leaking out.
Every day our argument is strengthened, as it becomes even more and more clear to everyone (except the Navy of course ) that the Red Hill tanks cannot stay in place. True, they should have never been built there in the first place, and now, the tanks must go. Check out the article in the Honolulu Star-Advertiser, ‘Red Hill fuel tanks have always leaked, Sierra Club says’ (no paywall) : “The Navy cannot be given a free pass to ruin our water,” Frankel said. “The Department of Health must conclude that the Navy’s permit to operate its antiquated and leaky tanks is unacceptable.”
In September 2021, the Hearing Officer issued a recommended decision to retire nearly 40% of the tanks within 3 years, and allow only those tanks that have actually been inspected and repaired properly. The Hearing Officer concluded from the evidence presented at the hearing that the Navy’s performance of inspections and repairs is “sorely deficient” and that the “risk of potential pollution of the Red Hill potable aquifer is real.”
From here, Health Department Director Dr. Libby Char will make the final decision on whether or not the Navy receives a permit and if so, what conditions to impose. If we are unhappy with the permit decision, there is an option for the Sierra Club of Hawaiʻi and/or the Honolulu Board of Water Supply to appeal to state circuit court.
Here’s who was in the room:
These are the common faces seen throughout the hearing in addition to each of the witnesses being cross examined.
Day One: Monday, February 1
“If anything could go wrong at Red Hill, it has.”
“From the very beginning, the Navy’s Red Hill tanks have leaked. In 1949, tank 16 was leaking 546 gallons a day...In 1958 a tank leaked 1,500 gallons of fuel. In 1971, a tank leaked 20,000-gallons of fuel, and in 1980 another tank leaked more than 25,000 gallons...And in 2014 a tank leaked 27,000 gallons of fuel.” In case you missed it, you can watch the Sierra Club’s opening statement by David Kimo Frankel here.
Per usual, the Navy believes that the tanks are in line with state law and regulations, that the tanks have not and will not impact Oʻahu’s drinking water, and they should be allowed to operate with no additional conditions—because the risks to public health and environment are speculative and hypothetical.
The Navy presented three witnesses that were cross examined by the parties. Commander Blake Whittle: Regional Fuels Officer, 2017-2020 responsible for all bulk fuel operations at Pearl Harbor-Hickam, including Red Hill; Danae Smith: Environmental Compliance Program Manager at the Navy Petroleum Office, 2015, and 2011-2012; and John Floyd: current Deputy Director of the Regional Fuel Department for Naval Supplies Systems Command.
“It is an open question what causes the corrosion”
On this day, we learned that only one of the tanks in the Red Hill facility have been inspected in compliance with the Navy’s own inspection schedule. Fourteen massive tanks full of fuel above our water supply have never undergone an rigorous safety inspection. Tanks that are currently being inspected and repaired have been found to have defects that require mandatory repairs to ensure the integrity of those tanks.
We also learned that for all of the studying and evaluation of these tanks, there is very little known about the tanks. And what is worse, predicting the future at the Red Hill tanks appears to be impossible. When the Navy attempted to verify their predictions about corrosion at the tanks, they were right only 50% of the time (Vegas get better odds than that!). See for yourself by watching this cross examination of the Navy’s corrosion expert.
The Navy presented three witnesses that were cross examined by the parties. Chris Caputi, an engineering consultant to the Navy from an engineering firm called Michael Baker International; Frank Kern, an engineer with Naval Facilities Command focused on predictive testing, and Rob Jamond, an engineer with Naval Facilities Command presented as a subject matter expert in corrosion.
Day Three: Wednesday, February 3
“Tank 5 is the best documented and studied release [of fuel] of all the unscheduled fuel releases at Red Hill”
Yesterday, the hearing focused on assessing and managing all of the risks that come with storing millions of gallons of fuel 100 feet above the island’s aquifer. The Navy presented a structural engineer to talk about the risk earthquakes pose to the tanks, as well as a hydrologist to describe all of the various kinds of water monitoring needed to catch a leak from the tanks. They also presented the Director of the Red Hill Program Management Office. In a heated back and forth with our attorney, we learned why the tank inspection and repair protocols are so critical and how they are not being currently being followed.
The parties cross examined three Navy witnesses on this day: Dr. Gaur Johnson, a structural engineer for the Navy presented as an expert in earthquakes, Commander Darrel Frame, the Red Hill Program Management Office Director, and Curt Stanley, a geoscientist and hydrologist with GSI Environmental.
The hearing continues today and tomorrow online. For Thursday we expect to hear from the last of the Navy’s experts, and the Sierra Club’s witnesses. Friday will feature witnesses from the Board of Water Supply. Closing arguments will likely be held on Monday, stay tuned for a new link!
Operation of the Red Hill Fuel Tanks “has impacted the aquifer immediately beneath the facility.”
Curt Stanley, the Navy’s hydrologist, had perhaps the most revealing (and lengthy) time on the stand. Watch here as he explains that fuel from Red Hill has reached the groundwater. It takes about 10 minutes but the Hearing Officer gets the Navy’s witness to plainly state (at about 3:55:15) that operation of the Red Hill facility has impacted the aquifer immediately beneath the facility. The witness offers comfort by adding—as if to say don’t worry—“it is stable.”
The Navy’s argument appears to be: because there is already contamination in Oʻahuʻs groundwater supply, the added risk of continuing with the facility in place is not that high. The Navy also draws a distinction between groundwater that is currently used for drinking and the groundwater underneath its tanks that is (thankfully) not currently pumped to provide us drinking water. Plus, we promise to detect leaks as they happen even better than we did before. Therefore, the Navy should be allowed to continue storing 180 million gallons of jet fuel 100 feet about Oʻahu’s primary source of drinking water.
The day’s witnesses: continued crossed examination of Curt Stanley, a geoscientist and hydrologist with GSI Environmental, from Wednesday and the Navy’s last witness Donald Panthen, Program Director for the Red Hill Program Management Office for Navy Region Hawaiʻi, which focused on future plans to comply with the Administrative Order on Consent. The Sierra Club of Hawaiʻi also presented our witness, Jodi Malinoski, Chapter Policy Advocate (who nailed it like the hammer she is 🔨). The parties had no cross examinations for any of Sierra Club’s other witnesses, so their written direct testimony is accepted as is. You can read Dr. Neil Frazer’s testimony here, Jodi Malinoski’s testimony here, and Dr. Laurence Thomas Ramsey’s testimony here.
“We have a public trust responsibility to protect this groundwater… and our view here at the Board is this resource should be given to the future generations in a condition that is better than we got it.”
Listen here to the Board of Water Supply’s passionate commitment to protecting our groundwater.
BWS’s argument appears to be: the contamination we can now monitor from Red Hill is reason enough to take immediate action to reduce the risk and increase monitoring to watch for fuel already loose in the environment. Most importantly, the Navy’s leak detecting and monitoring protocols are not protective of the groundwater and public health because these measures do not prevent fuel from getting out of the tanks.
On this day of witness questioning, we also learned that:
fuel released from Red Hill is so severe the facility violates the Department of Health’s “Environmental Action Levels” for key petroleum contaminants. DOH EAL’s for these contaminants are 400 parts per unit. At Red Hill the EAL for these contaminants reached 6,500 parts per unit, and is consistently well-above the protective level.
treating the water once contaminated is an option only if the contamination is in small amounts and there is time enough to design and construct a treatment facility. This is not “something you take out of the closet, plug it in, and it works,”
For the Board of Water Supply the warning sirens are going off right now—these contaminants being found now in the environment in small amounts are early warning signals that we need to protect our groundwater, provided we take action now before there is catastrophic contamination.
Witnesses cross examined on this day: Erwin Kawata, Program Administrator for the Board of Water Supply’s Water Quality Division, then Dr. Dave Norfleet, Principle Engineer for the incident group of DNV GL, an independent expert firm in risk management and quality assurance and Dr. Nicole Denovio, Principal and Practice Leader with Golder Associates.
Day 6: Monday, February 6 - Closing Arguments
“The Navy has failed to meet its burden. Not only did the Navy fail to provide evidence the tanks will not leak. The evidence shows to the contrary, that the tanks will leak.”
If you watch one thing from this whole trial, watch this! Sierra Club’s attorney, David Kimo Frankel, gives a clear, concise, and annotated summary of the key evidence in this case (complete with exhibits and relatable pop culture references).
The public trust doctrine imposes a duty on the government to maintain the purity of our water. Given that the Red Hill tanks are in such close proximity to the groundwater, have leaked so much already that they have impacted the groundwater, and that the new promises and procedures for operating the facility fall woefully short of actually preventing any future leaks, we contend the Health Department cannot grant this facility a five year permit to operate as is.
If you missed the first few days of the trial, no worries, you can find our written summaries from all six days here. Included in the summaries are links to the recordings of the hearing shared by the Department of Health. I must warn you, it is possible the department will take down these recordings, so if you plan to watch the hearing—now’s your chance, sooner is better than later.
Background —
Our long awaited contested case hearing over the Navy’s permit application to operate its Red Hill fuel tanks is finally here. The outcome of this hearing will determine the fate of Oʻahu’s water. You are invited to tune into the hearing next week, Monday, February 1-Friday, February 5, 8am-4pm.
Tune in on YouTube by clicking the links below for each day:
Monday, February 1
Tuesday, February 2
Wednesday, February 3
Thursday, February 4
Friday, February 5
We will also share highlights from the proceedings on our Facebook page and via email throughout the week—stay tuned!
Here’s the scoops:
This five day hearing is happening as a result of a Sierra Club lawsuit that forced the Department of Health to amend its rules to require that the Navy obtain a permit to operate its tanks just like every other underground storage tank. After the Navy applied for its permit, the Sierra Club and the Board of Water Supply requested a contested case hearing. In their permit application, the Navy fails to demonstrate that its tanks will not leak and will not affect Oʻahu’s groundwater. The Navy also fails to demonstrate that there is not a feasible alternative -- like relocating the tanks.
Side note: The Navy is required to apply for a permit because of our lawsuit back in 2017 that removed an exemption for field constructed underground fuel storage tanks like those at Red Hill. Prior to this, these tanks were unregulated by the state. This is important because the permitting process brings these tanks into compliance with state law, providing the Department of Health with means to enforce regulations and ensure the Navy is doing everything it can to protect our water.
We are asking the Hawaiʻi Department of Health to stand by its constitutional responsibility to protect our drinking water and its own conclusion that “the storage of up to 187 million gallons of fuel, 100 feet above a drinking water resource, is inherently dangerous”. The Department should issue a much shorter permit that imposes stronger protections in the short term while the Navy takes the steps it needs to relocate the fuel in the long term. Read the pre-hearing memos here: Sierra Club of Hawaiʻi, Board of Water Supply, and the Navy.
Outrageously, the Navy is arguing that “the mere possibility of a future release, or the existence of a past release, should not affect the (Health) Department’s permitting decision given that there is no evidence of significant groundwater impacts or reasonable likelihood of future impacts.” 😑
The Navy’s own studies have shown that the Red Hill tanks have a 27.6% chance of leaking between 1,000 and 30,000 gallons in the next year, 80.1% in the next five years, 96% in the next ten years, and a 99.8% chance in the next 20 years. Need I remind you that the administrative agreement to study, maintain and consider repairs to the Red Hill tanks lasts for another 18 years?
And oh yeah! The Red Hill tanks have been leaking since their construction in the 40s, including the 27,000 gallons released in 2014. Over the years, the Navy itself has reported that the groundwater has been contaminated by chemicals found in petroleum based fuels and that “past inadvertent releases have contaminated the fracture basalt, basal groundwater”.
The Red Hill tanks have threatened Oʻahu’s drinking water for far too long. The tanks should have never been built directly above the aquifer and should not be frankenstein-ed to operate any longer. The cost of relocating the fuel above ground to a location that does not threaten our environment or people might seem like a lot. But when you take into account the military’s long history of contaminating Hawaiʻi’s lands and waters, the costs of cleaning it up, and the absurd amount of land they have taken over while paying the state so little—it is a small price to pay. Military-operated field constructed underground storage tanks are being retired and the fuel relocated in top-of-the-line above ground tanks around the United States, it is time the Navy does the same for the Red Hill tanks. This contested case hearing could bring us a big step closer to that goal.