U.S. V Dept .Of Health Hawaii

Case 1:22-cv-00051 Document 1 Filed 02/02/22 Page 1 of 33 PageID #: 1
TODD KIM
Assistant Attorney General
Environment & Natural Resources Division
U.S. Department of Justice
LUCY E. BROWN (HI Bar #10946)
LESLIE M. HILL (DC Bar #476008)
DAVID D. MITCHELL (IL Bar #6302250)
Environmental Defense Section
P.O. Box 7611
Washington, D.C. 20044-7611
Tel: (202) 598-1868 (Brown)
Fax: (202) 514-8865
Email: lucy.e.brown@usdoj.gov
Email: leslie.hill@usdoj.gov
Email: david.mitchell@usdoj.gov
ELLIOT ENOKI (HI Bar #1528)

Executive Assistant U.S. Attorney
District of Hawaii
Attorney for the United States,
Acting under Authority Conferred by
28 U.S.C. § 515
DANA A. BARBATA (HI Bar #9112)
Assistant U.S. Attorney
PJKK Federal Bldg., Room 6-100
300 Ala Moana Boulevard
Honolulu, HI 96850
Telephone: (808) 541-2850
Facsimile: (808) 541-3752
Email: dana.barbata@usdoj.gov
Attorneys for Plaintiff
UNITED STATES DISTRICT COURT

DISTRICT OF HAWAII
UNITED STATES OF AMERICA, CIVIL NO.
Plaintiff, COMPLAINT FOR

v. DECLARATORY
AND INJUNCTIVE
DEPARTMENT OF HEALTH, STATE OF RELIEF
HAWAII; ELIZABETH A. CHAR, in her official
capacity as Department of Health Director;
MARIAN E. TSUJI, in her official capacity as
Department of Health Deputy Director;
Defendants,
and
SIERRA CLUB; BOARD OF WATER SUPPLY,

CITY AND COUNTY OF HONOLULU,
Intervenor-Defendants.
INTRODUCTION
1. The United States Department of the Navy (the “Navy”) fi les this
Complaint pursuant to 28 U.S.C. §§ 2201–02 and Hawaii Revised Statutes
(“HRS”) §§ 91-14 and 342L-13 to protect its rights respecting an order issued by
the Hawaii Department of Health, Docket No. 21-UST-EA-02, on January 3, 2022
(the “Final Order”). See Exhibit A. The Final Order ounlawfully imposes certain
requirements on the Navy’s management of the Red Hill Bulk Fuel Storage
Facility (“Red Hill” or “Facility”), which stores fuel to support U.S. military forces
throughout the Indo-Pacific Command area of responsibility. The Navy hopes to
resolve any differences with the State of Hawaii regarding the Final Order through
negotiation, but files this suit out of an abundance of caution to satisfy the 30-day
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statute of limitations that Hawaii law imposes on judicial review of such orders.
See HRS § 91-14(b).
2. Since 2015, the Navy has worked closely with the Hawaii Department
of Health (“DOH”), the United States Environmental Protection Agency (“EPA”),
and other partners as the Navy conducts environmental analyses and infrastructure
improvements to minimize the threat of any fuel releases at Red Hill. This work
has been carried out in accordance with an administrative agreement between
DOH, the Navy, EPA, and the Defense Logistics Agency. The Navy has also
endeavored to obtain all necessary authorizations from DOH for the operation of
the underground storage tanks at Red Hill.
3. On November 20, 2021, the Navy recovered approximately 14,000
gallons of a fuel-and-water mixture that had been released from a fire suppression
drain line located about a quarter of a mile downhill of the fuel tanks at Red Hill.
The Navy quickly initiated an investigation into the release. Following reports of a
chemical or petroleum odor in the water in the Navy’s water distribution system,
the Navy immediately began testing the water and, along with the United States
Army and others, providing potable and bottled water to residents. The Navy has
also provided information and held town halls for the Joint Base Pearl Harbor-
Hickam community and arranged for alternative housing, laundry service, and
medical assistance.
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4. On November 28, 2021, the same day the Navy began receiving
reports of a chemical or petroleum odor in drinking water, the Navy shut down the
Red Hill Shaft, one of three wells the Navy used to service the Navy’s water
distribution system. The Navy later verified that the Red Hill Shaft was
contaminated by the November 20, 2021 release. In coordination with DOH and
EPA, the Navy is in the process of completely flushing and testing the system.
5. On December 6, 2021, DOH issued an ex parte Emergency Order
directing the Navy to suspend operations at Red Hill, to install a drinking water
treatment system at Red Hill Shaft, and to take a variety of other actions, including
the defueling of the underground storage tanks at Red Hill. See Exhibit B. On
January 3, 2022, after an expedited hearing, DOH adopted the requirements of the
Emergency Order in a Final Order.
6. These Orders were premised on HRS § 342L-9, which authorizes
emergency powers and procedures only when “an imminent peril to human health
and safety or the environment is or will be caused by: (1) A release; (2) Any action
taken in response to a release from an underground storage tank or tank system; or
(3) The installation or operation of an underground storage tank or tank system . . .
that requires immediate action[.]” The Final Order adopted the reasoning of the
administrative hearings officer that two such “imminent perils” required immediate
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action: first, the November 20, 2021 release; and second, the very existence of Red
Hill.
7. The Navy recognizes that the November 2021 release and subsequent
contamination of the Red Hill Shaft was an emergency and is committed to
remediating the situation. The Final Order, however, reaches beyond the
November 2021 release and, in so doing, exceeds the emergency powers granted
DOH under HRS § 342L-9. Rather than direct action that may be necessary to
remediate the November 2021 release, the Final Order goes further, effectively
seeking to shut down the Red Hill facility itself. HRS § 342L-9 was not written to
address long-term issues, which are the subject of other Hawaii statutes. And the
swift and truncated nature of the hearing DOH provided for review of the
Emergency Order was inadequate to evaluate the entire Red Hill facility.
8. Whether the entire facility is built and operated in a manner that
protects human health and the environment is the subject of ongoing permitting
proceedings following DOH’s proposal to issue a permit for the underground
storage tanks in June 2021. And the actions necessary to manage long-term risk
for the entire facility are also the subject of the pre-existing administrative
agreement. Though the Navy shares DOH’s commitment to improving Red Hill
and securing the health and safety of Hawaiian citizens and the environment, the
Final Order here was not a lawful means for achieving these ends.
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9. Accordingly, Plaintiff, United States of America, files this Complaint
pursuant to 28 U.S.C. §§ 2201–02 and HRS §§ 91-14 and 342L-13 to protect its
right to present these objections, and, if unable to resolve this matter through
negotiation, requests the Court to reverse, modify, or remand the Final Order in the
manner identified herein.
PARTIES
10. Plaintiff in this action is the United States of America.
11. Defendants in this action are DOH, Elizabeth A. Char, in her official
capacity as Director of DOH (“Director”), and Marian E. Tsuji, in her official
capacity as Deputy Director of DOH (“Deputy Director Tsuji”).
12. Intervenor-Defendants in this action are Sierra Club and Board of
Water Supply, City and County of Honolulu (“BWS”).
13. Sierra Club and BWS intervened in the administrative proceedings
below and are joined as defendants pursuant to Federal Rule of Civil Procedure
19(a)(1).
JURISDICTION & VENUE
14. This Court has jurisdiction pursuant to 28 U.S.C. § 1345 (United
States as plaintiff).
15. Venue is proper in the District of Hawaii pursuant to
28 U.S.C. § 1391(b)(1)–(2) because DOH resides in this judicial district, a
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substantial part of the events or omissions giving rise to the claims asserted herein
occurred in this judicial district, and the Facility is situated in this judicial district.
EXHAUSTION OF ADMINISTRATIVE REMEDIES
16. A hearing on the Emergency Order was required by law.
HRS § 342L-9(a).
17. DOH appointed an administrative hearings officer to preside over a
virtual hearing on the Emergency Order.
18. A hearing was held on December 20 and 21, 2021.
19. The hearing determined applicable rights, duties, and privileges with
respect to the Navy’s operation of the Facility.
20. The Navy participated in the hearing.
21. On December 27, 2021, the hearings officer issued Proposed Findings
of Fact, Conclusions of Law, and Decision and Order (“Proposed Order”),
adopting all five Directives of the Emergency Order. See Exhibit C.
22. Pursuant to Hawaii Administrative Rules (“HAR”) § 11-1-42(b), the
Navy timely filed exceptions to the Proposed Order.
23. On January 3, 2022, Deputy Director Tsuji issued the Final Order,
adopting the Proposed Order in all substantive respects.
24. The United States has exhausted all administrative remedies.
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25. The United States files this action in federal district court because
Congress established that “civil actions, suits or proceedings” can be brought in
federal court when the United States acts as a plaintiff. 28 U.S.C. § 1345.
26. Following the filing of this action, the United States will file a similar
action in Hawaii state circuit environmental court in Honolulu County. That suit
will be filed only out of an abundance of caution in the event that, for any reason,
this Court does not exercise jurisdiction over this action.
LEGAL BACKGROUND
I. The Resource Conservation and Recovery Act
27. The Resource Conservation and Recovery Act (“RCRA”),
42 U.S.C. §§ 6901–6992k, sets forth a comprehensive regulatory framework for
the management of solid and hazardous wastes from generation to final disposal.
28. RCRA Subchapter IX, 42 U.S.C. §§ 6991–6991m, governs the
regulation of underground storage tanks (“USTs”).
29. Departments, agencies, and instrumentalities of the federal
government must comply with state and local “requirements, both substantive and
procedural . . . , respecting underground storage tanks in the same manner, and to
the same extent, as any person is subject to such requirements[.]” 42 U.S.C.
§ 6991f(a). “Requirements” include “all administrative orders and all civil and
administrative penalties and fines, regardless of whether such penalties or fines are
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punitive or coercive in nature or are imposed for isolated, intermittent, or
continuing violations.” Id.
II. Hawaii’s UST Program
30. Hawaii sought and obtained EPA’s approval to regulate UST systems
within Hawaii’s jurisdiction. Hawaii; Final Approval of State Underground
Storage Tank Program, 67 Fed. Reg. 60,161, 60,161 (Sept. 25, 2002) (approving
program under EPA’s 1988 UST regulations). On July 30, 2020, EPA proposed to
approve Hawaii’s program revision addressing the 2015 revisions to the federal
UST regulations. Hawaii: Proposed Authorization of Underground Storage Tank
Program Revisions, 85 Fed. Reg. 49,611 (Aug. 14, 2020).
31. DOH implements Hawaii’s UST regulatory program as set forth in
HRS division 1, title 19, chapter 342L and Hawaii Administrative Rules title 11,
subtitle 1, chapter 280.1.
32. HRS § 342L-9 governs DOH’s emergency powers and procedures in
the event “that an imminent peril to human health and safety or the environment is
or will be caused by: (1) A release; (2) Any action taken in response to a release
from an underground storage tank or tank system; or (3) The installation or
operation of an underground storage tank or tank system . . . that requires
immediate action[.]”
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33. In the event of such an “imminent peril . . . requir[ing] immediate
action,” section 342L-9(a) provides that the Governor of Hawaii or the Director of
DOH “may order any person causing or contributing to the peril to immediately
reduce or stop the release or activity, and may take any and all other actions as may
be necessary.”
34. HRS § 342L-9(a) further provides that “[t]he order shall fix a place
and time, not later than twenty-four hours thereafter, for a hearing to be held before
the director.”
35. The term “any person” as used in section 342L-9 includes federal
agencies. See HRS § 342L-1.
36. DOH requires a permit to operate UST systems and provides a
permitting procedure to determine whether such operation is protective of human
health and safety and the environment. See generally HAR Chapter 11-280.1,
Subchapter 12.
37. Permit decisions are subject to a contested hearing at which a
permittee is afforded the opportunity to present evidence and argument on whether
the long-term operation of a UST system is protective of human health and safety
and the environment. See HRS § 91-9.
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III. Hawaii Contested Case Hearings
38. Under Hawaii state law, “[a] contested case hearing is one that is (1)
required by law and (2) determines the rights, duties, and privileges of specific
parties.” Matter of Haw. Elec. Light Co., Inc., 145 Haw. 1, 13, 445 P.3d 673, 685
(2019) (internal citation omitted); see also HAR § 11-1-3.
39. DOH’s contested case hearings are governed by the Hawaii
Administrative Procedure Act, HRS division 1, title 8, chapter 91, and HAR
chapter 1, subchapter 2, §§ 11-1-21 through 11-1-43.
40. HRS § 91-9(a) and (b) require that an agency’s notice for a contested
case “shall include . . . the particular sections of the statutes and rules involved”
and “[a]n explicit statement in plain language of the issues involved and the facts
alleged by the agency in support thereof,” as well as “an opportunity for hearing
after reasonable notice.”
41. HRS § 91-9(d) further requires that “[o]pportunities shall be afforded
all parties to present evidence and argument on all issues involved.”
42. HRS § 91-12 states that “[e]very decision and order adverse to a party
to the proceeding, rendered by an agency in a contested case, shall be in writing or
stated in the record and shall be accompanied by separate findings of fact and
conclusions of law. If any party to the proceeding has filed proposed findings of
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fact, the agency shall incorporate in its decision a ruling upon each proposed
finding so presented.”
43. Judicial review of emergency orders issued by DOH under
HRS § 342L-9 is governed by HRS §§ 91-14 and 342L-13.
44. A reviewing court may reverse or modify an administrative order if
the “substantial rights” of the aggrieved party have been prejudiced by the order
and it is “in violation of constitutional or statutory provisions,” “in excess of the
statutory authority or jurisdiction of the agency,” “made upon unlawful
procedure,” “affected by other error of law,” “clearly erroneous in view of the
reliable, probative, and substantial evidence on the whole record,” “arbitrary, or
capricious, or characterized by abuse of discretion,” or based on a “clearly
unwarranted exercise of discretion.” HRS § 91-14(g). A reviewing court may also
remand the case to the agency with instructions for further proceedings without
making such findings. Id.
FACTUAL BACKGROUND
I. Red Hill Bulk Fuel Storage Facility
45. The Navy owns and operates the Red Hill Bulk Fuel Storage Facility
on the Island of Oahu, Hawaii.
46. The Facility stores jet propellant fuel, aviation turbine fuel, and
marine diesel fuel in bulk underground storage tanks.
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47. The Facility was built by the United States during World War II and
began operating in 1943.
48. There are 20 bulk USTs at the Facility, 14 of which currently contain
fuel. Each tank is 100 feet in diameter, 238 to 250 feet in height, and can store up
to 12.5 million gallons of fuel.
49. Each UST has a double block and bleed valve for isolation (positive,
verifiable shutoff) of the UST and its fuel from the rest of the Facility.
50. Fuel is transferred in and out of the tanks via pipelines located in a
concrete tunnel that runs between the tanks and Pearl Harbor. The pipelines are
visible within the tunnel for inspection.
51. Fuel stored at the Facility constitutes strategic reserve available to
support U.S. military forces throughout the Indo-Pacific Command area of
responsibility.
II. 2014 Release and Administrative Order on Consent
52. In 2014, approximately 27,000 gallons of fuel leaked from a UST at
Red Hill that had been incorrectly repaired by a contractor.
53. In 2015, the Navy entered into an Administrative Order on Consent
(“AOC”) with DOH, EPA, and the Defense Logistics Agency (“DLA”) to take
steps to ensure that the groundwater resource in the vicinity of the Facility is
protected and the Facility is operated and maintained in an environmentally
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protective manner. The AOC “provides for the performance by Navy and DLA of
a release assessment, response(s) to release(s), and actions to minimize the threat
of future releases in connection with the . . . Facility . . . and on any property that
may be affected now or in the future by petroleum or other substances released
from the Facility.”
54. The Statement of Work for the AOC contains comprehensive
requirements that the Navy and DLA must fulfill to ensure that Red Hill is
operated in an environmentally protective manner and that the groundwater
resource in the vicinity of the Facility is protected. The AOC and Statement of
Work require the Navy and DLA to submit deliverables to EPA and DOH for
approval or modification.
55. The AOC provides that, “unless required on an emergency basis, no
[HRS § 342L-9 enforcement] shall be taken in relation to any activity within the
scope of this AOC unless a Party has first made good faith efforts to address the
issue through a modification to this AOC and, if necessary, through the Dispute
Resolution process set forth” in the AOC.
III. Red Hill UST Permit Proceeding
56. DOH is the regulatory agency authorized to issue permits for the
operation of USTs in the State of Hawaii. The DOH Director may issue such
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permits for up to five years if the Director determines that doing so would “be
protective of human health and the environment[.]” HRS § 342L-4(c).
57. DOH’s UST regulations required the Navy to apply for a permit to
operate the USTs at Red Hill by July 15, 2019. See HAR §§ 11-1-280.1-
10(a)(1)(A), 11-280.1-323.
58. The Navy timely submitted a permit application to DOH.
59. In a letter dated July 16, 2019, DOH confirmed the Navy’s application
to be timely. DOH further stated that it intended to allow the Navy to continue to
operate the Red Hill UST system until a decision on the permit application was
rendered.
60. When DOH issued the draft permit for public notice and comment,
Sierra Club and BWS requested a contested case hearing. DOH Environmental
Health Administration (“EHA”) also joined as a party to the contested case
hearing.
61. A contested case hearing was held before a DOH hearings officer
from February 1–8, 2021 and was reopened on July 7, 2021 to receive additional
evidence and testimony.
62. The hearings officer took evidence and testimony on geology and
subsurface characteristics at Red Hill; groundwater at and near Red Hill; past
releases of fuel; soil vapor and groundwater monitoring; tank construction and
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compliance with the Hawaii Administrative Rules; tank inspection, repair, and
maintenance; leak detection methods and requirements; corrosion extent, detection,
and repair; extent of the monitoring well network; seismicity; and a release that
occurred on May 6, 2021.
63. On September 20, 2021, the hearings officer issued a Proposed
Decision and Order, Findings of Fact, and Conclusions of Law (“Permit Proposed
Order”) recommending that DOH issue a permit authorizing the Navy to operate
and maintain Red Hill for a period of five years subject to certain conditions.
64. In November 2021, EHA, Sierra Club, and BWS moved to reopen the
hearing, which the Navy opposed.
65. The hearings officer has withdrawn the Permit Proposed Order “for
possible revision following the receipt of further evidence and information” in the
Permit Proceeding. That proceeding is ongoing.
IV. May 6, 2021 Release
66. On or about May 6, 2021, operator error during a fuel transfer caused
a transient pressure surge in a pipe near some of the Red Hill USTs.
67. The pressure surge caused a rupture in the pipe, from which fuel was
released into the lower access tunnel area beneath the USTs.
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68. The Navy promptly notified DOH about the spill. The Navy
estimated that approximately 1,600 gallons of fuel had been released, but believed
that most had been recovered.
69. The May 6, 2021 release was from a ruptured pipe, and not from the
USTs.
V. November 20, 2021 Release
70. On or about November 20, 2021, a drain line for the fire suppression
system at Red Hill was damaged at a point in the concrete tunnel approximately a
quarter-mile downslope from the Red Hill USTs, releasing a fuel-water mixture
into the tunnel between the tanks and Pearl Harbor.
71. Approximately 14,000 gallons were contained and recovered.
72. The fire suppression system is designed to collect dispersed agent and
other liquids from firefighting incidents in retention sumps. The contents are then
transferred via sump pump to a fire suppression system retention tank. The
collection lines are ordinarily empty and are not connected to the fuel pipelines or
USTs.
73. There is no evidence that the November 20, 2021 release was due to a
flaw, hole, or other problem in a UST.
74. The Navy believes the May 6 and November 20, 2021 releases are
likely related, but its investigation is not yet final.
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VI. The Navy’s Response to the November 20, 2021 Release
75. On November 23, 2021, the Commander, U.S. Pacific Fleet, convened
an investigation into the May 6 and November 20, 2021 incidents.
76. The Navy owns and operates a water system that pumps water from
underground aquifers to provide drinking water to the military community and
facilities associated with Joint Base Pearl Harbor-Hickam (“JBPHH”), including
Public-Private Venture Housing (“PPV”).
77. Three wells supply the Navy’s drinking water system: the Red Hill
Shaft, Navy Aiea-Halawa Shaft, and Waiawa Shaft. The November 20, 2021
release migrated to the Red Hill Shaft and contaminated the Red Hill Shaft.
78. The Navy shut down Red Hill Shaft on November 28, 2021, after
receiving complaints from residents of PPV Housing and JBPHH about the odor of
the drinking water supplied by the Navy’s drinking water system.
79. The Navy immediately began sampling water within its water
distribution system, and has continued to do so. The Navy promptly conveys
sampling results to DOH as they are received.
80. Red Hill Shaft remains shut down.
81. By November 30, 2021, the Navy had begun providing bottled and
bulk replacement water supplies to all affected residents and users served by its
water system, and alternative facilities for bathing and laundry.
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82. On December 3, 2021, the Commander, U.S. Pacific Fleet, amended
the command investigation convened on November 23, 2021, directing that the
investigating officer investigate whether the events of May 6 and November 20,
2021 contributed to or caused the contamination of the Red Hill Shaft.
83. Out of an abundance of caution, the Navy shut down Aiea-Halawa
Shaft on December 3, 2021.
84. On December 7, 2021, the Secretary of the Navy directed the Chief of
Naval Operations to continue isolating the Red Hill and Aiea-Halawa Shafts until
the water distribution main and all affected homes and buildings have been flushed
and can be supplied with potable water that meets EPA drinking water standards.
85. To treat the water at Red Hill Shaft, the Navy purchased two Granular
Activated Carbon water filtration units (“GACs”) capable of filtering up to 10
million gallons per day, a system that can be replaced by a permanent water
treatment system in the future.
86. The Navy is supplying water from the unaffected Waiawa Shaft to
affected housing.
87. The Navy utilized 25 smaller GACs to flush and treat the water
distribution system. Initial flushing of all distribution lines has been completed.
Testing of the distribution lines is ongoing.
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88. The Navy is also flushing and testing all affected homes and
buildings.
89. The Navy voluntarily suspended operations at the Red Hill USTs until
the investigation into the cause of the contamination is complete.
VII. The Emergency Order
90. On December 6, 2021, DOH issued an Emergency Order pursuant to
HRS § 342L-9.
91. The Emergency Order states that it is “based upon recent impacts on
the [Navy’s] drinking water system incident to the operation of the Red Hill Bulk
Fuel Storage Facility.”
92. The Emergency Order describes the “Situation” presented as: the
complaints from water users of a gas or fuel odor from their drinking water, the
Navy’s acknowledgment that Red Hill Shaft is the source of the fuel
contamination, and the absence of on-site remedies available to treat the water
prior to distribution.
93. As “additional justifications,” the Emergency Order cites purported
failures on the part of the Navy to submit deliverables under the AOC that satisfy
DOH, uncertainty as to the amount of fuel released in the May 6, 2021 incident,
the possibility that the November 20, 2021 incident released fuel into the
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environment, and a lack of infrastructure and procedures to rapidly identify and
contain subterranean fuel spills.
94. The Emergency Order does not state that the Red Hill Facility itself is
an imminent peril requiring immediate action. Nor does the Emergency Order
state that the “configuration and operation of the Facility” is the basis for the order.
The Emergency Order does not specify that “the configuration and operation of the
Facility” itself authorizes action under HRS § 342L-9. However, DOH’s later
order repeatedly refers to the configuration and operation of the Facility as an
imminent peril requiring immediate action.
95. The Emergency Order has five Directives.
96. Directive One requires the Navy to “[i]mmediately suspend operations
including, but not limited to, fuel transfers at the Bulk Fuel Storage Tanks at the
Facility. [The Navy] shall, however, maintain environmental controls, release
detection and release response protocols, and compliance with applicable
regulations.”
97. Directive Two requires the Navy to “[t]ake immediate steps to install
a drinking water treatment system or systems at Red Hill Shaft to ensure
distribution of drinking water conforms to the standards prescribed by the Safe
Drinking Water Act and applicable regulations and minimize movement of the
contaminant plume(s). The treatment system(s) shall be reviewed and approved by
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the Department prior to installation and shall be installed as expeditiously as
practicable.”
98. Directive Three directs the Navy to, “[w]ithin 30 days of receipt of
this [Emergency Order], submit a workplan and implementation schedule, prepared
by a qualified independent third party approved by the Department, to assess the
Facility operations and system integrity to safely defuel the Bulk Fuel Storage
Tanks. Upon the Department’s approval of the assessment, workplan and
implementation schedule, conduct necessary repairs and make necessary changes
in operations to address any deficiencies identified in the assessment and
workplan. Corrective actions shall be performed as expeditiously as possible.”
99. Directive Four requires the Navy to, “[w]ithin 30 days of completion
of required corrective actions under Item 3, defuel the Bulk Fuel Storage Tanks at
the Facility. Any refueling shall be subject to a determination by the Department
that it is protective of human health and the environment.”
100. Directive Five directs the Navy to perform an overall long-term risk
assessment and implementation of conditions to mitigate long-term risk,
specifically, “[w]ithin 30 days of receipt of this [Emergency Order] submit a
workplan and implementation schedule, prepared by a qualified independent third
party approved by the Department, to assess operations and system integrity of the
Facility to determine design and operational deficiencies that may impact the
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environment and develop recommendations for corrective action. Submit the
assessment, proposed work and recommendations for corrective action to the
Department with an implementation schedule. Upon the Department’s approval,
perform work and implement corrective actions. Corrective actions shall be
performed as expeditiously as possible.”
101. The Emergency Order does not state how the Directives relate to, and
may be necessary with respect to, any findings made by DOH.
102. Emergency Order Directive 1 does not provide how or when it will
terminate.
103. Emergency Order Directive 4 states that “[a]ny refueling shall be
subject to a determination by [DOH] that it is protective of human health and the
environment.” Directive 4 does not state how or when such a determination would
be made.
104. DOH has not utilized the dispute resolution requirements of the AOC
to address any alleged long-term risk associated with the configuration and overall
operation of the Facility.
VIII. Contested Case Hearing on the Emergency Order and Final Order
105. Pursuant to HRS § 26-38, DOH Director Char delegated to Deputy
Director Tsuji “all powers, rights, and duties necessary to make a final
determination in this matter, in accordance with section 11-1-42(c), HAR.”
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106. A hearings officer presided over a virtual hearing on December 20
and 21, 2021.
107. Sierra Club and BWS intervened in the hearing.
108. The hearings officer scheduled one day for hearing testimony; Navy
and DOH were each allowed three hours to conduct direct and cross-examination
of witnesses. Sierra Club and BWS were each allowed two hours for the same.
109. At the hearing, the Navy introduced four witnesses and 65 exhibits,
DOH introduced four witnesses and 51 exhibits, BWS introduced two witnesses
and 342 exhibits (amounting to over 42,000 pages), and Sierra Club introduced six
witnesses and 40 exhibits (amounting to over 4,000 pages).
110. The Navy filed 223 proposed findings of fact (“FOFs”) and 22
proposed conclusions of law (“COLs”). DOH, Sierra Club, and BWS jointly filed
97 proposed FOFs and 46 proposed COLs.
111. The hearings officer issued a Proposed Order on December 27, 2021.
Although the Emergency Order states that it is based on “recent impacts to the
[Navy’s] drinking water system,” the Proposed Order concludes that the
Emergency Order “alleges two separate, but related ‘perils.’” The Proposed Order
states that the “first alleged ‘peril’ concerns the November 2021 Release, the
contamination of the Red Hill Shaft, the harm caused to Hawaii residents, and the
response thereto.” The Proposed Order states that the “second alleged ‘peril’ is the
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Red Hill Facility itself, based upon the history of releases, the lack of ‘necessary
environmental protection to rapidly identify and remediate fuel leaks,’ and the
assertion that the Navy ‘has not demonstrated that immediate and appropriate
response actions are available, and therefore cannot ensure that immediate and
appropriate response actions will be available should another release occur[] in the
future.’” The Proposed Order adopts all five Directives of the Emergency Order
but does not explain how or why each Directive may be necessary based on the
November 2021 release or based on the Red Hill Facility as currently configured
and operated.
112. The Proposed Order contains 106 FOFs and 38 COLs.
113. FOFs 33, 42, 60, and 61 of the Proposed Order are the only findings
that include citations to the record.
114. The Final Order did not rule on any of the FOFs proposed by any
party.
115. The Final Order adopted the Proposed Order in all respects except for
a typographical error in FOF 101.
116. The Final Order does not take into account efforts the Navy has taken
or will take in response to the November 2021 release pursuant to orders from the
Secretary of the Navy. With respect to future actions of the Navy, the Final Order
states that the commitments of the Secretary of the Navy “can be rescinded, in
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whole or in part . . . at any time.” The Final Order does not appear to take into
account any changed conditions.
FIRST CLAIM FOR RELIEF
The Evidence Presented Does Not Support a Finding that the Configuration
and Operation of the Red Hill Facility Itself Poses an Imminent Peril
Requiring Immediate Action Under HRS § 342L-9
117. The United States realleges and incorporates, as though fully set forth
herein, each and every allegation in paragraphs 1 through 116 of this Complaint.
118. The Final Order is based on a finding that there are two alleged
imminent perils requiring immediate action, the first being the November 2021
release and the second being the configuration and operation of Red Hill itself.
119. Contrary to the second finding, the configuration and operation of the
Red Hill Facility itself is not an imminent peril that requires immediate action
under HRS § 342L-9.
120. The Final Order Directives, insofar as they are based on an imminent
peril requiring immediate action that is caused by or that will be caused by the
configuration and operation of the Red Hill Facility itself, are in excess of DOH’s
statutory authority under HRS § 342L-9; clearly erroneous; arbitrary, capricious,
and an abuse of discretion; clearly unwarranted; or otherwise not in accordance
with the law.
26
SECOND CLAIM FOR RELIEF
DOH Has Not Shown That the Final Order Directives Are Necessary to
Address the Configuration and Operation of the Red Hill Facility Itself, And
Hence Could Be Authorized Under HRS § 342L-9
122. DOH has not shown that the Final Order Directives may be necessary
to address the second alleged imminent peril requiring immediate action, i.e., the
configuration and operation of the Red Hill Facility itself.
123. The Final Order Directives, to the extent they are based on the
configuration and operation of Red Hill itself are thus in excess of DOH’s statutory
authority under HRS § 342L-9; clearly erroneous; arbitrary, capricious, and an
abuse of discretion; clearly unwarranted; or otherwise not in accordance with the
law.
THIRD CLAIM FOR RELIEF
DOH Has Not Shown that Final Order Directives 3, 4, and 5 Are
Authorized Under HRS § 342L-9 to Address the November 2021 Release
125. DOH has not shown that Final Order Directives 3, 4, and 5 may be
necessary under HRS § 342L-9 to address an imminent peril requiring immediate
action that was caused by or will be caused by the November 2021 release.
27
126. Final Order Directives 3, 4, and 5 are in excess of DOH’s statutory
authority under HRS § 342L-9; clearly erroneous; arbitrary, capricious, and an
abuse of discretion; clearly unwarranted; or otherwise not in accordance with the
law.
FOURTH CLAIM FOR RELIEF
Directives 1 and 4 Are Not Authorized Under HRS § 342L-9 Because They Do
Not Provide Sufficient Standards for Their Termination
128. Final Order Directive 1, requiring the suspension of operations, does
not provide sufficient standards for its termination under HRS § 342L-9.
129. Final Order Directive 4, requiring the defueling of the USTs, does not
provide sufficient standards for its termination under HRS § 342L-9.
130. Final Order Directives 1 and 4 do not consider actions that the Navy
has taken and will take to address the perils alleged to require immediate action in
the Final Order. Final Order Directives 1 and 4 do not provide for relief from or
termination of the Directives based on any changed conditions or based on the
Navy’s completion of the corrective actions alone. Final Order Directives 1 and 4
are thus not sufficiently-tailored actions under HRS § 342L-9.
131. DOH’s failure to provide sufficient standards for the termination of
Directives 1 and 4 is in excess of DOH’s statutory authority under HRS § 342L-9
28
and, on the record presented in the contested case hearing, is clearly erroneous;
arbitrary, capricious, and an abuse of discretion; clearly unwarranted; or otherwise
not in accordance with HRS § 342L-9.
FIFTH CLAIM FOR RELIEF
DOH Violated HRS § 91-9

133. DOH did not provide adequate notice under HRS § 91-9(b) that the
Directives in the Emergency Order were authorized based on an imminent peril
requiring immediate action that was caused by or that will be caused by the current
134. DOH did not provide adequate notice under HRS § 91-9(a) and (b)
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.
135. The contested hearing did not afford the Navy sufficient opportunity
to present evidence and argument under HRS § 91-9(d) on whether an imminent
peril requiring immediate action exists or will be caused by the current
29
136. DOH’s failure to provide adequate notice and sufficient opportunity to
present evidence and argument on whether an imminent peril requiring immediate
action exists or will be caused by the current configuration and operation of the
Red Hill Facility itself was in violation of HRS § 91-9; in excess of DOH’s
statutory authority; an unlawful procedure; clearly erroneous; arbitrary, capricious,
with the law.
SIXTH CLAIM FOR RELIEF
DOH Violated HRS § 91-12

138. The Final Order failed to provide citation to any evidence from the
contested hearing record for all FOFs other than the FOFs in paragraphs 33, 42, 60,
and 61.
139. The Final Order failed to rule on any of the proposed FOFs submitted
in the contested hearing by any of the parties to the hearing.
140. DOH’s failure to provide citations to evidence from the contested
hearing record for its FOFs and failure to rule on any of the proposed FOFs was in
violation of HRS § 91-12; in excess of DOH’s statutory authority; an unlawful
30
procedure; clearly erroneous; arbitrary, capricious, and an abuse of discretion;
clearly unwarranted; or otherwise not in accordance with the law.
PRAYER FOR RELIEF
WHEREFORE, the United States respectfully requests that this Court grant
the following relief:
(1) Declare that DOH exceeded its authority under HRS § 342L-9;
(2) Declare that the Final Order Directives are not authorized under
HRS § 342L-9 to the extent they are founded on a finding that the configuration
and operation of the Red Hill Facility itself constitutes an imminent peril requiring
immediate action; and, with respect to said peril, that the Directives are clearly
erroneous; arbitrary, capricious, and an abuse of discretion; clearly unwarranted; or
otherwise not in accordance with the law;
(3) Declare that Final Order Directives 3, 4, and 5 are not authorized
under HRS § 342L-9 to the extent they are founded on a finding of imminent peril
requiring action resulting from the November 2021 Release; and, with respect to
said peril, that Directives 3, 4, and 5 are clearly erroneous; arbitrary, capricious,
with the law;
(4) Declare that Final Order Directives 1 and 4 are not authorized under
HRS § 342L-9 because they lack sufficient standards for their termination;
31
(5) Declare that DOH violated HRS §§ 91-9 and 91-12;
(6) Enter preliminary injunctive relief, as may be sought by the United
States, including staying part or all of the Final Order;
(7) Vacate those portions of the Final Order that are based on a finding
that the configuration and operation of the Red Hill Facility itself is an imminent
peril requiring immediate action under HRS § 342L-9;
(8) Remand the Final Order to DOH for actions consistent with the
Court’s order; and
(9) Grant such other relief as may be just and proper.
//
//
//
//
//
//
//
//
//
//
//
32
Dated: February 2, 2022 Respectfully submitted,
TODD KIM
Assistant Attorney General
Environment & Natural Resources Division
U.S. Department of Justice
/s/ Lucy E. Brown

LUCY E. BROWN (HI Bar #10946)
LESLIE M. HILL (DC Bar #476008)
DAVID D. MITCHELL (IL Bar #6302250)
ELLIOT ENOKI (HI Bar #1528)

Executive Assistant U.S. Attorney
District of Hawaii
Acting under Authority Conferred by
28 U.S.C. § 515
DANA A. BARBATA (HI Bar #9112)
Assistant U.S. Attorney
Attorneys for Plaintiff
33
Case 1:22-cv-00051 Document 1-1 Filed 02/02/22 Page 1 of 4 PageID #: 34
Exhibit A
Exhibit A
Exhibit B
Exhibit B
Exhibit C
Filed 12/27/2021, 12:10 p.m.
DEPARTMENT OF HEALTH
STATE OF HAWAII
DEPARTMENT OF HEALTH, STATE OF Docket No. 21-UST-EA-02

HAWAI‘I,
Complainant,
HEARINGS OFFICER’S PROPOSED
vs. DECISION AND ORDER, FINDINGS OF
FACT, AND CONCLUSIONS OF LAW
UNITED STATES DEPARTMENT OF
THE NAVY,
Respondent,
vs.
SIERRA CLUB and HONOLULU BOARD

OF WATER SUPPLY
Intervenors.
Exhibit C
HEARINGS OFFICER’S PROPOSED DECISION AND ORDER,

FINDINGS OF FACT, AND CONCLUSIONS OF LAW
The Hearings Officer held an evidentiary hearing on December 20 and 21, 2021.
The parties are Complainant Department of Health, State of Hawaiʻi (“DOH”);
Respondent United States Department of the Navy (“Navy”); Intervenor Honolulu Board
of Water Supply (“BWS”); and Intervenor Sierra Club.
The record of the evidentiary hearing consists of the following, including any
other evidence admitted into the record not expressly mentioned here:
Testimony
The testimony of all witnesses on December 20, 2021
Declarations of Testimonial Witnesses
· Written Testimony of Erwin M. Kawata (filed Dec. 18, 2021)
· Updated Written Testimony of David M. Norfleet (filed Dec. 19, 2021)
· Declaration of Kevin T. Aubart (filed Dec. 18, 2021)
· Declaration of Laurence Thomas Ramsey (filed Dec. 18, 2021)
· Declaration of Kimberly Charters (filed Dec. 18, 2021)
· Declaration of Melinda Healani Sonoda-Pale (filed Dec. 18, 2021)
· Declaration of Carly Lintner (filed Dec. 18, 2021)
· Declaration of Wayne Tanaka (filed Dec. 18, 2021)
· Declaration of James B. Balocki (filed Dec. 18, 2021; also Ex. N-1)
· Declaration of James G. Meyer (filed Dec. 18, 2021; also Ex. N-2)
· Declaration of Sherri R. Eng (filed Dec. 18, 2021; also Ex. N-3)
· Declaration of Captain Michael B. McGinnis (filed Dec. 18, 2021; also Ex. N-
4)
Exhibits
The following exhibits were uploaded into the joint Sharepoint exhibit database
[“DOH v. Navy (21-UST-EA-02) (Exhibits for Evidentiary Hearing)”] accessible to all of
the parties, as reflected in the following exhibit lists:
· Department of Health Exhibit List (filed Dec. 18, 2021)
· Intervenor Board of Water Supply’s Updated Exhibit List (filed Dec. 21, 2021)
· Sierra Club’s Amended Exhibit List (filed Dec. 21, 2021)
· Navy’s Witness List and [Amended] Exhibits (found in the Exhibit database,
subfolder “Navy Exhibits,” document Case No. 21-UST-EA-02 Navy Witness
Exhibit List_Update 2 12.21.2021.pdf)1
The parties submitted their own proposed findings of fact and conclusions of law.
Pursuant to instructions of the Hearings Officer on December 17 and 21, 2021, on the
record, the Hearings Officer advised the parties that due to the size of the evidentiary
record and the emergency nature of the proceedings, he would be entitled to rely upon
the parties to direct the Hearings Officer to the relevant portions of the evidentiary
record in support of their arguments. See HRS § 91-10 (“[N]o sanction shall be
imposed or rule or order be issued except upon consideration of the whole record or
such portions thereof as may be cited by any party . . . .” (emphasis added)).
The Hearings Officer considered the testimony of witnesses, reviewed
declarations and exhibits admitted into evidence, and heard the statements and
arguments of counsel. The Hearings Officer is fully advised. Pursuant to HAR § 11-1-
1The declarations of the Navy’s counsel in this proceeding Marnie E. Riddle are
exhibits N-5, N-6, and N-7.
2
42(a)(1), the Hearings Officer makes the following Proposed Decision and Order,
Findings of Fact, and Conclusions of Law.
***
I. FINDINGS OF FACT
To the extent that these findings of fact contain conclusions of law, they shall be
considered as such.
A. Nature of the Findings of Fact
1. To the extent that there is conflicting evidence or testimony in the record,
the weight of the evidence supports the following findings of fact.
2. To the extent that evidence or testimony was impeached on cross-
examination, the weight of the evidence supports the following findings of fact.
3. The findings herein are brief, definite, and pertinent findings. They are not
elaborate findings nor negative findings in every instance. The findings do not state
every option considered, but that does not mean that such options were not considered.
See Jarrell v. Jarrell, No. 29124, 2013 WL 216302, at *5 (App. Jan. 18, 2013) (SDO).
4. The following facts have been established by a preponderance of the
evidence.
B. The Red Hill Bulk Fuel Storage Facility
5. The Red Hill Bulk Fuel Storage Facility (“Red Hill Facility”) is a field-
constructed underground storage tank (“UST”) system on the Island of Oʻahu in the
State of Hawaiʻi, approximately 2.5 miles northeast of Pearl Harbor.
6. The Navy is the owner and operator of the Red Hill Facility.
3
7. The Red Hill Facility was constructed by the United States during World
War II and began operation in 1943.
8. The Red Hill Facility occupies approximately 144 acres of land along the
western edge of the Ko‘olau Range situated on a topographic ridge that divides the
Hālawa Valley and Moanalua Valley. It consists of twenty field-constructed USTs as
well as pipelines and other infrastructure.
9. The twenty USTs were constructed during the early 1940s by mining into
the ridge to create cavities for concrete tanks lined with ¼ inch steel plates welded
together. The USTs are constructed of concrete lined with steel, with the floor
constructed out of ½ inch steel and walls constructed of ¼ inch steel. The lower dome
is surrounded by reinforced concrete that has a minimum thickness of 4 feet, except for
the 20-foot diameter flat bottom plate at the center of the lower dome which sits on top
of a plug of concrete approximately 20 feet thick. The reinforced concrete surrounding
the cylindrical barrel of the UST is an estimated minimum of 2.5 to 4 feet of concrete.
The entire UST system is surrounded by basalt bedrock.
10. Each UST is approximately 250 feet tall, 100 feet in diameter, and
provides a fuel storage capacity of up to 12.5 to 12.7 million gallons of jet or marine fuel.
11. In addition to the twenty USTs, the Red Hill Facility includes seven miles
of tunnels with 29 miles of pipelines, ventilation systems with air intakes and exhaust
portals, a pumphouse, control room, surge tanks, slop oil and oil recovery facilities, and
a pier that can fuel ships.
///
///
4
C. How the Red Hill Facility is Used
12. The Red Hill USTs store marine diesel (F-76) and two types of jet fuel (JP-
5 and F-24).
13. The Red Hill Facility provides fuel to domestic military services that
operate in the Pacific Area of Responsibility, including the Navy, U.S. Air Force, U.S.
Marine Corps, U.S. Army, Hawaiian National Guard, and the U.S. Coast Guard, and is
also available to support civilian authorities in the event of a local emergency or natural
disaster.
14. The USTs are connected to three pipelines that run for approximately 2.5
miles through an underground access tunnel to the underground pumphouse at Pearl
Harbor. The fuel can be moved from the Red Hill Facility USTs to Pearl Harbor via
gravity.
15. Two of the USTs (Tanks 1 and 19) are permanently empty and are no
longer in use. Another four USTs are currently empty as part of the Navy’s ongoing
clean, inspect, and repair program. The Navy generally stores fuel in 14 or 15 USTs at
the Red Hill Facility, with a total capacity of over 187 million gallons of fuel.
D. The Red Hill Facility is Situated Directly Above the Southern Oʻahu
Basal Aquifer
16. The Red Hill Facility sits directly above O‘ahu’s federally designated sole-
source groundwater aquifer, the Southern O‘ahu Basal Aquifer.
17. The bottoms of the USTs are located approximately 100 feet above the
groundwater aquifer used as a drinking source by the BWS and the Navy.
18. The Southern Oʻahu Basal Aquifer is irreplaceable.
19. This aquifer is the principal source of drinking water for the island.
5
20. Seventy-seven percent of the total island-wide water supply comes from
the Southern O‘ahu Basal Aquifer.
21. The BWS draws on the same aquifer that underlies the Red Hill Facility to
supply drinking water to residents from Moanalua to Hawai‘i Kai.
22. There is no existing alternative drinking water source, or combination of
sources, which provides fifty percent or more of the drinking water to the designated
area, nor is there any demonstrated available alternative future source capable of
supplying the area’s drinking water needs.
23. The environment that underlies the Red Hill Facility is sensitive.
24. The aquifer is fresh and vulnerable to contamination.
E. The History of Recorded Releases from the Red Hill Facility

Predating the November 2021 Release
25. There have been numerous reported releases from the Red Hill Facility
over the past 80 years or so: at least 76 incidents involving nearly 200,000 gallons of
fuel. More likely than not, these figures understate the true number of releases or the
total volume of fuel actually released.
26. Fuel releases have been a constant threat since the Red Hill Facility
became operational during the 1940s and have continued to occur.
27. In January 2014, the Navy reported a release into the environment of
approximately 27,000 gallons of fuel from Tank 5 (“January 2014 Release”). This
release occurred during the filling of Tank 5. Although the release occurred between
December 12, 2013 and January 6, 2014, the Navy did not verbally report the release to
the DOH until January 13, 2014.
6
28. On May 6, 2021, there was a pressure surge event resulting in the release
of an initially reported approximately 1,600 gallons of jet fuel from supply piping in the
lower access tunnel tanks during the refilling of Tank 20 on May 6, 2021 (“May 2021
Release”). The 1,600 gallons of fuel reported released was likely lower than what was
actually released.
29. On July 16, 2021, there was a fuel release from a pipeline at Kilo Pier of
approximately 150 gallons (“Kilo Pier Release”).
30. Historical releases have adversely impacted the environment as is
evidenced by detection of fuel and fuel constituents in the Navy’s drinking water supply,
the groundwater under the Red Hill Facility, and the soil vapor monitoring probes in the
rocks beneath the facility.
F. The Administrative Order of Consent
31. In September 2015, the Navy and the Defense Logistics Agency—the
owner of the fuel stored at Red Hill—entered into an administrative order of consent
(“AOC”) with the Environmental Protection Agency and the DOH requiring the Navy to
conduct certain investigations and other work to address fuel releases from Red Hill.
The AOC includes a Statement of Work (“SOW”) that outlines various actions that are
“necessary to address potential impacts to human health, safety and the environment …
due to historical, recent and potential future releases at the [Red Hill] Facility.”
32. The AOC SOW consists of eight sections including: Section 1: Overall
Program Responsibility; Section 2: Tank Inspection, Repair, Maintenance (TIRM);
Section 3: Tank Upgrade Alternatives; Section 4: Release Detection/Tank Tightness
Testing; Section 5: Corrosion and Metal Fatigue Practices; Section 6: Investigation and
7
Remediation of Releases; Section 7: Groundwater Protection and Evaluation; and
Section 8: Risk/Vulnerability Assessment.
33. Paragraph 18 (“Reservation of Rights”) of the AOC states, in pertinent
part:
Notwithstanding any other provisions of this AOC, the Regulatory

Agencies retain their authority to take, direct, or order any and all actions
necessary to protect public health, any source of drinking water or the
environment or to prevent, abate, or minimize an actual or threatened
release of hazardous substances, pollutants, or contaminants, or
hazardous or solid waste or constituents of such wastes, on, at, or from
the Facility, including but not limited to the right to bring enforcement
actions under . . . HRS chapters 340E, 342D and 342L; and any other
applicable statutes or regulations. However, unless required on an
emergency basis, no such action shall be taken in relation to any activity
within the scope of this AOC unless a Party has first made good faith
efforts to address the issue through a modification of this AOC and, if
necessary, through the Dispute Resolution process set forth in Section 14.
Ex. D05, § 18(a) (emphasis added).
G. The November 2021 Release Caused a Humanitarian and

Environmental Disaster
34. On November 20, 2021, a release of fuel occurred at the Red Hill Facility
(“November 2021 Release”). The Navy reported a release and recovery of
approximately 14,000 gallons of a mixture of fuel and water from the fire-suppression
system at the Red Hill Facility from the Navy’s fire suppression system on November
20, 2021.
35. At the evidentiary hearing, the Navy presented a “working theory” for what
happened. The Navy’s theory was that the May 2021 Release was the source of the
fuel, or that the two releases are related, and that fuel made its way into the fire-
suppression system. The Navy did not state with any exacting reliability a full picture of
what happened, or why and how the release occurred.
8
36. The November 2021 Release caused the Red Hill Shaft, a drinking-water
source for the U.S. military, to be seriously contaminated with fuel.
37. Approximately one week following the November 2021 Release, fuel
flowed from the Red Hill Shaft to occupied structures, including the homes of residents
in military housing, and ultimately through their taps.
38. Men, women, children, and pets drank and used the contaminated water.
39. In sum, the November 2021 Release caused a humanitarian and
environmental emergency and disaster.
40. The testimony of Kimberly Charters and Carly Lintner and the video
evidence of other victims relating their experiences were highly credible and perhaps
the most important to the overall factual balancing in a finding that the November 2021
Release caused a humanitarian and environmental emergency and disaster.
41. Everything about this evidence spoke three words: disaster, crisis,
emergency. This evidence, in conjunction with the other record evidence, establishes
that:
a. The water contamination was widespread and not unique to any one
person.
b. The water coming from their taps into their homes was not just mildly
contaminated but poisoned with fuel.
c. The Navy did not provide sufficient warning; people discovered for
themselves that the water was poisoned based upon strong odors of
fuel emanating from the water, or when they or their pets got sick.
d. The interior of peoples’ homes smelled like “gas stations.”
9
e. Men, women, and children became seriously physically ill.
f. Pets became ill, requiring medical attention, and at least one was
potentially killed.
g. People have suffered and continue to suffer mental and emotional
distress and anguish.
h. The lack of water impacted and continues to have impacts upon
virtually every important aspect of their lives.
i. Families were temporarily relocated.
j. Their lives have been and continue to be totally upended.
k. The November 2021 Release affected many thousands of Oʻahu
residents in these or similar ways.
42. The testimony of the Navy’s witnesses Captain James G. Meyer and
Captain Michael B. McGinnis is also important. Both witnesses testified that the
November 2021 Release and the water contamination caused a crisis that is still being
addressed.
43. Additionally, the Navy does not yet know the full extent of the health
effects of the contamination. People whose homes received contaminated water from
the Navy’s water system had suffered stomachaches, vomiting, nausea, diarrhea, skin
rashes, sore throats, burning eyes, headaches, and difficulty breathing, including
illnesses requiring emergency medical attention. People are still suffering mental and
emotional effects from their experiences.
44. The Navy shut down its Red Hill Shaft and the ‘Aiea-Hālawa Shaft in
response to the drinking water contamination.
10
45. After the November 2021 Release, BWS shut off three of its well stations
that are in close proximity to the Red Hill Facility.
46. The Secretary of the Navy ordered the cessation of all operations at the
Red Hill USTs while it conducts an investigation.
47. The amount of diesel (total petroleum hydrocarbons, or TPH-d) present in
samples taken by DOH on December 5, 2021 from the Navy’s Red Hill Shaft drinking
water well indicates that the Navy’s drinking water supply was contaminated with TPH-d
levels as high as 140,000 µg/L, significantly higher than DOH environmental action level
(“EAL”). TPH-g levels (regarding other fuel) were as high as 20,000 µg/L. The TPH-d
level is 350 times the DOH’s EAL for drinking water toxicity, which is 400 µg/L. The
DOH’s EAL for drinking water toxicity is 300 µg/L for TPH-g.
48. In December 2021, diesel fuel levels in samples from the Navy’s water
distribution system at its ‘Aiea Hālawa Shaft were more than double the state-approved
levels for drinking water. This indicates that the environmental damage extends beyond
the Red Hill Shaft.
49. The Navy does not have a permanent water treatment system to address
either recent fuel releases or future fuel releases.
50. The water is not yet clean.
51. The environment has not yet been remediated.
52. The humanitarian response is ongoing.
53. The environmental response is ongoing.
54. The Navy’s investigation is ongoing.
11
55. The Navy does not know precisely what happened. The Navy does not
know why or how the November 2021 Release happened at this time.
56. The Navy does not know exactly how the environment has been damaged
or the full extent of the damage.
57. The Navy does not know the exact long-term consequences of the
November 2021 Release to humans or the environment.
58. The Navy still does not know what it intends to do to address any root
causes of the November 2021 Release.
H. The Red Hill Facility, as Currently Configured and Operated, Poses

an Imminent Threat to Human Health and Safety or the Environment
59. Continued operation of the Red Hill Facility, as it is currently configured
and operated, poses an imminent threat to human health and safety or the environment.
60. The most weighty, important evidence underpinning this finding are (1) the
expert report and testimony of David M. Norfleet, and (2) the facts relating to the history
of releases from the Red Hill Facility (and especially the facts surrounding the
November 2021 Release and the aftermath) notwithstanding the Navy’s best efforts.
61. First, Mr. Norfleet’s expert report and testimony were perhaps the most
important pieces of evidence in the whole evidentiary hearing. Mr. Norfleet was
credible. His ultimate opinions survive scrutiny and are weighty enough to establish the
facts by a preponderance of the evidence, in conjunction with the other evidence
presented.
62. The facts established by his report and testimony and borne out by the
other evidence presented are:
a. More releases of fuel from the Red Hill facility are basically inevitable.
12
b. The Red Hill USTs have a history of leaking and will continue to leak.
c. The probability of an acute leak of 1,000 to 30,000 gallons of fuel
each year is at least 27%, which is likely an understated percentage
d. The probability of a sudden release of more than 120,000 gallons of
fuel in the next 100 years is at least 34%, which is likely an
understated percentage.
e. The expected volume of chronic, undetected fuel releases from the
Red Hill Facility is at least 5,803 gallons per year.
f. The Navy cannot prevent future releases at the Red Hill Facility.
g. Breaches will continue to occur at the Red Hill Facility.
h. The Red Hill Facility is nearing the end of its life and has reached the
“end-of-life” phase.
63. Looking a different way at the probabilities of a 1,000 to 30,000 gallon
release, the probability of a release over the next five years is approximately 80%, with
a release of that size occurring over the next ten years approximately 96%, and a
release of that size over the next twenty years 99.8%.
64. Among the additional facts established by Mr. Norfleet and the record
evidence are:
a. The 76 reported fuel releases are more likely than not only a portion
of the true number of releases.
b. The size and scope of the Red Hill USTs are unprecedented in the oil
and gas industry.
13
c. The Red Hill USTs have a serious corrosion problem that the Navy
will be unable to address over time.
d. Leaked fuel can reach the environment at large and cause harm.
e. Some USTs have gone too long without inspection.
f. The combination of the manual nature of inspections, the
dependence on the ability/competence of individual inspectors, the
presence of an internal coating on the steel liner, the difficult working
conditions, and the sheer size of the facility are detrimental to
adequate, consistent, and reliable inspections and inspection results,
which are required to prevent releases from the USTs.
65. Second, the history of releases, notwithstanding the Navy’s best efforts to
prevent them, is damning.
66. The November 2021 Release is in a way unique like all releases are in
their way unique. But taking a larger view, the November 2021 Release is simply
another datapoint along the Red Hill Facility’s track record establishing that the
problems with the Red Hill Facility, as it is currently situated, are beyond the Navy’s
ability to control.
67. In just this year, there were at least two releases before the November
2021 Release.
68. The Navy is not reliable with respect to monitoring whether leaks are
occurring, determining how much fuel is released into the environment when leaks
occur, and ascertaining threats.
14
69. The Navy initially estimated the May 2021 Release from the transfer of
fuel between Red Hill tanks at approximately 1,000 gallons. Four months later, the
Navy revised its estimate upward to 1,618 gallons and claimed that it successfully
recovered all but 38 gallons of fuel. The Navy now hypothesizes—but does not know—
that the May 2021 Release may be the source of the November 2021 Release of jet
fuel.
70. The fact that the Navy theorizes that the May 2021 Release and the
November 2021 Release are connected evidences a lack of understanding of, and
control over, the Red Hill Facility.
71. The Navy obviously does not want the Red Hill Facility to release fuel, and
the Navy is trying to prevent releases. But despite everything the Navy is attempting to
do, it is not enough: 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 realistically prevent future releases. It is not just one problem but a combination
of many.
72. The Navy’s inability to prevent the previous releases, or the November
2021 Release, from happening, and inability to sufficiently respond to the November
2021 Release to prevent harm to Oʻahu residents—despite all of its efforts to prevent
and detect releases—are weighty considerations.
73. In sum, the situation is beyond the Navy’s ability to adequately mitigate
the threats posed by the continued operation of the Red Hill Facility, with USTs filled
with fuel, at this time.
15
74. The threat of future releases poses an imminent peril to human health and
safety or the environment at large.
75. Not only does the year-to-year probability of a significant release make a
future release basically inevitable, the contamination of the Red Hill Shaft and its effect
on Oʻahu residents in just the past month is incontrovertible evidence of the peril.
76. It could be much worse. An unprecedently large UST system 100 feet
containing a massive volume of fuel located directly above a major aquifer is
dangerous.
77. There are pathways for fuel to travel from the Red Hill Facility to the
environment at large.
78. Fuel released from the Red Hill Facility presents a risk to the groundwater
underlying the Red Hill Facility and the sole source aquifer generally.
79. Sampling from under and around the Red Hill Facility has demonstrated
the existence of petroleum contamination in the groundwater.
80. The area beneath the Red Hill Facility does not absorb fuel well enough to
mitigate the peril to human health and safety or the environment at large.
81. The layers of protection intended to prevent releases from entering the
environment are unreliable.
82. Test results indicate that, prior to the November 2021 Release, petroleum
constituents have been detected in Red Hill Shaft as high as 490 µg/L in 2020 and in
Red Hill Shaft as high as 540 µg/L in August 2021 and in Red Hill Monitoring Wells 16
and 19 as high as 380 µg/L in fall 2021.
16
83. As long as fuel remains in the Red Hill USTs, both acute and chronic fuel
releases are likely to continue.
84. The presence of fuel in the Red Hill USTs is an ongoing threat to human
health and safety or the environment, given these problems.
85. Both parties have raised other points regarding what the Navy is or is not
doing, sampling, monitoring, modeling, testing, deliverables under the AOC, who is at
fault for delays, and the like. Specific findings on these points are unnecessary in this
emergency proceeding where the weight of the evidence underlying the above findings
are dispositive.
I. The Emergency Order and Response
86. On December 3, 2021, the Commander of the U.S. Pacific Fleet
authorized an investigation into the cause of the May 2021 and November 2021
Releases, or other similar events, to be completed by January 14, 2022.
87. The investigation could be changed or modified at any time by a
sufficiently high-ranking Naval authority, without the DOH or anyone else being able to
prevent it.
88. The January 14, 2022 deadline could be extended.
89. On December 6, 2021, the DOH issued the Emergency Order to the Navy.
The Emergency Order requires the Navy to (1) “[i]mmediately suspend operations
including, but not limited to, fuel transfers at the Bulk Fuel Storage Tanks at the Facility.
Respondent shall, however, maintain environmental controls, release detection and
release response protocols, and compliance with applicable regulations,” (2) “[t]ake
immediate steps to install a drinking water treatment system or systems at Red Hill
17
Shaft to ensure distribution of drinking water conforms to the standards prescribed by
the Safe Drinking Water Act and applicable regulations and minimize movement of the
contaminant plume(s). The treatment system(s) shall be reviewed and approved by the
Department prior to installation and shall be installed as expeditiously as practicable,”
(3) “[w]ithin 30 days of receipt of this EO, submit a workplan and implementation
schedule, prepared by a qualified independent third party approved by the Department,
to assess the Facility operations and system integrity to safely defuel the Bulk Fuel
Storage Tank. Upon the Department’s approval of the assessment, workplan and
implementation schedule, conduct necessary repairs and make necessary changes in
operations to address any deficiencies identified in the assessment and workplan.
Corrective actions shall be performed as expeditiously as possible,” (4) “[w]ithin 30 days
of completion of required corrective actions under Item 3, defuel the Bulk Fuel Storage
Tanks at the Facility. Any refueling shall be subject to a determination by the
Department that it is protective of human health and the environment,” and (5) “[w]ithin
30 days of the receipt of the EO submit a workplan and implementation schedule,
prepared by a qualified independent third party approved by the Department, to assess
operations and system integrity of the Facility to determine design and operational
deficiencies that may impact the environment and develop recommendations for
corrective action. Submit the assessment, proposed work and recommendations for
corrective action to the Department with an implementation schedule. Upon the
Department’s approval, perform work and implement corrective actions. Corrective
actions shall be performed as expeditiously as possible.”
18
90. By letter dated December 7, 2021, the Navy informed the DOH of its intent
to contest the Emergency Order.
91. Also on December 7, 2021, the Secretary of the Navy issued a
Memorandum for the Chief of Naval Operations, titled “Immediate Actions: Red Hill
Underground Storage Tanks.”
92. The Secretary ordered:
a. The cessation of all operations at the Red Hill USTs until the
investigation into the cause of the incident is complete.
b. The continuing isolation of the Red Hill and Halawa wells which the
Navy operates, until the water distribution main and all affected
homes and buildings have been flushed and can be supplied with
potable water that meets EPS drinking water standards.
c. Evaluate acquisition of a drinking water treatment system or systems
at the Red Hill Shaft.
d. Within 30 calendar days, the Navy will consult with a qualified
independent third party to assess operations and system integrity of
the Red Hill Facility to determine design and operational deficiencies
that may impact the environment and to develop a work plan and
implementation schedule to conduct necessary repairs and make
necessary changes in the operations to address any deficiencies
identified in the assessment. Corrective actions shall be performed
as expeditiously as possible.
19
e. Following the independent third-party assessment, the Navy will
approve a final work plan and implementation schedule and will
expeditiously perform work and make necessary changes in
operation.
93. The December 7, 2021 Memorandum was partially modeled upon, and
drafted as an indirect response to, the Emergency Order.
94. The December 7, 2021 Memorandum tacitly recognizes that aspects of
the five directives in the Emergency Order are necessary and appropriate in the
circumstances.
95. The December 7, 2021 Memorandum can be rescinded, in whole or in
part, by the Secretary of the Navy at any time.
96. There is no guarantee that the Navy will begin operating the Red Hill
Facility again only after the perils to human health and safety or the environment
associated with the Red Hill Facility are all remediated.
97. There is no guarantee that the Navy will not act in the perceived best
interest of the Navy, notwithstanding the threats to the health and safety of the people of
Hawaiʻi and to the environment.
98. Under the December 7, 2021 Memorandum, the Navy ultimately decides
what should and will be done.
J. The Five Directives of the Emergency Order
99. Item 1 of the Emergency Order requires the Navy to “[i]mmediately
suspend operations including, but not limited to, fuel transfers at the Bulk Fuel Storage
Tanks at the Facility. Respondent shall, however, maintain environmental controls,
20
release detection and release response protocols, and compliance with applicable
regulations.” These actions are necessary and designed to reduce or stop the imminent
peril caused by the November 2021 Release and continuing operations at the Red Hill
Facility as currently configured and operated.
100. Item 2 of the Emergency Order requires the Navy to “[t]ake immediate
steps to install a drinking water treatment system or systems at Red Hill Shaft to ensure
distribution of drinking water conforms to the standards prescribed by the Safe Drinking
Water Act and applicable regulations and minimize movement of the contaminant
plume(s). The treatment system(s) shall be reviewed and approved by the Department
prior to installation and shall be installed as expeditiously as practicable.” These actions
are necessary and designed to reduce or stop the imminent peril caused by the
November 20, 2021 Release and continuing operations at the Red Hill Facility as
currently configured and operated.
101. Item 3 of the Emergency Order requires the Navy to “[w]ithin 30 days of
the receipt of the EO submit a workplan and implementation schedule, prepared by a
qualified independent third party approved by the Department, to assess operations and
system integrity of the Facility to determine design and operational deficiencies that may
impact the environment and develop recommendations for corrective action to the
perform work and implement correct actions. Corrective actions shall be performed as
expeditiously as possible.” These actions are necessary and designed to reduce or
stop the imminent peril caused by continuing operations at the Red Hill Facility as
21
102. Item 4 of the Emergency Order requires the Navy to “[w]ithin 30 days of
completion of required corrective actions under Item 3, defuel the Bulk Fuel Storage
Tanks at the Facility. Any refueling shall be subject to a determination by the
Department that it is protective of human health and the environment.” These actions
are necessary and designed to reduce or stop the imminent peril caused by continuing
operations at the Red Hill Facility as currently configured and operated.
103. Item 5 of the Emergency Order requires the Navy to, “[w]ithin 30 days of
receipt of this EO submit a workplan and implementation schedule, prepared by a
qualified independent third party approved by the Department, to assess operations and
system integrity of the Facility to determine design and operational deficiencies that may
impact the environment and develop recommendations for corrective action. Submit the
assessment, proposed work and recommendations for corrective action to the
perform work and implement corrective actions. Corrective actions shall be performed
as expeditiously as possible.” These actions are necessary and designed to reduce or
stop the imminent peril caused by continuing operations at the Red Hill Facility as
K. Ultimate Factual Conclusions
104. The weight of the evidence establishes that the November 2021 Release
was a humanitarian and environmental disaster. This disaster was caused by a release
of fuel from the Red Hill Facility. Citizens and residents of the State of Hawai‘i drank
and used water out of their taps that was contaminated with fuel, which caused
substantial physical injury to people and their pets and intolerably upended their lives. It
22
caused environmental harm to a source of drinking water in the State of Hawai‘i. The
emergency is not over. The disaster caused by the November 2021 Release has not
been resolved. The State of Hawai‘i, DOH, BWS, the individuals affected, and the
public at large have a strong interest in ensuring that the harm caused to people and the
environment is resolved in accordance with the directives of the DOH in the Emergency
Order, which were legally authorized and appropriate. That the November 2021
Release and aftermath constitute an imminent peril to human health and safety or the
environment is a fact established by a preponderance of the evidence.
105. The weight of the evidence establishes that the Red Hill Facility, as
currently situated, is a metaphorical ticking timebomb located 100 feet above the most
important aquifer on Hawaii’s most populous island. The Red Hill Facility has already
damaged human health and the environment and, as currently situated, inevitably
threatens to do so into the future. The Navy lacks the ability to control the substantial
risks associated with the Red Hill Facility, as currently situated.
106. The State of Hawai‘i, DOH, BWS, and the public at large all have a strong
interest in ensuring that the threats posed by the Red Hill Facility do not come to pass.
They have a strong interest in being protected in accordance with the directives of the
DOH in the Emergency Order, which were legally authorized and appropriate. That the
Red Hill Facility, as currently constituted, poses an imminent peril to human health and
safety or the environment is a fact established by a preponderance of the evidence.
II. CONCLUSIONS OF LAW
To the extent that these conclusions of law contain findings of fact, they shall be
considered as such.
23
A. The Emergency Order’s Two Related “Perils”
1. The Emergency Order was issued pursuant to HRS § 342L-9, which
invokes the State and DOH’s “emergency powers” to prevent or respond to an
“imminent peril to human health and safety or the environment.”
2. The Emergency Order alleges two separate, but related, “perils.”
3. The first alleged “peril” concerns a specific event: the November 2021
Release, the contamination of the Red Hill Shaft, the harm caused to Hawai‘i residents,
and the response thereto.
4. The second alleged “peril” is the Red Hill Facility itself, based upon the
history of releases, the lack of “necessary environmental protection to rapidly identify
and remediate fuel leaks,” and the assertion that the Navy “has not demonstrated that
immediate and appropriate response actions are available, and therefore cannot ensure
that immediate and appropriate response actions will be available should another
release occur[] in the future.”
B. Interpretation of HRS § 342L-9
5. This resolution of this proceeding requires the application of the facts to
HRS § 342L-9. This, in turn, requires a legal interpretation of that statute.
6. When interpreting statutes, Hawaiʻi law requires us to consider five well-
established principles:
First, the fundamental starting point for statutory interpretation is the

language of the statute itself. Second, where the statutory language is
plain and unambiguous, our sole duty is to give effect to its plain and
obvious meaning. Third, implicit in the task of statutory construction is our
foremost obligation to ascertain and give effect to the intention of the
legislature, which is to be obtained primarily from the language contained
in the statute itself. Fourth, when there is doubt, doubleness of meaning,
or indistinctiveness or uncertainty of an expression used in a statute, an
24
ambiguity exists. And fifth, in construing an ambiguous statute, the

meaning of the ambiguous words may be sought by examining the
context, with which the ambiguous words, phrases, and sentences may be
compared, in order to ascertain their true meaning.
Haw. Gov’t Emps. Ass’n, AFSCME Local 152, AFL-CIO v. Lingle, 124 Hawaiʻi 197, 202,
239 P.3d 1, 6 (2010).
7. HRS § 342L-9(a) states:
(a) Notwithstanding any other law to the contrary, if the governor or the
director determines that an imminent peril to human health and safety or
the environment is or will be caused by:
(1) A release;
(2) Any action taken in response to a release from an underground

storage tank or tank system; or
(3) The installation or operation of an underground storage tank or

tank system;
that requires immediate action, the governor or the director, without a

public hearing, may order any person causing or contributing to the peril to
immediately reduce or stop the release or activity, and may take any and
all other actions as may be necessary. The order shall fix a place and
time, not later than twenty-four hours thereafter, for a hearing to be held
by the director.
1. Defined Terms
8. The “director” is the director of health. HRS § 342L-1. Kathleen S. Ho,
who executed the Emergency Order, is the Deputy Director for Environmental Health
and by definition acts as the deputy for the director of health.
9. “Underground storage tank” means in pertinent part “any one or
combination of tanks (including pipes connected thereto) used to contain an
accumulation of regulated substances, and the volume of which (including the volume of
the underground pipes connected thereto) is ten per cent or more beneath the surface
25
of the ground. HRS § 342L-1. Each of the twenty Red Hill Bulk Fuel Storage Tanks is
an “underground storage tank.”
10. “Underground storage tank system” means “an underground storage tank,
connected underground piping, underground ancillary equipment, and containment
system, if any.” HRS § 342L-1. The Red Hill Facility constitutes an underground
storage tank system.
11. A “release” “includes, but is not limited to, any spilling, leaking, emitting,
discharging, escaping, leaching, or disposing from an underground storage tank or tank
system.” HRS § 342L-1.
12. The Red Hill Facility has a long history of “releases.” Among them, the
January 2014 Release, the May 2021 Release, the Kilo Pier Release, and the
November 2021 Release constitute “releases.”
13. “Person” includes “the United States government, federal agency, . . . or
any other legal entity.” The Navy is a “person” for purposes of HRS § 342L-9.
2. Interpretation of “Imminent Peril”
14. “Imminent peril” is undefined by statute. No Hawaiʻi case has interpreted
the meaning of this phrase within the context of the statute.
15. The plain meaning of the word “peril” is straightforward. It implies risk, not
inevitability—the “exposure to injury, loss, or destruction; grave risk; jeopardy; danger.”
See https://www.dictionary.com/browse/peril.
16. “Imminent,” implies a degree of closeness in time—“likely to occur at any
moment.” See https://www.dictionary.com/browse/imminent.
26
17. Under HRS § 342L-9, a release does not need to be imminent. It is the
peril—the risk—that must be imminent.
18. A release that has already occurred that has damaged human health or
the environment and that is not resolved to DOH’s satisfaction constitutes “an imminent
peril to human health and safety or the environment.” Here, the environment has
already been damaged by the November 2021 Release and remains damaged.
19. With respect to USTs, frequently—as evidenced by the Red Hill Facility’s
substantial history of releases—the DOH is forced to react to an event that has already
occurred. The purpose of HRS § 342L-9, on the other hand, is plainly to provide the
DOH with the ability to prevent harm to human health and safety or the environment
caused by USTs before the harm occurs based upon an assessment of risk. This
assessment of risk does not require the finding of a hole in a tank or that a hole is
moments away from developing. It necessarily involves consideration of matters the
likes of which were presented at the evidentiary hearing: a history of releases, scientific
analysis, expert opinions, consideration of probabilities of future releases, the probability
that future releases would cause harm to human health and safety or the environment,
and the continuation of releases even with protocols in place where prior attempts to
take less drastic measures have failed. The analysis will almost inevitably require
prediction and forecasting to have any ability to prevent actual harm to the environment
before a release occurs.
20. This interpretation is consistent with the fact that the “imminent peril” need
not arise from a release, but may also arise from the “operation of an underground
storage tank or tank system[.]” HRS § 342L-9(a)(3). In other words, the DOH does not
27
need to show that a release is right upon us before invoking emergency powers.
Instead, it is the peril—not that harm—that must be imminent.
21. This interpretation is consistent with the Legislature’s interpretation of
HRS § 342L-9. The Legislature has stated that this provision is intended to address,
among other things, any improper management of solid and hazardous waste because
the impact on our ground and surface water poses a serious threat to public health and
safety.” 1995 Hawaiʻi Senate Journal, Standing Committee Report No. 1193, at 1276
(emphasis added). As the Legislature has read the statute, “improper management” is
sufficient to trigger HRS § 342L-9 as an “imminent peril to human health and safety or
the environment.”
22. This interpretation is consistent with underlying principles of Hawaiʻi
environmental law, with which HRS § 342L-9 is fully in accord, and the Legislature
acted in accordance with these principles. See, e.g., Haw. Const. art. XI, §§ 1, 7, 9; In
re Waiāhole Ditch Combined Contested Case Hr’g, 94 Hawai‘i 97, 9 P.3d 409 (2000).
23. The Navy argues for an interpretation of “imminent peril” that would
require that the threatened harm become actual harm in a very short period of time, like
a hurricane about to make landfall tomorrow. This interpretation is inconsistent with the
purpose of HRS § 342L-9 and the legislative intent because the purpose of HRS
§ 342L-9 is to address perils in a proactive fashion—rationally, not instinctively—to
safeguard “human health and safety or the environment.”
///
///
///
28
C. The DOH Was Authorized to Issue the Emergency Order to the Navy
1. The Navy Does Not Possess Sovereign Immunity
24. Federal law requires all federal agencies, including the Navy, to comply
with all Hawai‘i “requirements, both substantive and procedural …, respecting
underground storage tanks in the same manner, and to the same extent, as any person
is subject to such requirements,” including, “but … not limited to, all administrative
orders and all civil and administrative penalties and fines, regardless of whether such
penalties or fines are punitive or coercive in nature or are imposed for isolated,
intermittent, or continuing violations.” 42 U.S.C. § 6991f(a).
25. The United States’s express waiver of sovereign immunity subjects the
Navy to the same substantive and procedural requirements as any person under state
laws regulating USTs. See id. (“The United States hereby expressly waives any
immunity otherwise applicable to the United States with respect to any such substantive
or procedural requirement (including, but not limited to, any injunctive relief,
administrative order or civil or administrative penalty or fine referred to in the preceding
sentence, or reasonable service charge).”).
26. The Navy and the Red Hill Facility are subject to federal law, as well as
Hawai‘i law, statutes, and regulations.
2. The AOC Does Not Apply to the Emergency Order
27. The AOC does not preclude the DOH from exercising its “emergency
powers” under H.R.S. § 342L-9.
28. Paragraph 18 (“Reservation of Rights”) of the AOC states, in pertinent
part:
29
Notwithstanding any other provisions of this AOC, the Regulatory

Agencies retain their authority to take, direct, or order any and all actions
necessary to protect public health, any source of drinking water or the
environment or to prevent, abate, or minimize an actual or threatened
release of hazardous substances, pollutants, or contaminants, or
hazardous or solid waste or constituents of such wastes, on, at, or from
the Facility, including but not limited to the right to bring enforcement
actions under . . . HRS chapters 340E, 342D and 342L; and any other
applicable statutes or regulations. However, unless required on an
emergency basis, no such action shall be taken in relation to any activity
within the scope of this AOC unless a Party has first made good faith
efforts to address the issue through a modification of this AOC and, if
necessary, through the Dispute Resolution process set forth in Section 14.
Ex. D05, § 18(a) (emphasis added).
29. The right to take action on an emergency basis under HRS § 342L-9 is
expressly reserved from the scope of the AOC, without qualification.
30. The entire purpose of HRS § 342L-9 is to address emergencies—
imminent perils to human health and safety or the environment.
31. Emergencies are what the Emergency Order seeks to address, and
emergencies are what this Decision and Order addresses.
D. The November 2021 Release and the Response Thereto Constitutes

an “Imminent Peril to Human Health and Safety or the Environment”
32. The November 2021 Release caused an imminent peril to human health
and safety or the environment that still exists and is ongoing. An emergency does exist.
33. The five directives in the Emergency Order are appropriate, authorized,
and necessary to mitigate the peril.
34. The Navy’s investigation, the December 8, 2021 Memorandum, and any
subsequent remedial measures do not change the analysis. It is the DOH’s job to
ensure that the November 2021 Release is properly remediated and that the Red Hill
USTs are only allowed to operate again once safe. That was the entire point of the
30
Emergency Order. The fact that the Navy is voluntarily doing some—but not all—of
what the Emergency Order requires, except almost entirely upon the Navy’s own terms,
does not make the Emergency Order unnecessary.
E. The Red Hill Facility, as Currently Constituted, Poses an “Imminent

Peril to Human Health and Safety or the Environment”
35. The Red Hill Facility, as currently configured and operated, constitutes an
imminent peril to human health and safety or the environment. An emergency does
exist.
36. The five directives in the Emergency Order are appropriate, authorized,
and necessary to mitigate the peril.
F. The Functional Utility of the Red Hill Facility to the Navy is

Unimportant for Purposes of This Proceeding
37. The importance of the Red Hill Facility as fuel storage for the U.S. military
has been considered, but it carries no substantial weight in this proceeding.
38. Nothing in HRS § 342L-9 provides or suggests that the decision-maker in
the administrative hearing provided should balance the utility of the USTs with the
imminent perils to human health or the environment caused by those same USTs.
Instead, HRS § 342-9 focuses entirely on protecting people and the environment from
harm. In other words, when there is an emergency situation, the Legislature has made
the policy decision to protect human lives and the environment over any functional utility
of USTs.
///
///
///
31
JS 44 (Rev. 12/12) CIVIL COVER SHEET
The JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except as
provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the
purpose of initiating the civil docket sheet. (SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM.)
I. (a) PLAINTIFFS DEFENDANTS

UNITED STATES OF AMERICA DEPARTMENT OF HEALTH, STATE OF HAWAII, ET AL. (see
attachment for all defendants and defendant-intervenors)
(b) County of Residence of First Listed Plaintiff County of Residence of First Listed Defendant Honolulu
(EXCEPT IN U.S. PLAINTIFF CASES) (IN U.S. PLAINTIFF CASES ONLY)
NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF
THE TRACT OF LAND INVOLVED.
(c) Attorneys (Firm Name, Address, and Telephone Number) Attorneys (If Known)
(see attachment) (see attachment)
II. BASIS OF JURISDICTION (Place an “X” in One Box Only) III. CITIZENSHIP OF PRINCIPAL PARTIES (Place an “X” in One Box for Plaintiff
(For Diversity Cases Only) and One Box for Defendant)
’ 1 U.S. Government ’ 3 Federal Question PTF DEF PTF DEF
Plaintiff (U.S. Government Not a Party) Citizen of This State ’ 1 ’ 1 Incorporated or Principal Place ’ 4 ’ 4
of Business In This State
’ 2 U.S. Government ’ 4 Diversity Citizen of Another State ’ 2 ’ 2 Incorporated and Principal Place ’ 5 ’ 5
Defendant (Indicate Citizenship of Parties in Item III) of Business In Another State
Citizen or Subject of a ’ 3 ’ 3 Foreign Nation ’ 6 ’ 6

Foreign Country
IV. NATURE OF SUIT (Place an “X” in One Box Only)
CONTRACT TORTS FORFEITURE/PENALTY BANKRUPTCY OTHER STATUTES
’ 110 Insurance PERSONAL INJURY PERSONAL INJURY ’ 625 Drug Related Seizure ’ 422 Appeal 28 USC 158 ’ 375 False Claims Act
’ 120 Marine ’ 310 Airplane ’ 365 Personal Injury - of Property 21 USC 881 ’ 423 Withdrawal ’ 400 State Reapportionment
’ 130 Miller Act ’ 315 Airplane Product Product Liability ’ 690 Other 28 USC 157 ’ 410 Antitrust
’ 140 Negotiable Instrument Liability ’ 367 Health Care/ ’ 430 Banks and Banking
’ 150 Recovery of Overpayment ’ 320 Assault, Libel & Pharmaceutical PROPERTY RIGHTS ’ 450 Commerce
& Enforcement of Judgment Slander Personal Injury ’ 820 Copyrights ’ 460 Deportation
’ 151 Medicare Act ’ 330 Federal Employers’ Product Liability ’ 830 Patent ’ 470 Racketeer Influenced and
’ 152 Recovery of Defaulted Liability ’ 368 Asbestos Personal ’ 840 Trademark Corrupt Organizations
Student Loans ’ 340 Marine Injury Product ’ 480 Consumer Credit
(Excludes Veterans) ’ 345 Marine Product Liability LABOR SOCIAL SECURITY ’ 490 Cable/Sat TV
’ 153 Recovery of Overpayment Liability PERSONAL PROPERTY ’ 710 Fair Labor Standards ’ 861 HIA (1395ff) ’ 850 Securities/Commodities/
of Veteran’s Benefits ’ 350 Motor Vehicle ’ 370 Other Fraud Act ’ 862 Black Lung (923) Exchange
’ 160 Stockholders’ Suits ’ 355 Motor Vehicle ’ 371 Truth in Lending ’ 720 Labor/Management ’ 863 DIWC/DIWW (405(g)) ’ 890 Other Statutory Actions
’ 190 Other Contract Product Liability ’ 380 Other Personal Relations ’ 864 SSID Title XVI ’ 891 Agricultural Acts
’ 195 Contract Product Liability ’ 360 Other Personal Property Damage ’ 740 Railway Labor Act ’ 865 RSI (405(g)) ’ 893 Environmental Matters
’ 196 Franchise Injury ’ 385 Property Damage ’ 751 Family and Medical ’ 895 Freedom of Information
’ 362 Personal Injury - Product Liability Leave Act Act
Medical Malpractice ’ 790 Other Labor Litigation ’ 896 Arbitration
REAL PROPERTY CIVIL RIGHTS PRISONER PETITIONS ’ 791 Employee Retirement FEDERAL TAX SUITS ’ 899 Administrative Procedure
’ 210 Land Condemnation ’ 440 Other Civil Rights Habeas Corpus: Income Security Act ’ 870 Taxes (U.S. Plaintiff Act/Review or Appeal of
’ 220 Foreclosure ’ 441 Voting ’ 463 Alien Detainee or Defendant) Agency Decision
’ 230 Rent Lease & Ejectment ’ 442 Employment ’ 510 Motions to Vacate ’ 871 IRS—Third Party ’ 950 Constitutionality of
’ 240 Torts to Land ’ 443 Housing/ Sentence 26 USC 7609 State Statutes
’ 245 Tort Product Liability Accommodations ’ 530 General
’ 290 All Other Real Property ’ 445 Amer. w/Disabilities - ’ 535 Death Penalty IMMIGRATION
Employment Other: ’ 462 Naturalization Application
’ 446 Amer. w/Disabilities - ’ 540 Mandamus & Other ’ 465 Other Immigration
Other ’ 550 Civil Rights Actions
’ 448 Education ’ 555 Prison Condition
’ 560 Civil Detainee -
Conditions of
Confinement
V. ORIGIN (Place an “X” in One Box Only)
’ 1 Original ’ 2 Removed from ’ 3 Remanded from ’ 4 Reinstated or ’ 5 Transferred from ’ 6 Multidistrict
Proceeding State Court Appellate Court Reopened Another District Litigation
(specify)
Cite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity):
Hawaii Revised Statutes §§ 91-14, 342L-13; 28 U.S.C. §§ 2201, 2202; 28 U.S.C. § 1345
VI. CAUSE OF ACTION Brief description of cause:
Judicial review of contested case hearings; appeal from DOH order; declaratory relief; United States as plaintiff
VII. REQUESTED IN ’ CHECK IF THIS IS A CLASS ACTION DEMAND $ CHECK YES only if demanded in complaint:
COMPLAINT: UNDER RULE 23, F.R.Cv.P. JURY DEMAND: ’ Yes ’ No
VIII. RELATED CASE(S)
(See instructions):
IF ANY JUDGE DOCKET NUMBER
DATE SIGNATURE OF ATTORNEY OF RECORD
02/02/2022 /s/ Lucy E. Brown
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RECEIPT # AMOUNT APPLYING IFP JUDGE MAG. JUDGE
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Case 1:22-cv-00051 Document 1-4 Filed 02/02/22 Page 2 of 5
JS 44 Reverse (Rev. 12/12) PageID #: 79
INSTRUCTIONS FOR ATTORNEYS COMPLETING CIVIL COVER SHEET FORM JS 44

Authority For Civil Cover Sheet
The JS 44 civil cover sheet and the information contained herein neither replaces nor supplements the filings and service of pleading or other papers as
required by law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is
required for the use of the Clerk of Court for the purpose of initiating the civil docket sheet. Consequently, a civil cover sheet is submitted to the Clerk of
Court for each civil complaint filed. The attorney filing a case should complete the form as follows:
I.(a) Plaintiffs-Defendants. Enter names (last, first, middle initial) of plaintiff and defendant. If the plaintiff or defendant is a government agency, use
only the full name or standard abbreviations. If the plaintiff or defendant is an official within a government agency, identify first the agency and
then the official, giving both name and title.
(b) County of Residence. For each civil case filed, except U.S. plaintiff cases, enter the name of the county where the first listed plaintiff resides at the
time of filing. In U.S. plaintiff cases, enter the name of the county in which the first listed defendant resides at the time of filing. (NOTE: In land
condemnation cases, the county of residence of the "defendant" is the location of the tract of land involved.)
(c) Attorneys. Enter the firm name, address, telephone number, and attorney of record. If there are several attorneys, list them on an attachment, noting
in this section "(see attachment)".
II. Jurisdiction. The basis of jurisdiction is set forth under Rule 8(a), F.R.Cv.P., which requires that jurisdictions be shown in pleadings. Place an "X"
in one of the boxes. If there is more than one basis of jurisdiction, precedence is given in the order shown below.
United States plaintiff. (1) Jurisdiction based on 28 U.S.C. 1345 and 1348. Suits by agencies and officers of the United States are included here.
United States defendant. (2) When the plaintiff is suing the United States, its officers or agencies, place an "X" in this box.
Federal question. (3) This refers to suits under 28 U.S.C. 1331, where jurisdiction arises under the Constitution of the United States, an amendment
to the Constitution, an act of Congress or a treaty of the United States. In cases where the U.S. is a party, the U.S. plaintiff or defendant code takes
precedence, and box 1 or 2 should be marked.
Diversity of citizenship. (4) This refers to suits under 28 U.S.C. 1332, where parties are citizens of different states. When Box 4 is checked, the
citizenship of the different parties must be checked. (See Section III below; NOTE: federal question actions take precedence over diversity
cases.)
III. Residence (citizenship) of Principal Parties. This section of the JS 44 is to be completed if diversity of citizenship was indicated above. Mark this
section for each principal party.
IV. Nature of Suit. Place an "X" in the appropriate box. If the nature of suit cannot be determined, be sure the cause of action, in Section VI below, is
sufficient to enable the deputy clerk or the statistical clerk(s) in the Administrative Office to determine the nature of suit. If the cause fits more than
one nature of suit, select the most definitive.
V. Origin. Place an "X" in one of the six boxes.

Original Proceedings. (1) Cases which originate in the United States district courts.
Removed from State Court. (2) Proceedings initiated in state courts may be removed to the district courts under Title 28 U.S.C., Section 1441.
When the petition for removal is granted, check this box.
Remanded from Appellate Court. (3) Check this box for cases remanded to the district court for further action. Use the date of remand as the filing
date.
Reinstated or Reopened. (4) Check this box for cases reinstated or reopened in the district court. Use the reopening date as the filing date.
Transferred from Another District. (5) For cases transferred under Title 28 U.S.C. Section 1404(a). Do not use this for within district transfers or
multidistrict litigation transfers.
Multidistrict Litigation. (6) Check this box when a multidistrict case is transferred into the district under authority of Title 28 U.S.C. Section 1407.
When this box is checked, do not check (5) above.
VI. Cause of Action. Report the civil statute directly related to the cause of action and give a brief description of the cause. Do not cite jurisdictional
statutes unless diversity. Example: U.S. Civil Statute: 47 USC 553 Brief Description: Unauthorized reception of cable service
VII. Requested in Complaint. Class Action. Place an "X" in this box if you are filing a class action under Rule 23, F.R.Cv.P.
Demand. In this space enter the actual dollar amount being demanded or indicate other demand, such as a preliminary injunction.
Jury Demand. Check the appropriate box to indicate whether or not a jury is being demanded.
VIII. Related Cases. This section of the JS 44 is used to reference related pending cases, if any. If there are related pending cases, insert the docket
numbers and the corresponding judge names for such cases.
Date and Attorney Signature. Date and sign the civil cover sheet.
CIVIL COVER SHEET ATTACHMENT

I.(a). DEFENDANTS
DEPARTMENT OF HEALTH, STATE OF HAWAII;
ELIZABETH A. CHAR, in her official capacity as Department of Health Director;
MARIAN E. TSUJI, in her official capacity as Department of Health Deputy
Director
I.(a). DEFENDANT-INTERVENORS
SIERRA CLUB;
BOARD OF WATER SUPPLY, CITY AND COUNTY OF HONOLULU
I.(c). ATTORNEYS FOR PLAINTIFF

Todd Kim, Assistant Attorney General
U.S. Department of Justice,
Environment and Natural Resources Division
Lucy E. Brown, Attorney
Leslie M. Hill, Attorney
David D. Mitchell, Attorney
U.S. Department of Justice,
Environment & Natural Resources Division,
P.O. Box 7611
Washington, D.C. 20044-7611
Telephone: (202) 598-1868 (Brown)
Email: lucy.e.brown@usdoj.gov; leslie.hill@usdoj.gov; david.mitchell@usdoj.gov
1
Elliot Enoki, Executive Assistant U.S. Attorney

District of Hawaii
Acting under Authority Conferred by 28 U.S.C. § 515
Dana A. Barbata, Assistant U.S. Attorney
PJKK Federal Bldg., Room 6-100
300 Ala Moana Boulevard
Honolulu, HI 96850
Telephone: (808) 541-2850
Email: dbarbata@usa.doj.gov
I.(c). ATTORNEYS FOR DEFENDANTS

Holly M. Shikada, Attorney General of Hawai‘i
Diane K. Taira, Attorney
Wade H. Hargrove III, Attorney
Department of the Attorney General,
State of Hawaii
465 South King Street, Room 200
Honolulu, HI 96813
Telephone: (808) 587-3050
Email: wade.h.hargrove@hawaii.gov
I.(c). ATTORNEYS FOR DEFENDANT-INTERVENOR SIERRA CLUB

David L. Henkin, Attorney
Isaac H. Moriwake, Attorney
Kylie W. Wager Cruz, Attorney
Earthjustice
2
850 Richards Street, Suite 400

Honolulu, HI 96813
Telephone: (808) 599-2436
Email: dhenkin@earthjustice.org; imoriwake@earthjustice.org;
kwager@earthjustice.org
I.(c). ATTORNEYS FOR DEFENDANT-INTERVENOR BOARD OF

WATER SUPPLY, CITY AND COUNTY OF HONOLULU
Dana M.O. Viola, Corporation Counsel
Jeff A. Lau, Deputy Corporation Counsel
City and County of Honolulu
530 South King Street, Room 110
Honolulu, HI 96813
Telephone: (808) 768-5148
Email: jlau3@honolulu.gov
Ella Foley Gannon, Attorney (associated as counsel)

David K. Brown, Attorney (associated as counsel)
Morgan, Lewis & Bockius LLP
One Market, Spear Street Tower
San Francisco, CA 94105
Telephone: (415) 442-1000
Email: ella.gannon@morganlewis.com; david.brown@morganlewis.com

U.S. V Dept .Of Health Hawaii

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Case 1:22-cv-00051 Document 1 Filed 02/02/22 Page 1 of 33 PageID #: 1

ELLIOT ENOKI (HI Bar #1528)

Attorneys for Plaintiff

UNITED STATES DISTRICT COURT

Plaintiff, COMPLAINT FOR

SIERRA CLUB; BOARD OF WATER SUPPLY,

Complaint pursuant to 28 U.S.C. §§ 2201–02 and Hawaii Revised Statutes

the Hawaii Department of Health, Docket No. 21-UST-EA-02, on January 3, 2022

throughout the Indo-Pacific Command area of responsibility. The Navy hopes to

See HRS § 91-14(b).

of Health (“DOH”), the United States Environmental Protection Agency (“EPA”),

has been carried out in accordance with an administrative agreement between

the underground storage tanks at Red Hill.

3. On November 20, 2021, the Navy recovered approximately 14,000

5. On December 6, 2021, DOH issued an ex parte Emergency Order

Emergency Order in a Final Order.

6. These Orders were premised on HRS § 342L-9, which authorizes

taken in response to a release from an underground storage tank or tank system; or

(3) The installation or operation of an underground storage tank or tank system . . .

contamination of the Red Hill Shaft was an emergency and is committed to

8. Whether the entire facility is built and operated in a manner that

proceedings following DOH’s proposal to issue a permit for the underground

9. Accordingly, Plaintiff, United States of America, files this Complaint

manner identified herein.

10. Plaintiff in this action is the United States of America.

capacity as Director of DOH (“Director”), and Marian E. Tsuji, in her official

capacity as Deputy Director of DOH (“Deputy Director Tsuji”).

12. Intervenor-Defendants in this action are Sierra Club and Board of

Water Supply, City and County of Honolulu (“BWS”).

13. Sierra Club and BWS intervened in the administrative proceedings

JURISDICTION & VENUE

14. This Court has jurisdiction pursuant to 28 U.S.C. § 1345 (United

15. Venue is proper in the District of Hawaii pursuant to

28 U.S.C. § 1391(b)(1)–(2) because DOH resides in this judicial district, a

EXHAUSTION OF ADMINISTRATIVE REMEDIES

16. A hearing on the Emergency Order was required by law.

17. DOH appointed an administrative hearings officer to preside over a

virtual hearing on the Emergency Order.

18. A hearing was held on December 20 and 21, 2021.

respect to the Navy’s operation of the Facility.

20. The Navy participated in the hearing.

of Fact, Conclusions of Law, and Decision and Order (“Proposed Order”),

adopting all five Directives of the Emergency Order. See Exhibit C.

22. Pursuant to Hawaii Administrative Rules (“HAR”) § 11-1-42(b), the

Navy timely filed exceptions to the Proposed Order.

adopting the Proposed Order in all substantive respects.

24. The United States has exhausted all administrative remedies.

Congress established that “civil actions, suits or proceedings” can be brought in

this Court does not exercise jurisdiction over this action.

I. The Resource Conservation and Recovery Act

27. The Resource Conservation and Recovery Act (“RCRA”),

42 U.S.C. §§ 6901–6992k, sets forth a comprehensive regulatory framework for

28. RCRA Subchapter IX, 42 U.S.C. §§ 6991–6991m, governs the

regulation of underground storage tanks (“USTs”).

29. Departments, agencies, and instrumentalities of the federal

procedural . . . , respecting underground storage tanks in the same manner, and to

the same extent, as any person is subject to such requirements[.]” 42 U.S.C.

punitive or coercive in nature or are imposed for isolated, intermittent, or

continuing violations.” Id.

II. Hawaii’s UST Program

within Hawaii’s jurisdiction. Hawaii; Final Approval of State Underground

UST regulations. Hawaii: Proposed Authorization of Underground Storage Tank

Program Revisions, 85 Fed. Reg. 49,611 (Aug. 14, 2020).