Attorneys with the U.S. Department of Justice filed an appeal in federal court today contesting the state’s emergency order instructing the Navy to drain its massive, underground Red Hill fuel tanks.

The Dec. 6 order was issued after a fuel spill at the facility contaminated the drinking water of approximately 93,000 residents in neighborhoods in and around Joint Base Pearl Harbor-Hickam, sickening water users and displacing thousands from their homes.

Attorneys for the federal government are arguing that the state overstepped its authority in issuing the order. Hawaii law authorizes state officials to invoke emergency powers when underground storage tanks present “an imminent peril to human health and safety or the environment” due to a release, any action taken in response to a release or their continued operation.

The Hawaii Department of Health asserted that a Nov. 20 fuel released at the facility, as well as continued operations at Red Hill, created an “imminent peril.”

However, DOJ officials argue that the Navy is adequately responding to the emergency caused by the Nov. 20 fuel release and related drinking water contamination and that the state’s emergency powers relating to underground storage tanks do not extend to long-term issues relating to the Red Hill facility.

“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,” wrote Todd Kim, assistant attorney general for the DOJ’s Environment and Natural Resources Division, as part of the appeal filed in federal court. Hawaii law “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.”

Kim goes on to argue that long-term decisions about Red Hill are the subject of other regulatory proceedings, including an administrative order of consent handed down by the U.S. Environmental Protection Agency and DOH following a 2014 release of 27,000 gallons of fuel from the Red Hill facility, as well as the Navy’s pending application for a state permit to continue operating the facility.

DOJ also filed an appeal in state court.

While contesting the state’s emergency order, the Department of Justice struck a conciliatory tone.

“The U.S. government hopes to resolve its differences with the State of Hawai‘i regarding the final order through negotiation, but files this lawsuit out of an abundance of caution to satisfy the 30-day statute of limitations that Hawai‘i law imposes on judicial review of such orders,” a DOJ spokesman said in a statement.

“There is ongoing, good-faith and senior level engagement at the Department of Defense, the Navy, and the Department of Justice towards a negotiated resolution that protects human health and the environment, as well as our national security.”

However, the decision to appeal the state’s emergency order, which was announced on Monday, has infuriated state and local leaders.

Congressman Kai Kahele (D-Hawaii) called it a “betrayal to the people of Hawai‘i.” U.S. Sen. Brian Schatz (D-Hawaii) called it “a grave and unforced error that undermines public trust.”

U.S. v Dept .of Health Hawaii by Honolulu Star-Advertiser

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