HONOLULU (CN) — A federal judge set back a Hawaii environmental nonprofit’s case against the U.S. Navy for contamination of the ecosystem near the military’s Red Hill Bulk Fuel Storage Facility Tuesday, dismissing a portion their environmental endangerment claims, but leaving a path forward for the group to pursue remediation neglected by government agencies.
U.S. District Judge Leslie Kobayashi dismissed the complaint but will allow Wai Ola Alliance to submit a third amended complaint specifying their claims as they apply to issues with the defueling and closure of the Red Hill facility not covered in administrative orders from the Environmental Protection Agency and the Hawaii Department of Health.
“In the instant case, although this court is competent to decide issues regarding the defueling and closure of Red Hill,” Kobayashi wrote. “It would be inefficient for this court to undertake either review of the defueling process, which defendants represented at the hearing was almost complete, or review of the closure process, which is underway with significant oversight by DOH and the EPA.”
Citing the Clean Water Act and the Resource Conservation and Recovery Act, Wai Ola points specifically to the potential decades of fuel leaks from the World War II-era facility that they say have infiltrated nearby groundwaters along with waters in Halawa Stream and Pearl Harbor, affecting the animals living along the shoreline and degrading waters that hold cultural significance to Native Hawaiians.
The facility's massive 20 underground storage tanks and miles of pipes also risk contaminating Oahu’s main aquifer, which sits just 100 feet below the facility and provides water to over three-fourths of the island.
Wai Ola maintains that the water crisis is ongoing and that a May 2022 emergency order from the Department of Health and 2023 Consent Order from the EPA guiding the ongoing closure and defueling process of Red Hill — predicted to not be completed until at least 2028 — are not enough to clean up or prevent continued pollution.
Attorney for the plaintiffs, Daniel Cooper of San Francisco-based Sycamore Law, says that neither of those orders addresses groundwater or aquifer contamination. He added that the new complaint will specify those issues as well as clarify Clean Water Act claims for piers, like the the Hotel and Kilo Piers in Pearl Harbor, that the agencies did not cover.
"We will continue to advocate for citizen role, citizen oversight, citizen participation in the cleanup and closure process beyond the flawed public outreach effort the Navy has been engaged in where they don't share much information," Cooper said. "We think there's a role for us and for the court in making sure that cleanup is real. So we will continue to advocate for that and as the months go by and the Navy continues to play games, it will become more obvious that court intervention is appropriate."
Kobayashi disagreed with the Navy's contention that any ruling arising from the case would conflict with administrative agency action. Citing the abstention doctrine and primary jurisdiction in her ruling, she determined that issues not covered under the agency actions should be able to be litigated.
“This court’s review of those issues would not disrupt the state’s efforts to establish coherent policy in its programs under RCRA and the CWA, and this court’s decision on the remaining portions of the citizen suit will not intrude upon the state’s interests,” she wrote.
Kobayashi also ruled that once the amended complaint is submitted, the portions already covered by administrative procedures will be stayed for at least year, pending the ongoing cleanup of Red Hill the Navy began in October 2023.
Experts have estimated at least 1.94 million gallons of toxic fuel have been discharged from the facility since 1943, though military inspections throughout have consistently declared it safe.
State officials are also taking steps to put pressure on the Navy to follow through with environmental remediation of Red Hill.
The Navy did not immediately responded to a request for comment.
The alliance first sued the Navy in 2022, several months after reports of an extensive fuel leak from Red Hill emerged alongside reports from nearby residents — including the Navy’s own members and their dependents — of severe illnesses. Trial for a case brought by of those families against the Navy for the contamination is ongoing in federal court in Hawaii.
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