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June 18, 2015

To: U.S. Environmental Protection Agency

Hawaii Department of Health – Solid & Hazardous Waste Management Branch

U.S. Navy

U.S. Defense Logistics Agency

From: Mahealani Cypher

O`ahu Council-Association of Hawaiian Civic Clubs

Re: Testimony Regarding Draft Administrative Order of Consent – Red Hill Fuel Leaks

Aloha. My name is Mahealani Cypher, and I am here to offer testimony and comments regarding your proposed 

Administrative Order of Consent regarding the continuing problems of leaking fuel from your Red Hill Bulk Fuel 

Storage Facility. I am here to speak on behalf of the O`ahu Council of the Association of Hawaiian Civic Clubs, 

of which there are 27 clubs throughout the island of O`ahu. As Native Hawaiians and leaders in our 

communities, we are deeply concerned about what we consider to be a significant and serious threat to our 

island's fresh water supply. 

We wish to bring to your attention the Department of Defense's recently approved policy for consultation with 

Native Hawaiians, and ask that our Council be immediately included in any further discussions or actions 

relating to this problem which can affect all of us on O`ahu, Native Hawaiians and non-Hawaiians alike. 

I will speak briefly about the cultural and religious significance of our island’s fresh water supply to the Hawaiian 

people. In centuries past, when the islands were first inhabited by our people, we were able to sustain 

ourselves and survive despite being the most remote group of islands in the world. E malama i ka wai, care for 

the water, was among our most important cultural values, containing within these words the kuleana –

responsibility – of our people to protect this resource so critical to our survival. To be wealthy was to be waiwai, 

to have an abundance of water resources. The kanawai became the law of the land for our people, and water 

resources were strictly safeguarded by our kupuna kahiko. 

Our water resources also had religious significance, and to hiuwai was to engage in a fresh-water cleansing, 

among the many ceremonies in which water played a key part. From ancient times even until today, Hawaiian 

ceremonies, blessings, and practices utilize our island’s fresh water in our religious practices. 

So to consider the fresh water resources underlying the moku of `Ewa and Kona, O`ahu, for the purpose of 

commenting on this draft document, we wish to inform you that the waters beneath the Red Hill Bulk Fuel 

Storage Facility are, indeed, important to Native Hawaiians for cultural, religious, and practical purposes – we 

cannot survive, we cannot live without good quality fresh drinking water.

These fuel tank leaks pose constant and immediate threats to our island's largest aquifer and, in our view, 

should be considered a "Homeland Security" matter rather than addressed merely by an Administrative Order of 

Consent. 

Nonetheless, we begin by offering our mahalo to those of you who have advocated for protection of our precious 

water resources and for swift and permanent corrective actions to deal with these chronic fuel leaks into the 

aquifer. 

O`ahu Council

Association of Hawaiian Civic Clubs

P. O. Box 37874

Honolulu, HI 96837-1122
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Having read through your entire AOC and the accompanying Statement of Work, we have the following specific 

comments - we'll take it in sections and end with more general questions or recommendations: 

Administrative Order of Consent 

1. Introduction

(b) Concerning your comment that this AOC "provides for the performance by the Navy and DLA of a release 

assessment, response(s) t release(s), and actions to minimize the threat of future releases in connection 

with...the Red Hill Bulk Fuel Storage Facility": why does the AOC not include information about prior or current 

"releases" - leaks - from these tanks? Why does the document call these incidents "releases" and not leaks?

(c) Navy and DLA, in this section, claim that they do not admit liability in this matter, "neither admit nor deny the 

factual allegations and legal conclusions..."? This blatant attempt to reject their culpability in this matter is 

shameful. There is no other entity responsible for the Red Hill Bulk Fuel Storage Facility besides these two, the 

Navy and DLA. The entire AOC document is rife with language to protect the Navy and DLA from having to take 

immediate action to correct the problem. We will address those sections as we come to them. 

(d) We question whether this AOC is "fair, reasonable, protective of human health and the environment, and is 

in the public interest." Unless immediate actions are taken to relocate or rehabilitate each of the tanks, albeit 

systematically over a limited period of time, this document merely allows for many delays, deferral of action, and 

more serious contamination of our fresh water resources every day they are allowed to continue leaking. 

2. Jurisdiction

(c) While we applaud the statement in section c, Navy and DLA agreeing to undertake and complete all actions 

required by the AOC, because this AOC allows them deferral of work that should be done immediately, it is 

possible that the entire undertaking could be put off indefinitely according to language elsewhere in the AOC. 

3. Parties Bound

We have no comments on this section 

4. Findings of Fact

(c) Navy and DLA are the operators of the Facility - that has been agreed to by the parties. As operators, in fact, 

they should then be held accountable for the chronic leakage problem of these tanks, which date back over 70 

years. Why do they insist on the disclaimer language? 

(f) We note that two of the 20 tanks are currently not in operation - the Navy should consider demolishing those 

tanks and constructing replacements, using more modern technology, at Pearl Harbor. 

(i, j) These sections identify the types of fuels held in these tanks and leaking into our groundwater. Do you drink 

any of these? 

(k,l,m,n) These sections identify water sources directly threatened by past and present leaks from these tanks. 

(o) The first report by the Navy to DOH was in 1998 - were there earlier leaks that had not been reported to 

DOH? If there were earlier leaks, what corrective actions did the Navy or DLA take, if any, to prevent further 

leaks from these tanks? 

(p) In 2013, the Navy found evidence of "staining" beneath 19 of the 20 tanks - presumably, these stains are 

from leaking fuel. That appears to demonstrate that 19 of the 20 tanks have leaked - why haven't the people of 

O`ahu been informed sooner? The leak that was reported in January of 2014 is AFTER those core samples 

were drawn and the staining discovered. The Navy knew about leakage from the tanks PRIOR to what occurred 

last year. What actions, if any, has the Navy or DLA taken to clean up the tanks, the soils and contaminated 

areas, and to protect our island from further contamination? 

(q, r) These sections describe activities at Tank #5 between December 9, 2013, and January 18, 2014. How do 

you define "routine maintenance"? Did it include eyeball inspection of the area around the tank, review of the log 

to confirm the tank contained the amount of fuel it should have, etc.? What kind of "routine maintenance" was in 

place for the 70 years prior to December 2013? How did you determine that the leakage was "approximately 

27,000 gallons"? 
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(s) "Released to the environment" - euphemism for leaked into the groundwater? This section mentions 

"historical releases", which suggests there has been a history of leaks from the facility. Where is the record of 

these releases, and why is our community not being informed about them? Also disturbing is the statement that 

the total amount of fuel leaked into the ground since the facility was built "is unknown." 

(u) This section discusses the "chemical constituents" of the fuels contained in these tanks, and adds, "Chronic 

exposure to these constituents can be harmful to human health." The Navy and DLA have had knowledge of 

these leaks into the ground, they know that such chemicals are harmful to human health, yet they still do not 

intend to take decisive, immediate action to relocate and/or rehabilitate these tanks. That is unacceptable, and 

this AOC is unacceptable until the operators of the Facility take responsibility for what appears to be negligent 

management and agrees to greater immediate action than is contained in this draft agreement. 

5. Conclusions of Law and Determinations

(a-i, ii, iii) Navy owns and, with DLA, operates the Red Hill Bulk Fuel Storage Facility - a conclusion drawn by 

this AOC and agreed to by the operators. 

(a-iv, v) Describes water resources of concern in this AOC. 

(a-vi, vii, viii) Describes some of the discharges of contaminants from the Facility into the ground. 

(a-ix) Describes laws and regulations that can affect operations of this Facility. 

(a-x) States how the Navy and DLA have agreed to perform certain actions "to address potential impacts to 

human health, safety and the environment...due to historical, recent and potential future releases at the Facility." 

Again, we read that there is a history of contamination and leaks from this Facility; we are somewhat skeptical 

that this AOC will adequately address past and present leaks (particularly since the contamination has been 

occurring for decades), and are even more concerned that this AOC supposedly addresses future leaks. In our 

view, there should be NO MORE leaks from the Red Hill Bulk Fuel Storage Facility. Again, to include language 

that appears to accommodate potential future leaks is unacceptable in this AOC. 

(b) EPA Conclusions of Law and Determinations:

(b-ii) EPA describes the fuel releases as "solid waste" - does this weaken or strengthen the Navy's position in 

this matter? What is the difference between leaking solid waste and liquid waste? Either way, these are 

substances harmful to human health and to the environment in general. 

(b-iii) EPA has declared that Navy and DLA are responsible for the "solid waste" at Red Hill. 

(b-iv, v) EPA says Navy and DLA's operations at Red Hill "may present an imminent and substantial 

endangerment to health or the environment." This statement is curious - it is strong wording,so strong that we 

wonder why this matter has not included - or been referred to - the Department of Homeland Security, for two 

reasons: (1) the citizens of the island of O`ahu are threatened by contamination of a major water resource vital 

to their lives; and (2) leaking military fuel reduces the amount of resource available for use by the DoD for 

defense purposes. In our view, this matter should be treated as an emergency, not as a routine fix-up, clean-up 

after we study for 20 years kind of thing. 

6. Work to be Performed

General comment: use of all these references to federal law are important in a document such as this, but 

require an attorney or law clerk to research the references. EPA and State Health Department should have 

provided summaries of each of those sections of law referred to throughout the AOC and attachment. 

(6-d) Discusses when the Navy will commence its work - upon the effective date of this AOC - why couldn't the 

Navy have begun its work sooner, rather than wait for another agency to order it to do so? As owner and 

operator of the Facility, the Navy - with all of its experts, scientists and engineers - could have worked out an 

emergency plan to remedy immediate problems and should already have put together a draft longterm 

corrective action plan - and preferably, one that doesn't take over 20 years to complete. 

7. Regulatory Agencies' Approval of Deliberables
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We note several areas where delays will occur to give the Navy and DLA a chance to dispute what they are 

assigned to do by the Regulatory Agencies - this is likely to happen again and again and cause delays in 

protecting our groundwater and our community. Either the Navy/DLA will do the corrective actions, or they 

should be required to remove their Facility from this island. 

8. Modification of the SOW and this AOC and Additional Work

Again, this section allows a significant amount of latitude to the Navy/DLA which can lead to deferred action, 

and little or no correction to the problem that is contaminating our water supply. This is inadequate and the 

language should be tightened up. 

(8b-iii) This section discusses the possibility that future regulatory requirements may arise and could conflict with 

this AOC, the parties are to "make good faith efforts to promptly resolve such conflict". What does that mean? Is 

there a legal definition? This could place the entire program in limbo for an indefinite period of time. Again, our 

concern is the deferred corrective actions that result in additional contamination of our groundwater supply. 

Does the AOC override requirements to comply with future regulatory requirements?

(8c) This section discusses "dispute resolution" - a phrase that is used repeatedly throughout the AOC. It is 

bewildering at the least, and alarming at best, to see that the Navy and DLA would have any dispute at all with 

correcting the problem caused by their operation of this Facility. Recognizing that corrective actions are likely to 

cost money, the Navy and DLA should - with the EPA's concurrence - admit that this is an emergency situation 

which should shift this matter into a much higher priority for work that needs to be done sooner rather than later. 

10. Sampling, Access and Document Availability

Results of all water sample testing should be posted on a website maintained either by EPA or the State 

Department of Health. There should be complete transparency in every aspect of this remediation and 

protection work. 

(10-b iv) The phrase "protect classified information" is used in this section suggests that there may be times 

when information about the work being done or to be done will be declared "classified" for matters of national 

security. We submit that the defense and protection of the island of O`ahu is equally important, and strongly 

encourage that this language be amended to specify which kinds of situations would prohibit use of information 

from this remediation/protection program. 

(10-b vi) This language allows the Navy or DLA to refuse a request for access to the facility or to information, 

even when requested by EPA or DOH - it is concerning, and language should be inserted to define what kinds 

of limitations would prevent allowing access to authorized representatives of the regulatory agencies. 

(10-b vii) In this section, EPA makes it clear that denial of reasonable requests for access would be a violation of 

this AOC - mahalo for that language. 

12. Funding of the Work

(12-a) Stipulation that the Navy and DLA shall "timely seek sufficient funding through their budgetary processes 

to finance and perform all the Work." We suggest that the Navy and DLA consider this Work to be of an 

emergency nature, which would give it greater priority when seeking funding resources to support the "Work". 

(12-b and 12-c) Discussion of what happens if the Navy and DLA are unable to obtain the funds for this action -

again, we suggest that this problem is an emergency and should be given the highest priority possible. It is 

widely known that federal agencies and the Department of Defense are all dealing with budget cutbacks and the 

search for funding is very competitive. The best hope for the Navy to acquire adequate funding to do what 

needs to be done as quickly as possible to prevent further damage to our aquifers is to admit that this is an 

emergency. For those of us who live on O`ahu permanently, it is indeed an emergency. 

13. Reimbursement of DOH Costs

(13-a) There is mention of reimbursing the Department of Health for its work to deal with this problem, and again 

a suggestion that there be a "dispute resolution" if Navy/DLA disagrees with what is asked by DOH. We are 

uncertain if the language in this section provides any guarantee that DOH - funded by Hawaii's taxpayers - will 

be reimbursed by the DoD. We are also deeply concerned that there is no mention of reimbursement to the 

Honolulu Board of Water Supply for any costs it incurs to monitor and/or deal with this problem, nor regarding 
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the cost of treatment of water from any source that may become contaminated. This renders the AOC 

weakened in this area, and the language needs to be amended to address these two things. 

14. Dispute Resolution

From Page 19 to 22, this section deals with the many delays that can and are likely to occur while the operators 

of the facility attempt to evade their responsibilities to this AOC. There are many ways in which actual physical 

correction actions to relocate, rehabilitate or replace these tanks can be deferred or forgiven altogether 

(including later language in the AOC which allows the President to issue an executive order to excuse the 

operators from having to take action). These delays allow more contamination into Oahu's fresh water aquifers; 

deferred action will cost much more later. 

15. Penalties

We are uncertain whether the penalty of $1,000 per day is reasonable; perhaps that should be the minimum 

penalty and, depending on the severity of the violation, could be set higher - particularly if this violation is a 

repeated offense that should have been corrected sooner. 

(15-c, d, e) Again, allows for delays and deferred corrective action and protection of our groundwater. 

(15-f) How would the Navy or DLA hold a member of their accountable, under this language? Will anyone ever 

be held accountable for negligence or dereliction of duty with regard to operation or maintenance of fuel tanks or 

facilities? 

16. Enforceability

(16-b) "Subject to the Dispute Resolution Provisions..." Again, the cumbersome and defiant "dispute resolution" 

process in this AOC enables the perpetrators of the mistakes, those who failed to properly monitor and maintain 

these tanks, to defer and delay taking proper corrective action.

17. Force Majeure

(17-a) We are concerned with this language because there is a potential for all kinds of possible "forces 

majeure" to be declared, and this provides another opportunity for the Navy/DLA to avoid having to take 

corrective/protective actions. For example, in the case of the BP oil spill in the Gulf of Mexico, Prof. Leon D. 

Trackman states that "the widespread practice by large scale producers, like Exxon Mobil and BP, of declaring 

force majeure has created enormous legal and contractual problems. The practice is used, not only to respond 

to devastating disasters like Hurricane Katrina, but also to defects in pipelines amounting to little more than wear 

and tear . The result is that customers are left waiting for goods or forced to pay higher prices that they often fail 

to comply with both the law..." 

18. Reservation of Rights

While this section declares that the Regulatory Agencies retain their rights to uphold the law to protect the public 

health or environment, this matter is still subject to the "dispute resolution" process of the AOC which, in our 

view, is weighted in favor of the Navy/DLA. 

19. Regulatory Agencies' Covenants

We are concerned about this section, and request clarification as to why EPA and DOH would allow themselves 

to be limited by this AOC, which has enough loopholes to allow Navy/DLA to escape ultimate responsibility for 

the work that needs to be done. 

20. Other Claims

This section allows the EPA and DOH to absolve themselves of claims made by any other party for harms 

experienced due to the acts or omissions of the Navy or DLA. If EPA and DOH sign this AOC without making 

the changes we requested, EPA and DOH become parties to the continued degredation of our groundwater 

supply. We are uncertain as to whether this is fair to the water consumers and ratepayers of the island of O`ahu, 

or to the taxpayers of the State of Hawai`i. 

22. Presidential Exemption

Not only does this section allow the President of the U.S. to exempt the parties from having to carry out the 

corrective actions needed, it allows for an extention of the exemptions. This is unpardonable and the language 

should be deleted. 
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ATTACHMENT A - STATEMENT OF WORK 

Comments on major components of work: 

1) In what ways will the Navy and DLA improve upon their existing tank inspection and repair process? Please 

include this information on the website that needs to be established for transparency and public access. 

2) Navy/DLA study should have already taken place over the past year - why does this AOC give them 

additional time? Are they considering alternatives to upgrading the tanks, such as relocating or replacing them? 

We strongly disagree with the two-year time period this AOC would allow for this additional "study" - again, it 

delays the work that needs to be commenced right away, allowing more contamination of our groundwater. We 

also strongly disagree with the 22-year time period for complete implementation of the corrective actions

concerning the Red Hill Bulk Fuel Storage Facility. In our view, this time period should be cut in half to 10 years, 

therefore reducing the amount of time our water resources will be exposed to the potential of further 

contamination by leakage from the tanks. 

3) Tank tightness testing - while we appreciate that the Navy has agreed to do this testing once a year rather 

than every 2 years, we strongly recommend that this testing be done once every 6 months. A lot of fuel could 

leak over a 12-month period. 

4) While studies are necessary, an action plan is needed to begin an incremental correction of the flaws in the 

tanks and other aspects of the facilities at Red Hill. 

5) Again, we agree that the studies are needed, but strongly recommend immediate corrective action on a 

longterm program for dealing with all of the tanks. 

Overall Project Management 

1.1 - Omit the phrase, "as needed" - these agencies should automatically be part of the AOC decision-making 

process 

1.2 - Community involvement - one of the weakest sections of the AOC, there needs to be more information 

available, with the development of the website as a minimum, and updating regularly with results of testing, 

studies, and progress of ongoing work. Opportunities for stakeholder, community feedback should be available 

and should have mechanisms for folliow-up and response. Minutes of meetings of the Regulatory Agencies, 

Navy, DLA and others involved in this should also be posted on the website. 

1.6 - Quality Assurance - may we please have an example of what "quality assurance" means to the Navy 

and/or DLA? 

Tank Inspection, Repair, and Maintenance (TIRM) 

2.1 - add BWS and DLNR to list of those included in these meetings. 

2.2 - Procedures report - 120 days is too long a time period for this report; time should be shorted to 60 days. 

3. Tank Upgrade Alternatives 

The language in this section should include time limits. 

3.1 - Scoping meetings - Navy/DLA should already have spent the past year studying this, not to mention the 70 

years prior when previous leaks occurred. They shouldn't be allowed more time to continue "studying" this 

problem - they should already have developed some responsible and reasonable alternatives. 

3.6 - Pilot Program - We are concerned about the potential for more delays, and inquire whether the Navy/DLA 

have already inquired elsewhere where there have been fuel tank leaks (even though this facility is considered 

"unique", there are underground fuel tanks everywhere and there must be some data already available). 

5. Corrosion and Metal Fatigue Practices - this is an important deliverable, and we applaud its inclusion. How 

many Navy ships at sea have lasted for 70 years without major repair or replacement? 
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6. Investigation and Remediation of Releases - What did the Navy and DLA do with earlier leaks from the tanks, 

prior to 2014? 

7. Groundwater Protection and Evaluation - Are there enough monitor wells, in the right places, to track the 

movement of the fuel spills? 

FINAL COMMENTS AND RECOMMENDATIONS: 

The O`ahu Council of the Association of Hawaiian Civic Clubs respectfully requests that this Administrative 

Order of Consent be amended to address comments offered above, with our priorities as follows: 

1. Consultation with Native Hawaiians - The O`ahu Council should be included in future consultations on this 

matter, per the DoD policy. 

2. The Navy/DLA should acknowledge that they are responsible for the problem of the leaking tanks and will be 

responsible for correcting the problem. 

3. The Navy/DLA should begin an incremental program of relocating, replacing or rehabilitating each of the 

currently active fuel tanks, at least two per year, until all 20 tanks have been corrected - with a time period of no 

more than 10 years for these actions to be performed. 

4. The Navy/DLA should begin a program to remove the contaminated soil wherever possible. 

5. Fuel tanks that are not currently in service should be removed or eliminated from active use. 

6. All costs associated with monitoring, testing, treating contaminated soils or water should be borne by the 

Navy/DLA, which should also reimburse state and county agencies that are affected by the Red Hill fuel leak 

problem. 

7. All information relating to this problem, including updated information on results of soil or water monitoring, 

testing, progress of work and minutes of meetings, should be included on a new website dedicated to the 

corrective action at Red Hill, and should be accessible to the consumers. 

We appreciate the time and attention given to this matter by the U.S. Environmental Protection Agency, the 

State of Hawaii Department of Health, the Honolulu Board of Water Supply, the State Department of Land & 

Natural Resources, the U.S. Navy and the Defense Logistics Agency. We hope you will take to heart the 

recommendations we have offered, and readily agree to make the changes we have offered. 

Mahalo for this opportunity to share our mana`o. 

Mahealani Cypher 

O`ahu Council-Association of Hawaiian Civic Clubs 

About the O`ahu Council, Association of Hawaiian Civic Clubs

The O`ahu Council is one of five councils that comprise the AHCC. It advocates actions that enhance

the civic, economic, educational, health and social welfare of our communities and elevates the social

and intellectual status of all Hawaiians. Twenty-seven clubs located throughout the island of O`ahu

comprise the Council.