Administrative Order on Consent

In the Matter of Red Hill Bulk Fuel Storage Facility

EPA Docket No: RCRA 7003-R9-2015-01

DOH Docket No: 15-UST-EA-01

Response to Comments

September 28, 2015
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Contents

I. Introduction............................................................................................................................. 3

II. Comments............................................................................................................................... 5

A. Schedules ............................................................................................................................... 5

1. Overall Schedule of AOC Implementation and Completion .............................................. 6

2. Schedule for Remediation of Existing Contamination ....................................................... 6

3. Schedule for Upgrading Tanks ........................................................................................... 7

4. Schedule for Structural Assessment and Risk Assessment................................................ 8

B. Threats to Drinking Water and Groundwater .................................................................. 9

1. Risk of Catastrophic Event Leading To Release ................................................................ 9

2. Groundwater Monitoring .................................................................................................... 9

3. Effect on Aquifer .............................................................................................................. 10

C Public Transparency........................................................................................................... 11

1. Public Accountability........................................................................................................ 11

2. Availability of All Documents.......................................................................................... 11

3. Adding Additional Parties to the AOC............................................................................. 11

4. Funding of Work to be Performed .................................................................................... 12

D. Compliance with State and Federal Regulations............................................................ 12

1. Compliance with Regulations versus AOC Requirements............................................... 12

2. Negotiated Agreement vs. Unilateral Action.................................................................... 13

3. Corrosion Protection of Tanks at the Facility................................................................... 13

4. Secondary Containment of the Tanks at the Facility........................................................ 14

III. Conclusion .............................................................................................................................. 14
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I. Introduction

In response to releases from the Red Hill Bulk Fuel Storage Facility (“Facility”) in January 2014, 

U.S. Navy (“Navy”), Defense Logistics Agency (“DLA”), U.S. Environmental Protection 

Agency (“EPA”), and Hawaii Department of Health (“DOH”), collectively referred to as the 

“Parties,” began negotiating an enforceable agreement, also known as an Administrative Order 

on Consent (“AOC”), under Section 7003 of the Resource Conservation and Recovery Act

(“RCRA”). The AOC and the associated Statement of Work (“SOW”) is a comprehensive 

solution to address releases from the Facility that requires Navy and DLA to perform extensive 

remedial and preventative measures to effectuate cleanup, support contingency readiness, and 

implement infrastructure upgrades to prevent fuel from the Facility from contaminating drinking 

water sources today and in the future. On September 28, 2015 Navy and DLA signed this 

proposed AOC, agreeing to perform the work described on the schedule established by the 

agreement.

Prior to signing and finalizing the agreement, EPA and DOH, collectively referred to as the 

“Regulatory Agencies,” sought public input on the previous version of the proposed AOC signed 

by Navy and DLA on May 27, 2015. The public was provided an opportunity to comment on the 

proposed AOC between June 1, 2015 and July 20, 2015. To facilitate public participation and 

comment in the process of finalizing the AOC, the Regulatory Agencies conducted various 

outreach activities. A public information meeting was held on June 18, 2015 in Honolulu, 

Hawaii, where the Regulatory Agencies presented the details of the AOC and received comments 

from the public. The Regulatory Agencies created websites containing summaries of the 

proposed agreement, copies of the complete AOC and related materials, and supporting 

administrative documents available for public viewing. The Regulatory Agencies also issued 

press releases to various media outlets to increase public awareness of the proposed AOC. The 

Regulatory Agencies accepted written and oral public comments at the public meeting, and 

written comments at their offices and via electronic mail.

In total the Regulatory Agencies received over one hundred forty (140) written comments on the 

proposed AOC as well as an additional twenty-nine (29) oral comments received at the June 18, 

2015 public meeting. Commenters reflected a broad range of stakeholders including private 

citizens, non-governmental organizations, government agencies, and publicly elected officials. 

The most extensive comments were submitted by the Honolulu Board of Water Supply (BWS). 

Many commenters challenged the Regulatory Agencies’ use of an AOC to address fuel releases 

from the Facility rather than some other type of enforcement action. When leaks from fuel tanks 

occur, Regulatory Agencies typically require the leak to be stopped and then order the 

responsible party to clean up the area affected by the leak to the maximum extent practicable. In 

this case, the Regulatory Agencies went beyond this traditional approach by negotiating an 

agreement that not only requires investigation and cleanup of the fuel that leaked, but also allows 

the Regulatory Agencies to oversee critical decisions regarding operation, repair, and 

infrastructure improvements to the Facility in order to prevent future releases.

Based on comments received, the Regulatory Agencies negotiated eight additional changes to the 

original agreement with Navy and DLA proposed on June 1, 2015. The Parties revised the 

following sections of the SOW:
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 Section 1.1 – to involve subject matter experts, including BWS and Hawaii Department 

of Land and Natural Resources;

 Section 1.2 – to increase public involvement;

 Section 1.8 (new) – to begin early compliance with new federal regulatory requirements 

applicable to field constructed underground tanks;

 Section 2.2 – to increase specificity on the scope of inspection, repair and maintenance 

activities covered by the agreement;

 Section 2.2 –to include a commitment to identify actions that can be taken, as soon as 

practicable, to reduce the risk of release independent of tank upgrades;

 Section 3.5 - to include a commitment to install tank upgrades as quickly as practicable 

so long as quality and performance of the upgrades are not compromised;

 Section 7.3.2 – to include a commitment to install additional monitoring wells as soon as 

possible to address data gaps identified and validated during initial scoping; and 

 Section 8.0 – to expand the risk and vulnerability assessment to include a comparative 

analysis of the current Facility versus alternative fuel storage facilities.

Many commenters expressed the need for greater detail in the AOC. With a project as complex 

as this one, the Regulatory Agencies determined that the framework of the AOC, which sets 

forth a series of successive tasks to develop a comprehensive solution for the Facility, is the best 

method to achieve the environmental goals. Many of the public’s comments and concerns will be 

addressed during implementation of the AOC. The Facility is believed to be the largest 

underground storage tank (“UST”) fuel facility in the United States. Its enormous size, unique 

design and complex geologic setting will require a careful and thorough evaluation to address 

past releases and prevent future releases.

Universally, the public comments wanted the Regulatory Agencies to ensure the protection of 

public health and the environment. This continues to be our goal as well. Implementing the 

AOC is the best method for protecting human health and the environment.

Before responding in detail to the comments, the Regulatory Agencies emphasize the following:

 Drinking water and groundwater monitoring results in the vicinity of the Facility comply

with federal and state drinking water concentrations. 

 BWS has confirmed that water samples from their wells in the area, which are taken 

regularly, have not detected any petroleum contamination.

 A confirmed fuel release in January 2014 from Tank 5 at the Facility resulted in an 

increase in the presence of petroleum contamination in soil vapor and ground water 

below the Facility. To date, some groundwater samples below the Facility have exceeded 

DOH’s screening levels for petroleum but no samples have exceeded federal drinking 

water standards. The characteristics of the geology surrounding the tanks and depth to 

groundwater (approximately 100 feet) may be significantly limiting the vertical migration 

of contamination at the Facility.

 Many significant tasks will be completed within the first three years of the agreement.

The schedule in the AOC is aggressive and requires Navy and DLA to submit multiple 

work plans within one hundred twenty (120) days of the effective date of the AOC, 
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including plans for improving inspection protocols, assessing groundwater 

contamination, addressing cleanup methods, and tank upgrade alternatives. In all, Navy

and DLA are to complete approximately forty (40) tasks within the first three years of the 

AOC. The tank upgrade work to be performed at the Facility is complex and will require 

extensive planning and review, thus the need for the extended performance schedule. The 

AOC’s timetable was created to accommodate the difficulties of working in a confined 

underground environment with limited infrastructure, the operational requirements of a 

strategic military installation and the process of securing federal funds from Congress.

 Tasks to be implemented within the first few years of the agreement are designed to 

further assess the potential threat the Facility poses to groundwater resources. In part, 

these tasks will confirm previous studies or correct previous determinations made without 

regulatory oversight. Should new information indicate that the Facility poses greater risk 

than characterized in existing studies, the Regulatory Agencies reserve the right to take 

additional action to ensure adequate protection of the groundwater resource. This action 

could include negotiated changes to the AOC or other enforcement action to address the 

unacceptable risk.

 The AOC is focused on investigation and prevention, and is not an assessment of

penalties. The Regulatory Agencies can only assess penalties when there has been a 

violation of the regulations, which has not occurred here. 

 While the Regulatory Agencies have a certain amount of authority to act unilaterally to 

order a respondent to take certain actions, an agreement on consent can achieve far 

greater benefits in a shorter amount of time. A unilateral order can be challenged and 

delayed by litigation. In this case, Navy and DLA are willing to make improvements and 

work with the Regulatory Agencies. Therefore, a signed agreement among the parties

with regulatory oversight is the fastest and most effective way to put an enforceable 

mechanism in place to protect groundwater resources in the vicinity of the Facility and 

ensure that the Facility is operated and maintained in an environmentally protective 

manner.

II. Comments

Overall, the comments were focused around a small number of themes and topics. These 

included schedules, the threat to drinking water and groundwater, and Navy and DLA 

accountability as well as other issues as discussed below. The Regulatory Agencies’ response to 

comments is organized according to these themes and topics. 

A. Schedules

Many commenters raised concerns that the schedule in the AOC lacks urgency. Some 

commenters urged the Regulatory Agencies to shut down the facility immediately while others 

wanted a more aggressive schedule for certain aspects of the work. 
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The Regulatory Agencies have developed the AOC’s timetable such that the rate at which certain 

tasks are to be completed is consistent with the current assessment of the risk that Red Hill 

presents to public health and the environment. If at any time, however, the Regulatory Agencies 

find violations or other information that suggests the Facility poses a significantly greater risk, 

they retain all regulatory authorities to take action beyond the AOC as necessary to address this 

risk. 

Some commenters believe the tanks should be shut down due to the risk from a catastrophic 

release resulting from an earthquake. We address this issue below in our response to comments 

regarding protection of groundwater and drinking water.

1. Overall Schedule of AOC Implementation and Completion

Many commenters were critical of the schedule for work to be performed by Navy and DLA 

under the AOC. Some commenters believed that most or all of the work to be performed should 

be concluded more expeditiously while other comments focused on the scheduled completion of 

specific tasks in the SOW. Commenters cited a history of past releases, the age of the tanks at the 

Facility and a perceived severe threat to drinking water resources as justification for requiring the 

work to be completed within a shorter time period. In general, most commenters believed that 

the schedule does not reflect a sense of urgency. Although a few commenters suggested a 

specific accelerated schedule in which to complete the work, most commenters did not provide a 

specific date or schedule. 

Response:

EPA and DOH acknowledge commenters’ concern with the length of the schedule for the work 

to be performed. The length of the schedule for nearly all of these difficult tasks is generally 

caused by the fact that the work to be performed at the Facility is very complex and requires

extensive planning and review. Fuel storage industry experts advising EPA and DOH have 

indicated that some of the more robust upgrade options will be difficult to design and construct 

within the deadlines set forth in the AOC. The schedule in the AOC requires Navy and DLA to 

submit within one hundred twenty (120) days of the effective date of the AOC multiple plans 

ranging from improving inspection protocols and assessing groundwater contamination to 

addressing cleanup methods and tank upgrade alternatives. In all, Navy and DLA are to complete 

approximately forty (40) tasks within the first three (3) years of the AOC. The work to be 

performed as required by the AOC and outlined in the SOW will be deliberate and implemented 

after careful preparation and a review of relevant data. 

Throughout this agreement, the Regulatory Agencies have intentionally prioritized taking the 

necessary time to ensure that the best alternatives are selected for the work to be performed and 

that the work is conducted with the highest quality without compromising public health 

protection. With the current schedule, the Regulatory Agencies are confident that public health 

will be protected while the Facility is being properly upgraded and steps are taken to address past 

fuel releases.

2. Schedule for Remediation of Existing Contamination

Many commenters stated that the schedule for cleaning up and remediating releases from the 

Facility is too slow. We received comments stating that the January 2014 release should be 
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cleaned up or remediated immediately and that Navy and DLA should expedite petroleum 

contamination removal directly underneath the Tanks and in groundwater. Some commenters 

stated that if the January 2014 release could not be remediated immediately, then the Tanks 

should be drained and taken out of service. 

Response:

Petroleum releases into the environment from USTs are found typically as “free product” (i.e., a 

regulated substance that is present as a non-aqueous phase liquid), vapors in the soil or rock 

above the groundwater, or dissolved fuel in the groundwater. In general, recovering free product 

is the first step in addressing any release of fuel from a UST. Recovering free product from the 

January 2014 release at the Facility is and will remain a regulatory priority. The geology at Red 

Hill, however, presents unique challenges. The concrete casing of the Tanks at the Facility is 

surrounded by basalt bedrock, a tight rock formation that makes locating free product very 

difficult. Moreover, hastily planned attempts to recover free product may increase the possibility 

of further groundwater contamination by creating conduits in the basalt rock. For these reasons, 

the AOC outlines a careful and thoughtful approach to investigate remedial alternatives that are 

feasible in this unique setting. Section 6 of the SOW will require Navy and DLA to investigate 

and remediate potential releases from the Facility to the maximum extent practicable.

EPA and DOH agree with the commenters that the groundwater monitoring network and flow 

models are vital to understanding the threat the Facility may pose to groundwater and to protect 

the area’s drinking water sources. EPA and DOH are making efforts to increase our 

understanding of groundwater flow in the area and will require Navy and DLA to install 

additional monitoring wells around the Facility as described in Section 7.3 of the SOW. 

The existing schedule also recognizes that the development of a groundwater flow model will be 

challenging in these specific geologic conditions. Moreover, the development of an accurate and 

informative groundwater flow model is best created through an iterative approach of drilling 

monitoring wells, analyzing subsequent data and then repeating this process. During this study 

phase, interim data results will also be made available to the public. Based on this process, 

within approximately twenty-four (24) months of the effective date of the AOC, a groundwater 

flow model report (Section 7.1 of AOC) and additions to the groundwater monitoring well 

network (Section 7.3 of the AOC) will be completed. 

3. Schedule for Upgrading Tanks

Numerous commenters stated that all Tanks should be upgraded immediately or within a time 

period shorter than what the AOC and SOW require. Some commenters stated that the Facility 

should not be allowed to operate until the Tanks have been upgraded. Other commenters 

questioned why the particular schedule for implementation in the SOW was selected. At least 

one commenter stated that the deadline for implementing tank rehabilitation should be reduced to 

five years or a similarly short period. 

Response:

Navy and DLA have committed to an aggressive and enforceable schedule for upgrading the 

Tanks at the Facility under this negotiated agreement. Prior to the AOC, the Tanks would 

undergo an inspection, repair and maintenance cycle that would take approximately four years 
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for three tanks without regulatory scrutiny or incorporating significant technological innovation. 

The SOW, however, will require that all in-service Tanks include the Best Available Practicable 

Technology (“BAPT”) within approximately twenty (20) years after a study period of less than 

two years. Furthermore, the SOW clearly stipulates that Tanks which have not been upgraded 

within the designated time period will not be allowed to be used by Navy and DLA until they 

receive BAPT. Therefore, the AOC requires that the Navy and DLA must incorporate ambitious, 

yet achievable additional requirements into their current processes despite significant physical 

constraints, in order to continue to utilize this strategic military asset. Furthermore, the revised 

AOC includes a commitment that Navy and DLA will “install BAPT as soon as reasonably 

practicable while maintaining quality and performance requirements.” 

 

Before proposing the AOC on June 1, 2015 the Regulatory Agencies considered numerous 

factors affecting Tank upgrades and extensively negotiated the Tank upgrade schedule 

requirements with Navy and DLA. For example, the Regulatory Agencies considered the current 

rate of maintenance, upgrades, and repairs at the Facility, the likelihood that BAPT will create 

more complex requirements and a higher degree of quality assurance, and the time necessary to 

select contractors to perform the work. In response to public concerns, the Regulatory Agencies 

reviewed options for schedule improvements with Navy and DLA and further evaluated the 

urgency of accelerating work. Based on these discussions, input from the Regulatory Agencies’

industry experts, and further input provided by Navy, the Regulatory Agencies concluded that 

the original schedule is appropriate.

Given the available historical data and current groundwater and drinking water monitoring 

results reviewed by EPA and DOH, the Regulatory Agencies believe the work outlined in the 

SOW will enable Navy and DLA to continue to operate the Facility without compromising 

drinking water safety.

4. Schedule for Structural Assessment and Risk Assessment

Other specific topics that commenters said lacked urgency included the implementation of a 

structural assessment of the Tanks and the development of a risk and vulnerability assessment. 

BWS stated that both nondestructive and destructive testing could be conducted immediately. 

Some commenters noted that a risk and vulnerability assessment for the Facility, as described in 

Section 8 of the proposed AOC, should be completed sooner.

Response: 

EPA and DOH agree with the commenters that developing a better understanding of the 

structural integrity of the Tanks and the level of risk the Facility poses to groundwater and 

drinking water resources is crucial. These two topics are addressed in the SOW and will inform 

much of the future work to be performed under the AOC. EPA and DOH note that the SOW 

requires Navy and DLA to submit a report on corrosion and metal fatigue within 60 days of the 

effective date of the AOC. Plans regarding a risk and vulnerability assessment are due to 

Regulatory Agencies within approximately 120 days of the effective date of the AOC. These 

existing deliverables reflect the importance and urgency of obtaining this information.
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B. Threats to Drinking Water and Groundwater

1. Risk of Catastrophic Event Leading To Release

Commenters expressed concerns about the threat to groundwater and drinking water that could 

occur if there was a catastrophic or sudden large scale release from the Tanks and the effect such 

a release would have on Oahu’s water resources. 

Response:

The Regulatory Agencies agree that risk determination is a critical component of decision 

making. Under the AOC, Navy and DLA are required to perform a comprehensive risk and 

vulnerability assessment that evaluates the likelihood that catastrophic events such as 

earthquakes could cause a major fuel release. This assessment further relies on understanding 

groundwater flow patterns as well as contaminant fate and transport once fuel is released into the 

environment, and will be completed within the first two to three years of implementation. The 

Regulatory Agencies also consulted with industry technical experts whose initial evaluation 

indicates that a catastrophic release from the Tanks is unlikely.

Seismic activity would appear to be the most likely natural event that could potentially cause a 

large scale release. While negotiating the AOC, the Regulatory Agencies reviewed earthquake 

risk information for Honolulu, and the Regulatory Agencies note that the seismic hazard is 

moderate. However, the risk of catastrophic release from seismic activity at the Facility from the 

Tank structures is comprised of both seismic hazard and the vulnerability of the Tank structures. 

The Regulatory Agencies have considered the potential for a catastrophic release as a result of 

seismic hazard and our preliminary assessment is that it does not present a significant threat of 

failure to the Tanks or piping within the Facility. (see Catastrophic Release 

Memo_PEMY_15SEP15.pdf in Administrative Record)

The nature of the construction and location of the Facility would also likely minimize 

catastrophic threats to the aquifer. The Tanks consist of a welded steel containment vessel, 

encased in 2.5 to 4 feet of concrete, and surrounded by basalt rock. In the event of a release, the 

concrete surrounding the Tanks’ shells could limit the flow paths of leaked fuel before it 

encounters the basalt. Additionally, each of the Tanks are supported by a 20 foot thick concrete 

foundation significantly limiting the vertical precipitation recharge directly beneath the Facility. 

Therefore, little recharge occurs through rock directly below the Facility, minimizing the 

potential for dissolved-phase contamination migration to the aquifer below.

The Risk/Vulnerability Analysis required under section 8 of the SOW requires Navy and DLA to 

further examine and assess the risk of catastrophic release from seismic events as well as

mechanical and human error. The analysis will also assess the effectiveness of Navy and DLA’s 

risk mitigation procedures and protective measures. If these assessments determine that the risk 

is much greater than expected, the Regulatory Agencies will pursue any necessary changes to the 

work to address these factors.

2. Groundwater Monitoring

Commenters also stated that more monitoring wells should be installed in the areas around the 

Facility.

Response:
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The implementation of the AOC will result in an increase in groundwater monitoring locations.

There are currently seven groundwater monitoring wells operated by Navy located at or near the 

Red Hill Facility. Samples are collected from these GW monitoring wells every calendar quarter.

The AOC requires Navy to evaluate the need for additional monitoring wells in two phases. In 

the first phase Navy will develop a scope of work, subject to the Regulatory Agencies’ approval, 

that addresses the need for additional monitoring wells to support the development and 

refinement of groundwater flow models. In addition to providing data for the modeling efforts, 

these monitoring wells will be incorporated into the long-term monitoring well network for 

detection of contaminants and to determine whether any existing contamination in the subsurface 

is migrating towards drinking water shafts that are used as sources of water on Oahu.

The second phase will occur upon completion of the groundwater flow model report. Navy will 

use the results of this report to further evaluate and refine the groundwater monitoring network.

This effort will occur within four years of the effective date of the AOC.

In response to the public comments we received, the Regulatory Agencies modified a portion of 

the SOW pertaining to the installation of additional groundwater monitoring wells. Specifically, 

Section 7.3.2 now includes a commitment that “if gaps in groundwater monitoring well data are 

identified and validated, Navy and DLA will begin installation of additional monitoring wells as 

soon as possible.” 

3. Effect on Aquifer

Commenters raised concerns that past releases or similar releases in the future from Red Hill will 

affect the use of the aquifer/drinking water as well. Some commenters want more immediate 

action to protect the aquifer from damage. Some highlighted the vital nature of this drinking 

water aquifer and its classification as a sole-source aquifer as necessitating other actions to 

protect it.

Response:

The Regulatory Agencies believe the threat to the current BWS drinking water sources from Red 

Hill is low. Current data and analysis indicate that the BWS Halawa Shaft and Moanalua wells 

are not likely in the predominant flow path if a release were to occur from the Facility.

The contaminants present in the ground under the Facility have not prevented the use of any 

drinking water wells on Oahu. The only drinking water supply well that has detected any 

contaminants from the Facility is Navy’s Red Hill Shaft. These low-level detections were below 

drinking water standards and have been isolated and sporadic. The most recent data does not 

indicate the presence of contamination and there does not appear to be a discernable trend or 

pattern to previous detections. Regular samples taken at the two other closest drinking water 

wells operated by BWS at Halawa and Moanalua have never detected any petroleum 

contamination.

The AOC enables the Parties to make informed decisions about the appropriate improvements 

and remedial actions that should be undertaken, thereby reducing the risk that the aquifer could 

be contaminated by petroleum releases from the Facility.
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In the unlikely event that drinking water supplies were contaminated, a Navy drinking water 

pump station with an infiltration gallery that extends to within 1,600 feet of Tanks 1 and 2 would 

be impacted first. The nearest BWS drinking water wells are one mile or more miles from the 

Tanks at the Facility. If exceedances of drinking water quality standards were observed, readily 

available techniques that strip the contamination from the water before it enters the drinking 

water supply system using activated carbon filters may be possible methods of treatment. In fact, 

the BWS already performs this type of treatment at other supply wells on Oahu (see “Water 

Quality FAQ,”on the BWS website, “Does the Board of Water Supply treat water?”,

http://www.hbws.org/cssweb/display.cfm?sid=1163#ques5). Navy and DLA, or any other party, 

found responsible for contaminating drinking water supplies is liable for the cost of treatment.

However, the goal of the AOC is to prevent releases of fuel into the subsurface so that treatment 

of water supplies is not necessary.

C Public Transparency

1. Public Accountability

Some commenters indicated that the AOC limits public involvement in the decision making 

process for the work to be performed. Some commenters also indicated that implementation of 

the work performed pursuant to the AOC lacked transparency. 

Response:

The AOC provides for public involvement during its implementation. This AOC and supporting 

documentation have been made available to the public for review and comment. In addition, the 

updated SOW requires the parties to the AOC to update the public at least annually on progress 

being made to complete the tasks required by the AOC.

2. Availability of All Documents

Commenters stated that all documents generated as a result of work required under the AOC be 

made publicly available. 

Response:

Summaries of all final reports developed by Navy and DLA will be made available to the public. 

The Regulatory Agencies will also make all final deliverables available to the public to the 

extent such documents are not protected from public disclosure. Specifically, some deliverables 

may not be available for public review due to legal restrictions regarding the disclosure of 

procurement sensitive information, confidential business information, national security purposes 

and other legal concerns.

3. Adding Additional Parties to the AOC

Some Commenters requested that additional organizations be identified as Parties to the AOC.

Response:

The AOC is a legal instrument between and among Navy, DLA, DOH and EPA. It is 

inappropriate for non-regulatory organizations to be parties to the AOC. The Regulatory 

Agencies, DOH and EPA represent the interests of the public under State and Federal law. The 
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Regulatory Agencies are committed to working with key stakeholders and other interested 

organizations to seek information, advice, and opinions throughout implementation of the AOC.

4. Funding of Work to be Performed

Commenters were concerned that schedules in the AOC are slowed unnecessarily by potential 

funding constraints. The BWS in its comments states that “the AOC should be revised to... 

require Navy and DLA to arrange necessary funding within no more than six months from the 

signing of the AOC” for important activities and that “[t]he funding commitment should be 

sufficient to complete the activities within five years (or a similarly short time period) after 

signing of the AOC....” 

Response:

Navy and DLA are required to comply with federal budgeting and procurement law which may 

limit the development of new projects. Under the Anti-deficiency Act, a federal government 

organization cannot involve the government in any obligation to pay money before funds have 

been appropriated by Congress for that purpose, unless otherwise allowed by law. 31 U.S.C. § 

1341(a)(1)(B). The AOC cannot override existing law. The AOC was written to provide an 

incentive to Navy to obtain the necessary funding as quickly as possible, but by law, Navy

cannot commit funds to a project until those funds have been appropriated. One of the purposes

of the AOC is to provide a framework that allows Navy and DLA to anticipate the costs of 

complying with its requirements so that the process to obtain necessary funding can begin as 

quickly as possible. Once the AOC is implemented, Navy and DLA can identify specific tasks 

that need to be accomplished and request subsequent funding from Congress.

D. Compliance with State and Federal Regulations 

1. Compliance with Regulations versus AOC Requirements

Commenters thought that the AOC releases Navy and DLA from existing requirements, and that 

the Tanks are not currently in compliance with state and federal requirements. Commenters were 

concerned that the AOC does not adequately require Navy to comply with existing regulatory 

requirements.

Response:

The AOC requires Navy and DLA to continue to meet all applicable State regulatory 

requirements, including existing State UST regulations – and it creates new requirements above 

and beyond existing requirements. The AOC also gives the Regulatory Agencies additional 

authority to oversee decisions related to the Facility’s operations, infrastructure upgrades, and 

repairs. 

To comply with the new federal UST regulations (effective October 13, 2015) Navy and DLA 

must demonstrate to the Regulatory Agencies that they either currently satisfy, or will satisfy, the 

new requirements for operator training, installation and regular testing of spill and overfill 

protection, monthly walk-through inspections and enhanced recordkeeping. The State of 

Hawaii’s UST program has “State Program Approval” and it will need to revise the Hawaii 

Administrative Rules to be as stringent as the federal UST regulations. The Facility will also be 

subject to regular inspections by the Regulatory Agencies. 
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Based on our knowledge of current practices at the Facility, Navy may already implement many 

of the applicable requirements outlined in the new UST regulations. For example fieldconstructed tanks will be required to comply with new release detection requirements, and the 

regulations provide facilities with a number of options to meet these requirements. These options 

include tank tightness testing, automatic tank gauging, inventory control, groundwater and vapor 

monitoring, or other methods approved by the implementing agency. Navy currently uses a 

combination of three release detection methods, annual tank tightness testing, continuous tank 

gauging, and monthly vapor monitoring. The new regulations would require the Tanks at the 

Facility to only undergo annual tank tightness testing (see 80 Federal Register 41668, July 15, 

2015), however Navy already exceeds this requirement by conducting tank tightness testing, and 

two additional release detection procedures.

2. Negotiated Agreement vs. Unilateral Action

Some commenters questioned why the Regulatory Agencies pursued a negotiated agreement in 

response to releases at the Facility rather than unilateral action.

Response:

As a result of the fuel release from Tank 5 at the Facility in January 2014, the Regulatory 

Agencies began negotiating this administrative order with Navy and DLA to address past fuel 

releases and minimize the likelihood of future releases. In general, a negotiated agreement such 

as an AOC is appropriate and often preferable in instances where a regulated entity is willing to 

cooperate with the regulatory agencies to achieve the appropriate environmental goals. Where 

respondents to a regulatory enforcement action have demonstrated an ability to work with the 

Regulatory Agencies to resolve complex environmental challenges, such as the Navy and DLA 

have thus far, an AOC is highly preferable. The AOC provides the Regulatory Agencies with a 

vehicle to develop the type of customized and innovative solutions that a one–of-a-kind facility 

like this Facility demands. The AOC is specifically structured to establish a process for 

collecting the necessary data and evaluating a variety of technical options to address past fuel 

releases and prevent future releases.

3. Corrosion Protection of Tanks at the Facility

Some commenters stated that corrosion protection, such as cathodic protection, should be 

installed on the Tanks at the Facility immediately.

Response:

Preventing corrosion to the Tanks at the Facility is difficult. If corrosion prevention systems are 

not designed or implemented properly, these systems may exacerbate the rate of corrosion to the 

Tanks. Further study is needed to evaluate whether corrosion prevention systems, such as 

cathodic protection, can reliably prevent or retard corrosion to the Tanks at the Facility.

The new UST regulations do not require corrosion protection requirements, including cathodic 

protection, for the Tanks at the Facility or similarly constructed tanks. Metal corrosion control 

known as cathodic protection is only required under certain circumstances. Because the Tanks at 

the Facility are encased in concrete, cathodic protection is not required or effective at reducing 

corrosion of the Red Hill tanks. (80 Federal Register 41595, July 15, 2015).
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Nevertheless, corrosion protection is a vital aspect to the continued safe and long-term operation 

of the Facility. The AOC requires Navy and DLA to re-examine and improve their current Tank 

inspection, maintenance, and repair procedures (Section 2 of the SOW) and to perform a 

comprehensive evaluation of the corrosion and metal fatigue for the Tanks, including destructive 

testing of a representative samples of the Tanks (Section 5 of the SOW).

4. Secondary Containment of the Tanks at the Facility

Some commenters stated that Navy and DLA should immediately install secondary containment 

in all of the Tanks and associated piping at the Facility because it is an industry standard.

Response:

The new 2015 UST regulations require secondary containment of tanks and piping only for new 

and replaced field-constructed tanks 50,000 gallons or less in volume. Although secondary 

containment has become the industry standard for the vast majority of much smaller USTs, the 

size and structure of Tanks at the Facility are very unique. Field-constructed tanks larger than 

50,000 gallons, such as the 12.5 million gallon Tanks at the Facility, are not required to install 

secondary containment. 

Section 3 of the SOW nevertheless requires Navy and DLA to identify and evaluate the various 

tank upgrade alternatives, including secondary containment, which can be applied to the inservice Tanks at the Facility. However, in order to ensure the successful operation of such a major 

upgrade, further studies of the existing tank structure and engineering feasibility studies are 

necessary. If not designed and constructed properly, a tank retrofit could increase the risk of future 

fuel releases.

III. Conclusion

Universally, public comments sought aggressive actions to address past fuel releases and prevent 

future releases to ensure protection of public drinking water supplies. In response to public 

comment, the Regulatory Agencies negotiated modifications to eight areas of the SOW to 

address a variety of public comments. Many public comments also related to specific aspects of 

the work that will be performed. Those technical requirements will be developed under the 

various tasks in the AOC, and public comments related to the details of the work will be 

considered during the development of the work plan deliverables required under the AOC. In 

addition, the Regulatory Agencies sought additional expert input. Taking into account the public 

comments received, the Regulatory Agencies have concluded that signing the revised AOC is the 

best way to ensure protection of public health and the environment while Navy and DLA 

continue to utilize the Facility.

Implementing the right solution for the Facility is a significant engineering challenge. It will 

require technologies and procedures specifically designed for the Facility. The initial phases of 

the AOC focus on accomplishing the extremely complex and critical work of evaluating, 

designing, and selecting cleanup specifics and upgrade technologies for the massive, uniquely 

engineered Tanks, which are believed to be the largest underground fuel tanks in the United 

States. Implementing an effective long-term solution will take time to ensure its success. 
15

However, much work will also be conducted within the first two years of the AOC to ensure that 

the Facility is operated safely while a long-term solution is implemented. The schedule requires 

Navy and the DLA to hit the ground running, submitting within 120 days multiple plans ranging 

from improving inspection protocols and assessing groundwater contamination risk to addressing 

cleanup methods and tank upgrade alternatives. In all, the Navy and DLA are to complete 

approximately forty (40) tasks within the first three years. The Regulatory Agencies anticipate 

opportunities to accelerate the current tank upgrade schedule, and the agreement includes 

penalties for Navy and DLA if current schedules are not met. Ultimately, tanks not upgraded by 

the end of the current schedule will have to be taken out of service.

The AOC is flexible and work requirements will be tailored to the findings from studies of the 

Facility and the surrounding environment conducted under the AOC. In addition, the Regulatory 

Agencies each reserve their rights to take additional actions if they determine, together or 

separately, that the AOC is not sufficiently protective. Existing regulations also require Navy and 

DLA to respond immediately to any emergency situation encountered at the Facility.

Currently, the drinking water is safe for human consumption for both BWS customers and 

military communities. The water for BWS customers and military communities is being tested 

every three months to assure the water is safe. Contamination related to the Facility has never 

been detected in the BWS drinking water sources.

Initial evaluations from technical experts conclude that a catastrophic release from the Facility 

into groundwater is very unlikely. The tanks are constructed in solid rock and consist of 2.5 to 4 

feet thick reinforced concrete and a steel plate. Major earth movement that would rupture a Tank 

at the Facility is highly unlikely. The most likely catastrophic release scenario would be a piping 

failure with a release into the lower access tunnel. This vulnerability is being addressed by Navy 

and DLA with the installation of oil tight doors in the tunnel system, along with a new fire 

suppression system to reduce the threat of a release caused by fire. Furthermore, the piping in the 

lower tunnel system is not buried or concealed and is visually inspected daily.

Similarly, initial evaluations have concluded that migration of existing Facility contamination to 

the BWS wells is also unlikely. The predominant direction of groundwater flow beneath the 

Facility does not appear to be towards the nearby BWS Halawa Shaft or the Moanalua wells. 

Additionally, over time, naturally occurring bacteria typically degrade subsurface petroleum.

Petroleum related contamination can be easily and reliably removed from water. In the unlikely 

event petroleum from the Facility reaches drinking water sources, technologies such as granular 

activated carbon can be used to remove contamination. In addition, if fuel from the Facility 

reaches drinking water supplies, Navy and DLA will be liable for the cost of any treatment 

required.

Under this AOC, the Regulatory Agencies have been effective in negotiating sweeping remedial 

and preventative measures to effectuate comprehensive cleanup, contingency readiness, and 

infrastructure upgrades at the Facility. This agreement is designed to address past releases and 

prevent future releases with an aggressive and phased performance schedule, backed by stringent 

penalty provisions and regulatory oversight, to ensure the ongoing protection of public health 

and the environment.