On January 11, 1st Circuit Judge Jeffrey Crabtree will hold a hearing on the Sierra Club of Hawai‘i’s motion for summary judgment regarding a complaint it filed last October against the state Department of Health.
The group seeks to force the department to produce records it holds regarding a fuel spill — or spills — last year at Hotel Pier in Pearl Harbor that appear to be related to the U.S. Navy’s Red Hill bulk fuel storage facility.
In September, the group requested records — test reports, correspondence, etc. — held by various divisions within the department to determine whether and how the Hotel Pier spill was related to the Red Hill facility. The Sierra Club, as well as the Honolulu Board of Water Supply, initiated a contested case hearing over the Navy’s application for an operating permit for the facility.
That hearing concluded months ago, but the DOH’s own Environmental Health Administration filed a motion in early November to reopen the case after a Navy official revealed that the military withheld crucial information regarding the system’s design and corrosion history.
The massive contamination in late November of the Navy’s water system with fuel has superseded the controversy over the Red Hill operating permit, especially since the DOH issued an emergency order December 6 calling for operations to cease, the tanks with fuel in them to be drained, and for design and operational flaws to be identified and fixed.
Late last month, hearing officer and state deputy attorney general David Day issued his recommendation that the Navy be required to comply with the DOH’s order. Shortly thereafter, the Navy filed its objections to Day’s proposed findings of fact, conclusions of law, and decision and order in the contested case over the DOH’s emergency order.
DOH deputy director Marian Tsuji is expected to make a decision on that case this month.
In the meantime, the Sierra Club and the Health Department are scheduled to argue before Judge Crabtree the extent to which the group is entitled to receive information regarding the Hotel Pier fuel spills.
In the Sierra Club’s motion, the group’s attorney, David Kimo Frankel, cited federal laws regarding removal and remedial action at federal facilities, 42 USC § 9620(a)(4), as well as the operation of underground storage tanks, 42 U.S.C. § 6991f(a). Both laws require federal agencies to comply with state law.
“The federal government has waived sovereign immunity and subjected itself to state regulation,” Frankel wrote. He added that state laws require facility operators to report releases of hazardous substances and that information on those releases be made available to the public.
“It is difficult to fathom how the disclosure of a fuel spill violates any federal law or imperils national security. We live in a democratic society; not a totalitarian one,” he wrote.
If the court finds that some of the documents the Sierra Club seeks should not be disclosed, Frankel continued, “it should not allow the Department of Health to unilaterally withhold them.” Instead, he argued, the court should either order documents to be produced for review by a judge or it should produce a Vaughn index, describing the documents being withheld from review and providing the reason for withholding them.
In response to the Sierra Club’s motion, attorneys for the Health Department agreed that it is required to provide access to government records, but argued that the state Sunshine Law provides exceptions to protect certain kinds of information from disclosure. “[P]rotecting those types of documents also arguably serves the public interest,” they wrote.
They noted that the department presented to the Navy records responsive to the Sierra Club’s request, “redactions were made, and the redacted copies of those documents delivered to the Sierra Club.”
They also state that 10 U.S.C. § 130e, “Treatment under Freedom of Information Act of certain critical infrastructure security information,” allows the Secretary of Defense to exempt such information from disclosure if it makes a written determination that the information is “critical infrastructure security information” and that public interest in disclosing the information does not outweigh reasons for withholding it.
“Federal law simply could not be more explicit about the degree to which critical infrastructure security information is to be protected,” the DOH attorneys wrote. They added that the code also states that any state law that authorizes disclosure of critical infrastructure security information does not apply when the Secretary of Defense has made a written determination to withhold it.
In addition, the attorneys cited part of a state Office of Information Practices opinion (Letter No. 07-05) regarding the disclosure of information that would frustrate a government function.
The opinion states, “To the extent that public disclosure of information about the physical security of critical energy infrastructure would compromise the security of that infrastructure and expose it to hazards such as vandalism, copper or equipment theft, or other criminal activity, [a state agency] may withhold the information under the UIPA’s [Uniform Information Practices Act] exception for information whose disclosure would frustrate a legitimate government function.”
Given the federal restrictions and the UIPA exception, the DOH can’t provide the requested records “without appropriate review and redaction by the Navy,” the state attorneys concluded.
Last May, the Navy Facilities Engineering Command, Hawai‘i issued new instructions regarding its operational security program. Among the items listed in the Critical Information List is the Red Hill facility, water sources and infrastructure, and utility pipelines.
According to Frankel, the DOH has provided the Sierra Club with some information.
“We got a bunch of documents — downloaded from some DOD website. … And we did not get other documents. It looks like the leak lasted (I’m not clear that it is over yet) longer than we were led to believe. Supposedly, we are going to get some more documents. But the Sierra Club has acknowledged that DOH had its hands full with the fuel release (which took place after we filed our motion for summary judgment regarding the documents),” he stated in an email.
— Teresa Dawson
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