SB1584

SECTION 1. The legislature finds that significant calamities have resulted from the United States Department of the Navy's (Navy) incompetent management of the Red Hill Bulk Fuel Storage Facility (Red Hill facility) as described herein. Most alarmingly, the revelations that the Navy's stated promise in mid-2022 to close the Red Hill facility "within two years" has been undermined by unwarranted delays, diversions, and an attempt to subvert that promise by engaging in a new inter-governmental agreement, as known as the proposed 2023 Consent Order. Unless abandoned, the 2023 Consent Order would potentially transfer complete control over the closure of the Red Hill facility to three federal agencies -- the Navy, United States Environmental Protection Agency (EPA), and Defense Logistics Agency (DLA) within the United States Department of Defense (DOD) -- to the complete exclusion of any Hawaii state agency, the Honolulu Board of Water Supply (BWS), and any of the civil society organizations and individual members of the public who have responsibly expressed important dissent to the actions of the Navy and other federal agencies.

The legislature further finds that the storage tanks at the Red Hill facility are the largest of its kind in the United States, and sit only one hundred feet above one of Oahu's main aquifers, and therefore, any leakage therefrom will affect the water supply for over seventy per cent of the people residing in the area from Halawa to Maunalua in Hawaii Kai.

The errors and omissions committed by the Navy in its management of the Red Hill facility includes the following:

(1) In 2014, twenty-seven thousand gallons of jet fuel leaked from one of the underground storage tanks;

(2) In late 2020, fire suppressant foam leaked from another part of the Red Hill facility. In response to inquiries from the department of health regarding the incident, the Navy stated that no firefighting foam had been released. However, the Navy subsequently admitted that five thousand gallons of fire suppressant liquid were released on September 29, 2020, after an "inadvertent trigger" of the fire suppression system and that the released liquid was water from a pipeline that previously contained a toxic fire suppressant concentrate known as aqueous film-forming foam (AFFF);

(3) In mid-2022, residents near the Red Hill facility reported smell of fuel in their water. The department of health stated that preliminary reports show, among other things, petroleum in the water. More recently, another shaft at the facility was discovered to be contaminated with diesel, causing both shafts to shut down;

(4) In November 2022, one thousand one hundred gallons of AFFF leaked from a storage tank and into the ground. While Navy officials declared that the water is safe, the Navy is unsure of the cause of the fire suppressant leak and claims that this incident will further delay the defueling of the fuel tanks. AFFF, which includes per- and polyfluoroalkyl substances (PFAS) otherwise called "forever chemicals", is known to cause cancer, thyroid disease, reproductive issues, and other serious health effects at extremely minute quantities. Interim EPA guidelines for the most-studied types of PFAS place "safe" levels for PFAS in drinking water at parts per quadrillion, equivalent to less than one drop in twenty Olympic-sized swimming pools. Furthermore, PFAS does not break down naturally, meaning that any spilled PFAS that is not immediately captured and contained will migrate through the environment for centuries;

(5) Additionally, the Navy withheld information that these "forever chemicals" were in groundwater samples in 2020 and 2021, and continues to refuse to release video footage of the latest spill;

(6) In early 2022, the DOD has committed to shut down the fuel tanks at the Red Hill facility within two years; however, the tanks continue to leak, and the BWS is unsure whether the key water-source wells can ever be brought back online. A report released in June 2022 states that the Navy was negligent in the maintenance of the fuel tanks, resulting in leaks that were preventable. The Navy has begun to defuel some pipelines; however, is now expressly asserting that it cannot have the fuel tanks closed by 2027, and is proposing that the tanks stay in place for potential use in the future. These proposals constitute serious backtracking on, and prospective breach of, promises made by the Navy and the Biden administration to the people of Hawaii.

Now, the Navy and the EPA are losing all of their remaining credibility. Fortunately, the public now knows, albeit only generally, of their dishonesty and bad faith. As of the beginning of 2023, one year after thousands of residents in the Pearl Harbor area drank fuel-tainted water, the EPA and the military have drafted a new agreement, i.e., a proposed 2023 Consent Order, whereby the EPA would purport to oversee and impose requirements on the Navy and DLA in the actions that are supposed to result in the closure of the Red Hill facility. However, the proposed 2023 Consent Order has been negotiated in secrecy. EPA did not consult with BWS or community members who, according to the Sierra Club and its attorneys at EarthJustice, have been sounding the alarm over the Navy's Red Hill facility for years. Moreover, many of the documents used in the negotiation have been kept secret from the public. The Navy will likely try to use the 2023 Consent Order to continue to exclude the community from the decision-making process on the defueling, closure, and clean-up processes at the Red Hill facility.

The legislature further finds the proposed 2023 Consent Order is utterly inadequate. It purports to recite a statement of relevant facts and points of law, although the agreement expressly denies that these recitations should ever be binding on the Navy, DLA, or EPA. According to the public notice issued by the EPA, the proposed 2023 Consent Order recites a series of actions on how the Navy and DLA will purportedly safely defuel and close the Red Hill facility and properly operate and maintain its drinking water system. However, the details of these terms have not been released to the public. Under the voluntary regulatory structure of the 2023 Consent Order, regulators would set deadlines only for the Navy to disregard without any apparent consequences, and there would be no transparency to the public, despite the matter having significant effect on the health and safety of the residents of Hawaii.

Federal statutes and regulations prohibit restrictive non-disclosure agreements in government contracts and in government-funded businesses. The Federal Acquisition Regulation, which is the primary regulation used by federal government agencies when acquiring supplies and services through appropriated funds, specifically states:

... Government agencies are not permitted to use funds appropriated (or otherwise made available) for contracts with an entity that requires employees or subcontractors of such entity seeking to report waste, fraud, or abuse to sign internal confidentiality agreements or statements prohibiting or otherwise restricting such employees or subcontractors from lawfully reporting such waste, fraud, or abuse to a designated investigative or law enforcement representative of a Federal department or agency authorized to receive such information.

42 C.F.R. § 52.203-18. There are also multiple federal laws that include clauses that prohibit restrictions on federal employees to communicate to Congress or file whistleblower claims. For example, the Consolidated Appropriations Act of 2016 provides that:

None of the funds appropriated or otherwise made available by this or any other Act may be available for a contract, grant, or cooperative agreement with an entity that requires employees or contractors of such entity seeking to report fraud, waste, or abuse to sign internal confidentiality agreements or statements prohibiting or otherwise restricting such employees or contractors from lawfully reporting such waste, fraud, or abuse to a designated investigative or law enforcement representative of a Federal department or agency authorized to receive such information.

P.L. 114-113, § 743(a).

The Whistleblower Protection Enhancement Act of 2012, which applies only to federal employees, also contains provisions protecting whistleblower disclosures to Congress and the Inspectors General. Under the Whistleblower Protection Enhancement Act, any nondisclosure policy, form, or agreement from the government is required to include the following statement:

These provisions are consistent with and do not supersede, conflict with, or otherwise alter the employee obligations, rights, or liabilities created by existing statute or Executive order relating to (1) classified information, (2) communications to Congress, (3) the reporting to an Inspector General of a violation of any law, rule, or regulation, or mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety, or (4) any other whistleblower protection.

P.L. 112-199, §104(a)(2).

The belated revelations of internal agreements among government agencies, i.e., the consent order pertaining to the environmental damage and continuing risks of future harm in relation to the Red Hill facility that appear to be detrimental to the public interest, prompts the need to remedy the policies and practices of the State and county governments to enter into secret agreements with federal, State, and county government agencies and private individuals where secrecy is unwarranted.

Therefore, the purpose of this Act is to:

(1) Establish as null and void, any nondisclosure, confidentiality, or non-disparagement clause in any agreement entered into by any government agency, that prohibits employees of the government agency or other parties from disclosing to the public certain information pertaining to the Red Hill facility;

(2) Declare as null and void, the 2023 Consent Order pertaining to the defueling and closure of the facility, proposed to be entered by the EPA, Navy, and DLA;

(3) Require the EPA, Navy, DLA, and the Hawaii department of health to enter into a new consent order in conformance with certain requirements pertaining to transparency; and

(4) Establish that any person who discloses information on threats to public safety arising out of or related to the Red Hill Fuel Facility shall be protected by all relevant existing laws.

SECTION 2. (a) Any nondisclosure, confidentiality, or non-disparagement clause in any agreement entered into by any government agency that prohibits employees of the government agency or other parties from disclosing to the public:

(1) Facts that pertain to the threat to public safety regarding the safe and timely shutdown of the Red Hill Bulk Fuel Storage Facility; or

(2) Any attempts made by any person to incorporate the nondisclosure, confidentiality, or non-disparagement clause into the agreement;

shall be null and void.

(b) For the purposes of this section, "government agency" means any department, division, board, commission, public corporation, or other agency or instrumentality of the State or of any of its political subdivisions.

SECTION 3. (a) The defueling, closure, and Joint Base Pearl Harbor-Hickam drinking water system administrative consent order, EPA docket number RCRA 7003-R9-2023-001, document identification number EPA-R09-RCRA-2022-0970-0001 (2023 Consent Order), proposed to be entered into by the United States Environmental Protection Agency Region 9 (EPA Region 9); United States Department of the Navy (Navy); and Defense Logistics Agency (DLA), shall be null and void.

(b) EPA Region 9, Navy, DLA, and the Hawaii department of Health shall, within sixty days of the effective date of this Act, enter into a new defueling, closure, and Joint Base Pearl Harbor-Hickam drinking water system administrative consent order (New 2023 Consent Order) in conformance with the following requirements:

(1) The New 2023 Consent Order shall:

(A) Include the Hawaii department of health as a party; and

(B) Provide full transparency of details related to the defueling and permanent closure of the storage tanks at the Red Hill Bulk Fuel Storage Facility and all related infrastructure;

(2) As part of formal negotiations and approval process, the parties shall establish a community oversight committee that shall advise the parties on all issues relating to the defueling, closure, and clean-up of, and remediation of contamination at, the Red Hill Bulk Fuel Storage Facility, including complete remediation of all aqueous film-forming foam (AFFF), including per- and polyfluoroalkyl substances (PFAS) otherwise called "forever chemicals";

(3) All data, documents, and other information referenced in, or used or replied upon by the parties in negotiating the New 2023 Consent Order shall be made available to the public for review; provided that any data, documents, and other information that the parties deem confidential or would require to be kept confidential for the safe and timely permanent closure of the Red Hill Bulk Fuel Storage Facility, shall be submitted for review by for determination as to whether the data, documents, and other information:

(A) Shall be made available to the public based on various reasons, including the possibility that non-disclosure may cause serious and imminent threat to the public; or

(B) Needs to be kept confidential for the safe and timely permanent closure of the Red Hill Bulk Fuel Storage Facility.

All final decisions rendered by the shall be subject to review and approval by the governor with veto authority by the legislature;

(4) The community oversight committee shall be parties to all negotiations, and its opinion shall have weight equal to the EPA, Navy, DLA, and the Hawaii department of health, and any other government agency that may be included as a party in the New 2023 Consent Order; and

(5) As a condition precedent to the execution of the New 2023 Consent Order, the negotiation process shall be transparent, and include a robust and effective community oversight process that includes participation by actively functioning state agencies and private organizations that represents impacted communities, including specifically, the Honolulu Board of Water Supply, Sierra Club, Oahu Water Protectors, and families that were poisoned, to ensure transparency.

SECTION 4. Any person who discloses to the public, any information on any existing or future threat to public safety of the residents of Hawaii arising out of or related to the Red Hill Bulk Fuel Storage Facility shall be protected from civil and criminal liability to the fullest extent of all relevant existing laws, including part V of chapter 378, Hawaii Revised Statutes.

SECTION 5. If any provision of this Act, or the application thereof to any person or circumstance, is held invalid, the invalidity does not affect other provisions or applications of the Act that can be given effect without the invalid provision or application, and to this end the provisions of this Act are severable.

SECTION 6. This Act shall take effect upon its approval.

INTRODUCED BY:	_____________________________

THE SENATE	S.B. NO.	1584
THIRTY-SECOND LEGISLATURE, 2023
STATE OF HAWAII