People don’t usually take a job with the state or county legislature with the idea that someday they would be recognized as a hero. Many people take jobs in the government to provide a meaningful role in public service. Public servants don’t usually make the headlines. However, sometimes one person rises to the top during a time of crisis and becomes that hero. In 2021 and 2022, that person was Ernie Lau.

Ernie is the chief engineer and manager of the Honolulu Board of Water Supply^[1], a semi-autonomous department within the City and County of Honolulu. It is given the power by the legislature to oversee the waterworks in their respective counties: “ Hawaiʻi Revised Statutes  §54-15  Powers and duties of board.  The board of water supply shall manage, control, and operate the waterworks of the county[.]”^[2]

In the early 1940s, as part of its war effort in the Pacific theater, the US Navy had built 20 fuel storage tanks into underground tubes in the Red Hill area of Honolulu, each one 25 stories tall, with a combined capacity of 250,000,000 gallons.^[3] At the time, there were no laws in place that required review of these tanks by the State. These tanks were only 100 feet above a key aquifer for the island of Oahu. An aquifer is a body of rock saturated with groundwater that can be tapped into by wells and provide fresh water to the surface of the land. See graphic.

For many years, it has been obvious that the Red Hill tanks were not designed and constructed to last for an extended time.  For example, below is a photo from a 2006 report done by a Navy contractor detailing the many patches needed on one of the tanks. The patches are shown on the wall and indicate the specific notation and fix by the contractor.^[4]

Ernie Lau took over the job as chief engineer and BWS manager in 2012^[5].  In 2014, the Navy reported a 27,000 gallons fuel spill from Red Hill fuel tanks, which the Navy and the State Department of Health’s Clean Water Branch investigated^[6].

The BWS was not part of the investigation as it is the State DOH that has the general authority to handle water pollution (“the director shall prevent, control, and abate water pollution in the State[.] HRS 342D-20^[7]. The BWS does not have this general authority; it only has specific authority to address waste disposal that would impact groundwater (like sewers and cesspool) and the use of pesticides in some cases^[8].  So after the big fuel spill in 2014, the Hawaiʻi Department of Health, on behalf of the state, and the US Environmental Protection Agency (EPA), on behalf of the federal government, brought an enforcement action against the Navy to address past fuel releases and minimize the likelihood of future releases. The parties entered into an Administrative Order on Consent (the AOC) “to establish a process for collecting the necessary data and evaluating the optimal technical solutions to address past fuel releases and prevent future releases.” ^[9] The AOC named “[t]he Board of Water Supply [as] a key stakeholder for work under the Administrative Order on Consent and is listed in the Administrative Order on Consent as a subject matter expert whose technical advice will be routinely sought during implementation of work under the Administrative Order on Consent.” Id.[/footnote]

So while the Honolulu BWS was not even a named signatory to the AOC, but was just on record as being a “subject matter expert” whose technical advice should be “routinely sought,” the BWS went far behind this tame role and provided a consistent and vigorous voice in holding up the Navy to clean water standards for Red Hill and all of Honolulu, as the aquifer underneath Red Hill feeds water supplies as far away as East Honolulu. Ernie Lau has spent the ensuing years investigating and demanding that the Navy to cooperate to save Hawaiʻi’s aquifers. The BWS worked with the Sierra Club of Hawai‘i, EPA, and DOH to help keep Hawaiʻi’s water free from the Red Hill fuel contaminants, but were met with delay, denial, and a series of unsuccessful alternative solutions from the Navy. Here are just a few examples:

In 2015 Lau submitted comments to both the EPA and DOH on their FAQs on the AOC in which he pointed out multiple instances where the AOC was weak or unfocused. Lau wrote: “The content is too vague, lacks the implementation of specific actions within set deadlines and unacceptably ignores in-depth participation by stakeholders and the public.”^[10] Specifically:

• In responding to the AOC’s rationalization of its extended timeline, Lau called them out: “BWS Comments: The FAQ response appears to indicate that the findings and conclusions of past tank studies are inadequate and need further study. We disagree. Available documents from 1998 and 2008 describe prior comprehensive, government funded engineering evaluations, commissioned by the Navy or OLA, of various options for repairing the Red Hill tanks, including options that may provide long-term …. The 2008 Enterprise Engineering report estimated that the recommended repair options would require less than 3.5 years to implement for all tanks. What evidence was used by EPA and DOH to decide that these studies, and associated individual tank assessments, are no longer valid? What is the engineering and scientific evidence that the Navy and DLA require at least 22 more years, on top of the previous 17 years of studies and analyses, to determine ways to rehabilitate the Red Hill tanks and pipelines to prevent fuel leaks?”
• In response to the AOC’s downplaying a “future catastrophic release of fuel,” which it rated as “very unlikely,” Lau responded “The Navy and DLA have not provided any documentation or analysis to indicate that the risk of large releases of fuel is currently at an acceptably low level. In fact, the prior history of leaks from corrosion, weld cracks, and human error argue against the proposition that the risk of a future catastrophic release is “very unlikely.” Ongoing corrosion and fatigue processes result in increased damage to the steel liner and associated piping. According to publically-availab!e documents, only some of the tank corrosion and crack damage has been repaired (Weston, 2007). As damage accumulates, it becomes increasingly likely that leakage will be more frequent and of a larger magnitude.”
• Last, Lau attacked the AOC’s glib statement that if any should occur, “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. … This technology is currently being used by the Board of Water Supply to remove pesticide-related contamination from water used for drinking water on Oahu.” Lau points out that “The FAQ response over-simplifies the ease with which drinking water supplies can be maintained in the presence of fuel contamination. The response is only appropriate for relatively small amounts of fuel contaminants dissolved into the groundwater, but the current conditions of the Red Hill Facility pose the risk of large releases of fuel.”
• If the fuel itself approaches or reaches a drinking water supply, such as the Navy’s Red Hill Shaft, making the water safe for drinking can be very complex and expensive, so the drinking water supply may have to be shut down for the months or years needed to design and construct the right kinds of treatment. Each Red Hill tank holds roughly 12 million gallons, so a leak of even a small percentage of the tank volume can result in the fuel itself moving significant distances through the subsurface. There are many different chemicals in the fuels that must be removed before the water is safe for drinking, certainly more than the few pesticides that are currently being removed, resulting in the need to devise more complex and expensive treatment processes. Perhaps more important is the fact that the concentrations of fuel chemicals can be much, much higher than the pesticide concentrations, which means that a treatment system designed for one set of contaminant levels may need to undergo expensive upgrades to safely handle unforeseen higher concentrations from future releases and migration of fuels or fuel chemicals.”

In 2017,  Rear Admiral J. V. Fuller complained to the City and County of Honolulu about FAQs on the Board of Water Supply’s site having to do with the Red Hill fuel leaks. The C&C administration sent the letter to the BWS, and here is a key quote from the letter, which was from Ernie Lau to the Honolulu Managing Director, responding to the Navy’s complaints:

• ORIGINAL BWS FAQ: “Why should I be concerned about Red Hill? I don’t live near Red Hill or get water from the wells in this area. The situation at Red Hill poses a threat to existing BWS wells that are presently not contaminated.”
• Navy letter on this FAQ: “This is inaccurate based on the facts. The EPA assessment is that Red Hill would not contaminate BWS wells.”
• BWS response letter: “The BWS is unaware of any EPA assessment that shows Red Hill would not contaminate BWS wells. Instead, studies indicate the situation at Red Hill poses a risk to existing BWS wells that are presently not contaminated. Studies conducted by the Navy show petroleum contamination in the ground water underneath the tanks towards one of the largest BWS water source, Halawa shaft.”^[11]

“Lau had been a lonely voice warning for years about the existential threat posed to Oahu’s aquifer by the Red Hill tanks; it’s notable that he’s one player in this drama never found to be lying.”^[12]In 2018 Lau wrote to the EPA: “The BWS strongly opposes these conclusions [to a recent report on Red Hill]. The report is granting acceptance to allowing fuel releases into our island’s sole source drinking water aquifer. This is absurd and unacceptable. Regulatory agencies charged with protecting our environment and drinking water resources should not approve this report….The BWS finds nearly all the conclusions presented are either unsupported or contradicted by available evidence, and that the report underestimates the risk to Oahu’s drinking water supply from RHBFSF fuel releases.”^[13]

While the legislature adopted a law requiring the DOH to adopt rules to ensure that pre-existing underground storage tanks were upgraded and operated to prevent leaks,  the final rules were not adopted by the DOH until 2018.^[14] In 2019, the Navy applied for a new state permit from the DOH for the Red Hill underground storage tanks despite not complying with all of the precautions set up in the AOC. The Sierra Club requested a contested case hearing before the DOH could issue these permits, but the DOH stalled in responding to the Sierra Club. Frustrated, the BWS moved to intervene in the potential case as an interested party: “By letter dated August 14, 2019 (BWS, 2019) and in at least two phone calls between BWS and Solid and Hazardous Waste Branch staff, the BWS requested to be informed of the status of the Navy’s permit application and the Sierra Club’s pending request for a contested case hearing on the Navy’s UST permit application for the Red Hill tanks. We are extremely disappointed that these requests have gone unanswered, and that the BWS learned of what the Navy refers to as its “Authority to Operate” letter three months after it was issued at an October 15, 2019 Navy public information meeting.

“Given the enormous amount of fuel stored at Red Hill, the location of this storage relative to our groundwater aquifer, the potential for impacts to Oahu’s critical drinking water resources, and the BWS’ unique interest as the utility charged with providing residents with safe and dependable water service, the BWS has a right to participate in a potential contested case hearing on the Navy’s Red Hill UST permit application. Accordingly, pursuant to Hawaiʻi Administrative Rules section 11-1-35, the BWS respectfully informs the Hawaiʻi Department of Health that it is seeking intervenor status in the potential contested case hearing and would like to be treated as a party for purposes of this proceeding moving forward.”^[15] The BWS formally applied to a contested case hearing on October 29.^[16]

Five days of contested case hearings on the Red Hill tank permits were held in January 2021. Before the result was announced, there was another Red Hill leak in May 2021.  The hearings were reopened in July 2021 to consider additional information provided by the U.S. Navy and State Department of Health regarding the May 6, 2021 leak at the underground fuel storage facility.

Here’s just one quote from the BWS’s post-hearing memorandum from that 2021 hearing: “The evidence and testimony presented in this contested case proceeding before the Hawaiʻi Department of Health (“DOH”) is clear – the United States Department of the Navy (“Navy”) has not and cannot operate the Red Hill Bulk Fuel Storage Facility (“Red Hill”) in compliance with Hawaiʻi law. Neither its permit application nor the evidence and testimony the Navy has presented in support of its application demonstrate that Red Hill can be operated to prevent releases for its operational life, that the Red Hill underground storage tanks (“USTs”) are adequately protected from corrosion, or that operations at Red Hill meet the regulatory requirements for leak detection. To the contrary, the Navy could not even prevent a fuel release into the environment in the three months following the contested case hearing itself. It still has not employed any of the UST corrosion protection measures required by DOH rules. Navy witnesses acknowledge that it cannot meet the minimum leak detection rate required by State law when returning a repaired UST back into service. And the Navy’s own expert concedes that operations at Red Hill have already contaminated the irreplaceable sole-source groundwater aquifer that nourishes Oahu’s drinking water supply.” (emphasis added)^[17]

The hearing officer presented his proposed recommended decision on September 10, 2021, to retire nearly 40% of the tanks within 3 years, and allow only those tanks that have actually been inspected and repaired properly. The Hearing Officer concluded from the evidence presented at the hearing that the Navy’s performance of inspections and repairs is “sorely deficient” and that the “risk of potential pollution of the Red Hill potable aquifer is real.”^[18]

Six days later, however, a Navy whistleblower stepped forward and informed the DOH Hazard Evaluation and Emergency Response office that “inaccurate testimony had been submitted, and important information had been wrongfully withheld by the Navy in the contested case proceedings.”^[19]  On November 9, 2021, the EHA of the DOH requested the DOH to remand (send the case back) to the Hearing Officer.

In November 2021, the Navy reported that 14,000 gallons of fuel leaked from the Red Hill tanks, but that the drinking water was safe and there are no signs that fuel escaped into the environment, although military residents whose homes drew water from the Halawa Well underneath Red Hill began complaining about gas and fuel odor in their drinking water and saying that they have been getting sick. The Navy said there was no immediate indicator that the water was unsafe, but secretly took the Red Hill well off-line but did not disclose that until December. At that time, the Navy recommended that military housing residents avoid ingesting their potable water, and in December 2021 preliminary testing showed presence of petroleum products in a water sample from Red Hill Elementary School.

A DOH news release stated on December 2021 that “Water samples taken from the Navy’s Red Hill shaft on Dec. 5 contained total petroleum hydrocarbons associated with diesel fuel that were 350 times above levels that the state considers safe[.]”^[20]

The military offered evacuation for military residents in the affected areas starting on December 2.^[21] The Honolulu Board of Water Supply shut down its Halawa shaft as a precaution, and Governor Ige, the state Department of Health, and Hawaiʻi’s Congressional delegation stated that operations at Red Hill should be suspended immediately.^[22] When the Department of Health found more evidence of fuel leakage, the Board of Water Supply shut down its Aiea and Halawa wells.^[23]  The Department of Health issued an Emergency Order requiring the Navy to cease operations at Red Hill and to drain the tanks. .  The Navy contested the Health Department’s order but the hearings officer found that there was an imminent peril to human health and safety and upheld the order on December 27, 2021.^[24] Finally, in March 2022, the Department of Defense stated it will permanently shut down the Red Hill tanks and remove all the fuel.

As early as October 2019, in its request for a contested case hearing, the BWS opposed the issuance of an operating permit Red Hill facility. Yet as late as October 2021, two years later, only one of Hawai’i’s state representative was calling for a Red Hill facility shut down, while the Governor and all four of Hawaiʻi’s Congressional members stayed silent.^[25]. Ernie Lau and the BWS have been the only consistent voice in government calling out the Navy for its lack of compliance and reporting. For these reasons, observers have hailed Ernie for his willingness to speak up and do his utmost to protect Honolulu’s water: “What is remarkable about his tour as a manager for several government agencies is that he has been willing to take a stand and go up against the Navy in its foot-dragging acceptance of the danger posed by its fuel storage system. This, as the state Health Department dropped more than $300,000 in fines against the Navy for fuel storage violations” and “You need people in these positions, like Ernie Lau, who have the expertise and experience to protect the public’s interest, even when it means questioning the decisions of powerful interests like the United States Navy.”^[26].  The State Commission on Water Resource Management, an agency of the Department of Land and Natural Resources, whose functions are to manage the state's water code and designate water management areas for regulation^[27], stated in January 2022, "We acknowledge and appreciate the tireless efforts of the Honolulu Board of Water Supply and citizen groups in addressing this threat."^[28]

The Red Hill defueling situation is still underway as of summer 2022, and Ernie Lau is still speaking up for the people of Hawaii.

What does Lau himself say? “For the longest time [the Navy] said that the tanks were not leaking,” said Lau. “That the steel plate, the quarter inch steel plate, is not rusting. They said that for years even though we have proof and we’ve been telling them that it’s rusting. You’d think they’d understand to also look at the pipelines, which should be double-walled but are single-walled and are just as old as the tanks … that there needs to be some accountability. We need to act now before it’s too late.”^[29]

“Lau continued to counter the Navy by personally sending out a letter to every BWS customer in 2016 — and again some time thereafter even though he was “talked to” by his constituents — to highlight the importance of upcoming meetings regarding the Red Hill crisis.

“Yeah, that got me in trouble a little bit with some elected officials,” said Lau. “But I wanted the community to know because it was so important. The public needed to know what was going on.”^[30] Added Lau, “I’m just a regular public servant,” said Lau. “Please, anybody can do this. It’s just not me. Anybody can do this.”^[31]

What can we glean from this story?

So many things to glean from the story. Let's focus on the ones that relate to our chapter the most.

First, many people think that the different levels of government and federal, state, county – are ranked in that order because each has the ability to control the actions of the layer underneath it. For example, some people mistakenly believe that the federal executive branch can control both the state and county executive branches, and that the state executive branch can control the county executive branch. This is not correct. It is the case that the federal branch can use its fiscal powers to try to compel the state to comply with its position, such as federal highway funds limited to states who voluntarily agree to lower their maximum freeway speed to 55 mph ^[32], but aside from emergency situations, such as the president's authority to federalize a state's National Guard to deploy to other states^[33], the president does not control the actions of a governor. In general, the same is true for the mayor: the governor cannot directly order the mayor what to do, but the counties are creations of the state under the state constitution, whereas the states were part of our young country before we had the federal government and always had their own set of powers, as recognized in the 10th Amendment of the Bill of Rights.

Still, it is not common in Hawaiʻi for the county to challenge the federal government, and the persistent fight by the Board of Water Supply, under the leadership of Ernie Lau, is memorable and valuable. There is a lot of deference in Hawaiʻi government to the military, due to our numerous military bases and our dependence on the military as an important part of Hawaiʻi economy.  The Navy failed to live up to its obligations under the AOC and lied repeatedly to the state about the situation at Red Hill, as noted by the Navy whistleblower. If it were not for the Board of Water Supply's continuously holding down the hammer on the Navy - it sent out 140 letters to various entities about Red Hill between 2014 and 2022 - it is likely that the first official warning would have come with the November 2021 leaks, and that the state department of health would have been likely to believe the Navy's protestations that they have the situation under control and the Red Hill tanks would still be in use. So while by itself, the Board of Water Supply was not able to effect change and close down Red Hill,  they set the stage for the department of health to act decisively.

The next take away is that different departments and agencies are assigned different duties, and even though the Board of Water Supply and the DLNR's Commission on Water Resource Management have an interest in the county water, ultimately, it was the Department of Health's area of responsibility to address water pollution and fuel tank regulation. Therefore, in trying to make a change in any area of law, the first step must be to determine which agency has the authority over the issue that you want enforced, amended, or repealed.

An additional take away is that state government has a specific process by which the executive functions are carried out. The state and the Navy had to enter into a specific AOC to negotiate their respective rights over the fuel tanks, and the board was not entitled to be a negotiator at the table or to even sign the agreement. The Navy, although it had the Red Hill tanks in the ground since the 1940s, was forced to apply for a DOH permit with the DOH finally adopted its rules requiring it. The Board of Water Supply had to request a contested case hearing from the Department of Health in order to intervene and help block the proposed permit. So researching the process when trying to make an impact at a state or county government level, is key in making sure you don't waste your time.

The final takeaway is Ernie Lau's last quote. He does not see himself as an exceptional individual, but says that anybody can do what he has done: to stand up for what is right. There can be no better way to end than with that point.

Administrative rule basics

Why might you want to find a department's or agency's administrative rules? Sometimes, you just want to know what the rules are so you can operate within them safely. For example, you will see a video below on the rules regulating coffee. If you were a coffee grower, being able to find the regulations you need to follow would be crucial to your business. Other times, you know what the rule is, but you want it changed, amended, or deleted. All of the state and county administrative rules can be changed by following Hawaiʻi Revised Statutes Chapter 91, Administrative Procedure. While the HRS are state statutes, county boards, commissions, and departments are specifically covered under HRS section 91-1.^[34]

As noted earlier, a department's administrative rules are far longer and more complex than the Hawaiʻi Revised Statutes could ever be on the same topic. For example, the state Department of Health statutes are covered in only a handful of HRS sections plus some federal laws, but their administrative rules on water pollution, which were so crucial in the Red Hill case, are 116 pages long.

How can you find each state department's administrative rules so that you can review them to see what they cover and if they are the right agency for you to try to work with? Here is a video that will show you how to find the central link to all administrative rules and how to do some basic searching. It will also show you why, under no circumstances, should you rely on search results you get from using Google.

Once you have found the administrative rules, how do you know that they are still valid? The following video will show you how to determine when the administrative rule was adopted, when it has been amended, what section of the HRS permitted the rule, and what section of the HRS it is providing the details on. Once you know this, you will know more about the administrative rules process than the vast majority of people in Hawaiʻi. Watch this and grow smart!

The county executive departments also have their own authority to adopt administrative rules, and do so.  Currently, the link for most of the City & County of Honolulu administrative rules is here, and includes links to the rules covering public transportation, neighborhood commissions, and planning and permitting. If the link changes, as it does from time to time, you can use the search engine on honolulu.gov to find their new location. This link currently states (May 2022) that any rules not available online are available in hardcopy at Honolulu Hale.

The other counties arranged their rules differently, putting them on the websites dealing with the specific department or agency.

Here's an example of the current link to the Maui liquor commission rules.

Here is a sample link to Kauai's Parks & Rec website with admin rules.

Here is a sample link to Hawaiʻi County's Solid Waste Division & Recycling Section's website and rules.