The Hawaii Department of Health on Monday said that the Navy is not in compliance with its Dec. 6 emergency order requiring it to defuel its Red Hill fuel facility after determining that the contractor hired by the Navy to do an assessment of the work was not in a “position to act independently.”

The DOH’s emergency order requires the Navy to hire an independent contractor, approved by DOH, to assess the facility and recommend repairs and improvements for safely draining its underground fuel tanks.

The Navy hired Simpson Gumpertz & Heger, Inc. on Jan. 11, informing DOH just hours before executing the contract, according to state health officials. After asking for more information about the contract and reviewing it, DOH said that it has determined that the Navy has too much control over the evaluation and work.

“This disaster is about more than just engineering—it’s about trust,” said DOH’s Deputy Director of Environmental Health Kathleen Ho in a press release. “It is critical that the work to defuel Red Hill is done safely and that the third-party contractor hired to oversee that work will operate in the interests of the people and environment of Hawaiʻi. Based on the contract, we have serious concerns about SGH’s work being done independently.”

The DOH sent a letter to Rear Admiral Timothy Kott, commander of Navy Region Hawaii, and Simpson Gumpertz & Heger on Feb. 25 informing them of its determination and laying out its concerns in more detail.

The DOH said that it had “no objection to the selection of the project team or the project team’s qualifications,” but said the scope and workplan seemed to be crafted in response to an assessment ordered by the Secretary of the Navy, not DOH’s emergency order.

The DOH said that it’s concerned that the proposed evaluation is only based on information provided by the Navy and that DOH, which has regulatory authority over Red Hill, is not required to be included in discussions or site visits. DOH also said that the Navy’s “ability to singularly influence the work product is a concern.”

Rear Adm. Charlie Brown, the Navy’s chief spokesman, said in a statement that the Navy “will work cooperatively with DOH to address its recent comments so that the Red Hill assessment effort can proceed.”

“The Navy is focused on ensuring the safety and health of those impacted from the November 2021 contamination,” said Brown. “The Navy continues to take proactive measures that will position it to make informed and environmentally-protective longer-term decisions.”

A principal for Simpson Gumpertz & Heger declined to comment.

The DOH issued its emergency order after fuel from the Navy’s Red Hill fuel facility contaminated its Red Hill well and its drinking water system that serves about 93,000 residents at Joint Base Pearl Harbor-Hickam and surrounding neighborhoods in November. The Navy is appealing the emergency order in court and says it is currently assessing the future of Red Hill.

The DOH is requiring the Navy to revise its work plan, implementation schedule and contract in order to address its concerns, saying that if it doesn’t DOH will not approve the selected team as an independent, third party.

DOH spokeswoman Katie Arita-Chang said that if the Navy doesn’t bring the contract into compliance, DOH can pursue a remedy in court.

Earlier this month, the Hawaii Sierra Club also raised concerns about the Navy’s contract with Simpson Gumpertz & Heger, telling Ho in a Feb. 8 letter that the Navy was giving “short shrift” to the task of assessing Red Hil to ensure the facility can be safely defueled.

“Instead, the Navy focuses single-mindedly on trying to justify continued operation of the Red Hill facility,” wrote Earthjustice attorney David Henkin, who is representing the Sierra Club, in the letter to Ho. “It devotes its primary workplan to ‘developing recommendations to mitigate deficiencies in operations of the facility and integrity of equipment and structures,’ with an eye to keeping fuel in the Red Hill tanks, perched above Oahu’s sole source aquifer.”

Henkin warned that if DOH did not require the Navy to fix the contract and workplans, the Navy “in the future will claim that the conclusions reached it its flawed assessments were based on methodologies that were” approved by DOH.