A LETTER TO:

EnviroWatch, Inc., and the individuals and families named herein (hereinafter referred to as "Petitioners"), hereby petition the Secretary of Defense to initiate formal proceedings and make diligent investigation of the State of Hawaii, Department of Defense, regarding the discharge of pollutants and toxic substances, the participation in the seizure of private property without due process of law, the failure to report the possession of toxic substances and underground storage tanks as mandated by federal agencies, rules, and law, the false reporting of a criminal act, and the deprivation of civil rights.

THE STATE OF HAWAI'I, DEPARTMENT OF DEFENSE IGNORED FEDERAL MANDATES AND IMPOSED ENVIRONMENTAL INJUSTICE ON A MINORITY COMMUNITY.

On, Monday, March 12, 2001, an alert elementary school teacher discovered a child in possession of, and playing with, mercury. Her reporting of the childs exposure to mercury led to the discovery of the contamination of an entire state housing complex, playgrounds, other residences, and the sojourns of children to whom the mercury was distributed¹. The emergency response to the report discovered the contamination of schools, public parks, homes, and the poisoning, by contact and by ingestion, of dozens of children, at least two of whom have dangerous levels of mercury in their systems. The state has estimated that over one and one-half gallons or more than thirty pounds of mercury were found by children in an abandoned and dilapidated building, known, both commonly and hereinafter, as the "pumphouse".

The pumphouse was once owned by the US Navy and transferred to the State of Hawaii in 1962² and subsequently transferred to the state Department of Defense, a federal funds recipient. The mercury was found by children playing at the abandoned pumphouse.

The mercury leaked out of deteriorating gauges and pumping equipment. The building was unsecured even though officials, of both the Navy and several state agencies, knew of environmental contamination by PCB's and an Underground Storage Tank (UST) at the site before October, 1997³. There was no fence or barrier to prevent children from playing in and around the pumphouse. The property was not posted with "no trespassing" signs. Both sovereign governments also knew of and had access to Formerly Used Defense Site (FUDS) funds and Defense Environmental Restoration Program (DERP) funds administered by the US Corps of Engineers. Even though documents from the state Department of Land and Natural Resources claim the cost of the pumphouse cleanup was nearly equal to the value of the land, neither agency appears to have to have made timely application for the available cleanup funds or instituted cleanup⁴. 

Instead, the pumphouse was allowed to become a source of recreation. Interviews, with parents of children, found that the general public has been allowed access to the pumphouse site for between ten and twenty years. The doors and the roof of the pumphouse have collapsed. A structure resembling a tree house is on the site. Even more egregious, is the fact that between October of 1983 and February, 2000, the pumphouse area was a set aside by a Governors Executive Order as a part of the Rainbow Bay State Park⁵.

The treehouse-like structure and abandoned building are open invitations for kids to play

The State of Hawaii initiated, through an EPA "certified" contractor, an environmental cleanup of the public housing and other areas, not including the pumphouse. The state cordoned the housing area and prevented people from entering. In some instances, the people were re-exposed to mercury by being allowed to return to their homes after inadequate "certified" decontamination of the homes, playgrounds, and the complex. The state testified at a public meeting before the Environmental Council on April 11, 2001, that people were not evacuated, yet the residents were prevented from entering or leaving their homes to get food, medicine, or their children that were returning from school. The people were denied entry to their homes by the state Sheriffs, National Guard, local police, Department of Health, and Department of Land and Natural Resources enforcement officers. Some were denied access to their medication for disabilities and serious illnesses, such as diabetes. To further the intimidation of the affected persons, state National Guard was posted to excluded the people from their homes public parks and other areas without the declaration of a disaster or other emergency. Personal property was seized and destroyed. The State has provided an arbitrarily and inadequate uranalysis and blood testing of exposure victims without followup care. Then, they began arresting the children.

The State of Hawaii's inadequate environmental investigative and enforcement capabilities, as reported to the EPA in 1998⁶, is the root cause of the physical arrest and detention of the children. It is compounded by the state Department of Defense's failure to report the ownership of a UST. The pumphouse site contains an underground fuel storage tank (UST) and PCBs. The failure of the state Department of Defense to conform to the federal law requirement that all UST owners were to have reported the existence and completed the closure of their UST by December of 1998 led to the distribution of mercury and the poisoning of civilians. Walter Ozawa, Director of the Office of Veterans Services, State of Hawaii, Department of Defense, wrote, in February of 1999, that the site includes "a parcel which contains two abandoned structures which housed pumping equipment and a small underground storage tank ("UST") which provided fuel for the pumps."⁷ The Department of Defense failed to report the UST or ensure it's removal. The site is also claimed by the state to be contaminated by PCB's. Compliance with federal law would have caused the removal of the UST and led to the removal of PCB contamination of the site and the mercury would have been secured. Now, rather than coordinating responsible medical treatment for the children, the State of Hawaii, through a report made by the Department of Defense, has placed the responsibility for the mercury contamination on the victims of the exposure. In essence, the state Department of Defense has caused the arrest and detention of children for playing with abandoned property in a state park!

In Hawaii, "[a] person commits the offense of burglary in the second degree if the person intentionally enters or remains unlawfully in a building with the intent to commit therein a crime

against a person or against property rights. Burglary in the second degree is a class C felony (Hawaii Revised Statutes, Section 708-8 10). To prove the felony offense of burglary, the people accused must have intentionally and knowingly entered a building with the intent of taking the property of another. The old Navy pumphouse was an abandoned building, missing parts of its' roof and its' doors, hence, the property inside the abandoned building was also abandoned. The Navy didn't want it in 1962 and gave it to the state. The Land Management Division of the Department of Land and Natural Resources didn't want it in 1982 when they gave it to State Parks Division. The State Parks Division did not want it on February 25th 2000, when the Board of Land and Natural Resources transferred the site to the state Department of Defense. Now, according to the Honolulu Police Department, Public Information Officer, the state Department of Defense has reported the pumphouse was unlawfully entered on or before March 10, 2001. The Department of Defense has essentially claimed ownership of the mercury and has reported it as valuable stolen property through the act of vandals and at least one child has been arrested.

The state has never taken precautions, from 1962, to exclude people from the site. In fact, the state, including the Department of Defense, failed to secure the site containing an underground storage tank, in violation of federal mandates regarding the abandoned fuel storage tank.

It appears that because this mercury poisoning occurred in a public housing site, the prior owners of the site will be not be prosecuted. But, children have been arrested and detained. Place yourself in the position of a single-parent, living in a public housing complex, whose child has been poisoned by mercury: If you report or complain to the authorities, your child may be pulled out of school, in violation of state law, Chapter 19 school rules, arrested, and held in detention for hours, and your personal property and household effects seized. You may even be evicted from the only housing you can afford for your children.

The State of Hawaii is congratulating itself for successfully cleaning up a toxic mercury event when in reality the state has created the environment where parents now believe that if their child tests positive for mercury, the child will be arrested by the police and their personal property seized. Parents now refuse to let their children identify other sites where mercury is still exposed to the public and posing a runoff problem, via storm drains, to the "waters of the United States". Further evidence that the people are accused of criminal acts is the placing of "Amnesty Barrels" for the drop off of mercury - "No questions asked" as if the possession of mercury by a public housing resident is a criminal act. Because of the arrest of the child and the intimidation of the community, parents no longer allow their children to identify mercury contaminated sites to EnviroWatch, Inc. as the children were doing prior to the arrest of the child.

The arrest of the children was an intentional act of a state Department of Defense more interested in hiding its reckless behavior with intentional acts and denial of responsibility than in the health and well-being of public housing tenants. World history, since 1916, suggests that only Josef Stalin and Adolph Hitler bad a more effective method of suppression.

Further the state has delayed, obfuscated, and/or otherwise refused the release of public documents in violation of the state's own Uniform Information Practices Act, which is patterned on the federal government's Freedom of Information Act. The denial of access to public records is further evidence of an intentional and orchestrated coverup and discriminatory acts of a federal funds recipient.

CIVIL RIGHTS ACT OF 1964, INTENTIONAL DISCRIMINATION COMPLAINT.

The mercury was housed in a community which consists of the poorest people with nearly the largest households sizes, and is nearly the least educated of the island communities (C&C Dept. of Planning, 1990 census). The community consists of Pacific Islanders, Blacks, Filipinos Asians, Whites, and the Kanaka Maoli (Native Hawaiian People), many of whom are physically disabled. Several of these peoples have much higher rates of asthma and heart disease than people of other communities. The collective actions of the State of Hawaii and the state Department of Defense constitute Environmental Injustice. Environmental Justice (EJ) is defined by Presidential Executive Order 12898

"as the "fair treatment for people of all races, cultures, and incomes, regarding the development of environmental laws, regulations, and policies."" (<http://www.epa.gov/swerosps/ej/aboutej.htm, 12/17/98>).

The people of the Puuwai Momi housing complex have not been treated in a manner consistent with Executive Order 12898. Further, the methods used and implemented have assured that mercury will remain undiscovered and pollute Pearl Harbor and wildlife for many years to come affecting the future health and welfare of generations of people.

CONCLUSION

Petitioners demand a cessation of hostilities and the arrests. The people need coordinated medical care and followup care to stop preventable illness from mercury poisoning. The Department of Defense must ensure the recovery of all the mercury missing from the pumphouse. The Department of Defense must review it's emergency response procedures and ensure the response is appropriate for the situation. The Department of Defense is further requested to provide any and all administrative actions that are just and reasonable.

EnviroWatch, Inc. reserves the right to amend this complainant and add petitioners as information becomes available.