Chapter Twelve
COMMON LAW
The foundation of our Country was based on common law and on the
individual's right to life, liberty and the pursuit of happiness. The
founding fathers of our constitution ensured those individual rights in
the "BILL OF RIGHTS".
Among these are the Fourth Amendment, which prevents the
government from violating the security of the individual and
unreasonable seizure of an individual's property; the Fifth Amendment,
which prevents the government from taking individual property for the
public good without adequate compensation; the Ninth Amendment,
where certain rights are retained by the people; and the Fourteenth
Amendment, which preserves the civil rights of every individual.
In effect, the EPA can not, "deny to any person within its jurisdiction
(United States) the equal protection of the laws." There is no provision
in the Constitution for the sacrifice the health of thousands of people
annually for a cheap method of sludge disposal.
However, these "rights" under the constitution are better known today as
criminal rights. People tend to forget that the Amendments cover a lot of
area in a very few words and address more points than the title
indicates.
The following is a review of the Amendments, less the sections that deal
with criminal rights.
Amendment 4 Current title: Search and arrest warrants.
"The right of the people to be secure in their persons, houses, papers,
and effects against unreasonable .... ...seizures."
Under the common law, it would appear that pollutants migrating from
adjoining property, even under a federal permit, is a seizure to expand
the dump site, since there are boundary limits on legal landfill sites.
Furthermore, if land, water or food is contaminated people can not be
secure in their persons (health), houses (water and food), papers
(mortgage-bank account) and effects (land).
Amendment 5 Current title: Rights in criminal cases.
".... nor be deprived of life, liberty, or property, without due process of
law; nor shall private property be taken for public use, without just
compensation."
Under the common law, it would appear that pollutants from adjoining
property contaminating water, land and crops could deprive the people
of their life, liberty (health to enjoy life) and property (value) without due
process of law. Furthermore, even a federal permit authorizing the
release of toxic and hazardous substances can not authorize a dumper
to expand the dump site by taking adjoining property for public use,
without just compensation. Moreover, even a temporary taking (one
occurrence) would be a violation of the Amendment.
Amendment 7 Current title: Rights in civil cases.
"In suits of common law, where the value in controversy shall exceed
twenty dollars, the right of a trial by jury shall be preserved, and no fact
tried by jury, shall be otherwise reexamined in any court of the United
States, than according to the rules of the common law."
There are indications that this Amendment is routinely violated in
imminent domain cases using federal money by the state courts.
Amendment 9
Current title: Rights retained by the people.
"The enumeration in the Constitution, of certain rights, shall not be
construed to deny or disparage others retained by the people."
It would appear that personal health and safety would fit under this
Amendment, since they are not specifically mentioned under the other
Amendments.
Amendment 10 Current title: Powers retained by the states and the
people.
"The powers not delegated to the United States by the Constitution, nor
prohibited by it to the states, are reserved to the states respectively, or
to the people."
There is a problem with the 10th Amendment. The power to protect the
public health has been delegated to the United States, or at least, it has
assumed those powers and passed laws to protect the public health and
it has mandated that those laws be observed by the states. However,
one small operating division of the EPA has determined that it has the
power to ignore the laws under self-created and misinterpreted
exclusions. Moreover, some states have elected to follow the federal
example and no longer have an interest in protecting the people or the
environment, and the public duty doctrine is now being used to deny
individuals the rights provided under the Constitution. However, it is
self-evident, that the states using the public duty doctrine to deny
individual health protection from the dangerous conditions it creates by
the use of sludge is not only violating the common law, but the federal
laws as well.
Does that mean that the power has now passed to the people?
Amendment 14 Current title: Civil rights.
"Section 1. .... No state shall make or enforce any law
which shall abridge the privileges or immunities of Citizens of the United
States; nor shall any state deprive any person of life, liberty, or
property, without due process of law; nor deny to any person within its
jurisdiction the equal protection of the laws."
Under the common law, every person has the right to equal protection of
the laws. No where in the common law is there an exclusion, which says
that a few people can be sacrificed because they are isolated and any
incidence of sacrifice would not be widespread. In fact, there is no
exclusion in the Congressional mandated laws which give the EPA the
right to sacrifice the health of thousands of people annually for
economical sludge disposal.
In effect, not only has the EPA and some States violated the
Congressional intent of protecting public health under the RCRA and
Solid Waste Laws, they have violated the constitutional common law
against individuals by assuming the health and lives of the estimated
501 individuals could be sacrificed and our food supply could be placed
in jeopardy in the interest of a cheap method of sludge disposal.
This is in direct contrast to a decision of the Supreme Court in 1971. In
Biven v. Six Unknown, Supreme Court Justice Brennan delivered the
opinion of the (Supreme) Court that the Fourth Amendment provides
that: "The right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures, shall
not be violated.""
While enforcement of the Amendment usually focuses on the individual
right of privacy, it also appears to be relevant in the case of human
health damages and environmental damages caused by the misuse of a
governmental entity's power. Even though, as a general rule, a
governmental entity is protected by the Public Duty Doctrine, which
provides for protecting the general public as a whole, rather than a
person's individual protection. With 76 million cases of foodborne
illnesses and thousands dead, the public duty doctrine isn't working.
However, the Fourth Amendment provides that governmental entity's will
not violate the security of the individual or his house and effects.
Congress has attempted to further protect the individual from harm by
mandating compliance with the Hazardous and Solid Waste laws to
prevent contamination of the environment by toxic and hazardous
substances that would harm human health. The federal DOT, OSHA
and the Solid Waste Division of EPA all focus on enforcing those laws.
However, the Water Division of the EPA is hiding behind the Public Duty
Doctrine to promote the disposal of sewage sludge in isolated areas
where there are only a few people who will be harmed by the unlawful
disposal of toxic and hazardous pollutant contaminated sewage sludge.
Based on one Supreme Court decision, it would appear that those
governmental officials who originally promoted the beneficial sludge use
policy and then made it into a federal regulation have violated the
security of people all across the country and sludge contamination on
property that is not part of a sludge dump site would constitute a
seizure. Particularly, since the EPA has acknowledged that it has not
done the necessary research to prove sewage sludge use is safe and it
does not know exactly how the toxic and hazardous substances will react
in the sludge mixture when it is placed on the land.
Furthermore, the EPA has consistently refused to investigate any
complaints attributed to the misuse of sludge based on its estimate that
about 501 people will suffer high blood pressure from lead each year
and that harm could lead to death. In fact, the EPA has given grant
money to the wastewater industry to debunk the damage claims and
discredit the people who have complained. This would appear to
constitute the clear intent of the EPA and municipalities involved in the
debunking program to destroy the lives and property of those people
who are, or will be harmed each year. Moreover, sewage sludge can not
be both a toxic and hazardous substance (pollutant) contaminated solid
waste regulated under the Solid Waste Laws and a beneficial
commercial fertilizer, as claimed by EPA regulation, which is excluded
from the federal and state laws that protect public health and the
environment.
Bivens v. Six Unknown named Agents of Federal Bureau of Narcotics is
a Supreme Court case, where the decision could have some application
to human health and environmental damages caused by the misuse of
EPA officials position of power, by removing sewage sludge from the
basic protective measures of the Solid Waste Laws.
This is a good reason to look very hard at the protection provided and
alluded to in Justice Brennan's opinion in respect to Bivens v. Six
Unknown.
"Mr. Justice Brennan delivered the opinion of the (Supreme) Court. The
Fourth Amendment provides that: "The right of the people to be secure
in their persons, houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated."" Bell v. Hood is quoted
(1948), "we reserve the question whether violation of that command by
a federal authority gives rise to a cause of action for damages
consequent upon his unconstitutional conduct. Today we hold that it
does."
"The very essence of civil liberty certainly consists in the right of every
individual to claim the protection of the laws, whenever he receives an
injury."
"The leading argument against a "Bill of Rights" was the fear that
individual liberties not specified expressly would be taken as excluded."
"But it must also be recognized that the Bill of Rights is particularly
intended to vindicate the interest of the individual in the face of popular
will as expressed in legislative majorities,---"
"Damages may be obtained for injuries consequent upon a violation of
the Fourth Amendment by federal officials."
"(i)f Congress had thought that federal officials should be subject to a
law different than state law, it would have had no difficulty in saying so,
as it did with respect to state officers." (Bivens v. Six Unknown) (1971)
The NRC report was designed by the EPA's `Compliance and
Enforcement Division' to change the public perception that beneficial
sludge use on crops is a disguise for the dumping of toxic waste on farm
land. The study was also designed to scientifically reinforce the legal
perception that the general public's health is protected by the current
regulations and laws and the health or lives of thousands of unknown
individuals annually was a necessary incidental expense for the cheap
disposal of sludge.
Furthermore, the study was designed to be used as a scientific court
document to, if not prevent, at least refute any liability damage claims,
against the EPA, the States, and sludge dumpers, caused by the EPA's
1984 beneficial sludge use policy (now known as part 503), which
violated Federal Environment Laws against the open dumping of solid
waste. Not only that, but we have to consider that the estimated501
cases of health damage (high blood pressure) was based on the 1984
beneficial sludge use policy for heat dried sludge. There was actually no
estimate for the number of health damage cases under the final part
503 regulation which increased the allowed level of pollutants in sludge
disposed of on cropland.
In effect, there is no effective legal protection under the current
regulations or laws for the public in general, and individuals in particular
from health damages caused by the dangerous practice of dumping
sludge on farm land, except the common law liability provided by the
constitution, specifically, the Fourth Amendment, the Fifth Amendment,
Ninth Amendment, and Fourteenth Amendment. These Amendments do
carry more authority than the simple protection of a criminal's rights and
segregation issues. They offer every individual the right to be secure in
their home, health and effects, as well as protect property rights and
common civil rights of every individual. Plus, the Fourth Amendment can
remove the immunity generally provided to public servants in the
performance of their duty, when the public servants abuse their position
of power.
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Review of National Academy of Science's (NAS) 1996 literary review report by
its National Research Council (NRC) Committee :
"Use of Reclaimed Water and Sludge in Food Crop Production"
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