Jacksonville 904 — April/May/June 2017
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Law: Clean Up Your Act
Josue Cruz

Clean Up Your Act

Navigating the landscape of environmental contamination can be messy business

Revitalizing harmful toxic waste sites requires knowledge, patience and money. There are plenty of viable and strategically located plots of land in Northeast Florida suffering from contamination. Some have laid fallow for decades, burdened by dumping practices outlawed well over a century ago. Recent proposed land developments in Jacksonville, such as The Shipyards in Downtown, have raised both questions and hopes about reviving land once thought useless. While Florida, in concert with the nation as a whole, has implemented practices and policies which protect lands and owners, knowing what to do when faced with contaminated land can still be a messy situation.

The vital first step is securing appropriate counsel. Cleaning up contaminated land is an intricate negotiation between the land owners, the state and federal government agencies. Cities and municipalities, specifically in Florida, play a lesser role depending on the type of contaminant being addressed on the polluted site. The Florida Department of Environmental Protection (FLDEP) is the lead agency, as it is focused on the management and stewardship of Florida’s lands. The FLDEP follows the Resource Conservation and Recovery Act (RCRA), developed on a national scale by the United States Environmental Protection Agency (EPA), which provides the authority to control hazardous waste from the "cradle-to-grave." Duval County, as an example, has an agreement in place with the FLDEP to solely handle any petroleum-related contaminant issues within its borders.

Wayne Flowers, shareholder at Lewis, Longman & Walker, P.A., focuses on areas of environmental, land use and governmental law. He clarifies that if a discharge of a regulated substance occurs, the responsible party needs to contact the FLDEP in order to take immediate action. Examples of regulated substances include petroleum, dry-cleaning abrasives and paint thinners. These harmful pollutants can have a devastating effect on human health, with risks of neurological and neuromuscular damage, respiratory ailments and eye or skin irritation being the most common.

“Under EPA pollution laws, one of the first steps undertaken is to identify the responsible party, or more clearly, the persons or entities responsible for the original discharge,” Flowers says. It takes a great deal of detective work in some cases, because lands may have changed hands under false pretenses or subterfuge, to assign responsibility for pollution which may have occurred many years ago. “An innocent purchaser is not responsible for remedying the pollution problem on land purchased, but proving innocence is not always easy,” Flowers says. Purchasing parties are responsible for performing an adequate inquiry on potential land purchases. “If there are oil barrels lying about on a site for sale, proving innocence is not really going to fly.”

Once identified, the responsible party is required to develop a plan for remediationThat plan is presented to and approved by the FLDEP and, at that time, Institutional and Engineering controls are implemented. The EPA defines Institutional Controls (IC) as “non-engineered and/or legal controls that minimize the potential human exposure to contamination by limiting land or resource use; and Engineering Controls (EC) as engineering measures (e.g, caps, treatment systems, etc.) designed to minimize the potential for human exposure to contamination by either limiting direct contact with contaminated areas or controlling migration of contaminants through environmental media.”

The FLDEP permits issued for remediation are time-bound, but extraneous litigious circumstances aside, it is the responsible party that will ensure that the remedies are executed in a timely manner. Land Sitting in legal purgatory is quick to become a financial liability.

“Contaminated soil can be remedied in less time than groundwater contamination, as water contamination spreads more easily into the water table and can extend the affected area significantly,” Flowers says.

Remediation of The Shipyards in Downtown Jacksonville is proving complex because according to a 2014 Capital Improvement Proposal presented by the Mayor’s Office, the site requires contaminated soil removal and impacted groundwater cleanup. According to Tia Ford, Public Information Officer for the City of Jacksonville, “the city is currently completing a site assessment report. Thereafter, a remedial action plan will be developed for FDEP approval.”

“Generally, the City of Jacksonville is only responsible for contamination cleanup on property it has contaminated, or contaminated property it currently owns,” Ford continues. Confederate Park, also in Downtown is contaminated by residual tar and fecal coliform. In this case, though, the contamination began over a century ago due to outdated disposal practices that did not take the future into account. “As for Confederate Park, the City is Currently working with potential responsible parties (PRPs) to develop a cleanup plan,” Ford says.

“Whether it is the prior or current owners,” Flowers says, “the key is to get started as soon as a problem is identified so as to address lands and contamination that may be harmful to human health.”

Paying a Visit

H-1B visas are complicated and hotly debated

In the wake of the 2016 election, there has been a lot of talk in the news about foreign immigration, travel bans and work visas. You may have heard the phrase “H-1B visa” as a topic during politcal debates, but it’s a program that many don’t understand.

The H-1B is a non-immigrant visa that allows U. S. employers to temporarily employ foreign workers with a bachelor’s degree or higher in “specialty occupations”—including fields such as biotech, chemistry, accounting, physical and social sciences and the arts—for three years, extendable to six. “Foreign talent is a vital part of our labor force and allows U.S. employers to fill the skill gap in a global economy,” says Giselle Carson, a business immigration attorney at Marks Gray.

The law limits the number of H-1B workers each fiscal year to 65,000. A non-immigrant visa such as H-1B is distributed to a person with permanent residence outside the U.S., but who wishes to be in the U.S. on a temporary basis. There are also wage requirements and other qualifications, as well.

In some cases, rather than being used to hire talented workers not available in the American labor market, the program is being used for outsourcing. Those who oppose the H-1B say that it deprives qualified Americans of jobs.

“Although H-1B visas are one of the most popular visas to hire foreign professionals, these visas are also limited, complex and controversial,” Carson says. If U.S. immigration policies change as much as it seems the current administration is proposing, companies who actively seek to hire foreign employees may have their work cut out for them.

Lawyer UP

Florida Bar survey Finds Florida attorneys are happy in their proFessions

Attorneys are the butt of more than a few old jokes, but a new survey found that it must not bother them too much. According to the Florida Bar’s 2016 Economics and Law Office Management survey, Florida lawyers appear generally happy with their job security, challenging responsibilities and their relationships with their coworkers. The survey concluded that most of them are happy in their positions, and also found that:

• 81 percent report satisfaction with job security, and 93 percent of respondents say they are satisfied with co-workers.

• When asked if they would pursue the legal profession as a career if they were making the decision again, 57 percent said “yes,” 20 percent said “no” and 23 percent were “not sure.”

• 63 percent of those surveyed said they are satisfied with their salary and benefits.

• 57 percent of survey respondents “strongly” or “somewhat strongly” agree that the legal needs of Floridians are currently being met, compared to the 22 percent who disagreed.

• When it comes to technology, 71 percent of respondents say that it has changed their relationships with clients—65 percent of those say it’s for the better.

More than 700 Florida Bar members responded to the randomly administered survey. Full results are available at floridabar.org/news.
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