So now that you’ve had that unpleasant piece of mail waft across your desk, you are probably wondering what you should do with it. Burn it? Bury it? Tell them they’ve made a mistake? You can try any or all of those but I wouldn’t bank on them having success for you.
Elizabeth Kubler-Ross says that there are 5 stages of grief and these stages don’t just apply to death – I believe they apply to any traumatic situation. I’d suggest to you that a letter from EPA with a Proposed Consent Decree and a Financial Penalty qualifies as a traumatic event in most people’s lives.
The key to managing this traumatic event successfully is moving through our heavily charged emotions to more beneficial character traits which can actually work in your behalf to resolve the issue. I have co-opted some of this from the 5 stages of grief (Elizabeth Kubler Ross) but skipped a few that don’t generally apply in these types of events.
Denial is normal but don’t give yourself a lot of time there. Discuss this issue with a trusted colleague, environmental consultant or your attorney to see where you may have blinders towards the situation. Face facts quickly if you have no leg to stand on and move on to setting goals that are more productive towards resolution of the issue.
Anger is understandable. Many of my clients experiencing such events are really hurt that their efforts are not recognized but only their faults. That person from the EPA seemed so friendly – he/she was just playing me for a sucker? I can’t believe I told them what I did. I can’t believe I let them on my property! In some cases, the anger may be valid. There may be some misunderstandings or misinterpretations but presenting your case in an angry fashion is not going to provide the end result you desire. Perhaps this is best to vent to a good friend or your counselor before you take action!
One of the best pieces of advice I ever received from an attorney was to wait. Don’t take immediate action. Study the issue, consider the angles and determine your best course of action. Don’t jump in prematurely. For those of you wired as I am – this is not a natural chain of events. This feels like sitting on your hands but it actually does work! I’ve lived through it and I promise you it does work!
Having seen the writing on the wall and decided that this is not going away, it is usually required that we respond to the EPA’s letter within some prescribed timetable. When I said – don’t take immediate action – I wasn’t saying you don’t have to reply (because you do). You just don’t have to do it the day (or even the week) you get the letter. You usually have 30 days to reply to an EPA letter of violation.
After the shock has worn off and you’ve gone through the denial and anger stages, seek trusted counsel. This could be a good friend in your industry who’s gone through a similar issue or your environmental consultant or perhaps a long-time attorney. You need to take advantage of someone’s perspective who has your best interest at heart but who also has a little more objectivity than you do. Walk through the issues with your trusted party. Describe the events like you would at a trial walking through the circumstances, what was seen, said and written. Show your advocate all the supporting documents and for heaven’s sake – tell them the truth. If you know you did something wrong – this is a good person to admit it to. If you don’t realize you’ve done something wrong – I pray that your trusted advocate knows you well enough to tell you when you’ve screwed the pooch. We all need that person who will tell us (in a loving way) that we’re not on the path of righteousness. It needs to be someone who is on our side!
More on our reply to the letter in the next Blog Part III.