Few would argue that the environmental standards of only a few decades ago pale in comparison to the laws, regulations and restrictions governing how chemical substances are manufactured, transported, used and disposed of today. Detection technology has also improved to the point that more chemicals – at trace amounts – are being found in more places, creating the perception of widespread “contamination.” Couple these policy and technology developments with a public and media environment where the mere presence of a chemical is assumed to pose a health risk, and the result is organizations today are facing tremendous liabilities for legacy contamination issues previously unknown or unidentified as a health concern.
The importance of proactive and transparent public communication around legacy contamination – and what a company is doing to address it – is measurable. In some cases public outreach may even be a regulatory requirement, but whether it’s mandatory or not, early and effective public outreach offers practical legal and corporate reputation benefits.
The Stakes for Good Communications Are High
Communities want answers about the health and safety of their homes and families. Regulators need to show resolve and results. Elected officials need to hold someone accountable, and the media wants a story. These factors all work together to increase a company’s overall risks. Consider all the areas critical to a company’s bottom line that can be impacted by how it communicates on environmental contamination issues: litigation, employee morale, customer relationships, media attention, corporate reputation, shareholder value, regulatory action, licenses to operate, and public trust, among others. Bear in mind that the risk is heightened in all these areas whether or not there is any actual injury to an individual, a population or the environment.
Benefit #1: Build Public Trust Early and Help Prevent Litigation
The first benefit of proactive communication – reaching out as soon as the facts surrounding a contamination issue are understood and a corporate commitment to responsible action can be clearly articulated— is building public trust early, which may even help prevent litigation. A public commitment to finding a solution to a problem, and working with the community on this solution, is not the same as admitting liability. Taking the initiative to frame the public discussion around the issue can help garner more balanced media coverage, alleviate pubic fear and distrust, and can support a legal strategy if litigation does arise.
There are no magic bullets against lawsuits of course, but an environment in which the community believes a company has been acting responsibility is much more favorable than one in which the interpretation has been left up to the public rumor mill, the media and plaintiff’s attorneys. The company’s messages about responsible action are also better received and far more credible before a lawsuit is filed than after.
An effective way to create a favorable environment early is to brief local elected officials, from city council members to county supervisors on up. Elected officials don’t like being blindsided by calls from the press or irate constituents with questions about “poison” in the air or water and what they’re doing about it. Rest assured, if they think there’s pressure to act—or overreact—they will.
In contrast, elected officials are more likely to appreciate being informed before any mass communications occur. They want to know what they should tell their constituents. Your commitment to giving them accurate and reliable information helps them do their job. That may pay dividends down the road.
Benefit #2: Cost Recovery in Multi-Party Cases
A second benefit involves cost recovery in cases where multiple parties are responsible for cleanup, but not all of them bear the true responsibility for the contamination. In these situations some parties involved in paying for investigation and remediation costs may be entitled to recover those costs once remediation is complete, but only if they demonstrate fulfillment of some distinct requirements, one of which is community outreach. Under the Comprehensive Environmental Response Compensation and Liability Act (Superfund), for example, a successful cost recovery claim requires proof that the claimant has complied with the National Contingency Plan, which provides the guidelines and procedures—including public outreach—for responding to releases of hazardous materials, pollution or contamination.
Of note, petroleum-related cases are carved out of Superfund’s cost recovery provisions, but other kinds of sites under federal or state oversight are bound to specific public outreach, typically through development and implementation of a Public Participation Plan (PPP). A formal PPP requires demographic information on the site and surrounding area, survey research and other information that will ensure neighboring residents, schools, businesses and other stakeholders are contacted and informed in the most effective manner. Fulfilling these requirements often calls for a communications firm with PPP expertise to work closely with the legal team and make sure the plan is developed and implemented in a way that uses the best key messages, employs the best spokespeople, protects or enhances reputation and builds ongoing positive relationships with the community.
Benefit #3: Start the Clock on Statutes of Limitation via “Widespread Knowledge”
A third benefit is the role proactive communications can play in whether some claims against the corporation have legal standing. There have been cases where the implementation of a community outreach program has been used to demonstrate “widespread knowledge” about site conditions as of a certain date, e.g., the date listed on a fact sheet distributed in the community. That can be used to establish when the statute of limitations expires. There are no guarantees that every judge will accept this approach, but it is an option to consider as part of a legal strategy.
A note on fact sheets and all other public-facing materials developed for public consumption: be fanatical about accuracy. Sweat even the smallest details—any incorrect information, no matter how inconsequential it seems, can call the credibility of the entire program into question.
Ultimately, an organization’s biggest challenges in addressing a contamination issue are fear of the unknown, an information “vacuum” that will readily be filled by detractors and plaintiff’s attorneys, and the specter of the faceless, nameless “big corporation.” Good communication that humanizes the company, presents the facts in an accurate and transparent way, and demonstrates a commitment to responsible action will minimize and overcome these challenges, fostering a more balanced environment for discussion and relieving the anxiety and fear that are often the genesis of litigation in the first place.
Bill Romanelli is senior director for APCO Worldwide.
