You want to file something with the EPA. But in order to file it, you must first be registered with the EPA. Can’t figure out how to get registered? No problem, enter your user name and password on the form and you will be allowed to see the instructions! What? You don’t have a user name and password already because you are not registered yet? Welcome to the EPA’s new CDX Self-Disclosure Policy website.
Many companies have utilized the EPA’s self-disclosure policy. This policy encourages companies to voluntarily self-disclose violations that they find during audits and under certain other circumstances. The system has worked for many years. However, on December 9, 2015, the EPA scrapped the old program and replaced it with a centralized web-based “eDisclosure” portal to “automatically process self-disclosed civil violations of environmental law.” If attorneys and compliance professionals are not aware of this change and mail in their usual disclosure then they run a risk of missing the short 21-day disclosure deadline and being subject to the full weight of EPA’s penalty fury.
The barriers erected by the EPA to make it as difficult as possible to actually file a self-disclosure are immense. Here are some steps that the EPA has taken:
- Require everyone to register through the EPA’s CDX Central Data Exchange. This is a classic federal system with the usual security protocols that make it take 10 times longer to do anything — great if you are getting paid by the government, but terrible if you are billing your poor client by the hour.
- Hide all registration question FAQs so that only those people who have already registered can see the FAQs. That is right. You need to already be registered before you can find the directions on how to get registered. Don’t have a user name and password in the system? Call the help line during regular office hours and have the contractor send you the information. The EPA did call me and tell me that a separate website does have training and background information. http://www.epa.gov/compliance/epas-edisclosure
- Require a user name in order to begin the registration. It turns out that you can pick any name you want, though “EPASucks” was already taken. My compliant is that the website does not tell you that you can pick your own name. I had to lose almost one day waiting for the help desk to call me back with the answer to that question.
- Require that your identity be verified by Lexis/Nexis. I flunked this test on the first try, so I started all over again and for some reason was verified. If you cannot be verified, then you have to fill out a form where you promise the EPA that you are who you say you are and then mail it in. If that is your situation, note that you can continue with the self-disclosure process. You will have to keep in mind that you need to get your identify verified before the next deadline, which is compliance.
- Have the shortest inactivity time out clock I’ve ever seen (five minutes). Here I am, trying to fill out a long complicated form, and everytime I went back to the form to click another box I found that the timer had expired and all of my previous work was gone! That is extremely frustrating. I’m sure that this is a feature of the CDX system that EPA won’t change. But I should not have to click on the site every five minutes in order to keep it active.
- There is no way to add any information regarding the alleged violation when you first file. Only after you file your disclosure are you allowed to provide some information regarding the circumstances.
- There is no way to upload any documents when you first file the disclosure. Their website says you can, but the option did not appear until after the disclosure is made.