Environmental VSD — The Decision

Decision: Should we voluntarily self-disclose an environmental violation?

Who faces it: GC or outside environmental counsel — within days of internal discovery of a violation (audit, employee report, M&A diligence, operational review), before EPA, the state environmental agency, or DOJ has independent knowledge.

The paths:

• Disclose to EPA under the EPA Audit Policy (65 FR 19618, April 11, 2000) — and, if the disclosure follows an asset acquisition, the New Owner Audit Policy (73 FR 44991, August 1, 2008). Submissions go through EPA's eDisclosure Portal.
• Disclose to the state environmental agency under that state's voluntary disclosure / audit privilege program. Programs vary materially state-to-state — some mirror EPA, some are independent, some have audit privilege statutes EPA does not recognize.
• Disclose to DOJ ENRD where criminal exposure exists. Disclosure to EPA does not foreclose criminal prosecution; ENRD evaluates criminal referrals on its own track.
• Manage the violation internally without disclosure.

Time pressure: Mandatory reporting clocks under specific statutes may force timing regardless of strategic preference: CERCLA § 103 (release of a reportable quantity), EPCRA § 304 (release reporting), CWA § 311(b) (oil and hazardous-substance discharge), and RCRA hazardous-waste manifest obligations under 40 C.F.R. § 262.20. Once a regulator has independent knowledge of the violation, voluntary-disclosure benefits evaporate.

What the record shows: In the DOJ ENRD consent-decree corpus from Q1 2026, state co-plaintiffs joined federal enforcement in many of the original civil actions — including United States v. Cleveland-Cliffs Steel Corp. (formerly AK Steel) (RCRA, May 2026, State of Ohio added CWA, CAA, and Ohio solid- and hazardous-waste claims), United States v. Ford Motor Co. and Borough of Ringwood (CERCLA, March 2026, NJDEP NRD claims addressed), United States v. The Boeing Co. (CERCLA, March 2026, State of Washington co-plaintiff), and United States v. Antero Resources Corp. (Clean Air Act, February 2026, West Virginia DEP co-plaintiff). United States v. The Kroger Co. (Clean Air Act, May 2026, $2.5M civil penalty across 21 corporate entities) shows the structure of a self-evaluation completed prior to lodging — EPA issued a Finding of Violation in April 2020, after which Kroger conducted an internal self-evaluation identifying high-leak-rate appliances and completed initial response actions before consent-decree lodging.

This page is a navigation tool for one decision: whether and how to voluntarily disclose a discovered environmental violation. It is not a complete treatment of any of the disclosure regimes it touches, nor is it legal advice for a specific situation. The audience is in-house and outside counsel responsible for the call, working on a deadline.

This page covers:

• The three parallel disclosure tracks available to a regulated entity that has discovered a federal environmental violation: the EPA Audit Policy (and the New Owner Audit Policy for post-acquisition disclosures), state-level voluntary-disclosure programs (in the abstract — see specific state pages), and the criminal-track disclosure dimension under the Justice Manual § 9-28.000.
• Mandatory reporting clocks that may force timing: CERCLA § 103, EPCRA § 304, CWA § 311(b), and RCRA hazardous-waste manifest obligations.
• The empirical pattern of state co-plaintiffs in DOJ ENRD original-enforcement consent decrees, drawn from the Federal Register publications between February and early May 2026.
• The release-scope problem around natural-resource damages.

This page does not cover:

• State-by-state VSD program detail. State programs vary materially. A dedicated page for each significant state program is the appropriate companion. Until that exists, treat the state references on this page as orientation, not as the program's full terms.
• The post-disclosure mechanics inside each track — the specific submission templates, audit-protocol requirements under the EPA Audit Policy's nine conditions, eDisclosure Portal procedural detail, or how a particular EPA region typically processes disclosures. Those belong on a separate "How to file under the Audit Policy" mechanics page.
• Decree modifications (e.g., post-cleanup site-reuse modifications) — these are a different decision and a different page.
• Distressed-entity environmental liability — these implicate insurance recovery, parent-corporation reachback, and trust mechanics outside the VSD framework.
• Criminal defense strategy. Where conduct may implicate criminal liability, this page identifies the criminal-track disclosure dimension but does not address the substance of a criminal defense. Specialist criminal counsel should be retained.
• Specific-statute reportable-quantity tables. The mandatory reporting hooks identified above are pointers; the operative reportable-quantity values for any particular substance and statute belong on a dedicated reference page.

Companion pages anticipated (not yet built):

• State VSD program by state (50 separate pages, sequenced by enforcement intensity).
• How to file under the EPA Audit Policy (mechanics, single-task / paralegal-persona).
• NRD assessment process and settlement structure.
• Site-reuse decree modifications.
• Distressed-entity environmental liability.

If Your Client Also Has Export Controls VSD Exposure

Mid-size manufacturers — the clients who most frequently face environmental VSD decisions — are also the clients most likely to have export controls compliance obligations. A manufacturer with a RCRA waste violation discovered through an internal audit may simultaneously be operating under BIS export licenses that require compliance with the EAR. If the same internal audit that uncovered the environmental violation also surfaced a potential export controls issue, both VSD decisions must be made in parallel, under different programs, with different timelines and different government recipients.

The structural parallel: The BIS VSD program (15 C.F.R. § 764.5) and the EPA Audit Policy are structurally parallel:

The key difference: The two programs are independent and do not cross-notify. Disclosing to EPA does not satisfy BIS, and disclosing to BIS does not satisfy EPA. A manufacturer facing simultaneous exposure must file separately with each agency. OFAC’s voluntary self-disclosure program is a third parallel program if there is sanctions-related conduct involved — again, independent, not coordinated.

The timing interaction: Both the EPA Audit Policy (21-day window from discovery) and BIS VSD (no stated deadline, but “prompt” disclosure is a significant factor in the penalty reduction analysis) are running simultaneously once the underlying facts are known. Neither program pauses while the other is being evaluated. Where a company has both environmental and export controls exposure from the same internal audit, counsel must evaluate both timelines together at intake, not sequentially.

Criminal track interaction: Where both environmental and export controls criminal exposure exist, two separate DOJ components are implicated: DOJ ENRD’s Environmental Crimes Section (for the environmental violations) and DOJ’s National Security Division (for the export controls violations). These are separate units within DOJ. A VSD to one does not constitute a VSD to the other.

For the export controls side of this analysis, see LawSnap’s BIS VSD decision page.