Environmental VSD — The NRD Trap

A common mental model going into voluntary disclosure is "settle the federal case, close the chapter." The release scope of a federal civil decree under CERCLA is narrower than counsel sometimes assumes. Natural-resource damages are routinely carved out of the federal release — meaning a fully-performed cleanup under CERCLA §§ 106 and 107 can leave NRD exposure live for years afterward.

NRD claims are pursued by federal trustees (typically Department of the Interior or NOAA, each designated under CERCLA § 107(f)(2)(A), 42 U.S.C. § 9607(f)(2)(A)), state environmental agencies acting as parens patriae, and tribal trustees. They sit on a different statutory hook (CERCLA § 107(a)(4)(C), Oil Pollution Act § 1006, and analogous state-law claims). They are a separate civil action, not a separate count.

What the corpus shows

In United States v. Cleveland-Cliffs Steel Corp. (formerly AK Steel) (RCRA, May 2026), the decree expressly states that the United States' covenant not to sue "does not extend to claims for ... natural resource damages." NRD at the Middletown, Ohio steel-mill site is preserved for future action despite the resolution of the RCRA corrective-action claims.

In United States v. Whittaker, Clark & Daniels, Inc. (CERCLA bankruptcy settlement, April 2026), NRD was settled for $980,400 as a discrete line item (consent decree ¶ 8(a)) alongside the much larger civil-response-cost settlement: a $16.5 million NICO Payment (¶ 6) plus $57 million in stipulated allowed claims (definition “rr.”). The NRD figure is small relative to the response-cost figure but is structurally separate — it is a different claim handled by different trustees on a different schedule.

In United States v. Ford Motor Co. and Borough of Ringwood (CERCLA, March 2026), the decree addresses the New Jersey Spill Act NRD claims of NJDEP — an example of a state-trustee NRD claim being resolved alongside the federal action rather than left to a separate state proceeding.

What this means for the VSD decision

NRD changes the math on whether a federal disclosure resolves the matter. Counsel evaluating the EPA Audit Policy path should:

1. Identify the trustees with jurisdiction at the affected sites (federal trustees at NPL sites; state trustees almost always; tribal trustees where treaty resources are implicated).
2. Treat NRD as a separate workstream with its own technical assessment (NRDA process under 43 C.F.R. Part 11 or NOAA's process under 15 C.F.R. Part 990) and its own settlement track.
3. Negotiate release scope deliberately. A decree that covers response costs but not NRD is the default in the corpus, not the exception. If a complete release is needed, NRD must be brought into the negotiation expressly.

The Audit Policy reduces gravity-based civil penalties on the federal side. It does not, by its terms, reduce or release NRD.