Environmental VSD — Three Tracks, Not One

Read this row twice: No single framework forecloses the others. A practitioner who discloses to EPA only is exposed to (a) state-level enforcement that proceeds independently of the federal track and (b) potential criminal referral from EPA-CID to DOJ ENRD.

The structural problem with environmental VSD is not what the EPA Audit Policy says. It is what the EPA Audit Policy does not — and cannot — control.

A federal civil disclosure to EPA resolves only the United States' civil claims under the federal statutes EPA administers. It does not resolve:

• State enforcement. The state environmental agency has independent authority under state law. Many states have their own audit-privilege or voluntary-disclosure programs with different conditions, different mitigation rules, and different disqualifiers. A few states have statutory audit privileges that EPA does not recognize.
• Criminal exposure. Disclosure to EPA's civil enforcement office does not foreclose referral to EPA's Criminal Investigation Division or to DOJ's Environment and Natural Resources Division. Cooperation credit on the criminal side is evaluated separately under the Justice Manual § 9-28.000 (Principles of Federal Prosecution of Business Organizations).
• Natural-resource damages. NRD claims are typically pursued by federal trustees (DOI, NOAA) or state agencies acting as parens patriae. They are commonly carved out of civil decrees.

What the corpus shows

State co-plaintiffs joined the federal civil action in many of the original-enforcement decrees lodged by DOJ ENRD between February and early May 2026. The pattern is not exotic — it is modal:

• In United States v. Cleveland-Cliffs Steel Corp. (RCRA, May 2026), the State of Ohio added Clean Water Act, Clean Air Act, and Ohio solid- and hazardous-waste statute claims that the federal complaint did not carry. The settlement therefore had to satisfy two enforcement authorities, not one.
• In United States v. Ford Motor Co. and Borough of Ringwood (CERCLA, March 2026), the New Jersey Department of Environmental Protection joined as a co-plaintiff and the decree expressly addresses NJDEP's Spill Act NRD claims.
• In United States v. The Boeing Co. (CERCLA, March 2026), the State of Washington joined as a co-plaintiff. In United States v. Rutgers Organics LLC (CERCLA, March 2026), the Commonwealth of Pennsylvania did. In United States v. Antero Resources Corp. (Clean Air Act, February 2026), the West Virginia Department of Environmental Protection did.
• In United States v. Whittaker, Clark & Daniels, Inc. (CERCLA, April 2026), the California Department of Toxic Substances Control, the California Water Boards, the Orange County Water District, and the State of Montana all joined as Government Environmental Creditors.

The implication for VSD strategy: a disclosure that names only EPA leaves a parallel state enforcement action live. In the cases above, the state's claims were not redundant — they added statutes the federal complaint did not invoke.

What this means in practice

A practitioner choosing the disclosure path should plan for at least two simultaneous submissions, not one:

1. Federal civil disclosure through EPA's eDisclosure Portal under the Audit Policy (or the New Owner Audit Policy if the disclosure follows an asset acquisition).
2. State disclosure through the relevant state program, on a track aware of how that state treats audit privilege and what its mitigation rules are.

A criminal-track disclosure to DOJ ENRD is not always required, but is typically considered when the conduct involves willful violations, falsification, obstruction, or knowing endangerment.

The frameworks are parallel. They are not coordinated. Counsel must coordinate them.

Reading the table. The Kroger row is the worked example for the Audit Policy path — a self-evaluation completed before lodging is visible on the face of the decree, and the settlement terms are calibrated against it. The state-co-plaintiff column is the empirical basis for the three-track architecture: a federal disclosure to EPA does not, in this corpus, foreclose parallel state claims. The Cleveland-Cliffs row is the empirical basis for the NRD-carve-out warning — even an apparently "complete" CERCLA settlement with the United States may leave NRD live.

Corpus scope. Original-enforcement consent decrees lodged by DOJ ENRD and published in the Federal Register from February through early May 2026. Modifications and bankruptcy-driven settlements are excluded — they bear on different decisions and are tracked separately. Tier 3 extraction is in progress on the rows marked "pending" and will fill in penalty and self-evaluation detail on the next pipeline run.