`
`
`Jim Torgerson
`STOEL RIVES LLP
`510 L Street, Suite 500
`Anchorage, AK 99501
`Telephone: (907) 263-8404
`Email: jim.torgerson@stoel.com
`
`Attorney for Defendant
`3M Company
`
`Brewster H. Jamieson
`Michael B. Baylous
`LANE POWELL LLC
`1600 A Street, Suite 304
`Anchorage, AK 99501
`Telephone: 907-264-3325
`Telephone: 907-264-3303
`Email: jamiesonb@lanepowell.com
`Email: baylousm@lanepowell.com
`
`Attorneys for Defendants
`Tyco Fire Products LP and Chemguard, Inc.
`
`
`UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF ALASKA
`
`
`
`
`
`Case No. 4:21-cv-00020-HRH
`
`
`
`
`
`STATE OF ALASKA,
`Plaintiff,
`
`vs.
`3M COMPANY, E.I. DU PONT DE NEMOURS
`& COMPANY, THE CHEMOURS COMPANY,
`THE CHEMOURS COMPANY FC, LLC,
`DUPONT DE NEMOURS, INC., CORTEVA,
`INC., TYCO FIRE PRODUCTS LP,
`CHEMGUARD, INC., JOHNSON CONTROLS
`INTERNATIONAL PLC, CENTRAL
`SPRINKLER, LLC, FIRE PRODUCTS GP
`
`State of Alaska v. 3M Co., et al.
`Case No. 4:21-cv-00020-HRH
`
`1
`
`Case 4:21-cv-00020-HRH Document 1 Filed 08/17/21 Page 1 of 27
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`510 L Street, Suite 500, Anchorage, AK 99501
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`STOEL RIVES LLP
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`Main (907) 277-1900 Fax (907) 277-1920
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`
`

`

`
`HOLDING, LLC, KIDDE-FENWAL, INC.,
`KIDDE PLC, INC., CHUBB FIRE LTD., UTC
`FIRE & SECURITY AMERICAS
`CORPORATION, INC., RAYTHEON
`TECHNOLOGIES CORPORATION, CARRIER
`GLOBAL CORPORATION, NATIONAL
`FOAM, INC., ANGUS INTERNATIONAL
`SAFETY GROUP, LTD, BUCKEYE FIRE
`EQUIPMENT COMPANY, ARKEMA, INC.,
`BASF CORPORATION, CHEMDESIGN
`PRODUCTS, INC., DYNAX CORPORATION,
`CLARIANT CORPORATION, CHEMICALS
`INCORPORATED, NATION FORD
`CHEMICAL COMPANY, AGC, INC., AGC
`CHEMICALS AMERICAS, INC.,
`DEEPWATER CHEMICALS, INC.,
`ARCHROMA MANAGEMENT, LLC,
`ARCHROMA U.S., INC., and JOHN DOE
`DEFENDANTS 1-49,
`Defendants.
`
`NOTICE OF REMOVAL
`
`Defendants The 3M Company (“3M”), Tyco Fire Products LP (“Tyco”), and
`
`Chemguard, Inc. (“Chemguard”; collectively, “Removing Defendants”) hereby give notice
`
`of removal of this action, pursuant to 28 U.S.C. §§ 1441, 1442(a)(1), and 1446, from the
`
`Superior Court for the State of Alaska, Fourth Judicial District at Fairbanks, to the United
`
`States District Court for the District of Alaska. Removing Defendants are entitled to
`
`remove this action based on federal officer jurisdiction under 28 U.S.C. § 1442(a)(1). As
`
`further grounds for removal, Removing Defendants state as follows:
`
`State of Alaska v. 3M Co., et al.
`Case No. 4:21-cv-00020-HRH
`
`2
`
`Case 4:21-cv-00020-HRH Document 1 Filed 08/17/21 Page 2 of 27
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`510 L Street, Suite 500, Anchorage, AK 99501
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`STOEL RIVES LLP
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`Main (907) 277-1900 Fax (907) 277-1920
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`

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`
`PRELIMINARY STATEMENT
`
`1.
`
`The State of Alaska (“State”) seeks to hold Removing Defendants liable for
`
`their alleged conduct in designing, manufacturing, and selling per- and polyfluoroalkyl
`
`substances (“PFAS”)—including perfluorooctanoic acid (“PFOA”), and perfluorooctane
`
`sulfonic acid (“PFOS”)—as well as products containing PFOA or PFOS, including
`
`aqueous film-forming foams (“AFFF”). PFAS chemicals purportedly have resulted in
`
`alleged damages to the natural resources, properties, and residents throughout the State of
`
`Alaska.
`
`2. Military facilities in Alaska are a plausible source of the AFFF that has
`
`allegedly caused the State’s injuries. AFFF sold to the U.S. military must appear on the
`
`Department of Defense (“DOD”) Qualified Products List and comply with the military’s
`
`rigorous specifications (“MilSpec”). “Part 139” civilian airports in Alaska, which are
`
`required by law to stock and use MilSpec AFFF, are also a plausible source of the AFFF
`
`that has allegedly caused the State’s injuries. Under the federal “government contractor”
`
`defense recognized in Boyle v. United Technologies. Corp., 487 U.S. 500 (1988),
`
`Removing Defendants are immune to tort liability for their design and manufacture of
`
`MilSpec AFFF and their provision of warnings for the product.
`
`3.
`
`Removing Defendants are entitled to remove this action under the federal
`
`officer removal statute, 28 U.S.C. § 1442(a)(1), to have their federal defense adjudicated
`
`in a federal forum. Multiple courts have held that AFFF manufacturers properly removed
`
`State of Alaska v. 3M Co., et al.
`Case No. 4:21-cv-00020-HRH
`
`3
`
`Case 4:21-cv-00020-HRH Document 1 Filed 08/17/21 Page 3 of 27
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`510 L Street, Suite 500, Anchorage, AK 99501
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`STOEL RIVES LLP
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`Main (907) 277-1900 Fax (907) 277-1920
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`

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`cases on the ground that the plaintiffs’ claims plausibly arose at least in part from MilSpec
`
`AFFF. See, e.g., Nessel v. Chemguard, No. 1:20-cv-1080, 2021 WL 744683, at *4 (W.D.
`
`Mich. Jan. 6, 2021); In re Aqueous Film-Forming Foams Prods. Liab. Litig. (“In re
`
`AFFF”), No. 2:18-mn-2873, 2019 WL 2807266, at *2 (D.S.C. May 24, 2019); Ayo v. 3M
`
`Comp., No. 18-cv-0373, 2018 WL 4781145, at *6-15 (E.D.N.Y. Sept. 30, 2018). Such
`
`removal “fulfills the federal officer removal statute’s purpose of protecting persons who,
`
`through contractual relationships with the Government, perform jobs that the Government
`
`otherwise would have performed.” Isaacson v. Dow Chem. Co., 517 F.3d 129, 133 (2d Cir.
`
`2008).
`
`THE STATE’S COMPLAINT
`
`4.
`
`The State filed this action on April 6, 2021, in the Superior Court for the State
`
`of Alaska, Fourth Judicial District at Fairbanks, bearing Case No. 4FA-21-01451CI. (Ex.
`
`1, Complaint.) None of the Removing Defendants have been served with the Complaint.
`
`5.
`
`The State “brings this action against Defendants for contamination of the
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`natural resources of the State, including but not limited to lands, waters, biota, and wildlife,
`
`as a result of the release of per- and polyfluoroalkyl substances (‘PFAS’) into the
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`environment through the handling, use, disposal, and storage of products containing
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`PFAS.” Id. ¶ 1.
`
`6.
`
`The State generally alleges
`
`that Defendants (including Removing
`
`Defendants) have manufactured, marketed, and sold “PFOS, PFOA, and/or products
`
`State of Alaska v. 3M Co., et al.
`Case No. 4:21-cv-00020-HRH
`
`4
`
`Case 4:21-cv-00020-HRH Document 1 Filed 08/17/21 Page 4 of 27
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`510 L Street, Suite 500, Anchorage, AK 99501
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`STOEL RIVES LLP
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`Main (907) 277-1900 Fax (907) 277-1920
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`containing PFOS or PFOA, including but not limited to aqueous film-forming foams
`
`(‘AFFF’),” and Defendants are therefore responsible “for the release of vast amounts of
`
`PFOS and PFOA into Alaska’s environment,” which purportedly have resulted in injuries
`
`to natural resources, properties, and residents “throughout Alaska.” Id. ¶¶ 4, 7, 10; see also
`
`id. ¶¶ 19-20, 27-28, 67, 90-93.
`
`7.
`
`Among other sources, the Complaint alleges that PFOS and PFOA were
`
`released into the State of Alaska as a result of the use of AFFF “at airports and military
`
`bases, among other places.” Id. ¶ 65; see also id. ¶¶ 70-73. Further, the State alleged that it
`
`is “the owner and operator of a[n] . . . airport” (id. ¶ 116), and that Defendants sold
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`“Fluorosurfactant Products throughout Alaska, including to airports owned by the State”
`
`(id. ¶ 145). The Complaint defines “Fluorosurfactant Products” as “PFOS, PFOA, and/or
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`products containing PFOS or PFOA, including but not limited to aqueous film-forming
`
`foam (‘AFFF’).” (Id. ¶ 4.)
`
`8.
`
`The State asserts claims against Removing Defendants and other Defendants
`
`for strict products liability – design defect (id., First Cause of Action), strict products
`
`liability – failure to warn (id., Second Cause of Action), trespass (id., Third Cause of
`
`Action), negligence (id., Fourth Cause of Action), public nuisance (id., Fifth Cause of
`
`Action), Violation of the Alaska Unfair Trade Practices and Consumer Protection Act (id.,
`
`State of Alaska v. 3M Co., et al.
`Case No. 4:21-cv-00020-HRH
`
`5
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`Case 4:21-cv-00020-HRH Document 1 Filed 08/17/21 Page 5 of 27
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`510 L Street, Suite 500, Anchorage, AK 99501
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`STOEL RIVES LLP
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`Sixth Cause of Action), unjust enrichment (id., Seventh Cause of Action), and punitive
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`damages (id., Ninth Cause of Action).1
`
`9.
`
`Among other remedies, the State seeks damages for “costs and expenses”
`
`relating to the “investigation, sampling, testing, and assessment of the extent of PFAS
`
`contamination,” “treatment, remediation, and/or filtration of the State of Alaska’s PFAS
`
`contamination,” “removal and disposal of the State of Alaska’s PFAS contamination,” and
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`“installation and maintenance of monitoring mechanisms to assess and evaluate PFAS
`
`contamination,” including damages relating to PFAS contamination “arising from the
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`storage and use of AFFF.” Id., Prayer for Relief ¶¶ 2a-d.
`
`THE PROCDEURAL REQUIREMENTS FOR REMOVAL
`UNDER 28 U.S.C. §§ 1441 AND 1446 ARE MET
`
`10. Venue for the removal of this action is proper in this Court pursuant to 28
`
`U.S.C. §§ 81A and 1441(a) because the Superior Court for the State of Alaska, Fourth
`
`Judicial District at Fairbanks, is located within the District of Alaska.
`
`11. Removing Defendants are not required to notify or obtain the consent of any
`
`other Defendant in this action to remove this action as a whole under § 1442(a)(1). See,
`
`e.g., Durham v. Lockheed Martin Corp., 445 F.3d 1247, 1253 (9th Cir. 2006); Linden v.
`
`Chase Manhattan Corp., 1999 WL 518836, at *1 (S.D.N.Y. July 21, 1999); Torres v. CBS
`
`News, 854 F. Supp. 245, 246 n.2 (S.D.N.Y. 1994).
`
`
`1 The State also asserts fraudulent transfer claims against the DuPont and Chemours
`Defendants only. (Complaint, Eighth Cause of Action.)
`
`State of Alaska v. 3M Co., et al.
`Case No. 4:21-cv-00020-HRH
`
`6
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`Case 4:21-cv-00020-HRH Document 1 Filed 08/17/21 Page 6 of 27
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`510 L Street, Suite 500, Anchorage, AK 99501
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`STOEL RIVES LLP
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`Main (907) 277-1900 Fax (907) 277-1920
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`
`12.
`
`The State has not yet served any of the Removing Defendants with the
`
`Complaint or any other process, pleadings, or orders in this action as of this date.
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`Accordingly, this Notice of Removal is timely filed under 28 U.S.C. § 1446(b).
`
`13.
`
`Pursuant to 28 U.S.C. § 1446(d), Removing Defendants are serving a copy
`
`of this Notice of Removal upon all other parties to this case, and Removing Defendants are
`
`filing a copy with the Clerk of the Superior Court for the State of Alaska, Fourth Judicial
`
`District at Fairbanks.
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`14. By filing a Notice of Removal in this matter, Removing Defendants do not
`
`waive the rights of any Defendant to object to service of process, the sufficiency of process,
`
`jurisdiction over the person, or venue, and Removing Defendants specifically reserve the
`
`rights of all Defendants to assert any defenses and/or objections to which they may be
`
`entitled.
`
`15. Removing Defendants reserve the right to amend or supplement this Notice
`
`of Removal.
`
`16.
`
`If any question arises as to the propriety of the removal of this action,
`
`Removing Defendants request the opportunity to present a brief and oral argument in
`
`support of removal.
`
`REMOVAL IS PROPER UNDER THE FEDERAL OFFICER REMOVAL
`STATUTE, 28 U.S.C. § 1442(A)(1)
`
`17. Removal here is proper under 28 U.S.C. § 1442(a)(1), which provides for
`
`removal when a defendant is sued for acts undertaken at the direction of a federal officer.
`State of Alaska v. 3M Co., et al.
`Case No. 4:21-cv-00020-HRH
`
`7
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`510 L Street, Suite 500, Anchorage, AK 99501
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`STOEL RIVES LLP
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`Main (907) 277-1900 Fax (907) 277-1920
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`Removal is appropriate under this provision where the removing defendant establishes that:
`
`(a) it is a “person” within the meaning of the statute; (b) it acted under federal authority,
`
`and those actions have a causal nexus with the plaintiff’s claims; and (c) it can assert a
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`“colorable” federal defense. Durham, 445 F.3d at 1251; accord, e.g., Mesa v. California,
`
`489 U.S. 121, 124-25, 129-31, 134-35 (1989); Goncalves ex rel. Goncalves v. Rady
`
`Children’s Hosp. S.D., 865 F.3d 1237, 1244 (9th Cir. 2017); Anchorage v. Integrated
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`Concepts & Res. Corp., No. 3:13-cv-00063, 2013 WL 6118485, at *3 (D. Alaska Nov. 21,
`
`2013).
`
`18. Removal rights under the federal officer removal statute, 28 U.S.C. § 1442,
`
`are much broader than under the general removal statute, 28 U.S.C. § 1441. Suits against
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`defendants acting on behalf of federal officers “may be removed despite the nonfederal
`
`cast of the complaint; the federal-question element is met if the defense depends on federal
`
`law.” Jefferson Cty. v. Acker, 527 U.S. 423, 431 (1999). This is because § 1442 “protect[s]
`
`federal officers” and “guarantee[s] its agents access to a federal forum if they are sued or
`
`prosecuted.” Durham, 445 F.3d at 1253. This important federal policy “should not be
`
`frustrated by a narrow, grudging interpretation of § 1442(a)(1).” Willingham v. Morgan,
`
`395 U.S. 402, 407 (1969). To the contrary, the statute must be “liberally construed” in
`
`favor of removal. Durham, 445 F.3d at 1252 (quoting Colorado v. Symes, 286 U.S. 510,
`
`517 (1932)); accord, e.g., Anchorage, 2013 WL 6118485, at *4.
`
`State of Alaska v. 3M Co., et al.
`Case No. 4:21-cv-00020-HRH
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`8
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`Case 4:21-cv-00020-HRH Document 1 Filed 08/17/21 Page 8 of 27
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`510 L Street, Suite 500, Anchorage, AK 99501
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`STOEL RIVES LLP
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`19. All requirements for removal under § 1442(a)(1) are satisfied where, as here,
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`the notice of removal alleges that the State’s injuries were caused at least in part by MilSpec
`
`AFFF. See, e.g., Nessel, 2021 WL 744683, at *4 (denying motion to remand in PFAS case
`
`against AFFF manufacturers because, notwithstanding plaintiffs’ assertion “that they do
`
`not seek resolution of any claims related to MilSpec AFFF, . . . Plaintiffs cannot decide
`
`what defense Defendants might present”); Ayo, 2018 WL 4781145, at *6-15 (denying
`
`motion to remand and finding that federal officer removal was proper in case against AFFF
`
`manufacturers). The court overseeing the In re AFFF multi-district litigation has also found
`
`on multiple occasions that removal under § 1442(a)(1) is proper where the notice of
`
`removal alleges that plaintiffs’ claimed injuries were caused, at least in part, by MilSpec
`
`AFFF. See In re AFFF, 2019 WL 2807266, at *2-3 (federal officer removal statute
`
`“entitl[ed] [AFFF manufacturers] to have removed New York’s tort claims and [their]
`
`federal defense to federal court”); Order 3-5, In re AFFF, No. 2:18-mn-2873-RMG, ECF
`
`No. 320 (D.S.C. Sept. 27, 2019); Order 3-6, In re AFFF, No. 2:18-mn-2873-RMG, ECF
`
`No. 325 (D.S.C. Oct. 1, 2019). Given its experience with the claims and defenses in AFFF
`
`litigation, the MDL Court’s holdings clearly show that removal to federal court is proper
`
`in this case.
`
`A. MilSpec AFFF
`
`20.
`
`Since the late 1960s/early 1970s, the United States military has used MilSpec
`
`AFFF on military bases, airfields, and Navy ships—settings where fuel fires are inevitable
`
`State of Alaska v. 3M Co., et al.
`Case No. 4:21-cv-00020-HRH
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`9
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`Case 4:21-cv-00020-HRH Document 1 Filed 08/17/21 Page 9 of 27
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`510 L Street, Suite 500, Anchorage, AK 99501
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`STOEL RIVES LLP
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`and potentially devastating—to train its personnel, put out fires, save lives, and protect
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`property. Indeed, the United States Naval Research Laboratory developed AFFF—its
`
`researchers were granted the first AFFF patent in 1966.2 Decades later, the Naval Research
`
`Laboratory described the development of AFFF as “one of the most far-reaching benefits
`
`to worldwide aviation safety.”3
`
`21.
`
`The manufacture and sale of AFFF procured by the military is governed by
`
`MilSpecs created and administered by Naval Sea Systems Command. The applicable
`
`specification, Mil-F-24385, was first promulgated in 1969, and has been revised a number
`
`of times since then.4 All MilSpec AFFF products must be “qualified for listing on the
`
`applicable Qualified Products List” prior to military procurement.5 Prior to such listing, a
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`“manufacturer’s … products are examined, tested, and approved to be in conformance with
`
`specification requirements.”6 The MilSpec designates Naval Sea Systems Command as the
`
`agency responsible for applying these criteria and determining whether AFFF products
`
`
`2 U.S. Patent No. 3,258,423 (filed Sept. 4, 1963; published June 28, 1966).
`3 U.S. Navy, NRL/MR/1001-06-8951, U.S. Naval Research Lab., The U.S. Naval
`Research Laboratory (1923-2005): Fulfilling the Roosevelts’ Vision for American Naval
`Power, at 37 (June 30, 2006) (“Fulfilling the Roosevelts’ Vision”), http://bit.ly/2mujJds.
`4 See Mil-F-24385 (1969). The November 1969 MilSpec and all its revisions and
`amendments
`through April
`2020
`(MIL-PRF-24385F(4))
`are
`available
`at
`https://tinyurl.com/yxwotjpg.
`5 MIL-PRF-24385F(4) § 3.1 (2020).
`6 Dep’t of Defense SD-6, Provisions Governing Qualification 1 (Feb. 2014),
`https://tinyurl.com/y5asm5bw.
`State of Alaska v. 3M Co., et al.
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`satisfy the MilSpec’s requirements.7 After a product is added to the Qualified Products
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`List, “[c]riteria for retention of qualification are applied on a periodic basis to ensure
`
`continued integrity of the qualification status.”8 Naval Sea Systems Command “reserves
`
`the right to perform any of the [quality assurance] inspections set forth in the specification
`
`where such inspections are deemed necessary to ensure supplies and services conform to
`
`prescribed requirements.”9
`
`22.
`
`From its inception until very recently, the MilSpec for AFFF included the
`
`express requirement that MilSpec AFFF contain “fluorocarbon surfactants.” All
`
`fluorocarbon surfactants are PFAS, and that category includes PFOA, PFOS, and their
`
`precursors—the very compounds at issue in the Complaint here.10 The current MilSpec
`
`expressly contemplates the presence of PFOA and PFOS (subject to recently imposed
`
`limits) in AFFF formulations.11 Indeed, the current MilSpec recognizes that it is not yet
`
`
`7 See, e.g., MIL-PRF-24385F(4) at 18 (2020). The cited MilSpec designates Naval
`Sea Systems Command as the “Preparing Activity.” The “Preparing Activity” is
`responsible for qualification. (See Dep’t of Defense SD-6, supra note 6, at 3.)
`8 Dep’t of Defense SD-6, supra note 6, at 1.
`9 See, e.g., MIL-PRF-24385F(4) § 4.1 (2020).
`10 See Mil-F-24385 § 3.2 (1969); MIL-PRF-24385F(2) § 3.2 (2017). In May 2019,
`the MilSpec was revised to drop the explicit requirement that the surfactants in the product
`be “fluorocarbon.” See MIL-PRF-24385F(3) § 3.2 (2019). But under current technology,
`the only AFFF products capable of meeting the MilSpec’s stringent performance
`requirements—and the only ones listed on the military’s Qualified Product List—are those
`containing fluorocarbon surfactants. Thus, as a practical matter, the MilSpec still requires
`fluorocarbon surfactants.
`11 See MIL-PRF-24385F(4) § 6.6 & Tables 1, 3 (2020).
`State of Alaska v. 3M Co., et al.
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`technically feasible for manufacturers to completely eliminate PFOA and PFOS “while
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`still meeting all other military specification requirements.”12
`
`23.
`
`So-called “Part 139” airports are those serving scheduled passenger flights
`
`by nine passenger (or larger) aircraft or unscheduled passenger flights by 31 passenger (or
`
`larger) aircraft. See 14 C.F.R. § 139.1 (2019). The federal government requires Part 139
`
`airports to use MilSpec AFFF. On July 8, 2004, the FAA issued Advisory Circular
`
`150/5210-6D, which stated that “AFFF agents [used by Part 139 airports] must meet the
`
`requirements of Mil-F-24385F.”13 Although the preamble indicated that the circular was
`
`for guidance only, on February 8, 2006, the FAA issued a CertAlert clarifying that the
`
`MilSpec AFFF requirement was, in fact, mandatory and that “[a]ny AFFF purchased after
`
`July 1, 2006 by an airport operator certified under Part 139 must meet [Mil-F-24385F].”14
`
`The FAA explained:
`
`510 L Street, Suite 500, Anchorage, AK 99501
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`STOEL RIVES LLP
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`12
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`Case 4:21-cv-00020-HRH Document 1 Filed 08/17/21 Page 12 of 27
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`There are several reasons for this requirement. First of all,
`AFFF has to be compatible when mixed. AFFF manufactured
`by different manufacturers, although meeting the UL 162
`standard, may not be compatible. AFFF meeting the Military
`Specification will always be compatible with other Military
`Specification AFFF no matter the manufacturer. Second,
`AFFF meeting the military specification requires less agent
`than AFFF meeting UL 162 to extinguish the same size fire.
`
`
`Circular
`
`150/5210-6D
`
`at
`
`4,
`
`Chapter
`
`6,
`
`12 Id. § 6.6.
`Advisory
` See
`13
`https://tinyurl.com/yxpk87ky.
`14 See DOT/FAA/TC-14/22, Impact of Alternative Fuels Present in Airports on
`Aircraft Rescue
`and
`Firefighting Response
`at
`25-26
`(Aug.
`2014),
`https://tinyurl.com/rt35dgp.
`State of Alaska v. 3M Co., et al.
`Case No. 4:21-cv-00020-HRH
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`

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`
`Finally, the requirement to use Mil Spec is in concert with the
`National Fire Protection Association National Fire Code 403,
`paragraph 5.1.2.1.15
`
`24. On September 1, 2016, the FAA issued a superseding CertAlert, which
`
`reiterated that “Airport operators must ensure any AFFF purchased after July 1, 2006,
`
`meets Mil-Spec standards.”16 Thus, from July 1, 2006, to present, airport operators holding
`
`an FAA Airport Operating Certificate have been required to purchase MilSpec AFFF for
`
`use.
`
`25.
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`The State of Alaska Department of Environmental Conservation (“DEC”)
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`has identified military facilities in the State of Alaska as alleged “PFAS sites,” including
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`(among others) the Eielson Air Force Base (AFB). 17 The DEC website states that
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`“[c]ontamination from PFAS likely originates from historical fire-fighting foam use at
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`Eielson AFB.”18 MilSpec AFFF use at Eielson AFB and other military sites is a plausible
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`source of the alleged PFAS contamination giving rise to the State’s claims.
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`26.
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`The State of Alaska DEC also has identified several airports in the State of
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`Alaska as alleged “PFAS sites,” including (among others) the Fairbanks International
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`
`
`15 Id.
`16 Federal Aviation Administration, Cert Alert No. 16-05: Update on Mil-Spec
`Aqueous Film Forming Foam (AFFF) at 2 (Sept. 1, 2016), https://tinyurl.com/ya5pvbkh.
`17 See State of Alaska DEC, Division of Spill Prevention and Response,
`Contaminated Sites, Eielson Air Force Base, https://dec.alaska.gov/spar/csp/sites/eielson/;
`see also DEC, PFAS Sites in Alaska, https://dec.alaska.gov/media/21637/pfas-sites-in-
`alaska.xlsx.
`18 Eielson Air Force Base, supra note 17.
`State of Alaska v. 3M Co., et al.
`Case No. 4:21-cv-00020-HRH
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`Airport and the Gustavus International Airport.19 The DEC website states that those airports
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`are sites of historical AFFF use.20 Both airports are federally-regulated Part 139 airports
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`that are required to use MilSpec AFFF.21 MilSpec AFFF use at those sites is a plausible
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`source of the alleged PFAS contamination giving rise to the State’s claims.
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`27.
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`In addition, the State has been sued over PFAS contamination arising from
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`AFFF use at airports owned by the State, including Fairbanks International Airport and
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`Gustavus International Airport (see Ex. 2, First Amended Class Action Complaint ¶ 3,
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`Gaston v. State of Alaska, No. 4FA-19-02411 (Super. Ct. Alaska, 4th Jud. Dist. Fairbanks),
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`and in that litigation, the State has admitted that “the State owns 31 Part 139 airports,” “the
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`FAA requires or recommends the State use AFFF at Part 139 airports,” and the State “knew
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`AFFF would be used by the State or other entities at 31 airports in the State, including in
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`Fairbanks and Gustavus.” (Ex. 3, Answer to First Amended Class Action Complaint ¶¶ 4,
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`11, Gaston v. State of Alaska, No. 4FA-19-02411 (Super Ct. Alaska, 4th Jud. Dist.
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`Fairbanks)).
`
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`19 State of Alaska DEC, Division of Spill Prevention and Response, Contaminated
`Sites, Fairbanks International Airport PFAS Groundwater Contamination, https://dec.
`alaska.gov/spar/csp/sites/fairbanks-international-airport-pfas/; id., Site Report: ADOT&PF
`Gustavus Airport Sitewide PFAS, https://dec.alaska.gov/Applications/SPAR/PublicMVC/
`CSP/SiteReport/26904; see also DEC, PFAS Sites in Alaska, https://dec.alaska.
`gov/media/21637/pfas-sites-in-alaska.xlsx.
`20 Fairbanks International Airport, supra note 19; Gustavus Airport, supra note
`
`19.
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`21 FAA Part 139 Airport Certification Status List (last updated Apr. 1, 2021),
`available at https://www.faa.gov/airports/airport_safety/part139_cert/.
`State of Alaska v. 3M Co., et al.
`Case No. 4:21-cv-00020-HRH
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`28. Because the State’s claims to recover for PFOS and PFOA contamination
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`likely arise, at least in part, from the use, storage, or disposal of MilSpec AFFF at military
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`bases and airports in the State of Alaska, Removing Defendants are entitled to remove this
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`case as a whole under the federal officer removal statute, 28 U.S.C. § 1442(a)(1).
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`B.
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`All The Requirements Of 28 U.S.C. § 1442(a)(1) Are Satisfied
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`1.
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`The “Person” Requirement Is Satisfied
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`29.
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`The first requirement for removal under the federal officer removal statute is
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`satisfied because 3M (a corporation), Tyco (a limited partnership), and Chemguard (a
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`corporation) are “persons” under the statute. For purposes of § 1442(a)(1), the term
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`“person” includes “‘companies, associations, firms, [and] partnerships.’” Papp v. Fore-
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`Kast Sales Co., 842 F.3d 805, 812 (3d Cir. 2016) (quoting 1 U.S.C. § 1). The Ninth Circuit
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`has recognized that a non-natural entity is a “person” for purposes of § 1442(a)(1). See
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`Goncalves, 865 F.3d at 1244; accord, e.g., Lombardi v. TriWest Healthcare All. Corp., No.
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`CV-08-02381-PHX-FJM, 2009 WL 1212170, at *2 (D. Ariz. May 4, 2009).
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`2.
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`The “Causal Nexus” Requirement Is Satisfied
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`30.
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`The second requirement is that the defendant has acted under a federal
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`officer, and that those actions have a causal nexus with the plaintiff’s claims. Durham, 445
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`F.3d at 1251.
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`31. A defendant is “acting under” a federal officer when it assists or helps carry
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`out the duties or tasks of a federal officer. Goncalves, 865 F.3d at 1245. The words “acting
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`State of Alaska v. 3M Co., et al.
`Case No. 4:21-cv-00020-HRH
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`under” are to be interpreted broadly. Id. Federal courts “have explicitly rejected the notion
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`that a defendant could only be ‘acting under’ a federal officer if the complained-of conduct
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`was done at the specific behest of the federal officer or agency.” Papp, 842 F.3d at 813.
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`32. Removing Defendants were “acting under” a federal officer here because, in
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`providing MilSpec AFFF, Removing Defendants were furnishing a vital product “that, in
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`the absence of Defendants, the Government would have had to produce itself.” Isaacson,
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`517 F.3d at 137. MilSpec AFFF is a mission critical military product that, without the
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`support of private contractors, the government would have to produce for itself. See Ayo,
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`2018 WL 4781145, at *9 (describing MilSpec AFFF as a “mission critical” and “life-saving
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`product” used by all branches of the U.S. armed forces and NATO members). The Naval
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`Research Laboratory states that, “[a]lthough [it] was responsible for the original concepts
`
`and formulations, it was necessary to elicit the aid of the chemical industry to synthesize
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`the fluorinated intermediates and agents to achieve improvements in formulations.” 22
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`Accordingly, the military has long depended upon outside contractors like Removing
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`Defendants to develop and supply AFFF. See Nessel, 2021 WL 744683, at *3 (holding that
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`AFFF manufacturers were “acting under” a federal officer in connection with the
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`manufacture and sale of MilSpec AFFF); Ayo, 2018 WL 4781145, at *8-9 (holding that
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`Defendants were “acting under” a federal officer in connection with the manufacture and
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`sale of MilSpec AFFF); In re AFFF, 2019 WL 2807266, at *2 (finding “acting under”
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`
`22 Fulfilling the Roosevelts’ Vision at 37.
`State of Alaska v. 3M Co., et al.
`Case No. 4:21-cv-00020-HRH
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`requirement was satisfied because AFFF manufacturer defendant “has demonstrated that it
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`was manufacturing the product under the U.S. military’s guidance”). If Removing
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`Defendants and other manufacturers did not provide MilSpec AFFF for use at military
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`bases, the government would have to manufacture and supply the product itself.
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`33.
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`In designing, manufacturing, and supplying the MilSpec AFFF products at
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`issue, Removing Defendants acted under the direction and control of one or more federal
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`officers. Specifically, Removing Defendants acted
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`in accordance with detailed
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`specifications, promulgated by Naval Sea Systems Command, that govern AFFF
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`formulation, performance, testing, storage, inspection, packaging, and labeling.23 Further,
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`the AFFF products in question were subject to various tests by the United States Navy
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`before and after being approved for use by the military and for inclusion on the Qualified
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`Products List maintained by the United States Department of Defense.24
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`34.
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`The requirement that a defendant’s actions were taken “under color of federal
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`office … has come to be known as the causation requirement.” Isaacson, 517 F.3d at 137
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`(internal quotation marks, alterations, and citation omitted). Like the “acting under”
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`requirement, the “hurdle erected by this requirement is quite low.” Goncalves, 865 F.3d at
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`
`23 See Mil-F-24385 (1969) and subsequent revisions and amendments, cited in note
`4, supra.
`24 See Dep’t of Defense SD-6, supra note 6, at 1.
`State of Alaska v. 3M Co., et al.
`Case No. 4:21-cv-00020-HRH
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`1245 (quoting Isaacson, 517 F.3d at 137).25 Courts “credit Defendants’ theory of the case
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`when determining whether [this] causal connection exists.” Isaacson, 517 F.3d at 137.
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`35.
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`To show a causal nexus with the plaintiff’s claims, a defendant need only
`
`establish that the act that allegedly caused or contributed to the plaintiff’s injury occurred
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`while the defendant was performing its official duties. Isaacson, 517 F.3d at 137-38; see
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`also Papp, 842 F.3d at 813 (explaining that in order to meet the causation requirement, it
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`is “sufficient for there to be a connection or association between the act in question and the
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`federal office”).
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`36. Here, the State’s claims against Removing Defendants arise at least in part
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`from alleged contamination of its water supply with PFAS that plausibly derives from
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`MilSpec AFFF. (See supra, ¶¶ 25-27.) Removing Defendants contend that the use of such
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`chemicals was required by military specifications. The conflict is apparent: MilSpec AFFF
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`was developed for use by the military, and was designed to meet specifications established
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`by the Department of Defense. The liability that the State is attempting to impose via state
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`tort law due to the design choices related to the production of MilSpec AFFF would create
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`a conflict in which Removing Defendants could not “comply with both its contractual
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`obligations and the state-prescribed duty of care.” Boyle v. United Tech. Corp., 487 U.S.
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`25 The “acting under” and “under color of” prongs overlap. Both “are satisfied if the
`actions subject to suit resulted directly from government specifications or dire