Petition for Writ of Certiorari — Maryland, et al., Petitioners v. 3M Company

No. 25In The

Supreme Court of the United States

State of Maryland, Petitioner,

v.

3M Company, Respondent.

State of South Carolina ex rel. Alan M. Wilson,

in his official capacity as Attorney General of the

State of South Carolina, Petitioner,

v.

3M Company, Respondent.

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Fourth Circuit

APPENDIX TO PETITION

FOR WRIT OF CERTIORARI

Alan M. Wilson

Attorney General of

South Carolina

Anthony G. Brown

Attorney General of

Maryland

W. Jeffrey Young

C.H. Jones, Jr.

Jared Q. Libet

Kristin M. Simons

P.O. Box 11549

Columbia, SC 29211

jyoung@scag.gov

sjones@scag.gov

jlibet@scag.gov

ksimons@scag.gov

(803) 734-3970

Julia Doyle

Solicitor General

Victor M. Sher

Counsel of Record

Sher Edling LLP

100 Montgomery Street,

Ste. 1410

San Francisco, CA 94104

vic@sheredling.com

(628) 231-2500

Mosaic - (301) 927-3800 - Cheverly, MD

49261_Ltrhd.indd

1

6/11/08

12:44:0

TABLE OF CONTENTS

Page

Opinion, Maryland v. 3M Co., Nos. 24-1218,

24-1270 (4th Cir. Mar. 7, 2025).......................

1a

Memorandum Opinion, Maryland v. 3M Co.,

No. RDB-23-1836 (D. Md. Feb. 12, 2024).......

27a

Memorandum Opinion, South Carolina v.

3M Co., No. 2:23-cv-05979-RMG

(D.S.C. Feb. 29, 2024)......................................

37a

Order Denying Rehearing En Banc,

Maryland v. 3M Co., Nos. 24-1218, 24-1270

(4th Cir. May 28, 2025).......................................

45a

Statutory Provisions Involved.............................

47a

Non-AFFF Complaint, Maryland v. 3M Co.,

No. 24-C-23-002529

(Cir. Ct. Balt. City May 30, 2023)...................

51a

Notice of Removal, Maryland v. 3M Co.,

No. 1:23-cv-1836 (D. Md. July 10, 2023)......... 137a

AFFF Complaint, Maryland v. 3M Co.,

No. 24-C-23-002528OT

(Cir. Ct. Balt. City May 30, 2023)................... 173a

Non-AFFF Complaint, South Carolina v. 3M Co.,

No. 2023CP4004111

(Ct. Com. Pl. 5th Jud. Cir. Aug. 7, 2023)........ 261a

Notice of Removal, South Carolina v. 3M Co.,

No. 2:23-cv-05979-RMG

(D.S.C. Nov. 21, 2023)...................................... 319a

AFFF Complaint, South Carolina v. 3M Co.,

No. 2023CP4005532

(Ct. Com. Pl. 5th Jud. Cir. Oct. 17, 2023)....... 357a

1a

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 24-1218

STATE OF MARYLAND,

Plaintiff–Appellee,

v.

3M COMPANY,

Defendant–Appellant,

and

CORTEVA INC.; DUPONT DE NEMOURS INC.;

EIDP, INC., f/k/a E.I. Dupont De Nemours &

Company, Incorporated; CHEMOURS COMPANY,

Defendants.

Appeal from the United States District Court for the

District of Maryland, at Baltimore. Richard D. Bennett, Senior U.S. District Judge. (1:23-cv-01836-RDB)

No: 24-1270

In re: AQUEOUS FILM-FORMING FOAMS PRODUCTS LIABILITY LITIGATION,

STATE OF SOUTH CAROLINA EX REL ALAN

WILSON, in his official capacity as Attorney General

of the State of South Carolina,

Plaintiff–Appellee,

v.

3M COMPANY,

Defendant–Appellant,

and

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CORTEVA INC.; DUPONT DE NEMOURS INC.,

New DuPont; EIDP, INC., f/k/a E. I. DuPont De

Nemours & Company, Old DuPont; THE

CHEMOURS COMPANY; THE CHEMOURS

COMPANY FC, LLC,

Defendants.

Appeal from the United States District Court for the

District of South Carolina, at Charleston. Richard M.

Gergel, U.S. District Judge. (2:23-cv-05979-RMG)

Argued: October 30, 2024

Decided: March 7, 2025

Before AGEE and RUSHING, Circuit Judges, and

FLOYD, Senior Circuit Judge.

Vacated and remanded by published opinion. Judge

Agee wrote the opinion, in which Judge Rushing

joined. Senior Judge Floyd wrote a dissenting opinion.

ARGUED: Paul D. Clement, CLEMENT & MURPHY,

PLLC, Alexandria, Virginia, for Appellant. Victor Marc

Sher, SHER EDLING LLP, San Francisco, California;

Algernon Gibson Solomons III, SPEIGHTS & SOLOMONS, Hampton, South Carolina, for Appellee. ON

BRIEF: Amir C. Tayrani, Katherine Moran Meeks,

Zachary Tyree, Washington, D.C., Lauren R. Goldman, GIBSON, DUNN & CRUTCHER LLP, New

York, New York, for Appellant. Anthony G. Brown, Attorney General, Patricia V. Tipon, Assistant Attorney

General, Adam D. Snyder, Assistant Attorney General, OFFICE OF THE ATTORNEY GENERAL OF

MARYLAND, Baltimore, Maryland; Stephanie D.

Biehl, Ashley B. Campbell, SHER EDLING LLP, San

Francisco, California; Scott E. Kauff, Derek Y. Sug-

3a

imura, Alexander Latanision, LAW OFFICES OF

JOHN K. DEMA, P.C., Rockville, Maryland; John D.S.

Gilmour, Houston, Texas, Melissa E. Byroade, KELLEY DRYE & WARREN LLP, Washington, D.C., for

Appellee State of Maryland. Alan M. Wilson, Attorney

General, W. Jeffrey Young, Chief Deputy Attorney

General, C.H. Jones, Jr., Senior Assistant Deputy Attorney General, Jared Q. Libet, Assistant Deputy Attorney General, Kristin M. Simons, Senior Assistant

Attorney General, Danielle A. Robertson, Assistant

Attorney General, OFFICE OF THE ATTORNEY

GENERAL OF SOUTH CAROLINA, Columbia, South

Carolina; Jonathan M. Robinson, Frederick N. Hanna,

Jr., Austin T. Reed, SMITH ROBINSON HOLLER

DUBOSE & MORGAN, LLC, Columbia, South Carolina; Vincent A. Sheheen, Michael D. Wright, SAVAGE,

ROYALL & SHEHEEN, LLP, Camden, South Carolina, for Appellee State of South Carolina.

AGEE, Circuit Judge:

In this consolidated appeal, 3M Company challenges the denial of its attempts to remove two mirroring

lawsuits brought in state court by Maryland and

South Carolina (collectively, “the States”) to federal

court under 28 U.S.C. § 1442(a)(1). When a private entity like 3M invokes that provision—commonly referred to as the federal officer removal statute—as its

basis for removal, it must plausibly allege, among

other elements, that the conduct charged in the complaint was taken for or in relation to asserted federal

authority. See Anne Arundel Cnty. v. BP P.L.C., 94

F.4th 343, 347–48 (4th Cir. 2024).

This appeal asks if 3M satisfied that requirement

by plausibly alleging that its production of aqueous

film-forming foam (“AFFF”) for the United States military related to the charged conduct despite the States’

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attempts to disclaim that conduct from the scope of

their complaints. The district courts credited the

States’ respective disclaimers, and on that basis rejected 3M’s bids for federal officer removal. For the

reasons discussed below, we disagree with their conclusion. We therefore vacate the district courts’ decisions and remand for further consideration as to

whether 3M has satisfied the other elements needed

to avail itself of a federal forum under § 1442(a)(1).

I.

A.

Some states have initiated litigation to hold chemical manufacturers responsible for damaging the environment with certain manmade chemicals. Specifically, companies like 3M are being sued for their use

of a class of synthetical chemicals—per- and polyfluoroalkyl substances (“PFAS”)—in their production of

consumer and industrial products.

PFAS have useful properties, including that they

help repel heat, stains, and other harsh factors, and

are used in a wide range of goods like non-stick cookware and upholstery shields that are sold directly to

consumers. PFAS are also used in industrial products

including, as relevant here, 3M’s AFFF, a widely used

firefighting foam.

One of 3M’s AFFF customers was the United States

military, which deemed AFFF valuable enough to use

on military bases, airfields, and naval vessels to fight

fuel fires. The manufacture and sale of AFFF to the

military is governed by rigorous specifications administered by the Department of Defense, through the

Naval Sea Systems Command, which—until recently—required the use of certain PFAS in AFFF. Before

the military could procure AFFF from a private man-

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ufacturer like 3M, the AFFF had to be examined to

ensure it met the military’s specifications. And 3M’s

AFFF evidently passed DOD muster, because 3M

manufactured and sold PFAS-containing AFFF to the

United States military for more than three decades.

For clarity, we refer to the PFAS-containing AFFF 3M

produced for the military as “Military AFFF.”

Their useful qualities notwithstanding, PFAS could

pose a serious threat to the environment. PFAS dissolve easily in water due to their chemical makeup,

spread quickly and broadly, and may remain in the

environment indefinitely. In addition, PFAS can be

noxious to animals and other living organisms, and

substantial exposure to the chemical compounds could

lead to significant health issues in humans.

B.

In 2023, the States commenced PFAS-related litigation by filing lawsuits targeting 3M and other manufacturers for their role in allegedly contaminating

Maryland and South Carolina’s respective waterways

by using PFAS in the production of their products.

1.

Maryland filed two overlapping lawsuits in state

court against 3M for its alleged contamination of

Maryland waters, bringing the same seven state-law

causes of action against 3M in both complaints.1 The

only meaningful difference in the complaints is that

1 The causes of action against 3M are: (1) Strict Products Liability—Defective Design; (2) Strict Products Liability—Failure

to Warn; (3) Public Nuisance; (4) Trespass; (5) Negligence; (6)

Violation of Environment Article, Title 9, Subtitle 3; and (7) Violation of Environment Article, Title 9, Subtitle 4.

6a

one was directed toward 3M’s PFAS production

through its manufacture of AFFF generally—Military

AFFF and otherwise—while the other was directed towards 3M’s production of other PFAS-containing

products and specifically excluded any AFFF. E.g.,

J.A. 46 (“Through this [non-AFFF complaint] the

State does not, however, seek any remediation . . . related to any PFAS contamination caused by AFFF

. . . . The State’s claims with respect to AFFF are the

subject of a separate action.”).

3M promptly removed the non-AFFF suit to the

District of Maryland under the federal officer removal

statute.2 According to 3M, removal of that action was

proper despite Maryland’s disclaimer because the

PFAS from 3M’s non-AFFF products indistinguishably commingled with the PFAS from 3M’s Military

AFFF. To the extent the PFAS contamination came

from Military AFFF, 3M intended to raise the government contractor defense. And because the PFAS from

both sources were commingled, PFAS from 3M’s Military AFFF “inseparably contributed to any alleged

‘non-AFFF’ PFAS contamination.” J.A. 21. Maryland,

in turn, moved to remand the non-AFFF complaint to

state court, arguing that 3M had no basis for removal

under 28 U.S.C. § 1442(a)(1).3

In both States’ lawsuits, 3M also removed the AFFF complaint to federal court. The States did not move to remand the

AFFF complaints, nor is the removal of those complaints at issue

in this case.

We also note that 3M also initially raised federal enclave jurisdiction as a ground for removal in the States’ non-AFFF lawsuits, but no longer pursues removal on that basis.

2

3 We also note that once it removed the case, 3M also moved to

transfer this complaint to the AFFF Products Liability Litigation

MDL. The MDL Panel denied transfer but reasoned that “if it

becomes clearer that [Maryland’s] AFFF and non-AFFF actions

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The district court agreed with Maryland. In so deciding, it gave Maryland’s disclaimer dispositive effect, reasoning that by virtue of the disclaimer, the

non-AFFF complaint was limited in scope and precluded a connection between 3M’s PFAS contamination and its federal authority. Consequently, the district court determined that any possible federal

defense would not be present. Maryland v. 3M Co.,

No. 23-cv-1836, 2024 WL 1152568, at *3 (D. Md. Feb.

12, 2024) (“[T]he explicit exclusion of AFFF from this

lawsuit renders it impossible for [3M] to be held liable

for damages stemming from its actions under federal

authority, and so the requisite connection or association is missing.” (cleaned up)). It thus remanded the

non-AFFF complaint to state court.

2.

Similar to Maryland’s strategy, South Carolina also

filed two PFAS contamination lawsuits in state court,

bringing exclusively state-law claims against 3M.4

And like Maryland, South Carolina’s otherwise overlapping complaints were bifurcated on the basis that

one was directed towards 3M’s PFAS production

through AFFF products, while the other was directed

to remediate pollution from 3M’s non-AFFF PFAS

production. E.g., J.A. 275–76 (“PFAS as defined in

this Complaint expressly excludes [AFFF]. . . . The

State is not seeking to recover through this Complaint

any relief for contamination or injury related to AFFF

involve the same ground or surface waters,” transfer may eventually be appropriate. J.A. 219.

4 The stated causes of action are: (1) Public Nuisance; (2) Private Nuisance; (3) Trespass; and (4) Violation of the South Carolina Unfair Trade Practice Act.

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or AFFF products used at airports, military bases, or

certain industrial locations.”).

3M again invoked § 1442(a)(1) to remove South Carolina’s non-AFFF complaint to the District of South

Carolina for the same reasons asserted in the Maryland case. South Carolina then moved to remand to

state court on similar grounds used by Maryland: that

the scope of its complaint, considering its disclaimer,

expressly excluded any connection to AFFF and therefore 3M’s federal work. As in the Maryland case, the

South Carolina district court agreed with the state

and found that the disclaimer effectively precluded

federal officer removal. South Carolina v. 3M Co., No.

2:23-cv-05979, 2024 WL 1470056, at *3 (D.S.C. Feb.

29, 2024) (concluding that the “disclaimers moot 3M’s

government contractor defense because, whether or

not 3M meets the requirements for the defense, it cannot be held liable in this case for PFAS contamination

originating from AFFF,” and that “the charged conduct here is not connected to the alleged federal authority”). Finding no basis for removal, it remanded

the non-AFFF case to state court.

****

3M timely appealed both remand decisions and we

consolidated the appeals for review. We have jurisdiction under 28 U.S.C. § 1447(d). Cnty. Bd. of Arlington

Cnty. v. Express Scripts Pharmacy, Inc., 996 F.3d 243,

250 (4th Cir. 2021).

II.

Because they involve issues of subject matter jurisdiction, we review the district courts’ decisions on

whether to sustain federal officer removal de novo.

Anne Arundel Cnty., 94 F.4th at 347. The removing

party bears the burden of convincing us that the ac-

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tions belong in federal court. W. Va. State Univ. Bd. of

Governors v. Dow Chem. Co., 23 F.4th 288, 297 (4th

Cir. 2022). To carry that burden, it must file a notice

that includes “a short and plain statement of the

grounds for removal,” 28 U.S.C. § 1446(a), meaning

there must be “a plausible allegation” that federal jurisdiction is proper, Dart Cherokee Basin Operating

Co. v. Owens, 574 U.S. 81, 89 (2014) (explaining that

a § 1446 notice of removal is analyzed under the same

scrutiny as Rule 8’s pleading requirements).

We recite some of 28 U.S.C. § 1442(a)(1)’s guiding

principles before applying them to 3M’s appeals.

A.

By enacting the federal officer removal statute,

Congress “promise[d] a federal forum for any action

against an ‘officer (or any person acting under that officer) of the United States or of any agency thereof, in

an official or individual capacity, for or relating to any

act under color of such office.’” BP P.L.C. v. Mayor &

City Council of Balt., 593 U.S. 230, 234–35 (2021)

(quoting 28 U.S.C. § 1442(a)(1)). The statute’s purpose

is to give effect to the legislative principle that those

acting at the federal government’s direction should be

able to defend themselves in federal—not state—

court, lest states be able to stymy the federal government’s operations. See Willingham v. Morgan, 395

U.S. 402, 405–06 (1969) (recounting the statute’s history); Watson v. Phillip Morris Cos., 551 U.S. 142,

147–48 (2007) (same, and explaining how that purpose extends to protecting private parties who assist

the federal government). Coextensive with the “legislatively-spawned value judgment that a federal forum

should be available when particular litigation implicates a cognizable federal interest,” § 1442(a)(1) is

meant “to ensure a federal forum in any case where a

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federal official or private actors acting on that official’s

behalf may raise a defense arising out of his official

duties.” Gov’t of Puerto Rico v. Express Scripts, Inc.,

119 F.4th 174, 185 (1st Cir. 2024) (cleaned up); see

also Willingham, 395 U.S. at 406–407.

Accordingly, § 1442(a)(1)’s promise of a federal forum is necessarily broad.5 So rather than “narrow,

grudging interpretation[s] of the statute,” Jefferson

Cnty. v. Acker, 527 U.S. 423, 431 (1999) (quoting Willingham, 395 U.S. at 407), “the statute must be ‘liberally construed,’” Watson, 551 U.S. at 147 (quoting

Colorado v. Symes, 286 U.S. 510, 517 (1932)). And under that broad scope, the general rules guiding removal—including that a defendant may remove a case

from state to federal court only if the federal court had

original jurisdiction to hear the case, see 28 U.S.C.

§ 1441(a)—are inapplicable. Cf. Willingham, 395 U.S.

at 406 (“[T]he right of removal under § 1442(a)(1) is

made absolute whenever a suit in a state court is for

any act ‘under color’ of federal office, regardless of

whether the suit could originally have been brought in

a federal court.”). Similarly, “the ordinary presumption against removal does not apply” to federal officer

removal. Cnty. Bd. of Arlington Cnty., 996 F.3d at 251

5 Indeed, as one of our sister circuits recognized in recounting

the statute’s history, Congress has shown a steady inclination

towards broadening the statute. See Latiolais v. Huntington Ingalls, Inc., 951 F.3d 286, 290 (5th Cir. 2020) (“Some version of

this statute has been in effect since 1815. . . . Over time, though,

Congress has broadened the removal statute repeatedly.”). Particularly relevant to this appeal, Congress saw fit to amend the

federal officer removal statute in 2011 to “broaden[] the universe

of acts that enable federal removal, such that there need be only

a connection or association between the act in question and the

federal office.” Sawyer v. Foster Wheeler LLC, 860 F.3d 249, 258

(4th Cir. 2017) (cleaned up).

11a

(cleaned up). General removal principles are, in other

words, inverted when § 1442(a)(1) is at issue.

To that end, when a plaintiff sues a defendant that

can plausibly invoke removal under § 1442(a)(1), he relinquishes his otherwise ubiquitous power to select a

state forum instead of a federal one by writing his complaint a certain way. Generally, of course, a “plaintiff

is the master of the complaint,” and “the well-pleadedcomplaint rule enables him, by eschewing claims based

on federal law, to have the cause heard in state court.”

Holmes Grp. v. Vornado Air Circulation Sys., Inc., 535

U.S. 826, 831 (2002) (cleaned up). But the federal officer removal statute “is an exception to the well-pleaded complaint rule” insofar as it “allows suits against

federal officers to be removed despite the nonfederal

cast of the complaint, and reflects a congressional policy that federal officers, and indeed the Federal Government itself, require the protection of a federal forum.” Kircher v. Putnam Funds Tr., 547 U.S. 633, 644

n.12 (2006) (cleaned up); see also Jefferson Cnty., 527

U.S. at 431 (“Under the federal officer removal statute,

suits against federal officers may be removed despite

the nonfederal cast of the complaint.”).

With those principles in hand, we apply them to this

appeal.

B.

3M may sustain removal under § 1442(a)(1) if it plausibly alleges “(1) that it acted under a federal officer, (2)

that it has a colorable federal defense, and (3) that the

charged conduct was carried out for or in relation to the

asserted official authority.” Anne Arundel Cnty., 94

F.4th at 347–48 (internal quotations omitted). The district courts found that 3M had not met its burden as to

the third element based on the States’ disclaimers,

12a

which purported to establish that they were not charging 3M with conduct that was related to its production

and sale of Military AFFF. For the reasons discussed

below, we hold that finding is erroneous.

1.

To satisfy the third element under the federal officer removal statute, often referred to as the nexus or

connection requirement, “a defendant must show it is

being sued for an act or acts that it claims were done

under—or related to acts done under—federal authority.” Anne Arundel Cnty., 94 F.4th at 349. In considering whether the relevant conduct relates to a contractor’s federal work, “‘[w]e credit Defendants’ theory of

the case when determining whether’ there is such a

connection or association.” Cnty. Bd. of Arlington

Cnty., 996 F.3d at 256 (quoting Isaacson v. Dow Chem.

Co., 517 F.3d 129, 137 (2d Cir. 2008) (emphasis added)); see Jefferson Cnty., 527 U.S. at 432. Importantly,

a removing defendant need not establish “an airtight

case on the merits in order to show the required causal connection.” Jefferson Cnty., 527 U.S. at 432. That

said, a proponent for removal decidedly does not satisfy the nexus element by alleging only that the “plaintiff’s entire civil action in a general sense” is related to

the defendant’s federal work. Anne Arundel Cnty., 94

F.4th at 348.

We first reject the notion that the States’ purported

disclaimers of 3M’s federal conduct were dispositive.

The States invite us to credit their disclaimers, just as

the district courts did. They contend those complaints

were tailored to preclude any connection to 3M’s federal conduct by excluding AFFF as a source of the relevant PFAS contamination. Under their theory, we

should credit how they defined the charged conduct

which, by definition, excludes 3M’s production and sale

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of Military AFFF, thus severing 3M’s alleged federal

connection. But that theory ignores the unique lens

through which we consider federal officer removal.

Two general points illustrate why we cannot accept

the States’ attempts to immunize their complaints

from federal officer removal with their purported disclaimers in this case. First, as we have noted, a plaintiff in the § 1442(a)(1) removal context is no longer the

master of its complaint in the sense that it cannot preempt removal to a federal court merely because the

complaint is glossed only in state law. Instead, we

look to a defendant’s well-pleaded facts of removal to

see if it is entitled to a federal forum despite the “nonfederal cast of the complaint.” Kircher, 547 U.S. at 644

n.12. Second, in this context we must credit a removing defendant’s theory of the case as to whether the

conduct with which it has been charged is related to

its federal work. Cnty. Bd. of Arlington Cnty., 996 F.3d

at 256. Under these principles, we cannot blindly accept the States’ theory of charged conduct and the connection to 3M’s federal work.

As our sister circuits agree, “[a] disclaimer that requires a state court to determine the nexus ‘between

the charged conduct and federal authority’ is not a

valid means of precluding removal.” Gov’t of Puerto

Rico, 119 F.4th at 188 (quoting Willingham, 395 U.S.

at 409); Baker v. Atl. Richfield Co., 962 F.3d 937, 945

n.3 (7th Cir. 2020) (rejecting plaintiffs’ similar attempted disclaimer where the underlying dispute was

a pollutant’s source, because the defendant “allege[d]

that its Freon-12 production [for the government] resulted in waste streams that contained lead and arsenic,” which were “the two main toxins [plaintiffs] claim

harmed them”). We likewise decline to give dispositive effect to the States’ disclaimers.

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The States fight this conclusion by pointing to Wood

v. Crane Co., 764 F.3d 316 (4th Cir. 2014), a case

where we accepted a plaintiff’s disclaimer as to a potential federal source of his mesothelioma as a jurisdictional chess move to keep his case in state court. In

Wood, the plaintiff sued the Crane Company for exposing him to asbestos while working with asbestoscontaining valves and gaskets that Crane produced

for the Navy. Id. at 318. Crane invoked federal officer

removal on the basis that it could assert a federal contractor defense as to the valves, but did not make the

same contention with respect to the gaskets. Id. at

318–19. After the plaintiff disclaimed any claims related to the valves, the district court remanded the

case to state court, and only then did Crane assert

that the gaskets also served as a proper ground for

federal officer removal because they also contributed

to the plaintiff’s injury and were produced as part of

Crane’s federal work. Id. at 319–20. We upheld the

remand because Crane’s federal officer removal claim

based on the gaskets was untimely under 28 U.S.C.

§ 1446(b). See id. at 321–22.

But Wood does not bear the weight the States assign to it. There, Crane’s only timely theory of removal

was entirely different than that which 3M asserts

here. Crane’s notice of removal alleged that one source

of an indivisible injury gave rise to federal officer removal but failed to timely contest that that federal

connection was inextricably linked to its federal conduct and ensuing indivisible injury. See id. at 322–24.

For Wood to control here, 3M’s allegation that PFAS

from its Military AFFF production and its non-AFFF

production were inextricably linked would have had

to be untimely. It was not. Put another way, Crane’s

theory of the case that could have otherwise invalidated the plaintiff’s disclaimer was never properly be-

15a

fore us such that we could consider or ultimately credit it. That difference alone renders Wood inapposite.

At bottom, the States’ artful pleading does not

trump 3M’s theory for removal here. Accordingly, the

States’ disclaimers are not dispositive to whether the

third element for establishing removal has been satisfied. The district courts erred in holding otherwise.

That said, our conclusion that the States’ disclaimers are not dispositive does not necessarily mean that

3M has satisfied the third element; it still bears the

burden of showing that it satisfied the requisite nexus. Accordingly, we ask if, under 3M’s theory of the

case, it plausibly alleged that its charged conduct was

related to its federal work. See Anne Arundel Cnty.,

94 F.4th at 349. Under that theory, the nexus element would be satisfied because PFAS from different

sources commingle to the point that it is impossible to

identify the precise source of a contaminant once

those chemicals seep into the relevant waterways.

Some of the PFAS contamination charged by the

States came from Military AFFF, so any remediation

would necessarily implicate work that 3M did for the

federal government.

Though it may not be an “airtight case on the merits,” it does not have to be, Jefferson Cnty., 527 U.S. at

432, and we conclude that 3M’s theory of connection

holds sufficient water to establish this element under

the federal officer removal statute’s broad scope. Both

States plead general PFAS contamination near military bases where 3M alleges it sold Military AFFF. On

this record, we have no trouble considering as plausible 3M’s allegations that some of the PFAS contamination at issue even in the non-AFFF complaints may

come from their Military AFFF production.

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3M identifies two pertinent questions that highlight how the charged conduct relates to its federal

work. First, deciding whether certain PFAS contamination came from 3M’s Military AFFF or from its

non-AFFF products presents a challenging causation

question— one that 3M argues is impossible to bifurcate—that will ultimately fall to a factfinder. Second,

assuming that causation question can be answered,

the same factfinder must then apportion how much of

a given sample of PFAS contamination came from

Military AFFF compared to non-AFFF products.

Whatever factfinder ultimately decides liability in

this case will have to disentangle those questions.

The need to unravel such challenging questions in

this case establishes that 3M’s federal work is inextricably related to the charged conduct. See Baker,

962 F.3d at 943–45.

Baker indicates that a company like 3M satisfies

the nexus element for removal if the factfinder will

need to identify the sources of pollutants where the

company has been charged with polluting the environment through manufacturing some products for

the federal government. In Baker, residents of a

housing complex sued a host of industrial manufacturing companies for contaminating the soil around

the site with harmful chemicals. Id. at 940. The

plaintiffs argued that the relevant pollution came

from the chemical companies’ general consumer operations, while the chemical companies invoked federal officer removal on the basis that some of the pollution came from their production of goods for the

federal government during World War II. Id. The

residents opposed removal on the ground that the

companies failed to establish the nexus requirement

because they had not shown that the plaintiffs’ injuries were caused by the companies’ federal work. See

17a

id. at 943–44. The Seventh Circuit disagreed and

concluded that the companies established the nexus

element because the plaintiffs’ “questions about

whether the Companies’ pollution that allegedly

caused the Residents’ injuries flowed from the Companies’ specific wartime production for the federal

government or from their more general manufacturing operations outside those confines” were “merits

questions that a federal court should decide.” Baker,

962 F.3d at 944 (citing Willingham, 395 U.S. at 409)

(emphasis in original).

Because 3M has plausibly alleged that the PFAS

intermingled to the point that it is impossible to identify their source, we can plausibly infer that 3M’s Military AFFF contributed to at least a “portion of their

relevant conduct.” Id. at 945. Thus, “[g]iving [it] the

benefit of all reasonable inferences from the facts alleged,” we conclude that 3M has satisfied the nexus

requirement. Id. After all, the federal officer removal

statute’s purpose is to provide a federal forum “when

particular litigation implicates a cognizable federal

interest,” like holding a government contractor liable

for producing products for, and in line with the specifications, of the United States military. Gov’t of Puerto Rico, 119 F.4th at 185 (internal quotations omitted). Where the parties dispute difficult factual

questions about that federal interest, a contractor

acting at the government’s direction “should have the

opportunity to present their version of the facts to a

federal, not a state, court.” Willingham, 395 U.S. at

409; Gov’t of Puerto Rico, 119 F.4th at 189 (“To the

extent the parties raise factual disputes about the

scope of a defendant’s federal obligations, Congress

gave federal officers ‘the protection of a federal forum’

in which to resolve those disputes.” (quoting Willingham, 395 U.S. at 407)).

18a

If, on the other hand, a plaintiff concedes that those

kinds of difficult questions are unnecessary for purposes of establishing liability, it may remain in state

court. See Illinois ex rel. Raoul v. 3M Co., 111 F.4th

846, 849 (7th Cir. 2024). In Raoul, Illinois sued 3M for

PFAS contamination emanating from a single facility,

disclaiming contamination from any other facility. Id.

at 847–48. 3M removed the suit under 28 U.S.C.

§ 1442(a)(1), alleging that some of the same PFAS contamination could have come from Military AFFF that

was being stored at a military arsenal twenty-five

miles up the river. Id. at 848. But Illinois “clearly and

unequivocally conceded at oral argument that it would

not seek relief against 3M for mixed PFAS contamination” and “expressly agreed that a factfinder will not

need to apportion the PFAS contamination between

sources.” Id. at 849. That concession meant that “[i]f

even a morsel of contamination [was] not from PFAS

produced at the [non-military] Facility, . . . the State’s

recovery [was] barred.” Id. The Seventh Circuit affirmed the district court’s remand to state court, concluding the case fell “outside the scope of Baker” because Illinois’ concession mooted the causation and

apportionment questions 3M now cites.6 Id.

Raoul was published after briefing in this appeal

concluded, but both parties submitted letters addressing it under Fed. R. App. P. 28(j). Soon thereafter, we

asked the States whether they intended to make a

similar concession as Illinois did in Raoul such that

their recovery would be barred if “even a morsel of

6 The Raoul court determined that Illinois’ concession meant

that 3M failed the “colorable federal defense” element of federal

officer removal. Raoul, 111 F.4th at 849. However, its reasoning

is sound in comparing it with the relevant parts of Baker discussed previously.

19a

contamination” derived from Military AFFF. ECF No.

52. The States made clear they did not so concede, instead arguing that such a concession was unnecessary

because, despite the inevitable presence of the causation and apportionment questions in state proceedings, there was still “no federal connection to the nonAFFF PFAS contamination that is the charged conduct

in these lawsuits.” ECF No. 53.

For the reasons just discussed, we disagree with the

States. In Raoul, “100% of th[e] contamination must

[have been] sourced from” the single, geographically

limited facility for the state to recover. 111 F.4th at

849. As a result, no state factfinder would need to “apportion the PFAS contamination between sources.”

Id. But here, the States envision recovering for mixed

PFAS contamination from numerous geographic locations. Even if they cannot ultimately recover for PFAS

contamination from Military AFFF based on the scope

of their complaints, a factfinder must, unlike in Raoul,

still decide the important causation and allocation

questions. And as stated, those are merits questions

that belong in federal court. Cf. Gov’t of Puerto Rico,

119 F.4th at 189; Baker, 962 F.3d at 944.

In sum, we hold that 3M’s Military AFFF production is inextricably related to the States’ general allegations of PFAS contamination, notwithstanding their

attempts to draw a line between 3M’s federal and nonfederal work.

2.

Now satisfied that 3M meets the nexus element of

the federal officer removal statute, “we turn to whether the case should be remanded to the district court

for a ruling on the remaining two requirements for

federal officer removal”—that it (1) acted under a fed-

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eral officer and (2) has a colorable federal defense—or

if we should conduct the rest of the analysis in the

first instance, as 3M requests. Cnty. Bd. of Arlington

Cnty., 996 F.3d at 254. That decision is discretionary,

but we believe it best here to follow the general rule

that “federal appellate courts should not consider issues that were not first addressed by the district

court.” Id. (citing Bakker v. Grutman, 942 F.3d 236,

242 (4th Cir. 1991)). In County Board of Arlington

County, we went on to consider the remaining federal

officer removal elements despite the district court not

having done so under the “unique circumstances” of

that appeal, including the fact that the other elements

had “been fully briefed.” Id. Because similarly unique

circumstances are not present here, we will not exercise the same discretion and will leave it to the district

courts to consider whether 3M is otherwise entitled to

federal officer removal in each case.

We note that this case is likely one where “the acting-under and causal-nexus prongs . . . collapse into a

single requirement.” Mayor & City Council of Balt. v.

BP P.L.C., 31 F.4th 178, 228 (4th Cir. 2022) (cleaned

up). But though the district courts mentioned the colorable defense element, their findings on that element

stemmed entirely from their decisions—which we now

hold were misguided—to give the States’ disclaimers

dispositive effect. See Maryland v. 3M Co., 2024 WL

1152568, at *3 (noting that “3M fail[ed] to demonstrate the . . . colorable federal defense to sustain removal to federal court,” because the State “abandoned

any claims in this case that would allow 3M to utilize

the government contractor defense”); South Carolina

v. 3M Co., 2024 WL 1470056, at *3 (reasoning that

“the disclaimers moot 3M’s government contractor defense because, whether or not 3M meets the requirement for the defense, it cannot be held liable in this

21a

case for PFAS contamination originating from AFFF”).

The States’ briefing before us did the same thing, and

even 3M’s briefing on these important remaining elements was perfunctory. And the parties did not touch

on the colorable federal defense at oral argument.

This is not a case where the remaining elements have

been robustly engaged throughout the process.

Instead of deciding these issues for the first time

without the benefit of full briefing, we find the better

course is to allow the district courts to decide in the

first instance whether 3M plausibly alleged a colorable federal defense in each case with the understanding that 3M satisfied the nexus element for removal.

III.

Despite the States’ artful crafting of their complaints,

3M’s notices of removal plausibly alleged that the conduct for which the States sued them is at least related

to the company’s federal work. We therefore vacate the

district courts’ decisions and remand for consideration

of whether 3M satisfied the other elements needed for

federal officer removal, should the States continue to

challenge removal, as well as such other necessary proceedings consistent with this opinion.

VACATED AND REMANDED

FLOYD, Senior Circuit Judge, Dissenting:

Maryland and South Carolina sought remediation

for alleged harm to natural resources within their

boundaries due to 3M’s production of products containing PFAS. Each state filed two actions: one alleged

harm from production of PFAS-containing firefighting

foam used at military installations and commercial

airports, referred to generally as AFFF; the other alleged harm from non-AFFF sources including “food

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packaging, carpeting, cookware, clothing, and upholstery” manufactured for the consumer market. J.A.

43. 3M removed both suits to district court. The district court then remanded the States’ non-AFFF suits,

which raise exclusively state law claims, to state court

because it found the States’ disclaimers on recovery

from AFFF effective.

The majority vacates those remand orders, holding

that, under 3M’s theory of the case, the non-AFFF

suits are sufficiently “relat[ed] to” acts taken under

federal authority within the meaning of the relevant

removal statute, 28 U.S.C. § 1442(a)(1). However, I

would affirm the district court’s remand orders. I respectfully dissent.

I agree with the majority that the federal officer removal statute serves an important purpose in our

courts. It functions to “protect against the interference

with federal operations that would ensue if a state

were able to arrest federal officers and agents acting

within the scope of their authority and bring them to

trial in a state court for an alleged state-law offense.”

Mayor and City Council of Baltimore v. BP P.L.C., 952

F.3d 452, 461 (4th Cir. 2020) (noting avoidance of prejudice against unpopular federal law or federal officials,

impediments to enforcement of federal law, or inability

to assert federal defenses as goals of statute), vacated

on other grounds, 593 U.S. 230 (2021). And I too acknowledge that the statute must be “liberally construed” and that the “ordinary ‘presumption against

removal’ does not apply.” Id. (quoting Betzner v. Boeing Co., 910 F.3d 1010, 1014 (7th Cir. 2018)).

Even so, I believe the district court properly granted

the States’ motions to remand these cases to state

court. While our Court and others have recognized

that a broad range of conduct satisfies the nexus re-

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quirement for purposes of federal officer removal jurisdiction, I would not read the removal statute to

sweep so broadly to include the States’ non-AFFF

claims in the present consolidated appeals.

My view is guided by the factual dissimilarities between other cases considering the nexus issue and the

one before us, starting with Baker v. Atlantic Richfield

Co., 962 F.3d 937 (7th Cir. 2020). In Baker, the complained-of contaminants—lead and arsenic—were

components of the Freon-12 that removing defendants

had produced for the federal government during World

War II. See id. at 945 n.3. The plaintiffs sought to disclaim relief from harm alleged to have occurred during the defendants’ wartime production and leave

open only the possibility of recovery for lead and arsenic pollution generated outside that time frame. See

id. at 945. Unlike the State plaintiffs before us, the

Baker plaintiffs sought to excise recovery for a particular period of defendants’ conduct (which resulted in

lead and arsenic pollution) and to recover only for that

same pollution produced at the same facility at different times, when the facility was not manufacturing

products for the federal government. See id. In other

words, I think the case we decide today is distinguishable from Baker because South Carolina and Maryland seek to recover from harm resulting from a discrete category of consumer products unrelated to 3M’s

federal conduct of manufacturing firefighting foam to

military specifications.*7

* More recently, the Seventh Circuit decided Illinois ex rel.

Raoul v. 3M Co., 111 F.4th 846 (7th Cir. 2024). Raoul presented

similar facts to the case before us, except for a disclaimer of relief

related to mixed PFAS contamination—a disclaimer the plaintiffs in this case did not make. See id. at 848–49. The Raoul court

permitted the case to remain in state court because the disclaimer foreclosed the possibility of a “colorable federal defense.” Id. at

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Other decisions ruling on this aspect of federal officer removal likewise reveal stronger links “between

the charged conduct and asserted official authority”

than the one here. Baker, 962 F.3d at 943. In Latiolais

v. Huntington Ingalls, Inc., an en banc Fifth Circuit

held that the defendant shipyard seeking removal

showed that the nexus requirement was satisfied. 951

F.3d 286, 296 (5th Cir. 2020). The plaintiff, Latiolais,

worked as a machinist at the shipyard and alleged his

mesothelioma was caused by asbestos exposure when

the defendant refurbished a U.S. Navy ship pursuant

to a federal contract. See id. at 289–90. The court rejected the plaintiff’s argument that the asbestos exposure did not meet the nexus requirement because the

defendant “performed the refurbishment and, allegedly, the installation of asbestos pursuant to directions of the U.S. Navy.” Id. at 296. The First Circuit

also declined to credit the Commonwealth of Puerto

Rico’s purported disclaimer of “relief relating to any

federal program” in defendant Caremark’s prescription drug rebate negotiations, which plaintiff Puerto

Rico contended improperly inflated the price of insulin

and other medications. Gov’t of Puerto Rico v. Express

Scripts, Inc., 119 F.4th 174, 181–82 (1st Cir. 2024).

The court recognized that Caremark’s negotiations

concerned private insurance plans and federally administered insurance plans at the same time; there

were no federal-only negotiations, and no way to separate them for purposes of recovery. See id. at 191–92.

Therefore, the Commonwealth’s claims remained in

federal court. Id. at 194.

849. But I disagree with the implicit holding in Raoul that the

nexus requirement was satisfied under the facts of that case for

the same reasons I disagree with the outcome here: the tenuous

connection between the non-AFFF claims and actions taken under federal authority.

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Finally, our most recent discussion of this issue:

Sawyer v. Foster Wheeler LLC, 860 F.3d 249 (4th Cir.

2017). In Sawyer, we reversed the district court’s order remanding the litigation to state court. Id. at 252–

53. Like the Latiolais plaintiff, the Sawyer plaintiff

was employed at a shipyard, worked on U.S. Navy

vessels, and was allegedly exposed to asbestos during

that time. Id. His estate brought an action in state

court against Foster Wheeler, a boiler manufacturer,

alleging that it had failed to warn him of the dangers

of asbestos used in the boilers. Id. However, in assessing whether this conduct “relate[d] to” an act taken

under federal authority, 28 U.S.C. § 1442(a)(1), we determined it was sufficiently related because “the Navy

dictated the content of warnings” on the boilers and

Foster Wheeler installed them according to Navy requirements. Sawyer, 860 F.3d at 258.

I am concerned that today’s decision will sweep lawsuits properly before state courts into federal fora, at

least to the extent it concerns a given claim’s nexus to

acts under federal authority. The decisions outlined

above share an important attribute: the complainedof conduct could not be separated from the relevant

federal authority. See Baker, 962 F.3d at 945 n.3 (lead

and arsenic pollution from facility where governmentcontractor produced same pollution); see also Express

Scripts, 119 F.4th at 191 (pharmaceutical price negotiations were not separated into “federal” and “nonfederal” components); Latiolais, 951 F.3d at 289–90

(asbestos exposure from work on Navy ship at shipyard); Sawyer, 860 F.3d at 258 (same). In this case,

3M seeks to remove a claim seeking recovery for pollution from products made for and sold on the consumer

market; the majority concludes that the causal nexus

is satisfied because the resulting pollutants are commingled in the environment. I believe that this con-

26a

nection is too tenuous to support removal jurisdiction—while some of the pollution may be commingled,

that does little to alter the fact that the non-AFFF

PFAS pollution is caused by 3M’s manufacturing activities that are entirely unrelated to its work as a

government contractor.

As I see it, the court reads the nexus requirement so

broadly as to move toward foreclosing state courtrooms to plaintiffs bringing state-law claims against

defendants, when those defendants in turn identify

even the slightest connection between the claims at

issue at work they have performed as government

contractors. But “[o]ur federal system trusts state

courts to hear most cases—even big, important ones

that raise federal defenses.” City of Hoboken v. Chevron Corp., 45 F.4th 699, 705 (3d Cir. 2022). Given

what I see as the scant connection shown between

3M’s production of consumer products and its AFFF

production, I would trust the courts of Maryland and

South Carolina to hear these cases and ensure any liability is apportioned properly.

Because I do not think the alleged non-AFFF PFAS

pollution providing the basis for the State’s claims

sufficiently relates to 3M’s acts performed for the federal government, I would affirm the district court’s remand orders. The majority does not, and so I respectfully dissent.

27a

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

Civil Action No. RDB-23-1836

STATE OF MARYLAND,

Plaintiff,

v.

3M COMPANY, et al.,

Defendants.

MEMORANDUM ORDER

This case was brought by the State of Maryland

(“the State”) against 3M Company (“3M”) and other

defendants in the Circuit Court for Baltimore City. It

was removed to this Court by 3M, alleging that this

Court had jurisdiction under the federal officer removal statute, 28 U.S.C. § 1442(a)(1), and that federal enclave jurisdiction provided an alternative basis for removal under 28 U.S.C. §§ 1331 and 1441(a). (ECF No.

1 at 3.) The Complaint (ECF No. 5), which is one of a

series of complaints brought nationwide, alleges that

substances are responsible for groundwater and air

contamination. Specifically, the Complaint focuses on

per- and polyfluoroalkyl substances (“PFAS”), which

allegedly leach into groundwater and contaminate

drinking water supplies. The Complaint specifically

excludes aqueous film-forming foam (“AFFF”), which

are used at airports and military bases to extinguish

liquid fuel fires. The State of Maryland brought a separate complaint regarding AFFF that was subject to

multidistrict litigation (“MDL”) and has now been

transferred out of this District. In this case (the nonAFFF PFAS case), this Court previously granted a

28a

stay awaiting a determination of whether Defendant

3M’s motion to transfer under MDL would be granted.

The Judicial Panel on Multidistrict Litigation

(“JPML”) issued an Order denying transfer on October 4, 2023. (ECF No. 44.)

Because transfer was denied, the State’s Motion to

Remand to the Circuit Court for Baltimore City (ECF

No. 23) must now be addressed. The issues regarding

vacating this Court’s stay order are now moot. The

State argues that “neither basis that 3M presents—

the federal-officer removal statute, 28 U.S.C. § 1442(a)

(1), and/or the assertion that the case arose on ‘federal

enclaves’—” adequately provide a basis for removal.

(ECF No. 23-1 at 5.)1 The parties’ submissions have

been reviewed and no hearing is necessary. See Local

Rule 105.6 (D. Md. 2023). For the reasons that follow,

the State’s Motion to Remand to the Circuit Court for

Baltimore City (ECF No. 23) is GRANTED and this

case is REMANDED to the Circuit Court of Maryland

for Baltimore City.

BACKGROUND

The facts set forth below are viewed in the light most

favorable to Plaintiff, as Defendant 3M bears the burden of demonstrating that removal is proper. Strawn

v. AT&T Mobility, LLC, 530 F.3d 293, 297 (4th Cir.

2008). The State of Maryland brought “this action

against Defendants to address widespread contamination of its natural resources—particularly the drinking

water supplies upon which its citizens depend—with

toxic per- and polyfluoroalkyl substances (‘PFAS’), including but not limited to perfluorooctane sulfonic acid

1 Unless otherwise indicated, this Memorandum Order cites to

the ECF generated page number rather than the page number at

the bottom of the parties’ various submissions.

29a

(‘PFOS’) and perfluorooctanoic acid (‘PFOA’).” (ECF

No. 5 ¶ 1.) “PFAS are highly fluorinated synthetic

chemical compounds that include carbon chains containing at least one carbon atom on which all hydrogen

atoms are replaced by fluorine atoms.” (Id. ¶ 29.) Defendants are manufacturers who have allegedly “designed, manufactured, marketed, and sold products

that contain PFAS (‘PFAS Products’),” including “food

packaging, carpeting, cookware, clothing, and upholstery.” (Id. ¶ 2–3.) According to the Complaint, “[t]he

PFAS family, including PFOS and PFOA, has characteristics that cause extensive and long-lasting environmental contamination.” (Id. ¶ 30.) Defendants allegedly “knew for decades that their PFAS were toxic and

posed significant risks to human health and the environment,” and they allegedly “knew specifically that

their PFAS were reaching drinking water supplies and

accumulating in people’s bodies as they were exposed

to the chemicals over time.” (Id. ¶ 4–5.) The Complaint

alleges that Defendants “have caused significant PFAS

contamination in the State’s drinking water, groundwater, surface water, soil, sediment, wildlife, other

natural resources, and property held in trust or otherwise owned by the State.” (Id. ¶ 8.) The Complaint further alleges “that exposure to PFAS may lead to significant negative health effects,” including decreased

fertility, developmental delays, increased risk of some

cancers, hormonal changes, and increased cholesterol

levels. (Id. ¶ 10.)

On May 30, 2023, “[t]he State filed the instant Complaint in the Circuit Court for Baltimore City, seeking

damages to cover the costs of PFAS-related environmental restoration, remediation, and testing, and also

equitable relief for abatement.” (ECF No. 23-1 at 7.)

The 11-count Complaint raised state-law claims for

products liability, public nuisance, trespass, negli-

30a

gence, violations of Maryland’s Environmental Article, and fraudulent transfer. (ECF No. 5.) The Complaint included a footnote explaining that the term

PFAS, as used in the Complaint, does not “include

aqueous film-forming foam (‘AFFF’) or fluorosurfactants that were designed for and specifically incorporated into AFFF, which are the subject of a separate

action.” (Id. at 3 n.2.) Accordingly, the Complaint alleges that the State, in this action, does not “seek any

remediation, restoration, damages, or any other relief

related to any PFAS contamination caused by AFFF

or fluorosurfactants when used as ingredients of

AFFF. The State’s claims with respect to AFFF are

the subject of a separate action.” (Id. ¶ 13.)

On July 10, 2023, Defendant 3M filed a notice of removal from the Circuit Court for Baltimore City. (ECF

No. 1.) On August 1, 2023, Defendant 3M moved to stay

this action pending a transfer decision by the Judicial

Panel on Multidistrict Litigation (“JPML”). (ECF No.

17.) This Court granted the motion to stay on August 2,

2023. (ECF No. 18.) On August 9, 2023, the State moved

for reconsideration on this Court’s stay order while also

moving to remand the case back to state court. (ECF

No. 23.) On October 4, 2023, the JPML denied 3M’s motion to transfer. (ECF No. 44.) Accordingly, the State’s

motion for reconsideration is now moot, and the Motion

to Remand is ripe for review.

STANDARD OF REVIEW

A defendant in a state civil action may remove the

case to federal court if the federal court can exercise

original jurisdiction over at least one of the asserted

claims. 28 U.S.C. § 1441(a)-(c). Additionally, the federal

officer removal statute, 28 U.S.C. § 1442(a)(1), authorizes removal of “[a] civil action or criminal prosecution

that is commenced in a State court and that is against

31a

or directed to . . . [t]he United States or any agency

thereof or any officer (or any person acting under the

officer) of the United States or of any agency thereof, in

an official or individual capacity, for or relating to any

act under color of such office.” 28 U.S.C. § 1442(a)(1).

Once an action is removed to federal court, the plaintiff

may file a motion to remand the case to state court if

there is a contention that jurisdiction is defective. 28

U.S.C. § 1447(c). When considering motions to remand,

courts must interpret the federal officer removal statute broadly. See Arizona v. Manypenny, 451 U.S. 232,

242 (1981) (citing Willingham v. Morgan, 395 U.S. 402,

407 (1969)). It is well established that the party seeking removal bears the burden of establishing jurisdiction in the federal court. Johnson v. Advance America,

549 F.3d 932, 935 (4th Cir. 2008).

ANALYSIS

I. Federal Officer Removal

To sustain removal under Section 1442, a defendant must satisfy three elements. First, the defendant must demonstrate that it is “an officer of the

United States or ‘acting under’ a federal officer within the meaning of the statute.” Mayor and City Council of Balt. v. BP P.L.C., 388 F. Supp. 3d 538, 567 (D.

Md. 2019) (citing Sawyer v. Foster Wheeler LLC, 860

F.3d 249, 254 (4th Cir. 2017)). Second, the defendant

must establish a causal nexus between its challenged

conduct and official authority by showing that the

conduct occurred “for or relating to” official federal

authority. Id. (citing 28 U.S.C. § 1442(a)(1)). Finally,

the defendant must also assert “a colorable federal

defense.” Id. (citing Sawyer, 395 U.S. at 254). While

the court must construe facts alleged in support of

the defendant’s colorable federal defense as true, the

32a

defendant bears the burden to allege facts sufficient

to allow the court to conclude that such a defense is

plausible. North Carolina v. Ivory, 906 F.2d 999,

1001 (4th Cir. 1990); Jefferson Cnty. v. Acker, 527

U.S. 423, 432 (1999). “The central purpose of the federal officer removal statute is to protect the federal

government and its operations from potential interference by the states through proceedings in state

court.” Illinois ex rel. Raoul v. 3M Co., No.

422CV04075SLDJEH, 2023 WL 6160610, at *2 (C.D.

Ill. Sept. 21, 2023) (citing Watson v. Philip Morris

Cos., 551 U.S. 142, 150 (2007)).

3M attempts to sustain federal officer removal under the government contractor defense. “A government contractor is entitled to removal under Section

1442 when” it satisfies the federal officer removal requirements. Northrop Grumman Tech. Servs., Inc. v.

DynCorp Int’l LLC, 865 F.3d 181, 186 (4th Cir. 2017).

The third element for removal, “a colorable federal defense,” may be met by the government contractor defense, which exempts government contractors from

liability for design defects in military equipment

“when (1) the United States approved reasonably precise specifications; (2) the equipment conformed to

those specifications; and (3) the supplier warned the

United States about the dangers in the use of the

equipment that were known to the supplier but not to

the United States.” Boyle v. United Techs. Corp., 487

U.S. 500, 512 (1988). However, “[s]imply asserting a

federal defense is not, on its own, sufficient to show

removal jurisdiction under § 1442(a)(1). Rather,

§ 1442(a)(1) also requires that the plaintiff’s claims

have a nexus to the defendant’s acts under federal authority.” New Hampshire v. 3M Co., 665 F. Supp. 3d

215, 229 (D.N.H. 2023) (citing Jefferson Cnty., Ala. v.

Acker, 527 U.S. 423, 431 (1999)).

33a

3M’s government contactor defense relies on its production of MilSpec AFFF, which is AFFF “that 3M

and others developed and sold to the U.S. military in

accordance with rigorous military specifications (‘MilSpec’) issued by the Department of Defense (‘DoD’).”

(ECF No. 1 ¶ 2.) In this case, 3M has expressly disclaimed “any relief . . . related to any PFAS contamination caused by AFFF or fluorosurfactants when

used as ingredients of AFFF.” (ECF No. 5 ¶ 13.) That

includes 3M’s alleged basis for removal, MilSpec

AFFF—a chemical that 3M asserts it had official authority to manufacture. By excluding MilSpec AFFF

and all other types of AFFF from its Complaint, the

State has abandoned any claims in this case that

would allow 3M to utilize the government contractor

defense. The State’s disclaimer here is effective. In

three identical cases, federal courts have remanded to

state court due to similar disclaimers. See New Hampshire v. 3M Co., 665 F. Supp. 3d 215, 220 (D.N.H.

2023) (“The State disclaimed in this suit recovery for

harm from AFFF contamination, which eliminates

any connection between the State’s claims in this suit

and 3M’s production of MilSpec AFFF.”); Maine v. 3M

Co., No. 2:23-CV-00210-JAW, 2023 WL 4758816, at

*10 (D. Me. July 26, 2023) (“[T]he federal officer defense will not be applicable in the State’s Non-AFFF

lawsuit because the State by its express disclaimer

has imposed upon itself a burden to demonstrate that

its claim involves Non-AFFF sources.”); Illinois ex rel.

Raoul v. 3M Co., No. 422CV04075SLDJEH, 2023 WL

6160610, at *2 (C.D. Ill. Sept. 21, 2023) (“By renouncing all claims stemming from a contractor’s work for

the federal government, it no longer becomes necessary to assert the federal government contractor defense.”). Those courts found that “[c]ourts have consistently granted motions to remand where the plaintiff

expressly disclaimed the claims upon which federal

34a

officer removal was based.” Illinois, 2023 WL 6150510,

at *5 (quoting Reinbold v. Advanced Auto Parts, Inc.,

No. 18-CV-605-SMY-DGW, 2018 WL 3036026, at *2

(S.D. Ill. June 19, 2018)); see also Maine, 2023 WL

4758816, at *10 (“Where express disclaimers are

made, ‘federal courts have consistently granted motions to remand where the plaintiff expressly disclaimed the claims upon which federal officer removal

was based.’” (quoting Dougherty v. A O Smith Corp.,

No. CV 13-1972-SLR-SRF, 2014 WL 3542243, at *10

(D. Del. July 16, 2014))).

Because the State has expressly disclaimed any

AFFF-related claims, 3M cannot establish the requisite nexus between charged conduct and asserted official authority. Northrop, 865 F.3d at 186. In this

case, as in New Hampshire, Maine, and Illinois, the

explicit exclusion of AFFF from this lawsuit renders it

“impossible for Defendant to be held liable for damages stemming from its actions under federal authority, and so the requisite connection or association is

missing.” Illinois, 2023 WL 6150510, at *6. 3M therefore fails to demonstrate the requisite nexus or colorable federal defense to sustain removal to federal

court under the federal officer removal statute. Accordingly, the State’s Motion to Remand (ECF No. 23)

shall be GRANTED and this case shall be REMANDED to the Circuit Court for Baltimore City.

II. Federal Enclave Jurisdiction

As an alternative basis for removal, 3M asserts that

the State’s claims in this case “have arisen in part on

federal enclaves,” thereby allowing federal enclave jurisdiction. (ECF No. 1 ¶ 5.) Federal enclave jurisdiction provides original federal jurisdiction, which therefore would allow removal under 28 U.S.C. § 1441(a).

“[F]ederal-question jurisdiction tied to federal enclaves

35a

‘generally requires “that all pertinent events t[ake]

place on a federal enclave.”’” Mayor & City Council of

Baltimore v. BP P.L.C., 31 F.4th 178, 219 (4th Cir.

2022) (second alteration in original) (quoting Bd. of

Cnty. Cmm’rs of Boulder Cnty. v. Suncor Energy

(U.S.A.) Inc., 25 F.4th 1238, 1271 (10th Cir. 2022)).

However, 3M fails to demonstrate that all pertinent

events related to the issues in this case occurred on a

federal enclave. Instead, it asserts only that “[s]ome

federal facilities in Maryland . . . are or were federal

enclaves when AFFF and/or other PFAS or PFAS-containing products were released from such facilities.”

(ECF No. 1 ¶ 59.) The fact some of the State’s claims

may have arisen in part from some federal enclaves is

insufficient to grant federal enclave jurisdiction. Quite

simply, 3M’s allegations are insufficient to meet the

requirements for federal enclave jurisdiction. See

Rhode Island v. Shell Oil Prod. Co., 35 F.4th 44, 58

(1st Cir. 2022) (finding allegation that “a big chunk” of

pertinent events occurred on federal enclaves insufficient for federal enclave jurisdiction). Moreover, in this

case, as in Maine, even if some of the claims arose in

part from locations that “could fit within federal enclave jurisdiction, the State has disclaimed any AFFF

claims, including those arising from a federal enclave,

so the argument circles back to the State’s disclaimer.”

Maine, 2023 WL 4758816, at *10. 3M therefore cannot

remove under the basis of federal enclave jurisdiction.

Accordingly, this case shall be REMANDED to the Circuit Court for Baltimore City.

CONCLUSION

For the reasons stated above, it is this 12th day of

February, 2024, hereby ORDERED that:

1. Plaintiff’s Motion to Remand to the Circuit Court

for Baltimore City (ECF No. 23) is GRANTED;

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2. This case shall be REMANDED to the Circuit

Court for Baltimore City;

3. The Clerk shall CLOSE this case; and

4. A copy of this Memorandum Order shall be sent

to counsel of record.

/s /

Richard D. Bennett

United States Senior District Judge

37a

IN THE UNITED STATES DISTRICT COURT

DISTRICT OF SOUTH CAROLINA

CHARLESTON DIVISION

IN RE: AQUEOUS FILM-FORMING FOAMS

PRODUCTS LIABILITY LITIGATION

MDL No. 2:18-mn-2873-RMG

This Order Relates To

State of South Carolina v. 3M Company et al.,

No. 2:23-cv-05979-RMG

Before the Court is the State of South Carolina’s

motion to remand its claims to South Carolina state

court. (Dkt. No. 8).1 For the reasons set forth below,

the motion is granted.

I. Background

South Carolina brought this suit in state court

against Defendants 3M Company, Corteva, Inc, Dupont De Nemours Inc., E.I. Dupont De Nemours and

Company, The Chemours Company, and The Chemours Company FC, LLC asserting state law claims

for public nuisance, private nuisance, trespass, and

violation of the South Carolina Unfair Trade Practices

Act. (Dkt. No. 1-1 at 3, 37-45). South Carolina alleges

that Defendants supplied products containing certain

per- and polyfluoroalkyl substances, which are commonly known as PFAS or PFAS compounds, that contaminated the State’s natural resources and property,

including South Carolina drinking water. (Id. at 3-4).

1 Unless otherwise noted, citations are to the docket in C.A.

No. 2:23-5979-RMG.

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In this suit, South Carolina specifically disclaimed

recovery for PFAS contamination from Aqueous Film

Forming Foam, or AFFF. (Id. at 7-8). South Carolina

filed a separate case expressly seeking recovery for

PFAS contamination caused by AFFF. (South Carolina v. 3M Co., 23-cv-5734 (D.S.C. Nov. 9 2023), Dkt.

No. 1-1).

3M removed this matter, invoking federal officer removal under 28 U.S.C. § 1442(a)(1) and federal enclave jurisdiction under § 1441(a). (Dkt. No. 1 at 3-4).

3M argues federal officer removal is proper because

some of the contamination at issue in this case overlaps with, or has commingled with, PFAS contamination from AFFF products that 3M supplied to the

United States military per a military-created specification, referred to as MilSpec AFFF. (Id. at 8). 3M intends to assert the federal government contractor defense for PFAS contamination that originated from

MilSpec AFFF and argues that the assertion of that

defense entitles it to a federal forum. (Id.at 2). 3M also

argues that federal enclave removal is proper because

PFAS from AFFF and non-AFFF products were released from military facilities in South Carolina that

are federal enclaves. (Id. at 28-29).

South Carolina now moves to remand this case to

state court, arguing that 3M has not met the requirements for federal officer removal or federal enclave

removal because the State disclaimed recovery for

PFAS contamination from AFFF products in this suit.

(Dkt. No. 8). 3M filed a response in opposition to the

motion (Dkt. No. 11), and South Carolina replied (Dkt.

No. 12). The matter is now ripe for the Court’s review.

39a

II. Standard

As the party that invoked the Court’s jurisdiction,

3M bears the burden of establishing that the case was

properly removed from state court. Mulcahey v. Columbia Organic Chem. Co., 29 F.3d 148, 151 (4th Cir.

1994); see also Bennett v. Bally Mfg. Corp., 785 F.

Supp. 559, 560 (D.S.C. 1992). The Court should strictly construe removal jurisdiction because it “raises federalism concerns.” Mulcahey, 29 F.3d at 151 (citing

Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100

(1941)); see also S.C. v. Boehringer Ingelheim Roxane,

Inc., No. 3:07-cv-00665-CMC, 2007 WL 1232156, at *1

(D.S.C. Apr. 26, 2007). Doubts as to the Court’s jurisdiction should weigh in favor of remanding to state

court. Mulcahey, 29 F.3d at 151.

III. Discussion

A. Federal Officer Removal

3M argues that federal officer removal is proper because it intends to assert the federal government contractor defense for PFAS contamination originating

from the use, storage, and/or disposal of MilSpec

AFFF.

The federal officer removal statute authorizes removal to federal court of any civil action or criminal

prosecution commenced in state court against “any officer (or any person acting under that officer) of the

United States or of any agency thereof, in an official or

individual capacity, for or relating to any act under

color of such office.” 28 U.S.C. § 1442(a)(1). Thus, a

private defendant, such as a government contractor,

who seeks to remove a case under § 1441(a)(1) must

show (1) that it was a “person acting under” a federal

officer, see e.g., Watson v. Philip Morris Cos., 551 U.S.

142, 147 (2007); Ripley v. Foster Wheeler LLC, 841

40a

F.3d 207, 209 (4th Cir. 2016); (2) that it has a “colorable federal defense,” Jefferson Cnty. v. Acker, 527

U.S. 423, 431 (1999); and (3) that the charged conduct

was carried out for or in relation to the asserted official authority, see 28 U.S.C. § 1442(a)(1). “In imposing

these requirements, the statute aims to protect the

Federal Government from interference with its ‘operations,’ primarily by providing ‘a federal forum for a

federal defense.’” Sawyer v. Foster Wheeler LLC, 860

F.3d 249, 254 (4th Cir. 2017) (quoting Watson, 551

U.S. at 147). In reviewing removal on a motion to remand, the Court should reject a “narrow, grudging interpretation of the statute, recognizing that one of the

most important reasons for removal is to have the validity of the defense of official immunity tried in federal court.” Acker, 527 U.S. at 431.

The requirement that a claim be “for or in relation

to” the alleged federal authority is a “nexus” requirement, but not a causation requirement. Moore v. Elec.

Boat Corp., 25 F.4th 30, 34 & n.2 (1st Cir. 2022); see

also Sawyer v. Foster Wheeler LLC, 860 F.3d 249, 258

(4th Cir. 2017). “[T]here need be only ‘a connection or

association between the act in question and the federal office.’” Sawyer, F.3d at 258 (citation omitted).

Addressing motions to remand in similar non-AFFF,

PFAS lawsuits, two district courts in the First Circuit

and one district court in the Seventh Circuit found

that federal officer removal is not proper by concluding that the AFFF disclaimer eliminates the connection between the claims and 3M’s production of MilSpec AFFF for the United States military. New

Hampshire v. 3M Co., 665 F.Supp.3d 215, 227 (D.N.H.

2023) (“The State disclaimed in this suit recovery for

harm from AFFF contamination, which eliminates

any connection between the State’s claims in this suit

41a

and 3M’s production of MilSpec AFFF.”); Maine v. 3M

Co., No. 2:23-cv-00210-JAW, 2023 WL 4758816 at *10

(D. Me. July 26, 2023) (“Here, the State’s disclaimer is

express, unambiguous, and plain, and in the Court’s

view, fits within the category of express disclaimers

courts have found effective to justify a remand order.”); Illinois ex rel. Raoul v. 3M Co., — F.Supp.3d—,

4:22-cv-04075-SLD-JEH, 2023 WL 6160610, at *6

(C.D. Ill. Sept. 21, 2023) (“Permitting Defendant to remove this suit under the federal officer removal statute when the federal government contractor defense

is irrelevant to the eventual resolution of the case and

any PFAS it produced as a military contractor is explicitly excluded from this suit would defeat the purpose of the statute. It is thus impossible for Defendant

to be held liable for damages stemming from its actions under federal authority, and so the requisite

connection or association is missing.”). Those courts

reasoned that 3M would not be able to raise its federal

officer defense because, due to the states’ disclaimers,

3M could not be held liable for contamination that

stemmed from an AFFF source. New Hampshire,

F.Supp.3d at 228 (“[Regardless of whether 3M’s AFFF

conformed to a specification required by the United

States military or whether 3M appropriately warned

the government about the dangers of PFAS, 3M cannot be liable in this case for contamination resulting

from its alleged supply of MilSpec AFF.”); Maine, 2023

WL 4758816, at *10 (“[T]he federal officer defense will

not be applicable in the State’s Non-AFFF lawsuit because the State by its express disclaimer has imposed

upon itself a burden to demonstrate that its claim involves Non-AFFF sources.”); Raoul, 2023 WL 6160610,

at *6 (“[O]nce Defendant shows that a certain portion

of the contamination stemmed from MilSpec AFFF

. . . , that contamination is eliminated from the case,

whether or not that MilSpec AFFF was produced ac-

42a

cording to rigorous military specifications and the

government was warned of any dangers of which it

was unaware.”).

The Court here agrees that the disclaimers moot

3M’s government contractor defense because, whether

or not 3M meets the requirements for the defense, it

cannot be held liable in this case for PFAS contamination originating from AFFF. Because it does not matter that 3M acted in accordance with federal authority, the charged conduct here is not connected to the

alleged federal authority. Accordingly, there is no

nexus and federal officer removal is not available.

B. Federal Enclave Jurisdiction

The federal enclave doctrine arises out of Congress’s constitutional authority to “exercise exclusive

legislation” over the District of Columbia “and to exercise like authority over all places purchased by the

consent of the legislature of the state in which the

same shall be, for the erection of forts, magazines, arsenals, dockyards, and other needful buildings.” U.S.

Const. art. I, § 8, cl. 17. A federal enclave is a “portion

of land over which the United States government exercises federal legislative jurisdiction.” Brookhaven

Sci. Assocs., LLC v. Donaldson, No. 04 Civ. 4013

(LAP), 2007 WL 2319141, at *5 (S.D.N.Y. Aug. 9,

2007); see also Stokes v. Adair, 265 F.2d 662, 666 (4th

Cir. 1959). “[F]ederal-question jurisdiction tied to

federal enclaves ‘generally requires ‘that all pertinent events take place on a federal enclave.’” Mayor

and City Council of Baltimore v. BP P.L.C., 31 F.4th

178, 219 (4th Cir. 2022).

3M argues that, even for non-AFFF claims, the

Court could assume jurisdiction “over the State’s

claims to the extent they arose on federal enclaves”

43a

and “exercise supplemental jurisdiction over the rest

of the State’s case” under 28 U.S.C. § 1367. (Dkt. No.

11 at 30).

To support its argument 3M relies on a case in this

MDL where the State of New York brought claims related to the use of AFFF on a U.S. Air Force base and

other sites. In re: AFFF, 2019 WL 2807266, at *4

(D.S.C. May 24, 2019). This Court held that removal

was proper as to the claims arising out of AFFF product use and contamination from the Air Force base

and exercised supplemental jurisdiction over claims

related to the other sites. Id. The Court noted, however, that it “may decline to exercise its jurisdiction

where tort claims arising from [the other sites] ‘predominate’ over the claim arising from [the Air Force

base], or for other ‘compelling reasons.’” Id. (quoting

28 U.S.C. § 1367(c)).

Assuming that some of South Carolina’s claims

arose on federal enclaves, the Court here declines to

exercise supplemental jurisdiction over the non-federal enclave claims. The Court finds that the claims

arising from the parts of the State that are not considered federal enclaves “predominate” over the

claims arising from military facilities. Additionally,

the Court finds that South Carolina’s disclaimer of

any AFFF claims, which includes those arising from

MilSpec AFFF use and storage on military bases, is

a compelling reason to decline supplemental jurisdiction. Accordingly, federal enclave removal is not

available.

IV. Conclusion

For the foregoing reasons, the South Carolina’s motion to remand (Dkt. No. 8) is GRANTED. This mat-

44a

ter is REMANDED to Richland County Court of Common Pleas.

s/Richard Mark Gergel

Richard Mark Gergel

United States District Judge

February 29, 2024

Charleston, South Carolina

45a

FILED: May 28, 2025

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 24-1218 (L)

(1:23-cv-01836-RDB)

STATE OF MARYLAND

Plaintiff–Appellee

v.

3M COMPANY

Defendant–Appellant

and

CORTEVA INC.; DUPONT DE NEMOURS INC.;

EIDP, INC., f/k/a E.I. Dupont De Nemours &

Company, Incorporated; CHEMOURS COMPANY

Defendants

No. 24-1270

(2:18-mn-02873-RMG)

(2:23-cv-05979-RMG)

In re: AQUEOUS FILM-FORMING FOAMS

PRODUCTS LIABILITY LITIGATION

STATE OF SOUTH CAROLINA EX REL ALAN

WILSON, in his official capacity as Attorney General

of the State of South Carolina

Plaintiff–Appellee

v.

3M COMPANY

Defendant–Appellant

and

46a

CORTEVA INC.; DUPONT DE NEMOURS INC.,

New DuPont; EIDP, INC., f/k/a E. I. DuPont

De Nemours & Company, Old DuPont;

THE CHEMOURS COMPANY;

THE CHEMOURS COMPANY FC, LLC

Defendants

ORDER

The petition for rehearing en banc was circulated to

the full court. No judge requested a poll under Fed. R.

App. P. 40. Accordingly, the court denies the petition

for rehearing en banc.

For the Court

/s/ Nwamaka Anowi, Clerk

47a

STATUTORY PROVISIONS INVOLVED

28 U.S.C.A. § 1442

§ 1442. Federal officers or agencies

sued or prosecuted

(a) A civil action or criminal prosecution that is commenced in a State court and that is against or directed

to any of the following may be removed by them to the

district court of the United States for the district and

division embracing the place wherein it is pending:

(1) The United States or any agency thereof or any

officer (or any person acting under that officer) of

the United States or of any agency thereof, in an

official or individual capacity, for or relating to any

act under color of such office or on account of any

right, title or authority claimed under any Act of

Congress for the apprehension or punishment of

criminals or the collection of the revenue.

(2) A property holder whose title is derived from

any such officer, where such action or prosecution

affects the validity of any law of the United States.

(3) Any officer of the courts of the United States,

for or relating to any act under color of office or in

the performance of his duties;

(4) Any officer of either House of Congress, for or

relating to any act in the discharge of his official

duty under an order of such House.

(b) A personal action commenced in any State court

by an alien against any citizen of a State who is, or at

the time the alleged action accrued was, a civil officer

of the United States and is a nonresident of such State,

wherein jurisdiction is obtained by the State court by

personal service of process, may be removed by the

defendant to the district court of the United States for

48a

the district and division in which the defendant was

served with process.

(c) Solely for purposes of determining the propriety of

removal under subsection (a), a law enforcement officer, who is the defendant in a criminal prosecution,

shall be deemed to have been acting under the color of

his office if the officer—

(1) protected an individual in the presence of the

officer from a crime of violence;

(2) provided immediate assistance to an individual

who suffered, or who was threatened with, bodily

harm; or

(3) prevented the escape of any individual who the

officer reasonably believed to have committed, or

was about to commit, in the presence of the officer,

a crime of violence that resulted in, or was likely to

result in, death or serious bodily injury.

(d) In this section, the following definitions apply:

(1) The terms “civil action” and “criminal prosecution” include any proceeding (whether or not ancillary to another proceeding) to the extent that in

such proceeding a judicial order, including a subpoena for testimony or documents, is sought or issued. If removal is sought for a proceeding described

in the previous sentence, and there is no other basis

for removal, only that proceeding may be removed

to the district court.

(2) The term “crime of violence” has the meaning

given that term in section 16 of title 18.

(3) The term “law enforcement officer” means any

employee described in subparagraph (A), (B), or (C)

of section 8401(17) of title 5 and any special agent

49a

in the Diplomatic Security Service of the Department of State.

(4) The term “serious bodily injury” has the meaning given that term in section 1365 of title 18.

(5) The term “State” includes the District of Columbia, United States territories and insular possessions, and Indian country (as defined in section

1151 of title 18).

(6) The term “State court” includes the Superior

Court of the District of Columbia, a court of a United States territory or insular possession, and a tribal court.

51a

IN THE CIRCUIT COURT

FOR BALTIMORE CITY

Case No.

COMPLAINT

JURY TRIAL DEMANDED

FILED May 30, 2023

STATE OF MARYLAND,

200 Saint Paul Place

Baltimore, Maryland 21202

Plaintiff,

v.

3M COMPANY,

3M Center

St. Paul, Minnesota 55144-1000,

Serve on:

CSC-Lawyers Incorporating

Service Company

7 St. Paul Street, Suite 820

Baltimore, Maryland 21202

and

CORTEVA, INC.,

974 Centre Road

Wilmington, Delaware 19805,

Serve on:

The Corporation Trust, Inc.

2405 York Road, Suite 201,

Lutherville Timonium,

Maryland 21093-2264

and

52a

DUPONT DE NEMOURS, INC.,

974 Centre Road

Wilmington, Delaware 19805,

Serve on:

The Corporation Trust Company

Corporation Trust Center

1209 Orange Street

Wilmington, Delaware 19801

and

EIDP, INC., F/K/A E.I. DU PONT

DE NEMOURS AND COMPANY,

974 Centre Road

Wilmington, Delaware 19805,

Serve on:

The Corporation Trust, Inc.

2405 York Road, Suite 201

Lutherville Timonium,

Maryland 21093-2264

and

THE CHEMOURS COMPANY,

1007 Market Street

Wilmington, Delaware 19899,

Serve on:

The Corporation Trust Inc.

351 West Camden Street

Baltimore, Maryland 21201-7912

Defendants.

* * * * ** * * * ** * * * ** * * * *

COMPLAINT

Plaintiff, the State of Maryland (the “State”), by and

through Anthony G. Brown, Attorney General of Maryland, and counsel, on behalf of the Maryland Depart-

53a

ment of Environment (the “Department” or “MDE”),

and the Maryland Department of Health (“MDH”),

and the Maryland Department of Natural Resources

(“DNR”), files this Complaint against the above-named

Defendants and in support thereof alleges as follows:

INTRODUCTION

1. The State brings this action against Defendants

to address widespread contamination of its natural resources—particularly the drinking water supplies

upon which its citizens depend—with toxic per- and

polyfluoroalkyl substances (“PFAS”), including but

not limited to perfluorooctane sulfonic acid (“PFOS”)

and perfluorooctanoic acid (“PFOA”).1

2. Defendants are among the world’s largest chemical manufacturers, and they are responsible for the

PFAS contamination within Maryland. They designed, manufactured, marketed, and sold products

that contain PFAS (“PFAS Products”),2 which have

Although this action focuses on PFOS and PFOA, the State

reserves the right to seek relief related to additional PFAS that

are found to have contaminated its resources, based on continuing investigation and scientific developments. At the time of this

Complaint’s filing, the United States Environmental Protection

Agency (“EPA”) has proposed national drinking water regulations

for both PFOS and PFOA, but also for PFBS (Perfluorobutane

sulfonic acid), PFHxS (Perfluorohexane sulfonic acid), PFNA

(Perfluorononanoic acid), and HFPO-DA (Hexafluoropropylene

oxide dimer acid, also known as “GenX”). MDE and the Maryland

Department of Health are monitoring these developments closely.

1

2 As used in this Complaint, the term “PFAS Products” means

PFAS and those products that contain PFAS or release PFAS

into the environment. The term does not, however, include aqueous film-forming foam (“AFFF”) or fluorosurfactants that were

designed for and specifically incorporated into AFFF, which are

the subject of a separate action.

54a

entered the State’s environment through multiple

pathways, contaminated its resources, and put its residents’ health at risk.

3. Defendants’ PFAS have been used since the

1940s to make countless consumer and commercial

products that were marketed for their resistance to

grease, stains, heat, and other harsh elements. Among

other items, Defendants’ PFAS were used to make

and were present in food packaging, carpeting, cookware, clothing, and upholstery, including in products

branded under household names like Teflon and

Scotchgard. Defendants sold these PFAS Products in

Maryland and throughout the country, generating

significant profits.

4. At the same time Defendants were profiting from

the sale of these PFAS Products, they knew for decades

that their PFAS were toxic and posed significant risks

to human health and the environment. Internal documents reveal that Defendants had determined that

their PFAS chemicals were harmful and were accumulating in the human blood supply. Defendants did not

warn of the dangers posed by their PFAS Products, but

instead concealed those dangers to protect their corporate image and limit their liability.

5. Defendants knew specifically that their PFAS

were reaching drinking water supplies and accumulating in people’s bodies as they were exposed to the

chemicals over time. They also knew that PFAS, now

commonly referred to as “forever” chemicals, were

persistent and would remain in the environment for

hundreds or even thousands of years, leaving a toxic

legacy for future generations.

6. Because of Defendants’ profit-driven effort to

conceal these risks from federal and state regulators

55a

and the public more broadly, the public health and environmental consequences of Defendants’ manufacture, marketing, and sale of PFAS Products in Maryland and elsewhere have only recently come to light.

Only through lawsuits like this one were Defendants

eventually compelled to disclose what they have long

known about the dangers of their PFAS Products.

7. As details of those risks began to be disclosed,

states and the federal government have initiated their

own investigations into the risks posed by these PFAS

Products and the extent of contamination that they

have caused. Those investigations remain ongoing,

but initial results show that Defendants’ PFAS Products have been introduced into the environment in

many different ways, including through discharges

and emissions from industrial facilities, the use and

disposal of PFAS-containing products, landfills receiving PFAS-containing waste, and wastewater treatment facilities containing PFAS-contaminated waste

streams. The magnitude and ubiquity of these sources

of contamination compound the challenge and expense

of remediating the harm that Defendants have caused.

8. ‘Defendants’ unlawful and tortious acts and

omissions with respect to their PFAS Products have

caused significant PFAS contamination in the State’s

drinking water, groundwater, surface water, soil, sediment, wildlife, other natural resources, and property

held in trust or otherwise owned by the State.

9. In the meantime, Marylanders have been and

continue to be exposed to PFAS through drinking contaminated water, eating contaminated fish and animals, ingesting contaminated soil or dust, consuming

food packaged in PFAS-containing materials, and using products treated with PFAS, among other ways.

56a

10. Federal regulatory investigations have concluded that exposure to PFAS may lead to significant negative health effects, including but not limited to: “Reproductive effects such as decreased fertility or

increased high blood pressure in pregnant women;

developmental effects or delays in children including

low birth weight, accelerated puberty, bone variations, or behavioral changes; increased risk of some

cancers, including prostate, kidney, and testicular

cancers; reduced ability of the body’s immune system

to fight infections, including reduced vaccine response;

interference with the body’s natural hormones; [and]

increased cholesterol levels and/or risk of obesity.”

Environmental Protection Agency, Our Current Understanding of the Human Health and Environmental

Risks of PFAS, https://www.epa.gov/pfas/our-currentunderstanding-human-health-and-environmentalrisks-pfas (last visited May 22, 2023).

11. Although Defendants knew that their PFAS

Products would release PFAS into the environment,

endanger people and natural resources, and require

significant expense to remediate, they concealed that

information and affirmatively contradicted it in public

statements and marketing campaigns designed to enrich themselves at the public’s expense.

12. Because of Defendants’ concealment, the State

was unaware for decades of the risks posed by PFAS.

As news about PFAS risks spread, the State began its

own investigation into the extent of this PFAS contamination. As that investigation unfolds, the State will

inevitably learn of more contamination from PFAS

Products, increasing the cost necessary to investigate,

treat, and remediate the contamination that Defendants have caused. Given that Defendants created and

profited from this environmental hazard, Defendants,

57a

and not Maryland’s citizens, must pay to address the

PFAS contamination throughout the State.

SCOPE OF THE ACTION

13. The State brings this action to hold Defendants

fully accountable for the harms done to Maryland, its

citizens, and its natural resources from Defendants’

PFAS Products. Through this action the State does

not, however, seek any remediation, restoration, damages, or any other relief related to any PFAS contamination caused by AFFF or fluorosurfactants when

used as ingredients of AFFF. The State’s claims with

respect to AFFF are the subject of a separate action.

PARTIES

The State of Maryland as Plaintiff

14. The State brings this action (a) directly in its

own right, (b) in its parens patriae capacity, and (c) as

trustee of Maryland’s natural resources.

15. The State holds significant direct property interests in natural resources of the State and Stateowned lands, but also has an interest as a sovereign

and natural resource trustee in protecting the natural

resources of the State from contamination. The contamination of the natural resources of the State by

PFAS constitutes injury to the person and property of

the State’s citizens and to the natural resources of the

State, which are held in trust by the State on behalf of

all its citizens. The State may for the common good

exercise all the authority necessary to protect its interests and those of its citizens.

16. The State, as the public trustee, is empowered

to bring suit to protect the corpus of the trust, i.e., the

natural resources, for the beneficiaries of the trust,

58a

i.e., the public. Protection of the natural resources of

the State is a matter of public concern in which the

State has an interest apart from that of particular individuals who may be affected. Pollution of the natural

resources of the State with PFAS has negatively affected a substantial segment of the State’s population.

17. The State brings this action pursuant to its police powers, which include but are not limited to its

powers to prevent and abate pollution of the natural

resources of the State, to prevent and abate nuisances, and to prevent and abate hazards to the environment and to the public health, safety, and welfare.

18. The State, through its Attorney General, also

brings this action under Title 9 of the Environment

Article, which empowers the Secretary of the Environment, through the Attorney General, to bring suit

against any person who “discharge[s] any pollutant

into the waters of this State” without a permit. Md.

Code Ann., Env’t §§ 9-322, 9-339(a).

19. The responsibilities of the Attorney General include the investigation, commencement, and prosecution of civil suits on the part of the State. See Maryland Constitution, Art. V, § 3. “[T]he Attorney General

has general charge of the legal business of the State.”

Md. Code Ann., State Gov’t § 6-106.

20. As a result of Defendants’ acts and omissions as

alleged herein, the State has suffered and will continue to suffer injuries to its natural resources and

has incurred and will continue to incur costs to define

the extent of PFAS contamination throughout the

State; to monitor, treat, remediate, and remove PFAS;

and to provide oversight of such activities.

59a

Defendants

21. Defendant 3M Company (“3M”) is a Delaware

Corporation qualified to do business in Maryland. Its

principal place of business is 3M Center, St. Paul,

Minnesota 55144-1000. 3M manufactured, marketed,

and sold PFAS Products that were used or otherwise

released in the State.

22. Defendant EIDP, Inc. (“Old DuPont”), f/k/a E. I.

du Pont de Nemours and Company, is a Delaware corporation qualified to do business in Maryland. Its

principal place of business is at 974 Centre Road,

Wilmington, Delaware 19805. Old DuPont manufactured, marketed, and/or sold PFAS Products that were

used or otherwise released in the State.

23. Defendant The Chemours Company is a Delaware corporation qualified to do business in Maryland.

Its principal place of business is at 1007 Market

Street, Wilmington, Delaware 19899. In 2015, Old

DuPont spun off its performance chemicals business

to Chemours, along with vast environmental liabilities. In connection with these transfers, Chemours assumed certain Old DuPont liabilities, including those

relating to PFAS.

24. Defendant Corteva, Inc. is a Delaware corporation qualified to do business in Maryland. Its principal place of business is at 974 Centre Road, Wilmington, Delaware 19805. In 2019, DuPont de Nemours,

Inc. spun off a new, publicly-traded company, Corteva, which currently holds Old DuPont as a subsidiary. In connection with these transfers, Corteva assumed certain Old DuPont liabilities, including those

relating to PFAS.

25. Defendant DuPont de Nemours, Inc. (‘’New DuPont”), f/k/a DowDuPont Inc., is a Delaware corporation. Its principal place of business is at 974 Centre

60a

Road, Wilmington, Delaware 19805. In 2015, after

Old DuPont spun off Chemours, Old DuPont merged

with The Dow Chemical Company and transferred

Old DuPont’s historic assets and liabilities to other

entities, including New DuPont. In connection with

these transfers, New DuPont assumed certain Old

DuPont liabilities, including those relating to PFAS.

JURISDICTION AND VENUE

26. This Court has subject matter jurisdiction over

this matter under § 1-501 of the Courts and Judicial

Proceedings Article and Maryland Rule 2-305(b) because this civil action seeks and demands money damages in an amount that exceeds $75,000.00.

27. This Court has personal jurisdiction over Defendants because they will be served with process in

Maryland; are organized under the laws of Maryland;

transact business in Maryland; perform work in Maryland; contract to supply goods in Maryland; manufacture products or performed services in Maryland;

caused tortious injury in Maryland; engage in persistent courses of conduct in Maryland; derive substantial revenue from manufactured goods, products, or

services used or consumed in Maryland; and/or have

interests in or use real property in Maryland.

28. Venue is proper in this Court as to all Defendants under §§ 6-201 and 6-202 of the Courts and Judicial Proceedings Article.

FACTUAL ALLEGATIONS

A. PFAS Endangers Maryland’s Environment

and Citizens.

29. PFAS are highly fluorinated synthetic chemical

compounds that include carbon chains containing at

least one carbon atom on which all hydrogen atoms

61a

are replaced by fluorine atoms. The carbon-fluorine

bond is one of the strongest bonds in chemistry and

imparts to PFAS their unique chemical properties.

The carbon-fluorine bond in PFAS generally does not

occur in nature.

30. The PFAS family, including PFOS and PFOA,

has characteristics that cause extensive and long-lasting environmental contamination.

31. PFAS are mobile and persistent in the environment. Once introduced into the environment,

PFAS quickly spread because they easily dissolve in

water. PFAS also persist in the environment indefinitely because of their multiple carbon-fluorine

bonds, which are exceptionally strong and stable,

and are resistant to metabolic and environmental

degradation processes. Similarly, removal of PFAS

from drinking water sources requires specialized,

and expensive, drinking water treatment systems. In

short, once PFAS are used, they migrate through the

environment, resist natural degradation, contaminate groundwater and drinking water, and are difficult and costly to remove.

32. PFAS bioaccumulate and biopersist in animals

and are toxic to their health. Because several PFAS,

including PFOS and PFOA, are excreted from individual organisms only slowly, ongoing low-level exposure

results in a buildup of PFAS within the body. Thus,

PFAS can also biomagnify, meaning that their concentration in organic tissue increases as they are consumed up the food chain.

33. PFAS are toxic and cause significant adverse effects to human health. The presence of these chemicals in drinking water presents a serious threat to

public health. For example, PFOS exposure is associ-

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ated with numerous adverse health effects in humans,

including increases in serum lipids, i.e., high cholesterol; decreases in antibody response to vaccines; increases in risk of childhood infections; and adverse

reproductive and developmental consequences, along

with high blood pressure and preeclampsia during

pregnancy. PFOA exposure is associated with many of

these same adverse health effects as well as decreased

birthweight, testicular and kidney cancers, ulcerative

colitis, and thyroid disease.

34. Even low doses of PFAS can result in adverse

health effects for humans and animals.

35. On June 15, 2022, EPA lowered the Health Advisory Limits for PFOA and PFOS. The new interim

Health Advisory Limits are 0.004 parts per trillion

(“ppt”) for PFOA and 0.02 ppt for PFOS. In March

2023, EPA released proposed drinking water standards for PFOS and PFOA, pursuant to the Safe

Drinking Water Act. See 8 Fed. Reg. 18638 (Mar. 29,

2023). EPA proposed to establish maximum contaminant levels for PFOS and PFOA at 4 ppt, the lowest

amount that can be reliably measured today based on

available technology.

36. PFAS can enter the environment in a variety of

ways, compounding the problem the State currently

faces.

37. PFAS enter the environment from industrial facilities that manufacture or use PFAS. Industries understood to be sources of PFAS include, among others,

textile and leather processing, paper mills, metal finishers, wire manufacturers, plating facilities, and

manufacturers and facilities usmg fluorosurfactants,

resins, molds, plastics, photolithography, and semi-

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conductors. PFAS are released from these facilities to

land, in water, and through air emissions.

38. PFAS also enter the environment through the

normal use and disposal of PFAS Products. Landfills

receive consumer goods, industrial wastes, sewage

sludge, and construction and demolition debris, all of

which can contain PFAS. PFAS in all landfills, active

and closed, can leach from these wastes into groundwater and surface water. PFAS may also be released

from landfills in fugitive dust or emitted directly to

the atmosphere. Landfills constructed before 1990

that received industrial and construction waste deposits have a higher potential for PFAS releases because they were not required to be constructed with

flexible membrane liners or other leachate-control

measures. Nationwide studies in the United States,

as well as studies in Canada and Europe, have shown

high levels of PFAS in landfill leachate.

39. Municipal and industrial wastewater treatment plants are also repositories for industrial and

consumer waste containing PFAS. These facilities

provide multiple pathways for PFAS to contaminate

groundwater and surface water, including by point

source discharges of effluent, leakage or unintended

releases from sewerage or surface impoundments, air

emissions, and disposal of biosolids or other byproducts generated during the treatment process. This results in further discharges of PFAS to water and introduces PFAS into biosolids used in agriculture and

various other purposes.

40. The PFAS that make it into Maryland’s environment will remain in Maryland and continue to contaminate its resources, unless and until they are

treated, removed, or otherwise cleaned up. The State

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is taking this action in an effort to meet the challenge

of addressing PFAS in Maryland’s environment.

B. Defendants’ History Manufacturing and

Selling PFAS Products.

41. 3M and DuPont sold a wide variety of PFAS

Products in Maryland and throughout the United

States.

42. Starting in the 1940s and through the early

2000s, 3M was the primary manufacturer of PFAS in

the United States.

43. Further, 3M was the only manufacturer of

PFOS in the United States.

44. Beginning in the 1940s, 3M manufactured

PFOS and PFOA through a process known as electrochemical fluorination. Electrochemical fluorination

produces a “branched” form of the chemicals that distinguishes them from PFAS produced through other

processes. PFOA is also known as “C-8” due to its

eight-carbon chain structure.

45. 3M manufactured PFOS and PFOA to make

products used in a wide variety of commercial and

household applications, including food packaging, textile treatments, and fluorosurfactants and additives.

Among these products are those branded with the name

“Scotchgard,” which was marketed as providing stainresistant properties. In addition to marketing and selling its own PFAS Products, 3M sold its PFOS and

PFOA to third parties to use in their own products.

46. Old DuPont has also had extensive experience

with PFAS. Beginning in the early 1950s, Old DuPont

purchased PFOA from 3M so that it could produce and

sell various products, including a wide variety of prod-

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ucts containing polytetrafluoroethylene (“PTFE”), a

fluoropolymer that DuPont marketed under the household trade name “Teflon.” DuPont used PTFE in a

wide range of other applications too, including as a

processing aid, with the result that PFOA has been

present in some Old DuPont products for decades.

47. DuPont’s use of PFOA expanded over time such

that the company utilized it to make a growing number of products employed across wide sectors of consumer and industrial applications, including food

packaging, carpeting, clothing, upholstery, and paints,

as well as treatment and cleaning products.

48. When 3M ceased manufacturing PFOA in the

early 2000s, and DuPont no longer had a supplier for

this chemical, DuPont chose to begin manufacturing

the chemical itself in the mid-2000s.

49. DuPont manufactured PFOA using a telomerization process, which produces a linear form of PFOA,

as opposed to the branched form of PFOA previously

manufactured by 3M.

50. DuPont claims that it phased out the manufacture and use of PFOA by 2015.

1. Defendants Knew, or Should Have

Known, of the Harm Caused by their

PFAS Products, and Attempted to

Conceal Negative Information About

These Chemicals.

51. 3M internally studied PFAS for decades and accumulated sufficient knowledge to understand that

PFAS were toxic and would adversely affect the environment and human health.

66a

52. As early as the 1950s, 3M began testing the

physiological and toxicological properties of PFAS.

Based on these internal studies, 3M knew that PFAS

were toxic to humans and harmful to the environment.

53. In the 1950s, 3M also knew that PFAS had the

ability to move throughout groundwater, and that

PFAS bioaccumulate in humans and animals.

54. By 1956, 3M’s PFAS were found to bind to proteins in human blood, resulting in bioaccumulation of

those compounds in the human body.

55. 3M knew as early as 1960 that its PFAS waste

could leach into groundwater and otherwise enter the

environment. An internal 3M memorandum from

1960 described 3M’s understanding that such wastes

“[would] eventually reach the water table and pollute

domestic wells.”

56. As early as 1963, 3M knew that its PFAS products were highly stable in the environment and did

not degrade after disposal. A 1963 report by 3M described PFAS as being stable in the environment,

“completely resistant to biological attack,” and “toxic.”

At around the same time, 3M also tested for PFAS in

well water and confirmed the presence of surfactant

pollution in wells.

57. By the 1970s, 3M had become concerned about

the risks posed to the general population by exposure

to 3M’s fluorochemicals.

58. By no later than 1970, 3M was aware that its

PFAS products were hazardous to marine life. Around

this time, 3M abandoned a study of its fluorochemicals

after the company’s release of the chemicals during the

study caused severe pollution of nearby surface waters.

67a

59. In 1975, 3M found there was a “universal presence” of PFAS in blood serum samples taken from

across the United States. Since PFAS are not naturally occurring, this finding reasonably alerted 3M to

the high likelihood that its products were a source of

this PFAS—a scenario 3M discussed internally but

did not share outside the company. This finding also

alerted 3M to the likelihood that PFAS are mobile,

persistent, bioaccumulative, and biomagnifying, as

those characteristics would explain the presence of

PFAS in human blood.

60. As early as 1976, 3M began monitoring for the

presence of PFAS within the blood of its employees

because the company was concerned about PFAS’s

health effects.

61. In 1978, 3M conducted PFOS and PFOA studies

in monkeys and rats. All monkeys died within the first

few days or weeks after being given food contaminated

with PFOS. The studies also showed that PFOS and

PFOA affected the liver and gastrointestinal tract of

the species tested. The company concluded that PFAS

“should be regarded as toxic” and “urgently recommended that all reasonable steps be taken immediately

to reduce exposure of employees to these compounds.”

62. In 1979, another 3M report concerning PFAS

toxicity stated that the synthetic compounds were

“more toxic than anticipated” and recommended that

“lifetime rodent studies . . . be undertaken as soon as

possible.” Despite these warnings and recommendations, 3M decided to not publish the findings of this

investigation.

63. At a 1979 meeting among 3M employees about

the ‘’Fluorochemicals in Blood Program,” an outside

researcher, Dr. H.C. Hodge, noted that “[r]eduction in

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exposure [to 3M employees to fluorochemicals] should

have top priority” and recommended that further

testing be conducted. According to Dr. Hodge, “[i]t

should be determined if FC-807 [a PFAS chemical] or

its metabolites are present in man, what level they

are present, and the degree of persistence (half-life)

of these materials.”

64. In the late 1970s, 3M studied the fate and transport characteristics of PFOS in the environment, including in surface water and biota. The resulting report from 1979 drew a direct line between effluent

from 3M’s Decatur, Alabama, plant and fluorochemicals bioaccumulating in fish tissue taken from the

Tennessee River adjacent to the 3M plant.

65. According to a 3M environmental specialist who

resigned his position in 1991 due to the company’s inaction over PFOS’s environmental impacts, 3M had

resisted calls from its own ecotoxicologists going back

to 1979 to perform an ecological risk assessment on

PFOS and similar chemicals. At the time of the specialist’s resignation, 3M continued its resistance to assessing the ecological risks of PFAS.

66. In 1981, 3M moved 25 female employees “of

childbearing potential” off production lines at its Decatur, Alabama, plant “[a]s a precautionary measure.”

This was based on internal research showing that

PFAS compounds were causing birth defects in rats.

Yet 3M did not alert the public or regulatory agencies

of its concerns about the effects of exposure to PFAS.

67. In 1983, 3M scientists opined that concerns

about PFAS “give rise to legitimate questions about

the persistence, accumulation potential, and ecotoxicity of fluorochemicals in the environment.”

69a

68. In 1984, 3M’s internal analyses confirmed that

fluorochemicals were likely bioaccumulating in 3M’s

employees.

69. Despite its understanding of the hazards associated with the PFAS in its products, 3M concealed

the information it had and actively sought to suppress

scientific research on the hazards associated with

PFAS, mounting a campaign to control the scientific

dialogue on the fate, exposure, analytics, and effects

to human health and the ecological risks of PFAS.

70. 3M engaged in a variety of tactics to deceive others and to hide the negative effects of PFAS. For example, a former 3M employee disclosed that 3M, in a

May 1998 report that it submitted to EPA, “chose to

report simply that PFOS had been found in the blood

of animals, which is true but omits the most significant

information.” And in 1999, Dr. Rich Purdy, a former

environmental specialist with 3M, wrote a letter detailing, among other things (i) 3M’s tactics to prevent

research into the adverse effects of its PFOS, (ii) 3M’s

submission of misinformation about its PFOS to EPA,

(iii) 3M’s failure to disclose substantial risks associated with its PFOS to EPA, (iv) 3M’s failure to inform

the public of the widespread dispersal of its PFOS in

the environment and population, (v) 3M’s production

of chemicals it knew posed an ecological risk and a

danger to the food chain, and (vi) 3M’s attempts to

keep its workers from discussing the problems with

the company’s fluorochemical projects to prevent their

discussions from being used in the legal process.

71. Dr. Purdy described PFOS as “the most insidious

pollutant since PCB [polychlorinated biphenyl]. It is

probably more damaging than PCB because it does not

degrade, whereas PCB does; it is more toxic to wildlife;

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and its sink in the environment appears to be biota and

not soil and sediment, as is the case with PCB.”

72. Despite its knowledge of the risks associated

with exposures to its PFAS products, when 3M announced in 2000 that it would phase out its PFOS,

PFOA, and related products, it falsely asserted “our

products are safe,” instead of disclosing what it knew

about the substantial threat posed by PFOS and PFOA.

73. Even after it ceased manufacturing PFAS, 3M

worked to control and distort the science on PFAS

and the dangers that they presented to human health

and the environment. For example, 3M provided millions of dollars in grants to a professor, John Giesy,

who publicly presented himself as independent, but

who behind the scenes actually worked for 3M. Mr.

Giesy’s goal, as expressed in a 2008 email, was to

“keep ‘bad’ papers [regarding PFAS] out of the literature [because] otherwise in litigation situations they

can be a large obstacle to refute.”

74. In fact, as recently as November 2018, 3M publicly stated that “the vast body of scientific evidence

does not show that PFOS or PFOA cause adverse

health effects in humans at current exposure levels,

or even at the historically higher levels found in

blood.” And in 2019, 3M publicly claimed: “We do not

believe that PFOS and PFOA cause harm to human

health at levels that are typically found in the environment” and, “We do not believe there is a public

health issue related to PFOA and PFOS.” These

statements contradict decades of research demonstrating the serious health and environmental effects

of PFAS, including internal studies conducted by

3M’s own scientists.

71a

75. Old DuPont began using PFOA in the 1950s,

and only shortly thereafter developed an understanding of the dangers associated with PFAS.

76. Old DuPont scientists issued internal warnings

about the toxicity associated with its PFOA products

as early as 1961, including that PFOA caused adverse

liver reactions in rats and dogs. Old DuPont’s Toxicology Section Chief opined that such products should be

“handled with extreme care” and that contact with the

skin should be “strictly avoided.”

77. By 1976, DuPont knew about research showing

the presence of organic fluorine in blood bank samples

in the United States, which the researchers thought

could be a potential result of human exposure to

PFOA.

78. In 1978, based on information it received from

3M about elevated and persistent organic fluorine levels in workers exposed to PFOA, Old DuPont initiated

a plan to review and monitor the health conditions of

potentially exposed workers in order to assess whether any negative health effects were attributable to

PFOA exposure. This monitoring plan involved obtaining blood samples from the workers and analyzing

the samples for the presence of fluorine.

79. By 1979, Old DuPont had data indicating that

its workers exposed to PFOA had a significantly higher incidence of health issues than did unexposed workers. Old DuPont did not share these data or the results of its worker health analysis with the general

public or government entities, including the State.

80. The following year, Old DuPont internally confirmed, but did not make public, that PFOA “is toxic,”

that humans accumulate PFOA in their tissues, and

that “continued exposure is not tolerable.”

72a

81. Not only did Old DuPont-know that PFOA accumulated in humans, it was also aware that PFOA

could cross the placenta from an exposed mother to

her gestational child. In 1981, Old DuPont conducted

a blood sampling study of pregnant or recently pregnant employees. Of the eight women in the study who

worked with fluoropolymers, two—or 25%—had children with birth defects in their eyes or face, and at

least one had PFOA in the umbilical cord.

82. Old DuPont reported to EPA in March 1982

that results from a rat study showed PFOA crossing

the placenta if present in maternal blood, but it concealed the results of the study of its own plant workers, which revealed the same risk in humans.

83. In addition to its knowledge of PFOA’s toxicity

danger, Old DuPont was also aware that PFAS were

capable of contaminating the surrounding environment, leading to human exposure. Old DuPont was

aware, no later than 1984, that PFOA is biopersistent.

84. Old DuPont was long aware that the PFAS it

was releasing from its facilities could leach into

groundwater used for public drinking water. After obtaining data on these releases and the consequent

contamination near Old DuPont’s Washington Works

plant in West Virginia, Old DuPont held a meeting at

its corporate headquarters in Wilmington, Delaware

in 1984 to discuss health and environmental issues

related to PFOA. Old DuPont employees in attendance

spoke of the PFOA issue as “one of corporate image,

and corporate liability.” They were resigned to Old

DuPont’s “incremental liability from this point on if

we do nothing” because Old DuPont was “already liable for the past 32 years of operation.” They also stated that the “legal and medical [departments within

Old DuPont] will likely take the position of total elim-

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ination” of PFOA use in Old DuPont’s business and

that these departments had “no incentive to take any

other position.”

85. As early as 1988, DuPont began treating PFOA

internally as a possible human carcinogen.

86. In 1999, DuPont received preliminary results

from a monkey health study showing that PFOA

caused monkeys to lose weight and increased their

liver size. Even monkeys given the lowest doses suffered liver enlargement, and one was so ill it had to be

euthanized.

87. In 2000, John R. Bowman, a DuPont in-house

counsel for PFOA issues, wrote an email to several colleagues: “I think we are more vulnerable than the

MTBE defendants [manufacturers of another dangerous groundwater contaminant] because many states

have adopted a drinking water guideline for MTBE and

it is not biopersistent. My gut tells me the biopersistence issue will kill us because of an overwhelming

public attitude that anything biopersistent is harmful.”

88. Ina 2001 email, DuPont in-house lawyer Bernard Reilly described DuPont’s response to the PFOA

or “C-8” issue as “a debacle at best.” Reflecting on a

late 2001 meeting with EPA concerning PFAS contamination in Parkersburg, West Virginia, Reilly

wrote of DuPont: “[T]he business did not want to deal

with this issue in the 1990s, and now it is in their face,

and some still are clueless. Very poor leadership, the

worst I have seen in the face of a serious issue since I

have been with DuPont.”

89. Notwithstanding its decades of internal

knowledge of PFOA’s health and environmental

risks, DuPont publicly stated in 2003 that “[w]e are

confident that there are no health effects associated

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with C-8 exposure,” and that “C-8 is not a human

health issue.”

90. Old DuPont’s own Epidemiology Review Board

(“ERB”) repeatedly raised concerns about Old DuPont’s statements to the public that there were no adverse health effects associated with human exposure

to PFOA. For example, in February 2006, the ERB

“strongly advise[d] against any public statements asserting that PFOA does not pose any risk to health”

and questioned “the evidential basis of [Old DuPont’s]

public expression asserting, with what appears to be

great confidence, that PFOA does not pose a risk to

health.” Contrary to ERB’s advice, DuPont’s chief

medical officer issued a press release just months later, stating that “there are no health effects known to

be caused by PFOA.” An ERB member criticized the

press release because it “appear[ed] written to leave.

the impression ‘don’t worry.’ ”

91. In 2004, EPA filed an administrative enforcement action against Old DuPont based on its failure

to disclose toxicity and exposure information for

PFOA, in violation of the federal Toxic Substances

Control Act (“TSCA”) and Resource Conservation and

Recovery Act (“RCRA”). Old DuPont eventually settled the lawsuit by agreeing to pay more than $16

million in civil administrative penalties and undertake supplemental environmental projects. EPA

called the settlement the “largest civil administrative

penalty EPA has ever obtained under any federal environmental statute.”

92. Despite its knowledge regarding PFOA’s toxicity, Old DuPont continued to claim that PFOA posed

no health risks and, in fact, chose to manufacture the

chemical itself in or about 2002, after 3M’s phased out

its manufacture of the chemical.

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C. Maryland’s Affected Natural Resources.

93. Maryland law establishes the State’s right and

obligation to protect its natural resources. As set forth

by the statutory sections below, the State is the steward of its environment.

94. “The protection, preservation, and enhancement of the State’s diverse environment is necessary

for the maintenance of the public health and welfare

and the continued viability of the economy of the State

and is a matter of the highest public priority.” Md.

Code Ann., Nat. Res.§ l-302(b).

95. Pursuant to statute, “[e]ach person has a fundamental and inalienable right to a healthful environment[.]” Id. § 1-302(d).

96. “Because the quality of the waters of this State

is vital to the public and private interests of its citizens and because pollution constitutes a menace to

public health and welfare, creates public nuisances, is

harmful to wildlife, fish and aquatic life, and impairs

domestic, agricultural, industrial, recreational, and

other legitimate beneficial uses of water, and the problem of water pollution in this State is closely related to

the problem of water pollution in adjoining states, it is

State public policy to improve, conserve, and manage

the quality of the waters of the State and to protect,

maintain, and improve the quality of water for public

supplies, propagation of wildlife, fish and aquatic life,

and domestic, agricultural, industrial, recreational,

and other legitimate beneficial uses.” Env’t § 4-402.

97. The “quality of the waters of this State is vital to

the interests of the citizens of this State[.]” Id. § 9-302.

“[B]ecause pollution is a menace to public health and

welfare, creates public nuisances, harms . . . and impairs domestic, agricultural . . . and other legitimate

76a

beneficial uses of water . . . it is the policy of this State:

(1) To improve, conserve, and manage the quality of

the waters of this State; (2) To protect, maintain, and

improve the quality of water for public supplies . . . and

(3) To provide that no waste is discharged into any waters of this State . . . to protect the legitimate beneficial

uses of the waters of this State.” Id. 25

98. “The General Assembly determines and finds

that lands and waters comprising the watersheds of

the State are great natural assets and resources.” Id.

§ 4-101.

99. “It is the policy of the State of Maryland to: . . .

(3) Protect the State’s natural resources, including the

fish and wildlife of the Potomac River, the Chesapeake

Bay, and all other waters and waterways of the State.”

Id. § 5-5B-03.

100. The “waters of the State” include both surface

and underground waters within the boundaries of the

State or subject to its jurisdiction. See id. § 5-101.

101. “The General Assembly finds that nontidal

wetlands play important roles in the preservation and

protection of the Chesapeake Bay and other waters of

the State.” Id. § 5-902.

102. “The General Assembly [also] declares that

the Chesapeake Bay and the tidewater portions of its

tributaries are a great natural asset and resource to

the State and its counties.” Id. § 5-1l0l(b).

103. Under the Maryland Environmental Standing Act, the “General Assembly finds and declares

that the natural resources . . . of the State of Maryland are in danger of irreparable harm occasioned

by the use and exploitation of the physical environment. It further finds that improper use and exploi-

77a

tation constitute an invasion of the right of every

resident of Maryland to an environment free from

pollution to the extent possible. It further finds that

the courts of the State of Maryland are an appropriate forum for seeking the protection of the environment and that an unreasonably strict procedural

definition of ‘standing to sue’ in environmental matters is not in the public interest.” Nat. Res. § 1-502

(emphasis added).

104. PFAS contamination from PFAS Products has

injured and continues to injure the waters and property of the State and the property, health, safety, and

welfare of Maryland’s citizens.

105. The State owns lands throughout Maryland

that it maintains for the benefit of the public, such as

parks and wildlife management areas.

106. The State holds its waters in trust for the

State’s citizens and has an obligation to protect public interests in these waters though, amorig other

things, maintaining the environmental quality of its

waters.

107. The State’s natural resources include its waters, such as springs, streams, wetlands, groundwater, ocean waters, and estuaries, within its boundaries or otherwise subject to its jurisdiction.

108. Natural resources and State-owned properties

have been injured by past and ongoing contamination

caused by PFAS attributable to PFAS Products.

109. PFAS have been found in groundwater, surface water, sediments, and soils throughout Maryland, and the State anticipates that additional PFAS

contamination of natural resources will be uncovered

as its investigation continues.

78a

110. PFAS contamination persists in the State’s

natural resources, i.e., it will not break down in the

environment; damages their intrinsic, i.e., existence

and passive use, value; and impairs the public benefits derived from access to, use, and enjoyment of the

State’s natural resources.

111. The current and future residents of the State

have a substantial interest in having natural resources uncontaminated by PFAS, as do the tourism, recreation, fishing, and other industries that rely upon

maintaining a clean environment for their businesses,

patrons, and tourists to visit and enjoy.

1. Groundwater

112. Groundwater is a critical and finite ecological

natural resource for the people of the State, as the

State relies on groundwater for drinking, irrigation,

and agriculture.

113. Maryland relies on groundwater for drinking

water supplies. Groundwater is the most commonly

used source of water supply, and some regions of the

State (Southern Maryland and the Eastern Shore)

rely exclusively on groundwater for their water needs.

That is nearly 3,153 of the State’s 3,242 public water

systems rely exclusively on groundwater.

114. In addition to serving as a source of water for

drinking, agriculture, and other uses, groundwater is

an integral part of the overall ecosystem in the State.

Groundwater provides base flow to streams and influences surface water quality, wetland ecological conditions, and the health of aquatic ecosystems. Groundwater also keeps water in rivers during times of

drought.

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115. Groundwater promotes the movement of water and nutrients within and among the State’s bodies

of water and wetlands, prevents saltwater intrusion,

provides groundwater stabilization, and helps to

maintain critical water levels in freshwater wetlands.

116. Groundwater and the State’s other natural resources are unique resources that help sustain the

State’s economy.

117. PFAS contamination mobilizes in and through

groundwater sources to reach areas beyond the initial

source of contamination. This contamination adversely affects the groundwater.

118. The State’s investigation has revealed elevated levels of PFAS in groundwater and specifically in

potable groundwater.

119. The State’s investigation of contamination

from PFAS Products in groundwater in Maryland is

ongoing.

2. Surface Water

120. Surface water is a critical ecological resource

of the State. Approximately 10% of the Community

Water Systems (around 50 systems) in Maryland rely

on surface water, yet these surface water systems

serve about 80% of the population using public water

systems.

121. Surface water in Maryland is also used for recreational, industrial, agricultural, and other commercial purposes. Specific uses include swimming, boating, and recreational fishing and crabbing, commercial

fishing and crabbing, and oyster farming.

122. Surface water also provides aesthetic and

ecological values, including supporting aquatic eco-

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systems, nearby communities, and the residents of

the State.

123. PFAS are mobile and persistent in water and

can spread great distances from the point of discharge.

PFAS contamination has reached and adversely affected surface water throughout the State.

124. Investigation of contamination from PFAS

Products in the State is ongoing.

3. Coastal Resources and Estuaries

125. Maryland has over 3,000 miles of shoreline,

most of which is along Chesapeake Bay and its tidal

tributaries and the Atlantic Ocean.

126. Chesapeake Bay is the largest estuary in the

United States. Estuaries are partially enclosed bodies of water surrounding coastal habitats where saltwater from the ocean mixes with fresh water from

rivers and streams within the State. They provide

habitat for many kinds of marine life and commercially important species including striped bass, blue

crabs, and oysters.

127. PFAS have contaminated estuaries and surrounding lands. These coastal habitats and estuaries

are some of the most imperiled marine habitats due

to the contamination caused by PFAS and they serve

as long-term reservoirs of PFAS, where PFAS are

stored and released over time, impacting the estuaries and increasing PFAS concentrations in the cells

and tissues of the shellfish and other wildlife that.

people eat.

128. The State is continuing its investigation of

contamination from PFAS Products in the coastal areas, estuaries, and surrounding lands in the State.

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4. Sediments, Soils, and Submerged Land

129. Given the nature of PFAS contamination, the

State believes that widespread contamination of sediments, soils, and submerged lands exists in Maryland.

Investigation of contamination from PFAS Products

in sediments, soils, and submerged lands in the State

is ongoing.

130. PFAS contamination in the State has reached

and adversely affected soil and sediment throughout

the State. Additionally, PFAS in the soil column serve

as a continuing source of contamination of groundwater and other resources of the State. PFAS in sediments, as well as in surface water, support the potential increase of PFAS concentrations in fish.

5. Biota

131. Biota, including the State’s flora and fauna,

are critical ecological resources.

132. PFAS contamination threatens animal and

plant species because PFAS can cause damage to the

liver and immune system of animals and has been

shown to damage cell structure and organelle functions in plants.

133. Natural resource injuries to biota in the State

negatively impact not only the individual species directly involved, but also the capacity of the injured

ecosystems to regenerate and sustain life into the future.

134. PFAS contamination has reached and adversely affected biota in the State. The State’s investigation of contamination from PFAS Products in biota

in Maryland is ongoing.

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D. Defendants’ PFAS Products Have

Contaminated the State’s Natural

Resources, Including Sources of Drinking

Water, and Defendants Are Liable for Costs

to Remediate and Restore Those Resources.

135. The State’s natural resources have been contaminated with PFAS from Defendants’ PFAS Products as a result of Defendants’ acts and omissions. Defendants’ manufacturing, marketing, and sale of

PFAS have introduced these chemicals into the environment and caused the contamination of the State’s

groundwater, surface water, drinking water, and other resources, and exposed the State’s citizens to substantial health risks.

136. The State’s investigation of this contamination

source is continuing. Investigation is necessary to ascertain the full scope of this contamination and to return the natural resources impacted to levels that are

safe for human health and the environment and to the

condition in which they existed prior to the impact of

these contaminants.

137. Defendants are liable for the cost of investigation, remediation, and restoration of all the property,

soils, sediments, waters, and other natural resources

contaminated with their PFAS, as well as for the

State’s loss of past, present, and future uses of such

contaminated natural resources.

138. Most critically, PFAS contamination of groundwater and surface water is impacting the State’s

drinking water sources. Defendants are liable for all

of the costs necessary to investigate and treat in perpetuity any and all drinking water wells and sources

of drinking water impacted by their PFAS.

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139. In late 2019, MDE began to increase its efforts

to better understand, communicate, and manage

PFAS risks in Maryland through the implementation

of a multi-phased approach to assessing PFAS in

drinking water sources across the State. MDE collected over 1,000 drinking water samples from 431 federally-regulated community water systems, which are

water systems that deliver drinking water to the same

customers throughout the year.

140. During Phase 1 of the MDE study, conducted

from September 2020 to February 2021, samples of

finished water were collected from 129 water treatment plants and were tested for PFAS under EPA

Method 537.1 by the Maryland Department of Health

Laboratories Administration. “Finished water” is water that has passed through a water treatment plant

and that has undergone all treatment processes. The

129 water treatment plants sampled during Phase 1

serve 59 community water systems and provide drinking water to 4.3 million people, approximately 70% of

Maryland’s population.

141. For Phase 1, a total of 131 initial finished water samples were collected from the 129 water treatment plants. Of the 131 initial finished water samples

analyzed:

• 98 samples (~75%) measured quantifiable levels

of PFOA+PFOS in finished water;

• 2 samples (~1.5%)measured PFOA+PFOS greaterthan 70 ppt (i.e:, the 2016 the EPA health advisory limit for PFOA+PFOS);

2 samples (~1.5%) measured PFOA+PFOS be• 

tween 35 ppt and 70 ppt; and

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• 23 samples (~17%) measured PFOA+PFOS levels between 10 ppt and 35 ppt.

142. If results for initial finished water samples

measured PFOA+PFOS concentrations greater than

the EPA’s health advisory limit of 70 ppt, then MDE

asked the affected community water system to take

its water treatment plant immediately out of service

until additional sample collection and treatment implementation could be conducted.

143. Phase 2 of MDE’s study, which was conducted

from March 2021 through May 2021, focused on the

collection and testing of drinking water sources that

were identified as potentially being at a higher relative risk for PFAS contamination, including whether

the source of the drinking water was from surface water or groundwater in unconfined or semi-confined

aquifers and the frequency a water system’s customers receive their drinking water, i.e., customers receiving water from the same community water systems every day.

144. Under Phase 2, 167 samples were collected

from 65 community water systems. Those 65 systems

represent approximately 14% of Maryland’s federally­

regulated community water systems and provide

drinking water to approximately 81,000 people (or

about 1.3% of Maryland’s population).

145. Of the 167 samples of groundwater, 141 were

withdrawn from an unconfined or semi-confined aquifer. MDE focused on unconfined or semi-confined

aquifers because, unlike confined aquifers, they are

not “confined” by layers of clay that protect the aquifer

from external pollutants, including PFAS, making

these the most vulnerable sources of drinking water.

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146. In addition, the vast majority of those 141

samples were taken from untreated groundwater;

whereas only 4 were taken at the entrance to the distribution system.

147. Of the 137 initial groundwater samples withdrawing from an unconfined or semi-confined aquifer

(excluding 4 initial point of entry samples):

• 71 samples (~51.82%) measured quantifiable levels of PFOA+PFOS;

• 1 sample (~0.73%) measured quantifiable levels

of PFOA+PFOS between 35 and 70 ppt;

• 1 sample (0.73%) measured quantifiable levels of

PFOA+PFOS between 28 and 35 ppt;

• 13 samples (9.49%) measured quantifiable levels

of PFOA+PFOS between 10 and 28 ppt; and

56 samples (40.88%) had detectable levels of

• 

PFOA+PFOS below 10 ppt.

148. Between the sampling conducted under phases 1 and 2, MDE has tested drinking water for PFAS

in water that is provided to more than 70% of the population of Maryland.

149. In August 2021, MDE initiated the third phase

of its public water sampling study to evaluate the occurrence of PFAS in drinking water.

150. During this phase, 759 drinking water samples were collected arid tested. Samples collected under Phase 3 consisted of both finished and untreated

water from a variety of groundwater sources withdrawing from confined, semi-confined, and unconfined

aquifers, springs, and one surface water source.

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151. The Phase 3 results detected PFOA in 70% of

the samples of unconfined groundwater and in 63% of

the samples of semi-confined groundwater. PFOS was

detected in 64% of the unconfined groundwater samples and in 38% of the semi-confined groundwater

samples. Spring water also had high levels of PFOA

and PFOS.

152. In November 2022, MDE completed a fourth

phase of sampling focused on previously sampled systems that had detected PFOA and PFOS in drinking

water. MDE collected 228 samples from 126 resampled community water systems. The samples are currently being analyzed.

153. In addition to testing its drinking water to

identify PFAS impacts, MDE is also in the process of

testing wastewater in municipal wastewater treatment plants to identify impacts from PFAS Products.

154. The Maryland Department of Agriculture is

also required to study the use of PFAS in pesticides in

the State and report the results of its study to the

Governor and the General Assembly by November

2023.

E. Maryland’s Prohibition of PFAS Products.

155. Maryland has already acted to ban the intentional inclusion of PFAS in certain products to which

its citizens are exposed.

156. Under § 9-1902(d) of the Environment Article,

“[o]n or after January 1, 2024, a manufacturer or distributor may not manufacture or knowingly sell, offer

for sale, or distribute for sale or use in the State a food

package or food packaging component designed and

intended for direct food contact to which PFAS chemicals were intentionally added.”

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157. Additionally, “[o]n or after January 1, 2024, a

person may not manufacture or knowingly sell, offer

for sale, or distribute for sale or use in the State a rug

or carpet to which PFAS chemicals have been intentionally added.” Env’t § 6-1604.l(b).

F. Old DuPont’s Multi-Step, Years-Long

Fraudulent Scheme to Isolate Its Valuable

Tangible Assets from Its PFAS Liabilities

and Hinder Creditors.

158. As EPA, states, and private plaintiffs became

aware of the hazards presented by PFAS, Old DuPont,

beginning in or about 2013 and continuing through at

least June 2019, planned and executed a series of corporate restructurings designed to separate its valuable assets from its billions of dollars of legacy environmental liabilities, especially those arising from

PFOA and other PFAS contamination;

159. Old DuPont’s potential cumulative liability related to PFOA and other PFAS likely amounts to billions of dollars due to the persistence, mobility, bioaccumulative properties, and toxicity of these “forever”

compounds, as well as Old DuPont’s decades-long attempt to hide the dangers of PFAS from the public.

160. For more than five decades, Old DuPont manufactured, produced, or utilized PFOA and other PFAS

at plants in New Jersey, West Virginia, and North

Carolina, among others. As alleged above, throughout

this time, Old DuPont was aware that PFOA was toxic, harmful to animals and humans, bioaccumulative,

and persistent in the environment. Old DuPont also

knew that it had emitted and discharged PFOA and

other PFAS in large quantities into the environment

and that scores of people had been exposed to PFOA,

including through public and private drinking water

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supplies, like those in Maryland, which Old DuPont

had contaminated. Thus, Old DuPont knew, or reasonably should have known, that it faced billions of

dollars in liabilities arising from its use of PFAS.

161. Beginning at least in 1999 and continuing to

the present, Old DuPont has faced mounting litigation arising from its historic manufacture, production

arid use of PFAS. In 1999, members of the Tennant

family, who owned property affected by contamination from a landfill that had accepted PFOA wastes

from Old DuPont’s nearby Washington Works plant,

sued Old DuPont in West Virginia federal court.

162. Old DuPont’s in-house counsel were very concerned about Old DuPont’s exposure to liability related to PFOA.In November 2000, one of Old DuPont’s

in-house lawyers handling PFOA issues wrote to his

co-counsel: “We are going to spend millions to defend

these lawsuits and have the additional threat of punitive damages hanging over our head. Getting out in

front and acting responsibly can undercut and reduce

the potential for punitives. Our story is not a good one,

we continued to increase our emissions into the river

in spite of internal commitments to reduce or eliminate the release of this chemical into the community

and the environment because of our concern about the

biopersistence of this chemical.”

163. In 2005, after settling the Tennant case, Old

DuPont settled claims brought by EPA for violations

of TSCA and RCRA related to its failure to disclose

toxicity and exposure information for PFOA, as discussed in ¶ 91.

164. Also in 2005, a West Virginia court entered a

final order approving a 2004 settlement of a class action lawsuit filed against Old DuPont on behalf of

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70,000 Ohio and West Virginia residents who had

been exposed to PFOA that Old DuPont had discharged from Washington Works.

165. Under the terms of the settlement, which provided class benefits in excess of $300 million, Old DuPont agreed to fund a panel of scientists (the “Science

Panel”) to confirm which diseases were linked to PFOA

exposure, to filter local water from impacted public

and private drinking water supplies, and to pay up to

$235 million for medical monitoring of the affected

community for any diseases that the Science Panel

linked to PFOA exposure. The settlement also provided that any class members who developed the diseases

linked by the Science Panel would be entitled to sue

for personal injury, and Old DuPont agreed not to contest the fact that the class members’ exposure to PFOA

could cause each of the linked diseases.

166. By 2012, after seven years of studies, the Science Panel confirmed “probable links” between exposure to PFOA and the following serious human diseases: medically diagnosed high cholesterol, ulcerative

colitis, pregnancy induced hypertension, thyroid disease, testicular cancer, and kidney cancer.

167. After the Science Panel confirmed such probable links with human disease, more than 3,500 personal-injury claims were filed against Old DuPont in

Ohio and West Virginia by class members with one or

more of those linked diseases under the terms of the

2005 class settlement. In 2013, these claims were consolidated in federal multidistrict litigation styled In

Re: E. I. du Pont de Nemours and Company C-8 Personal Injury Litigation (MDL No. 2433) in the U.S.

District Court for the Southern District of Ohio (the

“Ohio MDL”). Forty bellwether trials were scheduled

to take place in 2015 and 2016.

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168. The first three trials in the Ohio MDL ended

in plaintiffs’ verdicts. Each jury awarded damages in

a larger amount than the one before it: the first awarded $1.6 million; the second awarded $5.6 million; and

the third awarded $12.5 million. The second and third

jury awards included punitive damages. Old DuPont

then settled the remaining, pending claims for $670.7

million dollars.

169. Old DuPont knew or should have known that

it faced substantial exposure at these trials, as well as

liability related to PFOA and other PFAS contamination caused by its manufacturing operations at other

sites throughout the country, its releases and disposal

of PFAS chemicals globally, and for toxic PFAS chemicals in its own products and the myriad products into

which its toxic PFAS were incorporated, and that its

liability likely measured in the billions of dollars.

170. Anticipating this significant liability exposure,

Old DuPont convened an internal initiative known as

“Project Beta” in or about 2013 for Old DuPont’s management to consider restructuring the company in order to, among other things, avoid responsibility for

the widespread environmental harm that Old DuPont’s PFAS had caused and shield billions of dollars

in assets from these substantial liabilities.

171. In furtherance of possible restructuring opportunities, including potential mergers, Old DuPont and

The Dow Chemical Company (“Old Dow”) began to

discuss a possible “merger of equals” in or about 2013.

172. However, neither Old Dow nor any other rational merger partner would agree to a transaction that

would result in exposing it to the substantial PFAS

and environmental liabilities that Old DuPont faced.

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173. Accordingly, Old DuPont’s management decided to pursue a multi-year corporate restructuring

specifically orchestrated to isolate Old DuPont’s massive legacy liabilities from its valuable tangible assets

in an attempt to shield those assets from creditors and

entice Old Dow to pursue the proposed merger.

174. Old DuPont engaged in a coordinated threepart restructuring plan that consisted of (i) Old DuPont’s attempt to cast off its massive environmental

liabilities onto Chemours and spinning off Chemours

as a separate publicly-traded company, (ii) the creation of New DuPont to facilitate a purported merger

with Old Dow, and (iii) a series of internal restructurings and divestitures that culminated with the spin­off

of Old DuPont to its newly-formed parent, Corteva.

175. The first step in Old DuPont’s fraudulent

scheme was to transfer its performance chemicals

business, which included Teflon and other products

(“Performance Chemicals Business”), into its whollyowned subsidiary, Chemours. Then, in July 2015, Old

DuPont “spun-off’ Chemours as a separate public entity and saddled Chemours with Old DuPont’s massive legacy liabilities (the “Chemours Spin­off’).

176. Old DuPont knew that Chemours was undercapitalized and could not satisfy the massive liabilities that it caused Chemours to assume. Old DuPont

also knew that the Chemours Spin­off alone would not

insulate its own assets from its PFAS liabilities as Old

DuPont still faced direct liability for its own conduct.

177. The second step in the scheme involved Old

DuPont and Old Dow entering into an “Agreement

and Plan of Merger” in December 2015, pursuant to

which Old DuPont and Old Dow merged with subsidiaries of a newly-formed holding company, DowDu-

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Pont, Inc. (“DowDuPont”), which was created for the

sole purpose of effectuating the merger. Old DuPont

and Old Dow became subsidiaries of DowDuPont.

178. In the third step, DowDuPont engaged in numerous business segment and product line “realignments” and “divestitures,” which culminated in

DowDuPont spinning off two new publicly-traded

companies: (i) Corteva, which currently holds Old

DuPont as a subsidiary, and (ii,) Dow, Inc. (“New

Dow”), which currently holds Old Dow. DowDuPont

was then renamed DuPont de Nemours, Inc., i.e.,

New DuPont.

179. Old DuPont’s restructuring, beginning with

the spin­off of Chemours in 2015, and ending with the

spin­off of Corteva on June 1, 2019, was designed to

separate Old DuPont’ s massive historic PFAS liabilities from its valuable, non-PFAS assets and thereby

hinder; delay, and defraud creditors.

180. As a result of this restructuring, between December 2014, i.e., before the Chemours Spin­off, and

December 2019, i.e., after the Dow merger, the value

of Old DuPont’s tangible assets decreased by $20.85

billion, or by approximately one-half.

181. New DuPont and Corteva now hold a significant portion of the tangible assets that Old DuPont

formerly owned.

182. Many of the details about these transactions

are hidden from the public in confidential schedules

and exhibits to the various restructuring agreements.

Old DuPont, New DuPont, and Corteva likely intentionally have acted to hide from creditors the details

about where Old DuPont’s valuable assets went and

the inadequate consideration that Old DuPont received in return.

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183. The below graphic depicts the restructuring as

it progressed through each of the three steps:

184. In greater detail, the restructuring scheme

was implemented as follows.

1. Step 1: The Chemours Spin­off

185. In February 2014, Old DuPont formed Chemours as a wholly-owned subsidiary.

186. On April 30, 2015, Chemours was converted

from a limited liability company to a corporation

named “The Chemours Company.”

187. On July 1, 2015, Old DuPont completed the

spin­off of Chemours, and Chemours became a separate, publicly-traded entity.

188. At the time of the spin­off, the Performance

Chemicals Business consisted of Old DuPont’s Titanium Technologies, Chemical Solutions, and Fluoroproducts segments, including business units that had

manufactured, used, and discharged PFOA into the

environment.

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189. Prior to the spin­off, Chemours’s Board of Directors was dominated by Old DuPont employees. As

a result, during the period of time that the terms of its

separation from Old DuPont were being negotiated,

Chemours did not have an independent Board of Directors or management independent of Old DuPont.

190. To effectuate the Chemours Spin­off, Old DuPont and Chemours entered into a June 26, 2015 Separation Agreement (the “Chemours Separation Agreement”).

191. Pursuant to the Chemours Separation Agreement, Old DuPont agreed to transfer to Chemours all

businesses and assets related to the Performance

Chemicals Business, including 37 active chemical

plants.

192. At the same time, Chemours accepted a broad

assumption of Old DuPont’s massive liabilities relating to Old DuPont’s Performance Chemicals Business.

The specific details regarding the nature and value of

probable maximum loss and the anticipated timing of

the liabilities that Chemours assumed are set forth in

the nonpublic schedules and exhibits to the Chemours

Separation Agreement.

193. Notwithstanding the billions of dollars in environmental and PFAS liabilities that Chemours would

face, on July 1, 2015, Old DuPont caused Chemours to

transfer to Old DuPont approximately $3.4 billion as

a cash dividend, along with a “distribution in kind” of

promissory notes with an aggregate principal amount

of $507 million.

194. Thus, in total, Chemours distributed approximately $3.9 billion to Old DuPont. Old DuPont required

Chemours to fund these distributions through financing transactions, including senior secured term loans

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and senior unsecured notes totaling approximately

$3.995 billion entered into on May 12, 2015. Additionally, Chemours distributed approximately $3 billion in

common stock to Old DuPont’s shareholders on July 1,

2015 (181 million shares at $16.51 per share price).

195. Accordingly, most of the valuable assets that

Chemours may have had at the time of the Chemours

Spin­off were unavailable to creditors with current or

future PFAS claims, like those of the State, and Old

DuPont stripped Chemours’s value for itself and its

shareholders. Old DuPont, however, only transferred

$4.1 billion in net assets to Chemours.

196. In addition to requiring Chemours to assume

billions of dollars of Old DuPont’s PFAS liabilities, the

Chemours Separation Agreement includes an indemnification of Old DuPont in connection with those liabilities, which is uncapped and does not have a survival period.

197. Specifically, the Chemours Separation Agreement requires Chemours to indemnify Old DuPont

against, and assume for itself, all “Chemours Liabilities,” which are defined broadly to include, among other things, “any and all Liabilities relating . . . primarily

to, arising primarily out of or resulting primarily from,

the operation or conduct of the Chemours Business, as

conducted at any time prior to, at or after the Effective

Date . . . including . . . any and all Chemours Assumed

Environmental Liabilities,” which includes Old DuPont’s historic liabilities relating to and arising from

its decades of emitting pollution, including PFOA, into

the environment from its dozens of facilities.

198. Under the Chemours Separation Agreement,

Chemours must indemnify Old DuPont against, and

assume for itself, the Chemours Liabilities regardless

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of (i) when or where such liabilities arose; (ii) whether

the facts upon which they are based occurred prior to,

on, or subsequent to the effective date of the spin­off;

(iii) where or against whom such liabilities are asserted or determined; (iv) whether arising from or alleged

to arise from negligence, gross negligence, recklessness, violation of law, fraud, or misrepresentation by

any member of the Old DuPont group or the Chemours

group; (v) the accuracy of the maximum probable loss

values assigned to such liabilities; and (vi) which entity is named in any action associated with any liability.

199. The Chemours Separation Agreement also requires Chemours to indemnify Old DuPont from, and

assume all, environmental liabilities that arose prior

to the Chemours Spin­off if they were “primarily associated” with the Performance Chemicals Business.

200. In addition, Chemours agreed to use its best

efforts to be fully substituted for Old DuPont with respect to “any order, decree, judgment, agreement or

Action with respect to Chemours Assumed Environmental Liabilities.”

201. There was no meaningful, arms-length negotiation of the Chemours Separation Agreement and

Old DuPont largely dictated its terms.

202. The Chemours Spin­off was so one-sided that

Chemours, in May 2019, sued Old DuPont, New DuPont, and Corteva in Delaware Chancery Court. See

The Chemours Company v. DowDuPont, et al., C.A.

No. 2019-0351 (Del. Ch. Ct., filed May 13, 2019).

203. In its Amended Complaint, which was verified

by Chemours’ s current Chief Executive Officer Mark

Newman, Chemours alleged that the primary motivation for the Chemours Spin­off, the subsequent cre-

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ation of New DuPont, and the final separation of Corteva was to enable Old DuPont to “wash its hands of

its environmental liabilities.”

204. Chemours also alleged, among other things,

that if (i) the full value of Old DuPont’s PFAS and environmental liabilities was properly estimated and (ii)

the Delaware court did not limit the liability that the

Chemours Separation Agreement imposed on it, then

Chemours would have been insolvent at the time it

was spun off from Old DuPont.

205. Chemours alleged that Old DuPont refused to

allow any procedural protections for Chemours in the

negotiations, and Old DuPont and its outside counsel

prepared all the documents to effectuate the Chemours Spin­off. Indeed, during the period in which the

terms of commercial agreements between Chemours

and Old DuPont were negotiated, Chemours did not

have an independent board of directors or management independent of Old DuPont.

206. Old DuPont’s apparent goal with respect to

the Chemours Spin­off was to segregate a large portion

of Old DuPont’s legacy environmental liabilities, including liabilities related to its PFAS chemicals and

products, and in so doing, shield Old DuPont.

207. Given Old DuPont’s extraction of nearly $4 billion from Chemours immediately prior to the Chemours Spin­off, Chemours was thinly capitalized and

unable to satisfy the substantial liabilities that it assumed from Old DuPont. Chemours notably disclosed

in public filings with the U.S. Securities and Exchange

Commission (“SEC”) that its “significant indebtedness” arising from its separation from Old DuPont restricted its current and future operations.

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208. Shortly after the Chemours Spin­off, market

analysts described Chemours as “a bankruptcy waiting to happen” and a company “purposely designed for

bankruptcy.”

209. At the end of December 2014, Chemours reported it had total assets of $5.959 billion and total liabilities of $2.286 billion. At the end of 2015, following the

Chemours Spin­off, Chemours reported that it had total

assets of $6.298 billion and total liabilities of $6.168 billion, yielding a total net worth of $130 million.

210. For the year 2015, Chemours reported $454

million in “other accrued liabilities,” which in tum included $11 million for accrued litigation and $68 million for environmental remediation. Chemours separately reported $553 million in “other liabilities,” which

included an additional $223 million for environmental

remediation and $58 million for accrued litigation.

211. Chemours significantly underestimated its liabilities, including the liabilities that it had assumed

from Old DuPont with respect to PFAS, which Old

DuPont and Chemours knew or should have known

would be billions of dollars in addition to other environmental liabilities for other contaminants discharged at Old DuPont and Chemours facilities.

212. For example, in 2017, Chemours and Old DuPont amended the Chemours Separation Agreement

in connection with the settlement of the personal injury multidistrict litigation brought by thousands of

residents who had been exposed to PFOA from Old

DuPont’s Washington Works plant. Per the amendment, Chemours paid $320.35 million to the plaintiffs

in the settlement on August 21, 2017, and Old DuPont paid an additional $320.35 million on September 1, 2017.

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213. Had the full extent of Old DuPont’s legacy liabilities been taken into account, as it should have

been at the time of the Chemours Spin­off, Chemours

would have had negative equity (that is, total liabilities greater than total assets), not only on a tangible

basis, but also on a total equity basis, and Chemours

would have been rendered insolvent at that time.

2. Step 2: The Old Dow/Old DuPont “Merger”

214. After the Chemours Spin­off, Old DuPont took

the position that it was somehow no longer responsible for the widespread PFAS contamination that it

had caused over several decades.

215. Old DuPont could not contractually discharge

all of its historical liabilities through the Chemours

Spin­off, however, and Old DuPont remained liable for

the liabilities it had caused and Chemours had assumed.

216. Old DuPont knew that it could not escape liability and would still face exposure for PFAS liabilities, including for potentially massive punitive damages. So Old DuPont moved to the next phase of its

fraudulent scheme.

217. On December 11, 2015, less than six months

after the Chemours Spin­off, Old DuPont and Old Dow

announced that their respective boards had approved

an agreement “under which the companies [would]

combine in an all-stock merger of equals” and that the

combined company would be named DowDuPont, Inc.

(the “Dow-DuPont Merger”). The companies disclosed

that they intended to separate the combined companies’ businesses into three publicly-traded companies

through further spin­offs, each of which would occur

18-to-24 months following the closing of the merger.

100a

218. To effectuate the transaction, Old DuPont and

Old Dow entered into an Agreement and Plan of Merger (the “Dow-DuPont Merger Agreement”) that provided for (i) the formation of a new holding company

Diamond-Orion HoldCo, Inc., later named DowDuPont, and then renamed DuPont de Nemours, Inc.,

i.e., New DuPont, and (ii) the creation of two new

merger subsidiaries into which Old Dow and Old DuPont each would merge.

219. Thus, as a result of the merger, and in accordance with the DowDuPont Merger Agreement, Old

Dow and Old DuPont each became wholly-owned subsidiaries of DowDuPont.

220. Although Old DuPont and Old Dow referred to

the transaction as a “merger of equals,” the two companies did not actually merge at all, likely because doing so would have infected Old Dow with all of Old

DuPont’s historical PFAS liabilities. Rather, Old DuPont and Old Dow became affiliated sister companies

that were each owned by the newly-formed DowDuPont. DowDuPont was aware of Old DuPont’s historical PFAS liabilities.

221. The corporate organization following the

“merger” is depicted under “Step 2” in the graphic depicted in ¶ 183.

3. Step 3: The Shuffling, Reorganization,

and Transfer of Valuable Assets Away

from Old DuPont and Separation of

Corteva and New Dow

222. Following the Dow-DuPont Merger, DowDuPont underwent a significant internal reorganization

and engaged in numerous business segment and product line “realignments” and “divestitures.” The net ef-

101a

fect of these transactions has been thetransfer, either

directly or indirectly, of a substantial portion of Old

DuPont’s assets out of the company.

223. The transactions were intended further to

frustrate and hinder creditors with claims against Old

DuPont, including with respect to its substantial environmental and PFAS liabilities.

224. Old DuPont’s assets, including its remaining

business segments and product lines, were transferred

either directly or indirectly to DowDuPont, which reshuffled the assets and combined them with the assets of Old Dow, and then reorganized the combined

assets into three distinct divisions: (i) the “Agriculture

Business,” (ii) the “Specialty Products Business,” and

(iii) the “Materials Science Business.”

225. While the precise composition of these divisions, including many details of the specific transactions, the transfer of business segments, and the divestiture of product lines during this time, are not

publicly available, Old DuPont apparently transferred

a substantial portion of its valuable assets to DowDuPont, for far less than the assets were worth.

226. Once the assets of Old DuPont and Old Dow

were combined and reorganized, DowDuPont incorporated two new companies to hold two of the three

newly-formed business lines: (i) Corteva, which became the parent holding company of Old DuPont,

which in tum holds the Agriculture Business, and (ii)

New Dow, which became the parent holding company

of Old Dow, and which holds the Materials Science

Business. DowDuPont retained the Specialty Products Business and prepared to spin off Corteva and

New Dow into separate, publicly-traded companies.

102a

2 2 7. T h e b el o w g r a p hi c d e pi ct s t h e st r u ct u r e of

D o w D u P o nt aft e r t h e i nt e r n al r e o r g a ni z ati o n a n d r e ali g n m e nt ( a n d n ot e s t h e pl a n n e d di s p o siti o n of t h e

n e w c o m p a ni e s):

2 2 8. T h e m e c h a ni c s of t h e s e p a r ati o n s a r e g o v e r n e d

b y t h e A p ril 1, 2 0 1 9 S e p a r ati o n a n d Di st ri b uti o n

A g r e e m e nt a m o n g C o rt e v a, N e w D o w, a n d D o w D u P o nt (t h e “ D o w D u P o nt S e p a r ati o n A g r e e m e nt”).

2 2 9. T h e D o w D u P o nt S e p a r ati o n A g r e e m e nt g e n e r all y all o c at e s t h e a s s et s p ri m a ril y r el at e d t o t h e r e s p e c ti v e b u si n e s s di vi si o n s t o C o rt e v a ( A g ri c ult u r e B u si n e s s), N e w D o w ( M at e ri al s S ci e n c e B u si n e s s), a n d N e w

D u P o nt ( S p e ci alt y P r o d u ct s B u si n e s s). N e w D u P o nt

al s o r et ai n e d s e v e r al “ n o n- c o r e” b u si n e s s s e g m e nt s a n d

p r o d u ct li n e s t h at o n c e b el o n g e d t o Ol d D u P o nt.

2 3 0. Si mil a rl y, C o rt e v a, N e w D o w, a n d N e w D u P o nt e a c h r et ai n e d t h e li a biliti e s p ri m a ril y r el at e d t o

t h e b u si n e s s di vi si o n s t h at t h e y r et ai n e

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