Products Liability Law Reporter

The Seventh Circuit Court of Appeals held that 3M Co. did not have a colorable federal defense in a case alleging liability for the alleged contamination of a river with PFAS.

3M Co. operates manufacturing facilities in the United States, including the Cordova facility, which is located in Illinois on the banks of the Mississippi River. The company sells PFAS-containing aqueous film-forming foam (AFFF) to the U.S. military but does not produce this at the Cordova facility. The state of Illinois sued 3M Co. in Illinois state court, alleging violations of state environmental statutes, plus common law causes of action. The state alleged that PFAS from the Cordova facility contaminated the Mississippi River.

The defendant removed the action to federal district court under the federal officer removal statute. The company argued that it planned to assert a federal government contractor defense because some of the alleged contamination in the Mississippi River may have come from AFFF that it provided to the U.S. military and that was used at the Rock Island Arsenal located 25 miles downstream from the Cordova facility. The state moved to remand the case, and the district court granted the motion on the basis that the case did not relate to a federal act in that the state’s complaint expressly excluded PFAS contamination sourced from AFFF. The defendant appealed.

Affirming, the Seventh Circuit noted that if the contamination here came from AFFF, the government contractor defense could apply, even where the state’s complaint expressly excluded 3M from liability for PFAS contamination sourced from AFFF. Nevertheless, the court found, the defendant may not assert a colorable federal government contractor defense here because this is irrelevant under the state’s theory of recovery, which asserts that the defendant is liable for PFAS contamination only in areas where the contamination resulted completely from the Cordova facility.

Thus, the court held that 3M may only be liable for PFAS contamination wholly derived from the Cordova facility, and the government contractor defense does not apply to PFAS sourced from that facility.

Citation: Raoul v. 3M Co., 2024 WL 3682099 (7th Cir. Aug. 7, 2024).

Government counsel: Leigh J. Jahnig, Chicago.