Products Liability Law Daily Wrap Up, JURISDICTION—CHEMICAL PRODUCTS—W.D. Wash.: Refinery owners granted remand of environmental contamination suit against fire-fighting foam maker, (Sep 12, 2025)

By Pankhuri Bhatnagar, B.A. LL.B.

The foam manufacturer failed to meet the elements of the federal officer removal statute.

In an action brought by two refinery owners against several chemical and foam manufacturers for “PFAS” contamination allegedly caused by commercial fire foam, a federal district court in Washington granted the owners’ motion to remand. The court found that it lacked subject matter jurisdiction under the federal officer removal statute because even though the manufacturer developed the foam “under a federal officer’s directions” for a Navy and airport site, the owners’ expert refuted its seawater intrusion theory.

The manufacturer thus failed to prove on a more probable-than-not basis that harmful chemicals from the foam at the military sites were discharged into seawater, which then migrated and intruded onto the refinery land, causing the subject contamination (Marathon Petroleum Co. LP v. Arkema, Inc., No. 2:25-cv-1250-MJP (W.D. Wash. Sept. 3, 2025)).

Background. Marathon Petroleum Company LP and Tesoro Refining & Marketing Company LLC (together, Marathon or owner) owned and operated a refinery in Anacortes, Washington. Starting in the 1980s, Marathon began purchasing and using a fire-fighting foam, called aqueous film forming foam (AFFF) which contained per- and polyfluoroalkyl substances (PFAS). It later claimed that it was misled about the safety of the AFFF and its chemical contents, and the PFAS contaminated the refinery.

It sought to hold the manufacturers of the AFFF and PFAS accountable for the damage caused by and the remediation of the PFAS on its property. It filed suit asserting state statutory and common law claims against several companies, including Tyco Fire Products, an AFFF maker. Tyco removed this suit from Skagit County Superior Court to federal court asserting subject matter jurisdiction under the federal officer removal statute. The owner moved to remand.

Legal standard. To satisfy removal under the federal officer defense outlined in 28 U.S.C. § 1442(a)(1), “a removing private entity must show that (a) it is a ‘person’ within the meaning of the statute; (b) there is a causal nexus between its actions, taken pursuant to a federal officer’s directions, and plaintiff’s claims; and (c) it can assert a colorable federal defense” as per DeFiore v. SOC LLC, 85 F.4th 546, 553 (9th Cir. 2023). “To establish such a nexus, the contractors ‘must show: (1) that [they were] “acting under” a federal officer in performing some “act under color of federal office,” and (2) that such action is causally connected with the [guards’] claims against [them]’” as per County of San Mateo v. Chevron Corp., 32 F.4th 733, 755 (9th Cir. 2022). Here, the parties agreed that Tyco was a “person” under the statute but disputed the remaining three elements.

Parties’ contentions. Tyco believed that removal was proper since some of the refinery contamination was caused by AFFF it developed for the military (MilSpec AFFF) pursuant to detailed government specifications, direction, and control.

It claimed that it was acting under a federal officer since the products were subject to testing and review by the U.S. Navy before being approved for military use. As for a causal connection, Tyco submitted that this MilSpec AFFF was used at both the Naval Air Station Whidbey Island and the Bellingham International Airport, and that PFAS from this AFFF used at both locations migrated to and contaminated the refinery. It explained that (1) during rising or high tides, surface water and accompanying contaminants released from NAS Whidbey Island flowed through the Strait of Juan de Fuca to the refinery; (2) this was evidenced by elevated levels of PFAS in the facility’s soil and the groundwater adjacent to the Strait of Juan de Fuca; (3) AFFF used at the airport was discharged into Bellingham Bay, which flowed to the refinery during falling or low tides; and (4) data show elevated salinity levels in the groundwater beneath the refinery, indicating that seawater and its accompanying contaminants had intruded on the property, commingling with the commercial AFFF used at the refinery. As for the colorable federal defense, Tyco claimed that it could not be held liable for design defects in military equipment under state law since the equipment conformed to the military’s specifications and it warned the U.S. about product dangers it knew of.

Marathon responded that removal was improper since no MilSpec AFFF could have caused the contamination, given that NAS Whidbey and the airport were 12 and 20 miles away from the site of damage respectively, there was no evidence to show that ocean currents carried the MilSpec AFFF from either source, and drinking water wells along the supposed pathway did not show PFAS contamination. Marathon’s expert contradicted Tyco’s theory that seawater intrusion occurred at the refinery, opining that (1) the depth of the saltwater below the refinery was several hundred feet even near the shore; (2) groundwater flowed from land to sea; (3) there was no potential for intrusion of saltwater due to well pumping; and (4) even if the MilSpec PFAS traveled to the site, there was no pathway for the chemicals to get in.

Tyco’s geologist countered with a model maintained by the University of British Columbia showing a potential pathway from the airport and navy site to the refinery. He added that (1) there may have been saltwater intrusion into the freshwater aquifers; (2) there were permits to extract groundwater on the peninsula; (3) storm surges and tides that physically push overtop of land and sea spray aerosols “likely” deposited PFAS on the site; (4) Marathon’s expert did not provide sufficient data or exclude the possibility that groundwater may be below sea level in some places or that groundwater pumping may have occurred on adjacent land; and (5) wells along the outlined path of travel did detect PFAS but below actionable levels and drinking water wells were not relevant since they are drilled to depths far lower than monitoring wells and tap into aquifers with large amounts of water.

Analysis. The court found that Tyco failed to support its theory of contamination with competent proof that would show by a preponderance of the evidence that PFAS from MilSpec AFFF migrated from Navy or airport sites to the refinery. Marathon’s expert explained that groundwater below the refinery was above sea level and generally flowed outward to the surrounding waters, not inward.

Saltwater would have to travel hundreds of feet up even near the shore, and the lack of well pumping prevented any possible intrusion. These facts directly contradicted Tyco’s allegation that saltwater intrusion enabled MilSpec AFFF to contaminate the property. Tyco’s geologist only opined that “multiple lines of evidence” supported the “plausible inference” that PFAS from the identified sources “may have” entered the refinery property and that physical events like storm surges and sea spray “likely” deposited PFAS near the shore; but did not opine that migration, contamination, or seawater intrusion was more likely than not. The expert conceded that more data was needed to confirm or rule out such pathways and acknowledged gaps in both his own and Marathon’s expert's analysis. As such, there was no competent factual evidence tying MilSpec AFFF to the PFAS contamination at issue. Tyco’s failure to meet the causal nexus element was fatal to its federal officer removal defense, warranting a remand.

Motion to strike. In its response to Tyco, Marathon offered a new expert’s opinion that it could differentiate the kinds of PFAS found at the refinery. The court agreed with the manufacturer that this information could have been presented with the motion, and it was improper to introduce these materials for the first time in reply. Doing so deprived Tyco of an opportunity to respond and the expert reply was accordingly struck down and not considered in resolving the remand motion. The manufacturer’s motions to stay and to extend were denied as moot.

The case is No. 2:25-cv-1250-MJP.

Judge: Pechman, M.

Attorneys: Fabio Dworschak (Miller Nash LLP) for Marathon Petroleum Co. LP.

Companies: Marathon Petroleum Co. LP; Arkema Inc.

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