Document 2-1 Filed in on 07/11/19 Page 1 of 26

EXHIBIT 1

6:19-cv-00223-SPS Document 2-1 Filed in ED/OK on 07/11/19 Page 2 of 26

IN THE DISTRICT COURT IN AND FOR CARTER COUNTY
STATE OF OKLAHOMA
VALERO REFINING COMPANYOKLAHOMA, a Michigan corporation,

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Case No: _UJudge: ______
_

Plaintiff,
v.

3M COMPANY, a Delaware corporation;
E.I. DUPONT DE NEMOURS AND
COMPANY, a Delaware corporation; THE
CHEMOURS COMPANY, a Delaware
corporation; NATIONAL FOAM, INC., a
Delawar e corporation; BUCKEYE FIRE
EQUIPMENT COMPANY, an Ohio
corporation; KIDDE-FENWAL, INC. , a
Delaware corporation; and DOE
DEFENDANTS l TO 20,
Defendants.

PLAINTIFF 'S PETJTI ON

Plaintiff Valero Refining Company-Oklahoma ("Va lero" or "Plaintiff') for its Petition
against the above named defendants (collect ively, the "Defendants ") alleges and states as follows :

I.
THE PARTIES
l.

Plaintiff Valero Refining Company-Oklahoma is a Michigan corporatio n with its

principal place of business in San Antonio, Texas . lt owns and operates the Ardmore Refinery in
Carter Cou nty, Oklahoma.
2.

Defendant 3M Company ("3M") is a Delaware corporat ion, with its principal place

of business in St. Paul, Minnesota. 3M designed, manufactured , marketed , and/or sold aqueous
film-forming foam ("AFFF") products containing Long-Chain PF AS, and was in the business of
designing, manufacturing, and/or selling AFFF produc ts containing Long-Chain PF AS, that were

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purcha sed and/or used by Valero or were stored and/or used on properties owned and/or operated
by Valero.
3.

3M does business throughout the United States, including conduct ing business in

Oklahoma , and is registered to do business as a foreign for-profit corporation in Oklahoma with
the Secretary of State.
4.

Defendant E. 1. du Pont de Nemours and Company ("EID") is a Delaware

corporation with its principa l place of bus iness in Wilmington, Delaware.

EID designed ,

manufactured, marketed , and/or sold fluorosurfactants containing Long-Chain PF AS that were
incorporated into AFFF products , and was in the business of designing , manufacturing, marketing ,
and/or se lling fluorosurfactants with Long-Cha in PFAS that were incorporated into AFFF
products , and that were purchased and/or used by Valero or were stored and/or used on properties
owned and/or operated by Valero.
5.

EID does business throughout the United States, including conducting business in

Oklahoma , and is registered to do business as a foreign for -profit corporation in Oklahoma with
the Secretary of State.
6.

Defendant The Chemours Company ("Chemours") is a Delaware corporation, with

its main place of business located in Wilmington, Delaware. In 2015, EID spun off its performance
chemicals business to Chemours, and Chemours assumed a significant portion of EID ' s
environmenta l liabilities - includ ing those relat ing to Long-Chain PF AS - so that Chemours stands
in the shoes of a Manufacturer Defendant (as defined below) for the claims made in this action.
7.

Chemours does business throughout the United States, including conducting

business in Oklahoma , and is registered to do business as a foreign for-profit corporation in
Oklahoma with the Secretary of State.

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Delaware corporation with
Defendant National Foam, Inc. ("National Foam") is a

8.

National Foam designed , manufactured ,
its principal place of business in Angier, North Carolina.
marketed , and/or sold AFFF product s to Valero.

National Foam designed, manufactured ,

-Chain PF AS, and was in the business of
marketed, and/or sold AFFF products containing Long
products containing Long-Chain PFAS,
designing, manufacturing , marketing , and/or selling AFFF
and/or used on properties owned and/or
that were purcha sed and/or used by Valero or were stored
operated by Valero.
9.

, including conducting
National Foam does busines s throughout the United States

business in Oklahoma.
I 0.

) is an Ohio corporation
Defendant Buckeye Fire Equipment Company ("Buckeye"

, North Carolina.
with its principal place of busine ss in Kings Mountain

Buckeye designed ,

ining Long-Chain PFAS , and was in the
manufactured, marketed, and/or sold AFFF products conta
r se lling AFFF products contajning Longbusiness of designing, manufa ctu ring , marketing , and/o
o or were stored and/or used on properties
Chain PF AS, that were purchased and/or used by Valer
owned and/or operated by Valero.
I I.

ing conducting business
Buckeye does business throu ghout the United States, includ

in Oklahoma.
12.

Delawa re corporation with
Defendant Kidde-Fenwal , Inc. ("Kid de-Fe nwal ") is a

Kidde-Fenwal designed, manufactured,
its principal place of business in Farmington, Con nect icut.
-Chain PF AS, and was in the business of
market ed, and/or sold AFFF products containing Long
product s with Long-Chain PF AS, that
designing , manufacturing, marketing, and/or selling AFFF
stored and/or used on properties owned
were purchased, stored and/or used by Valero or were
and/or operated by Valero.

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13.

Kidde-Fenwal does business throughout the United States, including conducting

business in Oklahoma.
14.

3M, EID , Chemours, National Foam, Buckeye , and Kidde-Fenwal are collectively

referred to herein as Manufacturer Defendants.
15.

DOE Defendants

1 to 20 are other designers, manufacturers , marketers ,

distributors , and/or sellers of AFFF products containing Long-Chain PF AS, suppliers of
fluorosurfactants containing Long Chain PF AS that were incorporated into AFFF products , and
who were in the business of designing , manufactu1ing, marketing, and/or selling AFFF products
containing Long-Chain PF AS and supplying fluorosurfactants, which were sold to, stored, and/or
used by Valero and/or were stored and/or used on properties owned and/or operated by Valero.
When the DOE Defendants are identified, they will be added by name.
II.
VENUE AND JURISDICTION

16.

Venue is proper in Carter County , Oklahoma , pursuant to 12 O.S. §§ 131, 132

because this is an action seeking recovery for damages to real property and improvements thereon
that is located in Carter County and Murray County, Oklahoma. Moreover , Carter County is a
county in which all or a substantial part of the events or omission s giving rise to the claims
occurred, including the purchase of some of the products at issue.
17.

This court has jurisdiction over this case because no other court has exclusive

jurisdiction.
18.

This court has personal jurisdiction over Defendants because they have sufficient

contacts with the State of Oklahoma, both in general and with regard to these specific incidents, and
exercising jurisdiction over them does not offend the traditional notions of fair play and substantial
justice, so that exercising personal jurisdiction does not violate due process.

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Ill.
BACKGROUND FACTS
19.

Per- and polyfluoroalkyl substances (" PFAS") are a fami ly of syn thetic compounds

containing bonded fluorine and carbon.
20 .

A subset of PF AS compou nd s, often referred to as "Long-Chain PFAS" because of

down into
the ir structurally longer cha in of bonded fluorine and carbon atoms, includ e or break
perfluor ooctanoic acid ('' PFO A") and perfluorooctanesulfonic

acid (" PFOS "). Because of their

used in
waterproof , stain-res istan t, non -stick properties , these Long-Chain PFAS have been
packaging ,
numerous consumer products such as carpets , clothing , furniture fabrics, food
marke ted,
cookware , and fire-fighting foams. Manufacturer Defendants designed, manufac tured,
were in the
distributed and /or so ld Long-Chain PF AS utilized in these types of products and
Long -Chain
busines s of designing , manufacturing , ma rketing, and/or se lling products that utilized
PFAS.
21.

Manufacturer Defendants designed, manufactured, marketed , and/or so ld AFFF

Long-Cha in
products containin g Lon g-Chain PFAS, and/or supp lied fluorosurfactants containing
t urin g,
PF AS incorporated into AFFF products and were in the busine ss of desig ning, manufac
supp lying
marketing , distributing and /or selling AF FF product s containing Long-Chai n PF AS and
turer
fluorosurfaetant s containin g Long -Chai n PFAS incorpo rated into AFFF product s. Manufac
Defendants'

Long -Chai n PFA S produ cts are co llective ly referred to herein as " Manufacturer

Defe ndants ' AFFF products. "
22.

AFF F was developed to extinguish fires involving flammable substances that

be spray ed
cannot be exting uished wi th water alone. AFFF is used as a foam solution intended to
is sprayed on
directly o nto fires and onto spilled fuel, in order to prevent fires. The foam so lution

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the fire or fuel to provide a coat that blocks the supply of oxygen , generates a coo ling effect , and
creates an eva poration barrier. After the foam dissipates, a film forms to suffo cate a fire.
23.

Having effective fire foam is vitally important to Valero and others in the petroleum

industry.
24 .

Refineries, bulk sto rage facilities, and terminal s, such as those owned and ope rated

by Valero , maintain and use AFF F to ex tingui sh petro leum fire s. These companies and faci lities
arc the intended consumers of AFFF products.
25.

Valero owns and operates the Ardmo re Re finer y and associa ted facilities in Carter

County, Okla_homa, where Manufacturer Defendants ' AFFF products were purchased , stored ,
and /or used (the "S ites").
26.

Oklahoma refin eries are critica l to the nation ' s petroleum refining and chemica l

products production . T he Oklaho ma Energy Resources Board calls the oil and natural gas industry
the economic engine of the state.

According

to the United States Energy Information

Administration , Okl ahoma was the nation's sixt h-largest crude oil producing state in 2017. As of
Januar y 20 18, Oklahoma had five ope rable petroleum refine ries amounting to almost 3% of the
tot al refinery processing capacity of the United States.
27.

At all relevant times, Manufacturer Defend ants toget her controlled substanti ally all

of the market in Oklahoma for AFFF products.

These compa nies designed , ma nufactured ,

marketed, and/or sold AFFF produc ts, and/o r supplied tluoro surfa ctan ts incorporated into AFFF
products, both indi viduall y and collec tively through a variety of industry coal itions , trad e
associatio ns, and groups in order to purposefully target Ok lahoma as a market for AFFF products
and to profit from that mark et.

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_
,,.....,.

28.

The United States Environmental

Protection Agency ("USEPA")

and state

enviro nmental agencies around the country are now aggressively investigating PFOA, PF OS, and
othe r Long-Chain PFAS compounds and are in the process of estab lishing regulatory guidel ines,
Maximum Contaminant Levels ("MCLs"), and other cleanup standards for Long-Chain PF AS
co mpounds. USEPA is now moving fo rward with various regulatory action s, including listing
PFOA and PFOS as hazardous substances under Comprehensive

Environmental

Response ,

Compensation and Liability Act ("CERCLA") , creating MCL levels for drinking water, and/or
creating remediation levels for PFOA, PFOS, and other Long Cha in PF AS compounds.
29.

USEPA also recent ly released a 72-page Act ion Plan , which "outlines concrete

steps the agency is taking to address PF/\S." The Action Plan describes near-term action taking
place over the next two years, including moving forward with the MCL process outlined in the
Safe Drinking Water Act for PFOA and PFOS, beginning the process of listing PFOA and PFOS
in CERCLA, continuing enforcement actions and clarifying cleanup strateg ies , and expandi ng
monitoring of PF AS in the env ironm ent , among other agency action.
30.

USEPA also recently sought public comment on a draft set of recommendations for

clean ing up ground water containing PFOA and PFOS to serve as a starting point for makin g sitespecific cleanup decisions.

That guidance provides recommendations on screen ing levels for

investigation and pre liminary remediation goals as initial targets for cleanup leve ls.
31.

The State of Oklahoma supports the "evaluation of which PFOA/PFOS compounds

may need to be phased out of common usage" under the Toxic Substances Control Act. The State
of Oklahoma

also "support(s J considerat ion of making spec ific PFOA/PFOS

compo und s

Superfund hazardous substances in order for EPA and/or states to use Superfund authori ty to
address contaminated groundwater and surface water."

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,,,-...._

32.

As a result of these and other regulatory actions , Valero has incurred and will

continue to incur costs of addressing Long-Chain PFAS related to Manufacturer Defendants'
AFFF products.
33.

Manufacturer Defendants understood the true nature and properties of Long-Chain

PF AS compounds for several decades before regulators, but actively concealed and misrepresented
the nature of Long-Chain PFAS compounds to maximize their own profits. Further, Manufacturer
Defendants were aware of alternative product designs, though they have only relatively recently
shifted their production of fire-fighting foams and related fluorosurfactants away from use of
Long-Chain PFAS to shorter chain PF AS (with six carbon molecular structures or fewer).
34.

Manufacturer Defendants withheld short-chain PF AS development, and did not

offer AFFF with short-chain PF AS as an alternative product for decades.
35.

Recently, state environmental agencies around the country have disclosed that

Manufacturer Defendants have long possessed information regarding risks and potential impacts
of Long-Chain PF AS and their products, yet withheld that information from their customers,
regulators, and the public , made fraudulent representations regarding PFOA , PFOS, and/or their
products, and sold their products knowing them to be unfit for their intended purpose.
36.

As a direct and proximate result of the conduct and products of the Manufacturer

Defendants , Valero has incurred and will continue to incur substantial damages and costs
associated with their products at the Sites, including but not limited to disposing of and replacing
unused products containing Long-Chain PF AS, detecting , investigating, and remediating to
various regulatory standards related to Manufacturer Defendants' AFFF products and their LongChain PF AS constituents.

Manufacturer Defendants never revealed the contamination risks

associated with their products and, merely because Valero and others purchased or used

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Manufacturer Defendants' AFFF products exactly as intended and instructed at the Sites, Va lero
is now exposed to costs and damages to which it would not have otherw ise been exposed. Va lero
did not know , and could not have known , the risks it was facing - of costs and damages they could
incur - as a result of Manufacturer Defendants ' AFFF products , and their concealment and
fraudulent practices.
37.

As a result of Defendant s' action s, Valero has suffered and will cont inue to suffer

irrepa rable damage and harm. Valero has no adequate remedy absent an injunction.
38.

There is more than a reasonable probabilit y that the injur y sought

10

be prevented

will be don e if no injunction is issued.
39.

Accordingly, Va lero brings this action for ( I) compensatory damages consisting of

general and site-spec ific costs and damages incurred and to be incurred by Valero includ ing, but
not limited to, costs to dispo se of unu sed AFFF products ; replacement costs; cost s of identifying ,
investiga ting, monitoring, and/or remediating Manufacturer Defendan ts' AFFF products and
related costs; and real property environmental stigma/loss of market value damages, (2) punitive
damages , (3) injunctive relief, requiring Defendants to perform investigative effort s, remedial and
other work caused or necessitated by Manufacturer Defendants ' AFFF produc ts, and (4) such other
equitab le relief as may be appropriate at law or equity under the facts established and proven by
Plaintiff.
IV.

FRAU DULENT TRANSFE R FACTS
40.

EID has substant ial liabil ities related to Long-Chain PF AS, which arise from its use

and release of these chemicals at several of its plants around the country , as well as its manufacture
and/or sale of product s that contain Long-Chain PF AS. However , EID has sought to insulate itself
from billions of dollars in these liabilities.

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41.

For decades , ETD used and/or manufactured Long-Chain PF AS at chemical plants

in West Virginia, New Jersey and North Carolina.

EID was sued multiple times by landowners

and neighbors of those plants for liabilities arising out of Long-Chain PF AS.

ETD expended

hundreds of millions of dollars litigating and settling those lawsuits. EID thus knew, or reasonably
should have known, that it faced billions of dollars in liabilities related to PFAS.
42.

EID sought to limit its liability related to Long-Chain PFAS by engaging in a series

of restructuring transactions, starting with the "spinoff' of its performance chemicals business
(which included Long-Chain PF AS related operations) into Chemours, and continuing through the
merger with The Dow Chemical Company , creating DowDuPont

Inc., the transfer of EID's

historic assets away from EID, the transfer of such assets to other DowDuPont Inc. entities, and ,
ultimately , the spin-off of ETD to a new parent company named Corteva, Inc. On information and
beliet: EID was reorganized - and its assets were reshuffled - in order to shield tens of billions of
dollars in assets from the PF AS liabilities EID tried to quarantine in Chemours.
43.

On July 1, 2015 , EID completed the spinoff of its performance chemicals business

(the " Spinoff ') through the creation of Chemours , which became a separate , publicly-traded entity.
44.

To effectuate the Spinoff, EID and Chemours entered into a Separation Agreement

(the "Separation Agreement " ).
45.

Upon information and belief , EID completed a significant internal reorganization

prior to the Spinoff, so that all the assets and liabilities (held by EID and/or its subsidiaries) that
EID deemed to be part of the performance chemicals business would be held by Chemours including those related to the Long-Chain PF AS.
46 .

In addition to the assets transferred to Chemour s, EID caused Chemours to assume

EID's historical liabilities arising from EID ' s discharge of PFOA into the environment.

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specific details about the liabilities are set forth in non-public schedu les that are not avai lable to
Plaintiff at this time , the Separation Agreement required Chemours to assume what the agreement
defines as "Chemours Liabilities, " which include EI D's historic liabilities regardless of (i) when
or where such liabilities arose ; (ii) whet her 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, misrepresentation by EID and/or Chemours; and
(v) which entity is named in any action associated with any liability.
47.

The Separation Agreement defines Chemou rs Liabilities broadly , to include "any

and all Liabilities relating . . . primarily to, ar ising 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 ... inclucting .. . any and all Chemours Assumed Environmental Liabilities ...
.," which include EID ' s historic liabilities relating to and arising from its decades of emitting
PFOA into the environment and selling Long-Chain PFAS.
48.

Chemours also agreed to indemnify ETD in connection with those liabilities that it

assumed. The indemnification has no cap or tempora l limitation .
49.

Chemours also agreed to use its best efforts to be fully substituted for EID with

respect to "any order, decree, judgment , agreement or Action with respect to Chemours Assumed
Environmenta l Liabilities .... "
50.

Upon information and belief , there was no meaningful, arms- length negotiation of

the Separation Agreement. Indeed , when the Separation Agreement was signed, Chemours was a
wholly-owned subsidiary of EID , and a majority of the Chemours board consisted of EID
employees.

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51.

In connection with the Spinoff, Chemours paid EID approximately $3.9 billion ,

consisting -of approximately $3.4 billion in cash, plus approximately $507 million in promissory
notes. Chemours also transferred all of its stock to EID, which was ultimately delivered to EID's
shareholders. In order to fund the $3.9 billion payment, Chemours issued unsecured senior notes
and entered into a credit agreement with a syndicate of banks to provide two senior secured credit
facilities, incurring a total of $4 billion in indebtedness.
52.

Chemours was thinly capitalized following the Spinoff. Sho~ly after the Spinoff,

market analysts described Chemours as "a bankruptcy waiting to happen" and a company
"purposely designed for bankruptcy. "
53.

According to Chemours' unaudited proforma financial statements, as of March 31,

2015 (but giving effect to all of the transactions contemplated in the Spino ft), Chemours had total
assets of $6.4 billion and total liabilities of $6.3 billion. Following the Spinoff, Chemours issued
a 10-K stating that, as of December 31, 2015, Chemours had assets totaling $6.3 billion and total
liabilities of $6.2 billion.
54.

The 10-K stated that these liabilities include $454 million in "ot her accrued

liabilitie s," which includ ed $11 million for accrued litigation and $68 million for environmental
remediation.

The 10-K also stated Chemours had $553 million in "ot her liabilities," which

included $223 million for environmental remed iation and $58 million for accrued litigation.
55.

However, Chemours significantly under stated its liabilities, especially the liabilities

that it had assumed from EID related to Long-Chain PF AS, which EID and Chemours knew or
should have known would amount to billions of dollars in addition to other environmental
liabilitie s related to EID and Chemours facilities. Had Chemours taken the full extent of these

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liabilities into account, as it should have done, it would have negative equity (that is, liabilities that
are greater than assets), and would be balance sheet insolvent.

V.
CAUSES OF ACTION
A.

Strict Products Liability for Defective Design
56.

Valero reaJ leges and incorporates paragraphs 1 through 55 as if fully stated herein.

57.

Manufacturer Defendants ' AFFF products containing or breaking down into Long-

Chain PFAS, including PFOS and/or PFOA , were designed, manufactured, marketed and sold by
Defendants.
58.

At the time Manufacturer Defendants ' AFFF product s in question were sold ,

Manufacturer Defendants were in the business of designing, manufacturing, marketing , selling,
and/or incorporating into other products chemicals such as those in question here.
59.

At the time Manufacturer Defendants' AFFF products in question were designed ,

manufactured , marke ted, and sold by them , they were defective in design and not reasonably safe
as designed at the time they left Manufacturer Defendants' possession and control. The defect in
Manufacturer Defendants ' AFFF products made Manufacturer Defendants'

AFFF products

unreasonably dangerous to Plaintiff and Plaintiff's property.
60.

At the time Manufacturer Defendants'

AFFF products in question left their

possession, there were econo mically and technologically feasible safer alternative designs that
would have prevented or significantly reduced the risk of Plaintiff's damages without substantially
impairing their products' utility.
61.

The defective and unreasonably dangerous condition of the Defendants ' AFFF

products has caused and will continue to cause injury to Plaintiff. Defendants are strictly liable
for all such damages.

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62.

At the time the Manufacturer Defendants' AFFF products were used, they were in

substantially the same condition as they were when placed into the stream of commerce. No
material alterations were made to the products. The Manufacturer Defendants ' AFFF products
were in the same or substantially similar condition as when they left the control of Defendants.
63.

Valero is an entity who used, consumed, could have reasonably been affected by,

and was affected by the Manufacturer Defendants' AFFF products. Valero has suffered and will
continue to incur costs relating to djsposal and replacement of unused products and detecting ,
investigating, monitoring, and addressing impacts from the use of Manufacturer Defendants '
AFFF products, including PFOS and/or PFOA. Likewise, Valero has suffered and will continue
to suffer property damages in terms of costs of abatement and/or loss of market value due to
Manufacturer Defendants ' AFFF products' contamination on, under and from the Sites.
Manufacturer Defendants ' AFFF products have caused damage to property other than
Manufacturer Defendants ' AFFF products. That damage was directly caused by the defect in
Manufacturer Defendants' AFFF products. Manufacturer Defendants ' AFFF products are the
cause of Plaintiffs injury. Defendants are strictly liable for all such damages.
B.

Strict Products Liability for Failure to Warn

64.

Plaintiff realleges and incorporates paragraphs 1 through 63 as if fully stated herein.

65.

Manufacturer Defendants' AFFF products containing or breaking down into Long-

Chain PFAS, including PFOS and/or PFOA , were not reasona bly safe at the time they left their
control because those products lacked adequate warnings.
66.

At the time Manufacturer Defendants manufactured, marketed, and sold their

products containing or breaking down into Long-Chain PF AS, including PFOS and/or PFOA, they
knew their products were not safe because Long-Chain PF AS would need to be detected ,
investigated, monitored , addressed, and/or removed from the soil and groundwater, if the products
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were used as intended. Va lero has been so injured. Manufacturer Defendant s' AFFF products
involved a risk of harm to persons and property when they are used by an ordinary user in the way
that they were intended to be sued and in a way that the Manufacturer Defendants could have
reasonably foreseen they would be used.
67.

Despite Manufacturer Defendants' knowledge of attendant risks , they failed to

provide adequate warnings and instructions that their products, if used as intended, would cause
such damages. Manufacturer Defendants also failed to provide adequate warnings and instructions
concerning the precautions that must be taken when using their products in order to eliminate or
limit the releas e of Long-Chain PF AS contamination when used as intended.

Manufacturer

Defendants' AFFF products did not have adequate warning of their dangerous characteristics or
adequate instructions for their safe use that are sufficient to inform an ordinary use of the risk of
harm.
68.

Moreover, Manufacturer Defendants continued to conceal the dangers of their

products after they manufactured, marketed, and so ld such products.
69.

Without adequate warnings or instructions , Manufacturer

Defendants ' AFFF

products were unsafe to an extent beyond that which would be contemplated by an ordinary person.
The risk of harm is not one that an ordinary user would reasonably expected. The particular danger
would not have been apparent to an ordinary user from the nature of the products themselves or
from other information known to the user.
70.

Manufacturer Defendants' conduct and Long-Chain PFAS, including PFOS and/or

PFOA , released by their products at the Sites caused and continues to cause injury to Valero.
71.

Valero has suffered and will continue to incur costs relating to disposal and

replacement of unused products and detect ing, investigating, monitoring, and addressing impacts

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from the use of Manufacturer Defendants ' AFFF products, including PFOS and/or PFOA.
Likewi se, Valero has suffered and will continue to suffer property damages in terms of costs of
abatement and/or loss of market value due to Manufactur er Defendants' AFFF products '
contamination on, under and from the Sites. Defendants are strictly liable for all such damages.
C.

Negligence

72.

Plaintiff realleges and incorporates paragraphs 1-71 as if fully stated herein.

73.

Manufacturer Defendants committed acts of omission and commission , which

collectively constituted negligence , which were a direct , proximate, and but-for cause of the
damages and injuries to Plaintiff.
74.

Manufacturer Defendants failed to exercise ordinary care because a reasonably

careful company that learned of risks of the nature and kind alleged here would not manufacture
or market that product , would warn of its risks and properties (even after it left its control) , or
would take steps to enhance the safety and/or reduce the impacts and risk of damage from its
product.
75.

Manufacturer Defendants owed Valero a duty of care in the manufacture,

marketing , and sale of Manufacturer Defendants ' AFFF products containing Long-Chain PF AS,
including PFOS and/or PFOA , because it was foreseeable to them that their products, when used
as intended , would cause damage to property and consumers such as Valero.
76.

Manufacturer Defendants'

negligent conduct in creating, exacerbating, and

concealing the presence and risks of Long-Chain PFAS, including PFOS and/or PFOA, released
from their products , caused and continues to cause damages to Valero.
77.

Valero has incurred and will continue to incur costs associated with Manufacturer

Defendants' AFFF products. Defendants are liable to Valero for all such damages.

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 6:19-cv-00223-SPS Document 2-1 Filed in ED/OK on 07/11/19 Page 18 of 26

78.

Likewise, Valero have suffered and will continue to suffer property damages in

terms of costs of abatement and/or loss of market value due to Manufacturer Defendants' AFFF
products' contamination on, under, and from the Sites.
D.

Gross Negligence

79.

Plaintiff realleges and incorporates paragraphs 1-78 as if fully stated herein.

80.

Manufacturer Defendants committed gross negligence, which was a direct,

proximate , and but-for cause of the damages and injuries to Plaintiff and for which Plaintiff is
entitled to recover punitive damages.
81.

Manufacturer Defendants ' acts and omissions involved an extreme degree of risk

and recklessness, considering the probability and magnitude of potential harm to others.
82.

Even though Manufacturer Defendants were aware of these dangers, they acted

recklessly and with conscious disregard to the rights, safety and welfare of Plaintiff and others by,
among other things, refusing to incorporate safer alternative designs and provide warnings and
misleading the Plaintiff and the consuming public about their products.
E.

Actual Fraud, Constructive Fraud, and Deceit

83.

Plaintiff realleges and incorporates paragraphs 1-82 as if fully stated herein.

84.

In the course of manufacturing, marketing , and selling their products, Manufacturer

Defendants studied and had knowledge of the impacts of Long-Chain PF AS, including PFOS
and/or PFOA, that they knew was unavailable to the Plaintiff and the rest of the general public.
Defendants deliberately concealed information regarding the contamination effect of their
products that might impair their lucrative business. The concealed information were material facts.
Defendants had a duty to speak.
85.

The Long-Chain PFAS chemicals in Manufacturer Defendants' AFFF products

have unique bioaccumulative properties and characteristics.
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Manufacturer Defendants were

 6:19-cv-00223-SPS Document 2-1 Filed in ED/OK on 07/11/19 Page 19 of 26

acutely aware of these properties , which were known only to them. Manufacturer Defendants
knew their AFFF products would produce damages to the product users, yet continued to actively
market the sale of their products.
86.

Indeed , Manufacturer Defendants knew their products were unsafe to an extent

beyond that which would be contemplated by an ordinary person because of the information only
available to and deliberately withheld by them.
87.

While omitting infom1ation that may deter a sale, Manufacturer Defendants also

made materially false statements designed to further the sales of their products to consumers,
including Valero.

Manufacturer Defendants ' statements were material representations and

Manufacturer Defendants knew those statements were false or made them with recklessly without
knowledge of the truth. For example, with knowledge to the contrary, 3M issued a statement in
2000 that its products were safe. Manufacturer Defendants also directly - and through a trade
group established to dispel concerns the USEPA had raised about their products - published false
information about Manufacturer Defendants ' AFFF products not containing or breaking down into
Long-Chain PFAS, including PFOA.

Valero relied on such statements to their detriment in

purchasing and using Manufacturer Defendants ' AFFF products. Manufacturer Defendants' false
statements were made with the intention that Valero and others would reply upon them.
Manufacturer Defendants , through the breach of a duty owed to Plaintiff, have gained an advantage
by misleading Valero to its prejudice.
88.

Valero has incurred costs associated with addressing Manufacturer Defendants '

AFFF products because it acted in justifiable reliance upon false and misleading statements made
by them in the promotion and sale of their products. Valero's reliance was just ifiable .
F.

Unjust Enrichment

89.

Plaintiff realleges and incorporates paragraphs I -88 as if fully stated herein.

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 6:19-cv-00223-SPS Document 2-1 Filed in ED/OK on 07/11/19 Page 20 of 26

90.

Valero has incurred and will continue to incur expenses in connection with the use

and presence of Manufacturer Defendants' AFFF products at the Sites, including disposal and
replacement costs of unused products, and identification, investigation, monitoring, remediation,
assessment, and other costs incurred as a result of the Defendants' fraud and other acts and/or
omissions described herein.
91.

Defendants are responsible for expenditures related to Manufacturer Defendants'

AFFF products and Long-Chain PF AS, including PFOS and/or PFOA, which were caused by the
use of their products. In accordance with equitable principles, Defendants should have to pay these
costs. It would be unjust for Defendants to retain the benefit of Valero's expenditures incurred in
connection with their products. For Defendants to fail to make restitution to Valero would be
inequitable. Defendants have been unjustly enriched at Valero's expense.
92.

Accordingly, Valero requests restitution for the full amount by which Manufacturer

Defendants were unjustly enriched and an injunction ordering Manufacturer Defendants to return
all monies by which they were unjustly enriched as a result of Valero' expenditures in connection
with Manufacturer Defendants' AFFF products.
G.

Common Law and UCC Breach of Implied Warranties

93.

Plaintiff realleges and incorporates paragraphs 1-92 as if fully stated herein.

94.

Manufacturer Defendants are merchants with respect to AFFF products.

95.

Manufacturer Defendants ' AFFF products are not fit for the ordinary purposes for

which such goods are used and are not adequate ly labeled.
96.

Manufacturer Defendants' AFFF products are not merchantable.

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 6:19-cv-00223-SPS Document 2-1 Filed in ED/OK on 07/11/19 Page 21 of 26

97.

At the time of contracting, Manufacturer Defendants knew the particular purpose

for which their AFFF products were required. Manufacturer Defendants' AFFF products were not
fit for such purpose.
98.

Valero relied on Manufacturer Defendants ' skill and judgment to furnish suitable

99.

Manufacturer Defendants , in selling their products , breached implied warranties of

goods.

merchantability and fitness, which were a producing and proximate cause of Plaintiffs damages.

H.

Actual Fraudulent Transfer (EID and Chemours)
100.

Plaintiff realleges and incorporates paragraphs 1-99 as if fully stated herein.

l 0 l.

Through their effectuation of the Spinoff , Chemours and EID (the "Fraudulent

Transfer Defendants") caused Chemours to transfer valuable assets to EID , including the $3.9
billion dividend (the "Transfers") , while simultaneously assuming significant liabilities (the
"Assumed Liabilities ").
102.

The Transfers and Assumed Liabilities were made for the benefit of EID.

103.

At the time that the Transfers were made and the Liabilities were assumed, and

until the Spinoff was complete, EID was in a position to , and in fact did, control and dominate
Chemours.
I 04.

The Fraudulent Transfer Defendants made the Transfers and incurred the Assumed

Liabilities with the actual intent to hinder, delay and defraud the creditors or future creditors of
Chemours.
105.

Valero has been harmed as a result of the conduct of the Fraudulent Transfer

Defendants.

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 6:19-cv-00223-SPS Document 2-1 Filed in ED/OK on 07/11/19 Page 22 of 26

106.

Under Oklahoma's Fraudulent Transfer Act, 24 O.S. §§ 112, et seq., and Delaware

Code Tit. 6 Sec. 130 1-1312 , Valero is entitled to avoid the Transfers and to recover property or
value transferred to and he ld by EID, to injunctive relief against furthe r dispositio n of the
transferred assets, and all other relief to which it has rights at law or in equity.

I.

Co nstructive Fraudul ent Transfer (EID and Chemours)
I 07.

Plaintiff reallcges and incorporates paragraphs 1-106 as if fuJly stated herein.

108.

Chemou rs did not rece ive reasonab ly equiva lent value from EID in exchange for

the Transfers and Assumed Liabilities.
109.

Each of the Transfe rs and Chemours' assumpt ion of the Assumed Liabilities was

made to or for the benefit of ETD.
110.

At the time that the Transfers were made and the Assumed Liabili ties were

assumed, and unti l the Spinoff was complete, EID was in a position to, and in fact did, contro l and
dominate Chemours.
111.

The Fraudu lent Transfer Defendants made the Transfers and assumed the Assume d

Liabili ties when Chcmours was engaged or about to be engaged in a business for which its
remaining assets were unreasonably small in relation to its bus iness.
112.

Chemours was inso lvent at the time or became insolvent as a result of the Transfers

and its assumpt ion of the Assumed Liab ilities.
113.

At the time that the Transfers were made and Chemours assumed the Assumed

Liabilitie s, the Fraudule nt Transfer Defendants intended to incur, or believed or reasonably should
have believed that Chemours would incur, debts beyond its ability to pay as they became due.
114.

Valero has been harmed as a result of the Transfers. Under Ok lahoma's Fraudule nt

Transfer Act, 24 O.S. §§ 112, ct seq., and Delaware Code Tit. 6 Sec. 1301 to 1312, Va lero is entitled

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 6:19-cv-00223-SPS Document 2-1 Filed in ED/OK on 07/11/19 Page 23 of 26

injunctive
to avoid the Transfers and to recover property or value transferred to or held by EID, to
has rights
relief against further disposition of the transferred assets, and all other re lief to which it
at law or in equity.

J.

Violation of the Oklahoma Consumer Protection Act

115.

Plaintiff reaJleges and incorporates paragraphs 1-114 as if fully stated herein.

116.

Plaintiff is a consumer of Manufacturer Defendants' products.

117.

Manufacturer

Defendants

engaged

in

unlawful

practices.

Specifically,

as to the
Manufacturer Defendants mad e false represen tation s, knowingly or with reason to know,
consumer
character istics, uses, and benefits, of their products, which were the subjec t of a

§ 752,
transaction, and committe d unfair and deceptive trade practices, as defined by 12 O.S.
throug h misrepresentations,

omissions, and other practices that have deceived and could

person and
reasonably be expected lo have deceived or mislead a person to the detriment of that
unethical,
though practices which offend established public policy and which are immoral,
oppressive, unscrupulous, and substan tially injuri ous to consume rs.
118.

Manufacturer

Defendants'

unlawful

practices

occurred

m the course

or

Manufacturer Defendants' business
119.

Manufacturer Defendants' unlawful practices caused an injury in fact to Plaintiff :

as a cons umer.
120.

Manufacturer Defendants' commission of acts and practices in violation of the

Oklahoma Consumer Protection Act are unconscionable.
121.

As a resu lt of Manufacturer Defendants' unlawful practices, Plaintiff has susta ined

actual damages and has incurred costs oflitigation.

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 6:19-cv-00223-SPS Document 2-1 Filed in ED/OK on 07/11/19 Page 24 of 26

VI.
N MENT STAN DARD S
GOVER
COM PLIANCE WITH
122.

No mandatory safety standard or regulation adopted and promu lgated by the federal

turer
government or an agency of the federal government was applicable to the Manufac
risk
Defendants' AFFF products at the time they were manufactured that governed any product
that caused Plaintiffs damages.
VII.
DAMAGES

123.

Actual Damages. Plaintiff seeks all damages allowed at law. As a direct and

wi ll m
proximate result of the foregoing events, Plaintiff suffered damages in the past, and
reasonable probability have damages in the future . all for which suit is now brought.
124.

Exem plary Damages. As a result of Defendants fraud, gross negligence, reck less

exemplary
conduct , wanton conduct , malicious conduct, and intent ional conduct, Plaintiff seeks
damages aga inst Defendants in an amount deemed appropriate by the jury.
125.

Prejudg ment and post-jud gment interest. Plaintiff seeks pre-jud gment and post-

judgment interest at the highest rate allowed by law.

VIII.
REQUEST FOR J URY T RIAL
126.

Plaintiff hereby requests a trial by jury.

IX.
PRECE DENT
NS
TIO
CONDI
127.

All conditions precedent to P laint ifrs rights to recover herein and to Defendants '

liab ility have been performed, have occurred , or have been waived by Defendant s.

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 6:19-cv-00223-SPS Document 2-1 Filed in ED/OK on 07/11/19 Page 25 of 26

PRAYER FOR RELIEF

as follows:
WHEREFORE, Valero requests judgment in its favor and against Defendants
a.

and/or
Holding and declaring all Defendants to be strictly liable, and jointly

and awarding Valero
severally liable as appropriate, to Valero for the claims set forth above,
contami nation caused
damages consis ting of costs incurred and to be incurr ed in respo nding to any
to, destruction of, and
by the Manufacturer Defendants ' AFFF products , and damages for injury
unused products, and
loss of Valero's property , including the costs of disposing of and replacing
need ed to make such
assessing, monitoring and/or remediating damages , and the costs of experts
an assessment;
b.

and
Ordering injunct ive relief and requiring Defendants to perform investigative

remed ial work in response to any threats and/or damages they have caused;
c.

hain
Awarding damages to pay for the remediation and/or restoration of the Long-C

value for each of
PF AS chemicals and/or for efforts, and/or to pay for the diminution in market
the Sites;
d.

g
As to the Fraudulent Transfer Defendants , ordering the Transfers void , allowin

g injunctive relief
Plaintiff to recover property or value tran sferred to or held by EID , allowin
to which Plaintiff
agains t further disposition of the transferred assets , and providing all other relief
have rights at law or in equity;
e.

Awarding exemplary damages in an amount to be determined at trial;

f.

Awarding Va lero ' s reasonable attorneys ' fees and costs ;

g.

e act
Award Valero a civil penalty in the amount of $2,000 for each unconscionabl

er Protection Act ;
or practice of Manufacturer Defendants in violation of the Oklahoma Consum

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 6:19-cv-00223-SPS Document 2-1 Filed in ED/OK on 07/11/19 Page 26 of 26

h.

Require Manufactu rer Defe ndants to forfeit and pay a civil penalty of$ I0 ,000 per

vio lation of the Oklahoma Consumer Protection Act ;
1.

Awarding equitab le re lief for Va lero's reasonab ly expected future damages as set

forth above; and

J.

Awarding such other and further relief at law and/or in equity that the Court deems

appropriate .
Respectfu lly subm itted:

B~~

,.

~~~~~-

illiams, Jr. , OBA #. 043
D. Ken
Dawson A. Brotemark le, OBA #31 495
HALL, ESTILL, HARDW ICK, GABLE,
GOLDEN & NELSON, P.C.
320 S. Boston Ave. , Suite 200
Tulsa, OK 74103-3706
Te lephone (918) 594-0400
Facs imile (918) 594-0505
kwilliams @ ha llcsti ll.com
dbrotemarklc @ hallesti ll.com

ATTOR NE YS FOR PL AINTI FF
VALE RO REFI NING COMP ANYOKLAHOMA

4082757.1:830038:00700

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