PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 20-1712

WEST VIRGINIA STATE UNIVERSITY BOARD OF GOVERNORS,

Plaintiff - Appellee,

v.

THE DOW CHEMICAL COMPANY; UNION CARBIDE CORPORATION; 

BAYER CORPORATION; BAYER CROPSCIENCE LP; BAYER CROPSCIENCE 

HOLDING, INCORPORATED; RHONE-POULENC, INCORPORATED, RHONEPOULENC AG COMPANY; RHONE-POULENC AG COMPANY, INC.; AVENTIS 

CROPSCIENCE USA, LP,

Defendants - Appellants.

Appeal from the United States District Court for the Southern District of West Virginia, at 

Charleston. John T. Copenhaver, Jr., Senior District Judge. (2:17-cv-03558)

Argued: September 21, 2021 Decided: January 10, 2022

Before GREGORY, Chief Judge, NIEMEYER, and RICHARDSON, Circuit Judges.

Affirmed by published opinion. Chief Judge Gregory wrote the opinion, in which Judge Niemeyer

and Judge Richardson joined.

ARGUED: Kasdin Miller Mitchell, KIRKLAND & ELLIS LLP, Washington, D.C., for 

Appellants. Benjamin James Hogan, BAILEY & GLASSER LLP, Morgantown, West Virginia,

for Appellee. ON BRIEF: Douglas J. Kurtenbach, Nader R. Boulos, Daniel I. Siegfried, 

KIRKLAND & ELLIS LLP, Chicago, Illinois; Floyd E. Boone, Jr., BOWLES RICE, LLP, 

Charleston, West Virginia, for Appellants. Samuel A. Hrko, Victor S. Woods, Charleston, 

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West Virginia, Brian A. Glasser, BAILEY & GLASSER LLP, Washington, D.C., for 

Appellee.

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GREGORY, Chief Judge:

This case deals with groundwater contamination on land owned by West Virginia 

State University (“WVSU”), a historically Black university, which is adjacent to a 433-

acre industrial park located in Institute, West Virginia that consists of a chemical 

manufacturing plant and wastewater treatment unit (the “Institute Facility”). The suit 

asserts several state and common law claims and seeks that Defendants adopt remedial 

measures, beyond those recommended by the U.S. Environmental Protection Agency 

(“EPA”), to address contamination on property owned by WVSU. On July 7, 2017, 

Defendants removed the action to federal district court invoking federal question

jurisdiction, diversity jurisdiction, and federal officer jurisdiction pursuant to 28 U.S.C. 

§§ 1331, 1332, 1441, 1442, and 1446. On August 7, 2017, Plaintiff filed a motion to 

remand to state court. On June 1, 2020, the district court granted Plaintiff’s motion to 

remand. Dow Chemical appealed. We conclude that the district court did not err in holding 

that neither 28 U.S.C. §§ 1442 nor 1331 confer federal jurisdiction over WVSU’s claims. 

For the following reasons, we affirm the district court’s ruling.

I.

A.

In 1890, WVSU received a land grant from the U.S. Congress. Beginning in 1943, 

the Institute Facility was owned by the federal government who used it as a synthetic rubber 

production plant during World War II. J.A. 220. Then, in 1947, the Union Carbide 

Corporation (“UCC”) purchased the Institute Facility and began manufacturing various 

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hydrocarbon and agricultural products. J.A. 80–81. In May 2013, the West Virginia 

Department of Administration (“WVDA”) transferred the former West Virginia 

Rehabilitation Center (“Rehabilitation Center”) to WVSU, which extended WVSU’s 

property so that it was immediately adjacent to the Institute Facility. J.A. 83. The 

Rehabilitation Center is in the southeastern part of the campus with the Institute Facility 

immediately bordering it to the southwest and the Kanawha River to the south.1

 See J.A. 

230; see also J.A. 270 (Map); J.A. 385 (Map). Between 1986 until 2015, the Institute 

Facility was owned and operated by various companies, including Rhone-Poulenc, Inc. 

(1986-2000), Aventis (2000-2002), and Bayer CropScience (2002-2015). J.A. 83. In 2015, 

Bayer CropScience returned control of the Institute Facility to UCC, which was a 

subsidiary of the Dow Chemical Company. Id. The Institute Facility is currently owned 

and operated by UCC, as a subsidiary of the Dow Chemical Company.

B.

In November 1984, UCC applied to the EPA and the West Virginia Division of 

Natural Resources (“WVDNR”), which is part of the West Virginia Department of 

Environmental Protection (“WVDEP”), for a permit to operate hazardous waste 

management units, pursuant to the Resource Conservation and Recovery Act, 42 U.S.C. 

1 The 433-acre facility is an industrial park located between the Kanawha River to 

the south, West Virginia State Route 25 (WV 25) to the north, UCC Private Trucking 

Operations (PTO) to the west, and West Virginia State University (WVSU) to the east. See

J.A. 230 (Map of Institute Facility). The facility consists of two distinct areas: the main 

chemical plant and the wastewater treatment unit (WWTU). These areas are separated by 

approximately 0.5 mile of intervening properties that include an Appalachian Power 

Company (APCO) transformer substation, aggregate dock, and undeveloped land owned 

by UCC and containing Solid Waste Management Unit (SWMU) 19.

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§ 6901 et seq. (“RCRA”). J.A. 226. In August 1984, the EPA published a report 

documenting environmental pollution from multiple sources located within the Kanawha 

Valley. See West Virginia State University Board of Governors v. The Dow Chemical 

Company et al., No. 2:17-cv-3558 (S.D. W. Va. June 8, 2020), at Dkt. No. 3 at Exhibit 16 

(Overview of Environmental Pollution in the Kanawha Valley, Aug. 1984).2

 The report 

described that there was “groundwater contamination at the Institute Facility.” J.A. 23–24 

at ¶ 10. Accordingly, “in 1984, the EPA initiated a corrective permitting action to identify 

and remediate solid waste management units (“SWMUs”) at the facility.” Id. at ¶ 11. In 

June 1985, UCC submitted an initial list of potential solid waste management units, which 

was modified in September 1986. Id. In July 1988, the EPA issued a 1-year conditional 

operating permit to then-owner Rhone-Poulenc, and, in November 1988, the EPA issued a 

final permit requiring investigation for potential migration of hazardous wastes from 

certain SWMUs at the facility. J.A. 24. Then in, February 1990, the EPA issued a 10-year 

operating permit effective until January 21, 2001. In December 1990, the EPA issued a 

revised final Corrective Action (“CA”) permit, effective January 1991, to govern 

investigation and remediation activities relating to contamination emanating from the 

facility. J.A. 24. As the Defendants put it: “[t]he EPA’s Corrective Action Permit for the 

Institute Facility made clear that ‘[t]he Permittee must comply with all terms and conditions 

of this permit’ and that ‘permit noncompliance . . . is grounds for enforcement action’ 

against the owner of the facility.” J.A. 24 (citing West Virginia State University Board of 

2 A copy of the exhibit was not provided in the joint appendix.

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Governors v. The Dow Chemical Company et al., No. 2:17-cv-3558 (S.D. W. Va. June 8, 

2020), at Dkt. No. 3 at Exhibit 18 (USEPA Permit for Corrective Action, Dec. 18, 1990)).3

Since 1988, and as part of the permitting process, the EPA instituted various 

corrective actions at the Institute Facility to address groundwater contamination. See J.A. 

226; see also J.A. 25 (“beginning in 1996, groundwater delineation and remediation work 

were performed at multiple areas at the facility”).4

 In 2014, the EPA’s final permit for the 

Institute Facility required, among other things, submission “to EPA, for approval, 

documentation that the subsurface conditions and contaminant plume have been adequately 

characterized and the proposed corrective measures will adequately remove, contain or 

treat the released hazardous wastes or hazardous constituents.” J.A. 241. The permit also 

required compliance with all its “terms and conditions” and “[a]ll plans, reports, schedules 

3 A copy of the exhibit was not provided in the joint appendix.

4 In their motion for removal, Defendants stated that:

[r]emediation efforts at the facility have included, among other things, 

implementation of air sparging and soil vapor extraction systems and 

ground water extraction wells. Contaminated material from the solid 

waste management units was also excavated and disposed of off-site. 

A ‘USEPA-sitewide groundwater monitoring program has been in 

place since 2011.’ It has been ‘updated with a revised program in 

2014 to 1) determine if concentrations in impacted areas are stable or 

decreasing; 2) monitor the site perimeter; 3) document water quality 

improvement; 4) detect and respond to changes in site conditions; and 

5) identify areas where additional active remediation may be 

necessary.’ Currently, the EPA is involved in the final stages of 

remediation and is considering proposed final corrective measures at 

the facility and adjoining properties.

See J.A. 26 at ¶ 16-17.

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and other submissions” that the EPA approves. J.A. 257. Since 1988, the various owners 

of the Institute Facility have been required to comply with the corrective measures 

including groundwater delineation and remediation work and studies under the supervision 

of the EPA. See, e.g., J.A. 226; J.A. 218 (“USEPA-approved sitewide groundwater 

monitoring program has been in place since 2011”).

C.

In May 2010, the West Virginia Department of Education transferred the 

Rehabilitation Center property to the WVDA. J.A. 24.

As part of its ongoing remedial measures, beginning in January 2013, the EPA 

conducted five phases of testing spanning four years which evaluated whether there was 

any risk to the Rehabilitation Center and whether remedial measures were necessary. 

Phase I investigated the Rehabilitation Center, which was immediately adjacent to the 

Institute Facility, and owned by the WVDA at the time. J.A. 27. On January 22, 2013, 

UCC signed an agreement with the WVDA to allow experts at CH2M Hill, a private 

engineering firm, to investigate activities at the Rehabilitation Center. J.A. 265–70. In 

March 2013, CH2M Hill reported the results of the Phase I study to the WVDA. The Phase 

I study reported low levels of volatile organic compounds (“VOCs”) in the groundwater 

running beneath the former Rehabilitation Center property and under portions of the 

remainder of WVSU property. J.A. 28 (citing West Virginia State University Board of 

Governors v. The Dow Chemical Company et al., No. 2:17-cv-3558, at Dkt. No. 3 at 

Exhibit 27 (J. Cibrik letter to G. Melton)).

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In May 2013, WVDA transferred the property to WVSU. See J.A. 27–28 at ¶¶ 23, 

27. At the time that they acquired the property, WVSU officials knew that there was 

groundwater contamination. See J.A. 273 (“University officials say they learned of the 

contamination about four years ago, when they took ownership from the state of the former 

West Virginia Rehabilitation Center.”).

On August 5, 2013, CH2M Hill reported to the EPA, WVDEP and WVSU the 

results of its investigation in a technical memorandum. See J.A. 28 (citing West Virginia 

State University Board of Governors v. The Dow Chemical Company et al., No. 2:17-cv3558, at Dkt. No. 3 at Exhibit 29 (East Property Boundary Investigation at West Virginia 

State University, Aug. 5, 2013)); see also J.A. 371. According to the memorandum, there 

were contaminants migrating from the Institute Facility onto the WVSU property via the 

groundwater. See J.A. 377; J.A. 386 (showing a map of the water flow of contaminants 

beneath the WVSU campus). Notably, the memorandum stated that there was an elevated 

risk of exposure to contaminants at the WVSU property via “ingestion through drinking 

water and inhalation through [] occupied buildings.” Id. However, CH2M Hill concluded 

that because “there are no drinking water wells on the WVSU property [,] there [was] no 

risk associated with ingestion through drinking water.” Id. Still, the memorandum 

identified at least three VOCs and various other contaminants in the groundwater at 

concentrations that pose a carcinogenic risk for residential and commercial levels. 

However, because as of July 11, 2013, the buildings were unoccupied and “WVSU 

indicated it ha[d] no plans for residential reuse at this property,” CH2M Hill determined 

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there was no risk to human health. Accordingly, CH2M Hill issued two recommendations 

to remedy the problem:

Place an environmental covenant on the WVSU property prohibiting the use 

of groundwater and requiring a vapor barrier for new buildings constructed 

on the property. . . . [And] [p]lace an environmental covenant on the WVSU 

property prohibiting residential reuse.

J.A. 378. On April 2014, the EPA approved the CH2M Hill memorandum, including its 

findings and recommendations, and issued the Institute Facility a permit. J.A. 29; J.A. 275 

(EPA stating that it “agrees with the conclusions presented in that report.”). In 2014, under 

the ownership of defendant Bayer CropScience, the Institute Facility operated with a 

RCRA permit issued by WVDNR. See J.A. 282–368.

On September 30, 2014, WVSU executed an access agreement with CH2M Hill to 

conduct additional investigations. From October 2014 through January 2016, as part of 

Phases II-V of the EPA investigation, CH2M Hill collected additional data relating to the 

university campus, football complex and field, faculty residences, and agricultural facility 

with respect to the impact of groundwater contamination. J.A. 29.

On April 18, 2016, CH2M Hill submitted a report containing the results of the Phase 

II-V studies for EPA’s approval. J.A. 416–429. On July 18, 2016, the EPA informed 

CH2M Hill that the EPA reviewed the Phase II through V report and that the EPA agreed 

with the conclusions presented in the report. See J.A. 432. Accordingly, on January 6, 

2017, Dow Chemical submitted a Corrective Measures Proposal Amendment, dated 

December 2016, incorporating the recommendations and conclusions of the Phase II-V 

report. J.A. 434–476; J.A. 477–520. Of note, Dow Chemical’s only remedy to address the 

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groundwater contamination impacting WVSU was to the obtain the environmental 

covenants proposed by CH2M Hill. See J.A. 489–90.5

From August 26, 2018, to September 26, 2018, the EPA conducted a 45-day 

comment period on Defendants’ final CA permit and proposed remedial measures. See

J.A. 558. During the comment period, WVSU submitted a letter stating that the EPA 

focused primarily on remedial measures at the UCC plant and that the environmental 

covenant was insufficient to remedy the groundwater contamination. J.A. 602. In 

response, the EPA stated that it considered the potential risks of groundwater contaminants 

onto WVSU’s campus, but, because the Rehabilitation Center was not in use, there was no 

risk to human health. Moreover, the EPA stated:

Screening levels are not cleanup standards but are used to determine if 

further evaluation of potential risks exist. . . . EPA determined no 

groundwater constituents pose current risk to human health at the University 

property because the University is on public water and groundwater beneath 

the University is not a drinking water source. In addition, EPA’s Final 

5 Dow Chemical reported to the EPA that:

Groundwater generally flows to the south-southwest at the facility toward 

the Kanawha River; however, along the facility’s eastern property boundary 

there is a slight southeastern gradient towards the WVSU property (Figure 

2-2) . . . . Groundwater data indicate that the [vapor intrusion] VI pathway 

relative to impacts from the Institute facility is incomplete with the exception 

of potential future residential-type use (e.g., homes, dormitories, daycare, or 

other) for the southwestern portion of WVSU property. As proposed (CH2M 

2013c) and approved by USEPA in April 2014, potential risks from 

groundwater will be addressed by filing an EC [environmental covenant] that 

prohibits the construction of occupied structures over areas of identified VI 

risk unless a VI mitigation system is installed, and the EC restricts 

groundwater usage to remediation and monitoring only. UCC is working 

with WVSU to obtain an EC.

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Remedy restricts groundwater use on the University property thereby 

eliminating future unacceptable exposures to groundwater.

J.A. 603 (emphasis added). On October 24, 2018, the EPA issued a final decision and final 

remedy and approved WVDEP to issue the CA Permit to UCC. J.A. 558–560. On 

February 22, 2019, the EPA issued a final CA Permit which constituted minimal 

compliance with the RCRA. See 40 C.F.R. § 270.4.

D.

Based on CH2M Hill recommendations, Defendants approached WVSU, along with 

other adjacent landowners, requesting that they sign an environmental covenant whereby 

they would refrain from using the groundwater. J.A. 32 at ¶ 39; J.A. 218–19. However, 

WVSU refused to sign the environmental covenant unless Defendants provided them with 

compensation. J.A. 32 at ¶ 39. When Defendants declined to pay, WVSU filed a lawsuit, 

on April 27, 2017, in the Circuit Court of Kanawha County in West Virginia alleging the 

following claims:

Count I: Declaratory Judgment

Count II: Preliminary and Permanent Injunctive Relief

Count III: Negligence

Count IV: Interference with Business Expectancy and Loss of Goodwill

Count V: Public Nuisance

Count VI: Private Nuisance

Count VII: Trespass

Count VIII: Strict Liability

Count IX: Unjust Enrichment

Count X: Punitive Damages

J.A. 54-73. Plaintiff requests the following remedies:

(1) Remove the Institute Plant Contaminants from the University’s property;

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(2) Install barriers to protect University facilities, including but not limited 

to buildings and athletic fields, from possible intrusions of the Institute 

Plant Contaminants;

(3) Install protective systems in all University buildings sufficient to ensure 

that, in the event the Institute Plant Contaminants enter the indoor 

environment in any building, they are removed or rendered harmless;

(4) Monitor the Institute Plant Contaminants on the University’s property to 

ensure that no person is exposed to the Institute Plant Contaminants;

(5) Restore the University and its property to the condition it would have 

been in absent the Institute Plant Contaminants; and,

(6) Take all other steps necessary to eliminate any effects of the Institute 

Plant Contaminants.

J.A. 63–64 at ¶ 44. On July 7, 2017, Defendants removed the case to federal court based 

on federal officer removal jurisdiction and federal question jurisdiction. J.A. 18. On 

August 7, 2017, WVSU moved to remand the case to state court, and, on June 1, 2020, the 

district court granted WVSU’s motion, concluding that it lacked subject-matter 

jurisdiction. J.A. 276. On June 30, 2020, Defendants filed a notice of appeal at the United 

States Court of Appeals for the Fourth Circuit (“Fourth Circuit”).

II.

We “review questions of subject matter jurisdiction de novo.” Dixon v. Coburg 

Dairy, Inc., 369 F.3d 811, 815–16 (4th Cir. 2004) (en banc) (quoting Mayes v. Rapoport, 

198 F.3d 457, 460 (4th Cir. 1999)). This includes issues relating to removal. Ripley v. 

Foster Wheeler LLC, 841 F.3d 207, 209 (4th Cir. 2016). Generally, we may also “review 

a district court’s jurisdictional findings of fact on any issues that are not intertwined with 

the facts central to the merits of the plaintiff’s claims under the clearly erroneous standard 

of review and any legal conclusions flowing therefrom de novo.” U.S. ex rel. Vuyyuru v.

Jadhav, 555 F.3d 337, 348 (4th Cir. 2009) (internal quotes omitted).

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Recently, the Supreme Court clarified that “[28 U.S.C.] § 1447(d) permit[s] a court 

of appeals to review any issue in a district court order remanding a case to state court where 

the defendant premised removal in part on the federal officer removal statute.” BP P.L.C. 

v. Mayor & City Council of Baltimore, 141 S. Ct. 1532, 1536 (2021). Therefore, we may 

consider whether jurisdiction exists under the federal officer removal statute, 28 U.S.C. 

§ 1442, or under federal question jurisdiction, 28 U.S.C. § 1331.

This appeal primarily involves the application of the federal officer removal statute 

to private actors. Under the statute, private actors can remove a case to federal court when 

they: (1) acted under the direction of a federal officer; (2) have a colorable federal defense; 

and (3) are engaged in government-directed conduct that was causally related to the 

plaintiff’s claims. See Sawyer v. Foster Wheeler LLC, 860 F.3d 249, 254 (4th Cir. 2017); 

see also Jefferson Cty., Ala. v. Acker, 527 U.S. 423, 431 (1999) (holding that, as to element 

three, the moving party must show that the suit is “for a[n] act under color of office,” which 

requires a causal nexus “between the charged conduct and asserted official authority”). 

Section 1442(a)(1) is thus an exception to the well-pleaded complaint rule, which, absent 

diversity, prohibits removal unless a federal question appears on the face of the complaint. 

See Jamison v. Wiley, 14 F.3d 222, 239 (4th Cir. 1994) (citing Mesa v. California, 489 U.S. 

121, 136–37 (1989)).

Furthermore, the Supreme Court has recognized that “[o]ne of the primary 

purposes” of federal officer removal is to provide a federal forum for a federal defense. 

Willingham v. Morgan, 395 U.S. 402, 407 (1969). Thus, proof of a “colorable” federal 

defense does not require the defendant to “win his case before he can have it removed” nor 

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even establish that the defense is “clearly sustainable.” Id. Finally, “[d]efendants bear the 

burden of establishing jurisdiction as the party seeking removal.” Mayor & City Council 

of Baltimore v. BP P.L.C., 952 F.3d 452, 461 (4th Cir. 2020) (“City of Baltimore I”) (citing 

Dixon v. Coburg Dairy, Inc., 369 F.3d 811, 816 (4th Cir. 2004)).

III.

A.

On appeal, Defendant-Appellants argue that the district court erred in granting the 

motion to remand the action because, pursuant to § 1442, they (1) were “working hand-inhand with EPA for decades, at EPA’s direction, to assist the federal agency in remediating 

the Institute Facility—tasks that, if Defendants had not performed, the government would 

have to do itself”; (2) “it is undisputed that Defendants have a ‘colorable federal defense’: 

federal preemption of state law”; and (3) “WVSU’s claims expressly challenge the 

adequacy of Defendants’ remediation efforts—arguments the agency already rejected—

and so ‘relat[e] to’ Defendants’ performance of the EPA-directed cleanup.” Op. Br. at 17–

18.

In response, Plaintiff-Appellee argues that the district court did not err in finding 

that it did not have federal officer jurisdiction for the following reasons. First, Plaintiff 

argues that Defendants seek an impermissible expansion of § 1442(a)(1) based on an 

incorrect notion that if Defendants did not fulfil their “legal obligations by discharging the 

requirements of the subject RCRA permit, the federal government would be required to 

independently remediate via a cleanup under CERCLA.” Resp. Br. at 16–17 (referencing 

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Op. Br. at 28–29). Accordingly, Plaintiff argues that Defendants’ rationale incorrectly 

interprets Supreme Court precedent, seeks removal solely on the speculative possibility 

that the EPA could step in, and ignores Plaintiff’s state claims which are in addition to, and 

separate from, the EPA’s remedial measures. Resp. Br. at 18–19.

1.

Here, there is no question that if the Defendants were “acting under” the direction 

of a federal officer, they would have a colorable defense.6

 Thus, this case turns on whether 

Defendants were “acting under” the “subjection, guidance, or control” of the EPA such 

that Defendants were completing tasks on behalf of the federal government and that, 

without Defendants, the federal government would have performed itself. For the reasons 

stated below, we hold that Defendants were not acting under the “subjection, guidance, or 

control” of the EPA, and, thus, we affirm the district court.

6 If we found that Defendants were acting under the authority or control of the 

federal government, then we would also find that Defendants had a colorable federal 

preemption defense, even if the defense would ultimately be unmeritorious. See Ripley v. 

Foster Wheeler LLC, 841 F.3d 207, 210 (4th Cir. 2016) (“Proof of a ‘colorable’ federal 

defense thus does not require the defendant to ‘win his case before he can have it removed’ 

nor even establish that the defense is ‘clearly sustainable.’”) (quoting Willingham, 395 U.S. 

at 407). The district court held similarly, and WVSU did not dispute this finding. J.A. 

648; Feikema v. Texaco, Inc., 16 F.3d 1408, 1416 (4th Cir. 1994) (holding that “when the

EPA, acting within valid statutory authority of the RCRA and not arbitrarily, enters into a 

consent order, that order will also preempt conflicting state regulation, including a federal 

court order based on state common law.”). Typically, it is sufficient for defendants to 

establish a colorable federal defense by stating that they “complied with all his federal law 

obligations.” Magnin v. Teledyne Cont’l Motors, 91 F.3d 1424, 1429 (11th Cir. 1996).

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a.

As an initial matter, we will clarify what it means for a private actor to “act under” 

the control and guidance of a federal officer for purposes of the removal statute. In Watson

v. Philip Morris Companies, Inc., the Supreme Court characterized the words “acting 

under” as broad and reasoned that the statute must be “liberally construed.” 551 U.S. 142, 

147 (2007) (quoting Colorado v. Symes, 286 U.S. 510, 517 (1932)). The Court clarified 

that such “broad language is not limitless [and that] a liberal construction nonetheless can 

find limits in a text’s language, context, history, and purposes.” Id.

7

 Accordingly, the 

Watson Court determined that the basic purpose of § 1442(a)(1) is “to protect the Federal 

Government from the interference with its ‘operations’ that would ensue were a State able, 

7 According to the Watson court, the statute was first enacted by Congress at the end 

of the War of 1812 in response to shipowners filing state-court claims against federal 

customs officials charged with enforcing a trade embargo with England. See The 

Reconstruction of Federal Judicial Power, 1863–1875, 13 AM. J. LEGAL HIST. 333, 337 

(1969). The statute permitted federal customs officers and “any other person aiding or

assisting” those officers to remove a case filed against them “in any state court” to federal 

court. Customs Act of 1815, ch. 31, § 8, 3 Stat. 198 (emphasis added). As noted by the 

Supreme Court, this early statute was “[o]bviously . . . an attempt to protect federal officers 

from interference by hostile state courts.” Watson, 551 U.S. at 147–49 (citing Willingham,

395 U.S. at 405). Then, in the 1830s, when South Carolina passed the Nullification Act, 

declaring federal tariff laws unconstitutional and authorizing prosecution of the federal 

agents who collected the tariffs, Congress enacted a new statute that permitted “any officer 

of the United States, or other person,” to remove to federal court a lawsuit filed against the 

officer “for or on account of any act done under the revenue laws of the United States.” 

Act of Mar. 2, 1833, ch. 57, § 3, 4 Stat. 633 (emphasis added). After the Civil War, 

Congress enacted another officer removal statute, permitting removal of a suit against any 

revenue officer “on account of any act done under color of his office” by the revenue officer 

and “any person acting under or by authority of any such officer.” Act of July 13, 1866, 

ch. 184, § 67, 14 Stat. 171 (emphasis added). Finally, in 1948, Congress again revised the 

statute, dropping its limitation to the revenue context. See Act of June 25, 1948, ch. 646, 

§ 1442(a), 62 Stat. 938, 28 U.S.C. § 1442(a).

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for example, to ‘arres[t]’ and bring ‘to trial in a State cour[t] for an alleged offense against 

the law of the State,’ ‘officers and agents’ of the Government ‘acting . . . within the scope 

of their authority.’” 551 U.S. at 142–43 (quoting Willingham, 395 U.S. at 406 (internal 

quotation marks omitted)). The Court reasoned that Congress wanted to protect the federal 

government, its officers, and those acting under its authority from state-court proceedings 

which may be filled with “local prejudice against unpopular federal laws or officials and 

States hostile to the Government [which] may impede enforcement of federal law, or 

deprive federal officials of a federal forum in which to assert federal immunity defenses.” 

Watson, 551 U.S. at 142–43. Thus, the statute was meant to protect “private persons ‘who 

lawfully assist’ a federal officer ‘in the performance of his official duty,’ but ‘only’ if the 

private parties were ‘authorized to act with or for [federal officers or agents] in 

affirmatively executing duties under . . . federal law.’” Id. (first quoting Davis v. South 

Carolina, 107 U.S. 597, 600 (1883); then quoting City of Greenwood v. Peacock, 384 U.S. 

808, 824 (1966)).

Therefore, Watson defined “acting under” as a private person who is under the 

“‘subjection, guidance, or control’” of a federal officer which “must involve an effort to

assist, or to help carry out, the duties or tasks of the federal superior.” Watson, 551 U.S.

at 151–52 (emphasis in original) (quoting Webster’s New International Dictionary 2765 

(2d ed. 1953)). As such, § 1442(a) is meant to protect private persons acting under a federal 

officer and to protect the Federal Government from interference in such operations. Ripley, 

841 F.3d at 210.

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We have applied Watson’s definition of “acting under” to remove cases to federal 

court in matters involving private contractors working on behalf of the federal 

government—the archetype case. See, e.g., Watson, 551 U.S. at 153–54 (“The assistance 

that private contractors provide federal officers goes beyond simple compliance with the 

law and helps officers fulfill other basic governmental tasks . . . . [that] the Government 

itself would [otherwise] have . . . to perform.”); Cty. Bd. of Arlington Cty., Virginia v. 

Express Scripts Pharmacy, Inc., 996 F.3d 243, 251 (4th Cir. 2021) (“a private contractor 

may ‘act under’ a federal officer when the relationship ‘is an unusually close one involving 

detailed regulation, monitoring, or supervision’”) (quoting Watson, 551 U.S. at 153); see 

id. (holding that pharmacies which contracted with Department of Defense were “acting 

under” a federal officer, as could support removal, because the pharmacies, through 

operation of mail-order program, provided services to members of the Department’s health 

care program, and pharmacies were always subject to federal government’s guidance and 

control with regard to operation of the mail-order program); Sawyer, 860 F.3d at 254 (a 

private contractor who died of mesothelioma allegedly caused by exposure to asbestos 

while assembling boilers for use aboard United States Navy vessels was “acting under” the 

control of the U.S. Navy because the U.S. directed the contractor on which warning labels 

to use.); Hurley v. CBS Corp., 648 Fed. Appx. 299, 303 (4th Cir. 2016) (per curiam) (“GE 

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19

is a ‘person acting under’ a federal officer because it was acting under a valid government 

contract at all times relevant to the litigation.”).

8

8 Our sister circuits have also found that when a private corporation works closely 

with the federal government by contract, to provide a service or product, then there is a 

sufficient nexus to find that the private actor is “acting under” federal “subjection, 

guidance, or control.” See, e.g., Agyin v. Razmzan, 986 F.3d 168, 176–177 (2d Cir. 2021) 

(holding that physician employed at federally deemed community health center pursuant 

to Federally Supported Health Centers Assistance Act (FSHCAA) acted “under a federal 

officer” because he performed job that, but for FSHCAA, the federal government would 

have had to perform itself, and he acted pursuant to employment contract with federally 

supported community health center); Papp v. Fore-Kast Sales Co., 842 F.3d 805 (3d Cir. 

2016) (holding that an aircraft manufacturer acted under the direction of a federal officer 

when it did not warn of dangers associated with asbestos); In re Commonwealth’s Motion

to Appoint Couns. Against or Directed to Def. Ass’n of Philadelphia, 790 F.3d 457, 469 

(3d Cir. 2015), as amended (June 16, 2015), cert. denied, (holding that the relationship 

between the Federal Community Defender and the federal government is a sufficiently 

close one to conclude that the Federal Community Defender was “acting under” a federal 

agency.); Bennett v. MIS Corp., 607 F.3d 1076, 1086–87 (6th Cir. 2010) (holding that MIS 

Corporation, Inc. was acting under a Federal Aviation Administration officer when it was 

contracted to treat and remove the mold in the air control towers but failed to do so 

correctly); Betzner v. Boeing Co., 910 F.3d 1010, 1015 (7th Cir. 2018) (holding that 

“Boeing acted under federal officers when it contracted to manufacture heavy bomber 

aircraft for the United States Air Force, and that it acted under the military’s detailed and 

ongoing control.”); Ruppel v. CBS Corp., 701 F.3d 1176, 1181 (7th Cir. 2012) (holding 

that the CBS corporation was “acting under” the federal government because it “worked 

hand-in-hand with the government, assisting the federal government in building 

warships.”); Jacks v. Meridian Res. Co., LLC, 701 F.3d 1224, 1231-34 (8th Cir. 2012) 

(holding that a local insurance provider contracted under the FEHBA program to provide 

health care insurance for federal employees was acting under the federal government); 

People of State of Cal. v. H & H Ship Serv. Co., 68 F.3d 481 (9th Cir. 1995) (holding that 

federal officer removal was warranted for a private defendant that was hired by the federal 

government to assist in conducting a CERCLA cleanup because the defendant was 

“supervised” and “approved” by the United States Coast Guard.); Greene v. Citigroup,

Inc., 215 F.3d 1336 (10th Cir. 2000) (holding that Defendant who implemented a remedy 

selected by the EPA, pursuant to CERCLA, and who was subject to civil penalties for 

failure to comply with that directive, was acting under the direction of a federal officer in 

a case where the Plaintiff was challenging the EPA directive).

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On the other hand, we have also held that a private actor who merely has a contract 

with the federal government to produce or provide goods is not sufficient, on its own, to 

justify removal. Recently, for example, we held that a private company selling 

“standardized consumer product[s]” to the federal government did not implicate the federal 

officer removal statute. Mayor & City Council of Baltimore v. BP P.L.C., 952 F.3d 452, 

464 (4th Cir. 2020) (“City of Baltimore I”), cert. granted, 141 S. Ct. 222 (2020), and

vacated and remanded on other grounds, 141 S. Ct. 1532 (2021) (holding that § 1447(d)

permitted the court of appeals to review entire remand order and consider all the 

defendants’ grounds for removal, not just part of order deciding the federal officer removal 

ground). In City of Baltimore I, we clarified that even when a contract specifies the details 

of the sales and authorizes the government to supervise the sale and delivery, the simple 

sale of contracted goods and services is insufficient to satisfy the federal officer removal 

statute.

The case at bar involves a different circumstance: a private actor subject to strict 

federal regulation who is required to perform certain remedial measures to obtain an 

operating permit. To guide our reasoning, we rely on Watson which carefully distinguished 

between entities subject to “intense regulation” and those “acting under” federal authority:

The answer to this question lies in the fact that the private contractor is 

helping the Government to produce an item that it needs. The assistance that 

private contractors provide federal officers goes beyond simple compliance

with the law and helps officers fulfill other basic governmental tasks. In the 

context of Winters, for example, Dow Chemical [party seeking removal] 

fulfilled the terms of a contractual agreement by providing the Government 

with a product that it used to help conduct a war. Moreover, at least arguably, 

Dow performed a job that, in the absence of a contract with a private firm, 

the Government itself would have had to perform.

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Watson, 551 U.S. at 153–54 (emphasis added) (referring to Winters v. Diamond Shamrock 

Chem. Co., 149 F.3d 387 (5th Cir. 1998)). To further distinguish between mere compliance 

with federal law and “acting under” the federal government, Watson noted that on one end 

of the spectrum simple compliance with federal law or directives was insufficient. For 

example, “taxpayers who fill out complex federal tax forms,” “airline passengers who obey 

federal regulations prohibiting smoking,” and “well-behaved federal prisoners” are not 

“acting under” federal officers. Id. at 152. These types of relationships do not warrant 

removal because state court prejudice would not be expected.

Moreover, Watson clarified that a private actor subject to highly detailed federal 

regulation, on its own, is also insufficient to qualify as “acting under” federal “subjection, 

guidance, or control.” For example, the Watson Court stated that:

A private firm’s compliance (or noncompliance) with federal laws, rules, and 

regulations does not by itself fall within the scope of the statutory phrase 

“acting under” a federal “official.” And that is so even if the regulation is 

highly detailed and even if the private firm’s activities are highly supervised 

and monitored. A contrary determination would expand the scope of the 

statute considerably, potentially bringing within its scope state-court actions 

filed against private firms in many highly regulated industries.

Id. at 153 (emphasis added).

In all, in evaluating whether a private actor is “acting under” federal “subjection, 

guidance, or control,” we must first determine whether the private actor is merely 

complying with federal laws, regardless of how stringent and detailed the regulations may 

be. Second, even if we find that a private actor’s conduct goes beyond mere compliance 

with federal laws, we must then ask whether the private actor’s conduct is helping or 

assisting federal officers fulfill a basic governmental task, under the government’s control 

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or subjection, that the government would otherwise have to perform itself. See Watson, 

551 U.S. at 152 (holding that “acting under must involve an effort to assist, or to help carry 

out, the federal superior’s duties or tasks.”) (emphasis in original); but see Panther Brands, 

LLC v. Indy Racing League, LLC, 827 F.3d 586, 590 (7th Cir. 2016) (holding that “merely 

being subject to federal regulations or performing some functions that the government 

agency controls is not enough to transform a private entity into a federal officer.”).

b.

With these guideposts in mind, we now turn to examine the relationship between 

Defendants and the EPA with respect to the approved remedial measures, as part of its CA 

permit, to abate the groundwater contamination impacting WVSU.

Here, the relationship between Defendants and the EPA is one of statutory 

compliance and not contractual. Specifically, because the Institute Facility treats, stores, 

and disposes of hazardous wastes, it is subject to RCRA—a comprehensive set of waste 

prevention and management regulations administered by the EPA. S.C. Dep’t of Health & 

Envtl. Control v. Commerce & Indus. Ins. Co., 372 F.3d 245, 256 (4th Cir. 2004) (RCRA 

“attempts to deal with hazardous waste before it becomes a problem”). The goal of the 

RCRA is to “assur[e] that hazardous waste management practices are conducted in a 

manner which protects human health and the environment,” by “requiring that hazardous 

waste be properly managed in the first instance thereby reducing the need for corrective 

action at a future date.” 42 U.S.C. § 6902(a)(4)-(5).

To determine the relationship between Defendants and the federal government, as 

well as understand Defendants’ responsibilities under law, we begin with the regulatory 

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framework. To operate the Institute Facility, Defendants must obtain a CA permit which 

provides “conditions necessary to achieve compliance with [RCRA] and regulations” 

including “conditions . . . necessary to protect human health and the environment.” 40 

C.F.R. § 270.32(b)(1)-(2). The operator of the site is responsible for investigating, 

reporting, and complying with the RCRA. See 40 C.F.R. § 270.4 (“Compliance with a 

RCRA permit . . . constitutes compliance . . . with [RCRA].”); 40 C.F.R. § 270.32(b). To 

obtain a permit, the applicant must “submit a [Proposal] to address the need for corrective 

action” at the facility. J.A. 321. As noted by the district court, “the Proposal ‘develop[s]

and evaluate[s] the corrective action alternative(s), provide[s] information on the 

effectiveness of interim measures implemented at the Facility, and recommend[s]

corrective measure(s) to be taken at the Facility for approval by WVDEP.’” J.A. 645 

(quoting J.A. 321–22). “If the [WVDEP] Project Manager and/or EPA determines . . . that 

corrective measures for releases of hazardous waste or hazardous constituents are 

necessary to protect human health or the environment” the Permittee will be advised of 

such determination in writing. J.A. 645 (quoting J.A. 322) (internal quotes omitted). After 

the applicant submits the proposal to the EPA and WVDEP, and they receive final 

approval, they must implement the remedial actions. Therefore, the EPA’s supervision of 

the Institute Facility is limited, and governed, by the RCRA statutory framework. As the 

district court determined, “the oversight and supervision conducted by the EPA at the 

facility here is indicative only of defendants’ minimum compliance with highly detailed 

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statutes and regulations applicable to all members of the industry related to hazardous 

waste.” J.A. 647.9

Defendants’ conduct has been limited to strict compliance with the RCRA 

regulations. Beginning in November 1984, UCC applied to the EPA and West Virginia 

Division of Natural Resources (WVDNR) for a RCRA permit to operate hazardous waste 

management units. J.A. 226. In 1988, the EPA issued a 1-year conditional operating 

permit, and, in February 1990, it issued a 10-year operating permit effective until January 

21, 2001. Id. Over the next twenty years, the various owners of the Institute Facility have 

been required to comply with the corrective measures, including groundwater delineation 

and remediation, under the supervision of the EPA as part of their RCRA permitting. See,

e.g., J.A. 226; J.A. 218 (“USEPA-approved sitewide groundwater monitoring program has 

been in place since 2011”).

Most recently, and as detailed above in Section I.C., supra at 7–11, beginning in 

January 2013, the EPA conducted five phases of testing across multiple years which 

evaluated whether there was any potential risk to the Rehabilitation Center and whether 

remedial measures were necessary. In March 2013, CH2M Hill reported low levels of 

9 Although not applicable in this case, the Institute Facility could also be subject to 

the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, 

42 U.S.C. § 9601 et seq. (“CERCLA” or “Superfund”)—a remedial regulatory framework 

that “establishes a cleanup program for hazardous waste which has already been disposed 

of improperly.” Envtl. Tech. Council v. Sierra Club, 98 F.3d 774, 779 (4th Cir. 1996); see

1 Toxic Torts Prac. Guide § 7:15 (2020-1) (CERCLA “triggered when mismanagement 

occurs”). CERCLA authorizes the President to act “to remove or arrange for the removal 

of, and provide for remedial action relating to such hazardous substance, pollutant, or 

contaminant.” 42 U.S.C. § 9604. This duty of the President is delegated to federal 

agencies. 40 C.F.R. § 300.100.

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VOCs in the groundwater running beneath the former Rehabilitation Center property and 

under portions of the remainder of WVSU property that posed a carcinogenic risk via 

“ingestion through drinking water and inhalation through VI into occupied buildings.” J.A. 

27–28; J.A. 265–70. However, CH2M Hill concluded that because the buildings were 

unoccupied by WVSU and there were no plans for residential use, there was no risk to 

human health and, thus, recommended an environmental covenant on the WVSU property 

to prohibit groundwater use. J.A. 378. On April 2014, the EPA approved the CH2M Hill 

memorandum, including its findings and recommendations and issued a CA permit to the 

Institute Facility. J.A. 29; J.A. 275. After CH2M Hill conducted additional studies of

groundwater contamination at the Institute Facility, the EPA approved Defendants’ 

proposed remedies, including the environmental covenant and, in 2018, issued a Final 

Remedy governing Defendants’ remedial activities. J.A. 23 at ¶¶ 7-9, 11; J.A. 226–29; 

J.A. 559–60.

On appeal, Defendants allege that they have been acting under EPA authority for 

decades because the “EPA [has] direct[ed] and supervis[ed] each corrective action at the 

Institute Facility and each investigation of adjoining properties, including WVSU.” Op. 

Br. at 22; see also J.A. 218, J.A. 220. Thus, Defendants maintain that these corrective 

actions were taken only “at the direction and oversight of EPA,” which the “EPA itself 

would have performed [under CERCLA] if Defendants had not.” J.A. 603. Defendants 

argue that the EPA has exerted “guidance or control” over Defendants since 1984 by 

supervising Defendants’ “cleanup activities” at the Institute Facility with respect to 

monitoring and abating groundwater contamination. Op. Br. at 26 (quoting Watson, 551 

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U.S. at 151). In support, Defendants cite to the EPA’s response to Plaintiff’s public 

comments regarding the insufficiency of the remedial measures at the Institute Facility, 

where the EPA stated that the investigation and remediation activities were all taken “at 

the direction and oversight of EPA.” J.A. 603.

Ultimately, we find Defendants’ arguments unpersuasive because they would 

impermissibly expand the federal removal statute by blurring the line Watson carefully 

delineated where “a private firm’s compliance (or noncompliance) with federal laws, rules, 

and regulations does not by itself fall within the scope of the statutory phrase “acting under” 

a federal “official.” Watson, 551 U.S. at 153 (emphasis in original). Indeed, Watson

instructs federal courts not to “expand the scope of the statute considerably, [by] potentially 

bringing within its scope state-court actions filed against private firms in many highly 

regulated industries.” Id.

Although there is no doubt that Defendants are in a highly regulated sector, UCC’s 

compliance with RCRA’s strict regulations represents its adherence to minimum remedial 

measures to operate the facility for their own purpose. Unlike the archetype case, 

Defendants are not a private contractor hired by the federal government to complete tasks 

to further government projects or goals, like building military equipment or providing 

community medical health centers. See, e.g., Mays v. City of Flint, 871 F.3d 437, 448 (6th 

Cir. 2017) (denying federal officer removal by employees of state environmental agency 

charged with implementing state program authorized under Safe Drinking Water Act). 

Whilst true that during World War II, the Institute Facility was owned and operated by the 

federal government, this is no longer the case. J.A. 220; J.A. 80–81 (showing that in 1947, 

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UCC purchased the facility). Today, the Institute Facility is owned and operated by Dow 

Chemical, a private company, that manufactures various hydrocarbon and agricultural 

products for private sale. Indeed, we recently clarified this key distinction by holding that 

“the key lesson from Watson is that closely supervised government contractors are 

distinguishable from intensely regulated private firms because the former assist the 

government in carrying out basic governmental functions.” City of Baltimore I, 952 F.3d 

at 463.

Furthermore, this is not a case where state courts will prejudice the federal 

government’s interest in regulating groundwater contamination because Congress has 

granted all 50 states and territories the authority to implement the base RCRA program. 

Indeed, many states are authorized to implement additional parts of RCRA, including 

corrective action permitting. See Watson, 551 U.S. at 143 (holding that “[w]hen a company 

complies with a regulatory order, it does not ordinarily create a significant risk of statecourt ‘prejudice.’ A state-court suit brought against such a company is not likely to disable 

federal officials from taking necessary action designed to enforce federal law, nor to deny 

a federal forum to an individual entitled to assert a federal immunity claim.”). The goal of 

the RCRA is to “establish [] a viable Federal-State partnership to carry out the purposes” 

of the statute and to “give a high priority to assisting and cooperating with States in 

obtaining full authorization of State programs under” Subtitle C, which relates to hazardous 

solid waste management. 42 U.S.C. § 6902(a)(7). Here, for example, Defendants obtained 

their waste management permit from the WVDEP, see J.A. 564, under West Virginia’s 

RCRA-authorized program, see 78 Fed. Reg. 70, 225 (Nov. 25, 2013). Although the final 

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decision to issue the CA permit may have been made by the EPA, the RCRA regulatory 

scheme is being implemented and overseen by a state agency. Additionally, the state is 

authorized to add its own permitting requirements that do not conflict with federal law. 

Therefore, Congress has created widespread state-federal cooperation in this area of 

environmental regulation. See City of Flint, 871 F.3d at 449 (noting that notwithstanding 

EPA’s authority to intervene under the Safe Drinking Water Act, a state with primary 

enforcement authority “retains the freedom to enforce its own safe-drinking-water laws 

and regulations”).

The case at bar is most analogous to Watson. In Watson, plaintiffs filed a state-court 

suit against Philip Morris, a cigarette company, claiming that it violated Arkansas 

consumer laws by advertising certain cigarette brands as “light” because Philip Morris 

illegally altered federally mandated testing results to register lower levels of tar and 

nicotine in the advertised cigarettes than would be delivered to consumers. 551 U.S. at 

146–47. Philip Morris removed the case under the federal officer removal statute and the 

lower court permitted removal, holding that the case attacked Philip Morris’s use of the 

government’s method of testing cigarettes and, thus, the action involved an attack on 

actions taken by Philip Morris under the direction of the Federal Trade Commission 

(“FTC”). Id. The Supreme Court reversed and held that close supervision and regulation 

by the federal government was not sufficient to transform a private firm into one “acting 

under” a government “agency” or “officer.” Second, Watson held that although the FTC 

required tobacco companies to conduct product testing, this was not a “delegation of legal 

authority from the FTC to the tobacco industry to undertake testing on the Government 

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agency’s behalf, or evidence of any contract, payment, employer/employee relationship, or 

principal/agent arrangement.” Id. at 143–44.

Like Philip Morris, Defendant UCC argues that the EPA delegated federal authority 

to the Defendants by requiring it to conduct investigations, cleanup activities, and take

remedial measures to obtain an RCRA permit and allow it to conduct business. As the 

district court correctly held, this is not a delegation of federal authority. Rather, it is 

compliance with federal law. Like the plaintiff in Watson, the Plaintiff here seeks 

additional remedial measures under state law. Critically, and as detailed above in Section 

I.C., see infra at 7–11, after conducting its investigations, CH2M Hill recommended that 

Defendants obtain environmental covenants from WVSU prohibiting the use of 

groundwater and residential reuse. J.A. 378. Although, CH2M Hill determined that there 

was groundwater contamination seeping into the Rehabilitation Center, CH2M Hill’s 

recommendation was based on WVSU’s then-plan to not occupy the buildings for 

residential use. See J.A. 377; J.A. 386. Therefore, the proposed environmental covenant 

was a cost-efficient remedial measure to “ensure that groundwater is not used as a source 

of drinking water and that vapors will not migrate into future occupied buildings.” J.A 

378.

Thus, the key distinction here with Watson is that, unlike Philip Morris, Defendants 

here have complied with the EPA’s remedial measures. Yet, despite these minimum 

remedial measures, the Institute Facility continues to release containments into the 

groundwater which migrates onto WVSU property. Accordingly, Plaintiff wants 

Defendants to undertake additional corrective measures which are not covered, nor barred, 

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by the EPA’s measures. For example, Plaintiff wants the Defendants to compensate 

WVSU, remediate its property, provide protective measures for university buildings, or 

require monitoring of contamination on campus. Moreover, Plaintiff’s allegation that the 

groundwater contamination is hazardous to human health, is not enough to confer federal 

officer jurisdiction because this fact is one that the state court can determine by relying on 

the EPA reports.

Furthermore, while the Institute Facility may be subject to a CA permit, WVSU is 

not. Therefore, Defendants cannot rely on federal authority to require that WVSU accept 

a restrictive environmental covenant on its property. See 42 U.S.C. § 6924(v); 40 C.F.R. 

§ 264.101(c). In cases where, as here, a permittee is unable to obtain consent for offsite 

corrective action—in this case a restrictive covenant—the EPA’s own regulation states that 

the permittee is “not relieved of all responsibility to cleanup a release that has migrated 

beyond the facility boundary where offsite access is denied.” 40 C.F.R. § 264.101(c). 

Therefore, Plaintiff’s state claims are of the kind permitted by federal law. Even assuming 

any good-faith attempt at obtaining the necessary restrictive-covenant from WVSU, 

Plaintiff alleges that Defendants have not proposed any alternative measures to address the 

continuing problem of groundwater contamination migrating onto WVSU’s property. 

Since the covenant approved by the EPA is contingent upon WVSU’s consent and because 

the EPA’s regulations allow for consideration of alternative measures, Defendants cannot 

rely upon the EPA-approved environmental covenant as a basis to justify removal.

Additionally, Defendants’ argument that the federal government would be required 

to take over the Institute Facility and conduct its own independent cleanup should 

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Defendants fail to abide by the remedial measures is speculative at best. Assuming, 

arguendo, that Defendants failed to meet the RCRA requirements, the EPA would not 

immediately take responsibility for all cleanup at the facility. Instead, the EPA would be 

required to comply with a detailed and lengthy procedure. For example, the EPA would 

be required to conduct a Remedial Investigation and Feasibility Study to, first, determine 

whether CERCLA action is necessary. Next, the EPA would develop a remedial action 

plan (“RAP”), which requires a public notice and comment period. Then, even if the EPA 

adopted a remedial plan, the EPA may pursue one of three possible courses of action to 

implement the RAP: (1) “EPA may undertake a response measure on its own, which may 

include removal and/or remedial action, and then sue [Potentially Responsible Parties or 

“PRPs”] it can find for reimbursement”; (2) “EPA may, independent of [Superfund]-

financed response actions, issue an administrative order directing PRPs to implement 

removal or remedial action” or, alternatively, seek an injunction compelling PRPs to do so; 

or (3) “EPA may enter into an agreement with PRPs to perform a response action.” United 

States v. Akzo Coatings of Am., Inc., 949 F.2d 1409, 1417 (6th Cir. 1991). Critically, here, 

the federal government has not ordered a “cleanup” under CERCLA and has not taken over 

remediation responsibilities at the Institute Facility. Therefore, we need not further 

entertain Defendants’ speculative argument because it is not factually relevant.

In all, we find that Defendants ask the Court to impermissibly expand the scope of 

§ 1442(a)(1), in a case where they are required to comply with strict federal regulations.

Thus, for the reasons mentioned above, Defendants were not “acting under” the 

“subjection, guidance, or control” of the federal government.

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2.

Having found that Defendants were not “acting under” the “subjection, guidance, 

or control” of the federal government, we need not fully examine the remaining prongs.

B.

Defendants also allege that the district court erred in denying removal based on 

federal question jurisdiction under 28 U.S.C. § 1331. Here, too, we affirm the district 

court’s holding.

1.

Generally, a case can “aris[e] under” federal law in two ways. Most directly, a case 

arises under federal law when federal law creates the cause of action asserted. See

American Well Works Co. v. Layne & Bowler Co., 241 U.S. 257, 260 (1916) (“A suit arises 

under the law that creates the cause of action”). However, when a claim finds its origins 

in state rather than federal law, federal courts have identified a “special and small category” 

of cases in which arising under jurisdiction still lies. Empire Healthchoice Assurance, Inc. 

v. McVeigh, 547 U.S. 677, 699 (2006). Federal courts must ask whether the “state-law 

claim necessarily raise a stated federal issue, actually disputed and substantial, which a 

federal forum may entertain without disturbing any congressionally approved balance of 

federal and state judicial responsibilities.” Grable & Sons Metal Products, Inc. v. Darue 

Engineering & Mfg., 545 U.S. 308, 314 (2005). That is, “federal jurisdiction over a state 

law claim will lie if a federal issue is: (1) necessarily raised, (2) actually disputed, (3) 

substantial, and (4) capable of resolution in federal court without disrupting the federalstate balance approved by Congress.” Gunn v. Minton, 568 U.S. 251, 258 (2013). If all 

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four of these requirements are met, then jurisdiction is proper because there is a “‘serious 

federal interest in claiming the advantages thought to be inherent in a federal forum,’ which 

can be vindicated without disrupting Congress’s intended division of labor between state 

and federal courts.” Id. (quoting Grable, 545 U.S. at 313–314).

The Supreme Court has referred to two situations where federal jurisdiction could 

be available even though plaintiff based its claims in state court on state law: (1) when “it 

appears that some substantial, disputed question of federal law is a necessary element of 

one of the well-pleaded state claims” or (2) when it appears that plaintiffs claim is “‘really’

one of federal law.” Franchise Tax Bd. of State of Cal. v. Constr. Laborers Vacation Tr. 

for S. California, 463 U.S. 1, 13 (1983). Finally, we have clarified that “to necessarily 

raise a federal issue, a state law claim must hinge on the determination of a federal issue.” 

Burrell v. Bayer Corp., 918 F.3d 372, 383 (4th Cir. 2019). That is, “[t]he federal issue 

must be “essential to resolving a state-law claim, meaning that ‘every legal theory 

supporting the claim requires the resolution of a federal issue.’” Id. (quoting Dixon v. 

Coburg Dairy, Inc., 369 F.3d 811, 816 (4th Cir. 2004)). If, on the other hand, the plaintiff 

“can establish all the necessary elements entirely independently of federal law,” a federal 

issue is not necessarily raised. Id. at 382.

2.

The key question is whether WVSU “necessarily raised” or “substantially raised” a 

federal issue when pleading their state claims. As an initial matter, as the district court 

held, “defendants do not cite any federal statutes that govern a purported federal cause of 

action here.” J.A. 619. Therefore, Defendants argue that Plaintiff’s “claims seek to use 

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state law to collaterally attack the cleanup EPA directed through RCRA—including EPA’s 

express rejection of WVSU’s contention that the RCRA remedial measures the agency 

imposed are ‘insufficiently protective’ of its property.” Op. Br. at 44 (quoting J.A. 603). 

Moreover, Defendants allege that because CERCLA set out Congress’ interest in cleaningup toxic waste, and since Plaintiff’s complaint takes issue with the EPA-ordered cleanup 

of the Institute Facility, this confers federal question jurisdiction over the matter. Op. Br. 

at 44. That is, Defendants contend that Plaintiff’s “artfully pled complaint” is directly 

attacking the EPA-directed “cleanups” and, thus, raises a federal question. Id. at 44–45 

(quoting Rivet v. Regions Bank of La., 522 U.S. 470, 475 (1998) (holding that “a plaintiff 

may not defeat removal by omitting to plead necessary federal questions”).

To establish that WVSU “artfully” pled a federal issue, Defendants must first 

establish that the EPA has ordered a “cleanup” program under CERCLA. See Bartlett v. 

Honeywell Int’l Inc., 737 F. App’x 543, 546 (2d Cir. 2018) (affirming federal jurisdiction 

where lawsuit challenged EPA cleanup); Hanford Downwinders Coal., Inc. v. Dowdle, 71 

F.3d 1469, 1482 (9th Cir. 1995) (holding that claims “challenge” EPA cleanups when they 

are “related to the goals of the cleanup.”). Here, however, the EPA has not ordered a 

cleanup program under CERCLA. Thus, the Defendants are left with arguing that the EPAapproved remedial measures amount to a “cleanup” program under CERCLA, and that 

Plaintiff’s complaint challenges this “cleanup.” See Franchise Tax Bd., 463 U.S. at 13 

(federal jurisdiction could be available when it appears that plaintiffs claim is “‘really’ one 

of federal law.”).

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a.

First, we find that Plaintiff’s state claims do not challenge a “cleanup” as defined 

under CERCLA. Generally, Section 113(b) of CERCLA confers on the federal district 

courts “exclusive original jurisdiction over all controversies arising under [CERCLA].” 42 

U.S.C. § 9613(b). “Cleanups” are directed by the EPA under CERCLA after the federal 

government has identified that an actor has committed toxic waste or contamination and 

has failed to abide by the RCRA remedial measures. In these situations, the federal 

government, through the EPA, engages in a “cleanup” process and is empowered to bring 

a series of suits to recover costs, damages, and assign liability to the responsible parties. 

See, e.g., Burlington N. & Santa Fe Ry. Co. v. United States, 556 U.S. 599, 602 (2009)

(“The Act was designed to promote the timely cleanup of hazardous waste sites and to 

ensure that the costs of such cleanup efforts were borne by those responsible for the 

contamination.”) (internal quotations omitted); see id. at 605 (describing the case where 

the EPA exercised its authority under CERCLA to undertake cleanup efforts after an 

agricultural chemical distribution business caused toxic spills, failed to meet remedial 

measures, became insolvent, and, so, the federal government intervened).

Here, however, the EPA has not issued any “cleanup” orders.10 Notably, in its final 

corrective remedial permit the EPA stated “[s]creening levels are not cleanup standard,”

10Although § 113(b) of CERCLA confers federal district courts “exclusive 

jurisdiction over all controversies arising under [CERCLA],” § 113(h) of CERCLA limits 

federal courts of this jurisdiction by providing that “[n]o Federal court shall have 

jurisdiction under Federal law other than under [28 U.S.C. § 1332] (relating to diversity of 

citizenship jurisdiction) or under State law which is applicable or relevant and appropriate 

(Continued)

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indicating that the current level of groundwater contamination does not rise to a “cleanup 

standard” but does meet RCRA standards. J.A. 603.

Still, 42 U.S.C. § 9613(h) provides only five exceptions to this limit of federal 

jurisdiction, which as the district court correctly found, do not apply here.11 We agree.

The first exception, under 42 U.S.C. § 9607, defines the scope of liability of 

CERCLA, and provides that in connection with a facility “from which there is a release, or 

threatened release which causes the incurrence of response costs, of a hazardous 

substance,” four classes of persons are liable for the response costs, two of which are 

relevant here:

(1) the owner and operator of a vessel or a facility, [and]

(2) any person who at the time of disposal of any hazardous substance owned 

or operated any facility at which such hazardous substances were 

disposed12 of.

. . . to review any challenges to removal or remedial action selected under [CERCLA 

§ 104], or to review any order issued under [CERCLA § 106].” 42 U.S.C. § 9613(b), (h);

see also Hanford Downwinders Coal., Inc. v. Dowdle, 71 F.3d 1469, 1474 (9th Cir. 1995).

11 42 U.S.C. § 9613(h) provides that: “(1) An action under [42 U.S.C. § 9607] to 

recover response costs or damages or for contribution; (2) An action to enforce an order 

issued under [42 U.S.C. § 9606(a)] or to recover a penalty for violation of such order; (3) 

An action for reimbursement under [42 U.S.C. § 9606(b)(2)]; (4) An action under [42 

U.S.C. § 9659] (relating to citizens suits) alleging that the removal or remedial action taken 

under [42 U.S.C. § 9604] or secured under [42 U.S.C. § 9606] was in violation of any 

requirement of this chapter. Such an action may not be brought regarding a removal where 

a remedial action is to be undertaken at the site; (5) An action under [42 U.S.C. § 9606] in 

which the United States has moved to compel a remedial action.”

12 Pursuant to 42 U.S.C. § 6903(3), the term “disposal” or “disposed of” means “the 

discharge, deposit, injection, dumping, spilling, leaking, or placing of any solid waste or 

hazardous waste into or on any land or water so that such solid waste or hazardous waste 

or any constituent thereof may enter the environment or be emitted into the air or 

discharged into any waters, including ground waters.”

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42 U.S.C. § 9607(a)(1), (2). “The statute encourages private cleanup of such hazards by 

providing a cause of action for recovery of costs incurred in responding to a ‘release’ of 

hazardous substances at any ‘facility.’” Nurad, Inc. v. William E. Hooper & Sons, 966 

F.2d 837, 841 (4th Cir. 1992) (citing 42 U.S.C. § 9607). The Act imposes broad and strict 

liability for the costs of cleaning up hazardous waste sites without regard to whether the 

persons assigned liability under the Act placed the waste material on the site or had 

knowledge of the waste materials’ presence. See United States v. Monsanto Co., 858 F.2d 

160, 168 (4th Cir. 1988). Here, however, Defendants did not argue that Plaintiff artfully 

pled a claim under 42 U.S.C. § 9607 as it relates to costs for any alleged “cleanup” 

measures. Typically, these claims are brought by the federal government against a private 

party to recover “cleanup” costs.

The second, third, and fifth exceptions, under 42 U.S.C. § 9606, also do not apply 

because they relate to enforcing orders, recovering costs, or compelling an order that the 

federal government issued under CERCLA to “cleanup” the toxic waste. As the district 

court correctly determined, “the facility here is a RCRA site, not a Superfund [CERCLA] 

site . . . . [D]efendants do not provide any basis to show that the facility qualifies as a

CERCLA cleanup.” J.A. 620. Rather, on February 22, 2019, the EPA issued a CA Permit 

to the Institute Facility which constitutes compliance with [RCRA] rather than a remedial 

“cleanup” under CERCLA. See 40 C.F.R. § 270.4. Finally, the fourth exception does not 

apply.

At best, Defendants argue that the distinction between a CERCLA “cleanup” order 

and a RCRA remedial measure are “illusory and belied by the statutory text.” Resp. Br. at 

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38

52. For this contention, Defendants primarily rely on two unpublished and out-of-circuit 

opinions, which are neither persuasive nor applicable.

First, in N. Penn Water Auth. v. BAE Sys. Aerospace Elecs., Inc., plaintiff filed a 

state complaint under the Pennsylvania Hazardous Sites Cleanup Act in connection with 

the defendants’ contamination of one of NPWA’s production wells. No. CIV.A. 04-5030, 

2005 WL 1279091, at *1 (E.D. Pa. May 25, 2005). Plaintiff, a local water utility, sought 

“an order requiring Defendants to provide an appropriate treatment system for Well NP21[] and a declaratory judgment regarding Defendants’ liability for future response costs 

involving Well NP-21. Then, pursuant to CERCLA, the EPA “initiated an investigation 

of groundwater contamination” throughout the site and proposed remedial action. Id. at 

*2-3. Next, the EPA declared one of NPWA’s production wells a Superfund site and issued 

an order prohibiting use of the well for 10 years due to the contamination. Plaintiff sued 

in state court to begin immediate use of a water well. Plaintiff sued to have the state court 

overturn a federal EPA Superfund plan and filed a federal complaint which presented the 

same state claims in addition to two additional counts specifically asserted under CERCLA 

and RCRA. Thus, the federal court held that since Plaintiff was directly challenging the 

federal government’s cleanup remedy under CERCLA, and since Plaintiff also filed an 

identical federal complaint (based on the same facts asserting the same injury, and asking 

for the same relief), there was federal question jurisdiction. Id. at *10.

Second, Defendants rely on Lehman Brothers, Inc. v. City of Lodi, where a district 

court found that it had federal question jurisdiction pursuant to Section 113(b) of CERCLA 

because “Lehman’s contract-related claims have ‘artfully pleaded’ a federal question as 

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state law claims, namely whether the Investment Contract constitutes a ‘challenge’ to 

CERCLA.” 333 F. Supp. 2d 895, 906 (E.D. Cal. 2004). Plaintiff sought to enforce a 

contract provision that conflicted directly with CERCLA. Id. at 905–06 (“Lehman’s claims 

are, primarily, based upon the failure to perform the terms of the Investment Contract, 

which require a specific priority of payments disallowed by CERCLA . . . .” (footnote 

omitted)). As noted by Lehman, the Ninth Circuit found that actions challenge “CERCLA 

cleanups where the plaintiff seeks to dictate specific remedial actions [;] postpone the 

cleanup [;] impose additional reporting requirements on the cleanup [;] or terminate the 

RI/FS and alter the method and order of cleanup.” Id. at 901 (internal citations omitted). 

Therefore, since the plaintiff’s contractual provision specifically and directly challenged 

CERCLA, there was federal question jurisdiction.

The case at bar, however, is distinguishable from N. Penn and Lehman. Primarily, 

and as the district court held, the Institute Facility “is a RCRA site, not a Superfund site.” 

J.A. 620. Also, unlike N. Penn, Plaintiff here has neither filed a nearly identical complaint 

in federal court nor is directly challenging an EPA cleanup order. Rather, Plaintiff, here, 

takes issue with the environmental covenant and wants additional remedies. Second, and 

unlike Lehman, there is no contractual provision in the instant case that challenges any 

EPA remedial or cleanup measures. Here, the EPA has not issued any cleanup orders.

b.

We also find that Plaintiff’s state claims are not preempted by the RCRA.

Defendants’ best, but, ultimately, unsuccessful, ground for conferring federal 

question jurisdiction is under the RCRA. With respect to RCRA suits, federal courts have 

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jurisdiction over citizen suits for “violation[s] of any permit, standard, regulation, 

condition, requirement, prohibition or order which has become effective pursuant to this 

chapter,” or those brought against a person or entity “who has contributed or who is 

contributing to the past or present handling, storage, treatment, transportation, or disposal

of any solid or hazardous waste which may present an imminent and substantial 

endangerment to health or the environment. 42. U.S.C. § 6972(a)(1). RCRA prohibits 

these citizen suits if “the EPA or the state has already ‘commenced and is diligently 

prosecuting’ a RCRA enforcement action.” See United States v. State of Colo., 990 F.2d 

1565, 1578 (10th Cir. 1993) (quoting 42 U.S.C. § 6972(b)(1)(B)).

But RCRA’s authorization of these citizen suits does not preempt all state law 

claims. Indeed, the text of RCRA includes a citizen-suit savings clause that ensures state 

law claims remain unaffected:

Nothing in this section shall restrict any right which any person (or class of 

persons) may have under any statute or common law to seek enforcement of 

any standard or requirement relating to the management of solid waste or 

hazardous waste, or to seek any other relief (including relief against the 

Administrator or a State agency).

42 U.S.C.A. § 6972 (emphasis added). In the instant mater, the savings clause undercuts 

the Defendants’ argument that the Plaintiff’s complaint raises a substantial federal 

question. The Act contemplates state law recovery separate from RCRA, as evidenced by 

§ 6972. Plainly, Plaintiff’s common law claims for negligence, public nuisance, private 

nuisance, trespass, strict liability, and unjust enrichment are allowed under § 6972. See 

J.A. 54–75 at ¶¶ 34-108.

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Therefore, Plaintiff’s suit is not challenging, or interfering with the RCRA’s

permitting, enforcement, or conclusions. Moreover, Defendants’ remedial measures only 

propose an environmental covenant that would prohibit groundwater use, residential 

construction, and require environmental protections for non-residential buildings. The 

remedy approved by the EPA as to WVSU’s property is contingent upon WVSU accepting 

a restrictive-use covenant, which WVSU is not required to grant and which it has not, in 

fact, agreed to. Under the EPA’s regulations, WVSU’s refusal to grant such a covenant 

now makes it incumbent upon the holder of the CA Permit, UCC, to consider and consult 

with authorities regarding “on-site measures to address [hazardous waste] releases” as they 

impact the WVSU’s property. See 40 C.F.R. § 264.101(c). While WVSU did reject the 

proposed environmental covenant, it is not attacking the RCRA permitting remedial 

proposals. Finally, the EPA’s finding that the groundwater is not harmful to human health 

was contingent on WVSU’s non-residential use of the former rehabilitation area. So, a 

restrictive covenant would deprive WVSU of freely using this area for such a purpose. 

Thus, WVSU may seek to compel Defendants to implement additional measures to remedy 

Defendants’ ongoing contamination on WVSU property and to obtain damages for losing 

present and future use of the former rehabilitation area subject to the environmental 

covenant.

Accordingly, Plaintiff’s state claims do not turn on any questions of federal law, as 

contemplated by the Supreme Court in their development of this doctrine. Empire 

Healthchoice Assurance, Inc. v. McVeigh, 547 U.S. 677, 681–700 (2006). The state court 

will address whether Defendants should do more to remedy its contamination on WVSU 

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based on theories of negligence, public nuisance, private nuisance, trespass, strict liability, 

and unjust enrichment. J.A. 54–75 at ¶¶ 34-108. Plaintiff’s claims do not draw on federal 

law as the exclusive basis, or as any basis, for holding Defendants liable for their actions. 

Compare MSOF Corp. v. Exxon Corp., 295 F.3d 485, 490 (5th Cir. 2002) (“[C]laims for 

negligence and strict liability arose out of alleged contamination of plaintiffs’ land with 

toxic chemicals, which undisputedly gave rise to a cause of action under state law”), with 

Bd. of Comm’rs of Se. Louisiana Flood Prot. Auth.-E. v. Tennessee Gas Pipeline Co., 

L.L.C., 850 F.3d 714, 722 (5th Cir. 2017), cert. denied sub nom. Bd. of Comm’rs of Se. 

Louisiana Flood Prot. Auth.–E. v. Tennessee Gas Pipeline Co., No. 17-99, 2017 WL 

4869188 (Oct. 30, 2017) (“Here, however, Defendants correctly point out that the Board’s 

complaint draws on federal law as the exclusive basis for holding Defendants liable for 

some of their actions”).

c.

We need not examine the remaining prongs because none of Plaintiff’s state law 

claims turn on an “actually disputed and substantial’ issue of federal law.” Grable, 545 

U.S. at 314. Rather, WVSU’s claims turn on questions of pure state law, including 

traditional tort law, questions of duty, breach, causation, and damages.13 There is no need 

for a federal court to interpret any substantial issues of federal law even if the meaning of 

13 See Giles v. Chicago Drum, Inc., 631 F. Supp. 2d 981, 989–90 (N.D. Ill. 2009) 

(remanding case even where resolution of the conspiracy claim may interpret and apply 

RCRA terms governing the lawfulness of defendants’ conduct); DeLuca v. Tonawanda 

Coke Corp., No. 2:10-cv-0859, 2011 U.S. Dist. LEXIS 96110, at *14-16 (W.D.N.Y. Aug. 

25, 2011) (remanding case asserting only state law claims despite existence of related 

RCRA investigation and enforcement).

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certain RCRA terms “may well be hotly contested.” Giles v. Chicago Drum, Inc., 631 F. 

Supp. 2d 981, 989 (N.D. Ill. 2009). As noted above, Congress allows private rights of 

action in state courts even if they implicate the RCRA. Thus, “Congress’s decision to grant 

a private right of enforcement and its silence with respect to any other private cause of 

action allows for the inference that it intended to keep RCRA-based state law claims for 

conspiracy and negligence out of federal court.” Id. at 990; see also Bennett v. Southwest 

Airlines Co., 484 F.3d 907, 911 (7th Cir. 2007).

Therefore, for the reasons stated above, there is no federal question jurisdiction.

IV.

For the foregoing reasons, we hold that 28 U.S.C. § 1442 does not confer federal 

officer jurisdiction over Plaintiff’s state suit because Defendants were not “acting under” 

the “subjection, guidance, or control” of the EPA. Second, we hold that there is no federal 

question jurisdiction, pursuant to 28 U.S.C. § 1331, over WVSU’s state claims because 

they are neither challenging an EPA-directed “cleanup” under CERCLA nor arise from 

RCRA remedial measures and, thus, are not preempted.

AFFIRMED

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