Varline, Jayden et al v. The 3M Company

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
JAYDEN VARLINE, BRIAN RICHARDS,
JONICA RICHARDS, JENSEN RICHARDS,
DANIEL PAUL, ELIZABETH PAUL,
ANNETTE SCHAETZL, TREVOR CUNNINGHAM,
EMILY CUNNINGHAM, RICHARD RUBOW,
MICHAEL HEISE, STACY HEISE,
AMANDA ZASTROW, STEVEN ZASTROW,
SCOTT TOWLE, JESSICA TOWLE,
PERRY REDEKER, RUTH REDEKER,
MATTHEW BRILL, JANET OSTROWSKI,
TOM FELTZ, THOMAS SULESKI,
JERILYN LANDRUM, LANCE KELLY,
JENNIFER KELLY,
and others similarly situated,
Plaintiffs,
v.
THE 3M COMPANY,
Defendant.
OPINION and ORDER
24-cv-859-jdp
Plaintiffs are residents of the Village of Maine, Wisconsin, which is in Marathon County
near Wausau. They are suing defendant The 3M Company for contaminating the local
groundwater, including plaintiffs’ private wells, with per- and poly-fluoralkyl substances,
commonly known as PFAS. Plaintiffs are asserting claims on behalf of themselves and two
putative classes: a personal injury class consisting of individuals who have ingested the
contaminated water, and a property damage class consisting of individuals who own the
contaminated wells.
3M moves to dismiss multiple portions of plaintiffs’ amended complaint, contending
that some of plaintiffs lack standing under Federal Rule of Civil Procedure 12(b)(1) and that
some of the claims are not adequately pleaded under Federal Rule of Civil Procedure 12(b)(6).
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3M’s motion will be granted in three respects. Plaintiffs have voluntarily agreed to dismiss the
property damage claims brought by Jayden Varline and Jonica Richards. The court will dismiss
the personal injury claims for all plaintiffs who have not experienced adverse health effects due
to PFAS exposure, because those plaintiffs have not suffered an actual injury under Wisconsin
law. The court will dismiss the product liability claims based on a failure-to-warn theory
because plaintiffs’ allegations affirmatively demonstrate that a warning to product users would
not have reduced the risk of harm. The motion to dismiss will be denied in all other respects.
ALLEGATIONS OF FACT
Plaintiff’s first amended class action complaint, Dkt. 14, alleges the following, which
the court accepts as true for the purposes of 3M’s motion to dismiss.
Since the 1930s, The 3M Company has operated two facilities near the village of Maine
for the purpose of mining and processing rock into roofing granules. The Downtown facility,
which is in nearby Wausau, is a manufacturing facility for roofing granules. The Graystone
facility, which is approximately a mile from the village of Maine, is a quarry where 3M mines
rock and crushes it to the appropriate size for roofing granules. 3M also uses the Graystone
facility as a disposal site for waste products from the Downtown facility.
3M’s roofing granules are coated with PFAS, a class of chemicals with a unique chemical
structure that makes them resistant to breakdown. If released into the environment, PFAS
accumulate in soil and groundwater; if ingested, PFAS accumulate in the body. Exposure to
PFAS is associated with adverse health effects, including high cholesterol, kidney and testicular
cancer, ulcerative colitis, and thyroid disease.
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In 2023, groundwater testing at the Graystone facility revealed high levels of three types
of PFAS: perfluorooctanoic acid (PFOA), perfluorooctanesulfonic acid (PFOS), and N-Ethyl
Perfluorooctane 	Sulfonamide 	Acetic 	Acid 	(NEtFOSAA). 	Each 	of 	these 	chemicals 	is
manufactured by 3M; PFOS is manufactured exclusively by 3M. The village of Maine draws
from the same groundwater source as the Graystone facility, and high levels of PFAS have also
been observed in private wells in the village. Residents have been exposed to PFAS from the
contaminated wells, which has caused bioaccumulation of PFAS in their bodies and, in some
cases, adverse health effects. Property values in the village have decreased due to the
contaminated water supply.
ANALYSIS
Plaintiffs are suing for injuries to themselves and their property caused by PFAS
contamination from 3M’s mining and manufacturing activities. Plaintiffs bring claims on behalf
of themselves and two putative classes. The first class is a personal injury class of individuals
who have ingested contaminated water and have either suffered adverse health effects or are at
risk of adverse health effects in the future. The second class is a property damage class of
individuals who own property with contaminated wells. 3M moves to dismiss several portions
of the amended complaint for lack of standing under Federal Rule of Civil Procedure 12(b)(1)
and for failure to state a claim under Rule 12(b)(6).
A. Standing
To establish this court’s jurisdiction, plaintiffs must demonstrate standing for each of
their claims and for each form of relief that they seek. TransUnion LLC v. Ramirez, 594 U.S.
413, 431 (2021). To demonstrate standing, a plaintiff must show that he (1) suffered an injury
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in fact that is (2) fairly traceable to the challenged conduct of the defendant and (3) likely to
be redressed by a favorable judicial decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61
(1992).
3M’s 12(b)(1) motion is a facial challenge to jurisdiction, because 3M contends that
plaintiffs’ complaint lacks sufficient factual allegations to establish standing. See Silha v. ACT,
Inc., 807 F.3d 169, 173 (7th Cir. 2015) (facial challenge contends that plaintiff has not alleged
subject-matter jurisdiction; factual challenge contends that there is in fact no subject-matter
jurisdiction). In reviewing a facial challenge, the court accepts all well-pleaded factual
allegations as true and draws all reasonable inferences in favor of the plaintiff. Id.
In this case, 17 of the 25 named plaintiffs have not yet experienced any adverse health
effects due to PFAS exposure; instead, they say that they have been injured because PFAS has
accumulated within their bodies, putting them at increased risk of disease and requiring them
to undergo medical monitoring. 3M moves to dismiss these plaintiffs’ personal injury claims,
and all the plaintiffs’ requests for medical monitoring, arguing that plaintiffs have not
established an injury in fact that confers standing for these claims.
To establish injury in fact, a plaintiff must show that he suffered a concrete and
particularized invasion of a legally protected interest. Spokeo, Inc. v. Robins, 578 U.S. 330, 339
(2016). A concrete injury is an injury that “actually exist[s],” as opposed to a hypothetical or
speculative injury. Id. at 340. The most common type of concrete injury is a tangible harm like
physical injury or monetary loss. Id. at 340. But an intangible harm can also be a concrete
injury, if it “has a close relationship to a harm that has traditionally been regarded as providing
a basis for a lawsuit in English or American courts.” Spokeo, 578 U.S. at 340–41 (citing Pleasant
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Grove City v. Summum, 555 U.S. 460 (2009) (free speech) and citing Church of Lukumi Babalu
Aye, Inc. v. Hialeah, 508 U.S. 520 (1993) (free exercise)).
Applying Spokeo, the Supreme Court held in TransUnion v. Ramirez that the mere risk of
future harm, without more, is not a concrete injury for the purpose of a retrospective damages
suit. 594 U.S. at 436; see also Ewing v. MED-1 Sols., LLC, 24 F.4th 1146, 1152 (7th Cir. 2022).
3M argues that TransUnion is dispositive, because the plaintiffs who have not yet experienced
any health effects are alleging injury based solely on the likelihood of future harm. Plaintiffs
disagree. They say that they have already experienced harm, because PFAS have accumulated
at measurable levels within their bodies and because they’ve spent time and incurred expenses
for medical monitoring to protect themselves against the risk of serious illness.
The court agrees that the bioaccumulation of PFAS, and the preventative measures the
plaintiffs have taken, are a concrete injury for standing purposes. The Supreme Court last
evaluated 	whether 	preventative 	measures 	could 	confer 	standing 	in 	Clapper 	v. 	Amnesty
International, 568 U.S. 398 (2013), holding that human rights organizations lacked standing
to challenge the Foreign Intelligence Surveillance Act (FISA), because they could not show that
their conversations with suspected terrorists had been intercepted by the government. The
plaintiffs argued that they had taken costly measures to prevent surveillance, including
travelling abroad to communicate with clients in person. But the court rejected that theory of
standing, reasoning that the plaintiffs could not “manufacture standing” by taking preventative
measures against a purely speculative risk. Id. at 415–16.
Interpreting Clapper, the Seventh Circuit has held that preventative measures establish
standing to sue only if the plaintiffs take those measures based on an “objectively reasonable
likelihood” that injury will occur. Lewert v. P.F. Chang’s China Bistro, Inc., 819 F.3d 963, 966
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(7th Cir. 2016). Applying that rule, the court of appeals ruled that data breach victims have
standing to sue if they spend time and money to mitigate the risk of identity theft. Lewert, 819
F.3d 936, Remijas v. Neiman Marcus Grp., LLC, 794 F.3d 688, 694 (7th Cir. 2015).1 The
difference between a data breach case and Clapper, the court reasoned, is that data breach
victims know that their data has been compromised, so they aren’t speculating about the risk
of harm. The actual exposure of their data makes the risk of identity theft sufficiently
immediate to justify mitigation efforts. Lewert, 819 F.3d at 967.
The same result follows in the toxic exposure context. The Fourth Circuit recently
addressed a factual scenario similar to this case in Sommerville v. Union Carbide Corp., 149 F.4th
408 (4th Cir. 2025), holding that a plaintiff exposed to toxic ethylene oxide (EtO) gas had
standing to bring a medical monitoring claim under West Virginia law. The district court in
Sommerville ruled that the plaintiff lacked standing to sue under TransUnion because her alleged
injury was an increased risk of developing cancer in the future. But the court of appeals
reversed, reasoning:
Sommerville’s 	alleged 	injury 	is 	not 	an 	“increased 	risk
of cancer development 	due 	to 	the 	alleged 	EtO 	emissions.”
Sommerville’s injury is her exposure itself to environmental toxins
tortiously emitted by the Plant Owners, which affect the body in
ways that often do not become manifest for several years and the
concomitant need to pay for medical testing today to mitigate an
increased risk of illness which Sommerville would not bear but for
the Plant Owners’ actions.
1 Lewert and Remijas predate TransUnion, but nothing in TransUnion calls their holdings into
question. The plaintiffs in Lewert and Remijas didn’t rely solely on the likelihood of future injury
to establish standing; they alleged that they had already spent time and money mitigating the
risks of identity theft. See Linman v. Marten Transp., Ltd., No. 22-cv-204-jdp, 2023 WL
2562712, at *3 (W.D. Wis. Mar. 17, 2023) (concluding that Lewert and Remijas remain good
law after TransUnion); Simonson v. IQ Data Int’l, Inc., 698 F. Supp. 3d 1055 (W.D. Wis. 2023)
(discussing post-TransUnion Seventh Circuit caselaw).
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Id. at 419 (internal quotations and citations omitted).
This court finds Sommerville persuasive, particularly considering the Seventh Circuit’s
similar approach in data breach cases. The plaintiffs in this case allege that have already been
exposed to PFAS through their drinking water, which creates a real, non-speculative, risk of
harm that justifies preventative medical monitoring. Plaintiffs’ medical monitoring expenses
are an injury-in-fact, so plaintiffs have Article III standing to sue for damages.
B. Adequacy of the pleading
3M also moves to dismiss portions of the amended complaint under Federal Rule of
Civil Procedure 12(b)(6) for failure to state a claim. On a motion to dismiss under
Rule 12(b)(6), the court accepts all factual allegations in the complaint as true and draws all
reasonable inferences in favor of the plaintiff. Erickson v. Pardus, 551 U.S. 89, 93 (2007). The
essential question is whether plaintiff provided defendant with fair notice of her claims and
alleged facts plausibly suggesting that she is entitled to relief. McCray v. Wilkie, 966 F.3d 616,
620 (7th Cir. 2020).
3M raises multiple issues with the adequacy of the amended complaint. One is
undisputed: plaintiffs Jonica Richards and Jayden Varline concede that they cannot bring
trespass and nuisance claims against 3M because they lack an ownership interest in the
allegedly contaminated property. Those claims will be dismissed.
3M challenges the adequacy of plaintiffs’ amended complaint on four other grounds.
First, 3M contends that Wisconsin law does not recognize personal injury claims in the absence
of present illness. Second, 3M contends that plaintiffs’ strict liability claims fail because the
risks of 3M’s activities could be minimized through reasonable precautions. Third, 3M
contends that plaintiffs’ failure-to-warn claims fail on statute-of-limitations grounds and
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because a warning would not have reduced risk in this case. Fourth, 3M contends that plaintiffs
have not alleged facts plausibly suggesting that they are entitled to relief under the federal
Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).
1. 	Plaintiffs without present illness
The court already determined that the 17 plaintiffs without any present illness have
Article III standing to sue, based on their need for increased medical monitoring to reduce the
risk of future illness. 3M also challenges those plaintiffs’ personal-injury claims under Rule
12(b)(6), contending that they have not alleged an “actual injury” sufficient to support a
personal injury claim under Wisconsin law. 3M’s arguments in support of its 12(b)(6) motion
are much the same as its arguments in support of its 12(b)(1) motion. But the court’s
conclusion that plaintiffs suffered an injury-in-fact for standing purposes does not mean that
plaintiffs have alleged an actual injury under Wisconsin law. Cf. Spokeo, 578 U.S. at 341
(recognizing the distinction between Article III standing and whether plaintiff has stated a
cause of action under federal or state law); Access Living of Metro. Chicago v. Uber Techs., Inc., 958
F.3d 604, 608–12 (7th Cir. 2020) (plaintiff alleged a concrete injury for standing purposes but
failed to allege that it had been subjected to discrimination under Title III of the Civil Rights
Act). 3M’s 12(b)(1) motion involved a question of federal constitutional law; 3M’s 12(b)(6)
motion involves a question of state substantive law.
A personal injury cause of action under Wisconsin law requires both a negligent act and
an actual injury. Hansen v. A.H. Robins, Inc., 113 Wis. 2d 550, 335 N.W.2d 578 (1983). In
Alsteen v. Wauleco, Inc., the Wisconsin Court of Appeals examined the actual injury requirement
in the context of a toxic chemical exposure. 2011 WI App 105, 335 Wis. 2d 473, 802 N.W.2d
212. The plaintiffs in Alsteen were exposed to a variety of carcinogenic chemicals, which leaked
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from a manufacturing site into the local air, soil, and water. Id. ¶¶ 3–5. Some of the plaintiffs
developed health problems as a result, including various cancers. But other plaintiffs did not
have any health problems when they filed suit; instead, their alleged injuries were an increased
risk of contracting cancer and the necessary expenses for medical monitoring. Id. ¶ 6. The court
of appeals affirmed the dismissal of the asymptomatic plaintiffs’ claims, holding that a personal
injury claim under Wisconsin law requires a showing of present, physical injury. Id. The court
ruled that the plaintiffs had not suffered a physical injury simply by being exposed to toxic
chemicals, reasoning that “most people are exposed to a wide variety of environmental
contaminants . . . on a daily basis.” Id. ¶ 18. The court also rejected plaintiffs’ assertion that
medical monitoring expenses were an injury, reasoning that plaintiffs were trying to “attach a
specific item of damages to what is actually a claim for increased risk of future harm.” Id. ¶ 22.
Alsteen is a decision of the Wisconsin Court of Appeals, which this court is obligated to
follow when applying Wisconsin law “unless there is a convincing reason to predict the state’s
highest court would disagree.” Gupta v. Morgan Stanley Smith Barney, LLC, 934 F.3d 705, 711
(7th Cir. 2019). The court does not find Alsteen particularly persuasive. Although it didn’t say
it explicitly, the Alsteen court appeared to justify its decision on public policy grounds, reasoning
that the number of potential tort claimants would be enormous if mere exposure to
environmental contaminants were sufficient to give rise to a personal injury claim. Id. ¶ 18
(“Tens of millions of individuals may have suffered exposure to substances that might justify
some form of substance-exposure-related medical monitoring”) (quoting Metro-N. Commuter R.
Co. v. Buckley, 521 U.S. 424, 442 (1997)). That’s a fair concern, but the court’s solution is
overbroad. Not all toxic exposures present the same risk of future harm: a specific significant
exposure 	that 	has 	measurable 	consequences 	may 	give 	rise 	to 	a 	reasonable 	need 	for
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exposure-related preventative measures, whereas a more diffuse exposure would not. The
court’s bright-line rule precludes recovery for all asymptomatic plaintiffs, regardless of the
severity of exposure, the likelihood of future harm, or the objective reasonableness of the need
for medical monitoring.
Despite its reservations, the court will follow Alsteen here because plaintiffs provide no
reason to predict that the Wisconsin Supreme Court would disagree with Alsteen. Instead,
plaintiffs have attempted to distinguish Alsteen, arguing that the plaintiffs in that case alleged
only exposure to toxic substances, not actual accumulation of toxic substances within their
bodies. Dkt. 20, at 14. That isn’t a material distinction under Alsteen, which holds that exposure
to a toxin produces no actual injury without a resulting illness. The court will follow Wisconsin
precedent and dismiss the personal injury claims of the 17 plaintiffs who did not allege actual
health problems caused by PFAS exposure.
The parties don’t explain in their briefs what other claims remain for these 17 plaintiffs.
Fifteen of them have alleged that they own private wells on their property, so those plaintiffs
still have claims against 3M based on damage to their properties. But the court’s ruling on the
present illness issue appears to resolve all claims for plaintiffs Jensen Richards and Jerilyn
Landrum. The court will give Richards and Landrum two weeks to show cause why they should
not be dismissed from the case.
2. 	Strict liability claims
Wisconsin law imposes strict liability on those who engage in “abnormally dangerous”
activities when doing so results in harm to another. Grube v. Daun, 213 Wis. 2d 533, 544, 570
N.W.2d 851 (1997) (citing Restatement (Second) of Torts, §§ 519–520 (1977)). The motion
to dismiss turns on whether plaintiffs have pleaded facts suggesting that 3M’s mining and
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manufacturing activities are abnormally dangerous. 3M contends that an activity is only
abnormally dangerous if its risks cannot be minimized with reasonable precautions, which 3M
says plaintiffs haven’t adequately alleged in the amended complaint.
In their response brief, plaintiffs appear to take the position that inability to minimize
risk is not an element of a strict liability claim, but they don’t develop an argument on that
issue. Some of the authority cited by both parties appears to support plaintiffs’ position.
Wisconsin courts have adopted the test from the Restatement (Second) of Torts § 520 to
determine whether an activity is abnormally dangerous. Bennett v. Larsen Co., 118 Wis. 2d 681,
703, 348 N.W.2d 540 (1984). Under that test, inability to eliminate risk is just one of six
factors that courts should consider in determining whether an activity is abnormally dangerous.
The Wisconsin Supreme Court has advised that the Restatement factors “are interrelated and
should be considered as a whole, with weight being apportioned by the court in accordance
with the facts in evidence.” Grube, 213 Wis. 2d at 545; see also Fortier v. Flambeau Plastics Co., a
Div. of Flambeau Corp., 164 Wis. 2d 639, 668, 476 N.W.2d 593 (Ct. App. 1991). That implies
that, if the other factors are present, a plaintiff could theoretically prove that an activity is
abnormally dangerous without proving that its risk cannot be minimized through the exercise
of reasonable precautions.
In any event, it is not necessary to decide at this juncture whether plaintiffs will have
to show an inability to minimize risk, because the amended complaint is adequate either way.
Plaintiffs allege that PFAS readily contaminate soil, dissolve in water, are resistant to
breakdown, and bioaccumulate in organisms, including humans. Dkt. 14, ¶¶ 56–64. That’s
sufficient to allow for a plausible inference that the risk of dumping PFAS-contaminated
roofing materials into the environment cannot be minimized through the exercise of reasonable
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precautions. The court concludes that plaintiffs have adequately pleaded a strict liability claim
based on abnormally dangerous activities.
3M 	argues 	that 	plaintiffs 	have 	pleaded 	themselves 	out 	of 	court 	because 	they
affirmatively alleged in the amended complaint that 3M could have taken precautions to
minimize the risks of its activities. Dkt. 19, at 16 (citing amended complaint, Dkt. 14, ¶¶ 212,
214, 71, 84, 206–07). But in their response brief, plaintiffs explain that they made those
allegations in support of their negligence claims, which they are pleading in the alternative to
the strict liability claims. Plaintiffs are entitled to plead in the alternative under Federal Rule
of Civil Procedure 8(d)(2) and (3). 3M’s motion to dismiss plaintiffs’ strict liability claims will
be denied.
3. 	Failure-to-warn claims
Plaintiffs assert a products liability claim against 3M under a failure-to-warn theory.
Wis. Stat. § 895.047 imposes strict liability on manufacturers who produce defective products,
including products that are defective because of lack of proper warnings. See Wis. JI-Civil
§ 3260.1. To state a claim under a failure-to-warn theory, a plaintiff must allege that the
“foreseeable risks of harm posed by the product could have been reduced or avoided by the
provision of reasonable instructions or warnings by the manufacturer and the omission of the
instructions or warnings renders the product not reasonably safe.” Wis. Stat. § 895.047(1)(a).
Plaintiffs assert that if 3M had warned the public that its PFAS-containing products were likely
to contaminate groundwater, plaintiffs could have taken precautionary steps to prevent
exposure. Dkt. 20, at 25–26.
3M contends that the failure-to-warn claims should be dismissed for two reasons. First,
it says that plaintiffs’ claims are time-barred under Wis. Stat. § 895.047(5), which imposes a
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15-year statute of repose on most products liability claims. Second, it says that plaintiffs’
allegations make clear that a warning wouldn’t have reduced the risk of harm in this case. The
second reason is dispositive, so the court will grant defendants’ motion to dismiss on that basis
without considering the statute of repose.
The 	fundamental 	problem 	for 	plaintiffs 	is 	that 	3M 	itself 	disposed 	of 	the
PFAS-contaminated roofing granules at the Graystone facility, so a warning could not have
made a difference in this case. Under Wisconsin law, “a product is defective based on a failure
to warn when an intended use of the product is dangerous, but the manufacturer did not
provide sufficient warning or instruction” to mitigate the risk. Godoy ex rel. Gramling v. E.I. du
Pont de Nemours & Co., 2009 WI 78, ¶ 29, 319 Wis. 2d 91, 768 N.W.2d 674. Whether a
product is dangerous is evaluated from the perspective of a reasonable user of the product, not
from the perspective of bystanders or the public. Green v. Smith & Nephew AHP, Inc., 2001 WI
109, ¶ 40, 245 Wis. 2d 772, 629 N.W.2d 727; Horst v. Deere & Co., 2009 WI 75, ¶ 77, 319
Wis. 2d 147, 769 N.W.2d 536.2 Because product liability claims focus on whether the intended
use of the product is dangerous, it follows that the warnings must be directed at the product’s
users. A bystander who is injured because a manufacturer failed to provide adequate warnings
to users can still bring suit, but there is no duty to warn about dangers that are unique to
bystanders. Horst, 2009 WI 75, ¶ 77.
2 Green was decided under a common-law approach to strict liability, which was the law in
Wisconsin until 2011, when it was superseded by Wis. Stat. § 895.047. But the Wisconsin
Supreme Court has held that § 895.047 did not change the rule that the dangerousness of a
product is evaluated from the perspective of a reasonable user. Murphy v. Columbus McKinnon
Corp., 2022 WI 109, 405 Wis. 2d 157, 982 N.W.2d 898.
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A recent PFAS case from this court illustrates the principle. In Rougeau v. Ahlstrom
Rhinelander, LLC, 785 F. Supp. 3d 438 (W.D. Wis. 2025), plaintiffs alleged that 3M sold PFAS
products to paper mills, who then spread millions of pounds of PFAS-contaminated sludge
onto local farmland, where it leached onto the plaintiffs’ property and into their drinking water.
Id. at 445. This court declined to dismiss plaintiffs’ failure-to-warn claim against 3M under
Wis. Stat. § 895.047, concluding that plaintiffs had stated a claim by alleging that 3M failed
to warn the paper mills that standard use and disposal of its PFAS products could contaminate
soil and groundwater. Id. at 452–53. In Rogeau, it was the product users who dumped PFAS
into the environment, so a warning could theoretically have prevented the dumping. But in
this case, plaintiffs allege that 3M itself disposed of the PFAS-contaminated roofing granules
at the Graystone facility. No warning could have prevented that.
Plaintiffs don’t identify in their response brief who specifically 3M should have warned
about the environmental risks of their products. Plaintiffs say generally that “had 3M properly
warned about the risks associated with these materials, regulatory agencies, third-party
handlers, and the public could have taken necessary precautions to prevent or mitigate the
contamination.” Dkt. 20, at 25–26. But this amounts to an assertion that 3M was required to
warn everyone about the risks posed by their products. Products liability law doesn’t impose
such a wide-ranging duty to warn.
4. 	CERCLA claims
The 	Comprehensive 	Environmental 	Response, 	Compensation, 	and 	Liability 	Act
(CERCLA) is a federal law that imposes liability for the cleanup of hazardous substances
released into the environment. The purpose of the law is “to promote the timely cleanup of
hazardous waste sites and to ensure that the costs of such cleanup efforts were borne by those
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responsible for the contamination.” Bernstein v. Bankert, 733 F.3d 190, 200 (7th Cir. 2013).
Plaintiffs bring two claims under CERCLA. First, they bring a cost-recovery claim for the
“necessary 	costs 	of 	response” 	to 	clean 	up 	their 	PFAS-contaminated 	wells. 	42 U.S.C.
§ 9607(a)(4)(B); Emergency Servs. Billing Corp. v. Allstate Ins. Co., 668 F.3d 459 (7th Cir. 2012).
Second, they seek a declaratory judgment that they are also entitled to future response costs.
See 42 U.S.C. § 9613(g)(2).
3M contends that plaintiffs’ CERCLA claims fail because they haven’t alleged facts
plausibly suggesting that they’ve incurred response costs cleaning up their private wells. Under
CERCLA, response costs are those that are (1) necessary; (2) related to “removal” or
“remediation” of the hazardous site as those terms are defined in CERCLA; and (3) incurred
in compliance with the EPA’s national contingency plan, which is a set of standards governing
the clean-up of hazardous substances. 42 U.S.C. § 9601(23)–(25), (31); § 9607(a)(4)(B). 3M
says that plaintiffs have simply alleged in conclusory fashion that they’ve incurred response
costs, which isn’t enough to state a plausible claim for relief.
3M’s motion to dismiss the CERCLA claims will be denied. Under Federal Rule of Civil
Procedure 8(a), plaintiffs are required to include in the complaint “a short and plain statement
of the claim[s]” to give 3M fair notice of each of the claims “and the grounds upon which
[they] rest[ ].” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal quotations
omitted). Plaintiffs are not obligated to plead “facts that bear on the statutory elements of a
claim.” Chapman v. Yellow Cab Coop., 875 F.3d 846, 848 (7th Cir. 2017). “It is enough to plead
a plausible claim, after which ‘a plaintiff receives the benefit of imagination, so long as the
hypotheses are consistent with the complaint.’ Id. (quoting Twombly, 550 U.S. at 563).
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3M is correct that the cost-recovery allegations in the amended complaint are somewhat
thin. Plaintiffs simply allege that they’ve “incurred and will continue to incur necessary
response costs to address the release or threatened release of hazardous substances and PFAS
from Defendant’s facility.” Dkt. 14, ¶ 227. But earlier in the complaint, plaintiffs describe the
nature of the PFAS contamination in detail, including the types of PFAS involved and how it
got into plaintiffs’ wells. That’s enough to allow for plausible inferences about what kind of
remedial measures plaintiffs might have taken, so plaintiffs’ allegations are sufficient to give
3M fair notice of the CERCLA claims.
3M also argues that plaintiffs have not pleaded compliance with the EPA’s national
contingency plan, which it says is necessary to recover costs under CERCLA. In response,
plaintiffs said that compliance with the national contingency plan is not a required element of
their CERCLA claims, because they could recover at least some costs even if they didn’t comply.
3M disagreed with that position on reply, but its argument was undeveloped. The court will
not dismiss plaintiffs’ CERCLA claims at this juncture based on a failure to plead compliance
with the national contingency plan. If 3M believes that plaintiffs’ lack of compliance bars their
claims, it should develop an argument on that issue on summary judgment.
ORDER
IT IS ORDERED that:
1. 	Defendant The 3M Company’s motion to dismiss the amended complaint, Dkt. 18,
is GRANTED in part. The motion is granted as to the following claims:
a. 	Plaintiff Jayden Varline and Jonica Richard’s nuisance and trespass
claims;
b. 	the personal injury claims for the plaintiffs who have not alleged a present
illness due to PFAS exposure;
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c. 	the products liability claims based on failure-to-warn.
2. 3M’s motion to dismiss is otherwise DENIED.
3. Plaintiffs Jensen Richards and Jerilyn Landrum have until March 27, 2026 to show
cause why they should not be dismissed from the case.
Entered March 13, 2026.
BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge
Case: 3:24-cv-00859-jdp Document #: 53 Filed: 03/13/26 Page 17 of 17