Ryan et al v. The Newark Group, INC. et al

1
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACUSETTS
THOMAS RYAN, et al., 	)
)
Plaintiffs, 	)
) 	Civ. No.: 4:22-cv-40089-MRG
v. 	)
)
THE NEWARK GROUP, INC., et. al. 	)
)
)
Defendants. 	)
)
CONSOLIDATED WITH
THOMAS RYAN, et al., 	)
)
Plaintiffs, 	)
) 	Civ. No.: 4:25-cv-40026-MRG
v. 	)
)
EIDP, INC, et al. 	)
)
)
Defendants. 	)
)
MEMORANDUM AND ORDER ON RUST-OLEUM CORPORATION’S MOTION TO
DISMISS [ECF No. 433]
GUZMAN, J.
I. 	INTRODUCTION
Plaintiffs, residents of Westminster, MA, bring this putative class action lawsuit to recover
damages for the contamination of their groundwater, which was allegedly caused by the decades-
long improper disposal of wastes containing per-and polyfluoroalkyl substances and their
constituents (collectively referred to as “PFAS”) at the MassNatural recycling and composting
facility in Westminster, Massachusetts. [ECF No. 16]. The present action (“Ryan II”) is the second
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lawsuit in a related action stemming from the same underlying facts, see Ryan v. The Newark
Grp., Inc.¸No. 4:22-cv-40089 (“Ryan I”), and the two actions have been consolidated for case
management purposes. There are several motions to dismiss pending before the Court; however,
this order concerns only the motion to dismiss brought by Defendant Rust-Oleum Corporation
(“Rust-Oleum”). Rust-Oleum moves to dismiss under Rule 12(b)(6) for failure to state a claim.
[ECF No. 433].
For the reasons stated below, Rust-Oleum’s motion to dismiss is GRANTED.
II. 	BACKGROUND
A. Relevant Facts
i. 	PFAS Contamination
The named Plaintiffs are residents of Westminster, Massachusetts who allege that
Defendant is liable for the PFAS contamination of Plaintiffs’ drinking water and properties. [Am.
Compl. ¶¶ 356–407, ECF No. 16]. Plaintiffs allege that Massachusetts Natural Fertilizer Company,
Inc. (“MassNatural”) operated a commercial composting facility in Westminster, Massachusetts
on Otter Farm (“the Facility”) where it received organic byproduct from outside sources and
suppliers, including materials that allegedly contained certain PFAS substances. [See id. ¶¶ 205–
263]. Plaintiffs allege that MassNatural improperly disposed of the organic waste it received at the
Facility, leading to PFAS leaching into the soil and nearby water sources, thereby contaminating
Plaintiffs’ land and drinking water. [Id. ¶ 262–66].
ii. 	PFAS6
PFAS are used in many commercial products due to their ability to repel water, dirt, oil,
and 	grease, 	resist 	heat 	and 	protect 	surfaces. 	[Am. 	Compl. 	¶¶ 	29–31]. 	They 	also 	resist
biodegradation and are water soluble, making them mobile in groundwater and the environment.
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[Id. ¶¶ 35, 36]. PFAS chemicals are colloquially referred to as “forever chemicals” due to their
ability to persist in the environment and human body indefinitely without breaking down. [Id. ¶
34]. “PFAS6” refers to six specific PFAS compounds regulated by the Massachusetts Department
of Environmental Protection (“MassDEP”), including (1) PFOS; (2) PFOA; (3) perfluorohexane
sulfonic acid (PFHxS); (4) perfluorononanoic acid (PFNA); (5) perfluoroheptanoic acid (PFHpA);
and (6) perfluorodecanoic acid (PFDA).1 [Id. ¶ 50]. While PFAS are not illegal compounds, they
are highly regulated.
The U.S. Environmental Protection Agency (“EPA”) has concluded that human exposure
to PFAS is associated with adverse health outcomes, which can manifest years after exposure. [Id.
¶ 44]. According to the EPA, human consumption of and oral exposure to PFAS is associated with
decreased fertility, developmental effects in children, cancer, liver complications, and hormonal
imbalances. [See id.] Reports issued from 2009 through 2022 reflect the EPA’s increasing concern
over health risks associated with human and animal ingestion of virtually any amount of PFAS.
For 	example, 	in 	June 2022 	EPA 	advised 	that 	“negative health 	effects 	may 	occur 	with
concentrations of [PFAS] in water that are near zero and below EPA’s ability to detect at this
time.” [Id. ¶ 47; Report and Recommendation (“R&R”) at 4, ECF No. 159].2 In April 2024, the
EPA finalized new drinking water regulations that established federal, legally enforceable levels,
called Maximum Contaminant Levels (MCLs), for the six PFAS compounds and mixtures that
1 This Order will refer to the compounds collectively as “PFAS” where there is no reason to discuss
a single compound with specificity.
2 EPA Announces New Drinking Water Health Advisories for PFAS Chemicals, $1 Billion in
Bipartisan Infrastructure Law Funding to Strengthen Health Protections, U.S. Env’t. Prot. Agency,
https://www.epa.gov/newsreleases/epa-announces-new-drinking-water-health-advisories-pfas-
chemicals-1-billion-bipartisan (May 25, 2023).
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contain PFAS.3 The MCLs range from 4.0 parts per trillion (ppt) (also expressed as ng/L) for PFOS
and PFOA, to 10.0 ppt for PFHxS, PFNA, and HFPO-DA.4
In addition to the federal regulations, Massachusetts has its own PFAS regulations. First,
PFAS are considered hazardous materials under Mass. Gen. Laws Chapter 21E (“Chapter 21E”),
also known as the Mass. Oil and Hazardous Material Release Prevention and Response Act.
Chapter 21E § 5 establishes strict liability, and joint and several liability, for owners and operators
of land contaminated with oil and hazardous materials, as well as for certain other parties identified
in the statute. Section 4 of the statute establishes the process by which responsible private parties
distribute the recovery of costs for response actions. Mass. Gen. Laws ch. 21E § 4. The
Massachusetts Contingency Plan (310 CMR 40.0000 et seq.) (“MCP”) is the set of regulations
under Chapter 21E. The MCP determines the protocol for required assessment, risk assessment
and remediation of oil and hazardous materials contamination.
As part of the MCP, in December 2019, MassDEP promulgated Reportable Concentrations
(RCs) and Cleanup Standards for the six PFAS compounds, either individually or as a collective,
depending upon the groundwater or soil category.5 Relevant to this opinion, RCs for groundwater
used for drinking are referred to as “RCGW-1” levels, while RCs for accessible soil or soil on
3 Per- and Polyfluoroalkyl Substances (PFAS): Final PFAS National Primary Drinking Water
Regulation, U.S. Env’t. Prot. Agency, https://www.epa.gov/sdwa/and-polyfluoroalkyl-substances-
pfas (July 12, 2024).
4 Id.
5 Sampling and Analysis Guidance for PFAS at Disposal Sites Regulated under the Massachusetts
Contingency 	Plan, 	Mass. 	Dep’t. 	Env’t 	Prot., 	8 	(Nov. 	13, 	2023),
https://www.mass.gov/doc/sampling-and-analysis-guidance-for-pfas-at-disposal-sites-regulated-
under-the-massachusetts-contingency-plan-november-2023/download.
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property that has a sensitive use are referred to as “RCS-1” levels.6 The RCGW-1 level for PFAS
in drinking water is 20 nanograms per liter (ng/L) and the RCS-1 level for PFAS in soil ranges
from 300 ng/kg to 720 ng/kg, depending on the type of PFAS.7 Additionally, on October 2, 2020,
as part of the Massachusetts Drinking Water Program, MassDEP promulgated a drinking water
standard of 20 ng/L for the sum of six PFAS compounds, matching the RCGW level.8 If PFAS is
detected at levels higher than the permissible RCs, the MCP requires notice be given to affected
persons as well as implementation of “Immediate Response Actions” to contain and remedy
potential contamination.9 Once a release has been confirmed, MassDEP issues a Notice of
Responsibility (“NOR”) to notify any Potentially Responsible Party that it may be liable for the
release of hazardous materials.10 The NOR also directs the Potentially Responsible Party to engage
a Licensed Site Professional to implement the Immediate Response Actions.11
iii. 	Rust-Oleum
6 	MCP 	Numerical 	Standards, 	Mass. 	Dep’t. 	Env’t 	Prot., 	(Dec. 	2017),
https://www.mass.gov/doc/mcp-numerical-standards-derivation/download
7 Sampling and Analysis Guidance for PFAS at Disposal Sites Regulated under the Massachusetts
Contingency Plan, supra note 10 at 6.
8 Id. at 5. The Massachusetts Drinking Water Program implements the federal and state drinking
water MCLs and MassDEP anticipates that the Massachusetts MCL will be revised in the near
future, in light of the new EPA regulations.
9 See 310 CMR 40.000; Chapter 21E.
10 See 310 CMR 40.000. An NOR is issued to a party when, based on the available information,
MassDEP has reason to believe that the party is liable for response action costs and damages under
Chapter 21E, § 5. The purpose of this notice is to inform the potentially liable party of its legal
responsibilities under Massachusetts state law for assessing and/or remediating the subject release
of a hazardous material.
11 See id.
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Rust-Oleum Corporation is a manufacturer of paints, varnishes, coatings, wood finishes,
and sealers. [Am. Compl. ¶ 132]. Plaintiffs allege that Rust-Oleum, together with other defendants
and non-parties, disposed of materials containing dangerous levels of PFAS at the MassNatural
site, eventually causing injury to the Plaintiffs and their property. [Id. ¶ 224]. One of the company’s
manufacturing facilities is located at 113 Olive St, Attleboro, MA 02703. [Id. ¶ 133]. Plaintiffs
allege that, since 2018, Rust-Oleum has arranged for the transport and disposal of waste to
MassNatural, and that, between January 1 and July 20, 2022, Rust-Oleum disposed of at least
330.12 tons of food-grade shellac process waste (i.e. “Red Mud”) at MassNatural. [Id. ¶¶ 148–49].
The Amended Complaint details several Rust-Oleum products that Plaintiffs allege may contain
PFAS. [Id. ¶¶ 135-44]. Plaintiffs allege Rust-Oleum knew or should have known its materials
contained PFAS, stating PFAS chemicals have been vital ingredients in the types of products Rust-
Oleum manufactures for decades. [Id. ¶ 135]. Absent from the Amended Complaint is any
allegation that those products were actually manufactured at Rust-Oleum’s Attleboro Facility or
an allegation that Rust-Oleum actually disposed of any materials deriving from those products at
MassNatural at any time.12
On July 11, 2022, Tighe & Bond, on behalf of MassNatural, collected samples of materials
stockpiled at the MassNatural Site for PFAS analysis. [Id. ¶ 150; Tighe & Bond Report (“T&B
Report”), ECF No. 241-5].13 Tighe & Bond collected four samples, identified as N-1A through N-
12 Rust-Oleum asserts that none of the products mentioned by Plaintiffs in the Amended Complaint
are manufactured at the Attleboro Facility are disposed of at MassNatural. [ECF No. 434 at 3 n.3].
13 Tighe and Bond prepared a Compost and Material Sampling Report on September 16, 2022,
which is an analysis of PFAS testing that took place at private residences in Westminster as well
as at the Facility. [T&B Report]. This report is incorporated by reference repeatedly in the
Amended Complaint. On a motion to dismiss for failure to state a claim under Rule 12(b)(6), “the
Court can consider only facts alleged in the complaint or documents fairly incorporated therein.”
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1D, from a stockpile containing an estimated volume of 340 cubic yards of food grade shellac
process waste. [Am. Compl. ¶ 150]. Plaintiffs identify the shellac process waste as “Red Mud,”
which they attribute solely to Rust-Oleum. [Id. ¶ 148]. However, the Tighe & Bond report
identifies “Red Mud” as a raw material pile composed of “Rust-O-leum, insect secretion, tree bark,
DE, water.” [T&B Report at 5]. “DE” refers to diatomaceous earth, which originates from
Defendant Ball Corp and contains detectable PFAS. [Id.] In Tighe & Bond’s testing of the Red
Mud waste piles, “one or more regulated PFAS compounds were detected in each of the four
samples at concentrations above the RCS-1 soil Reportable Concentrations.” [Am. Compl. ¶ 153].
In Table 4A of the T&B Report, titled "Summary of Raw Material Pile Composite Sample in
Analytical Data," Tighe & Bond identified the Red Mud sample, dated July 11, 2022, as having
PFAS values exceeding the limits allowed by MassDEP’s MCP. [T&B Report at 21]. Apart from
stockpiles solely listing Red Mud, Tighe & Bond also tested samples from mixed stockpiles of
materials from Rust-Oleum and Ball Corp., sample Q1-A through Q1-C. [Am. Compl. ¶ 152]. The
mixed stockpile samples of Rust-Oleum and Ball Corp. also tested as exceeding the PFAS limit
values. [Id. at 23]. On July 14, 2025, MassDEP issued an NOR to Rust-Oleum, identifying the
company as a Potentially Responsible Party. [Am. Compl. ¶ 153].
In its motion to dismiss, Rust-Oleum relies on public records and documents whose
authenticity is not disputed14 to challenge Plaintiffs’ factual assertions that any of the materials the
Theophile v. Conklin, No. CV 17-10868-FDS, 2017 WL 3140363, at *4 (D. Mass. July 24, 2017)
(citing Rivera v. Centro Medico de Turabo, Inc., 575 F.3d 10, 15 (1st Cir. 2009)).
14 “It is well established that a district court may take judicial notice of public records or
indisputably authentic documents on a 12(b) motion without converting even a 12(b)(6) motion
into one for summary judgment.” Branch v. F.D.I.C., 825 F. Supp. 384, 398 n.8 (D. Mass. 1993)
(citing Watterson v. Page, 987 F.2d 1, 3 (1st Cir.1993)). The Court takes judicial notice of Rust-
Oleum’s filings on the EEA Portal containing documents related to the MassDEP clean-up action
at Otter Farm.
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company sent to MassNatural actually contained PFAS. [ECF No. 434 at 3]. Prior to MassDEP’s
T&B testing, Rust-Oleum enlisted BAL Laboratory to conduct independent testing of Red Mud
(also called “Bird Mud”) at its Attleboro Facility on March 17, 2022, at the request of MassNatural.
[T&B Report at 25; Rust-Oleum Response to NOR at 215; EEA Record submitted by Rust-Oleum
on November 14, 202416]. The results of the March 17, 2022 testing revealed a complete set of
non-detect results of all PFAS compounds. [Id.] Further, Rust-Oleum conducted its own testing of
Red Mud collected from the company’s Attleboro facility at certified laboratories on August 17,
2023, October 27, 2023, and March 19, 2024; the results showed either no PFAS6 compounds or
a well-below-limit PFAS compound detection, which the testing lab attributed to “ubiquitous
ambient background conditions in the laboratory environment.” [ECF No. 434 at 3; EEA Record
submitted by Rust-Oleum on July 29, 202517]. In its response to the NOR, Rust-Oleum raised these
test results and asserted, “Rust-Oleum must assume that the PFAS detections found in stockpiles
allegedly attributable to Rust-Oleum’s red mud waste transport was a result of cross-contamination
15 	Rust-Oleum 	Response 	to 	NOR, 	dated 	September 	25, 	2023, 	available 	at:
https://fileservice.eea.comacloud.net/V3.1.0/FileService.Api/file/ijabgbej?Un6vLB3mcxLi8hGR
R6uwByRT7bnT2/KpNYN8mZaiYxY6JIUFZ5IDr5f6e601JN4i1mMCc5t2kMHlBznG8TWbSZ
k7rGFzTrMmfKURZOriP23RjyEeVQyPS2BVE/jiFQtr, ID #: 1613569.
16 Rust-Oleum 2022 PFAS Sampling Report - Rust-Oleum.Attleboro.pdf, dated March 28, 2022
available 	at:
https://fileservice.eea.comacloud.net/V3.1.0/FileService.Api/file/aejaaggge?Q8gqS8CJlzYGEES
0peIO1LWKWWspaE3FEFc+M1g6DQwqCpwVxk1+tpMPHb8lCrlGhw9n2DMQtaHHS8OoO0
G8nNFtH/B4Sj29osGCJoyxZdiAF1d3emfm/098KH3RzsLl, ID #: 1839791.
17 2024.07.23 March 2024 Sampling Memorandum 4855-7013-4484 v.1.pdf, dated July 23, 2024,
available 	at:
https://fileservice.eea.comacloud.net/V3.1.0/FileService.Api/file/igjegajj?pwy/HZ6UrGXRsM/T
ISNmjSRT7bnT2/KpNYN8mZaiYxY6JIUFZ5IDr5f6e601JN4i1mMCc5t2kMHlBznG8TWbSZk
7rGFzTrMmfKURZOriP23RjyEeVQyPS2BVE/jiFQtr, ID #: 1766411.
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from the MNF Site itself.”18 And, “[i]t is notable that almost every stockpile tested with results in
the Tighe & Bond report contains some level of PFAS.”19 The T&B Report also directly references
the possibility of cross-contamination; for example, noting the increase of PFAS concentration in
the Seaman Paper waste piles at MassNatural in comparison to the Seaman Paper waste stream at
the Seaman Paper facility could be attributed to “cross-contamination resulting from moving and
working these piles at [MassNatural].” [T&B report at 7].
B. Procedural History
On August 2, 2022, a subset of Plaintiffs initiated the action now-captioned Ryan v. Newark
Grp., No. 22-cv-40089-MRG (D. Mass) against defendants 3M, MassNatural, Newark Group,
Greif, Inc., Caraustar Industries, Otter Farm, Inc., and Seaman Paper (“Ryan I”). On September 1,
2023, Magistrate Judge David Hennessy issued a Report and Recommendations on the Ryan I
defendants’ respective motions to dismiss the Ryan I Second Amended Complaint, mostly denying
the Ryan I defendants’ motions but dismissing certain entities related to The Newark Group for
lack of personal jurisdiction. [See Ryan I, ECF No. 159]. On December 21, 2023, this Court largely
adopted Judge Hennessy’s R&R with slight modifications. [See Ryan I, ECF No. 181]. On May
13, 2024, some of the Defendants in Ryan I sought to amend their answers to assert crossclaims
against the DuPont Entities, Ball, Rust-Oleum, NEFCO, and several other non-party proposed
18 	Rust-Oleum 	Response 	to 	NOR, 	dated 	September 	25, 	2023, 	available 	at:
https://fileservice.eea.comacloud.net/V3.1.0/FileService.Api/file/ijabgbej?Un6vLB3mcxLi8hGR
R6uwByRT7bnT2/KpNYN8mZaiYxY6JIUFZ5IDr5f6e601JN4i1mMCc5t2kMHlBznG8TWbSZ
k7rGFzTrMmfKURZOriP23RjyEeVQyPS2BVE/jiFQtr, ID #: 1613569.
19 	Rust-Oleum 	Response 	to 	NOR, 	dated 	September 	25, 	2023, 	available 	at:
https://fileservice.eea.comacloud.net/V3.1.0/FileService.Api/file/ijabgbej?Un6vLB3mcxLi8hGR
R6uwByRT7bnT2/KpNYN8mZaiYxY6JIUFZ5IDr5f6e601JN4i1mMCc5t2kMHlBznG8TWbSZ
k7rGFzTrMmfKURZOriP23RjyEeVQyPS2BVE/jiFQtr, ID #: 1613569
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defendants. [Ryan I, ECF No. 271]. Simultaneously, the Plaintiffs in Ryan I moved for leave of
Court to file a Third Amended Complaint adding the DuPont Entities, Ball, and Rust-Oleum as
defendants to the Ryan I action. [Ryan I, ECF No. 274].
On October 8, 2024, in a 58-page order, the Court denied the motions to amend because
joining the additional parties at that stage, two years into the litigation, would cause undue delay
and prejudice the proposed defendants. [Joinder Order, ECF No. 360]. In that Order, the Court
noted that the significant passage of time between the filing of Ryan I complaint and the joinder
motion hindered the proposed defendants’ abilities to mount a defense because it is “increasingly
difficult for them to conduct reliable, independent testing . . . or to determining if there was any
comingling of their materials with materials from other sources [in MassNatural].” [Joinder Order
at 31].
Having been barred from adding the DuPont Entities, Ball, and Rust-Oleum to Ryan I by
amending their complaint, on February 23, 2025, Plaintiffs decided to file this entirely separate
lawsuit against those same entities, as well as the NEFCO Defendants, on the eve of the tolling of
the statute of limitations for their claims. See Ryan v. EIDP, INC., No. 4:25-cv-40026-MRG, ECF
No. 1 (“Ryan II”). After hearing arguments from all parties, the Court consolidated Ryan I and
Ryan II for purposes of case management. [Ryan I, ECF No. 423]. Plaintiffs filed their Amended
Complaint in this action on April 22, 2025. [Ryan II, ECF No. 16]. Rust-Oleum filed its motion to
dismiss on June 30, 2025. [Ryan I, ECF No. 433]. Plaintiffs opposed the motion on August 11,
2025. [Ryan I, ECF No. 483]. Rust-Oleum filed a reply to Plaintiffs opposition on September 3,
2025. [ECF No. 488].
III. 	LEGAL STANDARD
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On a motion to dismiss for failure to state a claim upon which relief can be granted pursuant
to Rule 12(b)(6), the court “must assume the truth of all well-plead[ed] facts and give the plaintiff
the benefit of all reasonable inferences therefrom.” Ruiz v. Bally Total Fitness Holding Corp., 496
F.3d 1, 5 (1st Cir. 2007) (citing Rogan v. Menino, 175 F.3d 75, 77 (1st Cir. 1999)). To survive a
motion to dismiss, the complaint must state a claim that is plausible on its face. Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). In other words, the “[f]actual allegations must be enough to
raise a right to relief above the speculative level, . . . on the assumption that all the allegations in
the complaint are true (even if doubtful in fact).” Id. at 555 (citations omitted).
“In resolving a motion to dismiss, a court should employ a two-pronged approach.” Ocasio-
Hernandez v. Fortuño-Burset, 640 F.3d 1, 12 (1st Cir. 2011). “It should begin by identifying and
disregarding statements in the complaint that merely offer ‘legal conclusion[s] couched as ... fact[
]’ or ‘[t]hreadbare recitals of the elements of a cause of action.’” Id. (alterations in original)
(quoting Ashcroft v. Iqbal, 566 U.S. 662, 678 (2009). “A plaintiff is not entitled to ‘proceed
perforce’ by virtue of allegations that merely parrot the elements of the cause of action.” Ocasio-
Hernandez, 640 F.3d at 12 (citations omitted). Still, Plaintiffs’ burden is relatively low as “[a] court
may not disregard properly pled factual allegations even if actual proof of those facts is
improbable. . . . Rather, the relevant inquiry focuses on the reasonableness of the inference of
liability that the plaintiff is asking the court to draw.” Afrasiabi v. Massachusetts, 272 F. Supp. 3d
256, 260 (D. Mass. 2017) (citing Ocasio-Hernandez, 640 F.3d at 13).
On a Rule 12(b)(6) motion, the court “can consider (a) implications from documents
attached to or fairly incorporated into the counter complaint, (b) facts susceptible to judicial notice,
and 	(c) 	concessions 	in 	[the 	complainant's] 	response 	to 	the motion to dismiss.” Schatz 	v.
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Republican State Leadership Comm., 669 F.3d 50, 55 (1st Cir. 2012) (quoting Arturet-Velez v. R.J.
Reynolds Tobacco Co., 429 F.3d 10, 13 n.2 (1st Cir. 2005) (internal quotations omitted)).
IV. 	DISCUSSION
As discussed below, the Court finds that Plaintiffs have failed to state a claim against Rust-
Oleum because their core allegation that Rust-Oleum sent PFAS-contaminated waste to the
MassNatural facility does not meet the plausibility threshold in light of uncontroverted – and
therefore, conceded – test results of Rust-Oleum’s Red Mud that showed either no PFAS6
compounds present or a well-below limit PFAS compound detection. There are multiple test
results, dating back to March 2022, all showing Rust-Oleum’s Red Mud does not contain PFAS or
contains only minor, permissible levels of PFAS. Rust-Oleum presented these results squarely in
its motion to dismiss and cited to the EEA Record document repository for the MassDEP response
to the MassNatural release. These results are a matter of public record, and the Court takes judicial
notice of them. See Watterson v. Page, 987 F.2d 1, 3 (1st Cir. 1993) (“courts have made narrow
exceptions for documents the authenticity of which are not disputed by the parties; [and] for
official public records[]”).
Further, Plaintiffs completely ignore Rust-Oleum’s test results and do not oppose the
assertion that the results showed the materials that Rust-Oleum sent to MassNatural from its
Attleboro facility do not contain PFAS or contained only minor, permissible levels of PFAS. As
Plaintiffs have failed to contest Rust-Oleum’s test results or otherwise respond in any way to Rust-
Oleum’s argument that its test results refute the core allegations of Plaintiffs’ case, the negative
test results and accompanying argument are deemed conceded. See Sigma-Aldrich Corp. v.
Stonebrook, No. 23-cv-10140-DJC, 2025 WL 1927623, at *7 (D. Mass. July 12, 2025) (citing
Uranga v. U.S. Citizenship & Immigr. Servs., 490 F. Supp. 3d 86, 109 (D.D.C. 2020) (explaining
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that “when a plaintiff files an opposition to a motion to dismiss addressing only certain arguments
raised by the defendant, a court may treat those arguments that the plaintiff failed to address as
conceded”); Mahoney v. Found. Med., Inc., 342 F. Supp. 3d 206, 217 (D. Mass. 2018) (deeming a
claim not addressed in an opposition to a motion to dismiss waived); Perkins v. City of Attleboro,
969 F.Supp.2d 158, 177 (D. Mass. 2013) (same).
Additionally, Plaintiffs’ existing allegations are insufficient to state a claim. In the
Amended Complaint, Plaintiffs cite to the Tighe & Bond Report test results regarding composting
piles containing Rust-Oleum Red Mud, but in each sample, Rust-Oleum’s Red Mud was mixed
with other waste products. [T&B Report at Table 4A]. Even the Tighe & Bond Report
acknowledged the real potential for cross-contamination. [Id. at 7]. As stated above, Plaintiffs
included numerous allegations about different Rust-Oleum product lines that may contain PFAS;
however, absent from the Amended Complaint is any assertion that Rust-Oleum manufactured
these products at its Attleboro facility. Plaintiffs do not allege any other source for Rust-Oleum’s
Red Mud that the company sent to MassNatural. MassDEP did not cite any other Rust-Oleum
facility as a potential source of materials sent to MassNatural. The failure to link generalized
allegations about cherry-picked products to the actual and only relevant Rust-Oleum operation is
fatal to Plaintiff’s claims.
The Court next analyzes how the deficiencies of the Amended Complaint explained above
prevent Plaintiffs from stating a claim upon which relief can be granted.
A. Negligence
To state a claim for negligence under Massachusetts law, a plaintiff must plausibly allege
that the defendant owed a duty of reasonable care, breached that duty, and that the breach caused
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the plaintiff’s alleged injuries. Brown v. United States, 557 F.3d 1, 3 (1st Cir. 2009). The dispositive
element in this motion is causation. Under Massachusetts law, causation contains two components:
factual causation and proximate causation. See Staelens v. Dobert, 318 F. 3d 77, 79 (1st Cir. 2003).
The Supreme Judicial Court clarified in Doull v. Foster that factual causation ordinarily requires
the plaintiff to plausibly allege that the harm would not have occurred “but for” the defendant’s
conduct. Doull v. Foster, 163 N.E.3d 976, 983 (Mass. 2021). In toxic tort cases, the “substantial
factor” may be used to address the difficulty of isolating particular exposures, but plaintiffs must
still allege that the defendant “exposed the plaintiffs to the toxic substance.” Id. at 985.
To show that Rust-Oleum was a substantial factor in contributing to the release of PFAS at
MassNatural, Plaintiffs must plausibly allege that Rust-Oleum’s waste contained PFAS. Where
Plaintiffs cannot plausibly allege the threshold fact, their negligence claim fails at the causation
element as a matter of law. Here, the Amended Complaint identifies only commingled stockpiles,
which Tighe & Bond acknowledged were subject to cross-contamination due to MassNatural’s
handling practices. [T&B Report at 7]. All piles sampled by Tight & Bond that contained Rust-
Oleum materials also contained materials from Ball Corp or other sources, some of which are
known to contain PFAS. Rust-Oleum’s own testing results, which Plaintiff did not contest,
undercut any inference that PFAS detected in the mixed piles originated from Rust-Oleum. To the
contrary, the judicially noticeable testing Rust-Oleum submitted, which includes independent
laboratory analyses from March 2022, August 2023, October 2023, and March 2024, consistently
found no detectable PFAS or only background-level artifacts not attributable to Rust-Oleum’s
waste stream.
Having failed to address Rust-Oleum’s negative results, Plaintiffs’ claim against Rust-
Oleum rests solely on the inference that because PFAS were detected in the commingled piles at
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MassNatural, any defendant who disposed of any material at MassNatural is responsible. Courts
in this circuit consistently reject claims that rest on non-specific, group-pleaded theories of
exposure. See Barnstable Cnty. v. 3M Co., No. CV 17-40002, 2017 WL 6452245, at *11 (D. Mass.
Dec. 18, 2017) (dismissing PFAS claims where complaint failed to allege how “each defendant”
contributed to the contamination at issue); Higgins v. Huhtamaki, Inc., No. 1:21-CV-00369-NT,
2022 WL 2274876, at *4 (D. Me. June 23, 2022) (plaintiffs must plead “sufficient facts to make a
plausible case that they were exposed to waste from each of the Defendants”). Here, Plaintiffs offer
only the existence of contamination in a mixed environment, without factual allegations showing
that this Defendant’s material contained the contaminant or contributed to the release. Accordingly,
the causation element is not plausibly pleaded.
Because Plaintiffs have not plausibly alleged either factual or proximate causation, they
fail to state a negligence claim against Rust-Oleum. The Court therefore need not reach duty or
breach, and, accordingly, GRANTS Rust Oleum’s motion to dismiss Plaintiffs’ negligence claim
under Count VIII.
B. Medical Monitoring
To sustain a medical monitoring claim, a plaintiff must prove the following:
“(1) the defendant’s negligence (2) caused (3) the plaintiff to become exposed to a
hazardous substance that produced, at least, subcellular changes that substantially
increased the risk of serious disease, illness, or injury (4) for which an effective
medical test for reliable early detection exists, (5) and early detection, combined
with prompt and effective treatment, will significantly decrease the risk of death or
the severity of the disease, illness or injury, and (6) such diagnostic medical
examinations are reasonably (and periodically) necessary, conformably with the
standard of care, and (7) the present value of the reasonable cost of such tests and
care, as of the date of the filing of the complaint.”
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Donovan v. Phillip Morris USA, Inc., 914 N.E. 2d 891, 902 (Mass. 2009) (citing Sullivan v. Old
Colony St. Ry., 83 N.E. 1091, 1092 (Mass. 1908)). A defendant’s negligence is a prerequisite to
medical monitoring liability. Id. Because Plaintiffs have failed to state a viable negligence claim
against Rust-Oleum, their medical-monitoring claim necessarily fails as well. Accordingly, the
Court GRANTS Rust Oleum’s motion to dismiss Plaintiffs’ medical monitoring claim under
Count VII.
C. Private nuisance
Private nuisance claims are actionable “when a property owner creates, permits, or
maintains a condition or activity on [its] property that causes a substantial and unreasonable
interference with the use and enjoyment of the property of another.” Taygeta Corp. v. Varian
Assocs., 763 N.E.2d 1053, 1064 (Mass. 2002) (citations omitted). Because Plaintiffs have not
plausibly alleged that Rust-Oleum’s waste sent to MassNatural contained PFAS or otherwise
contributed to the alleged contamination at MassNatural, they cannot establish that Rust-Oleum
created or maintained a condition that caused a “substantial and unreasonable interference” with
their property. Id. Absent a plausible causal connection between Rust-Oleum’s conduct and any
interference with Plaintiffs’ property, the Court GRANTS Rust-Oleum’s motion to dismiss
Plaintiff’s private nuisance claim under Count IX.
D. Public nuisance
In Massachusetts, a claim for public nuisance arises when the defendant causes a
“significant interference with the public health, the public safety, the public peace, the public
comfort or the public convenience,” Town of Westport v. Monsanto Co., 14-cv-12041-DJC, 2015
WL 1321466, at *2 (D. Mass. Mar. 24, 2015), “by directly encroaching on public property or by
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causing common injury.” Sullivan v. Chief Just. for Admin. & Mgmt. of Trial Ct, 858 N.E.2d 699,
715 (Mass. 2006) (quoting Connerty v. Metropolitan Dist. Comm'n, 495 N.E.2d 840 , 845 (Mass.
1986)). Public nuisance liability may be based on negligent conduct, among other theories.
Connerty, 495 N.E.2d at 846 (citation omitted). To sustain a public nuisance action, a plaintiff must
show the nuisance has caused “some special injury of a direct and substantial character other than
that which the general public shares.” Id. at 645 (citing Stop & Shop Cos. v. Fisher, 444 N.E.2d
368, 372 (Mass. 1983).
Although control over the nuisance is not a prerequisite for liability, a defendant may be
held liable only where its own conduct caused or participated to a substantial extent in the activity
that created the alleged nuisance. Massachusetts v. Pace, 616 F. Supp. 815, 821 (D. Mass. 1985)
(quoting Restatement (Second) of Torts § 834). Accordingly, a public nuisance claim requires a
plausible causal connection between the defendant’s conduct and the alleged interference with a
plaintiff’s individualized injury.
The Court finds Plaintiffs have not plausibly alleged that Rust-Oleum caused or
substantially participated in the activity that allegedly interfered with a public right, causing
Plaintiffs’ injuries. Plaintiffs’ public nuisance claim against Rust-Oleum rests on the premise that
PFAS contamination at the MassNatural site poses a threat to public health, but Plaintiffs do not
allege non-speculative facts showing that Rust-Oleum introduced PFAS into the environment.
And, as stated, Plaintiffs failed to contest Rust-Oleum’s test results, which contradict Plaintiff’s
assertion that its waste contained PFAS. Plaintiffs cannot plausibly allege that Rust-Oleum’s
conduct caused or substantially participated in the nuisance-causing activity. Accordingly, the
Court GRANTS Rust-Oleum’s motion to dismiss Plaintiffs’ public nuisance claim under Count
X.
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E. Willful and Wanton Conduct
Willful or wanton conduct requires intentional conduct, by act or omission, involving a
high degree of likelihood that substantial harm will result to another. Commonwealth v. Catalina,
556 N.E.2d 973, 979 (Mass. 1990) (citation omitted). Such conduct “involves a degree of risk and
a voluntary taking of that risk so marked that, compared to negligence, there is not just a difference
in degree but also a difference in kind.” Sandler v. Commonwealth, 644 N.E.2d 641, 644 (Mass.
1995) (citing Commonwealth v. Welansky, 55 N.E.2d 902, 910 (Mass. 1944)). The facts known,
or that should be known, to the actor must support a high probability of substantial harm; merely
creating some chance of harm is insufficient. Sarro v. Philip Morris USA Inc., 857 F. Supp. 2d 182,
189 (D. Mass. 2012).
Plaintiffs’ willful and wanton conduct claim fails because they do not plausibly allege that
Rust-Oleum engaged in intentional conduct involving a high probability of substantial harm. The
claim is premised on the assertion that Rust-Oleum knowingly disposed of PFAS-containing
materials at the MassNatural site. But, as discussed above, Plaintiffs do not plausibly allege that
Rust-Oleum’s waste contained PFAS at all. Therefore, Plaintiffs cannot establish that Rust-Oleum
intentionally engaged in risk-laden conduct required to state a claim for willful misconduct.
Accordingly, the Court GRANTS Rust-Oleum’s motion to dismiss Plaintiffs’ claim under Count
XI.
F. 	Chapter 21E § 5
Chapter 21E § 5(a) imposes strict liability on enumerated classes of persons liable for
release of hazardous materials. Mass. Gen. Laws ch. 21E, § 5(a). Plaintiffs allege Rust-Oleum is a
liable party as an arranger or transporter under Chapter 21E § 5(a)(3)-(4). [Am. Compl. ¶ 407].
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Section 5(a)(3) applies to a person who “arranged for the transport, disposal, storage, or treatment
of hazardous material to or in a site,” and § 5(a)(4) applies to a person who “transported any
hazardous material to transport, disposal, storage, or treatment vessel sites.” Mass. Gen. Laws ch.
21E, § 5. In both provisions, the operative conduct – arranging for disposal or transport, or
transporting hazardous material to a selected site – is expressly tied to the handling of hazardous
material itself, not to the mere presence of contamination at the site or the defendant’s generalized
association with it. To fall within § 5(a)(3) or (4), the defendant must have arranged for or
transported material that was hazardous at the time of disposal or transport. See Mass. Gen. Laws
ch. 21E § 5. Where the material handled by the defendant is not plausibly alleged to contain the
hazardous substance giving rise to liability—here, PFAS—the statutory predicates for liability
under § 5(a)(3) and (4) are not satisfied.
Because Plaintiffs 	have 	failed 	to 	plausibly 	allege Rust-Oleum’s 	materials 	sent 	to
MassNatural contained hazardous PFAS, Rust-Oleum cannot be liable under Chapter 21E §
5(a)(3)-(4). The statutory basis for liability rests on the presence and release of hazardous
materials, here, PFAS compounds. But Plaintiffs do not allege non-speculative facts showing that
the specific waste Rust-Oleum disposed of contained PFAS, and Plaintiffs do not contest Rust-
Oleum’s results disclaiming PFAS in its products sent to MassNatural. Accordingly, the Court
GRANTS Rust-Oleum’s motion to dismiss Plaintiff’s claims under Count XII.
G. Standing
The heart of this case concerns PFAS contamination, but Plaintiffs have failed to pass the
plausibility threshold in showing that Rust-Oleum’s products were truly a source of the PFAS that
injured them. Accordingly, Plaintiffs encounter yet another obstacle: standing. “[A] plaintiff must
have standing to bring each and every claim [they] assert[].” Katz v. Pershing, LLC, 672 F.3d 64,
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71 (1st Cir. 2012) (citing Pagan v. Calderon, 448 F.3d 16, 26 (1st Cir. 2006). To satisfy the personal
stake requirement for standing, “a plaintiff must establish each part of a familiar triad: injury,
causation, and redressability.” Id., 672 F.3d at 71 (citing Lujan v. Defs of Wildlife, 504 U.S. 555,
560–61 (1992)). The element of causation requires the plaintiff to show a “sufficiently direct causal
connection,” between the injury and the conduct complained of such that the injury is “fairly . . .
trace[able] to the challenged action of the defendant.” Id. at 71, 77 (citing Lujan, 504 U.S. at 560).
Rust-Oleum’s test results, combined with Plaintiffs’ failure to allege production of PFAS-
containing products at Rust-Oleum’s Attleboro facility, break the causal chain that could show
Plaintiff’s injuries are fairly traceable to Rust-Oleum. As a result, Plaintiffs lack standing for their
claims against Rust-Oleum, which deprives this Court of subject-matter jurisdiction. United
Seniors Ass'n, Inc. v. Philip Morris USA, 500 F.3d 19, 26 (1st Cir. 2007). Lacking subject-matter
jurisdiction, the Court is obligated to dismiss the action. Fed. R. Civ. P. 12(h)(3)
A dismissal for lack of subject matter jurisdiction is typically without prejudice; however,
as detailed above, this Court also finds on the merits that Plaintiffs have failed to state a claim
against Rust-Oleum. Such a finding warrants dismissal with prejudice. See Giangrande v. Shearson
Lehman/E.F. Hutton, 803 F. Supp. 464, 474 n.23 (D. Mass. 1992) (“Dismissal for want of subject
matter jurisdiction, of course, is without prejudice on the merits”); Adames v. Fagundo, 198 F.
App'x 20, 21 (1st Cir. 2006) (A dismissal for failure to state a claim “is with prejudice unless the
order of dismissal explicitly says otherwise.”). Accordingly, Rust-Oleum’s motion to dismiss is
granted in full, with prejudice.
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V. 	CONCLUSION
For the reasons stated above, Rust-Oleum’s motion to dismiss, ECF No. 433, is GRANTED.
SO ORDERED.
Dated: December 30, 2025
/s/ Margaret R. Guzman
Margaret R. Guzman
United States District Judge
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