United States District Court, D. Minnesota
J. Thomson, Esq. and Douglas D. Shaftel, Esq., Kennedy &
Graven Chartered, Minneapolis, MN and Jeffrey Talbert, Esq.,
Preti, Flaherty, Beliveau & Pachios, Chartered, LLP,
Portland, ME on behalf of Plaintiff.
Wildung, Esq., Faegre Baker Daniels LLP, Minneapolis, MN and
William A. Brewer III, Esq., Michael J. Collins, Esq. and
Stephanie L. Gase, Esq., Brewer, Attorneys & Counselors,
Dallas, TX on behalf of Defendant.
MEMORANDUM OPINION AND ORDER
MONTGOMERY U.S. DISTRICT JUDGE
November 22, 2016, the undersigned United States District
Judge heard oral argument on Defendant 3M Company's
(“3M”) Motion to Dismiss [Docket No. 25].
Plaintiff City of Lake Elmo (“Lake Elmo”) is
suing 3M to recover costs incurred in response to the
discovery of perflourochemicals in its drinking water supply.
For the reasons set forth below, 3M's Motion is granted
in part and denied in part.
Elmo is a Minnesota municipal corporation with offices in
Lake Elmo, Minnesota. Compl. [Docket No. 1] ¶ 1. 3M is a
Delaware corporation with its principal place of business in
Maplewood, Minnesota. Id. ¶ 2.
3M's Production and Disposal of
in approximately 1950, 3M manufactured a family of chemical
compounds known as perfluorochemicals (“PFCs”)
for use in its products, including stain repellants, paints,
hydraulic fluids, and other chemical products. Id.
¶¶ 6, 37. 3M also sold PFCs to other companies for
use in their manufacturing processes. Id.
the 1950s, 3M disposed of PFCs and PFC-containing waste at a
facility it owned and operated in Oakdale, Minnesota (the
“Oakdale Facilities”). Id. ¶¶
7, 38-44. During the early 1970s, 3M disposed of PFCs and
PFC-containing waste at the Washington County Landfill (the
“Landfill”) located in Lake Elmo. Id.
¶¶ 7, 45-49.
Environmental Protection Agency (“EPA”) has
issued health advisories for PFCs, warning that drinking
water containing PFCs above certain levels poses human health
risks. Id. ¶ 10. The risks include cancer, high
cholesterol, increased liver enzymes, decreased vaccination
response, thyroid disorders, pregancy-induced hypertension
and preeclampsia, and increased risks to a developing fetus.
Id. ¶¶ 10, 22, 25, 35.
Discovery of PFCs in Lake Elmo's Drinking Water
2004, the Minnesota Pollution Control Agency
(“MPCA”) conducted soil and groundwater
investigations which detected the presence of PFCs at the
Oakdale Facilities and the Landfill. Id. ¶ 61.
The investigations also revealed that the PFCs had leached
from the Oakdale Facilities and the Landfill into the
groundwater aquifers serving as Lake Elmo's drinking
water supply. Id. ¶¶ 9, 61-64, 67-69.
2006, the Minnesota Department of Health (“MDH”)
tested Well #3, in the southern part of Lake Elmo.
Id. ¶¶ 66-67. Well #3 had been partially
built in 2002 in anticipation of future development and then
capped with the intent of finishing construction at a future
time. Id. ¶ 66. The PFC levels in Well #3
exceeded the levels at which the MDH advises that the water
is not safe for human consumption without treatment.
Id. ¶ 68. Between 2006 and 2011, the state
tested over 100 water samples from private and municipal
wells in Lake Elmo that also exceeded those levels.
Id. ¶ 69.
Lake Elmo's Alternative Water Supply System
learning of the PFC contamination in Well #3 and in aquifers
that supply Lake Elmo's drinking water, Lake Elmo
developed a plan for an alternative water supply system.
Id. ¶¶ 70, 73. That plan involved
constructing a new well in the northeast part of Lake Elmo
that would convey water through new trunk lines to the
southern portion of the city. Id. ¶ 73.
Construction on the alternate water supply system is nearly
complete and has cost millions of dollars. Id.
¶ 75. Lake Elmo has also purchased water from the City
of Oakdale through an interconnection point at the south end
of Lake Elmo, expending hundreds of thousands of dollars in
payments and connection fees. Id. ¶ 76.
State Court Action, Tolling Agreement
December 2010, the State of Minnesota (the
“State”) commenced an action against 3M in
Hennepin County District Court alleging that 3M's release
of PFCs into the environment resulted in natural resource
damages (the “State Court Action”). See State
of Minn. v. 3M Co., No. 27-CV-10-28862 (Minn. D. Ct.
2011) (Burke, J.). On January 14, 2011, Lake Elmo filed a
motion to intervene in the State Court Action, alleging
claims for common law and statutory nuisance, treble damages
under Minn. Stat. § 548.05, common law trespass, strict
liability for abnormally dangerous activities, negligent
failure to warn of an ultrahazardous condition, statutory
well contamination under Minn. Stat. § 103I.241,
negligence, and conversion. See Exs. Pl.'s Mem.
Opp'n [Docket No. 33] (“State Court
Documents”) Exs. 4, 5. Lake Elmo's request to
intervene was granted on July 21, 2011. Id. Ex. 9.
October 1, 2013, Lake Elmo voluntarily dismissed its claims
pursuant to Minnesota Rule of Civil Procedure 41.
Id. Ex. 10. Prior to dismissing its claims, Lake
Elmo entered into a tolling agreement with 3M (“Tolling
Agreement”) in which the parties agreed to “toll
the running of any applicable statute of limitations relating
to [Lake Elmo's] Claims through and including August 1,
2016.” Id. Ex. 11 ¶ 1. The Tolling
Agreement states that “[n]othing in this Agreement
shall be deemed to revive any claim that is or may already be
barred as of the date of this tolling agreement.”
Id. ¶ 2.
28, 2016, Lake Elmo filed this action alleging liability
under § 107 of the Comprehensive Environmental Response,
Compensation and Liability Act (“CERCLA”), 42
U.S.C. § 9601, et seq. (Count I), as well as
state law claims for common law and statutory nuisance (Count
II), common law trespass (Count III), statutory well