Wisconsin Attorney General Josh Kaul announced a lawsuit this week against Johnson Controls and Tyco Fire Products. The lawsuit alleges the companies violated the state’s spill law by failing to notify Wisconsin's Department of Natural Resources about PFAS contamination.
PFAS, also known as forever chemicals, can contaminate both public and private wells and have lasting health impacts.
READ: As PFAS cases persist, Wisconsin takes baby steps toward regulating the forever chemicals
The lawsuit alleges PFAS from firefighting foam at Tyco’s training facility caused a plume of contamination in groundwater and streams near the bay of Green Bay, impacting private wells in the adjacent communities of Peshtigo and Marinette.
The lawsuit claims the companies delayed reporting the contamination and have done little to clean it up.
Johnson Controls issued a statement in response to the lawsuit: "Although Tyco does not comment on pending litigation, we stand behind the years of work and considerable resources we have invested in investigating and remediating PFAS related to historic operations at our Fire Technology Center (FTC) in Marinette. We continue to build on the progress we have made to address these issues in our community, including offering bottled water and in-home filtration systems to all households in the Town of Peshtigo whose private wells were potentially impacted by PFAS from the FTC. Construction of a state-of-the-art Groundwater Extraction & Treatment System (GETS), which will treat at least 95% of the PFAS in groundwater coming from the FTC, is also nearly complete and scheduled to begin operations by summer 2022. Tyco is also completing the removal of soils with aggregated PFAS from the FTC in the coming months."
Tony Wilkin Gibart, the executive director of Midwest Environmental Advocates, calls the measures temporary bandaids that are just the beginning of a solution.
“When you talk to community members they know that these highly toxic chemicals are going to be in their aquifers, they’re going to be in their environment for generations,” he says.
READ: PFAS Concerns Remain High In Marinette
Wilkin Gibart says while Tyco has taken initial steps, the lawsuit alleges the company has not complied with Wisconsin’s spill law that has existed over 40 years. “The spill law is at the heart of this lawsuit and it stands for the very simple proposition that if you release a hazardous substance into the environment that you are responsible for reporting that, for investigating it and for cleaning it up."
Wilkin Gibart says the law is fundamental to Wisconsin’s environmental and public health.
In the case of the PFAS contamination from the Fire Technology Center in Marinette, he says, “Tyco Johnson Controls allegedly did not report it, at least they were delayed by three or more years in reporting the extent of the contamination; they haven’t fully investigated it and because they haven’t fully investigated the extent of the contamination, remediation efforts are stalled.”
The state department of justice lawsuit comes at a time of heightened PFAS policy debate in Wisconsin. The Natural Resources Board recently OK'd limits for several of the most studied PFAS in drinking and surface water, but did not move groundwater limits forward. The state Legislature must review standards before rules can be finalized.
READ: Wisconsin Natural Resources Board says no to regulating PFAS in groundwater
And another PFAS-related lawsuit is pending in Waukesha Circuit Court. It alleges the DNR is enforcing cleanup standards under the spill law without going through the rulemaking process.
"Wisconsin Manufacturers and Commerce, one of the most power lobbying groups in the state, ... is alleging that DNR and the state do not have authority under the spills law to require that polluters like Tyco Johnson Controls report PFAS pollution, investigate it and clean up. And so the situation in Marinette and this lawsuit shows what is at stake and it shows why the spills law is vital to communities that have been victimized by PFAS and other forms of toxic contamination," Wilkin Gibart says.
He notes that the lawsuit announced this week came as a last resort after the DNR exhausted efforts to coordinate with the companies to address PFAS contamination in the Marinette / Peshtigo region.
“I would again just go back to what folks in Marinette were saying in reaction (to announcement of the lawsuit), that they have been fighting and advocating to get accountability from Johnson Controls Tyco for many years and from their perspective, it is absolutely vital and essential that Tyco Johnson Controls be held to account and that, that company fully comply with the state’s environmental laws, and this lawsuit is an effort to bring that about,” he says.
The Wisconsin DNR issued the following statement this week: "While the DOJ pursues this civil action, the DNR will continue its efforts to see that JCI and Tyco perform a complete site investigation and take those response actions necessary to restore the environment and minimize the harmful effects of the PFAS contamination."
The DNR will also continue to supply bottled water to those the agency is currently assisting.
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