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Wisconsin AG sues Johnson Controls over Marinette PFAS contamination

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The state of Wisconsin is suing a Marinette manufacturer and an affiliated company over toxic “forever chemicals” that have contaminated waters in the northeastern Wisconsin community.

Attorney General Josh Kaul filed a civil lawsuit Monday against Johnson Controls and Tyco Fire Products for failing to notify the Department of Natural Resources that they had discharged firefighting foam containing compounds known as PFAS and for failing to clean it up.

Kaul is asking a Marinette County court to hold Johnson Controls and Tyco responsible for the state’s costs related to the contamination and to force the company to complete an investigation and cleanup near their Fire Technology Center.

“When companies contaminate our water, they must fully remediate the harm they’ve caused,” Kaul said in a statement announcing the lawsuit. “Every Wisconsinite should be able to rely on the safety of the water they drink.”

Kaul (copy)


A spokesperson for Johnson Controls, which merged with Tyco in 2016, said the company would “vigorously” contest the lawsuit while continuing cleanup efforts that include a groundwater treatment system that is expected to be completed this summer.

“We stand behind the years of work and considerable resources we have invested in investigating and remediating PFAS related to historic operations,” said Kathleen Cantillon, director of environmental communications. “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 several years ago to all households in the town of Peshtigo whose private wells were potentially impacted by PFAS from the FTC.”

Marinette and Peshtigo are among the Wisconsin communities most affected by PFAS, which has also contaminated groundwater in La Crosse, Eau Claire and Wausau and has triggered consumption warnings for fish from Madison’s lakes.

According to the complaint, Tyco and its predecessor, Ansul, have been testing foam since 1962, contaminating the air, soil, surface water and groundwater around the plant with the synthetic compounds, which have been linked to cancer and other illnesses.

Between 2013 and 2016 Tyco found high levels of PFAS in soil and groundwater around the site but did not report the results to the DNR until 2017, according to the complaint.

The complaint alleges the company has yet to complete a site investigation as required by state law and has taken only “limited actions” to remediate the contamination.

Aqueous firefighting foam

Damage Controlman 1st Class Sharese Grey tests firefighting foam from a sprinkler on the deck of the aircraft carrier USS Ronald Reagan during sea exercises in 2018. Wisconsin Attorney General Josh Kaul is suing a Marinette manufacturer for failing to report and cleanup toxic compounds known as PFAS that were used to make the foam.

Since 2017, Johnson Controls has sampled 172 private wells, of which 22 were contaminated with two PFAS compounds at concentrations the Environmental Protection Agency says are unsafe. Another 38 had levels above the Wisconsin Department of Health Services’ recommended drinking water standards.

As part of a separate class-action lawsuit, Johnson Controls last year agreed to pay $17.5 million to Peshtigo-area residents whose water was contaminated with PFAS, and the company says it has set aside $140 million to cover cleanup costs.

Kaul acknowledged Johnson Controls has conducted a limited investigation and is working with residents and the DNR.

“They have taken positive steps,” he said. “But we have reached a point in this process right now where we believe the path forward is through litigation.”

The DNR says it will continue pushing Johnson Controls and Tyco to complete a site investigation and cleanup as well as to provide bottled water to residents with contaminated wells.

The suit comes as the state’s authority to require PFAS cleanup is being challenged by the state’s largest business lobby.

State law gives the DNR authority to regulate the discharge of hazardous substances, which the law defines as anything “that can cause harm to human health and safety, or the environment, because of where it is spilled, the amount spilled, its toxicity or its concentration.”

There is no definitive list of hazardous substances, which can include toxic chemicals as well manure, corn, or even milk and beer, which in high concentrations can foul public waters and kill aquatic life.

Wisconsin Manufacturers and Commerce and an Oconomowoc dry cleaner claim the DNR is subverting the law by requiring polluters to clean up spills without first going through a lengthy rule-making process that is subject to legislative approval for each individual substance.

A Waukesha County judge is expected to issue a ruling on that case next month.

The DNR policy board last month approved the state’s first PFAS standards for drinking and surface water but rejected groundwater regulations. The board’s approved drinking water standards would allow concentrations of two compounds — PFOA and PFOS — at concentrations 3.5 times higher than what the Department of Health Services says is safe.

The regulations are subject to approval by the Legislature.


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Related to this story

A judge was set to rule Tuesday on whether Wisconsin regulators can require businesses to clean up PFAS contamination without established limits on the chemicals, a decision that will define how far the state can go to control emerging soil contaminants without explicit laws or rules addressing them.

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