State DOJ sues Tyco, Johnson Controls over Marinette-area PFAS contamination

The state Department of Justice (DOJ) filed a lawsuit Monday against the companies involved in the discharge of PFAS-related chemicals in northeast Wisconsin first reported five years ago. 

The suit, filed in Marinette County Circuit Court against Johnson Controls Inc. and Tyco Fire Products, resulted from a Department of Natural Resources (DNR) investigation of PFAS contamination from firefighting foam around the communities of Marinette and Peshtigo that began more than two years ago.

The contamination originated at a fire technology facility in Marinette where Tyco developed and tested firefighting foams containing PFAS chemicals. Nicknamed “forever chemicals” because they persist in the environment, PFAS chemicals contain perfluoroalkyl and polyfluoroalkyl substances and are found in thousands of everyday consumer products.

The Marinette PFAS discharge has produced “a plume of PFAS groundwater contamination at and around” the fire technology center, the lawsuit charges. “Because of Tyco and Johnson Controls’ failure to completely investigate and define the extent of the PFAS contamination, the extent of this plume is not accurately known at this time,” the lawsuit states.

Monday’s lawsuit seeks civil financial penalties and a court order to fully clean up the contamination. It follows an impasse in negotiations between the state and the companies, a spokeswoman for the DOJ said.

“Matters of this nature take considerable time to investigate,” said Gillian Drummond, DOJ’s director of communications. The state, through the DOJ, “has put forth a great deal of effort in attempting to amicably negotiate a resolution that would hold the defendants accountable for their conduct and bring about the full and complete cleanup of the impacted area.” 

While “some progress was made during the negotiations,” Drummond said, “the parties have now reached an impasse and we need to commence this lawsuit.”

In a statement Monday on Tyco’s behalf, Kathleen Cantillon of Johnson Controls said that the company does not comment on pending litigation, but added that “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.”

The statement cited steps the company has taken to address the contamination. Those include providing bottled water and in-home filtration systems to households in the town of Peshtigo with private wells “potentially impacted” by PFAS from the fire technology facility. The Tyco statement said construction of a system to treat 95% of the PFAS in groundwater is to be completed by summer and that it expects to finish removing soils containing PFAS “in the coming months.”

Cantillon said that Tyco “has been managing the remediation in Marinette from the beginning  and continues to do so today.” She said Tyco and Johnson Controls are “in the same family of companies,” but that Johnson Controls “is not a proper party to the lawsuit.”

Tyco found evidence of the chemicals in soil and groundwater on the premises of the facility starting in 2013, but the company did not first publicly report its findings until November 2017.

Starting in 2019, the DNR ramped up the investigation of the Marinette PFAS discharge, holding a series of listening sessions that have continued into the COVID-19 pandemic. 

The lawsuit states that out of 172 private drinking wells in the area that have been tested between December 2017 and early January 2022, 22 contain PFAS chemicals that exceed a federal advisory for drinking water and 38 contain PFAS chemicals that exceed a proposed state groundwater standard from the state Department of Health Services (DHS). Surface waters in the area have shown evidence of PFAS chemicals in concentrations greater than proposed DNR surface water standards for the substances, the lawsuit adds.

The lawsuit states that neither Tyco nor Johnson Controls notified DNR of the PFAS discharges prior to Jan. 16, 2018, in violation of the state’s hazardous chemical spills law. It also states that the companies have failed to adequately remedy the discharges under the spills law.

The spills law itself is the subject of a separate lawsuit in Waukesha County brought by Wisconsin Manufacturers and Commerce (WMC), the state’s largest business lobby. WMC is seeking to block the spills law’s provisions that hold companies responsible for cleaning up pollution they cause. That lawsuit targets the use of the spills law to address pollution from PFAS chemicals. 

Midwest Environmental Advocates, which has filed a friend-of-the-court brief in the WMC lawsuit, released a statement Monday applauding the lawsuit against Johnson Controls and Tyco.

“For over 40 years, the Spills Law has required industries that release toxic chemicals into our environment to report the contamination, investigate it, and clean it up,” the advocacy group stated.  “Tyco/Johnson Controls has failed to abide by these basic legal requirements, and it is high time they be held accountable.”

The DOJ lawsuit “shows why the Spills Law is vital for communities victimized by toxic contamination and why it must be defended against assaults by Wisconsin Manufacturers and Commerce and others,” the statement added.