MARINETTE — Recent documentation from the Wisconsin Department of Natural Resources (DNR) suggests the state agency is looking for a lawsuit to bring the parties involved in the Town of Peshtigo’s water contamination to task for not reporting the situation earlier. 

In a letter from the DNR Secretary’s office dated May 30, the agency stated that it “has referred Johnson Controls International, plc. to the Wisconsin Department of Justice (DOJ) for alleged violations of Ch. 292, Wis. Stats.” 

“The department alleges that Johnson Controls International, plc. failed to report and take actions to minimize the harmful effects of hazardous substance discharges as required by ss. 292.11 (2)(a) and (3), Stats,” the letter reads, and directs the DOJ to review the contamination case details “for potential civil prosecution.” 

Wisconsin state statutes 292.11 (2)(a) and (3) read as follows: “(2) Notice of discharge. (a) A person who possesses or controls a hazardous substance or who causes the discharge of a hazardous substance shall notify the department immediately of any discharge not exempted under sub,” and “(3) Responsibility. A person who possesses or controls a hazardous substance which is discharged or who causes the discharge of a hazardous substance shall take the actions necessary to restore the environment to the extent practicable and minimize the harmful effects from the discharge to the air, lands or waters of this state.” 

The DNR’s allegations stem from the ongoing per- and poly-fluoroalkyl substances (PFAS) contamination in the Town of Peshtigo and surrounding areas. The emerging contaminant family of compounds known as PFAS is a group of substances that can be found in common household products such as stain- and water-repellent fabrics, nonstick products, polishes, waxes, paints, cleaning products and firefighting foams. PFAS in the Marinette County area originates from local fire suppression system manufacturer Tyco Fire Protection Products, which began using the compounds in the 1970s for firefighting foams and sprays, with chemical testing and training at their local testing site in Marinette. The chemicals used seeped into the groundwater, which the company announced in November 2017. 

Tyco and its parent company Johnson Controls have since been conducting an environmental assessment of their facilities and the surrounding areas in cooperation with the DNR regarding the contamination, but Tyco has stated that it knew of the PFAS presence in the groundwater at its testing facility as early as 2013. Fraser Engerman, director of global media relations for Johnson Controls, released a statement from the company Friday addressing the referral. The company is disputing the DNR’s stance that Tyco had a reporting obligation for the discovery of PFAS in 2013. 

“We believed in 2013 that Tyco had no such reporting obligation; we stand by that position today,” the statement reads. “Tyco conducted testing in late 2013 that detected PFAS in the center of our 380-acre property. We did not believe the compounds had left our property or affected drinking water sources. In 2016, further testing revealed the presence of PFAS compounds near the boundary of our property, and we promptly notified the DNR of both these results and the testing from 2013.” 

The statement also references the testing Tyco has done in conjunction with the DNR and the company’s accrued expenses for point of entry treatment (POET) filtration systems, bottled water and plans to connect the Town of Peshtigo’s affected residents to a municipal water system.  

“Safe drinking water is our highest priority,” the statement reads. “We believe we have acted appropriately at each stage based on what we knew at the time.” 

Doug Oitzinger, former mayor of Marinette and member of local citizens’ action group Concerned Friends and Neighbors for Safe Drinking Water (S.O.H2O), said he saw the referral as “good news.” 

“From this standpoint, I think Johnson Controls has been disingenuous when they say ‘the reason we didn’t report it (the contamination) in 2013 is it was just on our property,’” he said Friday. “I feel that this was irresponsible on their part, and the poor folks in the Town of Peshtigo whose wells are contaminated, whose ponds have been contaminated, they waited three years longer to find out, because of it.” 

Oitzinger conceded that if the allegations result in litigation, the case could take a considerable amount of time to be resolved. He pointed to the State of Minnesota’s lawsuit against industrial giant 3M over the release of perfluorinated chemicals (PFCs), later rebranded by the U.S. Environmental Protection Agency (EPA) as PFAS. The state sued 3M in 2010 for $5 billion in punitive damages, but delays strung the case out until a settlement for $850 million was reached in February 2018. 

“If the State of Minnesota is any example, the money they got from 3M is going toward various types of assistance to municipalities,” Oitzinger said. “This is the State of Wisconsin alleging that Johnson Controls did not follow the environmental laws — coming out of that is going to be some kind of penalty. That is independent of any action that individuals who have been harmed could take.” 

Overall, Oitzinger said he was “extremely happy” with the news. 

“This was a long time coming,” he said. 

Calls to the DOJ offices in Madison, Wis., were not immediately returned Friday evening. Full copies of the DNR’s referral can be found at https://dnr.wi.gov/botw/GetActivityDetail.do?detailSeqNo=580694.