PFAS Advisory Sign, January 4, 2023. PC: Fox 11 Online
MARINETTE, WI (WTAQ-WLUK) – With the Wisconsin Supreme Court agreeing to hear a lawsuit about how much power state regulators have to force polluters to cleanup PFAS-contaminated sites, the Dept. of Justice is asking its lawsuit against Tyco Fire Products to be put on hold, pending the outcome of that case.
In March 2022, the state Dept. of Justice filed the civil lawsuit, alleging Johnson Controls and Tyco Fire Products violated the state’s hazardous substance spills law. According to the complaint, the companies failed to notify the DNR of a PFAS discharge. It also states they failed to clean up contamination at and around the Fire Technology Center in Marinette. Tyco has denied the allegations. Trial is scheduled to start March 3 before a Brown County judge.
However, a ruling by the state Court of Appeals in March all but eliminates the Department of Natural Resources’ authority to unilaterally mandate polluters and landowners report and clean up PFAS contamination in groundwater. If the decision stands, the DNR would have to wait for legislators to impose groundwater limits on PFAS through state law or an administrative rule. Both approaches can take years. Environmental advocates also fear that the ruling could slow the DNR’s response to other emerging forms of pollution.
The state asked the Wisconsin Supreme Court to review that March decision. In the last week, the high court agreed to hear the case, prompting a request Monday by Dept. of Justice to delay the case involving Tyco.
“The State’s position is that it maintains authority to hold Tyco liable for its notification and remediation obligations under the Spills Law, notwithstanding the Court of Appeals’ decision in the WMC case and Tyco’s flawed theory of non-liability in this matter. However, if this Court is inclined to agree with Tyco’s interpretation of the Court of Appeals’ decision, the State believes the Court should stay all further proceedings in this case—including a decision on summary judgment and the current trial schedule—pending a decision from the Wisconsin Supreme Court. This would avoid the unnecessary expenditure of judicial resources and resources necessary to brief, hear, and try a case prior to a Supreme Court decision that could affect this Court’s decision,” wrote Asst. Attorney General Tressie Kemp.
Tyco has not replied to the motion, according to court records. A motion hearing is scheduled for Oct. 25 before Judge Tammy Jo Hock.
Oral arguments before the Supreme Court have not been scheduled. It will be months before a ruling is issued.
PFAS are man-made chemicals found in a number of products, including fire-fighting foam. According to the U.S. Centers for Disease Control and Prevention, PFAS can increase cancer risk and can affect growth, learning and women’s fertility.
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