By Casey Smith
Indiana Capital Chronicle

INDIANA — A new lawsuit announced by Indiana Attorney General Todd Rokita on Wednesday, April 11, targets nearly two dozen companies operating in the state that manufacture and sell products containing dangerous “forever chemicals.”

The legal challenge, filed in Shelby County Superior Court, alleges that the 22 companies have — for “many years,” in some cases — manufactured a category of water-resistant substances known as “per- and polyfluoralkyl substances,” or PFAS. Among them are Carrier, DuPont and 3M.

The toxic chemicals do not degrade easily, and once used, they remain in the environment and can contaminate air, drinking water, groundwater and soil. They are difficult and costly to remove.

The chemicals are used to make a variety of nonstick, waterproof and stain-resistant products like cookware, cosmetics, carpets and clothing. Among other things, exposure to the chemicals has been linked to kidney cancer, problems with the immune system and developmental issues in children.

The defendants “knew or should have known about the risks associated with PFAS-containing products,” the lawsuit claims. But instead, the companies marketed, promoted, sold or distributed contaminated materials to Hoosiers “while concealing the dangers” and “affirmatively distorting and/or suppressing their knowledge and the scientific evidence linking their products to the unreasonable dangers those products pose.”

Rokita said during a news conference on Wednesday the goal is not to ban PFAS-related products from being used in Indiana. Rather, his office is going after companies that used “forever chemicals” at “toxic levels” and sought to hide internal research highlighting their products’ harm to consumers.

The lawsuit contends the companies violated multiple state and federal environmental regulations, in addition to other laws, such as the Indiana Deceptive Consumer Sales Act and the Indiana Product Liability Act.

Not included or affected by the lawsuit are farmers or landowners, however. Rokita maintained such individuals will not be liable “for any contamination on their property.” The court filing also does not involve manufacturers of “products, appliances or utensils that may have had PFAS in them,” the attorney general said: “This lawsuit concerns the manufacturers of the chemicals themselves.”

The announcement came on the same day the U.S. Environmental Protection Agency finalized new drinking water standards to limit exposure to PFAS. It’s the first time the agency has set enforceable limits on the chemicals in drinking water.

Raising alarms about PFAS

The EPA defines PFAS as “widely used, long lasting chemicals, components of which break down very slowly over time” — to the tune of thousands of years.

During production and use, PFAS can migrate into the soil, water and air. Because of their widespread presence, many PFAS are found globally in the blood of people and animals. The chemicals are also present at low levels in a variety of food and consumer products.

But numerous scientific studies have shown that exposure to some PFAS is dangerous to human and animal health, causing reproductive issues, immune system suppression, organ damage and endocrine disruption.

Rokita’s lawsuit cites numerous areas across Indiana that have  been contaminated by “insidious and water resistant” PFAS chemicals.

He said the lawsuit was intentionally filed in Shelby County, given a 2022 site investigation at the Shelbyville Army Aviation Support Facility. The investigation found that PFAS contamination was likely caused by a product manufactured by the defendants called aqueous film-forming foam, or AFFF, used for firefighting training and emergency response.

The legal filing notes, too, that elsewhere in the state, Grissom Air Reserve Base and Fort Benjamin Harrison are likewise contaminated as a result of AFFF, with elevated levels of PFAS detected in soil, sediment, surface water and groundwater near fire training areas, fire stations and hangars.

Additionally, the lawsuit points to testing conducted by the Indiana Department of Environmental Management  between March 2021 and December 2023, which revealed levels of PFAS above the EPA’s health advisory levels in public drinking water in 24 counties, including: Bartholomew, Carroll, Cass, Clark, Crawford, Decatur, Elkhart, Floyd, Gibson, Harrison, Jackson, Jefferson, Johnson, Lake, Laporte, Madison, Marion, Perry, Posey, Scott, St. Joseph, Sullivan, Vigo and Warrick.

The lawsuit further emphasized that statewide testing of PFAS contamination in groundwater, surface water, sediments, soils, watercourses and various flora and fauna is ongoing.

While the lawsuit does not attribute specific areas of contamination around Indiana to PFAS produced by certain companies named in the lawsuit, Scott Barnhart, head of the attorney general’s consumer protection division, said new evidence could come to light through discovery.

The attorney general’s office is requesting the named companies be held liable “for all PFAS-related costs to investigate, test, clean up and remove, restore, treat and monitor … as may be necessary to provide full relief to address the threat of contamination” in Indiana.

Also requested are damages to be paid to Hoosiers “for the lost use and value, including loss of tax revenue and other economic benefits,” from the state’s natural resources due to the presence of PFAS chemicals.

Still, the lawsuit is likely to take years to play out, Rokita said, and could be moved to federal court and become part of the many other lawsuits ongoing around the country regarding PFAS issues.

“But if you believe you’ve been harmed by PFAS chemicals, you shouldn’t rely on this lawsuit,” Rokita said, directing individual Hoosiers to instead seek private counsel.

An embattled legislative landscape

Wednesday’s new EPA rule restricts six PFAS chemicals in the water, requiring water systems to be monitored for the chemicals and removed if they’re found above allowable levels.

Every municipal water system in the country must test for, and limit, the presence of the specific PFAS chemicals within five years, according to the new guidelines.

Regulations will specifically limit the two most common PFAS chemicals — PFOA and PFOS — to four parts per trillion in drinking water, close to the lowest level at which the chemicals can be detected. The EPA also set a non-enforceable goal for those two compounds at zero, reflecting that “there is no level of exposure to these contaminants without risk of health impacts,” according to an EPA press release.

Even so, state lawmakers made multiple efforts during the 2024 session to change Indiana’s definition of toxic PFAS chemicals — and exempt those which Hoosier manufacturers want to keep using.

Those attempts were ultimately rejected, however, with Senate Republicans calling the move too “proactive.”

Proponents of the PFAS proposal, which included many in the chemical manufacturing industry, said the definition change is needed to preserve uses of PFAS in “essential” items like lithium batteries, laptop computers, semiconductors, pacemakers and defibrillators.

Had the definition change been enacted in Indiana, chemicals deemed harmful in other states would no longer carry the same designation in the Hoosier state. Critics said the legislation could allow products that contain the toxic chemicals to be “wrongly” labeled as “PFAS-free.”

With the new federal rules in place, PFAS discussions are likely to return at the Statehouse in upcoming sessions.

Rokita did not comment Wednesday on possible legislation or the impacts that could have on the pending lawsuit.