A study by the Indiana Department of Environmental Management found high levels of PFAS in the drinking water of 24 counties. (Photo/Pexels.com)
By Marilyn Odendahl
The Indiana Citizen
April 12, 2024
Indiana filed a lawsuit Wednesday against 22 manufacturers of so-called “forever chemicals,” joining a growing list of states, water utilities and other entities suing the chemical makers and, of the cases that have been settled to date, receiving billions in damages.
The lawsuit – State of Indiana v. 3M Company, et al., 73D01-2404-PL-000009 – was announced by Indiana Attorney General Todd Rokita during a news conference in Shelby County. It alleges the chemical makers, including DuPont de Nemours, BASF Corp. and 3M Co., knew of the dangers of toxic per- and polyfluoroalkyl substances (PFAS) but continued to manufacture, market and sell PFAS-containing products.
Rokita pointed to a sampling done by the Indiana Department of Environmental Management, which found PFAS in public drinking water that registered above the federal health advisory levels in 24 Indiana counties. Contamination has also been found at the Shelbyville Army Aviation Support Facility, Grissom Air Reserve Base and Fort Benjamin Harrison.
The lawsuit claims the “toxic and persistent ‘forever chemicals’” have contaminated the state’s air, soil, and water. Consequently, the state wants the defendants to pay all PFAS-related costs to investigate, test, clean up and remove, restore, treat and monitor natural resources at the sites throughout Indiana.
“For decades, companies have deceived regular, everyday Hoosiers and hid the research showing that their products were, in fact, extremely dangerous,” Rokita said. “And they did it while making billions of dollars in profits.”
The U.S. Environmental Protection Agency has identified more than 12,000 types of PFAS, according to the lawsuit. Exposure to the toxins, the lawsuit asserts, can have “significant negative health effects,” including cancer, thyroid disease, developmental delays in children, and complications in pregnant women. Rokita said the Centers for Disease Control and Prevention has found PFAS in the blood of nearly every person tested since 1999.
State Rep. Maureen Bauer, D-South Bend, applauded the lawsuit.
During the 2023 session of the Indiana General Assembly, Bauer authored two successful bills designed to protect firefighters from PFAS. House Enrolled Acts 1219 established a biomonitoring pilot program for firefighters and HEA 1341 prohibited the purchase of firefighting gear containing the toxic chemicals.
“I am also grateful that the Indiana Attorney General is bringing a lawsuit to hold chemical companies accountable for the harm they have caused the state,” Bauer said in a statement. “The Office of the AG claims to have proof that the chemical manufacturing industry knowingly deceived the public and continued to produce chemicals they knew to pose serious health risks. These companies owe it to all Hoosiers to pay for the clean-up and remediation of drinking water sources contaminated with unacceptable levels of PFAS.”
Exceeding new EPA standards for PFAS
The same day Indiana filed its lawsuit, the EPA announced the first-ever national drinking water standards for PFAS.
Under the EPA’s new rules, levels of PFOA and PFOS, two of the most common types of PFAS, cannot exceed 4 parts per trillion (ppt) in drinking water. The EPA also set maximum levels for three other PFAS as well as a hazard index level for certain mixtures of PFAS.
According to the lawsuit, samples of untreated groundwater in Bartholomew County contained levels of PFOA as high as 81 parts per trillion, more than 20 times higher than the EPA limit of 4 ppt. Also, the lawsuit says, the soil at the Shelbyville facility has been found to have concentrations of PFOS as high as 2,680,000 ppt, 670,000 times higher than the EPA standard.
Rokita took a swipe at the media during the news conference, saying news outlets do not always cover conservatives advocating for the environment.
“The fact is you can’t truly be a conservative, unless you are willing to reasonably conserve God’s green earth based on known facts, not ideology,” Rokita said. “What we know as fact is that PFAS is dangerous.”
However, during the 2024 legislative session, Republicans tried to change the state’s definition of PFAS, according to reporting by the Indiana Capital Chronicle. The unsuccessful attempt would have reclassified many of the toxins, so they would no longer be considered harmful in Indiana and manufacturers in the state could continue using them.
Scott Barnhart, head of the consumer protection division in the Indiana attorney general’s office, said the purpose of the lawsuit was not to prohibit the use of PFAS.
“This is not a lawsuit to say that we’re trying to ban PFAS-related products,” Barnhart said. “This is a lawsuit against the companies’ and manufacturers’ misrepresentations on the dangers of these chemicals presented to consumers and others.”
Contracting with Taft to handle the litigation
By August 2023, attorneys general in 29 states had filed lawsuits against manufacturers of PFAS, according to Safer States, an alliance of state-based environmental health organizations. A July 2023 article in Time magazine stated more than 15,000 claims had been filed nationwide against DuPont and 3M. Those companies had paid nearly $11.5 billion in damages for PFAS contamination, but some speculated the total damages could ultimately dwarf the $200 billion settlement with Big Tobacco in the 1990s.
Indiana’s lawsuit, Rokita said, is focused solely on the manufacturers of the toxic chemicals. The complaint does not seek to hold farmers or landowners liable for any contamination on their property and does not involve manufacturers of products that contain PFAS. During the news conference, Rokita said the lawsuit could get moved from Shelby County Superior Court to federal court, where it might be joined with similar lawsuits from across the country in a multi-district litigation.
Also, Rokita encouraged those who believe they may have been harmed by PFAS to hire their own lawyer to represent their interests.
“Our mission is to make sure that those who knew about this danger … pay back through remediation, cleanup and improvement for the way they deceived everyday Hoosiers about the products they’re handling,” Rokita said. “We can’t be your personal attorney.”
The lawsuit claims the chemical manufacturers violated Indiana’s product liability act and deceptive consumer sales act as well as the state’s negligence, nuisance, trespass, and unjust enrichment laws.
Although the lawsuit does not specify a dollar amount, it asks that the manufacturers be held liable for all PFAS-related costs, including testing, treatment and monitoring of the state’s natural resources, the providing of water from an alternative source and the installation of a warning system to detect PFAS before it reaches any wells. Also, the state wants the manufacturers to pay for education outreach and to implement a biomonitoring program, including any blood serum collection and testing, to assess the public health impact of PFAS.
The attorney general’s office has contracted with Taft Stettinius & Hollister to handle this lawsuit. Taft, which has an office in Indianapolis, is a leader in PFAS litigation, with Robert Bilott, a partner in the Cincinnati, Ohio, office having filed the first lawsuit in the country against DuPont on behalf of a West Virginia farmer in 1999. Bilott’s battle against PFAS has been covered by The New York Times Magazine and spotlighted in the 2019 feature film, “Dark Waters.”
Bilott and his team have been connected to PFAS settlements reaching $235 million, $300 million and $753 million.
Indiana entered into a contingency fee contract with Taft in 2023. The law firm will get a percentage of any amount the state receives from the PFAS manufacturers with its total fees capped at $50 million. Also, the contract runs for five years until 2028 but can be renewed.
Rokita said the goal of Indiana’s lawsuit was twofold – to get damages and to change the behavior of the manufacturers.
Dwight Adams, a freelance editor and writer based in Indianapolis, edited this article. He is a former content editor, copy editor and digital producer at The Indianapolis Star and IndyStar.com, and worked as a planner for other newspapers, including the Louisville Courier Journal.
The Indiana Citizen is a nonpartisan, nonprofit platform dedicated to increasing the number of informed and engaged Hoosier citizens. We are operated by the Indiana Citizen Education Foundation, Inc., a 501(c)(3) public charity. For questions about the story, contact Marilyn Odendahl at marilyn.odendahl@indianacitizen.org
