DEEP DIVE: Indiana Files Lawsuit Against Chemical Companies Over "Forever Chemicals"

*The Office of the Attorney General, State of Indiana

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Indiana Attorney General Todd Rokita has launched a massive lawsuit against more than 20 manufacturers of per- and polyfluoroalkyl substances (PFAS), also known as “forever chemicals.” The lawsuit, filed on 10 April 2024 in Shelby County, Indiana, seeks injunctive relief, damages, civil penalties, and recovery costs, among other things, for the contamination caused by the release of PFAS chemicals into the state's air, soil, water, and property. The case is currently pending before the Shelby Superior Court 1.

Focus of the Lawsuit

“We’re taking action today to hold these companies accountable for their clear violation of laws designed to protect human health," Rokita said in a press release. "For decades, they sought to hide research showing that their products were extremely dangerous to people everywhere, including Hoosiers. And they did it so they could make million-dollar profits at the cost of our health and well-being.”

PFAS include perfluorooctane sulfonic acid (PFOS), perfluoroheptanoic acid (PFHpA), perfluorooctanoic acid (PFOA), perfluorohexane sulfonic acid (PFHxS), perfluorodecanoic acid (PFDA), perfluorononanoic acid (PFNA), perfluorobutane sulfonic acid (PFBS), and hexafluoropropylene oxide dimer acid (HFPO-DA, also known as GenX). These chemicals were used in a wide range of consumer and industrial products, including nonstick cookware, food packaging, stain-resistant carpet and furniture, water-resistant clothing, personal care products, and firefighting foam.

In the complaint filed, the state claims that the defendants, through their actions and inactions over the last few decades, have caused "significant known PFAS contamination of the State’s air, soil, sediment, biota, surface water, groundwater, drinking water, watercourses, wetlands, other natural resources, and property held in trust or otherwise owned by the State." The complaint outlines the negative health effects of PFAS chemicals, such as decreased fertility, adverse developmental effects in children, and increased risk of certain cancers, and provides examples of damages caused by these chemicals. For instance, the complaint states that sampling conducted by the Indiana Department of Environmental Management (IDEM) between March 2021 and December 2023 revealed levels of PFAS above U.S. Environmental Protection Agency (EPA) Health Advisory Levels in public drinking water in 24 counties in the state. In addition, the soil samples taken at the Shelbyville Army Aviation Support Facility showed "concentrations of PFOS as high as 2,680,000 ppt, which is 670,000 times higher than the proposed federal maximum contaminant level of 4 ppt," as indicated in the complaint.

The lawsuit claims that the defendants, in their pursuit of profit, concealed information about the chemicals’ negative health effects and touted the safety of PFAS-containing products decades after they had data showing these negative health effects. In support of this claim, the state further details the history of manufacturing and selling of PFAS-containing products by the defendants, including testimonies from their former employees.

The focus on the lawsuit, as Scott Barnhart, the Director and Chief Counsel of Consumer Protection at the Office of the Indiana Attorney General clarified during a press conference, is "the misrepresentation that the companies made about the toxicity and the dangerousness of these chemicals. So from that standpoint, this is not a lawsuit to say that we are trying to ban PFAS-related products. It is a lawsuit against the companies and manufacturers on misrepresentations on the dangers of these chemicals presented to consumers and others."

As part of the request for relief, the state is asking the court to enter judgment against the defendants and award the state of Indiana a total of 23 counts of reliefs, including finding the defendants liable for all PFAS-related costs to investigate, clean up, and restore the contaminated sites and natural resources in the state of Indiana; pay for all damages sustained by the state of Indiana "as a direct and proximate result of Defendants' acts and omissions," and disgorgement of all profits and benefits obtained by the defendants "as a result of the conduct complained," among other reliefs sought.

As to the determination of the specific liabilities of each defendant, Rokita said that a lot of it will be determined through discovery as part of the legal process, "but know that our lawsuit has focused mainly on the firefighting material and particularly at a government or military installations." With that said, the Attorney General indicated that "the lawsuit may evolve to include other companies."

Response from the Defendants

The following companies are named as defendants of the lawsuit:

• 3M Company
• AGC Chemicals Americas, Inc.
• Archroma U.S., Inc.
• Arkema Inc.
• BASF Corporation
• Buckeye Fire Equipment Company
• Carrier Fire & Security Corporation
• Carrier Fire & Security Americas Corporation, Carrier Global Corporation
• ChemDesign Products, Inc.
• Chemguard, Inc.
• Clariant Corporation
• Corteva, Inc.
• DuPont de Nemours, Inc.
• Dynax Corporation
• EIDP, Inc., f/k/a E. I. du Pont de Nemours and Company
• The Chemours Company
• Kidde-Fenwal Inc.
• Kidde Limited
• National Foam, Inc.
• United Technologies Corporation n/k/a RTX Corporation
• Tyco Fire Products LP

3E has reached out to 3M Company and Dupont for comments on the lawsuit.

In response to this request, 3M, which had announced its plan to phase out its manufacture of PFOS, PFOA, and related PFAS-containing products back in 2000, stated: "[A]s the science and technology of PFAS, societal and regulatory expectations, and our expectations of ourselves have evolved, so has how we manage PFAS. 3M will address PFAS litigation by defending itself in court or through negotiated resolutions, all as appropriate."

Dupont did not respond to our request for comment by the time this article was published.

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About the author: Xiaolu Wang is a Washington, D.C.-based reporter for 3E. She covers the latest developments in environmental, health, and safety (EHS) regulations and legislation at the U.S. state level and legal developments that impact enforcement and compliance of EHS regulations. Xiaolu has over 10 years of experience researching and writing about regulatory and legal issues in the field of EHS, product compliance, and risk management. She has also been a frequent speaker at major chemical management conferences.