OAG files suit against big manufacturers over environmental mess

Attorney General Todd Rokita (R) files a lawsuit Wednesday against 22 companies that, OAG alleges, contrary to law continued manufacturing a category of water-resistant substances known as PFAS (per- and polyfluoralkyl substances  also known as “forever chemicals”) despite these same companies possessing overwhelming evidence the substances posed serious health risks including cancer, infertility, and childhood developmental issues. The defendant companies manufactured PFAS used in the non-stick cookware, stain-resistant carpets and clothing and uniforms, and firefighting foam.

State v. 3M Co., No. 73D01-2404-PL-000009, is filed in Shelby County Superior Court 1, before Judge R. Kent Apsley. Shelby County is where a 2022 site investigation at the Shelbyville Army Aviation Support Facility determined that PFAS contamination was likely caused by defendants’ aqueous film-forming foam (AFFF) – a product used for firefighting training and emergency response.

“We’re taking action today to hold these companies accountable for their clear violation of laws designed to protect human health,” General Rokita declares. “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.”

These chemicals do not degrade easily in the environment — hence their classification as “forever chemicals.” These toxic and hazardous substances remain in the environment and contaminate air, drinking water, groundwater, and soil, and are difficult and costly to remove. The level of PFAS in animals and humans can also increase as they are consumed up the food chain – a process known as biomagnification, which many Hoosiers are familiar with given similar bioaccumulation issues with the PCBs that have plagued the Monroe County area in particular for generations.

The U.S. Environmental Protection Agency just this week finalized the nation’s first drinking water standard for PFAS, a maximum of 4.0 parts per trillion of per-and polyfluoroalkyl substances. The new measure is the first legally enforceable standard for PFAS contamination in drinking water as well as the first time EPA has promulgated a drinking water standard for a new contaminant since 1996.

This ordinarily would be the type of Biden Administration green rule that we would expect General Rokita and Republican attorneys general across the country to challenge in federal court over the supporting science, implementation costs (both public and private), and related elements.

The OAG Indiana complaint details accounts from former employees and other evidence suggesting that over several decades, the defendant companies actively sought to hide internal research highlighting their products’ harm to consumers.

“Addressing the PFAS emergency that Defendants have caused requires substantial effort and expense to investigate, treat, and remediate the contamination,” OAG’s lawsuit asserts. “The Defendants who created and profited from the creation of this problem must pay to address the PFAS contamination throughout the State.”

Recall that legislation during the 2024 session would have created a broad regulatory carveout that would have allowed chemical companies to continue manufacturing PFAS under a different chemical classification, allowing their use by Indiana manufacturers in certain key products, including pharmaceuticals, medical devices, and vehicles. The controversial measure appeared to have died, only to be resurrected late in the session but ultimately jettisoned in last-minute conference committee deliberations.

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

“The State brings this action as an exercise of its authority to protect public trust resources and its inherent police powers, which include but are not limited to: its power to restrain a person’s contribution to pollution; protect the State’s natural resources from significant pollution, impairment, or destruction; abate or enjoin a nuisance; prevent pollution of the State’s water, biota, land, and soil; and prevent and abate hazards to public health, safety, and welfare.”

“The State also brings this suit in its parens patriae capacity for the benefit of its residents and to protect the State’s interests in the welfare of its citizens and its natural resources. This action is also brought pursuant to the State’s possessory interest in State-owned land and other public property,” according to the filing.

In addition to the Shelby County site referenced above, Grissom Air Reserve Base and Fort Benjamin Harrison are contaminated as a result of AFFF, with elevated levels of PFAS detected in soil, sediment, surface water, and/or groundwater near fire training areas, fire stations and hangars.

Sampling conducted by the Indiana Department of Environmental Management between March 2021 and December 2023 revealed levels of PFAS above EPA Health Advisory Levels in public drinking water in 24 counties from Lake Michigan to the Ohio River.

The lawsuit seeks more than 20 specific actions ranging from damages, restitution, and disgorgement to an end to current practices and clean-up and remediation of contaminated sites.

The companies listed as defendants in the lawsuit include:

–  3M Company

–  AGC Chemicals Americas, Inc.

–  Archroma U.S. Inc.

–  Arkema Inc.

–  BASF Corporation

–  Buckeye Fire Equipment Company

–  Carrier Fire and Security Corporation

–  Carrier Fire and Security Americas Corporation

–  Carrier Global Corporation

–  ChemDesign Products, Inc.

–  Chemguard, Inc.

–  Clariant Corporation

–  Corteva, Inc.

–  DuPont de Nemours, Inc.

–  Dynax Corporation

–  EIDP, Inc.

–  The Chemours Company

–  Kidde-Fenwal Inc.

–  Kiddie Limited

–  National Foam, Inc.

–  United Technologies Corporation

–  Tyco Fire Products

–  ABC Corporations 1-10.

We’re wondering what kind of conversation Governor Eric Holcomb (R) will be having next week when he sits down in Brazil (the nation, not the Clay County seat) with representatives of Corteva – which moved its headquarters to Indianapolis just last year.

The early reaction to the OAG lawsuit was positive – from Democrats.

One of the leading legislative environmentalists, Rep. Maureen Bauer (D), who spearheaded legislative battles against PFAS and no friend of Rokita, served up effusive praise for his action on Wednesday.

“I am … grateful that the Indiana Attorney General is bringing a lawsuit to hold chemical companies accountable for the harm they have caused the state,” says Rep. Bauer, whose father led the legislative battle in the 1970s to end use of phosphates in detergents and just before his retirement early this decade headed up the drive to strictly regulate microplastics.

“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,” adds Rep. Bauer.

Rep. Bauer adds, with a nod to the demise of the PFAS carveout, in March, “I am so glad to see that Indiana has decided to take the side of science and progress to protect our citizens, not protect chemical companies. Before today, there was no standard for PFAS levels in the water consumed by us and our children. Before today, there was no threat of accountability for bad actors who knowingly poison our water. I look forward to continuing this fight to clean up our communities and rid Indiana’s drinking water of toxic PFAS.”

One thing to watch: Whether OAG or the Indiana Department of Environmental Management becomes involved in Asher v. Raytheon Technologies Corp., No. 35D01-2006-CT-000338, epic litigation that has dragged on for some four years in Huntington County Superior Court against Raytheon and Lear Corporation, among other defendants, to “address the pervasive and dangerous contamination within the Town of Andrews,” where two overlapping, subsurface plumes of contamination, consisting primarily of chlorinated solvents (including trichloroethylene and petroleum, have contaminated the town’s drinking water aquifer, and have entered sewer and other utility lines.

This has been a huge issue locally that has attracted little attention outside the overwhelmed community, and Lieutenant Governor Suzanne Crouch (R) visited Andrews for a listening session April 1 after she says she had been unfamiliar with the situation until it was raised in a late March gubernatorial debate. “Crouch says many state officials such as the attorney general and the USDA are ready to jump into the fight to find permanent solutions to the water crisis,” WFFT-TV Fox 55 in Fort Wayne reported after her visit. She says on her Facebook page that she wants to help remedy “decades of challenges for citizens” in Andrews from the “harmful contaminants being dumped into their groundwater,” adding “I think that the attorney general needs to be brought up to date on what is going on here to see if there some role he can play in terms of solving the issue with the private company that caused the contamination in the first place.”

The Crouch bottom line: “No one should have to pay for the sins or the errors of any corporation.”