Adkins, et.al. v VIM Recycling

BACKGROUND:

State Representative Craig Fry contacted LEAF in July 2008 seeking help for a residential community in his district. The community, located in Elkhart, Ind., was situated next to a mobile home recycling plant known as VIM Recycling, Inc.

VIM moved to Elkhart from Goshen, Ind. in 2000 after the Indiana Department of Environmental Management (IDEM) imposed an $85,000 fine against the facility for six years of Clean Air Act (CAA) violations. The CAA violations included: constructing and operating without a permit; failing to control fugitive dust emissions; open burning; failing to grind or process material in an enclosed facility; and creating a nuisance for neighboring businesses.

VIM received news coverage in June 2007 when the facility exploded due to improper maintenance of its process machinery. The explosion killed an undocumented worker and took 43 fire departments over four days to extinguish the blaze. Not only did VIM pose a fire and safety hazard to the surrounding community, but its operations had been polluting the surrounding air, land and water resources with adverse health impacts on neighboring residents for years.

Newspaper articles at the time quoted VIM President Ken Will explaining that lack of space at the Goshen facility kept it from complying with environmental regulations. Will claimed that moving to the “new state-of-the-art facility in Elkhart” would allow the company to operate in compliance with the law. However, in January 2007, less than six months before the explosion, VIM entered into an Agreed Order with IDEM. In the Agreed Order, VIM admitted that it continued to violate IDEM standards at the facility.

The “C pile” maintained by VIM was at the heart of the January 2007 cited violations. The “C pile” included 149,645 cubic yards or 18,705 tons of scrap wood veneers from mobile homes, plastic, steel, glass, carpet and drywall stored outdoors in open piles. The January 2007 Agreed Order cited the company with: improper handling, processing and storage of regulated solid, and possibly hazardous, waste; processing bio-solids from the local sewage treatment plant with “C pile” and selling it as garden mulch or animal bedding; building on-site berms around the perimeter of the building with processed “C pile,” thereby exposing ground water to harmful leachate; and grinding or processing “C pile” outdoors, releasing tons of hazardous air pollutants and noxious fumes into the community.

LEAF ACTION:

LEAF filed a lawsuit in the U.S. District Court under the federal Resource Conservation and Recovery Act (RCRA) and state common law to stop VIM’s illegal activities. Two months later, IDEM brought a limited enforcement action against VIM. The federal district court decided that IDEM’s action took precedence over LEAF’s lawsuit and declined to exercise jurisdiction over the community’s RCRA claims.

Consequently, LEAF re-filed the state law claims in Elkhart Superior Court and appealed dismissal of the RCRA claims to the 7th Circuit Court of Appeals with help from the Appellate Litigation Clinic at Drexel University’s Earl Mack School of Law. Setting positive precedent for families fighting polluters in their communities, the 7th Circuit granted LEAF’s appeal and overturned the lower court’s decision.

MEDIA:

August 18, 2008, Lawmakers Discuss Regulations for VIM,Alana Greenfogel, WNDU.com

September 2, 2008, Ordinance Aims to Improve Safety at VIM, Ed Ernstes, WSBT.com

September 5, 2008, Critics Question VIM Involvement, Tim Vandenack, The Elkhart Truth

September 28, 2008, VIM’s Problems Aren’t Over Yet, Tim Vandenack, The Elkhart Truth

January 28, 2009, Elkhart Neighbors Suing VIM Recycling, Tom Moor, Tribune Staff Writer, WSBT.com

January 29, 2009, Lawsuit Blames Recycling Plant for Neighbors’ Health Problems, Indy Star

January 29, 2009, Neighbors Sue to Close Indiana Recycling Plant Over Stench, ClaimsJournal.com

April 22, 2009, Neighbors Threaten VIM Recycling with a Lawsuit in Federal Court, Tim Vandenack, The Elkhart Truth