BACKGROUND:

State Representative Craig Fry contacted LEAF in July of 2008 seeking help for a residential community in his district who, unfortunately, live next to a mobile home recycling plant otherwise known as VIM Recycling, Inc. in Elkhart, Indiana. VIM was in the news in June, 2007 when the facility exploded due to improper maintenance of its process machinery, killing an undocumented worker and requiring  forty-three (43) fire departments over four days to extinguish the blaze.

Not only does VIM pose a fire and safety hazard to the surrounding community, but its operations have been polluting the surrounding air, land and water  resources with adverse health impacts for neighboring residents for years. VIM moved to Elkhart from Goshen, Indiana 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 including: constructing and operating without a permit; failing to control fugitive dust emissions; open burning; failing to grind/process material in an enclosed facility; and creating a nuisance for neighboring businesses. Newspaper articles at the time quote VIM's President, KenWill, explaining that lack of space at the Goshen facility kept him from complying with environmental regulations but moving to the "new state-of-the-art facility in Elkhart" would allow him to operate in compliance with the law.

Now at the "state of the art facility" in Elkhart,  VIM continues to commit the same CAA violations and others according to a January, 2007 Agreed Order entered with IDEM citing the company with: improper handling, processing and storage of regulated solid (and possibly hazardous waste) otherwise known as the "C" pile (includes 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; 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/processing "C" pile outdoors releasing tons of hazardous air pollutants and noxious fumes into the community. Unfortunately, IDEM has not enforced its own Agreed Order because, according  to Commissioner Easterly, if VIM goes under financially, the tax payers of Indiana will have to foot the bill for clean up.

Due to pressure from Representative Fry and outspoken residents (now LEAF's clients), the Elkhart Zoning Administrator got involved, and in January, 2008, wrote a letter to Ken Will noting "ongoing problems with odor, vapor, smoke, gas, dust and other debris from the VIM site impacting neighboring properties" and determined that VIM is in violation of applicable M-2 zoning requirements. Giving VIM the opportunity to skirt these requirements, the Zoning Administrator gave Ken Will 30 days to appeal the decision or apply for a less stringent Detailed Planned Unit Development (DPUD). Ken Will ignored the opportunity and instead of bringing enforcement proceedings, the Zoning Administrator extended the compliance deadline three times until June, 2008, six months after citing the facility with zoning violations.

When VIM finally submitted its incomplete and deficient application, the Elkhart Department of Planning & Development recommended its approval but with 17 conditions which if imposed, would reduce many of the harmful nuisance conditions at the VIM site. Unfortunately, a Plan Commission member who illegally represented VIM before the Plan Commission urged final approval to the County Commissioners but without any of the conditions or restrictions as recommended by Planning & Development thereby allowing VIM to continue its harmful, polluting operations with impunity.

LEAF ACTION:

LEAF's attorney represented the Baugo North Neighborhood Group before the County Commissioners at the final hearings on August 18, 2008 and September 2, 2008. LEAF's attorney presented testimony and evidence that approving the DPUD without the 17 restrictions as recommended by the Planning Department would constitute illegal spot zoning and would allow VIM to operate in violation of its Title V air permit, IDEM’s Agreed Order and federal/state solid waste management laws. Despite this evidence and the impropriety of a Plan Commission member representing VIM before the Plan Commission and County Commissioners, the DPUD was approved on September 2, 2008.

Consequently, LEAF filed a Petition for Writ of Certiorari and Declaratory Judgment with the Elkhart County Circuit Court on October 2, 2008 seeking judicial review and entry of an order declaring the DPUD illegal, contrary to state law, procedurally unsound, unconstitutional, invalid and void on its face or as applied or, if found to be valid, that it prohibits VIM's activities and use of the real estate.

LEAF submitted written public comments to IDEM detailing the technical and legal deficiencies with IDEM's draft Title V permit renewal for the facility and when IDEM issued the permit, LEAF filed a Petition for Administrative Review and Stay of Effectiveness with the Office of Environmental Adjudication (OEA).

Finally, LEAF filed a Notice of Intent to Sue under the federal Resource Conservation and Recovery Act (RCRA) to stop the imminent and substantial endangerment VIM's activities pose to the surrounding community. With grant support from the Impact Fund, on October 28, 2009, LEAF filed the lawsuit in federal district court seeking civil penalties for all of VIM's past and ongoing RCRA violations, compensatory and punitive damages and injunctive relief requiring VIM to stop operations and clean up the site.

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