A federal judge has granted class-action status to an environmental lawsuit concerning a controversial wood recycling facility in Elkhart, creating about 1,700 potential plaintiffs in the case.
Residents of neighborhoods surrounding the facility at 29861 U.S. 33 in Elkhart have long argued that the waste dumping processes of VIM Recycling, the company that operated the facility until 2011, have released in the air hazardous wood dust and other waste that have caused rashes, headaches, nosebleeds and respiratory problems.
The now class-action lawsuit allows the 1,700 people in the area to opt into the suit, which the Hoosier Environmental Council originally filed in 2009 on behalf of about 150 residents.
"This decision ensures that all of the residents of this impacted community who might not otherwise be able to afford to legally protect their rights to clean air and a safe home, can take action to protect their homes and families," Hoosier Environmental Council staff attorney Kim Ferarro said in a statement.
The neighbors are asking the court for a money judgment and that the company be forced to clean up the area and cease operations there.
The defendants named in the suit are Kenneth R. Will, former owner of VIM Recycling; K.C. Industries; Soil Solutions Co.; and Soil Solutions of Elkhart.
The plaintiffs' complaint describes what they say are noxious fumes, piles of waste at least 50 feet high and sporadic smoldering waste pile fires.
"When the winds blew toward my house from that direction, I had to get inside and close all my doors and windows or the smell would make me sick to my stomach," plaintiff Carmine Green said in a press release.
Soil Solutions owns and operates the site currently, as it bought the assets of VIM Recycling in July 2011. Will is no longer affiliated with the company.
The new ownership of the site makes the issue of inheriting liability a key point of the lawsuit that follows years of controversy.
The site became the center of considerable attention from the media, state agencies and lawmakers in June 2007 when several explosions inside the plant started a major fire that killed one worker and injured another. Dozens of fire departments fought the fire for more than four days before it was extinguished.
The Indiana Occupational Safety and Health Administration investigated and determined a buildup of explosive dust caused the fire. The agency levied a $10,000 fine for safety violations.
The issue then grabbed the attention of a local state representative, who criticized Indiana's Department of Environmental Management for what he said was failing to enforce laws that would keep VIM Recycling in compliance with codes, and he proposed a related bill.
Indiana's attorney general filed a lawsuit against VIM Recycling in December 2009 that alleged the company violated dumping laws when getting rid of its wood waste.
But the plaintiffs say they have complained to the company and state agencies in the years before and after the fire to no avail.
The complaint alleges that VIM Recycling illegally conducted the waste dumping operations without a permit.
Soil Solutions, though, says it is a responsible company that legally processes waste at the site. Attorneys say they do not believe the company should inherit the legal problems of VIM Recycling.
"We're not doing the same thing the previous operator did," said Stacey Petrovas, a project manager at Soil Solutions.
The state has permitted Soil Solutions to process wood waste at the site.
The plaintiffs say the sale of VIM Recycling to Soil Solutions allowed the site to become permitted and escape liability for the years of dumping waste there without a permit.
Jim Brotherson, a business lawyer at Faegre Baker Daniels, the firm representing Soil Solutions, said Soil Solutions and VIM Recycling are not the same company.
"From the point of view of my clients, we see it as a situation where we should not be responsible for problems if any caused by the prior owners," Brotherson said.
Still, the plaintiffs say though permitted, the waste dumping operations continue in the same manner as when VIM Recycling ran the site and are still harmful to residents of the area.
Petrovas said Soil Solutions is looking for ways to clean the site that would recycle the wood waste that is there.
"We want the site cleaned too," he said.