Photos from HEC

By MARIANNE HOLLAND
Hoosier Environmental Council

ELKHART — People in a working-class Elkhart community, who endured 11 years of hazardous fires, constant dust, acrid smoke, and obnoxious odors from the dangerous practices of an industrial waste processor, VIM Recycling, have been awarded $50,568,750 in a class action lawsuit.

“This judgment puts into perspective the enormous cost imposed on real people, their lives and community, when a company fails to be a responsible corporate citizen and when government turns a blind eye and does not adequately enforce environmental safeguards,” said Kim Ferraro, Hoosier Environmental Council’s senior staff attorney who litigated the case.

“Although the judgment is significant, it cannot bring back what the 1,025 residents — men, women and children — of this neighborhood lost or fairly pay them back for the miserable conditions they were forced to live with for more than a decade due to the callousness of the owner of VIM, and apathy of state and local officials who had numerous opportunities to meaningfully address the problem but failed to do so. While there are many businesses and government officials that do keep the health and safety of citizens top of mind, this was not true in this situation. In this case, it is up to public interest organizations like HEC, and courageous and resilient citizens like those that we represented, to hold both business and government accountable.”

In his order granting default judgment, U.S. District Court Judge Philip Simon described some of the evidence submitted in the case, which supported his decision to award more than $50 million in compensatory damages to be divided among each of the 1,025 Class members for each year of harm they suffered from VIM’s operations. For example, Simon relied on findings of plaintiffs’ expert, Dr. Mark Chernaik, who earned his Ph.D in biochemistry from John Hopkins University School of Public Health. According to Chernaik, during the time the VIM defendants owned and operated the waste facility, people living in the surrounding community were “exposed to harmful and obnoxious air pollutants dispersed from the facility” including: “1) smoke containing oxygenated VOCs from the chronic, persistent smoldering combustion of waste, sporadic waste pile fires, and manipulation of waste using heavy equipment; 2) particulate matter from the outdoor grinding of waste; 3) hydrogen sulfide from stagnant pools of wastewater that ha[d] contacted waste; and 4) odorous VOCs from the decomposition of waste at the facility.” Furthermore, Chernaik confirmed neighbors’ complaints of “extreme noxious odors, including the smell of rotten eggs, emanating from the VIM facility” were “consistent with exposure to these harmful pollutants.”

The judgment marks the end of the neighbors’ legal battle that began in 2009 when they realized government officials were not going to take action to hold VIM accountable.

“VIM’s operations caused many sleepless nights not only for people who lived in the surrounding community, but also for the men and women of the Baugo Fire Department — I was a member of both,” said Rob Pedzinski, one of the named plaintiffs in the case. “We never knew when the next fire call to VIM would be. Living with this fear was the normal for me, my family and neighbors for so many years as Elkhart County and state officials failed to hold VIM accountable for its continual non-compliance with fire safety codes, zoning restrictions, and environmental regulations. Our community was left to fend for itself. Thanks to HEC, we did what our government should have done — protect people, not profits.”

The HEC filed the case and represented the community pro bono for over six years dedicating thousands of hours of attorney time and incurring substantial litigation costs. Consequently, Simon held HEC is entitled to reimbursement explaining, “an attorney’s non-profit status does not … prevent recovery of attorney’s fees (because such an award) ensures that the value of the lawyer’s gift inures to the favored cause, and not to the adversary in litigation.”