ELKHART — An Elkhart County judge has ordered VIM Recycling to pay a $150,000 fine, VIM wants the penalty waived and state authorities say the now-defunct firm should pay up.
The wood recycling company has long been the target of regulators and neighbors who say the firm played fast and loose over the years with environmental norms, even posed a potential health threat. Now, the stakes have reached a new milestone — the $150,000 fine, if upheld, would be the largest ever levied against the embattled company.
The matter comes up for deliberation today, April 26, in the courtroom of Elkhart Superior Court 1 Judge Evan Roberts, who called for the fine in a Jan. 9 order. Ken Will, who operated VIM before it was sold to Soil Solutions last July, is on tap to ask that the court “fully eliminate” the penalty, to cite a motion he filed Monday. Valerie Tachtiris, a lawyer in the Indiana Attorney General’s Office who filed a motion of her own on Monday, will be arguing that the fine, plus an order to pay $2,800 in attorney fees, should stand.
At the center of the matter is a massive pile of wood waste, since removed, that the AG’s office and the Indiana Department of Environmental Management say VIM illegally accepted. The state officials filed suit against VIM in December 2009 over the 15,000-cubic yard wood heap and the sides reached an accord a year later calling on the company to remove the waste.
The June 2011 deadline to deal with the pile came and went without compliance, however, and Tachtiris last December asked that Roberts fine VIM $150,000, leading to the judge’s Jan. 9 order. The six-figure penatly reflects $25,000 per month that VIM had been out of compliance up till then.
VIM, which ground industrial wood waste from area manufacturers into animal bedding and mulch at a complex on Old U.S. 33 west of Elkhart, has long been at the center of controversy. Neighbors’ complaints that it was dusty, smelly and a health threat date to the early 2000s and they have a lawsuit of their own against the company winding through U.S. District Court in South Bend.
Moreover, IDEM ordered the firm to pay a total of $116,350 in fines between November 1999 and December 2006 stemming from a range of violations, both at the Old U.S. 33 site and another location in Goshen. The largest was an $85,000 penalty in 1999 stemming from fugitive dust violations at the Goshen site.
Soil Solutions bought the VIM complex last year and though the new owners are targeted in the neighbors’ federal suit, they aren’t named in the case filed by the AG’s office and IDEM. Tachtiris said it was Soil Solutions, not VIM, that ultimately removed the waste that’s the focus of the Elkhart Superior Court 1 lawsuit.
COMPLIANCE ‘WITHOUT EXCUSES’
In ordering the $150,000 fine, to be paid by today, April 26, Roberts had some choice words for VIM and Will.
By selling to Soil Solutions, Will and the company “seemingly believe” they can escape liability under the court order and evade their responsibility to comply with state environmental law, the judge wrote last January. “Nothing can be farther from the truth.”
Still, Roberts also said if VIM and Will fully complied with the order to remove the waste, they could ask for an order “substantially reducing” the $150,000 penalty. “What the court is after is full compliance, without excuses,” Roberts wrote.
Will, in his filing Monday, asked that that the $150,000 fine be waived, saying the wood waste in question had been removed. The removal, according to his motion, occurred sometime between July 25, 2011, when Soil Solutions’ purchase of the VIM complex was finalized, and Jan. 25 of this year.
Will, representing himself and VIM without the benefit of a lawyer, further characterized the firm’s financial condition as shaky. VIM owes nearly $330,000 alone in legal fees stemming from varied legal matters.
“There is nothing left to VIM — inventories, receivables or fixed assets. All of its operations are gone,” Will wrote.
In her filing Monday, Tachtiris, the AG’s office lawyer, affirmed that the disputed wood waste has been removed, as confirmed by IDEM inspectors on March 27. But she said it was the new owners, Soil Solutions, that handled the removal, not VIM.
VIM, therefore, can make no claim for a reduction in the $150,000 fine because it had no role in getting rid of the wood waste, she argued.