Converted WP file ./A-4141-a

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STATE OF INDIANA    )        BEFORE THE INDIANA DEPARTMENT
                )    SS:    OF ENVIRONMENTAL MANAGEMENT
COUNTY OF MARION    )

COMMISSIONER OF THE DEPARTMENT    )
OF ENVIRONMENTAL MANAGEMENT,    )
                            )
        Complainant,                )
                            )
            v.                )    CAUSE NO. A-4141 and SW-357
                            )
SIMON PROPERTY GROUP, L.P., d/b/a        )
SIMON REAL ESTATE GROUP, L.P.        )
                            )
        Respondent.                )

AGREED ORDER

The Complainant and the Respondent desire to settle and compromise this action without hearing or adjudication of any issue of fact or law, and consent to the entry of the following Findings of Fact and Order.

I. FINDINGS OF FACT

    1.    Complainant is the Commissioner (hereinafter referred to as "Complainant") of the Indiana Department of Environmental Management, a department of the State of Indiana created by IC 13-13-1-1.

    2.    Respondent is Simon Property Group, L.P. d/b/a Simon Real Estate Group, L.P. (hereinafter referred to as "Respondent"), which manages property at Wabash Village, 305 West Sagamore, located in Lafayette, Indiana (the Site). Since the date of the events specified herein, Respondent has been succeeded by Simon DeBartolo Group, L.P., which successor shall be bound by the terms herein as "Respondent".

    3.    The Indiana Department of Environmental Management ("IDEM") has jurisdiction over the parties and subject matter of this action.

4. Pursuant to IC 13-30-3-3, IDEM issued a Notice of Violation via Certified Mail to:

            Mr. Herbert Simon, President    CT Corporation, Resident Agent
            Simon DeBartolo Group        Simon DeBartolo Group
            PO Box 7033                1 North Capitol Ave.
            Indianapolis, Indiana 46207        Indianapolis, Indiana 46204

COUNT I
A-4141

5. Rule 326 IAC 14-10-4(1) requires that each owner or operator of a demolition or renovation activity to whom this section applies shall remove all Regulated Asbestos-Containing Materials (RACM) from a facility being demolished or renovated before any activity begins that would break up, dislodge, or similarly disturb the material or preclude access to the material for subsequent removal.

6. Rule 326 IAC 18-3-3(a)(4) requires that no person shall implement an asbestos removal project at a facility subject to 326 IAC 14-10 without accreditation by the Commissioner.

    7.    These violations are based on the fact that during inspection of the Site on
        January 7, 1998 by IDEM, the IDEM inspector observed that asbestos containing floor and ceiling tile were not removed prior to renovation activities which disturbed RACM, a violation of 326 IAC 14-10-4(1). This material was removed by an unaccredited contractor, a violation of 326 IAC 18-3-3(a)(4).

COUNT II
SW-357

8. Rule 329 IAC 10-8-1 states that: "After the effective date of this article, no person may process, dispose, cause, or allow to be processed or disposed, special waste except as provided in this rule, 329 IAC 10-5, 329 IAC 10-7, and 329 IAC 10-9."
This violation is based on the fact that on October 17, 1997, you did not notify Waste Management of Lafayette that the roll off they picked up at the Site contained asbestos-containing material.

9. Rule 329 IAC 10-8-4(b)(1) states that: "The generator or hauler shall provide the facility with sufficient notice in advance of the disposal such that the facility may prepare to accept the waste." This violation is based on the fact that the Oak Ridge Landfill was not notified that the roll off picked up from the Site on October 17, 1997, by Waste Management of Lafayette and disposed of at the Oak Ridge Landfill contained asbestos-containing material.

10. Rule 329 IAC 10-8-4(b)(2) states that: "All asbestos-containing waste must be handled in accordance with the wetting, packaging, and labeling provisions of 40 CFR 61.145(c) and 40 CFR 61.150(a)." This violation is based on the fact that on October 17, 1997, asbestos-containing material from the Site was stacked in a roll off and not handled in accordance with the wetting, packaging, and labeling provisions of the rule.

    11.    Rule 329 IAC 10-8-4(b)(3) states that: "Each load of asbestos-containing waste must be accompanied by a waste shipment record in accordance with 40 CFR 61.150(d) that must specify at least the following information:
            (A) Generator's name, complete mailing address, and telephone number.
            (B) Removal contractor's name, complete mailing address, and telephone number.
            (C) Removal project location.
            (D) Source of asbestos.
            (E) Volume or weight of waste for disposal.
            (F) Original signature of generator or cleanup contractor attesting that the information required in this subdivision is true and accurate."
        This violation is based on the fact that the asbestos-containing roll off that was picked up by Waste Management of Lafayette on October 17, 1997, from the Site was disposed of at the Oak Ridge Landfill in Logansport without an asbestos waste shipment record.

    12.    Respondent agrees to the provisions of this Agreed Order and to be bound by those provisions solely in order to avoid further expenses and uncertainties of litigating contested issues of fact or law. Payment of the civil penalty is to settle this matter promptly, cooperatively and amicably, and is not to be construed as an admission of the alleged violations.

13. In recognition of the settlement reached, Respondent waives any right to administrative and judicial review of this Agreed Order.

II. ORDER

1. This Agreed Order shall be effective ("Effective Date") when it is approved by the Complainant or his delegate, and has been received by the Respondent. This Agreed Order shall have no force or effect until the Effective Date.

2. All submittals required by this Agreed Order, unless notified otherwise in writing, shall be sent to:

        Lynne Donahue, Enforcement Case Manager
        Office of Enforcement
        Indiana Department of Environmental Management
        100 N. Senate Avenue
        P. O. Box 6015
        Indianapolis, IN 46206-6015

3. Respondent is assessed a civil penalty of Thirty Thousand Dollars ($30,000). Said penalty amount shall be due and payable within thirty (30) days of the Effective Date of this Agreed Order in the following manner. Twelve Thousand Dollars ($12,000) shall be payable to IDEM - Asbestos Trust Fund (A-4141). Eighteen Thousand Dollars ($18,000) shall be payable to the Environmental Management Special Fund (SW-357).

4. Civil penalties are payable by check to the above specified funds. Checks shall include the Cause Number of this action and shall be mailed to:

            Cashier
            IDEM
            100 N. Senate Avenue
            P. O. Box 7060
            Indianapolis, IN 46207-7060

5. In the event that the civil penalty required by paragraph 3 is not paid within thirty (30) days of the Effective Date of this Agreed Order, Respondent shall pay interest on the unpaid balance at the rate established by IC 24-4.6-1-101. The interest shall continue to accrue until the civil penalty is paid in full.

6. This Agreed Order shall apply to and be binding upon the Respondent, its officers, directors, principals, agents, successors, subsidiaries, and assigns. The Respondent's signatories to this Agreed Order certify that they are fully authorized to execute this document and legally bind the parties they represent. No change in ownership, corporate, or partnership status of the Respondent shall in any way alter its status or responsibilities under this Agreed Order.

7. In the event that any terms of the Agreed Order are found to be invalid, the remaining terms shall remain in full force and effect and shall be construed and enforced as if the Agreed Order did not contain the invalid terms.

8. The Respondent shall provide a copy of this Agreed Order, if in force, to any subsequent owners or successors before ownership rights are transferred. Respondent shall ensure that all contractors, firms and other persons performing work under this Agreed Order comply with the terms of this Agreed Order.

9. This Agreed Order shall remain in effect until the Respondent has complied with all terms and conditions of this Agreed Order.

TECHNICAL RECOMMENDATION:        SIMON DEBARTOLO GROUP, L.P., :
Department of Environmental Management        a Delaware Limited Partnership,
                            SIMON DEBARTOLO PROPERTY                             GROUP, INC., an Ohio Corporation,                             Managing General Partner

By:     _________________________        By: _________________________
    David P. McIver                 Jack Boyd,
    Air Section Chief                 Managing Attorney
    Office of Enforcement
                            Printed: ______________________

Date: ________________________            Title: ________________________

By:             Date: ________________________
    Paul Higginbotham
    Acting Solid Waste Section Chief
    Office of Enforcement

Date:

COUNSEL FOR COMPLAINANT:            COUNSEL FOR RESPONDENT:
Department of Environmental Management

By: _________________________            By: ________________________
Office of Legal Counsel                 Kathryn A. Watson
Department of Environmental Management     Spalding & Watson

Date: _______________________ Date: ______________________

By: _________________________
Office of Legal Counsel
Department of Environmental Management

Date: _______________________

APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL MANAGEMENT THIS _____ DAY OF ____________________, 199___.

                            For the Commissioner:

                            Signed August18, 1998
                            David J. Hensel
                            Director
                            Office of Enforcement

Converted by Andrew Scriven