01-1339R�.�.��.e�, - c���. a�, a�o�
Council File # O\— \339
Green Sheet # ��
RESOLUTION
SAINT PAUL, NIINNESOTA
Presented By
Referred To
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Committee: Date
WI-IEREAS, MBC Holding Company, Gopher State Ethanol LLC and MG-0O2 St Paul
LLC (hereinafter "Defendant Companies") operate at 882 West Seventh Street, Saint Paul,
Minnesota, properiy of which is owned by Gopher State Ethanol ("GSE"); and
WHEREAS, in April, 1999, GSE started constructing its ethanol facility and in May,
2000, GSE began producing ethanol, and MG-0O2 began operations at the West 7`� Street site in
August, 2000; and
WHEREAS, soon after GSE and MG-0O2 began operations in May 2000 and August
2000, respectively, numerous citizens living in the vicinity of the West 7�' Street site began
registering complaints with the City about their operations, and the complaints included reports
of obnoxious odors, explosions of dried corn mash settling on neighborhood vehicles and
sidewalks, and unreasonabie noise levels emanating from the West 7"' Street site which caused
severe disturbances throughout all hours of the day and night; and
WHEREAS, on February 7, 2001, the City Council and the Mayor directed the Saint Paul
City Attomey's Office to commence a civil action against the Defendant Companies; and
WHEREAS, pursuant to Minnesota Stahxtes Secrion 617.80 et seq. on February 16, 2001,
the St. Paul City Attorney's Office served norice upon the Defendant Companies to abate the
nuisances within thirty (30) days; and
WHEREAS, pursuant to the resolution of the City Council, the City of Saint Paul
initiated a public nuisance civil action against the Defendant Companies by serving on March 27,
2001 a Siunmons and Complaint upon the Defendant Companies, which was filed with the
Ramsey County District Court on June 5, 2001, Court File No. CS-01-5074; and
WHEREAS, on October 22, 2001, the Honorable Dale Lindman permitted the
intervention of Dorian J. Ullman, Lisa L. Shaffer, Darren Wolfson, Terrence Markley, Sheiley
Markely, Mary Madden, and Ross Winberg (hereinafter "Intervenors") in the public nuisance
lawsuit (the Intervenors are represented by attorneys Michael W. Unger, John M. Bjorkman, and
Peter Gray with Rider, Bennett, Egan & Arundel, LLP); and
WHEREAS, on Friday, December 7, 2001, the Honorable Dale Lindman denied the
City's and the Intervenor's Motions for a Temporary Injunction and took under advisement for
up to ninety (90) days the Defendant Companies' Motions to Dismiss; and
WHEREAS, the Court canceled the City's four day evidentiary hearing trial, scheduled to
begin January 29, 2002, which the City Attorney's Office had scheduled a couple of months in
advance to provide detailed evidence and personal testimony in support of further injunctive
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relief; and
WHEREAS, the Court has not rescheduled the January 29, 2002 evidentiary hearing; and
WHEREAS, the Court strongly and repeatedly urged the parties to settle the dispute; and
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WIIEREAS, Court action in the form of injunctive relief or similar action to eliminate the
odor and noise nuisance caused by the Defendant Companies is unlikely to be obtained for the
next couple of months if not longer; and
WHEREAS, on September 5, 2001, the City Council passed Resolution No. O1-948
setting forth non-exclusive conditions that must be agreed to by the Defendant Companies before
any settlement of the litigation will be approved by the City Council; and
WHEREAS, on September 12, 2001, the City Council passed Resolution No. O1-966
requesring the Minnesota Deparhnent of Health expedite and complete the health risk assessment
as to the health effects upon the citizens of Saint Paul arising out of the operations of MBC
Holding Company, Gopher State Ethanol LLC and MG-0O2 St Paul LLC, located at 882 West
Seventh Street, Saint Paul, Minnesota; and
WHEREAS, GSE's and MBC Holding Company's banks haue demanded that the City's
public nuisance lawsuit be immediately dismissed otherwise the banks will cease to lend to GSE
and MBC Holding Company; and
WHEREAS, odar and noise problems remain due to the Defendant Companies'
operations; and
WHEREAS, GSE and MBC Holding Company have agreed to meet the terms of City
Council Resolution No. O1-948 and have met with representatives of the City to obtain a
settlement accordingly; and
WHEREAS, the City has communicated GSE's and MBC Holding Company's
representations and settlement poshue to the Intervenors and has addressed many concerns and
issues raised by the Intervenors in its settlement discussions with the Defendant Companies; and
WHEREAS, the Intervenors participarion in the lawsuit was backed by the City Councii;
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WHEREAS, ixnmediate court ordered relief imposing odor and noise mitigation steps and
testing through a stipulated settlement is highly preferred to occur now rather than at some
tmlrnown date and under m�laiown requirements in the future,
NOW THEREFORE, BE IT
RESOLVED, that the City of Saint Paul City Council authorizes the Saint Paul City
Attorney's OFfice to enter into a settlement with MBC Holding Company and Gopher State
Ethanol and settle the lawsuit �gainst those companies under the following terms and conditions:
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l. Stipulation and Order. The Settlement will be in the form of a Stipulation and
Order which has the full force and effect of a Ramsey County District Court, State
of Minnesota, order and violarion of any term could constitute contempt of court.
5 2. Odor and Noise and Operations. The MBC Holding Company and Gopher
6 State Ethanol (hereinafter "the Companies") shall admit that their operations have
7 caused both odor and noise problems for the citizens of the City of Saint Paul.
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9 3. Emissions. The Companies shall hire a Heating Ventilation and Air Conditioning
10 (HVAC) expert to assess control of fugitive emissions arising from the ethanol
11 operations and issue a report on or before January 15, 2002. The Companies shall
12 implement the recommendations contained in the HVAC report. b Rpr: \ 3 0,�,o o a
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4. Cooling Cyclone. The Companies will complete the routing of the cooling
cyclone to the thermal oxidizer which will be operational on or before Friday,
January 4, 2002.
5. Testing of Emissions. The City will be permitted to conduct odor emission tests
and obtain samples. The City's experts and the Companies' experts and plant
personnel shall meet within the next 14 days to identify the tests, set the schedule,
and establish the testing protocol. The Companies agree that the tests conducted
by McGinley and Associates, P.A. and St. Croix Sensory, Inc. in March and Aprii,
2001 plus the evaluation of samples to deternune sulfur gases and VOC's with
TIC's using test methods M-16 and TO-15 constitute the standard, methods, and
objectives of the tests to be conduced under this Agreement. The results of any
tests conducted by the Companies shall be made available to the City.
6. Testing of Sound Levels. The City's experts and the Companies' experts shall
meet as soon as reasonably possible to set up a noise testing protocol and
timetable, the specifics to be worked out during the pre-testing meeting. The
Companies agree that the City shall be able to test at the M-1 and M-3 locations
the noise levels when the brewery is not operating but ethanol plant and the CO2
plant are operating and then test when the brewery is operating and the ethanol is
not operating. The operating facilities shall be operating at 100%.
The City also seeks to isolate major noise sources and test their independent noise
levels. The timetable and logistics of these tests to be determined during a pre-
testing meeting, but all reasonable requests by the City will be met by the
Companies. The Companies understand that such testing may take a half a day.
It is hoped that much of the testing can be accomplished by January 4, 2002;
regardless, the testing should be completed by Friday, January 25, 2002.
Noise Level Reductions. Excluding traffic noise arising from non-defendant
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1 companies' vehicles, the Companies agree to achieve the following nighttime,
2 10:00 p.m. to �:00 a.m., noise level results based upon City monitoring data at M-
3 1 and M-3 locarions by the following dates:
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5 L50 5455 dBA by January 4, 2002
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L50 52-53 dBA by February 1, 2002
L50 50 dBA and L10 55 dBA by Mazch 1, 2002
8. MPCA Variance Application. The Companies agree to withdraw the Minnesota
Pollurion Contol (MPCA) variance application and fiuther agree that any future
filings of a variance application, if any, will be with the City of Saint Paul and not
the MPCA.
9. Experts and Testing Companies. Prior to the Companies' retenrion of any
testing companies or the HVAC expert, the Companies shall first obtain the
approval of the use of the identified companies or experts from the City
Attorney's Office or License Inspection and Environmental Protection (I,IEP) and
shall consult with the Intervenors.
10. Test Results and Conferences. All data, reports, and studies resulting from the be.\ow
o,r.d, above-described tests shall be immediately made auailable to the City and the
Companies and the Intervenors. Prior to either the City, the Companies, or the
Intervenors releasing any such data to the public, the City and the Companies shall
confer together to discuss the data.
11. Minnesota Department of Health. The Companies agree to cooperate fully with
the Minnesota Department of Health and conduct and pay for any reasonable tests
requested by the Minnesota Department of Health and immediately supply all test
results to the Minnesota Department of Health.
12. Intervenors and MG-0O2. The City will use its best efforts to obtain a
settlement which includes MG-0O2.
BE TT FURTHER RESOLVED, that the City will continue to cooperate with and consult
with the Intervenors prior to a settlement stipulation entered into court and until any court action
involving the Intervenors is completed.
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Adoptio Certified by Council Secretary
By: 1 \ ._ _ S . � `-a...��_
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Approved by Mayor: Date �� �� �/
By: _
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Requested by Department of:
By:
Form Approv Atto
By: G`
Approved by Mayor for Submission to Council
By:
Adopted by Council: Date � a.00�
coun�il
�� 266-8620
cilmember Coleman
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(CUP ALL LOCATIONS FOR SIGNATURE)
I Authorizing the City Attorney's Office to enter into a settlement with MBC Holding Company
and Gopher State Ethanol and settle the lawsuit without prejudice against those companies
with terms and conditions.
PLFWNING COMMISSION
CIB COMMIITEE
CNIL SERVICE COMMISSION
OF TRANSACTION
When.Y'�here.WhY)
RSONAL SERVICE CONiRACfS MUST ANSWER THE FOLLOWING QUESiIONS:
FI� Nis persoNfirm ever xrorketl undx e coMract forthis deparhnenYT
YES NO
Hes this pnsmlfrtn ever been a cty emPloYee9
YES NO
Does this persaUfirm poesese a sldll not'wrmallypossessetl by any arreM city emP�'�?
YES NO
Is this pets�rm a tarpeteA venaor7
YES NO
COST/REVENUE BUOGETm (qRCLE ONE) YES NO
ACTIVRY NUMBER
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