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01-1339R�.�.��.e�, - c���. a�, a�o� Council File # O\— \339 Green Sheet # �� RESOLUTION SAINT PAUL, NIINNESOTA Presented By Referred To 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 � ,` 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 � � °1 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 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 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; � 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: V �i'lV�.,.+� �r e.a�.�.: oe.. 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. o \ - \339 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 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 3� 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 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 01-\33h 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: 4 5 L50 5455 dBA by January 4, 2002 3 10 il 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 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. O � -\�3 Adoptio Certified by Council Secretary By: 1 \ ._ _ S . � `-a...��_ . Approved by Mayor: Date �� �� �/ By: _ � 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 JN COUNCILAGBJDA BY (Q4TEJ ����� O �, ►�J'�1 :. z6, Zooi GREEN SHEET No � ����jl TOTAL # OF SIGNATURE PAGES u��� u��— ❑ an�irouEV ❑ anc�nc _ ❑ wsxcwtaExNCFSOrt � nw1u�tamviKCro ❑ wwrtloansmsra�/ ❑ (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 (��M