02-317�u-h5� ��t�
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Council File # ��
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S
Presented By
Refened To
Committee: Date
1 WHEREAS the City of Saint Paul commenced civil and criminal enforcement actions seeking to
2 remedy the public nuisance created by ttte odor and noise errussions of the Gopher State EtYtanol
3 and MGCO2 operations; and
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5 WHEREAS the City has settled its enforcement actions without prejudice (meaning that the
actions may be brought again); and
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WHEREAS the City settlement terms addressing noise aze only effecfive if there is continuous
and meaningful noise monitoring and enforcement action by the City; and
WI-IEREAS the City is still receiving reports of odor and noise complaints by citizens suggesting
that issues remain and that further enforcement may become necessary; and
WHEREAS the citizen interveners in the City's civil action are negotiating fiirther terms to
address some of the nuisance issues, attached hereto as E�ibit "A" is a copy of the settlement
agreement in currenYs form which the City understands GSE and the Interveners haue reached an
agreement upon; and
WHEREAS it is in the City's interest to aid in the voluntary resolution of those issues in order to
improve the quality of life for its citizens and to a�oid the need for further civil or criminal
enforcement actions and expense; and
WHEREAS the City Attorney's Office has negotiated a settlement with MG-0O2, a copy of
which in its current forxn is attached hereto as E�ibit "B"; therefore, be it
RESOLVED that:
l. The City Attorney's Office is authorized to execute the MG-0O2 settlement and file the
same with the Ramsey County District Court, State of Minnesota.
The City Attorney is directed to take vigorous action to enforce the City's settlements
with GSE and MG-0O2 in a11 respects, including the pursuit of court sanctions and/or
injunctions for violations of the noise standards agreed to and ordered by the court as a
consequence of the City's settlement.
3. The City shall vigorously enforce and ensure compiiance with the recommendations and
acrions set forth in Knutson Ventilation Consulring, Inc. Report, dated March 8, 2002,
and ensure compliance with the Apri130, 2002 implementation deadline date contained in
the City's settlement.
ba_��z
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4. The City Attorney shall permit the citizen interveners, through their counsel, unfettered
access to and use of the City's retained experts as if the experts were retained by the
citizen interveners, including A1 Perez, the Chicago-based engineering fum, and Chazles
McGinley, so long as they limit their consultation to the expert's analysis and findings and
not inquire about the thoughts and mental impressions of the City Attomey and fixrther
contingent upon MG-0O2 St. Paul LLC and Gopher State Ethanol LLC, through their
respective counsel, waiving any azgument that City AttomeylExpert Confidentiality and
Privilege is waived.
5. The Department of License, Inspections and Environxnental Protection (LIEP) shall
conduct random, unannounced nighttime noise monitoring for at least one yeaz, to occur
at least twice a month, or more frequently if requested by the City Attorney, with at least
one of those tests during the month being conducted between the hours of midnight and 3
a.m.
Adopted by Council: Date L�J_,__A �' 1,�Q�
-�—
Adoption Certified by Council Secretary
Byc
Apps
By:
Requested by Department of:
By:
Form Approved by C'ty Attorney
By: �
by Mayor tor Submissioa to Council
d�,- 3�'l
DEMRTMENLVFFICE/COUNCIL DATE INITIATED � � V � �
c�t coun��i GREEN SHEE
CONTqCT PERSON & PHONE INITIA VDATE INffIAIJDATE
ODEPARTMENT�IRECTOR OCITYCOUNCII
Chris Coleman 266-8620 ASSIGN O CITYATTORNEY O CITY CLERK
MLLST BE ON CAUWCIL AGENDA BY (DATE) NUdBEfl FOR O gUDGET DIRECTOR Q FfN. & MGL SEAVICES DIF.
ROUTING
4/17/02 OPOEfl �MAVOR(ORASSISTANn O
TOTAL # OF SIGNATURE PAGES (CLIP ALL LOCATIONS FOR SIGNATURE)
AG710N REQUESTED:
The City Attorney's Office is authorized to execute the GSE settlement and file with the
Ramsey CounCy DisCrict Court
RECOMMENDA71oN5' Approve (A) or Reject (fi) PERSONAL SERVICE CONTRACTS MUST ANSWER THE FOLLOWING QUESTIONS:
_ PLANNING COMMISSION __ CIVIL SERVICE COMMISSION 1. Has this personffirm ever worked under a cont�act fOr ihis department?
_ CIB COMMITfEE _ YES NO
_ S7AFF 2. Hes this person/firm ever been a ciry employee?
— YES NO
� DISTRIC7 COUR7 _ 3. Does this personttirm possess a skill not normelly possessed by any current ciry employee?
SUPPORTS WHICH COUNCII O&IECTIVE7 YES NO
Explain all yes answers on separate sheet and attech to green aheet
INITIATING PROBLEM, ISSUE, OPPORTUNIN (Whc, What When, Where, Why):
ADVANTAGES IF APPROVED:
DISADVANTAGES IF APPROVED:
DISADVANTAGES IF NOTAPPROVED:
TOTAL AMOUNT OF iRANSACTION $ COS7/REVENUE BUDGE7ED (CIRCLE ONE) VES NO
FUNDItiG SOURCE ACTNITY NUMBEH
FINANCIAL MFOR6nATION: (EXPLAIN)
�xh��-f A
n�-�.�
CASE TYPE: OTHER CIVIL
STATE OF MINNESOTA
COUNTY OF RAMSEY
The City of Saint Paul,
Plaintiff,
�
Dorian J. Ullman, Lisa L. Shaffer, Darren
Wolfson, Tenence Mazkley, Shelley
Mazkley, Mary Madden and Ross Winberg,
Plaintiff-Intervenors,
vs.
MBC Holding Company, Gopher State
Ethanol, LLC, and MG-0O2 St. Paul LLC,
Defendants.
DISTRICT COURT
SECOND 3iTDICIAL DISTRICT
CourtFileNo. CS-01-5074
(Judge Lindman)
STIPULATION AND ORDER
STIPULATION AND ORDER
Plaintiff-Intervenors, Dorian J. Uliman, Lisa L. Shaffer, Darren Wolfson, Terrence Markley,
Shelley Mazkley, Mary Madden, and Ross Winberg (hereinafter, "Intervenors"), and Defendants
Gopher State Ethanol, LLC, (hereinafter "GSE") and MG-0O2 St. Paul, LLC, (hereinafter
"MGCO2") have agreed to and hereby stipulate to the terms and conditions as set forth below.
1. Stinulation and Order. The parties to this agreement understand that the terms and conditions
set forth in this Stipulation shall be incorporated in an order hauing the fixll force and effect of a
Ramsey County District Court, State of Minnesota, arder and violarion of any ternn could constitute
contempt of court.
2. Addifional Emission Remediation: Ex�ert Consultation, Arbitration and Implementation.
A. A condition of intervenors' acceptance of this setdement is that the City
Attomey shall permit the citizen intervenors, through their counsel, unfettered
access to and use of the City's retained experts as if the experts were retained
oa_ -���
by the citizen intervenors, including A1 Perez, the Chicago-based engineering
firm, and Chazles McGinley. By signing this Stipulation, intervenors agree to
limittheir consultation to the expert's analysis and findings and not to inquire
about the tlioughts and mental impressions of the City Attorney. Further,
MG-0O2 St. Paul LLC and Gopher State Ethanol LLC by signing this
Stipulation, waive any azgutnentthat City AttorneylExpert confidentiality and
privilege is waived by intervenors use of City experts.
B. On or before April _, 2002, or as soon thereafter as the Intervenors, GSE,
and the City can coordinate, GSB's engineering and mechanical experts in
ventilation and pollution control ("Air Emission Consultants") shall present
and explain their analysis and recommendations to Intervenor's counsel, and
their expert(s). The e�erts (either individually or collectively) shall haue
training and experience in the engineering and/or mechanical aspects of
ventilation and/or pollution control. The City may participate. The
presentation by the GSE Air Emission Consultant(s) shall include their
recommendation to achieve overall odor emission reduction to approximate
the historic level of emissions from the adjacent brewery and include an
informational and explanatory tour of the GSE plant to explain the GSE Air
Emissions Consultant(s) findings andrecommendations. All statementsmade
by any of the experts dw�ing and in connection with the presentation and the
tour are hereby deemed to be confidential settlement communications, subj ect
to Rule 408 of the Minnesota Rules of Evidence.
MGCO2 has retained an HVAC expert ("Air Emission ConsultanY') who has
tranung and experience in the engineering and/or mechanical aspects of
ventilation and(or pollution control. Within 6Q days after the issuance of the
expert's report and recommendations based on the expert's inspection of
MGCO2's plant, or as soon thereafter as the Intervenors, MGCO2 and the
City can coordinate, MGCO2's expert shall present and explain his analysis
and recommendations to Intervenors' counsel and their expert(s). The
Intervenors' experts sha11 also have training and experience in the engineering
andlor mechanical aspects of ventilation andlor pollution control. The City,
through one of its representatives, may participate in the presentation. The
presentation by MGCO2's eapert sha11 include his recommendations to achieve
overall odor emissions reducfionto approximate thehistory level of emissions
from the ad}acent brewery and include an informational and explanatory tour
of the MGCO2 plant for the Intervenors' counsel and their expert. All
statements made by any of the experts during and in connection with the
presentation and the tour aze hereby deemed to be confidential settlement
communications, subject to Rule 408 of the Minnesota Rules of Evidence.
2
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C. Witivu one week after the GSE tour and presentation, the Intervenors experts
must present to GSE experts any proposals for additions or changes to GSE's
recommendarions. Each side will designate one of their experts possessing
the qualifications described above to act on behalf of their team to confer and
reach awritten agreement on any measures and timetable for nnplementation
to achieve overall reducUon of odor emissions to approximate the level of the
historic brewery. The agreement shall strive to be comprehensive and address
fugitive emissions as well as major emission points such as the distillation
scrubber.
Within one week after the MGCO2 tour and presentation, the Intervenors'
experts must present to MGCO2's expert any proposals for additions and or
changes, if any, to the MGCO2 expert's recommendations. Each pariy will
designate one of their experts possessing the qualifications described above
to act on behalf of their parly/team to confer and reach a written agreement
on any measures and timetable.
D. If the parties are unable to agree on any issue under paragraph 2C, the issue(s)
in dispute sha11 be immediately submitted to the Honorable Dale B. Lindman
for binding decision. Any affected party may schedule a Court telephone
conference or hearing date after consulting the other parties. It is understood
by all parties that the conference/hearing is based upon written submissions
provided at least one day before the conference(heazing, there will be no
testimony, and the conference/heazing will last no more than thirty (30)
minutes. The Court will attempt to schedule the hearing within seven (7) days
from the date of the request and will rule by the end of the day of the hearing.
The parties aze each limited to a total of fifteen (15) pages, including affidavits
and e�ibits, in which to set forth their respective posifions. The briefs may
be in letter brief form.
E. Any written agreement or decision by Judge Lindman shall be binding and
implemented by GSE and/or MG-0O2 as provided therein.
F. This agreement is not intended to delay implementation of the December 28,
2001 settlement between GSE and the City of St. Paul. If, however, the
April 30, 2002 implementation deadline for completion of the
recommendafions contained in the Knutson Ventilation Consulting, Inc.
Report, dated March 8, 2002 ("the Knutson Report") as necessarily impacted
by procedures and modifications emerging from this agreement, then the
parties hereto, to wit the Lntervenars and GSE, agree to jointly request a
deadline extension to pertnit modification of any measures remaining to be
implemented if such modification has been deternuned to improve odor
control under the provisions of this settlement. Nothing in this Agreement
3
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prolubits the City from objecting to any deadline extension request joinfly
agreed upon by the Intervenors and GSE. It is also recoQn;�ed that fiuther
recommendations may occur whichmay haue their own independent deadlines
and/or some combination of such events.
3. Res�onse to Minnesota Department of Health. Within 30 days of receipt of any report or
recommendations by the Minnesota Department of Health, GSE will provide intervenors with a
comprehensive and detailed written response to the report and will specify any remediation or
mitigation plans GSE will undertake, including a timetable and the facival basis and justification for
the plans. If intervenors wish to discuss the response, GSE agrees to meet and make a good faith
effort to answer questions, and to discuss and consider any questions, concerns or requests for fiuther
action. It is fiuther agreed that Health Department representatives may be invited to such
discussions.
4. Additional Air Emission Testine: GSE will provide access for Tntervenors and the City to
repeattheodortestingofthermaloxidizeremissionsinaccordancewiththe 12-28-01 Stipulationand
Order by measuring both the inputs and output of the thermal oxidizer to determine sulfur gases and
VOC's with TIC's using test methods M-16 (for sulfur gases) and TO-15 and/or TO-14 (for VOCs
and TIC's) and that the results of all such testing shall promptly be made auailable to Intervenors
without editing or revision. If odor emission rates are to be calculated, then the testing sha11
simultaneously include EPA methods 1, 2, 3 and 4.
5. Noise Control. GSE agrees that it will not apply to the City of Saint Paul for a variance from
City or State noise standards for a period of at least one yeaz following entry of this Stipulauon.
Acceptance of this settlement and Stipulafion by Intervenors is conditioned upon passage of a City
Council Resolution directingregulaz and continuous noisetesting andrequests for strict enforcement
of the noise provisions of the GSE/City Stipulation and Order of December 28, 2001.
6. Twentv-FourHourComplaintHotline. GSEagreestoinstituteandpublicizeaspecialhotline
telephone number, and to accept, make a record of, and (when adequate identifying information is
provided, which GSE sha11 request) respond to a11 complaints concerning noise and air emissions.
A record of all complaints shall be maintained by GSE on a complaint log, which log shall include the
GSE response (ifany) to the complainant. GSE shall make next business day response, including an
explanation of any action taken or planned regarding the complained of condition, to all complainants
who provide their name, address and telephone number along with the tune and description of the
complained of condition. GSE sha11 provide a copy of new entries in its complaint log to Intervenors'
counsel on a weekly basis until six months after final implementaUon ofany measures required under
this Stipulation and Order. Any complaint implicating the operarions of MG-0O2 shall immediately
be provided to MG-0O2. MG-0O2 agrees to respond to any such complaint and to record and
report such responses in the same manner as provided for GSE.
�
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7. Upon approval ofthis Stipularion and Order by the Court, the Court shall dismiss Intervenors'
complaintwithoutprejudice, providedthat such disznissal shallnotprecludeproceedings broughtby
Intervenors for the enforcement of this Sripulation and Order.
�a-`J��l
Dated: , 2002
RIDER, BENNETT, EGAN & ARUNDEL, LLP
By
Michael VJ. Unger (131416)
Attorneys for PlaintifF Dorian J. Ullman, Lisa L.
Shaffer, Darren Wolfson, Terrence Mazkley, Shelley
Mazkley, Mary Madden and Ross Winberg
333 South Seventh Street
Suite 2000
Minneapolis, MN 55402
(612)340-7951
ATTORNEYSFORINTERVENORS
0
0 2- -� �`�
Dated: 2002
LINDQUIST & VENNiJM, P.L.L.P.
:
Thomas L. Fabel (27996)
444 Cedaz Street
Suite 1700
St. Paul, MN 55101
(651)312-9203
ATTORNEYS FOR DEFENDANTS
John J. Lee, President and CEO
Gopher State Ethanol, LLC
fd
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2ooz
FREDRICKSON & BYRON, P.A.
Kent G. Harb3son (_)
1100 International Centre
900 Second Avenue South
Minneapolis, MN 55402-3397
(612)347-7077
ATTORNEYS FOR MG-0O2 ST. PAUL LLC
b �- � ��
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1. The terms and conditions set forth in the Stipulation above are hereby adopted as the Order
of the Court as if set forth fully herein.
2. Pursuant to the terms set forth in the Stipulation, the above-entitled matter is dismissed
without prejudice as between the Plainriff Intervenors and Gopher State Ethanol, LLC.
3. The Court Adurinistrator is directed to enter a judgment without prejudice unmediately there
being no just cause for delay.
LET .NDGMENT BE ENTERED IMMEDIATELY with no stay of entry.
Dated: April _, 2002.
BY THE COURT:
The Honorable Dale Lindman
Judge of District Court
831942-1
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SETTLEMENT AGREEMENT
�.
THIS AGREEMENT is made this _ day of . 20Q2, by and between
MG-0O2 St Paul, LLC ("MG-COz") and the City of St Paul ("City").
RECITAInS
1. WHEREAS, on or about March 27, 2001, the City commenced an acfion in '
Ramsey County District Court, State of Minnesota, against MG-0O2 (Court File No. 62-CS-Ol-
005074) (hereinafter "Action'� conceming ciaims that MG-0O2 had allegedly violated state and.
local noise standards and public nuisance standards in the operation of its equipment and
facilities located at 882 West Seventh Street, St. Paui, MN 55102;
2. WHEREAS, MC-0O2 has generally denied the City's claims. It admits that the
operations of its equipment and facilities have in the past coniributed to increased noise levels
and the emission of some odors affecting the overall site occupied by MG-0O2 and other two
defendant companies in the Acrion;
3. Wf��REAS, MG-0O2 does not believe that it is now contributing to odor
probiems or significantly contriburing to increased noise levels and that its remedial actions
during the past year have substantially reduced MG-0O2's noise levels and have eliminated
odors from its carbon bed facility;
{-. 4. WHEREAS, the City and MG-0O2 now desire to settle all claims between them
which were or could have been asserted in the Action.
NOW, THEREFORE, in considera6on of the promises and agreements, mutual
covenants and condirions contained herein, the parties hereby agree as follows:
1. Dismissal Without Preiudice. In exchange for the fuifillment of the other terms,
conditions, and covenants herein, the City agrees to dismiss without prejudice all of its claims
and causes of acfion asserted in the Action in the StipulaGon and Order for Disarissal form
attached hereto as E�chibit A
- 2. Court Order. The City and MG-0O2 understand that the terms and conditions
set forth tti this Settlement Agreement shall be incorporated in au order having the full force and
effect of any Ramsey County District Court, State of Minnesota, Order and vioiarion of any term
could constitute contempt of court,
3. Emissions. MG-0O2 agees to ensure that a heating, veatilarion and air
conditioning (HVAC) expert shail be retained to examin� its facilities to assess contral of
&gi$ve emissions, if any, arising from MG-CQYs operations and further agrees to implement atl
recommendations, if any, pertaining to MG-0O2's operations, so long as such recommendations
aze deemed reasonabie mutually by both parties. If the City and MG-0O2 are unable to agree as
to what constitutes a reasonable recommendation, then either party may submit the issue to the
� Court for resolution inciuding a reasonable deadline(s) for implementation.
-1-
- - - - - Exhibit 8 �X
O a. .'b 1'1
4. TestinQ of Emissions. MG-0O2 agees that the City shall be able to test at the
M-i and the M-3 locarions when the MG-0O2 facility is not operating but when the ethanol ��
plant owned by defendaut Gopher State Ethanol and the brewery owned by defendant MBC --'
Holding Company aze operating and also test when the MG-0O2 facility is operating but the
brewery is not operating. The operating facilities of all three defendants, including IvIG-0O2
shall be functioning at 100% capacity during the testing. The purpose of the testing is to enable
the City to attempi to identify more precisely major sources of noise and their independent noise
leveis from the overall site occupied by all three defendant companies. The timetable, logistics
and other related detaiis of the tests shalT be determined by mutual agreement among the parties
and all reasonable requests by the City regarding the tes6ng shall be met by MG-0O2. MG-0O2 ,
understands that such testing might take up to one-half a day in duration. - ;�
5. Coolina Towers. MG-0O2 and the City agree that MG-0O2 does not own,
operate or have responsibility for the cooling towers that are jointly nsed by MG-0O2 and
defendant Gopher State Ethanoi, and, consequently, MG-0O2 shall not have any liability or
responsibility for a¢y noise athibutable to the cooling towers. Tlris mutual understanding
regarding responsibility for the cooling towers is based, in part, on representations made to the
court during a conference on February 27, 2002, by representatives of defendant Gopher State
Ethanol that Gopher State Ethanol accepts responsibility for the cooling towers.
6. bIPCA Variance Aoolication. MG-0O2 agees to the withdrawal of the
Minnesota Pollution Control Agency Variance Application now on file with that agency and
further agrees that any future filings of a variance application, if any, will be with the City of St
Paul and not the Minnesota Pollution Controi Agency. `�
7. Esverts and TestinQ Comuanies. Regazding odor and noise assessments
pertaining to MG-0O2's operations, prior to the retention of any testing companies or the HVAC
expert, MG-0O2 agees first to obtain approval of the use of the expert(s) from the St. Paul City
Attorney or the City of St. Paul License Inspections and Environmental Protection Office and
shall consult writh the plaintiff-intervenors in the Ac6on.
8. Carbon Bed. MG-0O2 agrees that it shall dischazge gases from its cubon
regenezation bed only when ffie thermal oxidizer owned and operated by defendant Gopher State
Ethazrol is operating.
9. Minnesota Deuartment of Health. MG-0O2 agrees to cooperate fully with the.
Minnesota Department of Health to conduct and pay for any reasonable tests conceming MCr-
CO2's facilities requested by the Minnesota Department of Health and immediately supply all
test results to the Minnesota Depamnent of Health.
10. Deadlines. All deadline dates imposed by provisions of this Ageement are
subject to modification only by the written consent of both parties.
11. Identifv of Parties. All obligations, rights, and duties of the City extend to ali of
its officers, agents, agencies, employees, departments and assigns. All obligations, rights, and
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duties of MG-0O2 extend to ali of iu officers, employees, agents, directors, shareholders, "
successors and assigns.
12. No Admissions. This Agreement is intended to resolve disputed claims and
defenses. Nothing in this Agreement shall be construed as an admission by either party of any
liability or unlawfui or inappropriate conduct.
Z3. Como(ete Aereement This Agreement consritutes the entire and complete
agreement between the parties and may not be modified, altered, or changed in any respect
except upon the express written consent of both parties. The Agreement supersedes all prior oral
and written agreements and communicafions between the parties that relate or pertain in any
respect to the claims, causes of action or defenses asserted in the Action and the subjects
addressed in this Agreement. '
14. Severabilitv. If a court mles that any provision of ttris Agreement is invalid,
over-broad, illegat or unenforceable in any respect, the validity, legality and enforceability of all
remaining provisions of tbis Agreement shall not in any way be affected or impaired.
�,.
15. Minnesota Law. This Ageement shall be construed and inteipreted in
accordance with the laws of the State of Minnesota.
St. Paul City Council
Dated: By
Its
Dated:
City Attomey for City of St. Paul
MG-0O2 St. Paul, LLC
�
Dated:
::ODMA�pCDpC$1F BDOCS I �2540713\3
-3-
By
Kent G. Harbison (#41154)
Rick L. Petry (#2925U3)
FREDRIKSON & BYRON, P.A.
900 Second Avenue South
1100 Intemational Ceatre
Minneapolis, MN 55402-3397
(612) 347-7119 / 347-7107
(612)347-7077 fax
q
�
�
STATE OF MINNESOTA
COUNTY OF RAMSEY
aa�3��
DISTRICT COURT "
SECOND NDICIAL DISTRICT
Case TyQe: Other Civil
City of St Paul,
Intervenors: Dorian J. Ullman, Lisa L. Shaffer,
Darren Wolfson, Terrence Mazkley, Shelley
Markley, Pvlary Adadden and Ross Winberg,
Plainriffs,
Conrt File No: CS-01-5074
(7udge Lindman)
STIPULATION AND ORDER OF
DISNIISSAL WiTHOLIT
PREJLTDICE
['i
MBC Holding Company,
Gopher State Ethanol, LLC and
MG-0O2 St. Paul LLC,
Defendants.
The parties, through their undersigned attomeys, pursuant to the Settlement Agreement
that is a part of and incorporated herein, hereby stipulate that this action shall be dismissed
without prejudice and without costs to any party.
Date: March _,_, 2002
Eric D. Larson, Esq. (#22667J�
St. Paul Assistant City Attomey
500 City Hall and Courthouse
I S West Kellogg Boulevazd
St. Paul, MN 55102
651-266-8728
Attorneys for Plaintiff City of St Paul
P ,� '
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,
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Date: March� 2002
Kent G. Harbison (#41154)
Rick L. Petry (#292503)
FREDRiK,SON & BYROI�I, P.A.
900 Second Avenue South
I 100lntemafional Centre
Minneapolis, MN 55402-3397
(612) 347-7119 i 347-7107 `
Attorneys for Defendant MGCO2 St Paul LLC
ORDER
Upon the foregoing Sripulation, the above-entitled matter is hereby dismissed without
pre,}udice and without costs to any party and judgment may be entered accordingiy.
BY T'HE COURT
Dated:
The Aonorable Dale B. Lindman
Judge of District Court
::ODMA�PCDOCS�FBDOCS I12622910�I
a
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_\
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ORIGINAL
Council File # ° a � � ��
Green Sheet # 3 ��3
Presented By
Referred To
' RESOL
�F SA1NT �
�
MINNESOTA
i
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
Committee: Date
WHEREAS the City of Saint Paul commenced civil and criminal e
remedy the public nuisance created by the odor and noise emissions
LLC ("GSE") and MG-COZ St Paul LLC ("MG-0O2") operations�,
WHEREAS the City has settled its enforcement actions
that the actions may be brought again); and
WHEREAS the City Attorney's Office has negotiated a
which is attached hereto as Exhibit "A"; therefore, bejr�
RESOLVED that:
nent acrions seeldng to
Gopher State Ethanol
without prejudice (meaning
with MG-0O2, a copy of
1. The City Attomey's Office is authorize to execute the settlement and file the same with
the Ramsey County District Court, 5tate of mnesota.
Requested by Department of:
By:
Adopted by Council: Date
Adoption Certified by Council
By:
Approved by Mayor:
Form A ed ity A rney
By: +yt_ _
Approved by Mayo for Submission to Council
By:
By:
a�-3i�
SETTLEMENT AGREEMENT
THIS AGREEMENT is made this day of
MG-0O2 St. Paul, LLC ("MG-0O2") and the City of St. Paul ("City").
RECITALS
1. WHEREAS, on or about Mazch 27, 2001, the City co�
Ramsey County District Court, State of Minnesota, against MG-0O2
2002, by and between
d an action in
File No. 62-05-Ol-
005074) (hereinafter "Action") conceming claims that MG-0O2 ha allegedly violated state and.
local noise standazds and public nuisance standards in the opera ' n of its equipment and
facilities located at 882 West Seventh Street, St. Paul, MN 55 2;
2. WHEREAS, MG-0O2 has generally denie the City's clauns. It admits that the
operations of its equipment and facilities have in the p t contributed to increased noise levels
and the emission of some odors affecting the overall ite occupied by MG-0O2 and other two
defendant companies in the Action;
3. WIiEREAS, MG-0O2 does no believe that it is now contributing to odor
problems or significantly contributing to inc ased noise levels and that its remedial actions
during the past year have substantially red ced MG-0O2's noise levels and have eliminated
odors from its carbon bed facility;
4. WHEREAS, the City an� MG-0O2 now desire to settle all claims between them
which were or could have been asserte�d in the Action.
NOW, THEREFORE, in/consideration of the promises and agreements, mutual
covenants and conditions contain�d herein, the parties hereby agree as follows:
1. Dismissal Wit out Pre'udice. In exchange for the fulfillment of the other terms,
conditions, and covenants rein, the City agrees to dismiss without prejudice all of its claims
and causes of action asse ed in the Action in the Stipulation and Order for Dismissal form
attached hereto as ExhibiyA.
2. Court rder. The City and MG-0O2 understand that the terms and conditions
set forth in this Sett ment Agreement shall be incorporated in an order having the full force and
effect of any Ram y County District Court, State of Minnesota, Order and violation of any term
could constitute ntempt of court.
3. missions. MG-0O2 agrees to ensure that a heating, ventilation and air
conditionin (HVAC) expert shall be retained to examine its facilities to assess contral of
fugitive e ssions, if any, arising from MG-0O2's operations and further agrees to implement all
recomm dations, if any, pertaining to MG-0O2's operations, so long as such recommendations
are dee ed reasonable mutually by both parties. If the City and MG-0O2 are unable to agree as
to w t consfitutes a reasonable recommendation, then either party may submit the issue to the
Court for resolution including a reasanable deadline(s} for implementation.
-1-
Exhibit A ', �`
o� - � ��
4. Testin� of Emissions. MG-0O2 agrees that the City shall be able to test at the
M-1 and the M-3 locations when the MG-0O2 facility is not operating but when the ethanol
plant owned by defendant Gopher State Ethanol and the brewery owned by defendant MBC
Holding Company aze operating and also test when the MG-0O2 facility is operating but the
brewery is not operatin�. The operating facilities of all three defendants, including 1V�P-0O2
shall be functioning at 100% capacity during the testing. The purpose of the �
the City to attempt to identify more precisely major sources of noise and their
levels from the overall site occupied by all three defendant companies. The
and other related detaiis of the tests shali be determined by mutual agreeme
and all reasonable requests by the City regarding the testing shall be met b M
understands that such testing might take up to one-half a day in duratio
o enable
;nt noise
logistics
among the parties
3-0O2. MG-0O2
5. Coolins Towers. MG-0O2 and the City agree at MG-0O2 does not own,
operate or have responsibility for the cooling towers that are ointly used by MG-0O2 and
defendant Gopher State Ethanol, and, consequently, MG-C sha11 not have any liability or
responsibility for any noise attributable to the coolin; t ers. This mutual understanding
regarding responsibility for the cooling towers is based, ' part, on representations made to the
court during a conference on February 27, 2002, by r resentatives of defendant Gopher State
Ethanol that Gopher State Ethanol accepts responsibil' for the cooling towers.
6. NIPCA Variance Aaulication. G-0O2 agrees to the withdrawal of the
Minnesota Pollution Control Agency Variance Application now on file with that agency and
further agrees that any future filings of a vari ce application, if any, will be with the City of St.
Paul and not the Minnesota Pollution Contr Agency.
7. Es erts and Testin om anies. Regarding odor and noise assessments
pertaining to MG-0O2's operations, p� or to the retention of any testing companies or the HVAC
expert, MG-0O2 agrees first to obta' approval of the use of the expert(s) from the St. Paul City
Attomey or the City of St. Paul cense Inspections and Environmental Protection Office and
shall consult with the plaintiff-i ervenors in the Action.
8. Carbon Bed MG-0O2 agrees that it shall discharge gases from its carbon
regeneration bed only whe the thermal oxidizer owned and operated by defendant Gopher State
Ethanol is operating.
9. Minn sota De artment of Health. MG-0O2 agrees to cooperate fully with the
Minnesota Dep ent of Health to conduct and pay for any reasonable tests conceming MG-
CO2's facilities quested by the Minnesota Department of Health and immediately supply all
test results to Minnesota Depariment of IIealth.
10. Deadlines. All deadline dates imposed by provisions of this Agreement are
subject to odification oniy by the written consent of both parties.
1. Identitv of Parties. All obligations, rights, and duties of the City extend to all of
its officers, a�ents, agencies, employees, departments and assigns. All obligations, rights, and
-2-
` _ _-_ _ ��
O�- �`�
duties of MG-0O2 extend to all of its officers, employees, agents, directors, shareholders, �
successors and assigns.
12. No Admissions. This Agreement is intended to resolve disputed claims and
defenses. Nothing in this Agreement shali be construed as an admission by either party of any
liability or uniawful or inappropriate conduct.
13. Comnlete Agreement. This A�eement constitutes the entixe and complete
agreement between the parties and may not be modified, aitered, or changed in any espect
except upon the express written consent of both parties. The Agreement supersedes prior oral
and written agreements and communications between the parties that relate or rtain in any
respect to the claims, causes of action or defenses asserted in the Action d the subjects
addressed in this Agreement.
14. Severabilitv. If a court rules that any provision of Agreement is invalid,
over-broad, illegal or unenforceable in any respect, the validity, legal' and enforceability of all
remaining provisions of this Agreement shall not in any way be affe ed or impaired.
15. Minnesota Law. This Agreement shall
accordance with the laws of the State of Minnesota.
St.
Dated:
Dated:
construed and interpreted in
City Council
City Attorney for City of St. Paul
MG-0O2 St. Paul, LLC
Dated:
1313
��
By
Kenf G. Harbison (#41154)
Rick L. Pehy (#292503)
FREDRIKSON & BYRON, P.A.
900 Second Avenue South
1100International Centre
Minneapolis, MN 55402-3397
(612) 347-7119 ( 347-7107
(612) 347-7077 fa�c
$
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STATE OF MINNESOTA
COUNTY OF RAMSEY
DLSTRICT COUR.T �
SECOND NDICIAI, DISTRICT
Case Type: Other Civil
City of St. Paul,
Intervenors: Dorian J. IJilman, Lisa L. Shaffer,
Aarren Wolfson, Terrence Markley, Sheliey
Markley, Mary Madden and Ross Winberg,
Plaintiffs,
u
MBC Holding Company,
Gopher State Bthanol, LLC and
MG-0O2 St. Paul LLC,
Defendants.
Court File No: CS-01-5074
(Judge Lindman)
STIPULATION AND ORDER OF
DISMISSAL WITHOUT
PRENDICE
The parties, through their undersigned attorneys, pursuant to the Settiement Agreement
that is a part of and incorporated herein, hereby stipulate that this action shall be dismissed
without prejudice and without costs to any party.
Date: Mazch � 2002
Eric D. Larson, Esq. (#22�67X)
St. Paul Assistant City Attomey
500 City Hall and Courthouse
15 West Kellogg Boulevard
St. Paul, MN 55102
651-266-8728
Attorneys for Plaiutitf City of St Paul
EXHIBTT A
- -. - - - �
Oa-3��,
Date: Mazch � 2002
Kent G. Hazbison (#41154)
Rick L. Petry (#292503)
FREDRIKSON & BYRON, P.A.
900 Second Avenue South
1100Intemational Centre
Minneapolis, MN 55402-3397
(612) 347-7119 / 347-7107 "
Attorneys for Defendant MGCO2 SY. Paul LLC
•'71 - �7
Upon the foregoing Stipulation, the above-entitled matter is hereby dismissed without
prejudice and without costs to any party and judgment may be entered accordingly.
BY THE COURT
The Honorable Dale B. Lindman
7udge of District Court
::ODMA�PCDOCS�FBDOCS 1�2622910\I
2
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Council File # ��
^---"'-___u ��r,,..1_�
S
Presented By
Refened To
Committee: Date
1 WHEREAS the City of Saint Paul commenced civil and criminal enforcement actions seeking to
2 remedy the public nuisance created by ttte odor and noise errussions of the Gopher State EtYtanol
3 and MGCO2 operations; and
4
5 WHEREAS the City has settled its enforcement actions without prejudice (meaning that the
actions may be brought again); and
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WHEREAS the City settlement terms addressing noise aze only effecfive if there is continuous
and meaningful noise monitoring and enforcement action by the City; and
WI-IEREAS the City is still receiving reports of odor and noise complaints by citizens suggesting
that issues remain and that further enforcement may become necessary; and
WHEREAS the citizen interveners in the City's civil action are negotiating fiirther terms to
address some of the nuisance issues, attached hereto as E�ibit "A" is a copy of the settlement
agreement in currenYs form which the City understands GSE and the Interveners haue reached an
agreement upon; and
WHEREAS it is in the City's interest to aid in the voluntary resolution of those issues in order to
improve the quality of life for its citizens and to a�oid the need for further civil or criminal
enforcement actions and expense; and
WHEREAS the City Attorney's Office has negotiated a settlement with MG-0O2, a copy of
which in its current forxn is attached hereto as E�ibit "B"; therefore, be it
RESOLVED that:
l. The City Attorney's Office is authorized to execute the MG-0O2 settlement and file the
same with the Ramsey County District Court, State of Minnesota.
The City Attorney is directed to take vigorous action to enforce the City's settlements
with GSE and MG-0O2 in a11 respects, including the pursuit of court sanctions and/or
injunctions for violations of the noise standards agreed to and ordered by the court as a
consequence of the City's settlement.
3. The City shall vigorously enforce and ensure compiiance with the recommendations and
acrions set forth in Knutson Ventilation Consulring, Inc. Report, dated March 8, 2002,
and ensure compliance with the Apri130, 2002 implementation deadline date contained in
the City's settlement.
ba_��z
`a
10
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12
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14
15
4. The City Attorney shall permit the citizen interveners, through their counsel, unfettered
access to and use of the City's retained experts as if the experts were retained by the
citizen interveners, including A1 Perez, the Chicago-based engineering fum, and Chazles
McGinley, so long as they limit their consultation to the expert's analysis and findings and
not inquire about the thoughts and mental impressions of the City Attomey and fixrther
contingent upon MG-0O2 St. Paul LLC and Gopher State Ethanol LLC, through their
respective counsel, waiving any azgument that City AttomeylExpert Confidentiality and
Privilege is waived.
5. The Department of License, Inspections and Environxnental Protection (LIEP) shall
conduct random, unannounced nighttime noise monitoring for at least one yeaz, to occur
at least twice a month, or more frequently if requested by the City Attorney, with at least
one of those tests during the month being conducted between the hours of midnight and 3
a.m.
Adopted by Council: Date L�J_,__A �' 1,�Q�
-�—
Adoption Certified by Council Secretary
Byc
Apps
By:
Requested by Department of:
By:
Form Approved by C'ty Attorney
By: �
by Mayor tor Submissioa to Council
d�,- 3�'l
DEMRTMENLVFFICE/COUNCIL DATE INITIATED � � V � �
c�t coun��i GREEN SHEE
CONTqCT PERSON & PHONE INITIA VDATE INffIAIJDATE
ODEPARTMENT�IRECTOR OCITYCOUNCII
Chris Coleman 266-8620 ASSIGN O CITYATTORNEY O CITY CLERK
MLLST BE ON CAUWCIL AGENDA BY (DATE) NUdBEfl FOR O gUDGET DIRECTOR Q FfN. & MGL SEAVICES DIF.
ROUTING
4/17/02 OPOEfl �MAVOR(ORASSISTANn O
TOTAL # OF SIGNATURE PAGES (CLIP ALL LOCATIONS FOR SIGNATURE)
AG710N REQUESTED:
The City Attorney's Office is authorized to execute the GSE settlement and file with the
Ramsey CounCy DisCrict Court
RECOMMENDA71oN5' Approve (A) or Reject (fi) PERSONAL SERVICE CONTRACTS MUST ANSWER THE FOLLOWING QUESTIONS:
_ PLANNING COMMISSION __ CIVIL SERVICE COMMISSION 1. Has this personffirm ever worked under a cont�act fOr ihis department?
_ CIB COMMITfEE _ YES NO
_ S7AFF 2. Hes this person/firm ever been a ciry employee?
— YES NO
� DISTRIC7 COUR7 _ 3. Does this personttirm possess a skill not normelly possessed by any current ciry employee?
SUPPORTS WHICH COUNCII O&IECTIVE7 YES NO
Explain all yes answers on separate sheet and attech to green aheet
INITIATING PROBLEM, ISSUE, OPPORTUNIN (Whc, What When, Where, Why):
ADVANTAGES IF APPROVED:
DISADVANTAGES IF APPROVED:
DISADVANTAGES IF NOTAPPROVED:
TOTAL AMOUNT OF iRANSACTION $ COS7/REVENUE BUDGE7ED (CIRCLE ONE) VES NO
FUNDItiG SOURCE ACTNITY NUMBEH
FINANCIAL MFOR6nATION: (EXPLAIN)
�xh��-f A
n�-�.�
CASE TYPE: OTHER CIVIL
STATE OF MINNESOTA
COUNTY OF RAMSEY
The City of Saint Paul,
Plaintiff,
�
Dorian J. Ullman, Lisa L. Shaffer, Darren
Wolfson, Tenence Mazkley, Shelley
Mazkley, Mary Madden and Ross Winberg,
Plaintiff-Intervenors,
vs.
MBC Holding Company, Gopher State
Ethanol, LLC, and MG-0O2 St. Paul LLC,
Defendants.
DISTRICT COURT
SECOND 3iTDICIAL DISTRICT
CourtFileNo. CS-01-5074
(Judge Lindman)
STIPULATION AND ORDER
STIPULATION AND ORDER
Plaintiff-Intervenors, Dorian J. Uliman, Lisa L. Shaffer, Darren Wolfson, Terrence Markley,
Shelley Mazkley, Mary Madden, and Ross Winberg (hereinafter, "Intervenors"), and Defendants
Gopher State Ethanol, LLC, (hereinafter "GSE") and MG-0O2 St. Paul, LLC, (hereinafter
"MGCO2") have agreed to and hereby stipulate to the terms and conditions as set forth below.
1. Stinulation and Order. The parties to this agreement understand that the terms and conditions
set forth in this Stipulation shall be incorporated in an order hauing the fixll force and effect of a
Ramsey County District Court, State of Minnesota, arder and violarion of any ternn could constitute
contempt of court.
2. Addifional Emission Remediation: Ex�ert Consultation, Arbitration and Implementation.
A. A condition of intervenors' acceptance of this setdement is that the City
Attomey shall permit the citizen intervenors, through their counsel, unfettered
access to and use of the City's retained experts as if the experts were retained
oa_ -���
by the citizen intervenors, including A1 Perez, the Chicago-based engineering
firm, and Chazles McGinley. By signing this Stipulation, intervenors agree to
limittheir consultation to the expert's analysis and findings and not to inquire
about the tlioughts and mental impressions of the City Attorney. Further,
MG-0O2 St. Paul LLC and Gopher State Ethanol LLC by signing this
Stipulation, waive any azgutnentthat City AttorneylExpert confidentiality and
privilege is waived by intervenors use of City experts.
B. On or before April _, 2002, or as soon thereafter as the Intervenors, GSE,
and the City can coordinate, GSB's engineering and mechanical experts in
ventilation and pollution control ("Air Emission Consultants") shall present
and explain their analysis and recommendations to Intervenor's counsel, and
their expert(s). The e�erts (either individually or collectively) shall haue
training and experience in the engineering and/or mechanical aspects of
ventilation and/or pollution control. The City may participate. The
presentation by the GSE Air Emission Consultant(s) shall include their
recommendation to achieve overall odor emission reduction to approximate
the historic level of emissions from the adjacent brewery and include an
informational and explanatory tour of the GSE plant to explain the GSE Air
Emissions Consultant(s) findings andrecommendations. All statementsmade
by any of the experts dw�ing and in connection with the presentation and the
tour are hereby deemed to be confidential settlement communications, subj ect
to Rule 408 of the Minnesota Rules of Evidence.
MGCO2 has retained an HVAC expert ("Air Emission ConsultanY') who has
tranung and experience in the engineering and/or mechanical aspects of
ventilation and(or pollution control. Within 6Q days after the issuance of the
expert's report and recommendations based on the expert's inspection of
MGCO2's plant, or as soon thereafter as the Intervenors, MGCO2 and the
City can coordinate, MGCO2's expert shall present and explain his analysis
and recommendations to Intervenors' counsel and their expert(s). The
Intervenors' experts sha11 also have training and experience in the engineering
andlor mechanical aspects of ventilation andlor pollution control. The City,
through one of its representatives, may participate in the presentation. The
presentation by MGCO2's eapert sha11 include his recommendations to achieve
overall odor emissions reducfionto approximate thehistory level of emissions
from the ad}acent brewery and include an informational and explanatory tour
of the MGCO2 plant for the Intervenors' counsel and their expert. All
statements made by any of the experts during and in connection with the
presentation and the tour aze hereby deemed to be confidential settlement
communications, subject to Rule 408 of the Minnesota Rules of Evidence.
2
o a -'� ��t
C. Witivu one week after the GSE tour and presentation, the Intervenors experts
must present to GSE experts any proposals for additions or changes to GSE's
recommendarions. Each side will designate one of their experts possessing
the qualifications described above to act on behalf of their team to confer and
reach awritten agreement on any measures and timetable for nnplementation
to achieve overall reducUon of odor emissions to approximate the level of the
historic brewery. The agreement shall strive to be comprehensive and address
fugitive emissions as well as major emission points such as the distillation
scrubber.
Within one week after the MGCO2 tour and presentation, the Intervenors'
experts must present to MGCO2's expert any proposals for additions and or
changes, if any, to the MGCO2 expert's recommendations. Each pariy will
designate one of their experts possessing the qualifications described above
to act on behalf of their parly/team to confer and reach a written agreement
on any measures and timetable.
D. If the parties are unable to agree on any issue under paragraph 2C, the issue(s)
in dispute sha11 be immediately submitted to the Honorable Dale B. Lindman
for binding decision. Any affected party may schedule a Court telephone
conference or hearing date after consulting the other parties. It is understood
by all parties that the conference/hearing is based upon written submissions
provided at least one day before the conference(heazing, there will be no
testimony, and the conference/heazing will last no more than thirty (30)
minutes. The Court will attempt to schedule the hearing within seven (7) days
from the date of the request and will rule by the end of the day of the hearing.
The parties aze each limited to a total of fifteen (15) pages, including affidavits
and e�ibits, in which to set forth their respective posifions. The briefs may
be in letter brief form.
E. Any written agreement or decision by Judge Lindman shall be binding and
implemented by GSE and/or MG-0O2 as provided therein.
F. This agreement is not intended to delay implementation of the December 28,
2001 settlement between GSE and the City of St. Paul. If, however, the
April 30, 2002 implementation deadline for completion of the
recommendafions contained in the Knutson Ventilation Consulting, Inc.
Report, dated March 8, 2002 ("the Knutson Report") as necessarily impacted
by procedures and modifications emerging from this agreement, then the
parties hereto, to wit the Lntervenars and GSE, agree to jointly request a
deadline extension to pertnit modification of any measures remaining to be
implemented if such modification has been deternuned to improve odor
control under the provisions of this settlement. Nothing in this Agreement
3
b a -`� i'Z
prolubits the City from objecting to any deadline extension request joinfly
agreed upon by the Intervenors and GSE. It is also recoQn;�ed that fiuther
recommendations may occur whichmay haue their own independent deadlines
and/or some combination of such events.
3. Res�onse to Minnesota Department of Health. Within 30 days of receipt of any report or
recommendations by the Minnesota Department of Health, GSE will provide intervenors with a
comprehensive and detailed written response to the report and will specify any remediation or
mitigation plans GSE will undertake, including a timetable and the facival basis and justification for
the plans. If intervenors wish to discuss the response, GSE agrees to meet and make a good faith
effort to answer questions, and to discuss and consider any questions, concerns or requests for fiuther
action. It is fiuther agreed that Health Department representatives may be invited to such
discussions.
4. Additional Air Emission Testine: GSE will provide access for Tntervenors and the City to
repeattheodortestingofthermaloxidizeremissionsinaccordancewiththe 12-28-01 Stipulationand
Order by measuring both the inputs and output of the thermal oxidizer to determine sulfur gases and
VOC's with TIC's using test methods M-16 (for sulfur gases) and TO-15 and/or TO-14 (for VOCs
and TIC's) and that the results of all such testing shall promptly be made auailable to Intervenors
without editing or revision. If odor emission rates are to be calculated, then the testing sha11
simultaneously include EPA methods 1, 2, 3 and 4.
5. Noise Control. GSE agrees that it will not apply to the City of Saint Paul for a variance from
City or State noise standards for a period of at least one yeaz following entry of this Stipulauon.
Acceptance of this settlement and Stipulafion by Intervenors is conditioned upon passage of a City
Council Resolution directingregulaz and continuous noisetesting andrequests for strict enforcement
of the noise provisions of the GSE/City Stipulation and Order of December 28, 2001.
6. Twentv-FourHourComplaintHotline. GSEagreestoinstituteandpublicizeaspecialhotline
telephone number, and to accept, make a record of, and (when adequate identifying information is
provided, which GSE sha11 request) respond to a11 complaints concerning noise and air emissions.
A record of all complaints shall be maintained by GSE on a complaint log, which log shall include the
GSE response (ifany) to the complainant. GSE shall make next business day response, including an
explanation of any action taken or planned regarding the complained of condition, to all complainants
who provide their name, address and telephone number along with the tune and description of the
complained of condition. GSE sha11 provide a copy of new entries in its complaint log to Intervenors'
counsel on a weekly basis until six months after final implementaUon ofany measures required under
this Stipulation and Order. Any complaint implicating the operarions of MG-0O2 shall immediately
be provided to MG-0O2. MG-0O2 agrees to respond to any such complaint and to record and
report such responses in the same manner as provided for GSE.
�
6�_'�ti'2
7. Upon approval ofthis Stipularion and Order by the Court, the Court shall dismiss Intervenors'
complaintwithoutprejudice, providedthat such disznissal shallnotprecludeproceedings broughtby
Intervenors for the enforcement of this Sripulation and Order.
�a-`J��l
Dated: , 2002
RIDER, BENNETT, EGAN & ARUNDEL, LLP
By
Michael VJ. Unger (131416)
Attorneys for PlaintifF Dorian J. Ullman, Lisa L.
Shaffer, Darren Wolfson, Terrence Mazkley, Shelley
Mazkley, Mary Madden and Ross Winberg
333 South Seventh Street
Suite 2000
Minneapolis, MN 55402
(612)340-7951
ATTORNEYSFORINTERVENORS
0
0 2- -� �`�
Dated: 2002
LINDQUIST & VENNiJM, P.L.L.P.
:
Thomas L. Fabel (27996)
444 Cedaz Street
Suite 1700
St. Paul, MN 55101
(651)312-9203
ATTORNEYS FOR DEFENDANTS
John J. Lee, President and CEO
Gopher State Ethanol, LLC
fd
oa - '3 �'�
2ooz
FREDRICKSON & BYRON, P.A.
Kent G. Harb3son (_)
1100 International Centre
900 Second Avenue South
Minneapolis, MN 55402-3397
(612)347-7077
ATTORNEYS FOR MG-0O2 ST. PAUL LLC
b �- � ��
��� �
1. The terms and conditions set forth in the Stipulation above are hereby adopted as the Order
of the Court as if set forth fully herein.
2. Pursuant to the terms set forth in the Stipulation, the above-entitled matter is dismissed
without prejudice as between the Plainriff Intervenors and Gopher State Ethanol, LLC.
3. The Court Adurinistrator is directed to enter a judgment without prejudice unmediately there
being no just cause for delay.
LET .NDGMENT BE ENTERED IMMEDIATELY with no stay of entry.
Dated: April _, 2002.
BY THE COURT:
The Honorable Dale Lindman
Judge of District Court
831942-1
oa-3.�.
SETTLEMENT AGREEMENT
�.
THIS AGREEMENT is made this _ day of . 20Q2, by and between
MG-0O2 St Paul, LLC ("MG-COz") and the City of St Paul ("City").
RECITAInS
1. WHEREAS, on or about March 27, 2001, the City commenced an acfion in '
Ramsey County District Court, State of Minnesota, against MG-0O2 (Court File No. 62-CS-Ol-
005074) (hereinafter "Action'� conceming ciaims that MG-0O2 had allegedly violated state and.
local noise standards and public nuisance standards in the operation of its equipment and
facilities located at 882 West Seventh Street, St. Paui, MN 55102;
2. WHEREAS, MC-0O2 has generally denied the City's claims. It admits that the
operations of its equipment and facilities have in the past coniributed to increased noise levels
and the emission of some odors affecting the overall site occupied by MG-0O2 and other two
defendant companies in the Acrion;
3. Wf��REAS, MG-0O2 does not believe that it is now contributing to odor
probiems or significantly contriburing to increased noise levels and that its remedial actions
during the past year have substantially reduced MG-0O2's noise levels and have eliminated
odors from its carbon bed facility;
{-. 4. WHEREAS, the City and MG-0O2 now desire to settle all claims between them
which were or could have been asserted in the Action.
NOW, THEREFORE, in considera6on of the promises and agreements, mutual
covenants and condirions contained herein, the parties hereby agree as follows:
1. Dismissal Without Preiudice. In exchange for the fuifillment of the other terms,
conditions, and covenants herein, the City agrees to dismiss without prejudice all of its claims
and causes of acfion asserted in the Action in the StipulaGon and Order for Disarissal form
attached hereto as E�chibit A
- 2. Court Order. The City and MG-0O2 understand that the terms and conditions
set forth tti this Settlement Agreement shall be incorporated in au order having the full force and
effect of any Ramsey County District Court, State of Minnesota, Order and vioiarion of any term
could constitute contempt of court,
3. Emissions. MG-0O2 agees to ensure that a heating, veatilarion and air
conditioning (HVAC) expert shail be retained to examin� its facilities to assess contral of
&gi$ve emissions, if any, arising from MG-CQYs operations and further agrees to implement atl
recommendations, if any, pertaining to MG-0O2's operations, so long as such recommendations
aze deemed reasonabie mutually by both parties. If the City and MG-0O2 are unable to agree as
to what constitutes a reasonable recommendation, then either party may submit the issue to the
� Court for resolution inciuding a reasonable deadline(s) for implementation.
-1-
- - - - - Exhibit 8 �X
O a. .'b 1'1
4. TestinQ of Emissions. MG-0O2 agees that the City shall be able to test at the
M-i and the M-3 locarions when the MG-0O2 facility is not operating but when the ethanol ��
plant owned by defendaut Gopher State Ethanol and the brewery owned by defendant MBC --'
Holding Company aze operating and also test when the MG-0O2 facility is operating but the
brewery is not operating. The operating facilities of all three defendants, including IvIG-0O2
shall be functioning at 100% capacity during the testing. The purpose of the testing is to enable
the City to attempi to identify more precisely major sources of noise and their independent noise
leveis from the overall site occupied by all three defendant companies. The timetable, logistics
and other related detaiis of the tests shalT be determined by mutual agreement among the parties
and all reasonable requests by the City regarding the tes6ng shall be met by MG-0O2. MG-0O2 ,
understands that such testing might take up to one-half a day in duration. - ;�
5. Coolina Towers. MG-0O2 and the City agree that MG-0O2 does not own,
operate or have responsibility for the cooling towers that are jointly nsed by MG-0O2 and
defendant Gopher State Ethanoi, and, consequently, MG-0O2 shall not have any liability or
responsibility for a¢y noise athibutable to the cooling towers. Tlris mutual understanding
regarding responsibility for the cooling towers is based, in part, on representations made to the
court during a conference on February 27, 2002, by representatives of defendant Gopher State
Ethanol that Gopher State Ethanol accepts responsibility for the cooling towers.
6. bIPCA Variance Aoolication. MG-0O2 agees to the withdrawal of the
Minnesota Pollution Control Agency Variance Application now on file with that agency and
further agrees that any future filings of a variance application, if any, will be with the City of St
Paul and not the Minnesota Pollution Controi Agency. `�
7. Esverts and TestinQ Comuanies. Regazding odor and noise assessments
pertaining to MG-0O2's operations, prior to the retention of any testing companies or the HVAC
expert, MG-0O2 agees first to obtain approval of the use of the expert(s) from the St. Paul City
Attorney or the City of St. Paul License Inspections and Environmental Protection Office and
shall consult writh the plaintiff-intervenors in the Ac6on.
8. Carbon Bed. MG-0O2 agrees that it shall dischazge gases from its cubon
regenezation bed only when ffie thermal oxidizer owned and operated by defendant Gopher State
Ethazrol is operating.
9. Minnesota Deuartment of Health. MG-0O2 agrees to cooperate fully with the.
Minnesota Department of Health to conduct and pay for any reasonable tests conceming MCr-
CO2's facilities requested by the Minnesota Department of Health and immediately supply all
test results to the Minnesota Depamnent of Health.
10. Deadlines. All deadline dates imposed by provisions of this Ageement are
subject to modification only by the written consent of both parties.
11. Identifv of Parties. All obligations, rights, and duties of the City extend to ali of
its officers, agents, agencies, employees, departments and assigns. All obligations, rights, and
�
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duties of MG-0O2 extend to ali of iu officers, employees, agents, directors, shareholders, "
successors and assigns.
12. No Admissions. This Agreement is intended to resolve disputed claims and
defenses. Nothing in this Agreement shall be construed as an admission by either party of any
liability or unlawfui or inappropriate conduct.
Z3. Como(ete Aereement This Agreement consritutes the entire and complete
agreement between the parties and may not be modified, altered, or changed in any respect
except upon the express written consent of both parties. The Agreement supersedes all prior oral
and written agreements and communicafions between the parties that relate or pertain in any
respect to the claims, causes of action or defenses asserted in the Action and the subjects
addressed in this Agreement. '
14. Severabilitv. If a court mles that any provision of ttris Agreement is invalid,
over-broad, illegat or unenforceable in any respect, the validity, legality and enforceability of all
remaining provisions of tbis Agreement shall not in any way be affected or impaired.
�,.
15. Minnesota Law. This Ageement shall be construed and inteipreted in
accordance with the laws of the State of Minnesota.
St. Paul City Council
Dated: By
Its
Dated:
City Attomey for City of St. Paul
MG-0O2 St. Paul, LLC
�
Dated:
::ODMA�pCDpC$1F BDOCS I �2540713\3
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By
Kent G. Harbison (#41154)
Rick L. Petry (#2925U3)
FREDRIKSON & BYRON, P.A.
900 Second Avenue South
1100 Intemational Ceatre
Minneapolis, MN 55402-3397
(612) 347-7119 / 347-7107
(612)347-7077 fax
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STATE OF MINNESOTA
COUNTY OF RAMSEY
aa�3��
DISTRICT COURT "
SECOND NDICIAL DISTRICT
Case TyQe: Other Civil
City of St Paul,
Intervenors: Dorian J. Ullman, Lisa L. Shaffer,
Darren Wolfson, Terrence Mazkley, Shelley
Markley, Pvlary Adadden and Ross Winberg,
Plainriffs,
Conrt File No: CS-01-5074
(7udge Lindman)
STIPULATION AND ORDER OF
DISNIISSAL WiTHOLIT
PREJLTDICE
['i
MBC Holding Company,
Gopher State Ethanol, LLC and
MG-0O2 St. Paul LLC,
Defendants.
The parties, through their undersigned attomeys, pursuant to the Settlement Agreement
that is a part of and incorporated herein, hereby stipulate that this action shall be dismissed
without prejudice and without costs to any party.
Date: March _,_, 2002
Eric D. Larson, Esq. (#22667J�
St. Paul Assistant City Attomey
500 City Hall and Courthouse
I S West Kellogg Boulevazd
St. Paul, MN 55102
651-266-8728
Attorneys for Plaintiff City of St Paul
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Date: March� 2002
Kent G. Harbison (#41154)
Rick L. Petry (#292503)
FREDRiK,SON & BYROI�I, P.A.
900 Second Avenue South
I 100lntemafional Centre
Minneapolis, MN 55402-3397
(612) 347-7119 i 347-7107 `
Attorneys for Defendant MGCO2 St Paul LLC
ORDER
Upon the foregoing Sripulation, the above-entitled matter is hereby dismissed without
pre,}udice and without costs to any party and judgment may be entered accordingiy.
BY T'HE COURT
Dated:
The Aonorable Dale B. Lindman
Judge of District Court
::ODMA�PCDOCS�FBDOCS I12622910�I
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ORIGINAL
Council File # ° a � � ��
Green Sheet # 3 ��3
Presented By
Referred To
' RESOL
�F SA1NT �
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MINNESOTA
i
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
Committee: Date
WHEREAS the City of Saint Paul commenced civil and criminal e
remedy the public nuisance created by the odor and noise emissions
LLC ("GSE") and MG-COZ St Paul LLC ("MG-0O2") operations�,
WHEREAS the City has settled its enforcement actions
that the actions may be brought again); and
WHEREAS the City Attorney's Office has negotiated a
which is attached hereto as Exhibit "A"; therefore, bejr�
RESOLVED that:
nent acrions seeldng to
Gopher State Ethanol
without prejudice (meaning
with MG-0O2, a copy of
1. The City Attomey's Office is authorize to execute the settlement and file the same with
the Ramsey County District Court, 5tate of mnesota.
Requested by Department of:
By:
Adopted by Council: Date
Adoption Certified by Council
By:
Approved by Mayor:
Form A ed ity A rney
By: +yt_ _
Approved by Mayo for Submission to Council
By:
By:
a�-3i�
SETTLEMENT AGREEMENT
THIS AGREEMENT is made this day of
MG-0O2 St. Paul, LLC ("MG-0O2") and the City of St. Paul ("City").
RECITALS
1. WHEREAS, on or about Mazch 27, 2001, the City co�
Ramsey County District Court, State of Minnesota, against MG-0O2
2002, by and between
d an action in
File No. 62-05-Ol-
005074) (hereinafter "Action") conceming claims that MG-0O2 ha allegedly violated state and.
local noise standazds and public nuisance standards in the opera ' n of its equipment and
facilities located at 882 West Seventh Street, St. Paul, MN 55 2;
2. WHEREAS, MG-0O2 has generally denie the City's clauns. It admits that the
operations of its equipment and facilities have in the p t contributed to increased noise levels
and the emission of some odors affecting the overall ite occupied by MG-0O2 and other two
defendant companies in the Action;
3. WIiEREAS, MG-0O2 does no believe that it is now contributing to odor
problems or significantly contributing to inc ased noise levels and that its remedial actions
during the past year have substantially red ced MG-0O2's noise levels and have eliminated
odors from its carbon bed facility;
4. WHEREAS, the City an� MG-0O2 now desire to settle all claims between them
which were or could have been asserte�d in the Action.
NOW, THEREFORE, in/consideration of the promises and agreements, mutual
covenants and conditions contain�d herein, the parties hereby agree as follows:
1. Dismissal Wit out Pre'udice. In exchange for the fulfillment of the other terms,
conditions, and covenants rein, the City agrees to dismiss without prejudice all of its claims
and causes of action asse ed in the Action in the Stipulation and Order for Dismissal form
attached hereto as ExhibiyA.
2. Court rder. The City and MG-0O2 understand that the terms and conditions
set forth in this Sett ment Agreement shall be incorporated in an order having the full force and
effect of any Ram y County District Court, State of Minnesota, Order and violation of any term
could constitute ntempt of court.
3. missions. MG-0O2 agrees to ensure that a heating, ventilation and air
conditionin (HVAC) expert shall be retained to examine its facilities to assess contral of
fugitive e ssions, if any, arising from MG-0O2's operations and further agrees to implement all
recomm dations, if any, pertaining to MG-0O2's operations, so long as such recommendations
are dee ed reasonable mutually by both parties. If the City and MG-0O2 are unable to agree as
to w t consfitutes a reasonable recommendation, then either party may submit the issue to the
Court for resolution including a reasanable deadline(s} for implementation.
-1-
Exhibit A ', �`
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4. Testin� of Emissions. MG-0O2 agrees that the City shall be able to test at the
M-1 and the M-3 locations when the MG-0O2 facility is not operating but when the ethanol
plant owned by defendant Gopher State Ethanol and the brewery owned by defendant MBC
Holding Company aze operating and also test when the MG-0O2 facility is operating but the
brewery is not operatin�. The operating facilities of all three defendants, including 1V�P-0O2
shall be functioning at 100% capacity during the testing. The purpose of the �
the City to attempt to identify more precisely major sources of noise and their
levels from the overall site occupied by all three defendant companies. The
and other related detaiis of the tests shali be determined by mutual agreeme
and all reasonable requests by the City regarding the testing shall be met b M
understands that such testing might take up to one-half a day in duratio
o enable
;nt noise
logistics
among the parties
3-0O2. MG-0O2
5. Coolins Towers. MG-0O2 and the City agree at MG-0O2 does not own,
operate or have responsibility for the cooling towers that are ointly used by MG-0O2 and
defendant Gopher State Ethanol, and, consequently, MG-C sha11 not have any liability or
responsibility for any noise attributable to the coolin; t ers. This mutual understanding
regarding responsibility for the cooling towers is based, ' part, on representations made to the
court during a conference on February 27, 2002, by r resentatives of defendant Gopher State
Ethanol that Gopher State Ethanol accepts responsibil' for the cooling towers.
6. NIPCA Variance Aaulication. G-0O2 agrees to the withdrawal of the
Minnesota Pollution Control Agency Variance Application now on file with that agency and
further agrees that any future filings of a vari ce application, if any, will be with the City of St.
Paul and not the Minnesota Pollution Contr Agency.
7. Es erts and Testin om anies. Regarding odor and noise assessments
pertaining to MG-0O2's operations, p� or to the retention of any testing companies or the HVAC
expert, MG-0O2 agrees first to obta' approval of the use of the expert(s) from the St. Paul City
Attomey or the City of St. Paul cense Inspections and Environmental Protection Office and
shall consult with the plaintiff-i ervenors in the Action.
8. Carbon Bed MG-0O2 agrees that it shall discharge gases from its carbon
regeneration bed only whe the thermal oxidizer owned and operated by defendant Gopher State
Ethanol is operating.
9. Minn sota De artment of Health. MG-0O2 agrees to cooperate fully with the
Minnesota Dep ent of Health to conduct and pay for any reasonable tests conceming MG-
CO2's facilities quested by the Minnesota Department of Health and immediately supply all
test results to Minnesota Depariment of IIealth.
10. Deadlines. All deadline dates imposed by provisions of this Agreement are
subject to odification oniy by the written consent of both parties.
1. Identitv of Parties. All obligations, rights, and duties of the City extend to all of
its officers, a�ents, agencies, employees, departments and assigns. All obligations, rights, and
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O�- �`�
duties of MG-0O2 extend to all of its officers, employees, agents, directors, shareholders, �
successors and assigns.
12. No Admissions. This Agreement is intended to resolve disputed claims and
defenses. Nothing in this Agreement shali be construed as an admission by either party of any
liability or uniawful or inappropriate conduct.
13. Comnlete Agreement. This A�eement constitutes the entixe and complete
agreement between the parties and may not be modified, aitered, or changed in any espect
except upon the express written consent of both parties. The Agreement supersedes prior oral
and written agreements and communications between the parties that relate or rtain in any
respect to the claims, causes of action or defenses asserted in the Action d the subjects
addressed in this Agreement.
14. Severabilitv. If a court rules that any provision of Agreement is invalid,
over-broad, illegal or unenforceable in any respect, the validity, legal' and enforceability of all
remaining provisions of this Agreement shall not in any way be affe ed or impaired.
15. Minnesota Law. This Agreement shall
accordance with the laws of the State of Minnesota.
St.
Dated:
Dated:
construed and interpreted in
City Council
City Attorney for City of St. Paul
MG-0O2 St. Paul, LLC
Dated:
1313
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By
Kenf G. Harbison (#41154)
Rick L. Pehy (#292503)
FREDRIKSON & BYRON, P.A.
900 Second Avenue South
1100International Centre
Minneapolis, MN 55402-3397
(612) 347-7119 ( 347-7107
(612) 347-7077 fa�c
$
d
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STATE OF MINNESOTA
COUNTY OF RAMSEY
DLSTRICT COUR.T �
SECOND NDICIAI, DISTRICT
Case Type: Other Civil
City of St. Paul,
Intervenors: Dorian J. IJilman, Lisa L. Shaffer,
Aarren Wolfson, Terrence Markley, Sheliey
Markley, Mary Madden and Ross Winberg,
Plaintiffs,
u
MBC Holding Company,
Gopher State Bthanol, LLC and
MG-0O2 St. Paul LLC,
Defendants.
Court File No: CS-01-5074
(Judge Lindman)
STIPULATION AND ORDER OF
DISMISSAL WITHOUT
PRENDICE
The parties, through their undersigned attorneys, pursuant to the Settiement Agreement
that is a part of and incorporated herein, hereby stipulate that this action shall be dismissed
without prejudice and without costs to any party.
Date: Mazch � 2002
Eric D. Larson, Esq. (#22�67X)
St. Paul Assistant City Attomey
500 City Hall and Courthouse
15 West Kellogg Boulevard
St. Paul, MN 55102
651-266-8728
Attorneys for Plaiutitf City of St Paul
EXHIBTT A
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Oa-3��,
Date: Mazch � 2002
Kent G. Hazbison (#41154)
Rick L. Petry (#292503)
FREDRIKSON & BYRON, P.A.
900 Second Avenue South
1100Intemational Centre
Minneapolis, MN 55402-3397
(612) 347-7119 / 347-7107 "
Attorneys for Defendant MGCO2 SY. Paul LLC
•'71 - �7
Upon the foregoing Stipulation, the above-entitled matter is hereby dismissed without
prejudice and without costs to any party and judgment may be entered accordingly.
BY THE COURT
The Honorable Dale B. Lindman
7udge of District Court
::ODMA�PCDOCS�FBDOCS 1�2622910\I
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