Legal action against the county may result from a vote by the Freeborn County Commission to charge ethanol producer EXOL about $18,000 a year for permission to discharge water into the county-maintained ditch system. The county commissioners also approved a plan that would allow them to eliminate and pay back the fee, decrease it, or increase it based on review of the fee in two years.

EXOL attorney Arvid Wendland said that it might appeal the decision to charge the fee.

&uot;It is an abuse of the ditch managers’ discretion and can be reversed by the courts,&uot; Wendland said before the vote. But he said afterward that EXOL may not appeal, and the board of directors for EXOL must vote on the matter. He would not discuss the merits of the case.

Ditch Viewer Wes Tennis told commissioners that the recommendations for the discharge would stand up in court.

The threat of legal action comes after months of county commissioners and ditch inspectors talking with EXOL employees about their need to use the ditch system. The cooperative wants to start putting its water, used for cooling, into the county ditches instead of the city of Albert Lea wastewater system because it would save money.

Bruce Schuhmacher, safety and environmental manager for EXOL, said the city of Albert Lea currently charges them nine cents per 100 gallons to discharge the water. The county has proposed a two-cent per 100-gallon fee for discharge in the ditches.

EXOL maintains that because the water that goes into ditches will merely drain into a river and not a treatment center, charging any discharge fee is unreasonable.

During an interview after the meeting, Schuhmacher said several other businesses don’t get charged for using ditches, but would not give out the names, saying that the companies might start receiving discharge fees if their names were printed.

He said the county has no basis for charging EXOL, since farmers don’t pay such charges. He said they have no problems with a $4,940 outlet fee, and $7,276 benefit fee, but have said for the last month that the discharge fee is arbitrary and unfair, and that the commissioners don’t have the authority by law to set a discharge fee.

County Administrator Ron Gabrielsen said that he has called up Steele County officials and was told they were considering charging a discharge fee.

Phil Tennis, ditch inspector, said that most of the land in the 9,900 acres of the watershed has paid taxes on the ditches since 1907. He said now that EXOL is going to discharge water, it should pay for some of the past development of the ditches. He also said most of that water in the ditches is rainwater, while the water EXOL pumps in is from water taps. He also pointed to the fact that they are agricultural ditches, not industrial.

The measure passed in a 3-1 vote, in which Commissioner Dan Belshan voted against it and Commissioner Dan Springborg was absent.

Belshan said that he voted against because the company will use the city drainage facilities if there is overflow, cutting down on the wear and tear of the ditch. He said he wished that County Attorney Craig Nelson, who is out of town, could have commented on the case.

In other county news:

-The county voted 3-1 to loan the Shell Rock Watershed District $45,000 to help with their planning and operating fees. The money will be returned when the SRWD begins taxing near the end of the year. Commissioner Glen Mathiason said that denying a loan would result in the SRWD possibly receiving a higher interest loan which would eventually cost watershed residents more. Belshan voted against the measure, citing the budget restrictions.

-Belshan failed to get a second on a motion to rescind amendments to Rule 19 that are the subject of an MCLU Lawsuit against county. &uot;There is no point in continuing to spend legal fees on defending a controversial rule when a simple solution would be to rescind the language restricting speech,&uot; he said. At the moment, the county’s insurance company is paying attorney fees to pursue the case, although Belshan said the case will likely result in higher premiums for the county.

(Contact Tim Sturrock at tim.sturrock @albertleatribune.com or 379-3438.)