Tire Fiasco: County Signs Settlement Agreement
by Peter Shelton
Aug 16, 2012 | 2184 views | 0 0 comments | 5 5 recommendations | email to a friend | print

OURAY COUNTY – The waste tire fiasco that put 1,000 tires into the Uncompahgre River 13 months ago may be a step closer to resolution.

On Tuesday the Ouray Board of County Commissioners signed a settlement agreement negotiated by County Attorney Martha Whitmore and Eric Voogt, attorney for Laurence “Butch” Gunn and Keith Maynes, who together deposited upwards of 5,000 tires on the Gunn property over several decades.

Commissioners Lynn Padgett and Heidi Albritton had reservations about signing, citing a lack of performance standards – to monitor and inspect the results over time – and questioning the “good faith” of the parties involved. But following a nearly three-hour discussion they did, reluctantly, vote yes on Commissioner Mike Fedel’s motion to approve the deal.

“I think this comes close to what we were looking for. I like this. I think it’s workable. The deadlines are here, and they are clear,” Fedel said.

Padgett lamented political interference in the case by two Colorado legislators, Representatives Jerry Sonnenberg (R-Sterling) and Don Coram (R-Montrose), who both characterized the illegal dump as a “beneficial use.” Attorney Voogt, on speakerphone from his office in Denver, offered that his clients “were not born of the environmental generation. They’re old school. They didn’t think they were doing anything wrong.”

Albritton countered, “Yeah, I tried that excuse once when I got stopped for speeding.”

The agreement offers two possible solutions to the problem of the remaining tires, which partially fill a ravine above Burro Creek. The first option, as explained by Whitmore, would involve stabilizing the tires, in place, an option for which Maynes and Gunn must provide an engineering report by August 24 that’s acceptable to both the county and to the Colorado Department of Public Health and Environment. This plan would be “based on a minimum 100-year life of project and [would have to] withstand a rain event with intensity of 125 percent of the July 26, 2011 event” – the velocity of the downpour that washed the tires away last summer.

Once the engineering is approved, Gunn/Maynes would apply to the county for a building permit for the structure, with a construction completion date of November 30, 2012.

“It is a very short time frame,” Whitmore said, adding that tight deadlines will help to “protect the health, safety and environment of the county” from any further washouts.

That short time frame is exacerbated by the fact that “CDPHE didn’t do its job,” Albritton commented, and the process “has dragged on” to this point.

Should Gunn and Maynes find the cost of this option prohibitive, Whitmore read from paragraph four of the agreement, then they would instead agree to remove all of the remaining tires under a plan previously proposed by the county and funded for the most part by a grant from the state tire fund. Gunn and Maynes would then be responsible for covering the county’s cost of administering the grant, up to $20,000.

Finally, if Gunn and Maynes “miss any deadlines, are uncooperative, or in any other way breach terms of the agreement,” the county will proceed with a hearing to enforce its Notice of Violation.

“We have had disagreements over the law,” Voogt said, “over Ouray County’s role in this case. And my clients do disagree, and they don’t like it. But they want it to happen. They want to get this structure built. They want resolution. They have signed the agreement.”

About 30 county residents attended the meeting, and many of them spoke, mostly in favor of either strengthening or renegotiating the settlement.

Peter Decker voiced worries about precedent. “What about this process in the future? What if I had an oil leak on my ranch and you told me to stop it? Could you enforce it? I would encourage the board to get this right. Now.” And “If you have any questions,” send it back for renegotiation.

John Hollrah voiced concern that even if a containment structure were successful in keeping the tires in place, there could be serious contamination in the future from the decomposing tires. There should, he suggested, be some mechanism whereby the county could insure monitoring and inspection, something not specified in the agreement, he said.

Albritton echoed that sentiment, saying, “I don’t want my county to be a test case to see if tires have an impact on groundwater....

“Engineering is all front-end,” she said. “I go back to our experiences with mine cleanup,” which require periodic monitoring. Both Albritton and Padgett suggested a resolution to accompany the settlement that would spell out the county’s desire for a maintenance plan into the future.

Voogt responded, “I don’t want to sound like a broken record, but I can’t agree to any changes in the agreement. My clients are not here. If you want to make changes, write it up how you want, I’ll bring it to my clients and we’ll see if we can negotiate a new agreement.”

The two sides went back and forth on whether or not a separate resolution stating the county’s concerns would require renegotiating the settlement.

“The county has the ability to ensure the 100-year criteria is met,” county attorney Whitmore told the board, and monitoring could be addressed in the building permit. She added that CDPHE and the Army Corps of Engineers also retain their jurisdiction to enforce cleanup at any future time.

With that, Albritton and Padgett set aside their reservations. “We’ll have a different board in a few weeks,” said Albritton, who stepped down from her post at the end of the meeting. (Governor Hickenlooper will appoint her replacement by Aug. 24.) “We don’t know if [a majority on] that board will want to pursue this.

“I’m inclined to sign and attempt to deal with our concerns with our engineer. We need to get this moving in the right direction,” she said.

“If there is good faith in the agreement, we will get it done,” Whitmore said.

But Padgett, exasperated by CDPHE’s apparent move from strict enforcement – removal of the tires – to an “engineered” solution, voiced further frustration.

“It turns out CDPHE wasn’t really acting in good faith,” Padgett said, and “politics got involved.”

Both Coram and Sonnenberg favor the “time-honored” practice of using waste tires for erosion control, which is technically illegal.

Without good faith, Whitmore acknowledged, “I don’t think it’s possible to draft a document that won’t end up in litigation.”

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