OURAY COUNTY – With just three days to go before the statute of limitations would have kicked in, the Ouray Board of County Commissioners agreed on Tuesday, July 23, to enter into a settlement agreement with Laurence “Butch” Gunn that will resolve a convoluted two-year conflict over an illegal tire dump.
Upward of 1,000 tires buried in a ravine on Gunn’s property above Burro Creek on County Road 4 came down into Cow Creek and the Uncompahgre River during a thunderstorm and flash flood on July 27, 2011. An unknown number, perhaps 4,000 additional waste tires, still remain buried and partially buried on the property. For the past two years, county officials have been seeking a way to compel Gunn to remove these tires.
The settlement agreement which commissioners signed on Tuesday brings closure to this quest.
While it has been in the works for some time, “What I have for you today is [a document] that actually has Mr. Gunn’s signature on it,” said a flushed Ouray County Attorney Marti Whitmore at Tuesday’s commissioner meeting. The settlement agreement also contains, as exhibits, letters from the Colorado Department of Public Health and Environment (CDPHE) and the U.S. Army Corps of Engineers, with both agencies giving their blessing to the proposed path forward for cleaning up the tire mess.
“The agreement basically says we will get a grant from CDPHE’s Waste Tire Cleanup Program for the removal and disposal of all tires, and anything the grant does not cover, Gunn will be responsible for,” Whitmore told commissioners.
“We will use good faith efforts to keep the costs as reasonable as possible while ensuring the county’s out-of-pocket and employee time are covered,” she said. “If for any reason we don’t get the grant or are unsuccessful in removing the tires, or if something unanticipated occurs, and we have to bring the project to screeching halt, all bets [regarding the settlement agreement] are off.”
The county retains the right to pursue a notice of violation that was previously issued against Gunn, should the cleanup effort fail.
“I think it’s a reasonable solution and a reasonable path forward,” Whitmore said. “It’s better than litigation, but the BOCC needs to make a policy decision whether this is how you want to handle the dispute.”
Commissioners Don Batchelder and Lynn Padgett expressed concern that the settlement agreement still lacks a map that was to be produced as an exhibit by the CDPHE showing the full extent of the waste tires located on Gunn’s property, but Commissioner Mike Fedel said he was comfortable with the agreement as-is.
“It is reasonable, and might actually conclude this debacle,” he said, calling for “action today.”
In light of the looming statute of limitations deadline, with the two-year anniversary of the flash-flood that released the tires from Gunn’s property just three days away, Padgett eventually moved to enter into the proposed settlement agreement.
After the motion unanimously passed, Whitmore audibly sighed with relief. One of her main goals since becoming county attorney over a year ago has been to find a legal solution that ensures that more tires from Gunn’s dump do not end up in the river again.
Following the flash-flood two years ago that released the tires from Gunn’s dump into Cow Creek and the Uncompahgre River, Ouray County officials tried through various means to compel Gunn to remove the remaining tires from his property. But Gunn and his attorney challenged the notion, claiming that the tires do not constitute a solid waste dump but are simply a time-honored form of erosion control and thus, a beneficial use; they filed a complaint against the county in District Court in 2012, staking out this claim.
The county, in the meantime, had anticipated CDPHE would, in accordance with the state’s Solid Waste Management Act, order the removal of the tires still buried on the property.
However, it appeared last summer after Colorado state legislators Don Coram (R-Montrose) and Jerry Sonnenberg (R-Sterling) weighed in on the matter that CDPHE instead favored a negotiated settlement that would leave the buried tires in place.
Anxious to find a resolution to the problem before winter set in, Ouray County entered into a previous settlement agreement with Gunn in August 2012. The two parties were in the process of hashing out engineering details for the tire containment scheme when USACE threw a monkey wrench into the works. The agency, in a Clean Water Act enforcement action, mandated last October that the tires be completely removed from the site.
Now, finally, it appears that this solution is within reach.
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