OURAY COUNTY – The United States Army Corps of Engineers has put the kibosh on an engineered proposal that would leave Laurence “Butch” Gunn’s illegal tire dump in place. The agency, in a Clean Water Act enforcement action, is now mandating that the tires be completely removed from the site.
In a strongly worded letter to Ouray County and the Colorado Department of Public Health and Environment dated Oct. 5, the Army Corps reaffirmed its ruling of January 2012 that all of the tires must be removed from the dump site, which is located in an unnamed drainage.
“We are disappointed that the plan submitted...is not a restoration plan at all, but rather a proposal to leave the waste tires in place,” the letter states. It is authored by Susan Nall, chief of the Colorado West Regulatory Branch of the Army Corps. Nall outlines numerous reasons why the proposal is “inappropriate,” including the unknown extent and composition of the fill materials, and the continued risk those materials pose for migrating into downstream waterways, setting a bad precedent for other property owners, and potential fire hazard.
“While we are a cooperative party to this state led enforcement action, at this point the Corps cannot approve or endorse a plan that allows for waste tires and potentially other materials to remain in the drainage,” Nall concludes.
The Army Corps of Engineers’ ruling contradicts a settlement agreement recently arrived upon between Gunn and Ouray County that had laid the groundwork for an engineered solution to stabilize the tire dump. The plan called for the tires to remain where they are, covered with a wire mesh and held in place by anchors. That agreement did not address nor affect the jurisdiction of Army Corps pertaining to the tire dump, County Attorney Marti Whitmore said.
Upward of a thousand tires buried 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 in July 2011. An unknown number, perhaps 4,000 additional waste tires, remain on the property, Gunn says, for erosion control – a beneficial use.
Ouray County has tried through various means over the past year to compel Gunn to remove the remaining tires. But Gunn and his attorney have challenged the demand, 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.
The county had anticipated the Army Corps 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 this summer after Colorado state legislators Don Coram (R-Montrose) and Jerry Sonnenberg (R-Sterling) weighed in on the matter that Army Corps 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 settlement agreement with Gunn in August. The two parties were in the process of hashing out engineering details for the tire containment scheme when Army Corps threw its monkey wrench into the works.
In the latest twist, the CDPHE appears to have flip-flopped on its position regarding the containment enclosure in response to pressure from the Feds. The state agency announced in a letter to Gunn dated Oct. 16 that the “beneficial use” argument for leaving the tires in place doesn’t hold up under scrutiny after all. The letter defers to the Army Corps of Engineers’ findings, and goes on to describe a laundry list of deficiencies in Gunn’s engineering plans for leaving the tires in place.
All of this leaves County Attorney Marti Whitmore a bit mystified over what happens next.
“It would have been nice if both of them [CDPHE and USACE] had been a little bit more forceful a few months ago,” she said. “If there is a bright side, it is that the county, by taking some action,” by entering a settlement agreement with Gunn, “has moved things along to a point where USACE and CDPHE have to fish or cut bait. If nothing else we are making them come to the table and actually focus on doing something.”
Time is running short to get any kind of solution implemented before snow flies.
“It is not the time frame we wanted in our agreement but this is one of those dilemmas that legally has no easy answer,” Whitmore said.
The next step from Ouray County’s perspective will be for Whitmore to contact Gunn’s attorney and ask how he intends to proceed in light of the recent developments.
“ At the end of the day, the county wants to make sure the tires do not end up in the river again,” Whitmore said. “My task is to keep everyone focused on that end goal, and find a solution that accomplishes that.”