OURAY COUNTY – What happens next in the saga of the estimated 4,000 waste tires that remain on Laurence “Butch” Gunn’s property in north Ouray County? The

Army Corps of Engineers (which has jurisdiction over all U.S. waterways) and the Colorado Department of Public Health and Environment (which enforces state law on hazardous materials and waste management) have both weighed in, effectively cancelling an agreement negotiated by Gunn’s attorney and County Attorney Marti Whitmore.

Whitmore said this week that the engineered solution proposed by Gunn’s representatives “is no longer on the table. We’re at a bit of a stalemate.”

Gunn attorney Eric Voogt, in his most recent letter to Whitmore, hinted that litigation might be in the offing. Whitmore said she would like the parties to pursue an option discussed earlier that would have the county apply for grant money, available through CDPHE, to pay for having the tires removed.

But for now, everything is on hold: “We’re waiting to see what CDPHE will do. We’re waiting to see what the Amy Corps will do.”

Earlier this summer, frustrated by the lack of progress toward a solution, Whitmore and Voogt, Gunn’s Denver attorney, had hammered out a settlement deal. Gunn would submit a plan to stabilize the tires in place, in the unnamed drainage above Burro Creek. (Gunn had always stated a preference for leaving the tires where they were dumped, claiming they were a “beneficial use,” rather than having them removed and disposed of according to state statute.) If, according to Whitmore, the plan showed an ability to withstand a design storm of 125 percent the velocity of the downpour that washed 1,000 of those tires into the Uncompahgre River in July 2011, and if they could show the structure had a 100-year life, the county “was prepared to issue a building permit, etc. The county’s concern is that there be no more tires in the river,” Whitmore said.

The Gunn plan, submitted by Consulting Civil and Water Resource Engineering, LLC, called for the remaining tires to be covered in wire mesh and staked, then covered over with fill.

“Everybody (the Corps, the state, the county) tried to make the engineering thing work,” Whitmore told The Watch. “The Corps left the door open for that. We, the Corps, CDPHE, everybody was concerned that the study was deficient.” There were no provisions for determining what, exactly, is in the dump. (Gunn had said that there might also be car parts and what he called “white goods.”) There was no site-specific soil study. The CCWRE report failed to demonstrate that randomly placed tires would be stable enough to resist erosional forces over time, that piping, channeling and undercutting wouldn’t reduce stability. There were no provisions for ongoing testing and maintenance.

“We pointed out the material deficiencies,” Whitmore said, “but their engineers kept coming back and saying, no, we don’t need that.”

So, in a letter dated Oct. 5, the Army Corps stated flatly that it “cannot approve or endorse any plan that allows for waste tires, and potentially other materials to remain in the unnamed drainage.” The engineered proposal was “inappropriate” for three reasons, the Corps said, including a continued “risk for [tires] migrating into downstream waterways,” the setting of an unacceptable precedent, and the risk of a tire fire.

And On Oct. 16, the state weighed in denying Gunn’s request for a “Beneficial Use Determination.” That letter stated: “The Division cannot approve the proposed use of randomly placed waste tires into a drainage with the proposed controls.”

CDPHE listed seven reasons for rejecting “beneficial use,” beginning with the Corps’ determination under the Clean Water Act that the “tires cannot remain.”

Reason number 5 states: “No supporting documentation has ever been provided . . . that the property is, has been, or will be, put to agricultural use consistent with the need for construction of a cattle crossing of the incised drainage.”

Whitmore quoted Voogt in a letter saying, “We’re really disappointed” with the determinations. But when Whitmore suggested in a follow-up that it might be time once again to talk about the tire fund grant, his response, according to Whitmore, was, “No, we’ve spent a lot of money on engineering. We may go to litigation.”

Naturally, Whitmore hopes it doesn’t come to that. “The state has said it’s an illegal disposal of tires. It seems reasonable we apply for money for removal. CDPHE has confirmed the tire grant is still available.

“A private party cannot apply for the money. The county would have to apply. The grant pays for the removal of all the tires. As we discussed in June, the Gunns would pay the county’s administrative costs, staff time, etc.

“It’s a way to reach an end point, a solution. We’re willing to work with them.”



pshelton@watchnewspapers.com