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By Jessi Marlatt and Beecher Threatt
Three-hundred sixty-four days (accounting for leap year) after a flash flood dislodged over 1,000 tires from the property of Laurence “Butch” Gunn, Ouray Board of County Commissioners on Tuesday decided enough is enough with continuances and directed the county attorney to initiate an administrative action to enforce the state Solid Waste Disposal Sites and Facilities Act. A hearing on the county's enforcement of its own rubbish ordinance is set for Aug. 14, as is the new administrative action. Both actions are directed at the thousands of tires still buried on the Gunn property.
Commissioners expressed hope that the parties will negotiate a settlement before then.
About 40 members of the public attended Tuesday's public hearing on the rubbish ordinance violation. Gunn’s attorney, Eric Voogt of Inman Flynn Attorneys at Law in Denver, requested a continuance, which commissioners reluctantly granted until Aug. 14 at 1:30 p.m., at the Ouray County 4-H Event Center. Commissioners Heidi Albritton and Lynn Padgett expressed their displeasure with prolonging the hearing once again to Voogt, who joined via telephone.
Voogt and Ouray County Attorney Marti Whitmore had discussed a continuance due to a new engineering report submitted by Gunn to the Colorado Department of Public Health and the Environment (CDPHE) on July 18. According to Whitmore, the engineering plan lacks scientific substance, such as hydraulic information, and she could not tell if it referred to 30 feet or 300 yards. The plan proposes that the buried tires stay in place.
In a telephone interview with the Plaindealer after the meeting, Charles Johnson, program manager of CDPHE's Solid Waste and Materials Management Program, stated that CDPHE’s engineer is trying to find time to make a full review of the engineering plan. “We hope to have the review finished in the next couple of weeks,” said Johnson. No formal design project has been submitted to CDPHE at this time.
The BOCC had relied upon CDPHE to take the lead in the investigation and enforcement of the state statute since the initial flood, but a year later the BOCC has decided to take action on their own. The statute requires anyone operating a solid waste disposal facility to obtain a certificate of designation from the county and to follow regulations for operation of the facility. CDPHE issued a compliance letter on Sept. 16, 2011, which stopped short of taking formal action against Gunn and Keith Maynes, owner of the tire store where the waste tires originated.
Negotiations between the county, CDPHE and Gunn crumbled two weeks ago. They had been discussing a plan whereby the county would apply for a grant from a state tire fund to allow Gunn to remove all the tires from his property, and Gunn would pay the administrative fees only. Recent involvement by state representatives Don Coram (R-Montrose) and Jerry Sonnenberg (R-Sterling) derailed these negotiations, said Albritton.
Whitmore said, "I thought we were negotiating in good faith to use the tire fund to remove the (buried) tires."
As reported in the Plaindealer on July 19, Coram became involved last "February or March." Sonnenberg told the Plaindealer that he and Coram began meeting last winter. Voogt, CDPHE and the Farm Bureau, as well as Coram and Sonnenberg, met at the State Capitol on July 16 to discuss the use of tires in agriculture and the Gunn case specifically, said Johnson. Voogt stated he did not arrange the meeting but he did participate. County officials learned only two weeks ago of Coram and Sonnenberg's contacts with CDPHE.
It now appears that CDPHE is willing to consider a resolution that includes a structure that would keep the tires in place, rather than removal of the tires. Coram and Sonnenberg have said that Gunn's use of thousands of tires to fill in a gully is an exempted agricultural use. Asked in a phone interview where in state law that exemption is stated, Sonnenberg said, "I do not remember if it is in the law or just understood. If it's not in there, it will be next year." He said that he and Coram will introduce legislation to exempt use of waste tires for agriculture. Sonnenberg said every time the legislature has considered waste tires, it has been understood that ag use would be exempt from the legislation. Whitmore said she does not find an agricultural exemption in the state's solid waste statute that would allow for a use such as Gunn's.
"Do you have meetings scheduled with Sonnenberg and Coram between now and Aug. 21 (the original continuance date)?" Padgett asked Voogt. He answered no. "We are disturbed by the fact that during the period we have continued this matter, we find out your team is having meetings to which the county is not invited or made aware. ...We thought negotiation was the path we were going down until we learned meetings were going on and maybe pressure on CDPHE," Padgett said.
"You guys have lots of angles you are pursuing," Albritton told Voogt, adding later, "With the intervention of political forces, it is a different playing field."
Another thorn in the side of the commissioners is the fact that their attorney has not yet been allowed to visit the Gunn property for a site inspection. One such visit was scheduled for Monday of last week but was canceled because an adjacent land owner locked a gate across the road Gunn used to access that part of his property. Sonnenberg "had some connections" and received access last week, but Voogt said he was unaware the site visit was occurring. "It wasn't me, it was Butch (that set up the visit with the state reps)," Voogt said.
Whitmore understood on the previous Friday that the visit would not occur, then found out at a meeting Monday afternoon that it had occurred and the county was not invited. “It was a total surprise to me on Monday,” Voogt said and stated that he would “try to get that access again.” Voogt said he has never been to the Gunn property.
After the continuance was granted, Voogt remained on the line and commissioners discussed the process by which the county will move forward. Because no formal action has been taken by CDPHE, the commissioners decided to initiate their own administrative action to enforce the state statute and to continue enforcement proceedings on the county rubbish violation.
Commissioner Mike Fedel said his desire is that the site be secured so no tires will enter the river in the future. "CDPHE is working toward keeping the tires in the ground. I want our best foot forward and no money wasted on attorneys." Albritton said the state's recommendation has changed and it "smells fishy." She and Padgett still have concerns about public health, safety and welfare issues as well as environmental impacts if the remaining tires are not removed. Fedel said "the jury is still out on toxic effects of tires," to which Padgett replied, "I'll provide you some journal articles."
Padgett said she wants an outcome where Maynes and the Gunns will "take this seriously." She listed potential impacts on other property owners and on taxpayers.
Public comment included fears that Ouray County might be setting a precedent that illegal dump sites are allowed in Ouray County as long as they are contained once the perpetrator is caught. Threats of fire, environmental degradation and public safety were also topics of concern.
Albritton said some of the emails she received from the public "added another layer of frustration." She recounted, for example, an email that said using tires for potted plants is a beneficial, exempt use. "That is irrelevant to this discussion," she said.
The commissioners directed staff to draft a letter to CDPHE asking where the department is in its process and how they plan to move forward. Replying to a question from Howard Greene, Whitmore said she does not know why CDPHE has not moved into a formal notice of violation process, which typically they would have done by now.
Hearing the commissioners' plan to enforce the state statute also, Voogt objected that it was "not fair" and that he would have to spend time preparing a defense to this unanticipated action by Aug. 14. Commissioners had no sympathy. “Rather than focusing on the defense, focus on fixing it,” Albritton told him.
CDPHE Sept. 16, 2011 Compliance Advisory findings:
The inspection and report cited four deficiencies:
1. Operating a solid waste disposal site and facility for the disposal of waste tires at a location not having a certificate of designation.
2. Disposal of solid waste at a location without a certificate of designation.
3. Failure to operate the disposal site in accordance with minimum standards of operation for this type of solid waste site and facility.
4. Failure to comply with the standards for tire retailers and waste tire collection.
The required actions for these deficiencies included:
• Immediately ceasing the acceptance and transportation of waste tires
• Removal of all retrievable tires from the waterways within 30 days of receiving the inspection report
• Submission of a closure plan that is in accordance with state regulations to contain the remaining tires that are on the Gunn property
• Maynes must register as a waste tire hauler and tire retailer
• By Nov. 1 Maynes must ensure that all tires retrieved from the property and waterways during the cleanup will be taken to an appropriate disposal facility.