Judge rules against Atlanta Gold in pollution case

A federal judge has determined that Atlanta Gold Inc. is legally responsible for high levels of arsenic and iron flowing from an abandoned mine shaft and polluting a tributary of the Boise River system.

U.S. Magistrate Judge Mikel H. Williams on Jan. 9 issued a ruling against the mining company, which has been exploring gold deposits for decades in the mountains around the tiny town of Atlanta northeast of Boise.

The Idaho Conservation League and the Northwest Environmental Defense Center sued the company last year, accusing Atlanta Gold of allowing levels of arsenic and iron higher than allowed by permit to flow daily into Montezuma Creek, a tributary of the Middle Fork of the Boise River.

The mining company denied the allegations and claimed the environmental groups lacked the legal footing to file the lawsuit. Company lawyers cited a 2005 agreement that resolved a previous dispute over water pollution at the abandoned shaft as reason to have the new claims tossed out of court.

But Williams rejected the company’s arguments and determined that it’s highly likely Atlanta Gold’s work in and around the shaft in recent years is responsible for increasing water flows, and consequently the levels of pollutants flowing into the stream.

“We’re pretty excited about this,” said John Robison, public lands director for ICL. “We’re relieved that the court is holding Atlanta Gold responsible for their promises to protect water quality.”

Michelle Points, the Boise lawyer representing the Toronto-based company, said she had not had an opportunity to discuss the decision with her clients and declined to comment Jan. 9.

Williams’ decision clears up the liability phase of the case and opens the door for the penalty phase to begin. Robison said ICL is willing to negotiate a fair penalty.

Under federal Clean Water rules, the company faces up to $37,500 per day in fines. In the lawsuit, the environmental groups presented monthly reports filed by the company showing it violated discharge levels set in its permit nearly every day since August 2009.

It is uncertain what the final penalty will be, Robison said. “Any settlement discussions need to include funding for long-term water treatment so that the headwaters of the Boise River aren’t continually threatened by toxic levels of arsenic and iron,” he said.

The company had initially committed to cleaning up the arsenic and iron, and in 2006, in the wake of the first lawsuit, executives agreed to build a water treatment facility. The company was also awarded a discharge permit from the Environmental Protection Agency that required monitoring and monthly reporting.

But last year, the company began severing its interests in the old mining tunnel, including submitting a cleanup plan for the site and opting not to buy the land and its mining claims. Company officials also notified the U.S. Forest Service and EPA officials last May they intended to stop treating water flowing out of the shaft.

In court papers, company lawyers claimed those steps released the company from future violations, but Williams didn’t see it that way.

Company lawyers made the same argument in court, but Williams wasn’t swayed.

The judge wrote that “because of its consistent history of violation and because the violations have continued well after the complaint was filed, it is difficult to accept that a reasonable person might conclude that ACG will not continue to be in violation of its permit until the permit expires or is terminated by the EPA.”

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