A multi-year litigation effort over who should pay what for the clean-up of mining contaminants in a Sutter Creek subdivision has finally been settled.

The last 12 settlement agreements in an ongoing lawsuit with the U.S. Environmental Protection Agency and Honeywell International regarding arsenic in the soil at the Mesa De Oro subdivision in Sutter Creek was finalized June 12.

An order issued by the Federal District court in Sacramento wrapped up the litigation on the allocation of costs incurred by the EPA in the clean-up of the soils on residential properties that contained mine tailings from the abandoned Central Eureka Mine. The emergency removal action that fell under the federal superfund law amounted to $4.29 million.

"I wasn't here at the time, but I believe it was in the early '90s the Bryson/Mesa De Oro was approved," said City Manager Rob Duke. "It wasn't on our radar that the arsenic was problematic. It wasn't potent enough to harm anyone."

Honeywell International is the corporate successor to the former owners of the mine that closed in 1958. Real estate developer Nehemiah Development and partner Al Kaplan were the contractors on the residential subdivisions that began in the late 1970s on Bryson Drive and Gold Strike Court. The claim was settled by the EPA for $2 million to Honeywell International, with Kaplan and Nehemiah filing cross claims against 36 other parties for their contribution to the EPA clean-up cost. The cross claims netted a total of $181,000 and the EPA eventually settled its claim with Kaplan and Nehemiah for $600,000, plus a $121,000 in contribution claims collected from other parties. The final settlement agreement in June was between Nehemiah and Charles C. Bruner of Auburn for 10 percent of the $600,000.

"This is a cautionary tale for real estate developers and owners of properties in the Mother Lode region of the Central Sierra," said attorney Daniel Reidy, who represented Nehemiah in the case. "Mining waste from former gold mine operations may have high arsenic content and arsenic is a known poison and human carcinogen."

The federal superlaw imposes strict liability on owners and operators of property where hazardous substances have been released, along with construction, excavation and grading activities that can expose or move the contaminated soils.

"In Sutter Creek, a permit was required from the building department if any digging was going to be done past a foot or two of fill dirt," Duke explained. "We were required to encode that and make it an ordinance for the city, which we did three years ago."

In this case, the EPA required Nehemiah Development to clean up 29 residential yards at its own cost. The parties that contributed shares of the clean-up cost approved by the federal court include, among others: Honeywell International - $2 million; Nehemiah Development and Al Kaplan - $600,000 less $60,000 already reimbursed; Warren Noteware - $30,000; Robert and Margot Bugni - $30,000; Jean Hamilton - $25,000; Jack Brusatori - $25,000; The Allen Ranch owners - $10,000; and Robert and Meredith Miller - $10,000.

"The long and short of it is that this is a culmination of 15 or so years," said Duke. "It's a final settlement for the clean-up that was done."