On January 13, 2017, the independent claims officer within the Environmental Protection Agency – guided by the U.S. Department of Justice – made a decision on the administrative claims brought under the Federal Tort Claims Act (FTCA) in connection with the Aug. 5, 2015 Gold King Mine release. After careful analysis, the claims officer concluded that the agency is not legally able to pay compensation for the claims.

When passing the FTCA, Congress wanted to encourage government agencies to take action without the fear of paying damages in the event something went wrong while taking the action. So the act does not authorize federal agencies to pay claims resulting from government actions that are discretionary – that is, acts of a governmental nature or function and that involve the exercise of judgment.

Because the agency was conducting a site investigation at the Gold King Mine under the Comprehensive Environmental Response, Compensation, and Liability Act, the agency’s work is considered a “discretionary function” under this law. Therefore, the circumstances surrounding the Gold King Mine incident unfortunately do not meet the conditions necessary to pay claims.

However, those who have filed claims and whose claims have been denied may challenge this decision with the United States District Court within six months of the date of the denial.

The EPA has taken responsibility for the Gold King Mine incident, including providing financial support, continued water treatment and monitoring, developing and implementing a permanent remedial plan for the broader mining region, and research to improve our understanding of how contaminants move through complex river systems.