State of Montana Accepts Limited Waiver of Sovereign Immunity from the Navajo Transitional Energy Company
HELENA—The State of Montana has accepted a durable Limited Waiver of Sovereign Immunity (Limited Waiver) from the Navajo Transitional Energy Company (NTEC), the operator of the Spring Creek Mine in Big Horn County, Mont.
In October, NTEC assumed ownership of the coal mine from the bankrupt Cloud Peak Energy Resources, LLC, without having first received final acceptance by DEQ for day-to-day operations of the mine. This led NTEC to temporarily close the mine. The issue complicating DEQ’s ability to accept NTEC, a company created by the Navajo Nation, as operator of the mine was related to NTEC’s claim of tribal sovereign immunity. Without a limited waiver of that sovereign immunity, it was unclear whether DEQ or the public would be able to enforce state laws against NTEC.
DEQ and NTEC reached a short-term agreement on Oct. 25, 2019, that provided a limited waiver of NTEC’s sovereign immunity for all of its duties and obligations under all laws administered by DEQ, ensuring the protection of state environmental laws and all Montanans. NTEC’s provision of this interim limited waiver allowed the mine to reopen as negotiations continued over a long-term solution that would include all laws administered by any State of Montana agency. With a signed interim waiver in place, DEQ issued its acceptance of NTEC as a contract miner responsible for day-to-day operations at the mine. In January, DEQ and NTEC agreed to extend the short-term agreement through March 13, 2020, to allow more time to continue negotiations.
The Limited Waiver accepted today expands NTEC’s waiver of sovereign immunity to include all of NTEC’s duties and obligations under all laws administered by any State of Montana agency. Today’s Limited Waiver also includes additional, insurance-backed protections for any injuries to third parties or their property resulting from NTEC’s operation of the mine.
Today’s announcement does not change NTEC’s status as a contract operator under the existing operating permit, held by Spring Creek Coal, LLC. Before the permit can be transferred to NTEC, the company will have to transfer state and federal mineral leases and acquire bonds sufficient to cover the cost of reclamation at the mine, currently calculated to be around $110 million.
Today, DEQ is also issuing a Final Environmental Impact Statement on a proposed expansion project at the mine. The Final document evaluates the potential impacts of the proposed project in accordance with the requirements of the Montana Environmental Policy Act (MEPA). The proposed project would add 977 acres of new mining disturbance to recover approximately 72 million tons of coal. The project would extend the life of the mine by about four years. The expansion would occur within the mine’s existing permit boundary, which encompasses a total of 9,220 acres.
A draft Environmental Impact Statement was made available for public review and comment beginning on Aug. 27, 2019. More than 500 comments were received and minor revisions to the document were made as a result of public and applicant comments. DEQ appreciates the public’s engagement in the MEPA process.
The Final Environmental Impact Statement is not a decision document but will help DEQ make an informed decision on the permit application. The Record of Decision, which documents DEQ’s decision on the project, the reasons for the decision and any special conditions, will be issued no less than 15 days after publication of the Final Environmental Impact Statement.
The Final Environmental Impact Statement is available on DEQ’s website at: deq.mt.gov/Public/eis