REGIONAL— After a string of legal defeats, NewRange Copper, formerly PolyMet Mining, and the state’s Pollution Control Agency, chalked up a win in a challenge to its air emissions permit.
In a ruling Monday, the Minnesota Court of Appeals determined that NewRange’s air pollution permit could stand, rejecting a challenge by a coalition of environmental plaintiffs that had argued that the copper-nickel mining company had not been honest about the size of the operation it was seeking to build.
NewRange is a joint venture between the Swiss commodities conglomerate Glencore (which owns the former PolyMet) and Teck Resources, a Canadian company with control over another non-ferrous deposit located near Glencore’s NorthMet deposit.
The ruling comes after years of back and forth in a case that had gone to the state’s Supreme Court, which remanded it back to the Court of Appeals.
The case ultimately hinged on whether NewRange was fully transparent about the scale of its plan to mine sulfide ore for the copper, nickel, and other metals it contained. The company’s permit called for a production rate of 32,000 tons per day, a rate that allowed the company to obtain an air permit as a minor discharger.
But within days of the MPCA’s approval of that permit, the former PolyMet released a technical report which suggested the plant could be far more profitable if it was operated at a higher capacity. Environmental plaintiffs had argued that the company really intended to operate at that higher capacity and should have been required to apply for a major permit and that their permit application, as written, was a sham. But courts have consistently found insufficient evidence to support that claim.
The Court of Appeals did require that the MPCA include some documentation, including the PolyMet technical report, in the administrative record. But it allowed the permit to stand as approved.
“We of course are pleased with the court’s decision,” said Bruce Richardson, a spokesperson for NewRange. “The Court summarized it well when it said in its order that it found the Minnesota Pollution Control Agency made ‘reflective and undisputed findings that show it carefully considered the salient problems…’ concluding that the company ‘will comply with the permit.’”
 Despite the legal victory, the path to actual opening of the proposed mine remains full of hurdles. The company’s permit to mine has been suspended and a recent decision by an administrative law judge recommended against reinstating the permit without significant changes. Earlier this year, the Army Corps of Engineers withdrew its Section 404 wetlands permit over water quality concerns. In August, the court remanded the company’s water discharge, or NPDES, permit back to the agency for further consideration and reversed on the issue of groundwater contamination.
“Although the appellate court has allowed this permit to stand, the approved permit relates to a proposal that can’t be built due to other negative court and agency decisions affecting project permits,” said Jay Eidsness, staff attorney for the Minnesota Center for Environmental Advocacy, the lead plaintiff in the case. “In addition, the recent creation of a joint venture with Canadian mining company Teck, and Glencore’s purchase of all remaining shares of PolyMet stock, means that PolyMet’s proposed mine is substantially different with regard to its management and scope,” said Eidsness.
Richardson said the recent joint venture strengthens and brings additional resources to bear to advance the NorthMet proposal. “Getting NorthMet to the finish line has been and continues to be a primary objective of the partners and NewRange leadership. That commitment remains rock solid in spite of the outcomes of regulatory and legal decisions earlier this year, which have only toughened our resolve. We look forward to the year ahead to continue to work through the outstanding regulatory and legal issues and to further our efforts in community and tribal engagement,” he said.