Decision No. 71/2008/QD-TTg On Deposit for Rehabilitation and Environmental Restoration in Mineral Extraction Activities

Pursuant to …;

On the Deposit for Rehabilitation and Environmental Restoration in Mineral Extraction Activities

________________________

PRIME MINISTER

Pursuant to the Law on Organization of the Government dated December 25, 2001;

The Prime Minister issues this Decision amending and supplementing certain provisions of the Regulation on Response Activities to Oil Spill Incidents issued together with Decision No. 02/2013/QĐ-TTg dated January 14, 2013 of the Prime Minister.

Pursuant to the Minerals Law dated March 20, 1996, and the Law Amending and Supplementing Certain Provisions of the Minerals Law dated June 14, 2005;

Pursuant to Decree No. 160/2005/NĐ-CP dated December 27, 2005 of the Government detailing and guiding the implementation of the Minerals Law and the Law Amending and Supplementing Certain Provisions of the Minerals Law;

CONSIDERING THE PROPOSAL OF THE MINISTER OF NATURAL RESOURCES AND ENVIRONMENT,

DECISION:

PART I

GENERAL PROVISIONS

Article 1. Scope of Regulation and Applicability

1. This Decision details the deposit for rehabilitation and environmental restoration in mineral extraction activities on the territory of the Socialist Republic of Vietnam.

2. This Decision applies to all Vietnamese organizations and individuals, foreign organizations and individuals extracting minerals on the territory of the Socialist Republic of Vietnam.

Article 2. Interpretation of Terms

The environmental remediation and restoration plan established by organizations and individuals extracting minerals to determine the environmental remediation and restoration approach and the total amount of environmental rehabilitation bonds for mineral extraction submitted for approval by competent authorities (hereinafter abbreviated as the Plan).

1. Deposit for Rehabilitation and Environmental Restoration is the act of organizations and individuals permitted to extract minerals depositing a certain amount of money, within a specified period, into the Vietnam Environment Protection Fund or the Local Environment Protection Fund (hereinafter referred to collectively as the Environment Protection Fund) with the purpose of ensuring financial resources for rehabilitation and environmental restoration after mineral extraction.

2. Rehabilitation and Environmental Restoration is the activity of rehabilitating or restoring the environment according to the requirements for rehabilitation and environmental restoration after mineral extraction set out in Appendix 1 attached to this Decision.

3. Rehabilitation and Environmental Restoration Project is a project established by organizations and individuals permitted to extract minerals aimed at rehabilitating and restoring the environment after the mineral extraction process to be submitted to the competent authority for approval. The Rehabilitation and Environmental Restoration Project is accompanied, considered, and approved together with the consideration and approval/confirmation of the Environmental Impact Assessment Report, the Environmental Protection Commitment Letter, and the Environmental Protection Plan.

4. Competent Authority Approving the Rehabilitation and Environmental Restoration Project is the competent authority approving the Environmental Impact Assessment Report, confirming the Environmental Protection Commitment Letter, and the Environmental Protection Plan. The Competent Authority Approving the Rehabilitation and Environmental Restoration Project is also the authority responsible for inspecting and confirming the completion of rehabilitation and environmental restoration.

Article 3. Purpose and Principles of the Deposit

1. The purpose of the deposit is to ensure financial resources for rehabilitation and environmental restoration after mineral extraction activities carried out by organizations and individuals extracting minerals in accordance with the provisions of the law.

2. The minimum deposit amount must equal the actual costs for rehabilitation and environmental restoration after mineral extraction.

Article 4. Organization Receiving Deposits

The Vietnam Environment Protection Fund or the Local Environment Protection Fund (hereinafter referred to collectively as the Environment Protection Fund) is authorized to receive deposits from organizations and individuals permitted to extract minerals.

Article 5. Requirements for Rehabilitation and Environmental Restoration After Mineral Extraction

1. Organizations and individuals permitted to extract minerals must have a Rehabilitation and Environmental Restoration Project. Organizations and individuals extracting minerals base their Rehabilitation and Environmental Restoration Project on the requirements set out in Appendix 1 attached to this Decision and the specific characteristics of their mineral extraction activities to establish the project and submit it to the competent authority for approval.

2. The activity of rehabilitation and environmental restoration after mineral extraction must ensure that the natural environment, including land, water, vegetation cover, and landscape of the entire or part of the mining area after extraction meets the requirements for rehabilitation and environmental restoration stipulated in Appendix 1 attached to this Decision and in accordance with the approved Rehabilitation and Environmental Restoration Project.

Article 6. Subjects required to post a bond

1. Every organization or individual permitted to exploit minerals must deposit a bond for environmental restoration and recovery before commencing mineral exploitation at the Environmental Protection Fund.

2. Organizations or individuals currently engaged in mineral exploitation but have not yet deposited a bond for environmental restoration and recovery must proceed with depositing the bond according to the following regulations:

a) For organizations or individuals exploiting minerals who have prepared an Environmental Impact Assessment Report but lack content and budget estimates for environmental restoration and recovery, they must prepare an additional Environmental Restoration and Recovery Project for review and approval by competent authorities.

b) For organizations or individuals exploiting minerals who have prepared an Environmental Protection Commitment but lack content and budget estimates for environmental restoration and recovery, they must prepare an additional Environmental Restoration and Recovery Project for review and approval by competent authorities.

3. Organizations or individuals with investment projects for construction works, permitted by state agencies to conduct mineral exploitation within the project area, are exempt from depositing a bond for environmental restoration and recovery.

Chapter II

BASIS AND METHODS FOR DETERMINING THE BOND AMOUNT

Article 7. Basis for determining the bond amount

1. The bond amount is calculated based on the scale of exploitation, negative impacts on the environment, characteristics of the post-exploitation mining area, and necessary costs for post-exploitation environmental restoration and recovery. The bond amount is specifically determined in the Environmental Restoration and Recovery Project reviewed and approved by competent authorities.

2. The principle for calculating the bond amount is based on the worst-case forecasted negative impact on the environment and ecology caused by mineral exploitation activities.

3. The bond amount for environmental restoration and recovery is a financial guarantee for environmental restoration and recovery during and after mineral exploitation. The actual amount spent on environmental restoration and recovery depends on the Environmental Restoration and Recovery Project and the actual activities carried out by the mineral exploitation project owner aimed at restoring and recovering the environment.

Article 8. Method of calculating the bond amount and methods of posting a bond

1. The bond amount is calculated as the total cost of environmental restoration and recovery as stipulated in Appendix 2 issued together with this Decision.

2. In cases where the mining period according to the permit differs from the projected period in the investment report and environmental impact assessment report, the bond amount is calculated as the total cost of environmental restoration and recovery multiplied by the time factor T.

T_g

T = -------

_Tb

Where: T_g is the mining period according to the permit; T_b is the projected period in the investment report and environmental impact assessment report.

3. In cases where the mining permit has a term of less than 3 (three) years, a single bond deposit must be made. The bond amount equals 100% (one hundred percent) of the total budget estimate for environmental recovery in the Environmental Restoration and Recovery Project reviewed and approved by competent authorities.

4. In cases where the mining permit has a term of 3 (three) years or more, multiple bond deposits are allowed.

a) The initial bond amount is defined as follows:

- For projects with a mining term according to the mining permit granted (Tg) under 10 years, the initial bond amount is 25% (twenty-five percent) of the total bond amount;

- For projects with a mining term according to the mining permit granted (Tg) from 10 years to under 20 years, the initial bond amount is 20% (twenty percent) of the total bond amount;

- For projects with a mining term according to the mining permit granted (Tg) of 20 years or more, the initial bond amount is 15% (fifteen percent) of the total bond amount.

b) Subsequent bond amounts are calculated as the total bond amount minus the initial bond amount and evenly distributed over the remaining years according to the term of the granted mining permit.

5. In cases where multiple bond deposits are allowed, organizations or individuals exploiting minerals may choose to make a single full deposit of the total bond amount for the entire term of mineral exploitation according to the granted mining permit.

6. In cases where the exploitation period is extended, organizations or individuals exploiting minerals must prepare an additional Environmental Restoration and Recovery Project and make supplementary bond deposits for the extended exploitation activities.

Chapter III

PROCEDURES AND FORMALITIES FOR POSTING A BOND

Article 9. Time for Deposit

1. Organizations and individuals permitted to exploit mineral resources must make their first deposit thirty (30) days before commencing mineral resource exploitation activities.

2. Organizations and individuals currently exploiting mineral resources but have not yet made deposits for environmental remediation and recovery as stipulated in Clause 2, Article 6 of this Decision shall establish an Environmental Remediation and Recovery Project to submit for review and approval by the competent authority and complete the deposit for environmental remediation and recovery by December 31, 2008.

3. For cases involving multiple deposits, subsequent deposits from the second onwards must be completed by January 31 of the following year.

4. In cases where the exploitation period is extended, additional deposits must be completed within thirty (30) days from the date of receipt of the extended exploitation permit.

Article 10. Procedures and Formalities for Deposit

1. Organizations and individuals permitted to exploit mineral resources shall proceed with the deposit procedures at the Environmental Protection Fund.

2. Organizations and individuals making deposits are responsible for paying service fees related to the deposit process at the Environmental Protection Fund according to the provisions of the law.

3. The deposit amount is paid, settled, and recorded in Vietnamese Dong. If there is a need to pay in foreign currency, it will be converted into Vietnamese Dong according to the regulations of the Environmental Protection Fund where the deposit is made. The deposit earns interest on demand deposits and is calculated from the date of deposit.

4. After receiving the deposit, the Environmental Protection Fund must confirm the deposit to the organization or individual exploiting mineral resources; simultaneously, notify the competent authority approving the Environmental Remediation and Recovery Project and the state agency issuing the mineral exploitation permit.

Chapter IV

MANAGEMENT AND USE OF DEPOSIT FUNDS

Article 11. Documentation, Procedures, and Formalities for Confirmation of Completion of Environmental Remediation and Recovery

1. After completing environmental remediation and recovery, organizations and individuals exploiting mineral resources shall prepare documentation and submit it to the competent authority approving the Environmental Remediation and Recovery Project requesting confirmation of the completion of environmental remediation and recovery contents. The documentation includes:

a) A report on the results of implementing the post-mineral exploitation Environmental Remediation and Recovery Project, proposing that the competent authority which approved the Environmental Remediation and Recovery Project confirm the completion of environmental remediation and recovery;

b) A report soliciting community opinions on the completion of post-mineral exploitation environmental remediation and recovery.

2. Solicitation of community opinions shall be conducted as follows:

a) Organizations and individuals exploiting mineral resources shall send a letter to the People's Committee of the commune, ward, town (hereinafter referred to collectively as the People's Committee of the commune) and the People's Council of the commune, ward, town (hereinafter referred to collectively as the People's Council of the commune) where the mineral exploitation takes place, informing them of the environmental remediation and recovery contents implemented and requesting written comments;

b) In cases where the People's Committee or the People's Council of the commune where the mineral exploitation takes place requests a dialogue, the organization or individual exploiting mineral resources must cooperate in its implementation. The results of the dialogue are recorded in a minutes document, reflecting all discussed opinions, opinions accepted or not accepted by the organization or individual exploiting mineral resources, signed by the person chairing the dialogue and the organization or individual exploiting mineral resources, accompanied by a list of attendees;

c) All written comments from the People's Committee, People's Council of the commune where the mineral exploitation takes place, the minutes of the dialogue, and other relevant documents (if any) must be copied and attached as appendices to the Report soliciting community opinions on the completion of post-mineral exploitation environmental remediation and recovery.

3. Inspection and Confirmation of Implementation of Environmental Remediation and Recovery

a) The competent authority decides on the establishment of the Inspection Team. The Inspection Team for the implementation of the Environmental Remediation and Recovery Project includes representatives of local authorities, local natural resources and environment agencies, and the agency issuing the mineral exploitation permit. When necessary, the competent authority conducting the inspection and confirmation may invite technical appraisal agencies to participate in the Inspection Team.

b) The inspection and examination activities to confirm the implementation of the Environmental Remediation and Recovery Project include:

- Reviewing and examining the application for confirmation submitted by the organization or individual exploiting mineral resources;

- Conducting inspections at the project site.

c) The inspection results are recorded in a minutes document and must be signed by representatives of participating agencies, the organization or individual exploiting mineral resources, and local government representatives.

4. Technical Appraisal of Environmental Remediation and Recovery Works

a) The technical appraisal of environmental remediation and recovery works is carried out in accordance with the provisions of the law;

b) Organizations and individuals exploiting mineral resources may invite independent technical appraisal agencies to conduct the appraisal;

c) The costs of technical appraisal are included in the post-mineral exploitation environmental remediation and recovery expenses.

5. Confirmation of Implementation of Environmental Remediation and Recovery Contents

a) The Certificate confirming the completion of the Environmental Remediation and Recovery Project contents is issued by the competent authority;

b) Within three (3) working days from the date of receipt of the documentation, the competent authority conducting the inspection and confirmation must examine the completeness and validity of the documentation and notify the organization or individual exploiting mineral resources to amend or supplement the documentation if it is incomplete or invalid;

c) The competent authority conducting the inspection and confirmation must issue the Certificate confirming the completion of the Environmental Remediation and Recovery Project contents to the organization or individual requesting confirmation within twenty (20) working days from the date of receipt of valid documentation. The time taken to organize and conduct the inspection of the completion of the Environmental Remediation and Recovery Project contents does not count towards the aforementioned twenty (20) working day period.

d) Five (5) years after the completion and maintenance of environmental restoration works according to the approved Environmental Remediation Project, the competent authority approving the Environmental Remediation Project shall organize inspections and confirm the completion of all contents of the Environmental Remediation Project. After confirmation, the organization or individual exploiting minerals may withdraw the final amount according to Clause 2, Article 12 of this Decision.

đ) In case of non-confirmation of the completion of environmental remediation activities, the competent authority conducting inspection and confirmation within twenty (20) working days as stipulated at Point c, Clause 5 of this Article must notify in writing to the organization or individual exploiting minerals, clearly stating the reasons for non-confirmation.

Article 12. Use of Security Deposit

1. The use of security deposit funds must ensure the purpose of post-mineral exploitation environmental remediation. Organizations and individuals, after completing partial or full environmental remediation, are permitted to withdraw partial or full amounts of the deposited funds from the Environmental Protection Fund in accordance with the provisions of Clause 2 of this Article.

2. The final withdrawal of funds shall be carried out after five (5) years from the date when organizations and individuals have been confirmed to have completed the entire environmental remediation work. Mineral exploiting organizations and individuals continue to bear responsibility for the quality of the Environmental Remediation Project in accordance with the requirements set forth in Appendix 1 issued together with this Decision until the final withdrawal of funds.

3. In cases where organizations and individuals exploiting minerals have deposited funds but failed to carry out environmental remediation activities, or mineral exploiting organizations and individuals have deposited funds and have been dissolved or declared bankrupt, the competent authority approving the Environmental Remediation Project shall decide to allow the use of the security deposit funds for environmental recovery and select the entity to carry out environmental recovery in accordance with the law.

4. Five (5) years after the completion of environmental remediation work, organizations and individuals exploiting minerals shall prepare a file requesting the refund of the security deposit. The file includes:

a) A request form for withdrawing the environmental remediation security deposit during mineral exploitation;

b) A document from the competent authority conducting inspection and confirmation that the organization or individual exploiting minerals has fulfilled all obligations for environmental remediation in accordance with the law.

5. Upon receiving a valid file as prescribed in Clause 4 of this Article, within five (5) working days, the Environmental Protection Fund must complete the refund of the security deposit and close the security deposit account, and simultaneously notify in writing to the competent authority approving the Environmental Remediation Project.

6. For interest generated from the security deposit amount, organizations and individuals exploiting minerals have the right to withdraw without the need for confirmation from the competent authority conducting inspection and confirmation.

Chapter V

RESPONSIBILITIES OF MANAGEMENT AUTHORITIES AND UNITS

Article 13. Responsibilities of the Ministry of Natural Resources and Environment

1. To review and approve Environmental Remediation Projects within its approval authority. Send the approval files of the Environmental Remediation Project to the People's Committee of the province or centrally governed city (hereinafter referred to as provincial-level People's Committee) where the organization or individual exploiting minerals is located for inspection and supervision.

2. To inspect and confirm the completion of Environmental Remediation Projects approved by the Ministry of Natural Resources and Environment upon the proposal of organizations and individuals exploiting minerals.

3. To inspect and guide the implementation of security deposits and environmental remediation.

4. To report annually to the Prime Minister.

Article 14. Responsibilities of Ministries, ministerial-level agencies, and government agencies

1. Review and approve Environmental Restoration and Recovery Projects within their authority to review and approve. Send the approval dossier of Environmental Restoration and Recovery Projects to the provincial People's Committee where the organization or individual exploits minerals for inspection and supervision.

2. Inspect and confirm the completion of Environmental Restoration and Recovery Projects approved by Ministries, ministerial-level agencies, and government agencies upon request from organizations and individuals exploiting minerals.

3. Inspect the implementation of performance bonds and environmental restoration and recovery activities of organizations and individuals exploiting minerals within their authority.

4. Annually report to the Ministry of Natural Resources and Environment on the implementation of performance bonds and environmental restoration and recovery activities of organizations and individuals exploiting minerals.

Article 15. Responsibilities of Provincial People's Committees under the Central Government

1. Review and approve Environmental Restoration and Recovery Projects within the authority to review and approve of the People's Committees of provinces and centrally-administered cities.

2. Inspect and confirm the completion of Environmental Restoration and Recovery Projects approved by the provincial People's Committee upon request from organizations and individuals exploiting minerals.

3. Inspect and guide the implementation of performance bonds and environmental restoration and recovery activities of organizations and individuals exploiting minerals within their authority.

4. Annually report to the Ministry of Natural Resources and Environment on the implementation of performance bonds and environmental restoration and recovery activities of organizations and individuals exploiting minerals.

Article 16. Responsibilities of District People's Committees, municipal people's committees under provinces

1. Review and approve Environmental Restoration and Recovery Projects within the authority of district-level People's Committees (hereinafter referred to as district-level People's Committees). Send the approval dossier of Environmental Restoration and Recovery Projects to the provincial People's Committee for inspection and supervision.

2. Inspect and confirm the completion of Environmental Restoration and Recovery Projects approved by the district-level People's Committee upon request from organizations and individuals exploiting minerals.

3. Inspect and guide the implementation of performance bonds and environmental restoration and recovery activities of organizations and individuals exploiting minerals within their authority.

4. Annually report to the provincial People's Committee, centrally-administered city People's Committee about the implementation of performance bonds and environmental restoration and recovery activities of organizations and individuals exploiting minerals.

Article 17. Responsibilities of the Environmental Protection Fund

1. Receive performance bonds from organizations and individuals permitted to exploit minerals, confirm in writing the deposit for the depositor, retain relevant documents related to the deposit, and pay out the deposit according to current regulations.

2. Pay out the deposit to organizations and individuals permitted to withdraw the deposit according to regulations. The Vietnam Environmental Protection Fund reports to the Ministry of Natural Resources and Environment, the local environmental protection fund reports to the provincial People's Committee on the situation of collection, refund, and management of deposits for environmental restoration and recovery according to regulations.

3. Pay interest on deposits to organizations and individuals who have deposited according to current regulations.

4. Urge organizations and individuals exploiting minerals to deposit on time. Recommend the competent authority to issue a decision to impose penalties for late deposit.

Article 18. Responsibilities of organizations and individuals exploiting minerals

1. Must establish a Project for post-mineral exploitation environmental restoration and recovery and submit it to the competent authority for review and approval.

2. Notify the contents of the approved Environmental Restoration and Recovery Project to the People's Committee and the People's Council at the commune level where mineral exploitation takes place for inspection and supervision.

3. Implement a deposit for environmental restoration and recovery in accordance with the provisions of this Decision.

4. Carry out environmental restoration and recovery in accordance with the approved Environmental Restoration and Recovery Project.

5. In cases where organizations and individuals exploiting minerals return or have their mineral exploitation permits revoked, if the deposited amount exceeds the actual amount used for environmental restoration and recovery, the difference will be refunded to the depositing organizations and individuals. The refund shall only be made after confirmation that the environmental restoration and recovery has been completed. If the deposited amount is less than the actual amount used for environmental restoration and recovery, the organization or individual exploiting minerals must pay the difference into the Environmental Protection Fund at the location where the deposit was made.

6. Within five years from the completion of environmental restoration and recovery, organizations and individuals exploiting minerals continue to be responsible for the quality of the Environmental Restoration and Recovery Project; in case of environmental incidents occurring at the site where restoration and recovery were carried out, the responsible organization or individual must invest to address the incident.

Chapter VI

HANDLING VIOLATIONS

Article 19. For organizations and individuals exploiting minerals

1. Organizations and individuals exploiting minerals who fail to make deposits must be suspended from operations or have their mineral exploitation permits revoked in accordance with the laws on minerals; they shall be subject to administrative penalties and bear responsibility for remedying the consequences caused to the environment according to the law.

2. Organizations and individuals exploiting minerals who fail to properly implement environmental restoration and recovery in accordance with the approved Environmental Restoration and Recovery Project shall be subject to administrative penalties in accordance with the law.

3. Organizations and individuals exploiting minerals who delay making deposits beyond the time specified in Article 9 of this Decision shall be fined for delayed deposit at a rate equivalent to 150% of the interest rate applicable at the time of late payment.

Article 20. For the Environmental Protection Fund accepting deposits

1. The Environmental Protection Fund failing to comply with the provisions of this Decision, or intentionally violating regulations on credit deposits, shall be subject to administrative penalties in accordance with the relevant laws.

2. Administrative violations against the Environmental Protection Fund shall be handled based on the provisions of laws related to handling violations in the financial and banking sectors.

Article 21. For authorities with the power to approve and verify the Environmental Restoration and Recovery Project

Officials, civil servants, and authorities approving and verifying the Environmental Restoration and Recovery Project who violate the provisions of this Decision shall be disciplined in accordance with the laws on officials and civil servants and other relevant laws.

Chapter VII

IMPLEMENTING PROVISIONS

Article 22. Effectiveness

1. This Decision shall take effect fifteen days after its publication in the Official Gazette. The Circular Jointly Issued No. 126/1999/TTLT-BTC-BCN-BKHCNMT between the Ministry of Finance, the Ministry of Industry, and the Ministry of Science, Technology, and Environment dated October 22, 1999, concerning deposits for environmental recovery during mineral exploitation, shall be abolished.

2. Specifically, post-exploration and exploitation environmental restoration and recovery for oil and natural gas resources shall be implemented in accordance with the provisions of Decision No. 40/2007/QĐ-TTg dated March 21, 2007, issued by the Prime Minister regarding the removal of fixed facilities, equipment, and means serving oil and gas activities, and shall not fall within the scope regulated by this Decision.

Article 23. Implementation Organization

1. Ministers, heads of ministerial-level agencies, heads of government-affiliated agencies, Chairmen of provincial and centrally-administered city People's Committees, organizations and individuals exploiting minerals, the Environmental Protection Fund, and related organizations and individuals are responsible for implementing this Decision.

2. The Ministry of Natural Resources and Environment shall lead and coordinate with relevant ministries, sectors, and localities to guide and organize the implementation of this Decision./.