Circular No. 38/2015/TT-BTNMT environmental remediation and restoration in mineral mining activities

• Official number: 38/2015/TT-BTNMT
• Legislation Type: Circular
• Organization: The Ministry of Natural Resources and Environment
• Signer: Nguyen Minh Quang
• Issued Date: 30/06/2015

MINISTRY OF NATURAL RESOURCES AND ENVIRONMENT -------	SOCIALIST REPUBLIC OF VIETNAM Independence - Freedom - Happiness ---------------
No.: 38/2015/TT-BTNMT	Hanoi, 30 June 2015

CIRCULAR

ON ENVIRONMENTAL REMEDIATION AND RESTORATION IN MINERAL MINING ACTIVITIES

Pursuant to the Law on Environmental Protection No. 55/2014/QH13 dated 23/6/2014;

Pursuant to the Mineral Law No. 60/2010/QH12 dated 17/11/2010;

Pursuant to the Decree No. 19/2015/ND-CP dated 14/02/2015 of the Government detailing the implementation of some articles of the Law on Environmental Protection;

Pursuant to Decree No.15/2012/ND-CP dated 09/03/2012 of the Government detailing the implementation of some articles of the Mineral Law.

Pursuant to the Decree No. 21/2013/ND-CP dated 04/03/2013 of the Government defining the functions, duties, powers and organizational structure of the Ministry of Natural Resources and Environment;

At the request of the Director General of Vietnam Environment Administration and the Director General of Department of Legal Affairs;

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Chapter I

GENERAL PROVISIONS

Article 1. Scope of regulation

This Circular guides the implementation of provisions on environmental remediation and restoration and deposit for environmental remediation and restoration of the mineral mining activities of Resolution No. 19/2015/ND-CP dated 14/02/2015 of the Government detailing the implementation of some articles of the Law on Environmental Protection (Hereafter referred to as Decree No. 19/2015/ND-CP, including:

1. The order, procedures and contents of appraisal, approval, inspection and certification of completion of environmental remediation and restoration plan (hereafter referred to as plan) and the additional environmental remediation and restoration plan (hereafter referred to as additional plan) of the mineral mining activities.

2. Making of deposit for environmental remediation and restoration of mineral mining activities.

Article 2. Subjects of application

This Circular applies to the state organs, organizations and individuals carrying out the mineral mining activities (hereafter referred to as organizations and individuals) and other relevant organizations and individuals.

Chapter II

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Section 1. Order and procedures for appraisal and approval of plan and additional plan

Article 3. Dossier to request the appraisal and approval of plan and additional plan

1. The organizations and individuals specified under Point a, Clause 1, Article 5 and Point a, Clause 2, Article 5 of Decree No. 19/2015/ND-CP having plan or additional plan and report on environmental impact assessment of the same organ having authority to approve it shall make a plan or additional plan under the form specified in Annex 02 or 04 issued with this Circular and submit it with dossier for appraisal and approval for report on environmental impact assessment. The written request for appraisal and approval is under the form specified in Annex 1B issued with this Circular.

2. In case the dossier for appraisal and approval for the plan is not subject to the provisions in Clause 1 of this Article:

a) A written request under the form specified in Annex 1A issued with this Circular;

b) 07 (seven) plans under the form specified in Annex 02 issued with this Circular;

c) 01 (one) copy of report on environmental impact assessment or registration of satisfaction of environmental standard or the simple environmental protection scheme or the detailed environmental protection scheme approved or certified.

3. In case the dossier for appraisal and approval for the additional plan is not subject to the provisions in Clause 1 of this Article:

a) A written request under the form specified in Annex 1A issued with this Circular;

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c) 01 (one) copy of report on environmental impact assessment or environmental protection plan or commitment to environmental protection or registration of satisfaction of environmental standard or simple environmental protection scheme or detailed environmental protection scheme approved or certified.

d) 01 (one) copy of plan attached to the approved decision.

Article 4. Receipt of dossier and time limit for appraisal

1. The dossier for appraisal and approval for plan or additional plan shall be submitted directly or by post to the organs specified in Clause 1, Article 7 of Decree No. 19/2015/ND-CP.

2. The time limit for appraisal and approval for plan or additional plan is no more than 35 (thirty five) working days after receiving valid dossier. In cases specified in Clause 1, Article 3 of this Circular, the time limit shall comply with the one for appraisal of report on environmental impact assessment.

3. The result of appraisal and approval for the plan or additional plan shall be returned directly at the appraising or approving organ or by post.

Article 5. Appraisal for the plan or additional plan

1. In cases specified in Clause 1, Article 3 of this Circular, the order and procedures for appraisal shall comply with the order and procedures for appraisal of report on environmental impact assessment. The standing organ appraising the report on environmental impact assessment shall coordinate with the standing organ appraising the plan or additional plan (hereafter referred to as the standing organ appraising the report) shall carry out the following contents:

a) Reviews the validity of dossier: The dossier is deemed valid when it has the consent of the standing organ appraising the plan;

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c) Organizes inspection at site, verification of information and data; takes sample for analysis and verification; consults the relevant organizations and individuals; hire experts and occupational-social organizations for counter-argument in case of requirement of the standing organ appraising the plan.

d) Organizes meeting of appraisal board: The minutes of appraisal board is made under the form specified in Annex 6B issued with this Circular.

2. In cases not subject to the provisions in Clause 1 of this Article, the appraisal of plan or additional plan shall comply with the provisions in Clause 2, Article 7 of Decree No. 19/2015/ND-CP. The activities of the appraisal board of plan or additional plan (hereafter referred to as appraisal board) are specified in Section 2 of this Chapter. The appraisal order is as follows:

a) Within 10 (ten) working days after receiving dossier, the standing organ appraising the plan shall establish the appraisal board. The decision on establishment of appraisal board is made under the form specified in Annex No.5A issued with this Circular. In case the dossier is incomplete or invalid, within 5 (five) working days, the standing organ appraising the plan shall notify in writing the organizations or individuals for completion of their dossiers.

b) In case of necessity, within 12 (twelve) working days after the establishment of appraisal board, the standing organ appraising plan shall carry out its inspection at the site and verify information and data; take sample for analysis and verification at location of plan or additional plan implementation and adjacent area; consult the relevant organizations and individuals; hire experts and occupational-social organizations for counter-argument in case of requirement of the standing organ appraising the plan or additional plan.

c) Within 07 (seven) working days after the completion of contents specified under Point a or b, Clause 2 of this Article, the standing organ appraising plan shall hold a meeting of appraisal board. The minutes of meeting, comment of plan or additional plan, plan or additional plan assessment form is made under the form specified in Annex 6A, 7 and 8 issued with this Circular;

d) Within 06 (six) working days after the meeting of appraisal board, the standing organ appraising plan shall give a written notice of the appraisal result to the organizations or individuals.

dd) After receiving the written notice of the appraisal result, the organizations or individuals shall

- Modify and complete the contents of plan or additional plan in case specified under Point b, Clause 4, Article 8 of this Circular. The time limit for modification or addition does not exceed 06 (six) months after the issuance of written notice of appraisal result. The time of modification and completion shall not be included in the time of appraisal and approval specified in Clause 2, Article 4 of this Circular. In case the time of modification or addition of dossier is over, the organizations or individuals have to prepare the plan or additional plan again;

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Article 6. Approval for plan or additional plan

1. In cases specified under Clause 1, Article 5 of this Circular, the order and procedures for approving plan or additional plan shall comply with the order and procedures for approving the report on environmental impact assessment. The standing organ appraising the report on environmental impact assessment shall coordinate with the standing organ appraising plan to implement the following contents:

a) Verifying and reviewing the consistency and completion of dossier and contents after the organizations or individuals have modified and completed it according to the conclusion of the appraisal board;

b) Jointly submitting the report on environmental impact assessment and the plan or additional plan to the competent authorities for approval. The decision on approving the report on environmental impact assessment and the plan or additional plan is prepared under the form specified in Annex No. 9B issued with this Circular.

2. In cases not subject to the provisions in Clause 1 of this Article:

a) If the plan or additional plan is adopted without modification or addition, the organizations or individuals shall affix seal on adjoining edges of pages the plan or additional plan and return it to the organ in charge of appraisal and approval for review and decision on approval with the number prescribed as follows:

- In cases under the appraisal and approval authority of the Ministry of Natural Resources and Environment, the number of dossier must be sufficient to be sent to the addresses: the Ministry of Natural Resources and Environment: 01 (one) copy with 01 (one) CD recording all data; the Department of Natural Resources and Environment of the area where the plan or additional plan is done: 01 (one) copy; organizations or individuals: 01 (one) copy;

- In cases under the approval authority of the People’s Committee of provinces and centrally-run cities (hereafter referred to as provincial-level People’s Committee), the number of dossier must be sufficient to be sent to the addresses: provincial-level People’s Committee: 01 (one) copy with 01 (one) CD recording all data; organizations or individuals: 01 (one) copy;

b) If the plan or additional plan is adopted provided that it must be modified or added. After modification or additions, organizations or individuals shall affix seal on adjoining edges of pages of the plan or additional plan and send it with a written explanation to the organ in charge of appraisal and approval with the number specified under Point a, Clause 2 of this Article;

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3. The approving organ shall send the approval decision attached to the plan or additional plan approved to the organizations, individuals and organs specified in Clause 2 of this Article and send 01 (one) approval decision to the environmental protection fund which receives the deposit for environmental remediation and restoration.

Section 2. Contents of appraisal and activities of appraisal board

Article 7. Contents of appraisal of plan or additional plan

1. The legal grounds and consistency with the structure and contents of the plan or additional plan.

2. The consistency of contents of plan or additional plan with the requirements for environmental protection, mineral mining planning, land use planning and environmental planning (if any) of the locality

3. The grounds for calculating volume of items and expenditure of environmental remediation and restoration; correct and complete calculation of volume and estimation of expenditure and consistency of method of deposit.

Article 8. Principles for operation and conclusion of appraisal board

1. The appraisal board is established to appraise each plan or additional plan.

2. The appraisal board shall give advice to the appraising organs, approve the plan or additional plan and take responsibility before law and appraising organ and approve the result of appraisal.

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4. The appraisal conclusion is shown accordinig to 01 (one) in 03 (three) cases as follows:

a) Adoption: when all members of appraisal board participating in the meeting have unanimous approval evaluation form without any modification or addition;

b) Adoption provided that there must be modification or addition: when there are at least 2/3 (two thirds) of number of board members attending the meeting have their approval evaluation form or adoption with required modification or addition including the Chairman or authorized Vice Chairman having his/her consent evaluation form to adopt or adopt with required modification or addition;

c) No adoption: when there is more than 1/3 (one third) of of number of board members attending the meeting have their disapproval evaluation form.

Article 9. Responsibility and powers of members of appraisal board

1. Responsibility of board members:

a) Study the plan or additional plan and relevant dossiers and documents provided by the appraisal organizing organ;

b) Participate in the meetings of the appraisal board, investigation and survey organized during the implementation (if any);

c) Write comments and send them to the appraising organs before the official meeting of the appraisal board at least 01 (one) working day in advance; present their opinions at the official meeting of the appraisal board;

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dd) Manage documents provided as prescribed by law and return such documents upon the requirements of the appraisal organizing organ after completion of duties;

e) Take responsibility before the appraising or approving organs and before law for their comments or evaluation and assigned work contents during the appraisal;

2. Powers of board members:

a) Request the appraising organs to provide documents related to the dossier for appraisal for study and evaluation;

b) Recommend the appraising organ for organizing specialized meetings and conferences and other activities for direct service of appraisal;

c) Attend the meetings of the appraisal board and other activities for the purpose of appraisal;

d) Directly discuss with organizations or individuals at the meetings of the appraisal board; reserve their opinions in case they are different from the conclusion of the appraisal board;

dd) Receive remuneration under the current regulations upon implementation of duties; receive their traveling expenses, accommodation and other expenses as prescribed by law upon participation in activities of the appraisal board.

3. In addition to responsibilities and powers specified in Clause 1 and 2 of this Article, the Chairman of appraisal board has additional responsibilities and powers as follows:

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b) Deals with opinions presented in the meetings of the appraisal board and give conclusions thereof.

c) Signs minutes of meetings and takes responsibility before the appraising or approving the conclusions given in the meetings under his/her assigned responsibilities and powers.

4. The Vice Chairman of the appraisal board has his/here responsibilities and powers like the members of the appraisal board as specified in Clause 1 and 2 of this Article and like the Chairman of the appraisal board in case authorized by the Chairman.

Article 10. Responsibilities of the standing organ appraising plan

1. Reviews the valiadity of dossier for appraising the plan or additional plan.

2. Drafts the decision on establishment of appraisal board and submits to the competent level for review and decision.

3. Contacts and requires organizations or individuals to additionally provide relevant documents in case of necessity and distribute them to the other members of the appraisal board.

4. Organizes the meetings of appraisal board and other its activities.

5. Notifies in writing the project owner of the appraisal result and the requirements related to the completion of appraisal dossier.

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7. Drafts the decision on approving the plan or additional plan and submits it to the competent level for consideration and decision.

Article 11. Conditions of official meeting of the appraisal board

1. There is an attendance (presence at the meeting or online attendance) of at least from 2/3 (two thirds) or more of a number of members of appraisal board under the establishment decision. The appraisal board shall not hold a meeting upon the absence of the Chairman or the Vice Chairman (in case authorized by the Chairman upon his/her absence).

2. There is an attendace of legal representative of organizations, individuals or authorized person.

3. Organizations or individuals have paid the appraisal fees of plan or additional plan as prescribed by law.

Chapter III

DEPOSIT FOR ENVIRONMENTAL REMEDIATION AND RESTORATION

Article 12. Calculation of deposit

1. The total deposit (not including the factor of price slippage) is equal to the total expenditure of items of works of environmental remediation and restoration. The method of calculation and estimation of expenditure for environmental remediation and restoration is specified in the Annex 11 issued with this Circular.

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3. The organizations or individuals submitting the annual deposit must calculate the factor of price slippage defined by the annual deposit specified in Clause 2 of this Article multiplied by the consumer price index of the previous years from the time of approval of the plan or additional plan. The consumer price index is applied as per the announcement from the General Department of Statistics for the locality where the mineral mining activities are carried out or from the competent organs.

4. Duration of deposit:

a) Where the organizations or individuals request the issuance of new mineral mining Permit, the time of deposit is defined by the investment projects which are appraised by the competent authorities but must not exceed a maximum of 30 (thirty) years;

b) Where the organizations or individuals already have the mineral mining Permit: the time of deposit is defined by the remaining duration of the mineral mining Permit from the time to approve the plan or additional plan;

c) Where the mineral mining Permit has its duration of mining different from the time calculated in the approved plan or additional plan, the organizations or individuals shall modify the contents and calculate the deposit amount by the time specified in the issued mineral mining Permit and send it to the organ having the authority to approve the plan or addition plan for consideration and modification.

Article 13. Method of deposit

1. Where the organizations or individuals have the mineral mining Permit with a duration of less than 03 (three) years, they shall deposit one time only. This deposit is equal to 100% (one hundred percent) of the approved amount taking into account the price slippage at the time of deposit.

2. Where the organizations or individuals have the mineral mining Permit with a duration of more than 03 (three) years, they shall make some deposits. The first amount of deposit must take into account the price slippage at the time of deposit and is defined as follows:

a) The mineral mining Permit with duration of less than 10 (ten) years: the first deposit is equal to 25% (twenty five percent) of the total deposit;

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c) The mineral mining Permit with duration of 20 (twenty) years or more: the first deposit is equal to 15% (fifteen percent) of the total deposit;

3. The deposit whose the price slippage is taken into account shall be declared and paid by the organizations or individuals and notified to the environmental protection fund at the place of deposit under the form specified in Annex 12 issued with this Circular.

4. Where the organizations or individuals have made their deposit as prescribed by law but have stopped their mining activities for 01 (one) year or more, they must make a written report to the competent organs having authority to approve the plan or additional plan for adjustment of deposit of the subsequent times.

5. Where the organizations or individuals permitted to carry out the mineral mining activities transfer the mineral mining right or implement the sale, purchase, renaming, merger or consolidation of the enterprise, the organizations or individuals receiving the mineral mining right or the organizations or individuals as new owners of the enterprise must continue to fulfil their obligations on environmental remediation and restoration and make deposit for environmental remediation and restoration under the approved plan or additional plan.

Article 14. Time of deposit and receipt of deposit

1. Time of deposit:

a) The organizations or individuals that are mining mineral shall make the first deposit within 30 (thirty) working days after the approval of plan or additional plan;

b) The organizations or individuals that are issued with new mineral mining Permit shall make the first deposit before the registration of starting date of basic mine construction.

c) In case of making deposits for several times, the second deposit onwards must be made before the 31^st of January of deposit year.

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a) The place of deposit receipt is specified in Clause 3, Article 8 of Decree No. 19/2015/ND-CP. Where any locality has no its environmental protection fund, the organizations or individuals shall make their deposit at the Vietnam Environment Protection Fund;

b) The environmental protection fund shall check the correctness of deposit and issue the Certificate of deposit to the organizations or individuals under the form specified in Annex 13 issued with this Circular.

Article 15. Deposit refunding

1. The principles for deposit refunding:

a) The refunding of deposited money is done under the provisions of Clause 4 and 5, Article 8 of Decree No. 19/2015/ND-CP;

b) The deposited money not related directly to the expenditure for implementation of works of environmental remediation and restoration shall be refunded 01 (one) time after the completion of all plan or additional plan has been certified.

2. Within 05 (five) working days after receipt of Certification of completion of environmental remediation and restoration, the place receiving the deposit shall refund the deposit to the organizations or individuals.

3. The refunding of deposited money to the organizations or individuals that return or are revoked their mineral mining Permit is done after there is a decision on closure of mineral mine.

Chapter IV

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Article 16. Dossier to request the certification of partial completion of plan or additional plan

1. After completing each part of contents of environmental remediation and restoration under the approved plan or additional plan, the organizations or individuals shall prepare and send their dossiers to request the competent organs specified in Clause 2, Article 9 of Decree No. 19/2015/ND-CP for verification and certification of completion.

2. The dossier to request the certification of partial completion of plan or additional plan includes:

a) A written request under the form specified in Annex 14 issued with this Circular.

b) 07 (seven) Reports on partial completion of plan or additional plan under the form specified in Annex 15 issued with this Circular.

Article 17. Verification and certification of partial completion of plan or additional plan

1. The time limit for certification of partial completion of plan or additional plan is no more than 40 (forty) working days after the certifying organ receives the complete and valid dossiers.

2. Order of verification and certification:

a) Within 10 (ten) working days after the receipt of dossier, the certifying organ shall establish an inspection team which consists of representative of certifying organ, representative of organ issuing the mineral mining Permit, experts of environment and mineral and other relevant areas; representative of organ managing the local environment and environmental protection fund where the organizations or individuals have made their deposit. In case of necessity, the certifying organ shall invite the organ supervising the environmental and works quality and some relevant unit to participate in the inspection team. The decision on establishment of inspection team is made under the form specified in Annex 16 issue with this Circular. In case the dossier is incomplete or invalid, the certifying organ shall notify in writing the organizations or individuals for addition and completion.

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c) Within 20 (twenty) working days after the completion of inspection, the certifying organ shall issue the Certification of partial completion of plan or additional plan under the form specified in Annex 18 issued with this Circular;

d) In case of necessity, the certifying organ shall consult in writing the organ issuing the mineral mining Permit about the mineral reserve within the area whose environment has been remediated and restored. The time to consult the opinions is not included in the time for certification of partial completion of plan or additional plan;

dd) Where the items and works whose environment has been remediated and restored but the quality and volume do not consist with the approved plan and additional plan, the certifying organ shall notify in writing and state the shortcomings to the organizations or individuals for remedy and completion.

3. The result of certification shall be returned at the certifying organ or by post.

4. Where the organizations or individuals mining the mineral requests to return a part of area which has been mined, the order and procedures for inspection and certification of partial completion shall comply with the order and procedures for approval and acceptance of mine closure scheme stipulated by the Ministry of Natural Resources and Environment. During the acceptance of mine closure scheme of each part, there must be the involvement and written opinion of the organ having the authority to appraise the scheme. The decision on mine closure shall supersede the certification of partial completion of plan or additional plan.

Article 18. Contents of inspection and working principles of inspection team

1. Contents of inspection:

a) Inspecting each content and item of works of environmental remediation and restoration completed in comparison with the reports and dossiers organizations or individuals have submitted;

b) Inspecting the volume, quality, result of maintenance of items of environmental remediation and restoration compared with the targets committed in the plan or additional plan, mining design dossier and applicable standards and regulations.

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3. The inspection team only carries out the actual inspection of items and works of environmental remediation and restoration upon satisfaction of following condtions:

a) There are at least 2/3 (two thirds) of members of inspection team under the establishment decision of the certifying organ with the required presence of the team Head (or Deputy Head upon the Head’s absence).

b) There are competent representatives of organizations or individuals;

c) The organizations or individuals have paid the fees of inspection and certification of plan or additional as prescribed by law.

Article 19. Responsibilities and powers of inspection members

1. Responsibilities and powers of inspection members:

a) Study dossiers for certification of partial completion of plan or additional plan;

b) Participate in the meetings and actual inspection activities of inspection team;

c) Discuss directly with the organizations or individuals about the items and works of environmental remediation and restoration during the actual inspection;

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dd) Manage the provided materials as prescribed by law and return them upon requirement of the organ performing the inspection after the completion of duties;

e) Receive renumeration as prescribed by the current regulations of law during the actual inspection.

2. In addition to the responsibilities and powers specified in Clause 1 of this Article, the Head of inspection team shall have additional responsibilities as follows:

a) Takes general responsibility for activities of the inspection team;

b) Assigns duties to the members of inspection team;

c) Chairs and runs the meetings of inspection team;

d) Deals with recommendations of members of inspection team, organizations or individuals and representatives of relevant organizations or individuals during the actual inspection and comes to his/her conclusion.

Article 20. Certification of completion of the whole of plan or additional plan

1. The certification of completion of the whole of plan or additional plan is done in accordance with the provisions in Clause 3, Article 9 of Decree No. 19/2015/ND-CP.

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3. The order and procedures for certification of completion of the whole of plan or additional plan are done the same as those for approval and acceptance of mine closure scheme stipulated by the Ministry of Natural Resources and Environment.

Chapter V

IMPLEMENTAITON PROVISION

Article 21. Implementation organization

1. The Vietnam Environment Administration is the organ which appraises and submits the plan or additional plan to the Ministry of Natural Resources and Environment for approval; inspects and certifies the partial completion of plan or additional plan under the inspection and certification authority of the Ministry of Natural Resources and Environment.

2. The Department of Natural Resources and Environment is the organ which appraises and submits the plan or additional plan to the provincial People’s Committee for approval; inspects and certifies the partial completion of plan or additional plan under the inspection and certification authority of the provincial People’s Committee.

3. The provincial People’s Committee shall report to the Ministry of Natural Resources and Environment on the actual implementation and deposit for environmental remediation and restoration before the 31^st of December annually under the form specified in Annex 20 issued with this Circular. The Department of Natural Resources and Environment is responsible for reviewing, inspecting and urging the organizations or individuals in the areas to implement and make deposit for environmental remediation and restoration as prescribed by law; updates database of environmental remediation and restoration in mineral mining on the website at http://www.caithienmoitruong.vea.gov.vn.

Article 22. Effect and responsibility for implementation

1. This Circular takes effect from 17 August 2015 and supersedes Circular No. 34/2009/TT-BTNMT dated 31 December 2009 of the Minister of Natural Resources and Environment stipulating the formulation, approval, inspection and certification of environmental remediation and restoration projects and deposit for environmental remediation and restoration for the mineral mining activities.

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3. Any difficult or problem arising during the implementation of this Circular should be promptly reported to the Ministry of Natural Resources and Environment for consideration, adjustment or addition accordingly./.

MINISTER




Nguyen Minh Quang