MONGOLIA ENVIRONMENTAL REGULATIONS
Mongolia is a landlocked country located in East Asia, bordered by Russia to the north and China to the south. The country has an area of 1,564,116 km², making it the 19th largest country by geographic area in the world and the second largest landlocked country after Kazakhstan. With a population of just over 3.027 million people (World Bank), Mongolia is the third most sparsely populated country in the world; just under half the population reside in Mongolia’s capital – Ulaanbaatar.
Mongolia’s landscape is predominately a large plateau, with an average elevation of 1,580 m above sea level (Britannica). That said, Mongolia does have two major mountain ranges - the Altai Mountains (Altai meaning “Gold Mountain” in Mongolian) which are situated in the south / southwest of the country and run through China, Mongolia, Russia and Kazakhstan and the Khangai Mountains in the central region. The Gobi Desert, the largest desert in Asia and the fifth largest in the world, occupies most of southern Mongolia. The north of the country is mainly forested, as one travels east the forests transition to steppe – a large grassland area. A vast portion of Mongolia’s land is used for pasture, though the quality and amount of pastureland has decreased considerably in recent years.
Mongolia is one of the coldest countries in the world. The climate is generally described as being continental, with short, hot summers and extremely cold, long winters. Temperatures can vary hugely throughout the year, peaking at around 30°C in the summer months and dropping to as low as -40°C in the winter. Mongolia experiences extremely low levels of precipitation throughout the year, with the majority of rainfall (if any) occurring in the summer.
Amur maple, Siberian elm and Siberian pea shrub are common in Mongolia, as are a vast number (approximately 3,000) of flower species, including the small-flowered winter cress, Mongolian thistle and Siberian trout lily (WWF). In terms of fauna, Mongolia is known to have over: 450 bird species; 139 mammal species; 76 fish species; 22 reptile species and 6 amphibian species (WWF). Notable animals include the snow leopard, wild sheep, Siberian ibex, Bactrian camel, golden eagle and Gobi bear - the only bear species to have adapted to desert conditions and one of the rarest bear species in the world (WWF).
Mongolia faces a variety of environmental problems including desertification as the Gobi Desert expands northwards, water scarcity and air and water pollution. Severe winters – known as dzud or zud – can sometimes occur; this phenomenon results in the large-scale death of livestock due to starvation or exposure to cold temperatures. In 2010 over 8 million animals were killed by the dzud; numbers for 2016 (when the last dzud occurred) are, as yet, unknown. Natural disasters of this type can cause serious humanitarian issues in Mongolia and also impact greatly on the country’s economy. Mongolia is also particularly vulnerable to the impacts of climate change.
PRINCIPAL LEGISLATION AND REGULATOR
The main environmental legislation in Mongolia applicable to the mining industry is the Environmental Impact Assessment Law 2011 (EIAL), which regulates the environmental impact assessment (EIA) process. The EIA process is also regulated by the Minerals Law of Mongolia 2006 (as amended) (ML) and the Environmental Protection Law 1995 (EPL). Also of relevance are the various regulations and procedures published by the Mongolian government, including: the Regulation of Environmental Assessment 2013 (EIA Regulation); the Environmental Strategy and Cumulative Impact Assessment Procedure 2013; the Procedure for the Preparation, Review and Reporting of Environmental Management Plans 2014; the Procedure for Monitoring of Special Accounts of Environmental Protection and Rehabilitation Guarantees 2014; and the Procedure on Community Participation in Environmental Impact Assessments 2014.
The Ministry of Environment and Tourism (MET) is the central administrative body responsible for EIAs and the management of the EIA approval process for mining activities. At the regional level, governors of districts (or soums) (Governor) are responsible for the administration of environmental matters and play a key role in relation to exploration activities.
According to the EIAL, EIAs are conducted to preserve the natural state of the environment, to develop and carry out activities aimed at sustaining environmental balance, and to regulate the use of natural resources (s. 7.1, EIAL).
An EIA is not required in respect of exploration, however, the holder of an Exploration Licence does need to develop an Environmental Protection Plan (EPP) in consultation with the environmental inspection agency and relevant Governor (s. 38.1, ML). The EPP must be prepared within 30 days following the receipt of the licence (s. 38.1.1, ML). The EPP must ensure that the level of environmental pollution does not exceed the accepted limits and that the measures to be taken for reclamation of the area allow for future public use (s. 38.1.2, ML). The EPP must be submitted to the relevant Governor who will review and approve the plan within 10 days of receiving it (ss. 38.1.3 & 38.2, ML). A copy of the EPP must also be delivered to the local environmental inspection agency (s. 38.1.5, ML). Exploration Licence holders must deposit funds equal to 50% of its annual environmental protection budget in a special bank account established by the relevant Governor (s. 38.1.8, ML). Written approval from the relevant environmental agency must also be obtained prior to the commencement of exploration activities (s. 37.2, ML). Annual reports on the EPP must be delivered to the relevant Governor and local environmental inspection agency (s. 38.1.5, ML). Reports must contain information on measures taken to protect the environment; utilised new exploration machinery and technology; and proposed amendments to the EPP directed at preventing possible adverse impacts on the environment, which must be approved by the relevant Governor (s. 38.1.6, ML).
Mining Licence holders must prepare an EIA as part of the licence application (s. 39.1, ML). The EIA must identify the possible adverse environmental impacts from the proposed mining operations regarding public health and the environment and must include preventative measures that avoid and minimize such impacts (s. 39.1.2, ML). EIAs should cover all the environmental and social aspects of a proposed project including aquatic, meteorology, geology, hydrology, geomorphology, climate conditions, air quality, soil, vegetation, animals, citizens’ settlement, history, cultural values and land management plans (s. 2.3, EIA Regulation).
Two levels of EIA exist – general and detailed (s. 7.1, EIAL). In the first instance a general EIA must be undertaken before the need for a detailed EIA can be determined. The application for the general EIA must be submitted to the MET and must contain: a brief description of the proposed project; the feasibility study; the engineering design and drawings; a baseline description of the proposed project environment; a written opinion of the relevant Governor; and other related documents (s. 7.3 read with Annex, EIAL). The EIA Regulation lists additional documents that must be submitted, including: an environmental condition assessment report; a description of the project’s overall land management plan; and a proposal on exploration work where necessary (see s. 3.1, EIA Regulation). An assessment expert must then complete an assessment within 14 days, and issue one of the following opinions:
- The project should not be permitted on the grounds that it is likely to cause considerable harm to the environment, that it does not conform with land management planning, or that its activities are inconsistent with state policy, the strategic assessment opinions or relevant legislation;
- The project may be implemented without a detailed EIA subject to specific conditions; or
- The project requires a detailed EIA (s. 7.4, EIAL).
If required, the detailed EIA must be conducted by an authorised Mongolian legal entity, appointed and licensed by the MET and selected by the project proponent (ss. 8.2, 8.3 & 13.1.2, EIAL; see also s. 7.5, EPL). The expert’s assessment of the general EIA shall define the objectives, areas, scope and duration of the work for the detailed EIA (s. 8.1, EIAL). The detailed EIA must include the following:
- Baseline data and indicators of the environment in which the project is proposed to be implemented;
- Details of the potential negative impacts of the project, including their magnitude, spatial extent and consequences;
- Recommendations for measures to mitigate and eliminate the impacts of the project;
- Recommendations for alternative methods and technology that may potentially reduce the pollution level expected from the proposed project and for the use of environmentally-friendly methods and technology;
- Risk assessment of impacts of the proposed project on human health and the environment if required by the general EIA;
- A description of the mine closure activities, objectives and scope, indicators of restoration measures and details of ex-situ conservation measures for mining projects;
- A description of the objectives, scope and indicators of the Environmental Management Plan (EMP);
- Notes of consultations made with the local authority and community likely to be affected by the proposed project; and
- Other issues pertaining to the special nature of the project (s. 8.4, EIAL).
As part of the detailed EIA process, the authorised legal entity must develop an EMP that is intended to protect and ensure the sustainable use and restoration of nature and the environment; ensure the realisation of recommendations outlined in the strategic assessment; mitigate, eliminate and prevent adverse impacts that are identified in the detailed EIA; and monitor and identify potential negative consequences that may arise in the proposed project environment (s. 9.1, EIAL). The EMP forms an integral part of the detailed EIA (s. 9.2, EIAL). An EMP consists of:
- An EPP, which addresses measures to mitigate and eliminate adverse impacts identified during the EIA and provides timeframes and an estimated budgets for implementation of those measures; and
- An Environmental Monitoring Program, which addresses the monitoring and analysis of changes made to the state of the environment because of the project’s activities. The program will also clarify reporting requirements, the ways to implement the EMP, timeframes and an estimated budget (s. 9.5, EIAL; see also s. 5.4, EIA Regulation for further requirements in respect of Environmental Monitoring Programs).
The EMP must also contain information on key measures for and the scope of the mine closure; human resource and environmental management structures and organisation information; a plan for reporting the progress and results of the EMP to the relevant government agencies and the public; and resettlement, community health, interests, livelihoods, cultural heritage and other planning information (see s. 5, EIA Regulation). EMPs shall have a duration of not more than five years, as such an updated EMP must be submitted and approved every five years (s. 5.11, EIA Regulation). Annual reports on the implementation of the EMP must be submitted to the relevant environmental departments (s. 7.3, EIA Regulation).
Public participation in the EIA process is required by the EIAL. As part of the detailed EIA, the authorised legal entity must organise, at the report preparation stage, consultations with (and formally seek comments from) the local authority, the community that is likely to be affected by the project, and local residents living in the area where the proposed project is going to be implemented (s. 17.4, EIAL; see also the Procedure on Community Participation in Environmental Impact Assessments 2014).
Following completion of the detailed EIA, a report containing the findings of the EIA and related documents shall be submitted to the assessment expert within the period specified in the general EIA (s. 10.1, EIAL). The assessment expert will appraise the report and issue an opinion within 18 working days (s. 10.2, EIAL). The chief assessment expert of the MET may appoint a team of experts to perform the appraisal (s. 10.2, EIAL). The MET will decide whether the project should proceed based on the detailed EIA report and the opinions of the assessment expert and / or technical board that have conducted the appraisal (s. 10.4, EIAL). Note that the legislation is silent on an applicant’s ability to appeal a government decision in a court.
Notably, section 39.1 of the ML also requires Mining Licence holders to develop an EPP before obtaining the licence, (s. 39.1.1, ML). One would assume this EPP is the same as that which forms part of the EMP (see above). The EPP in terms of section 39.1 of the ML must contain measures to ensure that mining operations are conducted in the least damaging way to the environment and must also identify preventive and comprehensive measures to protect air and water, humans, animals and plants from the adverse effects of mining operations (s. 39.1.3, ML). EPPs must also include the following information:
- Storage and control of toxic and potentially toxic substances and underground water;
- Protection, utilisation and conservation of the surface and underground water;
- Construction of tailings dams and ensuring the mine area safety;
- Mine reclamation measures; and
- Other measures as may be appropriate for the mining operation activity (s. 39.1.4, ML).
The EPP must be submitted to the MET for approval (s. 39.1.5, ML). An annual report on the implementation of the EPP must be sent to the MET, the relevant Governor and the professional inspection agency (s. 39.1.7, ML). The report must contain (s. 39.1.7, ML):
- Information on measures taken to protect the environment;
- New machinery and technology utilised; and
- Proposed amendments to the EIA and EPP regarding possible adverse impacts on the environment due to the expansion of mining operations.
The ML holder must deposit funds equal to 50% of its annual environmental protection into a special bank account established by the MET (s. 39.1, ML). (See also the Procedure for Monitoring of Special Accounts of Environmental Protection and Rehabilitation Guarantees 2014).