Status of Stakeholder Consultations on Nuclear Bills

Meeting report

MINERALS & ENERGY PORTFOLIO COMMITTEE
12 October 1999
REPORT TO THE COMMITTEE ON THE STATUS OF STAKEHOLDER CONSULTATIONS ON THE NUCLEAR ENERGY BILL AND NATIONAL REGULATOR BILL AND THE ARISING AMENDMENTS

 

Documents Distributed
Department of Mineral and Energy Affairs/ State Law Advisors Report to the Portfolio Committee on Minerals and Energy on 12 October, 1999 Regarding the Status of Stakeholder Consultations on the Nuclear Energy Bill and National Nuclear Regulator Bill and the Arising Amendments
Comment By Blaauwberg Municipality On The National Nuclear Regulator Bill B 11-99

 

SUMMARY
Professor Mohamed was appointed as the new acting Chairperson. The report on the Status of Stakeholder Consultations on the Nuclear Energy and National Regulator Bills and Arising Amendments was presented to the members. It was decided that the committee would meet with the Minister next week to discuss the report as well as the arising amendments.

 

MINUTES
The committee appointed Prof Mohamed (African National Congress) as acting Chairperson with no debate. The Chairperson, Mr Duma Nkosi (African National Congress), was injured in an incident in Johannesburg and it is unknown when he will be able to return.

Dr de Waal read through the document presented to the committee (see documents attached). The floor was then opened for any comments or issues of clarity.

 

Questions and answers
Mr Gomomo (African National Congress) wanted clarification for amendments where there was no agreement. He wanted to know what happened when there was no agreement, in some sections it was not indicated what was going to happen.

Mr de Waal explained that at the meeting next week with the Minister all of the amendments, regardless whether or not there was agreement, were going to be discussed by the committee.

Mr Davidson (Democratic Party) wanted clarification on what documents were going to be considered at next weeks meetings.

Dr de Waal answered that the committee will consider the bill clause by clause with all of the proposed amendments. The bill and amendments will be kept as two separate documents.

Mr Oliphant (African National Congress) did not think that section 6.21 of the document was clear. Who exactly was supporting that Nuclear Authorisation be transferable. He also wanted clarification on why in some sections both the Department and the State Law Advisors were mentioned and in other sections they were mentioned separately .

Dr de Waal answered the second question first by explaining that some cases were purely law issues and only needed the Advisors while others were policy issues and only needed the Department. He explained that the Chamber of Mines(COM) and the National Union of Mineworkers (NUM) do not support the position of the CNS, the Department, or the State Law Advisors that Nuclear Authorisation should be transferable. Dr de Waal proposed that this issue be discussed now.

It was decided by the committee that all debates stand until the next meeting. The committee wanted more time to look at the new issues brought forward by the new document.

The next meeting will be with the Minister which will take place on Monday October 18, 1999 at 14H00. This time is subject to change if there is not agreement among the whips of each party.

These minutes have been supplied by Contact.

Appendix 1:

Department of Mineral and Energy Affairs/ State Law Advisors Report to the Portfolio Committee on Minerals and Energy on 12 October, 1999 Regarding the Status of Stakeholder Consultations on the Nuclear Energy Bill and National Nuclear Regulator Bill and the Arising Amendments

Following the Portfolio Commitee's resolution on 9 March 1999 to continue the process at the next sitting of Parliament and to allow for further consultations, comment from the following parties must be consideration:

1. Department of Health (DOH) comments to DME on 2 September 1999 (NRB)
2. Blaauwberg Municipality (BM) comments to PPC on 4 October 1999 (NRB)
3. Department of Minerals and Energy (DME) proposals at the PPC on 6 & 7 September 1999
4. Parliamentary Portfolio Committee (PPC) meeting minutes of 7 September 1999
5. Chamber of Mines (COM) and National Union of Mineworkers (NUM) combined proposals to DME (NRB)
6. Council for Nuclear Safety (CNS) comments submitted to the PPC on 22 September 1999 (NRB
7. Eskom Comments to DME on 8 October 1999

1. Department of Health comments on 2 September 1999 (NRB)

A meeting between DME and the DOH was held on 21 September 1999 and the following must be noted:

1.1 It was confirmed that Group IV hazardous substances were excluded from the NRB as defined in Clause 1 of the Hazardous Substances Act, No 15 of 1973, as per Clause 2(2)(c).

1.2 In order to be consistent with present practice and responsibilities of DOH Clause 2(2)(d) must be amended by the deletion of "not situated at a nuclear installation". See Annexure A, page 5, paragraph (d).

1.3 To be consistent with the regulatory responsibilities of DOH regarding transport of Group IV substances, under the Hazardous Substances Act, No 15 of 1973, Clause 6(1)(h) must be qualified by the following amendment: Insert in front of sentence "for the purposes of this Act" and delete "for any purpose". See Annexure A, page 8, paragraph 4.5.

2. Blaauwberg Municipality comments (NRB)

A meeting between DME and the Blaauwberg Municipality (BM) was held on 11 October 1999 and the following must be noted:

2.1 BM commented on Clause 34(5) "The Minister may, on recommendation of the board, impose limitations on the development surrounding any nuclear installation to ensure the effective implementation of any applicable nuclear emergency plan". BM feels that this makes the Local Authority's power to control development around a nuclear installation subject to the Minister's decision whilst there was existing planning legislation.

 

DME position: To address Blaauwberg's concerns an amendment is proposed whereby the Minister must make regulations on the development surrounding nuclear installations in consultation with the relevant municipality. See Annexure A, page 24, paragraph 4.

2.2 BM: "The Bill makes no provision for a decommissioning plan for the Koeberg Nuclear Power Station".

 

DME position: The NRB makes provision for decommissioning in Clauses 2(1)(a), 5(b), 17(1) and 18. The details of the decommissioning plan can also be addressed when making regulations as per the proposed amendment in 2.1 above.

2.2 BM: "The Bill does not define which party is responsible for the costs of the emergency plan"

 

DME position: The proposed amendment to Clause 34 of 10 March 1999 makes provision for the costs to be covered by the holder of a nuclear authorisation. It was also agreed to add the word "implementation" after "establishment". See Annexure A, page 24, subclause (b).

3 DME proposals at the PPC on 6 & 7 September 1999

3.1 Clauses 14 and 25 on "Funds of the Regulator" were found inconsistent with the Public Finance Management Act and must be amended to provide for the payment of fees to the Regulator and not to the National Revenue Fund.

 

DME/SLA position: See amendments as per Annexure A, page 15, paragraph 1 & 2 and page 20 paragraph4.

3.2 Clause 20(2)(b) must be reviewed for consistency with the Minerals Act (Clauses 38 & 39) and the Mine Health and Safety Act (Clauses 49 and 98). DME/SLA position: Reference made to Minerals Act. See Annexure A, page 18, paragraph 3.

4 PPC meeting minutes of 7 September 1999

Nuclear Energy Bill

4.1 Paragraph i of Minutes: Clarity required from DME on the commercialisation of the AEC.

 

DME position: At the PPC meeting of 7 September DME, referred members to the State Law Adviser's notes (10 March) on Clause 13 which clarified the matter.

4.2 Paragraph ii of Minutes: Clarity required from SLA on 1) whether legislation not yet enacted could amend already enacted legislation and 2) reference in one Bill to another Bill where both are to be enacted simultaneously.

 

SLA position: Clarification is provided by SLA in Annexure B, page 6 and 1 respectively.

Nuclear Regulator Bill

4.3 Paragraph i of Minutes: Clarity required from SLA on Clause 7 proposed amendment Alternative 2: "..plus not more than five other directors".

 

SLA position: Clarification is provided by redrafted wording, see Annexure A page 9, paragraph 1.

4.4 Paragraph ii of Minutes: Policy position required from Minister on Safety Advisory Forum:

Still to be addressed

4.5 Paragraph iii of Minutes: The issue of accountability of the Inspectorate and independence of the Regulator referred to the Minister for clarification.

 

Minister's position: The Minister will address the PPC on 18 October 1999.

4.6 Paragraph iv of Minutes: Clarity required on compensation for regulator's employees Clause 31.

 

DME/SLA position: Employees to be covered by COIDA as previously stated. See Annexure A.

4.7 Paragraph v of minutes: DME to clarify Group IV Hazardous Substances.

 

DME position: DME to address as per Annexure C.

4.8 Paragraph vi of Minutes: DME to address issues raised by DOH.

 

DME position: Done on 2 September 1999. See notes in 1 above.

4.9 Paragraph vii of Minutes: The Bill must be reviewed for consistency with the Public Finance Management Act and the Minerals Act.

 

SLA position: The Public Finance Management Act will take effect on 1 April 1999 at which time it will override the financial provisions in the NEB and NRB. See also 3.1 and 3.2 above.

5 COM/NUM proposals (NRB)

The Chamber of Mines and the National Union of Mineworkers have produced a combined document on their comments which have been submitted to the Department for discussion. Several meetings between the Department and COM/NUM took place and very good progress has been made.

5.1 Proposal on the definition of "Human Activity"

DM/SLA position: Originally the term "activity" was used but due to possible confusion with radioactivity it was replaced with the term "human activity". To address the issues DME/SLA now considers that the term "human activity" should be deleted and replaced with the word "action" throughout the Bill. See Annexure A, for new definition of "action".

5.2 Proposal on definition of "Nuclear Accident"

DME/SLA position: There must be a release or a dose before there can be nuclear damage. The sequence of the wording was therefore changed. See Annexure A, page 2, paragraph 2.

5.3 Proposal on definition of "Nuclear Installation". Wording must be such that mines are not nuclear installations, but that the Minister may, after consultation with board, declare any facility a nuclear installation.

 

DME/SLA position: Proposal supported but wording finalised by SLA. See Annexure A.

5.4 Proposal to change the definition of "nuclear site" to "site" with amended definition.

DME/SLA position: Proposal accepted. See Annexure A.

5.5 Proposal to include "radioactive waste" in Clause 2

 

DME/SLA position: DME/SLA maintains that the Bill clearly makes the Regulator responsible for regulation of radioactive waste as radioactive material since:

 

• "2(1) The act applies to (a) "..... operation of any nuclear installation". The definition of the latter includes, "a facility specifically designed to handle, treat, condition, temporarily store or permanently dispose of any radioactive material which is intended to be disposed of as waste material", and the act applies to

 

 

• 2(1)(c) "any actions involving radioactive material .....". This clearly includes radioactive waste.

 

The management of radioactive waste is only one of several operational activities in a nuclear installation like security, maintenance, training or the management of spent fuel, which are not specifically specified in Clause 2 at present. Radioactive waste is radioactive material and therefore properly covered under this term. It therefore does not need to be specifically mentioned. However, if the PPC should decide that radioactive waste should be specifically specified then other types of radioactive materials should be included for consistency, for example spent fuel, radioactive sources, new nuclear fuel, etc. If radioactive waste management is specifically specified then all other specific operational activities should be specified for consistency, like spent fuel management, new fuel management, security, maintenance, training, etc. In an effort to reach consensus SLA proposes that the definition of "nuclear material" be amended by adding "which includes, but is not limited to, radioactive waste and spent nuclear fuel". See Annexure A, see page 4. Paragraph 11..

5.6 Proposal to make reference to the National Environmental Management Act (NEMA).

DME/SLA position: The proposal is not supported. There is no justification. NEMA stand on its own.

5.7 Proposals to reword Clause 2(2).

DME/SLA position: Clause 2 has been amended. See Annexure A, page 5, paragraph 2..

5.8 Proposal on "Stakeholder Advisory Forum".

Minister's position: Minister to address the PPC on 18 October 1999.

5.9 Proposal on Co-operative Governance.

DME/SLA position: Wording redrafted, see Annexure A, page 6, paragraph 1.

5.10 Proposal on Board of the Regulator.

DME/SLA position: Included as option 1 of proposed amendments. See Annexure A, page 9, par.1.

5.11 Proposal to provide for Committees of the Board.

DME/SLA position: Retention of provisions for committees as per the existing Nuclear Energy Act is supported. See Annexure A, page 12, new clause..

5.12 Proposal on Clause 22 to make provision for the transfer of a nuclear authorisation.

DME/SLA position: Proposal not supported, but PPC can debate. See Annexure A, page 18, clause 22.

5.13 Proposal on Clause 25 "Fees for Nuclear authorisation".

DME/SLA position: Agree with the inclusion of "in consultation with the Minister of Finance". See Annexure A, page 20, par.1.

5.14 Clause 27 on liability

DME/SLA position: still under consideration DME/SLA

5.15 Clause 31: compensation for Regulator's employees.

DME/SLA position: To be covered by COIDA. The employees of the regulator is covered by the liability provision for nuclear installations. In other cases an accidental overexposure is not conceivable. Therefore no amendment.

5.16 Clause 34 on emergency planning.

DME position: Not in agreement with COM comments regarding emergency planning costs. Costs should be covered by the holder of a nuclear authorisation and not the tax payers of the local authority. Establishment of a competent nuclear emergency plan should not be hampered by lack of funds.

5.17 New issue: DME/SLA propose to replace "Regulator" with "Inspector" in Clause 37 (4). See Annexure A, page 25, par.1, 2 and 4.

5.18 Clause 37 "A" to insert "and despite Clause 2(4)".

SLA position: Already stated in Secton 2, not necessary to repeat.

5.19 Clause 37(4)(e): Reword to improve clarity and logic.

 

SLA position: Wording amended, see Annexure A, page 25, par.4..

5.20 Clause 37(4)(f) on Inspectors' powers in respect of sites involving radioactivity below safety standards.

DME/SLA position: Agree in principle, wording amended. See Annexure A, see page 25, par (f).

5.21 Clause 42: Confusion with reference to clause 32.

 

DME/SLA position: Reference to clause 32 deleted.

5.22 Clause 43 on delegation by Minister to be limited.

 

DME/SLA position: Agree with proposal in principle. Wording finalised by SLA. See Annexure A, page 28, par.1.

5.21 Clause 46(2)(ii): The subclause on "trade secrets or other confidential financial, commercial, scientific or technical information" should apply to employees of the Regulator, and not be applicable to employees of the nuclear authority holder. This will allow for uninhibited flow of information to the Regulator as it would be a criminal offence to disclose such information. In the case employees of the holder of a nuclear authorisation it is covered under common law. This is consistent with the Open Democracy Bill.

 

DME/SLA position: Agreed. See amended wording in Annexure A, page 29.

6 CNS comments submitted to the PPC on 22 September 1999 (NRB)

Since the amendments of 10 March 1999 the CNS has not raised any issues with the Department or the PPC. The CNS made a presentation to the PPC on 22 September. A meeting between the Department and the CNS took place on 8 October 1999 on these issues.

6.1 Definition of "human activity" to be replaced with "practice".

DME/SLA position: See paragraph 5.1 above. Human activity replaced with "action".

6.2 Definition of "nuclear installation". A nuclear facility built on a mining site should fall under he definition of a nuclear installation.

 

DME/SLA position: Agreed, issue resolved. See Annexure A, page 3, ar.5..

6.3 Definition of "nuclear damage". The provision on damage to the environment is extremely wide.

DME/SLA position: The SLA has reviewed the proposed extended wording and considers the existing wording appropriate. It is considered premature to use the Vienna Convention, which has not been accepted internationally and is still very much under debate.

6.4 Proposal to replace Clause 2(1)(c) with "any practice which is capable of causing nuclear damage.

DME/LA position: "Human activity" replaced with "action".

6.5 Proposal to include as Clause 2(1)(d) "radioactive waste management".

DME/SLA position: Not supported, but definition of "radioactive material" amended.

6.6 Clause 2(2) proposal to reword.

DME/SLA position: Redrafted, see Annexure A, page 5.

6.7 Proposed rewording of Clause 2(2)(c) on Group IV Hazardous substances "in line with proposal from Department of Health"

DME/SLA position: Department of Health did not propose the rewording of Clause 2(2)(c). Proposal not supported, wording of 2(2)(c) is adequately clear.

6.8 Proposal not to include NEMA.

DME/SLA position: Agree, see 5.6 above.

6.9 Proposal to delete Clause 5 amendment "without unduly limiting the beneficial practices giving rise to radiation exposure".

 

DME/SLA position: In its presentation to the PPC on 7 September 1999 the DME agreed that this amendment could be deleted.

6.10 Proposal to establish a radiation Safety Forum.

Minister's position: Minister to address the PPC on 18 October 1999.

6.11 Co-operative Governance not supported and the Minister's nomination for dispute resolution in co-operative governance agreements not supported, submitting that the Minister will be the ultimate regulator".

DME/SLA position: See 5.9 above. Despite the provisions of the constitution it is not incorrect, but in fact highly desirebale to include provisions on co-operative governance to manage the overlapping responsibilities. It is considered appropriate for the Minister to be nominated for dispute resolution and the integrity of the Minister to manage such dispute in an equitable manner, should not be questioned.

6.12 Proposal on Constitution of the Board.

DME/SLA position: Included as one of two options for consideration by the PPC. See Annexure A, page 9.

6.13 Proposal that the board, and not the Minister, appoints the CEO.

DME position: Not supported, but propose that such appointment be "after consultation with the Board". See Annexure A, page 15, clause 17.

6.14 Clause 17(2): Ambiguous wording on restrictions on certain actions regarding vessels.

DME/SLA position: Wording redrafted, see Annexure A, page 15, clause 17.

6.15 Proposing a further tier of authorisation, namely "Notification".

DME/SLA position: Proposal not supported. No justification exists for a further tier. All requirements are adequately covered by Clause 17(3).

6.16 Proposed rewording of Clause 18(2).

DME/SLA position: Wording redrafted, see Annexure A, page 16, par.2.

6.17 Proposed rewording of Clause 18(3).

DME/SLA position: Wording changed in 18(3)(b) from "a newspaper" to "two newspapers". See Annexure A, page 16, par.3.

6.18 Proposal to reword 18(4)(a) by adding "pursuant to".

DME/SLA position: Agreed, see Annexure A, page 16, par.4.

6.19 Proposed addition of Clause 19(2): to serve copies of application for a certificate of registration on relevant municipalities.

DME/SLA position: Agreed, see Annexure A, page 17, par 3.

6.20 Clause 19: Proposal that the CEO approve certificates of registration or exemption rather than the board.

DME/SLA position: Not supported. If approval time-scales are really problematic the board can appoint a committee to give approval more expeditiously.

6.21 Clause 22: Nuclear Authorisation not to be transferable.

DME/SLA position: Not supported but COM/NUM proposal to be debated by the PPC..

6.22 Clause 25: Proposal that the Minister determine the fees "on the recommendation of" and not "after consultation with" the board.

DME position: Proposal not supported to ensure objective determination.

6.23 Clauses 26: To also make provision for Financial Security for a Certificate of Registration.

 

DME/SLA position: Agreed. There could be instances where financial security would be necessary but in most cases it should be zero. Clause 26(3) makes provision for the Minister to discharge a holder of a certificate of registration to provide financial security. Annexure A, page 20, clause 26.

6.24 Clause 27 on liability:

 

DME/SLA position: Still under consideration. DME/SLA

6.24 Clause 31: compensation for Regulator's employees.

DME/SLA position: Addressed by 5.15 above.

6.25 Proposal to reword Clauses 34(2) and (3) on emergency planning.

DME/SLA position: Agreed on 34(2) but not on 34(3), see reworded amendment in Annexure A, page 24, par.(2).

6.26 Clause 37(4)(e) proposing to delete "with the approval of the executive officer" and the Inspector powers must be applicable also to nuclear installations.

DME/SLA position: Agreed, see Annexure A, page 25, par 4.

6.27 Clause 42: delete "subject to clause 32"

DME/SLA position: Agreed.

6.28 Clause 43 delegation by minister should be limited.

DME/SLA position: Agree in principle, see Annexure A, page 28. See 5.22 above.

6.29 Clause 46 on disclosure of information.

SLA position: Agreed for employees of the Regulator but not for employees of the holder of the nuclear authorisation. See 5.21 above.

6.29 Clause 46 proposing longer periods of imprisonment

SLA/DME position: Agreed, see Annexure A, page 32, clause 47.

7 Eskom Comments submitted 8 October 1999

Eskom has submitted comments on 8 October 1999. These have not yet been considered and no consultation has taken place yet. ESKOM/DME

Appendix 2:

Date: 4 October 1999

 

Comment By Blaauwberg Municipality On The National Nuclear Regulator Bill B 11-99

We refer to your several telephonic discussions with our Mr Bettesworth, during which it was agreed that opportunity exists for our Council to comment on the National Nuclear Regulator Bill B 11-99 ("the Bill") to the Parliamentary Portfolio Committee for Minerals and Energy.

The Blaauwberg Municipality's area of jurisdiction encompasses the Koeberg Nuclear Power Station and surrounding land areas. As such_, it is the local authority most directly affected by the significant restrictions imposed on urban development as result of the safety requirements of the Koeberg Nuclear Power Station.

Taking the above into consideration, Blaauwberg Municipality notes with concern that it has not to date received any formal request for comment on the Bill, especially since it is Council's opinion that the Bill could have significant implications on permissible development surrounding the Koeberg Nuclear Power Station. The key implications of the Bill are noted, very briefly, below.

Clause 34(5) of the Bill reads as follows;

'The Minister may, on recommendation of the board, impose limitations on the development surrounding any nuclear installation to ensure the effective implementation of any applicable nuclear emergency plan.'

It is noted that the reason that the Minister would impose limitations on development surrounding nuclear installations is safety - to ensure the effectiveness of nuclear emergency plans. Limitations not reasonably connected to the purpose of safety will, of course, be invalid.

It is, however, clear that in terms of the Bill the local authority's power to control development in the area is subject to the Minister's decision. Furthermore, the full scope of the Minister's powers regarding planning and development at local government level are not clearly defined in the Bill.

This Council is of the opinion that the Bill is very narrow in perspective and in conflict with existing planning legislation. The Bill makes Blaauwberg Municipality's delegated authority in terms the Land Use Planning Ordinance, 1985 (Ordinance 15 of 1985) to control development in the area surrounding the Koeberg Nuclear Power Station subject to the decision of the Minister of Minerals and Energy.

It is recognised that development surrounding the Koeberg Nuclear Power Station must be in keeping with the need for effective and safe nuclear emergency plans and that the bodies responsible for implementing such plans should be formally approached for comment in the manner prescribed by planning legislation for development applications. However, the final decision on such development within the Blaauwberg Municipal area must rest with the municipality or with the Western Cape Regional Premier where the municipality does not have the relevant delegated authority. The effectiveness of established planning procedures might be seriously hampered if the approval of yet another level of government must be obtained every time development in the affected area is considered.

The Bill makes no provision for a decommissioning plan for the Koeberg Nuclear Power Station. In addition, it does not define which party is responsible for the cost of the implementation of the required nuclear emergency plan. The amounts involved might impose an unreasonable burden on a local authority's already straitened budget, should the local authority be responsible for such cost.

It is requested that, in view of the fact that Blaauwberg Municipality, as a key interested and affected party, has to date not been afforded an opportunity to formally comment on the Bill, this municipality be granted a formal hearing in order to make an oral presentation to the Parliamentary Portfolio Committee for Minerals and Energy regarding its comments and concerns relating to the National Nuclear Regulator Bill during the consideration of the Bill by the Committee.

Notwithstanding, and without prejudice to, the above request, it is further requested that this Council's written comments on the Bill be noted by the Parliamentary Portfolio Committee and incorporated into the Bill.

We await your urgent response. Yours faithfully

 

for P. M. GERBER

CHIEF EXECUTIVE OFFICER