Council for Nuclear Safety on the National Nuclear Regulator Bill

Meeting report

MINERAL & ENERGY AFFAIRS PORTFOLIO COMMITTEE
22 September 1999
COUNCIL FOR NUCLEAR SAFETY ON THE NATIONAL NUCLEAR REGULATOR BILL [B11-99]: SUBMISSION

 

Document handed out:
Council For Nuclear Safety's submission on the National Nuclear Regulator Bill

 

MINUTES
Agenda for next meeting, 11 October 1999
The committee decided that they would like to have input from other stakeholders such as the National Union of Mineworkers (NUM) and the Chamber of Mines (COM). Mr Davidson (Democratic Party) wanted to make sure that all interested parties would be available for questions and concerns during that meeting. The Chairperson responded that all parties have been asked to attend.

 

Council for Nuclear Safety (CNS)
The Council for Nuclear Safety gave a submission on the National Nuclear Regulator Bill (Appendix 1) and were then questioned by the members.

The first question addressed to the CNS was from Mr Oliphant (African National Congress). He wanted to know what CNS proposes for liability and security.

The representative from CNS answered that if South Africa were to join the Vienna Convention then this question could be addressed according to international standard. If South Africa were to join then improvements could be made.

Mr Lucas (Inkhata Freedom Party) asked to have the terms "waste management" and "waste deposal" clarified.

He was informed that waste management covers everything from design to clean up. Whereas, waste disposal refers to what happens to the waste at the very end. For example, how it is dealt with, where it is put, the cost of disposing, etc.

After this clarification Mr Lucas commented that he did not see anyone dealing with waste disposal effectively.

The CNS agreed and recommended that current legislation needs to be made clearer, it is too vague. They recommend that South Africa call upon international standards when dealing with waste disposal.

The Chairperson of the committee Mr Nkosi (African National Congress) asked what options were available to current failures in the legislation. He commented that it is not only important to look at the problems but to offer solutions to those problems. He asked the CNS to look over the current issues and offer solutions.

The CNS agreed and said that they were more than willing to look into new options.

The final comment for the meeting was from Mr Motubatse (African National Congress) who recommended that the committee be given documents regarding the Vienna Convention so that they could familiarise themselves with it.

The Chairperson then adjourned the meeting.

 

Minutes Supplied by Contact

 

Appendix 1

Council For Nuclear Safety submission on the National Nuclear Regulator Bill

Submission to the Portfolio Committee on Minerals and Energy

Introduction

The Council for Nuclear Safety wishes to express its appreciation to the Portfolio Committee on Minerals and Energy for the opportunity to present comments on the National Nuclear Regulator Bill.

Before drawing the attention of the Committee to the comments set out below, the Council would like to explain that at the very outset of the process to amend this legislation in 1995, the CNS held discussions with the Minister and the DME. The CNS was instructed to commence with a public consultation process prior to any drafting. At that stage the only position held by the CNS itself was that it desired to have its own separate Act₁ i.e. separate from legislation establishing the Atomic Energy Corporation in order to emphasise the independence of the nuclear regulatory function. All other positions, later perceived to have been introduced by the CNS, inter alia₁ the reporting line, were in fact those emanating from the consultation process with interested and affected parties.

In studying the range of comment submitted since the Committee initially introduced the Bill for consideration, the Council has formed the opinion that the Bill is progressively emerging with lack of both clarity and specificity. This is of concern to the Council since it believes that the mandate given to the Regulator must be unequivocal and the Regulator must be in a position to practically implement its mandate.

The detailed comments made by the CNS are attached as Annexure 1. These reflect, inter alia, the broader concerns of the Council enumerated below.

1. The Issue of Independence - the Reporting Line

Whilst the Council understands the need to report within some Government structure and recognises that it is presently conducting its regulatory duties in an effective manner, there is no escaping the fact that its present reporting line, through to the Minster of Minerals and Energy, presents the latter with an insurmountable conflict of interest. The Council takes issue with the position of the DME, as reported in its document to the Portfolio Committee on "Issues Raised During the Public Hearings on the (Bills)" and disagrees with its rationale. There is no doubt, in the view of the Council, that maintaining the existing reporting line will, in conjunction with the proposed provisions of the Bill, hereafter cause problems with exercising the mandate of the regulator to the detriment of both workforce and public.

2. Application of the Act

The Bill in its current form does not spell out clearly the activities to be regulated. This is particularly relevant with respect to radioactive waste in general and the radiation hazards associated with the mining and processing of radioactive ores and minerals in particular. Ambiguities also exist in the interpretation of possession and storage when considered in terms of the definition of "practice"

3. Regulation of the Mining Industry/Co-operative Governance.

It is not clear why this constitutional obligation is given such prominence in the legislation. Organs of State normally undertake this obligation by way of memorandums of understanding. Effective governance of the nuclear safety function itself is seen to be of prime importance and requiring particular emphasis. The role of the regulator should be clearly set out, namely to exercise effective regulatory control over the range of activities within the regulatory purview of the CNS. The regulatory process being the establishment of safety and regulatory control standards₁ assessment of hazards associated with regulated facilities and activities and compliance assurance activities.

Consolidating all regulatory responsibilities for nuclear, radioactive waste, radiation and transport in one specialist organisation which can make optimal use of scarce national resources and ensure an even and consistent standard of control is exercised.

4. Objectives of the Regulator (the inclusion of the phrase "without unduly limiting the benefits giving rise to the radiation exposure"

The inclusion of the phrase " without unduly limiting the beneficial practices...." does not really send the right sort of message. It would be preferable to address establishment of safety standards and regulatory practices compatible with internationally endorsed norms.

5. Composition and Functions of the Board

It is considered Inappropriate for a representative of DME to sit on the Board as this would be in conflict with the obligation (Convention on Nuclear Safety) to maintain the regulator independent from potential conflicts of interest. The DME is responsible for the activities of the AEC, the management of radioactive waste and the well being of the mining and minerals processing industries. It would seem most appropriate for Board members to be completely independent of any involvement of owners, operators and responsible government departments.

The appointment of the chief executive officer as a functionary of the Board should be made by the Board, rather than by the Minister.

The function of the Board warrants further consideration in terms of practicality. In a part time capacity, the Board can do little more than approve standards of safety and regulatory practice and exercise a general oversight on the functioning of the Regulator. A management board comprised of senior employees and an executive chairman would appear to have considerable merit.

 6. Financial Security

It is considered that all holders of nuclear authorisation should be obliged to maintain financial security in respect of any liability for nuclear … they may incur. The quantum of such security should be related to the propensity for causing nuclear damage.

In addition, funds should be available for decommissioning and waste disposal activities post closure.

7. Liability Regime

The Act should be made compatible with the Vienna Convention on Civil Liability and South Africa should sign and become a contracting party to the convention.

Problems arise with applying common law to damages for nuclear safety because of the potentially long latent periods before the onset of illness.

The internationally recognised principle of "absolute liability" must be incorporated into the liability regime.

8. Claims for Liability in Excess of Security

As worded the legislation could leave plaintiffs high and dry once the specified amount of funding was used up.

9. Application for Nuclear Authorisations

Opportunity should be taken to follow the internationally endorsed approach of exempting, requiring notification, registration and licensing for activities with increasing propensity for causing nuclear damage. This system engenders sufficient flexibility to enable an appropriate level of regulatory control to apply.

The scheme as proposed is too rigid and does not provide the system instruments of control e.g. notification, exclusion and exemption.

10. Delegation by the Minister

Delegation to officials of the DME is deemed to be inappropriate again calling into question the issue of independence.

11. Establishment of Standards

The process should engender a greater degree of flexibility and be open and transparent.

12. General Clarity and Precision

(i) Several sections of the proposed legislation are vague and/or ambiguous and will result in disputes in interpretation and difficulty in application.

(ii) Radioactive waste is not defined.

(iii) The wording "without unduly limiting the beneficial practices is subject to interpretation which can lead to conflict.

(iv) The liability of the State where claims for compensation for nuclear damage exceed the security of the operator is unclear.

(v) The application of the Act is vague.

(vi) The provisions relating to co-operative govemance₁ in Its current form₁ omit to identify the Organ of State which will ultimately responsible to ensure that radiation hazards are properly regulated.

(vii) The "adequacy of protection" as envisaged in section 34(2) as proposed by the DME is subjective and is accordingly vague.

8. The mutual cross references in sections 32 and 43 make the interpretation of the Minister's authority regarding regulations unclear.

(ix) The role of the board is not clear and precise.

(x) Responsibilities in respect of co-operative governance are not clear.

ANNEXURE A

1. Section 1 - Definitions

 1.1 The definition of "human activity as proposed by the DME/State Law Adviser-

"human activity" means any activity involving the

 

- possession, storage or disposal of radioactive material or

any activity performed by an individual or mechanical operation initiated by an individual

The definition of "human activity" is vague in its current form as it creates the impression that possession storage or disposal of radioactive material must be associated with an activity involving such material. The experience of the CNS is that persons may possess, storage dispose of radioactive material without any specific activity being involved.

Whilst the CNS does not support the views of the NUM that a definition of "human activity" is unnecessary, it agrees with the contention that the wording "involving radioactive material" in the definition has a much wider application than what is proposed by DMEI State Law Adviser.

Furthermore, if not defined, the term "human activity could be interpreted to exclude activities which are performed mechanically from regulation in terms of the NNR Act.

This term, "human activity" makes the nuclear authorisation requirement in terms of section 19(1) vague. The legislation needs to be clear as to the activities requiring either Certificates of Registration or of Exemption. Accordingly the definition of "human activity" must be more specific

The term practice is often used radiation safety terminology and the CNS accordingly proposes the following-

(i) The term "human activity" be deleted wherever it appears in the Bill and substituted with practice"

(ii) The word "activity' be defined as follows-

'practice" means any activity as contemplated in section 17(3)

Consequentially section 17(3) must be amended as proposed under

clause 9.2 hereof together with all references to human activity.

1.2 The definition of "nuclear installation" as proposed by the IDME I State Law Adviser -"nuclear installation" means a facility, installation, plant or structure₁

other than a facility, installation, plant or structure situated at any mine defined in section 102 of the Mine Health and Safety Act, 1996 (Act No.29 of 1996), designed or adapted for, or which may involve the carrying out of, any process within the nuclear fuel cycle involving radioactive material and includes -

 

(a) a uranium or thorium refinement or conversion facility;

 

(b) a uranium enrichment facility;

 

(c) a nuclear fuel fabrication facility;

 

(d) a nuclear reactor, including a nuclear fission reactor or any other facility intended to create nuclear fusion;

 

(e) a nuclear reprocessing facility;

 

(f) a spent nuclear fuel storage facility;

 

(g) an enriched uranium processing and storage facility;

 

(h) 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;

(i) any other facility, installation, plant or structure which the Minister has, in terms of section 2(3) declared to be a nuclear

The definition of "nuclear installations" in its current form could result in any of the installation referred to under items (a) to (i) in the definition being located on a mine as defined in Section 102 of the Mines Health and Safety Act 1996 and not falling within the definition of a nuclear installation. This is particularly relevant to uranium processing facilities and radioactive waste management facilities. Any exclusion of such facility as an installation is in contravention of the Joint International Convention on the Safety of Spent Nuclear Fuel Management and the Safety of Radioactive Waste Management to which South Africa is giving consideration to join.

It was never the intention of the legislature to exclude such facilities as installations merely by reason of them being situated on a mine. The CNS proposes that the words "other than a facility, installation, plant or structure situated at any mine as defined in Section 102 of the Mine Health and Safety Act, 1996 (Act No.29 of 1996)" be deleted from the definition of nuclear installation.

This view is supported by the NUM.

1.3 The definition of "nuclear damage" as proposed by the DME I State Law Adviser -"nuclear damage" means any injury to or the death or any sickness or disease of a person, or other damage, including any damage to or any loss of use of property or damage to the environment which arises out of, or results from, or is attributable to, the ionising radiation associated with a nuclear installation, nuclear vessel or activities involving radioactive material;

In the definition of "nuclear damage" the provision of damage to the environment is extremely wide and does not clearly define the persons or organs, which may suffer such environmental damage and be entitled to compensation. As a result of this vagueness and ambiguity unfounded claims could be lodged and would result in unnecessary administration in the processing of such claims. The CNS recommends that the proposed Bill should adopt the definition in line with the Protocol to Amend the Vienna Convention on Civil Liability for Nuclear Damage as follows-

"nuclear damage" means -

(i) loss of life or personal injury;

(ii) loss of or damage to property;

(iii) economic loss arising from loss or damage referred to sub-paragraphs (i) or (ii), in so far as such loss not being included in those paragraphs, if incurred by a person entitled to claim in respect of such loss or damage;

(iv) the costs for measures for reinstatement of impaired environment, unless such impairment is insignificant, if such measures are actually taken or to be taken, and in so far as such damage is not included in sub-paragraph (ii);

(v) loss of income derived from an economic interest in any use or enjoyment of the environment incurred as a result of a significant impairment of that environment and in so far as such loss is not Included in sub-paragraph (ii);

(vi) the costs of preventative measures and further ~ or damage caused by such measures

(vii) Any other economic loss other than any loss caused by the impairment of the environment, to the extend that the loss or damage arises out of or results from or attributable to the ionising radiation associated with anything subject to nuclear authorisation in terms of this Act.

1.4 The CNS has no objection to the amendment of the definition of a "nuclear site" being substituted with the definition of "site" and supports the definition as proposed by the COM and NUM.

1.5 In line with the CNS and NUM recommendation for the inclusion of radioactive waste as set out in 2.2 below, the CNS proposes the following definition-

"radioactive waste" means material, whatever its physical form, for which no further use is foreseen that contains or is contaminated with radioactive substances and has an activity or activity concentration higher than the levels for clearance from regulatory requirements.

2. Section 2- Application of the Act

2.1 Section 2(1)(c) makes the Act applicable to "any human activity involving radioactive material that results in the exposure of persons to ionising radiation or radioactive contamination of property or the environment and which is capable of causing nuclear damage."

Many activities involving radioactive material, if performed in accordance with the specific procedures, will not result in the exposure of persons to ionising radiation. However, the potential of exposure is always a risk. The provisions of this section are ambiguous as they imply that if a person is not exposed to ionising radiation this Act does not apply. The section furthermore does not provide for the activities where persons are exposed to ionising radiation, even though that activity does not directly involve radioactive material. A typical example of this situation is the radon buildup in buildings, which are constructed on sites contaminated with significant levels of radioactive material.

The Bill must ensure that the provisions of section 24(a) of the Constitution of the Republic of South Africa, which provides the right to an environment, which is not harmful to ones health and well-being, are met.

The CNS submits that through the amendment of the definition of "human activity" to 'practice" as recommended by it, these shortcoming will be addressed.

Section 2(1)(c) should however be amended to provide for a "catch all" situation and it is proposed that that section be substituted with the following-

"(c) any practice which is capable of causing nuclear damage"

2.2 In international norms and standards, radioactive waste is referred to separately from radioactive material and is also subject to separate international instruments, namely the Joint International Convention on the Safety of Spent Nuclear Fuel Management and the Safety of Radioactive Waste Management. South Africa is currently giving consideration to becoming a party to this Joint Convention

The position of the DME regarding the proposal by the NUM is accordingly inconsistent with the international practices.

The CNS supports the inclusion of section 2(1)(d) as follows

 

"(d) the regulation of the safety of radioactive waste management."

2.3 The CNS supports the NUM submission making section 37(4) applicable to the exclusion of certain practices. However the CNS finds that the provision as agreed between the NUM and COM is ambiguous in that it could imply that public exposures is not a consideration where occupational exposure has, under certain circumstances been excluded. The CNS believes that the provisions of the safety standards will identify the various levels of exposure and activity, which will be applicable to or excluded from the Act.

CNS accordingly proposes that section 2(2)(b) be deleted and substituted as follows-

 

2.2(b) any practice activity where the activity levels of the individual radioactive nuclides and total activity or exposure levels are below the levels established in the safety standards as contemplated in section 32.

2.4 in line with the proposal from the Department of Health the CNS proposes the amendment of section 2(2)(c) as follows

 

(c)(i) any radioactive material which is outside of a nuclear installation excluding any material which contains radioactive nuclides of uranium or thorium or any radioactive daughter products thereof or special nuclear material as defined in the Nuclear Energy Act 1999 (act No. of 1999), or any radioactive waste from such material and

(a) has an activity concentration of more than 100 becquerals per gram and a total activity of more than 4000 becquerals; or

 

1. has an activity concentration of 100 becquerals or less per gram or a total activity of 4000 becquerals or less and which the Minister has by notice in the Gazette declared to be a Group IV hazardous substance in terms the Hazardous Substances Act 1973 (Act No. 15 of 1973),

 

and which is used or is intended to be used for medical, scientific, agricultural, commercial or industrial purposes; and

(i) any radioactive waste, which is outside of a nuclear installation, and arises from material excluded in terms of (i)."

Since radioactive waste is referred to separately, this proposal also addresses radioactive waste which is excluded as a Group IV hazardous substance but which will become subject to this Act when received on an installation. An example thereof where such material is disposed of on a facility for the disposal of radioactive waste.

2.5 The CNS does not support the inclusion of the wording suggested by the NUM under clause 3.2 of its document, regarding the National Environment Management Act₁ 1998. The concerns of the NUM are addressed through the provisions of the Constitution relating to Cooperative Governance.

3. Section 5 - Objects of the Regulator

The inclusion of the words "without unduly limiting the beneficial practice giving rise to radiation exposure" in section 5(a) lends itself vagueness and could result in disputes of interpretation. The CNS submits that the safety standards and regulatory practices established in terms of section 32 would address this issue.

The CNS accordingly recommends the exclusion of this wording, which has been proposed by the COM.

4. Section 5A - Establishment of a Radiation Safety Advisory Forum

The CNS has identified the need for a communication and advisory forum on radiation safety. Such a forum will establish in essential communications channel between the regulator and all interested and affected parties and will make a major contribution towards the transparent accountable and credible regulation of the nuclear industry.

Since the Minister appoints the board, there is no need for her/him to appoint this forum. The forum is an advisory committee to the regulator and as such the appointment of the members should be made by the board in a transparent way. The Chairman of the board or his nominee should be a member of the forum ex officio.

The forum, should serve as an advisory committee to the board₁ which in turn is an advisory body to the Minister. Should the forum wish to bring any matter to the attention of the Minister or should the Minister wish to refer any issue to the forum, the correct channel should be via the board. This will ensure orderly governance and regulation and avoid possible duplication of effort.

The COM and NUM proposal in regard to representation of the forum appears to have equal representation of holders of nuclear authorisations, labour and the State. The CNS is however of the view that all interested Departments of State should be represented, including Department of Transport and Department of Finance should be co-opted with regard to special issues relating to the quantum of security and issues related to capping of liability. This could result in disproportionate representation.

The CNS proposes a new clause to the Bill as follows

"Establishment of a Radiation Safety Advisory Forum

SA (1) The radiation safety advisory forum is hereby established.

(2) The object of the forum is advise the board on matters relating to -

a) regulatory policy

b) regulatory practices

c) safety standards

d) regulations

e) fees

f) categorisation of nuclear installations and practices based on the possible quantum of nuclear damage and financial security to be provided in respect of ~'1(~h of these categories

 

g) any matter associated with nuclear installations, vessels requiring nuclear authorisations or any practice or condition which

i) is capable causing nuclear damage

ii) the board refers to the forum

iii) the forum deems necessary to advise the board on

h) any proposed changes to this Act

(3) The forum may, through the board, advise the Minister on any matter concerning radiation safety, and the Minister may, through the board, refer any matter to the forum for its consideration.

Composition and constitution of Radiation Safety Advisory Forum

5B (1) The forum consists of 22 members appointed by the board, comprising -

(a) five employers representatives of organisations engaged in activities regulated in terms of this Act or under any other law contemplated in terms of section 5C(3);

(b) five employees representative of organisations engaged in activities regulated in terms of this Act or under any other law contemplated in terms of section 5C(3);

(c) five representatives of communities affected by activities regulated in terms of this Act or under any other law contemplated in terms of section 5C(3);

(d) one representative from the Department of Minerals and Energy;

(e) one representative from the Department of Labour;

(f) one representative from the Department of Health;

(g) one representative from the Department of Environmental Affairs and Tourism;

(h) one representation from the Department of Water Affairs and Forestry;

1. one representative from the Department of Transport; and
2. the chairman of the board or his nominee, ex officio

(2) Whenever the forum addresses any issue relating to liability for nuclear damage or security for nuclear damage the forum must co-opt one representative of the Department of Finance for those proceedings.

(3) Before the person contemplated in sub-section (1) are appointed-

(a) the board must invite the nomination from organised labour, organised business, non-governmental community based organisations and government departments in 1 manner that t may consider appropriate;

(b) the board shall, in consultation with the members referred to in sub-section d,e,f,g,h and i. appointment from the nominations the members referred to in sub section 1a~b and c

(4) The forum shall elect from its members a chairperson and vice-chairperson.

(5) The forum must govern itself in accordance with a constitution drawn up by it in consultation with a board which will, subject the approval of the Minister, be added to this Act as a further schedule.

Alternative to 5B(1)

5B (1) The forum consists of 25 members appointed by the board, comprising -

(a) six employers representatives of organisations engaged in activities regulated in terms of this Act or under any other law contemplated in terms of section 5C(3);

(b) six employees representative of organisations engaged in activities regulated in terms of this Act or under any other law contemplated in terms of section 5C(3);

(c) six representatives of communities affected by activities regulated in terms of this Act or under any other law contemplated in terms of section 5C(3);

(d) one representative from the DME;

(e) one representative from the Department of Labour;

(f) one representative from the Department of Health;

(g) one representative from the Department of Environmental Affairs and Tourism;

(h) one representation from the Department of Water Affairs and Forestry;

 

(i) one representative from the Department of Transport; and

 

(j) The chairman of the board, ex officio

(2) Whenever the forum addresses any issue relating to liability for nuclear damage or security for nuclear damage or security for nuclear damage the forum must co-opt one representative of the Department of Finance for those proceedings

 

(3) Before the person contemplated in sub-section (1 ) ie appointed

(c) the board must invite the nomination from organised labour, organised business, non-governmental community based organisations and government departments in a manner that may consider appropriate;

(d) the board shall, in consultation with the members referred to in subsection (1)(d),(e),(f),(g),(h) and (i) appointment from the nominations the members referred to in subsection (1)(a),(b), and (c).

(4) The forum shall elect from its members a chairperson and vice-chairperson.

(5) The forum must govern itself in accordance with a constitution

drawn up by it in consultation with a board which will, subject the approval of the Minister, be added to this Act as a further schedule."

This proposal by the CNS is, in principle, in line with the proposals made by the NUM and COM.

5. Section 6 - Co-operative governance

5.1 The CNS is of the opinion that the Constitution of the Republic of South Africa makes provision in Chapter 3 for Co-operative Governance and it is accordingly not necessary to incorporate such a provision into the legislation. The CNS has, in line with the provision of Chapter 3 of the Constitution concluded a Memorandum of Understanding with the Department of Water Affairs and Forestry and is currently engaged with the Department of Environmental Affairs and Tourism to conclude a similar agreement. The CNS has made certain proposals to the Department of Minerals and Energy regarding a Memorandum of Understanding and is currently is still awaiting the Department's response thereto.

Should the Parliamentary Portfolio Committee deem it necessary to include a provision for Co-operative Governance, the CNS would propose that, in line with the sentiments expressed by the majority of interested and affected parties at the hearings by the Parliamentary Portfolio Committee, the regulator should retain the responsibility for regulation of radiation hazards associated with the mining and processing of radioactive ores and minerals. The provisions should identify the regulator as the prime nuclear regulatory body in terms of the Act in order to avoid future conflict and to ensure the proper implementation.

Accordingly, and in such event, the CNS proposes the following-

Co-operative Governance

6. To give effect to the principle of co-operative governance as set out in Chapter 3 of the Constitution of the Republic of South Africa, the regulator as the prime body responsible for the ~ of nuclear installations, the safety of radioactive waste management and other practices involving radioactive material or the exposure of persons to ionising radiation, must conclude agreements of understanding with any other Organ of State as defined in section 239 of the Constitution of the Republic of South Africa which, through any other legislation, has the function of regulating any activity or environment and upon which radiation hazards may impact, in order to ensure -

(a) the effective control and monitoring of the radiation hazards;

(b) the identification of the functions and activities of the regulator and that organ of state;

(c) the co-ordination of the procedures, functions and activities in order to avoid duplication and to promote consistency in the exercise of the regulatory functions, activities and enforcement regime.

5.2 CNS position on the proposal by NUM and the COM

The provision contained in the proposal made by the NUM and COM are, in the main, vague and would lead to confrontation between the regulator and other Organs of State. Furthermore no provision exists for the ultimate regulatory responsibility. The COM has recognised that, with the provisions as proposed, an impasse could be reached and have made a provision under subsection (6) in the document submitted by them, which provides -"(6) Any dispute between the regulator and any Organ of State

regarding the contents of a cooperation agreement entered into in terms of subsections (2) that, after every effort to do so, could not be resolved by agreement between the parties concerned, must be referred by the regulator for determination by the Minister in consultation with the Minister responsible for the Organ of State concerned."

The CNS submits that -

(i) this provision would make the Minister the ultimate regulator; and

(ii) as regards the resolution and determination of any dispute between the regulator and the office of the Chief Mines Inspector, the Minister of Minerals and Energy would be the sole determinator and may find himself/herself in a situation where he/she has a conflict of interest in, having to consider the promotion of the industry on the one hand and the regulation and restriction of such industry on the other

The concerns of many stakeholders and interested and affected parties who raised the issue of "the conflict of interest of the DME" during 1995 when the Council invited open submissions with a view to establishing new legislation, was communicated 0 the Legal

Advisor of the then Deputy-President, Mojanko Gumbl, who, in turn communicated the information to then Deputy president Thabo Mbeki. The CNS received a personal directive from Deputy President Mbeki to draft the proposed regulatory legislation on the basis that the regulator would report to the Office of the Deputy President. Whilst the CNS has no preference regarding its reporting line, it wishes to stress the importance of its Independence both from any influence of licensees and, as far as reasonably possible, from the State. Any conflict of interests could impact on this independence. The principle of independence of the Regulator is enshrined in the Convention on Nuclear Safety to which South Africa is a party.

6. Section 7- Control and Management of the Affairs of the Regulator

6.1 The CNS supports the proposed option 3 of the DME and the State Law Advisor, namely that neither labour nor business should be represented on the board. The CNS is of the view that any representation on the board by a holder of a nuclear authorisation or a representative or an employee of such holder would impact negatively on the independence of the regulator, irrespective of the voting rights or proportion of the total representation of such party.

The interests of both labour and holders of nuclear authorisations will, in the opinion of the CNS, be better addressed through the proposed Radiation Safety Advisory Forum. The aforesaid forum will be generally more beneficial than the single representation of labour and business as proposed by the COM and NUM, since it will represent a broader spectrum of the interested and affected parties as well as State Departments

6.2 The Chairperson, Deputy Chairperson and five other Directors of the board are appointed by the Minister. The Chairperson I', accordingly directly responsible to the Minister in respect of the fulfillment of their obligations and the functions of the regulator including the function of advising the Minister on matters associated with nuclear installations and any practice or condition which is capable of causing nuclear damage or which the Minister refers to the regulator. The CNS accordingly submits that, since the regulator is a separate juristic person situated outside the Department of Minerals and Energy, but accountable directly to the Minister, the appointment of an official from the DME in terms of subsection (4)(e) of this section is inappropriate and not in line with the aim of limited government interference in the regulatory , activities of the regulator The CNS furthermore submits that through the presentation of the DME on the Radiation Safety Advisory Forum, the aims and Interests of that Department as well as various other Departments of State with similar interests to that of the DME will be sufficiently addressed. The CNS accordingly proposes that subsection (4)(e) of this section be deleted.

7. Section 12 - Chief Executive Officer of the Regulator

The Board of Directors of the regulator is appointed by the Minister in order to ensure the fulfillment of the objects and functions of the Regulator. The fulfillment of the functions of the regulator are performed by the Chief Executive Officer who therefore is a representing the Board of Directors in this regard. Since the Directors are appointed by the Minister and the Chief Executive Officer is a representative of the Directors in the performance of his duties, the appointment of the Chief Executive Officer should be made by the Board of Directors and not by the Minister as is proposed in subsection (1) of this section.

The foregoing method of appointment of a Chief Executive Officer is in line with and recognised in most other Acts dealing with such an appointment. The CNS accordingly proposes that section 12(1) be amended as follows

 

12(1) The board must appoint a person with suitable qualifications as Chief Executive Officer of the Regulator"

Alternatively,

"(1) The board must appoint a person with suitable qualifications as Chief Executive Officer of the Regulator, with the approval of the Minister".

8. Section 14- Funds of the Regulator

The CNS supports the proposed amendment by the DME / State Law Adviser to delete and" on page 20 in line 23 and insert after line 23 the following-

(b) fees paid to the regulator in terms of section 25; and

9. Section 17 - Restriction on certain activities

9.1 Subsection (2) of this section is vague and ambiguous in that, in its current form a vessel carrying nuclear material which is capable of causing damage within the territorial waters of the Republic would require a nuclear licence even if such a vessel anchored or sojourned outside the territorial waters of the Republic. Such a requirement is contrary to the International Maritime Law. The Bill must clarify that the restriction is only applicable to vessels anchoring or sojourning within the territorial waters of the Republic.

The CNS proposes that Section 17(2) be amended to read as follows "(2) No vessel that is propelled by nuclear power or which has an board any radioactive material which is capable of causing nuclear damage, may anchor or sojourning within the waters or enter any port of the Republic of South Africa, except under the authority of a nuclear vessel licence.

9.2 As stated above, the definition of "human activity" is vague and will result in confusion regarding the activities for which persons must apply for a nuclear authorisation. The activities which are restricted and for which a nuclear authorisation is required must be clearly set out in this section.

9.3 Furthermore, the CNS has, through its experience and in line with international norms and standards, identified the need for a further tier of authorisation in respect of radioactive material, which, if used in certain applications, would not require any form of regulatory control. However if the same material is used in other applications it has the potential of causing nuclear damage. The implementation of such a further tier of authorisation will be beneficial for the regulatory body as it would dispense with unnecessary administration and the user of the material would not be involved in any bureaucracy requiring an unnecessary applications for a nuclear authorisation. The user of such material should only be required to notify the regulator of the activity in order that the regulator can, from time to time, monitor that the use of that material is restricted to that particular application.

The CNS accordingly proposes that Section 17(3) be amended as follows to accommodate the new definition of "practice" and the further tier of authorisation

(3) no person may in any manner use, possess, produce store, enrich process, repossess, convey or caused to be conveyed, dispose of or carry out any other activity involving radioactive material or radio active waste or irradiated fuel or any activity, the performance of which may result in persons accumulating a radiation dose resulting from exposure to ionising radiation except under the authority of a certificate of registration, a certificate of exemption or has given notification as contemplated in Section 19A."

10. Section 18 - Application for Nuclear Installation or Vessel Licence

10.1 The CNS proposes that Section 18(2) be consequentially amended for the reasons set out in 9.1 above as follows-

'(2) any person wishing to anchor or sojourn within the territorial waters of the Republic or enter any port of the Republic with a vessel propelled by nuclear power or which has .. board any radioactive material capable of causing nuclear damage must apply to the Chief Executive Officer for a Nuclear Vessel Licence and furnish such information as the Regulator requires."

10.2 In order to provide for transparent and accountable regulation, the CNS is of the view that publication of the application for a nuclear installation or vessel licence should also be made in two local newspapers circulated in the affected area. The CNS accordingly proposes that Section 48(3) be amended by the inclusion of the following subsection

"(c) publish a copy of the application in two newspaper circulated in the affected area.

10.3 The CNS proposes the amendment of sec tionl8 (4)(a) in line 31 by the omission of the word "on" and the substitution thereof for words "pursuant to".

11 Section 19 - Application for Certificate of Registration₁ Certificate of Exemption or Notification for certain human activities involving radioactive material

11.1 In order to ensure transparent and accountable regulation for human activities involving radioactive material, the CNS is of the view that, at the discretion of the Executive Officer, the applicant may be directed to serve copies of the application upon local authorities and publish a copy of the application in the Gazette and local newspapers. The CNS accordingly proposes the amendment of Section 19 by the inclusion of the following new subsection (2)

(2) the Chief Executive Officer may direct the applicant for a certificate of registration to -

(a) serve a copy of the application upon such local authorities and any other body or person as the Executive Officer may determine;

(b) publish a copy of the application in the Gazette; and

(c) publish a copy in two local newspapers in circulation in the affected area.

11 .2 The CNS is of the view that the issue of a certificate of registration or a certificate of exemption can be performed by the Executive' Officer and could be ratified by the board at its subsequent meeting. This will ensure the expeditious issue of the relevant certificates since the board has, in the past, only met every alternate month. The CNS would accordingly propose that the wording contained in section 19(2) (I~()w 19(3)) be amended by omitting the words "with the approval of the board and the inclusion of section 19(4) as follows -

"(4) The refusal or granting of a certificate of registration or certificate of exemption as contemplated in sub-section (2) (a) or 2(b) (I.) or 2(b) (ii) by the Executive Officer shall be ratified by the board at the first meeting of the board following such refusal or issue of the relevant certificate."

12. Section 19A - Notification

The CNS approves the inclusion of the following additional tier of regulation for the reasons as set out above under Section 17(3), clause 9.2, as follows-

Notification of certain activities

19A. (1) No person requires a certificate of registration or a certificate of exemption in respect of any radioactive material or practice ~n respect of which the Minister has prescribed in terms of Section 46 provided that such person has given prior written notification to the regulator of his intention to possess such radioactive material or to carry out such activity,

(2) The Chief Executive Officer may, at any time, require a person carrying on any practice as contemplated in subsection (1) to apply for a certificate of registration.

13. Section 22 - Prohibition on transfer of nuclear authorisations

The nuclear authorisation has implications regarding the liability of the holder thereof and also determines the acceptability of procedures submitted by the holder in the performance of the activity concerned. In order to ensure that the liability remains intact and that the view applicant has considered the radiation hazards and the proposed procedures to control such hazards, it is not practical for the nuclear authorisation to simply be transferred

In line with International practices the CNS proposes that the amendment of section 22 as agreed between the NUM and COM be rejected.

14. Section 25 Fees for Nuclear Authorisations

The CNS proposes the following amendment to section 25 (1) at line 26 by omitting the words "after consultation with" and inserting the words ~n the recommendation of'.

15. Section 26 - Financial Security by holders of Nuclear Installation Licenses for liability of nuclear damage

15.1 The DME/ State Law Adviser has indicated that the requirement of security is restricted to the holders of nuclear installation licenses in order to ensure that the holder of such a licence is able to meet the claims, which could result from a major nuclear accident.

The CNS does not support this view and submits that the financial security should also be required from the holders of certificates of registration for the following reason.

The extended latent period of diseases related to the exposure to radiation hazards is internationally reco9nised and has been recognised in the Bill through the extended prescription period.

In the light of this extended period, which could be thirty years or more, the holder of the certificate of registration would, in all likelihood, no longer exist at the time that the nuclear damage caused during his period of responsibility manifests itself. In the circumstances the person suffering nuclear damage would have no recourse to recover the damages which he has suffered.

It may be argued that in day to day life a risk exists in the recovery of any damages to which a person may become entitled or which may be awarded. However it must be recognised that nuclear damage differs from this scenario in that in the former instance the damages become prevalent immediately upon or shortly after the incident and the quantum can then be readily calculated, allowing the injured party to institute an action forthwith. Personal damages resulting from the exposure to ionising radiation, on the other hand, could only manifest itself many years after the incident, which resulted in the exposure. Only at that point can the injured party institute his action. This delay can be detrimental and would result in a far greater risk on the ability for an individual to recover the damages to which he/she may be entitled or which a could may award. Furthermore in the case of insolvency the normal claimant would be entitled to prove a claim against the insolvent estate. In the case of nuclear damage the estate could be wound-up and finalised by the time that the person contracts the disease.

Furthermore provision may have to be made for site restoration where during operations sites become contaminated and will have to be cleaned up prior to release from regulatory control. Funding must be made available during the operational phase to provide for such restoration work

In the circumstances the CNS is of the view that the security which the holders of nuclear authorisations provide serves a further important function in that it provides a source against which the injured party can claim even if the holder of the nuclear authorisation has ceased to exist.

15.2 The basis for categorising the installations and other activities for the purpose of determining security to be provided should be on the possible damage, which could result from an accident or incident, rather than on risk.

The CNS accordingly proposes that this section be amended as follows

Financial security by holder of nuclear installation licence or certificate of registration for liability for nuclear damage

Minister must, on the recommendation of the board categories the various nuclear installations and any practice as contemplated in section 17(2) in the Republic, based on the potential quantum of nuclear damage; and

(b) determine

(i) the level of financial security to be provided by holders of nuclear authorisations in respect of each of the categories; and

(ii) the manner in which that financial security is to be provided, in order for the holder of a nuclear installation licence or certificate of registration to fulfil any liability which may be incurred in terms of section 27.

(2) The Minister must give notice in the Gazette of his or her determination in terms of subsection (1)(b)

(3) Despite subsection (1), the Minister may₁ after consulting the board for so long as the holder of a nuclear installation licence or certificate of registration may be liable for nuclear damage-

27. (1) The

(a) increase or decrease the level of financial security to be provided by that holder as determined in terms of subsection (1)(b);

(b) if financial security has not been required in terms of subsection (1)(b), require that holder to provide financial security;

(c) discharge that holder from the requirement to provide financial security;

(d) alter the manner in which that holder must provide financial security.

(4) If-

(a) a nuclear accident or a nuclear incident occurs and compensation is claimed as a result thereof; or

(b) the Minister is satisfied that such compensation is likely to be so claimed,

the Minister may require the holder of the nuclear installation licence or certificate of registration in question to give additional financial security in respect of those claims or possible claims, in an amount which the Minister, after consulting the board, determines.

(5) The holder of a nuclear installation licence or certificate of registration must annually provide proof to the Regulator that any claim for compensation in an amount as contemplated in section 27(2), can be met."

 16. Section 27 - Liability of certain persons for nuclear damage

16.1 It is important that the liability regime contained in the nuclear regulatory legislation is in line with the internationally accepted liability provisions. In this regard the issue of strict liability should be incorporated. In order for this provision to be met, the legislation must exclude the need for negligence to be an element of liability and should ensure that no person other than the holder of the nuclear authorisation is liable for the damage

It is accordingly essential to exclude any law or rule of law, which will negatively impact on the strict liability provisions. Examples of these are the Apportionment of Damages Act₁ the common law requirement of fault and the "volente non fit injuria" rule of law (a person who voluntarily exposes himself/herself to a hazard may not claim damages resulting therefrom).

The CNS accordingly supports the inclusion of the words "despite any other law" in Section 27(1) as proposed by the State Law Advisor and submits that this provisions must go even further to ensure that the inclusion of strict liability is properly applied. The wording in section 27(1) on page 28 line 17 should read as follows " licence is, despite any other Act or rule of law, liable for all nuclear damage ...."

16.2 The provisions of the Protocol to Amend the Vienna Convention on Civil Liability for Nuclear Damage provides for the limitation of the quantum of liability of the holder of a nuclear installation licence. The NNR Bill should provide for the maximum quantum of liability for the operator as proposed by the COM and NUM but must also simultaneously address the question of the quantum of the liability of the State, if any. consideration must also be given to the status of persons who suffer nuclear damage but whose claims may not be entertained due to both the operator's and the State's liability having been exceeded. This aspect of the liability regime requires considerable consultation with all interested and affected parties including the Minister and Department of Finance. Section 27(2) and 29(3) (4) and (5) are seriously lacking in their current form and this situation is aggravated by the amendments proposed by the COM and NUM.

Accordingly the CNS proposes that the provisions of these sections should only be finalised after the appropriate consultation has taken place and a clear unambiguous liability and compensation system has been established.

16.3 Since the exposure to ionising radiation has a accumulative effect and accordingly radiation dose which caused the damage could be incurred both through occupational exposure at a nuclear installation or whilst performing a practice and through normal off site public exposure such as air borne contamination whilst off the site, situations may arise where it is difficult to determine whether the nuclear damage suffered by an individual was through occupational or public exposure.

In the circumstances it would be extremely difficult to determine whether the person is entitled to a benefit under the Compensation for Occupational Injuries and Diseases Act or the NNR Act. The

implementation of the amendments proposed by the NUM and the COM could result in unnecessary and protracted litigation.

The CNS accordingly propose an amendment to Section 27(5) as agreed between the NUM and COM as follows

 

'(5) if any person entitled to any benefit in terms of this Section would also be entitled to a benefit in respect of the same injury, disease or disablement in terms of the Compensation for Occupational Injuries and Diseases Act 1993 (Act No, 130 of 1993), that persons entitlement to a benefit in terms of this Act shall lapse, provided that in any case where any doubt exists as to the applicable Act, this Act shall take precedence.

16.4 The liability for persons involved in non-installation activities involving radiation hazards is currently a hotly debated issue internationally. The COM, NUM and DME have motivated the application of the common law for such activities on the basis that this in line with international practice and strict liability should apply to the holders of nuclear licence only.

The CNS wishes to make the following observations -

(i) It is internationally recognised that the instance of disease is directly linked to the amount of exposure of ionising radiation. No identifiable threshold exists below which it can be said that nuclear damage will not occur. Accordingly, notwithstanding the fact that a holder of a nuclear authorisation operates within the limits as specified in such authorisation, nuclear damage may still occur. This is true for both installations and other human activities. It is accordingly just and equitable that the user of a hazardous substance, which may cause damage should be held liable for such damage, not with standing that no negligence exists.

(ii) The compensation payable to an employee in terms of the Compensation for Occupational Injuries and Diseases Act is based on the no negligence principle. There should not be any distinction between employees and the public

(iii) The extent of enhanced exposure to naturally occurring radioactivity arising from mining and minerals processing activities in ,South African is considerably higher than in most other countries. It i~ accordingly not just and equitable to compare the international practices with those which should apply in South Africa.

(iv) In terms of the current provisions of the Nuclear Energy Act, 1993 (Act No. 131 of 1993) the public enjoy the right of strict liability. Any proposed variation from the existing rights should be put to the public for their comment and input, especially the civic organisations representing communities who₁ in many cases, are situated in areas where the human activities have a public impact.

(v) It would be impractical and unfeasible for any person who suffers nuclear damage which manifests itself some 30 years after the event leading to the exposure to determine the exact identity of the party responsible for that event. It is submitted that the holder of a certificate of registration should be solely liable for any nuclear damage caused during his period of responsibility.

The CNS accordingly supports the provisions of Section 27(8)(a) and (b) as proposed by the State Law Adviser and rejects the new subsection (8) as proposed by the COM and MUM.

16.5 The NUM and COM have proposed the deletion of section 27(10) on the basis that the amendment to section 37(4) makes that section sufficient provision for the regulation of these activities.

An examination of section 37(4) reveals that this section only provides for the exercise of certain powers by an inspector, with the written approval of the Chief Executive Officer. These powers are limited to include the power to direct that an activity be discontinued or any condition be rectified and. that the relevant installation or site be restored to a condition that complies with the safety standards contemplated in section 32. The provisions of section 27(10) have been included in order that the regulator can ensure that a site or a place which is not subject to a nuclear authorisation and has been contaminated with radioactivity will be rehabilitated or will be put in a condition that complies with the safety standards contemplated in section 32.

The CNS submits that this essential power is not addressed in section 37(4) as alleged by the MUM and COM. The CNS opposes the deletion of section 27(10) as the authority to require rehabilitation of contaminated sites is a fundamental principle in the regulation of radiation hazards.

The CNS accordingly proposes that the provisions of section 27(10) as proposed by the State Law Advisers be retained in the Bill

17. Section 29 - Claims for compensation in excess of maximum liability

The comments made previously under section 27, clause 17 2 apply to this section.

18. Section 31 - Compensation for injuries of regulator's employees

Section 31(1) provides for compensation for the employees of the regulator for nuclear damage suffered where no liability can be established in terms of section 27. This provision has been included and differs from the compensation paid in respect of other claims under the Compensation for Occupational Injuries and Diseases Act 1993 in that the employees of the regulator are often expected to carry out activities on unregulated sites and may often be exposed to dangerous and hazardous situations.

Where an inspector or employee of the regulator suffers nuclear damage arising from the exposure to ionising radiation from an installation which is subject to a nuclear installation licence or any other practice which is regulated in terms of a certificate of registration, such exposure will not be attributable to the regulator as employee as contemplated in the Compensation for Occupational Injuries and Diseases Act but rather to the holder of the nuclear authorisation. As such the employee of the regulator will be treated in the same fashion as any other visitor to the site of the holder of the nuclear authorisation who would be liable for the nuclear damage in terms of this Act.

In the circumstances the inclusion of the provisions of section 31(2) as proposed by MUM and COM is superfluous as situation regarding nuclear damage attributable to the holder of a nuclear authorisation fall outside of the COIDA legislation.

The proposed amendment by the State Law Advisers must remain and the COM and MUM proposal must be rejected.

19. Section 32 - Safety Standards and Regulatory Practices

The reference to section 43 in the amendments as proposed by the State Attorney should be deleted and substituted with 42.

20. Section 34 - Emergency Planning

20.1 The provision contained in section 34(2), which places the onus on the regulator to ensure that the emergency plan makes adequate.) provision for the protection of persons against the effects of a nuclear accident, is vague as the interpretation of adequacy will vary from person to person. The CNS accordingly proposes that sub-section (2) be replaced as follows-

'(2) the regulator must ensure that the emergency plan is effective for the protection of persons in the event of a nuclear accident'.

20.2 .. 3) omit the words "When a nuclear accident occurs" and substitute it for "In the event of a nuclear accident"

21. Section 37 - Appointment and Powers of Inspectors

21.1 The requirement for an inspector to carry out certain functlons₁ with the written approval of the Chief Executive Officer, is impractical as the intervention of the inspector may be urgent in order to avoid a possible disaster. Should it be necessary for the inspector to first obtain the written approval of the Executive Officer valuable time could be lost with serious consequences. Since the executive officer must appoint inspectors have necessary knowledge regarding the implementation of their functions it should not be necessary to first obtain written approval.

The CNS accordingly recommends the deletion of the words "with the written approval of the Executive Officer" in section 37(4)(e) and the new section 37(4)(f) as proposed by MUM and COM.

 

21.2 The proposed amendment by the MUM and COM of section 37(4)(e)

would have the effect of limiting the powers of the inspector mentioned in that section to human activities only and accordingly the inspector would not be entitled to exercise those powers in respect of any nuclear installation.

The CNS accordingly proposes that the provisions of section 37(4)(e) as proposed by the State Law Adviser should not be amended.

 22. Section 42 - Regulations

22.1 The cross references in both sections 32 and 42 cause confusion in interpretation. The purpose in referring to section 32 in the proposed section 42(1) is not clear.

The CNS proposes that the words "Subject to section 32 as contained in the DME I State Law Adviser's proposed amendment to the Bill, be deleted.

22.2 Subsection (3) restricts comment to the public only. The CNS further submits that matters requiring regulations should be submitted to the proposed Radiation Safety Advisory Forum. This would mole effectively achieve aims of the provisions of this subsection, giving interested and affected parties the opportunity to deliberate any possible issues.

The CNS proposes the deletion of subsection (3).

Alternatively

Should the Parliamentary Portfolio Committee on Minerals and Energy retain subsection (3) then the CNS recommends that the words "the public" must be omitted.

23 Section 46 - Disclosure of information

NUM and COM have proposed the deletion of section 46(2)8 (ii) and (iii) and section 64(2)b(ii) and (iii).

The CNS submits that the deletion of those provisions will effectively destroy the protection which holders of nuclear authorisations have regarding the confidentiality of proprietary rights and other confidential information. As a result the applicants for nuclear authorisations could be discouraged from disclosing such information to the regulator. The Nondisclosure of material information could impact on the assessment of the activity, carried out by the regulator and its ultimate decision as to whether to grant a nuclear authorisation or not.

The Bill must recognise the rights of confidentiality of persons and ensure that the provisions avoid any negative influence on effective regulation of radiation hazards.

The CNS can see no advantage in the deletion of these provisions and accordingly recommends that the provisions should be retained as proposed by the State Law Advisor.

23. Section 43 - Delegation and Assignment by the Minister

The intention of establishing the regulator as a juristic person, reporting directly to the Minister, rather than having it as part of a State Department is to ensure its independence and prevent State influence on any regulatory decisions, as far as possible. Through the provisions allowing for the Minister to delegate his powers and assign his duties to an official within his Department, this purpose behind this intent is negated.

The CNS submits that any delegation/ assignment should be to a functionary of the same status as the Minister and then only where, due to other commitments the Minister is temporally unable to exercise his powers or perform his duties.

24 Section 47 - Offences and Penalties

The CNS believes that the penalties as set out in subsection (3) of this section are lenient in the extreme and convey an incorrect message as to the severity of the possible consequences of a contravention of the provisions of this Act.

The CNS accordingly proposes that the period of imprisonment under subsections (3)(a) be increased to 10 years, (3)(b) to five years and (3)(c) to three years respectively.