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MINERALS AND ENERGY PORTFOLIO COMMITTEE
23 February 1999
PUBLIC HEARINGS ON THE NATIONAL NUCLEAR REGULATOR BILL AND THE NUCLEAR ENERGY BILL
Documents handed out:
National Union of Mineworkers
Chamber of Mines of South Africa
Chemical Industrial Union
Council for Nuclear Safety
The Chairperson welcomed all to the second day of hearings on the two bills, and invited Eskom to make their presentation.
Mr Stott and Mr Adam presented the Eskom viewpoint. Eskom welcomed the separation of nuclear issues into two separate bills, noting that this reflected the policy set out in the White Paper. They noted that there was not much clarity on the role of the Department of Foreign Affairs. The department was represented in the Board of directors, but further clarity should be given as to why.
On the setting of regulations and standards, Eskom stated that the sustainable needs of South Africa should be kept in mind.
On the Energy Bill, there were problems in terms of non-proliferation issues arising out of the Minister having both the power to sell and purchase, thus leading to a conflict of interests.
Eskom queried whether there was a conflict with the non-proliferation of weapons of Mass Destruction Act, 87-93. The Act requires consultation with the Council for Nuclear Safety, and if a new regulator now replaces this council, the two pieces of legislation will be in conflict.
Transactions in nuclear materials occurred on a commercial basis, and the turnover time for the efficient processing of safeguards agreements needed to be ensured to cater for a competitive South African industry. Therefore Eskom believed that safeguard functions should be delegated. This was also important in terms of conflict of interest with having promotion and regulation separated.
On Section 34, Eskom believed that the purposes of the clause should be limited to those under section 33(1), therefore excluding low level waste.
The management of waste was currently vested in the Minister. Eskom believed that those who generated the waste should be financially and technically responsible. In this line, Eskom noted that while a spent fuel storage facility is not currently required, it will be in ten or twenty years time. Therefore an investigation into such a site should be started now.
Eskom noted with some concern that there was a lack of requirements for the regulator to consult with non-governmental stakeholders, and the Bill should be amended in this regard.
On the National Regulator Bill, Eskom believed that above all the regulator needed to be strong and independent. South Africa was a signatory to the International Convention on Nuclear Safety. This convention states that the regulator must be clearly separated from the promoter. As part of this separation, Eskom believes that licensees should be prohibited from serving on the board.
Eskom noted that the Bill specifically excludes the mining industry from the regulator sphere of influence. Eskom had not a specific position on this point, as long as standards should be consistent. International standards should be taken account of, but also what is in the best interest of South Africa for sustainable development.
On authorisation fees, Eskom believed that the fees should reflect the amount of regulation that would be required for each specific case. Therefore the fees for regulating any one licensee should equal the amount spent on regulating that licensee.
To further transparency, section 6(j) should be amended to require the annual report to be tabled in Parliament.
As the regulator had access to sensitive information, the regulator should be able to be protected with regard to sensitive commercial information.
In replying to issues raised by the Namaqualand Action group the day before, Eskom replied that it will initiate a meeting in the immediate future with the group. The concern raised over the Pebble Bed Modular reactor had been raised. The reactor was first produced in Germany 20 years ago, and Eskom had refined the technology and adapted it for energy production. The management Board had approved the feasibility studies, and was now looking to build a prototype. The research was part of Eskoms ongoing approach to find alternative sources of energy.
Mr Machlangu (African National Congress) asked for clarity on the conflict between the Bill and Act 87-94. Mr Stott explained that Eskom queried whether their was a conflict with the non-proliferation of weapons of Mass Destruction Act, 87-93. The Act requires consultation with the Council for Nuclear Safety, and if a new regulator now replaces this council, the two pieces of legislation will be in conflict.
Mr Van Wyk (African National Congress) noted the concern with regard to the independence of the regulator, and asked whether this included the Minister having both regulator and promotion functions. Further, he noted that internationally there was a trend away from nuclear energy, and queried why Eskom was still pursuing the issue. He asked whether it was not a case of Germany dumping obsolete technology on South Africa.
Mr Stott replied that the role of regulator and promoter always would meet at some level, whether it was under a ministry, or under two ministries and then cabinet. He believed that as long as the regulator was strong and independent, it did not matter which ministry it reported to. The White Paper on Mineral Affairs had stated that it would not be prudent to close down nuclear options. With global warming and CO2 emissions a real concern, even if not for South Africa at present due to its developing status, some alternate mix of energy would be required. The only other large energy source was hydropower. Japan, China, USA, and Russia were all looking at the pebble bed reactor. The technology was very safe, and non-proliferation friendly. If Eskom developed the product, the expertise would be distributed to black empowerment groups.
The National Union of Mineworkers and The Chemical Workers Industrial Union
Mr Z Jonas of the National Union of Mineworkers (NUM) and Ms Laura Jacobs of the Chemical Workers Industrial Union (CWIU) jointly presented the views of the unions regarding the two Bills. NUM began by stating that the Bills should be referred back to the Minister for redrafting and the Bills should not be passed during this session of Parliament. This committee should ensure that the public and the trade unions are involved in the creation of these Bills. NUM also stressed the need for the National Nuclear Regulator to be an independent body.
NUM explained that when talking about nuclear radiation hazards, this also includes the affected public, energy workers, and their families. Although nuclear activities can make a positive contribution to society in areas such as medicine and power, there is the inherent risk of weapon production. This veil of secrecy that was included in the drafting of these Bills must be undone. Communities located next to existing facilities were never consulted in the drafting of these Bills. NUM proclaimed that they cannot allow this democratic government to continue to sustain this veil of secrecy when the government is based on transparency. It is also important for this committee to give interpretation to the making of South Africa as a non-nuclear proliferation zone.
NUM described the status of mine workers before 1994 as sub-human beings. Mine workers were allowed only four public holidays while other occupations were granted eleven days. NUM believes that these Bills brings mineworkers back to pre-1994. They equate the trade-off of health for jobs by Business South Africa as blackmail. This option should not be considered by this committee.
NUM also accuses the CNS of intentional exaggeration and this is a constant feature of the Department of Minerals and Energy’s approach to this legislation. The Department accused the CNS of squandering resource money but this reveals the Department's prejudgment of the public hazard of radiation exposure. The proposal to exclude mines from the jurisdiction of the Nuclear Regulator is driven by the mining industry but is not in the interest of the health and safety of the mine workers. Keeping mines out of the Bills keeps the health and safety of mine workers in the hands of the Minister and Inspectorate. In NUM’s opinion, the general public has little confidence in this regard. In conclusion, the thrust of NUM’s argument is that the exclusion of mines from the National Nuclear Regulator Bill is not a viable option.
Ms Jacobs continued the presentation of the Unions with the views of CWIU. She said that no provision for ongoing public participation and an advisory board are included in the Bills. A proper advisory board is essential for stakeholder participation.
In regards to Constitutional issues, the Bills should have been referred to the provinces as a section 76 Bill. Also, the provisions for disclosure of information contained within the Bills are draconian in nature and are in conflict with section 32 of the Constitution and the Open Democracy Bill. The Bills need to be consistent to prevent the conflicting standards and violations of the equality provision in the Constitution. There is also a clear failure by the Bills to protect the lives of mine workers.
According to Ms Jacobs, the Department of Mineral and Energy Affairshas abandoned its operative functions and the Bill shows a noticeable lack of input of expertise from other governmental departments, particularly from the Department of Environmental Affairs and Tourism, the Department of Labour, Department of Transport, and the Department of Trade and Industry.
In conclusion, Ms Jacobs said that the Bills need to be referred back to the Department for a proper debate. This committee also needs to oversee this process to ensure transparency. Proper consultation and debate includes an array of stakeholders being involved in the drafting of the Bills. The Bills need to be redrafted to establish the independence of the Nuclear Regulator. And lastly, compliance with the Constitution needs to be addressed.
Chairperson Nkosi asked for questions and Mr Oliphant thanked the presenters for working to lift the veil of secrecy in this industry. He said that there is no interest on the part of this committee to rush through the legislative process for these Bills. As for the advisory board, Mr Oliphant asked the union representatives for their views on what the make-up of an advisory board should look like. The speakers responded that the board’s diversity will become embodied into its proposals so union workers and other effected stakeholders should be included.
Mr EJ Lucas of the IFP expressed his disappointment to hear that there was no consultation between the Department of Mineral and Energy Affairsand the unions. He also asked why the Department of Agriculture was not also included in consultation.
Mr Nash thanked the presenters for the information provided to the committee on the radiation exposure levels in the submission. This information is well presented and clear enough that lay people can understand the scientific information.
Mr JF DeWet of the NNP asked the presenters for any solutions they may have on how to solve the problem of exposure to the mine workers. The presenters replied that the unions were very involved in the drafting of the MHSA and would like to be involved in the drafting of these Bills. As for a solution to the problem of exposure, there is not a solution at this point but once the stakeholders are barred from discussions, this creates a monopoly of ideas.
Mrs Katy Watermeyer of Earthlife Africa (ELA) presented the views of that organization. She emphasised that the history and context of these Bills are important to consider in this submission. Under the previous legislation, the nuclear industry has largely regulated itself and has had little, if any, accountability to the citizens of South Africa. The establishment of the nuclear industry was facilitated in order to support South Africa’s nuclear weapons agenda and it has been proven that the nuclear energy industry is highly inefficient from an environmental, health and safety as well as a financial investment point of view. ELA is extremely concerned that there should be consistency across all agencies implementing or concerned with nuclear energy, radioactive waste generation, transport, and storage and mining concerns.
ELA believes that nuclear energy must be abandoned and that the institutions supporting the proliferation of this technology must be moved away from nuclear investment into nuclear replacement and non-proliferation. Of major concern is the failure to address radioactive waste disposal, which is not provided for in either of the bills in any sufficient manner.
ELA believes very strongly that these Bills should not be passed and should be redeveloped via a process of stronger public participation such as the nuclear summit driven by the portfolio committee based on the precedent set by the Asbestos Summit.
Whilst commenting on specific provisions in the two Bills, ELA believes that these Bills should in fact be referred back to a nuclear summit for comprehensive consultation and involvement of stakeholders in determining the future of the nuclear energy industry and regulatory institutions. All comments should be seen in this light. ELA does not believe that these Bills are in any way sufficient in addressing the complexities of the current state of the nuclear industry and allied elements affecting people in other sectors.
After Chairperson Nkosi asked the committee for questions, Mr Lucas of the IFP made the comment that ELA is obviously against the nuclear industry but in the same breath proposes amendments to these Bills. He also asked Mrs Watermeyer about the coal resources in South Africa and the limits of that energy source. Mrs Watermeyer replied that when she speaks of industry, she is referring to all industry, not just the nuclear industry. Until 2040, South Africa should go with existing fossil fuels but with cleaner technology like clean coal. The Northern Cape has a solar energy station research planned and wind power is another research potential.
Professor Mohamed said that there is a problem in relying on individuals to blow the whistle of wrong doing in the industry. He goes along with the transparency and secrecy ideas discussed by ELA but asked for clarification on the future of sustainability. Mrs Watermeyer responded that in a democracy, the public must be given the opportunity to express their views. If the public’s view is wrong, then the industry can respond with its facts. This type of debate is encouraged. At present, nuclear stations have funds to allow for safer operations. But on a daily basis, facilities generate nuclear waste and this problem needs to be solved.
Mr Simmons of the NNP asked if the committee can receive copies of ELA’s slide presentation. Mrs Watermeyer said that she would provide copies to the committee.
Chairperson Nkosi thanked ELA for its time and comments.
Chamber of Mines of South Africa
Dr JM Stewart, a mining consultant, and Dr DG Wymer of the Chamber of Mines of South Africa presented CMSA’s views on the Bills. CMSA fully supports Business South Africa’s presentation from yesterday. In this presentation, the speakers made seven (7) key points.
First, a distinction needs to be made between risk profiles of nuclear and non-nuclear industries. A two-tiered authorization system (licenses and registration) reflects a distinction between nuclear and non-nuclear risk profiles. Because the two profiles have different immediate health risks, this distinction is supported.
Second, the regulatory activity should be focused on the work situations where regulations can achieve meaningful benefits. CMSA supports the exclusion criteria in section 2(2).
Third, radiation exposures on miners are known, are comparable with those on mines in other countries, and are progressively being reduced. The underground area of mines still needs to be reduced, particularly in old mines where poor ventilation exists. Despite the radon problems still existing in old mines, major improvements have occurred over the last two years.
Fourth, conflicting regulatory requirements from two different regulators are counterproductive, can be dangerous, and should be avoided. Regulation of radiation on mines under the MHSA is therefore supported.
Fifth, the MHSA is sound and appropriate for regulation of radiation hazards in mines. Therefore once again, regulation of radiation on mines under the MHSA is supported.
Sixth, the mining industry wants and supports a combination of sound regulation and effective enforcement. Yet again, regulation of radiation on mines under the MHSA is therefore supported. Under the MHSA, a large, qualified team of inspectors needs to be deployed across the mines and South Africa can not afford duplication of this function within these new Bills. The mining inspectorate already has such a team of regionally deployed inspectors.
And lastly, the Bills must embody the principles of sound governance. Section 5(a) is counterproductive with the "health protection at any cost" provision. CMSA supports the consideration of public comment and the establishment of a stakeholder advisory board, but this board must be of manageable size.
Chairperson Nkosi asked the committee for questions. Mr NJ Mahlangu of the ANC asked the CMSA if the Bills should be put on hold based on the lack of consultation between NAM and CSMA. Professor Mohamed pointed out the Leon Commission’s recommendation that mining issues fall under the CNS. He also criticised the data provided to the committee by CSMA, particularly the figures on the number of countries with similar problems. This data means nothing without information explaining differences with the mine and work procedures. Mr Lucas of the IFP expressed his concern that South Africa rated so high in comparison to other countries in regards to radiation exposure of mine workers. Mr De Wet of the NNP asked if it is even possible to determine the number of deaths from radon exposure to mine workers.
The CMSA representative replied to all of the above questions after the members finished posing their questions. He said that the Leon Commission did make important recommendations regarding the tripartite mining partners establishing an advisory board. It was under the tripartite system that the MHSA was produced. CMSA is also endeavoring to overcome the obstacle created by the polarization from the lack of active discussion between stakeholders. As for predicting deaths caused by cancer, one in four people die of cancer. In the mines, 29 cases of cancer are predicted per year. This is an precautionary assessment however and is entirely speculative.
Council of Nuclear Safety
The Chairperson invited the Council for Nuclear Safety (CNS) to present its submission.
Dr Aufdehyde started the CNS presentation with a little background on the CNS’s role in development of the new Bills. In August 1994 the CNS presented its concerns on the need for separation of the Regulator (CNS) from the promoter (AEC) of nuclear issues. In January 1995 the CNS proposed a process to the Department of Mineral and Energy Affairs in which new legislation would be created. This was a participatory process, and workshops with key role-players were started. In July 1997 the Minister revoked its mandate to the CNS to continue the process. Since then, there has only been irregular contact between the CNS and the drafting team. The problems the CNS sees in the legislation are largely due to the lack of process from the drafting team.
The CNS had 8 major points of concern, which were all contained in their presentation. This presentation was read out by Dr Aufdegyde. In conclusion, the CNS believed that the legislation was rushed, and not correctly structured. The CNS proposal would be that the Bills be sent back to the Department for redrafting. However, the CNS was aware that this may not be politically feasible. Therefore the CNS had made suggested amendments, which should be looked at as the very minimum of changes. However, even if these amendments were made, the CNS believed that the legislation would be faced with a set of never ending problems.
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