Nuclear Energy Bill [B10-99]; National Nuclear Regulator Bill [B 11-99]

Meeting report

MINERALS AND ENERGY AFFAIRS PORTFOLIO COMMITTEE
2 March 1999
NATIONAL NUCLEAR REGULATOR BILL AND NUCLEAR ENERGY BILL

Documents handed out
Letter from Chairperson Nkosi to the Minister (see appendix 1)
The statement from Dr. Bakker (see appendix 2)
Issues arising from the meeting held on the 1 March (see appendix 3)
Departmental response to the issues arising out of the Hearings- Update version (see Appendix 4)

SUMMARY
The Minister reported that in response to a letter he had received from the Chairperson of the Portfolio Committee, he had investigated claims made by the National Union of Mineworkers and the Chemical Industrial Union, that Dr. Bakker from the Department of Mineral and Energy Affairs was undermining consultation and promoting the agenda of industry. The Director General had investigated, and after interviewing Dr. Bakker, found the claims not to be true. Dr Bakker presented a statement.

The Minister then outlined some of the key policy positions that were being debated on the Bill. The department took the Portfolio Committee through the issues relating to the Nuclear Energy Bill, and the Portfolio Committee agreed to decide on the process from this point onwards at a meeting to be held the next day.

MINUTES
Chairperson Nkosi (ANC) started the meeting and welcomed the Minister. The chair noted that in response to issues raised during the hearings, he had sent a letter to the Minister. The Minister had joined the meeting today in order to respond.

Minister Maduna stated that he did not want to dwell on the issue at hand, and he was satisfied that the Director General had looked into the matter and reached a satisfactory conclusion. He asked the Director General to report to the Committee.

The Director General told the committee that the Minister had informed him of the letter from the Portfolio Committee. The letter alleged that one of the officials had colluded with stakeholders on the National Nuclear Regulator Bill. He had had a meeting with the official, Dr. Bakker, and given him an opportunity to explain his side of the story.

Dr Bakker had told the Director General that in consulting on the Bill he had a meeting with the Chamber of Mines. The minutes that had been given to the Portfolio Committee were not accurate minutes, as Dr Bakker had never been sent a copy to verify the validity. He therefore believed that the document status was merely that of notes taken by an individual. The Director General reported that Dr Bakker had denied stating he would prime the Minister. Further, he denied stating that he had called members of the Portfolio Committee overzealous. There had never been any motive in his consultation to bring about the demise of the CNS.

The Director General added that Dr Bakker had written a statement, which was tabled at the Portfolio Committee meeting. He noted that the statement was not as detailed as his explanation, as much of the information had come from his questioning Dr Bakker.

The Chairperson stated that the issue had been raised, and information had been brought to the committee. Any comments after reading the documentation should be made at the following days committee meeting.

The Minister stated that he did not want to dwell on the issue, as it was not an issue for him. He had worked with Dr Bakker for a number of years and trusted him. However there was one problem with Dr Bakker's statement. In section 2 Dr Bakker stated that Dr Bredell had passed on the Minister instructions. However the Minister stated that he issued instructions in writing, and there was no such written instructions. The ministry had accepted the position of the Leon Commission, including the continued role of the Council for Nuclear Safety (CNS).

The Chair asked the Portfolio Committee members if there were any other issues.

Prof. Mohammed (ANC) asked the Minister if he accepted that the radiation in mines would not be under the prerogative of the nuclear regulator.

The Minister said he did accept the principle. He added that it had never been the intention to change this. However, on careful reading of the Leon Commission, it states there must be a way to link the CNS and the departments Mine Health and Safety Directorate. He queried whether the CNS would be in every mine? There may be tasks in the Mine Health and Safety Act that would have to be reconsigned. The link needed to be found between the CNS and the department.

Prof. Mohammed asked, in relation to the independence of the nuclear regulator, why the department had split the Nuclear Safety Act into two rather than just amend it, if the regulator and industry were both in the same Ministry. Secondly, in the CNS process of consulting with stakeholders, the view of independence came through strongly. He asked whether the Minister had discussed with the Deputy President’s Office about placing the CNS under the Deputy President.

The Minster said he would leave the details to the departmental team to answer. On where the CNS should be located, he noted that some in the CNS had stated in 1996 that they should be under the Deputy President. However, the Deputy President would have to establish infrastructure for this. The Minister then went back to the CNS stating this would be a problem, as the Deputy President's Office was not a line department. Therefore maybe the Ministry for Environmental Affairs and Tourism could be a better option. The CNS never returned on the issue to the Minister. The allocation of line functions was an executive function of the head of state, not a legislative job. In commenting on independence, the Minister queried whether there was a problem with the judiciary being under the Department of Justice. If the lack of independence was relating to a Minster putting pressure on the CNS, it had never been done. The independence of the CNS was adequately catered for.

On the drafting of the bill by the CNS, the Minister noted that an organ of state never drafted bills, as it was the department’s job, and would be unprecedented. However, the CNS and department had to work together, even though the responsibility remained with the Department of Mineral and Energy Affairs to bring the bills to parliament. The Minister had never heard of a Minister accepting legislation from a state agency. He assumed that in the drafting there was adequate consultation with the CNS and the department.

Mr Mahlangu (ANC) agreed with the Minister on the issue of independence. He queried what was meant by independence, and noted that the legislation ensured independence, not which ministry it was under. He agreed that an organ of state could not claim a right to draft legislation.

Prof. Mohammed (ANC) agreed that no parastatal could do the drafting but can bring a draft to the Minister. On the issue of independence, an example may help clarify the situation. If the industry decided that waste could be moved from Koeberg to Vaalputs, the Minister may give the go-ahead. However, if the regulator said there was not adequate vehicles, then the Minister would have the final decision. As he had already said yes, there would be a conflict of interest. The regulator should therefore be independent from the industry decision-makers.

The Chairperson stated that the committee was making improvements, as they would add proposal regarding mines. He noted that there were the challenges to the process, which had been aired and discussed. The issue was now with the Portfolio Committee, as the bills were in Parliament, and the issues raised by Prof. Mohammed were valid.

The Minister replied saying that in international talks on the issues of nuclear energy, two Ministers would have to go if the regulator was put under a separate ministry. If a decision, which is critical, needs to be made elsewhere, such as in another ministry, it is more difficult. While government has a policy of consultation, one Ministry has to take the decision. Assuming the CNS says no to a mine, as radiation too high, then there will be a problem as the issue cannot be reconciled. The Minister would then have to say no to labour and the mining company. There would also be fiscal impacts. And this would be due to some person elsewhere having decided that the mine cannot go ahead. He urged the Portfolio Committee to consider the issue dispassionately, and consider in terms of issues for Government.

Chairperson Nkosi noted that the discussions on the issues were just getting started, and the Ministers contributions were helpful in view of his role as deputy president of the International Association of Nuclear Energy, and on economic issues. The discussions needed to take into account South Africa's own development and economic future. However, the protection of workers was also important so that the economy does not have compensation issues.

Mr. Nash (ANC) asked whether the issue of the complaints of the Unions in respect of not enough consultation would be addressed.

Prof. Mohammed noted that his first question regarding the reason for the split of the Atomic Energy Act remained unanswered.

Minister Maduna said that the CNS was a regulator, and the Atomic Energy Corporation a licensee, and therefore the two institutions did not belong in the same Act. On the consultation question, the Minister did not know what sort of yardstick should be used to measure adequate consultation. At the ministerial level meetings have occurred with the unions, and there had been a lot of interaction.

The Minister queried whether there was not in fact a different problem. He stated the Unions had complete incapacity to deal with many of the issues. He queried how it could be expected of a Bantu education worker to grapple with the issues. The Minister referred to his mother, and noted that she would not have been able to grapple with the issues. Therefore much was lost in the meetings, as talk went over people’s heads. The Minister stated that he had communicated this problem to the Unions. He had offered to take union leaders with the right inclination and expose them to some of the issues and provide training so that they would be able to grapple with the issues. The mining industry has the capacity to deal with the issues. The problem was in getting many of our people on board. He added that even if the Bills were postponed for a year, the same problem would occur.

Chairperson Nkosi noted that the Portfolio Committee was making progress and learning fast. He thanked the Minister for his input, noting that the committee was on a sharp learning curve.

The Chairperson invited the Deputy Director General Mokoena to take the Portfolio Committee through the two new documents. Mr Mokoena explained that the first document dealt with the issues that had been raised the day before, while the second related to the issues from the hearings with respect to the Nuclear Energy Bill. Mr Mokoena went through the two documents.

The Chair closed the meeting, stating that the procedure from here onwards would be decided the next day.

Appendix 1:
PARLIAMENT OF THE REPUBLIC OF SOUTH AFRICA
PORTFOLIO COMMITTEE ON MINERALS & ENERGY
23 February 1999

Minister Penuell Maduna
Minerals & Energy

RE : PUBLIC HEARINGS ON THE NUCLEAR ENERGY BILL (B10-99) AND THE NATIONAL NUCLEAR REGULATOR BILL (B11-99)

Collaboration between DME officials and industry, notably the Chamber of Mines, was raised as an issue of serious concern by the National Union of Mineworkers (NUM) and the Chemical Workers Industrial Union (CWIU) during the Portfolio Committee Public Hearings on the above bills today. The view was expressed that DME officials and industry leadership were undermining consultation and promoting the agenda of industry.

I am of the opinion that your office should be informed of the issue and therefore attach copies of the minutes forwarded to myself by NUM and CWIU. I request that you advise me on how to proceed. This matter will now need to be introduced to the Portfolio Committee as it directly impacts on process. As you are aware the Portfolio Committee have scheduled meetings for next week and I will therefore appreciate feedback on this matter before Monday 1 March 1999.

The DME team have thus far given full support to the process and this is highly appreciated. Further information you may require on this matter can be provided by the DME team who have sat with me in the Public Hearings.

Thanking you in anticipation.

DUMA NKOSI
CHAIRPERSON

cc Deputy Minister Shabangu
Adv. S Nogxina
Mr S Mokoena

Appendix 2:
Director-General
Minerals and Energy

NOTES OF THE EXECUTIVE COMMITTEE: CHAMBER OF MINES

Pursuant to our discussion about notes taken at a meeting at the Chamber of Mines where Dr Dennis Wymer of the Chamber of Mines reported a conversation he had with me I wish to state as follows:

1. Near the end of 1997 the Council for Nuclear Safety presented to the Minister draft Bills on Nuclear Energy and Safety. It was reported to me that the Minister was dissatisfied with the two drafts and he instructed Dr Gordon Sibiya, deputy Director-General: Energy, to re-draft the two pieces of legislation with the assistance of Dr. Bredell and myself.

2. Dr Sibiya called a meeting with Dr Bredell and myself early in 1998 and conveyed the instructions of the Minister to us. He stated that the Minister amongst others, wished to:

(a) exclude the mining industry from nuclear safety legislation as safety and health in the mining industry was adequately covered in the Mine Health and Safety Act;

(b) base standards on internationally accepted norms and not on some arbitrarily determined practices; and

(c) delete statutory advisory committees from the legislation as they could prove very costly and time consuming.

3. Dr Sibiya stated that the mandate of drafting was given to him, and he would take the initiative of actual drafting. He expected from Dr Bredell and me to support him administratively. However, after meetings were arranged and cancelled, it soon became evident that no progress was made.

I confronted Dr Sibiya by this lack of progress, after which it was decided that I would draft a discussion document for the Nuclear Safety Bill. As I did not have any base-line documentation and the Minister had expressly excluded the CNS from the drafting process, I contacted Dr Dennis Wymer, whom I know as an international nuclear expert who also serves on the IAEA and the ICRP, with the request of providing me with the necessary background documentation.

4. A meeting between me and Dr Wymer ensued during which I informed him about what I perceived to be the Minister's requests. I also informed Dr Wymer about the route Bills normally follow e.g. Nedlac-process and the Parliamentary Portfolio Committee deliberations. I told him that the Portfolio Committee normally requests input from all interested and affected parties and that the employers would also be given the opportunity to put their case before the Committee. I specifically told him that Prof. Mohammed and Dr Raju were particularly interested in the radiation issues, based on my pervious experience.

I wish to place on record that I did not have any input in the Chamber of Mines' notes. I was not present at that particular meeting and I deny that I tried to use the Chamber of Mines to exert undue pressure on any individual member of the Portfolio Committee.

( The original is signed)

D Bakker
Chief Inspector of Mines
1999/02/25

Appendix 3

Matters arising from committee deliberations: 01/03/99
MATTERS ARISING FROM THE DELIBERARIONS ON ISSUES RAISED BY THE PUBLIC ON THE NATIONAL NUCLEAR REGULATOR BILL AT A MEETING HELD BY THE PARLIAMENTARY PORTFOLIO COMMITTEE ON MINERALS AND ENERGY ON 1 MARCH 1999

1 MATTERS RAISED IN THE COMMITTEE
1.1 Amendment of 7(5)(f)[par 2, p3]

"7(5)(f) a holder of a nuclear authorisation or an employee of the holder of a nuclear authorisation other than an employee appointed by the Minister in terms of sub-section (4)(f)."

"7(4)(f) one representative nominated by organised labour iii the nuclear industry appointed by the Minister. " [par 30, p11]

1.2 Application of the Bill at mines [par 8, p4]
As reported at the PPC the discussions with NUM are continuing and consideration is also given to the follow-up submission made by the Chamber of Mines. It is proposed to make the provisions applicable to the mining industry generic to other industries as well. This proposal is still under discussion between the DME and NUM. A concrete proposal will be submitted by tomorrow. The latest DME thinking is contained in the following principle:

"When exercising its functions regarding any operation to which any other law applies the Regulator must, in the interest of co-operative governance consult with every regulator affected by the exercising of such functions, including but not limited to the setting of national standards.

The monitoring and control of radiation must be carried out in accordance with procedures agreed upon by the Regulator and the relevant regulator of such other laws."

1.3 Transparent process of appointing Board Members [par 26, p l0]
The principles contained in the NATIONAL RESEARCH FOUNDATION
ACT on the appointment of Board members will be contained in the proposal
that is currently been drafted. This will ensure consultation with a Parliament
Committee in the appointment of Board members.

Ensuring separation of Chairperson's and CEO's roles [par 26, pl0].
This is still been investigated.

1.5 Format of public annual report [par 36, p12]
It is proposed here that format be contained the main Act or Regulations. This is being investigated.

Matters raised in discussing Item 1.2 above
1.6.1 Whistle-Blowers[par 3, p3]
Principles contained in section 31(4) and (5) of the National Environmental Management Act, 1998 (Act No. 107 of 1998) will be proposed for this section.

1.6.2 Delegation by Minister [par 7, p4]
Delegation by the Minister to the Regulator to be proposed.

1.6.3 Application of Act being dependant on Schedule
The exclusion of the Act when the standards specified in the schedule are not exceeded also need revision.

2. ADDITIONAL COMMENTS

CNS Annotated comments
Addressed in the DME report.

Chamber of Mines
See item 1.2 above.

Institution of Nuclear Engineers
Addressed in DME report.

2.4 Liz McDaid
Most of points raised have been commented on. Several points relate to "legal language" which will be referred to SLA.

2.5 Minerals and Energy Policy Centre (MEPC)
The paper focuses on general approach to nuclear energy safety and regulation in a number of countries that have already experienced the production, use and control of nuclear power. Non-Proliferation and environmental matters are addressed. No specific proposals to amend the Bills.

2.6 Kouga Anti-Nuclear Group (KANG)
Focus is on the appropriateness of placing a nuclear power plant at Thyspunt, near Oyster Bay in the Eastern Cape, and not on the nuclear Bills specifically.

3. STATE LAW ADVISOR'S REFERRALS
SLA to report.

Appendix 4
Department's Response to Public Submissions
DEPARTMENT OF MINERALS AND ENERGY REPORT TO THE PORTFOLIO COMMITTEE ON MINERALS AND ENERGY ON ISSUES RAISED DURING THE PUBLIC HEARINGS ON THE NUCLEAR ENERGY BILL (B10-99) AND THE NATIONAL NUCLEAR REGULATOR BILL (B11-99)

COMMENTS CONSIDERED
NUCLEAR ENERGY BILL NUCLEAR REGULATOR BILL
Atomic Energy Corporation (AEC) Council for Nuclear Safety (CNS)
Eskom Eskom
Business SA (BSA) Business SA (BSA)
Nufcor NUM/CWIU
NUM/CWIU Chamber of Mines (COM)
Earthlife Africa (EA) Environmental Monitoring Group (EMG) Namaqualand Action Group for
Institute of Nuclear Engineers Environmental Justice (NAG)
(verbal only) (INE) Anglogold
Department of Trade and Industry (DTI) SANCO (copy of CNS comments)
Earthlife Africa (EA)
Bell (written to PPC)
Guy (written to PPC; same as CNS)

NATIONAL NUCLEAR REGULATOR BILL ISSUES
(CNS)
1 Issue: Reporting line of the nuclear regulator should change to another Minister or Deputy President. (+EMG; INE)

DME Position:
· The main principles in the Bill, including responsibilities or reporting lines, have been approved by Cabinet
· The Cabinet/President decides the Ministerial portfolios. This is question of turf which the President decides.
· The CNS has been for some time tried to report elsewhere and has publicly campaigned to report to the Deputy President and the Minister of Minerals and Energy(MME) has discussed the matter with the CNS and discouraged them to continue along that line.
· The size of the nuclear industry and international experiences seem to suggest the current arrangement.
· The Nuclear Regulator should not have special treatment over the other regulators.
· In a hierarchy of any organisation, the combined responsibilities of promotion/development and regulation will ultimately fall under one portfolio.
· The role and mandate of the Regulator is the most important issue, not so much the reporting line."
· Reporting to the Minister of Minerals and Energy (MME) is considered adequately independent and not in contravention of the Convention on Nuclear Safety.

Proposal: The current reporting line must remain. This matter should be raised with appropriate authorities if necessary. There is no justification to refer the Bills back based on the reporting line of the Regulator and it proposed that the request be turned down.

Implication: In an unlikely event that the relevant authority agrees to change reporting lines, both nuclear bills will have to be referred back. The NNRB will then have to be reprocessed via Cabinet by the new Minister or Deputy President. The status quo of the existing legislation will remain for a considerable time to come.

1A Issue: Flawed Process (CNS process. consultation and suggestions that Bills be referred back) (+EMG; INE; NUM/CWIU)

DME Position
· CNS consulted (1995)
· Minister took over the policy development process as this would happen in any policy development process.
· Despite the bills being delivered later than the promised date (7& 11 January 1999), the DME was prepared to continue with NEDLAC process. However, the process was terminated
Referring the bills back as suggested by some, has implications as outlined in I above.

Proposal: The bills be processed during this sitting of Parliament.

2 Issue: Licensees should be explicitly excluded from the Board of the Regulator (+ Eskom; NUM; EMG; Bell)

Proposal: To protect the independence of the Board the critique should be accepted and the following amendment inserted: "7(5)(f) a holder of a nuclear authorisation or an employee of the holder of a nuclear authorisation"

3 Issue: Representation to authorities (whistleblowers) (+NUM; EA)

DME position: There is nothing preventing persons to make representations to the Regulator or the Minister and it is doubtful if specific provision should be made in the legislation. However, the DME would warn that while there are positives about whistle blowers there are at the same time serious dangers of costly false alarms being raised without substantiating.

Proposal: No amendment.

4 Issue: There should be clear division between the management and regulation of radioactive waste. The NNR Bill fails to allocate responsibilities of the regulator.

DME position: It is considered that the NNR Bill clearly makes the Regulator responsible for regulation of radioactive waste as the act applies to:

2(l)(a) " operation of any nuclear installation". The definition of the latter
1(xvii) includes (h), which states "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". The management of radioactive waste is one of several operational activities in a nuclear installation like security, maintenance, training or the management of spent fuel, which are not specifically specified.

2(l)(c) 'any human activity involving radioactive material'. This clearly includes radioactive waste.

In addition it should be noted that the Nuclear Energy Bill requires radioactive waste to be managed "with due regard to the provisions of the National Nuclear Regulator Act".

Proposal: No amendment should be required.

5 Issue: 'The Bill does not allow the Regulator to set safety standards more restrictive than international practice (IAEA/ICRP) and it is implied that less restrictive standards could be set. All the IAEA Safety Standards should apply" (+ Eskom; NUM; EMG; INE).

DME position: It is agreed that all the Safety Standards of the IAEA should apply.
However, the Safety Standards of the IAEA are international standards and the Department sees no justification why more stringent standards should be set in South Africa, neither is there any precedent supporting the need for more stringent standards. However, the words "and not more restrictive than" can be deleted.

Proposal: Amend 32(1) by the deletion of "and not more restrictive than" and make all IAEA Standards applicable. 32(1) will then read; "The Minister must, on the recommendation of the Board and by notice in the Gazette, establish safety standards and regulatory practices which are in accordance with- (a) the Safety Standards of the International Atomic Energy Agency; and

6 Issue: The Bill is inconsistent in that Section 29(4) suggests unlimited liability of the licensee, while Section 27(2) limits the liability to amounts specified by the Minister. 27(2) also prevents affected persons from claiming compensation, which exceeds the maximum amount (+Bell).

DME position: DME agrees that the two clauses are in conflict and supports the following proposal made by the SLA to resolve this issue.

Proposal: 27(2) should be deleted and 26(5) amended as follows: "The holder of a nuclear installation licence must annually provide proof to the Regulator that any claim
- for compensation to an amount determined by the Minister, after consulting the Board, by notice in the Gazette, can be met". The heading of clause 29 should be amended to read "Claims for compensation in excess of financial security".

7 Issue: Section 43 "Delegation and Assignment by Minister" should be deleted to ensure independence of the Regulation from the State Department and prevent direct control of the Regulator by lower functionaries in the DME. (+EMG)

DME position: Agreed

Proposal: Section 43 will be deleted or revised to ensure that the independence of the Regulator is not affected by the delegation.

8 Issue: Section 2(2)(e) which specifically excludes any matter in respect of which the Mine Health and Safety Act is applicable should be deleted and the recommendations of the Leon Commission should be implemented. (+NUM/CWIU; EMG; EA)

Implications:
The Mine Health and Safety Act (MHSA) makes the Chief Inspector of Mines (CIM) responsible for regulation of all hazards in mines and in terms of this law he will remain obliged to regulate the radiological hazard in mines, even if Section 2(2)(e) is deleted. In terms of the legislation there will therefore be two regulators. Neither can the CIM be excluded from a say as a regulator of the radiological hazard (radon) as this hazard is controlled by mine ventilation together with several other potentially more risky hazards (dust, explosive or poisonous gasses) and for safety reasons the potential for contradictory instructions from two different regulators cannot be permitted at all.

Note: The State Law Adviser will be requested to express an opinion on the applicability of the MHS Act with regard to the CIM obligations in terms of radiation in mines.

DME position: In order to give effect to the Leon Commission recommendations, it is suggested that the exclusion of the mining industry is removed from the Bill that the CNS remains the Regulator and that, in exercising its functions, the Regulator must co-operate and co-ordinate with the Chief Inspector of Mines and the Mine Health and Safety Council.

Proposal:
Legend: brackets = deletion; underline = addition

1. Add new definition: "chief inspector of mines" means an officer appointed in terms of section 48(1) of the Mine Health and Safety Act, 1996 (Act No.29 of 1996).

2. Section 2(2)(e)[(e)]: [any matter in respect of which any provision of the Mine Health and Safety Act, 1996 (Act No.29 of 1996), is applicable; or].

3. Section 2(2)[(f)] (e)

4. [6(2)] 6(2)
6(2)(l) When exercising its functions over any operation to which the Mine Health and Safety Act, 1996 (Act No.29 of 1996) applies, the Regulator must consult with the Chief Inspector of Mines.
6(2)(2) The monitoring and control of radiation must be carried out according to a procedure agreed upon by the Regulator and the Chief Inspector of Mines.

5. [6(2)] 6(3).
6. 32(3)(c) in relation to the operations to which the Mine Health and Safety Act, 1996
(Act No.29 of 1996) is applicable, consult with the Mine Health and Safety Council established in terms of section 41(l) of the said Act.

(Eskom)
9. Issue: Licence fee

9.1 A licence fee paid by a licensee should reflect the actual costs of regulation of the specific licensee

DME position: The principle is accepted.

Proposal: Amend section 25(1) to read: The Minister may, after consultation with the Regulator and by notice in the Gazette. determine the fees payable as prescribed, in respect of-"

9.2 25(l)(c) and (d) (fees for renewal, amendments or inspections) should be deleted as it is too open ended and licensees cannot establish in advance the amount for which they will become liable. Such costs should be included in the annual fee.
(+COM)

Proposal: The critique is accepted and it is proposed that 25(l)(c) and (d) he deleted.

10 Issue: Section 6(j)) should be amended to require the Minister to table the annual public report in Parliament.

Proposal: The critique is accepted and it is proposed that 6(j) be amended to read "produce and submit to the Minister an annual public report which the Minister must table in Parliament, on the health and safety related to workers, the public and the environment associated with all nuclear sites".

11 Issue: Provision should be made to protect proprietary and commercially sensitive information.

DME position: The critique is accepted. Section 46 on "Disclosure of Information" to be amended in consultation with SLA.

Proposal: Section 46 to be amended as follows:

12 Issue: The Bill should make provision for a Stakeholder Advisory Committee (+BSA; + NUM; COM)

- DME position: The establishment of "Advisory Committees" has administrative and financial implications. In addition, the Minister is required to invite public comments before any standards are adopted. However, nothing prevents stakeholders from arranging meetings with, or to make representations to the Regulator, or the Minister., or to establish stakeholder forums, for example the present "Industry Forum on Radiation".

Proposal: It is proposed that the establishment of a Stakeholder Advisory Committee to the Regulator not be made mandatory in legislation. However, from some of the presentations at the PPC it was evident that the public living in the vicinity of nuclear sites is not adequately informed. It is therefore proposed for consideration by the PPC that clause 23(4) be added as follows: "The holder of a nuclear installation licence must establish a Public Information Forum in order to inform the public living in the vicinity of the nuclear site."

13 Issue: Potential duplication with Environmental Conservation Act in clause 18(4)(b) whereby the Regulator can arrange for public hearings relating to health, safety and the environment. (+BSA)

DME position: 18(4)(b) relate to public hearings and not to Environmental Impact Assessments. 18(4)(b) also relates mainly to health and safety issues and therefore much wider than the Environmental Conservation Act.

Proposal: No amendments

(BSA)
14 Issue: Provision should be made for an appeal to the High Court. This is supported by the State Law Adviser. (+COM)

Proposal: An additional clause should be inserted as follows:

41A. (1) Any person adversely affected by a decision of the Minister, either in terms of section 41(3) or in the exercise of any power in terms of this Act, may appeal against that decision to the High Court.

(2)
Such appeal must-
(a) be lodged within 60 days from the date on which that decision was made known by the Minister; and

(b) must set out the grounds for the appeal.

(3) A decision of the Minister contemplated in subsection (1) shall be deemed to be judgement in civil proceedings in the magistrate's court of the district in which the head office of the Regulator is situated.

(4) The High Court may-
(a) confirm, set aside or vary the decision; or
(b) substitute any other decision for the decision of the Minister; and
(c) give an order as to costs as the court may deem fit.
- (5) The judgement of the High Court under subsection (4) shall have the effect of a judgement in civil proceedings."

15 Issue: The present wording in 5(a) on the Objects of the Regulator could be interpreted to mean "health protection at any cost". It is recommended that the wording be amended in accordance with principles established by the International Commission on Radiation Protection as follows (italics): 'provide for the protection of persons, property and the environment against nuclear damage, without unduly limiting the beneficial practices giving rise to radiation exposure, through the establishment of radiation safety standards and regulatory practices". (+COM)

DME position: The DME is comfortable with the recommendation, especially as it is a principle of the ICRP and it supports the principle of sustainable development. However, it should be realised that it could potentially lead to arguments between the Regulator and the regulated parties due to subjectivity. Since clause 32 makes provision for comment by the regulated parties on the proposed standards and the standards will be in accordance with international practice it would appear that provision is made to prevent undue limitation of practices.

Proposal: No Amendments.

16 Issue: Fees should only be levied for nuclear installations and nuclear vessels and not for certificates of registration as the latter should require relatively moderate resources from the Regulator. Clause 25(d) regarding fees for inspections should be deleted.

DNIE position: DME see no justification why certificates of registration should be exempt from licence fees, especially as the licence fee would be much less relatively to nuclear installations and such a procedure would be inconsistent. Clause 25(d) has been deleted. see paragraph 9.

Proposal: No amendments.

17 Issue: Board approval should only apply to nuclear installation licences and nuclear vessel licences and not to certificates of registration as this could unnecessarily encumber and delay what should be almost a day-to-day process involving the authorisation of work activities that cannot give rise to any acute health effects.

DME position: It is agreed that approvals should be granted without undue delays. However, it is considered that delays would be prevented by delegation of the Board to the Executive Officer and that the present wording will ensure the necessary Board approvals and accountability.

Proposal: No amendments.

18 Issue: Clause 22 should be amended to make a nuclear authorisation transferable.

DME position: A nuclear authorisation should not be transferable to ensure continued interaction with the Regulator on the authorisation and the provisions for financial security, where applicable.

Proposal: No amendments.

19 Issue: The definition of a nuclear accident should be revised in accordance with the International Nuclear Event Scale ('NES).

DME position: The 'NES system was established mainly as a tool to communicate nuclear events with the public. The definition as given in the Bill is considered appropriate.

Proposal: No amendments.

20 Issue: Clause 27(2) should be amended, substituting "for each nuclear accident" the words "for each event giving rise to nuclear damaget9.

DME position: Clause 27(2) has been deleted, see paragraph 6.
Proposal: No amendments.

21 Issue: Provisions in clause 2()(2)(b) (rehabilitation) and clause 23 (display authorisation; inspection; monthly return) should be deleted as they would be expected as conditions in a nuclear authorisation.

DME position: These responsibilities on the holders of nuclear authorisations are considered very important and should therefore be specified in the Bill.

Proposal: No amendments

(NUM/CWIU)
22 Issue: The Bills should be referred back for proper consultation. (+EMG)

DME position: The DME concurs that the consultation process could have been better. However, there was considerable consultation on the Bills (as presented by DME to the PPC) and it is considered that the extent of flaws in the consultation process does not warrant the Bills to be referred back. Also, the extent and type of comments received at the PPC (which can be addressed) and the positive support of various key parties for the Bills are indications that the consultation process was reasonable. It is important to note that some parties participated very constructively in the consultation process. The NEDLAC process was not cancelled by the DME.

Proposal: It is proposed that the Bills not be referred back but that any specific issues and constructive proposals be addressed to the satisfaction of the PPC.

23 Issue: The Bills should have been referred in terms of section 76 of the constitution, rather than section 75.

SLA position: The Joint Tagging Mechanism (JTM) of Parliament tagged both bills as section 75.

Proposal: It is proposed that the JTM tagging be accepted.

24 Issue: "The provision concerning the disclosure of information (section 46) is draconian" and not consistent with the Constitution.(+EMG; EA; Bell)

DME position: The secrecy provisions of the previous legislation have been removed and section 46 now only makes provision for the protection of information regarding security arrangements at nuclear installations which is standard practice. DME disagree that the provision is "draconian" or inconsistent with the constitution.

Proposal: To improve clarity it is proposed that section 46(2)(a) be amended (italics) to read is likely to jeopardise the physical security arrangements ....". In addition, the SLA has undertaken to consider the implications of the new right of access to information, which will take effect on 4/2/2000.

25 Issue: Different standards for the mining sector and other sectors would be unconstitutional.

DME position: Neither DME nor the Bill proposes different standards for different sectors. Section 2(2)e has been deleted.

Proposal: No amendment.

(EMG)
26 Issue: It is proposed that "criteria are developed for suitability of Board members …and
the Bill stipulates a transparent process " (+INE).

DME position: The Minister will have to apply his mind to the appointment of suitable Board members and it is practice to follow a transparent process, by inviting public nominations. It is doubtful whether this should formally be entrenched in legislation. The present wording of "suitably qualified" allows the Minister more flexibility to use his discretion, without prescribing specific formal academic qualifications.

Proposal: No amendment.

27 Issue: The current responsibility of the Department of Health in terms of the Hazardous Substances Act should be transferred to the Regulator. (+INE).

DME position: This issue has not been included within the scope of redrafting the Nuclear Energy Act. It will be a matter for Cabinet to decide if the relevant Ministers considers it necessary.

Proposal: No amendment.

28 Issue: "The wording of Sections 18 and 19 should be changed to allow regulation based on the potential risk posed by the nuclear activity to be regulated."

DME position: The comment is not ver,' clear as sections 18 and 19 relate to "applications". The various levels of nuclear authorisations as given in section 17 indeed reflect a distinction of the different potential risks.

Proposal: No amendment.

29 Issue: "It is unacceptable that standards published in the schedule... are below what is considered internationally acceptable. The schedule as is must be scrapped". (+Bell)

DME position: There is no justification given for the statement. The schedule is based on IAEA and ICRP standards. In addition, Section 44 makes provision for the Minster to revise the schedule, after consulting the Board.

Proposal: No amendment

(Namaqualand Action Group)
30 Issue: Section 7(4) should be amended to include direct representation of affected communities and worker organisations on the Board of the Regulator. (+EA)

DME position: Representation by affected communities is supported but should be restricted to nuclear installations (Koeberg Pelindaba, Vaalputs) and a limit should be specified for practical reasons. The proposal of worker representation is in conflict with what has been proposed by the CNS in paragraph 2.

Proposal: Section 7(4) should be amended as follows: "(b) not more than five suitably qualified directors appointed by the Minister" and "(e) one representative from affected communities appointed by the Minister" . "one representative nominated by organised labour in the nuclear industry appointed by the Minister".

3 1 Issue: Any person with business interests in the nuclear industry should be disqualified in Section 7(5).

DME position: Agreed

Proposal: Add Section 7(5)(g) to read is involved in any business in the nuclear industry"

32 Issue: Section 18(2) should make provision to ultimately close SA territorial waters to nuclear powered or nuclear material carrying vessels.

DME position: This is impractical given that Government policy does exclude nuclear energy as an option and in the long term, there are no scenarios that RSA's nuclear industry will disappear

Proposal: No amendment

33 Issue: Section 18(3) should be amended to ensure that affected parties are properly informed by adding 18(3)(c) 'The chief executive officer will ensure that local communities directly affected by application be informed effectively of such applications

DME position: This is effectively covered by 18(3)(a) as the local authority represents the community and must inform them. However, the wording can be made more specific.

Proposal: Amend 18(3)(a) to read: "serve a copy of the application upon such local authority, members of the local public community, and any other body or person that the chief executive officer determines"

34 Issue: Section 18(4)(a): Representation should not be limited to health, safety and environment but should include all aspects for example socio-economic.

DME position: The mandate of the regulator is limited to health, safety and environment.

Proposal: No amendment

35 Issue: Section 19(1): "The Bill envisages a two-fold approach viz one of authorisation and one of certification"

DME position: There is misunderstanding. The bill makes provision for a nuclear authorisation which can be either a nuclear installation licence, nuclear vessel licence, certificate of registration or certificate of exemption.

Proposal: No amendment.

36 Issue: Section 36: An annual record of nuclear accidents and incidents must be made public.

DME position: The purpose of the public report required by Section 60) is to reflect this information.

Proposal: No amendment

(Earthlife Africa)
37 Issue: Minutes of Board meetings of the Regulator must be made available for public scrutiny.

DME position: The right of access to information is considered by the SLA (see paragraph 24).

Proposal: No amendment

38 - Issue: Section 21(3) Amendments to the nuclear authorisation must be agreed by the Board and publicised for public comment.

DME position: Amending a nuclear authorisation is a function of the regulator as per 6(l)(a), which is performed by the CEO as directed by the Board. It would not be practical to publish amendments to nuclear authorisations for public comment. Section 23 makes provision for the nuclear authorisation to be displayed for public scrutiny.

Proposal: No amendment

39 Issue: Section 26(1): The categorisation of nuclear installations and determination of financial security should be made publicly available, as should the methodology used.

DME position: Section 26(2) already make provision for "determination" for which notice must be given in the gazette. The methodology used may be evident from the results but can otherwise be obtained from the Minister by interested parties.

Proposal: Section 26(l)(2) should be amended to read "The Minster must give notice in the Gazette of his or her categorisation and determination in terms of subsections 1(a) and (b)". It is also proposed that the Minister's categorisation and determination be done on "recommendation of the board" rather than "after consulting the board" as the regulator follows a risk based approach and should recommend accordingly. 26(1) should therefore read: The Minister must, on recommendation of the Board -"

40 Issue: Section 34: There should be a specified timeframe for establishing an emergency plan.

DME position: The existing provision that a timeframe must be specified by the Regulator is considered adequate. Stipulating a specific timeframe should be left to the discretion of the Regulator. In terms of its Objects (5(f) the Regulator must ensure that provisions for emergency planning is in place. This implies prior to the granting of a nuclear authorisation.

Proposal: No amendment.

Issue: Section 35: Records on the nuclear installation must be open for public scrutiny
DME position: Subject to section 46, these records will be open for public access.

Proposal: No amendment.

42 Issue: Section 36. Records on accidents and incidents should be open to any person rather than limited to " any person who has suffered nuclear damage".

DME position: Agreed. See also paragraph 36.

Proposal: Amend 36(b) to read "make that record available to any person on request".

43 Issue: Section 38 entrenches secrecy and should be rewritten to provide public access to nuclear information.

DME position: Section 38 relates to physical security, especially of its own premises and property and the intent is not to limit access to public information.

Proposal: SLA to confirm that wording in Section 38 does not unduly limit public access to information.

(Bell)
44 Issue: The Bill should provide more guidance on display of the licence conditions (section 23) and public access to these conditions.

DME position: Agreed

Proposal: Amend Section 23(1) to read "The holder of a nuclear authorisation must, at all times, display copies of that authorisation at such places and in such languages and form as determined by the chief executive officer to ensure public access to the conditions set in the nuclear authorisation

45 Issue: Section 34(1), (2), (3) & (4) on Emergency Planning: The provision that the Regulator or Minister may' direct a local authority or province to establish an emergency plan is unconstitutional as the onus should be on the nuclear operator who must be directed rather than the local authority. All safety arrangements must be at the expense of the nuclear operator and not at the expense of the taxpayer or affected local public. The onus must be and remain on the nuclear operator to make all necessary arrangements for the establishment of an emergency' plan at all levels (local, provincial) and to cover the costs in this regard. The CNS has been handling the development around Koeberg in a manner which infringes on constitutional rights by allowing Eskom to develop property in the 5 km radius whilst attempting to prevent private property owners from doing the same. For this reason the provision (34(4) to place limitations on development surrounding a nuclear installation must be revised to ensure that it does not infringe on constitutional rights.

DME position: The critique is accepted.

Proposal: Section 34 should be amended to read:

"Nuclear emergency planning

(1) The Regulator must direct any holder of a nuclear installation licence, nuclear vessel licence or certificate of registration, where the potential exists for a nuclear accident affecting the public, to -

(a) enter into an agreement with the relevant local and provincial authority for the establishment of an emergency plan within a specified time frame
(b) cover the costs for the establishment and management of such an emergency plan.

- (2) The Regulator must ensure that the emergency plan established in terms of subsection (1) makes adequate provision for the protection of persons against the effect of a nuclear accident.

(3) When a nuclear accident occurs, the holder of the nuclear authorisation in question must implement the nuclear emergency plan as approved by the regulator.

(4) 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 without infringing on any constitutional rights"

(INE)

46 Issue: Subsection 32(3)(b) must be amended to make provision for the Minister to consult with the Board on public comment.

Proposal: Amend 32(3)(b) to read: "consider that comment after consultation with the Board before final notice in the Gazette"

47 Issue: Subsection 7(8): Deputy Chairperson should be appointed by the Board and not the Minister.

DME position: Since the Minister appoints the chairperson and the deputy chairperson will act on behalf of the chairperson in his absence the deputy chairperson should be appointed by the Minister.

Proposal: No amendment.

48 Issue: "The public should pay for the upkeep of the Regulator i.e. all costs of the regulator should be borne from taxes which means funding from central governments budget.

DME position; the principle of polluter pays is implemented in terms of section 25 licence fees will be payable into the National Revenue Fund as can be seen from section 14(1)(a) the Regulator is funded by monies appropriated by Parliament.

Proposal: No amendment.
Issue: Subsection 25(3) (a) and 25(6) (b) The word money should be replaced by monies. DME position: Agreed.
Proposal: Subsection 25(3) (a) and 25(6)(b) to be amended by replacing the word money with monies.

Issue: Subsection 28(5) should read :". . party or parties in whom the rights . . ..in
DME position: agreed

Proposal: Subsection 28(5) to be amended as above.

51 Issue: Subsection 35(3) (a) and b uses the "terms nuclear weapons" state and "non nuclear weapons" state which should be defined.

DME position: consult with SLA.

Proposal: implement advice from SLA.

52. PROPOSED AMENDMENTS BASED ON CNS ANNOTATED COMMENTS

52.1 under "contents 8" delete second "of"

52.2 (xvii) (e): insert "spent fuel" after "nuclear"

52.3 Section 2(2) (c): add at end of sentence: "not situated at a nuclear installation"

52.4 Section 6(1)(b): change to read"... movable, immovable property and pro prietary right; ....".

52.5 Section 8(1) and 8(1) (a): replace "member" with "director"

52.6 Section 13: Insert new subsection 13(5) and change present (5) to (6): "(5) Any pension, provident or preservation fund established by the Council for Nuclear Safety in terms of the pr6visions of the previous Act will be deemed to be a fund of the Regulatorat which is bound by the rules of such fund."

52.7 Section 27(1): add after (6) "and notwithstanding the provisions contained in any other rule of law"..

52.8 Section 27(8): add at end of sentence "during his or her period of responsibility"

52.9 Section 27(9): add "unauthorised" after "that"

52.10 Section 27(10): replace "radioactivity" with "radioactive material"

52.11 Section 41(2) (a): add in front of sentence "be lodged"

52.12 Section 46(2)(a):add "nuclear" in front of "site" (twice)

53 CNS ANNOTATED COMMENTS NOT ACCEPTED

53.1 Issue: Section 1 The definition of "nuclear incident" is not required as all references thereto in the NNR Bill are adequately covered under the definition of "nuclear accident".

DME position Nuclear incident is required as can be seen from the definition which differs from that of a nuclear accident. A "nuclear incident" indicates a lower level of occurrence which is needed to indicate when things are starting to go wrong an "accident" occurs.

Proposal. No amendment

53.2 Issue: Decontamination should not be singled out as a specific activity as it constitutes an integral part of the operation of the decommissioning process.

DME position: Decontamination is not necessarily done only as a routine operation or during decommissioning. After an accidental spilt decontamination will be required for which special safety submission to the regulator may be required prior to work. Decontamination should therefore be specifically specified.

Proposal: No amendment.

53.3 Issue: The term "human activity" could lead to ambiguities regarding certain activities which may be performed mechanically.

DME position: Even mechanical activities are overseen by human operators in nuclear installations. DME considers "human activity" appropriate and see no justification for removing it.

Proposal: No amendment.

53.4 Issue: Section 7(2) Appointment of a DME representative on the Board should be deleted.

DME position: It would be advantageous for the DME and the council to have a departmental representative on the Board

Proposal: No amendment.

53.5 Issue: Section 12(3) Term of office of the CEO should be five rather than 3 years

DME position: Three years gives better flexibility to the Minister and there is no limitation on the reappointment of the CEO.

Proposal: No amendment.

53.6 Issue: Section 14 and 25. License fees should be reserved for nuclear regulation and not appropriate from the state revenue fund for any other purposes.

DME position: Paying of Licence fees into the coffers of the regulator could be considered conflict of interest. Government policy in terms of the proposed Treasury Control Bill indicates that monies must be paid into the national revenue fund.

Proposal: No amendment.

53.7 Issue: Section 18. Nuclear authorisations should be categorised according to its particular risks rather than activities involved.

DME position: Argument not clear. Section 17 clearly indicates the categories for authorisation which are based on risk.

Proposal: No amendments.

53.8 Issue: Section 25(1) Tariff of fees is considered more appropriate rather than fees.

DME position: No justification is given for this it may not be appropriate depending on how the Minister determines fees payable.

Proposal : No amendment.

53.9 Issue: Section 26. Financial security should not be limited to nuclear installations and vessels but also to certificate of registration.

DME position: This arrangement is part of differentiation between different nuclear authorisations on a risk basis. Nuclear installations could potentially have catastrophic accidents with major financial implications requiring special financial security arrangements as opposed to activities for which certificates of registration are issued.

Proposal: No amendment.

53.10 Issue: Section 27(5) SLA to comment - seems like the same wording.

53.11 Issue: Section 44 Schedule 1 being considered by SLA.

NUCLEAR ENERGY BILL ISSUES

(AEC)

1 Issue: Delegation by the Minister with regard to various responsibilities presently executed by the AEC in terms of the Nuclear Energy Act and which could also affect commercial matters. Various sections affected are 13(2)(e); 13(3); 13(l)(a)(i); 13(1)(q); 14; 26(3); 34; 45; 46. Various existing powers should be delegated to the AEC board of Directors before the new Bill is enacted or alternatively a specific transition period should be specified to allow for the phasing in of responsibilities.(+BSA)

DME position: The Bill should make provision for delegation by the Minister to the Corporation. It is agreed that operational arrangements should be put in place for the transitional period. However, this should not be specified in the Bill.

Proposal: Section 55 to be amended by the insertion of a new subsection (2) to read: "(2) The Minister may delegate any institutional obligation to the Corporation or any statutory, or other, body which has the capacity to fulfil the Republic's responsibilities with regard thereto, on its behalf". Subsections (2), (3) and (4) to be renumbered.

2 Issue: The Bill does not clearly provide for the separation of the AEC into two separate and independent organisations (commercial and institutional) (DACTS) (+BSA).

DME position: The Energy Policy White Paper agrees with this but states that "Government will consider the proposals that the AEC be restructured in such a way that it is divided into two separate and independent organisations, one dealing with commercial activities and the other dealing with institutional responsibilities on behalf of the state". The matter must therefore still be investigated. The SLA has also advised that further legislation may be necessary to achieve these objectives. However, certain amendments can be made to address the issue and empower the corporation to spin off commercial activities.

Proposal: The following amendments should be made:

Section 12 should be amended to read as follows:

"(a) to undertake and promote research and development in the field of nuclear energy and radiation sciences and technology, and, subject to the Safeguards agreement, to make these generally available;

(b) to process source material, special nuclear material and restricted material and to reprocess and enrich source material and nuclear material;

(c) to co-operate with any person or institution in matters falling within these functions, subject to the approval of the Minister"

Section 13(1) (a) (i): "subsidiary" should be deleted

Section 13(2) should be amended to read: "In order to create and utilise viable business opportunities in commerce and industry, the Corporation, subject to approval by the Minister, may establish separate companies in order to-"

3 Issue: The current auditing procedure of externally audited financial reports being submitted to the Auditor-General should be retained. The Auditor-General's office does not carry out a formal audit of the AEC at present.

DME position: Section 26(4) makes provision for the reporting by Public Entities Act and 26(3) should therefore be deleted.

Proposal: Section 26(3) should be deleted.

4 Issue: The Bill should make provision for the Minister to appoint an agency responsible for safeguards.

DME position: Addressed in paragraph 1 above, whereby the Minister may delegate.

Proposal: The amendment of Section 55 as proposed in paragraph 1 to be supported.

(Eskom)
5 Issue: Possible conflict with Council for Non-Proliferation of Weapons of Mass Destruction.

DME position: DME consulted with the Department of Trade and Industry and the Council for Non-Proliferation of Weapons of Mass Destruction.

Proposal: The following amendments should be made:

· The inclusion of definition: "proliferation means the proliferation of weapons of mass destruction"

· Add Section 33(2)(e) to read "The Minister must consult with the South African Council for the Non-Proliferation of Weapons of Mass Destruction on any decision taken under Subsection (1) that may have a proliferation implication."

· Section 34: Include between "Minister" and "may" in 34 (2) (a): " , having consulted with the South African Council for the Non-Proliferation of Weapons of Mass Destruction on any issues that may have a proliferation implication

· Section 35: Include between "having" and "duly" in 35 (2): " consulted with the South African Council for the Non-Proliferation of Weapons of Mass Destruction on any issues that may have a proliferation implication and


6 Issue: Possible conflict between clause 33(1) of the NE Bill and section 5 of the NonProliferation of Weapons of Mass Destruction Act 87 of 1993.
The SLA has prepared the following amendments to address the inconsistencies:

NEW CLAUSE

1. That the following be a new clause:

Amendment of 87 Act of 1993

59. The Non-Proliferation of Weapons of Mass Destruction Act, 1993 (Act No.87 of 1993) is amended as set Out in the Schedule.

NEW SCHEDULE

1 That the following be a new schedule:

SCHEDULE.

AMENDMENT OF NON-PROLIFERATION OF WEAPONS OF MASS DESTRUCTION ACT, 1993

(Section 50)

Amendment of section 1 of Act 87 of 1993.

1. Section 1 of the Non-Proliferation of Weapons of Mass Destruction Act is hereby amended by -

(a) deletion of the definition of 'Atomic Energy Corporation' and
(b) the insertion after the definition of 'sample' of the following definition:
"South African Nuclear Energy Corporation" means the South African Nuclear
Energy Corporation, Limited, established by section 3 of the Nuclear Energy Act, 1999."

Amendment of section 4 of Act 87 of 1993.

2. Section 4 of the Non-Proliferation of Weapons of Mass Destruction Act is hereby amended by the substitution in paragraph (h) of subsection 2 for the words "Minister of Mineral and Energy Affairs" of the words "Minister of Minerals and Energy".

Substitution of section 5 of Act 87 of 1993.

3. The following section is hereby substituted for section 5 of the Non-Proliferation of Weapons of Mass Destruction Act:

"5 Objects of Council.
The objects of the Council are, subject to the Import and Export Control Act, 1963 (Act No.45 of 1963), the Amendments Development and Production Act, 1968 (Act No.57 of 1968), and the Nuclear Energy Act, 1999, and in co-operation and consultation with Armscor and the Minister of Minerals and Energy (acting as the national 'authority with regard to the implementation of the Safeguards Agreement between the Republic and the International Atomic Energy Agency for the application of the safeguards in connection with the Treaty on the Non-Proliferation of Nuclear Weapons), to control, register and inspect controlled goods, and to verify the import, export, re-export, transit and end-use of controlled goods."

Substitution for "Minister of State Expenditure" in Act 87 of 1993.

4. The Non-Proliferation of Weapons of Mass Destruction Act is hereby amended by the substitution for the words "Minister of State Expenditure", wherever they occur, of the words "Minister of Finance."

7 Issue: Section 33: Safeguards are vested in the Minister, which could be considered a conflict of interest and should therefore be delegated.

DME position: The amendment proposed in paragraph 1 for Section 55 provides for Ministerial delegation of this activity.

Proposal: Amendment of Section 55 to be supported (see paragraph 1).

8 Issue: Sections 33-43 on nuclear non-proliferation: It is essential that a more efficient process be established to issue Ministerial Authorisations timeously. The Minister should delegate this function properly to effect this. (+BSA; NUFCOR).

DME position: DME accepts the critique which is an operational problem and which should not be specifically addressed in the Bill. Whilst the present legislation does not allow Ministerial delegation the new Bill makes provision to address this problem Section
55).

Proposal: Amendment of Section 55 to be supported (see paragraph 1).

9 Issue: "There are elements in section 34 which do not have a safeguards context, e.g. low level radioactive waste" and this section should be limited to the purposes contemplated under section 33.

DME position: There appears to be a misinterpretation. Section 34 does not refer to low level waste. The elements in section 34 are all in the context of safeguards as indicated by the heading, e.g. "nuclear material, restricted material, and nuclear-related equipment and material" as defined.

Proposal: No amendment.

10 Issue: Eskom proposed that the Minister mandates Eskom to investigate and develop a spent fuel disposal facility and to fund the project.

DME position: DME agrees with the sentiments expressed by some members of the PPC that this would be a conflict of interest. However, DMF considers Eskom to be a main party in investigations to spent fuel disposal and funding thereof.

Proposal: No amendment.

11 Issue: Regulations issued by the Minister in terms of Sections 45 and 54 should be subject to public comment before final establishment.

DME position: This proposal is consistent with the objective of transparency and is supported by DME.

Proposal: Section 45 should be amended by adding the following additional wording as subsection (4):

"(4) before regulations contemplated in subsection (2) are finally established, the Minister must -
(a) by notice in the Gazette, invite the public to comment on the proposed regulations; and
(b) consider that comment in consultation with the Minister of Environmental Affairs and Tourism and the Minster of Water Affairs and Forestry, before final establishment."

Section 54 should be amended with the additional wording as follows:

"(4) before regulations contemplated in subsection (1) are finally established, the Minister must -
(c) by notice in the Gazette, invite the public to comment on the proposed regulations; and
(d) consider that comment before final establishment."

(EA)
12 Issue: Section 19 on minutes of board: Provision should be made for minutes to be made public.

DME position: The right of access to information is under consideration by the SLA with regard to the implications of the new right of access to information, which will take effect on 4/3/2000.

Proposal: Consider SLA position.

2 Issue: "Funding for the corporation should be made available to the public, and that the Corporation must make its books available for public scrutiny" and "financial statements, annual; reports, audited reports regarding business must be made available to the public on request"

DME position: The AEC issues an annual financial public report as required by Section 26, in terms of the Reporting by Public Entities Act.

Proposal: No amendment.

3 Issue: "Section 29 entrenches the secrecy that has prevailed ……. must allow for public
access to information regarding activities..

DME position: Section 29 appropriately makes provision for physical security which is standard practice at a nuclear site.

Proposal: No amendment.

4 Issue: Section 32 should make provision for penalties should the Corporation fail to perform any function.

DME position: Subsection (4) makes provision for the Minister to recover costs. This is considered adequate penalty. Clearly the Minister will have to consider other steps to rectify failures to perform any functions imposed. Such steps should however not be specified in the Bill.

Proposal: No amendment.

5 Issue: Section 34(s): The provision should not exclude irradiated fuel when external to the spent fuel pool.

DME position: Storage of irradiated fuel in the spent fuel pool is a regular routine operation for Koeberg and SAFARI reactors and it should not be necessary to obtain the Minister's authorisation each time, especially as the Minister has already given authorisation to possess the nuclear fuel in terms of 34(b) (iv).

Proposal: No amendment

6 Issue: Section 42(2): Substitution clause 2(b) (i) should not be limited to the "security of the Republic" but should also make provision for "materials that will be harmful or endanger the safety, health and wellbeing of any citizens of the Republic" and similar for Sections 42(3) and 42(4).

DME position: The purpose of this section relates to nuclear weapons non-proliferation and not the safety of persons. The safety of persons is addressed by the Nuclear Regulator Bill.

Proposal: No amendment

7 Issue: The proposed legislation did not cover other sources of radiation such as radiation from cellphones, computers or power lines.

DME position: Electronic product radiation (as defined) is regulated by the Department of Health in terms of the Hazardous Substances Act.

Proposal: No amendment.

(INE)
8 Issue: The definition of radioactive material should be amended to reflect quantitative and qualitative aspects.

DME position: As all materials contain radioactivity it would be incorrect to apply quantitative or qualitative values to the definition of "radioactive material".

Proposal: No amendment.

9 Issue: Definition (xxxii): Restricted materials beryllium and zirconium are used in industry and quantitative and qualitative values should be specified.

DME position: Beryllium and zirconium are restricted materials "for purposes of this Act" as given in 2(a). There is therefore no conflict if these materials are used in industry in applications falling outside the Nuclear Energy Bill.

Proposal: No amendment