COMMENTS ON THE NATIONAL NUCLEAR REGULATOR BILL
SUBMITTED BY BUSINESS SOUTH AFRICA
TO THE PARLIAMENTARY PORTFOLIO COMMITTEE ON MINERALS AND ENERGY

INTRODUCTION
The Nuclear Energy Act No. 131 of 1993 (NEA), sections of which this Bill is intended to replace, is a product of a past political era, and reflects an approach to nuclear-related matters that was shrouded in secrecy and authoritarian in nature. The situation both within South Africa and in the outside world has changed dramatically, resulting in such an approach becoming outdated, inappropriate, and economically untenable in today’s open and democratic society. Business South Africa therefore welcomes this Bill wholeheartedly as a major step forward in achieving the necessary transformation of attitudes towards nuclear-related matters in general and of the nuclear regulatory framework in particular.
At the outset, Business South Africa wishes to emphasize that, although the content of the Bill is not considered to be radical in nature, it does form part of the transformation process and thus entails a break with the past. There will undoubtedly be those who will resist such a break, perhaps because of a desire to retain the sense of security provided by established structures or because of deep seated fears and misunderstandings of anything connected with ionizing radiation. Whatever the reason, Business South Africa urges the Portfolio Committee to consider what is truly in the best interests of the country for the future, and not let its judgement be influenced by events in the past that are no longer relevant to the situation at hand; the way forward must be based firmly on the situation as it exists today.

BASIC PRINCIPLES
Business South Africa believes that the Bill should be examined against the following basic principles:
• International Standards and Regulatory Practice:
Safety standards and regulatory practices should be based on international standards and practice, interpreted in the most appropriate way for South Africa
Note: International standards and practice are reflected in the Safety Series publications of the International Atomic Energy Agency (IAEA). They represent a high degree of international consensus and provide practical requirements and guidance for the establishment of national radiation protection standards and regulatory practices. They are based on the recommendations of the International Commission on Radiological Protection (ICRP). Prominent among the IAEA Safety Series documents is the IAEA Basic Safety Standards [1], a publication sponsored by major world bodies including the IAEA, the Nuclear Energy Agency of the OECD, the International Labour Organization and the World Health Organization. These standards represent current wisdom in the area of radiological protection and form the basis of the regulatory approach adopted in many countries including Europe, North America, Australia and Japan.

• Participation, Accountability and Transparency:
The regulatory framework should be based on the democratic principles of participation, accountability and transparency, and in particular:

(i) Stakeholder participation should be an essential ingredient of decision-making processes such as the setting of regulatory standards and practices.
Note: The philosophy of protection against ionizing radiation, as with the regulation of other activities involving risks to humans or the environment, is essentially one of acceptance of a degree of risk to society in exchange for benefit. Those concerned with radiation protection have to make value judgements about the relative importance of different kinds of risk and about the balancing of risk and benefits.

(ii) Stakeholder participation should be complemented by an effective system of appeals.

(iii) The regulatory body must be independent of any commercial interests in activities involving radiation, but not autonomous. It must accordingly be accountable to the public it serves through the Minister of Minerals and Energy
Note: The Minister, as an elected representative of the public, must be in a position to take political accountability for decisions that achieve the best balance between risk minimization on the one hand and social and economic considerations on the other. Since political accountability should lie with the Minister responsible for the relevant activities involving exposure to radiation, it is appropriate that this person should be the Minister of Minerals and Energy.

(iv) In a democratic society, the regulatory process should be transparent and withstand political scrutiny. Stakeholders should have the right of access to relevant information, provided that this does not jeopardize the safety of nuclear facilities or violate proprietary rights

• Effective, Efficient and Affordable Regulation:
Good governance requires that the regulatory process should be effective, efficient and affordable. The regulatory framework should therefore be structured such that regulatory resources are deployed in as cost-effective a manner as possible, so as to provide an acceptable level of health protection without causing unnecessary social and economic harm. In particular:

(i) The need for, and the nature and extent of, regulation should be commensurate with the risk, taking economic considerations into account:
- Clear criteria for the exclusion of materials from the scope of the legislation should be laid down, based on realistic levels of radioactivity below which the risks involved would, under all reasonable circumstances, be sufficiently low for the cost of regulatory control not to be justified.
- For low risk situations, the granting and administration of authorizations should not involve cumbersome procedures.

(ii) Duplication of other legislative provisions should be avoided:
- In line with the Government’s commitment to co-operative governance and eliminating unnecessary costs, activities involving radioactive materials that are adequately regulated in terms of other legislation should be excluded from the scope of application of the Bill to avoid unnecessary duplication of regulatory resources.
- Similarly, any regulatory requirements that are embodied already in other legislation should not be duplicated in the Bill.

(iii) The levying of fees should be transparent and equitable:
- Fees payable for nuclear regulatory enforcement should be determined in advance at Ministerial level in a structured and transparent manner, and should be commensurate with the degree of regulatory resources required for enforcement.
- Fees should not be levied where the nature of the risk does not warrant the deployment of significant regulatory resources.
- Funds generated from the levying of fees should be channelled directly to the national treasury, to avoid a direct linkage between such funds and the monetary resources in the hands of the Regulator - such a linkage creates a direct conflict of interest and breeds distrust of the regulator.
Business South Africa has examined the Bill in relation to these three principles and takes this opportunity to submit its views and proposals on the Bill in that context.
Note that throughout this document, the comments are generally structured as follows:
1. A general statement of the issue or problem is first given
2. Next, an explanation, motivation and/or background information is given in smaller typeface under the heading ‘Note’
3. Finally, where appropriate, BSA’s recommendation is given in bold type with box surround.
_________________________________________________________________
INTERNATIONAL STANDARDS AND REGULATORY PRACTICE
1. Business South Africa finds it very encouraging that the Bill is based soundly on international standards and regulatory practice. The Bill establishes an independent Regulator with clearly defined powers and functions, and provides for a system of nuclear authorizations and standards that is in line with international practice.
There are three areas where the Bill is not aligned with international practice, and where BSA believes the Bill can be improved. These relate to:
• the objects of the Regulator
• the scope of application of the concept of strict liability for nuclear damage, and
• the definition of ‘nuclear accident’.
The first and second of these concerns impact directly on the achievement of effective, efficient and affordable regulatory processes, and are thus dealt with under that heading (points 4 and 6). The third concern is dealt with under "Additional Comments" (point 12).

PARTICIPATION, ACCOUNTABILITY AND TRANSPARENCY

2. Participation and Transparency
Business South Africa welcomes the provision in clause 32(3) for the Minister to invite and consider public comment before any safety standards and regulatory practices are established, amended or replaced.
However, BSA is concerned that:
• the one-way process of merely inviting comment lacks transparency and provides no opportunity for open discussion among stakeholders
• the interpretation and consolidation of such comment would in any event represent an onerous task to be performed at Ministerial level.
Note: The International Atomic Energy Agency states that its Basic Safety Standards must "be interpreted to take account of local situations, technical resources, the scale of installations and other factors which will determine the potential for application" [1]. This process needs to involve stakeholder participation.
It is therefore recommended that the Bill be amended to make provision for a stakeholder advisory body to advise the Minister on regulatory policy, standards and practices, including the making of any regulations by the Minister and the changing or replacing of the Schedule by the Minister.
The membership of such an advisory body should include, in addition to direct stakeholders, representatives of all Government Departments with regulatory responsibility for matters involving radiation, such as the Departments of Minerals and Energy, Health, Environmental Affairs & Tourism, and Water Affairs and Forestry to help ensure that regulatory standards and practices are harmonized across these Departments.

3. Accountability
Under the existing Nuclear Energy Act, too much power with too little accountability is placed in the hands of the Regulator, and the improvements provided by the Bill in this regard are therefore welcomed by Business South Africa. The Bill assigns political accountability for nuclear regulation to the Minister of Minerals and Energy in a clear and unequivocal manner, without compromising the necessary degree of independence of the Regulator or its ability to carry out its enforcement duties.
While the Minister is accountable to the Cabinet and Parliament, the appeal process plays an important role of holding the Minister accountable. Chapter 6 of the Bill provides for a comprehensive and practical system of appeals, but the lack of provision for an appeal to the High Court is seen as an important omission.
Note: The present Nuclear Energy Act quite correctly provides for appeals to the Supreme Court against a decision of the Minister (with the relevant court now being the High Court), but no such provision exists in the Bill. The implications of this are that, in future, the only recourse available in terms of a decision of the Minister would be by means of a judicial review. In comparison with an appeal to the High Court, a judicial review is more limited, in that it is concerned only with the decision-making process and not with the merits of the decision. Accountability is thus diminished.
Provision for an appeal to the High Court is an essential part of any democratic regulatory process.
Business South Africa believes that provision for an appeal to the High Court should be included in the Bill, in the same way that it is included in current legislation. It is recommended that the following additional clause be inserted after clause 41 of the Bill:
"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."

EFFECTIVE, EFFICIENT AND AFFORDABLE REGULATORY PROCESSES

4. Objects of the Regulator
While Business South Africa generally supports the manner in which the objects of the Regulator are set out in clause 5, it is concerned that clause 5(a) can be interpreted to mean "health protection at any cost", which is in conflict with the principle of sustainable development and with radiation protection principles established by the ICRP and the IAEA.
Note: The ICRP, for instance, makes the following statement:
"(100) The basic framework of radiological protection necessarily has to include social as well as scientific judgements, because the primary aim of radiological protection is to provide an appropriate standard of protection for man without unduly limiting the beneficial practices giving rise to radiation exposure." [2]
Similarly, the IAEA states:
"Radiation and radioactive substances are natural and permanent features of the environment, and thus the risks associated with radiation exposure can only be restricted, not eliminated entirely. Additionally, the use of human made radiation is widespread. ……………. The Standards draw upon information derived from extensive research and development work…….. Purely scientific considerations, however, are only part of the basis for decisions on protection and safety, and the Standards implicitly encourage decision makers to make value judgements about the relative importance of risks of different kinds and about the balancing of risks and benefits." [1]
The object of the Regulator should be to permit the safe conduct of work involving radiation where such work is beneficial to society, rather than to prohibit. This is an important philosophical point that needs to be clearly brought out in the Bill.

It is therefore recommended that clause 5(a) be substituted with the following, using ICRP text:
"(a) 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;"

5. Tiered system of nuclear authorizations
Business South Africa supports the provision, in clause 17, of a risk-based, tiered system of nuclear authorizations involving a clear distinction between:
• licences for nuclear installations and vessels, and
• certificates of registration for activities involving radioactive materials outside of the nuclear industry
in line with the principles laid down in the IAEA’s Basic Safety Standards [1] and with established regulatory practice in other countries. However, there is concern over certain requirements associated with the system of authorizations in the following areas: liability for nuclear damage, fees, and board approvals with respect to certificates of registration, as elaborated upon in points 6, 7 and 8 below.

6. Nuclear liability regime
Business South Africa supports clause 26, which requires compulsory financial security to be provided by the holders of nuclear installation licences, but not by holders of certificates of registration.
However, when it comes to the associated issue of strict liability, clause 27(8) is inconsistent with clause 26 and is in conflict with international practice and with the Government’s Energy Policy, in that it extends the regime of strict liability beyond nuclear installations to cover all activities involving radioactive materials. Strict liability, like compulsory security, should apply only to nuclear installations.
Note: One of the most important areas in which a distinction needs to be drawn between nuclear facilities and other activities involving radioactive materials is the legal liability regime for nuclear damage. From the very inception of the nuclear industry in the late 1950’s, it was realized that, due to the hazardous nature of nuclear activities and the complexities of the processes involved, a special nuclear liability regime would be necessary, both nationally and internationally for the operation of nuclear installations. Such a regime is quite different from the "common" law that would be applicable in its absence, and embodies the two key principles of "strict liability" and "compulsory financial security". These principles are well-established in international treaties:
• the Paris Convention on Third Party Liability in the Field of Nuclear Energy [3], and
• the Vienna Convention on Civil Liability for Nuclear Damage [4].
In its publication Liability and Compensation for Nuclear Damage, an International Overview [5], The Nuclear Energy Agency of the OECD states the following:
"The special liability regime for nuclear activities …….. applies only to "nuclear installations" in which highly dangerous processes are carried on ………… These processes are complex and hazardous in themselves, as well as involving nuclear materials which may react in such a way as to cause a major catastrophe."
The OECD publication then goes on to say that:
"In the case of other uses of nuclear materials, such as radioisotopes used in medicine and industry, the risk is much lower and can easily be accommodated within the regular civil liability system. Similarly, uranium mining and milling is not covered by the special regime, as there is no danger of "criticality" or a sudden accident and the level of radioactivity is fairly low."
The above principle is reflected in the Government’s Energy Policy [6] under the heading "governance in the nuclear industry", as follows:
"In defining its policy on regulation, Government recognizes the difference between nuclear installations, on the one hand, where the potential exists for acute exposures and catastrophic accidents, and therefore requiring a special liability regime with compulsory financial security …….. On the other hand there are other industries where relatively low levels of naturally occurring radioactivity are by-products of the process, where ……. the risk is covered by a regular civil liability regime ……..."
It is also noteworthy that strict liability and compulsory financial security are, quite correctly, not embodied as requirements in the Hazardous Substances Act No. 15 of 1973, with respect to the use of medical and industrial uses of radioactive isotopes.

It is therefore recommended that, in the interests of internal consistency, and for compliance with international practice and with the Government’s Energy Policy:
• clause 27(8) should be deleted, and
• "nuclear authorization" in clause 27(9) should be substituted with "nuclear installation licence"

7. Fees for Nuclear Authorizations
Business South Africa supports the provisions in clause 25 that bring about a more structured, controlled and transparent process for the levying of fees. The provision for such fees to be paid into the National Revenue Fund is a particularly welcome development. The present system, where fees remain in the hands of the Regulator, does not promote efficient and affordable regulation.
Business South Africa believes, however, that:
• compliance inspection fees should be incorporated into the annual authorization fee, and
• the payment of fees should be required only with respect to nuclear installation licences and nuclear vessel licences

Note: The levying of a separate fee for compliance inspections perpetuates the present open-ended situation, in terms of which licensees cannot establish in advance the amount of fees for which they will become liable. Furthermore, such a situation has generated mistrust of the Regulator’s motives in deciding upon the extent of compliance inspections required. The amount to be incorporated should be facility-specific, and dependent on the inspection requirements of the particular operation concerned.
The administration of a certificate of registration should require relatively moderate resources on the part of the Regulator, in line with the low level of risk compared with that associated with nuclear installations.

It is therefore recommended that, in clause 25:
• "authorization" should be substituted with "installation licence", and
• clause 25(d) should be deleted.

8. Board Approvals with respect to Certificates of Registration
BSA believes that the approval of the board should only be required for the issuing, refusal, setting of conditions for, and revocation of nuclear installation licences and nuclear vessel licences. It should not be required for similar actions in respect of certificates of registration and certificates of exemption.
Note: Extending such a requirement to certificates of registration and exemption will unnecessarily encumber and delay what should be almost a day-to-day process involving the authorization of work activities that cannot give rise to any acute health effects.

The following changes are recommended:
• in clause 19(2), "with the approval of the board" should be deleted
• in clause 20(3)(c), "authorization" should be substituted with "installation licence or nuclear vessel licence"
• clause 24(1) should be substituted with:
"The chief executive officer may revoke a nuclear authorization subject to, in the case of a nuclear installation licence or nuclear vessel licence, approval of the board."

9. Scope of application of the Bill
BSA is in agreement with, and supports, the definition of the scope of application, in clause 2.
Note: The scope of application:
• is in line with international standards and recommendations,
• will be effective in ensuring that resources are focused on those areas where the cost of regulatory control is justified in terms of the level of risk involved, and
• will avoid the duplication of regulatory resources where adequate control is already provided for under other legislation.
Nuclear installations: The application of the Bill to all nuclear installations is in line with international practice.
Group III and Group IV hazardous substances: Man-made radioactive isotopes and radiation-generating equipment fall under this heading, and are regulated by the Department of Health’s Directorate: Health Technology under the Hazardous Substances Act No. No. 15 of 1973. The exclusion of these substances from the Bill avoids duplication of regulatory control.
Radiation in mines:
• The regulation of health and safety hazards in mines has entered a new era with the implementation of the Mine Health and Safety Act No. 29 of 1996, providing a modern, tripartite approach to mine health and safety embracing all hazards - including radiation hazards - not only to the workforce but also to members of the public.
• Continued separate regulation of radiation hazards in mines
- would not fit in with this new, holistic approach to mine health and safety
- would be inconsistent with approaches in other countries - BSA is not aware of any other non-uranium mining industry that is regulated by the nuclear regulator under nuclear safety laws - radiation hazards are generally addressed under mining law, radiation protection law, occupational health and safety law and/or environmental law, and their regulation is usually the responsibility of the mine inspectorate.
- would perpetuate the current fragmented approach to radiation regulation on mines, giving rise to the duplication of regulatory resources, conflicting regulatory requirements, and additional costs that do not provide added value in terms of health protection.

Non-nuclear work with materials having elevated levels of natural radioactivity:
Everything in the environment is radioactive, and it is essential that realistic regulatory criteria are set such that regulatory resources are not wasted on non-nuclear work activities with natural raw materials where, because of the low levels of radioactivity, the radiological risks are not worth regulating.
The criteria laid down in the Schedule to the Bill are realistic, sensible, and consistent with international practice. In particular, the values given in the Schedule are consistent with the criteria specified by the ICRP [7] and in the European Council Directive [8] for determining the need for regulatory control - such criteria apply regardless of the quantities of material involved or the way in which such material is used.

Non-nuclear work involving exposures to radon gas: Because the radioactive gas radon-222 is ubiquitous to all workplaces, the internationally accepted approach is for workplaces with radon concentrations exceeding a certain "action level" to be addressed in the first instance by remedial action to reduce the radon concentrations to below this action level. (In radiation protection language, this is known as "intervention"). Should it prove unreasonably difficult to achieve the necessary improvements, this same "action level" becomes the relevant criterion for including the exposures to radon within the scope of regulatory control.
The ICRP recommends an action level in the range 500 to 1500 becquerels per cubic metre of air [9].
The value adopted in the IAEA’s Basic Safety Standards [1] is the mid-point of this range, namely 1000 becquerels per cubic metre of air. This is precisely the value listed in the Schedule to the Bill.

10. Licence application procedure
BSA believes that clause 18(4), which makes provision for public debate, is an unnecessary duplication of requirements already in place under the Environment Conservation Act. It also negates the general objective of integrated environmental management as expressed in section 23 of the National Environmental Management Act, 1998 which inter alia includes the evaluation of impacts on the environment, socio-economic conditions and cultural heritage; ensuring adequate and appropriate opportunity for public participation and the co-ordination of activities of organs of state.
Note: In terms of clause 18(4) any person who may be directly affected may make representations to the Regulator on health, safety and environmental issues connected with a nuclear licence application, and the Regulator may deem it necessary to arrange for further public debate on such issues.
The construction or upgrading of "nuclear reactors and installations for the production, enrichment, reprocessing and disposal of nuclear fuels and wastes" is one of those activities identified by the Minister of Environmental Affairs and Tourism, after consultation with the Minister of each department of State responsible for the control of such activities, as an activity which may have a substantial detrimental effect on the environment.
Any person wishing to construct or upgrade a nuclear reactor or installation must accordingly apply for written authorization, which authorization shall only be issued after considering the impact of the proposed activity on the environment. The applicant in respect of such activity is also responsible for a public participation process to ensure that all interested parties, including government departments that may have jurisdiction over any aspect of the activity, are given the opportunity to participate in the impact assessment study.

BSA therefore believes that this duplication of effort should be avoided by the deletion of clause 18(4)

11. Transfer of nuclear authorizations
BSA believes that, where a business is sold as a going concern to another party who continues to engage in exactly the same activity on exactly the same site, it should be possible to transfer the relevant authorization without incurring the duplication of effort, delay and expense which an application for a new authorization would entail.
Note: Such transfer, if deemed necessary, could be made subject to the provision of further information by the new holder, the imposition of amended conditions and to an appropriate fee being paid. In view of the fact that a holder of a nuclear authorization’s period of responsibility ends on the date on which the authorization in respect of the activity is granted to some other person and in view of the very wide powers afforded inspectors in terms of clause 37(4)(e) to require either the holder of an authorization or other person involved to take certain rehabilitative steps, the Regulator should have no concerns that the transfer of such an authorization would affect the liability of either the previous or new holder of the authorization.

It is accordingly recommended that clause 22 be amended to read as follows:
"Subject to the written approval of the Regulator, a nuclear authorization may be transferred"

ADDITIONAL COMMENTS

In examining the Bill, BSA identified a need to improve it in a number of other areas, as follows:

12. Definition of ‘nuclear accident’
The definition of "nuclear accident" in clause 1 is inconsistent with international practice for the reporting of nuclear events in accordance with the IAEA’s International Nuclear Event Scale (INES) [10]. It is also inconsistent with the definition, in this same clause 1, of "nuclear incident".
As it stands, the definition of a nuclear accident could relate to a very minor event, more minor than even a nuclear incident, because of the very wide definition of "nuclear damage". This could cause problems in the implementation of the relevant provisions of the Bill.

Note: INES is not a regulatory instrument, but such lack of consistency could cause confusion and should be avoided if possible.
INES is, in its own words, "applicable to any nuclear event that may occur at nuclear power plants and at other nuclear facilities", and provides a clear description of the four levels of nuclear accidents (together with three levels of nuclear incidents). For the lowest of these levels ("accident without significant off-site risk") the criteria are specified as follows:
• External release of radioactivity above authorized limits, resulting in a dose to the most exposed individual off-site of the order of a few millisieverts. With such a release the need for off-site specific actions would be generally unlikely except possibly for local food control.
• Significant damage to the nuclear facility. Such an accident might include damage to nuclear plant leading to major on-site recovery problems such as partial core melt in a power reactor and comparable events at non-reactor installations.
• Irradiation of one or more workers which result in an overexposure where a high probability of early death occurs.
The following nuclear accidents are given as examples of this lowest level of accident:
• Windscale Reprocessing Plant, UK, 1973
• Saint-Laurent Nuclear Power Plant, France, 1980
• Buenos Aires Critical Assembly, Argentina, 1983.
Higher levels of accident on the INES system obviously involve more severe criteria.

It is recommended that the definition of "nuclear accident" in clause 1 should be substituted with the following:
"nuclear accident" means any unintended event at a nuclear installation which causes—
(a) off site public exposure several times greater than the prescribed limits; or
(b) significant damage to the nuclear facility; or
(c) irradiation of one or more workers on site which results in an overexposure where a high probability of early death occurs.

13. Limit on liability for nuclear damage
BSA welcomes the fact that the licensee’s strict liability is counterbalanced by a limit on the amount of compensation payable, as contemplated in clause27(2).
However, such limited compensation should apply not only in respect of a nuclear accident, but also in respect of a nuclear incident and any other routine release of radioactive material which may cause nuclear damage.
Note: The limit on the amount of statutory guaranteed compensation payable is viewed as a quid pro quo for the licensee’s assumption of liability, without the need for the claimant to resort to expensive litigation, and for the loss of the licensee’s normal defences.

It is recommended that:
• in clause 27(2), "for each nuclear accident" should be substituted with "for each event giving rise to nuclear damage".
• clause 30(1)(a) should read
"the date of the event which gave rise to the right to claim that compensation; or"

14. Inclusion of licence/registration conditions in the Bill
The following provisions in the Bill are seen as being requirements or conditions that one would expect to find in a licence or certificate of registration:
• site rehabilitation (clause 20(2)(b))
• display of copies of a nuclear authorization (clause 23(1))
• implementation of an inspection programme (clause 23(2))
• provision of information or monthly return (clause 23(3))
Their applicability to all situations is questionable, and they should therefore not appear in the Bill but rather be handled as licence/registration conditions.

It is recommended that clause 20(2)(b) and clause 23 in its entirety should be deleted

COMMENTS ON POINTS OF DETAIL
These comments, which are of a technical drafting nature, and which are presented with a view to effecting improvements at that level, are listed in the Appendix.

REFERENCES
1. International Basic Safety Standards for Protection against Ionizing Radiation and for the Safety of Radiation Sources, jointly sponsored by the FAO, IAEA, ILO, OECD/NEA, PAHO, WHO. IAEA Safety Series No. 115, International Atomic Energy Agency, Vienna (1996)
2. 1990 Recommendations of the International Commission for Radiological Protection, Annals of the ICRP, Vol. 21, No. 1-3, Pergamon Press, Oxford (1991)
3. Paris Convention on Third Party Liability in the Field of Nuclear Energy of 29 July 1960, as amended by the Additional Protocol of 28 January 1964 and by the Protocol of 16 November 1982
4. Vienna Convention on Civil Liability for Nuclear Damage of 21 May 1963
5. Liability and Compensation for Nuclear Damage, an International Overview, Nuclear Energy Agency, Organization for Economic Co-operation and Development, Paris (1994)
6. White Paper on the Energy Policy of the Republic of South Africa, Department of Minerals and Energy, December 1998
7. General Principles for the Radiation Protection of Workers, Annals of the ICRP, Vol. 27, No. 1, Pergamon, Oxford (1997)
8. Council Directive 96/29/Euratom of 13 May 1996 laying down basic safety standards for the protection of health of workers and the general public against the dangers arising from ionizing radiation, Official Journal of the European Communities No. L159, Vol. 39, 29 June 1996
9. Protection Against Radon-222 at Home and at Work, ICRP Publication 65, Annals of the ICRP, Vol. 23, No. 2, Pergamon, Oxford (1993)
10. INES: The International Nuclear Event Scale, User’s Manual, Revised and Extended Edition 1992, International Atomic Energy Agency, Vienna (1992)

APPENDIX
COMMENTS ON POINTS OF DETAIL
Clause 1
Definition of Nuclear Incident
The definition of "nuclear incident" is generally in line with the INES system [10], but the following change is recommended:
(b) the significant spread of contamination ……………

Definition of Period of Responsibility
The last sentence of (a) should be amended to read:
…….no longer exceeds the levels above which regulatory control is required in terms of the safety standards …………
The safety standards themselves are not necessarily always in the form of numerical limits.

Clause 5
For clarity, the following expansion is suggested:
(b) exercise regulatory control related to radiation safety over the ……..
(c) exercise regulatory control related to radiation safety over other human activities ….

Clause 14(8)
For consistency and greater transparency, this clause should be replaced with text modelled on clauses 26 and 27 of the Nuclear Energy Bill.

Clause 19(2)(b)(i)
The wording implies that all certificates of registration must be subject to conditions. Some registered work activities may not need to be subject to conditions, for instance if appropriate health protection measures have to be in place in any case in respect of non-radiological risks. In such cases, registration is merely a means of ensuring, and placing on record, that the situation has been reviewed by the Regulator and deemed to be safe. The following addition to the text is recommended:
(i) a certificate of registration subject to such conditions, if any, as may be determined in terms of section 20; or

Clause 20(2)(a)
The purpose of licence or registration conditions is to ensure compliance with the relevant radiation safety standards. Therefore, this clause should be reworded as follows:
(a) is necessary to ensure the protection of persons, property and the environment against nuclear damage compliance with the radiation safety standards established in terms of section 32; or

Clause 27(9)
In order to make sense, this clause should be expanded as follows:
Any person carrying out an activity without a nuclear authorization in contravention of this Act is liable for any nuclear damage caused by or resulting from that activity

Clause 32(1)
In order to make it clear that the standards and regulatory practices should not be more restrictive than either the IAEA standards or ICRP recommendations, part (a) of this clause should be amended as follows:
the International Atomic Energy’s International Basic Safety Standards and its Regulations for the Safe Transport of Radioactive Material; and or

Clause 32(3)(b)
This should be amended to read:
(b) consider that comment before making a recommendation to the Minister in terms of subsection (1)

Clause 33(1)
In line with the definition of "nuclear accident" recommended in 6.1 above, this clause should only apply to holders of nuclear installation or vessel licences. It is therefore recommended that this clause be amended to read:
If a nuclear accident occurs in connection with a nuclear installation or nuclear vessel or activities involving radioactive material, the holder of a the nuclear authorization licence in question must immediately report it to the Regulator and to any other person described in that nuclear authorization licence

Clause 33(2)(c)
As this eventuality would, in terms of the definition of "nuclear accident" recommended in 6.1 above, apply only to nuclear licence or nuclear vessel licence holders it is recommended that this clause be amended to read
(c) Direct the holder of the nuclear authorization licence or nuclear vessel licence in question to obtain….

Clause 34(3)
For consistency, this clause should be amended to read:
…in accordance with the levels of intervention and the system for the application of protection and remedial measures established by the Regulator in terms of section 32.

Clause 37(4)(a) and (b)
The inspector should be required to consult with the appropriate persons to determine measures that may be required for the safety of the inspector, employees, the public or the environment.

Clause 46(2)(a)
As this Bill relates only to radiation safety this clause should be amended as follows:
…for the protection of persons. or the security of the public.

COMMENTS ON THE NUCLEAR ENERGY BILL
SUBMITTED BY BUSINESS SOUTH AFRICA
TO THE PARLIAMENTARY PORTFOLIO COMMITTEE ON MINERALS AND ENERGY

1. THE ATOMIC ENERGY CORPORATION
According to the 1998 AEC Annual Report, the AEC has since late 1990 embarked upon a challenging commercialization strategy aimed at generating profitable returns from its historical nuclear technology investments. External revenue emanating from the sales of industrial products and services has, according to the AEC's annual statements, increased from an insignificant amount 8 years ago to a total of R211 million for 1998/99 - 43% thereof coming from targeted exports. Business South Africa would gladly endorse new legislation that facilitates this total commercialization thrust of the AEC, resulting in a clear separation of the near-profitable commercial division of the AEC from future government involvement and support.
However, the Nuclear Energy Bill seems to introduce measures that are counter to this goal.
Given the apparent concentration of powers which, according to the Bill, will in future be vested in the Minister, Business South Africa wishes to make the following three proposals.
1. The necessary authority in terms of the Nuclear Energy Bill should be delegated to the AEC's Board of Directors to prevent a real retardation of the AEC's commercialization programme. Business South Africa would like to see legislation that empowers the AEC to take rapid business decisions based on sound guidance from its Board, rather then engaging in what could be a cumbersome process to obtain commercial authority at Ministerial level. Business South Africa is of the opinion that Government should leave the mundane day-to-day business activities of the AEC in the hands of experienced AEC business managers who should be able deal with these matters in a sound and efficient way.

2. Sufficient time should be allowed for the process of delegation of those powers required by the AEC for the continued smooth functioning of the organization. The exploitation of nuclear-related technology, selling of manufacturing rights and formation of Joint Venture agreements by the AEC are typical examples where, in terms of the Bill, the written approval authority of the Minister will in future be required. Business South Africa believes that these business activities of the AEC should not experience any setback during the period of transition from the current Nuclear Energy Act, 1993, to the enactment of the Nuclear Energy Bill.

3. The Nuclear Energy Bill should enable the AEC to follow the clear directives of the recent White Paper on Energy Policy, which calls for a "separate organization to house all of the AEC's commercial activities" (page 50 of the White Paper). Although the memorandum on the objects of the Nuclear Energy Bill (page 66 of the Bill) broadly refers to the aim of the Bill as bringing about a new governance regime for the AEC, the management of the so-called institutional and commercial activities will apparently both still remain under the same form of governance. In fact, Business South Africa could not find any reference in the Bill that addresses the future separation of activities within the AEC. Even if the Bill has such an implied intention, it should allude more clearly to this issue, in order to speed up the future implementation of such a separation process.

2. TRANSACTIONS INVOLVING NUCLEAR MATERIALS
A number of organizations in South Africa commercially exploit nuclear energy and as such are routinely involved in commercial and other transactions related to various nuclear materials, for example:
• Eskom routinely requires to purchase uranium and its beneficiated products for conversion into nuclear fuel, and to import that fuel for the operation of the Koeberg reactors
• The AEC produces an extensive range of medical isotopes, many of which are exported
• NUFCOR, on behalf of the mining industry, routinely sells and exports uranium, all of which is currently exported.

The above activities are routine, well-practiced and highly controlled, and are all undertaken on a commercial basis. The activities carried out by the AEC and NUFCOR are significant export earning activities undertaken in highly competitive markets.

The provisions contained in the Bill will impose significant operational difficulties because of the need for extensive Ministerial controls in respect of authorizations of such transactions. An effective operational system of delegation of these powers should be incorporated into the Bill to avoid the potential for serious commercial damage.