Environmental Monitoring Group
Submission to the Portfolio Committee on Minerals and Energy on the National Nuclear Regulator Bill (B11-99)

By:
Stephen Law
Environmental Monitoring Group, Cape Town
20 February 1999

The Environmental Monitoring Group is an independent non-governmental organisation working to promote the environmentally sustainable development of South Africa. Our mission is to empower people to take charge of their own environment so that the right to a healthy environment can be enjoyed by all. We do this because we believe that principles of democracy, environmental justice and environmental sustainability are essential to the sustainability of our future.

The prelude to the Bill states that its aim is to establish a regulatory authority which will, inter alia, act to "…provide for safety standards and regulatory practices for protection of persons, property and the environment against nuclear damage…"
Furthermore, the Memorandum on the objects of the Bill, on page 50 states that the main objectives of this Bill are amongst others, to "...separate the functions of nuclear safety from those of development and application of nuclear technology, and to provide for more transparent and accountable governance of safety..." etc.

While we support the above aims, we make this submission because we believe that the content of the Bill does not reflect these aims, nor does it provide adequate opportunity for interested parties and the public to be involved in management and regulation of activities which have a great potential for causing damage to people’s health and their environment.
Lack of participation
In mid 1995 the Minister of Minerals and Energy commissioned the Council for Nuclear Safety (CNS) to make recommendations on a new act which would separate regulation of the nuclear industry from its development and promotion. To the credit of the CNS, this process was characterised by a commitment to consultation with as wide a body of opinion as possible, to the extent that information workshops were arranged by the CNS at its own cost. A year later, by what one can only assume was a stroke of the "ministerial pen", this process was buried and forgotten. In direct contrast, the drafting of this Bill has been a closed shop. Certainly there has been no attempt by the DME to consult beyond its own ranks and industry – illustrated by the fact that significant objections to the content of this Bill have been made by the CNS, labour, and other groups. We find it particularly alarming, and without precedent, the fact that the current regulator, the CNS, appears to have been given no hand in drafting this Bill. Apart from input into the original CNS-driven process in July 1995, this opportunity is the first EMG has had to comment on the issues.

Looking at the stated aims of the Bill, the critical importance of broad consultation in a Bill such as this should be self-evident. This Bill proposes to establish a body to act in the interests of the public, but such a body will never be trusted and accepted by the public unless it has been created after broad consultation. One must remember that South Africa’s nuclear industry has been shrouded in secrecy for many years. On top of this, with incidents such as Chernobyl, the millions of rands of tax-payer’s money swallowed up by the Atomic Energy Corporation each year, the decline of the nuclear industry in Europe and America, etc.,.. it is no wonder that the public have an enormous mistrust of nuclear activities, and the role of industry and the government therein.
Recommendation
We urge the Portfolio Committee to reject the process by which this Bill has been drafted and require the DME to present plans for a broad consultative drafting process which will ensure that the Bill sets up a regulator which truly has the interests of public safety at heart and which in turn is trusted and supported by the public.

We further urge the Committee to take into account submissions made to the CNS in the original participatory process, and to enquire of the Minister
• why the original process was aborted,
• why key recommendations of that process have not been incorporated into the current draft, and
• why issues in this draft, relating to worker safety, were not resolved in the NEDLAC forum.
Conflict of interest
The Bill presents a number of contradictions in trying to achieve the aims stated in the prelude and Memorandum, i.e. transparency, accountability and the separation of regulation from promotion.

In terms of Sec 7(4) the Board of Directors governing the Regulator will all be appointed by the same Minister responsible for promoting the development and application of things nuclear. There is no transparent process by which Board Members will be appointed, the only requirement being that they are "suitably qualified". Furthermore, Sec 7(5) and 8 do not preclude individuals with direct vested interests (such as licensees or their employees) from serving on the Board.

In terms of Sec 43 the Minister may delegate his responsibilities to officials in the DME which further opens up the possibility of conflicts of interest, and grossly undermines the independence of the Regulator.
Recommendation
In the original consultative process, at least 16 out of 40 submissions (including Eskom, Council for the Environment, Chamber of Mines, Dept. of Transport, etc.) expressed disquiet with the regulating body reporting to the Ministry of Minerals and Energy. In the interests of separating regulation from promotion, and ensuring true independence, we propose that the Ministry of Environmental Affairs is a more suitable institution to house a regulator responsible for ensuring the safety of the public and the environment.
Furthermore we propose that
• criteria are developed for suitability of Board Members which go beyond mere technical capacity but which include a proven commitment to sound health, safety and environmental practice,
• that the Bill stipulates a transparent process by which motivated nominations are invited from interested parties and the general public, and
• that individuals with vested interests be disqualified.
In any case, Sec 43 which allows the Minster to delegate his authority to officials in the DME, should be scrapped in its entirety.
Fragmentation
The Regulator should be empowered to regulate the use of all radio-active material which has potential to cause harm. Current legislation is already fragmented and this draft Bill does nothing to address this. It entrenches the separate regulation by the Department of Health of radio-active material defined as a Group IV Hazardous Substance (see Sec 2.c.) and further fragments regulation by excluding any matter in respect of which the Mine Health and Safety Act is applicable (sec 2.e.).
There is no valid reason why functions, expertise and infrastructure need to be duplicated across these different authorities, and the application of different safety and environmental standards by different authorities is unacceptable practice.
Recommendation
Fragmentation should be reduced as far as possible by integrating into the powers of the Regulator, where appropriate, activities currently the responsibility of the Department of Health and the Government Mining Engineer, or responsibilities which are so envisaged in terms of this draft.
The exclusions in Sec 2(2) must be revised.
Nuclear authorisation
In terms of Sections 18 and 19 the Bill specifies how regulation is to be performed based on the type of activity. This does not take into account the nature of the hazard posed or the potential risk involved. The interests of public and worker safety and environmental protection would be better served if regulation was based on the risk posed irrespective of the nature of the activity.
Recommendation
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. There is a precedent for this in that it is the principle applied in Section 26 where financial security is to be determined on the basis of risk posed.
Transparency
If the Regulator is to be seen as an independent body, its operations must be transparent and open. The appointment of Directors to the Board and the establishment of acceptable safety standards must be open to public debate, and the public must have access by request from the Regulator, to all details of specific licensing and certification processes, financial security and liability provisions. This would bring the Bill in line with the access to information provisions in the Constitution (Art.32), the spirit of similar provisions in Sec 31 of the new National Environmental Management Act and with international best practice in governance of issues relating to public safety and environmental management.
Recommendation
Section 46 must be reviewed so as not to conflict with access to information provisions in the Constitution. Furthermore, transparency and access to information should be reinforced and specifically provided for.
Liability and compensation
In Sec 26 licensees are required to provide financial security commensurate with the potential damage caused by an accident. The licensee’s liability for such damage is established in Sec 27; whereas Sec 29 outlines a process by which Parliament may appropriate funds should claims against the licensee exceed the amount of security provided for. However, should claims exceed the security amount and Parliament decide not to appropriate additional funds, claimants suffering nuclear damage may find themselves unable to recover compensation. It is not acceptable that a claimant bear the burden of poor forward planning of the State or a licensee, and any provision restricting the ability to claim compensation may well be unconstitutional.

In terms of Section 30 compensation claims made after a period of 30 years would not be entertained. It is well known that there is no safe threshold level of radiation. It is also well known that disease and injury due to radiation exposure is prone to manifest only many years after exposure has occurred.

It is not clear in the Bill how a claimant would proceed if damage has occurred, and whether the onus is on the claimant to prove damage or whether the onus is on the licensee to disprove. The reality is that claimants would rarely be in a position to match the financial and legal muscle of a licensee when having to prove liability for damage by, or negligence on the part of the licensee.
Recommendations
The anomalies in Sections 26,27 and 28 should be removed so that claimants are not unfairly prejudiced.
The window period for damage claims, particularly where they relate to human and environmental damage should be increased from 30 to 50 years.
Where claims are made for damages, the onus should rest with the licensee or defendant to prove that damages were not due to operations under their control.
Safety Standards
In terms of Section 32, safety standards to be applied will be based on, but not more restrictive than, those recommended by the IAEA and ICRP. These international bodies do not set universal standards but merely provide guidelines which are open to interpretation by individual countries. In addition, the standards published by these international bodies do not cover the full spectrum of nuclear-related activities carried out in this country.
Slavish adoption of international standards undermines the authority of the Regulator and does not allow public and affected parties any input into the setting of appropriate and acceptable standards.
It is unacceptable that standards published in the Schedule, as per Sec 2(2)(b) on page 48, are below what is considered internationally acceptable. Furthermore, despite the stated commitment to transparency, there is no justification for these standards and it appears that they have been set without any consultation with the public, who are potentially going to be exposed to theses levels, or with the Regulator who must enforce them.
Recommendations
The provision that standards applied in this country be the same or less stringent than international standards should be scrapped, although they may be used as guidelines.
The Schedule as is must be scrapped. Proposed standards must be published and comment from the public and interested parties invited. Final standards must be set by the Minister on the recommendation of the Regulator and after considering public comment.