SOUTH AFRICAN NATIONAL CIVIC ORGANISATION (SANCO)
GAUTENG PROVINCE

PUBLIC HEARING ON THE NUCLEAR ENERGY BILL & NATIONAL NUCLEAR REGULATOR BILL


SANCO, as an Organisation representing disadvantaged communities would have done injustice to it's constituency had it not submitted comments on the above Bill. The submission, brief as it is, attempts to raise few areas our Organisation regards as crucial to revisit before the ratification of the Bill in the National Assembly.

The comments and proposals shall be captured under the following sub-heading: The Independence Of The Regulator; Claims For Compensation In Excess Of maximum Liability (Section 29),' Representation In Connection With Nuclear Authorisation,' delegation And Assignments By Minister (Section 43); Diminishing The Status Of The Regulator And Conclusion.

1. The Independence Of The Regulator
Comments
The National Nuclear Regulator Bill no longer excludes licensees from qualifying as Board Directors.

The admission of licenses to the Board of Directors would have the effect of the regulated also being the regulator and will therefore negate the independence of the regulator

This situation will be viewed with extreme scepticism and within South Africa the regulation of the nuclear industry would carry minimal credibility internationally the nuclear community as contracting parties to the convention on nuclear safety would loose confidence in South Africa's ability to provide for acceptable governance of nuclear safety.

The national nuclear regulator bill must provide for the exclusion of licensees or employees of licensees or any person acting for or representing licensees from being a director of the Board. The inclusion of the provision is the internationally accepted norm.

Proposal
The SANCO recommends that Section 7 (5) be amended as follows

(5) A person is disqualified from being appointed or remaining as a director if such person is

a. not a South African citizen
b. declared insolvent
c. convicted of an offence and sentenced to imprisonment without the option of a fine;
d. is a holder of a nuclear authorisation or an employee of the holder of a nuclear authorisation
e. nominated as a candidate for election as a member of Parliament or any provincial legislature in terms of the Electoral Act, 1998 (Act No.73 of 1998); or designated or appointed to any other public office in the state.

Regulator should remain answerable and directly responsible to the Minister.

Process
It is sad in this day and age of democracy to see the DNE draft a bill as emotive an issue as the Nuclear Safety which cuts across all communities and deliberately fails to involve major stakeholders, such as Sanco representing the largest sector of any community.

Our people suffer from dust arising from the mine dumps, effluent discharge from the mines which finds its way to the communities unabated.

Large portions of Gauteng land is occupied by the mines dumps and slime dams - this is indeed a serious concern in terms of building houses with soil which is highly contaminated with radiation.

The Process of drafting the NNB is flawed because
Not transparent.
Only nuclear industries involved.

Proposal:
We should go back to the previous process which included all the stakeholders or the portfolio committee should appoint an independent person e.g . someone from the University to convene a forum for discussion and the distillation to go directly to the bill carrying the blessings of all the voices.

2. Claims for compensation in excess of maximum liability (section 29)

Comment:
Section 29 (4) provides that the appropriation of funds by Parliament does not affect the liability of a person who must provide security; whereas section 27(2) provides as follows: "The liability for nuclear damage by any holder of a nuclear installation licence is limited, for each nuclear accident, to the amounts as the Minister, after recommendation by the board and by notice in the Gazette, determines". It is therefore highly possible that any provision which would restrict the ability to claim compensation or the quantum claim may be unconstitutional.

Proposal:
Sanco recommends that this section requires further consultation with all the affected parties, including the Department of Finance, in order to secure an equitable and acceptable solution.

3. Representation in connection with nuclear authorisations.

- Proposed new section:

Restriction of rights of persons

Comment:
Provision is made in the NEA for persons having duties at the nuclear installation or at a site, which is subject to a nuclear licence1 to make the representations to the CNS regarding the exercise of its powers to improve conditions in any such licence. The exercise of this right is not restricted in any and can therefore be exercises at any time. This right ensures the protection of such person from the practices which licences may perform, involving radioactive material, and which could affect the health and safety of such person.
N.B. The National Nuclear Regulator Bill has removed this right which is verted under the present legislation.

Proposal:
Sanco recommends that the provision be incorporated into the Bill as section 36 as follows-

36. As long as any nuclear authorisation is in force, all persons having duties at or in the nuclear installation or on the site or in the nuclear installation or on the site or in connection with the radioactive material or activity in question shall have the right, either individually or through an association or body as representative of such person, to make representation to the Regulator regarding the exercise of its powers under section 22 (1) and (2).

4. Delegations and assignments by the Minister Section 43.

- Diminishing status of the Regulator.

Comment:
The intent behind the establishment of the regulator as separate juristic body is to ensure and maintain its independence. The Regulator should be free of influence not only from the stakeholders but also from the State, as far as possible. In line with other regulatory bodies such as the IBA, the Nuclear Regulator should remain responsible directly to the relevant Minister. For instance, contrary to the Chief Inspectorate, Nuclear Regulator in its present form, applies the internationally accepted "polluter pays" principle thereby ensuring that the direct cost of regulation is recovered from the licensee thus restricting the burden on State finance and the taxpayer.

Proposal:
Sanco recommends that the provisions as contained in section 2 (2) (e) be deleted from the Bill and the DME implement the recommendations of the Leon Commission.

5. Conclusion:
An examination of the Nines Health and Safety Act reveals no provision for the civil claims. The common law is accordingly applicable which does not address the uniqueness of claims arising from nuclear damage. The rights of the public are accordingly diminished if the regulation of the mines is to be conducted in terms of the Mines Health and Safety Act.

It would not be unreasonable to conclude that the DNE has been collaborating with the mining industry to remove wholesale the responsibility of the regulation of radiation hazards in the mining and mineral processing industry from the National Nuclear Regulation -the reason is not hard to find because the Nuclear Regulator has throughout the years ensured the mining industries adheres to all regulation without fail and this was not always warmly received by the latter.

The different communities, particularly from previously disadvantaged background notably in the East and West Rand parts of the Gauteng province and other parts of the country experience hardships because of
Nine dumps right at their door-steps. The mine dumps emit very fine dust particles which penetrate every little part of a dwelling from a teaspoon to ceiling. Majority of the people living in such neighborhood suffer respiratory problems of some sort to another. Scientific tests carried out bears testimony to this and some communities are seeking solace in the courts of the land (sub judice) Sanco is convinced that the solution lies in deleting Section 2 (2) (e) from the Bill which deals with the application of the Act. Finally the Regulator should remain answerable and directly responsible to the Minister.