Chamber of Mines of South Africa
COMMENTS BY THE CHAMBER OF MINES ON THE NATIONAL NUCLEAR REGULATOR BILL [B 11-99]


Introduction
Business South Africa (BSA) has provided the Portfolio Committee with comprehensive comments on the National Nuclear Regulator Bill on behalf of business and industry. The Chamber of Mines, as one of the member employer organizations of BSA, fully endorses those comments.

This submission is intended to expand upon the BSA submission in those areas where the mining and minerals industry is implicated or where, through first hand experience of being subject to nuclear regulation, it is in a position to make constructive input.

In its presentation, the Chamber wishes to make, and expand upon, the following 7 points:

1. An important distinction should be made between the risk profiles of the nuclear and non-nuclear industries
2. Regulatory activity should be confined to work situations where regulation can achieve meaningful benefits
3. Radiation exposures on mines are known, are comparable with those on mines in other countries, and are being progressively reduced
4. Conflicting regulatory requirements are counter-productive, can be dangerous, and should be avoided
5. The Mine Health and Safety Act is sound and appropriate for the regulation of radiation hazards on mines
6. The mining industry wants and supports the combination of sound regulation and effective enforcement
7. The Act must embody the principles of sound governance

1. An important distinction should be made between the risk profiles of the nuclear and non-nuclear industries
• In nuclear installations:
- there is a risk of a sudden accident with potentially catastrophic consequences
- there is a risk of exposure to materials that are so highly radioactive that even a few minutes of exposure could prove fatal
- the installation can, and must, be designed, engineered and operated such that any significant radiation exposures are avoided
- sophisticated and sometimes expensive radiation safety measures may be justified in terms of risk reduction
• For work activities involving minerals which are naturally radioactive:
- there is no possibility of a sudden accident with catastrophic consequences
- radiation exposures, even where the radioactivity in the material has become concentrated, cannot cause any immediate health effects - only an increased probability that health effects can occur
- because the work generally involves the handling of large quantities of material, radiation exposures, while moderate and controllable, cannot be avoided
- sophisticated and expensive radiation safety measures may simply raise costs, which contribute towards job loss, without any real risk reduction or health benefit
• These two situations are quite different from the point of view of health risk and they warrant being treated differently in regulation.

Comment on the Bill:
The two-tier system of nuclear authorizations involving nuclear licences and certificates of registration, as provided for in Chapter 4, reflects this distinction between nuclear and non-nuclear risk profiles; it is thus well founded, and therefore supported

2. Regulatory activity should be confined to work situations where regulation can achieve meaningful benefits
2.1 Work with materials containing elevated levels of radioactivity
• All natural materials contain radioactivity. For the vast majority of such materials, however, the levels are too low to warrant regulatory control
• Formal criteria are required to identify those work activities for which radiation exposures to natural materials should be regulated
Table 1 compares criteria based on the concentration of radioactivity in the material:
- recommended by the International Commission on Radiological Protection (ICRP)
- adopted by the Council of the European Union
- contained in the Schedule to the Bill
The criteria are independent of the quantity of material involved.
The values in the Schedule to the Bill are very much in line with international values.

Table 1Radioactivity levels (becquerels per gram) below which regulatory control is not required

Radionuclide

ICRP (occupational exposure)

(occupational CEC (and public exposure)

Schedule to the Bill

Rounded values2

Unrounded values3

Uranium-238



1 to 10

1.83

1

2

Radium-226

4.67

10

5

Thorium-232

0.849

1

1

Radium-228

15.2

10

5

Thorium-228

1.50

1

1

       


• Airborne radiometric surveys conducted by the Council for Geoscience show that the radioactivity levels in natural geological formations in the Johannesburg/Pretoria region, away from any mining activity, extend up to about 1.5 becquerels per gram. The levels contained in the Schedule to the Bill will therefore be effective in ensuring that regulatory control does not extend significantly into the range of natural background radiation.

2.2 Work involving exposure to radon
• The accepted international approach is as follows:
- If workplace radon concentrations exceed the "action level", first try to bring them below this level by remedial action
- If unsuccessful, exposures to radon must be treated as occupational and therefore subject to regulatory control, in which case the "action level" becomes the criterion for applying regulatory control
• Table 2 compares the criteria, or "action levels":
- recommended by the ICRP4
- adopted by the International Atomic Energy Agency (IAEA)5
- contained in the Schedule to the Bill

Table 2 Workplace radon concentrations (becquerels per cubic metre) below which remedial action or regulatory control is not required

ICRP4

500 to 1500

IAEA5

1000

Schedule to the Bill

1000


The value in the Schedule to the Bill is in line with international values

Comment on the Bill
• The exclusion of exposures to cosmic radiation, potassium-40 in the body and any other radioactive material or activities not amenable to control is supported
• The exclusion of human activities involving occupational exposures to naturally occurring radioactive materials, where the radioactivity concentrations of individual radionuclides do not exceed the values listed in the Schedule, is supported

3. Radiation exposures on mines are known, are comparable with those on mines in other countries, and are being progressively reduced
3.1 Availability of data
• The Chamber of Mines has gathered data on radiation exposures on gold mines since the 1960s. A comprehensive survey of 21 gold mines was conducted in 1993/4. More recently, gold mines have gathered further data for submission to the CNS in compliance with their licence conditions.
• Measurements made in coal and platinum mines indicate no significant radiation exposures
• Most of the gold mine data, particularly the results of the 1993/4 survey, have been made available to bodies such as the IAEA and the United Nations Scientific Committee on the Effects of Atomic Radiation (UNSCEAR), and have been published in conference proceedings.
• Apart from some preliminary, rudimentary estimates of exposures to the public from gold mine tailings determined by the AEC many years ago, the bulk of the exposure data in existence originates from the Chamber and its member mines.
• The CNS does not have the capacity for conducting comprehensive surveys on mines, and relies on data supplied by the Chamber and licensed mines

3.2 Occupational exposures
• Results of 1993/4 survey:
- average exposure underground: 2.55 millisieverts per year, or 13% of the exposure limit
- about 1% of exposures exceeded the exposure limit - these were generally in old mines in which modern ventilation practice was more difficult to apply.
• Figures reported more recently by the CNS, compiled from data supplied by licensees, indicated a worse situation with »4% of exposures exceeding the exposure limit. However, these results are based on out-of-date data, as there have been dramatic improvements in 1997/8 in three mines that between them represented 82% of the workers involved, as shown in Table 3. Over the past three years, there has been a steadily improving team approach to health and safety on mines; these improvements were accomplished by attention to ventilation.
• Exposure to radon, which accounts for »80% of the underground occupational exposure in gold mines, compares very favourably with that in similar types of mines in other countries6, as shown in Figures 1 and 2.

Table 3 Recent improvements in occupational exposure levels

 

No. of workers associated with exposures above the limit

 

Reported by CNS

Latest (1998) figures

Percentage improvement

Mine A

7082

1418

80%

Mine B

267

Nil

100%

Mine C

566

59

90%


Figure 1 World-wide comparison of average radon exposures
(non-coal, non-uranium mines)

[Ed. note: Graph not included.]

Figure 2 World-wide comparison of percentages of radon exposures exceeding 50% of the exposure limit (non-coal, non-uranium mines)

[Ed. note: Graph not included.]

3.3 Public exposures
• Studies have shown that, as in the case of occupational exposures underground, the inhalation of radon gas is responsible for most of the radiation exposure of members of the public living around gold mines. In this case, the radon originates from surface facilities on mines such as tailings dams, waste rock piles and air exhausted from shafts.

• The most up-to-date and comprehensive determinations of radon exposures to the public are those conducted recently in the Klerksdorp area, a gold mining region where uranium concentrations in the ore tend to be higher than elsewhere. The Klerksdorp study covered an area containing 28 tailings dams, 20 waste rock piles and 22 upcast shafts, together with the four populated areas of Klerksdorp, Orkney, Stilfontein and Vaal Reefs. Preliminary results are shown in Figure 3, indicating that the doses to the public were generally less than 10% of the international dose limit for members of the public. It is understood that the final results are even lower.

Figure 3 Radiation doses received by members of the public (Klerksdorp region)
[Ed. note: the graph has not bee included.]

• Studies conducted in the Far West Rand gold mining area, an area again associated with higher than normal uranium concentrations, gave similar results.
• The only other potentially significant source of exposure to members of the public is through the consumption of untreated water from streams and boreholes that may have become radioactively contaminated by gold mining operations. Extensive radioactivity monitoring programmes conducted by the Department of Water Affairs and Forestry have indicated so far that, even if such contaminated water were to be consumed as the sole continuous source of drinking water, the radiation dose would rarely exceed 10% of the international dose limit for members of the public.
• It is pertinent to note how these levels of exposure to the public relate to levels of additional radiation exposure which the public may experience from other sources:


Additional exposures to the public living very close to gold mines:

50 to 100 microsieverts per year
Living in Johannesburg instead of at sea level (additional exposure to cosmic rays):

350 microsieverts per year
One chest X-ray: 140 microsieverts

Comment on the Bill:
The regulation of radiation hazards on mines under the Mine Health and Safety Act is supported, because further improvements in radiation exposure levels underground will be best accomplished through the risk assessment and participative approach of that Act.
Furthermore, it is important to note that the Mine Health and Safety Act requires that hazards to the public must be controlled as strictly as hazards to workers.

4. Conflicting regulatory requirements are counter-productive, can be dangerous, and should be avoided
• The major radiation hazard in the mining industry, both to workers and the public, is radon in air
• Dust and other pollutants are also important health hazards in the same air
• Regulation of the hazards associated with this air by two different regulators, the Mine Health and Safety Inspectorate and the CNS, results in:
- duplication of effort
- additional costs that do not provide an additional health benefit
- fragmentation of the regulatory approach to mine health and safety
- the possibility of conflicting requirements that could result in the control of the radiation hazard having a detrimental effect on other hazards - for instance, explosions and fires arising from methane in the air, where the requirements for radon control can directly conflict with those for methane control.

Comment on Bill:
The provisions of the Bill with respect to the regulation of radiation hazards on mines is supported, because such provisions will avoid the fragmentation of the regulatory approach to mine health and safety

5. The Mine Health and Safety Act is sound and appropriate for the regulation of radiation hazards on mines
• The MHSA provides a participative framework on mines through the establishment of mine health and safety committees, which in turn provides for:
- a team approach to health and safety
- joint problem solving
- greater commitment to health and safety
• Tripartite agreement has been reached on a process for the formulation of regulatory mechanisms, in the form of Codes of Practice and of Guidelines for the Compilation of Codes of Practice. Guidelines for the Compilation of Codes of Practice have been prepared or are being prepared in most of the key areas identified by the Leon Commission. Copies of the contents pages of examples of these Guidelines are attached in the Appendix. Also included in the Appendix is a copy of the contents pages of a draft Guideline on radiation protection on mines.
• The MHSA provides for a holistic mine safety system that addresses the total risk profile on a mine, including risk from radiation exposure. This approach to addressing radiation in context with other risks is in line with the recommendations of the ICRP7, which states that:
"The Commission therefore wishes to emphasize its view that ionizing radiation needs to be treated with care rather than fear and that its risks should be kept in perspective with other risks."
• The MHSA provides for tripartite structures covering the full depth and breadth of the mine health and safety regulatory framework, to facilitate the effective implementation of the Act with an unprecedented degree of participation and transparency
• Significant progress has been made in implementing the recommendations of the Leon Commission with respect to addressing health issues on mines, including the establishment of a Chief Directorate: Mine Occupational Health
• The Administrative Penalty system on mines was designed and introduced by the tripartite partners with a view to achieving a systems approach to mine health and safety - it is important that the hazard of radiation in mines be included within this systems approach

Comment on Bill:
The provisions of the Bill with respect to the regulation of radiation hazards on mines is supported

6. The mining industry wants and supports the combination of sound regulation and effective enforcement
• Internationally benchmarked safety records have become essential for economic viability in today’s competitive global mining environment
• Effective enforcement of safety and health regulation on mines requires a large number of inspectors
• The Mine Health and Safety Inspectorate has a large team of inspectors, the deployment of which on a regional basis gives them efficient access to mines
• The CNS currently does not have enough inspectors to provide the same required degree of coverage on mines. If the Regulator in future were to continue regulating radiation in mines, it would have to employ significantly more staff to match the coverage of the Mine Health and Safety Inspectorate. The cost of such a duplication of resources would be substantial, and represents a case of unnecessary duplication which is simply not affordable by government
• The Inspectorate possesses a wide range of knowledge and skills in mining operations, mine ventilation and occupational hygiene. These skills are essential for efficient and effective regulation of gaseous and particulate pollutants in the mining environment, including radioactive pollutants
• The Inspectorate already possesses qualified radiation protection experts, and if necessary additional expert staff could be appointed or transferred into the Inspectorate from the CNS
• The MHSA gives the Inspectorate all the powers it needs to enforce compliance with mine health and safety regulations, including the power to issue instructions and to stop work
• Enforcement of the provisions of the MHSA has been made substantially more effective with the recent establishment, through an amendment of the Act, of a system of Administrative fines

Comment on Bill:
In the interests of sound regulation and effective enforcement, the provisions of the Bill with respect to the regulation of radiation hazards on mines is supported

7. The Act must embody the principles of sound governance
• The notion of "health protection at any cost" is universally unacceptable:
- Decisions on radiation safety must include social and economic judgements as well as scientific judgements
- Decisions based only on scientific judgements will inevitably lead to a prohibitive style of regulation, because of the tendency to adopt an over-conservative approach regardless of the social and economic consequences
- Decisions that include social and economic judgements will lead to the necessary balance between risk on the one hand and benefit to society on the other. This is in line with the concept of sustainable development, and is the key to reasonable and equitable regulation

Recommended amendment to the Bill:
The principle of achieving the correct balance between risk and benefit should be reflected in the first object of the Regulator in clause 5(a), as follows:
The objects of the Regulator are to-
(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

• The Regulator must have the necessary degree of independence but must be held clearly accountable

Recommended amendment to the Bill:
The independence of both the National Nuclear Regulator and the Mine Health and Safety Inspectorate is ensured in terms of the Mine Health and Safety Act, through their establishment as separate administrative agencies reporting directly to the Minister of Minerals and Energy.
Although accountable to the Minister, both regulatory bodies are in addition held accountable entirely independently of the Ministry of Minerals and Energy through the performance audits conducted by the Auditor-General.
The Chamber supports the responsibilities and reporting structures set out in the Bill

• There should be a mechanism for ensuring meaningful consultation on matters involving decisions by the Minister

Recommended amendment to the Bill:
The requirement 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 is supported.
However, this alone does not provide for meaningful consultation, and it is recommended that the Bill be amended to make provision for a stakeholder advisory body along the lines elaborated upon in the submission by Business South Africa

• Decisions at all levels should be open to formal appeal

Recommended amendment to the Bill:
The provision for a system of appeals is supported.
However, the provision for an appeal to the High Court against a decision of the Minister, which is contained in the current Nuclear Energy Act, has been omitted from the Bill. This provision should be reinstated. Appropriate text has been provided in the submission by Business South Africa.

• The system for levying of fees should be in accordance with good fiscal management practice

Comment on Bill and recommended amendment:
The following provisions in respect of fees are in accordance with good fiscal management practice and are supported:
• the setting of fees by the Minister
• the publication of fees in the Gazette
• the payment of fees into the National Treasury.
The levying of a separate fee for compliance inspections is not supported because it creates an open-ended situation - licensees cannot determine their financial liability in advance. It is recommended that inspection fees be incorporated into the fixed annual licence fee.