Council for Nuclear Safety
Summary of points of concern with the National Nuclear Regulator Bill
Briefing to Portfolio Committee 23 February 1999

1. REPORTING LINE
Compromising the independence of the Nuclear Regulator

Comment
The National Nuclear Regulator (NNR) Bill specifies that the Regulator will report to the Department and Minister of Minerals and Energy (DME). All current CNS licensees fall under the ambit of the DME. This raises potential conflicts of interest, as the DME will simultaneously be tasked with promoting certain activities (not only mining, but the entire nuclear energy industry) that may result in radiological exposure, while also being tasked with regulating those activities.

In addition, when read with other sections of the Bill that reduce the independence of the regulator, this provision contravenes a requirement of the International Convention on Nuclear Safety which specifies that a strong, independent Nuclear Regulator has to be established. South Africa has ratified this convention and is thus a Contracting Party to it.

Proposal
The Nuclear Regulator's reporting line must be independent of the department that governs nuclear licensees. It could, for example, be the Department of Environment Affairs and Tourism, but it should be borne in mind that the activities of the nuclear regulator also touch on issues of health, labour, transport, water, finance, etc.

2. CONTROL AND MANAGEMENT OF AFFAIRS OF REGULATOR. SECTION 7(5)
Compromising the independence of the Nuclear Regulator

Comment
The Bill does not explicitly exclude licensees from qualifying as Board Directors.

Again, this provision undermines the requirement of the Convention on Nuclear Safety for an independent regulator. As a result, the international nuclear community (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 NNR 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 this provision is the internationally accepted norm.

Proposal
The CNS 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
(e) designated or appointed to any other public office in the State.


3. REPRESENTATIONS IN CONNECTION WITH NUCLEAR AUTHORISATIONS.
Restriction on whistleblower rights

Comment
Current legislation allows all persons - including employees - who may be affected by radioactive material under the control of a license holder to make representations to the CNS regarding possible violations by the licensee. This right is not restricted in any way and can therefore be exercised at any time. It ensures the protection of such persons (whistleblowers) from practices by the licensee that may affect their health and safety.

The NNR Bill has removed this right although it is constitutionally guaranteed.

Proposal
The CNS recommends that the following 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 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 representations to the Regulator regarding the exercise of Its powers under section 22(1) and (2).

4. RADIOACTIVE WASTE
Lack of specific responsibility

Comment
One of the main objectives in separating the AEC and the CNS through separate pieces of legislation is to create a clear division between regulation of the nuclear industry and its management and promotional aspects. In particular, it is necessary to clearly elaborate the responsibilities of the regulator in respect of the safe management of radioactive waste and to separate these responsibilities from those of the waste manager (the AEC, Eskom, and others).

The NNR Bill fails to allocate responsibilities clearly. This situation is compounded by the uncertain status of the DME/DEAT attempts to develop a radioactive waste management strategy (and policy) under DEAT's National Integrated Waste Management programme.

Furthermore, it is not certain that the Bill fully conforms to all requirements of the International Joint Convention on the Safety of Spent Fuel Management and on the Safety of Radioactive Waste Management, which South Africa is expected to sign and ratify in the near future.

Proposal
Provisions in regard to the safe management of radioactive waste and its regulation should be reviewed in light of the above comments and must incorporate the outcome of the Department of Mineral and Energy Affairs/DEAT radioactive waste process.

5. SAFETY STANDARDS AND REGULATORY PRACTICES. SECTION 32 AND SCHEDULE
Lack of compliance with international obligations and selective reference

Comment
The Bill does not allow the Regulator to set safety standards (exposure limits) or regulatory practices that are more restrictive than those recommended by the International Atomic Energy Agency (IAEA)1 but it does allow him to set less restrictive ones.

This provision is problematic for two reasons. First, less restrictive limits would be contrary to the obligations contained in the Conventions on Nuclear Safety and on the Safe Management of Radioactive Waste. Secondly, there may be instances in South Africa where more restrictive limits may be required and justified, but the Bill would prohibit the Regulator from setting those.

In addition, the Bill refers to a limited set of IAEA recommendations, instead of leaving it to the discretion of the Regulator to determine which of the range of IAEA recommendations to implement and it fails to make direct reference to nuclear safety standards. Also, it may also not always be in the best national interest to demand compliance with (a limited set of) standards whose development the country has no control over.

Finally, if the Bill is passed in its present form, its provisions in regard to limits would mean that in certain cases individuals are likely to be exposed to higher levels of radiation than they are currently: it would seem that these persons should be consulted before the relevant safety standards are reduced.

Proposal
The CNS recommends that the wording of section 23 be amended as follows-

32 (1) The Minister must. in consultation with the board. establish safety standards and regulatory Practices.
(2) In the establishment of safety standards and regulatory Practices the Safety Standards of the International Atomic Energy Agency the IAEA. and the recommendations of the International Commission on Radiological Protection shall serve as guidelines
(3) The Minister may, by notice in the Gazette and [on the recommendation of] in consultation with the board, amend the safety standards and regulatory practices established in terms of subsection (1).
(4) The Minister may, by notice in the Gazette and on the recommendation of the board, replace the safety standards and regulatory practices contemplated in subsection (1).
(5) Before any safety standards and regulatory practices are established, amended or replaced under this section [the Minister must] -
(a) the Minister must by notice in the Gazette, invite the public to comment to the regulator on the proposed standards or practices; and
(b) the Regulator must consider that comment before [making a recommendation to] consulting with the Minister in terms of subsection (1).

The schedule should be reviewed and comment received from affected parties.

6. CLAIMS FOR COMPENSATION IN EXCESS OF MAXIMUM LIABILITY. SECTION 29.
Confusion in allocation of liability and neglect of international conventions

Comment
Although the likelihood of accidents is very small, it is (theoretically) possible that they could have very significant financial consequences and it is generally accepted that the license holder is legally liable for all claims that could arise. However, it is international practice to cap the security that needs to be provided by the licensee because it is often in the national interest to ensure that the licensee does not become insolvent in the event that the claims exceed his means. This capping is effected by providing for parliamentary appropriation in the event that claims should exceed the required security.

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. In addition, the Bill5 gives Parliament discretion to decide whether to appropriate funds to meet the claims in excess of the security provided. Should Parliament decide against the appropriation of such funds, the effect will be that persons suffering nuclear damage are prevented, by the provisions of the Bill, from recovering any compensation which exceeds the maximum amount referred to in section 27(2).

The capping of security must result in a provision whereby the State will assume liability for damage in excess of the maximum liability of the licensee in line with the provisions envisaged in the Vienna Convention Protocol on Third Party Liability for Nuclear Damage, of which South Africa is not yet a signatory.

Proposal
The CNS believes this section requires further consultation with all affected parties, including the Department of Finance, in order to secure an equitable and acceptable solution. In this area of nuclear law, the legislation of countries overseas is now making reference to the Vienna Convention and associated Supplementary Funding Convention. These Conventions also need to be given consideration

7. DELEGATIONS AND ASSIGNMENTS BY MINISTER. SECTION 43.
Potential for interference in business of Regulator

Comment
The intent behind the establishment of the regulator as a separate juristic body is to ensure and maintain its independence. The regulator should be free of influence not only from stakeholders but also from the State, as far as possible, while allowing for operational reporting and budgeting lines.

Historically, the CNS has been responsible directly to the relevant Minister, as is the case with other regulatory bodies such as the IBA and NIC.

The Bill, however, provides for the Minister to delegate a very wide range of responsibilities to the Director-General of the DME who may then sub-delegate or reassign these powers to lower levels in the department. This could result in the Regulator being controlled directly through lower functionaries in the DME, thereby diluting the regulator's independence. This provision also introduces conflict of interest, as do many of the others in the Bill.

Proposal
The CNS recommends that this section be deleted from the Bill in its entirety and that the Regulator is answerable and responsible directly to the Minister.

7. TRANSFER OF RESPONSIBILITY OVER MINING ACTIVITIES.
SECTION 2(2)(E)
Contradicting established government policy (Leon Commission of Enquiry into Mine Health and Safety)

Comment
When considering regulatory control over radiation hazards within the mining industry, the 1994 Leon Commission concluded as follows:

"The Commission found no reason to suggest that the Nuclear Energy Act of 1993 required amendment, and accepted that the regulatory authority, the CNS, had to be satisfied that its requirements were met."

This conclusion suggests that the commission saw no reason to remove from the CNS responsibility for the regulation of radiation hazards in the mines and minerals processing industries. The Council has no evidence of this conclusion being challenged subsequently and has not been approached by the DME with a motivation for any alternative approach.

However, the NNR Bill provides for a transfer of this responsibility to the Chief Inspector of Mines (previously called the Government Mining Engineer) under the Mines Health and Safety Act.

If enacted, this transfer is likely to have the following consequences:
The rights of communities affected by radiation emerging from mining or minerals processing activities will be reduced. By their nature, radiation-induced health impacts often only become visible after very long delays (up to 30-40 years), and their link to an activity by a nuclear licensee is often difficult to prove. Existing legislation as well as the provisions of the NNR Bill allow for the unique characteristics of radiological risks and protect public interests in this regard, but the Mine Health and Safety Act does not.
Scarce resources will be duplicated. The CNS employs specialists in radiation-related disciplines to assist in its various regulatory functions and has also established all the required technical infrastructure. Many of the specialists attend to more than one licensee, and a reduction in the number of ONS licensees therefore does not imply a feasible reduction in the number of CNS staff or technical infrastructure. On the other hand, transfer of the CNS's current responsibilities over mining and minerals processing activities does imply that similar human and technical resources will have to be established in the Chief Inspector's office, leading to a costly duplication.
The "polluter pays" principle will be subverted. The CNS applies this principle in
its calculation of licensing fees, thereby ensuring that the direct cost of regulation is recovered from the licensee, restricting the burden on the national fiscus. It appears the Chief Inspectorate does not follow this approach.

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

Slide Presentation
Council for Nuclear Safety
Briefing to Portfolio Committee (Minerals and Energy)
23 February 1999

Comments on the National Nuclear Regulator Bill

Non-executive Board members:
· Prof John Martin (Deputy Vice-Chancellor, UCT)
· Prof Krish Bliaruth-Ram (Professor of Physics, UDW)
· Prof Hannes Kiopper (Professor of Nuclear Medicine, US)
· Prof Simeon Taole (Dean of Science, UNW)
· Dr Daan Reitmann (Retired Director of the NAC)
· Dr Maki Mandela (Development Bank of SA)
· Dr Thomas Auf der Heyde (Director of Research, TWR)

BACKGROUND
Concerns
· Separation of Regulator (CNS) from promoter (AEC)

Process
· August 1994: CNS presentation to DMEA January 1995: CNS proposed process to DMEA; accepted
· July 1997:

Minister revoked mandate

(Irregular contact thereafter)

1. REPORTING LINE
Comments
· Potential conflict of interest in DME
· Reduction in independence of Regulator may be possible contravention of International Convention on Nuclear Safety

Proposal
· Reporting line must be independent of licensee's line
· Could be DEA&T .... (or DoH, DoT)

2. CONTROL AND MANAGEMENT OF AFFMRS OF REGULATOR
Comments
· Licensees not explicitly excluded from Board
· Reduction in independence
· Contravenes Convention on Nuclear Safety
· Exclusion must be explicit

Proposal
Section 7(5) should be amended to explicitly exclude license holders

3. REPRESENTATIONS IN CONNECTION WITH NUCLEAR AUTHORISATIONS
Comments
· Current legislation protects whistleblower rights
· Not explicitly protected in NNR Bill

Proposal
A section (36) should be added to allow representation by affected persons

4. RADIOACTIVE WASTE
Comments
· Need clear division between regulation and management of radwaste
· Compounded by uncertainties regarding DME/DEA&T responsibilities
· Possible contravention of Convention on Safety of Radioactive Wastes and Spent Fuel

Proposal
· Radwaste provisions should be reviewed
· Bill must incorporate outcome of DEA&T initiative

5. SAFETY STANDARDS AND REGULATORY PRACTICES

Comments
· Limits may not be more restrictive than IAEA levels, but may be less
· Constrains Regulator's ability to set exposure limits
· Less restrictive values would contravene the conventions on Nuclear Safety and on Radwaste
· Only selected IAEA recommendations are implemented
· If NNR Bill is implemented some exposure limits may be higher than before!

Proposal
Section 23 should be amended to include all relevant IAEA recommendations, and allow the Regulator more scope in its decisions

6. CLAIMS FOR COMPENSATION IN EXCESS OF MAXIMUM LIABILITY
Comments
· Licensees are legally liable for all damages, but strategic concerns lead to a capping of security for this liability
· Bill is inconsistent: unlimited liability vs limited liability
· If parliament does not provide additional cover, claims will be limited to the level set by the Minister
· If security is capped, the Bill must provide for additional cover to persons in line with Vienna Convention

Proposal
· This section requires far more consultation and debate
· Reference should be made to international conventions

7. DELEGATIONS AND ASSIGNMENTS BY MINISTER
Comments
· CNS has reported directly to the Minister
· Bill provides for delegation of Ministerial powers
· Dilution of Regulator's independence

Proposal
· This section should be deleted and the Regulator should report directly to (a) Minister

8. TRANSFER OF RESPONSIBILITY OVER MINING ACTIVITIES
Comments
· Bill transfers regulation of radiation hazards away from CNS to the Chief Inspector of Mines (formerly the GME)
· I-eon Commission did not consider this necessary
· DME has not motivated transfer (to the CNS)
· Community rights will reduced (Mine H&S Act does not provide for unique nature of radiation damage)
· Scarce resources will be duplicated
· "Polluter Pays Principle" will be subverted

Proposal
· The provision in Section 2(2)(e) should be deleted and the Leon recommendations implemented