Nuclear energy & National Nuclear Regulator Bills: discussion & voting

Meeting report

MINERALS & ENERGY PORTFOLIO COMMITTEE
25 October 1999
CONSIDERATION AND VOTING OF THE NUCLEAR ENERGY BILL AND THE NATIONAL NUCLEAR REGULATOR BILL

Documents Distributed
Portfolio Committee on Minerals and Energy Proposed Amendments to National Nuclear Regulator Bill [B 11-99] 25 October 1999
Portfolio Committee on Minerals and Energy Proposed Amendments to Nuclear Energy Bill [B 10-99] 25 October 1999
[e-mail [email protected] for the documents]

SUMMARY
The committee continued its informal consideration of the National Nuclear Regulator Bill and the Nuclear Energy Bill. They then moved on to formal consideration and passed both bills formally with amendments.

MINUTES
The Department of Minerals and Energy was represented by Dr de Waal and Mr Mokoena. The State Law Advisors were represented by Mr Pienaar.

Mr Nkosi (ANC) the former chair of the committee who was injured six weeks ago returned to the committee. He did not chair the meeting but he stayed throughout the morning to see what changes had been made to the bills.

The committee continued its informal consideration of the National Nuclear Regulator Bill. They continued on clause 48 which was agreed to with no arguments. Mr Mohamed (ANC), the committee chair, asked the Department to explain the reference to chapters five and six from the previous act in clause 49. Mr Mokoena explained that chapters five and six cover the Atomic Energy Corporation, (AEC) and the Council for Nuclear Safety (CNS).

Mr Oliphant (ANC) asked the Department what happens to the Regulator in clause 50. Mr Pienaar explained that clause 50 is part of the transitional processes of moving power to the Minister. Mr Mokoena further explained that the CNS will continue to exist as a national regulator to a certain extent.

There were no debates concerning clause 51. It was previously decided that the schedule would be rejected, and there was no debate on this issue.

The Chairperson reminded the committee of two flagged items in the Memorandum. First of all, there was some debate around sub-clause (d). The second matter concerned the last sentence of the Memorandum, "The National Nuclear Regulator Bill should therefore be considered simultaneously with the National Energy Bill by Parliament." The question was raised whether it is possible to make reference to a bill that is not yet an act. The Chairperson reminded the committee that they cannot amend the Memorandum they can only make suggestions to the Department.

The committee decided to revert back to all of the flagged items starting from the beginning of the National Nuclear Regulator Bill.

The committee went through the proposed amendment document presented by the Department and asked the Department to alert them of previously flagged items.

Mr Mohamed (ANC) was not happy about using the word "action" in the definition of "action" as proposed by the Department in clause 1. He pointed out that "action" was used in both (b) and (c) of the definition. He asked for proposals of a new word. Mr Oliphant (ANC) proposed using "any activity". Mr Davidson (Democratic Party) did not have a problem using "action" in that context, but he suggested using "practise", as suggested by the CNS, if people were unhappy. Mr Mokoena explained to the committee that it is common in law to have definitions set up in this matter. The committee decided that the Department would look into the use of "action" and to come back only if they felt it really needed to be changed.

Mr Davidson (DP) asked about the definition of "nuclear damage". He thought that they were going to include mining in the definition. Ms Dudley (African Christian Democratic Party) told the committee that it was explained to her that the definition of "action" included mining and therefore the mining is covered in the definition of "nuclear damage". Mr Mokoena confirmed Ms Dudley's explanation by saying that "action" will cover any place where there is an action, including mines.

Mr Oliphant (ANC) asked if the "and" between (a) and (b) in the definition of "nuclear accident" could be changed to "and/or". He explained to the Department and the State Law Advisors that he wanted the wording changed so that there would be three possibilities where a nuclear accident could occur. Mr Mokoena did not see a problem with including the word "or". He felt that it would make the clause more comprehensive. Mr Pienaar explained that it is not possible to use "and/or" in legal legislation but he said by deleting the "and" there would be three possibilities created. The Chairperson asked the Department and State Law Advisor to consult on deleting the "and' and to get back to the committee.

Mr Davidson (DP) asked the Department what would happen if the clause was left as is with only the word "and", and an individual who received a radiation dose, below safety standards, over a long period of time was injured. He thought that the clause would exclude individuals in this situation.

Mr Oliphant (ANC) asked that the definition of "nuclear installation" be consistent with the definition of nuclear waste and include mining. He pointed out that the issue of involving mining is continually raised and he asked the committee to make some decisions on that problem. He proposed that the words "…other than the mining and processing of ore,.." be removed from the clause. Ms Dudley (ACDP) explained that mines are not excluded they just fall under a certificate of registration. Mr Davidson (DP) understood that mining is not defined in nuclear installation because it does not qualify in the category. He felt that mining is covered sufficiently though out the legislation. Mr Mokoena explained to the committee that the bill is based on three categories: nuclear installation, nuclear vessels and other actions involving radiation. Mr Mokoena pointed out that the bill does not exclude mines and he told the committee that the Bill allows for the Minister to determine anything to be a nuclear installation. However, under ordinary circumstances mines would fall under other actions involving radiation. Mr Mokoena explained to the committee that the Department is still consulting with the Minister on this issue and they would have to come back to the committee after the consultations were completed.

Dr de Waal returned shortly to tell the committee that the Minister did not want the words "other than the mining and processing of ore" to be deleted from the definition of a nuclear installation. The Minister indicated that the committee should rely on clause 2(3) which states that "…the Minister may, by notice in the Gazette, declare any facility, installation, plant or structure to be a nuclear installation." The Minister recommended adding the words "especially in the mining and mineral processes" even though it is implied, in order to highlight mining.

In addition, Dr de Waal told the committee that the Minister reiterated that mines still fall under certificate of registration because there is no potential for a catastrophic disaster in mines like there are for nuclear installations or nuclear vessels. Therefore, they have provided for Compensation for Occupational Injuries and Diseases Act (COIDA) in term of nuclear installations and nuclear vessels.

Mr Nash (ANC) asked Dr de Waal if that meant that a miner affected by radio activity would be treated differently than someone involved in a catastrophic accident. Dr de Waal reassured Mr Nash that there is no differential treatment because the legal limit is the same. He explained that the only reason why there were different provisions for nuclear installations and nuclear vessels is because a catastrophic accident would cost billions of rand and they need to ensure that the companies have money to cover the costs. Mr Nash (ANC) felt that mine workers must also be looked after and he did not see why mines were being left out.
Mr Mohamed (ANC) asked if "other than the mining and processing of ore" were to be removed if financial provisions would be placed on mines. Mr Oliphant (ANC) asked for time to consult with his party on this matter. He did not understand how it is that in mines where workers are exposed to very high levels of radiation it is not seen as catastrophic. Mr Oliphant did not feel that it is right to have a catastrophe before the Minister declares something a nuclear installation.

Mr Nkosi (ANC) asked the committee to concentrate on the issues being raised and to stay clear on those issues. Firstly, he thought that Mr Davidson (DP) raised a good point earlier on being exposed to low dosage radiation over a long period of time. He wanted the committee to get a clear answer for that question. He said that whether or not mines were equal to nuclear installations was another separate issue. Mr Nkosi encouraged the committee to look at clause 2(3) of the bill where they had the option of adding the mining and mineral processes so that mining is specifically accommodated. Mr Mohamed (ANC) agreed to flag these issues so that the Department could consult and come back to the committee.

Mr Mokoena gave the committee feedback on the consultation with the Minister on implementing a trigger mechanism. There were three points of disagreement. Firstly, when there is conflict with another Minister there is already a procedure in place where the matter goes to cabinet. Secondly, in provisions where it states "council or regulator on recommendation to the Minister' the Minister has the final decision in the case of a disagreement. Finally, the Minister had problems with the portfolio committee recommending to the Minister members of the board. Certain problems can arise from this, for example, if the Minister wants to appoint someone and parliament is not in session. Clause 8(b) was amended accordingly (see appendix a).

Mr Davidson (DP) was concerned that a disagreement between the Board and the Minister has not been sufficiently covered. He pointed to clause 44(1) which, according to him, did not include the intervention of the Minister of Environment which the Minister had said would be included. Mr Davidson claimed that the Minster had said there would be a trigger mechanism put in place and this still hasn't been done.

Mr Oliphant (ANC) felt that clause 6(3) sufficiently covered the point of consulting with Ministers. He did not see a problem with the Minister having a final say in cases of disagreement.

Mr Davidson (DP) reiterated that the Minister was not doing what she said she would do; there was no intervention from the Minster of Environment. He felt that clause 6(3) only covered regulation and not the over all applicability of the act. Mr Mohamed (ANC) thought that the Minister has indicated that the concern of independence of the Regulator would be covered by her consulting with other Ministers, including the Minister of Environmental Affairs and Tourism, and consulting with the President. Mr Mohamed felt that other broader consultations were covered under clause 6(3).

Mr Davidson (DP) further explained that clause 6(3) refers only to regulations. He said that the Director General, who was not present at the meeting, had said that clause 6(3) only dealt with regulation. That is why a new clause 44(1) was created. However, Mr Davidson, felt that it still did not do what the Minister said she would do.

Mr Nel (NNP) felt that the problem was when the board and the Minister disagree it is the Minister makes the decision, there is no more consultation.
Mr Oliphant (ANC) pointed out that this is how other government departments operate. He felt that it would be too cumbersome to keep adding Ministers to consult.
Mr Mokoena explained that the executing Minister is the Minster of Minerals and Energy. The decision making power had to be made clear and provisions were made for this in clause 6(3). He pointed out that they have made provisions to allow the board to go public if they disagree.

Mr Nkosi (ANC) told the committee that he felt there should be a clear management of disagreement but to be careful not to make half authorities. He felt that they needed an authority.

Mr Davidson (DP) said that he is not arguing the Minister's final authority. He felt that she was sensitive to people's concerns of having an independent Regulator, so she explained a mechanism that made people feel better but he did not see that happening. The committee decided to flag this issue so the parties could consult with each other to try and come to a conclusion.

The Chairperson, Mr Mohamed (ANC) referred the committee to a flagged item in clause 7. The committee was divided on clause 7(6) which denies votes to some of the board members. Mr Nel (NNP) said that he felt that none of the specified directors, who were representing business, the unions, affected communities and the Department of Mineral and Energy Affairs, should have voting rights. He felt that the officials from the Departments would not necessarily be experts therefore they should have another task other than voting. Mr Davidson (DP) felt that either every specified member of the board should have the right to vote or none of the specified members of the board should have the right to vote.

Mr Oliphant felt that all of the board members should have the right to vote. He did not agree that three out of the thirteen members would be denied a vote. He felt that the three members represented important constituencies.

Mr Mokoena explained to the committee the background to this provision. He explained that there is an abundance of precedence in this sort of issue. This situation was a compromise to a stakeholders forum. Certain members were excluded from voting because they were trying to avoid the licensee influencing the board which would go against an independent board.

Mr Nel (NNP) asked Mr Mokoena why then the Department has a vote.

Mr Mokoena explained that enhances the co-operation of the community. They do not see the department as having a conflict of interest, as they are like any other government official.

Mr Bruce (Democratic Party) thought that the directors are given specific duties and responsibilities and without a vote they are given no means to exercise these duties.

Mr Mohamed (ANC) thought that the sense was the committee felt that everyone should have the vote. He asked if there was agreement to that.

Mr Davidson (DP) explained that in the statement by the Minister the Regulator would refer to a board of seven members appointed by herself and other non-voting members. This was to strengthen the point of view that the board would be an independent entity. In terms of the Minister's rational, none of the 4 specified members should have voting rights because they are representing interests. He felt that none of the members should have voting rights. However, Mr Davidson thought that if they are going to give some members votes then they should all have votes.

The committee decided to flag the matter and deal with it during the formal process.

Mr Oliphant (ANC) asked the Department how "suitably qualified" was being defined in terms of clause 7(7). Mr Mohamed (ANC) thought that suitably qualified should be read in terms of the Employment Equity Act. Mr Nel (NNP) asked if the unions were to bring a nuclear physicist to the board, if they would be considered suitably qualified. Mr Mokoena explained the suitably qualified would be defined as under the Employment Equity Act. He offered to delete the word "experience" if it would satisfy the committee. The committee agreed.

Mr Mokoena pointed the committee to the highlighted changes on page 8 of the amendment document. He asked the committee to look at and consider the changes that were made to clause (7)(8)(b) & (d).

Mr Davidson (DP) thought that sub-clause (d) should be clarified in order to read that an alternate director is to take the place of the director that is missing. The committee accepted these changes on the condition that sub-clause (d) is clarified.

The committee decided to keep the word "return" in clause 23(3). It was debated in the last meeting whether or not it should be changed to "report". On the recommendation of the Department they decided to keep the work "return".

The committee went on to discuss the new Chapter 4 clause 26 in the amendment document. The title was changed to read "Financial Security and Liability" and the sub-title was changed to read "Financial security by holder of nuclear installation licence". Mr Oliphant (ANC) asked why a holder of a certificate of registration was being singled out. Dr de Waal explained that the regime was based on international practise. He went on to explain that COIDA and the common law were available where there is no potential for a disaster.

Mr Oliphant (ANC) felt that they were restricting liability for certificates of registration. Mr Davidson (DP) asked the committee to look at clause 29. He reminded the committee no to read clause 26 in isolation of the rest of the legislation.

Dr de Waal explained the provision made the three different categories. Firstly, a nuclear installation had the potential for a major accident so they need to prove financial security. It is the same situation for a nuclear vessel. Certificate of registration, where mines fall, do not have the same potential for major accidents. Dr de Waal told the committee that the Department is not denying that miners are exposed to radiation or hurt in accidents, but simply that mines do not have the capacity to cause catastrophic accidents like nuclear installations and nuclear vessels.

Mr Nash (ANC) asked if it was correct that a person has three years to give notice of injury. Mr Pienaar answered that an individual has three years from the date they become aware of the cause of the injury. For example, if a worker who works for fifteen year finds out that they have cancer, they have three years from the day that they find out to do something.

Mr Davidson (DP) told the Department that he was satisfied with the changes made to clause 27(5) on page 17 of the amendment document. He was glad to see that an individual could not benefit from both COIDA and the National Nuclear Regulator Bill. Mr Davidson wanted to know if clause 29 should have been amended like clause 27(5).

Dr de Waal indicated that such an amendment would not be possible because the certificate of registration category is covered under COIDA and the common law.
The committee agreed to the changes made in clause 29.

There were no arguments for clauses 30 to 35.

Mr Oliphant (ANC) thought that in clause 36 (c) should be changed to "retain that record for at least 40 years…" instead of "retain that record for 40 years…". The committee decided to leave the clause as it stood.

The committee reverted back to the flagged issues starting with the definition of "nuclear damage". Dr de Waal asked the committee to look at the definition of nuclear damage and explained that the problem is that we are all exposed to radiation all of the time, but that are below safety limits. He suggested deleting both the word "and" and sub-clause (b).

Mr Oliphant (ANC) was not happy with this alternative because he wanted to see three alternatives and now there is only one.

Mr Davidson (DP) asked the Department to look at clause 29 which deals with certificate of registration for nuclear damage. Then he asked them to look at the definition of nuclear damage in the context of clause 29. Finally he asked the Department to go back and contemplate nuclear accident; a person who receives low levels of radiation is now covered. However, Mr Davidson felt that the proposed amendment would exclude those people.

Dr de Waal reiterated that the problem was natural radiation; that is why they included the words "standards contemplated in section 32…". Mr Davidson (DP) asked if a person is subject to low doses of radiation, lower than standards in section 32, is able to claim compensation. Dr de Waal explained that the definition for nuclear incident is for low levels of radiation but nuclear accident is for high levels. He explained that they were not dealing with low levels here. Dr de Waal gave the committee the option of leaving the clause as it stands. The committee agreed not to further amend the clause.

In the definition of "nuclear installation" the committee agreed to keep the words "…, other than the mining and processing of ore,…"

The committee decided to skip over clause 6(3) until they debated clause 44(1). They decided to leave the issue of voting in clause 7 and vote on it during the formal stage.

Mr Mohamed asked if clause 7 (b) should include the National Council of Provinces. Dr de Waal explained that for the same reasons that this the bill is a Section 75 bill the National Council of Provinces was no included. Mr Mohamed suggested using "the relevant committees of parliament" instead. The committee agreed to change the wording as suggested by Mr Mohamed. The committee agreed to clause 7(b) and 7(d). In 7(d) the word "any" was changed to "a", the word "an" to "a", and "such" to "that".

The committee agreed to the rest of the clauses except for clause 44 because there were still ongoing consultations with the Minister.

Mr Davidson (DP) proposed a formal amendment to clause 44. He proposed that :
sections (1), (2), and (3) be deleted from clause 44 and
a new (1) be added stating that if the Minister rejects a recommendation of the board the Minister must seek agreement with the Minister of Environmental Affairs and Tourism
a new (2) be added stating that should the Minister of Environmental Affairs and Tourism agree than the decision of the Minister must be final
a new (3) be added stating that the board must make public the fact that the Minister's decision is contrary to the board's decision.

Mr Davidson agreed to wait for the consultations with the Minister to end. He said that if they brought back a new amendment he might withdraw his amendment.

The committee agreed to recommend to the Department that the phrase "The National Nuclear Regulator Bill should therefore be considered simultaneously with the Nuclear Energy Bill by Parliament". The committee felt that the deletion of this sentence would solve the confusion of referring to legislation that is not yet an act.

The committee decided to go through the formal stages of the Nuclear Energy Bill while they waited to hear back from the consultations with the Minister.

The committee formally accepted the Motion of Desirability of the Nuclear Energy Act. The committee agreed to clauses 1 to 20, with the amendments as proposed by the Department. There was a vote on the Department's amendment to clause 21 and Mr Nel's (NNP) amendment. Mr Nel proposed that the clause be changed to "on recommendation of the board". The committee voted 11 to 3 to accept the Department's amendment, with the NNP and Democratic Party disagreeing. The committee accepted the rest of the clauses, 22-60. The Memorandum was also formally adopted. The committee formally accepted the Nuclear Energy Bill.

Mr Mokoena came back to the committee on the consultations with the Minister. He told the committee that if they considered resolution with another Minister it had already been addressed in clause 6(3). Therefore, the route of reporting to the President needs to be explored. The President could either confirm the decision of the Minister, set it aside or omit it. They concluded that considering the act confers authority to the Minster than there is not need to reference the President. The Minister proposed to leave clause 44(1) and (2) and omit sub-clause (3).
Mr Davidson (DP) said that his amendment still stood. The committee decided to vote on it when it came to the formal consideration of the bill.

The committee moved to formal consideration of the National Nuclear Regulator Bill. The committee accepted clause 1 to 5. Mr Nel (NNP) asked that his objection be noted for clause 6; the committee accepted clause 6. Mr Nel also asked his objection to be noted on clause 7, especially to sub-clause (vi). Mr Davidson (DP) also wanted his objection to the whole clause noted. The committee accepted the clause. The committee accepted clauses 8 to 11. Mr Nel wanted his objection noted for clause 12 which the committee accepted. The committee accepted clause 13 to 43. They decided to change clause 44 (2) to read "If the Minister and the board fail to resolve their disagreement, the Minister makes the final decision in consultation with the relevant Minister". Mr Davidson accepted this change and withdrew his amendment. The committee formally accepted the rest of the bill. The National Nuclear Regulator Bill was formally accepted.

Both bills were therefore referred to the National Assembly for voting.