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National Union of Mineworkers (NUM) Submission on theNational Nuclear Regulator and Nuclear Energy BillsPresented to the Portfolio Committee on Mineral and Energy Affairs, 23 February 1999 |
The Nuclear Bills should be referred back to the DME for proper consultation and redrafting. The Bills should not be passed during this session of Parliament.Table of Contents
The Portfolio Committee on Minerals and Energy should oversee and monitor the process of consultation to ensure transparency and accountability and to avoid any further undue influence by mining industry employers.
Proper consultation must include appropriate discussion and debate involving:
all organs of state with complementary responsibility for nuclear radiation in order to ensure co-operative governance;
trade unions representing workers who may be exposed to the nuclear hazard to ensure occupational health and safety;
the public, to ensure that they are aware of the hazards posed by nuclear radiation and are satisfied that their health and safety is adequately protected.
The Nuclear Bills must be redrafted to ensure:
the jurisdiction of an independent National Nuclear Regulator is retained in respect of mines;
the setting of uniform and consistent safety standards and levels that satisfy international standards and ensure the health and safety of workers and the general public;
co-operative governance between organs of state with complimentary responsibility for radiation, including co-operation between the National Regulator, the DME and the Inspectorate, in accordance with the recommendations of the Leon Commission;
compliance with the Constitution; and
that the other shortcomings of the Bills are addressed.
Chairperson, Members of the Portfolio Committee, Comrades, Ladies and Gentlemen.
The National Union of Mineworkers ("NUM") wishes to thank the Portfolio Committee on Minerals and Energy for the opportunity of addressing it on the National Nuclear Regulator Bill, 1999 and the Nuclear Energy Bill, 1999.
The NUM represents not only mineworkers who are exposed to the radiation hazard in the underground stopes and processing plants of South Africa’s mines but also energy workers at nuclear power facilities and workers and their families who are exposed to the radiation hazard as members of the general public in the hostels and residential areas of mines and mining towns throughout South Africa.
We are here to discuss the proposed legislation dealing with a very sensitive issue, nuclear energy. Nuclear energy can make a positive contribution to the economy of the land in a number of ways. It can be used in nuclear medicine and it can generate power. Nuclear energy can also be used in the construction of weapons of war that have unbelievable powers of destruction.
The veil of secrecy that surrounded nuclear energy in the past created suspicion that Koeberg and Pelindaba were built primarily to develop capacity in the area of nuclear weapons. There was no discussion by the South African people on the building of Koeberg in the Western Cape and Pelindaba in Gauteng. There was no public debate about the creation of a nuclear dumping site for contaminated waste at Vaalputs.
Now again, under a democratic government committed to transparency and accountability this veil of secrecy is sustained by the Department of Minerals and Energy ("DME"). We are concerned that the progress and content of these Bills have been determined by the Chamber of Mines and the DME to the exclusion of other interests.
One of the Bills is directed at weakening the role of the Council for Nuclear Safety ("CNS") and lowering the nuclear radiation monitoring standard, particularly in the mining industry. It is therefore ironic that the DME has charged the mining employers with responsibility to develop a regulatory framework for mines. The emphasis has not been on improving the health and safety of workers and the public but to reduce or eliminate costs for the Chamber of Mines. We submit that cost cutting can never be the primary purpose for developing a regulatory framework. Costs may be a consideration when implementing policy.
How can the National Nuclear Regulator Bill give nuclear radiation monitoring at the mines safely to the Inspectorate when the Inspectorate has only now begun the process of developing the necessary capacity and has shown no interest in the radiation hazard historically? Mineworkers must never be used as guinea pigs. This approach should not be allowed to continue.
We submit that, Mr. Chairperson and members, these Bills must not be passed. They must be sent back and a thorough process of discussion and debate must be started. If we allow these Bills to go through, driving a programme of monied interests at the expense of lives of working people, history will judge us. The arrogance with which these two pieces of legislation have been bulldozed, without taking labour views into account, and without any public debate, has left a bad after taste in our mouth.
Pressure should not be allowed to push the Bills through Parliament. The necessary thoroughness is required to develop good policy and good law to ensure that more lives are not lost in a killer industry.
The NUM is convinced that in their current form and without significant amendment, the passing of the Nuclear Bills into law will not be in the interests of the health and safety of mineworkers, energy workers or the general public.
While the radiation hazard associated with nuclear power facilities is well known, significantly less public attention has been focused on the radiation hazard associated with mines.
Despite suggestions to the contrary by the Department of Minerals and Energy and the Chamber of Mines, the radiation hazard at mines is by no means insignificant, both in respect of potential dose exposure levels and the number of workers and members of the general public potentially exposed.
- Occupational Exposure
- Public Exposure
- The Significance of the Radiation Hazard
Workers are subject to radiation hazards both in the underground environment and in surface facilities at mines. Primarily, the hazard takes the form of inhalation of radon gas and radioactive ore dust. Workers are also subject to the same radiation hazards faced by the general public.
The general public is exposed to radiation hazards from both underground and surface activities at mines arising from the discharge of contaminated airborne and waterborne effluent and also from the disposal of radioactive wastes and residues.
This includes exposure to radon gas from mine tailings (slimes dams), waste rock piles (mine dumps) and upcast shafts; radioactively contaminated surface and ground water; and radioactively contaminated materials and equipment.
Basic international dose limit safety standards are provided by the "International Basic Safety Standards for Protection against Ionising Radiation and for the Safety of Radiation Sources, IAEA safety series no.115. International Atomic Energy Agency, Vienna (1996)" (see annexure "B").
The Department of Minerals and Energy has simply not provided the NUM with the data on which it bases its assertion that the radiation hazard emanating from mines is insignificant and that the standards applied by the Council for Nuclear Safety ("CNS") are overly stringent and inappropriate.
In fact, the available evidence indicates that significant numbers of workers are exposed to unacceptably high levels of radiation. A report in 1998 revealed that approximately 1000 employees at the V2 shaft at Harmony Gold Mine were exposed to levels of radiation exceeding the dose limits laid down by the CNS.
The CNS data suggests that at least 10 000 (ten thousand) mineworkers are exposed to potential annual doses exceeding the internationally recommended limit of 20mSv/a. (See annexure "D", and in particular the comparison to potential annual doses at the Koeberg nuclear facility).
Investigations conducted by the CNS at various mines in the course of 1998 found potential annual radiation doses well above internationally recommended dose limits for occupational exposure. At Harmony Gold Mine at some point, workers were exposed to dose levels between 30-60 mSv/a. At Nigel Gold Mining Company, workers are exposed to dose levels between 30-130 mSv/a. At Randfontein Estate Gold Mine, in some areas mineworkers are exposed to evels of about 125,7 mSv/a (see annexure "E").
In terms of the Nuclear Energy Act, 1993, the CNS is charged with the responsibility of safeguarding all persons in South Africa against nuclear damage. Its functions include the issue of nuclear licences, the setting of appropriate exposure standards and the inspection of workplaces and other installations containing radioactive materials. The CNS has been charged with the duty of protecting workers who may be exposed to radiation hazards in a workplace as well as to the public who may be exposed to radiation hazards in their communities or in their homes.
The Mine Health and Safety Act, 1996 establishes a Mine Health and Safety Inspectorate ("the Inspectorate") within the Department of Minerals and Energy ("DME") with has the responsibility to ensure that mining activity occurs in a way which, as far as reasonably practicable, is safe and without risk to the health of employees as well as to other persons who may be directly affected by activities at a mine.
The regulation of radiation hazards is not excluded from the ambit of the Inspectorate’s powers. In other words, the Inspectorate currently has the power to, for instance, conduct inspections at mines to ensure that mines protect their employees from radiation hazards in accordance with standards set by the CNS.
The jurisdiction of the Inspectorate does not extend to the rehabilitation of mines, including the rehabilitation of mine dumps which may pose a radioactive hazard. This responsibility rests with the DME in terms of the Minerals Act, 1991.
The fact that radiation hazards are not excluded from the ambit of the Mine Health and Safety Act is significant. The DME, employers and trade unions and workers within the mining industry have the right to raise issues concerning radiation protection both in the mining industry tripartite forums as well as at mine-level health and safety committees under the current regulatory framework.
As this indicates, many of the arguments used by the DME in support of the Bills and the exclusion of the mining industry can be addressed within the current framework and without a transfer of responsibility for radiation hazards in the mines away from the Nuclear Regulator.
The most recent consideration of the regulation of nuclear safety in the mining industry occurred during the Leon Commission of Inquiry into Safety and Health in the Mining Industry. The Commission held hearings in August to September 1994 and published its report in April 1995. The Commission’s recommendations led to the enactment of the Mine Health and Safety Act.
It is further worth noting that the Commission's recommendations are in line with the approach of "co-operative governance". This is also the essential feature of the Governments’ policy on environmental regulation. This approach seeks to ensure that a wide range of government departments and agencies (at both national, provincial and local level) who have responsibility for some aspect of the protection of the environment, adopt policies that are consistent and harmonised.
In its closing arguments to the Commission, NUM submitted that the evidence before the Commission established that:
Specialist expertise was required to regulate and control the hazards arising from radiation in the mining industry by the formulation and application of internationally accepted standards;
Such expertise was currently available and being exercised within the Department by the CNS;
The Government Mining Engineer’s (GME) office (now the Mine Health and Safety Inspectorate) disposed over no comparable expertise;
The increasing efficacy of the present system applied by the CNS should not be imperilled by the transfers or changes, but should rather be enhanced by invoking the assistance of the inspection resources of the GME.
In conclusion, the NUM made the submission that the CNS should retain its regulatory responsibility but should make optimal use of the inspection resources of the GME in order to comply with these standards. This should be done in a manner determined by the CNS and the GME through consultation. The then Government Mining Engineer, Mr JB Raath, in closing arguments on behalf of the Department, supported this submission (as well as point (d) above).
The Commission recommended that –
"A closer working relationship be formed between the CNS and the GME with a view to closer monitoring of underground exposures and individual doses received annually by employees. That together, the two enforcing authorities develop a way of informing the workforce of the nature of the hazard, its extent and how it affects individuals."
The Commission’s recommendation represented and continues to represent a practical and realistic approach to achieving maximum protection for employees within the constraints of available resources.
The proposal contained in section 2(2)(e) of the National Nuclear Regulator Bill to exclude the regulation of radioactive hazards in the mining industry is in clear conflict with the unequivocal and sensible recommendation of the Leon Commission. It is highly significant that in its justification for this proposed amendment to the law, the DME offers no argument for its rejection of the Leon Commission recommendation nor does it offer any reason why it has revised its views expressed at the Commission as described above.
The proposal of the Leon Commission was a carefully considered approach to allow for the optimum utilisation of scarce resources. On the other hand, the DME’s proposal is a classic case of "throwing the baby with the bath water". The proposal will mean that the resources developed by the CNS for the enforcement of radiation and protection in the mining industry over the last period are disregarded.
The regulatory framework proposed by the National Nuclear Regulator Bill, 1999 involves the removal of the mining industry from the ambit of the Nuclear Regulator. This will further fragment responsibility for the protection of occupational and environmental health and safety.
The Nuclear Regulator will retain responsibility for the protection of workers and the public from radiation hazards from workplaces other than mines.
The responsibility for protecting the public from radiation hazards caused by mining will now fall under two separate laws (the Mine Health and Safety Act, 1996 and the Minerals Act, 1991) and be regulated by at least two different sections of the DME, the Inspectorate and the Environmental Section.
The DME’s motivation for the exclusion of the mining industry from the Nuclear Regulator’s jurisdiction is made in intemperate language and in terms that are quite inappropriate for a debate of this nature that is of vital concern to public and occupational health and safety. The DME has, in adopting such a position, shown that it is incapable of protecting South African workers and the public from the radiation hazard. Its view is based on the assumption, which is not supported by evidence, that the possibility of workers and the public being exposed to unacceptable radiation hazards is small.
This unacceptable attitude is revealed in the presentation to the Portfolio Committee on the National Nuclear Regulator Bill made by the Deputy Director-General, Mr D Bakker.
The DME’s presentation contains the following aspects –
Although the DME concedes that there are worker radiation risks above ground for miners, it does not discuss this issue because the number of workers involved is relatively small. These workers who are involved in crucial mining tasks such as refining, play a crucial role in the mining industry and are entitled to proper protection. While the number may be relatively small compared to the workforce in the mining industry, it remains a significant group of workers who require this protection;
With regard to the issue of the protection of the public the department makes the allegation that the CNS has "grossly exaggerated the possible impact on the public". It goes on to accuse the CNS of "intentional exaggeration". Yet, despite this strong language the DME offers no evidence on which it bases this conclusion.
This clearly inappropriate language directed at the activities of the CNS has been a constant feature of the DME’s approach to this legislation. In a letter to the chairperson of the Gold Crisis Committee dated 14 April 1998, the DME expressed the view that the expenditure on radiation protection programmes was "out of all proportion to the size of the risk in comparison with other mining risks". Yet, it gave no indication of its estimate of the size of the risk of exposure of mineworkers to radiation hazards. The information on which this assessment was made has not been disclosed to the public. The DME went on to accuse the CNS of "squandering" mining industry resources. (See annexure "G").
There is no doubt that documents of this type reveal that the DME has prejudged the issue of the extent of the radiation hazard posed to mineworkers and to the public and it has therefore shown itself unfit to assume the role of setting standards for radiation exposure.
The NUM submits that in relation to this matter the Inspectorate and the DME have been unduly influenced by mining industry employers. In this regard they have relied almost exclusively on the services of employees of the Chamber of Mines and Vaal Reefs regarding the content of the Bills, a guideline for a code of practice for radiation protection programmes at mines and draft regulations in respect of radiation hazards at mines. The mining industry employees concerned have been consistently hostile to the CNS and its regulatory functions in respect of the mining industry.
The NUM submits that the proposal to exclude mines from the jurisdiction of the National Regulator is a proposal motivated primarily by the concerns of mining industry employers to reduce standards of radiation protection and regulation at mines and not by the interests of health and safety of workers and the general public.
While the NUM recognises that the Inspectorate has begun a process of transformation following the Leon Commission of Inquiry and the promulgation of the Mine Health and Safety Act, 1996, this process is far from complete and many of the criticisms levelled at the Inspectorate in the course of the Leon Commission of Inquiry still apply.
A significant concern in this regard is the failure of the Inspectorate to reduce the appallingly high levels of death, injury and disease on South African mines. This point is amply illustrated by statistics provided by the Inspectorate to the Mine Health and Safety Summit on 6 November 1998. The comparative statistics provided by the Inspectorate show insignificant reductions in fatality rates and a static situation in relation to injury rates on South Africa’s mines (see annexure "H").
While the Inspectorate has recently obtained the services of some radiation specialists and embarked upon radiation protection training for some of its inspectors this is to be expected given its current responsibilities for the radiation hazard under the Mine Health and Safety Act, 1996. Despite its responsibilities in this regard, the Inspectorate and the DME have shown little historical concern in dealing with radiation. There is no evidence to suggest that the Inspectorate has come to grips with the enormous occupational health problem of respirable dust at mines. There is therefore nothing to suggest that the Inspectorate will adequately deal with the radiation hazard at mines.
The proposed removal of mines from the jurisdiction of the Nuclear Regulator places the health and safety of the general public exposed to the radiation hazard from mines in the hands of the DME and the Inspectorate. The general public has little reason for confidence in this regard. In his judgment in the Merrespruit Slimes Dam Disaster Inquiry, Judge Kotze was scathing, in the context of the accident, of the DME’s ability to protect the health and safety of the general public.
The DME, in its presentation to the Portfolio Committee suggested that international practice in respect of the radiation hazard at mines supports the proposed exclusion of mines from the jurisdiction of the Nuclear Regulator. This is simply not correct. Different regulatory frameworks have been developed in countries such as the United States of America, Canada, the United Kingdom, France and Australia to address the radiation hazard, both in respect of occupational exposure and exposure of the general public. These frameworks have been primarily influenced by specific historical developments in the countries concerned. If any particular trend can be established, it is a growing concern with co-operative governance in respect of regulatory responsibility for the nuclear hazard. This is precisely the problem caused by these Bills.
The Bills make no provision for ongoing participative structures. No provision is made in the Bill for the establishment of any advisory body, consisting of interested parties which would be able to advise the Nuclear Regulator on the manner in which it performs its functions. While the establishment of such a body enjoys broad support among interested parties, the Bill does not provide for one and this will hamper attempts to create transparency, consultation and accountability for example, although the existing CNS has begun a process of setting up an advisory board this is not reflected in the legislation. The legislation must be redrafted to create a proper advisory board for stakeholder participation.
- Referral of Bill
The Bills have been referred as ordinary Bills not affecting the provinces in terms of section 75 of the Constitution. It is the NUM’s contention that the Bills should properly have been referred in terms of section 76 of the Constitution. A Bill must be dealt with in terms of section 76 if inter alia it falls within a functional area listed in schedule 4 as an area of concurrent national and provincial legislative competence. It is the view of the NUM that the Bills fall within the functional competence of the environment which is listed in schedule 4. This is clear from the terms of the Bill. For instance, ‘"clear damage" is defined to mean –
"clear damage" means any injury to or the death or any sickness or disease of a person of other damage, including any damage to or any loss of use of property or damage to the environment which arises out of, or results from, or is attributable to, ionising radiation associated with a nuclear installation, nuclear vessel or activities involving radioactive material.
- Disclosure of information
The provision concerning the disclosure of information (section 46) is draconian and not consistent with either section 32 of the Constitution or the Open Democracy Bill. In addition, the approach to information is considerably different to that contained in the National Environmental Management Act, 1998 which for instance contains a clause on the protection of "whistle blowers" which is in line with the equivalent provision in the Open Democracy Bill. (See annexure "I".)
The equality provision
The consequences of exposure to radioactive material is the same for all workers. It is therefore imperative that the applicable standards are uniform and consistent. The creation of a separate jurisdiction for the Inspectorate within the DME for the mining industry could lead to differential standards for the mining industry and other sectors. This raises constitutional problems and the possibility that standards will be challenged on the basis that they violate the equality provision in the Constitution.
Both the contents of the Bills and the process by which they have been brought to Parliament are in complete disregard of the principles of co-operative governance. The substantive and procedural failures are closely interrelated.
It is the undue rush with which the Bills have been prepared that has led to a situation in that will exacerbate the absence of coherent regulation in the nuclear industry and in respect of the environment and occupational health and safety in general. The Bills conflict not only with the legislation and policies of other government departments who have complementary responsibilities, they fail to give effect to commitments contained in policy documents issued by the DME such as the White Paper on Energy.
The protection of workers and the public from radiation hazards overlaps considerably with the areas of environmental and health and safety regulation. This is an area where numerous government agencies have complementary responsibilities. The National Environmental Management Act, 1998 gives effect to the principle of co-operative governance which requires that all spheres of government and organs of state who have related competencies must co-operate with, consult and support one another. It also stresses the need for procedures and institutions to facilitate and promote public participation in governance.
One aspect of the disregard of the principles of co-operative governance is the manner in which the DME has sought to argue its case. As is pointed elsewhere in this document, its criticism of the CNS which, for example, it accuses of deliberately misrepresenting the level of nuclear risk is intemperate and inappropriate. It is the NUM's view that because of the pressure placed on it by mining industry employers, the DME has abandoned these general principles of co-operative governance by which it should be bound.
The full extent to which other government departments have complementary functions and have a direct impact on the regulation of the nuclear sector include –
The Department of Environmental Affairs and Tourism and the Department of Water Affairs are in the process of finalising an integrated waste management strategy which includes the determination of the responsibility for radioactive waste;
The Department of Labour is responsible for legislation and procedures relating to emergency procedures for major hazard installations which include nuclear facilities;
The Department of Transport is the lead agent responsible for legislation pertaining to the transport of hazardous materials, including radioactive substances;
The Department of Trade and Industry acts as secretariat to the Nuclear Non-proliferation Agreement and is represented on the Nuclear Non-proliferation Committee.
The status of these developments, many of which still involve the development of policy, is not clarified in the legislation and the development of the Bills must occur in concert with these provisions and involve co-operation and consultation with the agencies having these responsibilities.
The White Paper on Energy states that –
"Given the nature, and outcome, of past nuclear policy formulation processes, transparency and participation in nuclear sector governance will be ensured to restore public confidence in governments nuclear energy policies"
and that government will –
"… clarify functions of bodies associated with the nuclear industry…. as well as any other institution with the government functions over this industry, for example the Department of Water Affairs and Forestry and the Department of the Environment and Tourism." (See annexure "J".)
This commitment is not carried through in the Bills either with respect to the two departments named in the quotation or with respect to the several other departments who have complementary responsibilities such as those named above. The Bills therefore conflict with the DME’s own policy pronouncements and promises. The Bill must be redrafted to reflect these commitments.
The lack of co-ordination and co-operation is further revealed when the Bills are read together with the recently promulgated National Environment Management Act, 1998. In terms of this Act pollution includes any change in the environment caused by inter alia radioactive or other waves. The Bills totally ignore the provisions of the National Environment Act (which was passed by Parliament in 1998 after extensive deliberations and consultation with national government departments and between levels of government) concerning co-operative governance, the control of emergency incidents, and the requirement for regulations concerning environmental impact assessments.
The National Nuclear Regulator Bill must be required to promote co-operation between organs of state that have complementary responsibility, such as the departments responsible for the enforcement of the National Environmental Management Act, the Occupational Health and Safety Act and the various standards set by the Department of Water Affairs and Forestry and the Department of Health.
The Bill must be redrafted to deal explicitly with the manner in which the nuclear industry will comply with environmental legislation and the manner in which the National Regulator will reach consensus with the Department of Environmental Affairs and Tourism in the process of awarding licences and regulate all stages of the development, construction and operation of nuclear facilities.
The Bill fails to deal satisfactorily with exposure to risk outside the "nuclear fuel cycle". Recent cases involving radioactive scrap material indicate that the protection of occupational health and safety requires co-ordination between departments exercising regulatory and compliance functions and a clear delineation of the duties. The failure of the Bills to address this issue will exacerbate the problems. It will perpetuate the current system in which public exposure continues at unacceptable levels because there is no clear regulatory responsibility. The current uncertainty (which the Bill will exacerbate), leads to a situation in which government agencies avoid their responsibilities and pass "the buck" to others.
The process of drafting these Bills shows an arrogant disregard for participation processes. At no stage has there been a debate over the principles underlying the continued operation of the nuclear industry in a democratic South Africa. Legislation of the type proposed in the Bills should only come to Parliament following such a debate which would deal, inter alia, with issues such as the promotion of nuclear power.
From the outset Labours role in the process of these Bills has been limited to review rather than participation. It was with great reluctance, that the DME eventually agreed to participate in an extremely limited NEDLAC process. The DME has throughout used delaying tactics to avoid Labour and other stakeholders having the opportunity to comment on the content of the Bills. For instance it promised copies of the final Bills to stakeholders on 25 November 1998 but these were only released on 7 and 11 January 1999 respectively. The DME's insistence in processing the Bills at a break neck speed through this short parliamentary session is in absolute contradiction with the lengthy delays involved in allowing public access to the documents. There has been a very limited and quite insufficient opportunity for stakeholders and the public to comment. Other stakeholders such as environmental groups, have had even less opportunity.
- Independence of the Nuclear Regulator
The National Nuclear Regulator Bill does not retain the existing prohibition on nuclear licensees or their employees being appointed to the Board. This is unacceptable and undermines the independence of the Nuclear Regulator.
- Lowering of Safety Standards and Regulatory Practices
Schedule 2 to the National Nuclear Regulator Bill, provides for significantly less restrictive levels than currently apply. This will ensure that certain nuclear activities will no longer be regulated. This is simply not acceptable without proper debate and information.
The Nuclear Bills should be referred back to the DME for proper consultation and redrafting. The Bills should not be passed during this session of Parliament.
The Portfolio Committee on Minerals and Energy should oversee and monitor the process of consultation to ensure transparency and accountability and to avoid any further undue influence by mining industry employers.
Proper consultation must include appropriate discussion and debate involving –
all organs of state with complementary responsibility for nuclear radiation in order to ensure co-operative governance;
trade unions representing workers who may be exposed to the nuclear hazard to ensure occupational health and safety;
the public, to ensure that they are aware of the hazards posed by nuclear radiation and are satisfied that their health and safety is adequately protected.
The Nuclear Bills must be redrafted to ensure –
the jurisdiction of an independent National Nuclear Regulator is retained in respect of mines;
the setting of uniform and consistent safety standards and levels that satisfy international standards and ensure the health and safety of workers and the general public;
co-operative governance between organs of state with complimentary responsibility for radiation, including co-operation between the National Regulator, the DME and the Inspectorate, in accordance with the recommendations of the Leon Commission;
compliance with the Constitution; and
that the other shortcomings of the Bills are addressed.
