Radioactive Waste Disposal Institute Bill: deliberations & voting

Meeting report

The Department of Minerals and Energy (DME) presented a working draft of the National Radioactive Waste Management Agency Bill to the Committee. The DME delegation was headed by Mr Tsidiso Maqubela, Chief Director: Nuclear Energy, and accompanied by Dr Schalk De Waal, Senior Nuclear Specialist, and Ms Ditebogo Kgomo, Director: Nuclear Safety, amongst others. The State Law Advisor’s Office was represented by Mr Madoda Titus, Senior State Law Advisor.

Mr Makubela stated that the Department had taken heed of the public and Committee’s comments on the Bill and had made the necessary changes where appropriate to the working draft of the Bill. Dr De Waal took the Committee through the working document clause by clause. The following changes were significant or elicited discussion:

Change in Title
At the outset, he stated that the name of the Bill had been changed from National Radioactive Waste Management Agency Bill to the Radioactive Waste Disposal Institute Bill.

New definition: Radioactive Waste Management Fund
A new definition had been included in the Bill, that is, Radioactive Waste Management Fund. The policy underlying the Bill had made provision for a fund and hence the definition was required.

Mr Madoda Titus (State Law Adviser) however disagreed with its inclusion and said that it was only an idea at the moment and could thus not be included in the Bill. The Fund was yet to be formed. Mr Titus said that the Department had said that the Fund would have to be established in terms of a money bill. He pointed out that in previous drafts of the Bill, the definition had been removed for the very reason given by him.

Mr Maqubela consequently asked how then the funding of the Agency would be dealt with. Effect had to be given to the principle that ‘the polluter must pay’. Reference had to be made in the Bill to the Fund. As a solution, he suggested that perhaps the Bill and the bill giving effect to the Fund could become operational together. Nevertheless, there should be the inclusion of the concept of the Fund in the Bill.

The Chair stated that proper wording was needed.

Mr Titus reiterated that it would be difficult to include something in the Bill that did not exist. He pointed out that Clause 21 provided leeway for the establishment of a Fund at a later stage. He suggested that perhaps Clause 21 could make provision for the funding of the Institute. It would not be a problem to omit the definition of the Radioactive Waste Management Fund at present.

Ms N Mathibela (ANC) was concerned that if the omission were made now, the Committee would have to come back at a later stage to amend the Bill.

Mr Titus’s response was that there was no need to mention the Fund in the Bill at present.

Mr O Monareng (ANC) said that the Committee wished to establish the Fund in terms of the Bill.

The Chair asked why the Fund could not be established in terms of the Bill.

Ms Mathibela said that the Department and the State Law Adviser had to sort the issue out.

Dr De Waal explained that the Fund was to be formed by way of a money bill. The policy was explicit that there should be an Institute as was being formed by the Bill and a separate Fund that was to be formed by a money bill. He said that the Fund was needed for the long-term management of the Institute. Once the Bill was enacted, the Institute would do waste disposal. At start up, the Institute would be funded by Parliament but in the long term it would be funded by a money bill.

The Chair understood that the matter was complicated. A proper formulation was needed. 

Dr De Waal proposed that the definition be deleted and that provision be made for the Fund in Clause 21(1)(c).

The Committee agreed.

Clause 16 Chief Executive Officer of Institute
In Clause 16(3) the limitation of the Institute’s CEO not holding office for more than two consecutive three-year terms had been deleted.

The Chair was not happy with the deletion of the limitation. He felt that the three-year limitation should stand and that the reappointment should be reviewable. This was said in view of possible misconduct and such like by CEOs.

Mr Maqubela pointed out that the two three-year terms were too short. If it had been five-year terms it would have been better. The further limitation of only being eligible to hold office for two consecutive three-year terms was a concern given the specialized field.

Mr Monareng shared the Chair’s sentiments and said that two consecutive three-year terms were good enough.

Ms A Dreyer (DA) stated that the CEO was subject to the policy of the Board and subject to the Minister. If the CEO were found guilty of corruption, the person would be fired. She agreed with the Department that a six-year term was far too short given the specialized field.

The Chair nevertheless felt that a three-year reviewable contract was good enough.

Clause 16(5) provided for the Board of the Institute to appoint an employee of the Institute as CEO temporarily when the need arose. The Department proposed the removal of “suitably qualified” from the provision.

The Chair was concerned by the deletion and did not wish to place discretion in the hands of the Board. He said that too often unqualified persons were giving orders to more qualified persons, especially in the nuclear industry.

Clause 7 Board of Institute
In Clause 7(7) the Department proposed the deletion of a provision whereby the Minister would appoint a panel comprising of members of a relevant parliamentary committee to assist with the appointment of board members to the Board.

Dr De Waal said that the State Law Advisers had recommended that the provision did not specifically have to state that parliamentary members had to be on the panel. There would be a panel but the clause did not state who would be on it. He did make the point that other legislation did make specific mention of the inclusion of members of parliament on panels electing boards.

The Chair emphasized that the Minister needed to appoint the Board in consultation with Parliament.   

Mr Titus said that the Committee should deal with legislation as it deemed fit. He noted that not too much value must be placed on what had been included in previous pieces of legislation.

The Chair said that the Committee needed to be innovative.

Clause 6 Ancillary Powers of Institute
Mr Titus referred to Clause 6 which referred to the addition of “Ancillary” in the title of Clause 6. He asked where the main powers of the Institute were listed.

The Chair said that it had bothered him as well.

Mr Maqubela said that these powers were ancillary as it dealt with such matters as the hiring of buildings. The main functions of the Institute were covered in Clause 5. It was in essence the Institute’s main powers.

Ms Dreyer suggested changing the title of Clause 6 from “Ancillary Powers” to “Ancillary Functions”.

Dr De Waal said that in its drafting, the Department had been guided by how legislation had been set out in previous Acts. Hence the provision of main functions and ancillary powers.

The Chair asked why the distinction between smaller and bigger powers. He asked what about things not covered by Clause 6.The Institute was a government entity and the Committee did not want technicalities.

Mr Monareng said that only core powers needed to be expressly stated, the rest should be removed. Hence Clause 5 was only needed.

Mr T Mahlaba (ANC) asked what the difference between Clause 5(o) and Clause 6 was.

Mr Maqubela replied that when the Department approached National Treasury to make a case for an entity there had been a need to convince National Treasury that the entities needed to do certain things such as hire buildings. He said that Clause 5(o) was open to interpretation and referred to the main objects of the Institute. It did not talk to administration matters. Clause 6(b) dealt with the purchasing of buildings and property.

Mr Maqubela suggested replacing “Ancillary Powers” with “Ancillary Functions” in Clause 6.

The Chair asked why Clause 6 needed to be so explicit on administration issues. It should simply read that there would be ancillary functions in order to perform administration functions.

Dr De Waal felt that the provisions contained in Clause 6 were important.

Mr Mahlaba asked whether the use of “ancillary” was relevant.

The Chair agreed and asked why the provisions contained in Clause 6 should be reduced to “ancillary”.

Mr Maqubela asked if the word “ancillary” was deleted, would it solve the problem.

The Chair answered in the affirmative.

The Department agreed to delete the word “ancillary” from Clause 6.

Mr Titus agreed to the deletion.

Clause 21 Funds of Institute
Dr De Waal noted that there was an existing facility to take care of low level waste. In the long term the Institute would have to take care of high level waste and thus there would have to be a Fund.

The Chair said that it would seem that everything was open ended. He asked when the Fund was to be established.

Mr Maqubela asked if the Chair was asking the Department to tighten up Clause 21(c) and set a timeframe. He asked the Committee to guide the Department. He asked if two years was good enough.

The Chair was concerned that high level waste was only going to be taken care of in the long term.

Mr Mahlaba asked if setting a timeframe in Clause 21(c) would fast-track the programme.

Dr De Waal said that the policy had been explicit that the Institute and the Fund would have to be established within five years. The Department had two years left. The Bill set up an entity that would for the first time dispose of waste independently. He noted that within two years the generators of waste would start contributing in terms of the Fund Bill.

Mr Monareng asked whether the Institute would be independent or was it state controlled.

Dr De Waal responded that it would be independent from the generators of waste.

Clause 22 Judicial management and liquidation
Mr Titus referred to Clause 22(2) and said that the use of the word “abolished” was no longer used in legislation.

The Department agreed to look into the matter.

Clause 23 Application for radioactive waste disposal certificate
The Department proposed the insertion of the words “at an authorized waste disposal facility managed by the Institute” after the word “waste” in Clause 23(1).

Mr Monareng said that the disposal of radioactive waste should be the responsibility of the state.

The Chair pointed out that the Institute was a state entity. It had to deal with ownerless waste as well. He felt that perhaps Clause 23(1) was contradictory.

Dr De Waal said that even ownerless waste had to be disposed of at an authorized facility.

Mr Titus did not think that the inserted words were necessary. He felt that there was a gap for people to dispose of radioactive waste elsewhere without making application.

Ms Mathibela was not happy with the use of the word “wishing” in the clause.

Mr Maqubela agreed to deal with the potential loophole but said that the use of “wishing” was part of legal drafting.

Mr Titus proposed the deletion of the word “wishing” and rephrasing this portion of the clause.

The Committee agreed to this.

Clause 30 Transitional provisions
Members had concerns about the 30 day grace period provided for in Clause 30(7) for the handing over of radioactive waste disposal responsibilities.

Mr Mahlaba asked what happened when an applicant did not meet the requirements even though he had complied by applying.

Dr De Waal replied that there were existing agreements for the disposal of waste. In terms of the Bill, the generator had to apply for a certificate and meet the requirements.

The Chair asked what happened when there was failure to comply. Where did the waste go?

Dr De Waal replied that the generator must be made to comply. Hence the 30 day grace period.

Mr Maqubela said that where there was failure to comply the generator would eventually run out of space to store the waste. The possibility also existed that the generator would have to cease operations.

The Chair asked what actions would be taken against non-compliance. There had to be consequences for non-adherence.

Mr Titus said that provision could be made for it in the regulations.

Mr Maqubela said that Clause 25, more specifically 25(2), set out what generators were obliged to do.

The Chair pointed out that Clause 25 dealt with expectations of what generators should do. He asked what if they did not do what was expected.

Mr Mahlaba asked if the 30 day period was sufficient to enable the Institute to operate.

Dr De Waal replied that the Department was aware that by the time the Bill came into effect, the Institute might not be ready to start up. There were however transitional arrangements in place.

Mr Maqubela said that the licensing process of the Institute would in itself be a long process. Issues such as its organizational structure and staff had to be sorted. He conceded that the 30 day period was far too short but emphasized that National Energy Corporation of SA (NECSA) would assist in the interim.

The Chair asked if the Institute was going to continue using Vaalputs and displace NECSA. He asked what the plans were.

Mr Maqubela responded that there was an existing site at Vaalputs which was a division of NECSA. This division would thus form the nucleus of the Institute. The workers of the NECSA division would transfer to the Institute. In addition, there was a need to look at sites for the management of high level waste. This process could take up to ten years to complete.

The Committee agreed to adjourn so that the drafters could compile a final list of amendments (the A version of the Bill).

Afternoon session

Voting on the Bill
The Chairperson obtained the advice of the State Law Adviser and Parliamentary Law Adviser on the amendments to the Motion of Desirability and the Committee Report on the Bill, resulting from the change in the title of the Bill.

Henceforth, the Bill would be referred to as the Radioactive Waste Disposal Institute Bill.  The Chairperson read the amended Motion of Desirability.  The Committee agreed to the amended Motion of Desirability.  Mr O Monareng (ANC) proposed the motion of acceptance and Ms F Mathibela (ANC) seconded the motion.

Ms D Kgomo (Director: Nuclear Safety, Department of Minerals and Energy) took the Committee through the proposed amendments to the title, Long Title, Index and Clauses 1 to 31 of the Bill (see attached document).

The majority of the amendments resulted from the change of the entity concerned from an agency to an institute, affecting all the clauses in the Bill.  The words “agency”, “management agency” and “member” were substituted with “institute”, “disposal institute” and “director” respectively throughout the Bill.

Further amendments were made to Clauses 5, 7, 10, 16, 17, 21, 22, 23, 24, 25, 28, 29 and 30.  Members agreed to the proposed amendments to each clause.

Mr M Titus (State Law Adviser) explained the provision in the Public Finance Management Act (PFMA) with regard to the accounting officer of a state-owned entity.  In the case of the Radioactive Waste Disposal Institute, the Board of the Institute was the accounting officer.  In the absence of a Board, the Chief Executive Officer (CEO) was the accounting officer.  The relevant provision was in Clause 17(4) of the Bill.

Mr T Maqubela (Chief Director: Nuclear, Department of Minerals and Energy) confirmed the Department’s acceptance of the provision in Clause 17(4).

The Chairperson pointed out that the CEO was an ex-officio member of the Board.

The Chairperson read the Committee Report on the Bill.  Members agreed to the Report.  Mr Monareng proposed and Ms Mathibela seconded the motion of acceptance of the Report.

The Chairperson advised that the Bill was scheduled for debate in the National Assembly on 23 September 2008.  He thanked all the parties involved in the passage of the Bill.

The meeting was adjourned.