on appeals
26 January 2007
Marthinus van Schalkwyk, Minister of Environmental Affairs & Tourism,
has, in terms of the Environment Conservation Act, Act 73 of 1989, considered
the appeals lodged against the decision to grant authorisation to the Nuclear
Energy Corporation of South Africa (NECSA) for the development of a Pilot Fuel
Plant (PFP). The full text of the Minister's decision relating to the appeals
is appended below.
Appeal decision
Appeals against the Record of Decision (ROD) granted to the Nuclear Energy
Corporation of South Africa (NECSA) for the Pilot Fuel Plant (PFP)
1. Introduction
The Director-General of the Department of Environmental Affairs and Tourism
(DEAT), in terms of section 22 of the Environment Conservation Act, 1989, read
with the Environmental Impact Assessment Regulations published in Government
Notice No R1183 of 5 September 1997, issued a Record of Decision (ROD) for the
proposed Pilot Fuel Plant at Pelindaba to NECSA on 25 June 2003. Appeals were
lodged against this decision and I am required to decide this matter on
appeal.
2. Background
2.1 The development that is the subject of this appeal entails the
establishment of a fuel manufacturing plant within the BEVA complex at
Pelindaba in the North West Province, and includes the storage, handling and
processing facilities for the raw materials and fuels. In addition, the
transport of raw material from Durban to Pelindaba and the transport of
manufactured fuel from Pelindaba to Koeberg in the Western Cape also fall
within the ambit of this decision.
2.2 The planned facilities include but are not only limited to:
(a) Refurbishment of the BEVA complex to establish a fuel manufacturing
plant.
(b) Refurbishment of the BEVA complex to establish storage, handling and
processing facilities for raw material and manufactured fuel.
2.3 The Director-General of the Department of Environmental Affairs and
Tourism, in terms of section 22 of the Environment Conservation Act, 1989, read
with the Environmental Impact Assessment Regulations published in Government
Notice No R1183 of 5 September 1997, issued two separate Records of Decision
(RODs) for the proposed Pebble Bed Modular Reactor (PBMR) at Koeberg Nuclear
Power Station to Eskom Holdings Limited (Eskom) and for the proposed Pilot Fuel
Plant (PFP) at Pelindaba to NECSA on 25 June 2003. The two RODs were issued
simultaneously and were linked by a clause in each ROD, stating that the
authorisation contained therein is subject to the authorisation of the other
project. Appeals were received against both RODs during the appeal period of 25
June 2003 to 24 July 2003. Many of the appellants used the same form to appeal
both decisions and did not clearly distinguish between the two projects.
2.4 After the appeals were received, they were referred to Eskom and NECSA,
respectively for comment. In the interim, the granting of the ROD in respect of
the PBMR was set aside on review by the Cape High Court on 26 January 2005.
Eskom subsequently decided to resubmit the entire Environmental Impact
Assessment (EIA) as a result of significant changes in the scope of the project
which included, inter alia, that the capacity of the proposed project would be
substantially increased. As a result, the appeal in respect of the PBMR became
superfluous.
2.5 Although the EIA relating to the PFP was not in dispute in the court
application, the Department was uncertain as to whether the ROD in respect of
the PFP was still valid, bearing in mind the mutual linking clauses. Legal
advice was sought in this regard and the opinion was received on 7 November
2005. According to the advice received from senior counsel, the ROD issued to
NECSA for the PFP project was not affected by the setting aside of the ROD
issued in respect of the PBMR.
2.6 The appeals against the ROD in respect of the PBMR are therefore not
addressed as part of this decision. A number of appellants lodged identical
appeals against both the PFP ROD and the PBMR ROD. As a result, some aspects of
the appeals either do not relate to the proposed fuel plant or do so
peripherally.
3. Appeals
3.1 After the record of decision in this matter was granted, my office
received 27 appeals from various persons and organisations, namely:
Common appeals
(a) Ms M Ashwin
(b) A Brooke
(c) Crossroad Valley Properties (Pty) Ltd
(d) Mr & Mrs J & V Hattingh
(e) Ms J Mooney
(f) Ms J Naschenweng
(g) Mr & Mrs CP Spencer
(h) A van der Mescht
(i) RCH Garbett, CT Garbett, Wat Props (Pty) Ltd, Karee Trust, Itumaleng Farm
("the Garbetts"); (These appeals have been grouped as they all rely on an
identical document entitled "Annexure A - PBMR Demonstration Unit and fuel
manufacture".)
Diverse appeals
(a) Buenzli Family
(b) R Brown
(c) S Brown
(d) Buhle-Besizwe Group
(e) Earthlife Africa (Cape Town)
(f) Earthlife Africa (Johannesburg)
(g) B Mbokazi
(h) International Council for Monuments and Sites (ICOMOS)
(i) Ms M January
(j) T Kgoedi
(k) DV Maseko
(l) SH Sefolo
(m) H Sindane
(n) Wildlife and Environment Society of South Africa.
(The grounds of appeal submitted by these appellants are diverse and are
therefore treated as a separate grouping).
3.2 Several grounds of appeal emerged from the above appeals that could
broadly be categorised, in my view, as follows:
(a) Dissatisfaction with the EIA process, most notably with the public
participation process
(b) Opposition to the potential consequences of the long-term storage of
high-level radioactive waste and contaminated materials
(c) Alleged inadequacies in terms of the consideration of alternatives to the
PFP
(d) Environmental impacts associated with the PFP, in terms of radiological
safety, accident scenarios including graphite fires and health impacts
(e) Economic feasibility, financial guarantees and public funding of the
project
(f) Opposition to the delinking of the PFP and the PBMPR, with the contention
that neither process should be viewed in isolation.
3.3 The appeals were submitted to NECSA for comment and they responded to
the grounds of appeal ("first response"). The appellants were then invited to
comment on the first response document. Two of the appellants, Mr and Mrs
Garbett responded jointly. Two applicants also submitted additional inputs not
related to NECSA's response.
3.4 NECSA was then requested to submit a response to all the appeals and an
expanded response was subsequently delivered by NECSA. This is referred to as
the "second response". All the appellants were given an opportunity to respond
to the second response document as well. Responses were received from the
following appellants:
(a) Mr RCH Garbett
(b) Mrs CT Garbett
(c) Wat props (Pty) Ltd
(d) Karee Trust
(e) Itumaleng Farm CC
(f) The Buenzli family
(g) Earthlife Africa (Johannesburg).
3.5 NECSA responded to each of the appeals and submitted that there were no
grounds contained in any or all of the appeals that would warrant the setting
aside of the ROD and requested me to uphold the decision of the
Director-General of DEAT. The Department was of the view that, considering the
measures that will be put in place, none of the objections preclude the
approval of the project and that this project should be allowed to proceed.
4. Decision
4.1 In reaching my decision, I have considered the information contained in
the following documents:
(a) The record of decision, reference number A24/16/3/188, dated 25 June
2003 and the documents associated therewith
(b) The respective appeals
(c) Legal opinion from counsel
(d) The judgment delivered on 26 January 2005 in the High Court (Cape of Good
Hope Provincial Division) in the matter between Earthlife Africa (Cape Town) v
DEAT and Eskom Holdings Limited, Case No 7653/03
(e) NECSA's first response to the appeals
(f) The appellants' response to NECSA's first response and their additional
inputs
(g) NECSA's second response to the appeals
(j) The response of the respective appellants to NECSA's second response to the
appeals
(k) The submissions made by the Department in relation to this project.
4.2 Although the RODs of the NECSA PFP and the Eskom PBMR projects both
contain clauses that make the implementation of the one ROD subject to the
approval of the other ROD, they were originally submitted as two separate
projects by two different applicants. In addition, the projects will be
implemented in different locations. The projects are also different in nature
and the environmental risks pertaining to the two projects are vastly
different, according to my interpretation of the documentation before me. I am
furthermore of the view that although the two EIA processes were conducted in
parallel, two different processes were followed and the final EIA document
relating to the PFP project contained no new information as was the case with
the PBMR project. Both RODs were approved on the same date. I am of the view
that the Department misdirected itself in several respects in relation to these
two records of decision. In light of the above, I am of the view that the two
RODs related to separate and distinct projects and should have been treated as
such from the outset.
4.3 My interpretation of the advice provided to the Department by counsel is
that whilst the PBMR ROD was reviewed by the court, no review application was
brought in respect of the NECSA PFP ROD and it does not therefore follow that
because the PBMR ROD was successfully reviewed, the NECSA PFP ROD was also set
aside. The NECSA Pilot Fuel Plant ROD is therefore valid until such time that
the conditions imposed therein cannot be fulfilled. The setting aside of the
PBMR ROD, whilst significantly postponing the fulfilment of the conditions in
the NECSA Fuel Plant ROD, does not affect the latter's validity.
4.4 A number of the grounds of appeal raised by the various appellants deal
with the PBMR Project and not the PFP Project. Although some of the applicants
are of the view that the PBMR experiment is inextricably linked to the PFP
project and that neither process should be viewed in isolation, I am more
inclined to agree with the view that the implementation of the two projects
should not be subject to the approval of both RODs, inter alia, for the reasons
mentioned above. Although the projects might be related, it is clear that each
project could be implemented independently from the other and that they have
different implementation schedules. The geographical location, the physical
environment and the nature of the environmental impacts and risks of the two
projects also differ significantly. Furthermore one cannot ignore the fact that
two and a half years lapsed since the issuing of the RODs. The linking of the
RODs was a condition imposed on the applicants by the Director-General at the
time and, although there might have been good reasons for this decision then, I
could find no reason why this position should be maintained.
4.5 In relation to the dissatisfaction expressed with the EIA process and
particularly with the public participation process that was perceived to be
inadequate, I am of the view that the requirements for adequate public
participation were met in that all interested and affected parties were given a
reasonable opportunity to make their views known. This is evidenced by the
plethora of correspondence exchanged between the applicants, the appellants and
the Department.
4.6 The concerns about graphite fires appeared to be of concern as well. In
this regard, NECSA states that no feasible scenarios for such an occurrence
exist. Although NECSA does not totally dismiss the possibility of graphite
fires, it states that the consequences thereof do not include significant
radiological release incapable of adequate management and mitigation or
appreciable health risks to the surrounding population. The Department agrees
with this view.
4.7 Based on the information available to me, I am further of the view that
adequate measures are in place to ensure that safety and health aspects are
sufficiently catered for through the various phases of project evaluation and
approval. The bio-physical impacts on site are negligible seeing that all
activities will take place within existing buildings and infrastructure.
4.8 In terms of section 35(4) of the Environment Conservation Act, 1989 (Act
No 73 of 1989), after considering all the information before me, I have decided
to dismiss the appeals lodged against the decision to establish a fuel
manufacturing plant within the BEVA complex at Pelindaba. I am not convinced
that adequate facts were placed before me that warrant the setting aside of the
original Record of Decision of the Director-General. In terms of the powers
granted to me by this section, I have however decided to vary the original ROD
issued by the Director-General. The varied record of decision is annexed hereto
as Annexure A. The reasons, in addition to the issues mentioned above, for my
decision are, inter alia, as follows:
a. The final EIR (Rev 03) dated October 2002 indicated that the proposed
plant and the transportation of nuclear material does not pose a significant
environmental risk to the site for the fuel manufacturing plant and the
sub-region affected by the transportation of raw materials and fuel, and that
any risks that were present could be adequately mitigated.
b. The environmental impact assessment complies with the requirements of the
EIA regulations in force at the time when the decision was made. The
information submitted by the independent environmental consultants is deemed to
be sufficient and adequate to make an informed decision.
c. The public participation process that was followed, as part of the EIA
process, conformed to the requirements of the EIA regulations.
d. Negative environmental impacts associated with the project can be
sufficiently mitigated, provided the conditions contained in this record of
decision are implemented and adhered to.
e. No fatal flaws were identified during the EIA process and review of the
final EIR (Rev 03) dated October 2002.
f. The transportation of materials for the manufacturing of the PBMR fuel
and transportation of the manufactured fuel will be conducted within
well-established practices and is controlled by the National Nuclear Regulator
(NNR) on the basis of internationally accepted standards.
g. The PBMR fuel is to be manufactured at the Pelindaba site which is
already licensed for nuclear activities and is not a greenfield site.
h. In terms of the National Nuclear Regulator Act, 1999 (NNRA) (Act No 47 of
1999), all nuclear activities and their associated health and safety and
environmental impacts are subject to the authority of the National Nuclear
Regulator. In terms of section 20 of the NNRA, no such activities may be
undertaken unless under the authority of a nuclear installation licence granted
by the NNR. Each phase, construction, operation and final closure of all
aspects of this project is subject to NNR licensing and monitoring.
i. I am satisfied that this project will not have a significant detrimental
impact on the environment provided that the conditions under which this
activity is authorised are implemented.
j. Amongst other things, the time lapse between the issuing of the original
ROD and the finalisation of the appeals, warrants that the ROD be amended.
4.9 The reasons set out above are not exhaustive and should not be construed
as such and I reserve the right to provide comprehensive reasons for the
decision should this become necessary.
Marthinus van Schalkwyk, MP
Minister of Environmental Affairs and Tourism
Issued by: Ministry of Environmental Affairs and Tourism
26 January 2007
