Shocking charges against Eskom in respect of serious environmental offences at Kendal power station have come to light following an application for information made by the Centre for Environmental Rights (CER) in terms of the Promotion of Access to Information Act (PAIA).

The charges against Eskom are made in a so-called Compliance Notice issued on 10 December 2019 in terms of the National Environmental Management Act (NEMA) by the Department of Environment, Forestry and Fisheries (DEFF), headed by Minister Barbara Creecy.

The charges concern the alleged failure of Eskom’s Kendal power station to comply with the provisions of the law since 2015 in respect of its particulate emissions into the atmosphere. The PAIA application by CER on 3 February 2020 requested a copy of the Compliance Notice, as well as a range of other documents relating to maintenance and decommissioning plans at Kendal and other Eskom coal-fired power stations.

The Compliance Notice issued by DEFF demands that Eskom shut down two 600 MW generator units (Units 1 and 5) at Kendal power station within 30 days until further notice. Furthermore, the Notice requires Eskom to submit a “Plan of Action” compiled by a suitably qualified independent specialist indicating the measures that will be taken to ensure the remaining four units (Units 2, 3, 4 and 6) operate within the conditions of their atmospheric emission licenses.

The date for Eskom to meet the demands of the Compliance Notice was subsequently extended by DEFF at the request of Eskom from 10 January 2020 (i.e. 30 days from 10 December 2020) to 31 January 2020. In the meantime, Minister Barbara Creecy has since suspended the compliance action while she considers Eskom’s objections and application to oppose the Compliance Notice, a procedure allowed for in NEMA.

The Compliance Notice reveals Eskom’s claims that after a four month shut-down for maintenance and rectification work on the electrostatic precipitator (ESP) of Kendal Unit 1 on 2 November 2018, the unit had subsequently been operating with particulate emissions below the mandatory limit of 100 mg/Nm3 after being re-synchronised to the grid on 29 March 2019.

DEFF disputes this and says that, on the contrary, Kendal Unit 1 exceeded the mandatory limit for all the months following the four-month ESP repair and maintenance shut-down detailed above, reaching particulate emissions as high as 1312 mg/Nm3 after being re-synchronised subsequent to the shut-down.

DEFF goes on to say that data presented by Eskom in respect of Kendal Unit 5 is a “gross misrepresentation of the facts”, and that Eskom knowingly and deliberately applies wrong calculation methodology in its submissions which “puts the entire data presented and the claimed [emission] reductions in question”.

DEFF further concludes that “to date [10 December 2019] none of the commitments made/action plans submitted to the Department have resulted in any of the units [at Kendal] being in compliance with the 100 mg/Nm3 limit”, and that “the Department does not believe that the current action plans will result in compliance”.

To date, Eskom has still not provided the action plan called for by DEFF in its Compliance Notice. Unit 1 at Kendal was again taken down for ESP repairs in January/February 2020, and is now back in service, with Eskom still claiming that it is operating below its 100 mg/Nm3 limit for particulate emissions. Kendal Unit 5 remains down since January 2020 undergoing a major ESP upgrade and other opportunistic maintenance. Kendal Units 1, 2, 3 and 4 are currently running, with Unit 5 still undergoing major repairs, and Unit 6 due to return to service in May 2020.

In the meantime, the premature deaths and serious negative health impacts of particulate (PM2.5 and PM10) and toxic gas (NOx and SO2) emissions on residents, workers and poor communities resulting from the burning of coal at Kendal and other Eskom coal-fired power stations in Mpumalanga continue unabated.

A recent study commissioned by Eskom itself indicates that burning of coal in its power stations results in significant health impacts and more than 300 premature deaths a year. It is therefore clear that persons, families and communities in Mpumalanga and further afield suffer significant damages from Eskom’s pollution, including chronic illness, and the loss of life, ability to work and income.

The Compliance Notice issued by DEFF avers to a specific offence listed on Section 51(1)(g) of the Air Quality Act, namely that “a person is guilty of an offence if that person supplies false or misleading information to an air quality officer”. In this case, it appears that false and misleading information was allegedly submitted by Eskom to the DEFF Directorate: Air Quality Management.

The Compliance Notice also specifically lists and warns Eskom of a number of other offences that Eskom may be subject to. These include: failure to comply with the compliance notice; failure to comply with a condition or requirement of its atmospheric emission license; and emission of pollutants in concentrations above the limits specified in its atmospheric emission license.

The Compliance Notice further warns that a person convicted of an offence referred to in Section 51 of the Air Quality Act is liable to a fine not exceeding R10-million rand, or imprisonment for a period not exceeding ten years, or both the fine and imprisonment.

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