March 22, 2014 at 1:40 pm
In December 2013, national electricity utility Eskom applied for postponement of their compliance with air pollution minimum emissions standards for 16 of their power stations. At the same time, Eskom also applied for variation of the conditions of the air quality licences for 16 power stations.
The Centre for Environmental Rights, representing groundWork, Earthlife Africa Johannesburg (ELA), the Vaal Environmental Justice Alliance, and the following community groups: Middelburg Environmental Justice Network, Greater Middelburg Residents’ Association, Guqa Community Service Centre, Southern Africa Green Revolutionary Council, Greater Delmas Civic Movement, Highveld Environmental Justice Network, Wonderfontein Resettlement Forum, Mpumalanga Youth Against Climate Change, Outrageous Courage Youth and and Schoongesicht Community Movement, submitted detailed objections to Eskom’s submissions.
Here is a summary of the legal aspects of these applications and our clients’ objection:
- The primary purpose of the National Environmental Management: Air Quality Act, 2004 (AQA) is to give effect to the Constitutional right to an environment that is not harmful to health or wellbeing by improving ambient air quality.
- AQA establishes a comprehensive licensing regime for all activities that impact on air quality. In 2010, the Minister published standards for industrial emissions, including those from coal-fired power stations. Licences issued may only be stricter than those standards.
- In terms of those emissions standards, Eskom’s power stations must meet existing plant standards by 1 April 2015, and stricter new plant standards by 1 April 2020. This delayed implementation is specifically to allow older plants more time to come into compliance.
- Eskom has been aware that they would have to meet stricter emissions standards since AQA came into effect in 2005. It was party to 5 years of what the Department of Environmental Affairs has called “elaborate” consultation on the standards, and had certainty of the standards since 2010.
- Eskom first indicated its intention to apply for exemptions from the standards for 16 of its power plants, 14 of which are coal-fired, in June 2013. In December 2013, Eskom decided to replace those with applications for postponement of the standards (it indicated its intention to apply for “rolling postponements” – if granted, effectively exemptions) coupled with applications for variations of the conditions of its licences to allow it to emit more than the licences currently allow. To this end, Eskom submitted more than 80 documents to be reviewed by affected parties within 37 calendar days.
- All of Eskom’s coal-fired power stations fall within areas declared as air pollution priority areas because of existing air quality problems, at least partly because of Eskom’s emissions. 12 of these fall within the Highveld Priority Area.
- Under AQA, postponement from the standards may only be granted for 5 years, and only:
- if ambient air quality complies with standards and will not be compromised by the postponement; and
- the applicant can demonstrate that current and proposed emissions are not and will not be bad for the environment.
- In the objections prepared for our clients, the postponement applications are opposed on the following grounds:
- there are significant errors, inaccuracies and inconsistencies in Eskom’s modelling and other documents;
- Eskom has widely over-estimated the costs of compliance with the standards;
- Eskom does not meet the requirements for a postponement as set out in AQA, the 2012 National Framework for Air Quality Management in the Republic of South Africa, and the Atmospheric Impact Report Regulations;
- granting the applications will permit increased pollution in declared Priority Areas, which is contrary to the aim of the declaration of such areas;
- granting the applications would have a significant detrimental impact on human health, and violate s.24 of the Constitution of the Republic of South Africa, 1996, AQA, and other air quality management laws and policies of South Africa;
- granting the applications means that the public will continue to bear the brunt of Eskom’s poor planning and non-compliance with the law, with health impacts worsening instead of improving. Eskom considers the installation of emission abatement processes to be too costly, but the future effects on health, the environment and water resources as a result of coal fired power stations and coal mining may be extremely costly for the country as a whole;
- there is no legal basis for Eskom’s offset proposal, nor sufficient information to evaluate it; and
- as a result of the above, a decision made by the National Air Quality Officer (NAQO) – as the relevant decision-maker – to grant the applications for postponement would be reviewable under the Promotion of Administrative Justice Act, 2000.
Eskom’s applications can be accessed here – scroll down to “Eskom’s minimum emission standards exemption/postponement application: December 2013”.
Below you can download the civil society and community groups’ objection, plus annexures, prepared on their behalf by the Centre for Environmental Rights:
- Request to NAQO and Minister to require Eskom: to amend the Plan of Study; to conduct detailed health risk assessments; and to provide additional time for comment 8 Oct 2013
- Objection to Eskom’s applications
- Annexure 1: CER submission on variation of Kriel AEL 11 Dec 2013
- Annexure 2: CER additional submission on variation of Kriel AEL 16 Jan 2014
- Annexure 3: CER submissions on Eskom BID 19 July 2013
- Annexure 4: CER submissions on Plan of Study 23 August 2013
- Annexure 5: Health impacts of Eskom applications 2014
- Annexure 6: Summary of current annual pollutant emission rates, estimated annual average stack concentrations and Eskom’s requested emission limits
- Annexure 7: Eskom Pre-feasibility study Section 1 Executive Summary
- Annexure 8: RoD Medupi Sept 2006
- Objection to Eskom’s variation applications
- CER responses to Issues and Response Report
If you are not able to access the objection to Eskom’s applications above, try this link.
On about 29 May 2014, the NAQO addressed correspondence to Eskom in relation to the postponement applications for each of its stations, indicating that the applications would not be further processed unless additional information (including in relation to health impacts) was provided. The correspondence regarding the coal-fired power stations is below:
In August 2014, the CER received copies of the additional documents provided by Eskom to the NAQO further to the above request. These documents can be downloaded below:
- Acacia – Additional Information
- Arnot – Additional Information
- Camden – Additional Information
- Duvha – Additional Information
- Grootvlei – Additional Information
- Hendrina – Additional Information
- Kendal – Additional Information
- Komati – Additional Information
- Kriel – Additional Information
- Lethabo – Additional Information
- Majuba – Additional Information
- Matimba – Additional Information
- Matla – Additional Information
- Medupi – Additional Information
- Port Rex – Additional Information
- Tutuka – Additional Information
On 16 October 2014, the CER submitted additional objections to Eskom’s applications to ensure that the decision-makers are in possession of relevant information, as required by the Promotion of Administrative Justice Act, 2000. As appears from these submissions, Eskom largely failed to provide additional information regarding health impacts and regarding its future compliance with the MES – despite being specifically required to so do by the DEA. Such health information as is available (both from the study contained in the February 2014 submissions and from Eskom’s own studies) demonstrates that Eskom’s applications will have significant and severe health impacts, with enormous economic costs. Eskom’s studies were made available by the CER to the NAQO in June 2014.
As set out in the objections, the information that Eskom provided revealed that:
- elevated daily average SO2 and PM10 concentrations occur frequently throughout the region in the vicinity of Eskom’s power stations, and throughout the year; and that
- these concentrations are frequently several times higher than the ambient air quality standards and/or World Health Organisation guideline value, with consequent health impacts.
It was also argued in the objections that, since Eskom is by far the largest source of SO2 emissions in the region, the implication is that its emissions are mainly responsible for the high ambient concentrations and these health impacts. In addition, the occurrence of high ambient particulate matter (PM) concentrations in the summer months contradicts Eskom’s argument that domestic solid fuel burning is the main source of PM, and that Eskom is only a very minor contributor to ambient PM. For these and the other reasons, the submissions reiterate that Eskom’s applications must be refused.
The outcome of Eskom’s applications was announced on 24 February 2015. Here are:
- the Minister’s media statement;
- the NAQO’s presentation of these outcomes in Parliament; and
- the MES postponement outcome summary prepared by the DEA.
The outcomes of the applications, per station, are as follows:
The CER has addressed three letters to the NAQO on our clients’ behalf – on 2 and 7 March 2015 and on 7 April 2015. In the first, we, requested reasons for the postponement decisions (as well as copies of all of the other MES outcomes). In the second, we asked for copies of the copies of the “compliance roadmaps” (to which reference has been made in the press) for each of the facilities granted postponement.
In the third, the CER sought urgent clarity in relation to various aspects of the NAQO’s decisions; including as to postponement periods and postponement limits.
On 8 April 2016 – more than a year after these letters were sent – we received the following responses from the NAQO: in the first, she sets out her reasons for the postponement decisions; in the second, she provides copies of the compliance roadmaps for the facilities that sought postponement; and in the third, she responds to our request for clarification regarding the postponement decisions.
Following the postponement outcomes, Eskom’s AELs were varied. On 30 March 2015, the CER addressed a letter to the relevant licensing authorities, pointing out that the licensing authorities were required to take all relevant matters into account and make variation decisions consistent with the national environmental management principles, the objectives of applicable air quality management plans, and any ambient air quality or emission standards determined in terms of AQA. As indicated in this correspondence, every one of Eskom’s coal-fired power stations is in a priority area, and, in order for licensing authorities’ decisions to “be consistent with” priority area air quality management plans, authorities should set emission standards to ensure that priority areas come into compliance with ambient air quality standards as soon as possible. Given the significant health impacts of Eskom’s operations, we called upon the licensing authorities to impose stricter emission limits in the AELs than those indicated in the NAQO’s postponement decisions; and stated that the AELs should at least contain the MES from 1 April 2015. We also requested that: the compliance roadmaps referred to in the press by the NAQO and the Minister be incorporated into the AELs in order to ensure compliance with the emission standards; and that the AELs incorporate the decommissioning dates reflected in the postponement decisions. We also requested written reasons for the licensing authorities’ decisions.
The following varied AELs were received by the CER during April 2014. All of the AELs incorporated the NAQO’s postponement decisions:
After receiving NAQO’s response, on 25 April 2016, the CER addressed a letter to Eskom,
- to ascertain each coal-fired power station’s (CFPS) latest plans to ensure compliance with:
- the emission standards in the relevant atmospheric emission licences (AELs),
- and in relation to periods not covered by the current AELs, at least the minimum emission standards (MES);
- to request copies of these compliance plans and the latest decommissioning shcdule and plans for each CFPS; and
- to ascertain the decision-making timelines and mechanisms within Eskom’s board to ensure compliance with AELs and MES, and the decommissioning schedules and plans.
For queries, contact attorneys Robyn Hugo (firstname.lastname@example.org) or Sylvia Kamanja (email@example.com).