7 December 2020 at 11:39 am
Last week, the Department of Environment, Forestry & Fisheries (DEFF) confirmed that the National Prosecuting Authority has resolved to proceed with the criminal prosecution of major polluter and state-owned entity Eskom, for criminal violations of air pollution laws at its Kendal coal power station.
Kendal power station is situated in the heavily polluted Mpumalanga Highveld, 40km west of Emalahleni. It was built in 1982 with installed capacity of 4 116MW, and is the largest indirect dry-cooled power station in the world.
According to media reports, the four criminal charges relate to violations of the air emissions permit limits for Kendal, for significant pollution of the environment, and for supplying false and/or misleading information to authorities.
The campaign to compel Eskom to comply with air pollution standards and laws
The prosecution of Eskom for violations at Kendal has not come out of the blue. Civil society organisations have been working for more than 8 years to end the impunity with which Eskom has been polluting the air – particularly in the Mpumalanga Highveld, where most of Eskom’s 15 power stations are situated.
Much of this fight has been aimed at forcing Eskom to comply with the health-based minimum emission standards for air pollution – standards pushed for by civil society since 1994 – that came into effect in 2010. Eskom has spent the better part of the last decade applying for, and receiving, permission from government to delay its compliance with these standards – despite vigorous and persistent resistance from civil society organisations, backed up by scientific evidence of the health impacts of Eskom’s pollution and its unjustifiable delays to comply. As recently as February 2020, civil society organisations again filed legal objections to Eskom’s latest attempt to postpone compliance from these standards.
Even now, SA’s emission standards are more lenient than those in China and India.
Eskom is also implicated in the Deadly Air case launched in June 2019, in which environmental justice groups groundWork and Vukani Environmental Justice Movement in Action are asking the court to find the toxic air quality on the Mpumalanga Highveld to be in violation of the Constitutional right to a healthy environment. That case, which also asks the court to order government to promulgate regulations to improve the air quality, will be heard in the Pretoria High Court in May 2021.
Health impacts of Eskom’s toxic pollution
Pollution from Eskom’s coal plants is truly deadly. Human exposure to toxic chemical compounds emitted by the coal plants, such as sulphur dioxide, heavy metals like mercury, and fine particulate matter, results in chronic respiratory illnesses such as asthma, bronchitis, and lung cancer, and contributes to strokes, heart attacks, birth defects, and premature death. In the Deadly Air case, U.S. air quality expert Dr Andrew Gray estimates, in the court papers, that emissions from 14 facilities (operated by Eskom and Sasol) caused between 305 and 650 early deaths in and around the Mpumalanga Highveld in 2016.
In September 2017, UK air quality and health expert Dr Mike Holland presented a report to Parliament that estimated that air pollution from Eskom’s coal-fired power stations kills more than 2,200 people in South Africa every year, and causes thousands of cases of bronchitis and asthma in adults and children annually. This costs the country more than R30 billion annually, through hospital admissions and lost working days.
Serial violations at Eskom power stations
In February 2019, the Life After Coal campaign submitted a detailed report to authorities showing that pollution from nearly all of Eskom’s coal-fired power plants persistently and significantly exceeded the air pollution limits in its licences. U.S. coal plant expert Dr Ranajit Sahu found that, over a 21 month period until December 2017, Eskom’s coal power plants exceeded its already-weak licence conditions close to 3,200 times. The exceedances relate to all three regulated pollutants for coal plants, namely sulphur dioxide (SO2), oxides of nitrogen (NOx), and particulate matter (PM) – including soot and ash.
Kendal Coal Power Station
Kendal power station, situated close to the N12 from Johannesburg to Emalahleni, became the epicentre of the Eskom air pollution battle during 2019, when its pollution appeared to worsen dramatically, compelling many motorists and local residents to post photographs of its smoking stacks on social media. It was reported in a government document in November 2018 that motorists had complained about coal ash from Kendal power station “disposed on their vehicles”.
Kendal had been in DEFF Environmental Management Inspectors’ sights for some time before that. In December 2015, DEFF inspectors found a long list of air pollution violations, and issued a pre-compliance notice to Eskom in October 2016. Upon receiving representations from Eskom, DEFF accepted “undertakings” from Eskom to address the problems. In November 2018, DEFF issued another pre-compliance notice; again, Eskom made representations and submitted an action plan to reduce emissions in January 2019.
In May 2019, DEFF Inspectors commenced a criminal investigation into violations at Kendal.
In July 2019, Eskom conceded to Business Day that pollution reduction equipment at Kendal had not been working properly since early 2018. CER started writing to the Environment Minister and DEFF on behalf of groundWork, Earthlife Africa Johannesburg and Vukani Environmental Justice Movement in Action, demanding immediate enforcement action on Kendal’s pollution. Initial correspondence highlighted that the emissions at Kendal’s unit 5 were 12 to 13 times the PM limit. (Also see this Twitter thread about Kendal’s pollution in July-August 2019, appealing to Environment Minister Creecy for immediate enforcement action. This thread shows some of the many exceedances at Kendal reported in Eskom’s own reports to authorities.)
On 30 November 2019, Minister Creecy advised in correspondence that various enforcement actions were underway at Kendal. In late December 2019, DEFF issued a compliance notice to Eskom, instructing it to cease the operation of units 1 and 5 and to institute urgent maintenance measures. Eskom submitted an objection to this Compliance Notice to the Minister in January 2020.
In April and May 2020, groundWork and Vukani Environmental Justice Movement in Action objected to Eskom’s attempt to avoid a compliance notice being issued to Kendal, this time presenting detailed reports by U.S. experts of violations and health impacts to Environment Minister Barbara Creecy. These reports showed 2,712 exceedances of the PM limit in Kendal’s licence from April 2016 to March 2020.
It also showed that Kendal’s air pollution was estimated to cause between 67 and 144 early deaths in 2018 (95% confidence interval), and between 61 and 130 early deaths between November 2018 and October 2019.
groundWork and Vukani Environmental Justice Movement emphasised that there is not only a Constitutional duty imposed upon the Minister to protect people in the Highveld from Kendal’s emissions, but there is also a heightened duty imposed by the Constitution to protect children in the area, who are more vulnerable to the health impacts caused by air pollution.
In May 2020, Minister Creecy rightly rejected Eskom’s objection and largely confirmed the compliance notice issued to Eskom in December 2019 by DEFF in relation to Kendal.
Energy expert Chris Yelland continued to press Eskom about what appeared to be discrepancies in the compliance reporting by Eskom. This prompted an internal forensic investigation by Eskom to establish the extent and duration of under-reporting of exceedances at Kendal power station. On 29 November 2020, Yelland published the key findings and conclusions of this internal investigation, obtained from Eskom. DEFF confirmed that a criminal summons had been served on Eskom on 27 November 2020, notifying it of the decision by the senior public prosecutor to pursue a criminal prosecution in respect of air pollution by Eskom’s Kendal Power Station, as well as for supplying false and/or misleading information to authorities.
What does the criminal prosecution mean for Eskom?
If convicted of any of the charges, in terms of the Air Quality Act, Eskom could be liable for a fine not exceeding R5 million rand. If convicted of a contravention of the National Environmental Management Act, Eskom could be liable to a fine not exceeding R10 million.
However, NEMA also provides for various additional consequences of such a conviction under AQA and NEMA. One of those relates to extended criminal liability for directors, managers, agents and employees of Eskom, under certain circumstances, which could expose individuals to the same fines, or even imprisonment for up to 10 years in certain instances (section 34(7)).
Under NEMA’s section 34(1), if the court finds that Eskom has, by its offences, caused loss or damage to any organ of state or other person, including the cost to be incurred by an organ of state in rehabilitating the environment or preventing damage to the environment, the court may give judgement against Eskom for the amount of the loss or damage caused. Under section 34(3), the court may also assess any costs “saved” by Eskom (such as not installing equipment to monitor or reduce pollution), and may award damages or compensation, and order remedial measures to be undertaken by Eskom. A criminal conviction at Kendal may also strengthen the prospects of significant civil damages claims against Eskom, including in the form of a class action, for the loss of life, ill health and medical costs, and loss of income associated with pollution from its coal power stations.
It also noteworthy that NEMA’s section 34C empowers a court in convicting an entity for an offence to withdraw any permit or other authorisation issued in terms of NEMA or a specific environmental management Act, such as the AQA.
The alleged criminal activity at Kendal may well not be isolated to that coal power station. In particular, the underreporting of exceedances, hiding pollution far worse than Eskom has presented to authorities, may well be part of a wider practice. Many of Eskom’s stations have featured in DEFF’s National Environmental Compliance & Enforcement Reports in the last 12 years, and criminal prosecutions for violations at other stations may be next.
This action by Environmental Management Inspectors in DEFF and the National Prosecuting Authority should be a strong signal to decision-makers at Eskom and in government that Eskom’s violations have become so egregious, and the illegal pollution from its coal operations so dangerous to human health, that neither its monopoly status nor its status as state-owned entity can protect it, or its board or management, from prosecution.