Centre for Environmental Rights – Advancing Environmental Rights in South Africa

Wednesday, 12 February 2014 was the final day of 37 calendar days given to the public to comment on national electricity utility Eskom’s applications 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:

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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.
7. Under AQA, postponement from the standards may only be granted for 5 years, and only:
   1. if ambient air quality complies with standards and will not be compromised by the postponement; and
   2. the applicant can demonstrate that current and proposed emissions are not and will not be bad for the environment.
8. In the objections prepared for our clients, the postponement applications are opposed on the following grounds:
   1. there are significant errors, inaccuracies and inconsistencies in Eskom’s modelling and other documents;
   2. Eskom has widely over-estimated the costs of compliance with the standards;
   3. 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;
   4. granting the applications will permit increased pollution in declared Priority Areas, which is contrary to the aim of the declaration of such areas;
   5. 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;
   6. 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;
   7. there is no legal basis for Eskom’s offset proposal, nor sufficient information to evaluate it; and
   8. as a result of the above, a decision made by the National Air Quality Officer 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:

• 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

If you are not able to access the objection to Eskom’s applications above, try this link

For queries about this matter, contact attorneys Robyn Hugo ([email protected]) or Sylvia Kamanja ([email protected]).