South Africa: Eskom Resists Enforcement While New Evidence On Deaths Caused By Kendal's Pollution Emerge

press release

Kendal power station, near the N12 highway, nestled between Johannesburg and eMalahleni, is located within the Highveld Priority Area - declared as such by government in 2007 due to the high levels of air pollution and resultant dangerous health impacts.

In a letter prepared by the Centre for Environmental Rights (CER), the organisations provided the Minister with copies of damning reports by U.S. experts Dr Ron Sahu and Dr Andy Gray, and urged her not to back down from the firm justifications for enforcement action against Eskom in the compliance notice issued to Eskom by the Department of Environment, Forestry and Fisheries (DEFF) in December 2019.

Government action against Eskom

The compliance notice for Kendal requires that Eskom:

cease with operations at units 1 and 5, pending permission from DEFF to recommence; and

in relation to units 2, 3, 4, and 6, submit a plan of action compiled by a suitably-qualified independent specialist, outlining the measures that will be implemented (with timeframes) to ensure that these units operate within the requirements of Kendal's atmospheric emission licence (AEL).

DEFF's stern notice records that Eskom's response to the July 2019 pre-compliance notice[1] contained "a gross misrepresentation of the facts"; was "not... a true reflection of what is occurring on site"; and that its "previous experience with Eskom's action plans is that it has failed to produce the required outcomes".[2]

Instead of complying, Eskom filed an objection to the compliance notice, which is currently suspended, pending the Minister's decision to confirm, modify or cancel it.[3]

Expert reports

Coal plant expert Dr Sahu reviewed Kendal's emission reports from April 2016 through March 2020. Key findings from his analysis include the following:

during this period, Kendal power station had 2,712 exceedances of its AEL limit of 100 mg/Nm3 for average daily particulate matter (PM); and

PM exceedances became three times more frequent starting in April 2018, and have never returned to pre-April 2018 frequencies. January 2020 had the most PM exceedances of any month (151).

Dr Sahu recommends that Kendal power station either shut down or that all units be rapidly retrofitted with properly-designed fabric filters to effectively control PM emissions and improve regional air quality and public health.

Air pollution research expert Dr Gray analysed Kendal's emissions data for the period January 2018 to October 2019 to model the air quality and health impacts from this power station. The main findings from this analysis include the following:

emissions from Kendal power station were responsible for between 67 and 144 early deaths in and around the Highveld Priority Area during 2018 (95% confidence interval), and between 61 and 130 early deaths between November 2018 and October 2019; and

in 2018, Kendal power station caused Sulphur dioxide (SO2) 10-minute average levels over four times the World Health Organisation (WHO)-recommended maximum at Hlanga Phala primary school, 11 km away. The power station also created ambient SO2 10-minute average levels over two times the WHO recommended maximum in the township of Ogies.

Confirm the compliance notice, activists ask the Minister

In making her decision to confirm, modify, or cancel Kendal's compliance notice, the Minister must give effect to the relevant provisions in the Constitution of the Republic of South Africa, the National Environmental Management Act, and the Air Quality Act, among other legislation.

"As the Department recognises, there is no reason to trust Eskom's promises. Eskom is not above the law. Holding Eskom to account for their rampant pollution is a matter of life and death for those of us living on the Highveld. We call upon the Minister to prove that she and her Department will stand up for people's rights. The compliance notice must be enforced," says Thomas Mnguni, Community Campaigner at groundWork.

Promise Mabilo, Coordinator of Vukani Environmental Movement points out: "The pollution from Kendal, and the way it affects our lungs and hearts, makes those of us who live in and around eMalahleni even more vulnerable to the coronavirus. We need government to defend our Constitutional rights. That is exactly why we have brought the "Deadly Air case."

Timothy Lloyd, attorney at the CER, states that "there is not only a Constitutional duty imposed upon the Minister to protect people in the Highveld from Kendal's harmful emissions, but there is also a heightened duty imposed by the Constitution to effectively protect children in the area, who are more vulnerable to the health impacts caused by air pollution, There must be consequences for Kendal power station's blatant non-compliance with its AEL."

Given the Minister's legal obligations, the expert evidence, and the dire health impacts of Kendal's unlawful pollution, the Minister is obliged, at the very least, to confirm the compliance notice. This means that all of Kendal's non-compliant units should be shut down, and that any plan of action to ensure that Eskom will comply with its AEL must be prepared or reviewed by truly independent specialists.

NOTES:

[1] DEFF has refused to make this available following a Promotion of Access to Information Act request.

[2] In response to media about the compliance notice, Eskom has claimed that:

they have corrected what the DEFF describes as the "gross misrepresentation of the facts";

unit 1 has been in compliance since February 2020; and

Although Eskom was directed to use an independent specialist to develop a "recovery plan", it has subsequently proposed - which proposal it says DEFF has accepted - that Eskom itself develop the plan, and that specialists from the Electric Power Research Institute (EPRI) will review Eskom's plan. "EPRI was appointed at the beginning of this year, and the report is due to be submitted to the authorities toward the end of May 2020". On 13 April 2019, Eskom publicised that its Chief Operating Officer, Jan Oberholzer, has been appointed onto EPRI's board. This appointment, according to Eskom, "offers the company a position to influence EPRI's strategic direction and work programme". In these circumstances, presenting EPRI as an independent specialist, is highly inappropriate, at best.

[3] DEFF also refused CER's request under the Promotion of Access to Information Act for a copy of Eskom's objections. This is undemocratic withholding of information that is in the public interest.

CONTACTS:

Lerato Balendran, CER Head of Communications, lbalendran@cer.org; +27790717442;

Tsepang Molefe, groundWork Media Campaigner, media@groundwork.org.za, +27649009963.

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