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Eskom served with summons for prosecution on air pollution 

Minister of environment, forestry and fisheries to prosecute Eskom over Kendal Power Station pollution.
Eskom's internal investigation highlights false and misleading classification of regular, ongoing and extended atmospheric emission. Image: Waldo Swiegers, Bloomberg

Minister of Environment, Forestry and Fisheries Barbara Creecy has notified Eskom of the decision by the senior public prosecutor to pursue criminal prosecution in respect of air pollution by Eskom’s Kendal Power Station.

This includes, amongst others, a charge of supplying false and misleading information in reports prepared by management at Kendal Power Station to an Air Quality Officer, which is a criminal offence listed in Section 51(1)(g) of the Air Quality Act. The summons orders Eskom representatives to appear in the Witbank Regional Court on January 28, 2021.

Internal investigation

This follows an internal investigation and report prepared by Eskom audit and forensic (A&F) into air quality compliance and reporting, initiated by Eskom CEO Andre de Ruyter on May 17, 2020, following investigations and articles by EE Business Intelligence on these matters. 

The Eskom investigation report finds that “allegations made by media personalities are mainly proven true”, and that Eskom Generation management should take heed of the reality of Kendal’s poor emissions performance.

“The department of environment, forestry and fisheries (DEFF) has yet to receive the full report on Eskom’s internal investigation and findings in respect of air quality compliance and reporting at Kendal Power Station. A thorough and detailed analysis of the full report is needed in order for the Department to understand the implications of its findings and how these may affect the action currently being taken against the power station”, commented Minister Creecy.

The Eskom internal investigation report highlights the false and misleading classification of regular, ongoing and extended atmospheric emission contraventions above the statutory limits as “Section 30” exceedances in reports to the regulatory authorities.

A Section 30 exceedance, however, refers to a short-term exceedance that may occur in an incident or emergency situation, such as an unexpected, sudden and uncontrolled release of a hazardous substance, including from a major emission, fire or explosion.

Continued operating and reporting irregularities

Following extended periods of non-compliance of all six generation units at Kendal in 2018 and 2019, the DEFF finally issued a Compliance Notice to Eskom on December 10, 2019. The notice essentially compelled Eskom to cease operation of two units, and ordered corrective measures to be undertaken, over time, in order to ensure that operations are undertaken in compliance with the Kendal’s Atmospheric Emissions License (AEL).  

“However, and despite the above, some of Eskom’s units at this power station have continued to operate in non-compliance, which has resulted in the Department issuing a further warning on 17 November 2020”, said Minister Creecy.

Upon notification to Eskom and Kendal Power Station of the wrong classification of contraventions as Section 30 exceedances in its reports to the regulatory authorities, the reports were modified and subsequently resubmitted in March 2020.

However, the Eskom investigator found that the significant misreporting and misleading reporting identified in the original reports was perpetuated in the resubmitted reports. The investigator concluded that this was a continuation of a failure to apply a “duty of care” by Kendal.

Failure of duty of care

The Eskom investigator found that exceedances of particulate matter atmospheric emissions of up to 10 times the allowable limit of 100 mg/Nm3 occurred consistently for extended periods over the past two years at Kendal Power Station, and that this was having a very significant impact on people and the environment.

For the 12-month period from 1 April 2019 to 31 March 2020, the Eskom investigator identified continuous and almost daily particulate matter emission exceedances by all six generation units at Kendal Power Station of up to 13 times the statutory particulate matter emission limit. 

Of the 1 308 days of exceedances by the six units during this 12-month period, the investigator found that 325 days were reported as grace days, with the balance of 983 days reported as Section 30 incidents. The anomaly is that none of the exceedances were reported as legal contraventions to the regulatory authorities.

The investigator pointed out that this was a failure of the duty of care required in Section 28 of the National Environmental Management Act (NEMA), and therefore constituted a breach of Clause 4.2 of Kendal’s Atmospheric Emissions Licence (AEL). Kendal would therefore be subject to sanctions set out in Section 28 of NEMA.

The investigator concluded that: “The current state of plant operation and the continuous exceedance above the emission limit does not show any duty of care, nor care for the people and the environment, nor support of Eskom’s values of zero harm and integrity.”

Incompetence, negligence or deliberate misrepresentation?

One of the stated intentions of the investigation included determining whether any identified false and misleading information provided by Eskom to the regulatory authorities and the public was the result of incompetence, negligence or deliberate misrepresentation by the utility and its officials.

Eskom has an environmental Centre of Excellence (CoE) staffed by qualified, experienced persons who have worked at Eskom for years. The Eskom investigator reported that “together with continuous communication and training, there should not be an excuse for any relevant person to not be able understand the identification and reporting of exceedances”. There can thus be no suggestion of incompetence.

The investigation report does, however, appear to find evidence of negligence, perhaps even criminal negligence, stating that “management continued to allow this vein of reporting without adequate measures to correct it”, and that “there should have been generation and environmental management intervention in terms of interrogating the continuous exceedances at the levels reported and which were not identified, classed or reported as contraventions”.

However, it will be for the courts to decide whether there has been any deliberate criminal misrepresentation of contraventions in reports to the regulatory authorities and to the public by Eskom officials, and/or through specific actions and/or inactions by management and officials at Eskom Megawatt Park and Kendal Power Station.

A legal view

“The findings and conclusions in this Eskom internal risk audit report are extremely disconcerting, coming from an organ of state with a duty of care toward the public, and an obligation to protect people’s constitutional rights”, comments Timothy Lloyd, an attorney and specialist in environmental law at the Centre for Environmental Rights. 

“This is especially so in light of an April 2020 expert report which estimated that Kendal’s air pollution during this non-compliance period was responsible for between 67 and 144 early deaths in 2018, and 61 and 130 early deaths between November 2018 and October 2019. 

“Of equal concern is that this report is an illustration of firstly, an unlawful practice of deliberately concealing contraventions which are causing harm to people, and secondly, a wider problem of continuous licence contraventions across Eskom’s coal-fired power stations, 12 of which are in the Mpumalanga Highveld. 

“Eskom’s status as a ‘perpetual contravener’ of its environmental licences is well documented in government’s own annual enforcement and compliance reports, and in independent expert analysis exposing thousands of exceedances of the air pollution limits across its fleet of power stations – with little consequence to date.

“This Eskom risk audit report not only justifies government’s compliance enforcement action against Kendal Power Station earlier this year, but, the evidence of blatant false reporting, among other findings, clearly warrants criminal sanctions as provided for in our law. Furthermore, government authorities must urgently investigate the state of air quality compliance at Eskom’s other coal-fired power stations, including the reporting practices at each station. The rule of law must be upheld, without exception”, concludes Lloyd.

Eskom response

In response to the internal Eskom investigation report, CEO André de Ruyter indicated that Eskom has conducted a thorough investigation into allegations of non-compliance with emission standards at its Kendal Power Station. 

Eskom’s Bruce Moyo, general manager of a cluster of power stations that include Kendal, provided EE Business Intelligence with details of an emissions reduction strategy roadmap and action plan to return the six generation units at Kendal to compliance by end July 2021.

“We have launched a comprehensive recovery programme, overseen by a high-level steering committee, to address the root causes of high emissions, and have already seen some improvements. We will continue to work hard to ensure that we can improve on our emissions at our coal-fired power stations to ensure that we reduce our impact on the environment and on human health,” said De Ruyter.

© Copyright 2020 – EE Business Intelligence (Pty) Ltd. All rights reserved. This article may not be published without the written permission of EE Business Intelligence.

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One branch of the state prosecutes another branch of the state for the way they abuse citizens with pollution, while the prosecuting party abuses the same citizen further by expecting him to finance the operating expenses of the polluter, the prosecuting party and the lawyers.

The voter is basically polluting himself and then prosecuting himself for doing so, while he funds the entire farce out of his social grant.

The solution is to simply get rid of the whole mess and to privatise everything.

This ANC government is like a birthday party at a creche where the teachers and parents are absent, total chaos.

Spot on. ANC fools leading ANC bigger fools wasting taxpayers money.ANC= an insane delusional circus devoid from all reality. Everything they touch turn to dust in Africa style.What a pathetic joke.Just when you think the farce cannot get any worse.

Agree, but I do think there is some PR spin going in here; Measuredly we are being told how bad Eskom is on various platform until we are all in agreement (brainwashed) that it’s time for a nuclear deal…

Kendal, as the licensed legal entity, may be guilty of a continuing failure to apply a duty of care. It’s possible that there are actual warm-blooded beings who are, also legally, guilty of a continuing failure to apply a duty of care. The moral threshold for guilt is much lower. What are the names of these beings?

No ways. Why look for a fall guy, somewhere in middle management? The country badly needed the power of we would have had more load shedding. Prosecute the ANC for gross negligence in not building power stations fast enough… Some middle management guy, just following orders from the top, does not deserve to end his career because of the gross engineering ineptitude of our ruling elite….

Simple. Shut the whole of Kendal down. Retrain workers to install PV panels and wind turbines. Case closed.

Dougalan,

Although Wind and PV must be part of the mix, exactly how does Wind and PV help at night and/or when the wind does not blow? (and heaven forbid, at the same time)

This suggestion of replacing base load generation with Wind and Solar seems a bit illogical to me, but I am very interested to understand how it can work. Care to elaborate?

Fair comment, although the CSIR did provide evidence that the geological distribution of windfarms in South Africa enables it to provide base load. Your comment on solar is valid. This is where gas enters the scene. Gas turbines are cheaper to run that coal plants, and can be started up at short notice as needed in the evening. Gas is a crucial element in the bigger green energy scheme.

Coal has become too expensive in running cost as well as pollution and greenhouse emissions. Coal is dead.

Many factories do not operate at night so baseload requirement is lower. As Sensei has noted, gas turbines are also able to start at short notice. Then, finally it is interesting to note that battery storage is fast on the increase worldwide due to ever-decreasing costs. In Hornsdale, Australia, where Elon Musk completed a battery storage facility a couple of years back, it has been so successful that they are now building one twice as large. China and America are also building large battery storage units. Maybe one day we will wake up too.

Total farce. A bit like the zondo comission and ace not standing down for corruption charges.

Gee, don’t know why we bother.

They said the same about South Australia. Endless wind and sun. Unfortunately this turned out to be false. For days on end the wind does not blow and rainless does not mean cloudless. The 1.4GW wind capacity produces often less than 50MW. South Australia has to import COAL power from neighbouring states. The much touted giant Hornsdale battery is there to ensure that the grid does not fall over during the transition. It powers South Australia for a few minutes.

The only solution is to privatise the mess and let the market sort it out. If solar and wind are so marvellous, cheap and readily available, then market forces will oust coal. To shut down Kendall on a whim is a recipe for disaster. No responsible sane person should recommend this.

The pollution problem is due to the facilities being run by the ANC. Under socialism or communism there is no accountability. The most polluted places/ biggest environmental disasters on earth are in the ex Soviet Union e.g. Norisk, Chernobyl, Karabash and Kyshtym. In Australia there are strict environmental regulations and privatised coal fired power stations such as Hazelwood produce electricity for about AUD30 / MWh yet still meet the stringent environmental protocols.

If the Hornsdale battery as so bad, as claimed in the above post, it’s certainly strange that Australia has spent good money on increasing its size. See direct quote below from Aus mag.

‘Neoen’s Hornsdale Power Reserve‘s (HPR) 50%, $71 million storage expansion is complete. HPR, also known as the Tesla Big Battery, is now 50 MW/64.5 MWh bigger, with an upgraded capacity of 150 MW.’

‘South Australian Minister for Energy and Mining was similarly buoyed, noting that the expansion was a “demonstration” of “how batteries can provide system strength similar to traditional power generation.”

Aagh — shut it down — SA do no need Eskom — we generate our own power!!!

Cabinet resolved in 1998 already that new power stations must be built with private investor funding. They undertook to pave the way for this by legislation, but because the ruling party is ruled by trade unions, nothing came from this intentions. All they did since then was to appoint incompetent people in Eskom management and built two disfunctional coal fired stations. Due to mismanagement, which eventually resulted in load shedding, competent power station engineers were refused shutdowns for maintenance and upgrades. I am certain there are people at Kendal who knew this bomb was going to explode, but what do you do if you are being bullied by top management who do not care and are stealing the money that should have been used to fix this problems. They are not allowed to fix it. They are not even allowed to complain about the rubbish coal they receive from the “preferred” suppliers. We can not at this moment live without Eskom, but I am afraid De Ruyter has not even touched the top layer of the mess this organisation is in.I hope he has the staying power to dig deeper.

@auretha: It occurred to me how wonderful it would be if Ramaposer were to be inspired by the likes of De Ruyter and Van Coller in systematically going about tackling corruption in his little organisation of comrades. I know – it will never happen (like Father Xmas bringing me my Ferrari next month). Nice thought however.

No, the taxpayer was hit with the summons and will stump up for the fine too. Bastards!

People seem to miss the point that it was an internal Eskom report that highlighted the most of the problem areas.

Kudos to them for that level of transparency.

All of the comments so far ignore the number of people killed by the air pollution , why are the responsible managers not being charged with genocide? The column of fly ash going up the Kendal stacks is 100% opaque, dust so thick that you can’t see through it. The Witbank area is one of the worst pollution areas in the world.

End of comments.

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