In 2005 the environmental affairs department began talking with affected parties about its plans to create minimum emissions standards for industries. In 2009 South Africa committed at the Copenhagen climate change conference to lower emissions of carbon dioxide by 42% by 2025. In 2010 the minimum standards were passed into law.
Eskom's fleet of coal power stations have been breaking the law since then, but by 2020 all their plants have to comply with the new requirements.
Eskom asked last Friday to be exempt from the minimum emission standard for 16 of its plants. Most are old and will reach the end of their lives in the 2020s, but the parastatal has also asked for an exemption for its new megaplant at Medupi. When the World Bank gave a loan for this, it specifically said that it would have to contain flue-gas desulphurisation.
This technology would cut out 90% of the sulphur dioxide emissions, a gas the United States Environmental Protection Agency says has an "array of adverse respiratory effects". Exposure causes and worsens conditions such as bronchitis, and can aggravate heart problems. But Eskom said in its application: "It is not practically feasible or beneficial to South Africa to fully comply with the minimal emission standards."
It said the plant would only be able meet the minimum requirements for sulphur dioxide by 2027 because of water shortages in the Waterberg region where the plant is situated.
Its most problematic plant in terms of compliance is the 3 000 megawatt Kriel coal station in Mpumalanga. Speaking last year, Judy Beaumont, environmental affairs's deputy director general of air quality, said the plant was breaking the law and people were dying as a result.
In its own research Greenpeace International estimates that Eskom's fleet of coal stations causes the deaths of between 2 200 and 2 700 people a year because of the gases they release, such as mercury and sulphur dioxide.
It estimates that, over their life-span, 20 000 people will die because of Eskom's current plants. Eskom has said in its application that it would cost R200-billion to ensure compliance at all its plants and it cannot afford this.
The research also found that health problems caused by mercury released from the plants would cost R220-billion over the same period to treat.
The environmental department has reiterated that any application by Eskom will be taken case by case. It would have to guarantee the "constitutional rights of South Africans to an environment that is not harmful to health and wellbeing", while "ensuring that economic growth is not hampered".
The problem, expressed by the Centre for Environmental Rights in their application opposing Eskom, is that the environmental laws are set up so that a company can break them legally.
Eskom is already liable for R3-million in fines for breaking environmental legislation over the past five years, and for every contravention of the air quality act the fine is R5-million. It has not been fined for its current contraventions.
Eskom said burning wood and coal had more impact on air quality and health than their operations. "The use of electricity in these areas would dramatically reduce the health effects."
Medupi could not be delayed because it was urgently needed to meet national electricity demand. It would cost more than R200-billion to retrofit the whole fleet, including the costs of financing, and this would increase electricity prices by 10%.