Sometime between July and September 2018, the emissions control system at Eskom’s Kendal power plant was damaged and it began pumping out toxic pollutants. Because it has a monopoly on keeping the lights on, the state-owned company has escaped sanction for polluting the air. But Eskom’s impunity might be at an end.
Last month, the environment department’s enforcement arm, the Green Scorpions, issued Kendal with a compliance notice, the most serious action one arm of government can take against another.
The power plant — like its peers — does not comply with national air quality regulations, which came into effect in 2015.The purpose of the regulations, which become more stringent this year, is to stop people getting sick or dying from air pollution.
But Kendal, with its “six pack” of units each producing 665 megawatts, makes up 10% of the national grid and when the grid is in crisis it can produce up to 20% of Eskom’s entire capacity.
Eskom says pollution from its plants causes the death of more than 300 people a year, costing the economy at least R18-billion. Nongovernmental organisations say the effect is 10 times that, and it is felt in Mpumalanga and Gauteng. The United Nations estimates that, nationally, 20 000 people die from breathing in polluted air.
Now the government — or the courts — will have to decide at what human cost electricity is provided.
To get around the law, Eskom has, since 2014, asked for permission to not comply with the regulations.
For the Kendal application at that time, Eskom cited a range of reasons the plant had released more pollutants than it is allowed.The major problem is poor maintenance. One boiler had trouble working when the temperature dropped below 10°C. Broken conveyor belts, which take away the ash created by burning coal, meant “high particulate matter [dust] emissions”. Poor quality and wet coal resulted in more ash and sulphur being created, because the plant wasn’t built to deal with this kind of coal.
The Kendal application for exemption from the regulations was part of a host of applications for most of Eskom’s fleet. In its application for the nearby Hendrina power plant, the utility said: “Eskom considers that it is not practically feasible or beneficial for South Africa to comply fully [with the new air quality requirements].”
Eskom said it would need R300-billion for all its plants to comply with air control regulations. What it didn’t say was the power stations were built at a time when the apartheid regime cared less about their pollution and, under the democratic government, that most of the fleet has not been upgraded to reduce pollution.The Constitution guarantees people the right to a healthy environment.
And Eskom’s newest power stations, Medupi and Kusile, the construction of which began in 2007 and 2008, are also not lowering their pollution levels. The installation of the air pollution control equipment has consistently been delayed for a myriad reasons, including financial.
This is despite a condition of the World Bank loan for Medupi being that flue gas desulphurisation technology has to be installed. This removes sulphur dioxide, one of the more dangerous gases from the combustion of coal. Eskom now says this might be installed at the end of this decade.
It has since asked that Medupi be given permission to emit double the allowed amount of sulphur dioxide until the plant is shut down in the 2040s.
Despite all the negative effects of its coal-fired plants, Eskom was given a five-year reprieve after the 2014round of applications.
The environment department and district municipalities, which licence Eskom’s power plants, said this would be an exception.
Officials at the department told the Mail & Guardian that getting incremental change in air quality is better than Eskom shutting down power plants, which it threatens to do when asked to fully comply with the law.
But because Eskom continues to delay serious upgrades to and maintenance of its plants, the cost and severity of that work increases with each passing year.
Nongovernmental organisations and civil society groups warned that once a precedent was set, Eskom would ask for more “rolling postponements” of compliance with the regulations.
Eskom has since asked for another reprieve.
In its 2018 “background information document”prepared to ask for this reprieve, Eskom said: “Due to various existing constraints, it is not possible for most of the power stations to comply on time [with the law].” It went on to say that “in some cases” it would be “indefinitely” unable to comply with the law.
In other words, some power plants would operate for more than a decade while emitting deadly levels of pollution.
The utility is also able to exploit a loophole in air quality legislation. When plants are in an“unsettled” state — when they are shutting down or turning on — any pollution they release is not held against them. Yet this is a period of heavy pollution. The law was written with the expectations that coal power plants don’t turn on and off all the time. But, with the electricity production problems, now they do. If a conveyor belt fails, as keeps happening at Medupi, units at the plant run out of coal and have to turn off.
But the move by the Green Scorpions might halt Eskom’s polluting ways, expectations of exemptions from air quality legislation and exploitation of loopholes in the law.
The underlying implication of the compliance notice issued to Kendal was that Eskom had not shown any inclination to fix the plant’s pollution.
The compliance notice did, however, show that the state-owned power utility still has bargaining power — it said that “the timing of the implementation of this plan rests with the power utility” and that Eskom “has the responsibility to ensure security of electricity supply”.
So Eskom is breaking the law. But to comply, it might have to power downKendal, because it has spent a decade not properly maintaining its fleet and thus relies on a handful of plants.
Slowing down Kendal’s output is a problem for Eskom. The power utility has about 40000 megawatts of capacity in its fleet, ranging from coal-fired power plants to open-cycle gas turbines and pumped water storage.
But only abouthalf of that capacity is operating. This is why the unprecedented sixth stage of load-shedding happened in December. It’s why the second stage is now a common occurrence.
The energy department is trying to push through an emergency 3000 megawatts of new generating capacity from a range of sources such as independent power producers, to give Eskom breathing space to do maintenance.
The Integrated Resource Plan 2019 sees the Eskom fleet being largely replaced by a mix of wind and solar energy in the next two decades. The least-cost scenario in the plan would have seen these plants shut down even earlier and replaced by a mix of renewable energy.
That scenario has not been adopted. Instead, President Cyril Ramaphosa has promised to put more money into old coal-fired power plants, and complete the construction of Medupi and Kusile.
But the environment department has run out of patience. Eskom now has to say when it will take its two worst-polluting Kendal units offline — along with their 1200 megawatts of capacity —and then say what it will do about the 2400 megawatts in its other four problematic units.
Eskom has until the end of this week to submit its plan. If it doesn’t, then it is in breach of the compliance notice. The Green Scorpions can then hand the case over to the National Prosecuting Authority.
Whatever happens in this case, it sets a precedent: either Eskom can continue polluting the airor people’s right to a clean and healthy environment will be upheld.
In the past two years, the courts have started ruling in favour of the latter option.
Neither party replied to questions submitted by the M&G.