Decisions by former national air quality officer Thuli Khumalo granting Eskom’s applications for postponements and suspension of pollution standards compliance timeframes and weaker limits for some coal-fired power stations are “unlawful” and should be set aside by the minister of forestry, fisheries and the environment, Barbara Creecy.
So say nonprofits groundWork and Earthlife Africa in an appeal that was lodged with Creecy on 8 February. The appeal lists the national air quality officer as the first respondent and Eskom as the second.
During 2018 and 2020, Eskom applied for five-year postponements of compliance, suspensions of compliance and weaker limits in relation to the minimum emission standards compliance timeframes at 14 of its coal-fired power stations.
The Life After Coal campaign, which comprises the appellants and the Centre for Environmental Rights, submitted objections to all the Eskom applications.
The minimum emission standards are published in terms of the Air Quality Act and stipulate the limits of nitrogen oxides, sulphur dioxide and particulate matter that can be emitted from Eskom’s power station stacks. The limits for existing plants came into effect in 2015, and more stringent restrictions for new plants in 2020.
Eskom’s ‘minimal’ effort to comply
Eskom said its applications for postponement were to request to emit “alternative” emission levels.
“Eskom is asking the authorities for a sustainable solution, which reduces pollution and its impact on health but considers financial constraints, the ability to execute emission reduction projects on time and the negative impact such technology may have on the environment, for example, increased water use, millions of tonnes of waste produced each year and increased carbon dioxide emissions,” the state power utility said.
In her decision dated 30 October Khumalo — who is now the chief operations officer for the Presidential Climate Commission — rejected Eskom’s applications to postpone compliance with the standards for the Matla, Duvha, Matimba, Medupi and Lethabo power stations.
Eskom received positive postponement decisions for power stations shutting down by 2030 — Grootvlei, Arnot, Hendrina, Camden, Komati, Acacia and Port Rex — and the postponement applications for Majuba, Tutuka, Kendal and Kriel power stations were partially granted.
The utility said to comply with Khumalo’s decisions “would cost in excess of R300-billion and will not add any additional capacity to the national grid. This would add in the order of 10% to the existing electricity tariff.”
In their appeal, groundWork and Earthlife Africa note that the “legal quagmire in which Eskom finds itself is almost entirely self-inflicted”.
Although the nonprofits support Khumalo’s refusal to grant Eskom more lenient standards, they are disputing the decisions granting postponements for the Majuba, Kendal, and Tutuka “midlife” power stations, and compliance suspensions for Eskom’s “oldest” stations, Camden, Hendrina, Arnot, Komati, Grootvlei and Kriel, in the absence of detailed and clear decommissioning schedules per station as required.
They say granting any applications for coal-fired power stations in pollution hotspots such as the Highveld Priority Area is contravenes the legal authority of “the Constitution, the Air Quality Act, the amended List of Activities, the 2017 National Framework for Air Quality Management and the provisions of the National Environmental Management Act”.
Eskom told the Mail & Guardian: “The constitution allows for decisions which support sustainability. There are many environmental and social considerations — these include but are not limited to water use, the increased tariff, the need to divert capital to cleaner technologies in line with the just energy transition rather than the retrofitting of ageing plants.”
According to the nonprofit groups, Khumalo’s decision to grant Majuba postponement of compliance with the nitrogen oxides new plant standard from 1 April 2020 to 31 March 2025 and directing the power station to comply with a limit of 1 300mg/Nm3 is unlawful.
This, they said, is weaker than the existing plant standard for nitrogen oxides of 1 100mg: “Allowing Eskom to emit at levels that undermine the existing plant standards is a blatant violation of section 11D of the amended List of Activities.”
Khumalo’s decision “allows for an untenable position” that would entitle any emitter to apply for and be granted an emission limit that is weaker than the already lenient standards for existing plants”.
The groups say the Majuba power station is in the Highveld Priority Area, one of three declared pollution hotspots where, more than 14 years since it was declared, air quality remains non-compliant with South Africa’s national ambient air quality standards.
The electricity utility said is emission reduction plan and shutdown of power stations would realise a continual reduction in all emissions, including carbon dioxide.
Postponements for Kendal, Tutuka
Khumalo authorised Eskom’s request to postpone compliance with the nitrogen oxides new plant standard at Kendal from 1 April 2020 to 31 March 2025 with a limit of 1100mg/Nm3. This, too, would allow Eskom to only have to comply with the existing plant standard.
The decision is unlawful, according to the appeal: “As is the case with Majuba power station, Kendal power station is also located in the HPA. This alone bars the [national air quality officer] from authorising postponement applications for Kendal power station, in accordance with the 2017 framework.”
Eskom has provided “no reasonable explanation” as to why it has waited more than eight years since the List of Activities came into force, or more than three years from when the 2015 postponement application was granted, “to begin — and/or adequately progress and plan for — the abatement equipment installations, which would allow it to comply with the new plant [minimum emission standards] at Kendal, as well as Majuba and Tutuka power stations”.
The decision to grant Tutuka postponement of compliance with the nitrogen oxides new plant standard from 1 April 2020 to 31 March 2025 and directing the station to comply with a limit of 1100mg/Nm3 is unlawful. “Similarly, Tutuka power station is also a ‘midlife’ station with a scheduled end of life date of 2035, and Tutuka is also located in the HPA.”
Eskom said it had improved emission reduction at Grootvlei, Kendal, Matimba, Lethabo, Duvha and Matla power stations, adding: “It is accepted that some of the planned projects have been delayed by various factors, including funding constraints and commercial processes.”
The utility is evaluating the repurposing and repowering — with renewable, cleaner technologies — of all plants shutting down by 2035, and is aligned to the Integrated Resource Plan, which ends in 2029.
Engineering studies for Komati have been completed, and studies for Grootvlei Camden and Hendrina are underway, it said.
Eskom’s coal-fired power plants are the major source of sulphur dioxide pollution in the Highveld Priority Area, stated the appellants. “It is not only the health impacts from exposure to sulphur dioxide that are at issue here, but the contribution to secondary PM2.5 [fine inhalable particles with diameters 2.5 micrometres and smaller] as a result of the cumulative SO2 and NOx [nitrogen oxides] emissions from the power stations.
“Eskom’s significant contribution to the PM2.5 load in parts of the [Highveld Priority Area] … and the resultant severe health impacts is simply untenable in light of the purpose and requirements of [minimum emission standards] and the 2017 framework, read with the Constitution.”
The utility said its emission reduction plan includes investing in technology retrofits to reduce emissions, the closure of older stations and the move to a cleaner energy mix. “This plan will see a reduction in [particulate matter, nitrogen oxides and sulphur dioxide] by 58%, 46% and 66%, respectively, by 2035.”
To give effect to Khumalo’s decisions, Eskom said it has to amend its atmospheric emission licences, “but practically it means that power stations need to comply with the stricter new emission limits immediately”.
“Power stations planned to shut down after 2030 up to 2044 cannot comply with the strict limits, and Eskom cannot operate the stations illegally. Eskom has submitted an appeal to the authorities, which suspends the decision while the minister [Creecy] applies her mind to Eskom’s plea to a balanced and sustainable way forward.”