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The Minister of Environment, Forestry and Fisheries, Barbara Creecy, has revealed that on November 27, 2020 a subpoena was served on Eskom notifying him of the decision of the superior prosecutor to initiate criminal proceedings for air pollution at the Kendal power plant in Eskom.
This includes, but is not limited to, a charge of providing false and misleading information in reports prepared by management at the Kendal Power Plant to an Air Quality Officer, which is a criminal offense listed in Section 51 (1) (g) of the Air Quality Law.
The subpoena orders Eskom’s representatives to appear before 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) on air quality reporting and compliance, initiated by Eskom CEO Andre de Ruyter on May 17, 2020, following the EE Business Intelligence research and articles on these matters.
Eskom’s investigative report concludes that “allegations made by media personalities have primarily been proven to be true”, and that Eskom Generation management must pay attention to the reality of Kendal’s poor broadcast performance.
“The Department of Environment, Forestry and Fisheries (DEFF) has not yet received the full report on Eskom’s internal investigation and findings regarding air quality compliance and reporting at the Kendal power plant. A thorough and detailed analysis of the full report is necessary for the Department to understand the implications of its findings and how these may affect the action currently being taken against the plant, ”Minister Creecy commented.
Eskom’s internal investigation report highlights the false and misleading classification of regular, continuous, and extended air emissions violations above legal limits as exceedances of “Section 30” in reports to regulatory authorities.
However, a Section 30 exceedance 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 release, fire or explosion. .
Continue operating and reporting irregularities
Following extended periods of non-compliance for the six generating units at Kendal in 2018 and 2019, DEFF finally issued a Notice of Compliance to Eskom on December 10, 2019.
The notice essentially forced Eskom to shut down two units and ordered corrective action to be taken, over time, to ensure operations are carried out in accordance with Kendal’s Atmospheric Emissions License (AEL).
“However, despite the above, some of Eskom’s units at this power plant have continued to operate in non-compliance, prompting the Department to issue a new warning on November 17, 2020,” Minister Creecy said.
Following the notification to the Eskom and Kendal Power Plant of the incorrect classification of violations as Section 30 exceedances in their reports to regulatory authorities, the reports were amended and subsequently resubmitted in March 2020.
However, the Eskom investigator found that significant misleading and misinformation identified in the original reports was perpetuated in the forwarded reports. The investigator concluded that this was a continuation of Kendal’s failure to apply a “duty of care”.
Breach of duty of care
The Eskom researcher found that over the past two years at the Kendal power plant there had been excess atmospheric particulate emissions of up to 10 times the permitted limit of 100 mg / Nm3, and that this was having a very significant impact on people . and the environment.
During the 12-month period from April 1, 2019 to March 31, 2020, the Eskom researcher identified continuous and near-daily exceedances in particulate emissions at the six generating units at the Kendal power plant in up to 13 times the legal particle emission limit.
Of the 1308 days of leave of absence for 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 was reported as a legal violation to the regulatory authorities.
The investigator noted that this was a breach of the duty of care required by Section 28 of the National Environmental Management Act (NEMA) and therefore constituted a breach of Clause 4.2 of the Kendal Atmospheric Emissions License (AEL ). Therefore, Kendal would be subject to the penalties set forth in Section 28 of the NEMA.
The researcher concluded that: “The current state of operation of the plant and the continuous exceedance above the emission limit does not show any duty of care, or care for people and the environment, nor does it endorse Eskom’s values of zero harm. and integrity ”.
Incompetence, negligence or willful misrepresentation?
One of the stated intentions of the investigation included determining whether any identified false and misleading information provided by Eskom to regulatory authorities and the public was the result of incompetence, negligence or willful misrepresentation on the part of the utility company and its officials.
Eskom has a Center of Environmental Excellence (CoE) made up of qualified and experienced people who have worked at Eskom for years.
The Eskom researcher reported that “along with ongoing communication and training, there should be no excuse for any relevant person not to understand exceedance identification and reporting.” Therefore, there can be no suggestion of incompetence.
However, the investigation report appears to find evidence of negligence, perhaps even criminal negligence, stating that “management continued to allow this vein of complaint without adequate measures to correct it”, and that “there should have been a generation and environmental management in terms of questioning the continuous exceedances in the levels reported and that were not identified, qualified or reported as violations ”.
However, it will be up to the courts to decide whether there has been deliberate criminal misrepresentation of violations in reporting to regulatory authorities and the public by Eskom officials, and / or through specific actions and / or inactions by management. and Eskom officials. Megawatt Park and Kendal Power Station.
A legal hearing
“The findings and conclusions of this Eskom internal risk audit report are extremely puzzling, they come from a state body with a duty to care for the public and an obligation to protect people’s constitutional rights,” comments Timothy Lloyd, attorney and specialist in environmental law at the Center for Environmental Rights.
This is especially true in light of an April 2020 expert report that estimated that Kendal’s air pollution during this period of non-compliance was responsible for between 67 and 144 early deaths in 2018, and for 61 and 130 early deaths between November 2018 and October 2019.
“Of equal concern is that this report is an illustration of, first, an illegal practice of deliberately concealing violations that are causing harm to people, and second, a broader problem of continuing license violations in the Eskom coal-fired power plants, 12 of which are at Mpumalanga Highveld.
“Eskom’s status as a ‘perpetual violator’ of its environmental licenses is well documented in the government’s own annual compliance and compliance reports, and in independent expert analyzes exposing thousands of air pollution limit exceedances in its fleet. of power plants, with little consequence to date.
“This risk audit report from Eskom not only justifies the government’s compliance enforcement action against the Kendal power plant earlier this year, but the evidence of blatant false reports, among other findings, clearly justifies criminal penalties as per the provisions of our law. In addition, government authorities must urgently investigate the status of air quality compliance at Eskom’s other coal-fired power plants, including reporting practices at each plant. The rule of law must be upheld, without exception, ”Lloyd concludes.
Eskom Response
In response to Eskom’s internal investigation report, Chief Executive Officer André de Ruyter indicated that Eskom has conducted a comprehensive investigation into allegations of non-compliance with emission standards at its Kendal power plant.
Eskom’s Bruce Moyo, general manager of a group of power plants that includes Kendal, provided EE Business Intelligence with details of an emissions reduction strategy roadmap and action plan to return the six generating units in Kendal to the compliance by end of July 2020.
“We have launched a comprehensive recovery program, overseen by a senior steering committee, to address the root causes of high emissions and we have already seen some improvements. We will continue to work hard to ensure that we can improve our emissions from our coal-fired power plants to ensure that we reduce our impact on the environment and human health, ”said De Ruyter.
Now read: Eskom to reach zero carbon emissions by 2050 – Government
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