Eskom could face fines of up to R5-million under South Africa’s air quality legislation for supplying blatantly false and misleading information about its toxic pollution at the Kendal coal-fired power station to authorities.
On 28th January 2021, the state-owned energy utility will appear in the Emalahleni regional court on four counts of environmental transgressions.
On Friday 27th November, South Africa’s Minister of Environment, Forestry and Fisheries, Barbara Creecy notified Eskom of the decision by the National Prosecuting Authority (NPA) to pursue criminal prosecution.
The four counts, according to the department, are related to the emission of air pollutants at concentrations exceeding emission limits set in Kendal’s atmospheric emission licence (AEL); failure to comply with the conditions and/or the requirements of the AEL; committing an act likely to cause significant pollution of the environment, and supplying false and/or misleading information to an air quality officer.
Albi Modise, the Chief Director of Communications at the Department of Environment, Forestry and Fisheries, says the “criminal investigation as well as the compliance notice, read with the minister’s objection decision, is based on the findings of previous site inspections” undertaken at Kendal, which is one of the country’s biggest power stations.
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This is the first criminal investigation where the National Prosecuting Authority has decided to pursue a prosecution for a breach of air quality legislation by Eskom.
Business management consultancy EE Business Intelligence reported this week on the findings of an internal investigation compiled by Eskom’s audit and forensic team into Kendal’s air quality compliance and reporting.
This was instituted by the power utility’s chief executive officer, Andre de Ruyter in May.
The internal investigation found that exceedances of particulate matter atmospheric emissions of up to 10 times the allowable limit of 100mg/Nm3 occurred consistently for extended periods over the past two years at Kendal and that this was having a significant impact on people and the environment.
Between April last year and 31 March this year, EE Business Intelligence reported that the investigation found 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.
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Modise says that Eskom’s internal report notwithstanding, the department had already instituted both criminal and administrative enforcement action based on evidence that the company was in noncompliance with environmental law.
“Furthermore, and on the face of it, the contents of this report seemingly support the charges, which Eskom is currently facing,” says Modise.
Energy analyst Chris Yelland, the managing director of EE Business Intelligence, believes Eskom itself will have to face the music.
“It’s interesting as to whether people will face these consequences in their personal capacity or in their capacity as employees of Eskom. I will imagine that Eskom may be subject to sanctions. Obviously, that’s a matter for the court to decide. Frankly, there are people who bear responsibility both at the power station and at Eskom Megawatt Park,” Yelland said.
“Eskom uses load-shedding as a threat: ‘If you shut us down because we’re in non-compliance, we could have load-shedding’. But [Minister] Creecy has avoided this through phased-in shutdowns of units at Kendal,” Yelland said.
