Eskom served with summons for criminal prosecution on charges of air pollution

Minister of Environment, Forestry and Fisheries Barbara Creecy has revealed that summons was served on Eskom on 27 November notifying it of the decision by the senior public prosecutor to pursue a criminal prosecution in respect of air pollution by Eskom’s Kendal Power Station.

This includes a charge of supplying false and misleading information in reports prepared by management at Kendal Power Station to an Air Quality Officer, which is a criminal offence listed in Section 51(1)(g) of the Air Quality Act. The summons orders Eskom representatives to appear in the Witbank Regional Court on 28 January 2021.

Internal investigation

This follows an internal investigation and report prepared by Eskom Audit and Forensic (A&F) into air quality compliance and reporting, initiated by Eskom CEO André de Ruyter on 17 May following investigations and articles by EE Business Intelligence on these matters. 

The Eskom investigation report finds that “allegations made by media personalities are mainly proven true”, and that Eskom Generation management should take heed of the reality of Kendal’s poor emissions performance.

“The Department of Environment, Forestry and Fisheries (DEFF) has yet to receive the full report on Eskom’s internal investigation and findings in respect of air quality compliance and reporting at Kendal power station. A thorough and detailed analysis of the full report is needed in order for the department to understand the implications of its findings and how these may affect the action currently being taken against the power station,” commented Creecy.

The Eskom internal investigation report highlights the false and misleading classification of regular, ongoing and extended atmospheric emission contraventions above the statutory limits as “Section 30” exceedances in reports to the regulatory authorities. A Section 30 exceedance, however, 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 emission, fire or explosion.

Continued operating and reporting irregularities

Following extended periods of non-compliance of all six generation units at Kendal in 2018 and 2019, the DEFF finally issued a Compliance Notice to Eskom on 10 December 2019. The notice essentially compelled Eskom to cease operation of two units, and ordered corrective measures to be undertaken, over time, in order to ensure that operations are undertaken in compliance with Kendal’s Atmospheric Emissions Licence (AEL).  

“However, and despite the above, some of Eskom’s units at this power station have continued to operate in non-compliance, which has resulted in the department issuing a further warning on 17 November 2020,” said Creecy.

Upon notification to Eskom and Kendal Power Station of the wrong classification of contraventions as Section 30 exceedances in its reports to the regulatory authorities, the reports were modified and subsequently resubmitted in March 2020. However, the Eskom investigator found that the significant misreporting and misleading reporting identified in the original reports was perpetuated in the resubmitted reports. The investigator concluded that this was a continuation of a failure to apply a “duty of care” by Kendal.

Failure of duty of care

The Eskom investigator 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 Power Station, and that this was having a very significant impact on people and the environment.

For the 12-month period from 1 April 2019 to 31 March 2020, the Eskom investigator identified 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. 

Of the 1,308 days of exceedances by 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 legal contraventions to the regulatory authorities.

The investigator pointed out that this was a failure of the duty of care required in Section 28 of the National Environmental Management Act (Nema), and therefore constituted a breach of Clause 4.2 of Kendal’s Atmospheric Emissions Licence (AEL). Kendal would therefore be subject to sanctions set out in Section 28 of Nema.

The investigator concluded that: “The current state of plant operation and the continuous exceedance above the emission limit does not show any duty of care, nor care for the people and the environment, nor support of Eskom’s values of zero harm and integrity.”

Incompetence, negligence or deliberate misrepresentation?

One of the stated intentions of the investigation included determining whether any identified false and misleading information provided by Eskom to the regulatory authorities and the public was the result of incompetence, negligence or deliberate misrepresentation by the utility and its officials.

Eskom has an environmental Centre of Excellence (CoE) staffed by qualified, experienced persons who have worked at Eskom for years. The Eskom investigator reported that “together with continuous communication and training, there should not be an excuse for any relevant person to not be able to understand the identification and reporting of exceedances”. There can thus be no suggestion of incompetence.

The investigation report does, however, appear to find evidence of negligence, perhaps even criminal negligence, stating that “management continued to allow this vein of reporting without adequate measures to correct it”, and that “there should have been generation and environmental management intervention in terms of interrogating the continuous exceedances at the levels reported and which were not identified, classed or reported as contraventions”.

However, it will be for the courts to decide whether there has been any deliberate criminal misrepresentation of contraventions in reports to the regulatory authorities and to the public by Eskom officials, and/or through specific actions and/or inactions by management and officials at Eskom Megawatt Park and Kendal Power Station.

A legal view

“The findings and conclusions in this Eskom internal risk audit report are extremely disconcerting, coming from an organ of state with a duty of care toward the public, and an obligation to protect people’s constitutional rights,” comments Timothy Lloyd, an attorney and specialist in environmental law at the Centre for Environmental Rights. 

“This is especially so in light of an April 2020 expert report which estimated that Kendal’s air pollution during this non-compliance period was responsible for between 67 and 144 early deaths in 2018, and 61 and 130 early deaths between November 2018 and October 2019. 

“Of equal concern is that this report is an illustration of, firstly, an unlawful practice of deliberately concealing contraventions which are causing harm to people, and secondly, a wider problem of continuous licence contraventions across Eskom’s coal-fired power stations, 12 of which are in the Mpumalanga Highveld. 

“Eskom’s status as a ‘perpetual contravener’ of its environmental licences is well documented in government’s own annual enforcement and compliance reports, and in independent expert analysis exposing thousands of exceedances of the air pollution limits across its fleet of power stations – with little consequence to date.

“This Eskom risk audit report not only justifies government’s compliance enforcement action against Kendal Power Station earlier this year, but the evidence of blatant false reporting, among other findings, clearly warrants criminal sanctions as provided for in our law. Furthermore, government authorities must urgently investigate the state of air quality compliance at Eskom’s other coal-fired power stations, including the reporting practices at each station. The rule of law must be upheld, without exception,” concludes Lloyd.

Eskom response

In response to the internal Eskom investigation report, CEO De Ruyter indicated that Eskom had conducted a thorough investigation into allegations of non-compliance with emission standards at Kendal Power Station. 

Eskom’s Bruce Moyo, general manager of a cluster of power stations that include Kendal, provided EE Business Intelligence with details of an emissions reduction strategy roadmap and action plan to return the six generation units at Kendal to compliance by the end of July 2021.

“We have launched a comprehensive recovery programme, overseen by a high-level steering committee, to address the root causes of high emissions, and have already seen some improvements. We will continue to work hard to ensure that we can improve on our emissions at our coal-fired power stations to ensure that we reduce our impact on the environment and on human health,” said De Ruyter. DM

Chris Yelland is managing director of EE Business Intelligence.