In October 2022, Kusile Power Station (“KPS”) was forced to take Units 1, 2 and 3 offline due to a critical failure in Unit 1’s operating systems. The breakdown has had a knock-on effect to the adjacent Units 2 and 3, making all three units inoperable and contributing significantly to the current state of loadshedding across the country.
It is estimated that it will take anywhere between 18 to 24 months to fully repair the damage to the affected Units, leaving Eskom scrambling for a solution to address the shortfall in it’s generation capacity while these units remain offline.
In January 2023, Eskom announced plans to introduce temporary flue stacks for the 3 units to enable an earlier return to operations, while the longer-term repair solutions are implemented. The use of temporary flues would enable the generation systems to bypass the damaged components at KPS, being the flue-gas desulphurisation pollution control components in particular, thereby allowing the Units to return to operation 8 months ahead of schedule.
This temporary solution would require Eskom to amend its current air emissions licence at KPS, as the bypassing of the flue-gas desulphurisation pollution control would result in an increase in air pollution far beyond the current permissible limits. This amendment application would be regulated by section 46(1)(d) of the National Environmental Management: Air Quality Act, 39 of 2004, as amended (“Air Act”), and subject to all the requirements associated with such an application including that of an environmental impact assessment in terms of the National Environmental Management Act, 107 of 1998, as amended.
However, on 15 March 2023, the Minister of Forestry, Fisheries and the Environment, Barbara Creecy, announced that Eskom has been granted certain exemptions from the “lengthy process required to amend its atmospheric emission license”. The exemptions have been granted in terms of section 59 of the Air Act in response to a written request from Eskom, which Creecy’s announcement described as follows –
“Eskom’s request pertains to a temporary solution to restore lost generation capacity at its Kusile Power Station while a damaged stack undergoes repairs which are due for completion in December 2024. In the interim, Eskom plans to construct the temporary stacks by November 2023, which it anticipates will allow the resumption of generation capacity of 2100MW which will reduce the country’s exposure to load shedding by two levels.”
During her statement, Creecy expressed the difficulties in balancing the need to reduce the economic harm of loadshedding with the negative health and environmental impacts associated with the proposed temporary stacks. With this in mind, the exemption regarding Eskom’s application to amend its air emissions licence has been granted with strict conditions, including –
- Eskom must issue a public notice in two national newspapers explaining reasons for their application;
- Eskom must conduct a public participation process subject to a curtailed timeframe of 14 days;
- Eskom must account to Minister Creecy and the Portfolio Committee on Forestry, Fisheries and the Environment in the National Assembly on the progress of its repair to the damaged stack; and
- Eskom must undertake measures to mitigate against the exposure of its employees and surrounding communities to harm which, at a minimum, must include independent health screenings and referral to appropriate public health facilities for treatment where necessary.
The announcement that Eskom’s proposed application has received the above exemption has been met with harsh criticism from local activist groups, highlighting that the curtailed application process may be inadequate to assess the full impacts of the temporary stacks. Not only will the proposed stacks result in an undeniable increase in sulphur dioxide pollution, the shortened public participation process has halved the time in which interested and affected parties are able to voice their concerns regarding the proposed amendment.
While the amendment application has not yet been provided for public comment, the application itself will require the competent authority to balance the obvious increase in air pollution with the country’s need to address the economic harm of loadshedding. This is made even more challenging in light of the recent decision of the Pretoria High Court in the matter of the Trustees for the Time Being of Groundwork Trust vs the Minister of Environmental Affairs & Others. Dubbed the “Deadly Air” judgment, the court found chronic air pollution to be a violation of a person’s constitutional right to an environment that is not harmful to their health and well-being. The Court in this case ordered Creecy to draft regulations to implement and enforce the Highveld Priority Area Air Quality Management Plan with the aim to clean the air to meet the required National Standards in the highveld area, in which KPS is situated.
In light of the above, it remains to be seen how the economic benefits of Eskom’s proposed amendments will stand up to a legal framework that seems to stand in the way of any increase in the amount of air pollution produced at KPS.
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