APPEAL PURSUANT TO SECTION 43(1) OF THE NATIONAL ENVIRONMENTAL MANAGEMENT ACT, 1998, AGAINST THE NATIONAL AIR QUALITY OFFICER’S DECISION REGARDING ESKOM’S APPLICATION FOR POSTPONEMENT OF COMPLIANCE TIMEFRAMES RELATING TO THE NATIONAL ENVIRONMENTAL MANAGEMENT: AIR QUALITY ACT 39 OF 2004 MINIMUM EMISSION STANDARDS

This document is an appeal submitted by groundWork and the Vukani Environmental Justice Movement in Action against a decision by the National Air Quality Officer (NAQO) to grant Eskom a postponement of compliance with Minimum Emission Standards (MES) for the Kusile Power Station. The Appellants argue that the decision is unlawful, violates constitutional rights to a healthy environment, and was based on flawed health and atmospheric impact assessments and unfounded claims regarding the reduction of load shedding.

• The National Air Quality Officer (NAQO) granted Eskom a postponement of compliance with the Minimum Emission Standards (MES) for the Kusile power station from 5 June 2023 to 31 March 2025, allowing a Sulphur Dioxide (SO2) emission limit of 3500 mg/Nm3 while temporary stacks 7, 8, and 9 are used during repairs to the West stack of units 1, 2, and 3.
• The Appellants contend that the postponement is unlawful because the 2017 National Framework for Air Quality Management prohibits such postponements if the ambient air quality in the area does not comply with National Ambient Air Quality Standards (NAAQS), and the Highveld Priority Area (HPA) where Kusile is located remains non-compliant.
• The public participation process is challenged as being insufficient and unfair, citing a reduced 14-day window, inaccessible meeting venues (such as Kendal Power Station, 20km from the affected Phola community), and a lack of documents in local languages.
• The Appellants argue that the Revised Atmospheric Impact Report (RAIR) underestimates pollution impacts by using incomplete emissions inventories for particulate matter and failing to model scenarios for start-up, shutdown, and maintenance.
• A report by the Centre for Research on Energy and Clean Air (CREA) projects that the FGD bypass will cause a 6-fold increase in SO2 emissions, resulting in an estimated 670 excess deaths and 3,000 asthma emergency room visits, with associated societal costs of approximately R16.8 billion.
• The Appellants claim that Eskom's own Health Impact Assessment (HIA) is flawed because it uses an outdated chemical mechanism (RIVAD) in the CALPUFF model, limits its study domain to a 50 km radius, and ignores the impacts of mercury emissions.
• The NAQO's decision is criticized for prioritizing the national electricity crisis and load shedding over public health, which the Appellants argue is an unjustifiable limitation of the constitutional right to a healthy environment under section 24.
• The Appellants dispute Eskom's claim that returning units 1, 2, and 3 to service will significantly reduce load shedding, noting that the plant's average load factor was only 39% prior to the stack failure.
• The appeal asserts that the NAQO failed to impose adequate explicit conditions for mitigation, leaving the approval of Eskom's mitigation plan vague and without guaranteed safeguards for affected communities.

APA

Centre for Environmental Rights (2023). APPEAL PURSUANT TO SECTION 43(1) OF THE NATIONAL ENVIRONMENTAL MANAGEMENT ACT, 1998, AGAINST THE NATIONAL AIR QUALITY OFFICER’S DECISION REGARDING ESKOM’S APPLICATION FOR POSTPONEMENT OF COMPLIANCE TIMEFRAMES RELATING TO THE NATIONAL ENVIRONMENTAL MANAGEMENT: AIR QUALITY ACT 39 OF 2004 MINIMUM EMISSION STANDARDS. https://cer.org.za/wp-content/uploads/2023/07/gW-and-VEM-Appeal-Submissions-Annexure-A-July.pdf?x21779

Chicago

Centre for Environmental Rights. APPEAL PURSUANT TO SECTION 43(1) OF THE NATIONAL ENVIRONMENTAL MANAGEMENT ACT, 1998, AGAINST THE NATIONAL AIR QUALITY OFFICER’S DECISION REGARDING ESKOM’S APPLICATION FOR POSTPONEMENT OF COMPLIANCE TIMEFRAMES RELATING TO THE NATIONAL ENVIRONMENTAL MANAGEMENT: AIR QUALITY ACT 39 OF 2004 MINIMUM EMISSION STANDARDS. 2023. https://cer.org.za/wp-content/uploads/2023/07/gW-and-VEM-Appeal-Submissions-Annexure-A-July.pdf?x21779.

Wikipedia

{{cite press release |author=Centre for Environmental Rights |title=APPEAL PURSUANT TO SECTION 43(1) OF THE NATIONAL ENVIRONMENTAL MANAGEMENT ACT, 1998, AGAINST THE NATIONAL AIR QUALITY OFFICER’S DECISION REGARDING ESKOM’S APPLICATION FOR POSTPONEMENT OF COMPLIANCE TIMEFRAMES RELATING TO THE NATIONAL ENVIRONMENTAL MANAGEMENT: AIR QUALITY ACT 39 OF 2004 MINIMUM EMISSION STANDARDS |date=5 July 2023 |url=https://cer.org.za/wp-content/uploads/2023/07/gW-and-VEM-Appeal-Submissions-Annexure-A-July.pdf?x21779 |access-date=17 August 2026 |via=Climate Insights Directory}}

BibTeX

@misc{centreforenvironmentalrights2023appeal, author = {{Centre for Environmental Rights}}, title = {{APPEAL PURSUANT TO SECTION 43(1) OF THE NATIONAL ENVIRONMENTAL MANAGEMENT ACT, 1998, AGAINST THE NATIONAL AIR QUALITY OFFICER’S DECISION REGARDING ESKOM’S APPLICATION FOR POSTPONEMENT OF COMPLIANCE TIMEFRAMES RELATING TO THE NATIONAL ENVIRONMENTAL MANAGEMENT: AIR QUALITY ACT 39 OF 2004 MINIMUM EMISSION STANDARDS}}, publisher = {Centre for Environmental Rights}, year = {2023}, month = jul, url = {https://cer.org.za/wp-content/uploads/2023/07/gW-and-VEM-Appeal-Submissions-Annexure-A-July.pdf?x21779}, urldate = {2026-08-17}, note = {Indexed by Climate Insights Directory} }