safeguards diagnostic review for south africa...
TRANSCRIPT
Safeguards Diagnostic Review
for
South Africa
Eskom Investment Support Project
March 11, 2010
ii
ABBREVIATIONS AND ACRONYMS
AEL Atmospheric Emission License
APPA Atmospheric Pollution Prevention Act
AQA Air Quality Act
BAR Basic Assessment Report
BC Biodiversity and Conservation, a branch
of DEA
BID Background Information Document
BP Bank Procedures
CEO Chief Executive Officer
CLN Customer load network
CO Carbon monoxide CO2 Carbon dioxide
CPA Criminal Procedures Act
CSIR Council for Scientific and Industrial
Research
CTF Clean Technology Fund
DEA Department of Environmental Affairs
(formerly Department of Environmental
Affairs and Tourism, DEAT)
DEIR Draft Environmental Impact Report
DSR Draft Scoping Report
DWA Department of Water Affairs (formerly
Department of Water Affairs and Forestry, DWAF)
EA Environmental Assessment
EAR Environmental Assessment Report
EC Executive Committee (Eskom Holdings
Ltd)
ECA Environmental Conservation Act
EEMP Eskom Environmental Management
Programme
EHSG Environment, Health and Safety
Guidelines (World Bank Group)
EIA Environmental Impact Assessment EIR Environmental Impact Report
EISP Eskom Investment Support Project
EMC Environmental Monitoring Committee
EMF Environmental Management
Framework
EMI Environmental Management
Inspectorate
EMP Environmental Management Plan
EMS Environmental Management System
EQP Environmental Quality and Protection, a
Branch of DEA
Eskom Eskom Holdings, Limited ESTA Extension of Security of Tenure Act
FGD Flue gas desulfurization
FPM Fine particulate matter
GEF Global Environmental Facility
GoSA Government of South Africa
GRI Global Reporting Initiative
I&APs Interested and Affected Parties
IBRD International Bank for Reconstruction
and Development
IFC International Finance Corporation
IP&WM Integrated Pollution and Waste
Management Policy
IR Involuntary Resettlement
ISDS Integrated Safeguards Data Sheet
IWULA Integrated Water Use License
JSE SRI Johannesburg Stock Exchange Socially
Responsible Investment (Index)
Km Kilometer KPI Key Performance Indicators
kV Kilovolt
MCWAP` Mokolo and Crocodile Water
Augmentation Project
MEA Multilateral Environmental Agreements
MEC Member of the provincial Executive
Council
mg Milligram
MW Megawatt
NEMA National Environmental Management
Act
NGO Nongovernmental organization NH Natural Habitats
NHRA National Heritage Resources Act
Nm3 Normal cubic meters
NOx, Nitrogen oxides
OHS Occupational Health and Safety
OHSP Occupational Health and Safety
Management Plans
OP Operational Policy
PCB Polychlorinated biphenyls
PCR Physical Cultural Resources
PM Particulate matter PMP Provincial Management Plans
PPAH Pollution Prevention and Abatement
Handbook
ppb Parts per billion
ROD Record of Decision
SAAQIS South African Air Quality Information
System
SANS South African National Standards
SDR Safeguards Diagnostic Review
SEA Strategic Environmental Assessment
SIA Social Impact Assessment
SO2 Sulfur dioxide SR Scoping Report
UCS Use of Country Systems
VOC Volatile organic compound
WBG World Bank Group
WBR Waterberg Biosphere Reserve
Table of Contents
EXECUTIVE SUMMARY .................................................................................................................. v
I. BACKGROUND ...................................................................................................................... 1
II. PROJECT DESCRIPTION ..................................................................................................... 2
III. BASIS FOR SELECTING THE PROJECT FOR PILOTING UNDER OP 4.00 ............... 4
IV. METHODOLOGY AND PROCESS FOLLOWED IN DETERMINING
EQUIVALENCE AND ACCEPTABILITY .......................................................................... 5
V. SUMMARY OF EQUIVALENCE ANALYSIS ................................................................... 7
A. Environmental Assessment (EA) ................................................................................ 8
B. Natural Habitats (NH) ............................................................................................... 10
C. Physical Cultural Resources (PCR) .......................................................................... 10
D. Involuntary Resettlement .......................................................................................... 10
E. General Conclusion of the Equivalency Analysis ................................................... 11
VI. ACCEPTABILITY ASSESSMENT ..................................................................................... 11
A. Institutional Capacity................................................................................................. 12
1. Eskom Holdings Limited (Eskom)............................................................... 12
2. The Department of Environmental Affairs (DEA) ..................................... 22 3. Department of Water Affairs ........................................................................ 25
4. South African Heritage Resource Agency ................................................... 25 B. Processes and Procedures .......................................................................................... 26
1. Environmental Governance .......................................................................... 26
2. Environmental Impact Assessment .............................................................. 27 3. Cumulative Impact Assessment ................................................................... 31
4. Strategic Environmental Assessment (SEA) and Environmental
Management Frameworks (EMF) ................................................................ 32
5. Permitting ...................................................................................................... 35 6. Compliance and Enforcement ...................................................................... 36
7. Site-Specific EIA Process ............................................................................. 39 a) Medupi: EIA Process ........................................................................ 41
b) Kusile: EIA Process .......................................................................... 42 c) Overview of the EIA Process ........................................................... 45
8. DEAT Approvals and Associated Conditions ............................................. 47 a) Conditions Applicable to both Medupi and Kusile ........................ 48
b) Site-Specific ROD Conditions ......................................................... 49 c) Medupi Phase 1 Transmission Lines RODs ................................... 55 d) Post-ROD Permitting........................................................................ 56
e) Compliance and Enforcement .......................................................... 56 9. Environmental Management Plans (EMPs) ................................................ 57
a) Medupi: Construction Phase ............................................................ 57 b) Medupi: Operational Phase .............................................................. 58
C. Projected Outcomes: Environmental impacts .......................................................... 59
1. Medupi ........................................................................................................... 61
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2. Kusile ............................................................................................................. 65 D. Projected Outcomes: Social Impacts ........................................................................ 67
1. Medupi ........................................................................................................... 67
2. Kusile ............................................................................................................. 67 3. Sere Wind Power Project, CSP Plant Sites, and Majuba Rail Spur Sites .. 68
E. Associated Facilities .................................................................................................. 68
1. Associated Facilities: Medupi ...................................................................... 68 F. Other Safeguards-Related Findings .......................................................................... 71
VII. SUMMARY OF GAPS AND PROPOSED GAP-FILLING MEASURES ....................... 73
Annexes
Annex 1. World Bank Operational Policy 4.00
Annex 2. South African Legal Framework Applicable to the Environmental and Social
Impacts of the EISP Environmental Framework
Annex 3. Equivalence Matrix
Annex 4. Comparison of South African Environmental Requirements for Thermal Power
Plants and the World Bank Group Environmental Guidelines For Thermal Power
Plants
Annex 5. Summary of Stakeholder Consultations, Pretoria, December 9-10, 2009
Comments from Participants and World Bank Response
References
Maps
Map 1. Location of EISP Components (IBRD 37164R)
Map 2. Detail of Majuba Rail Spur (IBRD 37482)
Map 3. Coalfields in the Medupi Area - Botswana and South Africa (IBRD 37658)
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EXECUTIVE SUMMARY
1. Policy Framework. Under Operational Policy/Bank Procedure 4.00 (OP/BP 4.00),
Piloting the Use of Borrower Systems to Address Environmental and Social Safeguard Issues in Bank-Supported Projects, the Bank has had the authority since March 2005 to support pilot
projects in which lending operations are prepared using the borrowing country‘s systems for
environmental and social safeguards, rather than the Bank‘s corresponding operational policies
and procedures. The advantages of using country systems (UCS) are to: scale up development
impact, increase country ownership, build institutional capacity, facilitate donor harmonization
in approaches to environmental and social safeguards, and increase cost effectiveness. These
objectives with respect to environmental and social safeguards were broadly endorsed at the
Paris High Level Forum on Aid Effectiveness in March 2005, and strongly reiterated in the
Accra Agenda for Action in September 2008.
2. During the past three years, the World Bank has approved ten pilot projects under the
first phase of this program, including recent approval of a pilot project in South Africa. On
January 31, 2008, the Executive Directors of the World Bank approved a three-year extension of
the pilot program accompanied by an incremental scaling up of the pilots from the project to the
country-level, including support of activities at the sub-national level. Under the three-year
extension, i.e., the second phase of the pilot program, nine pilots have been formally initiated and
are being worked on, including a scaled up second project in South Africa for which this
document has been prepared.
3. OP/BP 4.00 describes the approach, enumerates the criteria for using country systems,
and specifies documentation and disclosure requirements and respective roles of the borrower
and the Bank. The Bank considers a borrower‘s environmental and social safeguard system to be
equivalent to the Bank‘s if the borrower‘s system is designed to achieve the objectives and
adhere to the applicable operational principles set out in Table A1 of OP 4.00. Since equivalence
is determined on a policy-by-policy basis in accordance with Table A1, the Bank may conclude
that the borrower‘s system is equivalent to the Bank‘s with respect to specific environmental or
social safeguards in particular pilot projects, and not with respect to others. Before deciding on
the use of borrower systems, the Bank also assesses the acceptability of the borrower‘s
institutional capacity, implementation practices, and past performance in similar projects. Gap-
filling measures must be implemented prior to project approval or, if carried out by necessity
during project implementation, are subject to a time-bound legal agreement between the Bank
and the borrower. The process and product of analyzing equivalence, assessing eligibility, and
identifying and agreeing on gap-filling measures is called a Safeguards Diagnostic Review
(SDR). Under OP 4.00, a draft SDR is required to be disclosed prior to project appraisal.
4. This SDR is prepared for the Eskom Investment Support Project (EISP) in South Africa.
The project has been requested by the Government of South Africa (GoSA) to support selected
investments by Eskom Holdings Ltd. (Eskom) in the power sector. The SDR describes the scope,
methodology, and findings of the equivalence analysis and acceptability assessment carried out
in South Africa by staff from the World Bank. It also identifies and proposes gap-filling
measures designed to ensure that applicable South African safeguard systems, and Eskom‘s
corporate practices for complying with the relevant South African regulations, meet the
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equivalence and acceptability criteria of OP 4.00 throughout the project cycle and are adapted to
extend their benefits beyond the scope of the project to the extent possible. The SDR was
conducted in collaboration with the borrower, which is Eskom, and officials from the South
African Ministry of Water and Environmental Affairs, including the Department of
Environmental Affairs (DEA).1 A draft of this SDR was publicly disclosed by the Bank and by
Eskom in November 2009, and was the subject of stakeholder consultation workshops held in
South Africa in early December 2009. This revised document takes into consideration comments
received from stakeholders, and is being disclosed by the Bank and by Eskom.
5. Project Objectives. The strategic objectives of the EISP are to: (a) support the GoSA in
removal of the growing infrastructure bottlenecks on an accelerated basis; and (b) revive
economic growth in the Southern Africa region through enhancement of South Africa‘s power
supplies in an efficient and sustainable manner to bridge current and projected electricity supply-
demand imbalances that already have taken a toll on sustained regional as well as South Africa‘s
economic growth. The objective of the SDR is to assess the borrower‘s safeguards systems, and
for this purpose the SDR has looked at safeguards documents prepared for several Eskom
investment projects, not all of which would receive Bank support.
6. Project Components. The proposed Project (phase I) will consist of the following
components, which will be implemented by Eskom:
Component A includes the Medupi coal-fired power station (4,800 MW, based on
super-critical technology) and is expected to cost US$12.047 billion2, of which
IBRD will provide financing of about US$3.05 billion. This loan will be provided
against supply and install and civil construction contracts for (i) the power plant and
(ii) associated transmission lines.
Component B includes investments in renewable energy (100 MW Sere Wind Power
Project and 100 MW Upington Concentrating Solar Power Project). This component
is estimated to cost US$1.198 billion, of which IBRD will provide financing of
about US$260 million. The Clean Technology Fund (CTF) will provide financing of
about US$250 million (with the proposed IBRD loan). A US$100 million loan from
CTF is proposed to be processed through AfDB for the component.
Component C includes both sector investments and technical assistance to support
lowering Eskom‘s carbon intensity through energy efficiency and development of
renewable energy. The Majuba Rail Project (shift in transportation mode from road
to rail) and technical assistance for assessing the opportunities for coal-fired power
1 From 1994 through May 2009, DEA was known as the Department of Environmental Affairs and Tourism
(DEAT) and reported to the Ministry of Environmental Affairs and Tourism, As part of a ministerial reorganization
in May 2009, DEA and the Department of Water Affairs (previous part of the Ministry of Water Affairs and
Forestry) were both placed under the authority of the newly designated Ministry of Water and Environmental
Affairs and the Department of Tourism became a separate Ministry of Tourism. For purposes of this report, the current acronym, DEA, will be used when referring to the Department in the present or future tense; and DEAT will
be used when referring to the Departmental actions taken in its previous capacity. 2 The estimate project total cost is based on interest during construction directly related to debt that has been raised
by Eskom for the Medupi power plant. Any Eskom funding costs for its contributions to the plant from the balance
sheet have not been included and have been considered as Eskom equity to the Project.
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plant efficiency improvements and for the development and implementation of
domestic and cross border renewable energy projects are envisaged under this
component. This component is estimated to cost US$537.57 million of which
US$440 million will be financed by IBRD.
The project comprises about US$1.766 billion of Low-carbon Renewable and
Energy Efficiency investments, of which IBRD will finance US$700 million and
CTF will finance US$350 million.3
7. For purposes of assessing the implementation practices, track record, and institutional
capacity of Eskom and the South African regulatory institutions that will be involved in
addressing environmental and social safeguard issues in the proposed Bank-supported EISP, the
Medupi power plant and another major Eskom investment currently under construction, the
4,800 MW Kusile power plant in Mpumalanga Province, were selected by the Bank team to
assess and verify the robustness of the Environmental Impact Assessment (EIA) process and its
outputs under the requirements of OP 4.00. By selecting these two nationally important projects
as the primary subjects of SDR analytical work for the EISP, the Bank achieves two important
objectives: it allows the SDR to assess the integrity and robustness of DEA‘s environmental
review and approval process for two major projects that could be considered of national
importance; and it provides insights into Eskom‘s capacity, commitment, and capability to
address environmental and social safeguards issues with respect to both the EIA process and
project implementation, since construction is well underway for both the Medupi and Kusile
power plant projects. Moreover, this focus on these two key projects is a particularly valuable
approach because both the safeguards work and the initial stages of construction have been
carried out in accordance with Eskom‘s corporate practices prior to the decision by the GoSA to
seek Bank support for Eskom‘s investment program.
8. Although this SDR analytical work focuses on the Medupi and Kusile power plants as
representative examples to assess the borrower‘s safeguards systems, it is important to note that
the Bank team also reviewed safeguards documents already disclosed on Eskom‘s website for
additional Eskom investments that are expected to be financed in part by the Bank‘s EISP. For
example, in preparing the SDR, the Bank team also reviewed the final EIRs prepared by Eskom
for the proposed Sere Wind Power Project (WPP) in Western Cape Province, the Concentrating
Solar Power (CSP) plant near Upington in Northern Cape Province, and the 67-km Ermelo-
Majuba rail line for coal transport in Mpumalanga Province, and found that the safeguards
documents for these proposed Eskom investments demonstrate comparable equivalence and
acceptability with respect to Environmental Assessment and treatment of Natural Habitats,
Physical Cultural Resources, and Involuntary Resettlement. The Bank team also will continue
reviewing the safeguards documents, such as Environmental Impact Reports (EIRs),
Environmental Management Plans (EMPs), or similar documents, prepared by Eskom for other
EISP components as they become available during project preparation, implementation, and
supervision.
3 Including the US$100 million potentially combined with an AfDB loan for the Sere Wind Power Project and the
Upington CSP.
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9. Basis for Selection of Pilot Country and Project. South Africa was selected as a pilot
country because it has an established legal and regulatory system and a favorable reputation for
effective implementation of its systems governing environmental assessment and protection of
natural habitats, protected areas, and physical cultural resources. This has already been
demonstrated by the SDR completed by the Bank for the recently approved Global Environment
Facility (GEF) project in support of the Development, Empowerment, and Conservation of the
iSimangaliso Wetland Park and Surrounding Region (iSimangaliso), which examined South
Africa‘s legal framework for the same four safeguards that are triggered by the EISP, but with
reference to their application to an internationally protected wetlands area with substantial
autonomy from the mainstream of the South African administrative framework.
10. The EISP was selected as a scaled up pilot project because the borrower, Eskom
Holdings Ltd., has demonstrated a substantial corporate commitment to fulfilling and going
―beyond compliance‖ with legal and regulatory requirements and embracing a sustainability
policy on both a corporate and project level. As described in detail below, Eskom subscribes to
the United Nations Global Compact,4 has obtained or is in the process of obtaining ISO 14000
certification for the Environmental Management System (EMS) for each of its operational units,
and seeks to align its projects and its practices with the requirements of the Equator Principles
(i.e., the International Finance Corporation‘s Performance Standards) and with the Global
Reporting Initiative (GRI). Accordingly, there is reason to expect that Eskom‘s systems are
likely to demonstrate strong equivalence with the World Bank safeguards as set forth in OP 4.00
Table A1, and that Eskom‘s investment projects making up the EISP would be implemented in
an acceptable manner with respect to Bank safeguard policies.
11. SDR Methodology. This SDR for the EISP builds and expands on the results of the SDR
completed in March 2009 for the GEF-funded iSimangaliso project, which received Board
approval in December 2009. Although the iSimangaliso project involved a protected natural
habitat rather than an energy generation (and associated infrastructure) project, the SDR included
an Equivalence Analysis of the South African legal framework for Environmental Assessment,
Natural Habitats, Physical Cultural Resources, and Involuntary Resettlement. The March 2009
SDR concluded that the South African systems are fundamentally equivalent to the Objectives
and Operational Policies of OP 4.00 Table A1 with respect to the three environmental safeguard
policies, and partially equivalent with respect to Involuntary Resettlement in the context of its
application to management of a designated protected area.
12. The Equivalence Analysis and Acceptability Assessment for the EISP were carried out by
a multidisciplinary team from the World Bank in collaboration with relevant officials and
technical staff members from Eskom, with cooperation from DEA and the Department of Water
Affairs. The methodology included: desk review of legislation currently in force, supporting
regulations, and mandatory guidelines applicable to the electric power generation sector and
associated infrastructure; discussion with officials; and site visits to the Medupi and Kusile
construction sites, the Sere WPP site, the CSP site, and the 67-km Ermelo-Majuba rail line
servitude, by members of the Bank‘s project team. The Bank team preparing the SDR consisted
entirely of senior level staff and included: an environmental lawyer, three environmental
specialists, a Senior Technical Advisor, and a social specialist.
4 www.unglobalcompact.org.
ix
13. The Equivalence Analysis included a detailed inventory of South African laws and
regulations relating to the four Bank environmental and social safeguard policies triggered by the
project, as identified below in the Equivalence Section of this report. These laws and regulations
are supported by Constitutional provisions, policies, and international agreements ratified by the
GoSA, all of which are included as relevant to the legal framework for the Equivalence Analysis.
An extensive literature review was also conducted tracing the development and evolution of
South African environmental law in both historical and comparative contexts. The analysis
draws careful distinctions between laws and regulations that are mandatory, as valid comparators
to the Operational Principles of OP 4.00 Table A1, and other documents having aspirational or
guidance value, which may inform the analysis and provide a basis for comparison with the
Objectives of OP 4.00 but cannot be considered conclusive evidence of equivalence with the
mandatory provisions of Bank safeguards. Based on this analysis each relevant provision of a
borrower‘s system is characterized as having full, partial, or no equivalence to the corresponding
Objective or Operational Principle of OP 4.00 Table A1.
14. The Acceptability Assessment applied the four-component methodology that has evolved
through the SDR process during the implementation of the UCS pilot program. These four
components include: institutional capacity; processes and procedures; outputs; and outcomes. To
assess relevant institutional capacity, the assessment drew on primary sources including external
and internal reports prepared by Eskom and DEA. These reports provided valuable insights into
Eskom‘s institutional capacity to: (a) conduct environmental assessment; (b) avoid, minimize,
mitigate and compensate for adverse environmental and social impacts resulting from the
construction and operation of thermal power plants and associated infrastructure, while
conserving natural habitat and physical cultural resources; and (c) conduct land acquisition and
related resettlement activities in accord with South African legal requirements and international
good practice as exemplified by Bank safeguard policies and associated guidance documents.
The SDR also examines the capacity of the DEA to apply informed critical judgment to its
review of EIRs submitted by Eskom as demonstrated by its processing of the EIRs for the two
power plants proposed for support under the EISP, and by Eskom or other parties responsible for
associated infrastructure.
15. To assess the effectiveness of implementing processes and procedures, the SDR reviewed
official procedural and guidance documents describing the appropriate conduct of the
environmental assessment and management process in South Africa. Attention was given to the
various stages of the environmental assessment process in South Africa including: the Scoping
Phase and EIR Phase, public consultation and disclosure, culminating in the Environmental
Authorization (formerly known as Record of Decision [ROD]) on the part of the Minister of
Environmental Affairs. Similar review was conducted with respect to the development and
approval of EMPs for the construction and operational phases of the two thermal power plant
projects. The EIRs and construction-stage EMPs were reviewed in light of the requirements for
environmental assessment under South African law and international good practice.
16. With respect to outputs, the SDR critically reviewed: the findings of the EIRs and EMPs
for the Medupi and Kusile projects; the EIRs for the Sere WPP, the Upington CSP plant, and the
coal transport rail spur; and the RODs and other approvals issued by DEA to date. The
Acceptability Assessment also reviewed the land acquisition and compensation process
undertaken by Eskom in connection with project development, and the outcomes of that process
x
with respect to compliance with South African law and the objectives and operational principles
of Bank policy with respect to Involuntary Resettlement.
17. The methodology included stakeholder consultation workshops on the draft findings of
this SDR report as noted above. A summary of the workshops is included as an annex to this
report.
Summary of Equivalence Analysis
18. The first step in the Equivalence Analysis is to identify the World Bank environmental
and social safeguard policies triggered by the project. The four environmental and social
safeguards triggered by the project include: Environmental Assessment (EA); Natural Habitats
(NH); Physical Cultural Resources (PCR); and Involuntary Resettlement (IR).
19. This Equivalence Analysis finds that South Africa‘s regulatory systems for all of the four
safeguards applicable to the project demonstrate sufficient equivalence so as to justify
proceeding to an Acceptability Assessment to determine if and on what basis the Bank can use
South Africa‘s and Eskom‘s systems in lieu of Bank safeguards to address the environmental and
social safeguard issues raised by the proposed project.
20. The following findings apply to the four safeguards, respectively:
Environmental Assessment (EA). With respect to EA, the South African system is
deemed to be fully equivalent to the Objectives and Operational Principles of OP 4.00
Table A1. However one ambiguity in the language in the regulatory framework
required additional clarification during the preparation of the SDR:
- It is not clear from the regulations that the assessment of alternatives is
required to assess their relative feasibility with respect to all of the feasibility
criteria cited in OP 4.00 Table A1. It appears from the South African
regulations that the proponent has the option to include those alternatives
deemed ―feasible and reasonable‖ and compare the advantages and
disadvantages of such alternatives for the environment and the community.
But it does not explicitly require the EIR to justify alternatives considered on
the basis of comparative capital and recurrent costs, and institutional, training
and monitoring requirements, which are among the criteria noted in OP 4.00
Table A1 as among the criteria to be uniformly considered. DEA (then-
DEAT) published guidance on criteria to be included in alternatives
assessment in 2004 (Integrated Environmental Management Information
Series, Series 11: Criteria for Determining Alternatives in EAI), which
recognizes that the range of criteria must be appropriate to the type of project
subject to the EIA process.
As noted later in this report, Eskom‘s policy and practice is to address
alternatives assessment at both the strategic and project-specific levels.
Although South African regulations do not explicitly require consideration of
capital and recurrent costs, and institutional training and monitoring
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requirements, among the key factors for all projects, Eskom does so at both
levels of analyses. Thus, any ambiguity is resolved with respect to Eskom‘s
approach to alternatives analyses.
Natural Habitats (NH). With respect to NH, the South African system is deemed to
be fully equivalent to the Objectives and Operational Principles of OP 4.00 Table A1.
However one ambiguity in the regulatory framework required additional clarification
during the preparation of the SDR:
- South African legislation appears to lack a conservation offset provision for
non-critical natural habitat. South Africa recognizes that as the development
footprint increases, there will be unavoidable net loss of non-critical habitat,
but through the Environmental Authorization (formerly ROD) process,
biodiversity offsets can be required on a case-by-case basis.
As noted later in this report, Eskom, through its partnerships with South
African conservation organizations, has supported conservation offsets for
projects that convert natural habitat, even though South African legislation
does not appear to require such practice.
Physical Cultural Resources (PCR). With respect to PCR, the South African system
is deemed to be fully equivalent to the Objectives and Operational Principles of OP
4.00 Table A1. However a few ambiguities in the regulatory framework required
additional clarification during the preparation of the SDR:
- The extent of participation and obligations of communities in the process of
cultural heritage assessment and conservation remains within the scope of the
EIA process, as specified by the National Heritage Resources Act, but are not
as explicit as stated in OP 4.00 Table A1.
- It is not clear how the legislative framework deals with ―chance finds.‖ A
standard condition is included in all Environmental Authorizations (formerly
RODs) stipulating how ―chance finds‖ must be dealt with during the
construction and operational phase, but the legal basis for this requirement is
not explicit in the regulations.
Although South African regulations do not require it, Eskom implements its
policy of extensive local stakeholder consultation regarding cultural resources,
along with its standard protocol requiring that ―chance finds‖ be reported
immediately to the South African Heritage Resources Agency (SAHRA) and
that construction is halted at the discovery until qualified experts are
consulted.
Involuntary Resettlement (IR). With respect to IR, the South African system is found
to be fully equivalent to the Objectives and Operational Principles of OP 4.00 Table
A1 for all but the following Operational Principles:
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- Rights of access to natural resources and biodiversity of protected areas
(however, as there are no protected areas affected by the project, this gap in
equivalence is not relevant to the conclusion of this SDR);
- Disclosure of draft resettlement plans in a timely manner to the public at large
is not clearly spelled out in Eskom guidelines, although it is a requirement
with respect to directly affected parties under various Acts related to the
National Environmental Management Act (NEMA) and Lands.
It should be mentioned, however, that Eskom has developed a practice to conduct
assessment to confirm whether the objectives of resettlement have been achieved
upon completion of the project, taking into account the baseline conditions and the
results of resettlement monitoring. It also should be noted that the South African
legislation regarding resettlement requires extensive consultation and disclosure with
directly affected people, i.e., those who are to be resettled, and provides for benefits
and livelihood restoration in a manner consistent with the Bank‘s safeguard policy.
Therefore, for the EISP, the key gaps appear to be the absence of a requirement for a
stand-alone, formal Resettlement Action Plan that is disclosed to a broad audience of
interested parties, and a formal mechanism for a completion audit.
Summary of Acceptability Assessment
21. The purpose of the Acceptability Assessment is to confirm that the implementation
practices, track record, and institutional capacity of Eskom, and the South African regulatory
institutions that will be involved in addressing environmental and social safeguard issues in the
proposed Bank-supported EISP, fulfill the requirements of OP 4.00 Table A1. The Acceptability
Assessment examined four criteria: institutional capacity; processes and procedures; outputs; and
outcomes of the borrower‘s systems for EA, NH, PCR, and IR.
Institutional Capacity
22. The institutions responsible for implementing the four environmental and social
safeguards applicable to the project include, in the first instance the borrower, Eskom, as well as
DEA (under the authority of the Ministry of Environmental Affairs and Tourism until May 2009,
and now under the authority of the Ministry of Water and Environmental Affairs with respect to
environmental impact assessment and air and water quality management); Department of Water
Affairs (DWA, formerly the Department of Water Affairs and Forestry), which enforces
regulations governing the supply and use of water; the Department of Land Affairs, under the
Ministry of Agriculture and Land Affairs with respect to land acquisition; the South African
Heritage Resource Agency (SAHRA), which provides the expertise in South Africa to develop
and implement policies and practices regarding protection and management of cultural resources;
and provincial and municipal authorities with respect to many of these same authorizations.
23. Eskom. Eskom is South Africa‘s national, vertically integrated electricity utility, and is
wholly owned by the GoSA through the Department of Public Enterprises. Eskom‘s current
structure is defined by the Eskom Conversion Act of 2001. The utility employs about 35,500
employees (reduced from about 66,000 over the past two decades). Eskom operates its business
xiii
through a number of divisions and subsidiary companies. Eskom‘s core business as a utility is
carried out by the three divisions under the heading Eskom Core Business and is described
below, followed by a brief description of the operations of the key subsidiaries.
24. At the corporate level, environmental and social governance within Eskom begins at the
level of the Chief Executive Officer (CEO) and is overseen by the Executive Directors, who are
full time employees of Eskom, and by the authority delegated to Board Committees, including
the Executive Management Committee and the Sustainability and Safety Subcommittee. The
latter is comprised of four independent non-Executive Directors, along with the CEO and two
Board Members, and guides corporate strategy on sustainability, occupational health and safety,
and environmental matters in line with Eskom‘s safety, health and environment policy, the
NEMA, and the Occupational Health and Safety Act of 1993.
25. Within the management structure of Eskom, each line division (Generation,
Transmission, or Distribution) is individually responsible for carrying out the EIA process,
producing EIRs as required by South African regulations, and implementing the environmental
management and monitoring activities associated with its line of business. To undertake these
tasks Eskom has more than 100 environmental and social specialists located in their headquarters
office and various field operations.
26. Eskom has a comprehensive ―triple bottom line‖ approach to the management of
environmental, health, and safety issues as part of its corporate commitment to sustainability. As
one of the charter members of the United Nations Global Compact, Eskom is committed to
uphold the ten principles of the Compact, which include inter alia protection of the environment,
labor standards, human rights, and anti-corruption. Eskom‘s sustainability performance in 2006
met the requirement for inclusion in the Johannesburg Stock Exchange Socially Responsible
Investment Index. Eskom has a systematic audit process in place to ensure that any non-
compliance with South African legal requirements is identified, reported, and investigated, and
that corrective and preventive measures are implemented.
27. The one weakness at the Eskom corporate level that was identified in this SDR is the
need, publicly acknowledged by Eskom, to pay greater attention to occupational health and
safety, as indicated by a recent record, which Eskom itself characterizes as ―unsatisfactory,‖ of
traffic-related fatalities and injuries and incidents of electrocution resulting from accidental or
unauthorized contact with energized lines or electrical equipment. Accordingly Eskom proposed
to enhance its ―…focus [on] safety training and awareness, skills, competency, supervision and
operational discipline…,‖ and has put in place a procedure to investigate all fatalities promptly
and share lessons learned from case studies. In addition, Eskom engaged the services of an
international specialist to evaluate its electrical safety as well as behavioral safety programs.
Changes were made to the Eskom training materials to incorporate some of the recommendations
made. With respect to community safety, campaigns to improve public awareness were rolled
out in various media and included school visits and the handout of safety materials.
28. DEA. Established in 1994, as the Department of Environmental Affairs and Tourism,
DEA is an independent Department of the GoSA responsible for protecting, conserving, and
improving the environment and natural resources. It now reports to the Minister of Water and
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Environmental Affairs, who is a member of the Cabinet and is appointed by the President from
among members of the National Assembly.
29. DEA management and staff have high levels of specialized training in all key areas of
environmental assessment and management. In particular, the Air Quality Directorate at DEA
has been fully engaged in developing and implementing ambient air and emissions standards that
are aligned with international good practice as defined by the World Bank, the European Union,
and the United States Environmental Protection Agency.
Processes and Procedure for Environmental Assessment and Management for Coal-Fired
Thermal Power Plants and Associated Infrastructure
30. South Africa began undertaking EIA in an ad hoc manner during the 1980s, and a
voluntary EIA procedure was integrated into the Environmental Conservation Act of 1989
(ECA), since largely superseded by the National Environmental Management Act (NEMA).
Requirements for EIA were introduced on a sectoral basis in the Minerals Act of 1991 (Sections
38 and 39(5)). These requirements were generalized by the EIA Regulations of September 5,
1997, which mandated a process including screening, scoping, public participation,
environmental reports, review, and decision. (For purposes of clarity, it should be noted that the
current South African regulations refer to an EIA process, which produces an EIR, and this
terminology is used in this SDR).
31. Following an extensive process of expert review and public consultation and discussion,
substantially revised EIA Regulations were issued in 2006. The new regulations resulted in a
more coherent process with respect to application of EIA including: (a) EIA scoping, (b)
decision-making procedures, (c) roles, (d) responsibilities and compliance, (e) public
participation, and (f) appeal process.
32. In November 2008, DEA (then DEAT) commissioned and issued a draft review of the
previous ten years of EIA practice in South Africa. The draft report was conducted by
independent consultants. The main findings of the report are that: (a) the overall effectiveness of
EIA process in South Africa in meeting requirements of ECA and then NEMA was deemed
moderately effective but with room for improvement; (b) overall there was a significant
improvement in effectiveness and efficiency of EIA in moving from the ECA regulations to the
NEMA regulations; (c) public participation in EIA is effective; (d) the cumulative (combined)
impacts aspect is generally not considered effective and there is significant room for
improvement; (e) the EIA process in South Africa is implemented relatively efficiently in terms
of the average time it takes to produce and evaluate EIAs; (f) monitoring and enforcement in
environmental management is one area where the current EIA system is not effective or efficient;
and (g) a more strategic approach to environmental impact management is required and there is a
definite need to move away from an ―EIA only‖ system to one based on integrated
environmental management.
33. South Africa‘s legal and regulatory framework for management of ambient air quality is
based on World Health Organization standards, and is therefore closely aligned with those used
by the World Bank Group (WBG) as specified in the WBG General Environmental, Health and
Safety Guidelines (EHSG) issued in April 2007. With respect to levels of emissions from
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thermal power plants, the proposed South African regulatory approach to emissions standards for
new plants is generally comparable to the WBG EHSG for Thermal Power issued in December
2008 in that it distinguishes between new and existing plants and sets more stringent
requirements for plants that discharge emissions to a degraded airshed. (see Annex 4).
34. Permitting is a key output of the EIA process in South Africa. With respect to the air
quality impacts of electrical generating facilities, the principal authorization is the Atmospheric
Emission License (AEL). The granting of an AEL must be preceded by the issuance of a ROD,
now referred to as an Environmental Authorization, for an EIA application, which, for listed
activities (including thermal power plants with more than 70 MW heat output) is required to be
accompanied by an Air Quality Impact Assessment Study prepared by qualified specialists.
Metropolitan and district municipalities are charged with implementing the atmospheric
licensing system per Section 36 of the Air Quality Act of 2004 (AQA), subject to alternative
arrangements in which a provincial organ of state may be designated as the issuing authority.
The contents of an AEL must include the maximum allowed amount, volume, and emission rate
or concentration of pollutants that may discharged into the atmosphere under normal working
conditions and during start-up, maintenance, and shut-down conditions.
35. Compliance monitoring and enforcement requirements for ambient air quality and
emissions from electricity generating facilities are set forth in the Atmospheric Pollution
Prevention Act of 1965 (APPA) which is being phased out under the terms of the 2004 AQA.
Standards issued under the AQA also set forth reference methods and siting criteria for sampling
of priority air pollutants associated with electricity generation facilities including particulate
matter (PM10), sulfur dioxide (SO2), nitrogen oxides (NOx), and carbon monoxide (CO) as well
as ozone, lead, and benzene.
36. As part of the National Framework for Air Quality Management in South Africa
(National Framework), and in implementation of mandatory provisions of the AQA, an extensive
network of ambient air quality stations has been established, owned and operated by a variety of
organizations. South African National Standards (SANS) for ambient air quality monitoring have
been established.
37. However, the AQA itself makes no provision for the enforcement of its own provisions;
rather, enforcement provisions are located in NEMA as framework legislation, where provision
is made for the statutory designation of Environmental Management Inspectors (EMIs) to
monitor compliance with and enforce AQA. NEMA grants EMIs (acting within their designation
and mandate) extremely wide powers, including powers of inspection, investigation,
administrative and enforcement actions. The first EMIs were designated by the Minister of
Environmental Affairs and Tourism in June 2006 and there were 903 trained and designated
EMIs reached as of March 31, 2008.
Processes and Procedures for Management of Social Impacts from Thermal Power Plants and
Associated Infrastructure
38. Eskom seeks to avoid land expropriation wherever possible and includes the potential
need for expropriation, resettlement, compensation and rehabilitation among the criteria used for
alternative site assessment. When resettlement is unavoidable, all displaced people are
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effectively consulted and compensated; support and other benefits are provided in the relocation
process, including livelihood restoration (―rehabilitation‖) as mandated by GoSA law.
39. Eskom provides security of tenure to resettled parties and helps register deeds of
ownership.
40. Replacement accommodation is based on South African Bureau of Standards
requirements for housing, which require minimum brick, mortar and tile structures with running
potable water and proper sanitation. Where cost-effective, Eskom also seeks to provide
electricity to replacement structures. Eskom‘s expenditure in these transactions is strictly
controlled by the Public Finance Management Act; however, it is Eskom‘s policy to ensure that
resettled parties are better off than prior to resettlement. Eskom seeks to maximize employment
of displaced persons in whatever jobs may be available on project sites. However, these are
typically unskilled construction jobs of limited duration.
41. Where in-kind resettlement opportunities are not available, Eskom provides cash
compensation based on an independent valuation using open market selling trends of similar land
based on registered sales over a period between three months and three years. In cases where the
land owner disagrees with the compensation offered, the owner is entitled to hire a valuer of his
or her own choosing, with the final offer typically reflecting the difference between the two
valuations.
42. Although Eskom does not prepare formal publicly-disclosed resettlement plans, Eskom
does undertake independent social assessment and develops internal plans for resettlement with
timelines and commitments. The plan is treated as a living document that is updated as required
on an ongoing basis. All negotiated outcomes are documented as formalized agreements and the
entire resettlement process is documented and filed by Eskom. The implementation phase of the
contractual resettlement plan is monitored and evaluated and is subject to amendment by mutual
agreement of the parties.
Public Consultation and Disclosure in the EIA and Land Acquisition and Resettlement
Processes
43. In examining the EIA process for both the Medupi and Kusile projects, the Bank team
determined that Interested and Affected Parties (I&APs) were informed about the projects and
consulted at various stages of the EIA process. During the Scoping Phase public participation
was comprehensive and included advertising in national, regional, and local newspapers,
subsequent notifications in regional and local newspapers, and the dissemination of a non-
technical Background Information Document (BID) in English, Afrikaans, and local languages,
which was updated on various occasions to take account of the evolution of the project. Public
fora were held at diverse venues in each area, organized and facilitated by an independent
consultant. Following the issuance of the Draft EIR reports, both on the internet and in hard copy
at local public libraries and municipal offices, a second round of local public consultations took
place.
44. The main issues raised by stakeholders for the Medupi and Kusile projects concerned
increases in air and noise pollution and the consequent potential impacts on public health. The
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issues raised and the responses by Eskom and government authorities to public comments and
questions is thoroughly documented in minutes from the public consultations and summarized
thematically in two ―Issues Trails‖ documents prepared by the independent consultant.
Stakeholders are also encouraged and often comment not only on the substance of the EIR but
also on the disclosure and consultation process itself. The public consultation process is
continued during construction, and will continue throughout project implementation with the
assignment of Environmental Control Officers and the constitution of Environmental Monitoring
Committees that include local stakeholder representatives.
Outputs: EIA Process and EIR Content for Medupi and Kusile
45. The EIA process for the Medupi and Kusile plants, as well as associated transmission
lines and most of the investments under consideration for the EISP, has been thoroughly
documented, and the project-specific EIRs of projects that Eskom proposes to undertake are
disclosed (and remain available) on Eskom‘s website.5 The EIA processes and content of the
EIRs for the two thermal power plants now under construction conform fully to the regulatory
requirements in effect at the time that the applications to commence the EIA process were
approved, i.e., the EIA Regulations issued in 1997 under the authority of the ECA of 1989.
However, the EIA process and EIR content for both projects was strongly influenced by and is
essentially consistent with the EIA Regulations that became effective in July 2006, although they
are not legally applicable to the Medupi and Kusile projects. This is because the EIA process for
both projects began at a time when the draft new regulations were already out for public
comment; therefore, Eskom chose, and instructed its consultants, to conform with the proposed
new regulations as well. As noted in the Equivalence section of this report, the 2006 EIA
Regulations are nearly fully equivalent to the Objectives and Operational Principles of OP 4.00
Table A1 with the exception of an ambiguity in the regulations regarding whether capital and
recurrent costs, and training and monitoring requirements are among the criteria to be considered
as part of the alternatives assessment. However, as would be expected, these criteria were fully
addressed in the strategic planning and project-specific EIA process for the two plants as per
Eskom‘s corporate practice.
46. An independent assessment of the EIA process and resulting EIRs commissioned by
Eskom concluded that both the EIA process and the content of the EIRs were consistent with the
requirements of the Equator Principles, which are based on the International Finance Corporation
(IFC) Performance Standards and which also make reference to the WBG Thermal Power
Guidelines issued under the 1998 PPAH and as revised in December 2008.
47. The Bank‘s own review of the EIRs indicated that both are consistent with international
good practice and with the Objectives and Operational Principles of OP 4.00 Table A1 with
respect to EA, notwithstanding the minor ambiguity in the South African legal framework as
noted in the Equivalence Analysis.
48. To date final EMPs have been prepared and approved by DEA for the construction phase
of the Medupi and Kusile projects, and a draft EMP has been prepared for the operational phase
of Medupi. Based on a review of these documents it may be concluded that the EMPs satisfy
5 www.eskom.co.za/eia.
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South African regulatory requirements and are consistent with Bank-recommended practice for
EMP.
49. The EIRs for the two plants were approved by DEA in publicly disclosed RODs issued in
September 2006 for Medupi and in June 2007 for Kusile. The RODs include a long list of
statutory and regulatory requirements reflecting site-specific projected impacts as documented in
the EIRs. These impacts relate primarily to air emissions and ambient air impacts; liquid effluent
control; management of ash and other solid wastes; and hazard assessment. The RODs require
that Eskom implement detailed monitoring and reporting protocols, and that Eskom appoint
independent Environmental Control Officers (having dual reporting to Eskom and DEA) and
establish Environmental Monitoring Committees including local stakeholder representatives. The
RODs demonstrate that DEA has the capacity and commitment to independently assess and
identify conditions that should be imposed on projects on a case-by-case basis.
50. It should be noted that the RODs issued by DEA provide approval based on the
satisfactory conclusion of the EIA process and conditions attached to project implementation. As
noted in the RODs for the Medupi and Kusile projects, Eskom must still obtain individual
permits, including an AEL from the Chief Air Pollution Control Officer (DEA) as per the AQA,
a Water Use License, and licenses for waste disposal, among others. Issuance of some of these
licenses, especially for the operational phase, is still pending. RODs for some of the other EISP
components and associated transmission lines are publicly disclosed and available on DEA‘s
website ( http://www.environment.gov.za/).
Projected Outcomes: Environment
51. The major potential environmental impacts of both the Medupi and Kusile projects relate
to the impact of emissions on local air quality and human health, in particular with respect to the
major pollutant, SO2. As existing ambient air quality conditions and water resources differ
among the two sites, so does the timing of the proposed mitigation measures as presented in the
EIR and required by the ROD.
52. The designated airshed at Medupi, which corresponds to the Waterberg District
Municipality, is not yet considered degraded with respect to ambient air quality. However,
ambient conditions in the airshed are expected to deteriorate in the future. Accordingly, DEA
intends to propose that the Minister declare the Waterberg airshed as a National Priority Area for
Air Quality and this declaration is likely to be issued sometime within the next year. Such a
declaration would provide DEA with additional authority to require designated sources of
emission, including Eskom, to take specified measures to reduce emissions such that ambient
conditions are maintained at acceptable levels. In addition, DEA has proposed emission
limitations for new and existing thermal power plants that will come into effect along with
certain provisions of the AQA on April 1, 2010. Under these provisions as currently proposed,
Medupi would be required to meet the limitations for existing plants within five years of
commencing operations, and the much more stringent limitations applicable to new plants within
an additional three to five years.
53. These ambient and emission limitations will oblige Eskom, to take unspecified measures
to substantially reduce its sulfur dioxide (SO2) emissions from the levels that would result from
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direct unmitigated combustion of coal to levels below the applicable emission limits and to take
other actions, as necessary as specified in its ROD, (and to be further specified in its AEL) in
order to further reduce its contribution to ambient conditions. Flue Gas Desulfurization (FGD)
technology is the only means of achieving significant reductions in SO2 emissions from a given
coal feedstock; accordingly, Eskom‘s Board of Directors has approved installation of FGD and
Eskom has designed and is constructing the Medupi plant to be ―FGD-ready,‖ with sufficient
infrastructure in place to accommodate installation of wet-FGD technology when it becomes
necessary, and technically and operationally feasible to do so. Eskom‘s staged approach to FGD
is consistent with its environmental authorization (the ROD).
54. Although wet-FGD is the most efficient technology for reduction of SO2 emissions,
Eskom faces a potential significant constraint in that wet-FGD is highly water intensive and local
sources of water are insufficient to operate the plant at full capacity, even without FGD.
Accordingly, Eskom is seeking from DWA an allocation of water from supplemental water
sources, sufficient not only to operate the plant at full capacity, but to operate FGD when
necessary. This allocation is dependent on the availability of water from the Mokolo and
Crocodile Water Augmentation Project (MCWAP) that is being developed by DWA to supply
supplemental water to priority users, including Eskom, in the Waterberg District Municipality
and elsewhere in Limpopo Province. This water supply is not expected to become available until
2014 at the earliest by which time all six units at Medupi are expected to be operational.
55. As noted above, initially, and for five years of operations, Eskom will be required to
operate Medupi in compliance with the proposed emissions standards for existing plants. Based
on the data from the EIR, it would appear that Medupi should be able to meet these standards in
the absence of FGD. However, once the standard for new plants become applicable to Medupi, in
about 2019, Eskom will need to have FGD installed at Medupi. Accordingly, Eskom is planning
to undertake FGD installation from 2018-2021, as part of its scheduled operational maintenance
program, during which each power block is taken off-line for routine maintenance beginning
after six years of operation. Although progress on the project to supply the required amount of
water is on schedule, the Bank has, nevertheless, requested evidence from the Department of
Water Affairs, committing to timely water supply to Eskom. Furthermore, in the event that
sufficient water is not available (or allocated to Eskom) from the MCWAP, the Bank will
recommend that Eskom proactively investigate the feasibility of using a less water intensive dry-
FGD technology prior to commencing full operations.
56. It should be noted that with either wet- or dry-FGD technology installed it is expected
that Medupi would be able to operate in compliance not only with the proposed South African
limitations for new plants, but with the equally stringent World Bank Group Environment,
Health and Safety Guidelines for Thermal Power plants issued in December 2008.
57. In contrast to Medupi, Kusile is located in an airshed that is already considered degraded
with respect to particulates, but is adequately supplied with sufficient water to operate a wet-
FGD system from the commencement of operations. Therefore the ROD for Kusile requires that
the FGD system be fully operational at commissioning. Accordingly, Kusile will comply from
the outset with international good practice as recommended in the Bank‘s 2008 EHSG for
Thermal Power Plants, as well as with the forthcoming national regulations for new sources.
Both plants are to be equipped with fabric (baghouse) filters to control emissions of particulates,
xx
and low-NOx burners to reduce emissions of NOx to levels consistent with proposed South
African regulatory requirements and international good practice as recommended in the Bank‘s
2008 EHSG for Thermal Power Plants.
58. With respect to wastewater control, both Medupi and Kusile are designed as Zero
Effluent Discharge facilities during operations, with all process and wastewater to be recycled.
Solid waste, in the form of coal ash, will be disposed of in engineered ash storage facilities that
will be lined and equipped with leachate detection and collection capacity. Ash disposal will
occur with the minimum amount of water necessary to prevent dust formation; once deposited,
the ash is quickly covered with topsoil for purposes of revegetation.
Projected Outcomes: Social Impacts
59. The social impacts from both Medupi and Kusile are of a moderate scale. As explained
below, there was no need to conduct a full Resettlement Action Plan or Framework under OP
4.00 Table A1 (or OP 4.12) for the Medupi project, and resettlement was relatively small scale
for the Kusile project. In neither case has expropriation been required nor are there any
outstanding restitution claims on lands to be acquired for the projects. In both cases land has
been acquired by Eskom through voluntary willing buyer-willing seller transactions at realistic
market based prices wherein land was acquired from local farmers. Social assessment and public
outreach were undertaken to fully identify individuals and households, including neighboring
farms and farm laborers, whose livelihoods might be affected by the land acquisition and other
project activities.
60. For the construction and operation of Medupi two game farms were purchased by Eskom.
At one of the game farms there was one full-time worker residing on the farm at the time of
purchase, and it was agreed that the farm worker will continue to be in the owner‘s employ and
be relocated at the owner‘s expense to one of his other properties. No laborers or any other
occupiers resided on the other farm at the time of purchase, and therefore no relocations were
required with respect to that property.
61. At Kusile, social assessment indicated the presence of 18 family units of farm laborers
requiring resettlement. To implement the resettlement, Eskom engaged the services of a
specialized contractor, and, through a process of extensive consultation with the directly affected
people, provided the families with several resettlement options on neighboring farms, some
owned by Eskom, or on other land leased from other farmers for the purpose of resettlement. The
families that opted to resettle on the Eskom-owned farms were provided with permanent homes
with individual fencing, running water and sanitation, vegetable gardens, and a playground for
children. Eskom assisted the project-affected peoples in establishing a Communal Property
Association that would acquire ownership of the properties in the names of the family units. For
those families who elected through the consultation process to be resettled on other properties,
Eskom arranged to have existing structures rehabilitated or constructed new structures where
existing structures were not of sufficient quality.
62. For the transmission lines that will be built as associated facilities for the EISP, Eskom
follows its corporate practice of initially identifying, through the EIA process, corridors that
avoid or minimize the need for relocation of households or farm structures, and subsequent
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refinement of the location of the right-of-way and tower locations within the preferred corridor to
further reduce the need for physical displacement of people or structures, and avoid or minimize
adverse effects on livelihoods or economic activities. Land valuation is required as part of the
route selection process to determine appropriate compensation for acquisition of right-of-way for
construction and maintenance.
Summary of Gaps and Proposed Gap-Filling Measures
63. OP 4.00 requires that prior to piloting a project under a borrower‘s environmental or
social safeguard system, the Bank and the borrower reach agreement on a time-bound Action
Plan to address gaps in Equivalence and Acceptability that have been identified in the SDR. At
the draft stage of the SDR the Bank discloses the gaps that have been identified for further
discussion with the borrower and other stakeholders including local stakeholders in the proposed
project. For the EISP, the borrower is Eskom. The gap analysis begins with the South African
laws and regulations as the regulatory framework with which Eskom must comply, but the final
analysis of required gap-filling measures focuses on the consistency of Eskom‘s policies,
procedures, and practices for its projects with respect to OP 4.00 Table A1.
64. Equivalence. With respect to the SDR process conducted to date, the Bank has identified
a few minor ambiguities or gaps in South Africa‘s legal framework with respect to the four Bank
safeguard policies triggered by the EISP. However, it would appear from the analysis of Eskom‘s
policies and procedures that all of these gaps in the legal framework applicable to environmental
safeguards are fully addressed and internalized in Eskom‘s policies and practices, with the
exception of preparation of a stand-alone Resettlement Action Plan and its disclosure to a broad
public audience.
65. With respect to EA, Eskom‘s policy is to address alternatives assessment at both the
strategic and project-specific levels, irrespective of any residual ambiguities in South Africa‘s
legal framework for the types of factors to consider in alternative analysis as part of the EIA
process. Therefore, although South Africa requires alternatives analysis to include capital and
recurrent costs, or institutional training and monitoring requirements as a matter of good
practice, rather than as a regulatory requirement, Eskom does so as a standard operating
procedure at both strategic and operational levels of analysis.
66. With respect to NH, Eskom, through its partnerships with South African conservation
organizations, has supported conservation offsets for projects that convert natural habitat,
although South African legislation does not, as matter of policy require such offsets. In any case,
neither the Medupi nor Kusile projects will impact significant areas of high quality natural
habitat to an extent that such an offset would be necessary or appropriate.
67. With respect to PCR, Eskom‘s existing policy of extensive local stakeholder consultation
regarding cultural sites and artifacts along with its standard protocol requiring that ―chance
finds‖ be reported to the South African Heritage Resources Agency (SAHRA) obviates a need
for gap-filling at the institutional level. A review of project construction to date demonstrates
that Eskom‘s approach to ―chance finds‖ has been effectively implemented by Eskom‘s
construction contractors, even though South African regulations do not require a formal protocol
to address chance finds.
xxii
68. It is only with respect to IR that South Africa appears to lack a legal mechanism, and
Eskom an administrative mechanism, to require the preparation of publicly-disclosed, stand-
alone resettlement plans or frameworks, or to publicly disclose its evaluation of the success of
resettlement and rehabilitation activities. Accordingly, the Bank proposes to encourage Eskom to
introduce such an administrative mechanism as corporate practice. Eskom has already disclosed
on its website its corporate resettlement policy,6 which summarizes its corporate policy and
practice with respect to land acquisition, resettlement, and rehabilitation (livelihood restoration)
and a Resettlement Policy Framework specific to Components 2 and 3 of EISP.7 Audits will also
be required for any resettlement already carried out for EISP components. For any EISP
components for which resettlement is needed but has not yet occurred, the Bank will require and
Eskom has agreed to disclose its draft resettlement plans for those components.
69. Acceptability. A detailed review of Eskom‘s policies and procedures with respect to the
four triggered safeguard policies as implemented on a corporate level, and as demonstrated by
the planning and implementation of the Medupi and Kusile projects to date, indicates a high level
of consistency with international good practice as exemplified by international standards of
corporate environmental and social management, such as the United Nations Global Compact,
IFC Performance Standards, the Equator Principles, and relevant WBG EHSG. There are,
however, two outstanding issues where there are potential gaps in Eskom‘s performance with
respect to the expected outcomes of the Medupi and Kusile projects.
70. With respect to SO2 emissions and ambient impacts on air quality and human health, the
Bank, due to short tenure of its proposed loan agreement, relative to the regulatory timetable for
Medupi‘s compliance with the proposed South African regulations, will seek agreement with
Eskom to commit to timely installation of FGD in all six units at Medupi as soon as it is
technically and operationally feasible to do so, and to seek Eskom‘s agreement to provide to the
Bank in mid 2013 a report satisfactory to the Bank that provides a plan and schedule for timely
installation of SO2 emissions abatement measures. This may include an independent feasibility
analysis of alternative control technologies in the event that sufficient water is not available or
allocated to enable Eskom to operate the wet-FGD units. Given that Eskom‘s compliance with
South African emissions requirements can be expected to result from the implementation of the
South Africa‘s existing and proposed regulatory system, without Bank intervention, and the
supplemental agreements reached between the Bank and Eskom are for the sole benefit of the
Bank as a medium-term lender, these agreements need not be considered as ―gap-filling
measures‖ as this term is used in this SDR. However, any subsequent changes in South Africa‘s
regulatory requirements or actions, which would bring this compliance into question, would
trigger Bank remedies per OP 4.00.8
6 ―Procedure for the Involuntary Resettlement of Legal and Illegal Occupants on or from Eskom-Procured Land;‖
(July 2009). http://www.eskom.co.za/content/20091009091904201.pdf 7 ―Status and Process of Land Acquisition and Resettlement for Eskom‘s Concentrating Solar Plant (CSP), Wind
Energy Facility, Majuba Rail and Transmission Projects‖ (October 2009).
http://www.eskom.co.za/content/RelocationResettl_Final.pdf 8 OP 4.00, para. 6, ―Changes in Borrower Systems and Bank Remedies. If, during project implementation, there are
changes in applicable legislation, regulations, rules or procedures, the Bank assesses the effect of those changes and
discusses them with the borrower. If, in the judgment of the Bank, the changes reflect a further improvement in the
country systems, and if the borrower so requests, the Bank may agree to revise the legal framework applicable to the
operation to reflect these improvements, and to amend the legal agreement as necessary. Management documents,
xxiii
71. With respect to IR, Eskom staff has acknowledged the benefits of conducting
independent retrospective monitoring of the social and economic impacts of any involuntary
resettlement associated with its projects. For EISP components where resettlement has already
occurred, the Bank will require that Eskom conduct and publish an audit of the resettlement
based on Terms of Reference to be agreed by the Bank. For any EISP components for which
resettlement is needed but has not yet occurred, the Bank will require Eskom to disclose its draft
resettlement plans for those components. To begin addressing this identified gap between Bank
policy and Eskom‘s practice, Eskom prepared and disclosed on its website a Resettlement Policy
Framework, which explains its corporate approach to resettlement and land acquisition.
explains, and justifies any changes to such framework, and submits them for Board approval (normally on an
absence of objection basis). If the country system is changed in a manner inconsistent with the legal framework
agreed with the Bank, the Bank‘s contractual remedies apply.‖
1
I. BACKGROUND
1. Under Operational Policy/Bank Procedure 4.00 (OP/BP 4.00), Piloting the Use of
Borrower Systems to Address Environmental and Social Safeguard Issues in Bank-Supported
Projects, the Bank has had the authority since March 2005 to support pilot projects in which
lending operations are prepared using the borrowing country‘s systems for environmental and
social safeguards, rather than the Bank‘s corresponding operational policies and procedures
(Annex 1). The advantages of using country systems (UCS) are to scale up development impact,
increase country ownership, build institutional capacity, facilitate donor harmonization in
approaches to environmental and social safeguards, and increase cost effectiveness. These
objectives were broadly endorsed at the Paris High Level Forum on Aid Effectiveness in March
2005 with respect to environmental and social safeguards, as well as financial management and
procurement, and strongly reiterated in the Accra Agenda for Action in September 2008.1 Since
March 2005, the World Bank has approved ten pilot projects prepared under this initial phase of
the pilot program, including a pilot project in South Africa.2 On January 31, 2008, the Executive
Directors of the World Bank approved a three-year extension of the pilot program, but requested
an incremental scaling up of the pilots from the project to the country-level, including support of
activities at the sub-national level. Under the three-year extension, i.e., the second phase of the
pilot program, nine pilots have been formally initiated and are being worked on, including a
second scaled up project in South Africa for which this document has been prepared.
2. OP/BP 4.00 describes the approach, enumerates the criteria for using country systems,
and specifies documentation and disclosure requirements and respective roles of the borrower
and the Bank. This approach and the criteria for assessment were developed with inputs from
external stakeholders such as representatives of governments, bilateral and multilateral
development institutions, civil society organizations, and the private sector. According to OP
4.00, prior to appraisal for any project proposed to be piloted under one or more of a borrower‘s
safeguard systems, the Bank is required to conduct an Equivalence Analysis and an Acceptability
Assessment, and to reach any agreements necessary with the borrower for Gap-Filling measures
as may be necessary to ensure that the Objectives and Operational Principles of the Bank‘s
applicable environmental and social safeguard policies will be met. Under OP 4.00 the focus of
safeguards supervision will be on the implementation of the borrowers‘ environmental and social
safeguard systems and agreed gap-filling measures.
3. The Bank considers a borrower‘s environmental and social safeguard system to be
equivalent to the Bank‘s if the borrower‘s system is designed to achieve the objectives and
adhere to the applicable operational principles set out in Table A1 of OP 4.00. Since equivalence
1 In the Paris Declaration, developing countries committed to strengthen their safeguards systems, and donors
committed to use those systems to the maximum extent possible. The Accra Agenda noted that even when there are
good-quality country systems, donors often do not use them. Therefore, donors agreed to use country systems as the first option in support of activities managed by the public sector and, should donors choose not to use country
systems, they will transparently state the rationale for this and will review their positions at regular intervals. 2 The ten pilot projects approved by the Board and in implementation are located in Ghana, Egypt, Tunisia (two
projects), Romania (two projects), Jamaica, Bhutan, India, and South Africa. Two of the projects, India and Ghana,
involved the energy sector.
2
is determined on a policy-by-policy basis in accordance with Table A1, the Bank may conclude
that the borrower‘s system is equivalent to the Bank‘s with respect to some of the environmental
or social safeguards in particular pilot projects, and not with respect to the others. Before
deciding on the use of borrower systems, the Bank also assesses the acceptability of the
borrower‘s institutional capacity, implementation practices, and past performance in similar
projects. Gap-filling measures must be implemented prior to project approval or, if carried out by
necessity during project implementation, are subject to a time-bound legal agreement between
the Bank and the borrower. The process and product of analyzing equivalence, assessing
eligibility and identifying and agreeing on gap-filling measures is called a Safeguards Diagnostic
Review (SDR).
4. This SDR is prepared for the Eskom Investment Support Project (EISP) in South Africa.
The project has been requested by the Government of South Africa (GoSA) to support selected
investments by Eskom Holdings Ltd. (Eskom) in the power sector. This SDR describes the
scope, methodology, and findings of the equivalence analysis and acceptability assessment
carried out in South Africa by staff from the World Bank. It also identifies and proposes gap-
filling measures designed to ensure that applicable South African safeguard systems, and
Eskom‘s corporate practices for complying with the relevant South African regulations, meet the
equivalence and acceptability criteria of OP 4.00 throughout the project cycle and are adapted to
extend their benefits beyond the scope of the project to the extent possible. The SDR was
conducted in collaboration with the borrower, which will be Eskom, and officials from the South
African Ministry of Water and Environment, including the Department of Environmental Affairs
(DEA).3 A draft of this SDR was publicly disclosed by the Bank and by Eskom in November
2009, and was the subject of stakeholder consultation workshops held in South Africa in early
December 2009. This document takes into consideration comments received from stakeholders,
and is being re-disclosed in its final form.
II. PROJECT DESCRIPTION
5. The proposed project will be a US$4.0 billion financing package to support the GoSA‘s
energy sector investment plan. This project will have a total cost of about US$19 billion, to be
implemented largely by Eskom. At the request of the GoSA, the International Bank for
Reconstruction and Development (IBRD) loan, which would be counter-guaranteed by the
GoSA, is proposed to be provided directly to Eskom. The EISP for the purposes of this SDR
refers to the full set of Eskom investments that would receive Bank support. The objective of the
SDR is to assess the borrower‘s safeguards systems, and for this purpose the SDR has looked at
safeguards documents prepared for several Eskom investment projects, not all of which would
receive Bank support.
3 From 1994 through May 2009, DEA was known as the Department of Environmental Affairs and Tourism
(DEAT) and reported to the Ministry of Environmental Affairs and Tourism, As part of a ministerial reorganization in May 2009, DEA and the Department of Water Affairs (previous part of the Ministry of Water Affairs and
Forestry) were both placed under the authority of the newly designated Ministry of Water and Environmental
Affairs and the Department of Tourism became a separate Ministry of Tourism. For purposes of this report, the
current acronym, DEA, will be used when referring to the Department in the present or future tense; and DEAT will
be used when referring to the Departmental actions taken in its previous capacity.
3
6. The proposed Project (phase I) will consist of the following components, which will be
implemented by Eskom:
Component A includes the Medupi coal-fired power station (4,800 MW, based on
super-critical technology) and is expected to cost US$12.047 billion4, of which IBRD
will provide financing of about US$3.05 billion. This loan will be provided against
supply and install and civil construction contracts for (i) the power plant and (ii)
associated transmission lines.
Component B includes investments in renewable energy (100 MW Sere Wind Power
Project and 100 MW Upington Concentrating Solar Power Project). This component
is estimated to cost US$1.198 billion, of which IBRD will provide financing of about
US$260 million. The Clean Technology Fund (CTF) will provide financing of about
US$250 million (with the proposed IBRD loan). A US$100 million loan from CTF is
proposed to be processed through AfDB for the component.
Component C includes both sector investments and technical assistance to support
lowering Eskom‘s carbon intensity through energy efficiency and development of
renewable energy. The Majuba Rail Project (shift in transportation mode from road to
rail) and technical assistance for assessing the opportunities for coal-fired power plant
efficiency improvements and for the development and implementation of domestic
and cross border renewable energy projects are envisaged under this component. This
component is estimated to cost US$537.57 million of which US$440 million will be
financed by IBRD.
The project comprises about US$1.766 billion of Low-carbon Renewable and Energy
Efficiency investments, of which IBRD will finance US$700 million and CTF will
finance US$350 million.5
7. For purposes of assessing the robustness of South Africa‘s Environmental Impact
Assessment (EIA) process and its outputs under the requirements of OP 4.00, the Bank
undertook a detailed analysis of the EIA process and outputs (Environmental Assessment
Reports and Environmental Management Plans submitted by Eskom, and Records of Decision
issued by DEA for the largest Bank-supported component of the EISP, the Medupi power plant).
In addition, to add a further level of objectivity to the analysis of the EIA process and outputs,
the Bank reviewed a second major thermal power plant that is not proposed for Bank support, the
4,800 MW Kusile power plant in Mpumalanga Province. By selecting these two nationally
important projects as the primary subjects of SDR analytical work for the EISP, the Bank
achieves two important objectives: it allows the SDR to assess the integrity and robustness of
DEA‘s (formerly DEAT‘s) environmental review and approval process for two major projects
that could be considered of national importance; and it provides insights into Eskom‘s capacity,
commitment, and capability to address environmental and social safeguards issues with respect
4 The estimate project total cost is based on interest during construction directly related to debt that has been raised
by Eskom for the Medupi power plant. Any Eskom funding costs for its contributions to the plant from the balance
sheet have not been included and have been considered as Eskom equity to the Project. 5 Including the US$100 million potentially combined with an AfDB loan for the Sere Wind Power Project and the
Upington Concentrating Solar Power plant.
4
to both the EIA process and project implementation, since construction is well underway for both
the Medupi and Kusile projects. Moreover, the focus on these two key projects, one of which is
expected to receive Bank support as part of the EISP, is a particularly valuable approach because
both the safeguards work and the initial stages of construction have been carried out in
accordance with Eskom‘s corporate practices prior to the decision by the GoSA to seek Bank
support for Eskom‘s investment program.
8. During preparation of this SDR, the Bank team also reviewed the final EIRs prepared by
Eskom for the proposed Sere Wind Power Project (WPP) in Western Cape Province, the
Concentrating Solar Power (CSP) plant near Upington in Northern Cape Province, and the 67-
km Ermelo-Majuba rail line for coal transport in Mpumalanga Province, as well as the
transmission lines that will connect the Medupi Power Plant to the national grid. The purpose of
this review of additional EIRs by the Bank team was to ensure that the findings of this SDR
regarding equivalence and acceptability of the borrower‘s safeguards system remain valid with
respect to Environmental Assessment, Natural Habitats, Physical Cultural Resources, and
Involuntary Resettlement for the candidate EISP components in addition to the Medupi and
Kusile thermal power plants. Although this SDR analytical work focuses on the Medupi and
Kusile power plants as representative examples to assess the borrower‘s safeguards systems, it is
important to note that the Bank team will continue reviewing the safeguards documents, such as
Environmental Impact Reports (EIRs), Environmental Management Plans (EMPs), or similar
documents, prepared by Eskom for other EISP components, including associated facilities, as
they become available during project preparation, implementation, and supervision.
9. Project Objectives. The strategic objectives of the EISP are to: (a) support the GoSA in
removal of the growing infrastructure bottlenecks on an accelerated basis; and (b) revive
economic growth in the Southern Africa region through enhancement of South Africa‘s power
supplies in an efficient and sustainable manner to bridge current and projected electricity supply-
demand imbalances that already have taken a toll on sustained regional as well as South Africa‘s
economic growth. The outcomes of the project would be measured by the following indicators:
Installation of an additional 4,800 MW or more of grid-connected power generation
capacity by supporting implementation of Eskom‘s investment program.
Prepared plans and designs for retrofitting of some of Eskom‘s power stations in
order to improve efficiency and reduce carbon emissions.
Investments in energy efficiency and renewable energy, such as the Sere Wind
Power Project and the Upington CSP plant, which had been put on hold because of
lack of sufficient project financing.
III. BASIS FOR SELECTING THE PROJECT FOR
PILOTING UNDER OP 4.00
10. South Africa was selected as a pilot country because it has an established legal and
regulatory system and a favorable reputation for effective implementation of its systems
governing environmental assessment and the protection and management of natural habitats,
5
protected areas, and physical cultural resources.6 This has already been demonstrated by the SDR
completed by the Bank for the recently approved Global Environment Facility (GEF) project in
support of the Development, Empowerment and Conservation of the iSimangaliso Wetland Park
and Surrounding Region, which examined South Africa‘s legal framework for the same four
safeguards that are triggered by the EISP, but with reference to their application to an
internationally protected wetlands area with substantial autonomy7 from the mainstream of the
South African administrative framework. Just as this current document built on the findings of
the previous SDR, this SDR will inform all future projects proposed for Bank support in South
Africa, in particular those projects for which Bank safeguard policies are to be addressed through
the application of South African environmental and social safeguard systems.
11. The EISP was selected as a scaled up pilot project because the borrower, Eskom, has
demonstrated a substantial corporate commitment to fulfilling and going ―beyond compliance‖
with legal and regulatory requirements and embracing a sustainability policy on both a corporate
and project level. As described in detail below, Eskom subscribes to the United Nations Global
Compact, has obtained or is in the process of obtaining ISO 14000 certification of its
environmental management system for each of its operational units, and seeks to align its
projects and its corporate practices with the requirements of the Equator Principles and with the
Global Reporting Initiative (GRI). Accordingly, there was reason to expect that Eskom‘s systems
would likely demonstrate a very high level of equivalence with the World Bank safeguards as set
forth in OP 4.00 Table A1, and Eskom‘s investment projects would be implemented in an
acceptable manner with respect to Bank environmental and social safeguards.
IV. METHODOLOGY AND PROCESS FOLLOWED IN
DETERMINING EQUIVALENCE AND ACCEPTABILITY
12. The Equivalence Analysis and Acceptability Assessment were carried out by a
multidisciplinary team from the World Bank in collaboration with relevant officials and technical
staff members from Eskom, with cooperation from DEA and the Department of Water. The
methodology included: desk review of legislation currently in force, supporting regulations, and
mandatory guidelines applicable to the electric power generation sector and associated
infrastructure; discussion with officials; and site visits to the Medupi and Kusile construction
sites in Limpopo and Mpumalanga provinces, respectively, by members of the Bank‘s project
team. The Bank‘s team preparing this SDR consisted of senior level staff, including: an
environmental lawyer, three environmental specialists, a Senior Technical Advisor, and a social
specialist.
13. The Equivalence Analysis included a detailed inventory of South African laws and
regulations relating to the four Bank environmental and social safeguard policies triggered by the
6 A letter from World Bank Country Director to the Director General of DEAT, August 29, 2005, proposed South
Africa ―as a likely candidate for the Bank‘s program on ‗Piloting the Use of Borrower Systems to Address
Environmental and Social Safeguard Issues in Bank-Supported Projects‘,‖ due to the fact that in South Africa ―environmental regulations and agencies are already well developed and functioning,‖ and that the conservation and
sustainable development sector is ―attractive for the South African pilot both because the proposed project….is just
now at the concept stage and because DEAT has already established capacity to conduct safeguard work.‖ DEAT
responded in the affirmative in a letter dated November 8, 2005. 7 The iSimangaliso Wetland Park is administered by the iSimangaliso Wetland Park Authority.
6
project, as identified below in the Equivalence section of this report. These laws and regulations
are supported by Constitutional provisions, policies, and international agreements ratified by the
GoSA, all of which are included as relevant to the legal framework for the Equivalence Analysis.
An extensive literature review was also conducted tracing the development and evolution of
South African environmental law in both historical and comparative contexts. The analysis
draws careful distinctions between laws and regulations that are mandatory, as valid comparators
to the Operational Principles of OP 4.00 Table A1, and other documents having aspirational or
guidance value, which may inform the analysis and provide a basis for comparison with the
Objectives of OP 4.00 but cannot be considered conclusive evidence of equivalence with the
mandatory provisions of Bank safeguards (guidance documents, although not legally binding,
may help clarify ambiguities in environmental laws and regulations and contribute to assessing
Acceptability). Based on this analysis each relevant provision of a borrower‘s system is
characterized as having full, partial, or no equivalence to the corresponding Objective or
Operational Principle of OP 4.00 Table A1.
14. The Acceptability Assessment applied the four-component methodology that has evolved
through the SDR process during the implementation of the UCS pilot program. These
components include: institutional capacity; processes and procedures; outputs; and outcomes. To
assess relevant institutional capacity the assessment drew on primary sources including external
and internal reports prepared by Eskom and DEA. These reports provided valuable insights into
Eskom‘s institutional capacity to: (a) conduct environmental assessment; (b) avoid, minimize,
mitigate and compensate for adverse environmental impacts resulting from the construction and
operation of thermal power plants and associated infrastructure while conserving natural habitat
and physical cultural resources; and (c) conduct land acquisition and related resettlement
activities in accord with South African legal requirements and international good practice as
exemplified by Bank safeguard policies and associated guidance documents. The SDR also
examined the capacity of DEA to apply informed critical judgment to its review of EIRs
submitted by Eskom for the two power plants proposed for support under the EISP and by
Eskom or other parties responsible for associated infrastructure.
15. To assess the effectiveness of implementing processes and procedures, the SDR reviewed
official procedural and guidance documents describing the appropriate conduct of the
environmental assessment and management process in South Africa, with particular attention to
the various stages of the environmental assessment process, including the Scoping Phase, EIR
Phase, public consultation and disclosure, culminating in the Environmental Authorization
(formerly known as Record of Decision [ROD]) on the part of the Minister of Environmental
Affairs. Similar review was conducted with respect to the development and approval of EMPs
for the construction and operational phases of the project. The EIRs were reviewed in light of the
requirements for environmental assessment under South African law and international good
practices.
16. With respect to outputs, the SDR critically reviewed: the EIRs and EMPs for the Medupi
and Kusile projects; the EIRs for the Sere Wind Power Project, the Upington CSP plant, and the
Majuba coal transport rail spur; and the RODs and other approvals issued by DEA to date. The
Acceptability Assessment also reviewed the land acquisition and compensation process
undertaken by Eskom in connection with project development and the outcomes of that process
7
with respect to compliance with South African law and the objectives and operational principles
of Bank policy with respect to Involuntary Resettlement.
17. As noted in Section III, the findings with respect to specific aspects of the South African
regulatory framework and responsible implementing agencies, such as DEAT, have already been
subject to a SDR and public consultations as part of the iSimangaliso project. Those findings are
updated as necessary and reflected in the current SDR, but the primary focus of the current SDR
is Eskom‘s corporate policies and practices, especially as demonstrated by its assessment and
implementation of the Medupi and Kusile projects. A draft of this SDR was disclosed by the
Bank as a consultation draft on November 3, 2009, and on Eskom‘s website on November 11,
2009. The SDR was subject to stakeholder consultation workshops as noted in Section I above.
Following the public consultation period, the SDR was updated, and an Annex to this report
provides a summary of comments received from stakeholders and the Bank‘s response, and
where relevant, cites revision that have been made in the SDR.
V. SUMMARY OF EQUIVALENCE ANALYSIS
18. The first step in the Equivalence Analysis is to identify the World Bank environmental
and social safeguard policies triggered by the project. This exercise is undertaken by the World
Bank project team at the Bank‘s project concept stage8 and is revised if necessary as project
preparation evolves toward Appraisal. The documentation of triggered safeguards along with the
justification is recorded in the Integrated Safeguards Data Sheet (ISDS) for the project.
According to the concept-stage ISDS, the four environmental and social safeguards triggered by
the project include: Environmental Assessment (EA); Natural Habitats (NH); Physical Cultural
Resources (PCR); and Involuntary Resettlement (IR). The project also triggers OP 7.50 (Projects
on International Waterways), but this is a legal Safeguard Policy and not eligible for
consideration under OP 4.00.
19. It should be noted that the issue of greenhouse gas emissions and the related impacts on
climate change that may be associated with the EISP are outside the scope of this SDR. The
application of OP 4.00 is limited to the Bank‘s environmental and social safeguard policies that
are triggered by a particular project or activity that the Bank proposes to support. Although the
Bank‘s safeguard policy on EA makes reference to the need to address global impacts as part of
the EA process, the Bank is better positioned to address the climate change issue at a strategic
level, through the application of the Bank‘s Strategic Framework for Energy and in the context
of the corresponding strategic framework of the borrower, Eskom, and the GoSA. A thorough
discussion of greenhouse gas emissions and climate change issues associated with the EISP will
be included in the Project Appraisal Document for the EISP, which also will be subject to public
disclosure once it is prepared by the Bank team.
8 In this case, the two main investments by Eskom that are the key subjects of this SDR, i.e., the Medupi and Kusile power plants, have already been subject to the full EIA process in accordance with South African legislation, and are
already under construction. The other investments that are part of EISP also have already been subject to the full
EIA process, but their implementation has been put on hold primarily because of budgetary constraints and
priorities. Land acquisition has been completed for the 67-km Majuba rail spur, and the acquired right-of-way has
been fenced off.
8
20. Annex 2 of this Report includes a narrative summary of South Africa‘s Constitutional
provisions, laws, and regulations that apply to the projects to be financed by the EISP and that
correspond to the four Bank environmental and social safeguard policies triggered by the EISP
components. Annex 3 contains in matrix format a detailed comparison between the relevant
provisions of the South African legal system and the corresponding Objectives and Operational
Principles of OP 4.00 Table A1.
21. Following is a summary of the findings of the Equivalence Assessment. Although a few
ambiguities or gaps in South Africa‘s legislative framework required additional analyses or
clarification as part of stakeholder consultation in order to make a determination of full
equivalence with respect to the four safeguards, the Acceptability Assessment concludes that the
few apparent ambiguities in equivalence with respect to South African legislation regarding EA,
NH, and PCR have all been addressed by Eskom in its EA process and in its implementation of
the project components to date. With respect to IR, there are some gaps in equivalence that will
be addressed through project implementation. These gaps, and what will be done about them, are
discussed in subsequent sections of this report (Section VI. Acceptability Assessment; and
Section VII. Proposed Gap-filling Measures).
A. ENVIRONMENTAL ASSESSMENT (EA)
22. With respect to EA, and the legal system designed to manage the environmental and
social impacts of the various components of the EISP, the Equivalence Analysis needed to be
carried out on a composite of current legislation and regulations and legislation and regulations
that were in effect at the time the projects were designed (2004-2008) but may have since been
superseded. This is because the South African regulations for Environmental Impact Assessment
(EIA) were revised in 2006, shortly after the Terms of Reference for the EIA process for the
Medupi and Kusile investments were approved. Therefore, the EIRs9 for both Medupi and Kusile
were conducted and approved under the EIA Regulations issued in 1997 under the authority of
the 1989 Environmental Conservation Act (ECA) rather than the current EIA Regulations issued
in 2006 under the authority of the National Environmental Management Act (NEMA). However,
as described later, the EIA process and EIR content for both projects was strongly influenced by
and is essentially consistent with the EIA Regulations that became effective in July 2006, even
though they were not legally applicable to the Medupi and Kusile projects. This is because the
EIA process for both projects began at a time when the draft new regulations were already out
for public comment; therefore, Eskom chose, and instructed its consultants, to ensure that the
EIA process and the EIRs would conform with the proposed new regulations as well.
Furthermore, pending full application of the implementing provisions of the NEMA AQA of
2004, the provisions of the Atmospheric Pollution Prevention Act (APPA) of 1965 continue to
apply to the Medupi and Kusile facilities. Finally, pending the implementation of the new Waste
Act of 2008, the Minimum Requirements for Landfills issued by the Department of Water
Affairs and Forestry (second edition, 1998) will apply to the ash disposal facilities to be
constructed adjacent to the two plants. All comparisons between the South African legal
framework and the corresponding Objectives and Operational Principles of OP 4.00 Table A1
9 South African regulations refer to an EIA process, which produces an EIR. An effort is made in this SDR to retain
this distinction in South African regulatory terminology between process and product.
9
are based on the South African laws and regulations that apply to the EISP components, as
reflected in the RODs issued by DEA.
23. The South African system for EA is deemed to be fully equivalent to the Objectives and
Operational Principles of OP 4.00 Table A1. However, the equivalency analysis of the regulatory
framework identified two ambiguities in the regulatory language that will be addressed with
respect to the EISP in the subsequent Acceptability Assessment (Section VI):
It is not clear from the regulatory language that the assessment of alternatives is
required to assess their relative feasibility on the basis of all of the feasibility criteria
cited in OP 4.00 Table A1, which are expected in the Bank‘s work to be applied to
all projects. It appears that the proponent has the option to include only those
alternatives deemed ―feasible and reasonable‖ and compare the advantages and
disadvantages of such alternatives for the environment and the community. But it
does not explicitly require the Environmental Impact Report to justify alternatives
with respect to comparative capital and recurrent costs, and institutional, training and
monitoring requirements, as well as other factors. DEAT published guidance on
criteria to be included in alternatives assessment in 2004 (Integrated Environmental
Management Information Series, Series 11: Criteria for Determining Alternatives in
EAI), which recognizes that the range of criteria must be appropriate to the type of
project subject to the EIA process. However, in practice, and as a business matter,
Eskom addresses the capital and recurrent costs, as well as the institutional, training
and monitoring requirements of alternative mitigation measures.
Paragraph 5 of Table A1 of OP 4.00 states that the borrower system EA, ―[w]here
applicable to the type of project being supported, is expected to normally [emphasis
added] apply the Pollution Prevention and Abatement Handbook (PPAH) [and to
j]ustify deviations when alternatives to measures set forth in the PPAH are selected.‖
Although neither NEMA, the EIA Regulations, nor Eskom policy require any
reference to the PPAH10
with respect to the impacts of thermal power projects, in
particular ambient and atmospheric emissions, all of these South African systems
reference the same source documentation as the General Environmental, Health and
Safety Guidelines and the Thermal Power Environmental, Health and Safety
Guidelines in the PPAH. These include the ambient air quality standards of the
World Health Organization and international good practice with respect to emission
controls as implemented by the European Union and the United States
Environmental Protection Agency. In addition, Eskom has commissioned an
independent review of the compliance of the Medupi and Kusile projects with the
Equator Principles, which are derived from, and make reference to, the Performance
Standards of the International Finance Corporation (IFC) and the Environmental,
Health and Safety Guidelines (EHSGs) in the PPAH.
10 It may not be entirely reasonable to expect a borrower‘s system to reference any particular external standard. The
absence of any reference to the PPAH is more understandable with respect to Eskom in South Africa, which would
instead reference South African environmental regulations as its benchmark for environmental performance in South
Africa, rather than an external benchmark such as the World Bank‘s PPAH.
10
B. NATURAL HABITATS (NH)
24. With respect to NH, the South African system is deemed to be fully equivalent to the
Objectives and Operational Principles of OP 4.00 Table A1. However, a few ambiguities in the
language of the regulatory framework will be addressed with respect to the EISP in the
subsequent Acceptability Assessment (Section VI):
South African legislation appears to lack a conservation offset provision for non-
critical habitat. South Africa recognizes that as the development footprint increases,
there will be unavoidable loss of non-critical habitat, but through the Environmental
Authorization (formerly ROD) process, biodiversity offsets can be required on a
case-by-case basis.
The otherwise strong prohibition on conversion of critical natural habitat could be
weakened by the provision that an area may be excluded by Unilateral Notice issued
by the Minister of Environment or a provincial government. But this ambiguity is
irrelevant to the EISP because project components are not sited in nor do they
require conversion of critical natural habitat, and it will not be examined further.
There appears to be no specific language regarding requirements for public
disclosure and consultation in legislation pertaining to NH, but it is clearly an
integral part of the EIA process.
C. PHYSICAL CULTURAL RESOURCES (PCR)
25. With respect to PCR, the South African system is deemed to be fully equivalent to the
Objectives and Operational Principles of OP 4.00 Table A1. However, a few ambiguities in the
language of the regulatory framework will be addressed with respect to the EISP in the
subsequent Acceptability Assessment (Section VI):
There appears to be no specific language in legislation pertaining to PCR regarding
the extent of participation and obligations of communities in the process of cultural
heritage assessment and conservation, but it clearly is within the scope of the EIA
process, as specified by the Natural Heritage Resources Act.
Although the legislative framework does not make explicit reference to ―chance
finds,‖ a standard condition is included in all Environmental Authorizations (formerly
RODs) stipulating how chance finds must be dealt with during construction and
operations, but the legal basis for this standard condition is not evident.
D. INVOLUNTARY RESETTLEMENT
26. With respect to IR, the South African system is found to be fully equivalent to the
Objectives and Operational Principles of OP 4.00 Table A1 for all but the following Operational
Principles:
11
Rights of access to natural resources and biodiversity of protected areas (however, as
there are no protected areas affected by the EISP, this gap in equivalence is not
relevant to the conclusion of this SDR);
Disclosure of stand-alone draft resettlement plans, including documentation of the
consultation process, in a timely manner, before appraisal formally begins, in an
accessible place, and in a form and language that are understandable to key
stakeholders; and
Assessment of whether the objectives of the resettlement instrument have been
achieved upon completion of the project, taking into account the baseline conditions
and the results of resettlement monitoring.
27. It should be noted, however, that the South African legislation regarding resettlement
requires extensive consultation and disclosure with directly affected people, i.e., those who are to
be resettled, and provides for benefits and livelihood restoration in a manner consistent with the
Bank‘s safeguard policy. Therefore, for the EISP, the key gaps in equivalence appear to be the
absence of a requirement for a formal, stand-alone Resettlement Action Plan that is disclosed to
a broad audience of interested parties, and a formal mechanism for a completion audit. These
gaps will be discussed further in Sections VI and VII of this SDR.
E. GENERAL CONCLUSION OF THE EQUIVALENCY ANALYSIS
28. Although a few ambiguities or gaps in the regulatory framework have been noted in the
Equivalency Analysis with respect to the four safeguards, it would appear, as a result of the
Acceptability Assessment (below) that all the apparent ambiguities in equivalence with respect to
EA, NH, and PCR have been addressed by the borrower (Eskom) in its EIA process and its
implementation of the projects to date. With respect to IR, there are some gaps in equivalence
that remain to be addressed through project implementation, in particular those relating to the
absence of any requirement in South African law to prepare and disclose stand-alone
resettlement plans and to assess whether the objectives of the resettlement instrument have been
achieved upon completion of the project, taking into account the baseline conditions and the
results of resettlement monitoring.
VI. ACCEPTABILITY ASSESSMENT
29. The purpose of the Acceptability Assessment is to confirm that the implementation
practices, track record, and institutional capacity of Eskom as the borrower, and relevant South
African agencies that will be involved as regulators in addressing environmental and social
safeguard issues in the proposed Bank-supported EISP, meet the requirements of OP 4.00. This
report presents acceptability findings only for the four policy areas that have been found
applicable thus far to the EISP: Environmental Assessment, Natural Habitats, Physical Cultural
Resources, and Involuntary Resettlement.
30. The primary institutions responsible for implementing the four environmental and social
safeguards applicable to the project, and under consideration for piloting under UCS, include
Eskom and DEA (formerly DEAT). The Department of Water Affairs (DWA) and the South
12
African Heritage Resources Agency (SAHRA) have well defined but limited roles in the context
of EISP. Eskom will be assessed for acceptability with respect to its corporate capacity and
practices as well as its implementation of the Medupi and Kusile power plants and associated
transmission lines, the Sere WPP, the Upington CSP plant, and the Ermelo-Majuba rail spur for
coal transport. DEA will be assessed for acceptability with respect to its regulatory role, i.e.,
capacity and commitment to oversee the EIA process, review and approve EIRs, identify and
require permit conditions in RODs, and identify and implement effective project monitoring and
supervision requirements. The Department of Water Affairs‘ role in the EISP is in regulating the
disposal of ash waste (and indirectly in assuring water supply to the Medupi project). SAHRA
provides the expertise in South Africa to develop and implement policies and practices towards
protection and management of cultural resources, but under the EIA Process established by
NEMA, cultural heritage and resources are among the key subjects that must considered in the
EIA process, which is under the jurisdiction of DEA. SAHRA becomes involved at the point
cultural resources are found, at which it time it must be consulted and its advice followed.
A. INSTITUTIONAL CAPACITY
1. Eskom Holdings Limited (Eskom)
31. Eskom is South Africa‘s national, vertically integrated electricity utility, and is wholly
owned by the Government of South Africa through the Department of Public Enterprises.
Eskom‘s current structure is defined by the Eskom Conversion Act of 2001. The utility employs
about 35,500 employees (reduced from about 66,000 over the past two decades). Eskom operates
its business through a number of divisions and subsidiary companies. Figure 1 shows the current
structure of the Eskom Group, including the major subsidiaries. Eskom‘s core business as a
utility is carried out by the three divisions under the heading Eskom Core Business and is
described below, followed by a brief description of the operations of the key subsidiaries.
32. At the corporate level, environmental and social governance within Eskom begins with
the Chief Executive Officer (CEO) and is overseen by: the Executive Directors, who are full time
employees of Eskom, and by the authority delegated to Board Committees, including the
Executive Management Committee and the Sustainability and Safety Subcommittee. The latter is
comprised of four independent non-Executive Directors along with the CEO and two Board
Members, and guides corporate strategy on sustainability, occupational health and safety, and
environmental matters in line with Eskom‘s safety, health and environment policy, NEMA, and
the Occupational Health and Safety Act of 1993.11
At the technical level, the Subcommittee is
supported by the Environmental Liaison Committee, which includes all environmental managers
and representatives from the generation, transmission, distribution audit, legal and research units.
11 Eskom, Annual Report, 2008, pp. 206-215.
13
Figure 1. Eskom Holdings Business Structure
33. The CEO, as chairman of the Sustainability Committee of Eskom‘s Executive Committee
(EC), is accountable for all of Eskom‘s overall sustainability performance. The coordination and
determination of Eskom‘s strategic direction on sustainability, including environment,
occupational health, and safety, is undertaken through the Sustainability Liaison Committee.
Each line manager is responsible for monitoring environmental and social impacts in their
respective divisions,
34. Within the management structure of Eskom, each line division (Generation,
Transmission, or Distribution) is individually responsible for carrying out the EIA process and
preparing EIRs, and for the environmental management and monitoring activities associated with
its line of business. To undertake these tasks Eskom has approximately 120 environmental and
social specialists located in its headquarters office and various field operations.
35. Eskom has integrated sustainable development issues into its strategic planning and
decision making since 200412
and has adopted a comprehensive ―triple bottom line‖13
approach
to the management of environment, health, and safety issues as part of its corporate commitment
to sustainability. As one of the charter members of the United Nations Global Compact, Eskom
12 Eskom, Annual Report, 2008, p. 27. 13 ―Triple bottom line‖ refers to the synergies between economic, environmental, and social sustainability in
corporate management.
Eskom Holdings Ltd
Eskom Core Subsidiaries
Generation-Generation
-Primary energy
-Enterprises
Customer Networks-System ops and
planning
- Transmission
-Distribution
Corporate- Finance
-Corporate services
-Human resources
Eskom Enterprises (Pty) Ltd-Rotek Industries (Pty) Ltd
- Roshcon (Pty) Ltd
- Eskom Uganda Ltd
- arivia.com (Pty) Ltd
- Eskom Energie Manantali SA
14
is committed to uphold the ten principles of the Compact, which include inter alia: protection of
the environment, labor standards, human rights, and anti-corruption.14
36. Eskom states that ‖We are ensuring that not only are we complying with South African
environment, social and legal requirements, but also the Equator Principles,15
IFC Performance
Standards,‖ while ―taking into account,‖ the IFC Environmental, Health and Safety Guidelines.16
37. Each year Eskom candidly audits its own performance in terms of a sustainability index
based on 20 indicators, including economic, environmental, technical, and social aspects.
Eskom‘s overall performance for the most recent rating period (2008) was 2.5 on a five point
scale, where overall performance of 3.0 is considered sustainable. Of the four issue areas, Eskom
most recently rated itself lowest for environment, with a score of 2.2 in 2008 compared to 2.6 in
2007.17
Beginning in 2006, Eskom engaged the London-based Ethical Investment Research
Centre to benchmark its sustainability performance against the Johannesburg Stock Exchange
Socially Responsible Investment (JSE SRI) Index which measures environmental, social, and
governance issues, and has met the required standard to qualify for inclusion in the JSE SRI
through financial year 2007.18
38. With respect to environmental management, Eskom‘s Transmission Division has been
certified to the ISO 14001 standard. Regular environmental audits are undertaken on all
Divisions, with the results reported to the relevant EC and managing directors of all Divisions.
The Operations Subcommittee of the EC monitors and assesses environment and occupational
health and safety performance and reviews major incidents to ensure that necessary corrective
measures are taken.
39. Eskom‘s accounting practice also identifies and reports on dedicated environmental
expenditures. In 2006 R339 million (approximately US$45 million) was spent on capital and
R354 million (approximately US$47 million) on operational environmental activities, primarily
aimed at improving air quality management at coal-fired power plants, rehabilitation of coal
mines, environmental assessment in connection with capacity expansion, and disposal of
polychlorinated biphenyls (PCBs).
14 The three Global Compact Principles relating to the Environment include: Principle 7: Businesses should support a precautionary approach to environmental challenges; Principle 8: undertake initiatives to promote greater
environmental responsibility; and Principle 9: encourage the development and diffusion of environmentally friendly
technologies. 15 The Equator Principles are a set of environmental and social benchmarks for managing environmental and social
issues in international project finance globally. The original Equator Principles were adopted by ten leading
commercial banks in 2003, based on IFC safeguard policies and subsequently revised to align with IFC Performance
Standards in 2006. Currently approximately 70 financial institutions subscribe to the Equator Principles including:
international, regional, and national commercial and investment banks; insurance companies; export credit agencies;
and bilateral development finance institutions. As an indication of its commitment to the Equator Principles, Eskom
commissioned independent reviews of the compliance of the Medupi and Kusile plants with them. The results of
these reviews are considered in the discussion of the EIA process and projected project outcomes in this SDR. 16 Eskom, Annual Report, 2008, p. 63. IFC's Performance Standards define clients‘ roles and responsibilities for managing their projects and the requirements for receiving and retaining IFC support. The Performance Standards
are closely aligned with World Bank environmental and social safeguard policies and include additional standards
(e.g., on labor rights) reflecting the private sector and corporate structure of IFC clientele. 17 Eskom, Annual Report, 2008, p. 28. 18 Eskom, Annual Report, 2008, p. 28.
15
40. With respect to its public reporting practices, Eskom aligns itself with the GRI19
and
applies the GRI principles of inclusivity, relevance and materiality; sustainability; completeness;
and boundary setting.20
41. Eskom‘s environmental policy is articulated in its Environmental Procedure. This
includes several subsidiary sections: Environmental Management System; Environmental
Management Programme; Waste Management; Land Management; Electro and Magnetic Fields;
Due Diligence; and Reporting. Additional policies guide its approach to Air Quality
Management; Climate Change; and Safety, Health and the Environment.
42. Environmental Management. The Eskom Environmental Management Programme
(EEMP) is the most relevant document relating to the corporate approach to managing the
environmental impacts of the EISP. The EEMP issued in September 2007 is ―a plan of action
that sets out a required environmental end state and…how activities that could have a negative
impact on the environment will be managed and monitored and how impacted areas will be
rehabilitated.‖21
It requires that an EMP be developed in accord with the Environmental
Management System (EMS) of each line division for all existing and future land that is owned or
occupied by Eskom; and for projects for which an EIR or EIA Screening is undertaken. Each
Eskom division and subsidiary is required to establish Key Performance Indicators (KPIs/EMS)
for the development and implementation of EMPs. Business Unit managers are accountable for
the coordinated development and implement of the EMPs in their respective areas in line with
the KPIs/EMS. The EEMP articulates the ten steps in EMP process which is designed to
―integrate the development and implementation of an EMP into the project…[through] systems,
processes; documentation, contracts, etc.‖
43. Detailed guidance is provided in the EEMP for the collection of baseline data; identifying
and predicting environmental impacts and their significance (including the ―activity or root
cause‖ associated with any significant impact); the setting of objectives and targets to address
root causes; actions to be taken to meet objectives and targets; integration of the above actions
into project/operational systems, documentation, and contracts; the linking of EMP performance
to existing business performance measures and reporting practices via KPIs; implementation of
EMP actions; monitoring; and auditing.
44. The EEMP specifies the substantive environmental issues that are to be addressed in an
EMP including: air quality; water quality; land management (including protected species,
invasive plants, herbicide usage, access roads, and animal safety); community issues (including
property ownership, waste disposal, emergency response, culture and lifestyles, procurement of
agricultural products, cultural artifacts, and noise reduction); and the establishment of a
community grievance procedure through which all complaints shall be reported, recorded, and
investigated in compliance with each business unit‘s procedure. The Programme further
stipulates that environmental clauses shall be included in all contract documents for all
19 The GRI is ―a network-based organization that has pioneered the development of the world‘s most widely used sustainability reporting framework‖ (www.globalreporting.org). 20 Eskom, Annual Report, 2008, Executive Summary. 21 Eskom, Environmental Guideline: Environmental Management Programme, September 2007. Note that this
document addresses Eskom‘s approach to environmental management at the corporate level. Eskom also prepares
project-specific Environmental Management Plans as required under South African law.
16
contractors and that only contractors with ―proven track records of sound environmental
performance‖ shall be engaged for Eskom projects.
45. According to DEA, Eskom has developed a superior ability to conduct EA through
independent consultants (as required by the EIA Regulations); to prepare and implement project-
specific EMPs; to pro-actively engage the affected public and nongovernmental organizations
(NGOs) in informed consultation through transparent public disclosure of projects; and to assess
alternative sites and mitigation strategies.
46. Air Quality Management. Of particular relevance to the EISP is Eskom‘s policy on air
quality.22
Eskom‘s approach to air quality management at its power plants is governed by the
NEMA Air Quality Act (AQA) of 2004 and the implementation plans detailed in the National
Framework for Air Quality Management of September 11, 2007,23
and incorporates emissions
control for particulates, sulfur dioxide (SO2), oxides of nitrogen (NOx), heavy metals, fugitive
emissions, volatile organic compounds (VOCs), and greenhouse gases.
47. Eskom‘s policy on gaseous emissions is consistent with the requirements of the AQA and
DEA policy. It requires that decisions on use of available and proven technologies to reduce
sulfur emissions (installation of Flue Gas Desulfurization, or FGD) are made on the basis of a
facility‘s projected impact on ambient air quality, taking into consideration existing and
projected air quality from the proposed facility combined with other emission sources. In
addition, Eskom‘s policy requires that all new capacity will include a requirement for low NOx
technology. With respect to particulate emissions, Eskom ―continually investigates new
particulate control technologies and maintenance regimes to ensure the most practicable and
cost-effective methods of emission control.‖24
48. Over the years, Eskom has recorded significant progress in reducing particulate emissions
through the use of technologies that enhance the efficiency of electrostatic precipitators, such as
sulfur trioxide flue gas conditioning, skew flow technology, retrofitting of pulse jet fabric filters,
and improved control systems. In addition to particulates, Eskom calculates and records on an
aggregate basis the annual amounts of NOx, SO2, and carbon dioxide (CO2) emitted from its
power stations based on coal characteristics and power station design parameters. All coal-fired
power stations are in the process of installing continuous emissions monitoring systems on at
least one unit per station.
49. With respect to SO2 emissions, Eskom reports that the primary control technology, FGD,
has not been installed at any existing power stations to date in South Africa. This approach will
change with respect to the Medupi and Kusile plants, under plant-specific circumstances to be
described below. In addition to FGD, which involves substantial inputs in the form of water and
lime (or limestone) as well as high capital and operating costs, Eskom is studying alternative
ways to reduce SO2 emissions, including coal beneficiation/processing to reduce the sulfur
22 Eskom distinguishes air quality from climate change as follows: ― air quality refers to local air pollutant [e.g., oxides of sulfur and nitrogen, and particulate matter] that have local impacts,‖ whereas ―climate change impacts
result from greenhouse gas emissions which have impacts on a global scale.‖ 23 It should be noted that the EIRs for Medupi and Kusile were undertaken prior to the issuance of the National
Framework for Air Quality Management in 2007. 24 Eskom, Annual Report, 2007, Director’s Report on the Environment and Climate Change.
17
content of the coal. With respect to NOx emissions, Eskom relies primarily on the use of low-
NOx burners to meet emissions and ambient impact requirements and objectives.25
50. In addition to monitoring emissions, Eskom has operated an ambient air quality
monitoring network since the 1980s to provide national and regional information on long-term
trends in air quality. The network includes monitoring sites in the immediate vicinity of certain
power stations and research sites. Additional monitoring stations have been installed near
proposed new power stations, and others have been relocated to more appropriate locations. The
network measures not only Eskom emissions, but all emissions from surrounding sources.
Monitoring equipment is calibrated against National Meteorological Laboratory standards in a
laboratory accredited by the South African National Accreditation System. All sites, except two,
are equipped to monitor SO2, NOx, ozone (O3), fine particulate matter (FPM), wind speed, wind
direction, and ambient temperature. The other two sites monitor SO2, FPM, and meteorological
parameters. According to Eskom, over a ten year period from 1998 through 2008, NEMA AQA
standards and DEA guidelines for particulates and SO2 were exceeded on several occasions at a
few specified sites, including the airshed affected by the Kusile project, where the DEA daily
mean guideline value of 48 ppb for SO2 was exceeded on two occasions and the DEA hourly
mean guideline value of 134 ppb was exceeded on 57 occasions as a result of emissions from the
existing Kendal station.26
51. Water Supply. Eskom purchases its water from the Department of Water Affairs directly
via abstraction from state-owned water works or through intermediaries (such as Exxaro at the
existing Matimba Power station in Limpopo).27
52. Occupational Health and Safety (OHS). Despite significant efforts, Eskom‘s OHS
record remains ―unsatisfactory‖ in terms of Eskom‘s own corporate standards and target of zero
fatalities per reporting year.28
During the past two years covered by Eskom‘s 2008 Annual
Report (2007-2008) Eskom experienced 25 fatalities among employees, 30 among contractors,
and 83 among members of the public in accidents and other incidents, especially involving
vehicles and accidental or unauthorized electrical contact.
25 Additional insight into Eskom‘s approach to managing power plant emissions with direct relevance to its proposed mitigation measures for Medupi and Kusile, is evident from its November 2008 submission to the
Working Group on Minimum Emissions Standards for Combustion Installations, established under the 2007
Framework for Air Quality Management for the purpose of developing Regulations Relating to Listed Activities and
Minimum Emissions Standards under the 2004 AQA. Although not all of Eskom‘s recommendations were
subsequently accepted by DEAT, Eskom sought to ensure that the application of emissions standards to particular
facilities would take into account ambient conditions such as existing air quality and population exposure; that
permitted concentrations of pollutants be qualified in terms of monthly and hourly averaging periods so as to
provide some reasonable tolerance for exceedances, particularly during start-up, shut-down or upset conditions. In
addition, Eskom argued that DEAT‘s proposed timetable for compliance with the new plant standards should be
determined on a plant-by-plant basis and take into account availability of resources, remaining life of plant, and
impact of emissions on health of people living in the plant vicinity. Eskom further recommended that the definition
of ―existing plant‖ should include those plants for which authorization was obtained prior to the publication of emission standards. The details on Eskom‘s proposals to the Working Group can be found at:
www.saaqis.org.za/filedownload.aspx?fileid=188. 26 www.eskom.co.za/annreport08/034 27 Eskom, Annual Report, 2008, p. 25. 28 Eskom, Annual Report, 2008, pp. 20.
18
53. Eskom, having established a target of zero fatalities per reporting year, believes that ―this
performance is totally unacceptable,‖ and proposes to continue its ―focus in terms of enhancing
safety training and awareness, skills, competency, supervision and operational discipline.‖
Eskom has in place a procedure to investigate all fatalities promptly and share lessons learned
from case studies and internal briefings. In June 2007 Eskom launched its ―Switched on to Safety
Excellence‖ program designed to:
Achieve a sustainable culture of excellence based on enhanced safety management by
reinforcing teamwork, increasing operational discipline, and applying learned skills;
Customize and adopt existing safety management systems and protocols focusing on
best practice; and
Equip leadership with the knowledge and tools to drive Eskom‘s safety culture
transformation.
54. To accelerate these changes, Eskom implemented a behavior-based safety observation
tool and senior leadership training aimed at strategic and operational aspects of effectively
managing safety. Increased leadership commitment was demonstrated through national and
regional work stoppages to reinforce the importance of safety, in particular in high risk activities.
Eskom has established divisional contractor fora, partnering with contractors to address safety,
health and environmental concerns. In addition, Eskom engaged the services of an international
specialist on a three year contract to evaluate electrical safety as well as a behavioral safety
program. Changes were made to the Eskom electrical training material to incorporate some of
the recommendations made. With respect to community safety, campaigns to improve public
awareness were rolled out in various media and included school visits and the handout of safety
materials.
55. Ash Management. Eskom seeks to recycle as much of the ash produced by its power
stations as possible; in 2008 this amounted to seven percent used for the production of cement.
The remaining ash is disposed of in ash lagoons or on dry ash dumps adjacent to power stations
with management practices to control fugitive dust.29
For the Medupi and Kusile projects, ash
will be disposed of essentially dry, i.e., with the minimum amount of water necessary to prevent
dust formation during transport by conveyor belt and deposition. The sites are located on
relatively flat terrain, and are designed as landfill facilities for solid wastes with leachate
collection, treatment, and reclaim systems. As soon as possible, deposited ash is covered with
topsoil for revegetation purposes. Therefore, ash disposal facilities that are part of the EISP are
not liquid storage facilities, and the Bank‘s Dam Safety Policy does not apply.
56. Biodiversity. Eskom manages and controls any significant threats to biodiversity
resulting from its power stations and power lines through partnerships with civil society to
ensure best practice and specialist input, including projects in areas of non-critical natural
habitats. Examples of such partnerships include the Endangered Wildlife Trust, Birdlife South
Africa, the Middlepunt Wetland Trust, and the Wildlife and Environment Society of South
Africa.
29 Eskom, Annual Report, 2008, pp.76-80.
19
57. Land Acquisition and Resettlement. As noted in the Equivalence Analysis, above,
South African legal requirements for resettlement and compensation are broadly consistent with
the Objectives and Operational Principles of 4.00 Table A1, especially in the context of
transparency in consultations with directly affected people, fairness of compensation, the widely-
known availability of appeal mechanisms, and, particularly for the poor, a requirement for
significant improvement in living quarters and opportunities for betterment in livelihood
(economic rehabilitation).
58. South African law goes beyond market value compensation, to include all costs needed
for the affected landowner to re-establish an economic livelihood, including losses incurred
during the transition period. South African law also guarantees that all people living on an
acquired property, such as tenants, employees, or even squatters, are entitled to resettlement and
assistance to improve their economic well-being.
59. One key area in which South African legislation, and Eskom‘s practice, differ from Bank
practice is the absence of a requirement for preparation and public disclosure of a stand-alone
Resettlement Action Plan (or Resettlement Plan Framework) prior to resettlement. It is important
to note that the difference is not in the substance of the process, but that in South Africa there is
no requirement to systematically document and make public to a broad audience how
resettlement will occur, what the rights and benefits are, and what grievance and appeal
procedures are available. Instead, this is done through consultations and negotiations with all
directly affected parties prior to resettlement.
60. Eskom views the legal requirements that apply to land acquisition and resettlement as
minimum requirements and strongly supports the principle of security of tenure.30
This involves
negotiated solutions where people are given choices. Consultation takes place with all affected
people and is geared toward a negotiated settlement.
61. Eskom is the direct implementing agent for the resettlement process and takes full
responsibility for the land acquisition and resettlement process, but government is part of the
process as an observer to ensure that the legal requirements are being met. For this purpose, the
national Department of Land Affairs provides a field officer who then participates in all
negotiations. In addition, provincial and local authorities participate directly in the resettlement
process through representation on consultation fora. The government plays a more direct role in
circumstances where land claims exist for restitution on a property that Eskom is seeking to
acquire for a project; in this instance the government must first make a decision on the land
claim before the land acquisition process can proceed. Eskom need for the land is considered as
part of the government‘s decision on whether the land is returned to the claimant or whether
replacement land is made available.
62. At the earliest possible stage in the resettlement process, Eskom conducts a detailed
Social Impact Assessment (SIA), typically through an independent third party with the required
expertise. The SIA provides a socio-economic baseline that includes both the physical
characteristics and the communities to be affected (i.e., number of homesteads, family units, and
30The following discussion is drawn partially from the independent reviews of the Medupi and Kusile power plants
conducted on behalf of Eskom by SE Solutions.
20
total population) as well as characterizing livelihoods and dependencies. The baseline also serves
as a formal census or register of affected and potentially affected parties that can be used later if
required as a threshold for determining eligibility for compensation.
63. Eskom seeks to avoid expropriation wherever possible and includes the potential need for
and cost of expropriation, resettlement, compensation and rehabilitation among the criteria used
for alternative site assessment. When resettlement is unavoidable all displaced people are
effectively compensated and support and other benefits are provided in the relocation process.
64. Eskom provides security of tenure to resettled parties and helps register deeds of
ownership. They provide owners with collateral for a loan to finance their own economic
improvement.
65. Replacement accommodation is based on South African Bureau of Standards
requirements for housing, which requires minimum brick, mortar and tile structures with running
potable water and proper sanitation. Where cost-effective, Eskom also seeks to provide
electricity to replacement structures. Eskom‘s expenditure in these transactions is strictly
controlled by the Public Finance Management Act; however, it is Eskom‘s policy to ensure that
resettled parties are better off than prior to resettlement. Eskom seeks to maximize employment
of displaced persons in whatever jobs may be available on project sites. However, these are
typically unskilled construction jobs of limited duration.
66. Where in-kind resettlement opportunities are not available, Eskom provides cash
compensation based on an independent valuation using open market selling trends of similar land
based on registered sales over a period between three months and three years. In cases where the
land owner disagrees with the compensation offered, the owner is entitled to appoint a valuer of
its own choosing, but at its own expense, with the final offer typically reflecting the difference
between the two valuations.
67. Although Eskom does not prepare formal publicly-disclosed resettlement plans, Eskom
does undertake independent SIAs and develops internal plans for resettlement with timelines and
commitments. The plan is treated as a living document that is updated as required on an ongoing
basis. All negotiated outcomes are documented as formalized agreements and the entire
resettlement process is documented and filed by Eskom. The implementation phase of the
contractual resettlement plan is monitored and evaluated by contractors hired by Eskom, and is
subject to amendment by mutual agreement of the parties.
68. Eskom states that it has ―embarked on numerous strategically important EIAs with
respect to land and servitude acquisitions for new power stations, substations and power lines…
In [2008] alone 8,155 interested and affected parties were consulted and 584 servitudes were
acquired. The majority of these projects were successfully completed, as they were well received
by the communities…‖ Eskom attributes this success to the engagement of a public ―committed
to taking part, voicing its views and influenc[ing] the outcome of [the] servitude acquisition
process.‖
69. In terms of registered land owners, Eskom provides direct compensation on a willing
seller-willing buyer principle and pays market value for properties so acquired. In addition,
21
Eskom pays for direct financial losses that may be incurred as a result of the need to relocate,
including the replacement of assets where this is appropriate.31
70. However, Eskom also acknowledges the following two weaknesses that have the effect of
delaying the completion of the process:32
Some stakeholders only begin participating late in the land or right-of-way (servitude)
acquisition process, which results in a need to review decisions already made; and
Individuals purchase properties where the seller has failed to disclose that Eskom has
an approved ROD to install a power line.
71. To address these weaknesses going forward, Eskom proposes the following measures:33
―Involvement of all stakeholders during the planning stages of our projects. The
public will have a view of our future development plans and will have an opportunity
to give inputs and comments.
―We will also announce and publicize all our proposed projects early enough to the
communities involved.
―Furthermore, we will actively engage with various national and provincial statutory
bodies, NGOs, agricultural unions, and other organizations to raise awareness about
planned projects and proposed implementation plans, solicit support for all current
projects and future projects, and influence their strategic development plans.
―Lastly, we endeavor to improve our communication media and feeding of
information to our customers.‖
72. A review of Eskom‘s practices indicates that they fully meet the requirements of South
African legislation. During discussions with Eskom on the subject of more formally
documenting the resettlement process, Eskom recognized that there could be value in making
public to a broader audience than directly affected people how resettlement would be carried out
for future projects. As a first step gap-filling measure, Eskom prepared a Resettlement Plan
Framework (―Procedure for the Involuntary Resettlement of Legal and Illegal Occupants on or
from Eskom Procured Land‖) and disclosed it on its website in October 2009.
73. Internal Monitoring and Compliance. Eskom has a systematic audit process in place to
ensure that any non-compliance with South African legal requirements are identified, reported,
and investigated, and that corrective and preventive measures are implemented. During the most
recent two-year reporting period from 2007-08, 96 environmental legal contraventions were
recorded, most of them relating to unauthorized releases of process and wastewater.
31 SE Solutions, The Kusile Coal-fired Power Station Project, Independent Review of Compliance with the Equator
Principles, June 15, 2009, 4.6.1. (SE Solutions, Kusile) 32 Eskom, Annual Report, 2008, p. 65. 33 www.eskom.co.za/annreport08/023.
22
74. Independent Verification of Eskom’s 2008 Business Sustainability and Performance Review. Eskom engaged KPMG Service (Pty) Limited in 2008 to provide independent assurance
with regard to selected key sustainability indicators as presented in the ―business sustainability
and performance review‖ section of the 2007/08 Annual Report.34
The KPMG review provided
unqualified support for Eskom‘s reportage regarding the following environmental and social
issues:
Net specific water consumption; and
Relative particulate emissions, and emissions of SO2 and CO2.
KPMG offered qualified opinions on the reliability of Eskom‘s reporting with respect to:
The total number of environmental legal contraventions; and
The lost time injury rate.
The qualified opinions result from identified weaknesses in Eskom‘s reporting performance with
respect to the precise number of ―environmental contraventions‖ and the lost time injury rate, as
it moves toward GRI standards.35
2. The Department of Environmental Affairs (DEA)
75. Established in 1994, DEAT (now DEA) is an independent Department of the GoSA
responsible for protecting, conserving, and improving the environment and natural resources. It
was also responsible for promoting and creating growth conditions for tourism to the country
until its very recent reorganization. It now reports to the Minister of Water and Environmental
Affairs, who is a member of the Cabinet and is appointed by the President from among members
of the National Assembly.36
76. Organization. DEA was organized until recently into six integrated departmental
programs each led by a separate organizational unit, or branch, and supported by various public
entities and statutory bodies:37
Administration: human resources, finances, logistical support and communications;
34 Eskom, Annual Report, 2008, pp. 94-96. 35 ―With respect to the lost time injury rate (LTIR) and the total number of environmental legal contraventions, our
review identified process and control weaknesses that prevent complete, consistent and accurate reporting of the
performance data in accordance with the internally developed Eskom reporting guidance, as discussed in the report
on pages 91 and 79 respectively. As a result, based on our work performed, we are unable to form a conclusion on
the LTIR and total number of environmental legal contraventions data reported,‖ Eskom Annual Report, 2008, p.96. 36 DEAT‘s legal mandate and authority is supported by various legislative instruments including the Constitution of
South Africa (1996), the National Environmental Management Act of 1998 as amended (NEMA), the Marine Living Resources Act of 1998; the World Heritage Convention Act of 1999; the National Environmental Management
Biodiversity Act of 2003 , the National Environmental Management Protected Areas Act of 2003; the Air Quality
Act of 2005; 28 multilateral and 33 bilateral agreements; and various other primary legislative instruments affecting
environmental matters and related issues. DEAT, Annual Report, 2006-2007, p. 12. 37 DEAT, Annual Report, 2006-2007.
23
Environmental Quality and Protection: protecting and improving the quality and
safety of the environment;
Marine and Coastal Management: promoting conservation and sustainable use of
coastal and marine resources;
Tourism: ensuring the creation of conditions for sustainable tourism growth and
development;
Biodiversity and Conservation: promoting the conservation and sustainable use of
natural resources, including protected areas, biodiversity research, plant and animal
species protection and trans-boundary conservation; and
Sector Services and International Relations: corporate and cooperative governance,
organizational performance management and project implementation and
international relations.
77. The Environmental Quality and Protection Branch (EQP) is mandated to protect and
improve the quality and safety of the environment, including air, water and soils and has
undergone fairly rapid expansion since its establishment in 2003.38
Within EQP the Chief
Directorate of Environmental Impact Management is responsible for all aspects of EIA and is
divided into separate Directorates for Environmental Impact Assessment, Environmental Impact
Processing, and Environmental Impact Management. A separate Chief Directorate for
Regulatory Services includes separate Directorates for Compliance Monitoring and Enforcement.
78. The strengths and weaknesses of DEA‘s capacity to supervise and approve the EIA
process with respect to the thermal power sector are best characterized in the November 2008
review of the effectiveness of EIA in South Africa during the previous ten years, as DEA is the
sole agency with responsibility for quality of EIA at the national level. This is the level at which
all thermal power plants are reviewed and authorized due to the fact that Eskom, the national
power generation, transmission and distribution company, is a para-statal corporation.
79. Intergovernmental coordination and cooperation among national and provincial agencies
is implemented through quarterly meetings of MINMEC Environment, a standing
intergovernmental body consisting of the Minister for Environmental Affairs and Tourism and
members of the provincial Executive Councils (MECs) responsible for environmental
management functions. Technical assistance to MINMEC is provided by MINTEC:
Environment, which consists of the Director General of DEA and the heads of the provincial
departments responsible for environmental management functions. Intergovernmental
coordination among national level agencies takes place through the Committee for
Environmental Coordination comprising the Director Generals of the following agencies: DEA
(chair), Water Affairs and Forestry, Minerals and Energy, Land Affairs, Constitutional
Development, Housing, Agriculture, Health, Labor, Arts, Culture, Science and Technology,
along with representatives from provincial and local governmental bodies.
38 Frances Craigie, Phil Snijman and Melissa Fourie, ―Environmental Compliance and Enforcement Institutions,‖ in
Alexander Paterson and Louis J. Kotzé, eds., Environmental Compliance and Enforcement in South Africa, Legal
Perspectives, p. 82 (hereafter, Paterson and Kotzé).
24
80. In May 2009 it was announced by the newly elected government that DEAT would be
separated from the tourism function and would be placed under the authority of the new Ministry
of Water and Environmental Affairs along with the Department of Water Affairs, which was
previously part of the Ministry of Water Affairs and Forestry.
81. Human Resources and Capacity. As of the end of 2009 DEA reported a total of 1,874
budgeted positions, of which 1,532 were filled (leaving an 18 percent vacancy rate). Within EQP
there were 213 positions, with 56 vacancies and 22 contract employees.39
DEA management and
staff have high levels of specialized training in all key areas of environmental assessment and
management including, in particular, air quality evaluation and monitoring.
82. DEA places a high value on training as evidenced by the fact that provincial training on
the 2006 EIA Regulations was completed by the end of March 2007.
83. During 2005 and 2006 DEAT implemented an Electronic Document Management
System, which seeks to automate business processes and reduce paper usage throughout the
organization. By 2007 about one half of DEA staff had transitioned to the new systems.40
84. The 1999 National State of the Environment Report highlighted the need for
environmental data and information necessary for DEA to monitor the state of the environment
on a national, provincial, and local basis. Accordingly, DEA initiated a comprehensive State of
the Environment Programme, which includes support to provincial and local authorities to
undertake environmental assessments and report on the state the environment. Since 1999
nineteen sub-national State of the Environment reports have been produced. During 2002 DEA
(then DEAT) also released a set of environmental indicators and developed a draft set of
environmental performance indicators for local authorities. The State of the Environment Report
has also provided capacity to provinces and local authorities for developing environmental
reports and products on the internet.41
85. Until recently, regulatory measures for waste management in South Africa were not on a
par with international legislation. In the mid 1990s DEAT initiated the development of an
integrated approach to waste management and issued three guidance documents to deal with the
management of hazardous waste, waste disposal by landfill, and water quality at waste
management facilities.42
The National Environmental Management Waste Act of 2008 provides
a more comprehensive regulatory framework for management of waste. One of the major
changes of the Act is to transfer primary authority for waste management from sectoral
ministries to DEA.
39 Telcon with DEA, February 5, 2010. 40 DEAT, Annual Report, 2006-2007, p. 17. 41 DEAT, 2007, South Africa Environment Outlook, A Report on the State of the Environment, Revised Edition, 1.4.1
(SAEO). 42 Minimum Requirements for the Handling, Classification and Disposal of Hazardous Waste; Minimum
Requirements for Waste Disposal by Landfill; and Minimum Requirements for the Monitoring of Water Quality at Waste Management Facilities are existing documents. Other documents envisaged for the series include: Minimum
Requirements for Waste Disposal Site Auditing; Training of Operators and Managers of Waste Management
Facilities; and Minimum Requirements for the Handling, Classification and Disposal of Hazardous Waste.
Department of Water Affairs and Forestry, Republic of South Africa, Waste Management Series, Second Edition,
1998.
25
3. Department of Water Affairs
86. Since 1956 the Department of Water Affairs (DWA), until recently the Department of
Water Affairs and Forestry (DWAF), has been responsible for implementing all government
policies and regulations regarding water supply, initially under the terms of the Water Act, 1956.
This authority was reiterated under the ECA of 1989, the Water Services Act of 1997, and the
National Water Act of 1998 (Act 36 of 1998). DWAF prepared a National Water Resource
Strategy in 2004, which among other findings determined that the Crocodile (West) River Basin
is of paramount importance in developing a more specific management strategy. The DWA is
reviewing the institutional arrangements for the supply of water at the national level, and is
expected to establish a National Water Resource Infrastructure Agency which will develop,
operate, and maintain bulk water infrastructure of national importance at a first tier level.
87. The 2000 Integrated Pollution and Waste Management Policy (IP&WM) contains key
principles that inform the government‘s approach to waste management. Currently, coal ash
pond management is regulated under the Water Act, which is administered by DWA. In addition,
DWA was also responsible for issuing permits for waste disposal that could impact ground and
surface water. Since the cabinet reorganization of May 2009 the Department of Water Affairs
has been reassigned to the new Ministry of Water and Environmental Affairs. It remains to be
determined how the responsibilities for water and waste management will be allocated between
the Department of Water Affairs and the Department of Environmental Affairs (formerly DEAT)
within the new ministry.
4. South African Heritage Resource Agency
88. The South African Heritage Resource Agency (SAHRA) provides the expertise in South
Africa to develop and implement policies and practices towards protection and management of
cultural resources. Under the EIA Process established by NEMA, cultural heritage and resources
are among the key subjects that must be considered in the EIA process, which is under the
jurisdiction of DEA. Specialists must be engaged in the EIA process who have the skill,
competence, and qualifications satisfactory to SAHRA. If cultural resources are identified or
found in the course of the EIA process, SAHRA or its provincial counterpart must be involved to
survey the site that is being subject to environmental assessment and assess any discovery, and
may either issue a prohibition to further develop the site or mandate mitigation and conservation
measures to be taken by the project proponent. If findings are made during the EIA process, the
requirements mandated by SAHRA are incorporated in the Record of Decision issued by DEAT.
The ROD also normally requires notification of SAHRA in the event of ―chance finds‖ during
project construction.
26
B. PROCESSES AND PROCEDURES
1. Environmental Governance
89. The White Paper on Environmental Management Policy issued by DEAT in 1997
identified good environmental governance as a critical factor in successful environmental
management in South Africa. The White Paper set forth the following principles:43
Responsible and accountable governance;
Regulatory enforcement;
Establishment of integrating mechanisms and structures to facilitate participation;
Inter-ministerial and interdepartmental coordination;
Separation of institutional responsibilities for regulation of environmental impacts
and promotion of resource exploitation;
Public access to information; and
Institutional and community capacity building.
90. In addition to the provisions contained in the NEMA of 199844
and EIA Regulations
issued in 2006, other legislation relevant to public consultation and disclosure with respect to the
electricity generation and transmission sector include: the Promotion of Access to Information
Act of 2000; the Promotion of Administrative Justice Act of 2000; and the Protection of
Information Act of 1982. Collectively these acts promote access to information, including air
quality information, while limiting access to information that may be deemed sensitive for
purposes of national security and public safety. The Integrated Environmental Management
Information Series not only provides access to information but also practical guidance to the
public regarding environmental management and governance. The Environment Sector Strategic
Plan published by DEA in 2009 also makes contributions to improved environmental governance
in South Africa.
91. The Integrated Policy for Waste Management, implemented jointly by DEA and the
Department of Water Affairs, clearly recognizes the role of public participation in the
establishment of environmental standards, specifically in terms of: ―the universal, consultative
application of the standards setting process, taking into account the needs of…. civil society
[and] the provision of access to civil society to the standards setting process and of the standards
43 SAEO, 5.1.2 SESA. 44 Section 3(1(a) of NEMA provides that ―every person is entitled to have access to information held by State and
organs of state which relate to the implementing of …NEMA and any other law affecting the environment, and to
the state of the environment and actual and future threats to the environment including any emissions to air, water or
soil and the production, handling, transportation, treatment, storage and disposal of hazardous waste and
substances.‖
27
themselves…‖.45
With specific reference to air quality, Section 7(2) of the NEMA AQA of 2004
requires that the norms and standards established in the National Framework are aimed at
ensuring opportunities for public participation in the protection and enhancement of air quality
including public access to air quality information.
92. To implement these provisions with respect to air quality, DEA has initiated the South
African Air Quality Information System (SAAQIS) to make ―real time‖ information available to
stakeholders in a user-friendly format and to provide a common system for managing air quality
and provide uniformity in the management of data, information and reporting.
2. Environmental Impact Assessment
93. South Africa began undertaking EIAs in an ad hoc manner during the 1980s and a
voluntary EIA procedure was integrated into the ECA of 1989 (since largely superseded by
NEMA; some sections of the ECA remain in effect pending further amendments to NEMA).
Requirements for EIA were introduced on a sectoral basis in the Minerals Act of 1991 (Sections
38, and 39(5). These requirements were generalized by the Environmental Impact Assessment
Regulations of September 5, 1997 (1997 EIA Regulations), which mandated a process including
screening, scoping, public participation, environmental reports, review and decision.46
Although
the 1997 EIA Regulations were superseded by new EIA Regulations issued in 2006, the
acceptability of the 1997 EIA Regulations are relevant to this review because the EIRs for
Medupi and Kusile were initiated prior to the effective date of the 2006 EIA Regulations and
were, therefore, conducted under the authority of the 1997 EIA Regulations.
94. Under the 1997 and 2006 EIA Regulations, environmental management is a concurrent
function where DEA sets the legal framework but provinces are normally autonomous in
implementing the function. EIRs are conducted at several administrative levels: national,
provincial, and local depending on whether the national environment is affected or national
governmental authorities are the applicant.47
95. However, one unintended effect of this process was a lengthy application process that
conflicted with urgent national priorities of economic growth and job creation.48
Over the years,
DEA reviewed the South African EIA system to see what regulations worked and what
regulations needed improvement.49
An April 2006 report found the following inadequacies: (a) a
wide interpretation of activities resulted in inconsistent applications; (b) unnecessary EIRs were
conducted for applications of small scale/insignificant activities; (c) the application process itself
was lengthy and inflexible and contained too many ―authority stops‖/―decision points‖; (d) there
were inadequate provisions for public consultation; (e) there were no strategic planning tools to
45 Ministry of Environmental Affairs and Tourism, 2007. National Framework for Air Quality Management in the
Republic of South Africa. September 11, 2007, Section 5.4.3.4. (National Framework). 46 Jens Staerdahl, Zuriati Zakaria, Neil Dewar and Noppaporn Panich, ―Environmental Impact Assessment in
Malaysia, South Africa, Thailand and Denmark: Background, layout, context, public participation and environmental scope.‖ Journal of Transdisciplinary Environmental Studies, Vol. 3, no. 1, 2004 (Staerdahl et al.
2004). 47 Staerdahl et al. 2004. 48 DEAT, Annual Report, 2006-2007. 49 DEAT, 2006. Report on NEMA EIA Regulations.
28
provide support; and (f) enforcement measures were generally weak. The review led to the
promulgation of the 2006 EIA Regulations, issued under the authority of NEMA. Six aspects of
EIA Regulations were identified as areas that might be retained and that might need
improvement. The six areas reviewed are as follows:50
Application of EIA: The 1997 EIA Regulations were applied to too wide a spectrum
of activities resulting in a level of effort disproportionate to potential impacts and
risks. As a result some low risk projects were utilizing excessive resources for
regulatory review and approval while at the same time some higher-risk projects were
not getting sufficient attention. The 2006 EIA Regulations seek to address this issue
by redefining the spectrum of projects subject to EIA.
EIA Scoping: The 1997 EIA Regulations created a cumbersome process for EIAs,
which resulted in innovative interventions. The NEMA EIA Regulations differentiate
between basic and thorough assessments, resulting in a more tailored scope for each
EIA.
Decision-Making Process: The 1997 EIA Regulations allowed only a comprehensive
process. In contrast, the NEMA EIA Regulations allow for upfront decision making
regarding fatal flaws, emergency circumstances, and ―clearly no impact‖ situations,
and additionally prescribe differential time frames.
Roles, Responsibilities and Compliance: The 1997 EIA Regulations limited the
allocation of roles and responsibilities to authorities and applicants and did not
specify consequences for non-compliance. The NEMA EIA Regulations prescribe the
roles and responsibilities for all parties involved, and provide consequences for non-
compliance.
Public Participation: The 1997 EIA Regulations included public participation as part
of an EIA, but the regulation itself was poorly defined. The NEMA EIA Regulations
provide a well-defined requirement for public participation, which includes minimum
requirements.
Appeal Process: The 1997 EIA Regulations contained no prescribed appeal decision-
making process. The NEMA EIA Regulations sought to change this by providing a
well-defined appeals process. The overall appeal process has been streamlined with
regulations set forth by a consistent national process.
96. While some EIA applications are processed by DEA, the majority of applications are
actually handled at the provincial level.51
However, DEA is still involved as it has the
Constitutional responsibility to provide the provinces with support and help in effectively
handling the stream of EIA applications.52
50 DEAT, 2006. Report on NEMA EIA Regulations. 51 DEAT, Annual Report, 2006-2007: Enhancing Quality of Life. 52 DEAT, Annual Report, 2006-2007: Enhancing Quality of Life.
29
97. As a result of a significant effort by DEA to develop capacity and provide technical
support to provincial authorities, the number of pending EIA applications (nationally and in the
provinces) was dramatically reduced from 5,300 in July 2006 to 1,717 by the end of March 2007.
EIA backlogs were reduced by 40 percent by the end of FY 2006-07 and more than 80 percent of
new applications were processed on time.53
Moreover, electronic tracking of applications is no
longer restricted to state-owned enterprises.54
DEA has developed the National Environmental
Authorization System as a web-based tool to track the process of EIA applications.55
98. In November 2008, DEAT issued a draft review of the previous ten years of EIA practice
in South Africa. The draft report was commissioned by DEAT and conducted by independent
consultants. The main findings of the report are that: (a) the overall effectiveness of EIAs in
South Africa in meeting requirements of ECA and NEMA was deemed moderate, with
substantial room for improvement; (b) overall there was a significant improvement in
effectiveness and efficiency of EIA in moving from the ECA regulations to the NEMA
regulations; (c) public participation in EIA is effective; (d) the cumulative (combined) impacts
aspect is generally not considered effective and there is room for improvement; (e) the EIA
process in South Africa is implemented relatively efficiently if one considers the average time it
takes to produce and evaluate EIAs; (f) monitoring and enforcement in Environmental
Management is one area where the current EIA system is not effective or efficient; (g) a more
strategic approach to Environmental Impact Management is required and there is a definite need
to move away from an ―EIA only‖ system to one based on integrated environmental
management.
99. NEMA itself has been several times, most recently in December 2008 by the National
Environmental Laws Amendment Act (35 of 2007, NELAA) and by the National Environmental
Management Amendment Act of 2008 (36 of 29, NEAMA), which came into effect on May 1,
2009. These amendments provided some useful clarifications to the EIA, enforcement and
compliance provisions of NEMA and made provision for the conformance of these provisions to
legislation issued pursuant to NEMA. Some of these provisions are relevant to the EISP and are
described below.
100. Implementation of Multilateral Environmental Agreements (MEAs). Since 1994,
South Africa has engaged fully and actively in international fora, a process of emergence that
culminated to date in its hosting of the World Summit on Sustainable Development in 2002. Like
other developing countries, South Africa‘s implementation of ratified MEAs has been variable.
Progress has been made in implementation of the Kyoto Protocol and the Convention on
Biological Diversity; less so on the development of its National Action Programme on Land
53 DEAT, Annual Report 2006-2007, p. 4. Under Article 36 of the Regulations in terms of Chapter 5 of the NEMA
(―EIA Regulations‖)…. ―A competent authority must within 45 days of acceptance of an environmental impact assessment report….or, if the report was referred for specialist review …within 45 days of the receipt of the findings
of the specialist reviewer, in writing – (a) grant authorization in respect of all or part of the activity applied for; or
(b) refuse authorization in respect of all or part of the activity.‖ 54 DEAT, Annual Report, 2006-2007: Enhancing Quality of Life. 55 DEAT, Annual Report, 2006-2007: Enhancing Quality of Life..
30
Degradation required for implementation of its commitments under the Convention to Combat
Desertification.56
101. Decentralization of the EIA Process. Distributing power at a provincial level is
common in South Africa, stemming from the South African Constitution that gives wider powers
to the provinces (e.g., provincial planning), as well as to the Department of Water Affairs, and
the Department of Minerals and Energy. To achieve this end, several initiatives were launched to
capacitate provinces while reducing the large number of pending EIA applications, as noted
above.
102. In accordance with its Constitutional responsibility to provide support for the provinces,
DEA conducts visits to each province spending a full day with each provincial team to establish
capacity. The feedback from these trips is incorporated into a Capacity Audit and Needs
Analysis, which allows custom-made interventions to tackle provincial needs.57
DEA has also
established a new Capacity and Support Directorate that focuses on provincial assistance.
Additional training and other initiatives have included:58
Fourteen training sessions, with one for each province, followed up by five further
sessions for provincial officials in related fields who had not attended the initial
training;
Eleven ―open day‖ information sessions, one for each province and two national
sessions in Pretoria and Cape Town;
Four Regulation Implementation workshops of two to three days each;
Financial and technical help extended to seven provinces; and
Several Environmental Management Frameworks (EMFs) have been developed in
partnership with the provinces. The target is for the Minister or MECs to promulgate
these EMFs in terms of Rule 72 of the NEMA EIA Regulations in 2008/2009.
103. Further improvements are expected as a result of the revised Strategic Plan issued by
DEAT in 2008, which among other recommendations, proposed a desired service standard of 95
percent of applications processed on schedule by 2010.59
The revised Strategic Plan also
recommended training in EIA administration for both provincial and national EIA
Administrators.60
Training is offered in 9 provinces, without discrimination, to all EIA
Administrators. To date, approximately 250 administrators attended basic training on the 2006
EIA Regulations.61
The desired standard and timeframe is 450 trained EIA administrators at the
end of 2008/09. The revised Strategic Plan recommends finalizing development and
accreditation of training courses, adding training material and tutorials to the DEA website,
56 SAEO, 2.1.4. 57 DEAT, Annual Report, 2006-2007: Enhancing Quality of Life. 58 DEAT, Annual Report, 2006-2007: Enhancing Quality of Life. 59 DEAT, 2007. Strategic Plan for 01 April 2005 to 31 March 2010, Revised 2007/08. 60 DEAT, 2007. Strategic Plan for 01 April 2005 to 31 March 2010, Revised 2007/08. 61 DEAT, 2007. Strategic Plan for 01 April 2005 to 31 March 2010, Revised 2007/08.
31
funding contact sessions in appropriate locations, and entering into partnerships with tertiary
institutions to ensure sustainability of training courses.62
3. Cumulative Impact Assessment
104. Both OP 4.00 Table A1 and South African EIA Regulations make reference to
assessment of cumulative impacts as appropriate in the project context. NEMA requires that
cumulative impacts be considered both in the EIA process and by decision-makers. Because EIA
in South Africa is primarily a permitting instrument and the EIA process results in a permit with
conditions for which the applicant is responsible, it is very difficult to include detailed
assessment of impacts not under the control of the applicant. At the same time, the permitting
authority needs to be in a position to decide on the acceptability of impacts not only as a result of
the applicant‘s proposed project but all of the activities in the project area.
105. In order to address this dilemma, South Africa has adopted a two-pronged approach,
where cumulative impacts or effects are dealt with at both a strategic and an activity level. On
the strategic level, the SEA approach is used by government to develop Environmental
Management Frameworks (EMFs) for a defined area as described below. An EMF for an area
takes into consideration all existing and planned (or anticipated) activities, and then models
impacts on air, water, land use, and the socio-cultural landscape. This forms the baseline against
which decisions on specific development applications can be based. It also informs land use
planning and management for the area, something that civil society stakeholders consider has
been lacking until this time. At a project-specific level, the applicant assesses the contribution of
the proposed activity with respect to the baseline; this forms part of the EIA process, even
though it is focused on what is under the control of the applicant and for what the applicant can
reasonably and lawfully be made responsible through permit conditions.
106. With respect to the EISP and its components, the issue of cumulative impacts is germane
at the level of each individual project component. As noted in the maps attached to this SDR, the
various project components are well removed from each other, and have been considered as
stand-alone projects by Eskom and the regulatory authorities. There has been and remains no
reasonable justification for examining their cumulative impacts as a package of investments
being considered for Bank financing through the EISP. As individual projects, however,
cumulative impacts have been examined as appropriate as part of the EIA process. In the case of
the Medupi and Kusile projects, the most important cumulative impact relates to air emissions
and ambient air quality. South African air quality regulations require assessment of cumulative
impacts on the airshed of the new project. As noted later in this SDR, the cumulative impacts on
the airshed resulting from the proposed project, existing sources, and likely future developments
are taken into consideration in the Record of Decision.63
107. In the context of transmission lines, cumulative impacts are also taken into consideration
by Eskom‘s Transmission Division in carrying out feasibility and siting studies for new high-
62 DEAT, 2007. Strategic Plan for 01 April 2005 to 31 March 2010, Revised 2007/08. 63 This accounts for a key difference in the Records of Decision for the Medupi and Kusile projects; the Kusile
project must be built with FGD capacity installed, and the Medupi project must be FGD-ready with the expectation
that airshed quality will degrade at such time as additional industrial development and population growth occurs in
the airshed.
32
voltage transmission lines. One of the key issues considered in both system planning and the EIA
process is whether new transmission lines should be installed as part of a utility corridor, or kept
distant from existing transmission line rights-of-way, depending on the assessed cumulative
impacts of the two strategies. A utility corridor approach is rarely taken, however, in areas where
the risk of large-scale brush fires may place high voltage transmission lines at risk because of
regulatory restrictions established to maintain safety and security of the national power grid.
4. Strategic Environmental Assessment (SEA) and Environmental Management
Frameworks (EMF)
108. South Africa has no legislation requiring SEA, which is still considered an emerging tool
for assessing environmental impacts on a strategic level in both developed and developing
countries.64
NEMA, by making provision for the development of assessment procedures that aim
to ensure that the environmental consequences of policies, plans and programs (as well as
projects) are considered, provides for the use of SEA on a case-by-case basis.65
As a result, no
particular body has legal responsibility for undertaking or approving SEA,66
but the EMF has
become a useful tool for DEA and other agencies to address a wide range of environmental
issues in a particular geographic area at a strategic level, as discussed further below.
109. A more recent iteration of South Africa‘s SEA Guideline was issued in 2004 as part of a
series of overview information documents on concepts of, and approaches to, integrated
environmental management that have been issued by DEAT.67
The document cites the 2000
Guideline document prepared by DEAT and the Council for Scientific and Industrial Research
(CSIR) as the authoritative guidance on SEA in South Africa. It expands the scope of its
recommendations on best practice using a broad set of international and national sources
including the United States, Canada, the European Union, the United Nations, Economic
Commission for Europe, and the World Bank.68
More recently, DEA has taken note of the
pending incorporation of South Africa‘s SEA Guideline within South Africa‘s regulatory
framework ―once the initiated provincial consultation process has been completed.‖69
110. A lack of capacity on the part of South Africa‘s public sector to deal with the
implementation of new legislation (such as EIA Regulations) has been ―widely acknowledged.‖70
In contrast, there is significant SEA capacity in the consultancy profession, where some
international best practices in SEA have been demonstrated. The major consequence of this
64 ―There is currently no internationally accepted definition of SEA. It is commonly referred to as a processing for
assessing the environmental consequences of policies, plans and programmes‖ as distinguished from site-specific
activities or projects. Nigel Rossouw, Michelle Audoin, Paul Lochner, Stuart Heather-Clark and Keith Wiseman,
―Development of strategic environmental assessment in South Africa,‖ Impact Assessment and Project Appraisal,
September 2000, Vol. 18, No. 3:217-223. 65 DEAT and CSIR, 2000. Guideline Document: Strategic Environmental Assessment in South Africa (DEAT/CSIR
Guideline Document). 66 DEAT/CSIR Guideline Document, p. 10. 67 DEAT, ―Strategic Environmental Assessment,‖ Integrated Environmental Management Information Series, No. 10, 2004 (DEAT, SEA 2004). 68 DEAT, SEA. 69 DEAT, Annual Report, 2006-2007, p. 18. 70 Francois Retief, 2007. ―Quality and effectiveness of strategic environmental assessment (SEA) as a tool for water
management in the South African context.‖ Water SA. Vol. 33, No. 2:153-164. (Retief, 2007a).
33
―consultancy driven‖ approach to SEA is a lack of integration of SEA into the decision-making
process, and a lack of correspondence between the quality of SEA inputs and outputs.71
111. Based on Bank team discussions with DEA during preparation of this SDR, it is
anticipated that pending NEMA regulations will bring SEA under the regulatory purview of
DEA. These proposals are consistent with the international view that ―forming an unambiguous
and explicit legislation is important for [SEA] success.‖72
112. A more recent iteration of SEA in South Africa has taken the form of an Environmental
Management Framework (EMF), a regional approach to strategic EIA that was provided for in
Section 8, Articles 69-70 of NEMA. Under the provisions of NEMA, the Minister of the
Environment or the provincial representative of the Ministry may initiate an EMF process with
the following objectives:
Specify the attributes of the environment in the area, including the sensitivity, extent,
interrelationship and significance of those attributes;
Identify any parts in the area to which those attributes relate;
State the conservation status of the area and in those parts;
State the environmental management priorities of the area;
Indicate the kind of activities that would have a significant impact on those attributes
and those that would not;
Indicate the kind of activities that would be undesirable in the area or in specific parts
of the area; and
Include any other matters that may be specified.
113. Among other things the Minister or MEC must: (a) subject the draft EMF to a public
participation process by making the draft available for public inspection at a convenient place;
and (b) invite potential interested and affected parties by way of advertisements in newspapers
circulating in the area and in any other appropriate way to inspect the draft and submit
representations, objections and comments in connection with the draft to that person or organ of
state; and review the draft in the light of any representations, objections and comments received.
114. EMF Regulations were issued as part of the 2006 NEMA EIA Regulations. The EMF
Regulations define EMF as ―a study of the biophysical and socio-cultural systems of a
geographically defined area to reveal where specific land uses may best be practiced and to offer
performance standards for maintaining appropriate use of such land….‖
115. The Regulations call for the EMF process to be conducted in such a way as to ―ensure
that participation by potential interested and affected parties in the development of the
71 Retief, 2007a. 72 Retief, 2007a.
34
environmental management framework is facilitated in such a manner that all potential interested
and affected parties are provided with a reasonable opportunity, sufficient understanding and
skill, best suited to the local interests and groups in each geographical area, to provide comment
during the process of developing the [EMF].‖
116. In addition to elaborating on the content of an EMF, the Regulations provide that if the
Minister or provincial Ministerial authority adopts ―the environmental management framework
[it] must be taken into account in the consideration of applications for environmental
authorization in or affecting the geographical area to which the framework applies‖
117. To date, EMFs have been completed and/or initiated for three municipal districts in South
Africa undergoing rapid economic growth and transformation, including Oliphants-Msundzi,
Magaliesburg, and Emakhazeni. The Bank‘s review of the EMF documentation indicates that
DEA conducted robust baseline analysis, based on sophisticated Geographic Information
Systems technology, and broad stakeholder engagement across government agencies, non-
governmental organizations and the interested and affected public. Outputs of the EMF process
included Environmental Management Plans for affected areas, which have provided a strategic
context for zoning and for assessing the indirect and cumulative impacts of specific proposed
projects and thereby informed and enhanced the EIA process in the three regions.
118. More recently, in November 2009, DEA issued an Invitation to Bid on the Development
of the EMF for the Waterberg District Municipality in which the Medupi project is located. The
objective of the EMF is to ensure that water resources, biodiversity, and ecosystem services are
comprehensively and well managed in the expectation of prospective future increases in mining,
industrial development, agricultural and tourism activities, and population growth in the
Waterberg area.
119. The Terms of Reference for the Waterberg EMF73
are consistent with the requirements of
NEMA and include sections on the Status Quo (or baseline) environment including important
biodiversity conservation areas;74
threatened ecosystems and species; ambient air quality; status
of primary resources, including water; cultivated areas and areas suitable for agriculture; a spatial
representation of land uses (with an emphasis on uses that may threaten environmental
resources); planned development nodes obtained from municipalities and other stakeholders such
as Eskom, and the mining and petroleum industries in the area; current allocation for prospecting
and mining rights and permits; spatially defined environmental NGO initiatives; completed and
pending EIA authorizations; status of existing services; social and economic conditions and key
environmental issues (opportunities and constraints). The Status Quo report will be the basis of a
consultative public participation process through which the Desired State of the Environment
73 DEA, 2009. Revised Invitation to Bid, Development of the Environmental Management Framework for the
Waterberg District Municipality, November 13, 2009. 74 The Waterberg District Municipality includes the Waterberg Biosphere Reserve (WBR), one of four UNESCO
recognized biosphere reserves in South Africa. Within the Waterberg there are archaeological finds dating to the Stone Age, and nearby are early evolutionary finds related to the origin of humans. The northernmost boundary of
the WBR lies about 40 kilometers from the Medupi plant from which it is separated by an area of high terrain, and is
therefore outside the area of influence of the Medupi plant. The Eskom Development Foundation is providing
funding to the South African Institute for Breeding Rare and Endangered African Mammals for research in the
Laphalala Wilderness, which is located in the core area of the WBR.
35
will be established. Based on the spatial component of the Desired State of the Environment, and
biological constrains and opportunities, the Waterberg area will be divided into environmental
control zones so as to facilitate future decision making on environmental requirements and
acceptability of development applications.75
The EMF will, in turn, inform the development, as
part of the EMF process, of a Strategic Environmental Management Plan which will include
strategies for: maintaining productive agricultural activity on suitable lands; maintaining
biodiversity and open spaces on land where biodiversity conservation has been identified as a
feasible and desirable end use; and promoting development where appropriate without EIA
authorization. Under the EIA Regulations, the draft EMF must be circulated to identified
stakeholders for comments before adoption by decision making authorities at the national,
provincial and municipal levels.76
5. Permitting
120. Permitting is a key output of the EA process in South Africa. With respect to the air
quality impacts of electrical generating facilities, the principal authorization is the Atmospheric
Emission License (AEL). The granting of an AEL must be preceded by the issuance of a ROD77
for an EIA application, which for listed activities (including thermal power plants with more than
70 MW heat output) is required to be accompanied by an Air Quality Impact Assessment Study
prepared by qualified specialist(s).78
Metropolitan and district municipalities are charged with
implementing the atmospheric licensing system per Section 36 of the AQA, subject to alternative
arrangements in which a provincial organ of state may be designated as the issuing authority
121. Factors to be taken into account in the issue of an AEL include, inter alia:79
Any applicable minimum standards set for ambient air and point source emissions as
per the AQA;
Pollution being (or likely to be) caused by the operation of the activity being applied
for and the effect (or likely effect) of that pollution on the environment, defined to
include health, economic and social conditions, cultural heritage and ambient air
quality; and
The best practicable environmental options available80
that could be taken to
prevent, control, abate, or mitigate the pollution and to protection the environment
(as defined above) from harm as a result of the pollution.
75 A three-fold categorization will be applied per standard EMF practice, delineating: (1) areas in which the
undertaking of an activity should be allowed to take place without further investigation; areas in which the
undertaking of an activity may be allowed subject to any environmental authorization per NEMA regulations; and
(3) areas in which the undertaking of an activity should not be considered. 76 In January 2010 the tender was awarded to Enviro-Consult, a South African consulting firm with considerable
experience in preparing previous EMFs. 77The term ―Record of Decision‖ is to be phased out under the NEMA EIA Regulations of 2006 and replaced with
the term ―Environmental Authorization.‖ National Framework, 5.5.2 and p. 67 footnote 3. 78 National Framework, 5.5.3. 79 H. von Blottnitz, C. Fedorsky and W. Bray, ―Air Quality,‖ in H.A. Strydom and N.D. King (eds.), Fuggle and
Rabie’s Environmental Management in South Africa (2nd. ed., 2009, p. 597. (von Blottnitz et al.).
36
122. The contents of an AEL must include the maximum allowed amount, volume, and
emission rate or concentration of pollutants that may discharged into the atmosphere under
normal working conditions and during start-up, maintenance, and shut-down conditions, as well
as point source emission and onsite ambient air quality measurements and reporting requirements
(including measurement reporting requirements for greenhouse gas emissions).81
123. The public participation requirements of the EIA process are also intended to contribute
meaningfully to the AEL process as specified in Section 38(3) of the AQA under which an
applicant for an AEL must bring the application to the attention of relevant organs of state,
interested persons, and the public.
124. With respect to the management of solid waste (coal ash), under the previous 1989 ECA,
guidelines were issued for different classes of landfill. The landfill class is determined from the
waste type, size of operation, and potential for significant leachate generation. Where significant
leachate is generated, leachate management is mandatory. Where hazardous waste is involved,
the most stringent Minimum Requirements are applicable. With enactment of the Waste Act of
2008, which became effective in early 2009, DEA will have primary authority to authorize and
regulate the final design and operation of the coal ash retention landfill at the Medupi site.
Regulations to implement the Waste Act remain under development. The requirements for public
participation are integrated with the Public Scoping requirements of DEA‘s Environmental
Impact Assessment Regulations (EIA Regulations). The EIR, together with other necessary
stages in the landfill development process, forms part of the Landfill Permit System, and has to
be approved by DEA.
6. Compliance and Enforcement
125. The International Network for Environmental Compliance and Enforcement (INECE)
considers the following as essential components of an effective compliance and enforcement
program: creating requirements that are enforceable; knowing who is subject to the requirements,
promoting compliance in the regulated community, monitoring compliance, responding to
violations, clarifying roles and responsibilities, and evaluating the success of the compliance and
enforcement program.82
126. Within the South African context, as in many other countries, there is a variable mix of
―rationalist,‖ and ―normative‖ approaches to environmental compliance and enforcement.83
The
80 Under NEMA, Section1, the ―Best Practical Environmental Option (BPEO)‖ is defined as ―the option that
provides the most benefit or causes the least damage to the environment as a whole, at a cost acceptable to society,
in the long term as well as the short term.‖ 81 National Framework 5.5.3.5; and von Blottnitz et. al, p. 599. 82 INECE, Principles of Environmental Enforcement (2005); http:www.inece.org/princips/ch.1.pdf as cited in
Craigie, Snijman and Fourie, in Paterson and Kotzé, eds. Environmental Compliance and Enforcement in South
Africa, Legal Perspectives, p. 44. 83 The ―rationalist‖ approach is based on establishing certain predictable consequences for non-compliance, typically the risk of punishment in the form of administrative measures (ranging from compliance notes, directives, abatement
notes to suspension or withdrawal of an environmental authorization); criminal sanctions (in the form of substantial
fines or imprisonment) or civil measures (such as issuing a court order to halt or remediate harm). The ―normative‖
approach tends to focus more on providing assistance to the regulated community to facilitate compliance, rather
than relying exclusively on enforcement measures designed to penalize non-compliance, op. cit, pp 42-43.
37
enactment of NEMA in 1998 was accompanied by a significant shift in approach towards
rationalist, enforcement measures, through various amendments to NEMA, as the initial Act had
contained only administrative measures84
and did not provide for criminal sanctions.85
This,
together with the incorporation within NEMA of the ―polluter pays‖ principle, has had a strong
deterrent effect on non-compliance in many instances.86
127. The Constitution ―has significantly molded the structure and form of South Africa‘s
environmental compliance and enforcement institutions.‖87
Under the Constitution, the national
government exercises legislative competence and executive authority concurrent with provincial
government. Accordingly, all general environmental authorizations, compliance and enforcement
powers under NEPA are shared by DEA and provincial environment departments. However,
national government does not have competence over environmental issues falling within the
exclusive competence of provincial government, and, moreover, local (e.g., municipal)
government is authorized to make and administer its own laws relating to air pollution, noise,
water and sanitation services, solid waste disposal and other matters, subject to national and
provincial oversight. Two legislative instruments of particular relevance to the EISP, the NEMA
Air Quality Act and the NEMA Waste Act, are administered by national and provincial
government in addition to local authorities.88
128. In addition to this ―vertical‖ delegation of authority, authority to issue and enforce
environmental regulations, although focused in DEA, under the authority of the Ministry of
Water and Environmental Affairs, is shared with several other Departments. The Department of
Water Affairs (until recently housed within the Ministry of Water Affairs and Forestry, and only
since May 2009, included within the Ministry of Water and Environmental Affairs), is
responsible, per the authority of the National Water Act, for the protection of fresh water
resources, including the issuance of licenses to discharge treated effluent into surface waters.
Mining is regulated primarily by the Department of Minerals and Energy under the authority of
the Minerals and Petroleum Resources Development Act.89
This is significant because, in
contrast to DEA, the Department of Water Affairs (DWA) has limited authority for
enforcement.90
129. To offset this decentralization of authority, Section 41 of the Constitution also prescribes
a set of principles for ―cooperative governance,‖ which are operationalized in the Inter-
governmental Relations Framework Act of 2005. Accordingly, as described above, NEMA
prescribes an array of statutory mechanisms including interministerial coordinating committees
at both the national and provincial levels, planning frameworks and procedures for conflict
resolution. In addition, four Working Groups consisting of officials from DEA and provincial
84 These were further limited to provisions including Duty of Care (Section 28) and Emergency Incidents (Section
30) as cited in Craigie, Snijman and Fourie, ―Environmental Compliance and Enforcement Institutions,‖ in Paterson
and Kotzé, op. cit, p.89. 85 Ibid., p. 53. 86 Ibid., p. 54. 87 Craigie, Snijman and Fourie, op.cit., p. 66. 88 Ibid., p. 68. 89 Ibid., p. 67. 90 Paterson and Kotzé, p. 83.
38
environment departments have been created, of which one, Working Group IV, established in
2007, deals with permitting, compliance and enforcement issues.91
130. In 2001, DEAT initiated a process to develop appropriate authority structures to
undertake pro-active environmental monitoring for purposes of assessing and enforcing
compliance. This resulted in the 2003 issuance of legislative authority under NEMA to designate
an Environmental Monitoring Inspectorate (EMI) tasked with enforcing NEMA and other
designated Specific Environmental Management Laws (SEMAs), together with subordinate
legislation and regulations, together with the establishment a new Enforcement Directorate
within DEAT. When the new legislative authority became effective in May 2005, the EMI‘s
authority was initially limited to the enforcement of NEMA and laws issued under NEMA since
1998 such as the AQA.92
However, until the NEMA Amendments of 2008 were enacted, many
statutes issued prior to NEMA, such as the APPA and the ECA (pending their gradual repeal),
both of which are directly relevant to components of the EISP (particularly Medupi), were not
subject to the EMI. Furthermore, NEMA grants individual Environmental Management
Inspectors (acting within their mandate) extremely wide powers, including powers of inspection,
investigation, administrative and enforcement actions. 93
In addition to these powers, EMIs
(within their mandate) have the same powers as those assigned a police official under specified
provisions of the Criminal Procedure Act (No. 51 of 1977). These provisions deal with search
warrants, entering of premises, seizure, forfeiture, and disposal of property connected with
offences as well as powers relating to arrest, issuing of written notices to appear in court, and the
issuing of admission-of-guilt fines.94
131. The fact that the institution of a centralized national environmental compliance and
enforcement regime in South Africa is a relatively recent development accounts in large part for
the perception among some members of South African civil society that environmental
enforcement is not effective. However, there have been several developments since 2005 that
suggest that the EMI is evolving into an effective mechanism for compliance and enforcement,
particularly on a national level. Beginning in 2005, a national EMI Training Framework was
developed and implemented.95
Officials cannot be designated as EMIs unless they have
successfully completed the accredited EMI Basic Training Course. In 2007, the EMI developed a
standard operating procedure for dealing with non-compliant organs of state, expanding its
oversight role from private to public sector entities.
91 Ibid. p. 68. 92 This is of particular importance as the AQA itself makes no provision for the enforcement of its own provisions. It
does, however, set forth compliance monitoring and enforcement parameters as do the African National Standards
(SANS) 29, with respect to siting criteria for sampling of priority pollutants associated with thermal power plants
including particulate matter (PM10), SO2, NOx, and carbon monoxide (CO) as well as ozone, lead, and benzene. 93 The legislative vehicle was NEMA, First Amendment Act of 2003, which inserted a new Chapter 7 (part 2) in
NEMA. P.J. Lukey, A. Brijlall, and M. Thooe, ―Gearing Up for Efficient and Effective Pollution and Waste
Management Enforcement,‖ 2004, unpublished paper, cited in Craigie, Snijman and Fourie, op.cit, pp. 89-92. 94 ―Enforcement of air quality legislation in South Africa – October 2008,‖ An overview prepared for the United
Nations Environment Programme Eastern Africa Workshop on Better Air Quality in Cities on 21-23 October 2008,
Melissa Fourie, Evolve Consulting Pty Ltd. 95 The curriculum was developed with technical assistance from the UK Environment Agency and the US
Environmental Protection Agency.
39
132. As of March 31, 2008 there were 903 designated EMIs; 42 had been trained but not
registered;96
and an additional 104 were completing the requisite training for designation,
including the first 27 local government officials. 97
However, more than two-thirds of the
registered EMIs were assigned to SANPARKs, the South African management authority for the
national park system or local parks boards, leaving a maximum of 232 EMIs to undertake
functions related to terrestrial and marine pollution outside protected areas.98
133. With respect to the EISP, sector-specific compliance monitoring and enforcement
requirements of direct relevance to the EISP are set forth in Sections 20(c), 41(1)(k and m), 51,
52, and 55(2) of the AQA. South African National Standards (SANS) 29 also sets forth reference
methods and siting criteria for sampling of priority pollutants associated with thermal power
plants including particulate matter (PM10), SO2, NOx, and carbon monoxide (CO) as well as
ozone, lead, and benzene. As part of the National Framework for Air Quality Management in
South Africa (National Framework), and in implementation of mandatory provisions of the
AQA, an extensive network of ambient air quality stations has been established, owned and
operated by a variety of organizations. SANS for ambient air quality monitoring have been
established. Since the AQA itself makes no provision for the enforcement of its own provisions,
DEA enforcement of these provisions, in the event of non-compliance, would rely on the EMI.
134. In the course of consultations on the draft version of this SDR, stakeholders from civil
society expressed concerns about DEA‘s compliance and enforcement capacity. Compliance
monitoring and enforcement are recognized by DEA as an area for overall improvement.
However, data from DEA indicates that significance instances of non-compliance are
concentrated in particular sectors and activity including artisan mining and quarrying, municipal
public services, property development, and agricultural operations, and usually at a small scale.
In contrast, the energy generation sectors, and Eskom in particular, have been largely compliant
and, accordingly, not subject to DEA‘s as yet limited enforcement capacity.
7. Site-Specific EIA Process
135. Before getting into details, there are several aspects of the EIA process followed for both
the Medupi and Kusile plants that are worth noting with respect to the requirements of South
African EIA Regulations and Objectives and Operational Principles per OP 4.00 Table A1. With
respect to South African EIA Regulations it should be noted that the applications for
authorization to begin the EIA process were initiated in 2006, prior to the effective date of the
2006 EIA Regulations, which was July 3, 2006. Accordingly, the EIAs for both projects were
conducted under the authority of the 1989 ECA and the September 1997 EIA Regulations.99
However, the EIA process and EIR content for both projects was strongly influenced by and is
96 National Environmental Compliance and Enforcement Report, (NCER) 2008/09, 2.1. In 2007 DEA began issuing
the National Compliance and Enforcement Report (NCER) which compiles data from all authorized national and
provincial environmental compliance and enforcement officials. The most recent NCER was issued on November
25, 2009 and covers the period from April 1, 2008 through March 31, 2009. 97 DEAT, Environmental Management Inspectorate, Standard Operating Procedure 2007-3, cited in Craigie, Snijman and Fourie, p. 69. 98 NCER, op. cit. 99 DEAT, Record of Decision for the Construction of the Eskom Generation Proposed 4,800 MW Coal-Fired Power
Station in the Lephalale Area, September 21, 2006; DEAT, Record of Decision for the Construction of the Eskom
Generation Proposed 5400 MW Coal-Fired Power Station, Witbank, June 5, 2007 (ROD, Kusile).
40
essentially consistent with the EIA Regulations that became effective in July 2006, as noted in
paragraph 22 above. This was particularly evident in the Kusile EIR, for which the EIA process
began and ended later.
136. In preparing this SDR, the team also reviewed the EIRs for the Sere Wind Power project
(Final EIR dated 2008), the CSP plant (Final EIR dated 2007), the proposed coal transport
railway between Ermelo and the Majuba power station (Final EIR dated 2004), and the various
transmission lines that will connect the Medupi plant to the national grid. The purpose was to
determine whether the findings of the analysis of equivalence and acceptability would
significantly change from what is presented below for the Medupi and Kusile projects. There
were no significant differences, but it was noteworthy that even for the 2004 EIR the public
participation (disclosure and consultation) process with interested and affected parties was
conducted in a highly proactive and robust manner, fully consistent with the requirements of
applicable legislation (Environmental Conservation Act of 1989 and NEMA 1998), as well as
with the applicable provisions of OP 4.00, and that the results of the consultation were fully
taken into account in the final EIR. Moreover, site visits to the Ermelo-Majuba rail spur right-of-
way by the Bank team as part of the SDR confirmed that consultations with directly affected and
adjacent landowners and occupants remained ongoing during the land acquisition process.
137. Additional noteworthy aspects of the EIA process with respect to OP 4.00 Table A1 are
as follows:
Consistent with the applicable regulations, the EIA processes began with a formal
application to commence, a Background Information Document (BID) and Comment
Registration Process, a Pre-feasibility Study Report, followed by a Scoping Phase and
EIR Phase, leading to a ROD and an EMP.100
The EIA process, including full public disclosure and consultation on all aspect of the
projects, was initiated and completed prior to the start of construction.101
However, of
the two thermal power plants, only the Kusile project fully complied with the
requirements of the 2006 EIA Regulations in that it included in the final EIR a
complete summary of the public consultation and disclosure process.102
For Medupi
the consultation and disclosure process is fully documented, but it is not summarized
in the final EIR; rather, it has appendices containing copies of public announcements,
minutes from various public meetings, and a consolidated matrix of issues raised and
responses provided by Eskom and the independent EIA practitioner.
Consistent with the requirements of the 1997 EIA Regulations, Eskom contracted out
the EIA process to independent consultants.103
100 Eskom, Environmental Impact Report, Proposed New Coal-fired Power Station, Lephalale Area,
www.eskom.co.za.live/content.php?Item_ID=2341. 101 SE Solutions, Kusile 3.7. 102 Eskom, 2007. Environmental Impact Assessment Process: Proposed Coal-Fired Power Station And Associated
Infrastructure in the Witbank Area, Final Environmental Impact Report, February 2007, Chapter 3. (EIR, Kusile) 103 The Medupi EIA was conducted by Bohlweki Environmental as lead consultant; the Kusile EIA was conducted
by Nisham Shand as lead consultant.
41
Based on the Scoping Reports (SR), both Eskom and DEAT recognized the need to
conduct a full EIA under the applicable regulations rather than the more limited
―Basic Assessment.‖
Whereas most EIAs are submitted to provincial governments for a decision, all
Eskom projects must be submitted to DEA due to the fact that Eskom is a para-statal
organization. Therefore, while provincial authorities were invited to comment on the
Draft Scoping Reports (DSRs) and Draft EIRs, they did not have decision-making
authority in the EIA process.
Eskom has established community-based Environmental Management Committees at
both Medupi and Kusile to provide oversight with respect to the environmental and
social impacts of its activities.
a) Medupi: EIA Process
138. Eskom‘s Board decision to proceed with the Medupi power station was made on
December 5, 2005. Eskom issued its DSR for public comment on October 3, 2005. Following the
public comment period, Eskom submitted its SR to DEAT in November 18, 2005, per the
requirements of the 1997 EIA Regulation R 1183 Section 5(2) issued under the authority of the
1989 ECA.104
On February 21, 2006, DEAT accepted the SR as satisfying the requirements of
the EIA Regulation and requested that Eskom submit a Plan of Study for the EIA.105
On March
23, 2006, Eskom issued its Draft EIR for public comment. Following the public comment period,
Eskom submitted its Final EIR on May 22, 2006, and an Addendum in June 2006. Comments on
the final EIR were submitted to DEAT by the Department of Water Affairs and Forestry on July
18, 2006. Eskom was issued an initial ROD by DEAT on September 21, 2006. Construction
began on May 9, 2007.106
139. The public consultation and disclosure process is well documented for the Medupi
project, but in a less organized manner than was done for the Kusile project, as noted above.
104 Although NEMA came into effect in 1999, it was not until 2006 that the EIA regulations under NEMA were
promulgated and the repeal of the relevant sections and regulations of the ECA took effect. During 1999-2006, the
ECA regime operated in parallel to the NEMA provisions in Chapter 5 for which general principles were applied in the absence of prescriptive regulations. In practice, the ECA was applied to ―identified activities,‖ including the
construction and operation of thermal power plants; whereas NEMA principles were applied to activities having
potential environment impacts which were not identified activities in terms of the ECA. M. Kidd and F. Retief,
―Environmental Assessment,‖ in Strydom and King, op.cit., p. 991. 105 In doing so, DEAT specified that the EIR must include:
A more detailed description of the process used to determine the selection of the project site, alternatives
studied and the assessment criteria as background to the project and explanation of the need and
justification for the project; addition of a third potential site to the alternatives assessment;
A visual presentation and footprint of the proposed plant;
Detail on the water study then underway from the Department of Water Affairs and Forestry with all
relevant information including a study of the existing groundwater pollution in the study area and possible future pollution and groundwater and recommendations for mitigation and improvement measures as
applicable;
Further exploration of the option of ashing back to the mine pit; and
All specialist studies recommended in the Scoping Report incorporated into the EIR. 106 Eskom, Annual Report, 2008, p. 10.
42
Interested and Affected Parties (I&APs) were informed about the Medupi project and consulted
at various stages of the EIA process. During the Scoping Phase, public participation was
comprehensive and included advertising in national, regional, and local newspapers; subsequent
notifications in regional and local newspapers; and the dissemination of a non-technical BID in
English and Afrikaans on two occasions to take into account the evolution of the project. Two
rounds of public fora organized and facilitated by the independent consultant were held at three
venues in the area between October 3 and November 11, 2005, and were supplemented by open
houses and one-on-one consultations.107
Following the issuance of the Draft EIR report in March
2006, both on the internet and in hard copy at public libraries and municipal offices, a second
round of public consultations took place.
140. The issues raised, and Eskom and government responses to public comments and
questions, are thoroughly documented in minutes from the public consultations and summarized
thematically in two ―Issues Trail‖ documents prepared by the independent consultant. The main
issues raised by stakeholders concerned increases in air and noise pollution and the consequent
potential impacts on public health. Stakeholders are also encouraged to comment, and do so, not
only on the substance of the EIR but also on the disclosure and consultation process itself.
141. The public consultation process is continuing at Medupi during project implementation
with Environmental Monitoring Committee (EMC) meetings (see below) being held to
communicate project progress and general environmental management performance to
stakeholders with EMC reports submitted directly to DEA.108
The EMP for the construction
phase (described in more detail below) includes mechanisms designed to ensure that Eskom
continues to inform the public and surrounding communities throughout the construction phase
as and when specific issues arise.109
Documentation of the consultation and disclosure process
was submitted to DEAT as part of the SR and final EIR. However, as noted above, the
documentation consists of disaggregated minutes of the numerous public meetings, copies of
public announcements, and an Issues Trail report.
b) Kusile: EIA Process
142. In April 2006 Eskom submitted for comment and approval its Plan of Study for the
Scoping Process, followed by the Final SR in October 2006. The final draft of the EIR was
submitted in February 2007 and was accompanied by Specialist Reports dated November 2006
and February 2007.110
The ROD for the Kusile EIA was issued in June 2007. Following an
appeal raised by two local landowners and a poultry farm, additional analysis was done and a
final ROD was issued on March 17, 2008. Construction began on April 1, 2008.111
107 SE Solutions, 2008. The Medupi Coal-fired Power Station Project, Independent Review of Compliance with the
Equator Principles, November 25, 2008, 3.7. (SE Solutions, Medupi). 108 SE Solutions, Medupi, 3.7. 109 Eskom, 2007. Environmental Management Plan for the Medupi Coal-Fired Power Station in the Lephalale Area,
Limpopo Province: The Construction Phase, April 2007, 2.6. (Medupi, EMP Construction Phase) 110 ROD, Kusile. 111 Eskom, Annual Report, 2008, p. 10.
43
143. The public disclosure and consultation process followed in the Kusile project was
documented in the final EIR112
and is summarized in four phases corresponding to the periods of:
Planning; Scoping; EIA; and the Appeal period following DEAT‘s issuance of the initial ROD.
The four phases are more clearly summarized in the final EIR than is the case for Medupi. Also,
because Medupi is located in a relatively remote area with low population density while Kusile is
located much closer to the highly populated industrial center of South Africa, there was far more
public interest and comment on the Kusile project during the various stages of the EIA process
than there was for the Medupi project.
144. The process of identification and engagement of I&APs began in April and May 2006
with the launch of the EIA process announced in national, regional, and local newspapers. In
addition, a BID, together with a response form and envelope were provided to 67 identified
stakeholders, comprising local landowners; local, provincial and national government
departments; environmental organizations; and mining companies. All of the above information
was made available in four languages: English, Afrikaans, Zulu, and Predi. The BID was also
placed on the Eskom website. Stakeholders were invited to a Stakeholder Meeting held at the
Protea Hotel in Witbank on May 8, 2006, where the project team presented the proposed project
and gave stakeholders the opportunity to raise comments, questions, and issues of concern.
Thirty-one stakeholders attended the meeting.
145. The Planning Phase was extended as a result of the consideration of two final alternatives
related to the site selection process. For this purpose the BID was revised and redistributed to
I&APs on July 14, 2006, including to additional landowners who might be affected by the site
selection process. All stakeholders were informed of the outcome of the site selection process on
August 7, 2006.
146. The DSR was released to the public at four public libraries and two municipal offices on
August 21, 2006, and on the Eskom and independent consultant websites. Media notices in all
four languages were placed in local newspapers on September 1, 2006, in order to notify the
public of the availability of the DSR and about the Open Houses/Public Meetings that would be
held to present the report. Registered I&APs were notified of the availability of the DSR and the
Open Houses/Public Meetings by means of a letter dated August 21, 2006. The DSR was
presented to the public at an Open House/Public Meeting held in Witbank on September 4, 2006,
where attendees were provided with an opportunity to ask questions and comment on the report.
Although the official comment period ended on September 15, 2006, submissions were accepted
through September 26, 2006, for those who requested more time.113
Once the SR was finalized, it
was submitted to DEAT and copies were lodged in public libraries, municipals offices, and on
the Eskom and independent consultant websites. All registered I&APs were notified by letter on
October 20, 2006, and minutes of the public meetings were posted to all attendees along with a
themed summary of all issues raised and Eskom/independent consultant responses in matrix
format (―Issues Trail‖). The Issues Trail report was posted to all who submitted written
comments.
112 EIR, Kusile, Chapter 3. 113 It was noted in the EIR that attaining landowner information and contact details was ―exceptionally difficult.‖
With assistance from a ―conveyancer‖ new landowners at one of the potential sites were identified, and letters of
notification and BIDs were sent to them on September 15, a delay which necessitated an extension of the public
comment period.
44
147. Key issues raised by the public during the scoping phase involved:
Water impacts (supply sources and impacts on local surface and groundwater
resources);
Air quality impacts from emissions and ash dumps;
Impacts with respect to greenhouse gases and climate change;
Socio-economic impacts on property values, economic viability of surrounding farms
and existing businesses;
Job opportunities for skilled, semi-skilled and unskilled labor;
Cumulative impacts of the power station and the coal mine; and
Consideration of alternative means of electricity generation and rationale for regional
site selection.
148. Registered I&APs were notified of the imminent release of the Draft EIR (DEIR) and
were provided a copy of the Executive Summary of the DEIR and the details of the public
meetings that would be held to present the report to the public via email November 8, 2006, and
by letter dated November 13, 2006. The DEIR was disclosed at the four public libraries and two
municipal offices on November 20, 2006, and on the Eskom and independent consultant
websites. Media notices in four languages were placed in the newspapers to notify the public of
the availability of the DEIR and of the public meetings.
149. The DEIR was presented to the public at an Open House/Public Meeting held at a
conference center near Kendal on November 28, 2006, and at an Open House/Public Meeting at
Phola and Witbank on November 29, 2006. Attendees were provided with an opportunity to ask
questions and comment on the report. Minutes of the meetings were posted to the attendees on
December 14, 2006 and an updated copy of the Issues Trail (compiled from responses received
between the finalization of the SR and the release of the DEIR), was posted to all those who
submitted written comments. On account of the holiday season, the written public comment
period was extended to January 8, 2007, and additional time was provided to any I&APs who
requested it through mid-February. Comments and responses from the extension period were
included in the fourth draft of the Issues Trail issued in February 2007.114
Various authorities
were invited to comment on the DEIR,115
and meetings were held to elicit comment with
particular stakeholders.
114 In addition, a focus group meeting was held on January 12, 2007, with two of the landowners adjacent to one of
the proposed alternative sites to discuss their detailed concerns which were raised at the November public meetings
and in their written submissions, the minutes of which were included in the final EIR. 115 Department of Public Enterprises; Department of Minerals and Energy; South African Heritage Resources
Agency (Mpumalanga and Gauteng provincial offices); DWAF; DEAT: Directorate of Air Quality Management and
Climate Change; Mpumalanga Department and Agriculture and Land Affairs: Mpumalanga Department of Roads
and Transport; Gauteng Transport Department; South African National Roads Agency Ltd; Spoormet; and the
Kungwini and Delmas local municipalities.
45
150. In addition to those issues raised during the Scoping Phase the following key issues were
raised by the public during the EIR phase:
Impact of heat emissions on ambient temperatures;
Emission reduction issues;
Impacts on farm laborers (in particular, loss of housing and jobs);
Visual impacts;
Safety and security during construction;
Need for additional inputs on heritage impacts;
Timing of land acquisition;
Lack of engagement with adjacent landowners on an individual level;
Lack of notification of visits by specialists and valuators;
Noise;
Access roads;
Influx of job seekers;
Construction impacts;
Impacts on municipal services and infrastructure; and
Confirmation of coal availability.
c) Overview of the EIA Process
151. The major outputs of the EIA process include the EIRs submitted by Eskom for Medupi,
Kusile, and associated transmission line facilities for Medupi (some of which will be financed by
the EISP), the RODs issued by DEAT approving the EIRs with conditions, and the draft EMPs
subsequently submitted by Eskom to DEAT covering separately the construction and operational
phases of the projects.116
116 Consistent with international good practice, detailed EMPs for the operational stage are prepared for regulatory
review during the construction phase. This is done in order to ensure that the operational stage EMPs reflect the project as built, and to take into account any new information or findings that may arise from environmental and
social monitoring during the construction stage. Operational stage EMPs are being prepared in draft form for review
and comment by DEAT. These will be made available to Bank staff for review during the SDR process; a draft EMP
for the Medupi project has already been prepared and has been reviewed by the Bank team in preparing this SDR, as
discussed later in this report.
46
152. Based on a detailed review of the EIRs by Bank EA specialists, the quality of the EIRs
and draft EMPs was found to be fully consistent with applicable South African legal
requirements as defined by the 1989 ECA as amended, and Regulation 1183 of September 1997.
Although the more recent 2006 EIA Regulations did not apply to the EIRs, the EIRs for both
Medupi and Kusile are generally consistent with the procedural requirements of the 2006 EIA
Regulations and incorporated most of the elements of best practice as defined by the South
African guidelines on integrated environmental management.117
153. An additional indication of the overall quality of the EIRs was provided by an
independent review commissioned by Eskom which examined both of the EIRs in relation to the
requirements of the Equator Principles.118
The Equator Principles are based on the IFC
Performance Standards, which is a Board-approved safeguards system that is closely aligned
with the environmental and social safeguard policies of the World Bank and therefore
corresponds closely to the Objectives and Operational Principles found in OP 4.00 Table A1.
The independent review found that ―Kusile will be materially compliant with the Equator
Principles,‖119
and that the Medupi project poses only one issue of ―potential non-compliance,‖
regarding SO2 emissions.120
This issue is discussed in detail later in the outcomes section of this
Acceptability Assessment.
154. The EIRs and associated studies are detailed technical documents that are too extensive
to be summarized in this report. The EIRs for both Medupi and Kusile as well as associated
facilities operated by Eskom are available for review on Eskom‘s website and should be
consulted along with this report. Some characteristics of the EIRs are worth noting here:
The EIRs were comprehensive in scope and considered all applicable laws and
regulations and addressed the project‘s sphere of influence (locally, regionally, and
globally) through different phases of the project lifecycle from construction through
operational to decommissioning and the scale of the assessment was appropriate to
the scale of risks and impacts.121
Alternatives assessment was conducted at a strategic level122
and at a site-specific EIA
level,123
with the EIR for Medupi focusing on the latter. The ―no action‖ alternative
117 http://deltaenviro.org.za/resources/envirofacts/management.html. 118 SE Solutions, Medupi; SE Solutions, Kusile. 119 SE Solutions, op.cit., p. 49. 120 SE Solutions, op.cit., p. 60. 121 SE Solutions, op. cit., 3.4.2. 122 ―Fundamentally different alternatives are usually assessed at a strategic level, and EIA practitioners recognise the
limitations of project-specific EIAs to address fundamentally different alternatives. Electricity Generating
alternatives have been addressed as part of the National Integrated Resource Plan (NIRP) from the National
Electricity Regulator (NER) and the Integrated Strategic Electricity Plan (ISEP) undertaken by Eskom, which is in
line with the NIRP. Environmental aspects are considered and integrated into the NIRP and ISEP using the strategic
environmental assessment approach, focusing on environmental life-cycle assessments, water-related issues and
climate change considerations.‖ Eskom Generation, Environmental Impact Assessment Report for the proposed establishment of a new Coal-fired Power station in the Lephalale area, Limpopo Province, Final report, Ref no:
12/12/20/695, 22 May 2006, Chapter 2.2. 123 The Environmental Scoping Study, thus, only considered alternatives in terms of the proposed new coal-fired
power station in the Lephalale area, and did not evaluate any other power generation options being considered by
Eskom.
47
was considered and rejected on the basis of an acute and chronic crisis in electricity
supply in South Africa with detrimental effects on economic growth and social
welfare.
Atmospheric dispersion modeling was conducted for both Medupi and Kusile using
the CALPUFF modeling suite recommended for regulatory use by the United States
Environmental Protection Agency for complex terrain environments and regional
scale modeling domains. DEAT engaged the US Environmental Protection Agency in
extensive consultations in developing and adapting the model for standardized use in
South Africa.
The EIRs for Medupi and Kusile were supplemented by specialist reports on
numerous topics including: groundwater resources, terrestrial fauna and flora,124
air
quality, regional water supply, visual impacts, noise quality, human health, socio-
economic impacts, heritage resources,125
traffic, tourism, agricultural potential and
livelihoods and covering both the construction and operational phases of the projects.
Neither EIR addressed OHS issues as OHS generally falls outside the scope of EIA in
South Africa as elsewhere. However, detailed OHS strategies are being developed
and implemented for the construction and operational phases in compliance with the
Occupational Health and Safety Act of 1993.126
Cumulative impacts were considered ―to the extent feasible‖ (as required by Section 2
of NEMA). With respect to Kusile, a rationale was given in the final EIR for
undertaking a separate EIA process for the power plant and coal mine rather than an
integrated assessment. The justification given was that the underlying legal
frameworks and hence competent authorities differ as the coal mine EIA is being
undertaken primarily to meet the requirements of the Department of Minerals and
Energy, while DEA is the competent authority for the Kusile power station. In
addition the lead time for the development of Kusile is longer than for the coal mine
further complicating the integration of the respective EIA processes. However, the
principle of cooperative governance requires that the two regulatory bodies consult
each other during their respective decision-making processes. To facilitate this the
independent consultant and the coal mine practitioner exchanged all documentation
on the power plant and the coal mine.127
8. DEAT Approvals and Associated Conditions
155. The RODs issued by DEAT for Medupi on September 21, 2006, and for Kusile on June
5, 2007, were both issued under the authority of Sections 22(3) and 33(1) of the ECA and
124 For Kusile, a detailed biodiversity assessment was conducted including terrestrial and aquatic investigations to
identify sensitive fauna, flora or habitats within the project footprint. SE Solutions, Kusile, 4.7. 125 For Kusile, a Phase 1 archeological survey was conducted per SAHRA requirements including a literature
survey, review of existing data bases, a field survey and documentation of sites, objects and structures. SE Solutions,
Kusile, 4.8. 126 SE Solutions. 127 EIR, Kusile, 4.5.1.
48
contained several key provisions in common and other provisions that apply individually to the
sites and circumstances of the two plants. However, the amendment process that provides for
subsequent changes to the ROD, as implemented in the case of Medupi, makes reference to the
2006 NEMA EIA Regulations (Regulation 43) rather than the 1997 EIA Regulations issued
under the ECA.
a) Conditions Applicable to both Medupi and Kusile
156. The following conditions are applicable to both Medupi and Kusile:
In both cases DEAT concluded that based on the information considered ―the
proposed activities may lead to substantial detrimental impact on the environment‖
but that ―the implementation of the mitigation measures and conditions set out in [the
ROD] are considered adequate to minimize detrimental impacts to acceptable
levels…subject to the successful implementation of conditions and mitigation
measures‖ such that ―the principles of section 2 of NEMA can largely be upheld.‖
Both RODs made general reference to the need for the projects to comply with all
provisions of the National Water Act of 1998; APPA of 1965, and any registration
certificate issued under the APPA; the NEMA AQA of 2004, or any related AEL
issued under the AQA; the NEMA Biodiversity Act of 2004; the Occupational Health
and Safety Act of 1993; and the Hazardous Substances Act of 1973 and associated
regulations as well as SANS 0228 and 0229.
Air Emissions and Ambient Impacts:
DEAT stipulated that the authorization is granted solely in terms of Section 22 of the
ECA and does not exempt Eskom from compliance with any other legislation.
Compliance with any related Registration Certificate to be issued in terms of the
APPA or any related AEL issued under the AQA.
Groundwater Protection:
Continuous monitoring of groundwater quality to be detailed in the EMP.
Conservation of Physical Cultural Resources:
Should any archeological artifacts be exposed during excavation (―chance finds‖),
construction in the vicinity of the find must be halted, and under no circumstances
may any artifacts be destroyed or removed from the site. An archeologist must be
called to the site for inspection, SAHRA must be contacted, and their
recommendations must be included in the construction EMP and followed.
Environmental Management and Monitoring:
Appointment of an independent Environmental Control Officer reporting to both
Eskom and DEAT, with responsibility for:
49
- Monitoring on a daily basis project compliance with the ROD, environmental
legislation, and specific mitigation requirements stipulated in the EMPs;
- Ensuring that periodic performance audits are undertaken;
- Submission to DEAT (and copied to the Mpumalanga Department of Agriculture
and Land Administration) of a written environmental compliance report on a bi-
monthly basis.
- Employment of the Environmental Control Officer until all rehabilitation
measures, as required for implementation due to construction damage, are
completed and the site is handed over to Eskom for operation.
Establishment of an EMC for the purpose of monitoring project compliance during
construction and with the following composition:
- The Environmental Control Officer, who reports to and is accountable to the
EMC, and chairs its meetings;
- An ecologist with direct project experience in the EIA process, or otherwise
suitably qualified;
- An air quality specialist; and
- A senior site manager from the main contractor.
At the completion of construction, the role, responsibilities and constitution of the
EMC is to be reconsidered and re-established with new terms of reference for the
operational phase of development.
Submission of a site specific construction EMP to relevant authorities prior to
commencement of construction. The contents of the EMP are specified in the ROD.
Once accepted by DEAT the construction EMP is to be seen as a ―dynamic
document.‖ Any changes to the EMP must be submitted to DEAT accompanied by a
recommendation from the EMC.
Other Conditions:
The authorization is subject to the approval of relevant local authorities in terms of
any legislation administered by those authorities.
Eskom is responsible for all costs necessary to comply with the conditions of the
ROD.
The ROD provided 30 days for any appeals and provided that any complaint from the
public during construction ―must be attended to as soon as possible and to the
satisfaction of all parties concerned.‖
b) Site-Specific ROD Conditions
157. The RODs issued for Medupi and Kusile contained a number of site-specific conditions.
The differences between the conditions issued for the two facilities may be partially accounted
for by different site conditions with respect to existing and projected ambient air quality and
50
ecological conditions affecting the siting of ash ponds. In particular the higher levels of
exceedance of ambient air quality thresholds for SO2 in the more industrialized Witbank area,
where Kusile is located, compared to the agricultural Lephalale area, where Medupi is located,
may account for the requirement that Eskom install FGD units at the commencement of
operations at Kusile, whereas at Medupi, Eskom is required to take action to ensure compliance
with SO2 and other air quality parameters. The implications of these imposed conditions are
discussed below with respect to the individual RODs for the two power plants and in the
following section on Projected Outcomes. An analysis of the recommendations of the EIRs for
the two projects, and the final requirements included in the ROD for each project, indicates that
the process of preparing and issuing the ROD is robust, i.e., DEAT is willing and able to take its
own views on project-related issues and state how they should be addressed by Eskom in
construction and operation of the projects.
158. Some differences are not readily clear, such as the absence of requirements in the Medupi
ROD for bag filters or electrostatic precipitators to reduce PM10; use of low NOx burners in
boiler design to reduce NOx levels; indication of which technology will be installed to reduce
emissions of mercury; reference to national noise regulations and Zero Effluent Discharge
provisions; recycling of polluted water; and the need for a Major Hazard Installation Risk
Assessment. However, it is apparent from the EIR and draft EMPs that Eskom submitted to
DEAT that these issues are being addressed at Medupi in much the same manner as the ROD
specifies for the Kusile project.
159. Medupi ROD Conditions.
Air emissions and ambient impacts:
The ROD noted that project emissions will potentially release significant amounts of
SO2, NOx, CO, and trace amounts of mercury, and that resulting ambient SO2 levels
resulting from the new power station are predicted to contribute to health effects in
the Marapong residential area.128
The ROD requires that Eskom ―install, commission and operate any required SO2
abatement measures that may be necessary to ensure compliance with any applicable
emission or air quality standards‖ issued under the AQA but did not specify any
particular SO2 abatement measure such as FGD.
However, DEAT required that, should the monitoring required as a condition of the
ROD (see below) indicate non-compliance with SO2 standards, Eskom would be
required to install, commission and operate [unspecified] SO2 abatement measures at
the nearby existing Eskom-operated Matimba Power Station as necessary to ensure
compliance with any applicable emission or ambient air quality standard issued under
the AQA.
128 The ROD noted that ambient SO2 standards are already being exceeded in the area, and specifically in the
Marapong residential area due to existing point and nonpoint sources of emissions in the vicinity, including the
existing Eskom-operated Matimba power station, the Grootegeluk coal mining operation, and, to a lesser extent,
brickworks, household fuel consumption, veld fires, wind blown dust from agricultural activities, and vehicle
exhaust.
51
Solid Waste Management:
With respect to the disposal and storage of ash at Medupi, DEAT concluded that
alternatives to the construction of a conventional ash dam, including backfilling into
the Grootegeluk mine pit, has not progressed sufficiently for an informed decision to
be made with respect to the optimum solution for ash disposal.
Natural Habitat Protection:
Any removal of native protected and endangered plant and animal species requires a
permit from the provincial department of nature conservation.
No exotic plant species may be used for rehabilitation purposes.
Measures aimed at controlling invasive plant species and weeds must be implemented
and form part of the EMP.
No disturbance of land at any stream or river edge is allowed except in conformity
with legislation and strict design parameters.
Environmental Management and Monitoring:
DEAT required that Eskom initiate a program for continuous monitoring of ambient
concentrations of SO2, NOx, CO,129
PM10, PM2.5, ozone, and mercury in the
Marapong residential areas and areas around the proposed power station as well as
the existing Matimba station, and that the monitoring protocol be subject to a
commissioning report by an independent party to confirm that the installations are in
place, calibrated, and operating to international standards. Eskom is required to
submit quarterly monitoring reports including both numerical and graphical
representation of measured concentrations as compared to any applicable ambient air
quality standards issued under the AQA.
160. Appeals. Several appeals were lodged against the ROD for Medupi under the terms of
Section 35 of the ECA. The appeals referred generally to the Constitutional rights of the
appellants and specifically with respect to the following issues:
Water supply and quality;
Air quality;
Project sustainability; and
129 Eskom subsequently successfully requested an amendment to the ROD to remove the requirement for ambient
CO monitoring based on the fact that CO concentrations in flue gas streams from Eskom‘s power stations are known
be extremely low and that the contribution of power stations to ambient CO concentrations is considered to be
negligible. DEAT, Request for An Amendment of Record of Decision for the Medupi Power Station near Lephalale
to Remove the Requirement for Carbon Monoxide Monitoring, January 26, 2009.
52
General effects on the environment.
161. In responding to the appeals,130
the Minister of Environmental Affairs and Tourism
reviewed the findings and requirements specified in the ROD; Eskom‘s responses to the appeals;
the appellants‘ reply to Eskom‘s comments; and comments received from the Department of
Water Affairs and Forestry (Chief Directorate of Integrated Water Resource Protection) and
DEAT‘s Chief Directorate of Air Quality Management. The Minister dismissed all of the appeals
and let the ROD stand on the grounds that:
The EIA complies with the requirements of the EIA Regulations in force at the time
when the ROD was issued, and the information submitted in support of the EIA
application was sufficient to support the ROD. The environmental impacts of the
proposed development were assessed in detail and appropriate mitigation was
proposed where possible.
The specific issues raised in the appeals were adequately addressed in the EIA
process. Negative environmental impacts associated with the project can be
sufficiently mitigated provided that the conditions contained in the ROD are
implemented and adhered to. Serious alternatives were considered during the process
leading to the appropriate decision.
The need and justification for the project is evident in the ―tremendous growth in
electricity demand.‖
Later in the next section, discussion is provided on a set of appeals on the ROD initially issued
for the Kusile project. The difference in approach taken by the Minister in that case is useful in
assessing the robustness of the appeals process.
162. Kusile ROD Conditions. In the initial ROD issued on June 5, 2007, DEAT concluded
that although the proposed project ―may lead to substantial detrimental impact on the
environment….the implementation of the mitigation measures and conditions set out in this
[ROD] are considered adequate to minimize detrimental impacts to acceptable levels…subject to
the successful implementation of conditions and mitigation measures‖ such that ―the principles
of section 2 of NEMA can largely be upheld.‖ Furthermore, DEAT stipulated that the
authorization is granted solely in terms of Section 22 of the ECA and does not exempt Eskom
from compliance with any other legislation.
163. The ROD imposed the following conditions on Eskom:
Air emissions and ambient impacts:
Installation and operation of wet-FGD with at least 90 percent removal efficiency as
well as any required SO2 abatement measures that may be required to ensure
130 Statement by the Office of Minister of Environmental Affairs and Tourism, May 4, 2007.
53
compliance with any applicable emission or ambient air quality standards issued
under the AQA;131
Installation and operation of bag filters or electrostatic precipitators to reduce PM10
emissions;
Use of low NOx burners in boiler design to reduce NOx levels; and
Indication of which technology will be installed to reduce emissions of mercury.
Noise abatement:
Use of Gauteng and National Noise Control Regulations and SANS 10103:2004
guidelines for addressing potential noise impacts.
Visual impact management:
The ROD specified design measures to ensure minimum visual intrusion into the
landscape.
Water management and effluent control:
Consideration during planning of all risk reduction recommendations made in the
Hydrogeological Assessment, GCS (Pty) of November 14, 2007;
Operation of the power station under Eskom‘s Zero Liquid Effluent Discharge policy
thereby preventing any water or effluent from being discharged into local river
systems;
Recycling of polluted water such that all pollutants are captured as waste for disposal
with ash deposition;
Testing of water generated on site and considered for irrigation to determine
suitability in terms of salinity and sodium absorption ratio; and
Leak detection and inspection on site and along pipelines.
131 The ROD notes that ambient SO2 standards are already being exceeded on occasion in the area, in large part due
to the proximity of the existing Eskom-operated Kendal Power Station as well as other local sources of emissions.
Therefore, potential exists for cumulative concentrations and increases in frequency and magnitude of SO2
exceedances and spatial non-compliance, as a result of which ―compliance with ambient SO2 limits cannot be achieved through implementation of SO2 abatement technologies [i.e., FGD] for the proposed power station [Kusile]
given that current non-compliance is due to existing sources. The implementation of [FGD at Kusile] can however
avoid any significant increase in non-compliance from the current situation.‖ In addition, Eskom was directed to
―initiate a program of support for initiatives aimed at improving air quality in the Witbank residential area‖ to be
included in the operational EMP.
54
Solid waste management:
Above-ground ash dumping as the preferred ash disposal method.
Major hazard assessment:
Quantitative Risk Assessment prior to construction consistent with the Major
Hazardous Installation Regulations of July 2001, with findings incorporated into the
Construction Phase EMP.
Natural habitat protection:
Undertaking of a site-specific wetland assessment and survey of rare and endangered
species during the appropriate season so as to enable the identification of less
sensitive areas for the positioning of pipeline, road, rail, and coal conveyor corridors
so as to avoid or minimize the impacts on wetlands;
Preparation of a revised layout plan indicating how the proposed corridors take
wetlands into account and where proposed dams to contain water will be constructed;
and
Any unavoidable construction within wetland areas must minimize disturbance that
would directly affect groundwater hydrology in wetlands systems.
Conservation of Physical Cultural Resources:
Recommendations proposed in the Heritage Impact Assessment conducted by the
Natural History Museum (October 2006) to be implemented for the nine historic sites
on the proposed property that were deemed culturally important; and
Consultation with SAHRA if any of the nine historic sites are to be impacted.
Community engagement and socio-economic impact management:
Establishment and maintenance of a community forum and communication channels
between local communities, construction companies/contractors and Eskom;
Assistance provided to local inhabitants in the form of skills development and job
opportunities with results included in environmental compliance report to be
undertaken by the Environmental Compliance Officer;
Action Plan submitted to DEAT as part of operational EMP, related to surplus land
not occupied by project-related infrastructure that could be leased to farmers for
agricultural production;
Eskom required to inform all interested and affected parties of the authorization and if
requested, to provide copies of the ROD; and
55
A complaints register to be up to date and disclosed to DEA on request.
Submission to DEA and other relevant provincial and local authorities of an EMP for
the operational phase prior to completion of construction and inception of operations.
As is the case with the construction EMP, once accepted by DEAT the operational
EMP is to be seen as a ―dynamic document;‖ however, any changes to the EMP must
be submitted to DEA accompanied by a recommendation from the EMC. Unlike the
construction phase of the EMP, the content of the operational phase EMP is not
specified in the ROD.
164. Appeals. An appeal to the initial ROD issued in June 2007 for Kusile was made by two
local landowners and a nearby poultry farm. In this instance, following a similar process as noted
above for the Medupi ROD appeal, the Minister found that additional consultations and analyses
were required because the issues raised in the appeal appeared to have merit. Following this
additional work, DEAT issued a revised ROD on March 17, 2008. The difference in responses to
appeals of the ROD in these two nationally important projects demonstrates the robustness of the
approval and appeals process, i.e., concerns or objections raised by citizens are carefully
considered and, if they are deemed to have merit, may produce modifications in regulatory
decisions or permit conditions.
c) Medupi Phase 1 Transmission Lines RODs
165. Some of the high voltage transmission lines for the Medupi power plant will be financed
in part by the EISP; others may not and are considered associated facilities. The Medupi
transmission line connections are described in detail in the section below on Projected Outcomes.
The associated Phase 1 transmission lines for Medupi involve one 400kV line from the power
plant to the Marang substation near Rustenberg, and two 200 kV lines to the Dinaledi substation
near Brits. The EIRs for these and other transmission lines being developed by Eskom have
already been completed, and have been and remain available on Eskom‘s website. DEAT issued
RODs for the three Phase 1 transmission lines on March 5 and March 27, 2008. The RODs were
appealed in April 2008. The grounds for the appeals were:
1) Alleged deficiencies in the public participation process;
2) Inadequate consideration of proposed technological solutions;
3) Insufficiency of the information provided for the route selection;
4) Need for more comprehensive implementation of the ―utility corridor concept;‖
5) Unacceptable impacts on avian biodiversity in general and on certain bird species;
6) Disaggregation of the EIA process with other transmission lines;
7) Independence of Eskom‘s EA Practitioner for the transmission line EIAs;
56
8) The need for increased power generation and hence pollution from the power
plant due to the power losses attributable to the greater length of the proposed
route relative to alternative routes;
9) Incremental rather than holistic decision-making on the establishment of
transmission infrastructure related to Medupi; and
10) Undue consideration given to avoiding undermined areas.
166. The Minister of Environmental Affairs, in a carefully worded and informed opinion
issued on December 8, 2008, concluded that, while the appeals raised some valid issues that need
to be taken into account by Eskom in the implementation of these transmission line projects, they
were not sufficient to warrant the setting aside of the ROD.132
In view of the different outcomes
noted above on the appeals of the RODs issued for the Medupi and Kusile projects, this third
type of outcome further demonstrates the robustness of the project approval and appeals process.
d) Post-ROD Permitting
167. It should be noted that the RODs issued by DEAT provide approval based on the
satisfactory conclusion of the EIA process and state conditions attached to project
implementation. As noted in the RODs, Eskom must still obtain individual permits, including an
AEL from the Chief Air Pollution Control Officer (DEA) as per the AQA, a Water Use
License,133
and a license for waste disposal, among others. At the time this SDR was prepared
most of these licenses that pertain to plant operations were still pending for the Medupi and
Kusile projects. Others specific to the construction process had been issued.
e) Compliance and Enforcement
168. Per the RODs, compliance with the DEA-approved EMP must form part of all tender
documentation for all contractors working on the project and must be contractually endorsed.134
169. Also under the RODs, Eskom is required to notify DEA in writing within 24 hours if any
condition in the ROD cannot be or is not adhered to, along with an explanation for any non-
compliance.
170. DEA reserves the right to monitor and audit the project throughout its full life cycle to
ensure compliance with the conditions stipulated in the ROD as well as mitigation measures
described in the EIR and the construction and operational EMPs. For this purpose the ROD
provides that DEA officials shall be given access to the sites at all reasonable times. Under the
authority of Section 22(4) of the ECA, DEA may withdraw its approval after 20 days of written
notice to Eskom for non-compliance of any condition imposed in the ROD. Failure to comply
132 Minister of Environmental Affairs and Tourism, ―Appeals decision against the Environmental Authorizations of the proposed construction of the….transmission lines and their associated infrastructure from the proposed Medupi
power station….‖ December 8, 2008 (www.search.gov.za/info/previewDocument.jsp?dk=%2Fstatic%2Finfo%2). 133 Eskom has obtained a water use license for site dewatering and stream diversion at Medupi, SE Solutions,
Medupi. 3.4.5. 134 ROD, Kusile.
57
with any conditions of the ROD is subject to the penalties of Section 29, 30 and 31 of the ECA
as well as other legal mechanisms.
9. Environmental Management Plans (EMPs)
171. Eskom is required to prepare and submit to DEA separate EMPs for the construction and
operational phases of both the Medupi and Kusile plants.
a) Medupi: Construction Phase
172. Eskom has submitted and DEAT has approved an EMP for the construction phase of the
Medupi project.135
The EMP is a comprehensive document with a level of detail and actions
commensurate with the project‘s potential impacts and risks at the construction stage. The EMP
has the following objectives:136
Outline functions and responsibilities of responsible persons;
State standards and guidelines that are required to be achieved in terms of
environmental legislation;
Outline mitigation measures and environmental specifications that are required to be
implemented for the construction phase of the project in order to minimize the extent
of environmental impacts, and to manage environmental impacts associated with the
Power Station; and
Prevent long-term or permanent environmental degradation.
173. The EMP establishes organizational structure and responsibility mechanisms for
managing the environmental, health, and safety impacts of the construction process; the
requirements for training of personnel in appropriate levels of awareness and competence; a
program on monitoring and performance measurement and for inspection, documentation and
reporting.
174. Among the documents used for tendering purposes and cited in the EMP is a Health
Safety and Environmental Specification for the Medupi Power Station.137
Environmental
Specifications are included for the full range of potential environmental impacts anticipated in
the EIR including: site clearing; plant repair, maintenance and cleaning; air quality; dust control;
noise; water management (consumption, domestic use); pollution control; storm and wastewater
management; erosion control; solid waste management; transportation, storage and handling of
hazardous substances; aesthetics; vegetation clearing and disposal of vegetative material
135 Eskom, Medupi, EMP Construction Phase. 136 Medupi, EMP Construction Phase 1.4. 137 Medupi EMP 1.1, p. 8.
58
(including relocation of designated plant species, management of alien vegetation; herbicide
use);138
protection of fauna, heritage sites, and artifacts; and traffic management.
b) Medupi: Operational Phase
175. A preliminary EMP for the operations phase has been prepared and submitted to DEAT
for review and comment.139
The objectives of the EMP are to:
Outline mitigation measures and environmental specifications that are required to be
implemented for the operation/maintenance phase of the power station in order to
minimize the extent of environmental impacts, and to manage environmental impacts
associated with the project;
Identify measures that could optimize beneficial impacts;
Ensure that the operation and maintenance activities associated with the power station
do not result in undue or reasonably avoidable adverse environmental impacts, and
ensure that any potential environmental benefits are enhanced;
Ensure that all environmental management conditions and requirements as stipulated
in the Environmental Authorization are implemented throughout the project life-
cycle;
Ensure that all relevant legislation (including national, provincial, and local) is
complied with during the operation and maintenance of the power station;
Identify entities that will be responsible for the implementation of the measures, and
outline functions and responsibilities;
Propose mechanisms for monitoring compliance, and preventing long-term or
permanent environmental degradation; and
Facilitate appropriate and proactive response to unforeseen events or changes in
project implementation that were not considered in the EIA process.
176. The draft Operational EMP addresses key environmental issues identified in the EIR in
terms of the applicable regulatory framework and ROD conditions, by making provision for
corresponding actions:
138 Herbicide use is required by the EMP to comply with the conditions of the Fertilizers, Farm Feed, Agricultural
Remedies and Stock Remedies Act of 1947 under which herbicides may be applied by construction contractors only with the explicit authority of Eskom, under the supervision of a registered pest control operator (Medupi EMP
Construction Phase, 4.12.5). There is no expectation that herbicides will be used by construction contractors, and it
is not Eskom‘s practice to use herbicides for vegetation management at its facilities. 139 Eskom, 2009. Medupi Power Station, Limpopo Province, Environmental Management Plan (EMP) for Operation
and Maintenance, February 2009. Savannah Environmental (Pty) Ltd.
59
Impacts on ambient air quality and human heath as a result of emissions: monitor
continuously ambient concentration of pollutants (SO2, NOx, PM10, PM2.5, ozone, and
mercury) in the surrounding Marapong residential area; install, commission, and
operate any required SO2 abatement measures that may be necessary to ensure
compliance with emission or ambient air quality standards issued under the AQA; and
investigation of additional measures to further reduce SO2 emissions, such as FGD
technology.
Impacts on surface and groundwater resources: drill, construct, and maintain
monitoring boreholes on site; monitor groundwater levels and hydrochemistry on a
quarterly basis; undertake groundwater modeling and potential plume migration to
assess risk reduction measures and potential impacts; and, in the event that water
quality is found to fall outside of prescribed guideline levels, investigate the source of
the problem and take remedial measures.
Visual impacts: minimize visibility of the power station and the contrast with
surrounding environment, through careful planning and placement of lighting,
lighting shields and limited removal of natural vegetation;
Noise impacts: ensure that all necessary acoustic designs are installed and maintained
such that the overall generated noise level from the installation does not exceed
70dBA at the property boundary;
Social impacts: maintain communication and consultation with community
arrangements through operational phase of project through maintenance of up-to-date
register of neighboring property owners; ensure that neighboring owners have
accurate contact numbers at the plant; and make an emergency plan of action with
neighboring community and relevant authorities in case of an emergency such as a
veld fire, oil spill or water contamination.
177. The draft Operational EMP sets forth institutional arrangements with the objective of
establishing clear reporting, communication, and responsibilities for environment and safety. The
critical positions include: a Generation Environmental Manager with overall responsibility for
plant environmental performance; a Power Station Manager with responsibility for assembling
an EMS management team and ensuring that adequate human, financial, and technical resources
are made available, conducting periodic reviews of EMS effectiveness and taking appropriate
action as a result of findings and recommendations of management review and audits; and a
Safety and Health Environmental Officer charged with implementation of the EMS. The EMP
also provides for the establishment of an Environmental Committee with quarterly meetings and
a Safety and Health Environmental Committee to meet every two months.
C. PROJECTED OUTCOMES: ENVIRONMENTAL IMPACTS
178. The projected site-specific environmental, health, and safety impacts anticipated to result
from the construction and operation of Medupi and Kusile can be summarized based on the
60
DEAT-approved EIRs for both plants,140
draft construction and operational stage EMPs,141
independent review of the EIRs,142
visits by Bank staff to both sites at a time when they were
well under construction,143
and interviews with Eskom management and staff and South African
regulatory officials.144
While on the project sites, Bank staff also had discussions with the
Environmental Control Officers responsible for monitoring project compliance with the ROD,
EMP, and other permit conditions, and reporting to both Eskom and DEA.145
179. In this section, quantitative outcomes (e.g., air emissions, ambient air quality, liquid
effluents) are compared to applicable South African legal and regulatory requirements. To put
South African requirements into perspective with international good practice, a comparison of
these requirements with corresponding World Bank Group (WBG) environmental guidelines is
provided in Annex 4. Under the emissions standards proposed by South Africa for large thermal
power plants, both Medupi and Kusile are to be considered as ―existing plants‖ during their first
eight years of operation because they made application for authorization under NEMA, as
amended (i.e., in this instance, in the form of an EIA application) on or before twelve months
prior to the publication of the Emissions Standards issued under the AQA.146
Under the Draft
Emissions standards, such plants have five years in which to comply with the emissions
standards for existing plants and an additional three years to comply with the standards for new
plants.
180. It is within this proposed regulatory context147
that projected emissions from the Medupi
and Kusile plants may be compared to South Africa‘s proposed emissions standards for large
thermal power installations. As is evident from Table 1, emissions from Medupi are expected to
comply with proposed South African emissions standards for existing plants148
for PM10 and
NOx. The projected range for SO2 emissions for Medupi, which will commence operations
without FGD, indicates that exceedances could occur, especially if the sulfur content of the coal
is at its maximum expected level. This regulatory risk can be managed by Eskom through the
140 Eskom Generation, Environmental Impact Assessment Report for the proposed establishment of a new Coal-fired
Power station in the Lephalale area, Limpopo Province. Final report, Ref no: 12/12/20/695, 22 May 2006;
Environmental Impact Assessment Process: Proposed Coal-Fired Power Station And Associated Infrastructure in
the Witbank Area, Final Environmental Impact Report, February 2007. 141 Medupi EMP, op. cit. 142 SE Solutions, Medupi; SE Solutions, Kusile, op.cit. 143 Bank staff made site visits to Medupi on May 27, 2009, and to Kusile on May 28, 2009, and to these and other
EISP key components during the period December 6-15, 2009. 144 Meetings were held with Eskom in Washington on April 28, 2009, and in South Africa during the period May
27—June 1, 2009. Meetings with DEAT were held on May 29, 2009, and with the Ministry of Water on June 1,
2009, as part of preparation of the SDR. 145 The Environmental Control Officer also chairs meetings of the EMC, which is made up of representatives of
various stakeholders as per ROD requirements. 146 As per General Notice 1001, Draft National Environmental Management: Air Quality Act: List of Activities
which result in atmospheric emissions which have or may have a significant detrimental effect on the environment,
including health, social conditions, economic conditions, ecological conditions or cultural heritage. Government
Gazette, Vol. 529, No. 32434, July 24, 2009: ―‗Existing Plant‘ shall mean any plant or process that was legally authorized to operate before the date on which the Notice was published or any plant where an application for
authorization in terms of the National Environmental Management Act, 1998 (Act No. 107 of 1998) (as amended)
was made or 12 months before the date on which the Notice was published.‖ 147 The Draft Emissions Standards are expected to be adopted in very nearly their current form on April 1, 2010. 148 Source for Medupi and Kusile emissions: SE Solutions, Medupi, Tables 4 and 6; and Kusile, Table 3.
61
common practice of blending coal with various sulfur levels. Kusile will be equipped with wet-
FGD with 90 percent SO2 removal efficiency at commencement of operations; therefore, it is
expected to comply with proposed South African emissions standards for new plants as well as
existing plants with respect to SO2, and will comply with proposed existing plant standards for
PM10 and NOx. The particular circumstances and environmental impacts associated with
emissions from each of these two plants is described further below, as well as other projected
environmental impacts of emissions and effluents from Medupi and Kusile.
Table 1. Projected Emissions from Medupi and Kusile Compared to Proposed South
African Emissions Standards for New and Existing Combustion Facilities
Pollutant South Africa Proposed
Emission Standard
for
New Plants
South Africa Proposed
Emission Standard
for
Existing Plants
Medupi* Kusile**
Particulates (PM10) 50 mg/Nm3 100 mg/Nm3 <50 mg/Nm3 <30 mg/Nm3
Sulfur Dioxide 500 mg/Nm3 3,500mg/Nm3 3,000-4,500
mg/Nm3
<400 mg/Nm3
Nitrogen Oxides 750 mg/Nm3*** 1,100 mg/Nm3** 550-650 mg/Nm3 510 mg/Nm3
*without FGD installed at commencement of operations as approved in the ROD of September 2006; once FGD
is installed, the expected emissions at Medupi would be similar to those expected at Kusile
** expected emissions with FGD installed at commencement of operations (Source SE Solutions, Table 3)
*** as NO2.
1. Medupi
181. With respect to particulates (measured as PM10), South Africa‘s proposed emissions
standards for existing plants will be met at Medupi through the use fabric filter technology with a
guaranteed emission limit of 50 mg/Nm3
and will, accordingly, comply at the commencement of
operations with the proposed South African emission standards for both existing and new plants.
Likewise, through the use of low-NOx burners Medupi emissions will comply at the
commencement of operations with proposed standards for both existing and new plants.
182. However, with respect to SO2 emissions, depending on the evolution of the sulfur content
of the coal feedstock, Medupi may encounter some difficulty in meeting proposed SO2 emissions
standards for existing plants within the five year timetable, and in the absence of a substantial
reduction on SO2 emissions, could not comply with the proposed Emissions Standards for new
plants within the required eight year timetable.
183. The main concern with respect to excessive SO2 emissions relates to the local health
effects of sulfur dioxide. The baseline SO2 concentrations in the area are affected primarily by
the existing Matimba Power Plant. Prevailing winds are from the northeast all year, and the
highest SO2 levels occur in the sparsely populated area to the southwest, which is occupied
mostly by large game farms.
184. The EIR measured baseline ambient air quality and health impacts in the airshed to be
affected by Medupi prior to construction and modeled projected future cumulative emissions in
the airshed with Medupi in full operation. Both the baseline and projected data were compared to
62
the interim South African National Ambient Air Quality Standards as proposed in the 2004
AQA. With respect to baseline emissions, where the existing Eskom-operated Matimba plant is
the major source of SO2 emissions, sampling data from various periods between 1991 and 2005
showed that the 2004 interim standards were exceeded relatively infrequently even at monitoring
stations directly downwind and within four kilometers of the existing Matimba plant. The daily
average of 125 μ/Nm3 was exceeded only three times and at only one station located three
kilometers immediately west of the Matimba plant. There was consistent compliance with the
annual average standard in all sampling programs. An intensive 10-month Eskom sampling
campaign in 2004-2005 at ten stations surrounding Matimba included one station eight
kilometers from the plant, at which an hourly standard was exceeded only once149
and the daily
average was not exceeded at all. The EIA concluded that little potential existed for health risks
due to existing SO2 levels in the high-exposure areas downwind of the plant. The most populated
locality that is affected is the town of Marapong (population 17,000) which is near Matimba but
to the northeast, hence normally upwind. Although existing ambient concentrations are lower
and standards are exceeded less frequently there because it is upwind, the health risk rises
because a population of 17,000 will include a significant number of individuals with respiratory
conditions. The report points out that the evaluation of current risk in Marapong is based on
short-term exceedance of health thresholds occurring on average only four times per year.
185. Operation of the six units of the Medupi plant without FGD was predicted to raise the
number of times the interim daily ambient standard would be exceeded in the maximum impact
area downwind to 33 times per year, and to more than double the size of that impacted area
downwind. The interim hourly standard could be exceeded up to 419 times in a year downwind
(i.e., less than 5 percent of the time). However, the additional area affected is likely to remain as
sparsely populated game farms, and health effects are therefore limited. At Marapong, the
dispersion model predicts exceedance of the hourly standard 35 times and of the daily standard 4
times per year. These numbers continue to be relatively low because the wind blows only
infrequently from the southwest. The maximum 1-hour and 24-hour concentrations at Marapong
are predicted to be 1,481 and 153 μ/Nm3, respectively. The annual average is predicted to be
42.7 μ/Nm3 in the high impact area downwind and 6.8 μ/Nm
3 at Marapong, both below the
annual ambient standard. Referring to California and WHO health effects thresholds,150
the
dispersion model predicted 35 occasions during a year of one or a few hours duration in which
persons at risk in Marapong could be affected by ambient SO2 concentrations. The model
predicted that the 24-hour health effects threshold would be exceeded in Marapong four times in
a year, and the annual average standard would never be exceeded.151
Eskom established a
continuous monitoring station in Marapong in January 2008, and quarterly monitoring reports
show that through December 2009, the 1-hour limit for SO2 in the then-proposed (and since
adopted) new DEA standards was exceeded five times. Two of the exceedances occurred when
149 GoSA‘s interim standards did not include an hourly concentration limit for SO2, so the EIR consultant used the EC/UK 1-hour limit of 350 µg/Nm3 in the analysis. 150 California has established a 1-hr maximum of 660 μ/Nm3 as the risk level for at-risk individuals; WHO uses 181
and 72 μ/Nm3 as the 24-hr and annual average exposure levels at which health effects could occur in the elderly and
people with respiratory problems such as asthma. 151. Government Gazette No. 32816, 24 December 2009.
63
the wind was from the northeast; the Matimba Power Plant could not have been the source of the
SO2 on those occasions.152
186. On December 24, 2009, the Minister of Water and Environmental Affairs issued final
National Ambient Air Quality standards, to take effect immediately. Unlike the interim
standards, the final ones are expressed as a combination of limit values and frequencies of
exceedance. For SO2 a 1-hour limit value of 350µg/Nm3 has been introduced; the other limit
values are unchanged. Consequently, the conclusions and predictions in the EIR concerning
exceedance of limits remain valid. The frequencies of exceedance represent the maximum
number of times a limit value can be exceeded at a given sampling location in a calendar year
without resulting in non-compliance with the standard: for SO2 it is 526 times for the 10-minute
standard, 88 times for 1-hours, four times for 24-hours, and zero for the annual average. If these
exceedance frequencies had been in effect at the time the EIR was written, its conclusions would
have been that the baseline data showed virtually no instances of non-compliance with any of the
standards, and the SO2 concentrations predicted by the dispersion model would not result in non-
compliance in Marapong. Similarly, the five exceedances measured in Marapong in 2008-2009
are well within the tolerance of the 1-hour standard, and the SO2 concentrations predicted by the
dispersion model would not result in non-compliance in Marapong. However, the predicted
numbers of exceedances of the hourly and daily limits in the maximum impact area downwind of
Medupi are larger than the permissible frequencies of exceedance in the final standards.
187. DEA is taking a holistic approach to the management of air quality in the airshed affected
by Medupi as well as the larger surrounding Waterberg area. Although the Waterberg area is
currently in general compliance with the ambient air quality standards of the AQA, DEA expects
that ongoing and planned expansion of the mining industry, industrial development, and
population in the Waterberg area could result in a significant near to medium term deterioration
in air quality if future developments occur as expected. As a consequence of these anticipated
future developments, DEA has decided to respond proactively and is accordingly preparing a
proposal to declare Waterberg as a National Priority Area under the Air Quality Act,153
and is in
the process of installing an air quality monitoring network and developing an EMF for the
Waterberg region.154
188. Given the concerns noted above for possible future deterioration of ambient air quality in
the Waterberg airshed with respect to SO2 due to cumulative impacts arising from future
development of industry, the ROD issued to Eskom for Medupi requires that Eskom take steps to
mitigate its emissions from both Medupi and potentially also Matimba should air quality fail to
meet ambient standards in the future.155
Given the likelihood of this occurrence, Eskom‘s Board
152 Eskom, 2008 and 2009. ―Marapong Air Quality Quarterly Reports.‖ Eight quarterly reports were reviewed. No
other ambient air quality limits were exceeded. 153 ―The Minister of Water and Environmental Affairs may declare an area as a priority area if there is a reasonable
belief that ambient air quality standards are being exceeded or may be exceeded in the area, or a situation exists
which is causing, or may cause, a significant negative impact on air quality and the area requires a specific air
quality management action to rectify the situation.‖ H. von Blotttnitz, et al, op.cit., p. 591. To date, three areas have been declared as National Priorities under the AQA. 154 The EMF is expected to be completed in mid 2011. 155 Eskom has already begun a research program in Marapong to identify and explore possible initiatives; one
example would be supporting conversion of other air pollutant sources such as home heating systems to technology
that would have lower SO2 emissions
64
of Directors has approved installation of FGD and accordingly, Eskom has developed and is
constructing Medupi to be ―FGD-ready‖ by providing sufficient physical space and
infrastructure to allow installation of FGD for all six units as necessary.156
However, Eskom is
reluctant to invest in wet-FGD equipment until sufficient water has been made available, given
the high capital cost of FGD, estimated at US$800 million, an amount which would add about
ten percent to the capital cost of Medupi and increase operating costs by an estimated five
percent.157
189. Moreover, the wet-FGD technology (limestone-gypsum forced oxidization) selected by
Eskom would require Medupi to have access to approximately twice the volume of water that is
required for full operations without FGD. Medupi currently has access to sufficient water to meet
approximately one half of its operational water requirements without FGD, with the other half to
be provided through a temporary reallocation of reservoir water from the Mokolo Reservoir. In
order to operate at full design capacity as scheduled in 2014, Medupi will need to access water
from the Mokolo and Crocodile Water Augmentation Project (MCWAP) that is currently
undergoing the EIA process for Phases 1 and 2 of this four-phase project. This source would also
provide Medupi with sufficient water to operate wet-FGD, and thereby allow Medupi to comply
with proposed South African Emissions Standards for new power plants and international good
practice with respect to its emission of SO2, while at the same time, doing its part to help
maintain acceptable air quality in the (prospective National Priority) Waterberg area.
190. Assuming the availability of sufficient water, Eskom proposes to install FGD in a
sequential manner, as necessary and feasible as each operating unit is shut down for routine
maintenance, normally six years following the commencement of operations. Given the current
construction schedule and commissioning of the first of six units in 2012, the timetable for FGD
installation is expected to begin in 2018 and require about two years to complete as each unit is
sequentially brought offline for maintenance at which time Medupi would be fully equipped with
FGD and come into full compliance with the proposed South African emissions regulations for
new plants. The Bank is continuing to engage Eskom on a technically feasible and operationally
responsible timetable for installation of FGD at Medupi. In this connection the Bank has
proposed that, no later than 2013, Eskom provide the Bank with a plan for FGD installation and
include consideration of alternative, less water intensive dry-FGD, in the event that sufficient
water is not available or allocated to support wet-FGD technology 158
156 Accordingly, the stacks will be lined with FGD compatible materials. Medupi, EMP Construction Phase, 1.1. 157 The ten percent capital cost estimate is consistent with the guidance provided in the WBG EHS Thermal Power
Guideline, which estimates a range of 11-14 percent plant capital cost increase (WBG EHS Thermal Power
Guideline, Table 1). However, Bank staff will continue to review Eskom‘s estimates of the capital cost of wet-FGD
as the cost of this technology may have been substantially reduced since Eskom‘s decision study of FGD
alternatives was completed in 2004. These potential cost reductions are due to changes in material costs, rapid
market development in Eastern Europe (related to EU accession requirements), China‘s requirement for FGD at all
new and existing power plants, and the subsequent rapid emergence of Chinese FGD suppliers. 158 The team discussed with Eskom technical staff the potential for reducing the timeline for installation of FGD by considering other FGD and SO2 reduction technologies, including semi-dry-FGD and activated carbon technology
(ReACT), both of which would require considerably less water than wet-FGD. Based on the studies it commissioned
from two independent consultants that were completed in 2004, Eskom excluded semi-dry-FGD due to the high cost
and risk of lime supply. Although Eskom currently acknowledges the technical advantages of ReACT, it decided as
part of project planning to rely on wet-FGD as the more commercially proven and available technology at the time
65
191. In other respects, Medupi is designed to meet international good practice by using zero
wastewater discharge through recycling and reuse of process water accompanied by surface and
groundwater quality monitoring, and solid waste management using lined ash dumps and
leachate monitoring. The potential impact of the project on surface and groundwater were further
evaluated by the Department of Water Affairs and Forestry in connection with Eskom‘s
application for an Integrated Water Use License (IWULA). The IWULA requires that the ash
dump be lined.
2. Kusile
192. The ROD for Kusile requires that Eskom install, commission and operate: any SO2
abatement measures that may be necessary to ensure compliance with any applicable emission or
ambient air quality standards issued under the AQA; bag filters or electrostatic precipitators for
particulate emissions control; as well as a boiler design that includes low NOx burners. Like
Medupi, Kusile will use fabric filter technology with a guaranteed emission limit of 50 mg/Nm3.
193. Unlike the case with Medupi, the Witbank airshed in which Kusile is located is already
classified as degraded according to South African and WHO standards, in part due to its
proximity to the existing Eskom-operated Kendal Power Station. The airshed is classified as
degraded based largely on existing measured levels of particulates, with exceedances of SO2
occurring with less frequency than would be characteristic of a degraded airshed. However,
because the Witbank airshed has a strong potential to become degraded with respect to SO2 and
because water availability is not a limitation, the ROD requires that Eskom deploy FGD for SO2
emissions control at the commencement of operations.
194. By virtue of the installation of wet-FGD units at construction, the Kusile project is
expected to fully comply with the proposed South African air emission regulations for existing
plants, and the use of FGD will further reduce PM10 emissions to <30 mg/Nm3. It will also
comply with the proposed SO2 emission standard for new plants, but only for plants emitting to a
non-degraded airshed. As a result Kusile‘s overall low percentage contribution of SO2 to the
airshed, the cost-benefit ratio of any further reduction in SO2 emissions at Kusile is unjustifiable.
195. With respect to NOx, the EIR concludes that the project will not result in exceedance of
South African ambient standards for NOx. With respect to proposed emission levels, however,
the boiler specification, as in the case of Medupi, sets the maximum NOx level above what would
be allowed if Kusile were classified as a new plant instead of an existing plant. The Kusile plant,
like the Medupi plant, is defined by the proposed new emissions regulations as an existing plant,
the decision needed to be made. Eskom remains committed to this option should FGD installation become necessary
and has made irreversible plant design decisions and material commitments based on the future use of wet-FGD.
Eskom‘s decision process to use wet-FGD is consistent with the WBG EHS Guideline for Thermal Power which states that ―the choice of technology depends on a benefit–cost analysis of the environmental performance of
different fuels, the cost of controls, and the existence of a market for sulfur control by-products. The optimal type of
FGD system depends on the capacity of the plant, fuel properties, site conditions and the cost and availability of
reagent as well as by-product disposal and utilization.‖ World Bank. EHS Guideline for Thermal Power Plants, pp.
3-4.
66
and the design specifications for the boiler easily meet proposed emission levels for existing
plants.159
196. Like Medupi, the Kusile project is designed to meet international good practice by using
zero wastewater discharge through recycling and reuse of process water accompanied by surface
and groundwater quality monitoring, and solid waste management using lined ash dumps and
leachate monitoring. Although Kusile is being designed to be a Zero Liquid Effluent Discharge
site; it is important to note that for the entire site Zero Liquid Effluent Discharge would be
realized only after all six generating units have been commissioned. In the meantime,
construction wastewater requires necessary controls to ensure that natural contaminants such as
silt, spilled petroleum products, and other contaminants are collected and treated, and not
allowed to enter into the natural watercourses and wetlands that will remain on the site. The
Kusile plant layout also includes space for future installation of carbon capture technology.
197. The decision to install FGD at Kusile will result in an additional use of 9.6 million m3 of
water per year over and above the 4.4 million m3
required for the power station and associated
infrastructure if FGD were not to be installed. Total demand will be met through a recently
completed augmentation scheme that moves water from the Vaal River Catchment to the eastern
Highveld. The current supply to the nearby Kendal power plant will be increased through a
larger pipeline to supply Kusile as well. As a result, there will be no abstraction of surface or
groundwater resources to supply the power station.160
198. The key solid wastes from Kusile will be ash and gypsum (the latter from the FGD units).
Eskom is still in the process of finalizing the waste disposal strategy for Kusile on the basis of
the following principles:
Sale of gypsum if a local market can be found;
Co-disposal of ash and gypsum in the absence of a market for gypsum;
No contamination of groundwater; and
Lining of ash disposal sites to be engineered in accordance with DWA requirements
and permits.
As in the case of Medupi, ash and gypsum disposal will be carried out with the minimum amount
of water necessary to avoid generation of dust during transport on conveyor belts and deposition
before capping with topsoil. The facility essentially will operate as a sanitary landfill for solid
wastes, and not as a wet ash lagoon.
199. As required by the ROD for Kusile, the onsite Environmental Compliance Officer(s),
seconded from independent NGOs, have concurrent reporting responsibilities to Eskom, the
159 The Kusile boiler specifications are designed to guarantee an emissions level of 650 mg/Nm3, while actual
emissions are expected to be 510 mg/Nm3. The South African proposed emissions standard for NOx at new plants is
proposed as 500 mg/Nm3, and for existing plants it is proposed to be 800 mg/Nm3. 160 SE Solutions, Kusile 5.2.
67
Environmental Management Committee, and DEA with respect to compliance with all
environmental permitting and EMP requirements.
D. PROJECTED OUTCOMES: SOCIAL IMPACTS
1. Medupi
200. The social impacts tentatively identified during the scoping study and earmarked for
further investigation included a significant increase in the demand for housing and pressure on
municipal infrastructure in the surrounding area, which would be particularly acute during the
construction period. This increase would have a substantial impact on the local municipality. The
EIR concluded that these effects could be managed by the local municipality, but events arising
after construction began proved that this was not the case. In particular, the municipality could
not come up with the resources to manage the increased flows to the municipal wastewater
system, and the municipal solid waste disposal facilities proved to be inadequate. Although these
problems have not yet been fully resolved, Eskom has recognized its role in contributing to the
unexpected problems, and is working with the municipality to address them in a responsible
manner.
201. Land acquisition and resettlement impacts have been negligible at Medupi, where two
large game farms were acquired by Eskom for the Medupi project. The game farm
Naauwontkomen (the selected site for the proposed power station) was owned by Kumba
Resources (Exxaro) and was purchased by Eskom. No relocations were required as there were no
people living on the farm at the time of purchase. The neighboring game farm Eenzaamheid (the
selected site for the ash dump) was owned by the farmer, and there was one full-time worker
residing on the farm when purchased by Eskom. It was agreed that the farm worker will continue
in the landowner‘s employ and be relocated at the farmer‘s expense to one of his other
properties. The game farm Kromdraai, directly to the south of Eenzaamheid, was purchased by
Eskom. No laborers or any other occupiers resided on the farm at the time of purchase and
therefore no relocations were required with respect to the property. The Bank‘s IR Policy would
not be applicable to the Medupi project component.
202. The extent of resettlement necessary for transmission lines to connect the Medupi project
to the grid is not yet known because the exact alignment of most of the lines, especially those to
be built as part of Phase 2 connections, has not been finalized with the various property owners
from whom the right-of-way will be acquired. In deciding on final alignment, Eskom tries to
avoid resettlement altogether, and the number of houses that will need to be relocated, most
likely elsewhere on the landowner‘s property, is likely to be small. Eskom compensates
landowners for the right-of-way on the basis of either market value or 100 percent of the
financial loss. Eskom either pays for or replaces trees or structures such as windmills and water
tanks that need to be relocated for safety reasons.
2. Kusile
203. No expropriation is required in the case of Kusile, nor are there any outstanding
restitution claims on land to be acquired for the project. However, despite the investigation of
alternative locations for the power station which sought to minimize social impacts, some 18
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family units required resettlement, consisting of families of farm laborers on the farms that were
sold to Eskom on a willing buyer-willing seller basis.161
South African legislation is very
detailed in what is required with respect to both physical displacement and livelihood restoration
(―rehabilitation‖). To implement the resettlement, Eskom engaged the service of contractors
specializing in ―agricultural socio-economic and development consultation services and
implementation.‖ Eskom provided the families with several resettlement options on neighboring
farms, some owned by Eskom, and for those families who preferred alternatives, on other land
leased from other farmers for the purpose of resettlement. The families who opted to resettle on
the Eskom-owned farms were provided with permanent homes with individual fencing, running
water and sanitation, vegetable gardens, and a playground for children. Eskom assisted the
project-affected people in establishing a Communal Property Association that would acquire
ownership of the properties in the names of the family units. For those families who elected to be
resettled on other properties, Eskom arranged to have existing structures rehabilitated or
constructed new structures where existing structures were not of sufficient quality. Eskom
monitors implementation of the program through quarterly reports prepared by specialists on the
progress of the resettlement and rehabilitation of these households.
3. Sere Wind Power Project, CSP Plant Sites, and Majuba Rail Spur Sites
204. Both the Sere Wind Power Project and the CSP Plant sites are located in sparsely
occupied semi-arid or arid landscapes that are predominantly used for grazing sheep or cattle.
Eskom has nearly completed the acquisition of 16 km2 of land needed for the Sere Wind Power
Project. The land is being purchased from three farm owners on a willing buyer-willing seller
basis. No resettlement will result from the development of the wind farm or acquisition of the
right-of-way for its 132 kV transmission line. Eskom is negotiating the purchase of land from a
single landowner for the CSP plant site near Upington. The CSP plant will occupy 4 km2 of the
acquired farm, and the right-of-way for the 132 kV transmission line to connect to the grid is
located on the same farm property. There will be no resettlement, and farming activities (cattle
grazing) could continue on the remainder of the farm.
205. The route of the 67-km Ermelo-Majuba rail spur crosses the lands of 43 separate farm
owners, consisting primarily of cattle grazing lands and croplands (mostly corn). Eskom has
acquired the land for the entire right-of-way through a combination of servitude rights and
outright purchases. Twenty-one households with 152 residents are being resettled, mostly for
safety and noise reasons (although the rail line is electrically-powered) that cannot be otherwise
mitigated. On-farm relocation has been agreed in the case of 16 of the households, other lands
have been purchased for the other five families.
E. ASSOCIATED FACILITIES
1. Associated Facilities: Medupi
206. The Medupi project is located in the Northern Grid of South Africa‘s power network. The
Medupi project will supply additional power to the Waterberg, Polokwane, and Rustenburg
customer load networks (CLNs) in the Northern Grid, and to the Carletonville CLN in the North-
161 SE Solutions, Kusile 4.6.
69
West Grid. Associated facilities for the Medupi project include several high tension transmission
lines and two new substations in the power grid that will be installed in two phases. Some of
these lines will be financed in part by EISP; the rest are considered associated facilities. Phase 1
connections to the grid include:
Two 192-km 400-kV transmission lines to the existing Spitskop substation (north of
Rustenburg, serving the Waterberg CLN); and
A 281-km 400-kV transmission line to the existing Marang substation (near
Rustenburg, serving the Rustenburg CLN).
207. These Phase 1 transmission line EIRs have already been approved and disclosed by
Eskom both locally and on Eskom‘s website. Right-of-way acquisition is already about 70
percent complete, and construction will start in September 2009. Phase 2 includes eight new high
voltage transmission lines and two new substations, as follows:
Four 400-kV lines from Medupi to the proposed new ―Delta‖ substation, located
about 50 km west of Medupi, near Steenbokpan;
A 400 kV line (with capacity to expand to 765 kV) from the new Delta substation to
the proposed Epsilon substation, located about 450 km southwest of the new Delta
substation (120 km west-southwest of Johannesburg), thereby linking to the North-
West Grid in the Carletonville CLN;
A 400 kV line from the Delta substation to the existing Witkop substation, located
southwest of Polokwane [Pietersburg];
a 400 kV line from the Delta substation to a new substation near Mokopane (west-
southwest of Polokwane) that is being built separately as part of a grid strengthening
project; and
A 400 kV line from the Delta substation to a new substation near Mogwase (north of
Rustenburg) that is being built separately as part of a grid strengthening project.
208. The Phase 2 transmission lines have already had EIRs disclosed locally and on Eskom‘s
website, and are in the process of permitting review by DEA. All Phase 1 and most of the Phase
2 transmission lines listed above are either financed in part by EISP or considered associated
facilities for the Medupi power station because they are necessary to evacuate Medupi‘s power to
the national grid, and these facilities would not be built without the Medupi project, i.e., there is
mutual dependence. The new substations near Mokopane and Mogwase are not associated
facilities of the Medupi project because they would be built anyway as part of a grid reliability
strengthening project. The EIRs for the above facilities either have already been reviewed by the
Bank team as part of project preparation, or will be reviewed as they become available during
project implementation.
209. No new coal mines will be developed to supply fuel to Medupi. The plant site is adjacent
to the Grootegeluk Colliery, an open-pit, back-cast mine operated since early 1981 by Exxaro
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and located on the southern end of the vast Waterberg coal bed. Grootegeluk currently produces
18.6 million metric tons of coal per year (M mt/yr), of which 15.3 M mt/yr of thermal coal is
supplied to the Matimba Power Plant. Grootegeluk will expand production in phases to meet the
needs of Medupi – an additional 14.6 M mt/yr of thermal coal when in full operation – under a
long-term contract. As a result, coal will be mined at an accelerated rate, but Grootegeluk‘s
reserves, calculated as 5,600 million tons within the authorized area of mining operations, will be
sufficient for the lifetimes of Matimba and Medupi. In order to support the increased coal sales
to Eskom to supply Medupi, Exxaro will add two new coal processing (beneficiation) units to the
six already operating at the mine. Because neither any mining nor the construction of the new
processing units and associated coal stockyard will occur outside the permitted boundaries of the
mine operations, GoSA regulations do not require a full EIA and an environmental authorization
from DEA. Instead, the company‘s obligation under national environmental legislation is to
obtain approval of an amendment to its Environmental Management Program for Grootegeluk
from the Limpopo Department of Minerals and Energy (LDME). For this purpose, in 2006 the
mine owner prepared an environmental document entitled ―Amendment to the Grootegeluk Mine
Environmental Management Programme Report (EMPR): Matimba Brownfields Expansion
Project.‖ Scoping for this report was conducted with stakeholder participation in March 2006,
and the draft report was publicly disclosed for stakeholder consultations in July 2006. LDME
issued its approval for the amendment to the EMPR in 2007. The Bank has reviewed the report.
A site visit to the mining operation by the Bank team indicates a well-run operation with due
regard for responsible environmental management and worker safety in accordance with South
African mining regulations.
210. As noted earlier, in preparing the National Water Resource Strategy in 2004, the DWA
identified the Crocodile (West) River Basin as of paramount importance in developing a more
specific water management strategy. This was because the GoSA anticipated that the mostly
unexploited vast coal reserves of the Waterberg area would be further developed, inducing
industrial development, additional power development, increased population, and expansion of
the agricultural sector (including ecotourism and hunting on game farms) in the Steenbokpan-
Lephalale corridor. The first step in developing a Catchment Management Strategy was the
preparation in 2004 of an Internal Strategic Perspective for the Limpopo Water Management
Area and an Internal Strategic Perspective for the Crocodile River (West) and Marico Water
Management Area. Both of these strategies were based on a 25-year planning horizon, and the
core proposal to meeting the need was the MCWAP, described below, and consisting of four
phases of development. A second step in developing a Catchment Management Strategy was
preparation by DWA of the Water Resource Reconciliation Strategy in 2008 for the Crocodile
(West) River Basin. The first phase of the MCWAP proposes installation of additional pipeline
capacity within the existing pipeline right-of-way transporting additional water from Mokolo
Reservoir to the Lephalale area. The second phase of MCWAP has been designed to capture
large volumes of artificially augmented flows in the Crocodile River, supply agriculture and
facilitate significant industrial development to the Steenbokpan-Lephalale corridor. The artificial
flows occur as a result of water initially diverted from the Vaal River basin, sent as water supply
to the Johannesburg metropolitan area, and then discharged from overloaded wastewater
treatment plants in Johannesburg‘s northern sectors to the upper Crocodile River basin.
211. Water supply for the Medupi project will initially come from the existing Mokolo
Reservoir, located about 40 km south on the Mokolo River. This initial water supply is a quantity
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of water allocated to the Matimba power station, but not needed. The formal process has been
followed for the change in Matimba‘s water allocation and for reallocation of that quantity of
unused water to be delivered to the Medupi project by way of a short extension of pipeline from
the Matimba power station onto the Medupi project site. Medupi will also require additional
makeup water from Phases 1 and 2 of the four-phase MCWAP that is being undertaken by the
Department of Water Affairs. Phase 1 is provision of water from the existing Mokolo Reservoir
within the footprint of an existing water supply and delivery system within a right-of-way
established for that purpose. Although its impact is predominantly related to construction
activities for additional pipeline capacity within the existing right-of-way, Phase 1 is subject
nevertheless to the EIA process in South Africa, and a Scoping Report for this phase has already
been prepared as noted below. Phase 1 of the MCWAP will not fully supply Medupi‘s total
water requirements, but by the time Phases 1 and 2 of the MCWAP are completed, the Medupi
project will receive about 10 percent of the total additional water delivery by the MCWAP to the
Steenbokpan-Lephalale corridor. As Phases 3 and 4 of the MCWAP are implemented, the
consumption of the Medupi power plant becomes an increasingly smaller percentage of the water
supplied by the MCWAP to the Waterberg area. The MCWAP has been identified as a priority
project by DWA and will be developed to supply water to the Steenbokpan—Lephalale corridor
even if the Medupi project were not built; therefore, the MCWAP is not an associated facility.
Development of the MCWAP by the Department of Water Affairs is subject to the South African
EIA process. Scoping reports have already been prepared on Phases 1 and 2, and were made
available for public comment in November 2009 and on the Department of Water Affairs
website (www.dwa.gov.za). The Phase 2 Draft Scoping Report for public review was revised as
a result of public comment and resubmitted in January 2010 for public review and comment.
Phase 2 is expected to be completed and operational by mid-2015, allowing sufficient water for
the Medupi project to install and operate wet-FGD systems as each boiler unit is sequentially
shut down for routine maintenance and overhaul.
F. OTHER SAFEGUARDS-RELATED FINDINGS
212. Issues and impacts regarding natural habitats and physical cultural resources, among
others, are required under Bank OP 4.01 to be addressed as part of the EIA process. This is
standard practice in most EIA systems, and is international good practice. In terms of
equivalency and acceptability, these safeguards issues have already been subject to analytical
work as part of the review for this SDR of the South African EIA system, and Eskom‘s
commitment and capacity to conduct comprehensive EIA work.
213. Natural Habitat. The Medupi project is located in relatively flat terrain in the Bushveld,
a landscape dominated by thick growth of woody shrubs and low trees. The project area is
occupied by large game farms and scattered hunting lodges. The Medupi project is located on
land occupied by two game farms that were purchased by Eskom for the project‘s development,
and does not produce a significant adverse loss of sensitive or critical natural habitat.
Mammalian wildlife populations and vegetation were managed by the game farms. Construction
and operation of the Medupi project, including the ash disposal facility, results in the loss of
about 1500 hectares of degraded natural habitat. The ROD requires that the project engage in
rescue and salvage operations for sensitive flora and fauna. Discussions with the Environmental
Control Officer at the Medupi site included a review of progress to date, and shows compliance
with ROD requirements.
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214. Because the Medupi project is sited in an area of degraded natural habitat of marginal
value, a review of the Kusile project by the Bank team during SDR preparation was useful to
further assess Eskom‘s approach to conservation and management of good quality natural
habitat, as would be required under the Bank‘s NH Policy. The Kusile project is being built in
the Highveld, a landscape dominated by grasslands and agriculture (grain production and cattle
raising) in gently rolling terrain. The project will result in the loss of approximately 2500
hectares of agricultural land that gently slopes and drains to the west. The two farms purchased
by Eskom for the project‘s development include two spring-fed drainage systems that begin on
higher ground to the east of the plant site, and shallow groundwater with associated wetland
systems in the swales through which the spring-fed streams flow to the west. In addition to
narrow bands of wetlands, these swales include a few small impoundments behind low earthen
dams that were built for agricultural purposes. The wetlands on the project lands range from
localized areas of high integrity wetland habitat in these swales to much longer stretches of low
integrity wetland habitat. The layout of project facilities was rearranged by Eskom during the
EIA process to avoid loss of, and adverse impacts on, high integrity wetland habitat, and to
minimize loss of low integrity wetland habitat. The spring, stream, and associated wetland on the
north side of the power plant facilities (northern tributary) are expected to remain intact. The
upper reach of the spring-fed stream and associated low integrity wetlands that are on the south
side of the project site (southern tributary) will be filled and converted to the coal storage yard.
Water from the southern tributary springs, located a short distance upslope (east) of the project
site, will be collected and transported around the project facilities in a diversion channel, and a
French drain is being installed to intercept groundwater coming from the low ridgeline to the
south (the location of the 10-yr lined ash disposal facility) and discharge it down slope (west) of
the project site. By minimizing natural habitat loss and avoiding loss of good quality natural
habitat on the project site, the Kusile project would be consistent with the NH policy if it were to
be a Bank-financed investment.
215. Apart from the wetland habitat in the drainage swales, there is little of conservation value
on the project site with respect to flora and fauna because the land previously was in the
production of primarily corn (maize), or used for high density livestock grazing. DEAT required
as part of both the scoping process and the ROD that special measures be taken by Eskom to
survey and inventory the wetland habitat value, and take measures to protect and manage it to the
maximum extent practical. Discussions with the Environmental Control Officer at the Kusile site
included a review of progress to date, and shows compliance with ROD requirements. The ROD
also requires Eskom to examine the possibility of returning unused land not needed for the
project to farming use, especially to those that were relocated. Since construction is still
underway, there is an unacceptable risk for accidents if this measure were to be implemented
during the construction period, therefore, progress on this is deferred until construction is
completed. Return of some unused land to agricultural purposes, however, would not be an
adverse impact on natural habitat value of the property, unless unauthorized disturbance in the
protected wetlands were allowed. This will need to be factored into any decision regarding the
circumstances in which agricultural production is allowed to resume on the property acquired by
Eskom for the Kusile project.
216. Neither the Sere WPP nor the CSP plant is located in important or sensitive natural
habitats; both sites are semi-arid to arid landscapes that have been disturbed to varying extent by
livestock grazing. Field surveys carried out for both project EIRs have detected small, scattered
73
patches of habitat or plant species of conservation interest. Eskom has committed to modify
transmission line alignments or location of structures such as wind turbines to avoid sensitive
areas, or to engage in rescue and relocation programs for plants or animals that cannot be
avoided. The EIR for the Majuba rail spur identified several sensitive natural features that would
be harmed by construction of the track, including springs and wetlands, hillside seeps, and a
short but relatively broad section of the Vaal River floodplain that contains wetlands and oxbow
lakes. Eskom adopted all the recommendations in the EIR for adjustment of the right-of-way
alignment to avoid springs and seeps and to cross the Vaal River at a less sensitive location.
Stone-filled wetland ―underpasses‖ will be installed as the railroad embankment is constructed in
order to not impede natural water flow in wetlands that cannot be avoided.
217. Physical Cultural Resources. The PCR safeguard would be triggered by the Kusile
plant if it were to be a Bank-financed investment. The Kusile site contains several abandoned
homesteads and graveyards of recent (19th century) historical significance. Eskom has developed
the institutional capacity and effective procedures to implement South African legal
requirements, including standard procedures for ―chance finds.‖ This capacity and procedures
have been successfully implemented at the Kusile site where historic homesteads identified
during the EIA process have been preserved and protected and human remains identified during
both the EIA process and as ―chance finds‖ during site clearance have been exhumed and moved
in accordance with national standards. For the Medupi project, one gravesite was discovered
during site clearing; this chance find was managed in a manner consistent with Eskom‘s practice
at the Kusile site and in accordance with South African regulations.
218. Sixteen Late Stone Age middens (essentially dumping grounds for ―kitchen wastes‖
consisting mostly of mollusk shells or animal bones) were found during the EIA process in a
localized area near the shore on the Sere WPP site. Although small adjustments in location of
turbine footings can avoid some of these, it will not be possible to avoid them all. The middens
are not considered to be particularly rich in artifacts, but have research value. Under supervision
of the provincial authorities (Heritage Western Cape), the unavoidable sites will be investigated
and documented by experts before permits are issued that allows their destruction. The chance
finds procedures that Eskom routinely uses at construction sites will be important at this project
site because there could be Stone Age material in deeper strata on the site.
VII. SUMMARY OF GAPS AND PROPOSED GAP-FILLING
MEASURES
219. OP 4.00 requires that, prior to piloting a project under a borrower‘s environmental or
social safeguard system, the Bank and the borrower reach agreement on a time-bound Action
Plan to address gaps in Equivalence and Acceptability that have been identified in the SDR. At
the draft stage of the SDR the Bank discloses the gaps that have been identified for further
discussion with the borrower and other stakeholders including local stakeholders in the proposed
project.
220. Equivalence. With respect to the SDR process conducted to date, the Bank has identified
a few minor gaps or ambiguities in the language of the legal framework of South Africa with
respect to the four Bank safeguard policies triggered by the EISP. However, it would appear
from the analysis of Eskom‘s policies and procedures that all of these gaps or ambiguities
74
applicable to environmental safeguards are fully addressed and internalized in Eskom‘s policies
and practices, and no gap-filling measurements are required.
221. With respect to EA it is clear that Eskom‘s policy is to address alternatives assessment at
both the strategic and project-specific levels. In doing so, Eskom‘s approach to alternatives
analysis takes into account at either or both levels the full range of key factors as identified in OP
4.00 Table A1, irrespective of any ambiguities in South Africa‘s legal framework for EIA as to
whether alternatives analysis always should include the same suite of specific factors such as
capital and recurrent costs, or institutional training and monitoring requirements.
222. With respect to NH, Eskom, through its partnerships with South African conservation
organizations, has supported conservation offsets for projects that convert non-critical natural
habitat, although South African legislation does not appear to require such offsets. In any case,
none of the EISP components will impact non-critical natural habitat to an extent that such an
offset would be necessary or appropriate.
223. With respect to PCR, Eskom‘s existing policy of extensive local stakeholder consultation
regarding cultural sites and artifacts, along with its standard protocol requiring that ―chance
finds‖ be reported to the SAHRA and construction at that specific location be halted until
appropriate specialists are consulted, obviates a need for gap-filling at the institutional level.
224. It is only with respect to IR that South Africa appears to lack a legal mechanism and
Eskom an administrative mechanism to require the preparation of stand-alone publicly-disclosed
resettlement plans or frameworks, or to document its evaluation of the impacts of resettlement
and rehabilitation activities. Accordingly, the Bank proposes to require that Eskom develop such
an administrative mechanism as a pre-condition to submitting the EISP to Board approval, and in
the interests of improving Eskom‘s publicly stated policy of improved transparency. Eskom has
already begun the gap-filling process, as described below.
225. Acceptability. A detailed review of Eskom‘s policies and procedures with respect to the
four triggered safeguard policies as implemented on a corporate level and in particular with
respect to the planning and implementation of the Medupi and Kusile projects to date indicates a
high level of consistency with international good practice as exemplified by international
standards of corporate environmental and social management, such as the United Nations Global
Compact, IFC Performance Standards, the Equator Principles, and relevant WBG EHSG. There
are, however, two issues where there are potential gaps in Eskom‘s performance that relate to the
outcomes of the Medupi and Kusile projects.
226. With respect to SO2 emissions and ambient impacts on air quality and human health, the
Bank will require Eskom, as a pre-condition of Board approval, to commit to timely installation
of FGD in all six units at Medupi as soon as it is technically feasible and operationally
responsible to do so. This is expected to begin as early as 2018, and be completed in
approximately two years as each unit is sequentially taken offline for routine maintenance. As a
related condition, the Bank will require that Eskom provide to the Bank in mid 2013 a report
satisfactory to the Bank that provides a plan and schedule for timely installation of SO2 emission
abatement measures. This may include an independent feasibility analysis of alternative control
technologies as discussed above.
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227. With respect to Involuntary Resettlement, Eskom has acknowledged the benefits of
conducting independent retrospective monitoring of the social and economic impacts of any
involuntary resettlement associated with its projects. For project components where resettlement
has already occurred, the Bank will require that Eskom agree to conduct and publish an audit of
the resettlement based on a Terms of Reference to be agreed by the Bank. For any EISP
component for which resettlement is needed but has not yet occurred, the Bank will require
Eskom to disclose its draft resettlement plan for those components. To begin the process of
addressing this gap, Eskom has prepared and disclosed on its website its corporate resettlement
policy and procedure.162
Eskom has also disclosed on its website a Resettlement Policy
Framework for Components 2 and 3 of EISP, which explains its corporate practice for
addressing involuntary resettlement, land acquisition, and livelihood restoration
(rehabilitation).163
Audits will also be required for any resettlement already carried out for EISP
components (i.e., some of the transmission lines for the Medupi project, and acquisition of the
right-of-way for the Majuba rail spur). For any EISP components for which resettlement is
needed but has not yet occurred (primarily the Phase 2 transmission lines for the Medupi
project), the Bank will require and Eskom has agreed to disclose a draft Resettlement Action
Plan for those components.
162 Eskom, 2009. ―Procedure for the Involuntary Resettlement of Legal and Illegal Occupants on or from Eskom-
Procured Land‖ (July 2009), http://www.eskom.co.za/content/20091009091904201.pdf. 163 Eskom, 2009. ―Status and Process of Land Acquisition and Resettlement for Eskom‘s Concentrating Solar Plan
(CSP), Wind Energy Facility, Majuba Rail and Transmission Projects‖ (October 2009),
http://www.eskom.co.za/content/RelocationResettl_Final.pdf.
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ANNEX 1
WORLD BANK OPERATIONAL POLICY OP 4.00
March 2005
Piloting the Use of Borrower Systems to Address
Environmental and Social Safeguard Issues in Bank-Supported Projects
1. The Bank‘s1
environmental and social (―safeguard‖) policies2 are designed to avoid,
mitigate, or minimize adverse environmental and social impacts of projects supported by the
Bank. The Bank encourages its borrowing member countries to adopt and implement
systems3
that meet these objectives while ensuring that development resources are used
transparently and efficiently to achieve desired outcomes. To encourage the development and
effective application of such systems and thereby focus on building borrower capacity
beyond individual project settings, the Bank is piloting the use of borrower systems in Bank-
supported projects. The key objective of the pilot program is to improve overall
understanding of implementation issues related to greater use of country systems.
2. Equivalence and Acceptability. The Bank considers a borrower‘s environmental and
social safeguard system to be equivalent to the Bank‘s if the borrower‘s system is designed to
achieve the objectives and adhere to the applicable operational principles set out in Table A1.
Since equivalence is determined on a policy-by-policy basis, the Bank may conclude that the
borrower‘s system is equivalent to the Bank‘s in specific environmental or social safeguard
areas in particular pilot projects, and not in other such Areas. Before deciding on the use of
borrower systems, the Bank also assesses the acceptability of the borrower‘s implementation
practices, track record, and capacity.4
3. Addressing Gaps. If the borrower has to fill gaps in its system to meet the objectives and
applicable principles in Table A1 and is committed to doing so, the Bank may, when
determining equivalence take account of measures to improve the borrower‘s system.
Similarly if the borrower has to fill gaps in implementation practices and capacity to achieve
acceptability and is committed to doing so, the Bank may, when determining acceptability,
take account of measures to strengthen borrower implementation practices and capacity.
Such measures are to be carried out before the borrower undertakes implementation of the
relevant project activities, and may include Bank-supported efforts to strengthen relevant
capacity, incentives and methods for implementation.
4. Borrower Role and Obligations. The borrower is responsible for achieving and
maintaining equivalence as well as acceptable implementation practices, track record, and
capacity, in accordance with the Bank‘s assessment. For each project, the borrower identifies
those provisions of the country system that are necessary to ensure that the requirements of
Table A1 are met. These provisions may vary from project to project, depending on such
factors as the structure of the country‘s system and the type of operation. In all cases, the
specific provisions of the country system and any additional actions that the borrower needs
to undertake to achieve and maintain equivalence and acceptable implementation become
part of the borrower‘s contractual obligations to the Bank, subject to the Bank‘s normal
contractual remedies (e.g., suspension of disbursements).
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5. Bank Responsibility. The Bank is responsible for determining the equivalence and
acceptability of borrower systems, and for appraising and supervising pilot projects that use
these systems. The Bank carries out its responsibility, including supervision5
of borrower
implementation practices, track record, and capacity, in a manner proportional to potential
impacts and risks. The Bank may explore with the borrower (and, as appropriate, third-
parties) the feasibility of arrangements to strengthen ownership and country capacity to
implement specific operational principles in Table A1. Without limitation to its responsibility
under this paragraph, the Bank may also explore with the borrower (and, as appropriate,
third-parties) the feasibility of establishing alternative monitoring arrangements for
overseeing the implementation of the project.
6. Changes in Borrower Systems and Bank Remedies. If, during project implementation,
there are changes in applicable legislation, regulations, rules or procedures, the Bank assesses
the effect of those changes and discusses them with the borrower. If, in the judgment of the
Bank, the changes reflect a further improvement in the country systems, and if the borrower
so requests, the Bank may agree to revise the legal framework applicable to the operation to
reflect these improvements, and to amend the legal agreement as necessary. Management
documents, explains, and justifies any changes to such framework, and submits them for
Board approval (normally on an absence of objection basis). If the country system is changed
in a manner inconsistent with the legal framework agreed with the Bank, the Bank‘s
contractual remedies apply.
7. Disclosure. To promote transparency and facilitate accountability, the Bank makes public
through the PID early in the project cycle its intent to use country systems in a proposed pilot
operation. It updates this information as project development proceeds. At a later stage, but
prior to beginning appraisal, the Bank makes publicly available its analysis of equivalence of
borrower systems and Bank requirements and its assessment of the acceptability of borrower
implementation practices, track record, and capacity (including a description of the
applicable borrower systems and of actions that would achieve and sustain equivalence and
acceptability). In addition, the Bank ensures that relevant project-related environmental and
social safeguard documents (see Table A1), including the procedures prepared for projects
involving subprojects, are disclosed in a timely manner before project appraisal formally
begins, in an accessible place and understandable form and language to key stakeholders.
1 ―Bank‖ includes IDA; ―loan‖ includes credit and grant; and ―borrower‖ includes grant recipient.
2 The Bank‘s environmental and social safeguards policies and procedures are: OP/BP 4.01, Environmental
Assessment; OP/BP 4.04, Natural Habitats; OP 4.09, Pest Management; OP/BP 4.10, Indigenous Peoples; OP
4.11 (forthcoming), Management of Cultural Property in Bank-Financed Projects; OP/BP 4.12, Involuntary
Resettlement; OP 4.36, Forests; and OP/BP 4.37, Safety of Dams.
3 When used in this policy statement ―country systems‖ means a country‘s legal and institutional framework,
consisting of its national, sub-national, or sectoral implementing institutions and applicable laws, regulations,
rules, and procedures.
4 As the applicable statement for the pilots, this OP and BP will apply only to those areas where the Bank has
determined equivalence. The Bank‘s environmental and social safeguard policies will apply to the areas which the Bank has determined not to be equivalent to its applicable policy framework and will continue to apply to
all projects that are not part of the pilot program. Pilot projects will be subject to all other applicable policies
and procedures.
5 OP/BP 13.05, Project Supervision, applies to pilot projects.
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ANNEX 2
SOUTH AFRICAN LEGAL FRAMEWORK APPLICABLE TO THE
ENVIRONMENTAL AND SOCIAL IMPACTS OF THE EISP
ENVIRONMENTAL FRAMEWORK
1. Under the 1996 Constitution of South Africa, the right to an environment that is not
harmful to one‘s health and well being is considered fundamental. The Constitution refers to this
right and that of future generations to a healthy environment (Clause 32 of the Bill of Rights).
The Constitution contains mandatory, clear and applicable provisions on environmental
protection and sustainable development.1 The environment is defined as the natural environment
and its physical, chemical, aesthetic and cultural properties that influence human health and well-
being. The following sections of the Constitution are particularly relevant to the environmental
safeguard policies addressed in this report: Environmental Chapter 2 – Bill of Rights, Section 24
(Environment); Chapter 14 – General Provisions, Section 231 (International Agreements),
Section 232 (Customary International Law), and Section 233 (Application of International Law).
2. In addition, South Africa has ratified several multilateral agreements relating to
atmospheric emissions, in particular, UN Framework Convention on Climate Change, the Kyoto
Protocol, the Vienna Convention and Montreal Protocol for the Protection of the Ozone Layer
and the Stockholm Convention on Persistent Organic Pollutants.2
3. Until 1998 the controlling legislative instrument for environmental management in South
Africa was the Environmental Conservation Act (Act 73 of 1989, ECA). With the enactment of
the National Environmental Management Act of 1998 (NEMA) the ECA and various laws
enacted under it have been partially superseded by a new paradigm and by various laws and
regulations. Consequently, the legal regime applicable to the Medupi and Kusile projects, which
were designed during the period from 2004 through 2008, reflects a hybrid approach with
application of both ECA and NEMA authorized provisions. The Records of Decision (RODs)
issued by DEAT on September 21, 2006, and June 5, 2007 for the Medupi and Kusile plants,
respectively, and the Environmental Management Plans (EMPs) submitted to DEAT by Eskom,
and currently pending approval, make explicit reference to the laws and regulations listed in the
text that follows.
Environmental Conservation Act (ECA)
4. The ECA provided the umbrella legislative authority for all environmental legislation
regulations up to the enactment of NEMA in 1998, under which many of the provisions of the
1 Section 24, South African Constitution,1996. 2 South Africa ratified the UN Framework Convention on Climate Change in 1997. As a non-Annex 1 party, South
Africa‘s obligations include the preparation of a National Communication incorporating an inventory of GHGs.
South Africa ratified the Kyoto Protocol in 2002 but as a developing country has no binding commitment to cap or reduce GHS emissions. However, South Africa has developed climate change mitigation and adaptation strategies
and is a potential beneficiary of the Clean Development Mechanism. South Africa ratified the Vienna Convention
for the Protection of the Ozone Layer in 1990 and the Montreal Protocol and London Amendment in 1990 and 1992
respectively. Ratification of the Copenhagen Amendment is in process. South Africa ratified the Stockholm
convention on Persistent Organic Pollutants in 2002.
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ECA have been progressively repealed. However, the sections cited above and summarized
below continue to apply to the Medupi and Kusile projects:
Section 19 prohibits discarding, dumping or leaving of any litter on land or water
surface except in a contained space dedicated for that purpose.
Section 20(1) provides that where an operation accumulates, treats, stores or disposes
of waste on site for a continuous period, it must apply for a permit to be classified as
a suitable waste disposal facility, and will require an appropriate permit from the
Department of Water Affairs and Forestry. (In May 2009 it was announced that the
Department of Water Affairs would henceforth be part of the Ministry of Water and
Environmental Affairs).3
Section 21 identifies those categories of activities (―Schedule 1‖) that ―may have a
substantial detrimental effect on the environment, whether in general or in respect of
certain areas.‖ The application of this provision to the Medupi and Kusile projects is
evident in the inclusion of ―energy generation‖ as one of the categories identified.
Section 22 prohibits any activity identified in Section 21 from being undertaken
without written authorization issued by the Minister of Environmental Affairs and
Tourism or by a competent local authority, as defined by the ECA.
Sections 28, 31 and 33 reference the general regulatory powers of various levels of
government authority with respect to the provisions of the ECA.
Sections 29 and 30 deal with offenses, penalties and forfeiture provisions of the ECA.
Section 35 provides for an appeal process (implemented by Regulation 1183, below).
Section 38 provides that the President may unilaterally modify the ECA to
incorporate the provisions of any convention, treaty or agreement relating to the
protection of the environment.
5. Regulation R1182 (September 5, 1997) further specifies the activities included in Section
21 of the ECA as the following (which are applicable to the components of the EISP):
Facilities for commercial supply of electricity generation with an output of at least 10
megawatts;
Infrastructure, including roads and rails for the transportation of any substance;
Schemes for the abstraction or utilization of ground or surface water for bulk supply
purposes; and
Change in land use from agricultural to any other use.
3 Under Section 81 of the Waste Act of 2008 (see below).
80
6. Regulation R1183 (September 5, 1997) sets forth the procedures under which an
applicant could be required to undertake scoping and conduct an Environmental Impact
Assessment (EIA) for an activity subject to Schedule 1 of Section 21 of the ECA. Key provisions
applicable to the Medupi and Kusile projects include the following:
Applications to undertake scheduled activities must be referred to the relevant
provincial authority and/or the Minister of Environmental Affairs and Tourism for
authorization (Para. 4).
Applicants seeking authorization are required to appoint an ―independent‖ consultant,
having no financial or other interest in the undertaking, with expertise in the area of
environmental concern, a good working knowledge of all relevant policies,
legislation, guidelines, norms and standards; the ability to perform in a timely,
thorough and readable manner, all the relevant tasks required in the regulation
including management of the public participation process. (Para. 3(1)).
The applicant is responsible for conducting a public participation process that ensures
that ―all interested parties‖ (defined as any person or group of persons concerned with
or affected by an activity…including government departments that may have
jurisdiction over any aspect of the activity) are given the opportunity to participate in
all relevant procedures contemplated in the regulation provided that such interested
party responds within the time agreed to between the relevant authority and the
applicant. (Paras. 3(1)(f) and 3(5).
The applicant is required to submit a Plan of Study for Scoping and/or a Scoping
Report including a brief description of: (a) the project; (b) how the environment may
be affected; (c) the environmental issues identified; and (d) all alternatives identified.
The Scoping Report is also required to provide an Appendix containing a description
of the public participation process followed, including a list of interested parties and
their comments (Paras. 5 and 6).
Based on the Scoping Report, the relevant authority may consider the application
without further investigation or require that the Scoping Report be supplemented by
an EIA (Para. 6).
If an EIA is required the applicant is first required to submit a Plan of Study for the
EIA, the contents of which are prescribed in the regulation (Para. 7 (1)).
After the Plan of Study has been accepted the applicant must submit an
Environmental Impact Report (EIR) to the relevant authority: The EIR must include:
(a) a description of each alternative, including (i) the extent and significance of each
identified environmental impact, and (ii) the possibility for mitigation of each
identified impact; (b) a comparative assessment of all the alternatives; and (c)
appendices containing descriptions of: (i) the environment concerned, (ii) the activity
to be undertaken, (iii) the public participation process followed, including a list of
interested parties and their comments, (iv) any media coverage given to the proposed
activity, and (v) any other information included in the accepted plan of study (Para.8).
81
The relevant authority must issue a record of the decision (ROD) which must include,
inter alia: (a) a brief description of the proposed activity, the extent or quantities of
the surface area involved; (b) the specific place where the activity is to be undertaken;
(d) the identity of any consultant involved; (e) the date of and persons present at site
visits, if any; (f) the decision of the relevant authority; (g) the conditions of the
authorization, if any, including measures to mitigate, control or manage
environmental impact or to rehabilitate the environment; (h) the key factors that led to
the decision; and (j) the name of the person to whom an appeal may be directed. The
ROD must also indicate the method by which the applicant must make the ROD
available to any interested party.
Any report submitted in support of the regulation is considered a public document as
of the date of the ROD.
Appeals of any decision must be made to the Minister or provincial authority within
30 days of the ROD.
NEMA
7. NEMA was enacted in 1998 as the new framework environmental law for South Africa
and is designed to progressively substitute for the ECA. NEMA is designed to support
institutional capacity in all spheres of government for effective implementation of participation.
It promotes equitable access to natural resources and fair and equitable sharing of the benefits
arising out of the utilization of marine resources. The RODs for Medupi and Kusile cite in
particular the principles set out in Section 2 of the NEMA, many of which are particularly
relevant to this analysis to the extent that they correspond to the Objectives and Operational
Principles of OP 4.00, Table A1 as demonstrated in the Equivalence Analysis.
8. A number of important laws and regulations have subsequently been enacted under
NEMA that are applicable in whole or in part to the Medupi and Kusile projects. These include
the NEMA Environmental Impact Assessment Regulations of 2005; the NEMA Air Quality Act
of 2004 (AQA);4 the NEMA Biodiversity Act of 2005, as amended and the NEMA Waste
Management Act of 2008.
9. NEMA itself has been amended several times, most recently in December 2008 by the
National Environmental Laws Amendment Act (35 of 2007, NELAA) and by the National
Environmental Management Amendment Act of 2008 (36 of 29, NEAMA), which came into
effect on May 1, 2009. The former extended the mandate of the EMI to include the 1989 ECA,
the APPA and the AQA (see below). It clarified the status of EMIs as peace officers under the
Criminal Procedures Act (51 of 1977) and prescribed a maximum penalty of five year
imprisonment and/or a R10 million fine for noncompliance with a compliance notice issued by
an EMI. The NEAMA revised NEMA in terms of identification of those activities requiring
environmental authorization; geographical areas within which specified activities require or are
excluded from environmental authorization; and activities that may commence without
environmental authorization but complying with norms or standards. It also reinforced several
4 Preceded by the Atmospheric Pollution Prevention Act (Act 45 of 1965, APPA).
82
provisions of NEMA with reference to the 2006 EIA regulations relating to investigation of
alternatives (including the ―no-go alternative); mitigation measures; assumptions, gaps, and
uncertainties in EIA data; reporting on monitoring and management actions; and adherence to
requirements contained in SEMAs, including the Air Quality Act, the Biodiversity Act and the
Water Act (see below).5
NEMA Environmental Impact Assessment Regulations of 2006 (2006 EIA Regulations)
10. South Africa issued new EIA Regulations under the authority of NEMA, which became
effective on July 3, 2006 and repealed the regulations issued under the ECA. Pursuant to
NEAMA, draft provisions to amend the EIA Regulations were issued on February 13, 2009 and
have yet to be adopted.6 The new Regulations addressed many of the gaps and ambiguities of the
regulations issued under the ECA. Although the 2006 EIA Regulations do not have legal
application to the EIA processes for the Medupi and Kusile projects because the applications to
initiate the EIA processes were submitted and approved prior to July 3, 2006,7 previous drafts of
the EIA Regulations had been in wide public circulation, and they clearly influenced the content
and format of the Environmental Impact Reports (EIRs) that were ultimately submitted and
approved. Moreover, according to Eskom, the EMP provisions of Section 34 of the 2006 EIA
Regulations are applicable8 to the Medupi and Kusile projects. These provisions may be
summarized as noted below.
11. A Draft Environmental Management Plan (EMP)9 must include:
(a) Details of: (i) the person who prepared the EMP; and (ii) the expertise of that
person to prepare an EMP;
(b) Information on any proposed management or mitigation measures that will be
taken to address the environmental impacts that have been identified in a
report prepared under these Regulations, including environmental impacts or
objectives in respect of: (i) planning and design; (ii) pre-construction and
construction activities; (iii) operation or undertaking of the activity; (iv)
rehabilitation of the environment; and (v) closure, where relevant.
(c) A detailed description of the aspects of the activity that are covered by the
draft EMP;
5 Paterson and Kotzé, op.cit., p. 381; and DEA&DP, 2009, ―Implementation of the National Environmental
Management Amendment Act, 62 of 2008,‖ Presentation to Western Cape branch of the South African Chapter of
the International Association for Impact Assessment, Western Cape Province, Kirstenbosch, June 18, 2009.
(DEA&DP). 6 Government Gazette, No 31885, February 13, 2009. 7 Therefore, the 2006 EIA Regulations are not cited in the RODs as applicable to the Medupi or Kusile projects. 8 ―This EMP…has been compiled in accordance with Section 34 of the EIA Regulations.‖ Eskom, 2009, Medupi
Power Station, Limpopo Province, Environmental Management Plan for Operation and Maintenance, February
2009, Savannah Environmental (Pty) Ltd: p. 3. 9 The term Environmental Management Plan was replaced by the term ―Environmental Management Programme‖
by the NEAA, DEA&DP, op.cit.
83
(d) Identification of the persons who will be responsible for the implementation
of the measures contemplated in paragraph (b);
(e) Where appropriate, time periods within which the measures contemplated in
the draft EMP must be implemented; and
(f) Proposed mechanisms for monitoring compliance with the EMP and reporting
thereon.
Atmospheric Pollution Prevention Act (Act 45 of 1965, APPA)
12. Under the APPA a specifications standard applies to the production of noxious or
offensive gases from 69 scheduled processes, listed in Schedule 2 of the Act, including thermal
power generation, and requires that pollution control equipment must conform to certain design
criteria. These provisions of the APPA are scheduled to be replaced by Section 60 of the NEMA
AQA on promulgation of its Section 22. In the Act:
Section 9 prohibits the operation of a scheduled process without a registration
certificate issued by the DEA‘s Chief Air Pollution Control Officer. The certificate
is issued subject to compliance with specified minimum standard conditions.
Sections 15 and 16 prohibit the installation or siting of any fuel burning appliance in
the absence of effective equipment to limit emissions of grit and dust to the
satisfaction of local authorities.
Sections 27 and 28 authorizes the Minister of Environmental Affairs to declare any
area to be a dust control area and to require a facility causing a nuisance to locally
affected persons to adopt ―the best practicable means‖ for the abatement of such
nuisance, per the satisfaction of the Chief Air Pollution Control Officer. Section 34
authorizes the Minister to prescribe essential national standards for the control of
noise and to specify maximum levels of noise. Such regulations are specified in the
National Noise Control Regulations (GN R154, January 10, 1992, GRN 55 of
January 14, 1994); the South African National Standard (SANS) 10103: 2004; and
associated regulations as well as South African Standards Board 0228 and 0229
codes.
Section 35 authorizes the Minister to prescribe measures for the control of offensive
odors.
NEMA AQA
13. In 2004 South Africa enacted the NEMA AQA. There are several key provisions of the
AQA that have been enacted and are applicable to the Medupi and Kusile projects, but which are
not yet not in effect:10
10 Per Eskom, Medupi, EMP Construction Phase, List of Applicable National Legislation not yet Taken Effect at
Date of This Document, April 16, 2007.
84
Section 21: List of Activities which result in atmospheric emissions and which have
or may have a significant detrimental effect on the environment, including health,
social, economic or ecological conditions, or cultural heritage.
Sections 22 and 36: Requires atmospheric emission license (AEL) or provisional
AEL to be obtained from Metropolitan or District Municipality for any listed
activity.
14. Ambient Air Quality Standards: Provisional ambient air quality limits for South Africa
were published in Schedule 2 of the 2004 AQA. Subsequently, in March 2009, draft ambient air
quality standards intended to replace the provisional limits were published for public comment11
and were revised and adopted and adopted in final form on December 24, 2009.12
Seven priority
pollutants have been designated13
of which four (PM, SO2, NO2 and CO) are directly associated
with electricity generating facilities. Parameters have been set for limit values, alert thresholds
and target values. Margins of tolerance, time frames for achieving compliance with limit values
of permissible frequencies of allowable exceedance have been determined. These values are
based on assessments that establish the ambient concentrations of prioritized pollutants and
evaluate the technical feasibility, economic viability and social and political acceptability of
implementing measures to reduce and maintain air quality within limit values. A comparison of
the provisions of the South African air quality standards with the corresponding parameters of
the World Health Organization‘s Ambient Air Quality Guidelines is presented in Annex 4 of this
report.
15. Proposed Emissions Standards for Thermal Power Plants: Draft emissions standards for
combustion installations were issued for preliminary public comment under Section 21 of the
AQA in February 200914
and were reissued for final public comment on July 24, 2009.15
The
proposed emissions standards take into account the capacity of the facility, the fuel source, and
the status of the facility (new or existing). As provided for under the National Framework, time
frames for compliance of various industry sectors with new emissions standards are proposed to
be ―informed by industry cycles,‖ and that for individual ―controlled emitters….compliance time
frames [are proposed] to be established taking into account risks to human health, relative
contribution to ambient air quality levels and ability to monitor compliance.‖ As such, the
National Framework anticipates that provinces and municipalities will adopt compliance time
frames, in line with international trends, specifically, three years from date of issuance are
provided for a new facility to come into compliance with the limitations applicable to new
facilities whereas existing facilities are given an initial five years to come into compliance with
the limitation applicable to existing facilities and an additional three years to come into
compliance with the much more stringent requirements applicable to new facilities. In addition,
11 South African National Standards National Committee (SABS TC 146), Air Quality SANS 1929:2009, Edition 2. 12 Per Schedule 2 of the AQA, 2004 as issued by the Department of Environmental Affairs, December 24, 2009. 13 Sulfur dioxide (SO2); Nitrogen dioxide (NO2); Carbon Monoxide (CO); Particulate Matter (PM10). 14 DEAT, ―AQA Implementation: Listed Activities and Minimum Emissions Standards, Draft Schedule for Section 21 of Air Quality Act, Rev. 1.0, February 27, 2008.‖ 15 General Notice 1001, National Environmental Management: Air Quality Act (39/2004): List of Activities which
result in atmospheric emission which have or may have a significant detrimental effect on the environment,
including health, social conditions, economic conditions, ecological conditions or cultural heritage, Government
Gazette, Vol. 529, No. 32434, July 24, 2009.
85
provisions are proposed to be made for specific industries to apply for possible extensions to the
compliance time frame, provided that ambient air quality standards in the area are in compliance
and that the industry‘s air emissions are not causing any adverse effects on the surrounding
environment.16
NEMA – Biodiversity Act 2005
16. The following sections of the Biodiversity Act apply to the Environmental Assessment
safeguard policy: Chapter 1 – Interpretation, Objectives and Application of Act, Section 5
(Application of International Agreements), Chapter 3 – Biodiversity Planning and Monitoring,
Section 45 (Contents of Biodiversity Management Plans), and Chapter 4 – Threatened or
Protected Ecosystems and Species, Section 51 (General Purpose of the Chapter). The following
provisions are cited as being potentially relevant to the Medupi and Kusile projects:17
Sections 40, 43 and 54 provide the Minister or MEC for environmental affairs in a
province or the Minister of Environmental Affairs, respectively, with authority to
declare a particular geographic region as a ―bioregion‖ or an ecosystem warranting
special conservation attention under Section 54, as characterized by its landforms,
vegetation cover, human culture and history, and to issue a Biodiversity
Management Plan for such a region;
Section 43 and Section 57 provide that the Minister may issue a Biodiversity
Management Plan for an indigenous species or other (critically endangered,
endangered, vulnerable or otherwise protected) species per Section 56 or for a
species that warrants special conservation; the Minister may prohibit any activity
which may negatively impact on the survival of such a species without a permit as
required by Section 7 of the Act.
Section 53 authorizes the Minister to identify any process or activity in a listed
ecosystem as a ―threatening process‖ requiring specific authorization from DEA.
National Water Act (Act 36 of 1998, NWA)
17. The NWA regulates the protection, use, development, conservation, management and
control of water resources in South Africa, incorporating the objectives of pollution prevention,
ecological and resource conservation, sustainable utilization, the precautionary principle,
participatory decision-making, transparency and just administrative action. Under the Act, water
resource reserves for human use and maintaining sound ecosystems take precedence over
agricultural and industrial demands. With respect to the Eskom projects considered for inclusion
in the EISP, the following sections are particularly germane:
16 National Framework, Section 5.4.3.5, page 58. 17 Eskom, Medupi, EMP Construction Phase, List of Applicable National Legislation not yet Taken Effect at Date of
This Document, April 16, 2007. List of Applicable National Legislation not yet Taken Effect at Date of This
Document.
86
Section 19 requires that a project proponent must ensure that reasonable measures
are taken throughout the life cycle of a project to prevent and remedy the effects of
pollution to water resources.
Sections 21, 27, 28 and 29 set out the water uses and procedures by which a water
use permit must be issued by the Department of Water Affairs and Forestry.18
National Environmental Management Waste Act of 2008 (NEMA Waste Act)
18. The NEMA Waste Act, which became effective on March 6, 2009, is designed to provide
a comprehensive regulatory framework for management of waste; allow the Minister of the
Environment to declare any waste stream as a priority waste, and set rules specifically for that
waste; make provision for integrated waste management plans prepared by local authorities and
industries (such as Eskom) and approved by the Minister through a public participatory process
(under the ―polluter pays principle‖); create a hierarchy of preferred waste disposal methods and
incentives to encourage waste minimization; and develop a formal licensing procedure for the
generation and disposal of waste. One of the major changes in the Act is to transfer primary
authority for the management of waste from sectoral ministries (such as the Ministry of Minerals
and Energy in the case of coal wastes from both mining and power generation) to DEA.
19. It would appear that some provisions of the Waste Act, in particular, the requirement to
prepare Industry Waste Plans, could apply to Eskom as a corporate entity as well as directly to
the components of the EISP, specifically the design and operation of coal ash ponds or ―dry‖ ash
disposal landfills, and the discharge of other solid wastes from power plant operations. The
―operation of power plants‖ is including within the Act‘s definition of ―industry‖ and coal ash
would appear to fit the definition of ―wastes‖ (―any substance…which the generator has no
further use of for purpose of production‖). The discharge of coal ash into engineered ash dumps
would appear to meet the Act‘s definitions of ―disposal,‖ which includes the ―dumping, placing
or release of any waste into or onto any land,‖ as well as ―storage,‖ which is defined as ―the
accumulation of waste in a manner that does not constitute the treatment or disposal of that
waste.‖ Depending on how coal ash is subsequently categorized in the waste listing schedules to
be issued by DEA, Eskom could be required to obtain a license under the provisions of the Act
for the construction and operation of the ash ponds at Medupi and Kusile and to prepare Waste
Management Plans as provided in the Act and/or a separate EMP as required under Section 11 of
NEMA.19
Eskom could also be required to obtain a separate authorization from the Department
of Water (per Section 50(3)), which since May 2009 has become part of the Ministry of Water
and Environmental Affairs, and to appoint a Waste Management Officer per Section 58.
18 As of May 2009, the Department of Water Affairs has been transferred to the new Ministry of Water and Environmental Affairs. 19 Waste Act, Section 46 (2)(d). The Act further provides that where the holder a permit under Section 20 of the
ECA (repealed by the Waste Act) must apply for waste management license under the Waste Act when required to
do so by the licensing authority and that any license pending under section 20 of the ECA will henceforth be treated
as if it were an application for waste management license under the Waste Act.
87
Minimum requirements for Landfills issued by the Department of Water Affairs and Forestry
(second edition, 1998)
20. Pending the issuance of detailed implementing regulations for the Waste Act, the ROD
refers to guidelines that were issued by the Department of Water Affairs and Forestry in 1998 as
part of a series of guidance documents, the Waste Management Series, on various aspects of
waste management.20
As a guidance document, it does not appear to be legally enforceable,
although permits issued that make reference to the document would appear to be enforceable
under provisions of the ECA and the NWA. Among other things, the document addresses landfill
classification, and the siting, investigation, design, operation and monitoring of landfill sites. In
the landfill classification system, a landfill is classified in terms of waste class, size of operation,
and potential for significant leachate generation, all of which influence the risk it poses to the
environment. Graded requirements are then set for all aspects of land filling, including public
participation. As there is no specific mention of coal ash dumps in the document, the specific
application of the document to the Medupi and Kusile ash ponds is not clear.
Other Environmental Laws
National Forest Act (Act 84 of 1998) and Government Notice 1339 of August 6, 1976
(promulgated under the Forest Act of 1984)
21. This requires a permit for the removal, relocation or pruning of any protected plants.
Conservation of Agricultural Resources Act (Act 43 of 1983)
22. The Act regulates the conservation and management of agricultural natural resources.
Key provisions and regulations issued under the authority of the Act apply to:
The prevention of soil erosion and the development of soil conservation schemes;
Protection of wetlands and associated vegetation;
The burning of veld (Regulation 6); and
Control of invasive plant species (per Regulation 15 of GNR1048).
Fertilizers, Farm Feed, Agricultural Remedies and Stock Remedies Act (Act 36 of 1947)
23. This Act requires that only a registered pest control operator may apply application of
herbicides.
20 Thus far, the series comprises:
Document 1: Minimum Requirements for the Handling, Classification and Disposal of Hazardous Waste.
Document 2: Minimum Requirements for Waste Disposal by Landfill.
Document 3: Minimum Requirements for Monitoring at Waste Management Facilities
88
National Veld and Forest Fire Act (Act 101 of 1998)
24. This Act obligates an operator to burn firebreaks to ensure that that any veld fire
occurring on the property does not spread to adjoining land. It specifies the dimensions of the
firebreak and requires that suitably trained and equipped personnel be made available for
extinguishing such fires.
Natural Heritage Resources Act of 1999 (Act 25 of 1999)
25. Archeological remains, artificial features and structures older than 60 years are protected
by the Act. The Act requires a permit for any disturbance, removal or destruction of any national
and provincial heritage, archeological or paleontological site, burial ground, grave or public
monument or memorials.
Hazardous Substances Act (Act 15 of 1973)
26. This Act regulated the control of toxic, corrosive, explosive and inflammable substances
through the issuance of permits by the Department of Health for any such substances used, stored
or handled on site.
National Road Traffic Act (Act 93 of 1996)
27. The Act requires that:
Operators implement procedures to ensure that any dangerous goods transported do
not exceed specified quantities per SABS Code 0232;
A permit is obtained from the Minister of Transport to transport excessive loads
based on a survey of the prospective route by a qualified structure/transport
engineer.
Occupational Health and Safety Act (Act 85 of 1993)
28. According to the RODs for Medupi and Kusile, all provisions of the Act must be adhered
to with respect to safety and security, hazard and emergency response and fire control, including
by contractors and consultants. In addition,
(a) Subject to the Major Hazardous Installation (MHI) Regulations of July 10, 2001
(GRN 692) issued under the authority of the Act, an employer must:
Undertake a risk assessment of existing major hazard installations or
substances, to be updated every three years and submitted to the local
emergency services; and in consultation with such services, establish an on-
site emergency plan;
(b) Subject to the GNR 1179 of August 25, 1995 an employer must:
89
Take all steps to ensure that hazardous chemical substances are identified
stored, handled and distributed in accordance with the South African
Standards Bureau 0228 Code;
Ensure that any employee who may be exposed to any hazardous chemical
substance has been adequately and comprehensively informed and trained;
Ensure that material safety data sheets are provided by suppliers for any
substance that would classify the facility as a major hazard installation;
Ensure that any driver transporting hazardous material is in possession of a
valid driver‘s license, as well as medical and hazardous chemical training
certificates, complies with the Road Transport Quality System, has full
knowledge of emergency response procedures and is equipped with and
trained in the use of protective clothing; and
Ensure that an emergency plan is established and implemented through testing
in practice at least once annually.
SOCIAL FRAMEWORK
29. The Constitution upholds the right to property ownership. The legal system recognizes
three forms of property rights systems: freehold, communal, and state-owned. The government‘s
land reform policy seeks to restore control and ownership of resources to the claim group
(depending on the nature of the claim).21
30. South African laws relating to resettlement and land acquisition are summarized in Table
1. The South African legal framework for land acquisition and involuntary resettlement
recognizes that issues of land and land ownership were and still are an important legacy of the
apartheid period. This recognition is explicitly and implicitly embedded in the legislative
framework that addresses the issues of land acquisition.22
31. With regard to OP 4.12, section 3(a) on the ―involuntary taking of land,‖ the body of land
laws introduced after 1994 has a similar focus to the Bank‘s involuntary resettlement policy. The
South African land laws refer to protecting the security of tenure (whether formal or informal) of
vulnerable and poor sections of the population and attempts to put in place procedural
protections that ensure that where people do lose access to land, they are consulted and
compensated. These laws all recognize different forms of established occupation of, and vested
interests in land that previously had no formal recognition because of racial prohibitions on black
contractual rights to land. In general, interventions that comply with OP 4.12 section 3(a) will
also comply with the provisions of these laws.
32. Eskom has conducted its land acquisition program in compliance with all applicable laws
and regulations related to land expropriation for public purposes and other applicable laws and
regulations aiming at strengthening land tenure security and rights. In doing so, it follows the
21 SAEO, Box 3.2 Para. 5. 22 SE Solutions, Kusile, 4.6.1.
90
pattern implemented by the government, which has conducted land acquisition on the ―willing-
buyer, willing-seller‖ model, as described, along with a compensation scheme, in the
Expropriation Act, No.63 of 1975. Under the 1975 Act (Section 12), the compensation
calculation formula is based on the market value of land, actual losses, and solatium (solace
money). Act 63 pre-dates the Constitution (1996) which requires the government to pay ―just and
equitable compensation‖ under its Section 35(3). In practice, ―just and equitable compensation‖
was meant to reflect the market value of the expropriated properties and a fair balance between
the public interest and the interests of those affected.
33. Other laws and regulations adopted after the 1994 Constitution came into force have an
important impact on land acquisition in South Africa and shed light on the land taking and
compensation process followed for all public interest development projects. In fact, South Africa
is dealing with a critical legacy of land acquisition and distribution and has developed a program
to deal with claims lodged in terms of the Restitution of Land Rights Act 22 of 1994, under
which a person or community dispossessed of property after the start of the colonial era (Natives
Land Act of 19 June 1913), as a result of racially discriminatory laws or practice, is entitled to
lodge a claim for restitution of that property or comparable redress. It thus tackles the injustices
of apartheid most directly. By the cut-off date in March 1999, 67,531 claims by groups and
individuals had been lodged, of which about 80 percent are urban. A Land Tenure Reform
Program aims at providing people with secure tenure where they live, to prevent arbitrary
evictions and fulfill the constitutional requirement that all South Africans have access to legally
secure tenure in land. Also, the Land Reform (Labor Tenants) Act, 1996 (Act No.3 of 1996)
provides for the protection of the rights of labor tenants and gives them the right to claim land.
The Interim Protection of Informal Land Rights Act, 1996 (Act No.31 of 1996) was passed as an
interim measure to protect people in the former ―homelands‖ against abuses of their land rights
by corrupt chiefs, administrative measures or property developers who fail to consult the
occupiers of affected land, while a new more comprehensive law was being prepared. Finally,
the Extension of Security of Tenure Act (ESTA) of 1997 aims to protect people who live on land
with the consent of the owner or person in charge against unfair eviction and to create long term
tenure security through on-or-off-site settlement assisted by a government grant and the
landowner.
91
TABLE 1
Summary of relevant South Africa laws affecting land acquisition and resettlement
Laws
Legal Issues
or Field
Covered
Short Description
National Environmental Management Act, 1998
(Act 107 of 1998) (as
amended)
Environ-mental
protection
To provide for co-operative environmental governance by establishing principles for decision-making on matters affecting the environment,
institutions that will promote co-operative governance and procedures for
coordinating environmental functions exercised by organs of state including
EIA Regulations, 2006 (GN No. 385, 386 and 387 of 21 April 2006).
Expropriation Act 63 of 1975
Land
Where ESKOM wishes to incorporate (purchase) privately owned land, the act makes provision for this, where the owner has agreed. In the event of no
agreement, the act makes provision for expropriation by the Minister of
Public Works. The Expropriation Act contains provisions consistent with the
features of OP 4.12.
The Constitution 108 of 1996
Land, Labor and
Livelihoods
―No one may be deprived of property except in terms of law of general application, and no law may permit arbitrary deprivation of property.‖
Chapter 2, the Bill of Rights, proclaims a range of socio-economic rights in
sections 24 to 29, specifically in regard to environment (section 24); housing
(section 26), health care, food, water and social security (section 27), children
(section 28), and education (section 29).
Restitution of Land Rights Act 22 of 1994
Labor
This Act provides for the restitution of rights to land in respect of which persons or communities were dispossessed under, or for the purposes of
furthering the object of, racially based discriminatory legislation.
Extension of Security of Tenure Act 62 of 1997
Land and Labor
The Act provides for measures with state assistance to facilitate long-term security of land tenure; regulates the conditions of residence on certain land;
and the conditions by, and circumstances in, which the right of persons
residing on land may be terminated and under what conditions and in what
circumstances they may be evicted.
Labor Relations Act of 1995
Labor
The Act provides the legal framework for labor law, especially when it comes to termination of service, transfer of staff from one legal person to
another and what is considered to be fair labor practices. Section 189 and
189A of this Act apply when an employer contemplates dismissing one or
more employees for reasons based on the employer‘s operational
requirements.
Labor Tenants Act 30 of 1996
Land and Labor
This Act provides for the protection of the security of tenure of labor tenants and those persons occupying or using land as a result of their association
with labor tenants. It also provides for the acquisition of land and rights to
land by labor tenants.
Interim Protection of Informal Land Rights
Act 31 of 1996 Land
The objective is to provide for protection of people who have occupied land on an established, undisputed basis, since 1992, but nevertheless do not have
legal or formal rights because of the legacy of racial laws.
Prevention of Illegal
Eviction From and Unlawful Occupation of
Land Act 19 of 1998
Land and Labor
This Act provides for the prohibition on unlawful evictions and lays down procedures for eviction of unlawful occupiers.
92
ANNEX 3
EQUIVALENCE MATRIX PER OP 4.00 TABLE A11
Bank Policy (OP 4.00)
Requirements
(Objective and Operational
Principles)
Government of South Africa’s Equivalent Requirements Differences
between OP
4.00 and South
Africa’s
requirements
Improvements needed
to address the
differences before
implementing the
project activities Objectives and Operational Principles as stated in the relevant
laws, rules, regulations, procedures, and policies2
References to the relevant sections of the laws, rules,
regulations, procedures, and policies
ENVIRONMENTAL ASSESSMENT
Objective: To help ensure the environmental and social soundness and sustainability of investment projects. To
support integration of environmental and social aspects of projects into the decision- making process.
The Constitution and various acts, including the National Environmental Management Act (NEMA) provides for the Government to (i) protect ecological processes, natural systems and preservation of biotic diversity in the natural environment, (ii) promote sustainable use of species and
ecosystems and effective application and reuse of natural resources, (iii) protect the environment against disturbance, deterioration, defacement, poisoning, pollution or destruction as a result of man-made structures, installations, processes, products or human activities, (iv) establish and maintain acceptable human living environments in accordance with the environmental values and environmental needs of communities, and (v) apply
appropriate environmental management tools in order to ensure the integrated environmental management of activities‖. EIA is one of the tools that the NEMA promotes.
Section 24 of the South African 1996 contains mandatory, clear, applicable provisions on environmental protection and sustainable development.
Under the Constitution, NEMA has: (i) a
comprehensive Chapter 1 on ―National Environmental Management principles‖ which mandates all stakeholders to ensure the environmental, social and economic soundness of development activities (See Sections 2.3 and 2.4 on definition of sustainability and sustainable development), and (ii) a Chapter 5 on ―integrated Environmental Management.‖
None None
Operational Principles:
1. Use a screening process for each proposed project, as early as possible, to determine the appropriate
extent and type of environmental assessment (EA) so that appropriate studies are undertaken proportional to potential risks and to direct, and, as relevant, indirect, cumulative, and associated
impacts. Use sectoral or regional environmental assessment when
Screening is mandatory for all development projects.
DEAT has issued lists of activities to guide and frame the screening process.
The first list relates to activities that ―may not commence without environmental authorization from the competent
authority and in respect of which the investigation, assessment and communication of potential impact of activities must be subject to full scoping and EIA processes.‖
The second list relates to activities that will be subject to ―Basic Assessment‖ described in detail in the 2006 EIA Regulations.
Once a project falls under the list of prescribed projects,
project proponents are responsible to submit an application to the relevant authority.
NEMA as amended to date (Sections 23 and 24; and 2006 Regulations in terms of Chapter 5 of the NEMA (2006 EIA Regulations hereinafter).
2006 Notices (lists) related to Activities identified in terms of Section 24(2)(a) and (d) of the Act
(NEMA), which may not commence without an environmental authorization from the Competent Authority and in respect of which the investigation, assessment and communication of potential impact of activities must follow the procedure as described in Sections 22 to 26 of the 2006 EIA Regulations, and Sections 27 to 36 of the 2006 EIA Regulations.
Sectoral and Provincial environmental plans are
referred to in Chapter 3 of NEMA, Sections 11 through 16.
Concerning EMFs, the NEMA, as amended to date,
None None
1 Prepared during the preparation of the Eskom Investment Support Project. 2 See Attachment to this Annex.
93
Bank Policy (OP 4.00)
Requirements
(Objective and Operational
Principles)
Government of South Africa’s Equivalent Requirements Differences
between OP
4.00 and South
Africa’s
requirements
Improvements needed
to address the
differences before
implementing the
project activities Objectives and Operational Principles as stated in the relevant
laws, rules, regulations, procedures, and policies2
References to the relevant sections of the laws, rules,
regulations, procedures, and policies
appropriate. Projects on the first prescribed list will require a plan of study for scoping acceptable to the relevant authority.
A scoping study prepared by the project proponent is to be submitted for review by the relevant authority. Once the
scoping study report is approved, the proponent begins the preparation of an Environmental Impact Report (EIR) as mandated by NEMA and applicable regulations.
Requirements of Regional and Sectoral Environmental Management Plans (EMPs) and Provincial Management Plans (PMPs) are described in NEMA and are meant to ―coordinate, harmonize the environmental policies, plans programs and decisions of the various national departments
that exercise functions that may affect the environment or are entrusted with powers and duties aimed at the achievement, promotion, and protection of a sustainable environment, and of provincial and local spheres of government in order to ―…secure protection of the environment across the country … prevent unreasonable actions by provinces in respect of the environment…‖. These EMPs and PMPs, accompanied by Environmental
Implementation Plans (EIPs) are prepared by relevant department and all provinces and regularly updated every four years.
mandates the Minister and/or the province‘s authorities to ―compile information and maps that specify the attributes of the environment in a particular geographical area, including the
sensitivity, interrelationship and significance of such attributes which must be taken into account by every competent authority‖ (Section 24.3) and no authorization shall be granted to any activity that is not consistent with such attributes.
2006 EIA Regulations, Chapter 8, Part 1, Sections 69 through 72 on EMFs.
2. Assess potential impacts of the proposed project on physical, biological, socio-economic and physical cultural resources,
including trans-boundary and global concerns, and potential impacts on human health and safety.
Under NEMA, in case of any activity that requires an authorization or permission by law and which may affect significantly the environment, the project proponent must assess and, evaluate the potential impacts on environment, socio-economic conditions and the cultural heritage, prior to
implementation.
―Basic Assessment‖ must be prepared by an EA Practitioner and must describe the ―manner in which the geographical, physical, biological, social, economic and cultural aspects of the environment may be affected by the proposed activity‖ and how the proponent intends to address all potential impacts.
For projects subject to scoping and environmental impact
assessment, a more thorough description of the proposed project, its siting and its potential impacts, are required in the Scoping Report (SR) that must be approved by the relevant authority before a comprehensive and thorough EIR
NEMA, Section 24 (i).
Regulation for projects subject to Basic Assessment (Section 23 (h)) mandates the EAR to provide a description and assessment of ―the significance of any environmental impacts, including cumulative
impacts that may occur as a result of the undertaking of the activity or identified alternatives…‖
Sections 22 through 26 of the 2006 EIA Regulations describe the Basic Assessment Report (BAR).
Sections 27 through 38 of 2006 EIA Regulations govern the preparation, content and adoption of
scoping and EIA reports.
Cumulative impacts must be identified: 2006 EIA Regulations:
None None
94
Bank Policy (OP 4.00)
Requirements
(Objective and Operational
Principles)
Government of South Africa’s Equivalent Requirements Differences
between OP
4.00 and South
Africa’s
requirements
Improvements needed
to address the
differences before
implementing the
project activities Objectives and Operational Principles as stated in the relevant
laws, rules, regulations, procedures, and policies2
References to the relevant sections of the laws, rules,
regulations, procedures, and policies
is prepared.
Trans-boundary and global concerns are explicitly referred to in NEMA but not in the 2006 EIA Regulations.
Sections 23. 2 (h) for a BAR; Section 29 (1) (f) for a SR; and Section 32 (2) (k) (i) for an EIR.
Section 2 (b) (n) and Sections 23 (6) and 50 of NEMA refer to global and international
responsibilities related to the environment and activities that ―will affect the interest of more than one province or traverse international boundaries‖
3. Assess the adequacy of the applicable legal and institutional framework, including applicable international
environmental agreements, and confirm that they provide that the cooperating government does not finance project activities that would contravene such international obligations.
South Africa‗s Constitution provides for the implementation of international conventions and international customary law in the country. NEMA has a full Chapter on compliance with all international commitments of the Republic of South Africa and the 2006 EIA Regulations mention the obligation
of any applicant to take into account the provisions of all international commitments made by South Africa under environmental agreements.
The applicant must identify and describe all legislation and guidelines that have been considered in the preparation of the BAR.
Constitution, Chapter 14 Sections 231-232-233.
NEMA, 1998 as amended to date refers to compliance with international law in various sections including: Section 24.3 (c) and (d) and 24.4, 24.5, 25, 26 and 27
NEMA Biodiversity Act 2005, Sections 5, 45 and 51 refer to application of relevant International Agreements binding on the Republic.
The 2006 EIA Regulations: Section 23 (2) (e), and 27 (f) refer to identification of all applicable legislation, including applicable international conventions ratified by South Africa in the BAR or SR.
None None
4. Provide for assessment of feasible investment, technical, and siting alternatives, including the ―no action‖ alternative, potential impacts, feasibility of mitigating
these impacts, their capital and recurrent costs, their suitability under local conditions, and the institutional, training and monitoring requirements associated with them.
NEMA provides for ―the investigation of the potential impact of the activity and its alternatives on the environment…‖ The Regulations provide a long list of items that must be addressed in the report including: ―a description of the proposed method of identifying the environmental issues and alternatives.‖ It is also a rule that the authority may accept the SR and decide that ―the
information contained in the scoping report should be supplemented by an environmental impact assessment which focuses on the identified alternatives and environmental issues identified in the scoping report.‖
As for the EIR, it is mandated to provide ―a description of the feasible alternatives identified during scoping that may be further investigated.‖
There is reference to the ―cumulative impacts‖ and ―no action alternative‖ in NEMA and the 2006 EIA Regulations
which refer to the obligation of the EIA expert to prepare a scoping report with consideration given to ―all alternatives identified.‖ Finally it is mandated that the EIR provide ―a
NEMA, 1998 as amended to date, Section 24.7 (b), (c) and (d) and 2006 EIA Regulations.
Section 8.5, when considering applications for an activity, authorities expect the proponent to include reference to ―any feasible and reasonable alternatives to the activity….and any feasible and reasonable modifications and changes to the
activity that may minimize harm to the environment.‖
Section 23.2 (g), on consideration of ―identification of alternatives to the proposed activity….including advantages and disadvantages that the proposed activity or alternatives will have on the environment and on the community that may be affected by the activity‖ in the BAR.
Section 29.1 (b) on description of the ―proposed
activity and of any feasible and reasonable alternatives that have been identified‖ and 29. 1 (i) (iii) description of ―the proposed method of
None None
95
Bank Policy (OP 4.00)
Requirements
(Objective and Operational
Principles)
Government of South Africa’s Equivalent Requirements Differences
between OP
4.00 and South
Africa’s
requirements
Improvements needed
to address the
differences before
implementing the
project activities Objectives and Operational Principles as stated in the relevant
laws, rules, regulations, procedures, and policies2
References to the relevant sections of the laws, rules,
regulations, procedures, and policies
description of each alternative.‖. ―a comparative assessment of all alternatives…‖…‖including the option of not proceeding with the activity.‖
assessing the environmental issues and alternatives, including the option of not proceeding with the activity‖ in the SR.
Section 32.2 (f) and (h) require assessment of
advantages and disadvantages that the proposed activity or alternatives will have on the environment and on the community – a comparative assessment of all alternatives identified during the EIA process.
5. Where applicable to the type of project being supported, normally apply
the Pollution Prevention and Abatement Handbook (PPAH). Justify deviations when alternatives to measures set forth in the PPAH are selected.
South Africa is not equipped with an instrument comparable to the PPAH. However, the definition of principles of sustainability under NEMA contains many of the principles
used in the PPAH to define clear and precise quality and emission standards used in various economic sectors of activities.
In addition, NEMA provides for the preparation of EMPs by all the departments in charge of any portion of the environment. These EMPs must define: ―the environmental norms and standards, including norms and standards contemplated in Section 146.2 (b) (i) of the Constitution.‖
NEMA, Section 2.4 and Section 11.2.
NEMA considers as a basic principle the principle of ―best practicable environmental option,‖ which
is defined as providing the ―most benefit or causes the least damage to the environment as a whole, at a cost acceptable to the society, in the long run as well as the short run.‖
None None
Medupi has been designed and
engineered to be ―FGD-ready‖ so that FGD can be installed when and if necessary in order to comply with applicable ambient air quality and emissions
regulations.
For Kusile: the ROD requires that the FGD system be fully operational at
commissioning. Accordingly, Kusile will comply from the outset with proposed South African emissions standards and with good international practices
for as recommended in the Bank‘s 2008 EHSG for Thermal Power Plants.
6. Prevent and, where not possible to prevent, at least minimize, or compensate
NEMA states clearly that ―disturbances of ecosystems and loss of biological diversity are avoided or where they cannot be altogether avoided, are minimized and remedied.‖ Also,
NEMA, Section 2.4 (a) (i) through (viii), Section 2.4 (b) (i) and (p) on mitigation measures and costs; and Section 24.7 (f) on formulation of arrangements
Cost estimate is not required as part of an EIA
None, Eskom‘s practice is to consider costs in identifying
96
Bank Policy (OP 4.00)
Requirements
(Objective and Operational
Principles)
Government of South Africa’s Equivalent Requirements Differences
between OP
4.00 and South
Africa’s
requirements
Improvements needed
to address the
differences before
implementing the
project activities Objectives and Operational Principles as stated in the relevant
laws, rules, regulations, procedures, and policies2
References to the relevant sections of the laws, rules,
regulations, procedures, and policies
for adverse project impacts and enhance positive impacts through environmental
management and planning that includes the proposed mitigation measures, monitoring, institutional capacity development and training measures, an implementation schedule, and cost estimates.
NEMA mentions that if disturbance of site and landscapes that constitute the nation‘s cultural heritage cannot be avoided, it must be mitigated, minimized and remedied.
Applicable regulations mandate the project proponent to
submit an EIR, which must include: (i) the extent and significance of each identified environmental impact, and (ii) the possibility for mitigation of each identified impact. Prior to granting any authorization, the competent authority must assess the ―ability of the applicant to implement mitigation measures and to comply with any conditions subject to which the application may be granted.‖
The Record of Decision (ROD) related to any EIR includes
a description of the measures to mitigate, control or manage environmental impacts or to rehabilitate the environment.
for the monitoring and management of impacts, and the assessment of effectiveness of such arrangements after their implementation.‖
2006 EIA Regulations
- Section 8 (b)
- Section 23. 2 (h), (i), (j) and (k) for BAR
- Section 27 (f) and (g) and 29. 1 (i) for SR, and
- Section 32. 2 (j) and (k) and 34 (b) for the EIR and related EMP.
Section 35 of the EIA Regulation 385, April 2006 requires that a draft EMP is developed with the EIR. Once a ROD is issued, and presuming it
permits the development to go ahead, the EMP is updated to incorporate any new conditions from the ROD.
report and the EMP.
mitigation measures in the EIR, and especially in preparing the EMP for DEA
review and approval.
7. Involve stakeholders, including project-affected groups and local nongovernmental organizations, as early as
possible, in the preparation process and ensure that their views and concerns are made known to decision makers and taken into account. Continue consultations throughout project implementation as
necessary to address EA-related issues that affect them.
NEMA has many provisions related to the consultation of stakeholders and public participation in decision-making processes. Consultation of stakeholders (―Interested and Affected Parties,‖ or I&AP, in the NEMA) is mandatory for Basic Assessment, Scoping and EIA processes, including
during implementation of mitigation measures and EMPs.
The independent expert in charge of preparing the EIR must have ―the ability to manage the public participation process‖ and is ―responsible for the public participation process to ensure that all I&APs, including government departments that may have jurisdiction over any aspect of the activity, are given the opportunity to participate in all the relevant procedures contemplated in these Regulations.
I&APs may obtain information, including copies of EIRs and EMPs and copies of the decisions of the relevant authorities whether at national and/or local level. The Scoping Report must provide an appendix ―containing a description of the public participation process followed, including a list of I&APs and their comments.‖
Finally, it is important to note that the EIR and all related documents and appendices become public documents under
the Promotion of Access to Information Act 2000.
General principle of public consultation in NEMA Section 2.4 (f) and (k), Section 23.2 (d) and Section 24.7 (d).
2006 EIA Regulations: Chapter 6 ―Public Participation Processes‖ including Sections 56
through 59 and more specifically:
1. For BAR: Section 22 (a) on conducting a public participation process; Section 22 (c) on opening and maintaining a registry of all I&APs in respect of an application; Section 22 (d) on documenting the public participation process conducted including objections received from I&APs; and Section 23 (2) (f) on description of the public participation and
consultation process undertaken during the preparation of a BAR.
2. For scoping process and preparation of an SR, similar requirements are described in Section 28 (a); Section 28 (c); Section 28 (d); and Section 29 (1) (h).
3. For EIR: Section 32. 2 (e) and the 2000 Access to the Information Act describe these requirements.
None None
97
Bank Policy (OP 4.00)
Requirements
(Objective and Operational
Principles)
Government of South Africa’s Equivalent Requirements Differences
between OP
4.00 and South
Africa’s
requirements
Improvements needed
to address the
differences before
implementing the
project activities Objectives and Operational Principles as stated in the relevant
laws, rules, regulations, procedures, and policies2
References to the relevant sections of the laws, rules,
regulations, procedures, and policies
8. Use independent expertise in the preparation of EA where appropriate. Use independent advisory
panels during preparation and implementation of projects that are highly risky or contentious or that involve serious and multi-dimensional environmental and/or social concerns.
The EIA Regulations clearly impose on the project proponent to contract an independent expert to prepare the SR and EIR, and later for supervision of the implementation of mitigation measures and EMPs as appropriate. They are
defined and referred to as ―Environmental Assessment Practitioners‖ under NEMA.
NEMA provides for independent review of all phases of the investigation and assessment of impacts.
DEA implements a systematic review process under very strict review guidelines established to ensure consistency in review and to clarify the role of reviewers throughout the process.
NEMA as amended to date:
Section 1 (d) and Section 24.7 (d) refer to ―independent review and conflict resolution‖; and Section 17 and 18 mention that ―Environmental
Assessment Practitioners‖ must be independent.
Section 24 (I) states that relevant authority may ―appoint an external specialist reviewer and may recover cost from the applicant, in instances where: (a) the technical knowledge required to review any aspect of an assessment is not readily available within the competent authority; or
(b) a high level of objectivity is required which is
not apparent in the document submitted, in order to ascertain whether the information is adequate for decision making or whether it requires amendment.‖
Not a significant difference.
None
9. Provide measures to link the environmental assessment process and findings with studies of
economic, financial, institutional, social and technical analyses of a proposed project.
NEMA provides for linkages between environmental management in general and people‘s economic, social, cultural, and health needs.
The EIR is linked to the underlying factors (economic,
technical and social) which characterize the proposed project.
NEMA: Section 2(2), (3) and (4) provides for the general link between environmental management and the overall economic and social development; and Section 24 provides for direct linkages between
the environmental impact assessment and socio-economic and cultural conditions.
The 2006 EIA Regulations provide for additional and specialized studies that may be needed and are defined in the SR (Section 29.1 (d) and (i)).
None None
10. Provide for application of the principles in this
Table to subprojects under investment and financial intermediary activities.
NEMA and 2006 EIA Regulations are mandatory requirements for all subprojects.
The 2006 EIA Regulations recognize also the possibility for an applicant to apply for various similar projects in the same or different geographical areas and provides for ―combination of applications‖ subject to consideration that environmental impacts of each activity must be assessed in terms of the location where the activity is to be undertaken.
NEMA, Chapter 5 on ―Integrated Environmental Management.‖
2006 EIA Regulations, Section 15.
None None
11. Disclose draft EA in a timely manner, before
appraisal formally begins, in an accessible place and in a form and language understandable to key
Disclosure is dealt with across all the segments of environmental management and conservation processes in
South Africa. It is part of the general principles that form the ground of environmental law in South Africa.
Notice is given to stakeholders about any project subject to environmental impact assessment. Draft report is disclosed
NEMA as amended to date: Section 3.4 (f) and (k) on participation of all I&APs which assumes
appropriate information is disclosed to them to ensure transparency and fairness in environmental decision-making processes.
The 2006 EIA Regulations state that I&APs must
None None
98
Bank Policy (OP 4.00)
Requirements
(Objective and Operational
Principles)
Government of South Africa’s Equivalent Requirements Differences
between OP
4.00 and South
Africa’s
requirements
Improvements needed
to address the
differences before
implementing the
project activities Objectives and Operational Principles as stated in the relevant
laws, rules, regulations, procedures, and policies2
References to the relevant sections of the laws, rules,
regulations, procedures, and policies
stakeholders. and stakeholders are informed through newspapers (local and/or national) and radio.
Information to be disclosed for the purpose of the consultation process is described in the 2006 EIA
Regulations.
In addition, all stakeholders registered during the consultation process have access to final documentation and Record of Decision.
South Africa adopted a comprehensive Act on Promotion of Access to Information in 2000.
be given opportunity to discuss draft BAR (Section 22. f), SR (Section 28.g), draft EIR (Section 32.1) and EIR (Section 32.2.e). Special Reports prepared to complement the EIA are also subject to public
disclosure and discussion by I&APs (Section 33.2. (h) and (i)).
Also Chapter 6 of the 2006 EIA Regulations on ―Public participation process‖ governs disclosure-related issues.
Section 31 of NEMA on ―access to environmental information and protection of whistleblowers‖ and Promotion of Access to Information Act, 2000.
PHYSICAL CULTURAL RESOURCES
Objective: To assist in preserving physical cultural resources (PCR) and avoiding their destruction or damage. PCR includes
archaeological, paleontological, historical, and sacred sites, including graveyards, burial sites, and unique natural values.
South Africa‘s environmental law recognizes the significance of human processes in the phenomenon of an integrated environment. A vital component of the human process includes cultural heritage, which broadly consists of the intellectual, artistic, social and historical record of the human species that constitutes the common cultural
patrimony of the human race.
The National Heritage Resources Act 25 of 1999 (hereafter the NHRA) aims to create an integrated framework for the protection of cultural heritage with regard to the management and development thereof, as well as participation in and access to heritage resources. And, in practice the South African Heritage Resource Agency (SAHRA) and South African specialists and practitioners are using best international practices including but not
limited to the Australian Burra Charter as a guide to developing strategies for understanding the problem of heritage assessment, managing resource assessment and developing policies with regard to the assessment.
Constitution of the Republic of South Africa, 1996 Section 24 (Environment) and Section 31 (Cultural, Religious and Linguistic Communities).
South Africa ratified the 1972 Convention Concerning the Protection of the World Cultural and Natural Heritage on June 10, 1997.
NEMA defines ―Environment‖ as inter alia ―the physical, chemical, aesthetic and cultural properties and conditions that influence human health and well-being‖ (Section 1) and provides for an assessment of impact of development activities on ―cultural heritage‖ (Section 24.1 c).
Finally the Kwazulu-Natal Heritage Act, Act 10 of 1997 applies specifically to the proposed project and provides rules and procedures for dealing with
cultural heritage and archeological properties.
None None
Operational Principles:
1. Analyze feasible project alternatives to prevent or
minimize or compensate for adverse impacts and enhance positive impacts on PCR, through site
General objective of integrated environmental management entails the identification, prediction and evaluation of the actual and potential impact of development on inter alia
cultural heritage.
NEMA accordingly acknowledges the importance of Heritage Impact Assessment in the EIA process.
Provincial legislation confirms these rules and mandates
NEMA Section 23 (2)(b).
Kwazulu-Natal Act 10 of 1997 provides incentives for the protection of cultural heritage, including
prohibition of any demolition of ―heritage landmarks.‖
None None
99
Bank Policy (OP 4.00)
Requirements
(Objective and Operational
Principles)
Government of South Africa’s Equivalent Requirements Differences
between OP
4.00 and South
Africa’s
requirements
Improvements needed
to address the
differences before
implementing the
project activities Objectives and Operational Principles as stated in the relevant
laws, rules, regulations, procedures, and policies2
References to the relevant sections of the laws, rules,
regulations, procedures, and policies
selection and design. proponents to take measures to avoid impacts on cultural heritage
2. If possible, avoid
financing projects that significantly damage PCR. As appropriate, conduct field based surveys using qualified specialists to evaluate PCR.
South Africa‘s legal framework for cultural heritage
conservation and protection prohibit any investment that may damage a physical cultural resource.
Current practice under the NHRA implemented by the South African heritage resource practitioners includes: (i) an assessment to identify the heritage resource found; (ii) information pertaining to the significance of the resources; and (iii) a statement of significance. Finally, obligations arising from the significance must then be identified, information that may affect the future of the resource must
be gathered, a policy must be developed and a statement of policy must be formulated. In the last instance the process requires strategies to be developed which must be implemented through a management plan. The process will be concluded with monitoring and review of the assessment.3
SAHRA must be involved to assess any discovery and survey the site under environmental assessment or
considered for a project and may issue a prohibition to further develop the site or mandate mitigation and conservation measures to be taken by developers.
Section 2(viii) of the NHRA defines development
as: ―any physical intervention, excavation, or action other than those caused by natural forces, which may in the opinion of a heritage authority in any way result in a change to the nature, appearance or physical nature of a place, or influence its stability and future well-being.‖
Same process is provided for under the Kwazulu-Natal Heritage Act (Section 8, 17.e, 19.2, 20.2…)
and Section 27.1 provides a list of activities that must be notified by applicants to the Cultural Heritage Council which will approve the selection of a specialist to assess the proposed activity and its potential impacts on its areas and prepare a plan for dealing with cultural heritage resources.
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3. Consult local people in documenting the presence and significance of PCR, assessing the nature and
extent of potential impacts on these resources, and designing and implementing mitigation plans.
NHRA provides for community involvement, including owners of lands, who are consulted, with their comments taken into account in the final report regarding the impact of any proposed development on a cultural heritage property.
However, clearer indications are needed as to the extent of participation and obligations of communities, NGOs and community-based organizations in the process of cultural heritage assessment and conservation.
All applicable rules on consultation for EIA process and in addition:
NHRA, Section 35.a, 38.3.a.
Kwazulu-Natal Act, Section 17.3.d and 27.
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4. Provide for the use of ―chance find‖ procedures that include a pre-
approved management and conservation approach for
All project proponents must notify the responsible heritage resource authority and furnish it with details regarding the location, nature and extent of the proposed development. If
the heritage resource authority has reason to believe that heritage resources will be affected by such development, it
NHRA, Section 38.1.
The 2006 EIA Regulations, Sections 22 and 23.2. (h), (i), (j), and (k) for BAR; Section 29.1 (d), (g)
and (j) for SR, and Section 32.2 (d), (i), (j) and (p)
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3 This was the process followed during the implementation of the EIA process for the ―Cradle of Humankind‖ Project and agreed upon by DEAT and the Agency in charge
of physical cultural heritage.
100
Bank Policy (OP 4.00)
Requirements
(Objective and Operational
Principles)
Government of South Africa’s Equivalent Requirements Differences
between OP
4.00 and South
Africa’s
requirements
Improvements needed
to address the
differences before
implementing the
project activities Objectives and Operational Principles as stated in the relevant
laws, rules, regulations, procedures, and policies2
References to the relevant sections of the laws, rules,
regulations, procedures, and policies
materials that may be discovered during project implementation.
will require of the proponent to submit a heritage impact assessment report. Approval of the mitigation measures and management plan if required is made by the relevant cultural heritage administration.
The 2006 EIA Regulations provide for comprehensive survey of the proposed activity and its impacts on area of influence including on cultural heritage, which if applicable will require the applicant to discuss additional terms of reference for the cultural heritage aspects of the assessment and prepare a specific report.
for EIR.
5. Define and undertake measures for strengthening
institutional capacity to implement mitigation plans and to deal with impacts on PCR identified prior to and/or discovered during project implementation.
South Africa is equipped with adequate capacity to deal with cultural heritage resources at the central level. An
independent consultant who would be contracted to prepare the SR and the EIR is expected to be trained to deal with all applicable regulations including those on cultural heritage resources. Such consultants must have the skill, competence and qualification satisfactory to SAHRA.
NHRA, Section 38.2 (a).
2006 EIA Regulations.
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6. Disclose draft mitigation plans, in a timely manner, before appraisal formally begins, in an accessible place and in a form and language that are understandable to key stakeholders.
Disclosure is mandated as part of the EIA process. NEMA.
The 2006 EIA Regulations.
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101
Bank Policy (OP 4.00)
Requirements
(Objective and Operational
Principles)
Government of South Africa’s Equivalent Requirements Differences
between OP
4.00 and South
Africa’s
requirements
Improvements needed
to address the
differences before
implementing the
project activities Objectives and Operational Principles as stated in the relevant
laws, rules, regulations, procedures, and policies2
References to the relevant sections of the laws, rules,
regulations, procedures, and policies
NATURAL HABITATS
Objective:
To promote
environmentally sustainable development by supporting the protection, conservation, maintenance and rehabilitation of natural habitats and their functions.
South Africa has two main laws that fully confirm to the objective; these are the Protected Areas Act 57 of 2004 and
the Biodiversity Act 10 of 2004. Together they form a comprehensive legislation on establishment, protection and conservation and management of natural habitats, their biological diversity wealth and environmental functions. Key principles embedded in this legislation include: (i) development must not degrade the natural, built, social, economic, and governance resources on which it is based, (ii) current actions should not cause irreversible damage to natural and other resources, as this potentially prevents the
realization of future sustainable options, (iii) where there is uncertainty about the impact of activities on the environment, caution should be exercised in favor of the environment, (iv) land use and environmental planning need to be integrated.
South Africa has a National Biodiversity Strategy and Action Plan.
Constitution : Section 24.
NEMA Section 2 and Section 16 through 18 on
―Protection of Natural Environment.‖
NEMA-Biodiversity Act 2004, which provides for ―management and conservation of South Africa‘s biodiversity….the protection of species and ecosystems that warrant national protection, the sustainable use of indigenous biological resources….‖
NEMA-Protected Areas Act, 2003 as amended to date, which provides for ―the protection and
conservation of ecologically viable areas representative of South Africa‘s biological diversity and its natural landscapes and seascapes; ….for the management of those areas in accordance with norms and standards; [and] for …public consultation in matters concerning protected areas.‖
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Operational Principles:
1. Use a precautionary approach to natural resources management to ensure opportunities for environmentally sustainable development. Determine if project
benefits substantially outweigh potential environmental costs.
NEMA is aiming, among other objectives, at prohibiting or limiting those activities that will be identified as having a detrimental effect on the environment; legislation on protected areas and biodiversity is an important asset.
Under NEMA, the Minister of Environment may by Notice in the Gazette declare ―any area…as a limited development area‖ on which no development can be undertaken unless on the basis of a conditional authorization. Any development
project that may affect a protected area is subject to a full EIA to be reviewed and monitored by DEA at national level.
Finally, it should be mentioned that as a matter of principle, NEMA is grounded on a ―risk-averse and cautious approach which takes into account the limits of current knowledge about the consequences of decisions.‖ and therefore requires authorities to use the precautionary principle in all their decisions.
NEMA: Section 2.4.vii, Section 23 (1) and Section 27.
Chapter 4 Part I of NEMA, Protected Areas Act 2003 Regulations prohibits activities that may have a negative impact of conservation and protection of biological diversity of the protected areas, (Section 50-56).
Chapter 4, Part II of NEMA, Protected Areas Act,
Regulations lists Restricted Activities (Section 57).
Chapter 4 Part III of NEMA, Protected Areas, Regulations lists Prohibitions or Restrictions of Land Use in Protected Areas (Sections 58-60).
The 2006 EIA Regulations provide for assessment of all activities that may impact a protected area and for assessment of such impacts.
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102
Bank Policy (OP 4.00)
Requirements
(Objective and Operational
Principles)
Government of South Africa’s Equivalent Requirements Differences
between OP
4.00 and South
Africa’s
requirements
Improvements needed
to address the
differences before
implementing the
project activities Objectives and Operational Principles as stated in the relevant
laws, rules, regulations, procedures, and policies2
References to the relevant sections of the laws, rules,
regulations, procedures, and policies
2. Avoid significant conversion or degradation of critical natural habitats, including those habitats
that are (a) legally protected, (b) officially proposed for protection, (c) identified by authoritative sources for their high conservation value, or (d) recognized as protected by traditional
communities.
NEMA states as an important principle of sustainable development of South Africa that ―sensitive, vulnerable, highly dynamic or stressed ecosystems, such as coastal shores, estuaries, wetlands and similar systems require
specific attention in management and planning procedures especially where they are subject to significant human resource usage and development pressure.‖
Based on this principle, the Minister in charge of environment and provincial government shall ―prepare compilation of information and maps that specify the attributes of the environment in particular geographical areas, including the sensitivity, extent, interrelationships and
significance of such attributes which must be taken into account by every organ of state charged by law with authorizing, permitting or otherwise allowing the implementation of a new activity, or with considering, assessing and evaluating an existing activity.‖
Currently, 6 percent of the land surface of South Africa is formally conserved through the system of national and provincial protected areas. The target is to expand this to 8
percent by 2010.4 To this end, DEAT has prepared with
relevant authorities and stakeholders a National Spatial
Biodiversity Assessment that takes into account important poverty alleviation and community development programs that have been initiated and which present opportunities to improve natural resources management and link biodiversity to social development.
NEMA, Section 2 and Section 24.2 (e).
Legally protected special nature reserve cannot be converted except ―by resolution of the National Assembly,‖ Protected Areas Act of 2003 as
amended, Section 19. However, the Act provides that an area or part of an area declared as ―protected environment‖ may be excluded or withdrawn from the protected area system by a Notice issued by the Minister of Environment or Provincial Government as the case may be.
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3. Where project adversely affects non-critical natural habitats, proceed only if
viable alternatives are not available, and if appropriate conservation and mitigation measures, including those required to maintain ecological services they provide, are in place. Include
The EIA process provides for a comprehensive assessment and evaluation of any proposed activity that may impact a protected area. In such case, it is the national authority
which will be responsible for reviewing the SR and EIR. Mitigation measures and/or a comprehensive environmental management plan will be required, implemented and monitored.
There is no provision to oblige the Government and/or proponent to ‖ establish and maintain an ecologically similar area.‖
NEMA as amended to date and the 2006 EIA Regulations.
NEMA, Protected Areas Act as amended.
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4 South Africa‘s National Biodiversity Strategy and Action Plan, 2005 (Draft disclosed by DEAT for public consultation and comments,
(www.deat.gov.za//PolLeg/Legislation/2004Jun7_2/Biodiversity%20Act-7%20June%202004.pdf).
103
Bank Policy (OP 4.00)
Requirements
(Objective and Operational
Principles)
Government of South Africa’s Equivalent Requirements Differences
between OP
4.00 and South
Africa’s
requirements
Improvements needed
to address the
differences before
implementing the
project activities Objectives and Operational Principles as stated in the relevant
laws, rules, regulations, procedures, and policies2
References to the relevant sections of the laws, rules,
regulations, procedures, and policies
mitigation measures that minimize habitat loss and establish and maintain an ecologically similar
protected area.
4. Whenever feasible, give preference to siting projects on lands already converted.
NEMA provides for the development of national and provincial environmental management frameworks and plans, including implementation plans and maps that provide for, among other issues, compliance with the national environmental management principles. The basic principle which these plan must comply with is to avoid disturbances to ecosystems and loss of biological diversity
and where they cannot be avoided they are minimized and or remedied.
NEMA 1997 as amended to date, Section 23.2 (b).
The 2006 EIA Regulations on alternatives to the proposed activity and more generally.
Chapter 1 on Principles of Environmental Management (Section 2 (r)) and Chapter on Procedures for Cooperative Governance which deals with implementation plans and management
plans.
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5. Consult key stakeholders, including local nongovernmental organizations and local communities, and involve
such people in design, implementation, monitoring and evaluation of projects, including mitigation planning.
Consultation of stakeholders is a key requirement during the environmental assessment process which is mandatory for all activities that may impact a protected area. The NEMA, Biodiversity Act also provide for public consultation including affected and local communities for all issues
pertaining to biodiversity conservation.
NEMA, Protected Areas Act has a Part on ―Consultation process‖, including ―Public Participation‖ and consultation of affected organs of state, communities and beneficiaries. Any draft act, regulation, or activity that relates to protected areas must be disclosed and opened to public consultation. Disclosure is ensured through publication in newspapers, including local newspapers, to ensure participation of local
communities.
Also Parks Boards are mandated to involve local communities in protected areas management, including preparation of management plans, and in developing as appropriate co-management of protected areas frameworks.
NEMA and 2006 EIA Regulations.
NEMA, Protected Areas, 2003 as amended to date, Part 5 Sections 31 through 34
NEMA, Biodiversity Act, 2004, Section 63 on consultation related to specific issues dealing with
threats to and biodiversity conservation issues, and Sections 99-100 which govern the consultation process.
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6. Provide for the use of appropriate expertise for the design and
implementation of mitigation and monitoring plans.
NEMA provides the general principle that EIAs and EMPs, including specialist reports are prepared and developed by specialists approved by the authorities.
Review and monitoring is done under the supervision of monitoring specialists that the applicant contracts as part of the EMP, and the authorities have the ability to contract independent experts to monitor implementation and look at
NEMA and 2006 EIA Regulations.
NEMA Protected Areas, Sections 38 through 44.
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104
Bank Policy (OP 4.00)
Requirements
(Objective and Operational
Principles)
Government of South Africa’s Equivalent Requirements Differences
between OP
4.00 and South
Africa’s
requirements
Improvements needed
to address the
differences before
implementing the
project activities Objectives and Operational Principles as stated in the relevant
laws, rules, regulations, procedures, and policies2
References to the relevant sections of the laws, rules,
regulations, procedures, and policies
more specific issues.
7. Disclose draft mitigation plan in a timely manner, before appraisal formally begins, in an accessible
place and in a form and language understandable to key stakeholders.
Disclosure is provided for under NEMA. It is provided for the publication of notices and relevant documents concerning EIR and EMPs in local journals to make them accessible to local communities. There is no reference to
language in laws and regulations, but all documents related to environmental issues are disseminated in Afrikaans and English.
NEMA and the 2006 EIA Regulations.
Section 2(f) and (k) which deal with public participation and disclosure.
Section 23.2 (d) and 24.7 (d) on ―public
information and participation, independent review and conflict resolution in all phases of the investigation and assessment of impacts.‖
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INVOLUNTARY RESETTLEMENT
Objective: To avoid or minimize involuntary resettlement and, where this is not feasible, to assist displaced persons in
improving or at least restoring their livelihoods and standards of living in real terms relative to pre-displacement levels or to levels prevailing prior to the beginning of project implementation, whichever
is higher.
a) Because of the history of South Africa, resettlement is an issue that is central to national consensus building and sustainability. The Constitution and numerous laws and regulations govern land ownership, land tenure rights, land use and protect rights of owners, users and tenants. A Land
Claim Court has been established for that purpose.
b) Expropriation can occur only after the need for ―public purpose,‖ ―public use‖ or ―public interest‖ is demonstrated in a legal process and compensation is made. Therefore, the need to minimize involuntary resettlement is explicit.
c) Compensation is paid taking into account a wide range of criteria including but not limited to market value and ―prejudice‖ (damages actually suffered and lost benefits,
such as loss of income. relocation costs, etc). Assumed to enable affected people to maintain the value of their assets and restore their livelihoods and standards of living.
d) The expropriation of land for conservation purpose is treated under NEMA as to be made for ―public purpose or in the public interest‖ and therefore subject to the Expropriation Act 63 of 1975, however, the amount of compensation and manner of payment are made under the
Constitutional rules and due process of law, including mandatory hearing of any land owner before any land taking.
e) Finally, it should be mentioned that the Expropriation Act 63 of 1975 is being reviewed in order to ―assure that the Nation‘s commitment to land reform and to bring about equitable access to all South Africa‘s natural resources can be fulfilled in an effective, fair and democratic manner,…‖
Constitution, Section 25.1 ‖no one may be deprived of property except in terms of law of general application and no law may permit arbitrary deprivation of property.‖
25.2 Property may be expropriated only in terms of
law of general application: (a) for a public purpose or in the public interest; and (b) subject to compensation, the amount of which and the time and manner of payment of which have either been agreed to by those affected or decided and approved by a court.‖
25.3 The amount of compensation and the timing and manner of payment must be just and equitable,
reflecting an equitable balance between the public interest and the interest of those affected having regard to all the relevant circumstances, including: (a) the current use of the property, (b) the history of the acquisition and use of the property, the market value of the property….‖
Extension of Security of Tenure Act (ESTA) Act 28 of 1997: the Act governs the procedures which
must be used to resettle poor people occupying rural land. It applies to those people who have an explicit or implicit permission to live on rural land belonging to a third party. The Act: (i) limits the circumstances under which involuntary resettlement can take place, (ii) requires that ―suitable alternative accommodation‖ is provided to those evicted, ―suitable accommodation‖ cannot be ―less
favorable than the current accommodation‖ of the
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105
Bank Policy (OP 4.00)
Requirements
(Objective and Operational
Principles)
Government of South Africa’s Equivalent Requirements Differences
between OP
4.00 and South
Africa’s
requirements
Improvements needed
to address the
differences before
implementing the
project activities Objectives and Operational Principles as stated in the relevant
laws, rules, regulations, procedures, and policies2
References to the relevant sections of the laws, rules,
regulations, procedures, and policies
to ensure that ―expropriation does not take place arbitrarily and takes place only for public purposes and in the public interest‖ and that persons impacted by expropriation are ―treated on an equal and procedural fair basis‖ and ―entitled
to just and equitable compensation.‖
Rights of vulnerable category: people over 60, for example, will have lifetime security if they occupied the land for ten years and more.
Land Reform (Labor Tenants) Act 30 of 1996 applies to people who have occupied farm lands over generations who are paid for their labor; they are provided with strong protection through access to land. They are protected from
eviction and have the right to acquire the portion of land they occupy and use.
occupier; (iii) provides additional protection for long term occupiers, (iv) states that rights of occupiers survive change of ownership in land, and (v) provide government support for occupiers to
acquire rights to land in either ―on farm‖ or ―off-farm‖ settlements.
Interim Protection of Informal Land Rights Act 31 of 1996 provides for temporary protection of certain informal land rights pending the introduction of comprehensive tenure legislation. It applies to those who occupy land ―as if they were the owner.‖ This category of land occupiers cannot
be deprived of their informal rights except with their consent or through expropriation under Act 63 of 1975.
Prevention of Illegal Eviction from Unlawful Occupation of Land Act 19 of 1998. This Act sets out procedures for evictions of unlawful occupiers and states that ―eviction‖ is ordered only when it is ―just and equitable‖. If the occupier has been in
occupation for more than six month, provision of alternative accommodation is a factor to decide whether the eviction is just and equitable.
Operational Principles:
1. Assess all viable alternative project designs to avoid, where feasible, or minimize involuntary
resettlement.
An expropriation decision is issued by a relevant authority (national, for example, minister of public works and land affairs, provincial, or local, depending on the level of the authority that is investing), based on the assumption that ―public interest‖ and ―public use‖ are made after all
alternatives have been taken into account and that no other viable alternative could be implemented.
Expropriation Act (Act 63 of 1975), Extension of Security of Tenure Act (ESTA) 1997 including ESTA, 1997: Regulations N.1632 of 1998.
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2. Through census and socio-economic surveys of the affected population, identify, assess, and address the potential economic and social
impacts of the project that are caused by involuntary taking of land (e.g. relocation or loss of shelter, loss of assets or
a) The constitutional and legal framework mandates a survey of those affected by expropriation and the amount of their losses after the public purpose is declared.
b) Specialist Report may be mandated in case socio-economic impacts are important under a proposed activity.
c) In case resettlement is envisioned by the Scoping and
EIA Regulations, a ROD may be issued by DEA or the relevant local authority, but project cannot commence unless a land acquisition plan which includes consultation of affected people and compensation is prepared and agreed
Constitution, Section 25
NEMA provide for the general principle of prior assessment of impacts including socio-economic impacts (Section 24) for all development activity in order to promote integrated environmental management.
The 2006 EIA Regulations provide for comprehensive survey of the proposed activity and its impacts on area of influence, including socio-
Difference concerning rights to access to protected area‘s natural resources and
biodiversity, which are not clear.
The identified gap is not relevant for the proposed Project.
106
Bank Policy (OP 4.00)
Requirements
(Objective and Operational
Principles)
Government of South Africa’s Equivalent Requirements Differences
between OP
4.00 and South
Africa’s
requirements
Improvements needed
to address the
differences before
implementing the
project activities Objectives and Operational Principles as stated in the relevant
laws, rules, regulations, procedures, and policies2
References to the relevant sections of the laws, rules,
regulations, procedures, and policies
access to assets, loss of income sources or means of livelihood, whether or not the affected person
must move to another location) or involuntary restriction of access to legally designated parks and protected areas.
upon by the relevant authority. Ministry in charge of public works, land affairs or environment and tourism may be involved in the process depending on the purpose of the expropriation.
d) If land is expropriated for conservation purpose or more generally for environmental protection purpose, the Minister of Environment shall undertake the expropriation process and apply all laws and regulations thereon including Section 25 of the Constitution.
e) A more comprehensive protection is granted to land users including those without any title under the ESTA. If the activity triggers resettlement of these, compensation shall be
provided through a process managed by the Ministry of Land Affairs.
f) There is no clear language in South Africa‘s legislation about restriction of access to protected areas‘ natural resources by local communities. However, there are provisions that protect use of biological resources by local communities under NEMA, Protected Areas Act 2003 and NEMA, Biodiversity Act of 2005. Local communities
having ―rights, direct or indirect interest‖ shall be registered with the park authority to continue to enjoy their rights to and interests in the natural resources of the park. In addition, the National Biodiversity Strategy and Action Plan being prepared with stakeholders involvement states that ―it is critical that the value and importance of biodiversity to people‘s livelihood is recognized and biodiversity management (including conservation, access, use and rehabilitation) must be integrated with poverty alleviation
strategies and local economy development. Tenure reform and rights to access and use of biological resources need to be clarified to ensure equitable sharing of benefits.‖5
economic impacts.
ESTA.
NEMA, Protected Areas Act, Section 41-43
3. Identify and address impacts also if they result from other activities that are (a) directly and
significantly related to the proposed project, (b)
Legal expropriation and compensation requirements apply to all aspects of an investment.
Potential impacts of any proposed project including cumulative impacts and its alternatives are addressed under
the EIA for the proposed project (NEMA, Section 24. 7).
Constitution, Section 25.
Expropriation Law.
NEMA (Section 24).
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5 South Africa‘s National Biodiversity Strategy and Action Plan. DEAT 2005, p.22. See reference under footnote 4.
107
Bank Policy (OP 4.00)
Requirements
(Objective and Operational
Principles)
Government of South Africa’s Equivalent Requirements Differences
between OP
4.00 and South
Africa’s
requirements
Improvements needed
to address the
differences before
implementing the
project activities Objectives and Operational Principles as stated in the relevant
laws, rules, regulations, procedures, and policies2
References to the relevant sections of the laws, rules,
regulations, procedures, and policies
necessary to achieve its objectives, and (c) carried out or planned to be carried out
contemporaneously with the project.
4. Consult project-affected persons, host communities and local nongovernmental organizations, as appropriate. Provide them opportunities to participate
in the planning, implementation, and monitoring of the resettlement program, especially in the process of developing and implementing the procedures for determining
eligibility for compensation benefits and development assistance (as documented in a resettlement plan), and for establishing appropriate and accessible grievance mechanisms. Pay
particular attention to the needs of vulnerable groups among those displaced, especially those below the poverty line, the landless, the elderly, women and children, Indigenous Peoples, ethnic minorities,
or other displaced persons who may not be protected through national land compensation legislation.
Consultation is mandatory for all expropriation processes and includes discussion of the purpose of the expropriation, compensation and other rehabilitation and mitigation measures to be decided under the resettlement action plan and conflict resolution procedures provided for under the Constitution and numerous land-related laws and
regulations including NEMA.
Grievance mechanism is well developed in South Africa because of the sensitivity of all land-related issues. A Land Claims Court has been established and administrative recourse procedures are defined under each applicable land-related law.
Under NEMA, for the purpose of an EIR, all impacts including social impacts must be monitored and
arrangements for the monitoring must be embedded in the EMP for the project. The consultation of local communities and affected persons by a proposal to establish a protected area is mandated by the NEMA Protected Areas Act.
Constitution Section 25.
NEMA, Section 24.7 (d), (f) and (h).
ESTA Chapter VI, Section 35.
Section 3 of the Promotion of Administrative Justice Act, 2000 requires that administrative actions of the Minister, in terms of expropriation
and land taking, must be procedurally fair and parties must receive adequate notice and be able to make representations in regard to that administrative action.
NEMA, Protected Areas Act, Section 44 is important for access to natural resources of designated protected areas.
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5. Inform displaced persons of their rights,
It is an established Constitutional right to be heard about The 1975 Expropriation Act requires proper notification of expropriation to be served, provides
None None
108
Bank Policy (OP 4.00)
Requirements
(Objective and Operational
Principles)
Government of South Africa’s Equivalent Requirements Differences
between OP
4.00 and South
Africa’s
requirements
Improvements needed
to address the
differences before
implementing the
project activities Objectives and Operational Principles as stated in the relevant
laws, rules, regulations, procedures, and policies2
References to the relevant sections of the laws, rules,
regulations, procedures, and policies
consult them on options, and provide them with technically and economically feasible
resettlement alternatives and needed assistance, including (a) prompt compensation at full replacement cost for loss of assets attributable to the project; (b) if there is relocation, assistance
during relocation, and residual housing, or housing sites, or agricultural sites of equivalent potential, as required; (c) transitional support and development assistance, such as land
preparation, credit facilities, training or job opportunities as required, in addition to compensation measures; (d) cash compensation for land when the impact of land acquisition on livelihoods is minor; and
(e) provision of civic infrastructure and community services as required.
any expropriation.
Information prior to any taking of land, loss of assets or access to natural resources is common practice and
governed by numerous laws and regulations. It is a practice that EIA processes are announced in local media in at least two newspapers and other means. This practice is governed by the EIA Regulations under NEMA
Property can be expropriated subject to compensation, the amount of which and the time and manner of payment of which have either been agreed to by those affected or
decided and approved by a court. The amount of compensation and the timing and manner of payment must be just and equitable, reflecting an equitable balance between the public interest and the interest of those affected having regard to all the relevant circumstances, including: (a) the current use of the property, (b) the history of the acquisition and use of the property, the market value of the property, ….
Under additional legislation on land-related issues, resettled persons are entitled to additional rehabilitation assistance. People to be resettled under the ESTA must get ―a suitable alternative accommodation‖ which is defined as a ―safe and overall not less favorable than the occupier‘s previous situation, having regard to the residential accommodation and land for agricultural use available to them prior to eviction and suitable having regard to (a) the reasonable
needs and requirements of all of the occupiers in the household in question for residential accommodation, land and agricultural use, and services; (b) their joint earning abilities; and (c) the need to reside in proximity to opportunities for employment or other economic activities if they intend to be economically active‖
for the passing of ownership on the date of expropriation, and further provides inter alia for the requirements for possession of the property and for offers and determination of compensation.
Under the Constitution (see above) and under the Land Restitution Act as amended in 2003, Section 42(E)(3), the compensation and time and manner of payment for expropriations shall be determined by agreement and/or by the Land Claims Court.
Constitution, Section 25 and more specifically,
Section 25(5) which requires the State to take reasonable legislative and other measures within its available resources to foster conditions which enable citizens to gain access to land on an equitable basis. In other words the State is required to pass laws and conduct its administration to achieve these objectives
Section 3 of the Promotion of Administrative Justice Act, 2000 requires that administrative actions of the Minister, in terms of expropriation and land taking, must be procedurally fair and parties must receive adequate notice and be able to make representations in regard to that administrative action.
1975 Expropriation Act 63, and ESTA, Sections
1(1) xvii, Section 13 and 26.2 and 3
NEMA, Section 36.3
6. Give preference to land-based resettlement strategies for displaced
There is no clear statement on land-based resettlement preference in the Constitution and Acts. However, it is well established that the GoSA, because of its history and the
Constitution, Section 25.
Land Assistance Act.
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109
Bank Policy (OP 4.00)
Requirements
(Objective and Operational
Principles)
Government of South Africa’s Equivalent Requirements Differences
between OP
4.00 and South
Africa’s
requirements
Improvements needed
to address the
differences before
implementing the
project activities Objectives and Operational Principles as stated in the relevant
laws, rules, regulations, procedures, and policies2
References to the relevant sections of the laws, rules,
regulations, procedures, and policies
persons whose livelihoods are land-based.
importance of land issues, favors land-based resettlement for those who might be impacted by the taking of land for development purposes.
However, under the Land Assistance Act 126 of 1993,
assistance to those peoples who want to access to land through grant will be provided by the Government.
ESTA.
7. For those without formal legal rights to lands or claims to such land that could be recognized under the laws of the country, provide resettlement
assistance in lieu of compensation for land to help improve or at least restore their livelihoods.
Legislation provides for compensation of those enjoying land uses without and with formal rights. A process is defined to ensure that the no-eviction rule will protect those who enjoy a peaceful and legitimate use of land. Program concerning those people will (i) reach to secure their tenure, or (ii) provide them with compensation alternative without
disrupting their livelihoods.
ESTA Chapter III ―Rights and duties of occupiers and owners.‖
None None
8. Disclose draft resettlement plans, including documentation
of the consultation process, in a timely manner, before appraisal formally begins, in an accessible place and in a form and language that are understandable to key stakeholders.
Disclosure and consultation rules and procedures are the same as those used for the purpose of environmental assessment.
In the case of land taking, information should be provided to the land owner, user or tenant before any decision is made.
EIRs for the two proposed power generation plants have been disclosed by ESKOM and include Social Impact Assessment which discusses resettlement issues.
NEMA.
Regulations on EIA.
ESKOM does not disclose resettlement
and/or land acquisition plans.
Eskom will ensure (i) that any land taking and or resettlement
issue and instrument will be disclosed prior to the implementation of the project and (ii) compensation and rehabilitation schemes will be discussed with affected persons.
9. Apply the principles described in the involuntary resettlement section of this Table, as applicable and relevant, to subprojects requiring land acquisition.
The laws and procedures apply equally to all expropriation required for an investment. The Acts and Regulations do not distinguish between projects and sub-projects.
None None
10. Design, document, and disclose before appraisal of projects involving involuntary restriction of access to legally designated parks and
Protected areas are an important part of the territory of South Africa. Laws and regulations related to protected areas are numerous and consistent with good internationally recognized practices on conservation and sustainable development of the natural resources and biological diversity wealth of the country.
NEMA- 1998, Section 2 all principles being defined as applicable to protected areas.
NEMA-Protected Areas Act 2003:
- Chapter 3: Section 23 and Section 28
- Section 31 (Consultation) and Section 33 (Public
None. Not applicable as no legally protected areas or designated park is
None
110
Bank Policy (OP 4.00)
Requirements
(Objective and Operational
Principles)
Government of South Africa’s Equivalent Requirements Differences
between OP
4.00 and South
Africa’s
requirements
Improvements needed
to address the
differences before
implementing the
project activities Objectives and Operational Principles as stated in the relevant
laws, rules, regulations, procedures, and policies2
References to the relevant sections of the laws, rules,
regulations, procedures, and policies
protected areas, a participatory process for: (a) preparing and implementing project
components; (b) establishing eligibility criteria; (c) agreeing on mitigation measures that help improve or restore livelihoods in a manner that maintains the sustainability of the park
or protected area; (d) resolving conflicts; and (e) monitoring implementation.
Under NEMA-Protected Areas Act 2003, the competent authority shall declare a portion of the territory a protected area if such area: (i) has significant natural features or biodiversity, scientific, cultural, historical or archeological
value, or if it is in need of long-term protection for the maintenance of its biological diversity or for the provision of environmental goods and services; (ii) provides sustainable flow of natural products and services to meet the needs of local communities, (iii) enables the continuation of traditional consumptive uses as are sustainable…‖
Under NEMA-Biodiversity Act, 2004, it is clearly recognized that conservation and sustainable use are not
always incompatible and are recognized to benefit local and indigenous communities that may continue to enjoy the resources of a protected areas or where such use: (i) would not lead to long-term decline of such a resource, (ii) would not disrupt the ecological integrity of the ecosystem, and (iii) would ensure the continued use of the resources to meet the needs and aspirations of present and future generations.
Before any formal establishment of a protected area, a
Notice is served to land owners and occupiers and an ―intention notice‖ is disclosed to the public at large in the Government official gazette and local newspapers. A consultation process is undertaken including authorities at central, provincial and local levels, ―lawful occupier with right in land in any part of the area affected.‖
The authorities must: (i) allow any affected community or person whose rights might be affected to make representations and/or objections and (ii) give due
consideration to such representations and/or objections.
Management plans for protected areas must define conditions for community and affected peoples participation in the natural resources and biological diversity wealth of the area, provide for the zoning of the area and related authorized activities and development of economic opportunities within and in the buffer zone of the protected area.
Finally, South Africa‘s system allows protected areas‘ authorities to enter into agreements with communities and affected persons to define their participation in the conservation and sustainable development of biological
Participation)
- Chapter 4: Sections 38 through 42 on management plan
- Chapter 5: Section 51 on Regulation on restriction
of Development and Other Activities in Protected Environment.
NEMA-Protected Areas Amendment Act 2004:
- Section 19 related to ―Commercial and community activities in national park, nature reserve and world heritage site.‖
NEMA-Biodiversity Act 2004
- Section 82.
envisioned or planned in the two proposed project areas.
111
Bank Policy (OP 4.00)
Requirements
(Objective and Operational
Principles)
Government of South Africa’s Equivalent Requirements Differences
between OP
4.00 and South
Africa’s
requirements
Improvements needed
to address the
differences before
implementing the
project activities Objectives and Operational Principles as stated in the relevant
laws, rules, regulations, procedures, and policies2
References to the relevant sections of the laws, rules,
regulations, procedures, and policies
diversity within protected areas. Restrictions to access are defined by regulations and limited to those activities that ―are inappropriate for the [protected] area; ―or that may ―impede [the] purpose of the area.‖
11. Implement all relevant resettlement plans before project completion and provide resettlement entitlements before displacement or restriction of access. For projects involving restriction of
access, impose the restrictions in accordance with the timetable in the plan of actions.
As general principle under South Africa‘s legal system, persons affected by projects are compensated before being moved or their rights to access to natural resources restricted.
Under the ESTA, an eviction order can be issued only after ―suitable alternative accommodation is available to the occupier concerned.‖
ESTA –Section 10 (2).
NEMA Section 34.
None None
12. Assess whether the objectives of the resettlement instrument
have been achieved, upon completion of the project, taking account of the baseline conditions and the results of resettlement monitoring.
There is no provision related directly to monitoring the fulfillment of a resettlement program‘s objectives.
However, under the NEMA, for the purpose of an EIA, all
impacts including social impacts must be monitored and arrangements for the monitoring must be embedded in the EMP for the project. Report on the implementation of mitigation measures must be prepared and provided to the competent agency and disclosed to affected peoples, including those who participated in the consultation process during the preparation of the EIA report and resettlement plan when applicable.
NEMA Regulations, Section 34 ESKOM conducts social assessment
including monitoring achievement of resettlement plans.
None
112
Attachment to the Equivalence Matrix
References to Applicable Acts, Regulations, International Agreements
I- Relevant Legislation to Overall Environmental Governance in South Africa
a. The Constitution of South Africa
b. The National Environmental Management Act, 1998
c. The Provision of Access to Information Act, 2000
d. The Promotion of Administrative Justice Act (PAJA)
e. The Occupational Health and Safety Act, 1993
f. The Atmospheric Pollution Prevention Act (1965 APPA)1
g. The NEMA Air Quality Act (2004 AQA)
h. The National Water Act (NWA 1998)
i. The NEMA Waste Act (2008)
II- Environmental Assessment
a. National Environmental Management Act (NEMA)107 of 1998 as amended to
date2; and
b. Regulations in terms of Chapter 5 of NEMA, 1998 to regulate procedures and
criteria as contemplated in Chapter 5 of the Act for the submission, processing,
consideration and decision of applications for environmental authorization of
activities and for matters pertaining thereto, and including:
1. List of activities and competent authorities identified in terms of
Sections 24 and 24D of the NEMA, 1998: list 1 related to
activities identified in terms of Section 24 (2) (a) and (d) of the Act,
which may not commence without environmental authorization
from the competent authority and in respect of which the
investigation, assessment and communication of potential impacts
of activities must follow the procedure as described in Regulations
22 to 26 of the EIA Regulations 2006, and
2. List of activities and competent authorities identified in terms of
Sections 24 and 24D of the NEMA, 1998: list 2 related to
activities identified in terms of Section 24 (2) (a) and (d) of the Act,
1 Partially amended by the 2004 AQA. 2 The Equivalence analysis was based on the 2006 EIA Regulations for the purpose of EA as these regulations
describe the current state of the country system. The two EIAs for the two proposed power plants to be financed out
of the proposed ESKOM Investment Project were processed under the 1997 Regulations which set forth procedures
under which an applicant is required to undertake scoping and conduct an EIA for an activity subject to Section 21
(Schedule 1) of the ECA. However, the two EIAs and the related RODs refer also to NEMA (Section 2). The
principles and processes used for the preparation and review of the two EIAs are consistent with the NEMA
Environmental Impact Regulations 2006 including but not limited to requirement under Section 34 on EMPs. The
NEMA and its implementing regulations have replaced progressively the Environmental Conservation Act (ECA)
73 of 1989, including: (i) Government Notice. R. 1182 concerning the identification under Section 21 of the ECA of activities that may have a substantial detrimental effect on the environment, published in Government Gazette
No.18261, Pretoria, 5 September 1997, and Amended by GN R 1355 of 1997-10-17, GN R 448 of 1998-03-27and
GN R 670 of 2002-05-10, and (ii) Government Notice. R. 1183 concerning regulations regarding activities identified
under Section 21 (1) of the ECA, published in Government Gazette No. 8261, Pretoria, 5 September 1997 and
amended by GN R 1645 of 1998-12-11 and GN R 672 of 2002-05-10.
113
which may not commence without environmental authorization
from the competent authority and in respect of which the
investigation, assessment and communication of potential impacts
of activities must follow the procedure as described in Regulations
27 to 36 of the EIA Regulations
III- Physical Cultural Resources
a. Constitution of the Republic of South Africa, 1996 Section 24 (Environment) and
Section 31 (Cultural, Religious and Linguistic Communities);
b. The National Environmental Management Act;
c. National Heritage Resources Act (NHRA) 25 of 1999;
IV- Involuntary Resettlement
a. Constitution of the Republic of South Africa, 1996, Section 25 (property)
b. Environmental Conservation Act (ECA), as amended to date
c. National Heritage Resources Act (NHRA)
d. Housing Act, 107 of 1997,
e. Extension of Security of Tenure Act (ESTA), 62 of 1997
f. Land and Assistance Act, 126 of 1993
g. Land Reform (Labor Tenants) Act 30 of 1998,
h. Restitution of Land Rights Act 22 of 1994,
V- Natural Habitats
a. National Environmental Management Act: Protected Areas Act, Act 57 of 2003 as
amended to date,
b. National Environmental Management: Biodiversity Act, Act 10 of 2004
VI- International Environmental Treaties, Conventions and Agreements to Which South
Africa is a Party3
a. Convention on Biological Diversity
b. Convention on World natural and Cultural Heritage
c. United Nations Framework Convention on Climate Change
d. Convention to Combat Drought and Desertification, Especially in Africa
e. Convention on International Trade in Endangered Species (CITES)
f. Convention on Wetlands of International Importance, Especially as Waterfowl
Habitats
3 South Africa‘s Constitution has a Sub-Chapter 14 on ―International Law‖ which has a Section 231 on ―International Agreements‖. In addition, the National Environmental Management Act (NEMA), Act 107 of 1998 as
amended to date, (notably Section 25) makes provisions for the treatment of ―International Obligations and
Agreements‖ related to Environmental Law. The list provided refer to those conventions and agreements that are
useful for the purpose of the proposed GEF Project and the preparation of the Report on the Use of Country System
(UCS)
114
ANNEX 4
COMPARISON OF SOUTH AFRICAN ENVIRONMENTAL REQUIREMENTS FOR
THERMAL POWER PLANTS AND THE WORLD BANK GROUP ENVIRONMENTAL
GUIDELINES FOR THERMAL POWER PLANTS
1. In addition to the EIA requirements and associated authorizations that are discussed in
the main text of this report, the major South African regulatory requirements that address
ambient air quality and emissions from thermal power plants derive from the authority of the
National Environmental Management ACT of 1998 as amended (NEMA); of which the most
significant amendment is the 2004 NEMA Air Quality Act (AQA), which is progressively
replacing the Atmospheric Pollution Prevention Act of 1965 (APPA).1 Some of the regulations
promulgated under AQA came into force in 2005; others are still in progress.
2. This annex focuses on those aspects of the South African legal system that correspond to
the guidelines for control of air emissions as found in the World Bank Group‘s Pollution
Prevention and Abatement Handbook (PPAH), which was issued in 1998. The 1998 PPAH
contained an environmental, health, and safety guideline for new thermal power plants (Thermal
Power: Guidelines for New Plants), as well as one for existing plants (Thermal Power:
Rehabilitation of Existing Plants); these included recommended emissions levels as well as a
brief discussion of ambient air quality. In April 2007, the PPAH was updated with a new set of
guidelines; one of which was a General Environmental Health and Safety Guideline, which
included a discussion of and recommendations for ambient air quality. In December 2008, the
PPAH was further updated with a new Environmental Health and Safety Guideline (EHSG) for
Thermal Power Plants. The December 2008 EHSG for Thermal Power Plants states:
―The EHS Guidelines contain the performance levels and measures that are generally
considered to be achievable in new facilities by existing technology at reasonable costs.
Application of the EHS Guidelines to existing facilities may involve the establishment of
site-specific targets, based on environmental assessments and/or environmental audits as
appropriate, with an appropriate timetable for achieving them.‖
3. The EIRs for both Medupi and Kusile were prepared and approved, and construction
began, at a time when revised South African regulations were still under discussion and prior to
the issuance by the Bank of the December 2008 EHSG with new recommended emissions levels
for new thermal power plants. The EIRs were properly prepared and approved in accordance
with the South African regulations in effect at the time, but in order to fully assess equivalence
and acceptance with respect to OP 4.00 Table A1, the SDR will review in this annex how the
evolution of the air quality regulations in South Africa during this critical period2 compared to
the concurrent change in guidelines by the WBG.
1 Fourie, Melissa. ―Enforcement of air quality legislation in South Africa – October 2008,‖ An overview prepared
for the United Nations Environment Programme Eastern Africa Workshop on Better Air Quality in Cities on 21-23
October 2008, Evolve Consulting Pty Ltd. 2 October 2005 to March 2008, the time from when the Environmental Scoping Report was issued for the Medupi
project to the issuance of the final ROD for the Kusile project.
115
Ambient Air Quality
4. Among other things, the AQA (Chapter 4) issued by South Africa in 2004 outlines air
quality management measures of particular relevance to the electrical generation and
transmission sector, including: (i) the declaration of Priority Areas, where ambient air quality
standards are being or may be exceeded; (ii) list of activities that result in atmospheric emissions
which have or may have a significant detrimental effect on the environment; (iii) declaration of
―Controlled Emitters‖ and ―Controlled Fuels;‖ (iv) control measures such as implementation of a
Pollution Prevention Plan or Atmospheric Impact Report; and (v) requirements for addressing
dust, noise and offensive odors.
5. Schedule 2 of the AQA issued in 2005 set forth interim ambient air quality standards that
were designed to be closely aligned with World Health Organization (WHO) guidelines and
European Union Directives. This reference to WHO and other examples of international good
practice is consistent with the approach taken by the Bank to ambient air quality in the 1998
PPAH, and again in the 2007 update (the General EHSG).
6. Section 7 of the AQA required the Minister to establish a National Framework (NF) to
achieve the objectives of the AQA by September 11, 2007. Section 7(1) of the AQA requires the
NF to include mechanisms and systems and procedures to:
Attain compliance with ambient air quality standards;
Give effect to the Republic‘s obligations in terms of international agreements; and
Establish national norms and standards:
- to control emissions from point sources;
- monitor air quality;
- manage air quality planning; and
- manage air quality information.
7. Ambient air quality standards were defined as ―targets for air quality management‖ that
―establish the permissible amount or concentration of a particular substance in or property of
discharges to air based on what a particular receiving environment can tolerate without
significant deterioration.‖ The NF aims to be in line with the principles of the WHO, i.e., the
primary aim of ambient air quality standards is to provide a uniform basis for the protection of
public health and ecosystems from the adverse effects of air pollution, and to eliminate (or
reduce to a minimum) exposure to those pollutants that are known or likely to be hazardous.
From 2004 through 2007 several air quality networks were established, priority areas were
identified, and intergovernmental coordination and cooperation structures were established. On
September 11, 2007, the Minister of Environmental Affairs and Tourism issued Notice 1138 of
2007 establishing the NF as required by Section 7(1) of the AQA.
8. Under the authority of NEMA, the NF and the AQA, new South African National
Standards (SANS) have been approved by National Committee SANS TC 146, Air Quality.3
3 SANS 1929:2009, Edition 2.
116
Consistent with the NF, air quality objectives have been set based initially on values designed to
protect human health. In this connection, seven priority pollutants have been designated,4 of
which four (PM10, SO2, NO2 and CO) are directly associated with thermal power plants.
Parameters have been set for limit values, alert thresholds, and target values. Margins of
tolerance, time frames for achieving compliance with limit values, and limits on permissible
frequencies of allowable exceedance have been established. These values are based on
assessments, which establish the ambient concentrations of prioritized pollutants and evaluate the
technical feasibility, economic viability, and social and political acceptability of implementing
measures to reduce and maintain air quality within limit values. Because both the interim South
African ambient air quality standards and the and 1998 and 2007 WBG EHSG make reference to
the WHO standards, the following table uses WHO values as the common reference point.
Comparison of South African Ambient Air Quality Standardsa and
World Health Organization Guidelinesb
Pollutantc South Africa
d WHO
Particulates (PM10) 40 ug/Nm3e 70 ug/Nm3
Particulates (PM2.5) N/A 35 ug/Nm3
Sulfur Dioxide5 50 ug/Nm3 125 ug/Nm3
Nitrogen oxides 40 ug/Nm3 40 ug/Nm3
Ozone6 120 ug/Nm3 120 ug/Nm3
a) Per Schedule 2 of the AQA, 2004 as issued by the Department of Environmental Affairs, December 24,
2009.
b) As cited in WBG General Environmental, Health and Safety Guideline, Table 1.1.1, 2007.
c) Unless otherwise stated, numbers refer to Annual Limit value for the protection of human health (WHO).
d) Immediate compliance, except where otherwise noted. The WHO also proposes interim (year 2017) and
aspirational targets.
e) Compliance date of January 1, 2015
9. As can be seen from the above table, South African standards for ambient air quality for
parameters relevant to thermal power plants are consistent with and, in some cases, even more
stringent than the standards issued by the World Health Organization.
Emissions Standards for Thermal Power Plants
10. Under the authority of the AQA, South Africa issued proposed emissions standards for
thermal power plants, most recently on July 24, 2009.7 At the time of this report (February 2010)
the final emissions standards were expected to be adopted in very similar form on April 1, 2010,
when the relevant sections of the Air Quality Act are schedule to come into full effect.
11. The comparability of the proposed South African and the World Bank standards is
limited by the reference to a single 30 day compliance time frame, for monitoring purposes, in
4 Sulfur dioxide (SO2); Nitrogen dioxide (NO2); Carbon Monoxide (CO); Particulate Matter (PM10); Ozone (O3);
Lead (Pb); and Benzene (C6H6). 5 24 hour limit. 6 8 hour daily maximum. 7 General Notice 1001, National Environmental Management: Air Quality Act (39/2004): List of Activities which
result in atmospheric emission which have or may have a significant detrimental effect on the environment,
including health, social conditions, economic conditions, ecological conditions or cultural heritage, Government
Gazette, Vol. 529, No. 32434, July 24, 2009.
117
the most recent iteration of the South African standards, whereas World Bank Group EHS
Guidelines are expressed as hourly, daily or annual limitations. However, the South African
standards take the same general approach to managing emissions as the WBG EHS Guidelines in
that both make a distinction between existing and new plants (with a requirement to establish a
process by which existing plants are to be considered within a specified period of time for
upgrade in performance to comply with the standards for new plants); by providing for the
application of good international industry practice (―best practicable environmental option,‖ in
South African parlance8); by their application of more stringent requirements to plants
discharging emissions to an already degraded airshed; and by the use of emission offsets to
achieve airshed-wide reductions.
8 NEMA, Section 4(2(b) as further described in the ―The 2007 National Framework for Air Quality Standards,‖
5.4.3.2, Ministry of Environmental Affairs and Tourism, September 11, 2007.
118
ANNEX 5.
SUMMARY OF STAKEHOLDER CONSULTATIONS, PRETORIA, DECEMBER 9-10, 2009
COMMENTS FROM PARTICIPANTS AND WORLD BANK RESPONSE
No. Issue Response Disposition in SDR
USE OF COUNTRY SYSTEMS (UCS) AND SDR PROCESS FOR SOUTH AFRICA
1. Will the Safeguards Diagnostic Review [SDR]
have to be done again in projects in the future?
For South Africa in general, the equivalence analysis
conducted for the EISP, with respect to the World Bank
safeguard policies on Environmental Assessment,
Natural Habitats, Physical Cultural Resources and
Involuntary Resettlement, will be the basis of any
future application of use of country systems in South
Africa, (including thermal power, wind, solar and
transmission line projects). For other sectors or for
hydroelectric power projects, equivalence analysis and
acceptability assessment will be needed only for the
policies, regulations and implementing institutions in
the sector. The national aspects of the equivalence
analysis in this SDR will not need to be repeated unless
there have been subsequent legislative or regulatory
changes.
This issue has been clarified in
the final SDR.
2. The UCS approach not only achieves the
objectives set forth for it by the World Bank, it
also minimizes duplication of effort and
prevents stakeholder confusion.
The Bank appreciates these observations. The advantages of the UCS
approach are described in the
final SDR.
3. IFC Performance Standards clearly state that
where there is a difference between a country
and an IFC standard, the more stringent one
applies. How is that consistent with UCS?
UCS requires that if a borrower‘s requirements are less
stringent than a corresponding and applicable Bank
safeguard requirement, the Bank and the borrower will
agree on an Action Plan to address the gap between the
two requirements. The SDR has found that such gaps
as may exist between South African and Eskom
All proposed gap-filling
measures are identified in the
SDR and agreed gap-filling
measures are described in the
final SDR.
119
No. Issue Response Disposition in SDR
standards are quite minor and have either already been
addressed by Eskom or may be readily addressed
during project implementation. Although generally
consistent with the safeguard policies of the World
Bank, IFC Performance Standards (PS) apply to IFC
support of projects as well as projects supported by
Equator Banks and other entities that follow IFC PS.
IFC PS are not generally used in the Bank‘s UCS Pilot
Program as they are designed for private sector projects
and the Bank provides support primarily to public
sector entities.
4. How many of the other UCS projects in the
portfolio are in the energy sector?
Two energy sector projects have been previously
supported under UCS: the Fifth Power Systems
Development Project (POWERGRID) in India and the
Energy Development and Access Project in Ghana.
These projects are cited in the
final SDR.
5. What is the oversight role of the World Bank if
UCS is approved?
If UCS is adopted the Bank would supervise Eskom‘s
implementation of the project as it would for any other
large investment supported by the Bank. The only
difference would be that the Bank would use the South
African requirements that it has determined to be
equivalent and acceptable as the basis for evaluating
compliance
This is clarified in the final
SDR.
EQUIVALENCE ANALYSIS: LEGISLATIVE FRAMEWORK
6. The Legislative Framework for Environmental
Assessment should be expanded to also include
the National Environmental Management: Air
Quality Act (2004), the National
Environmental Management: Waste Act (2008)
and any notices or regulations in terms of these
This legislation is referenced in the SDR, which also
takes into account the laws and regulations that are
relevant to the EISP.
All relevant legislation is
referenced in the final SDR.
120
No. Issue Response Disposition in SDR
Acts as these Acts directly impact on and
inform EA processes in South Africa. There
are also others, such as the Integrated Coastal
Management Act, etc., but as they are not
relevant to the EISP, they are not mentioned
here.
7. The National Heritage Resources Act of 1999
also places a direct obligation on EA processes.
This Act is cited in the SDR with respect to Physical
Cultural Resources (PCR). Like South Africa the Bank
addresses PCR primarily within the context of the EIA
process.
This issue is clarified in the
final SDR.
8. It should be noted that with the coming into
effect of the Waste Act on 1 July 2009. EIAs
for listed waste management activities now
take place in terms of this Act and inform
Waste Management Licenses. This is relevant
to all waste activities such as ash dumps, waste
oils, etc., forming part of Eskom‘s facilities.
This added information on the Waste Act, its
effectiveness and application to the EISP, will be
referenced in the SDR.
The final SDR references the
Waste Act with respect to
DEA licensing of solid waste
facilities.
9. Various Acts have implications and in a way
govern EIA in South Africa – important ones
relevant to the EISP and missing from the list are:
o Promotion of Administrative Justice Act of 2000
o National Heritage Act of 1999
o The Development Facilitation Act of 1996
o The Mineral and Petroleum Resources Development Act of 2002.
Although these laws may be relevant to the EISP, they do
not necessarily correspond to the Objectives and Operational
Principles of World Bank OP 4.00, Table A1, which is the
basis of the Bank‘s Equivalence Analysis for the South African Environmental Assessment system. For example, it
is unclear how the Development Facilitation Act of 1996,
the Mineral and Petroleum Resources Development Act of 2002 or the Promotion of Administrative Justice Act of 2000
correspond to the above cited Objectives and Operational
Principles. It is acknowledged in the SDR that the National
Heritage Act of 1999 does correspond to the Objectives and Operational Principles of World Bank OP 4.00, Table A1
with respect to Physical Cultural Resources. This Act is
referenced in the Equivalence Analysis.
These Acts and their
implications are described in
the SDR.
121
No. Issue Response Disposition in SDR
EQUIVALENCE ANALYSIS: CUMULATIVE IMPACTS
10. Cumulative impacts must make a distinction
between what is required of the applicant and
what is required of the government as part of a
broader planning strategy. The Waterberg
municipal district including the Medupi area is
the first location where the Government of
South Africa has proactively declared a
Framework area, rather than reacting after
airshed degradation has already occurred.
In addition to preparing to proactively declare the
Waterberg municipal district as a Priority Air Pollution
Hotspot, The Department of Environmental Affairs
(DEA) has issued a tender for a comprehensive
Environmental Management Framework (EMF) for the
Waterberg area.
A summary of the EMF ToRs
and process is included in the
final SDR.
The Bank is engaged with
both the Government of
Botswana and the Government
of South Africa in preparing a
regional study of trans-
boundary air quality issues.
11. How does cumulative impact analysis, as
defined by DEA to mean the addition of a
proposed project to the baseline status quo,
allow impacts on water, for example, to be
taken into account when we know it is already
affected by Matimba?
DEA is in the process of preparing an EMF for the
Waterberg area that will address impacts on water
resources while taking into account baseline
conditions, such as water use by Matimba.
A summary of the EMF ToRs
and process is included in the
final SDR.
12. There must be a [Strategic Environmental
Assessment] SEA for the Waterberg area.
See discussion above on EMF for Waterberg area. The EMF is addressed in the
final SDR.
The Bank is proposing to be a
partner with the Government
and Eskom in supporting the
preparation of the EMF.
13. Did the SDR consider any of the guidelines on
transboundary and cumulative impacts from
SADEC?
Since the EISP is a South African and not a regional
project, the SDR relies on South African environmental
regulatory policy and guidance to address the issues of
trans-boundary and cumulative impacts. These policies
and guidance are consistent with those of the World
Cumulative impacts will be
addressed in the EMF, which
is described in the final SDR.
122
No. Issue Response Disposition in SDR
Bank as set forth in OP 4.00. Cumulative impacts
within the project-affected area in South Africa are
addressed in the SDR and will be given additional
attention in the EMF.
14. The [National Environmental Management] Act
(NEMA) requires that cumulative impacts be considered both in the EIA process and by
decision-makers. As EIA in South Africa is a
permitting instrument and the EIA process results in a permit with conditions which the applicant is
responsible for, it is very difficult to include
impacts not under the control of the undertaker of the activity. At the same time the authority need to
be in a position to decide on the acceptability of
impacts not only as a result of the activity of the
applicant but of all the activities in the specific area. The relationship between a thermal power
station and a coal mine may illustrate this best – the
thermal power station is dependent on the coal from the mine but has no control over the impacts
of the mine. Both the mine and the power station
place demands on water, air and land and have
impacts on the environment.
In order to address this dilemma, South Africa has adopted a two-pronged approach where cumulative
impacts or effects are dealt with at both strategic
and activity level. On the strategic level the SEA approach is utilized by government to develop
environmental management frameworks (EMF) for
geographical areas. An EMF basically determines the status quo of the environment (social,
biophysical and cultural) of a given geographical
The Bank appreciates this clarification. The final SDR has been
revised to incorporate this
clarification.
123
No. Issue Response Disposition in SDR
area, then through an extensive consultation process determines the ―desired state of the
environment‖ (this could also be termed ―levels of
acceptable or desired change‖) and lastly through
introduction of environmental management control zones for the geographical area in question. An
EMF developed for an area takes into consideration
all existing and planned activities and then models impacts on air, water, land and also on the social
and cultural landscape. This then forms the baseline
against which decisions on development applications can be made. It also informs land use
management and planning for the area.
On the activity level it is required that the applicant
assess the contribution of his activity to the
baseline (and where the baseline is not known, to determine the baseline) where the baseline includes
existing and known future activities. This forms
part of the EIA process and is restricted to what is under the control of the applicant and what the
applicant can reasonably and lawfully be made
responsible for through conditions of an
environmental authorization.
EQUIVALENCE ANALYSIS: ALTERNATIVES ASSESSMENT
15. Both the 1998 NEMA (as amendment by inter
alia Act 62 of 2008) and the EIA Regulations
require the assessment of alternatives in a
comparative way. The range of alternatives to
be investigated depends on the nature and
scope of the activity to be undertaken and the
policy framework in place for such activity.
The Bank appreciates the clarification. This issue is further clarified
in the final SDR.
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No. Issue Response Disposition in SDR
The Act and regulations refer to alternatives
such as ―location‖ (both site and lay-out),
technology and the ―no-go‖ alternatives. The
Integrated Environmental Management
information series published by DEA also
contains a booklet specifically on alternatives.
16. In terms of the role of costs in alternatives
assessments it should be noted that although
not prescribed through the regulations, where
relevant, as is the case for most of Eskom‘s
infrastructure development projects, the cost
implications are demonstrated in the
comparative assessment of alternatives and,
together with the requirement to demonstrate
need and desirability, often plays an important
role in decisions on the acceptability of
environmental impacts.
The Bank appreciates the clarification. This issue is further clarified
in the final SDR.
EQUIVALENCE ANALYSIS: TRANSBOUNDARY IMPACTS
17. An acknowledged area of weakness in the
South African and SADC environmental
assessment system is that there is currently no
mechanism to facilitate consultation with
neighboring countries or for the assessment of
impacts on our neighbors by activities taking
place in South Africa or vice versa. The revival
of the SADC environmental protocol will
hopefully address this. In the short term
however, The Government of South Africa has
already agreed to work with Botswana on the
The Bank is working with the governments of South
Africa, Botswana and other SADC countries to
promote regional approaches to environmental impact
assessment, in particular with respect to energy projects
having trans-boundary impacts.
This information is
incorporated into the final
SDR.
125
No. Issue Response Disposition in SDR
regional SEA planned for parts of the Limpopo
province and the southern parts of Botswana. It
is envisaged that this process will be informed
by the EMF mentioned above.
EQUIVALENCE ANALYSIS: NATURAL HABITAT OFFSETS
18. In terms of requirements for offsets: South Africa is
a developing country and it must therefore be
accepted that as the development footprint
increases, there will be an unavoidable loss of biodiversity. The biodiversity conservation and
protection policies are accordingly more focused on
reaching and maintaining targets set for the different biomes and biodiversity types. A
biodiversity offset policy is under development.
However, in practice and through the EIA
process biodiversity offsets are an established
mitigation measure enforced through
environmental authorizations
The Bank appreciates this clarification. This issue is addressed in the
final SDR.
EQUIVALENCE ANALYSIS: PHYSICAL CULTURAL REOURCES
19. In terms of community participation:
In addition to any requirements stemming from the
relevant Acts regulating PCR, it must be remembered that the definition for ―environment‖
in South Africa‘s legislation reaches beyond the
biophysical environment and includes PCR. The extensive consultation process prescribed through
the EIA regulations and NEMA accordingly is
relevant to PCR as well. In addition, the National
The Bank appreciates this clarification. This issue is clarified in the
final SDR.
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No. Issue Response Disposition in SDR
Heritage Resources Act specifically requires that heritage issues must be addressed in the EIA
process.
20. In terms of chance finds:
In addition to any requirements stemming from the
relevant Acts regulating PCR, it must be
remembered that the definition for ―environment‖ in South Africa‘s legislation reaches beyond the
biophysical environment and includes PCR. In
addition, the National Heritage Resources Act specifically requires that heritage issues must be
addressed in the EIA process. Accordingly, a
standard condition has been included in all
environmental authorizations stipulating how chance finds must be dealt with during the
construction and operational phases of an activity.
The Bank appreciates this clarification. This issue is clarified in the
final SDR.
ACCEPTABILITY ASESSMENT: DEPARTMENT OF ENVIRONMENT CAPACITY BUIDING AND TRAINING
21. The statistics on DEA[T]‘s capacity building
and training activities are limited to a single
recent financial year. Various training sessions
and other capacity building interventions have
taken place since, including a comprehensive
Capacity audit and need exercise which
resulted in a Capacity Intervention
Implementation Plan that is currently being
implemented.
The Bank appreciates this update. The issue is clarified in the
final SDR.
ACCEPTABILITY ASSESSMENT: EIA PRACTICE IN SOUTH AFRICA
22. It is not correct that EIA has been centralized The Bank appreciates this clarification. This clarification is included
127
No. Issue Response Disposition in SDR
through NEMA and is now under DEA
supervision. Environmental Management is a
concurrent function where the national
department sets the legal framework but
provinces are fully autonomous in
implementing the function. The National
department has no supervisory powers over
provinces. Also, this position did not change
from the previous (1997) EIA regime.
in the final SDR.
23. It is not correct that the backlog in DEA
processing of EIA applications was reduced as
a result of the implementation of the 2006
Regulations. The elimination of the backlog
was due to capacity building and support
initiatives of the department whereby financial
and technical assistance was given to provinces
to assist them with finalizing pending
applications.
The Bank appreciates this clarification. The final SDR has been
revised to reflect this
clarification.
24. The section of the SDR should be updated to
reflect the inputs provided by DEA on the use
of Strategic Environmental Assessment
through the EMF approach.
The Bank appreciates this reference. The final SDR incorporates
reference to the EMF approach
and its application to the EISP.
ACCEPTABILITY ASESSMENT: EIA PROCESS FOR ESKOM INVESTMENT SUPPORT PROJECT
25. The SDR concludes that the EIA process is
robust, but there is no mention of coal mining
anywhere. There is acid mine drainage,
competition for water, other impacts on water
quality.
The EISP does not include any coal mining activities;
neither the Bank nor Eskom has any control over the
environmental impacts of coal mining. In order to
support the increased coal sales to Eskom, Exxaro will
add two new coal processing (beneficiation) units to
the six already operating at the mine. Because neither
As coal mining is not part of
the EISP, it is not relevant to
the SDR.
128
No. Issue Response Disposition in SDR
Impacts of coal mining have to be addressed; it
will be vast, and the region will lose its water
resources.
any mining nor the construction of the new processing
units and associated coal stockyard will occur outside
the permitted boundaries of the mine operations, GoSA
regulations do not require a full EIA and an
environmental authorization from DEA. Instead, the
company‘s obligation under national environmental
legislation is to obtain approval of an amendment to its
Environmental Management Program for Grootegeluk
from the Limpopo Department of Minerals and Energy
(LDME). For this purpose, in 2006 the mine owner
prepared an environmental document entitled
―Amendment to the Grootegeluk Mine Environmental
Management Programme Report (EMPR): Matimba
Brownfields Expansion Project.‖ Scoping for this
report was conducted with stakeholder participation in
March 2006, and the draft report was publicly
disclosed for stakeholder consultations in July 2006.
LDME issued its approval for the amendment to the
EMPR in 2007. The Bank has reviewed the report. The
broader, regional and strategic impacts of coal mining
will be addressed in the EMF (see above).
26. Was there a statistically sound process that led
to the selection of Medupi as an investment?
Eskom‘s investment program is based on a strategic
review of the power sector at the national level. It is at
this point that the Government of South Africa
examines alternatives, including consideration of cost-
benefit analyses, etc. Economic analyses by the Bank
are included in project preparation and appraisal, but
not as part of the SDR.
Of the projects under development by Eskom, the
Medupi plant provides the most immediate prospect for
This issue is outside the scope
of the SDR, which focuses on
Bank and corresponding South
African safeguard policies.
However, it will be discussed
in detail in the Project
Appraisal Document (PAD) to
be submitted to the Executive
Directors of the World Bank
and subsequently disclosed to
129
No. Issue Response Disposition in SDR
helping to address South Africa‘s critical electricity
supply needs.
the public.
27. How can the World Bank be financing coal-
fired plants in view of climate change?
The Bank has adopted a Strategic Framework for
Development and Climate Change which includes the
criteria under which the Bank will support coal fueled
power plants.
[http://beta.worldbank.org/overview/strategic-
framework-development-and-climate-change] .
Because the SDR focuses on environmental and social
safeguard policies, climate change impacts are
addressed in other Bank documentation related to the
EISP, such as the Project Information Document,
which is available on the Bank‘s website, and other
published information about the EISP.
This issue is outside the scope
of the SDR but will be
thoroughly documented in the
PAD.
28. How can the World Bank be financing 5,000
MW of new generating capacity in South
Africa, with only 4 percent of it in renewable?
This is not ―low carbon growth.‖ South Africa
is one of the most favorable places in Africa
for wind and solar power.
See other responses above and below on this point.
Furthermore the EISP, with its renewable energy and
energy efficiency components, is consistent with the
energy and climate change strategies of South Africa
which promote a transition to renewable energy
sources while acknowledging that in the short to
medium term, South Africa has no alternative to
reliance on energy efficient use of coal as the primary
fuel for baseload electrical power generation.
This issue is outside the scope
of the SDR but will be
thoroughly documented in the
PAD.
29. Solar power projects with heat storage can be
used for base load, and there are proven
technologies (e.g., 345-MW plant near Los
Angeles, CA). They require less land and have
fewer impacts than thermal plants of
comparable capacity according to 1960s study
The Bank is not aware of any operational solar thermal
projects that can provide baseload capacity at anywhere
near the 4,800 MW to be generated by Medupi.
This issue is outside the scope
of the SDR but will be
thoroughly documented in the
PAD.
130
No. Issue Response Disposition in SDR
done for DEA.
30. South Africa is in Copenhagen committing to
reduce carbon emissions and is getting funding
from the Bank for a large coal-fired plant. This
does not make sense.
South Africa has stated its position with regard to
reductions in carbon emissions in the context of the
Copenhagen Agreement.
This issue is outside the scope
of the SDR but will be
thoroughly documented in the
PAD.
31. What about CO2 emissions; shouldn‘t the
amount and mitigation of it be considered?
The Bank is working with many countries including
South Africa and Botswana to diversify energy sources
and reduce carbon footprint. The inclusion of wind and
solar in EISP is an example.
The Bank OP for EA was developed before climate
change became a central issue, but the EA for Medupi
does include estimates of carbon emissions. The choice
of supercritical boiler technology is motivated in part
by the desire to increase plant efficiency and reduce
C02 emissions in relation to electricity output. In
addition, South Africa is designing new coal fired
power plants to be adaptable to carbon capture and
storage opportunities as soon as this mitigation
technology becomes commercially feasible.
This issue is outside the scope
of the SDR but will be
thoroughly documented in the
PAD.
ACCEPTABILITY ASSESSMENT: WATER SUPPLY AND QUALITY IMPACTS OF EISP
32. How does South Africa achieve its macro-
objectives for energy without neglecting
micro-concerns? Water should have been
addressed much earlier in the EIA process for
power.
Water supply is as much a macro-level as a micro-level
issue both for energy supply and basic human needs in
a water-scare environment. As part of the National
Water Resource Strategy in 2004, the DWA identified
the Crocodile (West) River Basin as of paramount
importance in developing a more specific water
management strategy. The first step in developing a
Catchment Management Strategy was the preparation
The issue of water supply is
addressed in the final SDR and
will be thoroughly addressed
in the EMF. The MCWAP is
subject to the EIA process in
South Africa, and its progress
is also addressed in the final
SDR.
131
No. Issue Response Disposition in SDR
in 2004 of an Internal Strategic Perspective for the
Limpopo Water Management Area and an Internal
Strategic Perspective for the Crocodile River (West)
and Marico Water Management Area. Both of these
strategies were based on a 25-year planning horizon,
and the core proposal to meeting the need was the
Mokolo and Crocodile Water Augmentation Project
(MCWAP), consisting of four phases of development.
A second step in developing a Catchment Management
Strategy was preparation by DWA of the Water
Resource Reconciliation Strategy in 2008 for the
Crocodile (West) River Basin. Medupi will require
additional makeup water from Phases 1 and 2 of the
four-phase MCWAP that is being undertaken by the
Department of Water Affairs.
33. Why is water not considered in the SDR, since
it has such close connection with coal mining?
Water is considered in the SDR with respect to the
supply necessary to enable the Medupi plant to operate
at capacity and to support the operation of wet-Flue
Gas Desulfurization (FGD) Technology. It is also
considered with respect to Eskom‘s policy of zero
effluent discharge and the protection of ground and
surface water from potential ash pond contamination. It
is not considered with respect to coal mining because
coal mining is not part of the EISP.
The issue of water supply is
addressed in the final SDR and
will be thoroughly addressed
in the EMF.
34. Provision of water for FGD needs to be
considered. Country needs to take the lead in
SEA for water use and mining including social
impacts.
The SDR considers adequate provision of water for
FGD as a significant issue. The Bank agrees that water
supply and demand needs to be addressed in a broader,
multi-user context.
The issue of water supply is
addressed in the final SDR and
will be thoroughly addressed
in the EMF.
35. One international bank pulled out of the The Bank is not aware of any other international bank‘s The availability of water
132
No. Issue Response Disposition in SDR
Medupi project because of the lack of FGD.
The World Bank‘s position that it is acceptable
for FGD to come later when water is available
does not make sense; there is no water!
decision regarding the Medupi plant. In any case, the
Bank has proposed, per the SDR and in other public
statements, that Bank support for Medupi will be made
conditional on the installation of FGD as soon as
sufficient water is available and it is technically and
operationally feasible to install the FGD units. The
supply of incremental water sufficient to operate the
FGD units is closely related to the provision of water
adequate for medium-to-long term operation at Medupi
at its design capacity. It is, therefore, highly unlikely
that Medupi could operate for long at full capacity
(with uncontrolled SO2 emissions) without also having
sufficient water to operate the wet-FGD units. Were
that unlikely circumstance to occur, Eskom would be
required by its environmental authorization (i.e., the
―Record of Decision‖ on its EIA Report, to consider
alternative means of SO2 emissions reduction,
including use of ―dry‖ FGD technology that is less
water intensive.
sufficient to operate the wet-
FGD units is addressed in the
final SDR.
36. According to farmers in the area, surplus water
that would presumably become available from
the Crocodile River may not be available in
sufficient quantities during periods from May
to October. For example, three years ago, the
availability of water was limited such that local
farmers were limited to half their normal quota
for irrigation.
The proximate source of incremental water to be
harvested from the Crocodile River catchment is
provided from surplus effluent return flows from the
northern regions of Gauteng province, for which the
ultimate source is the Vaal River Catchment. The
surplus effluent is in fact a growing resource due to the
rapid urban growth of the metropolitan areas of
Gauteng, particularly Johannesburg and Pretoria.
This issue is clarified in the
final SDR.
37. Utilizing available water for power or
industrial purposes negatively affects
agriculture.
Water supply and allocation issues will be addressed in
the EMF for the Waterberg Municipal District.
The ToR for the EMF is
described in the final SDR
133
No. Issue Response Disposition in SDR
38. Farmers in Botswana that rely on the Limpopo
River have not been considered in the plans to
divert water from the Limpopo to support the
Medupi project.
Since the EISP is a South African and not a regional
project, the SDR relies on South African environmental
regulatory policy and guidance to address the issues of
transboundary and cumulative impacts. These policies
and guidance are consistent with those of the World
Bank as set forth in OP 4.00.
Please see response to
comment 17, above.
ACCEPTABILITY ASSESSMENT: COMPLIANCE, ENFORCEMENT AND GRIEVANCE MECHANISMS
39. South Africa‘s system is world class and
Eskom‘s practices are good, but there is no
enforcement, there is lack of staff and skills,
and an environmental court is needed.
The Environmental Monitoring Inspectorate (EMI) is
playing an increasingly important and effective role in
monitoring and enforcing compliance with South
African environmental laws, regulations and
authorization conditions.
The evolution and role of the
EMI is described in the final
SDR.
40. Implementation of environmental legislation
leaves a lot to be desired in South Africa.
Enforcement is a long way behind. The SDR
should deal much more with this issue. In
general, there is intense focus on EA, weak
attention to implementation; good planning is
not leading to good outcomes.
DEA is of the view that while there are sectors with large
numbers of transgressions (either by not applying for authorization or by non-compliance with conditions set in an
authorization) there are others that are largely compliant.
Typically small scale mining, property development and
agriculture falls in this category of non-sectors, but the
energy sector falls in the latter category.
DEA acknowledges that there is room for improvement but
is also of the view that good strides have been made in this
regard and the picture is not nearly as bleak as some would like to paint it. DEA considers that the steep penalties for
transgressions provided for in law, the strong line taken by
the Courts regarding environmental transgressions and the
high visibility and success of the Environmental Management Inspectorate (EMI also known as the ―green
scorpions‖) are aiding increased compliance with the
legislation and conditions of authorization.
This issue is thoroughly
addressed in the final SDR.
134
No. Issue Response Disposition in SDR
41. The UCS process is supported, but it relies too
much on voluntary action by Eskom. National
policies should be reformed where necessary,
as in the case of expropriation.
Eskom compliance with the terms of its authorizations
is not voluntary; it is subject to sanctions and penalties
for non-compliance. Eskom is required to demonstrate
compliance and the DEA is authorized to verify that
compliance. It is recognized that South Africa does not
have a strong record of enforcement for non-
compliance, but DEA and the Bank find that Eskom‘s
record of compliance to date indicates that its risk of
non-compliance is low.
The SDR discusses the
requirements that have been
put in place regarding
independent monitoring of
performance by appointed
Environmental Control
Officers during construction as
well as operation. The broader
issue of enforcement is also
addressed in the final SDR.
42. Landowners affected by Medupi worked
within the EIA process, and thought they had
reached a reasonable compromise on T-line
and substation locations. However, they were
concerned to note in the Record of Decision on
the T-Line EIAs that some of the
recommendations in the EIA were ignored.
They suspect some sort of influence and have
appealed the decision in the [Record of
Decision] (ROD).
Decisions regarding transmission line routing take into
account all recommendations made during the EIA
process. However, such decisions are also subject to
technical requirements reflecting safety and energy
security that may not be included within the scope of
the EIA. As a result, alternatives identified as in the
EIA may not always be technically feasible.
It is the Bank‘s understanding that the landowners‘
concerns and recommendations for a dedicated corridor
for the high voltage transmission lines could not be
implemented because of legal codes regarding
installation of transmission line systems.
This issue is addressed the
final SDR.
43. There is a community in Waterberg area that
receives water only one day per week, but a
developer just received a permit to use 4 M l/d
to irrigate two golf courses just 10 km away.
Clearly EIA system is robust, but decisions
based on EIA are not being made well.
Consultants may be writing what serves their
The Bank acknowledges that such circumstances may
occur but has determined that the EIA process for
Medupi was not compromised by consultant bias or
undue influence.
This issue is outside the scope
of the SDR.
135
No. Issue Response Disposition in SDR
clients‘ interests.
44. Does the Bank rely entirely on country
procedures, or does it expect separate reporting
from Eskom?
The Bank works with borrowers and other clients as
―partners in compliance.‖ Eskom and the South African
government have complementary roles to play in the
project. However, Eskom is the borrower and therefore,
the Bank will rely on Eskom in the first instance to
provide the requisite reporting on compliance with
South African requirements. However, the Bank may
consult the Government with respect to compliance
issues.
The issues of compliance and
enforcement are thoroughly
addressed in the final SDR.
45. There is not much in the SDR about grievance
mechanisms. What we do in South Africa does
not fully meet Equator Principles.
The SDR is based on World Bank safeguard
requirements and not the Equator Principles.
The Equator Principles are
outside the scope of the SDR.
ACCEPTABILITY ASSESSMENT: OTHER ISSUES
46. NEMA is sound on paper, but ROD focuses on
technical issues. Social impacts covered in the
EIA were not addressed in the ROD. Lephalale
municipality‘s physical and human
infrastructure is being overwhelmed by influx
of contractors and their labor forces. No onus
on Eskom in ROD to manage these impacts.
We agree that DEA interpreted its mandate in the ROD
to focus on issues under its direct authority rather than
the broader set of issues addressed in the ROD. Other
agencies, such as the Ministry of Land Affairs, have
the mandate to regulate social impacts and provincial
and municipal authorities have the mandate to regulate
indirect impacts from Eskom activities. However,
Eskom does recognize that it has a social responsibility
to assist local communities to address such indirect
impacts and is doing so through its community
outreach and development activities.
Eskom has noted that additional impacts not
anticipated by the EIR for Medupi have emerged, and
is working with the Lephalale municipality to address
Eskom‘s corporate
commitment to go beyond
compliance as part of its
corporate social responsibility
is discussed in the SDR.
Although the ROD does not
require Eskom to address these
unexpected impacts, Eskom‘s
response is considered as part
of the SDR‘s acceptability
analysis.
136
No. Issue Response Disposition in SDR
those impacts.
47. Eskom is following a strategy based on ISO,
but this does not cover Eskom‘s suppliers,
especially mining companies. No onus on
Eskom in ROD to manage impacts of
suppliers.
This may be the case. However, Eskom has no leverage
over the environmental management practices of its
suppliers. There are no provisions in South African law
that would require Eskom to manage the impacts of its
suppliers. The Bank‘s environmental and social
safeguard policies also do not contain in their present
form this type of requirement.
This issue is outside the scope
of the SDR.
48. The SDR should be updated to reflect the
permitting requirements stemming from the
National Environmental Management Waste
Act of 2008 which repealed the specified
provisions of the Environmental Conservation
Act. Some of the [solid] waste management
facilities of Medupi have already been
subjected to this licensing process.
The Bank appreciates this updated information. The final SDR references the
new permitting requirements
with reference to solid waste.
49. a Special studies, as for cultural resources, are
covered in ToRs to which stakeholders don‘t
have much input. Specialists on PCR are
needed.
Consultation with all stakeholders is part of the EIA
process from scoping to finalization of the EIR. The
assessment of the significance of PCR is an integral
part of the EIA, as reflected in the EIA documentation
for EISP components. Special studies of PCR
undertaken as necessary as part of the EIA process are
supplementary to stakeholder input.
The distinct roles of
stakeholder input and
specialized studies are
described in the SDR.
50. Waterberg Biosphere has been identified by
UNESCO. It is the second largest wildlife area
in South Africa. Power development is a great
risk for it, and there is already a water crisis
there. Mining is the main source of the
impacts. Limpopo is among the waterways
The Waterberg Biosphere Reserve is located 40
kilometers from the Medupi plant and is separated by a
mountain range. Therefore it is not within the airshed
affected by the project or in any other way within the
project‘s area of influence –direct or indirect.
This point is clarified in the
final SDR.
137
No. Issue Response Disposition in SDR
worst affected.
51. Lephalale municipality has insufficient
financial and human resources with which to
respond to the incremental impacts of the
Medupi project on the provision of
accommodation, drinking water supply,
electricity distribution, sewerage treatment and
road maintenance. These impacts are not
addressed in the ROD.
The ROD is limited to issues that are within the
regulatory authority of DEA. It is the responsibility of
the provincial and municipal authorities to address the
impacts subject to regulation at the local level. Eskom
has agreed to provide financial and technical support to
the Lephalale municipality in addressing these
incremental impacts, including assisting the
municipality to upgrade its sewerage facilities.
This issue is noted in the final
SDR.
PROCESS FOR STAKEHOLDER CONSULTATION ON SDR
52. This is an appropriate forum, especially to have
an opportunity to talk with one of the financing
institutions. However, January 10 is too short
notice for written comments. Follow-up
meetings would be good because of the limited
time for this one.
The team agreed that follow-up meetings would be
useful.
The Bank has continued to
receive comments on the SDR
through January 31, 2010 and
has taken all comments
received by that date into
consideration in this matrix.
138
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CSIR/DEAT. 1998. ―Principles for Strategic Environment Assessment: Working Draft for
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CSIR/DEAT. 1998. ―Towards Strategic Environmental Assessment Guidelines for South
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Area
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apAr
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ain
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24º
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27º
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TS
CO
AL
FIEL
DS*
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ISTR
ATI
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L C
API
TALS
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IN R
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MIN
ISTR
ATI
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UN
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RIES
This
map
was
pro
duce
d by
the
Map
Des
ign
Uni
t of T
he W
orld
Ban
k. T
he b
ound
arie
s,co
lors
, de
nom
inat
ions
and
any
oth
er in
form
atio
n sh
own
on th
is m
ap d
o no
t im
ply,
on th
e pa
rt o
f The
Wor
ld B
ank
Gro
up,
any
judg
men
t on
the
lega
l sta
tus
of a
ny te
rrito
ry,
or a
ny e
ndor
sem
ent o
r ac
cept
ance
of s
uch
boun
dari
es.
MA
RCH
20
10
IBRD
37658
01
00
15
02
55
07
5
KIL
OM
ETER
S(A
ppro
xim
ate
Scal
e)
20
0
*Sou
rces
: Bo
tsw
ana’
s co
al fi
elds
: “G
eolo
gica
l Map
of t
he R
epub
lic o
f Bot
swan
a,1
98
4,
Geo
logi
cal S
urve
y D
epar
tmen
t”;
“Ark
ose,
car
bona
ceou
s m
udst
one,
coa
l,sh
ale
and
tillit
e” c
ateg
ory.
Sou
th A
fric
a’s
coal
fiel
ds:
“Min
eral
Map
of t
he R
epub
licof
Sou
th A
fric
a, 1
97
6,
The
Gov
ernm
ent P
rint
er,
Pret
oria
”; “
Coa
l fie
lds”
cat
egor
y.
Pret
oria
Gab
oron
e
AN
GO
LA
D.R
. O
F C
ON
GO
TAN
ZAN
IA
ZAM
BIA
MO
Z.
MA
L.
ZIM
BABW
E
NA
MIB
IA
LESO
THO
BO
TSW
AN
A
Are
a of
Mai
n M
ap
SO
UTH
AFRIC
A
SWA
ZILA
ND
SO
UTH
AFRIC
A
BO
TSW
AN
A