ALLENTOWN, Pa. - It looks like Allentown's voters will decide if the city needs a tough new clean air ordinance to control and monitor air pollution coming from the planned Delta Thermo Energy waste-to-energy plant.
On Wednesday night, City Council voted 5-1 to table taking action on the proposed Clean Air ordinance, which was brought before it via petitions signed by 2,175 city voters.
Friday is the deadline for City Council to act on the proposal and it does not intend to call another meeting to do so, said council president Julio Guridy after the meeting. "With us, it's done," said Guridy.
Unless stopped by some legal challenge, approval of the proposed ordinance now will be decided by the city's voters in the November election.
City Council had until June 21 to act -- 60 days from April 22, when City Clerk Michael Hanlon confirmed that sufficient legitimate petition signatures had been submitted to bring the ordinance before council.
Guridy said the proposal now will go to Lehigh County's elections board. "The county board of elections will decide whether they'll put it on the ballot," said council member Ray O'Connell.
"I feel pretty confident," said resident Rich Fegley, who led support for the proposed ordinance. "I can't see why it wouldn't go on the ballot."
Fegley was the only member of the public who addressed council about the proposed law before the vote to table.
Atty. Mike Ewall, who wrote the 15-page ordinance but was not at the meeting, was not surprised by council's inaction.
"That's the easiest way out for them—it's easier than voting no," said Ewall, founder and director of the Philadelphia-based Energy Justice Network, which supports communities "threatened by polluting energy and waste technologies." Ewall helped organize the petition drive that brought the proposed ordinance before City Council.
Saying the city's voters are "the only people we can trust," Ewall is "absolutely" optimistic those voters will approve the ordinance in November.
"Who's not for clean air, especially in Allentown?" said Ewall, explaining the entire Lehigh Valley suffers from poor air quality.
O'Connell cast the only vote against tabling because he wanted council to vote on the ordinance: "We owe it to the people who signed the petition to vote yes or no."
In the spring of 2012, City Council approved a 35-year-contract with Delta Thermo, after packed public meetings and many hours of debate.
"I voted against the Delta Thermo project because it was totally unproven technology and environmentally unsound," said O'Connell Wednesday. "I fully support this clean air act….I'll be voting yes for the clean air act."
City Council member Jeanette Eichenwald, who joined O'Connell in voting against Delta Thermo last year, was not at Wednesday's meeting.
Guridy said the ordinance would have become law within 10 days if council had approved it.
No time left for review
Part of the reason for council's indecision was that it requested a written legal opinion about the proposed ordinance from the state Department of Environmental Protection, but at least some council members did not receive that opinion until Wednesday. (It is dated June 19, but the city administration released it to Channel 69 News Tuesday afternoon.)
Council member Joe Davis moved to table the proposed ordinance, saying he had just received DEP's opinion as well as a written response to it from Ewall.
"With this new information, I would feel very uncomfortable voting," said Davis. Council member Cynthia Mota agreed.
Council member Peter Schweyer said a no vote by council would send a signal not only to the city's residents but also to the county elections board that a majority of council members oppose the clean air proposal.
"If council doesn't vote on it, it still goes to the ballot as if we voted no," said Schweyer.
That was confirmed by Assistant City Solicitor Frances Fruhwirth: "The [city] charter says if council fails to take action –and that could be either a negative vote or nothing at all – then it goes to the county."
Schweyer maintained voting to table sends a different message: that council received information only a few days before the deadline to make a decision.
Schweyer, who seconded Davis' motion to table, doesn't believe anyone on council opposes more monitoring, which is required in the ordinance. But he does have a problem with trying to make a decision based on "two competing pieces of paper that were dated today. And there is a significant difference between the two of them."
"This last-minute doubt was not helpful to the situation," said Fegley after the meeting. "It just served to confuse."
Legal debate about proposed law
The 48,000-square-foot Delta Thermo plant will be built on three acres leased from the city, above the Lehigh River between Union Street and Allentown's sewage treatment plant. The company hopes to have the $49-million plant completed by next year. It will operate round-the-clock, burning 108 tons of the city's municipal solid waste and 42 tons of its sewage sludge every day to produce electricity.
The proposed Clean Air ordinance would regulate that plant with more stringent pollution controls and monitoring than required by the state, and make it much more expensive to build – perhaps prohibitively expensive.
For those reasons, the proposed ordinance may be subjected to legal challenges either before or after it might become law in Allentown.
On May 28, the city solicitor's staff advised City Council the ordinance is "fatally flawed."
In a written legal opinion to council, the solicitor's office said the ordinance appears to unconstitutionally target only Delta Thermo Energy's plant. That opinion suggested "an affected party" could challenge the ordinance if it goes on the ballot in November.
"The entire ordinance will be subject to legal challenge," predicted that unsigned opinion. "Adopting the proposed ordinance may be a breach of the contract between the city and Delta Thermo Energy, exposing the city to liability for damages."
After Wednesday's meeting, Guridy said Atty. Marc Feller, who represented the city in reaching the deal with Delta Thermo, also sent council a short memo warning approving the ordinance could breach the city's agreement with Delta Thermo.
Responded Fegley: "He's not stating a fact; he's saying he believes it may."
During the meeting, Fegley, who represents Allentown Residents for Clean Air, told council he was feeling pretty confident after reading the DEP opinion. He noted that opinion did not say the proposed Clean Air ordinance is fatally flawed or illegal.
"It is legitimate, it's legal," argued Fegley.
That opinion, signed by DEP Chief Counsel David Raphael, concludes by saying DEP believes if the proposed Clean Air ordinance is enacted, "it is likely to be preempted" by Pennsylvania's Air Pollution Control Act.
"It's saying that it's likely; it's not saying it definitely will," said Fegley.
Fegley said if voters approve the ordinance in November, and DEP still has issues with it, "they would sue the city and we would have to make any corrections to this ordinance that was passed by the citizens."
The DEP memo states Allentown has only limited authority to enact ordinances under the state's air pollution control act. It states only first and second-class counties are authorized to enact comprehensive air pollution control programs and that even those counties need DEP approval to do so.
In his response, Ewall stated the state's Air Pollution Control Act allows local governments –not just counties, but cities, towns, townships and boroughs -- to have air pollution laws that are stricter than state or federal law. He said the penalties in Allentown's proposed ordinance are no stricter than those in state law and that the language of the ordinance "is copied nearly word-for-word from the state law."
Ewall also stated Allentown does not intend to implement its own air pollution control program, as Philadelphia and Allegheny counties have done.
Allentown, PA 18102