Both Hunter and Wurth noted this is the second time Allentown residents unsuccessfully have followed the city charter to get a controversial new law passed.

In February, the county election board ruled that an initiative aimed at stopping the lease of the city’s water and sewer operations would not appear on the May ballot because the more than 4,000 petition signatures had been collected late in 2012.

State law required that they had to be collected early this year, according to the election board.

If passed, that initiative would have allowed city residents to vote on selling or leasing any city asset worth more than $10 million.

DEP’s role in decision

Fegley said this time the election board has left itself “very vulnerable to challenge, since they only justify their decision by saying that our Allentown clean air ordinance ‘does not properly recognize and account for the Department of Environmental Protection’s mandated approval role’.”

Fegley argued: “There is no such mandated approval role since the ordinance does not purport to create nor constitute a program that would replace DEP’s air regulatory role. The county {board}didn’t really understand what they were doing.”

Wurth said if voters think the proposed law would override DEP’s authority and they don’t want that to happen, they won’t vote for it. He said if voters would vote for it, Delta Thermo or DEP could challenge it in court.

Wurth told council he was speaking on behalf of the Sierra Club, which supports both the proposed clean air ordinance “because it would improve the quality of air in Allentown” and for the rights of Allentown residents to have that ordinance placed on the ballot.

In late May, the city solicitor’s office issued a legal opinion to City Council that the proposed clean air ordinance was fatally flawed.

Guridy reminded Fegley that council tabled any action on the proposed ordinance in June because it had just received a letter from a DEP attorney that indicated state law would supersede the proposed city law.

“That was only opinion, it was not fact,” maintained Fegley. “The opinion left council unable to decide. So council basically said ‘we’ll let the citizens decide’. Therefore it goes immediately on the ballot. The board of elections is there to make sure it goes on the ballot properly.”

O’Connell cast the only vote against tabling on June 19 because he wanted council to vote on the proposed ordinance. On Wednesday, O’Connell reminded Fegley that he supported the ordinance.

In the spring of 2012, City Council approved a 35-year-contract with Delta Thermo to build the plant, 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 in June. City Council member Jeanette Eichenwald, who joined O’Connell in voting against the Delta Thermo plant last year, was not at that June meeting.

Eichenwald also was not at Wednesday’s meeting. She and council member Jeff Glazier were observing the Jewish holiday Rosh Hashanah.

Also during the meeting, city council hired a new police officer, Robert T. Busch of Annandale, N.J., at an annual salary of $46,856.