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.