A proposed city ordinance that would impose tough pollution controls on the planned Delta Thermo Energy waste-to-electricity plant is “fatally flawed,” the city solicitor’s office advised Allentown City Council Tuesday night.
A group called Allentown Residents for Clean Air collected 2,175 signatures to get the proposed clean air ordinance before City Council.
If council does not act on it by June 21, or if council votes it down, the fate of the proposal – Bill 26-- will be decided by the city’s voters in the November election.
City Council discussed Bill 26 for more than two hours during a lightly-attended committee-of-the-whole meeting that began at 6 p.m. Tuesday in City Hall.
By consensus, council tabled action on the bill but will schedule another public meeting on it before June 21. That recommendation came from council member Peter Schweyer, who said: “I don’t want to kill this bill.”
“I’d like to get a lot more information than we have right now,” said council president Julio Guridy.
Several residents called on council to approve the ordinance to protect the health of city residents from air pollution.
Residents told council at least three other Pennsylvania municipalities have passed clean air ordinances with stricter requirements than those imposed by the state or federal government – adding one of those municipalities successfully withstood a legal challenge to its ordinance.
“Let’s not have fear of litigation stop us from doing the right thing,” said resident Leslie Shiner.
Much of the discussion focused on why the city solicitor’s office did not want City Council to make public the solicitor’s three-page legal opinion about Bill 26.
“What is being hidden from us?” asked resident Rich Fegley. “What’s so private and confidential in the letter from the solicitor? The public has a right to know what the administration recommended to council and why. Who paid for the solicitor’s opinion? The public paid for it.”
“It’s an internal document,” said Guridy. “I was told by our attorney not to share that letter with you and I’m going to abide by that.” He cautioned other members of council not to share the memorandum without first speaking to the city solicitor.
“We’ve always been told that solicitor’s opinions are considered attorney/client privilege,” said Schweyer.
“That opinion is always given when there’s something they don’t want the public to know,” said City Council member Jeanette Eichenwald.
WFMZ obtained a copy of the city solicitor’s legal memorandum shortly after the meeting.
It warns the proposed ordinance appears to unconstitutionally target only Delta Thermo Energy’s plant. It also suggests that “an affected party” could challenge the ordinance if it goes on the ballot in November.
“The entire ordinance will be subject to legal challenge,” predicts the unsigned memorandum. “Adopting the proposed ordinance may be a breach of the contract between the city and DTE exposing the city to liability for damages.”
In the spring of 2012, City Council approved that 35-year contract for Delta Thermo to build its plant, after public meetings and much debate.
The 48,000-square-foot plant will be constructed on three acres leased from the city, between Union Street and Allentown’s sewage treatment plant. The company hopes to have the plant built and operating 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.
While some residents concentrated on that section of the proposed ordinance that deals with monitoring air pollution, Bill 26 also requires controlling air pollution from the plant, with steep, city-imposed fines for violations. The city solicitor’s memo states criminal and civil penalties in such an ordinance must mirror those in state law.
Schweyer said the city charter prohibits City Council from making any substantive changes to the proposed ordinance.
He said proponents of Bill 26 voluntarily could withdraw it, but would have to collect another 2,000 signatures if they wanted to present council with a revised ordinance. He added: “I’m not saying you should do that.”
Guridy said another proposed clean air ordinance could be introduced by council that does not have the flaws that are in Bill 26.
Council asked the solicitor’s office for a legal opinion on the proposed ordinance, which was written by Atty. Mike Ewall, founder and director of the Philadelphia-based Energy Justice Network, who helped organize the petition drive that led to the proposed ordinance.