Energy Justice Network Pushes for Clean Air in Allentown, PA

Energy Justice Network Pushes for Clean Air in Allentown, PA

June 18, 2013. Source: Colin McEvoy, The Express Times 

A clean air bill proposed by opponents of the planned Allentown waste-to-energy plant may be at odds with state law. The city released a copy of a letter today from the Pennsylvania Department of Environmental Protection arguing that any such ordinance is pre-empted by state law.

Opponents of the planned incinerator gathered 2,175 signatures to propose an ordinance that would include around-the-clock monitoring of Delta Thermo Energy Inc.

City council approved a 35-year contract with the company in March 2012, and they plan to build a $49 million waste-to-energy facility on 3.1 acres along the Little Lehigh Creek.

The proposed clean air bill, which will be voted upon by city council Wednesday, would require monitoring, data disclosure, emission limits, fees and penalties to any new waste-to-energy facilities built in Allentown. But David Raphael, the DEP's chief counsel, told the city such monitoring falls under the department's "exclusive authority," and that if the bill were passed it would be preempted by the Pennsylvania Air Pollution Control Act.

In a two-page letter, Raphael also said only counties of the first and second class -- not cities like Allentown -- can enact comprehensive air pollution control programs, and even then only with the DEP's approval. "All other municipalities, including the city of Allentown, are subject to the administrative procedures under the APCA for the abatement, reduction, prevention and control of air pollution," the letter said.

That assertion was strongly denied by Mike Ewall, an attorney from the Philadelphia-based Energy Justice Network, and the author of the proposed Allentown clean air bill. Ewall cited a section in the APCA itself that specifically states the law does not prevent cities or other municipalities from enacting air pollution ordinances "which will not be less stringent" than the APCA itself.

"It couldn't get more clear than that," Ewall said. "This ordinance is allowed by law. What (the DEP) is writing is completely contrary to what state law says."

Council President Julio Guridy said last week that a DEP opinion found the proposed ordinance "fatally flawed." He refused to release the opinion based on attorney-client privilege, which drew criticism from members of the public.

Council previously tabled the proposed bill, but are scheduled to vote on it Wednesday. If it isn't adopted, the petitioners can seek to turn it over to the voters for referendum.

In his letter, Raphael said the APCA authorizes the DEP to set the ensure proper operation of an air contamination source, and require the source to reduce or control emissions of air pollutants. The APCA also empowers the Pennsylvania Environmental Quality Board to adopt regulations that establish maximum allowable emissions rates and require the installation of air pollution control devices, Raphael said.