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 

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.