City of Allentown terminates contract with Delta Thermo

The City of Allentown is pulling out of the contract with Delta Thermo Energy.

This news surely spells the death of the experimental trash and sewage sludge incinerator that threatens Allentown.

HOWEVER, the company’s air and waste permits are still out there. The air permit could be sold to other companies who want to develop that site. Their waste permit could be used by anyone here or elsewhere in the state, if not challenged.

We also have an ongoing lawsuit to get the Allentown Clean Air Ordinance on the ballot, so that voters can adopt a law protecting the city against incinerator pollution from any company in the future. This is also critical, since the case will affect whether local governments anywhere in the state can adopt their own clean air laws.

Allentown can breathe easy for now, but let’s not go to sleep. This isn’t over yet.

If you can help give back, your donations are much needed and appreciated, and will help ensure that this victory is final and that other communities also get the support they need.

Waste Industry and Allentown Residents for Clean Air File Challenges to Delta Thermo Incinerator Permits


ALLENTOWN – The Pennsylvania Waste Industries Association (PWIA) and members of Allentown Residents for Clean Air (ARCA) filed separate appeals, challenging the permits granted last month to Delta Thermo Energy A, LLC (DTE).  An air pollution permit and a waste management permit were both issued to DTE by the Department of Environmental Protection (DEP).

The Pennsylvania Waste Industries Association, representing operators of landfills and incinerators throughout the state, challenged only the air permit, while ARCA members challenged both the air and waste permits.

PWIA’s appeal centers on some of the issues they raised in comments last year highly critical of the air and waste permits.  The appeal argues that “Delta Thermo’s Incinerator” is indeed “an incinerator that burns solid waste, as defined under federal and Pennsylvania law and regulations, and should be regulated as such.”

“I think the case is closed on whether DTE is planning an incinerator when the waste industry itself says it’s an incinerator — and their trade association members operate incinerators, like the one in Bucks County,” says Rich Fegley, one of the ARCA members that filed a separate appeal of DTE’s permits.

This language matters because, as PWIA’s appeal argues, DTE is trying to avoid being regulated as a waste incinerator.  They call themselves an energy facility, and state that their waste (processed trash and sewage sludge) is not a waste, but a “fuel.”  This distinction allows them to avoid stricter environmental regulations.  PWIA claims that DEP was wrong to designate the waste as a fuel because it contains some pollutants at higher levels than are found in coal, and because only EPA is authorized to make such a designation.

“The Department issued a Plan Approval for what will become the dirtiest solid waste incinerator in the Commonwealth,” according to PWIA’s appeal.  PWIA claims that the air permit granted to DTE fails to contain appropriate emission monitoring and that its emission restrictions do not meet the Best Available Technology requirements.  “Despite the exciting name for its process — hydrothermal decomposition — this facility is nothing more than an inefficient and more costly type of waste-to-energy incinerator,” they write.  Echoing their comments filed last year, they point out that DTE’s incinerator would produce only about half of the electricity (per ton of waste burned) that other incinerators in the state produce.

PWIA also points out that the waste disposal costs are “significantly higher than market prices.”  In their comments last year, PWIA accused DTE of making “false claims” and noted that landfilling in the Lehigh Valley costs about $60/ton, and that Easton had just signed a 7-year contract for $40.44/ton, yet Delta Thermo represented to Allentown officials that landfills cost $90.48/ton and will increase 7% per year.  Actual landfill costs in the state have stayed stable in the past decade, they state.  These representations convinced Allentown officials to sign a 35-year contract with DTE.

ARCA members, Rich Fegley, Breena Holland and Bonne South appealed the air permit on similar grounds, including a lack of adequate emissions monitoring.  Additional points being appealed include failures to apply regulations for sewage sludge incinerators, inadequate regulation of highly-toxic dioxin emissions, and failure to hold public hearings.

Allentown resident Bonne South was diagnosed with asthma only a few years after returning to the Lehigh Valley. She states “I am concerned about how this experimental incinerator will affect us for generations to come. We already rank as the 11th worst place to live with asthma, and there is no way burning 150 tons of trash and sludge each day will improve conditions. Throughout this process, the public has been misled by Delta Thermo — from the implied cost-savings, to the New Jersey “test facility” which only processed 3-5 pounds of waste and never built or conducted the combustion-to-energy portion, to the claims about “near-zero emissions” they refuse to continuously monitor. I am extremely troubled that Allentown administration signed-off on a 35-year contract with this company, putting Allentown and Bethlehem residents, tens of thousands of children, at ground-zero for testing the health and environmental impact of this experimental technology.”

DEP granted DTE a general permit for the waste management side of their operations.  This permit is also being appealed by ARCA members, mainly on the basis that it’s illegal to grant a general (non-site-specific) permit to a waste incinerator under Pennsylvania regulations.


PWIA appeal:

ARCA appeal of air permit:

ARCA appeal of waste permit:

Summaries of PWIA’s comments on DTE’s air and waste permits (Dec 2013 ARCA press released not yet reported in the media)

Allentown Residents for Clean Air Renews Court Fight for Clean Air Ordinance


Allentown Residents for Clean Air Renews Court Fight for Clean Air Ordinance

ALLENTOWN – Members of Allentown Residents for Clean Air (ARCA) filed a motion in the Lehigh County Court of Common Pleas to bring a clean air ordinance to the Allentown voters.  Last year, ARCA members collected nearly 3,500 signatures, exceeding the 2,000 signature requirement for Allentown voters to put an initiative on the ballot.  The Allentown Clean Air Ordinance initiative would require any company building a new incinerator in the city to continuously monitor about 20 air pollutants, release the emissions data to a website real-time, and to cap emissions for four of those pollutants.

Only one company currently aims to build an incinerator in Allentown: Delta Thermo Energy A, LLC.  They hope to find adequate investors to start building their proposed facility soon, which would burn 150 tons per day of processed trash and sewage sludge.  Delta Thermo Energy was recently awarded air pollution and waste permits by the state Department of Environmental Protection (DEP).  The air permit requires only five pollutants to be monitored on a continuous basis, plus the darkness of the smoke and the global warming pollutant, CO2 — far short of what the Allentown Clean Air Ordinance would require.

Last October, the court refused to compel the county Board of Elections to put the ordinance on the ballot, siding with the county and Delta Thermo Energy’s claims that the ordinance is not legal because it requires approval from the state DEP.  That decision was not technically final, however, and could not be appealed for that reason.  The motion for summary judgment filed with the court seeks a final decision from the court.

ARCA members, including Rich Fegley, argue in a detailed 53-page brief that state law grants local governments the power to adopt their own stricter air pollution laws without needing DEP approval, and that such laws are needed in Allentown because the city is 14th worst in the nation for sooty-air and is the nation’s 11th worst asthma capital.

This motion introduces new arguments from a Pennsylvania Supreme Court case decided in late December, in which the state’s highest court struck down major parts of Act 13, a 2012 law that the court said went too far in supporting the oil and gas industry.  The law, designed to support hydraulic fracturing (“fracking”) for natural gas, overrode local governments’ rights to adopt any sort of ordinance to restrict gas industry development.  For the first time, the court found that the rights to clean air and pure water in the Pennsylvania constitution can be enforced to protect the rights of the people.  It also found that the Commonwealth (including local governments) has a duty to protect these rights.

“If the Pennsylvania Supreme Court can find that our constitutional rights to clean air and water make it illegal for the state to take actions that interfere with those rights, then surely the constitution backs up the clear language in our state law that gives Allentown the authority to adopt its own clean air ordinance. The highest court in the state has clarified that municipalities are obligated to protect the health and welfare of citizens, and that environmental rights are guarantees that have to be protected at every level of government.” says Breena Holland, political science professor at Lehigh University.

The motion also argues that Delta Thermo Energy and Lehigh County misrepresented election law to the county court.  These parties convinced the court last year that Boards of Election are empowered to keep an ordinance off of the ballot if they think it’s not legal.  However, ARCA members’ motion argues that these cases say the opposite.  “Pennsylvania’s law is clear on this,” says Diane Teti, one of the plaintiffs.  “Boards of Elections are empowered to make sure that signatures and notarizations are valid and sufficient, but that’s it.  There is no dispute that we met those requirements, and the Board of Elections is required to put it on the ballot.  Legality of ordinances is for the courts to decide.”

And decide they will.  The Lehigh County Court of Common Pleas has given Delta Thermo Energy and the Board of Elections until July 1st to respond, after which the court will make a final decision.

“This fight is not over,” says Fegley.  “No incinerator will be built in Allentown, and if we have to appeal this all the way to the Pennsylvania Supreme Court to bring our right to clean air to the Allentown voters, we will.”



Motion for Summary Judgment Brief:

Pennsylvania Supreme Court Ruling on Act 13:

Asthma ranking: “Asthma Capitals 2013,” Asthma and Allergy Foundation of America. ;

Delta Thermo Energy waste-to-energy plant gets necessary state permits

Online Media Coverage

  • DEP issues permit to Delta Thermo for waste-to-energy plant – WFMZ Channel 69
  • Controversial Allentown waste-to-energy plant gets necessary state permits – Lehigh Valley Live / The Express-Times
    • The waste-to-energy plant seeks to blend waste with sewage sludge to convert the mixture into a fuel. It will be capable of processing 120 tons per day of municipal solid waste and 47 tons per day of sewage sludge.But opponents of the proposal say the facility is little more than an incinerator that depends on untested technology, and have expressed concerns it will be detrimental to the environment and health of nearby city residents.Opposition to the project prompted a grassroots group of city residents to push for a voter initiative that would establish a clean air law, which would have required around-the-clock emissions monitoring and other restrictions.That voter initiative, which Delta Thermo actively fought against in court, was rejected by the county courts due to procedural errors, a decision later upheld by the Pennsylvania Commonwealth Court.
  • Delta Thermo gets two permits for Allentown waste-to-energy plant – The Morning Call
  • WFMZ Channel 69 – Delta Thermo project moving forward in Allentown Construction start depends on completion of financing
    • It also is intended to give Allentown the option to use or sell energy created by burning municipal waste and sludge.
    • Many residents have voiced concerns about the plant, which they dismiss as a trash incinerator, including the potential for harmful emissions.
    • Some also continue to question whether it’s a good financial deal for the city.

Waste Industry Accuses Delta Thermo Energy of False Claims

The Pennsylvania Waste Industries Association (PWIA) is accusing Delta Thermo Energy (DTE) of making false claims at a public meeting in late October.  The meeting was hosted by the PA Department of Environmental Protection, the agency considering air pollution and waste management permit applications submitted by Delta Thermo Energy (DTE) in the past year.

As comment deadlines on these permit applications have recently expired, these latest comments debunk not only claims made to the public, but claims used to persuade the city to sign the 35-year contract they inked in March 2012.

Their comments open by accusing DTE of making false marketing claims, in violation of the Federal Trade Commission Act.

PWIA says that DTE’s representatives falsely exaggerated the cost of landfills to scare the city into signing a long-term contract.  Landfilling in the Lehigh Valley costs about $60/ton, and Easton just signed a 7-year contract for $40.44/ton, yet Delta Thermo claims that landfills cost $90.48/ton and will increase 7% per year.  Actual landfill costs in the state have stayed stable in the past decade.

Of the three landfills in the Lehigh Valley (all in Northampton County), two are having expansions approved, and have so much capacity that they are being filled with large amounts of waste from New York and New Jersey.

PWIA alleges that Delta Thermo also lied when claiming that high landfill costs are bankrupting Pennsylvania municipalities.  In fact, the only municipality in PA facing bankruptcy related to waste facilities is Harrisburg, which is due to their incinerator, thanks largely to bonds that were entered into to rebuild the incinerator out of similar (unfounded) fears that landfill prices would skyrocket.  Mike Ewall of Energy Justice Network, and attorney for Allentown Residents for Clean Air, warned the Harrisburg City Council in 2003 that the landfill cost scare was false and that the city faced bankruptcy if they went through with the incinerator deal.  The city sought bankruptcy protection in 2011.

PWIA also argues that DTE’s statements are false when they say that their project will only handle Allentown waste, pointing to their contract with the city and area universities, which rely on waste from outside of Allentown.

They also point out misleading comparisons of DTE’s allowable pollution levels to coal power plants and to another trash incinerator in the state.  The comments point out that DTE would be allowed to release 20% more toxic lead pollution into the air than the trash incinerator in Montgomery County, PA — and that their pollution levels will be higher in general, since DTE will need to burn twice as much waste to make the same amount of energy.

Similar to comments made by the Allentown Residents for Clean Air, PWIA points out the lack of Continuous Emission Monitors required in the air pollution permit.  While DTE presented as if they plan to use continuous monitoring, the proposed permit does not require it, even though regulations say it should.  PWIA calls DTE’s approach to this issue “troubling” and says that it implies “much wider concerns regarding the validity of Delta Thermo’s applications, submissions, and other statements regarding this project.”

DTE claims that their waste products (ash and liquid wastes) will be marketable as useful products, even “liquid fertilizer,” yet there is no market for what PWIA calls an “essentially valueless product that is oversupplied” (the ash) and the liquids have never been approved for such use.  Incinerator ash must be landfilled, as efforts to market it for other purposes have failed, as was found in York County when a company stockpiled incinerator ash in a quarry hoping to market it, but was fought by neighbors who objected to the piled ash blowing into their community.

DTE claims their technology has been used in commercial operation for 6-7 years, but their proposed technologies were never used together before at all.  DTE’s own filings show that their plan is experimental and has not been done before anywhere in the world.  As has been found with other new types of incinerators, the combustion technology can work on homogenous wastes, but tends to fail when used for more complicated waste streams, like Delta Thermo’s proposed mixture of trash and sewage sludge.  PWIA points out that DTE’s proposed combustion chamber has never been used for this type of waste before.

Most disturbingly, PWIA noticed that DTE presented an “adulterated” map of where their air pollution would go.  In an otherwise identical map filed with the Department of Environmental Protection, DTE showed an exposed area twice as large as what they presented to the public at the public meeting, apparently concealing the extent of the impacts to Allentown residents.

PWIA’s comments conclude that “this is nothing more than a waste combustion facility despite Delta Thermo’s strained arguments to the contrary.”

# # #


Allentown Residents for Clean Air and PA Waste Industry Comments Skewer DTE Incinerator Air Permit


The Pennsylvania Waste Industries Association (PWIA) and environmental health advocates usually don’t agree on much, but they both agree that pollution permits should be denied to the trash and sewage sludge incinerator planned for Allentown by Delta Thermo Energy (DTE).

Allentown Residents for Clean Air (ARCA) members have been calling the proposed plant an incinerator, not a “waste-to-energy” facility, even citing the fact that DTE’s air pollution permit application lists them as an incinerator.  The waste industry now concurs.  In 37 pages of comments, they cite in detail how DTE’s facility is a solid waste incinerator under state and federal law.  The comments were filed, as were comments by ARCA members, as part of the comment period on the air pollution permit, which ended on Monday.  This, and a proposed waste management permit, are still pending approval by the PA Department of Environmental Protection (DEP).

PWIA calls the project “meritless” and states that the proposed air pollution permit “is incomplete, inaccurate, and a blatant attempt to circumvent clearly applicable requirements” of the Clean Air Act.

PWIA documents that it’s an incinerator and that the facility’s main purpose is waste disposal, not energy generation.  They demonstrate this based on state and federal law as well as the fact that DTE’s revenues would come “almost exclusively from accepting waste for disposal, not from selling electricity.”  In fact, the electric generation would be so minuscule, they argue, that no rational investor would invest even 5% of what DTE says the project would cost.

PWIA points out that Delta Thermo’s proposed facility is considered a “solid waste incineration unit” for purposes of the federal air pollution laws, which the state must enforce.  “Simply calling the project an ‘Energy Production Facility’ does not make it true.  The purpose of this facility is waste disposal.”

PWIA claims that “if this facility is built and operated as allowed under the proposed [air pollution permit], it will be the dirtiest waste facility incinerating waste in the state.”

Echoing ARCA’s concerns, PWIA states that the proposed air permit has a “significant omission” in not doing anything to control dioxin pollution.  Dioxins, made famous as the contaminant in Agent Orange, are the most toxic group of man-made chemicals known to science, and are primarily released from incinerators.  PWIA points out that “no emission estimates, control technology, or monitoring requirements are included in the [air pollution permit] Application for dioxins,” which they call “powerful carcinogens.”  They also call the permits’s failure to analyze mercury emissions a “significant error given the serious potential health effects from these pollutants.”  The Allentown Clean Air Ordinance that community members are trying to get on the ballot would require new incinerators in the city to continuously monitor dioxin, mercury and other pollutants, and would set strict emissions limits on new incinerators to protect air quality.

ARCA’s comments criticize how the proposed air pollution permit allows DTE to operate without knowing what is coming out of their smokestack on a daily basis.  Continuous monitoring technology is only required for one pollutant, a respiratory irritant known as nitrogen oxides.  Only 14 other pollutants must be monitored, and just once within the first six months of operation.  ARCA’s comments point out: “Details on any further testing are not spelled out in their permit.  Even annual testing would be inadequate.  It is like having a speed limit, but allowing drivers to drive with no odometer.  A speed trap would be set just once a year, there are signs warning ‘speed trap ahead’ to warn drivers to slow down, and the driver’s brother runs the speed trap (the companies do their own testing).  In reality, incinerators are ‘speeding’ many other days of the year, with excessive emissions during startup, shutdown and malfunction times, when testing is not done.  Regulating air polluting facilities in this manner is inexcusable, especially in the age where continuous testing technology exists and where the data is able to be made available to the public real-time through a website.”

DTE’s permit is based on their assumptions of low pollution emission rates based on 23-year old data from another industry — data that wasn’t even provided to DEP for their consideration in approving DTE’s air pollution permit.  PWIA notes that DTE made excessive claims of confidentiality on large amounts of information, which the DEP ultimately found not to be confidential and released.  PWIA’s comments found that DTE’s failure to meet the minimum requirements for municipal and county notifications “could be construed as part of a larger scheme (improper confidentiality requests, etc.) designed to hide as much of the proposed project as possible from public review and comment.”

PWIA also argues that Delta Thermo is circumventing state regulations through staged permitting.  In 2010, they sought and received a bare-bones air pollution permit as a research and development facility.  This permit lets them construct the facility, but not to sell electricity.  DTE appealed this permit, but abandoned their appeal earlier this year when they sought a normal air permit, in which they listed themselves as a waste incinerator, but claimed to be an energy facility to avoid stricter permit requirements.

PWIA and Allentown Residents for Clean Air (ARCA) members, in separate comments, both made an issue of how the proposed incinerator would be in an “environmental justice community.”  “Environmental justice is the movement’s response to environmental racism — a pattern where polluting industries, including trash and sewage sludge incinerators, are disproportionately located in communities of color,” said Mike Ewall of Energy Justice Network, whose organization studies this issue nationally.  DEP has an environmental justice policy under which companies seeking permits to locate polluting industries in such communities are to trigger extra public participation requirements, including hearings which have been denied in this case.  Instead, DEP promised a hearing and provided just a meeting, which advocates criticize as a sales pitch, rather than a formal proceeding on the record.  PWIA and ARCA both argue that this policy should have been applied and that formal hearings should have been held.



Pennsylvania Waste Industries Association (PWIA) Comments:

Allentown Residents for Clean Air (ARCA) Comments:



p2: not only is this project meritless, but that the underlying Plan Approval Application is incomplete, inaccurate, and a blatant attempt to circumvent clearly applicable requirements

p3: At its most fundamental level, and pursuant to both federal and state law, the proposed project is a waste disposal project. The revenues expected to be generated by this project are almost exclusively from accepting waste for disposal, not from selling electricity. From a rational investor’s perspective, the revenue generated from the 2.3 MW (net) electric output from the facility1 does not justify a capital investment of even 1/20th of what Delta Thermo has publicly said it will cost to build the project. In fact, the revenue stream Delta Thermo will obtain from selling electricity is of such little importance to the overall project that in a submission to the Department dated October 8, 2010, Delta Thermo indicated that “most of the electric power will actually be donated to the City of Allentown for their Waste Water Treatment Plant and a portion will be used internally for DTE’s operations.” Simply calling the project an “Energy Production Facility” does not make it true. The purpose of this facility is waste disposal.

p4: It is incredulous that Delta Thermo attempts to circumvent applicable state and federal requirements by characterizing this project as an “energy production facility”, when this facility will generate significantly less electricity, per ton of waste combusted, than traditional waste-to-energy incinerators that are also subject to much more stringent operating, emission, and monitoring requirements than those proposed in the Plan Approval for Delta Thermo. If this facility is built and operated as allowed under the proposed Plan Approval, it will be the dirtiest waste facility incinerating waste in the state.

* attempted circumvention of the Department’s regulations through staged permitting;
* failure to address Environmental Justice concerns and/or to prepare a risk assessment that calculates the elevated cancer risk to local residents from its proposed operation.

p6 (fn3): Please note that this so-called “Confidential Version” of the Plan Approval Application contained no confidential information whatsoever. See Right-to-Know Appeal, Docket No. AP 2013-1275.

p7: Delta Thermo’s proposed facility is considered a “solid waste incineration unit” for purposes of the Waste-Related Combustion NSPS

p18: Delta Thermo is a solid waste incinerator subject to the Waste-Related Combustion NSPS because it meets the definitional criteria and is not entitled to any exemption.

p21 (fn22): this “energy production facility” will make just 50% of the electricity from a ton of waste than traditional waste-to–energy incinerators, despite the fact that this facility will have higher air pollutant emissions for each ton of waste incinerated.

p21-22: Delta Thermo’s proposed facility is not a “small power production facility.”  Delta Thermo’s previous attempt to characterize its proposed facility as a “small power production facility” in order to circumvent the requirements of Clean Air Act Section 129 and the waste combustion regulations within 40 CFR Part 60 similarly fails.

p24: As reported by the applicant, contaminant levels detected in those samples were highly inconsistent, with the levels of certain contaminants (i.e. cadmium, nickel) ranging by more than an order of magnitude

p24 (fn26): The results for aluminum, antimony, arsenic, chromium, copper, potassium, magnesium, manganese, lead, and zinc analyses also varied by more than a factor of 2. Delta Thermo has also failed to present any analysis as to what percentage of the metals in its proposed “fuel” will be retained in bottom ash following combustion. Instead, Delta Thermo merely recites model ash retention factors from a 1990 seminar hosted by the cement industry.

p25: Approval of the current proposed Plan Approval would allow circumvention of the appropriate permitting procedures required for solid waste combustion units, and would result in approval of a facility that is non-compliant with the Clean Air Act and potentially RCRA.

p28: Delta Thermo has failed to provide the required BAT analysis, is proposing installation of equipment that does not meet BAT requirements, and has miscalculated the PM-10 emission rate from the facility.

p28-9: The highest reported result for most of the parameters was more than double the lowest value. In many instances, the variances were much higher-approximately one-third (113) of all tested parameters had variances between the low and high sample of at least a factor of four, and two parameters varied by more than an order of magnitude. This is not indicative of production of a “fairly consistent product”; it is direct proof that the processed waste is not consistent and is not homogeneous

p29: Pre-control emissions were estimated by using the high values obtained for certain parameters in the laboratory analysis, and then assuming that virtually none of the metals present in the combusted waste are emitted (for seven ofthe nine metals, pre-control emissions were stated as being between 0.44% and 0.04% of the total metal present in the waste stream). The basis for this assumed emission rate is not the effectiveness of the control devices (as these are pre-control estimates), but rather a paper presented at a conference for a totally different combustion technology prepared twenty-three years ago.30 [See Plan Approval Application, Attachment 3-3; a copy of this paper was not provided to the Department in the Plan Approval Application].  The Department has an obligation to ensure that current and accurate emission factors are used to estimate metal, including HAP metal, emissions. Use of a twenty-three (23) year old paper discussing cement kiln emissions is not reliable.

p30: Other than sorting and removing bulky items and some recyclables, this facility will be accepting and incinerating all of the municipal solid waste it receives. Included in the municipal solid waste that the facility receives will be plastics and other chlorinated materials. Chlorine content is a major factor in the levels of dioxins, furans, and dioxin-like compounds (collectively, “dioxins”) that will be produced in the combustion process and emitted by the facility. Dioxins are powerful carcinogens that are regulated as both Hazardous Air Pollutants and as Persistent Organic Pollutants. No emission estimates, control technology, or monitoring requirements are included in the Plan Approval Application for dioxins. This is a significant omission, and regulating and reducing dioxin emissions is an important objective of the Waste-Related Combustion NSPS. There is no discussion or basis setting forth any analysis by the Department for the selection of the dioxin/furan limits in the proposed Plan Approval in any of the Department’s documents, including the undated Permit Review memorandum.

p31-2: Comment #6: Failure to meet the minimum requirements for municipal and county notifications.
While this failure by Delta Thermo could be viewed as “harmless error” given the demonstrated high level ofpublic interest in the project, this error could be construed as part of a larger scheme (improper confidentiality requests, etc.) designed to hide as much of the proposed project as possible from public review and comment.

p33: Failure of Delta Thermo to submit an application for its proposed WTS appears to be in conflict with the Permit Coordination Policy and the Department should not issue this proposed Plan Approval (or any other permit) to Delta Thermo until all required permit applications have been filed with the Department. We also note that the Department will often “hold” completed permits ready to be issued under one Department program until all other permits required for the project are ready for issuance. It is unclear as to why issuance of Delta Thermo’s permits is not being coordinated as such.

p34: Comment #8: Delta Thermo has attempted circumvention of the Department’s regulations through staged permitting.
Delta Thermo has repeatedly attempt to circumvent the proper air permitting processing procedures, in violation of25 Pa. Code§ 127.216. Specifically, the Department approved a Request for Determination (“RFD”) for a “Research and Development” (R&D) facility to be constructed on the Allentown site by Delta Thermo in 2010. Despite various and sundry efforts by Delta Thermo to have the restrictions applicable to R&D facilities lifted in the RFD (including litigation), the Department did not do so and the Environmental Hearing Board dismissed Delta Thermo’s appeal. Delta Thermo freely admits that the facility proposed to be constructed in the pending Plan Approval Application is the same facility approved in the RFD. In its March 29, 2013 Plan Approval Application transmittal letter, Delta Thermo indicates that it believes it can begin construction for this facility, to be operated for commercial purposes, under authority of the RFD that authorizes only R&D operations, despite the fact that it expressly indicates that it has no intention of operating an R&D facility and despite the fact that no plan approval has been issued. To do so is a classic case of circumvention.

p34: According to the Department’s eMap website and the proposed facility’s latitude and longitude (as provided by Delta Thermo in the GIF), the proposed facility is almost perfectly centered in an environmental justice community. There is no indication that the Department or Delta Thermo have followed the public participation procedures in the Department’s Environmental Justice Public Participation Policy, Document No. 012-0501-002 (April 24, 2004) to ensure fair and meaningful involvement of the community, and to otherwise ensure fair treatment -that no group of people, including any racial, ethnic, or socioeconomic group, should bear a disproportionate share of the negative environmental consequences resulting from industrial, municipal, and commercial operations or the execution of federal, state, local, and tribal programs and policies. This is true despite the fact that the project at issue involves waste and sludge incineration, a classic example of a so-called “trigger permit” under Department parlance.  Given the high levels of public interest and opposition that exists to this project, as documented in press clippings in the Department’s files, this facility also should have triggered the public participation procedures, from initial application submission.

p35: The dispersion analysis included in the Plan Approval Application does not analyze emissions of mercury or dioxin. This is a significant error given the serious potential health effects from these pollutants.  Just as troubling is the fact that no risk assessment for cancer and non-cancer effects has been required by the Department. Landfill gas-to-energy projects, using much cleaner, proven, and reliable technology, with significantly lower emission rates, have been required to submit dispersion models (far exceeding the limited scope of applicant’s effort) and full-blown risk assessments. The proposed Plan Approval should be denied as environmental justice concerns, including a calculation of the increase in expected cancer rates, has not been performed. This issue is even more troubling given that the applicant has made no effort to include any information relating to its dioxin emissions in the Plan Approval Application.

p36: Finally, we note that Delta Thermo improperly claimed the dispersion analysis, as well as most of its Plan Approval Application, to be confidential business information. The Department ultimately released all of the claimed “confidential” information as it found that none ofthe information was in fact classified as confidential. It is black-letter law that emission information cannot be held confidential by the Department, and Delta Thermo’s multiple attempts to claim the dispersion analysis as confidential, thus avoiding from the affected public an opportunity to review this document, possibly surely hints at what the results of a risk analysis may show.

p36: Conclusion:

Issuance of the proposed Plan Approval would violate the Air Pollution Control Act, the Clean Air Act, and their implementing regulations. The Plan Approval Application that the Department relied upon in preparing the proposed Plan Approval is incomplete, inaccurate, and attempts to circumvent inclusion of clearly applicable requirements. As a result, because the Department was forced to rely upon erroneous information that was supplied in the Plan Approval Application, the proposed Plan Approval does not meet the minimum requirements set forth in 25 Pa. Code§ 127.12b(b), nor the procedural requirements set forth in 25 Pa. Code § 127.43a.

At its most fundamental level, and pursuant to both federal and state law, the proposed project is a waste disposal project. The proposed project would produce half of the energy of traditional waste-to-energy incineration, while being subject to significantly much less stringent emission limits, as well as operating, monitoring and other requirements. PWIA urges the Department, under authority 25 Pa. Code 127.13b, to reject Delta Thermo’s Plan Approval Application.

Allentown Residents for Clean Air Says Judge Varricchio Got it Wrong


ALLENTOWN – The Allentown Residents for Clean Air group (ARCA) says that Judge Michele Varricchio got it all wrong when she denied Allentown voters the right to vote on a clean air ordinance this November.  ARCA members collected over 2,000 signatures to bring this ordinance to the voters in response to plans by Delta Thermo Energy to burn 150 tons per day of trash and sewage sludge in the city.

On August 27, the Lehigh County Board of Elections ruled that the Allentown Clean Air Ordinance initiative cannot go to the voters because it “does not properly recognize and account for the Department of Environmental Protection’s mandated approval role.”  On appeal, brought by ARCA members, the Lehigh County Court of Common Pleas agreed, once again denying voters the right to vote on the clean air initiative.

The judge’s opinion, issued Wednesday, appears to contradict her statements in court last Friday.  The conflict comes down to whether a local government, like the City of Allentown, can adopt its own air pollution law without approval by the state Department of Environmental Protection (DEP).  Petitioners supporting the Clean Air Ordinance argue that the ordinance is authorized under a section of the state’s Air Pollution Control Act — 35 P.S. 4012(a) — which allows any local government to adopt stricter air pollution laws without state approval.  The county and Delta Thermo Energy argue that the ordinance falls under another section of law — 35 P.S. 4012(b) — which applies only to Philadelphia and Allegheny Counties, allowing those counties to adopt comprehensive air pollution programs that replace the role of DEP.  Only 4012(b) requires DEP approval.

In court last Friday, Judge Varricchio stated clearly that “(b) does not apply,” giving much hope to supporters of the Clean Air Ordinance.

“The Judge’s statement in the courtroom was correct, but apparently she changed her mind over the weekend,” said Rich Fegley, one of the Clean Air Ordinance petitioners.  “If her ruling stands, communities throughout the state will lose their rights to adopt local air pollution laws stricter than the state minimums.  DEP would be given veto authority over local governments and citizens.  They’re not an agency known to support the rights of local governments.”

“We are not giving up. We have already appealed this decision to the Commonwealth Court.  One way or another, this incinerator will be stopped. Allentown ranks 11th on the list of asthma capitals and there is too much cancer in our community –  we can’t allow such a toxic industry to make things worse,” said Diane Teti, one of the petitioners.

“I was dismayed, but, sadly, not surprised when three appointed Election Board officials took it upon themselves to cancel an election and disregard petitions of 2,200 Allentown voters. I recognize that there is a big gap between the interests of the people and the interests of government officials.  I am, however, amazed that a judge would uphold such an arbitrary and capricious denial of the democratic process, and support the county officials taking away the rights of the citizens of the city.  The judge’s decision declares that in Lehigh County, Allentonians’ City Charter rights to petition for a referendum are subject to approval by unelected county officials, and the opinions of state DEP political appointees in Harrisburg.  Neither the American tradition of democracy nor the Pennsylvania Air Pollution Control Act supports Judge Varricchio’s decision,” said county resident Al Wurth, a political science professor at Lehigh University in Bethlehem.

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Lehigh County Judge’s Opinion Letter

Conclusion quoted from the end of the Judge’s opinion letter:

As such, this court agrees with the conclusion of the Board. Timothy A. Benyo, Chief Clerk of the Election Board provided an explanation of the Boards’ August decision. He wrote that the Board found that the “City of Allentown Clean Air Ordinance, as proposed, does not properly recognize and account for the Department of Environmental Protection’s mandated approval role.” The proposed ordinance establishes an air pollution control program that is not authorized pursuant to APCA, 35 P.S. 4012(b) in that the City of Allentown is not a first or second class county. Furthermore, the proposed ordinance does not provide for or acknowledge the required application and approval of the Department in that the proposed ordinance is effective immediately. Therefore, the decision of the Board is affirmed and the writ of mandamus is denied. – Michele A. Varricchio, J.

Allentown Residents for Clean Air Sues Election Board to Bring Clean Air Ordinance to Voters


ALLENTOWN – Four members of Petitioners’ Committee for the Allentown Clean Air Ordinance initiative, also members of Allentown Residents for Clean Air (ARCA), filed suit in the Lehigh County Court of Common Pleas today to require the Lehigh County Board of Elections to put the initiative on the November ballot, as required by the Allentown Home Rule Charter.

They filed a mandamus action, a type of suit requiring the government to do their job when their duties are mandatory and the plaintiffs have a clear legal right. The suit cites the Allentown Home Rule Charter’s language that states that the city council “shall submit the proposed or referred ordinance to the voters of the City” if they do not vote to pass the ordinance themselves. On June 19, City Council voted to table the ordinance, forgoing to pass it within the 60 days they had to do so.

At their August 27th meeting, the Lehigh County Board of Elections voted to deny Allentown residents their right to vote on the Allentown Clean Air Ordinance initiative. The ordinance, if adopted, would apply to any new facilities within in the city limits that would burn more than one ton a day of solid wastes or fuels, like coal or wood. It would apply to the trash and sewage sludge incinerator planned by Delta Thermo Energy. The proposed ordinance requires that such incinerators continuously monitor their toxic air pollution, release the data to the public real-time on a website, and that they limit their emissions to levels comparable to natural gas power plants.

“Allentown area has been described in a recent report as the nation’s 11th worst asthma capital. While collecting signatures, we spoke with many parents with asthmatic children who were eager to sign to bring this clean air issue to the voters. We have a right to clean air and a right to vote on this that must be honored,” said Diane Teti, one of the plaintiffs.

Mike Ewall, one of the attorneys for ARCA, explains: “State law clearly gives Allentown and other local governments the right to have local air pollution laws stricter than state or federal law. Sadly, the Board of Elections was confused by faulty legal opinions arguing that Allentown can’t do this without state permission.”


Recent related news article from WFMZ-69

ARCA appeals to Lehigh County commissioners

Here is the latest news on our Clean Air Ordinance. The Lehigh County Commissioners are looking into the appeal process for ARCA to appeal the Lehigh County Elections Board’s rejection of our ordinance. Stay tuned.

quote From WFMZ-69

Thwarted clean air law advocates appeal to Lehigh County commissioners

“This is a real crisis of democracy,” said county resident Al Wurth, a political science professor at Lehigh University in Bethlehem. “The cancellation of an election is not something I thought I would read about in this country, much less my home county.

“I’m very concerned as a citizen of Lehigh County that the county is usurping Allentown’s sovereignty.”

“I share your concerns,” said Commissioner Michael Schware, who resides in Allentown. The process is deeply flawed, said Commissioner Vic Mazziotti. Wurth called on county commissioners to tell the election board to reconsider its decision and let city voters decide whether the air pollution ordinance should become law. But Commissioner Scott Ott, who chaired the meeting, said the commissioners do not have the power to overrule the election board. Ott added: “Do not interpret our desire to follow the law with a lack of sympathy for your cause.” Commissioners have asked the county’s lawyers to look into whether election board decisions can be appealed. They also hope to get a clear explanation from the election board about why it rejected the ballot initiative.

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