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:
Case: http://ehb.courtapps.com/public/update_info_pub.php?csNameID=4887
Docket: http://ehb.courtapps.com/public/document_shower_pub.php?csNameID=4887
Appeal: http://ehb.courtapps.com/efile/documentViewer.php?documentID=21789

ARCA appeal of air permit:
Case: http://ehb.courtapps.com/public/update_info_pub.php?csNameID=4888
Docket: http://ehb.courtapps.com/public/document_shower_pub.php?csNameID=4888
Appeal: http://ehb.courtapps.com/efile/documentViewer.php?documentID=21808

ARCA appeal of waste permit:
Case: http://ehb.courtapps.com/public/update_info_pub.php?csNameID=4889
Docket: http://ehb.courtapps.com/public/document_shower_pub.php?csNameID=4889
Appeal: http://ehb.courtapps.com/efile/documentViewer.php?documentID=21809

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. http://www.asthmacapitals.com ;https://aafa.org/aafas-2022-asthma-capitalstm-report-lists-most-challenging-cities-to-live-in-the-u-s-with-asthma/

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.