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County election board sued over clean air proposal

By Randy Kraft, WFMZ.com Reporter, RKraft@wfmz.com
Published On: Dec 24 2013 06:48:43 AM CST
Updated On: Sep 19 2013 05:27:17 PM CDT
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Patrick Manwiller/69 News

ALLENTOWN, Pa. -

A lawsuit was filed against Lehigh County's Board of Elections Thursday to get the proposed clean air ordinance for Allentown on the November ballot.

The suit was filed in Lehigh County Court by four members of a petitioners' committee for the Allentown clean air ordinance initiative, who also are members of Allentown Residents for Clean Air (ARCA).

The plaintiffs maintain Allentown's home rule charter requires the election board to put the initiative on the ballot.

They filed a mandamus action, a type of suit requiring  government officials to do their job when their duties are mandatory and the plaintiffs have a clear legal right.

They are asking the court to direct the election board "to print the 2013 municipal election ballot to include the Allentown clean air ordinance for the decision of voters."

The election board is scheduled to meet at 8:30 a.m. Friday in the county government center to finalize the ballot for the November election.

The suit cites language in the city's home rule charter that states 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.

Earlier this year ARCA collected 2,175 signatures of city voters to bring the proposed ordinance before City Council for approval.

On June 19, City Council voted 5-1 to table the ordinance, rather than passing it within the 60 days it  had to do so.

That inaction automatically sent the 15-page proposal to the election board to go on the November ballot in Allentown, so city voters could decide if they want it to become law.

On Aug. 27, the election board voted against putting the ordinance on the November ballot. The lawsuit maintains that action is not based on any legal standard.

If passed, the clean air ordinance would put stiff environmental controls on the Delta Thermo Energy waste-to-energy plant approved to be built along the Lehigh River in the city. Opponents dismiss the controversial plant as an incinerator.

The clean air ordinance  would apply to any new facilities within city limits that would burn more than one ton a day of solid wastes or fuels, like coal or wood.

The proposed ordinance requires that such facilities continuously monitor their toxic air pollution, release the data to the public in real-time on a website, and that they limit  emissions to levels comparable to natural gas power plants.

The plaintiffs are Allentown residents and registered voters: Richard D. Fegley, Diane E. Teti, Edward F. Beck and Marvin M. Wheeler.

The county election board members are County Executive Matthew T. Croslis, Doris A. Glaessmann and Jane M. George. Listed with them as a defendant is Timothy A. Benyo, chief clerk to the election board.

The suit was filed by Atty. Larence M. Otter of Doylestown, Bucks County. The four plaintiffs also are being represented by Atty, Michael Ewall, author of the proposed clean air ordinance.

"The Allentown area has been described in a recent report as the nation's 11th worst asthma capital," said Teti in a statement announcing the suit was filed.

"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.

Ewall stated: "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."