Petition for Rehearing — Clean Air Coordinating Committee v. Roth Adam Fuel Co.

In THe

Supreme Court of the United States

Octoser Term, 1972

No. 72-243

CLEAN AIR COORDINATING COMMITTEE,

Petitioner,

vs.

| ROTH ADAM FUEL COMPANY,

| CHICAGO COAL MERCHANTS ASSOCIATION,

| ILLINOIS POLLUTION CONTROL BOARD,

| Respondents.

On Petition For A Writ Of Certiorari To The United

States Court Of Appeals For The Seventh Circuit

PETITION FOR REHEARING

The petitioner herein respectfully moves this Court for

an order (1) vacating its denial of the petition for a writ

of certiorari entered on January 8, 1973, and (2) granting

the petition.

After the petitioner submitted its briefs, the United

States, at the invitation of this Court, submitted an amicus

brief which stated that this Court should not hear this

case because a substitute federal plan was scheduled to go

into effect in 1975 close to the time that the enjoined state

andes

suggested federal plan would have gone into effect so that

there would be minimal harm. While in theory this is cor-

rect, in reality it is in error. Almost one year has passed

since the state plan was supposed to be submitted to the

federal government and there is yet no final plan of any

type from any source for the implementation of the federal

regulations regarding emissions from burning of solid fuel.

The time already lost will undoubtedly destroy all chances

of meeting any 1975 deadline. This is illustrated by recent

testimony by the Chicago Board of Edueation at a local

hearing regarding its attempts in a similar, but self im-

posed, plan begun in 1972 to convert all of its coal burning

boilers by 1975. It was pointed out that such conversions

could oceur less than five months a year because the boilers

were needed for possible cool or cold weather and during

the limited time available for conversion, industry capacity

to make conversions was limited. The homes and businesses

involved herein cannot convert except during warm weather

and the industry capacity which was found to be limited

by the school system will certainly be limited in its ability

to convert the thousands of homes and businesses involved.

Due to the state court order preventing consideration of

regulations for the federal plan, one of the three warm full

seasons before July of 1975 has been lost for people are

waiting for a final regulation to see what they are required

to do. Congress permitted review of the regulations when

they are finalized and that undoubtedly will cause the loss

of another warm season destroying all practical possibili-

ties of meeting the 1975 deadline for a plan to achieve air

quality “requisite to protect the public health.” (42 U.S.C.

§1857e-4). The amicus brief says that this was anticipated

and permitted. That is wrong. Congress did not intend the

delay of both state and federal court review to destroy all

time schedules. Under the federal act, state participation

is integral in the sequences and review of such sequences

was to be permitted only once, and that was only after

vielen

promulgation or approval of the state plan and only in the

federal court. (S. Rep. No. 91-1196, 9ist Cong., 2nd Sess.

41 [1970)).

Even if the regulations become final soon, the damage

has already been done due to the state court injunction.

Future implementation plans are forthcoming and if what

occurred is permitted to occur again, industry will not

have lead time to know and meet standards and deadlines

will be impossibilities to everyone’s serious detriment.

CONCLUSION.

For the reasons set forth above, as well as those con-

tained in the petition for writ of certiorari, petitioner

prays that this Court grant rehearing of the order of

denial, vacate that order, grant the petition and review the

judgment and opinion below.

Respectfully submitted,

Ricuarp M. Kates

Counsel for Petitioner

CERTIFICATE OF COUNSEL.

As counsel for the petitioner, I hereby certify that the

petition for rehearing is presented in good faith and is not

for delay and is restricted to the grounds specified in

Rule 58(2).

/s/ RA M. Kates

Counsel for Petitioner