06-4704-OP _________________________________________________________

IN THE 

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

_________________________________________________________

In re: State of Vermont, Petitioner

_________________________________________________________

BRIEF OF AMICI CURIAE

NORTHEAST CLEAN AIR COALITION

&

PEOPLE FOR LESS POLLUTION, INC. 

IN SUPPORT OF PETITIONER STATE OF VERMONT

_________________________________________________________

Emily J. Joselson, Esq. Ronald A. Shems, Esq.

Erin Ruble, Esq. Rebecca Boucher, Esq.

LANGROCK SPERRY SHEMS DUNKIEL KASSEL & 

WOOL, LLP & SAUNDERS PLLC

P.O. Drawer 351 91 College Street 

Middlebury, VT 05753-0351 Burlington, Vermont 05401

(802)388-6356 (802) 860 1003

(802)388-6149(fax) (802) 860 1208 (fax)

ejoselson@langrock.com rshems@sdkslaw.com

 

Attorneys for: Attorneys for:
People For Less Pollution, Inc. Northeast Clean Air Coalition

TABLE OF CONTENTS
TABLE OF AUTHORITIES
CORPORATE DISCLOSURE STATEMENT (F.R.App.P. 26.1)

I. The Northeast Clean Air Coalition is an unincorporated 

association.

II. Pursuant to Rule 26.1 of the Federal Rules of Appellate Procedure, 

People For Less Pollution, Inc. certifies that no publicly held 

corporation or other publicly held entity owns 10% or more of People 

For Less Pollution, Inc.
STATEMENT OF INTEREST OF AMICI CURIAE

I. NORTHEAST CLEAN AIR COALITION.

The Northeast Clean Air Coalition (NECAC) was established 

specifically to protect the children, citizens and environment in the 

Middlebury, Vermont, Addison County region from the harmful effects 

resulting from International Paper Company’s Ticonderoga, NY 

proposal to burn 72 tons (144,000 pounds) of tires daily. NECAC 

believes that the tire burn will increase morbidity and mortality of 

children, citizens and wildlife throughout this area. The Northeast 

Clean Air Coalition’s mission is to protect children and the public 

health and environment from the harmful impacts of air and water 

pollution. 

The majority of NECAC members live within fifteen miles of 

International Paper, Ticonderoga’s Paper Mill and in the direct path of 

the toxic air pollution emissions. 

II. PEOPLE FOR LESS POLLUTION, Inc.

People for Less Pollution ("PLP") is a non-profit citizen's group 

committed to opposing an increase of dangerous fine particulate 

emissions in the Champlain Valley. The group formally incorporated in 
the State of Vermont in May 2005, in response to IP’s stated intention 

to burn tire-derived fuel (TDF) without an electrostatic precipitator 

(ESP). The group consists of a broad cross-section of the community, 

including doctors, attorneys, engineers, scientists, artists, farmers, 

legislators, teachers, and counselors. The members hale from a number 

of Vermont towns closely situated to the plant.
ARGUMENT

I. INTRODUCTION & SUMMARY OF THE ARGUMENT

The amici fully support the State of Vermont’s request for a 

temporary injunction enjoining the commencement of the proposed 

burning of tires at the IP Ticonderoga Mill. The amici submit this brief 

to make clear the human toll of the proposed tire burn – its significant 

adverse impacts on the health and safety of Vermont residents and 

business. 

On September 20, 2006, the New York State Department of 

Environmental Conservation (NYSDEC) issued a permit modification, 

allowing IP to burn 72 tons of used tires daily as additional fuel for its 

paper mill. Because IP’s smoke stacks are not equipped with ESPs, 

which are standard air pollution control equipment, IP’s proposed 

burning of TDF will release numerous additional toxins and 

carcinogens into the air. 

Vermont, located directly across Lake Champlain, is less than one 

mile from the mill. Prevailing winds blow from west to east, carrying 

these additional toxins and carcinogens from the IP mill to Vermont. 

These toxins will have both a direct short-term adverse effect and a 
long-term cumulative effect on the health and well being of Vermont 

residents, farms and the environment. 

Amici therefore believe it is critical that the status quo be 

maintained while the United States Environmental Protection Agency 

(EPA) takes the full time needed to review the air pollution control 

permit modification issued by the New York State Department of 

Environmental Conservation authorizing this tire burn. 42 U.S.C. § 

7661d(b)(2). 

Likewise, amici believe it is critical to maintain this Court’s 

jurisdiction over this matter. Opportunity for the full regulatory and 

judicial processes should be allowed, before Vermonters are subjected to 

the “fall out” from the proposed tire burn. 

II. THE TIRE BURN WILL EMIT SIGNIFICANT POLLUTANTS, 

THE EFFECT OF WHICH ARE INADEQUATELY ADDRESSED IN 

THE PLANT’S PERMIT MODIFICATION

The nature of the tire-derived fuel that IP proposes to burn 

necessarily engenders significant increases in emissions of harmful 

pollutants, including small particulates, heavy metals such as mercury, 

and dioxins. The toxicity of these substances has prompted tighter 

regulations from the EPA, as a substantial body of scientific evidence 
continues to mount pointing to their significant adverse environmental 

and health effects. 

While technology (in the form of an ESP) exists to moderate the 

effects of these emissions, the NYSDEC has not required it in the 

permit modification.1 Nor does the permit modification meaningfully 

address significant issues concerning the composition of the fuel, the 

process of monitoring toxic emissions, or the means of preventing such 

emissions. Without such information, IP’s air emissions cannot be

adequately regulated as mandated by the Clean Air Act.

The magnitude of the health and environmental impacts at stake, 

combined with the nature and number of the omissions in the 

NYSDEC’s permit modification, compel the conclusion that the 

Administrator of the EPA must be afforded the full 60 days granted for 

review under the Clean Air Act.

A. The Proposed Tire Burn Will Produce Significant Harmful 

Emissions

Substituting TDF for part of the oil and wood waste now burned 

by IP will dramatically increase pollution. Tires consist of numerous 

chlorine-containing compounds, including but not limited to aromatic 

 

1 No other U.S. plant burns as much tire derived fuel as IP intends to burn without such a device. 
extender oils and halogenated butyl rubber; large quantities of zinc 

oxide; and other heavy metals.2 

One of the most dangerous by-products of a tire burn is a class of 

chemical compounds known as dioxins. Dioxins “are extremely 

persistent compounds;” they break down so slowly that they remain in 

the environment for many years.3 Sufficient exposure to dioxins can 

cause numerous adverse health effects.4

The additional chlorine and heavy metals contained in TDF (as 

opposed to other fuel) can result in the formation of dioxins and other 

toxic chlorinated chemicals such as PCBs, as the volatized gases cool in 

the upper part of the boiler. These dioxins and other incompletely 

combusted organics, as well as volatile metals (especially mercury and, 

to a lesser extent, lead), can form on or adsorb onto the smallest 

particles of ash and other matter. Some of the ash containing these 

toxic compounds and metals will escape airborne from the smokestack. 

The rest will be deposited in a landfill very close to Lake Champlain.

 

2 See EPA-450/3-91-024, Pacific Environmental Services, Charlotte Clark, et al, Burning Tires for 

Fuel and Pyrolysis: Air Implications, Dec. 1991, at p. 16.

3 See information provided about the EPA's draft risk assessment on dioxins, by The Interagency 

Working Group on Dioxins, a joint initiative of the Departments of Health and Human Services, 

Agriculture, Veterans Affairs, Defense, and State, as well as the EPA and the Executive Office of the 

President, available at http://www.cfsan.fda.gov/~lrd/dioxinqa.html#top.

4 Id.
The adsorption process occurs upon extremely small particulate 

matter (measuring 2.5 microns and less). Conventional pollution 

control equipment such as wet scrubbers — technology that IP employs 

— cannot capture more than about 50% of particulates in the 0.1 to 1 

micron range before they are released into the atmosphere.5 

A large and growing body of research demonstrates that small 

particulates adversely impact human health even if they do not contain 

dioxins. See Argument III, infra. Particulates are tiny particles of 

solids or liquids suspended in a gas (manifesting as a smoke or an 

aerosol, respectively). Fine particulates measure 0.1 - 2.5 micrometers 

in diameter. Their extremely small size allows them to penetrate 

deeply into the lungs.

Fine particulate emissions from combustion sources such as the 

tire burn are composed primarily of unburned fuel (hydrocarbons, many 

of which are carcinogens), elemental carbon, elemental sulfur, and 

mineral salts. They also contain traces of toxic metals, such as 

mercury, arsenic, zinc, cadmium, lead, chromium, and other minerals.

 

5 Pacific Environmental Services, Emissions Standards Division, “Wet Scrubber Doesn’t Capture 

Small Particulates: Burning Tires For Fuel And Pyrolysis: Air Implications,” Report # EPA-450/3-91-

024, sponsored by the Environmental Protection Agency, at 16.
 In September 2006, the EPA revised the National Ambient Air 

Quality Standards to reduce the allowable levels of daily emissions of 

particulate matter, from 65 micrograms/cubic meter of air to 35 

micrograms. See Argument III, infra. The IP plant may release fine 

particulates in excess of this standard. 

Prevailing winds will carry these fine particulates (laden with 

dioxins and heavy metals) for hundreds of miles. They will fall on 

Vermont’s farms and pastures, accumulate in the soil, and enter the 

food chain. Cows, sheep and other farm animals concentrate dioxins in 

their fat. Humans consuming the meat and milk from these animals 

will absorb the dioxins. The persistence of these materials ensures that 

they will continue to accumulate in the bodies of humans living in 

polluted areas. 

B. IP’s Permit Modification Does Not Adequately Address Emissions 

Concerns

IP’s permit modification fails to address a number of significant 

issues that bear directly on pollution levels in New York and Vermont:

1. The permit modification provides no statistical analysis of the 

composition of the TDF. Without hard data detailing the components of 

the fuel material, IP cannot predict the level of emissions that the burn 
will produce — and the regulatory authorities cannot enforce the laws 

that limit such emissions.

2. Adding TDF to IP’s current fuel mix will change its fuel 

combustion process, and temperature is key to the formation of various 

pollutants.6 It is crucial to measure temperature in all boiler locations 

during the test burn, yet the permit modification does not address the 

location or process of this measurement.

3. Zinc oxide is homogeneously dispersed in tire rubber; therefore, 

burning rubber releases very small particulates of zinc, which can 

easily pass through the plant’s wet scrubber and exit the smokestack.7 

IP’s permit modification assumes a 73% removal efficiency for all 

metals based on a 1999 stack test for nickel emissions from oil. 

Moreover, the removal efficiency of zinc is not comparable to that of 

nickel or other metals, and in fact is removed at a much lower 

efficiency. The permit modification fails to address these issues.

4. IP has characterized its wet scrubber only as "a Venturi like 

scrubber,” or a “spinning basket scrubber." As wet scrubbers are 

 

6 E.g., increasing boiler temperature increases levels of nitrogen oxides (NOx), a class of environmental pollutants 

that travel over great distances. See description of NOx drafted by the EPA, available at 

http://www.epa.gov/oar/urbanair/nox/chf.html. By contrast, dioxides form in the cooler post-combustion region of 

boilers.

7 This concern is validated by the report prepared for the EPA’s 1997 revision of the National Ambient Air Quality 

Standards, which noted major increases in zinc emissions for all pulp paper facilities that did not employ an ESP.
generally far less effective for particulate matter removal, without more 

information the likelihood of significant emissions from this technology 

cannot be adequately gauged.

5. It is essential to have priority pollutant and whole effluent 

toxicity testing before, during, and after any test burn, in order to relate 

any observed changes in water quality to the test burn. The permit 

modification requires no monitoring of pH in the wastewater treatment 

facility, internal testing to measure the actual effectiveness of the 

precipitation of zinc and metals, or adequate sampling design for 

testing impacts of the TDF trial on the plant’s wastewater discharge. 

6. The permit modification requires no data to support IP’s 

estimates of scrubber removal efficiency for zinc or other metals, or for 

its zinc mass balance calculation. As such, the validity of the proposed 

mass balance calculation cannot be assessed. 

7. Because IP lacks proper equipment for feeding TDF to the 

power boiler, the TDF to be burned during the test will have 99.5% of 

the tire bead and cord wire removed. If the plant is granted permission 

to burn tires on a regular basis, it will burn TDF with only 95% of the 

tire bead and cord wire removed. The higher-grade TDF will have 
different energy, ash, zinc, and metal contents than the lower-grade 

TDF. Consequently, the results of the test burn will not accurately 

reflect the future operating conditions or the magnitude of pollutants 

released.

III. EMISSIONS FROM THE TIRE BURN WILL ADVERSELY 

AFFECT THE HEALTH AND WELL BEING OF VERMONT 

RESIDENTS.

The additional toxins to be emitted from the proposed tire burn 

will directly harm Vermonters’ health. They will also hurt Vermont 

agriculture and its water quality. The effects of only some of the more 

serious of these toxins are described below. 

A. Mercury.

IP’s existing pollution control mechanisms will not prevent 

additional mercury emissions from the tire burn. IP’s proposed use of 

TDF is calculated to result in annual emissions of 27.156 pounds of 

mercury per year.8 

 

8 EPA, "Air Emissions from Scrap Tire Combustion" (1997) (The 1-2% TDF Trial Burn produced a 20% mercury 

increase, but with a far lower TDF fuel rate used than IP's proposed TDF Trial Burn. IP's proposal is to burn 6,000 

pounds of TDF per hour with a heating value of 12.4% of the power boiler's 748 MMBtu/hour maximum heating, 

which represents 6 times the heating rate cited at Facility O in the 1997 EPA report; thus, the total heat input may be 

reasonably expected to yield increased mercury emissions of at least 20%, and extrapolating higher up 6 times at 

31.536 pounds of mercury emissions per year. Thus, IP's 3 tons/hour of TDF on an annual basis could produce an 

extra 27.156 pounds of mercury per year above the 4.38 pounds of mercury produced with 0% TDF as Facility O 

demonstrated.).
Mercury, particularly methyl mercury – the form of mercury 

found in fish – is an extremely potent and bio accumulative neurotoxin. 

Infants, children, pregnant women, and women of child-bearing age are 

most at risk from this widespread poison.9 The neurological impacts of 

mercury are devastating and include memory deficits, serious 

neurological disorders, birth defects, and cognitive impairments.10 

Vermont already has numerous lakes contaminated with 

environmental mercury and methyl mercury in the food chain at levels 

preventing the safe consumption of fish.11 Merely over the proposed 

test burn, approximately 15 or more grams of mercury will be emitted. 

According to one study, a single gram of mercury in a 20-acre lake was 

sufficient to produce enough methyl mercury bioaccumulation in the 

fish to render them unsafe for human consumption.

B. Dioxin. 

 

9 EPA Mercury Report to Congress (1997), available at http://www.epa.gov/oar/mercury.html

10 Gunderson VM, Grant-Webster KS, Burbacher TM, et al. “Visual recognition memory deficits in 

methyl mercury-exposed Macaca fascicularis infants,” Neurotoxicol Teratol 1988, 10(4):373-379; 

Harada H. “Congenital Minamata disease: intrauterine methyl mercury poisoning,” Teratology 1978, 

18:285-288; Amin-Zaki L, Ehassani S, Majeed MA, et al. “Perinatal methylmercury poisoning in 

Iraq.” Am J Dis Child 1976, 130: 1070-1076.

11 See EPA Mercury Report to Congress (1997), http://www.epa.gov/oar/mercury.html. The most 

recent Vermont Water Quality Standards (2000) reference the Food and Drug Administration (FDA) 

mercury advisory limit of 1.0 mg/kg to determine whether fish advisories are needed. Approximately 

10% of all Vermont fish tested exceed the 1.0 mg/kg mercury level. Vermont has issued advisories 

with the widespread prohibition or limitation of consumption of certain fish from Vermont water 

bodies. See http://healthvermont.gov/enviro/fish_alert/fish_alert.aspx (“This advisory is based on 

tests of hundreds of fish caught in Vermont waters in the past 10 years and on scientific information 

about the harmful effects of mercury.”).
The proposed TDF test burn will emit additional dioxins. Dioxins 

are highly toxic, and the EPA has classified TCDD, the most toxic of 

dioxins, as a human carcinogen, and mixtures of dioxins as “likely 

human carcinogens.”12 In addition to its carcinogenic effects, dioxin 

adversely affects reproduction and development of humans and other 

animals, suppresses the immune system, and causes skin lesions.13 

Dioxins also cause learning disabilities. In sum, exposure to dioxins 

poses a real threat to human health. 

Dioxin is unintentionally produced in a variety of industrial

processes, including municipal and medical waste incineration.14 Once 

emitted into the air, dioxin travels and then settles on pastures and 

water bodies that produce the global food supply.

It accumulates in the cattle and fish feeding on contaminated 

vegetation. Dairy products (including human breast milk) are a major 

source of dioxins.15 

 

12 EPA, “Dioxin: Summary of the Dioxin Reassessment Science,” at 1 (May 25, 2001).

13 U.S. EPA Dioxin: Summary of the Dioxin Reassessment Science (2000).

14 Malby TA, Moore RW, Peterson RE. “In utero and lactational exposure of male rats to 2,3,7,8 

TCDD: 1.Effects on androgenic status.” Toxicol Appl Pharmacol, 1992, 114:97-107; “PCDDs and 

PCDFs from different environmental sources,” Toxic Substances Journal, 1992, 12: 133-150.

15 Id.; Schettler, Stein, Reich, Valenti, IN HARM’S WAY: Toxic Threats To Child Development

(2000) at 76.
In Vermont, and particularly in the extensive dairy farms in 

Addison County directly across Lake Champlain from the IP plant, 

dioxins from the test burn will accumulate in milk and dairy products, 

and in those who regularly consume such products, especially children. 

C. Particulates.

Fine particulate matter of a size 2.5 microns and less (PM 2.5) are 

among the most highly damaging pollutants to be emitted by the TDF 

burn. PM 2.5 have serious adverse effects on human health, and are 

more toxic to the respiratory and circulatory system than larger 

particles. The permit modification does not require IP to test for or 

monitor PM 2.5, but only for the larger, PM 10 particulates.

Numerous peer-reviewed articles describe the significant dangers 

of PM 2.5, even in short term exposure. Both short and long-term 

exposure to fine particulates result in increased mortality.16 Exposure 

 

16 Mar, et. al., “Associations between Air Pollution and Mortality in Phoenix,” Environmental Health 

Perspectives 2000;108:347- 53; Fairley, “Daily Mortality and Air Pollution in Santa Clara County, 

California,” Environmental Health Perspectives 1999; 107:637-41; Peters, et. al., “Increased 

Particulate Air Pollution and the Triggering of Myocardial Infarction,” Circulation 2001;103:2810-

2815; Pope, “Lung Cancer, Cardiopulmonary Mortality, and Long-term Exposure to Fine Particulate 

Air Pollution,” Journal of the American Medical Assoc. 2002;287:1132-41; Krewski, et. al., 

“Reanalysis of the Harvard Six Cities Study and the American Cancer Society Study of Particulate 

Air Pollution and Mortality,” Health Effects Institute, July, 2000.
to fine particulates contributes to the early stages of arterial disease.17 

Fine particles result in decreased children’s lung growth and function.18

Due to the overwhelming clear and convincing scientific evidence 

of harm of fine particulates,19 the EPA Clean Air Science Advisory 

Committee (CASAC) urged sharp cuts in annual and daily fine 

particulate emissions. In September 2006, the EPA revised the 

National Ambient Air Quality Standards to reduce the allowable levels 

of daily emissions of particulate matter, from 65 micrograms/cubic 

meter of air to 35 micrograms/cubic meter of air.20 It is very likely that 

IP’s test burn will emit fine particulates in excess of EPA’s proposed 

daily standard. 

D. Zinc

A TDF burn releases excessive amounts of zinc, which has severe 

adverse human health effects. A study comparing various metal salts 

in particles found that acute toxicity associated with atmospheric dust 

 

17 Kunzli, et. al., “Ambient Air Pollution and Atherosclerosis In Los Angeles,” Environmental Health 

Perspectives 2005; 113:201-20.

18 Gauderman, et. al., “Association between Air Pollution and Lung Function Growth in Southern 

California Children,” American Journal of Respiratory and Critical Care Medicine 2002;166:76-84; 

Gauderman, et. al., “The Effect of Air Pollution on Lung Development from 10 to 18 Years of Age,” 

New England Journal of Medicine 2004; 351:1057-67.

19 Two thousand peer reviewed articles studying the adverse health effects of PM2.5 have been 

published since 1996.

20 See Environmental Protection Agency, “Fact Sheet: Final Revisions to the National Ambient Air 

Quality Standards For Particle Pollution (Particulate Matter)” (September 21, 2006), available at

http://www.epa.gov/oar/particlepollution/pdfs/20060921_factsheet.pdf.
was attributable to highly soluble zinc in the particles: “Zinc is the toxic 

factor in the lung response to an atmospheric particulate sample.”21 A 

seven-year study showed a correlation between atmospheric zinc and 

emergency-room asthma visits.22 

E. Cadmium.

The TDF burn will result in increased levels of cadmium 

emissions. Studies of children exposed to cadmium have shown 

hyperactivity and reduced verbal and performance IQ. Cadmium is a 

metal with no essential biological function, but it may

interfere with normal neurological development. Humans, particularly 

children, are exposed to cadmium through milk and food grown in the 

vicinity of a cadmium source, such as the IP mill (if burning TDF). 

Cadmium is readily taken up from the soil by leafy vegetables and grain 

crops.23 

 

21 Adamson, et. al., Toxicol. Appl. Pharmacol. 166(2) (July 15, 2000) at 111-19. Another study found 

that in concentrated ambient particles, zinc had a positive correlation with adverse pulmonary and 

systemic effects. Kodavanti, et. al., “Consistent Pulmonary and Systemic Responses from Inhalation 

of Fine Contrated Ambient Particles,” Env. Health Perspectives 113, No. 11 (Nov. 2005) at 1561-68. 

22 Clarborn, et al. “Testing the Metals Hypothesis in Spokane, Washington.” Env. Health 

Perspectives Supplements V. 110, No. 54 (Aug. 2003) at 547-552.

23 Pahren HR, Lucas JB, Ryan JA, et al. “Health risks associated with land application of municipal 

sludge,” J Water Pollution Control Fed, 1979, 51:1588-1598; Agency for Toxic Substances and 

Disease Registry. Case Studies in Environmental Medicine: Cadmium Toxicity, Atlanta, GA: U.S. 

Department of Health and Human Services, ATSDR, (June, 1990); Hastings L, Miller ML. 

“Developmental Neurotoxicity of Cadmium,” IN HARM’S WAY: Toxic Threats To Child 

Development, ed. Schettler, Stein, Reich, Valenti (2000); Slikker W, Chang LW, Eds. Handbook of 

Developmental Neurotoxicology, Academic Press, (1998); Baranski B, Stetkiewicz I, Sitarek K, 
In Vermont, where dairy cows and other food animals regularly 

graze, particularly on the rich soils along Lake Champlain’s eastern 

shore, cadmium from the tire burn will be readily taken up by grass, 

leafy vegetables and grain crops, significantly increasing cadmium 

levels in crops grown on soil contaminated with cadmium. 

IV. CONCLUSION.

The amici support the State of Vermont’s Petition for 

Extraordinary Writ Providing Temporary Injunctive Relief in Aid of 

Jurisdiction, and pray that it be granted, in order to allow the 

regulatory process to take its proper course and preserve the Court’s 

jurisdiction. 

People for Less Pollution, Inc. Northeast Clean Air Coalition

By: ________________________ By: __________________________

Emily J. Joselson, Esq. Ronald A. Shems, Esq.

Erin Ruble, Esq. Rebecca Boucher, Esq.

LANGROCK SPERRY SHEMS DUNKIEL KASSEL & 

WOOL, LLP & SAUNDERS PLLC

P.O. Drawer 351 91 College Street 

Middlebury, VT 05753-0351 Burlington, Vermont 05401

(802)388-6356 (802) 860 1003

(802)388-6149(fax) (802) 860 1208 (fax)

ejoselson@langrock.com rshems@sdkslaw.com

 

 

Szymczak W. “Effects of oral, subchronic cadmium exposure on fertility, prenatal and postnatal 

progeny development in rats,” Arch Toxicol, 1983, 54:297-302. 
October 26, 2006

CERTIFICATE OF COMPLIANCE

I certify that, according to the word count of the word-processing 

system used to prepare this brief, this brief contains **** words and 

therefore complies with F.R.App.P. 32(a)(7). 

_______________________________

Emily Joselson, Esq.
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using updated commercial software and that none appeared.

_______________________________

Emily Joselson, Esq.

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