the excuse on for argument is vermont railway versus time of sh please the court my name is claudine so far and i represent the town of shelburne vermont in this matter the case before you today a pen in my eyes is the significance of the municipal police powers exemption to i c c t a preemption in this case the town of shelburne in acted a hazardous substances ordinance consistent with this court's ruling in green mountain vs the state of vermont and for two specific reasons one of which was to safeguard it residents from the risks posed by the bulk storage of hauser dis materials so all salt not only calcium chloride but also specifically fuel oil ammonia diesel fuel in large bulk quantities here on or second the second major reason why the town enacted this ordinance was to safeguard its drinking water it's your argument but you confront on this appeal both and an appeal to finding that the facility involved transportation and factual findings by the district court that the purpose was discriminatory rather than general health and safety so you have to identify for us how you can raise the former and why the latter is there yes your honor we believe we may raise the former specifically because this court has previously ruled that fifty four b requires a particular finding by the court that there is no on just there is no just cause for delay and specifically at the transportation find you gree that that not having been appealed it's no longer and if you hear no we believe it is an issue here you tell us how you can raise it given that it was decided impartial summary judgment and not appealed we do not believe that that partial summary judgment order your honor was a valid order that would preclude this issue from being raised on appeal and we believe that the reason it was not precluded is set forth in decided by this court in two thousand and eleven where in that case this court specifically articulated that in order to have a valid rule fifty four be partial summary judgment or a partial final order that the district court needed to make a very specific finding that there was no just cause for delay and in that proponent case this court set out that the court in that case the district court in that case made no finding whatsoever much less surprise insufficient finding and i would submit to this court that that is precisely the same thing that happened in this case the district court in this case made absolutely no finding whatsoever that there was no unjust cause that there was no just cause for delay so we believe that that partial final order was invalid under rule fifty four b moreover we also believe that in order to have a valid partial and in this case whether it was a valid municipal police powers exercise and so for that reason your honor we believe that that partial final judgment does not preclude us from raising the transportation by  i'm not sure i get you on the what you just said about the issues cannot overlap so i think the case law also provides that there have to be in order for there to be a valid partial final judgment the issues need to be distinct and separate and i don't think they are here your honor i think i think they may cause their later related you can't enter a fifty four b as to ruling on part of that's exactly right one is an essential element of the other the issue that's before this court today necessitates a determination as to whether th transportation by real curious or you can't pull these two issues apart your honor and so i think that exactly is the reason why your honor that issue is is valid before this court on appeal so i would i would move on to say you knew at the time that you would have you had argued the question and it had been decided in you you don't dispute you could have brought in an appeal at that point right we don't dispute that we could have brought an appeal but we hope point of this is that you don't get multiple bites of the apple or get paid when you want a hearing i understand your interrelationship argument but if you happen opportunity to appeal and you didn't take it why should we now hear you on this promise of your argument because this court has an interest in the finality of judgments your honor and we believe that this court also has any interest in making sure that those partial final judgments issued by its district court by its lower courts comply with the rules that this court has set forth and in this case that didn't happen so we would also submit to the court on the substance of this argument that i c c to your preemption was never created to license railroads to pollute and contaminate water and in this case that is precisely what has happened repeatedly courts have acknowledged that the i c c today has a court economic focus and i know that the railroad has tried to make the argument that that's not the only focus and a lthough we acknowledge that in his undisputed that the core of the i c c t a was concerning the deregulation of the railroad industry and that it was concerned with lack of interference with interstate commerce this ordinance in this case does neither your honor it does not prohibit the railroad from bringing in lots of commodities into the site and the and the record substantiates that this railroad can bring in aggregate for example which is crushed rock and other commodities it can bring in lumber it can bring in sand it can bring in gravel moreover this ordinance does not prohibit the railroad from bringing these substances in it simply says we don't want these substances hanging around within two hundred fifty feet of a waterway and of a school which in this case overlaps with our highly residentially populated areas but this is an argument that's yes that there was a purpose other than the discriminatory purpose found by the district that you're right that's correct what's don't you have persuade us that the district judge as a matter of law could not by the conduct discriminatory we believe these are mix questions  hearings that heard testimony from decision makers we're not in a position to do that i agree your honor but if this court examines the record and i think the issue before this court is is whether that was clear error and we believe that the record is re with evidence that will show that there was no discriminatory intent in fact the witnesses that were called by the railroad themselves testified that this issue was long before the select board and it is not the court the legislature and we believe in this case unfortunately that is what the district court did it substituted its judgment for a legislative body and there was no discussion of the ordinance at the initial hearing before the district court right that's correct there fact that there were just findings made by the yes there were just findings made by the court that with absolutely no evidence taken whatsoever that this would be it would be the point is that the ordinance didn't get raised until after there had been an adverse judgment there was there was a partial determination of the facts on the issues as to whether this facility constituted transportation by real carer and whether the  able to apply its a zoning ordinances to this particular facility because our allegations were that this was a long term storage and distribution facility built by a trucking company and not by the will of the simple question so the ordinance wasn't raised initially it was raised only at the end yes the ordinance was not in existence at that time you're out you but then you later said oh we've been talking about this ordinance for a long time but yes nobody said that to judge sessions yes they did your honor there were several members that testified in the record that the ordinance had been considered by the select board for quite some time long preceding the even the construction of this facility this issue of whether to enact the hazardous materials ordinance was around to you tell us tell me what ordinances a what regulations you want to put in place and then i'll consider whether it falls within the preemption or not because at that point it was unclear what rules or person or ordinances you wanted to apply to it isn't that right that's that's correct wrong though at that point nobody said to judge sessions look we're considering a sodium chloride limitation we've been considering it for months if not years now ordinances we sought to enforce and then he would have a second here everybody's question is no you didn't mention it before hand then you inactive the ordinance and then when you justified it you had witnesses testified this has been considered for a long time  court my name is jennifer mcdonald on behalf of vermont railway i want to first address the court's question that was raised to attorney so far about whether or not they had properly reserved the issue of transportation  subpoena from the railroads perspective the answer is absolutely not an important point here is that it was a declaratory judgment order entered in june of two thousand and sixteen that the order was reaffirmed in june of tw seventeen after the town filed a motion to reconsider the railroad and that was the illegal issue about whether it constitutes transportation with respect to the storage was addressed at that point the railroad filed a motion for  partial final judgment the town submitted a response to that motion in which the town consented in july of two thousand and seventeen two entry of partial final judgment on the issue of transportation the town submitted its own partial final judgment order which did not include the language that the town is now relying on as their exit from being able to raise it in this appeal and then additionally with respect to federal  notice of appeal filed by the town did not include any mention of the june twenty sixth hundred twenty seventeen order that is a key issue because without mentioning those orders with all due respect this court does not have of the contrary to the contrary of your argument the parties can stipulate around the requirements of rule fifty four b your honor raises a good question i didn't find any rule saying the parties can stipulate but with respect to whether the notice of appeal discusses at the key question is intent and there is case from this circuit kendall larry of the baker discusses the notice of appeal must designate the judgment or order being appealed the notice of appeal in this case identified only the final judgment from january of twenty eighteen that final judgment order only mentions the december order it makes no mention of any other order and importantly the december order which is after  the november trial the december order from judge sessions states specifically that partial final judgment was entered on the transportation issue the town did not appeal and now that is waived so the town was on notice of that and again you look to the intent so that's key whether this court has jurisdiction over that partial final judgment if you are over any other issues you look to the intent and again that's the candle area of the baker decision so with respect to the issues on appeal the touch tone inquiry here is whether the town's ordinance interferes with and governs railroad operations i would submit that the decisions by judge session in this case are consistent with this court's precedent in the green mountain railroad case and the island park case island park in particular deals with the precise issue of regulation by a state or local municipality consistent with police powers in that case that had to do with safety the standard of review set out in those cases applies to this case and the only distinction i would park being that that was after summary judgment decision here the court held a two day trial in which they heard evidence from twelve witnesses those twelve witnesses testified what the town has come here today with the arguments made by mr far are effectively trying to really to get those  issues because again as i stand here i dispute the factual characterizations made by mists of far because with respect to the select board members they did not testify that this ordinance had been under consideration but again that's a fact question and judge sessions heard all of that testimony and made credibility determinations and with respect to be key issue for whether a town can enact a police power can act in their police power it has to have health or safety goals and judge sessions having heard that testimony correctly found that quote the town's ordinance does not achieve any meaningful health or safety goals and import in particular that is based on testimony by the town's witness mr diego who said that storage itself of a hazardous material or of sodium chloride which this ordinance was really about storage itself does not create a risk of public health or safety there was no evidence of contamination of waterways the town points to higher levels in monitoring mels modern monitoring wells are not waterways monitoring wells were put in place pursuant to the storm water pollution prevention plan that the railroad had in place which was being monitored by the state so with respect to the town's argument that they needed to act to protect towns citizens it simply incorrect the railroad was doing frequent monitoring they were accountable to the vermont department of environmental conservation as the federal designee of the e p a and the swip that was prepared was prepared as a requirement of having a permit to just charge in storm water so here we have the railroad who is operating a trans loading facility transportation by real carrier is subject to the to those reporting issues if there is any concern that is for the vermont d e c and the e p a which remain retains authority here the e p a retains authority to come in and view the railroads stormwater discharge plant it is not for the town to act around that with respect to the discrimination there was clear evidence that the town created the ordinance in response to the litigation here that was the testimony of the select board member he testified quote clearly the litigation was the precipitating factor of the storage ordinance importantly the storage ordinance which targets the railroad and targets a salt storage facility was crafted to exempt the town's own starts salt storage facility which holds five hundred fifty towns five hundred fifty tons being the exact same quantity as included in the storage ordinance the town knew when it crafted that storage ornaments that the railroad facilities contain can hold up to eighty thousand tons which is a requirement of the railroads major shipping customer and evidence we had already had eleven days of testimony and hearings with respect to those issues mr wolf who is the president of the railroad testified that it would be impossible to operate his facility economically and practically with this storage ordinance in place and the town may not like that testimony but that is the testimony and that was the evidence that was introduced at the trial here and the town submitted its own expert who the district court was entitle to weigh the credibility of that testimony and determined that in fact mr wilson's testimony was credible the railroad b if would effectively shut down if the storage ordinance was to remain in place and that goes not with respect to just salt but with respect to other commodities you know again salt is the key aspect of this ordinance but with respect to discrimination there were limits with respect to diesel two thousand gallons of diesel is limited however rail cars can hold thirty six hundred gallons and so that ordinance tells the railroad which cars  bring in and out of this facility storage translating this is a temporary storage the temporary storage is consistent with the green mountain case which this court issued a number of years ago  substances it does because when substances come in by rail car now again real car is how hazardous materials are translated all across the united states and that gets to be purpose of it but the problem is when they come in by rail car they have to either leave by truck immediately or within within seventy two hours which in the volumes of that are translated a real facility is simply impossible or it has to be put in storage but even with that storage it can only be seventy two hours mr wolfson testimony and this is on page two and two or three of the joint appendix is that we can do that it's impossible we have nowhere to put any of these substances you regulations here so there isn't a regulatory gap although certainly it was intended to deregulate and by definition of deregulation there will be a gap there are federal regulations in place i ask you yes you just alluded to this being a temporary facility and it seems that a large part of the dispute between you and the town is what temporary storage is going to be tolerated they don't want anything more than seventy two hours as i understand it the storage here could be for months if not the better part of the year and that's because it's in the crust your client's interest to move the salt during non winter months and then keep it until the winter by understood the facts correctly that's correct your honor at what point does warehousing that's at the client's  convenience or discretion rather than the railroads discretion for within transportation so that's a good question i think that that is a fact intensive question and it would determine whether or not there was the testimony from the fact intensive question where is it an interpretation question of what the where word warehouse means when it's used in federal statutes and regulations including that within the definition of transportation so it because that's what you're relying on right that the definition is so broad they didn't include swear houses but i think the big question about the transportation decision which i know your main argument is that we should meet in touch that but if we were to at what point does the warehouse that the railroad sewers operating really be really is the client's warehouse and and i'm not i don't think you're suggesting that clients could require railroads to have warehouses that way they can get the benefit of the the railroad transportation  preemption correct so that's a controlled question so the issue is whether or not the railroad controls the facility we are not arguing that the client here the major shipping customer is controlling what we do we've merely said that that is an aspect of our long term contract is that we have to have the ability to have a storage on site it's also a necessity of trans loading and winter needs of vermont the evidence at the hearing and i believe this is actually the second hearing from  and seventeen is that the state ran out of salt there's no other salt storage facility it translates from the mine going through pennsylvania new york before it hits vermont so it's simply impossible to continuously truck out salt when there's nowhere for it to go and again this is with respect to the winter needs in vermont we need road salt and again that gets to the towns discrimination argument which is they solved hundreds of pounds their roads next to waterways and next to schools with hundreds of pounds of road salt per mile that's an exemption in the storage ordinance so again with respect to your honor's question it goes to who controls this facility the evidence at the second hearing which is not subject to the appeal is that the railroad controls the facility although we do have to work with our customers your honor i do see that i've gone over my time so if there's not any further questions i'd like to conclude thank you so again this case had an under the underlying procedural history of this case is extensive there were three trials and there was a significant amount of evidence that was heard throughout those trials it does interpretation and plain language has long been interpreted by the second circuit and circuit courts throughout the country as being extremely broad police powers survive it to preemption only if they are for the benefit of public health and safety and the evidence here was that  ordinance does not benefit public and health and safety whatsoever so in conclusion i purchased court to find that the district courts preemption out analysis and factual findings were correct and should be affirmed in their entirety thank that mr wilson testified that this would somehow be an impossible feat in fact the evidence is entirely to the contrary mr wolfson very clearly in the record we've cited to the supreme testified that the railroad is able to trans load salt in that facility within seventy two hours moreover the real world previously had a shed in burlington vermont in downtown burlington where they were able to store additional road salt so that is just completely false mr wilson very clearly testified that he is able to translate this all shipment within seventy two hours and i think the court would trans lube mean in the context of this testimony translating is very clearly defined around a run of the statute as moving a commodity from one method of transportation to another so trans loading means the movement of goods from the train to the truck truck train comes in truck takes it out and storage only consideration  not the needs of the entity that's going to need that soul to move it out well i just store it somewhere else in fact they can store it somewhere else when in town that's not within two hundred fifty meters of a school or waterway i mean and  that takes us to the second point that miss mcdonald said which is also factually false and there is no contamination that's just absolutely not true within nine months of operation of this facility they took the groundwater and contaminated it with c to five times the state standards these standards are promulgated three e p a but they are not it ministered by e p a and they are administered by the mont department of environmental conservation through a storm water permit and judge questions in the seventy two hour limitation not feasible the findings that judge sessions made was that if the facility were located in fair sper the trucks transporting the road salt would need to drive the entire length of shelburne to reach the interstate which would likely have a greater impact on public welfare as compared to the current location also the whole point of the facility is for it to be gradually filled during the summer months and then unloaded when the salt is needed and therefore he says mr hunter suggestion about compliance with the in the seventy two hour limit is not realistic since that's the finding that informs the district courts why don't you tell us why that's where it is error your honor for several reasons one because there is absolutely no evidence in the record to suggest that the public welfare is somehow harmed if trucks need to go through the town of shelburne from ferris park there is no evidence in the record and that essentially does what this court has prohibited the lower court from doing becoming a super legislator and deciding issues that are totally not in the record and making decisions for for that legislative body that is not something that he that a district court judge respectfully is able to do it is a waning of the burden and this court has very clearly said that in any economic impact on a railroad does not in the sufficient is wholly insufficient to constitute unreasonable burden that is the question is there an unreasonable barn on this railroad and there is no evidence to show other than the economic crimes of the railroad that we built this facility even though you we knew that the town had objections to it and even though we knew that the court said that there are municipal police powers that survived they built it in the face of the concerns of the town from the very beginning and so now they are using those economic expenditures as the sole reliance or for their argument that this is somehow an unreasonable burden and that cannot stand your honor that's the still thing they're rely on i think you're saying that's the only thing they can rely on but they're they're arguing that this whole you know transporting out of seventy two hours feasible i understand your argument but i don't think you can accurately say that they're arguing only only the costs we believe your honor the remainder of it is is totally unsupported by the record i understand but what about the exemptions for the town's own salt and the salting of roads in the town waterways that supports differences pretext and discrimination and i disagree your honor for it for two reasons respectfully and the reasons i disagree are because the town municipal solid shed was a permitted entity so it ran through the development review process and it was specifically permeated as it was constructed that did not happen here it is the second reason that i disagree is that the town also simultaneously was considering the a bar  contaminated the water had to abandon those water sources in their entirety and this court has said that that is a court municipal function protecting water is a core municipal function and the legislature in this case did exactly that it acted to