CSX Fights Subpoena in Capitol Hill Tunnel Dispute

The National Law Journal reports that CSX is fighting the subpoena in the Virginia Avenue Tunnel dispute. Full text below:

CSX Fights Subpoena in Capitol Hill Tunnel Dispute

Photo: Ralph Coulter/iStockphoto.comUpdated at 3:26 p.m.

CSX Transportation Inc. is fighting a subpoena for documents about a controversial plan to rebuild a section of its rail network running through a Washington neighborhood.

CSX, represented by Gibson, Dunn & Crutcher and Sidley Austin, wants to modernize and expand the Virginia Avenue Tunnel in Capitol Hill. Residents, community groups and politicians have raised concerns about safety and quality of life issues associated with the project. A local watchdog organization that advocates on planning and transportation issues, the Committee of 100 on the Federal City, filed a lawsuit in November seeking to stop construction.

The committee argued that federal and local officials who signed off on the project failed to consider certain environmental and safety factors and didn’t give enough weight to alternative options. The group also accused the D.C. Department of Transportation of entering into a “quid pro quo” agreement with CSX to support the project. That agreement, the committee claimed, led to an “unlawful predetermination” by local officials that tainted the Federal Highway Administration’s ultimate approval.

In late December, CSX asked the federal district judge in Washington hearing the case to toss out a subpoena from the committee seeking 27 categories of documents. CSX said the subpoena appeared to be aimed at uncovering evidence of the alleged “predetermination”—an accusation CSX and federal and D.C. officials rejected in court papers.

“The District of Columbia did not of course ‘predetermine’ the outcome—but the claim is irrelevant in any event. The Record of Decision approving the Virginia Avenue Tunnel project was issued not by the District of Columbia, but by the Federal Highway Administration, which expressly stated in the Record of Decision that it did not consider any agreements between CSXT and the District of Columbia in approving the project,” CSX argued in its Dec. 26 motion to quash the subpoena.

Additional discovery usually wasn’t allowed in cases challenging the action of a federal agency under the National Environmental Policy Act, CSX said. Instead, the company argued, the court could only consider documents and other information that were part of the record during the administrative proceedings before the agency.

Even if the committee was permitted to ask for more documents, CSX argued that the subpoena was premature because the government hadn’t finished putting together the administrative record. The company also called the committee’s requests “overbroad” and said the subpoena’s 10-day deadline for certain categories of documents was “unreasonable.”

Monte Edwards, vice chair of the Committee of 100, said in a phone interview on Monday that the committee should be allowed to request additional documents about information that wasn’t addressed in the final environmental impact statement about the project or in the administrative record.

Edwards said the committee believed that the additional documents would show “a pre-disposition on the part of [the D.C. Department of Transportation], if not a legal obligation under the agreement, to approve what should have been an open and objective process.”

The committee is represented by Leslie Alderman III of Alderman, Devorsetz & Hora.

The committee has asked U.S. District Judge Christopher Cooper to enter an injunction barring federal or local officials from allowing the project to move forward by issuing permits or other approvals. CSX, thefederal government and the D.C. government filed papers with the court in December defending their actions.

Cooper is scheduled to hear arguments on the subpoena issue on Jan. 26 and on the committee’s injunction request on Feb. 17.

A spokesman for CSX, Rob Doolittle, said in a statement on Monday that the company “believes the project should move forward promptly.”

“The reconstruction of the Virginia Avenue Tunnel was approved by the federal and District of Columbia governments following a lengthy public oversight, review and comment process that shaped the final design of this project,” Doolittle said. “CSX is committed to doing this project the right way, safely, respecting our neighbors and working closely with residents and businesses to minimize impacts and to ensure that they are informed about construction plans.”


BOOM: New Investigation Shows Lack of Railway Accountability Leaves Citizens Vulnerable to Disaster

An investigation by InsideClimate News and The Weather Channel, in partnership with the Investigative Fund at The Nation Institute.

Frighteningly powerful video. Watch it. Read the article. And remember that CSX will not commit — let alone publicly or perpetually — to rerouting crude oil around DC’s monument core. Its new twin tunnels would leave our country vulnerable to even a single terrorist or deranged individual. Or just the “bad luck” that seems to frequently befall this industry notorious for cutting corners with safety.

From the investigation: “InsideClimate News, The Weather Channel, and The Investigative Fund have monitored the regulatory response to oil train explosions this year, focusing on whether the agency that oversees the railroads—the Federal Railroad Administration (FRA)—is able to ensure that the nation’s aging railroad infrastructure can safely handle its latest task: serving as a massive, rickety network of pipelines on wheels.

We found that regulators don’t have the resources to catch up with—let alone get ahead of—the risks posed by exploding oil trains. That has left the FRA politically outgunned by the railroad industry, leaving it largely to police itself.”

Is it any wonder that residents of DC are raising objections to the Virginia Avenue Tunnel Project in light of this deadly track record?

C100 Challenges Approval of CSX Twin Tunnels in Federal Court


C100 Challenges Approval of CSX Twin Tunnels

in Federal Court

Asks that no permits be issued


PRESS RELEASE                                         Contact: Monte Edwards
For Immediate Release                                   monte.edwards@verizon.net

November 11, 2014                                                 202/543-3504

The Committee of 100 on the Federal City (C100) is filing suit to challenge the decision last Tuesday by the Federal Highway Administration and District Department of Transportation to allow for new, twin tunnels, double-stacked trains, and years of hazardous construction in a vibrant, growing community.  The decision was announced as a “Record of Decision” (ROD) at the conclusion of the Environmental Impact Statement (EIS) consideration of the CSX plan.


“This decision is unlawful, premature and problematic,” said C100 Vice President, Monte Edwards.  “The Record of Decision fails to address the severe safety and security impacts the proposed project will have on the immediate community and on Capitol Hill, the constraint on the expansion of passenger and commuter rail service in the District, and the pre-approval by DDOT of the project before any environmental review had been conducted.”


Edwards also emphasized that there is no need to rush-to-judgment on the CSX proposal. The EIS expressly states that the current CSX tunnel has “decades” left of useful service.  In addition, Maryland’s recent rejection of CSX’s proposed double-stacking terminal in Baltimore undercut CSX’s primary rational for building the two new tunnels in the District, as the Baltimore bottleneck remains.


“Issuance of the Record of Decision ends the administrative process, and litigation is the only option to obtain a new EIS that addresses our concerns. Until we have a new EIS, no permits should be granted by the District or federal officials,” Edwards concluded.


The C100 will file suit on Wednesday, November 12.  Simultaneously with the filing of the Complaint, the Committee will file a motion for a preliminary injunction to prohibit any further action until the District Court for the District of Columbia can rule on whether the Environmental Impact Statement – on which FWHA and DDOT were co-lead agencies – violated the National Environmental Policy Act, the Administrative Procedure Act, and District law.  The C100 is represented by Les Alderman of Alderman, Devorsetz & Hora PLLC.  Mr. Alderman can be reached at lalderman @ adhlawfirm. com or 202-969-8220.


The C100 will hold a press conference at 11:00 AM on Wednesday November 12.  The conference will be on the front steps of the US District Courthouse at 333 Constitution Avenue.  Nancy MacWood and Monte Edwards, officers of the C 100, Maureen Cohen Harrington – a member of the Committee, whose home is immediately adjacent to the Virginia Avenue Tunnel – Natalie Skimore of DCSafeRail, Meredith Fascett, the newly-elected ANC Commissioner for the area, and Les Alderman, among others, will be available to answer questions about the Committee’s concerns and the lawsuit at that time.


Full PDF of Press Release available here: Press release VAT 11-10-14m-3docx-2 (1)

Community Rejects Approval of CSX Tunnel; Calls on DC Council to Intervene

For Release: November 4th, 2014

Contact: Natalie Skidmore, 202.657.1911, Twitter @DCSafeRail, Facebook.com/DCSafeRail

Community Rejects Approval of CSX Tunnel; Calls on DC Council to Intervene

Demonstration to Urge No District Permits Until New Environmental Statement

Community groups and individuals living near the proposed CSX Virginia Avenue Tunnel in Southeast DC firmly and categorically rejected the move today by the Federal Highway Administration and District Department of Transportation to rubber stamp the Record of Decision under the Environmental Impact Statement review process.  CSX’s proposal calls for two tunnels which will increase CSX’s right of way and permit freight trains to operate in a partially open trench during the multi-year construction project.  Documents only recently released by DDOT show that agency secretly pre-approved the double tunnel construction as early as 2010.

Because the DC Council is currently undertaking a comprehensive Rail Plan study, District residents firmly believe the rush to approve this project is premature.  Therefore, these residents are calling on the DC Council to enact legislation putting a moratorium on further rail permits until the Rail Plan is finalized.  The residents are planning a demonstration to voice these concerns as follows:

What: DCSafeRail ‘No CSX Tunnel’ Demonstration

Where: U.S. Department of Transportation headquarters, New Jersey Ave. and M St. SE

When: 6pm-7pm tonight

“This decision shows that the public has never been treated fairly.  Our concerns – namely the grave public health and safety risks posed by the project and how passenger and commuter rail in the District can expand – have consistently been ignored. And we know now that DDOT had pre-approved CSX’s preferred plan from the very beginning before any environmental review had been conducted,” said Helen Douglas of DCSafeRail, the group against the expanded tunnels. “This project should NOT be granted any permits until the appropriate answers are provided, including waiting for completion of the Council’s Rail Plan so that its analyses and conclusions are part of a new or modified environmental review.”

DCSafeRail also points out that there is ample, recent precedent for a local rejection of a private rail project that threatens the health and safety of its citizens.  Specifically, Maryland transportation officials cancelled a long-planned CSX intermodal rail facility in the Morrell Park neighborhood of Baltimore because the proposal, according to Baltimore City Mayor Stephanie Rawlings-Blake, had created a burden “at the expense of our residents and local businesses.”  DCSafeRail also notes that the Environmental Impact Statement directly states that the current tunnel has “decades” of useful life, thus allowing time for good planning for the environment and the District’s transportation future.


#Bombtrains and CSX Derailments in the News

ForestEthics, the Sierra Club, and Earthjustice have sued to require Sec. Foxx to issue an emergency order to stop bomb trains.For more information about the litigation, including a link to the complaint, http://earthjustice.org/news/press/2014/administration-failing-to-protect-public-from-dangerous-crude-oil-trains

Also, Rachel Maddow had a four-minute segment about a recent freight derailment and the ongoing attempts by the rail industry and its customers to fight critical federal rail safety regulations. Maddow has been following the problems of  “bomb trains” very closely. This segment highlights the dangers posed by some of the other rail hazmats. 

WaPo: Council Hearing Reveals Major Gaps in DC Train Security and Safety

The 9/8 Council hearing revealed important information indicating that DC has far to go in order to keep its citizens safe from rail-associated dangers and derailments.

See News 4′s coverage here.

Read the full Washington Post article here:

“D.C. EMS personnel haven’t conducted a rail emergency exercise in recent years and the last time the city’s first responders received specialized training for handling such emergencies was five years ago. In addition, the city doesn’t inspect freight rail shipments or rail infrastructure in the city.

That’s what top EMS officials told the D.C. Council on Monday during an oversight hearing on the proposed reconstruction of a CSX rail tunnel in Southeast Washington, a project that has revived concerns about the safety and security of the city’s railways…

The District’s top homeland security official, however, said the city needs to update its assessment of vulnerabilities related to rail safety and security, which became a hot topic in the aftermath of the Sept. 11, 2001 terrorists attacks…

Council member Mary M. Cheh (D-Ward 3) asked whether anyone oversees the city’s rail system. Officials with HMESA, the D.C. Department of Fire and EMS and the District Department of Transportation all said they have no inspectors overseeing  how CSX handles the transportation of goods, whether there are any security breaches from employees, or whether there are any problems with the rail infrastructure.

“All of that is just out there and no one is minding that?” Cheh asked.  “Nobody ever looks at that?”"


Council Asked to Act in CSX Tunnel Controversy

PDF here: SafeRailHEARINGIIPreRel 9-8-14

For Release: Sept. 8th, 2014

Contact: Natalie Skidmore, 202.657.1911, Twitter @DCSafeRail, Facebook.com/DCSafeRail

Council Asked to Act in CSX Tunnel Controversy

Hearing Resumes This Morning


DCSafeRail has asked the DC Council to prevent further action by DDOT to approve the proposed CSX tunnel expansion until after the Council completes the District Rail Plan and the plan’s holistic and objective analysis and recommendations are made part of a new environmental review. DCSafeRail made the request in a letter to Council Chairman Phil Mendelson and Councilmember Mary Cheh, in anticipation of the resumption on Monday of the August 26 hearing about the proposed CSX expansion. Chairman Mendelson put that hearing into recess because the lone DDOT witness did not answer many of the questions posed by councilmembers.


“We look forward to hard questions for DDOT from Chairman Mendelson, Councilmember Cheh, and other council members as to why this project seems to be on the fast-track to approval when there are so many unanswered questions, and when the entire environmental review was tainted by DDOT’s pre-approvals,” said DCSafeRail member Rebecca Sohmer. “Maryland’s rejection last week of the proposed CSX expansion in Baltimore shows that communities and their political leaders can stand up to being railroaded by CSX. These projects can be rejected, at least unless and until they pass muster after reevaluation with professional objectivity and all of the facts.”


The letter lists the following problems with the current CSX Tunnel proposal: (i) the grave public health and safety risks it poses; (ii) the detrimental impact it will have on passenger and commuter rail in the District; (iii) DDOT’s pre-approval of the project before any environmental review had been conducted; (iv) lack of authority to expand the right of way for CSX; and (v) the lack of a meaningful mitigation and benefits package for residents and the District as a whole.


Continuation of DC Council Hearing on CSX Tunnel


When:         TODAY, September 8th, 2014

Where:        Wilson Building, 1350 Pennsylvania Ave., NW

Time:          10:00am


DCSafeRail Shares Morrell Park Letter with DC Council

PDF of DCSafeRail letter here: DCSafeRail Letter to DC Council (5 September 2014)

Morrell Park Letter to MDOT here: April 2014 – Morrell Park Letter to MDOT

Sept 5th, 2014

Dear Chairman Mendelson and Councilmember Cheh:

Thank you for holding the Joint Public Oversight Hearing regarding CSX’s proposed expansion of the Virginia Avenue Tunnel.  During the hearing, public testimony overwhelmingly opposed the expansion due in part to: (i) the proposal’s grave public health and safety risks; (ii) the detrimental impact the proposal will have on passenger and commuter rail in the District; (iii) the lack of objectivity  and accountability by DDOT in overseeing the review process and DDOT’s pre-approval of the project before any environmental review had been conducted; (iv) lack of authority to expand the right of way; and (v) the lack of a meaningful mitigation and benefits package for residents and the District as a whole.

DCSafeRail supports the DC Council’s District Rail Plan, and we believe that the Rail Plan will review all rail infrastructure goals in the District in a holistic and objective manner.  Part of this review should include whether expansion of the Virginia Avenue Tunnel is in the District’s best interest and whether there are better alternatives.  Accordingly, we ask the DC Council to (i) enact legislation prohibiting DDOT from issuing any rail permits, including those required for CSX’s proposed tunnel expansion, and (ii) request a suspension of the issuance of the proposal’s Record of Decision unless and until:

(1)   The District Rail Plan is complete; and

(2)   The environmental review is re-performed and/or modified so that it includes a careful analysis of the conclusions and recommendations of the District Rail Plan.

There is ample precedent for a local government to reject a proposed private project that threatens the health and safety of its citizens.  In fact, just two days after the hearing,[1] news broke that Maryland transportation officials cancelled a long-planned CSX intermodal rail facility in the Morrell Park neighborhood of Baltimore because the proposal, according to Baltimore City Mayor Stephanie Rawlings-Blake, had created a burden “at the expense of our residents and local businesses.”[2]

Baltimore and Maryland stood to gain tremendously from CSX’s proposal – both in terms of permanent jobs in the port as well as additional tax revenues.  Despite those benefits, Maryland officials determined that the human cost was still too high.  Here in DC the analysis is much easier.  There is no benefit to the District by expanding the tunnel, and the costs to District residents are significant.  Furthermore, expanding the tunnel contributes an added cost of threatening the District’s future transportation goals of expanding passenger and commuter rail.  And now that the Baltimore double-stacking terminal has been cancelled, CSX’s primary rationale for expanding the Virginia Avenue Tunnel is called into question.

We have attached a letter from the Morrell Park community to Maryland DOT that describes how CSX treats communities when it comes to projects like these.  Notably, CSX proved to be “not engaged” and “consistently unresponsive to the community’s questions and concerns.”  In response to CSX’s continued disregard for the community here in the District, we are looking to the DC Council to firmly represent the community’s interests in this matter.


Maureen Cohen Harrington


cc:          The Honorable Eleanor Holmes Norton

Council of the District of Columbia

[1] http://articles.baltimoresun.com/2014-08-28/business/bs-bz-intermodal-funding-pulled-20140828_1_morrell-park-maryland-port-administration-west-baltimore

[2] https://www.baltimorebrew.com/2014/08/29/a-victory-for-morrell-park-as-state-drops-plan-for-csx-intermodal-facility/

CSX Tunnel Hearing Resumes in Council MONDAY 9/8

[ Full PDF Available here: SafeRailCONTINUATIONPreRel 9-5-14]

For Release: Sept. 5th, 2014

Contact: Natalie Skidmore, 202.657.1911, Twitter @DCSafeRail, Facebook.com/DCSafeRail


CSX Tunnel Hearing Resumes Monday

DDOT Called Back to Answer Council’s Questions



DDOT is expected to answer pointed questions from the DC Council on Monday (9/8) during the continuation of a rare summer hearing about CSX’s Virginia Avenue Tunnel expansion project in Southeast. Chairman Mendelson chose to continue the hearing on 8/26 after DDOT’s lead engineer on the project failed repeatedly to address any of the Council’s concerns about the multi-year, $200 million project, which may receive final approval as early as 9/16.


During the 8/26 hearing Chairman Mendelson said DDOT’s inability to answer questions about the project made it appear DDOT was not willing to work with the Council on this issue, which may significantly impact the district for decades to come. “…We’re not just looking at the sufficiency of this [Environmental Impact Statement], we’re looking at the sufficiency of this project…,” said Chairman Mendelson. “We’re looking at how it relates to public safety in the District – hazardous cargo.  How it relates to transportation in the District – like commuter rail.  Which is more than just the Virginia Avenue Tunnel.” A higher-level DDOT representative is expected to testify on 9/8.


The same week the DC Council began its hearing on CSX’s controversial expansion proposal, grass-roots activists in Maryland killed a major rail cargo facility in Baltimore long-sought by CSX. Maryland’s Department of Transportation terminated an agreement with CSX and revoked $32 million in state funds for the project after CSX failed repeatedly to address the community’s concerns about the project’s impact on people living nearby.



Continuation of DC Council Hearing on CSX Tunnel


When:         Monday, September 8th, 2014

Where:        Wilson Building, 1350 Pennsylvania Ave., NW

Time:          10:00am

News Links: CSX Baltimore Project Defeated by Residents

Residents in Morrell Park, Maryland had a major victory when the state pulled funding for a CSX rail project in their neighborhood yesterday.  Throughout the planning of the project at the Mount Clare rail yard, residents repeatedly complained CSX didn’t respond to their concerns–a frustration Navy Yard residents understand firsthand. Baltimore Mayor Stephanie Rawlings-Blake said the following: 

“The residents of Morrell Park have made it clear: The proposed CSX Intermodal Facility will be disruptive to their community. I hear them and I am certainly not interested in forcing a project on the community that has not fully considered or responded to their concerns and needs.

To read more, click on the articles below:

“State pulls $30 million from rail facility project in major victory for community activists”