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Judge's Hazmat Rail Plan Rebuffed

Legal Fight Between CSX, D.C. Likely Over Ban

By Carol D. Leonnig
Washington Post Staff Writer
Friday, April 8, 2005; Page B01

CSX Transportation Inc. and the federal government yesterday refused a judge's offer to help settle a dispute with the District over the city's plan to ban railroad shipments of hazardous cargo, setting up a legal showdown on the issue.

U.S. District Judge Emmet G. Sullivan, who this week proposed a 30-day cooling-off period for negotiations, probably will rule next week on whether the ban can take effect. The decision is certain to be appealed, according to all parties involved in the case.

At a CSX yard in Cumberland, Md., freight cars are sorted. The yard is one of four on the East Coast that would bunch hazmat cars to bypass the District. (Timothy Jacobsen -- AP)

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The railroad company said it wants a court ruling on the legality of the ban, which prohibits the shipment of hazardous materials along the 37 miles of rail lines in the city. Reading aloud in court from a written statement, CSX attorney Mary Gay Sprague said that her company doubts it can strike a deal because it is unwilling to halt hazmat shipments through the city and D.C. officials are determined to reroute all those shipments outside the city.

"We believe a permanent detour is the only solution that District council leaders will find acceptable," she read.

The federal government, which is siding with CSX in the dispute, also declined to participate in the judge's settlement proposal. Top officials at the Departments of Transportation, Homeland Security and Justice concluded that they did not want to provide a limited number of top D.C. officials with sensitive information about the federal government's efforts to keep the rail lines in the city safe, as the judge had suggested, a government lawyer told Sullivan.

The judge offered Tuesday to broker settlement talks and proposed three conditions: that the city delay the ban for 30 days, that CSX halt shipments through the District for the same period, and that federal officials privately explain their plans to secure the rails to top city officials.

The ban, passed by the D.C. Council and signed by Mayor Anthony A. Williams (D), was to have begun Monday. The city earlier told the judge that it tentatively agreed to put off implementing it until at least April 20. That would give Sullivan and the appeals courts more time to rule on the many legal arguments.

At yesterday's hearing, the judge shook his head and frowned as the attorneys relayed their news. He said he was frustrated that the railroad company and the federal government would not consider negotiations. Only the District said it was willing to talk and delay the ban.

"That's unfortunate not only for the parties, but also for the citizens of this city," the judge said. "I can't remember the last time parties in my court refused to even talk about settlement. But fine. I'll have the next word."

The mayor said yesterday that he was "disappointed by today's setback." Williams and council members have said the ban is needed to protect the city from a possible terrorist attack involving dangerous chemicals carried on a rail car, which could release a plume of poisonous gas and kill more than 100,000 people.

"I had hoped that CSX and the federal government would agree with Judge Sullivan and our attorneys that the parties should seek a compromise," Williams said. "We remain ready to argue our case in court and will continue to put the safety of the people who live and work in this city above all else."

CSX has argued that the ban is unconstitutional because only the federal government can regulate railroads, and such detours around cities could interfere with moving crucial chemicals nationwide.

The judge predicted that the losing side will appeal his decision to the federal appeals court, and possibly the Supreme Court, further fueling the battle.

D.C. Council member Kathy Patterson (D-Ward 3), who introduced the ban legislation, said she was "disappointed but not surprised" that CSX and federal officials declined to pursue talks with the judge.

Patterson said she had a similar reaction to news that federal agencies were balking at sharing their security plans. "Keep in mind this is the government that has invented all sorts of new secrecy rules," she said. "So it's not shocking that the Bush administration wants to keep information from local government."

Sullivan, who had a private briefing with federal officials on rail security, had called on President Bush to instruct the Justice Department to provide as much information as possible to senior D.C. officials "so they know what I know."

Yesterday, Justice lawyer Caroline Wolverton said U.S. officials could provide additional briefings to city leaders, as they have done in the past, but were unwilling to enter into a court order requiring such sharing of information.

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