A CSX train disappears into the tunnel that goes underground near Garfield Park and H at 2nd Streets Southeast under the Southeast-Southwest Freeway 
(Photo by Katherine Frey/The Washington Post)

A D.C. group says it will make one last shot — asking politely via a letter — at an indefinite delay of the Virginia Avenue Tunnel project. Failing that, the group says it will go to court to block the proposed reconstruction of the rail tunnel in Southeast Washington.

Questioning the legality and transparency of the project’s federal environmental review process, the Committee of 100 on the Federal City is asking the Federal Highway Administration to postpone a “Record of Decision” the agency is scheduled to release Monday.  The decision would mark the end of a three-year process of studying building alternatives for the 110-year old rail tunnel and give CSX Transportation the approval it needs to seek construction permits from the District Department of Transportation.

The Committee of 100 said through an attorney that if its request for a delay isn’t granted, it will have no other choice but to sue to block the project.

In a letter to the Federal Highway Administration and DDOT, attorney Leslie D. Alderman III lists the group’s concerns with the final environmental impact statement issued in June, chiefly the commitment from DDOT to help CSX with the necessary permits and the agency’s issuance of a right-of-way permit to the rail company two years ago.

Alderman said he hopes the letter sent Thursday will serve “as a vehicle to promote a constructive dialogue among all parties who are interested in the Virginia Avenue Tunnel expansion project” and reach “an acceptable way forward that does not involve litigation.”

The $170-million project has already been delayed months pending a D.C. Council hearing that ended Monday with a heated discussion about rail safety and security in the District. The neighborhood surrounding the tunnel appears to be split on the project, but those in opposition have been the most vocal. Some say they are concerned about safety during construction, access to their homes and the environmental impacts. But recently the debate has shifted to safety and security in the District’s rail system and the transparency of the review process, with some residents singling out DDOT’s early commitment to the project.

DDOT, the lead agency that helped prepare the environmental impact statement, issued an occupancy permit two years ago guaranteeing CSX the right-of-way at Virginia Avenue SE. CSX agreed to grant DDOT an option to purchase land that the agency wants, but only if CSX gets the permits it needs from DDOT.

“The evidence shows that DDOT pre-judged the outcome of the Environmental Impact Statement and had entered into agreements with CSX that essentially locked DDOT into supporting one of the ‘build’ alternatives,” Alderman said. This meant, he said, “that no real consideration was ever given to the alternative of not enlarging the tunnel.”

Faisal Hameed, deputy chief engineer at DDOT told the Council at an Aug. 26 hearing that during the review process all options, including a “no build” option were given consideration and were “fully, fairly and impartially considered.”  He said the existence of any agreements between DDOT and CSX had no influence in developing the final decision and that DDOT and the Federal Highway Administration worked hard to preserve the integrity of the National Environmental Policy Act process.

The final environmental impact statement, or FEIS, released in June supports a plan to replace the tunnel that runs beneath Virginia Avenue Southeast, from Second to 11th streets, with two permanent tunnels built consecutively. Each of the new tunnels would have a single railroad track with enough overhead space to allow double-stacked freight cars. Trains would continue to use the current tunnel while one new tunnel is built. When the new tunnel is completed, train operations would shift there, and the old Virginia Avenue tunnel would be demolished and rebuilt.

But some critics, including the Committee of 100, say they want a new review process. The committee, which advocates for historic preservation and serves as a watchdog on transportation issues, also has called for a comprehensive study of the city’s rail transportation and for CSX to consider rerouting options.  Alderman, of Alderman, Devorsetz & Hora PLLC, said there were violations of D.C. law during the review process, particularly related to DDOT’s agreements with CSX.

“Unfortunately there is no aspect of the process that DDOT wasn’t essentially in control of, so there is no way to trust any aspect of it,”Alderman said. “It really is a good government question. You can’t have a project that is this important and significant not come off in a transparent way and to see these kind of agreements between DDOT and CSX on something that is this important is really disappointing.”

Some D.C. Council members also have expressed interest in seeking a delay of the federal record of decision. Council member Mary M. Cheh (D-Ward 3), chair of the panel’s transportation committee, has inquired about the consequences of delaying the project until the city can conduct a comprehensive study of its rail system.