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Disclosure of hazmat rail plan requested

(The following article by Spencer S. Hsu was posted on the Washington Post website on March 24.)

WASHINGTON -- A federal judge challenged the Bush administration yesterday to reveal what steps it has taken to prevent an attack on trains carrying hazardous chemicals.

U.S. District Judge Emmet G. Sullivan, at a hearing on a motion to block a D.C. law that bans hazardous rail shipments beginning April 11, said he was "astounded" that the federal government could not explain what has been done to protect the nation's capital.

"How does anyone give the city council and the citizens any assurance that the federal government is doing anything about the problem?" Sullivan asked.

The District's law is being challenged by CSX Transportation and the U.S. Justice Department, which argue that security measures for rail shipments must remain secret. The D.C. law, they said, also would lead to an unworkable series of prohibitions by other cities and violate the Constitution by interfering with interstate commerce.

"This is unconstitutional. It is preempted. And it is beyond the authority of the D.C. Council to pass," said Irving Nathan, attorney for CSX.

Sullivan asked the federal government to disclose to him or to city officials what measures have been taken to prevent a terrorist attack on rail shipments. Justice Department attorney Carolyn McKee said that the U.S. Transportation Security Administration policy is not to release "security-sensitive" information to civil litigants.

The Transportation Security Administration allows U.S. courts to review such information, McKee said, but it has not been forced to decide whether to extend the policy to local or state governments.

"It is not publicly available, and there are security reasons for it," said Caroline Wolverton, an attorney with the Justice Department.

A ruling, which Sullivan promised by April 8, is anticipated by the transportation industry, homeland security officials and federal and local officials across the country. Several deadly rail incidents, some involving toxic chemicals, have resulted in calls for regulation, which are opposed by the rail and chemical industries.

Attorneys for the District and the Sierra Club, which Sullivan has admitted as a codefendant in the case, have said that the District presents a special case. They note, for example, that special federal aviation requirements bar small private airplanes from approaching within 15 miles of Washington and forbid commercial airline passengers to stand up on approach to or takeoff from Reagan National Airport.

Official government estimates project that in a worst-case scenario, a 90-ton tanker of chlorine could kill 100,000 people in a half-hour in downtown Washington and cause $5 billion in damage. A former White House homeland security adviser told the Senate in January that "no real progress" has been made in ground transportation security, Sullivan noted.

In opening remarks, the judge cited statements by D.C. Council members about the need "to eliminate a grave and immediate danger" in voting for emergency legislation, which Mayor Anthony A. Williams (D) signed Feb. 15.

CSX, which owns a rail line that passes within three blocks of the U.S. Capitol, has rerouted all but 87 cars of toxic, explosive and other materials since May at the request of the U.S. government. CSX has shipped 1,645 such cars on another line that passes through Northeast Washington, Nathan said.

The D.C. law would force the company to reroute 11,400 loaded and empty cars, at a cost of $2 million to $3 million, Nathan said.

Nathan sparred repeatedly with Sullivan -- at one point describing D.C. officials as "scofflaws" for crossing federal rail regulators -- before apologizing later in the four-hour hearing.

"You have insulted not only the city government, but everyone living in D.C." Sullivan said.

"I live in D.C.," Nathan replied.

"Then you insulted yourself," Sullivan said.

Thursday, March 24, 2005

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