COUNCIL OF THE CITY OF PHILADELPHIA COMMITTEE ON TRANSPORTATION AND PUBLIC UTILITIES - - - Room 400, City Hall Philadelphia, Pennsylvania Tuesday, October 18, 2005 10:10 a.m. - - - PRESENT: COUNCILMAN MICHAEL A. NUTTER, CHAIRMAN COUNCIL PRESIDENT ANNA C. VERNA COUNCILWOMAN JANNIE BLACKWELL COUNCILMAN DARRELL L. CLARKE COUNCILMAN JACK KELLY COUNCILWOMAN DONNA REED MILLER COUNCILMAN BRIAN J. O'NEILL RESOLUTION NO. 050148, Resolution authorizing City Council's Committee on Transportation and Public Utilities to hold public hearings to investigate the operations of CSX Transportation (CSXT)... - - - V A R A L L O Incorporated Litigation Support Services Eleven Penn Center 1835 Market Street, Suite 600 Philadelphia, Pennsylvania 19103 215.561.2220 215.567.2670 2
Good morning. This is the Committee on Transportation and Public Utilities meeting pursuant to Resolution No. 6 050148. We have a quorum of the Committee. To my left is Council President Verna, who is a member of all committees, Councilman Kelly, Councilwoman Donna Reed Miller. My name is Councilman Michael Nutter, Chair of the Committee, and I know that Councilman Clarke, who is also a member, is on his way. What I'd like to ask is if Mr. Masters could read the title of Resolution No. 050148.
A resolution 20 authorizing City Council's Committee on Transportation and Public Utilities to hold public hearings to investigate the operations of CSX Transportation in and around the City of Philadelphia and their impact on the public health, safety and 3 10/18/05 - TRANSPORTATION - RES. 050148 welfare of the residents of Philadelphia, and authorizing the issuance of subpoenas by the Chair of the Committee to compel the attendance of witnesses and the production of documents to the full extent authorized under Section 2-401 of the Home Rule Charter.
Thank you, Mr. Masters. As I mentioned, he was more than on his way and probably walking in the room as I was speaking. Councilman Clarke is here as well. Ladies and gentlemen, thank you for participating. The Committee, in accordance with the Home Rule Charter, has duly advertised this particular hearing. We have a witness list, and we were also anticipating, so as to have a full hearing, the participation of representatives of CSX. What I'd like to do is read into the record a series of communications and then at that point let 4 10/18/05 - TRANSPORTATION - RES. 050148 you know what our next actions will be. This is an e-mail transmittal from Steven David Masters dated October 12, 2005. It is to a Mr. Cheetham and Mr. Sullivan. m. in Room 400 City Hall to hear testimony concerning Resolution No. 050148 (copy below) and by incorporation, Resolution No. 041090 (also copied below). "We anticipate that this will be the first of several hearings whereby the Committee will investigate the issues enumerated in Resolutions No. 050148 and No. 041090 and that this first hearing will focus primarily on issues relating to public access to the Schuylkill River Trail Park at Race and Locust Streets and CSXT's general operations of trains that travel through and are parked within the City of Philadelphia. "In light of the focus of this 5 10/18/05 - TRANSPORTATION - RES. 050148 hearing, we have identified the following representatives from CSXT as possessing knowledge and information relevant to the Committee's investigation. We would like you to produce appropriate representatives from CSXT to be present and offer testimony at this hearing, including the following individuals: Mr. Mike Hoey, Operations Engineer; Mr. Joe Pewdo, Local Track Manager, Langhorne, Pennsylvania; Mr. Larry Koster, Train or Yard Master, 1600 Schuylkill Avenue; Mr. Bill Getz, Assistant VP, Network Development. "On behalf of the Committee on Transportation and Public Utilities, I want to thank you in advance for your cooperation with this Council investigation. "I would also appreciate receiving information from you that these witnesses will in fact be produced at the time and date specified above. Steve Masters, Staff Attorney, City Council 6 10/18/05 - TRANSPORTATION - RES. " On October 17, 2005, the following e-mail was transmitted back to Mr. Masters. "Mr. Masters, CSX appreciates the invitation to appear at a Philadelphia City Council hearing on Tuesday, October 18, to discuss Schuylkill River Park. However, because the matter currently is the subject of litigation settlement discussions with the City of Philadelphia under the order of Federal District Judge Bruce Kauffman in the United States District Court for the Eastern District of Pennsylvania, CSXT believes it should respectfully decline the offer at this time. Furthermore, the Eastern District Local Rules require that these settlement discussions remain confidential. "The railroad has received a great deal of input from the community and from all levels of government regarding the Park. While the approaches may differ, the desired result is much 7 10/18/05 - TRANSPORTATION - RES. 050148 the same: Safe access for all users of Schuylkill River Park, a tremendous addition to the quality of life for all who live in, work in, or visit the City of Philadelphia. " Mr. Masters subsequently sent back the following e-mail the same day, 10/17/2005: "Mr. Sullivan, I write in response to your e-mail of October 17, 2005, wherein you stated that 'CSXT believes it should respectfully decline the offer to testify at this time. ' "We are well aware that there is pending litigation in the Eastern District of Pennsylvania involving the City of Philadelphia and CSXT. That cannot, however, serve as a bar to the participation of CSXT witnesses at tomorrow's Council hearing since the hearing has been scheduled pursuant to a duly enacted Resolution authorizing an 8 10/18/05 - TRANSPORTATION - RES.
050148 investigation by Council's Transportation Committee and no witness will be compelled to reveal any confidential settlement discussions which have taken place in the ongoing litigation. "Council is legally empowered under our Home Rule Charter to conduct legislative investigations, such as the investigation at issue here. The refusal of CSXT to produce any witnesses before a duly authorized Committee of Council is without any merit and will be addressed by the Committee when it convenes for the hearing tomorrow morning. " To the members of the Committee, I would suggest that the resolution authorizing this particular Committee hearing was passed on February 17, 2005. It is clear within the title of that resolution that we have made it clear in the passage of this resolution 25 that all Council committees conducting an 9 10/18/05 - TRANSPORTATION - RES. 050148 investigation under the Home Rule Charter, and I will quote from the title of the resolution, that we are authorized to issue subpoenas by the Chair to compel the attendance of witnesses and the production of documents to the full extent authorized under Section 2-401 of the Philadelphia Home Rule Charter. I would suggest at this time and make a motion that this Committee take that necessary action in light of the outrageous response by CSX, their outright defiance of not only the request but a duly authorized hearing approved by this City Council, the arrogant nature with which they have responded to this Council and on behalf of the people of this City and those who care very deeply about Schuylkill River Park, the people of this City deserve a better response and better treatment, and, therefore, I would move that this Committee issue the necessary subpoenas to all individuals either as detailed in the e-mail or 10 10/18/05 - TRANSPORTATION - RES. 050148 others that we may determine so as to move this issue forward.
No, Mr. Chairman. I was going to enthusiastically support the second.
There is enthusiastic support from the second. Any other comments? (No response.)
The ayes have it. The motion passes unanimously. Staff will take the necessary actions to 11 10/18/05 - TRANSPORTATION - RES. 050148 prepare the subpoenas, which hopefully will be done today, and I will sign them as soon as they are ready. Thank you, members of the Committee. With that in mind, are there any comments that the members wish to make prior to calling the first witnesses? Councilman Clarke.
Well, Mr. Chairman, first, thank you for scheduling the hearing so we can get to hopefully the bottom of this issue. I was actually talking to my colleague briefly about the community's inability to get to the actual park. They essentially have to go almost to another Council District to have access to this particular park from my side, and then with the Council President, they have to go deep within her district to access it from her side, and we think this is totally inappropriate. 12 10/18/05 - TRANSPORTATION - RES. 050148 One of the things that we have to do, given the fact that I think we've been more than fair in our deliberations with CSX, the community has been very responsive, we've worked in a cordial way, but it appears that we may have to ratchet it up a level, and I think that it is within our powers and jurisdiction to do that. So to the community, rest assured that we will use every method within our power to ensure that we get the appropriate information and ultimately the appropriate response from CSX. Thank you, Mr. Chairman. (Applause.)
Yes. Thank you, Mr. Chairman. I, too, am totally shocked at the arrogance of CSX pertaining to this problem that we have, and I think you 13 10/18/05 - TRANSPORTATION - RES. 050148 described them very well. I think that what we have to do is, we have to do everything we can to bring them to the table to try to talk some sense into them. That's all we wanted to do, is to make a compromise. On this panel right now, I know that the Council President, I know Councilman Nutter and Councilman Clarke and myself have been with this issue for over a year now, and we're constantly trying to get them on the right track and the right direction. And I think the only thing we want to do now is, we want to bring them to the table, tell them our side of the story. And I think that if their arrogant attitude keeps up, I think they're going to lose all support, not only this Council but I think of other people as well. And I just want to go on record right now as saying that I will do everything I can to work with this 14 10/18/05 - TRANSPORTATION - RES. 050148 Council to make sure that we have safe access to that beautiful park so that all of us may enjoy it. Thank you. (Applause.)
Thank you, Mr. Chairman. I certainly would like to echo the comments of my colleagues, and I certainly am not surprised that CSX is not here. We talk about their arrogance. I have witnessed time and time again a problem that I have in my district. We have communicated with them, and all they do is ignore. Well, I think it's time that we bring them to the table and they're just going to have to answer for their actions, and I think that we should not procrastinate. I think the sooner, the better. And I know that our colleagues really want to work very closely to see 15 10/18/05 - TRANSPORTATION - RES. 050148 this achieved. Thank you very much.
Yes. Thank you, Mr. Chair. I'm not as familiar with the issue, but I am familiar with the issue of public access and public use, and if CSX -- I think it's to their advantage to come to the table so they can hear from the public that they have a right to use this park, even though I'm not that familiar with that particular area, but I'm familiar with public access and public use City-wide in all kinds of parks. So I'm here and I just want to echo the comments of my colleagues and just know that as a member of the Committee, I support whatever action we 16 10/18/05 - TRANSPORTATION - RES. 050148 need to take to get CSX to the table. Thank you. (Applause.)
Thank you, Councilwoman. Let us hear from our first witness. Mr. Joseph R. Syrnick, President and CEO of the Schuylkill River Development Corporation.
Mr. Chairman, Madam President, members of Council's Transportation and Public Utilities Committee, other members of Council who may be listening in, good morning.
My name is Joseph Syrnick. I'm the Chief Executive Officer of the Schuylkill River Development Corporation, SRDC. I appreciate the opportunity to testify this morning. I'm joined today by two members of our staff, Aaron Bowles, who is our Executive Assistant, and Caroline 17 10/18/05 - TRANSPORTATION - RES. 050148 Harrington, who is our Communications Assistant. Also, I would like to acknowledge one of our Board members who is here, Ed Hazzouri, who is simply here to observe. SRDC is a non-profit corporation concerned with the revitalization and the restoration of the Tidal Schuylkill River. That's the portion of the river below the Fairmount Dam. For years, this portion of the river has been neglected, and I'd like to tell you about the vision that SRDC, working in partnership with the City of Philadelphia, other governmental agencies, institutions and corporations, the vision that we have for this lower Schuylkill. My job this morning is to sort of tell you about the river corridor and to perhaps put in context what is happening along the river here, and then you can talk about some of the issues that you want to talk about today. 18 10/18/05 - TRANSPORTATION - RES. 050148 The Tidal Schuylkill extends for eight miles. Really I guess you could say it has miles of riverfront. 5 It flows past four universities, three 6 hospitals. It's immediately adjacent to 7 the Central Business District, but it 8 also flows past and through 27 distinct 9 neighborhoods. It flows past four 10 national historic landmarks and under 15 11 bridges. It's a portion of the river 12 that for far too long has been 13 inaccessible and almost invisible because 14 it has been blocked by industry. 15 The word "Schuylkill" is a 16 Dutch word meaning hidden river, and I imagine it got that name because when the Dutch were paddling up the Delaware River, they probably had a hard time seeing the mouth of the Schuylkill because of wetlands or bulrushes or something, but the truth is, that name has been prophetic because for the last hundred or maybe 150 years, this river really has been hidden because of the 19 10/18/05 - TRANSPORTATION - RES. 050148 industry that has grown up around it. But it's a wonderful river with great potential, and our job, all of our jobs, is to have this river rediscovered. So how might we do that? Well, at SRDC, we've identified four key drivers that guide our work. The first of these is to improve riverfront access and connections, getting people down to the river. And one of the ways we like to do that is by creating some attractions and destinations that people would want to come to see. We're also interested in working on private-public partnerships trying to find ways where public money can be matched with private money to maximize the benefit that is derived. And, lastly, everything we do should be environmentally sensitive. We should leave this river and riverbank better after we've been there than it was before. We're doing a lot of this 20 10/18/05 - TRANSPORTATION - RES. 050148 revitalization in two ways. One is capital projects. We have the Schuylkill River Park and Trail. The trail was developed over the last ten years at a cost of about $15 million. Our goal is to extend it southward, first to the South Street Bridge, which will cost about $10 million, and then to Bartram's Gardens, which will cost about another $15 million, and ultimately to Fort Mifflin, another $20 million. A lot of money, but this trail has, in the past year and a half that it's been open, has been tremendously used and has done wonderful things, we believe, for the neighborhood. Other projects that we're working on are some docks. We would love to see some activity on the river. This is a computer-generated image of a dock at the WaterWorks. Fairmount Park is working on this dock. This looks like a real picture, but, in fact, this is a computer conceptualization. This dock 21 10/18/05 - TRANSPORTATION - RES.
050148 will probably be on the river probably in about one year. SRDC, however, is working at a dock right now on Bartram's Gardens. Again, this a computer conceptualization. But this is not. This is a picture taken of this dock under construction last Saturday. We're also looking at a dock adjacent to Schuylkill River Park at Walnut Street. This is actually a photograph of a dock in Wilmington, Delaware. Our dock at Walnut Street will look like that. And here's a picture of our dock still on the flat-bed truck. I believe this was taken last Wednesday during the rain. Our goal once these docks are built is to develop some kind of a boat tour, which would get people out onto the water, allow them to see Philadelphia from a whole different vantage point. We believe there's opportunities for historical tours, architectural tours, 22 10/18/05 - TRANSPORTATION - RES. 050148 ecological tours, food and beverage tours. It would be great to have that, but we need these docks in order to make that happen. We at SRDC will have spent about $700,000 on the Bartram's and Walnut Street docks this month. The combined value of these three docks is more than $1 million. We're also interested in improving the connections across the river. This is the South Street Bridge currently under design by the Philadelphia Streets Department. We are designing a ramp connection from this bridge down to a trail extension. We're working with PennDot on some of their bridges. This is the JFK Bridge, which is going to be undergoing a reconstruction by PennDOT. They are looking at it from a structural standpoint. We believe aesthetically a lot can be done. This is an existing picture of the bridge, and we're working 23 10/18/05 - TRANSPORTATION - RES. 050148 with PennDOT to make it look something like that a year from now after that work is completed. So those are some of the capital projects we're working on, but we're also working on programming. This year we had concerts at Schuylkill River Park. This is a Zydeco concert, I believe. We've had movies. It's hard to tell from this shot, but that movie is actually being projected on the side of that truck on the right side of the image. We had a cookout for college kids as part of the Campus Philly Program, and this coming Saturday we are going to have the first competitive regatta on the lower Schuylkill River, and I hope all members of Council have received your invitation, both to the regatta and also to the reception on Friday night. Well, why would we do all this? Great cities have great rivers. In the 24 10/18/05 - TRANSPORTATION - RES. 050148 United States, you think of New York, Boston, San Antonio. In Europe, London, Paris, Prague, Vienna. All these cities have great rivers integrated into the life of the city and vice versa. Great rivers give you recreation opportunities and they also give you economic development opportunities. Great cities have great rivers, and it's because people like to live, work and play along waterfronts. The recent construction of the Schuylkill Trail has already spawned a number of developments along the river because of its quality of life potential. Here is a picture of the Cira Centre, the first skyscraper in West Philadelphia and the first skyscraper in Philadelphia in 15 or 20 years. On the right part of that screen is the Edgewater Development at 23rd and Race Street, both under construction well along. This is the Locust Point and Locust on the Point developments, both 25 10/18/05 - TRANSPORTATION - RES. 050148 completed sometime ago and serving the City. This is the Naval Square development being developed by Toll Brothers. That building on the right is Biddle Hall. I'm told that was the original United States Naval Academy before Annapolis. And other developments are sure soon to follow. This is the Kennedy Building just south of South Street.
This building is ripe for development, and I think if you look at this area here, this is an area here, these scrubby trees here, that's just crying out, I think, to become a trail, something that might look like that. There's also the industrial land south of Bartram's Gardens. That's National Gypsum. And, of course, there's the Postal Lands, which will be taken over by the University of Pennsylvania in January of 2007. These developments totalling 10/18/05 - TRANSPORTATION - RES. 050148 hundreds of millions of dollars, probably billions of dollars, are being built to accommodate folks who want to move back into the City, empty-nesters and others, for people already in the City who want to stay, and for young professionals, some native, some transplants who come to Philadelphia to take advantage of our great universities. And make no mistake about it, we want to keep these folks here using their knowledge and talents to benefit Philadelphia's economy. If we get our way, Bill Gates will have to look elsewhere for help. So all this great stuff is happening or is planned along the river. How does that relate to the hearing today? Well, if we were a golf course, our signature hole would be the Schuylkill River Park and Trail. It's the catalyst for everything else that's happening along the river corridor. And since it opened a year and a half ago, it has been heavily used. 27 10/18/05 - TRANSPORTATION - RES. 050148 As the landscaping, now underway, takes route and the trail is extended southward, this usage will surely increase. We need good, safe, convenient access to the trail so as to optimize the investment that has been and is being made there. We acknowledge that there has been some differences of opinions between the City and the railroad and others as to what this access should be. SRDC has decided to yield to the wise judgment of others as to the appropriate crossing design and/or protection. We are partners with the City, and we appreciate everything the City, including this Council, has done to help this project along. But we're not an enemy of the railroad. They have been here for some time, and like any business, they'd like to be successful. Personally, I think the clackety-clack of a moving freight train adds a touch of urban charm to the 28 10/18/05 - TRANSPORTATION - RES. 050148 trail experience. Schuylkill River Park is not Yosemite. It's a recreational trail and park in a busy, active, diverse city, and there's a lot of committed, smart people working on this access issue. We at SRDC believe that a good solution can be found, must be found. There's been too much invested here on this site for there not to be. So we're pleased that Council has joined the discussion. We look forward to reading about a wonderful resolution, a resolution embraced by all parties. It can be done and you folks may be the ones to do it. So thank you for allowing us to testify today.
Thank you very much, Mr. Syrnick. I just have maybe a couple of questions. First, that is a spectacular presentation in what I think we don't have to worry too much in the future about at least that part of the 29 10/18/05 - TRANSPORTATION - RES. 050148 Schuylkill River being hidden anymore, and thank you for your great work and the Schuylkill River Development Corporation. Is it fair to say, without over-estimation, that a significant amount of this work and the investment that has been made or will be made is jeopardized by the CSX situation and the lack of, in your words, safe access to the park?
I think that the work that's been done out there will not be optimized unless a good solution is found to this problem. The trail can survive, has survived up to now, but it will not reach its full potential. And as time goes by, we are perhaps risking an accident out there if we don't do something. We need to do the right thing. I'm not sure what that is, but I think we need to do something to make it safer.
Well, it would seem to me that it is both 30 10/18/05 - TRANSPORTATION - RES. 050148 short-sighted on CSX's part to not come to the table and try to reach a responsible resolution, but it does jeopardize potentially the investment of hundreds of millions of dollars, and it just does not put the company or the corporation in any positive light here in the City, which will cause them, I think, ultimately to be considered a bad corporate neighbor. Their reputation is certainly at stake, if they value that in any way, shape or form. But I think you've also heard here this morning articulated by every member of this Committee, and I'm sure many other members of Council feel the same, we will not stand by while this corporation potentially jeopardizes hundreds of millions of dollars in investment and recreational use and other activities here in this part of Philadelphia, and to the extent that we need to be aggressive, I believe that we will and, at the same time, are always 31 10/18/05 - TRANSPORTATION - RES. 050148 prepared to have a reasonable conversation, but it takes two individuals or entities, or in this case maybe three, to have a reasonable conversation. Their continued refusal to engage in any serious way with this body is, I believe, ultimately going to result in a very negative reaction, not only by this Council but increasingly by other partners and stakeholders in Schuylkill River and other corporate entities throughout Philadelphia. As Councilman Clarke mentioned, there may be other actions that this Council will potentially engage in, and you'll, I'm sure, hear about that as we go forward. But we are very, very serious. I greatly appreciate your work and your commitment here, and we cannot let it go just because one entity refuses to be cooperative. You are right, the train has been there for a long time. The park and 32 10/18/05 - TRANSPORTATION - RES. 050148 the area have probably been there a little longer. So they need to get with the program and act like a cooperative party. They can't just do whatever they want to do and the rest of us have to build our lives around them. It doesn't work that way. Any other comments or questions by members of the Committee? (No response.)
Thank you very much. Thank you for a great presentation.
Mr. Chairman, Council President, it's always nice to see all of you. Councilman Clarke, how are you? That does not look like Donna Reed Miller. Somebody has to change his name plate. I thought I was hallucinating.
33 10/18/05 - TRANSPORTATION - RES. 050148 Councilwoman Miller is in fact a little more attractive than Councilman Kelly. There's no question about that.
I was wondering if I was in the right place, Councilman.
I understand. We wonder the same thing from time to time. Please identify yourself for the record.
I am Sam Switzenbaum. I am a local developer in Philadelphia. I have been a resident of this area for 35 years. I live at 2300 Waverly Street. I'm an avid supporter of the neighborhood, and recently my partners and I acquired this building called the 734 Schuylkill Avenue, the former JFK Building, which was originally used as an armaments warehouse, but it's a really good example of what's happened in this area. When that building was built in 34 10/18/05 - TRANSPORTATION - RES. 050148 the '40s, it's 750,000 feet, it was built to accommodate tanks and armaments to be stored prior to being shipped to the allies through the Philadelphia Naval Yard. Today the whole area is going through a dramatic transformation, and we hope to be the linchpin of it, and we congratulate City Council, we congratulate the Mayor on what we think is a spectacular vision of Schuylkill River Park. I mean, if Boston can have the Charles River, why can't we have the Schuylkill River. The only difference is, the Charles River doesn't have trash trains parked all along it. We seem to have them. We have two issues. One is trains being parked and what's in the trains that are being parked. We believe -- and I've written letters to various people involved in this situation -- that there are severe life-safety issues. 35 10/18/05 - TRANSPORTATION - RES. 050148 You know, CSX is a big company. They're a railroad. They're not going to change their ways unless they're forced to change their ways. That's my just very objective opinion. And I believe that there has to be a call to arms, Councilman Nutter. I believe somebody has to step into the vortex and do something, because unless and until they're forced to come -- it's not even come to the table. Unless they're forced to come to a realistic solution to the life-safety issues which confront the citizens of Philadelphia, they're just not going to do it. They don't return my phone calls. They don't want to talk to me. We own this huge 700,000-foot building that we're going to do something beautiful with. What disturbs us most is that there is a solution, and no one can tell me that with the thousands of miles of tracks that this company owns that they 36 10/18/05 - TRANSPORTATION - RES. 050148 can't find another place to change crews and to do some staging. It doesn't work. It's not fun to be on the Schuylkill River Park and have trash trains parked there. It smells. It's not pleasant to see big tank cars with hazardous waste on it while you have young mothers with babies out there in baby carriages or people showing up at any of the crossings with their bikes or things and to be met with this big train. Then they have to go blocks and blocks and blocks and blocks away, go up and down to try to get into the park. I really believe that the City has to make a decision. One is to stop funding this park if they can't solve it, because we're taking good taxpayer money and throwing good money after bad, because you don't get the optimum use of the park. And it is a serious life-safety issue for all of those people that are involved in development or who want to live in that area of the City. 37 10/18/05 - TRANSPORTATION - RES. 050148 This is turning out to be one of the most vibrant neighborhoods in the City of Philadelphia and it's being transformed from ugly industrial buildings to beautiful, beautiful office buildings and residential, and this is the one thorn in our side in getting this type of development done. This is the only aspect of this entire development that really is negative, as far as we're concerned. So we would ask you, we would ask you very strongly, do something dramatic, step into the vortex, provide the leadership. This shouldn't be before Judge Bruce Kauffman. This shouldn't be in the courts. The City of Philadelphia has the ability, is empowered to pass laws or to do things which will protect its citizens, and that's what this is really about.
It's about protecting the citizens of Philadelphia so they can have the enjoyment of their community. And parking trash trains with hazardous 38 10/18/05 - TRANSPORTATION - RES. 050148 materials for five, six, seven hours and now even overnight -- because we see it. We're in the building every day, and those trains sometimes sit there overnight, contrary to what they're telling the Governor's office. And you all are empowered to do something, and I just hope that you do something. And anything we can do to be helpful to you, we would be very, very happy to do. Thank you for your time.
I don't really have a question. It's a shame that all the questions that I have would probably be better if CSX were here, 39 10/18/05 - TRANSPORTATION - RES. 050148 because that's really who all of our questions are really directed to, because as you mentioned before, there's trash trains, the trash is coming from not only Philadelphia, it's coming from New York and wherever, and it becomes a real problem. It's a quality of life issue. And I think that to improve the quality of life in those areas, that we have to take some action, and I think this Council is ready to take the action. But we don't have questions on you and probably most of the people in this room, but all of our questions, I think 99 percent of them, are going to be with CSX, because they're the ones that really create this problem, and I think it's up to us to try to do whatever we can to solve it. And I want to thank you for your coming in here and thank all of the people who are coming in here today to give testimony. We understand the plight and I understand a lot of the problems 40 10/18/05 - TRANSPORTATION - RES. 050148 regarding this. The only thing I can say is that, again, we will do what we have to do to make sure that the direction of CSX is going to change and their attitude is going to change.
Well, Councilman, it is within the purview of this Committee and City Council. If CSX does not want to participate, they can be foisted to do various things and they can be found guilty in abstentia. And I would not suggest that their inability or their lack of desire to participate should stop you in what you want to do. If they don't want to be questioned, it's because they don't want to be asked the questions and they don't have the answers which are going to make them appear as good citizens in Philadelphia. So I would just go do it.
We 41 10/18/05 - TRANSPORTATION - RES. 050148 understand. Councilman Clarke.
Just for the record, because I don't want some people leaving here thinking that -- and I agree with you, at the end of the day, the buck stops with the elected officials, and we will do something, but I don't want people leaving here thinking that we have unlimited powers as it relates to the regulation and the jurisdiction of this particular line or any particular rail line. We are limited to some respect as it relates to our ability to influence or regulate or legislate the operations of this particular transportation mode. So while we will do whatever we do, probably do some things beyond our 42 10/18/05 - TRANSPORTATION - RES. 050148 legal ability, I do want to clarify that there are some limits in terms of our powers.
Councilman Clarke, thank you. Would it be possible for the people of Philadelphia to know, so that they can appreciate what Council would do, just what the legislative powers are of Council with respect to this issue? It seems to be a gray area. The citizens feel that Council in this issue can do everything.
And, therefore, they hold Council and this Committee to a very high standard. And because this is such an emotionally charged issue, there's, I always call it, there's the reality check. What is it that you can legally do and what is it that they think you can do, and I think with regard to that, there is probably a great separation. 43 10/18/05 - TRANSPORTATION - RES. 050148
I would recommend to the Committee that it would be important for the Committee to at least advise Council and the citizens of Philadelphia just what the City Council can do, what is it empowered to do so we sort of remove some of the mystery of this, because, quite frankly, I don't know.
And that's understandable. It's not your responsibility to know that.
I mean, we have methods of doing things that sometimes don't require legislation. As a matter of fact, I'm going to ask the City Solicitor about a particular parcel of land, that there's some dispute about the ownership. We believe it's owned by the City. I'm going to ask him that question when he comes up to testify. We have in fact, this group of 44 10/18/05 - TRANSPORTATION - RES. 050148 individuals in particular, have reached out to certain elected officials on the federal and state level, because to some degree, they have, I say, probably more expanded powers as it relates to regulating railway systems. So they are in fact a part of this discussion. But I just wanted to say here today that there are some things that we legally cannot do. In that event, we will be sure to reach out to those legislators that are better positioned to try and influence CSX. Sometimes we don't do that legislatively. Sometimes by virtue of controlling budgets to certain departments, we sometimes influence people to do certain things. So we will use everything within our power to ensure that we get a resolution.
Thank you, Councilman Clarke. I might also suggest, at the risk of being presumptuous, that there are some key property owners that 45 10/18/05 - TRANSPORTATION - RES. 050148 have large parcels of land such as we do where we own the land to the river, including Bainbridge Street. We own the vacated Bainbridge Street. And we are ourselves researching what our rights are and are trying very hard, and the City is helping us, trying to find the original deeds that gave CSX or its predecessor the right to use those tracks. And to the extent that you can keep some of the property owners along the river just involved a little bit or let us know what's happening, we would greatly appreciate it.
And we will tell you and keep you informed of our progress.
This clearly needs to be a unified effort. I don't think any one entity can get a resolution to this. So we will be working very closely with you and the rest of the community on this issue. 46 10/18/05 - TRANSPORTATION - RES. 050148
Thank you. Thank you, Councilman Clarke. Madam President.
Thank you. Mr. Switzenbaum, I simply want to publicly thank you, not only for your appearance today but for your continued interest in our community.
I know that you have been extremely active, and I certainly want to thank you. And I assure you that the Committee listened to you very carefully, and we will do whatever it is within our power to do.
Keep up the good work. 47 10/18/05 - TRANSPORTATION - RES. 050148
Thank you. Michael Eichert and Richard Glazer. We've been joined by both Councilman O'Neill, another member of the Committee, as well as Majority Leader Jannie Blackwell. Gentlemen, would you identify yourselves for the record and proceed with your testimony.
Yes. For the record, my name is Michael F. Eichert, Chief Deputy City Solicitor.
Good morning, President Verna, members of Council. My name is Richard Glazer and I'm a Senior Advisor to the Managing Director.
Mr. Chairman, Madam President, Committee members, I would like to begin by reading a letter from the City Solicitor addressed to Councilman Nutter that summarizes the 48 10/18/05 - TRANSPORTATION - RES. 050148 status of the litigation.
Mr. Eichert, before you get into that, do we have copies?
"Dear Councilman Nutter, in preparation for the above hearing, presently scheduled for October 18, 2005, I am pleased to provide this short summary of the litigation between CSX Transportation, Incorporated and the City, which is presently pending in federal court. "Preliminarily, we would point out that the Law Department believes that it is not appropriate at this time to discuss the legal arguments that the City will rely on in the litigation or to attempt to state the relative strengths of each side's position. We have, therefore, limited this letter to presenting the history and current status 49 10/18/05 - TRANSPORTATION - RES. 050148 of the lawsuit, and stating the City's position. "This case was filed on October 26, 2004, in the United States District Court for the Eastern District of Pennsylvania, and is presently pending before Judge Bruce W. Kauffman. CSXT is seeking an injunction to compel the City to close the gaps that exist in the fence between the Schuylkill River Park and the CSXT railroad tracks at Locust and Race Streets. The Railroad is claiming that the presence of these gaps violates the terms of the 1979 agreement between the City and the Railroad pertaining to the development and construction of the Schuylkill River Park, according to which the City is obligated to construct at project expense an effective permanent barricade or wall, between the Railroad's tracks and the Park project. The openings at Race and Locust Streets permit at-grade pedestrian crossing of its tracks at these two locations, which 50 10/18/05 - TRANSPORTATION - RES. 050148 CSXT claims is an unsafe condition. "On January 5, 2005, a hearing on Plaintiff's Motion for Preliminary Injunction was held before Judge Kauffman. We completed the testimony, and the Court took the matter under advisement. During the hearing, the Court expressed its concern about safety, and indicated its desire that some type of protective barrier be erected. The Court agreed to defer its ruling on the Motion to give the parties the chance to engage in settlement negotiations. "In the months following the Preliminary Injunction hearing, the parties met to discuss settlement, and a partial, tentative agreement was reached that would, if finalized, permit an at-grade crossing at Race Street, with movable gates that would lock in the closed position when a train approaches the crossing. CSXT continues to demand complete closure of the crossing at Locust Street, arguing that its 51 10/18/05 - TRANSPORTATION - RES. 050148 operations frequently require the parking of trains at this location, and that this creates a higher risk of injury to persons who attempt to cross at Locust Street while a train is parked there. The City's position is that this risk will be eliminated by installation of the same type of gate that will be installed at Race Street. "A settlement conference with the Court took place on October 11th. The Railroad offered to pay up to $500,000 to construct a pedestrian overpass to provide access at Locust Street, in lieu of a grade-level crossing. Based on its own earlier studies, the City does not believe such an overpass is feasible, but Judge Kauffman asked CSXT to submit a preliminary design so that it can be evaluated. The Judge made it clear that any overpass must satisfy applicable site and use constraints. We expect that CSXT will provide its design proposal in the 52 10/18/05 - TRANSPORTATION - RES. 050148 next few weeks, and that the City will prepare a response prior to the end of November, at which time the parties will resume settlement discussions with direct involvement of Judge Kauffman. "At the upcoming hearing, Chief Deputy City Solicitor Michael F. Eichert, who is representing the City in the litigation, will be present to answer any questions that Councilmembers may have concerning the lawsuit. "Sincerely, Romulo L. Diaz, Jr., City Solicitor." And with that, I am certainly here to answer any questions that you have.
Thank you. Mr. Glazer, let me just ask, we do have your testimony, and unless you feel tremendously compelled or under risk of being assaulted by the Managing Director, can we just put your testimony in the record as if it were read?
Certainly, 53 10/18/05 - TRANSPORTATION - RES. 050148 Councilman Nutter.
Thank you. Mr. Eichert, let me ask you a couple of questions. First, without getting into the deep details, and anything you can't answer, we will certainly understand given the litigation situation, on the first page of the letter, could you provide to the Committee a copy of this 1979 agreement and the section in the letter that you have in quotes. What would be the effect of what CSX is complaining about with regard to the term and condition of the 1979 agreement? What would be the practical effect of that quoted section?
CSXT's position is that that quoted language means that the barricade or wall, which is now the fence that's in existence, must be continuous, without any openable gates or gaps in it. That's really their litigating position. Is that your 54 10/18/05 - TRANSPORTATION - RES. 050148 question?
So, in effect, under that provision in this 1979 agreement, if that were carried out, it would then be impossible to access the park based on that provision?
Not under our interpretation. Our interpretation is that a permanent effective barricade or wall can still have gates. The gates --
I understand that's your interpretation. I'm trying to understand from -- they wouldn't be citing this language unless it was leading somewhere.
So the strict reading of this is, they want enforcement of a 26-year-old provision, the effect of which is a permanent barricade or wall between the railroad's track and the park project, a complete separation --
Yes. But they need, in our view, to interpret that quoted language, in effect, to also say that there can be no openable gates.
I understand. That will, I'm sure, be a part of millions of briefs that you'll write.
Second, I think we all understand that, except for the fact I assume that it has not happened, there doesn't seem to be much dispute about at-grade crossing at Race Street; is that correct?
At this point, we believe we have an agreement on Race Street, yes. 56 10/18/05 - TRANSPORTATION - RES. 050148
Without getting into the legal components of it, CSX continues to maintain a position that their operations require not only limited to no access at Locust Street but also, more importantly, the parking of these trains at that location. Is that their bottom line?
And why do they need to park these trains at that location, and what is in these trains?
That will be -- let me say this: At this point in the litigation, we have not taken discovery on those issues. Should the case go forward, that will certainly be an area that we will inquire deeply into.
The necessity for parking and -- probably limited to that. Probably not the contents of what's in the trains. 57 10/18/05 - TRANSPORTATION - RES. 050148
Okay. Let me stop asking questions. There are members of the Committee, I'm sure, who have questions, and I'll come back. Councilman Clarke.
Thank you, Mr. Chairman. Actually, I want to follow up on Councilman Nutter's line of questioning with respect to the '79 agreement. They wanted to have essentially a fence throughout the entire passageway. The agreement or tentative agreement that's been reached as it relates to the Race Street crossing, would you say that is inconsistent with the '79 agreement?
Not your view. I'm saying in CSX's position. I guess I'm trying to understand. CSX is saying that the '79 agreement calls for prohibited access along the entire rail 58 10/18/05 - TRANSPORTATION - RES. 050148 system in that particular area, but yet they entered into an agreement to allow it at Race Street. So isn't that somewhat inconsistent?
I have to make the record clear. There is no final agreement yet. This is something --
Yes, it's tentative. It's been discussed. Yes, that would seem to be a concession on their part that departs from their interpretation of that language.
So they're -- actually, I'm not going to ask any more questions on that, because I might actually create a problem for you. Okay.
Councilman, may I just make one other point in that regard? Notwithstanding the language of that agreement, CSX's position has always been 59 10/18/05 - TRANSPORTATION - RES. 050148 that emergency vehicles will be permitted access through the gate. So that's always been part of the discussions in the negotiations that have taken place.
Again, whether that is consistent or inconsistent is certainly an issue.
Okay. I'm going to leave this one alone. Mr. Eichert, during the course of our discussions internally, I think you may have been at some of the meetings, there was a question about a parcel of land where CSX had its switch box or some sort of equipment or something.
There is what's been referred to -- I think I'm talking about the same installation. The railroad sometimes calls it the signal bungalow or the signal house. Is that what you have in mind? 60 10/18/05 - TRANSPORTATION - RES. 050148
Again, it's not something that we have deeply researched at this stage. I'm informed by other lawyers in the Law Department that part of that signal bungalow may actually be on City property. Beyond that, what we're planning to do about that I think is very much under discussion.
Again, I'm just trying to get some definitive information on the ownership of that parcel.
I don't have any definitive information at this point. I mean, it's something that we are going to look into.
Is someone working on that? Because I would think that that would be relatively easy to determine.
You would think that, but -- 61 10/18/05 - TRANSPORTATION - RES. 050148
One would legitimately think that it's easy to determine. I've had trouble getting a clear answer, but we will get an answer.
Can you? Because I think that particular parcel falls within, I believe, my councilmanic district.
The sooner you can get that, that would be very helpful as we move ahead. I talked to Mr. Switzenbaum earlier about the need to possibly do other things that fall within our jurisdiction, and if in fact that is a publicly owned parcel, I think that clearly falls within our jurisdiction. 62 10/18/05 - TRANSPORTATION - RES. 050148 So that may be part of something we may want to entertain.
I will give you a report on that as soon as I get an answer, and I will press for an answer sooner rather than later.
Councilman Clarke, is the bungalow that was referred to in your district?
What would be the difficulty in relocating that?
What would be the difficulty in relocating that, the bungalow or the switch or 63 10/18/05 - TRANSPORTATION - RES. 050148 whatever it is?
The switching station. Is that what they call it?
I don't know what's inside it or how it relates to the railroad's operations. I'm just looking at where is it, where does it physically sit. I don't know.
Again, that is a question that I guess should be asked of CSX.
Understanding that if in fact it's City-owned property, that there has been no lease agreement during the terms of the operation of this bungalow or signal shack or whatever we want to call it today.
Yes. I would think if it's important to the railroad, 64 10/18/05 - TRANSPORTATION - RES. 050148 they would want to make certain that it's on the railroad's own property and not on City property.
Mr. Eichert, I just want to follow up here to make sure we're very clear on this, that that switching station, if I may use that term, is presently on City property; is that true?
That's something that I can't definitively say this morning. I will report back to this Committee when I get a definite answer on that.
I just want to follow up on what Councilman Nutter was stating previously and, that is, the interpretation of CSX was to complete the 65 10/18/05 - TRANSPORTATION - RES. 050148 blockade of completing the construction of a fence all around. In other words, that fence, in my opinion, if we took CSX's position on that, would just be a fence, it would just be a complete fence, which then would prohibit emergency vehicles from getting access to that park; is that true?
In other words, that's what they want. They just want a complete fence all around.
That logically follows from their interpretation of the language. As Mr. Glazer pointed out, they have said right at the outset of the litigation that they would always allow basically locked gates that the Fire Department would have a key so that emergency vehicles could get in, but that's as much access as they would concede through the fence.
Okay. In 66 10/18/05 - TRANSPORTATION - RES. 050148 their 1979 agreement, the City, of course, argued that the rolling gates solution was an effective barricade, because I think when we went into negotiations with them in 1979, they were saying that the City agreed to construct an effective barricade. Could you give me some definition of what you consider an effective barricade?
In our view, an effective barricade is one that provides safety for users of the park and for citizens.
So our position is that people would have access to the park; their position is an effective barricade to them is completely shutting off the park? 67 10/18/05 - TRANSPORTATION - RES. 050148
In our view, when there is no train in the vicinity, there is no safety risk with an at-grade crossing. It's that simple. When there is a train in the vicinity, the gate is closed and locked. That is an effective barricade, and in a nutshell, that's the City's position.
Thank you, Councilman. Mr. Eichert, I want to move to the next-to-last paragraph in your letter and then I'd like to ask Mr. Glazer a complementary question. You mentioned at the settlement conference from October 11th, the railroad offered to pay up to $500,000 to construct a pedestrian overpass to provide access at Locust Street in lieu of a grade-level crossing. Are there any estimates, just for the record -- I'm not 68 10/18/05 - TRANSPORTATION - RES. 050148 enthusiastically pursuing this part of the discussion, but I'd just like to have some information on the record. What are the current estimates on the cost of such an overpass?
It's hard to say. I have heard estimates of between $1 and $2 million, as high as 2 million, sometimes 1, sometimes 1.2.
Okay. And, Mr. Glazer, let me ask you now, to what extent has this option been explored? I'm certainly no engineer, but the area would appear to be not only beautiful but a little tight, and given ADA compliance requirements, what would something like this even look like? How would you make something like this fit given the tightness of the site?
We don't think aesthetically and functionally it is feasible. The judge has permitted CSX to attempt to put something to paper to make it so. Mr. Syrnick, when he was the City 69 10/18/05 - TRANSPORTATION - RES. 050148 Engineer, had attempted to draft out some potential alternatives, and the ones that I recall seeing involved either a spiral, again recognizing ADA compliance, some sort of gradual spiral at that point or also something, again acknowledging the grade requirements for ADA, something that would go parallel to the river for some period of time.
In both instances, clearly not acceptable to the City or to the community.
Maybe like in Camden or something. Okay. So we have basically a facetious response put forward, of course not even fully paid for, that is completely non-functional, and to go through this entire exercise versus being cooperative and just having a grade-level crossing, which I assume has to be the absolute cheapest and probably safest way 70 10/18/05 - TRANSPORTATION - RES. 050148 to go. Is that fairly accurate?
Okay. Let me ask this question: Do we have any information -- I understand we have not done discovery, but do we have any information with regard to the contents of these trains? Do we know what's on them?
Only anecdotally. I know about the allegations that there are trash trains parked, that that's caused a great deal of anxiety and really has been a major problem for people living in the community. Beyond that, I just don't know. I mean, I assume it's the full gamut of cargo that is hauled on this freight line.
Well, which entities, either city, state or federal, are responsible for monitoring the activities of railroads similar to CSX?
Councilman, honestly, you are beyond my area of 71 10/18/05 - TRANSPORTATION - RES. 050148 expertise and I don't want to hazard a guess, because I'll probably get it wrong.
Do we know who conducts any inspections, at least at the City level, for the operations of trains, bridges, crossings, maintenance? I mean, what do we know about, I guess, this entity or any of these companies as they operate whatever they operate running through the City at all hours of the day and night?
I think the only thing that I know is, of course, bridges and street crossings I think the Streets Department is concerned, probably has an interest there in inspection. I am not sure what other City agencies come into play.
If one were 72 10/18/05 - TRANSPORTATION - RES. 050148 to transport hazardous materials through the City, whether by truck or train, are you required to get any special permits to do that?
Do you have a sense of who might? I don't want to continue to torture you with questions.
No, it's no 12 torture at all. It's beyond the scope of this particular lawsuit. I mean, this was brought as a contract action, and I'm defending it as a contract action. There is a unit in the Law Department that covers regulatory affairs and I think those lawyers are probably better positioned than anyone to at least begin to research this.
Okay. Well, I'm sure there will be some discussion within the Committee, but I think that it would do all of us well to have a better idea of what is moving 73 10/18/05 - TRANSPORTATION - RES. 050148 through the City at various points and certainly any of these materials that are moving through the City or, in this particular instance, not moving through the City for extended periods of time and knowing what it is. I mean, we need to know what's on a train that is delivering material obviously somewhere else but sitting at Locust Street for three, four, five hours or overnight in what is then clearly a very tightly and densely populated residential neighborhood. I mean, I think we need to know. It's critical that people know what is right outside their window, whether it's for an hour or for a day.
I just want to state that a few years ago, there was an accident, there was a chlorine leak, and it happened in a rural section in South Carolina, not very heavily inhabited. Nine people were killed and probably many, many other people were hospitalized. If you could imagine that there was a chlorine leak in Locust Street or Race Street or anywhere, it would put everyone here in this room in jeopardy. We could probably be all dead, not only here but it would go right through to the river, and that would be a catastrophic occurrence, and this is something that we really have to look at. It would have been maybe getting by for years and it's sort of just -- maybe we're just waiting for something to happen. I don't know before we take action, but this is something that we have to address, that if they're going to be parking trains and we have no 75 10/18/05 - TRANSPORTATION - RES. 050148 idea what they are, what the hazardous material is or whatever, I think that this is something we really, really have to look at to prevent something like this from happening, and I think that the Chairman is right, that we really, really do have to look at that. That's one of the instances that I know of, and there's probably many more that we could probably research and find out that we probably do have other things or other occurrences that could create this type of thing.
I understand. Then let me do this: I will be happy to convey this Committee's request to the Solicitor.
Let me try to give it to you this way: I'm going to ask -- and I appreciate your offer, Mr. Eichert. What I'm going to do is ask Mr. Glazer, on behalf of the Managing 76 10/18/05 - TRANSPORTATION - RES. 050148 Director's office, if you would take back to the Managing Director and the City Solicitor what I'm going to ask you to do on behalf of the Committee and the Council, is to coordinate a Hazardous Materials and Transportation Task Force comprised of at least the Police Department, the Fire Department, the Health Department, a Risk Management unit, the Streets Department, as well as the Office of Emergency Management, which I believe is Mike Nucci's unit, and give us a report back as quickly as possible on what is moving through the City at least by rail, examine its proximity to residential areas, what is the nature of the materials, how long are they stored within reasonable proximity of residential communities, what are the properties and nature of the particular materials, volatility, and give us a report back as quickly as possible. Do you think you can have that next week? 77 10/18/05 - TRANSPORTATION - RES. 050148
I'm a little more reasonable than that, but you understand the urgency of the situation. I think there's a lot for us to know here, and it's only going to happen if we have a coordinated approach.
Okay? I appreciate it. Any other questions for the witnesses? (No response.)