Committee Hearing, October 18, 2005

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.

I second the motion.

Comment?

No, Mr. Chairman. I was going to enthusiastically support the second.

Sorry.

That's quite all right, Councilman.

There is enthusiastic support from the second. Any other comments? (No response.)

All in favor indicate by saying aye. (Aye.)

Any opposed, say nay. (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.)

Councilman Kelly.

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.)

Madam President.

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.

Thank you, Madam President. (Applause.)

Councilwoman Miller.

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.

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.

Thank you.

Mr. Samuel Switzenbaum.

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.

Thank you. (Applause.)

Any questions?

I just have --

Councilman Kelly.

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.

Thank you.

My pleasure. Thank you, all.

We 41 10/18/05 - TRANSPORTATION - RES. 050148 understand. Councilman Clarke.

Thank you, Mr. Chair. Good morning.

Good morning, Councilman.

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.

Tell me about it.

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

Yes.

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.

Thank you.

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.

Absolutely.

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 very much.

You're welcome.

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.

Thank you.

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.

Thank you, Council President. I appreciate it.

Keep up the good work. 47 10/18/05 - TRANSPORTATION - RES. 050148

Thank you. (Applause.)

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?

I have one copy.

Oh, it's in the -- okay. Sorry. Go ahead.

"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.

That's right.

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. 55 10/18/05 - TRANSPORTATION - RES. 050148

-- in effect?

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.

That's right.

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?

There was at first. At this juncture, we believe --

I know, but at this point.

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?

Yes, they have maintained that position.

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.

Which?

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 in our view. Not in the City's view.

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 --

I said tentative.

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.

At Race Street.

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

It's probably the same thing, yes.

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

It's the City, right?

Yeah.

I understand.

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.

I think that's right.

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.

Thank you. Thank you, Mr. Chairman.

Sure.

Councilman Clarke, is the bungalow that was referred to in your district?

That's what I was told earlier.

I'm fairly certain it is.

What would be the difficulty in relocating that?

I'm sorry. What's the question?

What would be the difficulty in relocating that, the bungalow or the switch or 63 10/18/05 - TRANSPORTATION - RES. 050148 whatever it is?

Oh, I don't know. I don't know what --

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.

That's right.

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.

Okay.

That should be interesting. Thank you.

Councilman Kelly.

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?

I think logically that --

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 --

We know what CSX's position is.

In our view, an effective barricade is one that provides safety for users of the park and for citizens.

But it would include access to the park?

Sure. Sure.

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.

Okay. Thank you.

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.

Probably start it back at like Market Street.

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?

Yes, sir.

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.

But you'd be able to get us some information on that?

Sure.

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?

Again, I do not know the answer to 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.

Mr. Chairman.

Yes, Councilman Kelly.

May I just follow up on that line of questioning?

Sure. 74 10/18/05 - TRANSPORTATION - RES. 050148

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.

I think this is very important. Very, very important.

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

We'll try.

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.

Okay? I appreciate it. Any other questions for the witnesses? (No response.)

Gentlemen, thank you.

Thank you.

Thank you.

Sarah Clark Stuart, Coordinator.

Thank you, Mr. Chairman.

You're welcome. Before you start, is there anyone else who wishes or anticipates 78 10/18/05 - TRANSPORTATION - RES. 050148 testifying today who has not identified themselves? (No response.)

Okay. All right. Please identify yourself and proceed.

Thank you. My name is Sarah Clark Stuart and I am Co-Coordinator of Free Schuylkill River Park, and I thank you, Mr. Chairman, Council President, Councilman Clarke and Kelly and O'Neill, thank you for inviting me here today to testify. I know that you all have my testimony. I don't want to read it all through, but I will just try to hit the highlights and cover some issues that weren't already touched upon by the other witnesses. First, just quickly, Free Schuylkill River Park was started by park users and neighbors who were alarmed when we learned that the railroad wanted to 79 10/18/05 - TRANSPORTATION - RES. 050148 cut off street-level access at Race and Locust Streets. Many thousands of people have been waiting for years for this park to be built and we couldn't believe that the fence would prevent us from crossing over the tracks into the park. We got organized about two years ago and we are supported by a thousand people and over 30 different civic organizations. Park users have used our website and e-mail actions to send thousands of letters and faxes to elected officials, including, I think, all of you, over the past year and a half regarding this issue, all with the same message, which is that they want to keep the street-level access open at Race and Locust Streets, and they are very much opposed to CSX's practice of parking trains on top of those streets. To summarize, you've heard of the story of how this park was built, how it's meant to go all the way eight miles down to the Fort Mifflin and the Delaware 80 10/18/05 - TRANSPORTATION - RES. 050148 River, but I want to emphasize that as new and wonderful as this park is, people have been walking to the riverfront for decades, if not hundreds of years. Frequently people who argue with me about this issue say, Well, the railroad was here first, and I just want to say for the record, it was not here first. The City was here first. The City streets were here first. Race, Cherry and Locust Streets have been leading all the way to the Schuylkill River for hundreds of years, and that's a fact and that is what has to be understood, and that's something CSX just refuses to acknowledge. As you know, the railroad has sued the City in federal court, and the bottom line, as you just heard, is that the railroad refuses to agree to street-level access at Locust Street even though they appear to be willing to live with it at Race. They want the City, you, me, everyone else who lives here, to 81 10/18/05 - TRANSPORTATION - RES. 050148 build an overpass at Locust Street. So let me just cover a few of the issues. First of all, the Schuylkill River Development Corporation has been counting very thoroughly for the past three months, and we've been supplying the park counters. We estimate based on those three months of counts that 10,000 people use this park on a weekly basis. This number is astonishing. If you go down there any day, you will not believe how many people are using this park for biking, commuting, exercise, walking their children to school, walking to the train station, walking to work. Secondly, as you heard, there's been tremendous development on the park and along the river and in the future, and enclosed in my testimony I have letters from five of the developers who have written to Governor Rendell and Senator Fumo about how upset they are that the railroad wants to close off access and how upset they are about the 82 10/18/05 - TRANSPORTATION - RES. 050148 trains that have been parked in front of their properties. Secondly, as I mentioned before, the railroad's position really begs the question of what right does it have to block a City street in the first place? The City should be making land use decisions. City Council should be making land use decisions, not a Jacksonville, Florida-based corporation.

And the City streets were here long before the railroad had, quote/unquote, crossing rights, which is all it got in 1885 when your predecessors on City Council passed an ordinance allowing the first railroad to lay down these tracks. That's all they are. They can cross the City streets on their tracks, but they don't have any right or have any other permission to park their trains for long periods of time. The City never vacated Race, Locust, Cherry Streets, Arch Streets. They never closed them down, and this 83 10/18/05 - TRANSPORTATION - RES. 050148 railroad shouldn't be behaving as if you did. Thirdly, with the help of Councilman Kelly and Senator Arlen Specter, some money has been found. Some federal money has been found to pay for the signalized crossings that the City has offered up in this lawsuit. So money is not a problem to build these crossings, but I think as you heard, the railroad wants all that money to be put towards an overpass, which I think is a true height of arrogance if I've ever heard it. I want to touch on why parking is the problem and I want to explain some charts that I included in my testimony. We set up an on-line form that people could fill out if they were ever blocked by a train. So we've been collecting data on parked trains since July of last year. We took that database and summarized the information in the two charts that you see. And I think it's 84 10/18/05 - TRANSPORTATION - RES. 050148 very interesting. First of all, it shows that Locust is much more blocked than Race Street, and Locust is much closer to the East Side Yard than Race Street. Secondly, the parking intensity happened during the summer of 2004 -- you can see by the total number of hours -- summer of 2004 and the summer of 2005. This just happens to be when people use the park the most. Whether or not this is a coincidence, I don't know, but I think it's very interesting how closely it's correlated. Secondly, another correlation is that the parking really built up right until they filed the lawsuit last October, and it's been building up as the settlement negotiations have become more intense. So while during the intense periods it can be upwards of 45 hours, 70 hours a month where parked trains have been on top of Locust, during the months of October, November all the way through 85 10/18/05 - TRANSPORTATION - RES. 050148 May, they were hardly ever there. And if you look at the Chart B, it's the same data but shows it on a per-day basis, the amount of time or amount of days where trains were parked all day were about 7 times. So that's 15 times over 15 8 months. 9 If you average out all the 10 amount of hours that we've estimated and 11 observed that the trains have been parked 12 on top of Locust and Race, it comes out 13 to about four hours a day, three or four 14 hours a day. Why should the public be 15 asked to bear the cost of building a to to to million dollar overpass over tracks that are empty hours out of the day? That just doesn't make any sense. Another problem that is created by the parking that was not mentioned before is noise. They leave their engines idling for hours at a time, and for the poor people who live right at river's edge and other developments right on the water, they have to listen to this 86 10/18/05 - TRANSPORTATION - RES. 050148 noise. It's very loud. It wakes people up at night, and it's becoming a very serious problem. Back to the chart, I just want to say that if an overpass is built over Locust Street, the railroad will have carte blanche to park as long as it wants. So you'll just have high bars all the time, because they will then have the freedom to just park however long they want all the time. So it's giving them permission to park ad infinitum. There are alternatives to parking. If I could maybe get, I think it's, Map B. There is a big siding area on the Belmont Plateau in the middle of the -- on the west side of the Schuylkill River Park. There is the high line.

The high line CSX owns also. We don't understand why these long trains can't be moved on that line instead of on the Schuylkill River. This line on the east side of the bank goes down to the East Side Yard. 87 10/18/05 - TRANSPORTATION - RES. 050148 Why can't they lay more siding south of the East Side Yard if that's where they need to store cars? And the railroad has been refusing to acknowledge these kinds of operational options and do any kind of analysis to demonstrate why it can't move its parking problem somewhere else. So as I mentioned before, we feel that the City's Law Department has offered up a very reasonable solution. We feel strongly since the City never vacated these streets, that there's no 15 reason for the City to give them up by agreeing to an overpass. And overall, the public has rights, and the railroad really has no right to trample on them. And lastly and just to close, if CSX can't be reasonable and co-exist with us, then I think that City Council and the City has to take matters in its own hands. The City has the law on its side in its case, and we are counting on you, City Council, to protect our rights. 88 10/18/05 - TRANSPORTATION - RES. " If you clarify that it does not mean that parking is allowed, that they must only transport and go through and pass, this would force the railroad to find parking space for its trains elsewhere on its own system and on its own dime, not the public's. Thank you.

Thank you very much. Any questions? (No response.) (Applause.)

Please identify yourself for the record.

Sure. Members of Council, my name is Rob Stuart. I'm a citizen of Philadelphia and I live near the Race Street crossing on Van Pelt Street. I'm very pleased to be here and 89 10/18/05 - TRANSPORTATION - RES. 050148 to not take up too much time, but maybe offer just an interested citizen's view of the issue. I've been going down to the park before it was a park, though I understood from speaking with my neighbor, Tully Speaker, who is here, ten years ago there's always been a plan for a park. In fact, we've learned that it may have actually been part of William Penn's original design for Philadelphia, was to have a green corridor along the river. It's come a long way, but it could go a lot further. Having looked at what's happened along the river over the last ten years and particularly over the last year and a half, where people have been using this park at all hours of the day, it didn't used to be that way. When Councilman Clarke and I went down, there was a certain set of folks that were using the park at all hours of the day, 90 10/18/05 - TRANSPORTATION - RES. 050148 but they're different now and it's really terrific. Housing is going in, apartments, luxury apartments, others. We are just seeing an explosion of Center City residents, and that is a good thing, a good thing for the future of the City. I've talked to folks that were involved in 1979 in signing that contract. I learned a lot about what's gone on on the river talking to people there, and it was a different time and the river was different and the City was different. It was really the past. The past was that we ignored our rivers, we polluted our rivers, we didn't structure our lives to recreate and to enjoy the outdoors as much as we do now and I believe that we will do in the future. That is a wonderful, wonderful place. If you've not been, and I know many of you have, I urge you to go. Go in the evening. I think it rivals Paris. There's only one problem with it, there's 91 10/18/05 - TRANSPORTATION - RES. 050148 tracks there. It hasn't been said today, but tracks, by looking at that map you see, are redundant. Those tracks came to CSX as part of the Conrail settlement or merger. In fact, there was an attempt in, I believe, '99, '98 to ask CSX to give up those tracks, because they already had a set on the other side of the river. Unfortunately, as I understand it, they didn't return the letter or answer the letter, which is kind of par for CSX's course. I think this is a great City. We've enjoyed living here. We plan on staying here. Great City because we have great neighborhoods, we have great neighbors, we have great not just citizens, people who turned out, but developers like Mr. Switzenbaum, corporations that commit time and energy to making this City a better place. I'm sorry to say but CSX is not on that list. They have proved and showed themselves time and time again to be bad neighbors, 92 10/18/05 - TRANSPORTATION - RES. 050148 and when they've been given the opportunity to compromise, to have a reasonable solution, they've not just turned their back but they've filed lawsuits, they've parked more trains, they've made our neighborhood unsafe, not just because of the smell and the wretched rotting garbage, which is really, according to the Stinkmeister, the worst thing that's ever happened to Philadelphia, but more seriously, by transporting materials, as your own City Council resolution states, that could be used as weapons of mass destruction, parking them in our neighborhood for hours at a time. I think there are some solutions before the Council that are maybe interim. Maybe they should have armed guards to ensure that these chlorine tanks, which Councilman Kelly correctly referenced -- it was just a year ago, that there was -- it was just a rupture. It wasn't a spill, just a 93 10/18/05 - TRANSPORTATION - RES. 050148 rupture of one small tank. Only a portion of the tank actually released and people died in a rural area.

I go through airports a lot. I get searched. I have to take my shoes off. We have to do that here. I don't think it's a waste of time to do that, but I think what's fair for us in terms of protecting our airports and our airlines, we should extend the same kind of scrutiny to what is on our rails. That's certainly an interim step, but I would say that really this whole issue is about the future of this City, the future of the use of the river. I oftentimes when I'm wanting to know what is the right thing for the future, I ask my children. We have an 11-year-old and a 7-year-old, and I ask Marina what should happen with the railroad, because we were anticipating going to this hearing, and she said it quite simply, The train shouldn't be there. 94 10/18/05 - TRANSPORTATION - RES. 050148 In the interim, we need safe crossings, but I think as we envision the City of the future and as we do our planning and contemplate how it is that we want to structure development and recreational opportunities and the great City that Philadelphia will become is and will become going forward in the 21st Century, we should not be planning to have those tracks there, and we should do everything we can now to lay the park and expand the park both further and wider. I thank you very much.

Thank you. (Applause.)

Thank you very much. Thank you. Can I have the gentleman in the back and can I also have Mr. Glazer back for a second? Thank you very much for your testimony. Mr. Glazer, let me just add to the items that I mentioned earlier. I'm 95 10/18/05 - TRANSPORTATION - RES. 050148 really trying to look at this more as an overview by a variety of City departments, again, this issue of what can we do, what is within our jurisdiction and capacity. A couple items from the testimony we just heard. The issue with regard to odors, again, would you ask within the various agencies. I'm assuming maybe the Health Department would look at that from a citation standpoint and our ability to cite based on odors, as well as excessive noise, and has anyone done any research with regard to these streets, which I assume are still legally open on the City's Plan and notwithstanding the fact the railroad was allowed to go over it, if you could provide some clarity to the status of those streets, where their end points are. I would assume that the track is going over the street at a certain point and the street continues. So even with that, we do not allow people to, 96 10/18/05 - TRANSPORTATION - RES. 050148 quote/unquote, block our City streets. They certainly don't have a permit to do that. And do I understand that someone is investigating this issue of the location of the switch box or the shed or whatever that particular unit is? Is that being investigated?

Mr. Eichert had indicated that his department, the regulatory section of the Law Department, would be reviewing that specifically. I hear him to say that the actual ownership of the land seems to be not -- seems to be a lack of clarity on that, but I heard him to say he's actively looking at it.

Okay. And then, again, through the Managing Director's office and the Law Department, if there could be coordination on these items as you report back to the body, that would be very helpful.

I'm happy to do it. 97 10/18/05 - TRANSPORTATION - RES. 050148

Thank you. Please identify yourself for the record.

Good morning. My name is Hal Schirmer, S-C-H-I-R-M-E-R. I'm also a member of Free Schuylkill River Park and I'm also an attorney and have done some of the historic -- I'm also an amateur historian and I have done some of the research into the background and the history of the area and the crossing. So I just wanted to -- I will put in some testimony later, but I wanted to put through four quick points that I thought were very interesting and fill in some of the material which has been brought up. This park really is a return to the river. CSX really has sort of cordoned off this property and said, This belongs to us forever, which is patently untrue. At one time, the City of Philadelphia had a Port Warden Station on 98 10/18/05 - TRANSPORTATION - RES. 050148 the Schuylkill River. The Schuylkill River was a living, breathing river where people walked to work, people worked at the waterfront for years and years. One of the things people forget is that that whole section of the Schuylkill River historically had coal wars, marble wars. People were loading and unloading food, goods all throughout the 1850s, late 1800s into the early 1910s, and they all had to walk across the tracks of the Schuylkill River East Side Railroad Company, which eventually became the B&O Railroad. Although CSX would ask us to forget our history and forget that this river belongs to the people and belongs to commerce and is an attraction, when you look, you still see the indications that this is a working river and was a working river. The University Avenue Bridge and the South Street Bridge are both drawbridges because you would have masted 99 10/18/05 - TRANSPORTATION - RES. 050148 ships coming up to Philadelphia in the 1880s, 1890s, 1910s, 1920s docking in Downtown Philadelphia and off-loading their goods. You have lights from river traffic. There's a reason why Market Street and the SEPTA Bridge are so beautifully lighted with the big lanterns. That's because people used to continue to work on the river. There were barges, there were ships moving through that whole area. You have the B&O Railroad Station right on part of what's now Schuylkill River Park where people were getting on trains to New York for the Blue Comet, I believe it was. This is an area where people have constantly had access back and forth. They have not had access in the last 50, 60 years too consistently, but CSX is asking us to forget the legal question of who owns the river. Well, the river belongs to the people, and you have to have a right to get there. 100 10/18/05 - TRANSPORTATION - RES. 050148 The second point was that really this section in the Schuylkill River, what got me interested is, this really represents roads to other locations. It's not just a question of this is really sort of a gateway and that the Locust Street crossing and the Race Street crossing really provide important gateways into the Rittenhouse Square and Fitler Square areas of the park. One of the problems we have with Fairmount Park is, there are a lack of locations to eat, to stop, to have the facilities. And especially the Locust Street crossing is a direct line right into the gem of the Rittenhouse-Fitler Historical District. Beautiful architecture, small cafes on the sides, one of the premiere parks in the City of Philadelphia, and the easiest way to get there is to follow the trail from wherever you live, go down past the beautiful architecture of the Art Museum, go down through the architecture of the 101 10/18/05 - TRANSPORTATION - RES. 050148 area, turn left on Locust Street. And people are not going to be able to do that, and they're going to miss out on the economic boost that you have from people being able to access these important commercial areas and these showplace areas of the City. Third, we just have to look at this with a little bit of, I think, common sense.

CSX is asking us to ignore the fact that if you drive down Delaware Avenue, you're likely to see a freight train cutting across Delaware Avenue. You're likely to see a single engine cutting up in front of traffic and driving down the center of Delaware Avenue. Anybody who has gone down that way has seen it a couple times. You may have to stop, wait for them to go through, but the fact that you can run a freight yard along with Delaware Avenue, along with shops and people really shows the idea that you can have the railroad with people walking across. You have 102 10/18/05 - TRANSPORTATION - RES. 050148 cars on Delaware Avenue. If cars and the railroad and freight trains can co-exist across a six-lane highway, people who are on a stroller or bike can stop, look either side and then cross. Further, CSX does have another crossing, which they don't seem to mention, but if you take the trolley out to Darby, the trolley to Darby crosses the CSX Main Line. I believe that route runs every minutes and has run that 13 way since they put in the trollies at 14 Darby 20, 30, 40, 50 years ago. So the 15 idea that we can't cross there because 16 there's some problem, we need to have 17 crossings, we already have crossings of 18 the same railroad where the trolley goes 19 back and forth, where traffic on, I think 20 it's, Main Street for Darby goes back and forth. And then, finally, since I had done some of the research, it was very interesting that this is a very strong case of deja vu. We've been here before. 103 10/18/05 - TRANSPORTATION - RES. 050148 The City and the Schuylkill River East Side Railroad Company hammered out their differences back in 1885 or '87 about, well, these are roads which run to the river and you, the railroad, would like to have permission to cross them, and one of the things which was very important to the city fathers a hundred years ago was access to the river. You see this in the focus on the river being the new location and the new park. At that time, the new park was Fairmount Park, which is now up by Spring Garden Street and all along Kelly Drive. Access to the river and access to the new park had always been important. That was one of the reasons why the Reading Railroad and the Pennsylvania Railroad actually placed under the ordinance for the benefit or in return for their ability to run the railroad through the City of Philadelphia, the Reading Railroad buried their entire line along Pennsylvania 104 10/18/05 - TRANSPORTATION - RES. 050148 Avenue, especially because at that time, access from the City -- at that time, North Philadelphia was one of the most densely populated areas of the City, but the interest was so that people could get to the river, and it was important even back then for people to get from the residential neighborhoods or from the City out to the river, out to the recreational areas. Same way with the City had made decisions and had made agreements with the railroad that if there was a problem, it was up to the railroad to move and to accommodate the City, which is the exact opposite of what is happening here. The railroad is staking a claim and saying, These tracks belong to us, we're going to park across your streets. If six or seven tractor-trailers started driving on 22nd Street and they all stopped to go to lunch and blocked Locust Street, blocked Race Street and every street in between, 105 10/18/05 - TRANSPORTATION - RES. 050148 nobody would think for a second before they get towed out of the way. It's the exact same situation. This is a public street, has been for a hundred years, and the idea that you can block the street when it does not belong to you and act as though it belongs to you in contravention of the ordinances and the old settlements in untenable.

And I applaud you gentlemen for having the neighbors and the other supporters out here to give them a focus and an arena to bring up what hopefully is common sense, because we still haven't heard any good reasons for blocking off the access at Schuylkill River Park.

Well, thank you, and as I say, often common sense is not all that common. Any questions for the witness? (No response.)

Thank you. Is there anyone else who wishes to testify? 106 10/18/05 - TRANSPORTATION - RES. 050148 (No response.)

Seeing none, there has been an active amount of work going on behind the scenes. As we've laid out in the course of this hearing, I think the Committee has heard some excellent testimony and excellent ideas, and we, I think, possibly in the coming few days will take some action on a number of ideas that have been suggested here at this particular hearing. In addition, there's also been discussion about the continuation of this particular hearing in order to receive information from the City, as well as certainly the opportunity to potentially have CSX representatives eventually come to this Council. I expect later on today, more than likely we'll have the documents necessary to issue the subpoenas. This hearing is going to be recessed until November 15th, 2 o'clock 107 10/18/05 - TRANSPORTATION - RES. 050148 p.m. The hearing will be recessed until November 15th at 2 o'clock p.m. right here in the City Council Chambers. Unless there's any other business, this hearing is adjourned. Thank you very much. (Committee on Transportation and Public Utilities adjourned at 11:55 a.m.) - - - 108 CERTIFICATE I HEREBY CERTIFY that the proceedings, evidence and objections are contained fully and accurately in the stenographic notes taken by me upon the foregoing matter on October 18, 2005, and that this is a true and correct transcript of same. ______________________________ MICHELE L. MURPHY RPR-Notary Public (The foregoing certification of this transcript does not apply to any reproduction of the same by any means, unless under the direct control and/or supervision of the certifying reporter.)