United States District Court for the District of Columbia
April 22, 2005.
CSX TRANSPORTATION, INC. Plaintiff,
ANTHONY A. WILLIAMS, et al. Defendants.
The opinion of the court was delivered by: EMMET SULLIVAN, District Judge
In its April 18, 2005 Memorandum Opinion & Order, this Court
quoted the January 26, 2005 sworn congressional testimony of
Richard A. Falkenrath, the former Deputy Homeland Security
Advisor and Deputy Assistant to the President, that "`since 9/11
we have essentially done nothing' to reduce the inherent
vulnerability of our chemical sector." See CSX Transp. v.
Williams, 2005 WL 902130, at *3-*4, *29 (D.D.C. Apr. 18, 2005).
The Court hereby supplements its April 18th Opinion by taking
judicial notice of the article appearing in The Washington Post
on April 22, 2005. See Spencer S. Hsu, Ex-Official Faults
Hazmat Rail Safety, The Washington Post, April 22, 2005, at A8
(quoting Stephen J. McHale, the former deputy administrator of
the Transportation Security Administration, that "[t]here is no
comprehensive, national plan" in place to secure the rail system
in the United States and expressing McHale's "`disappointment at
the pace and the amount of resources' directed by the United States to secure hundreds of containers of chemicals, explosives
and other dangerous materials crisscrossing the country daily").
The article is appended to this Supplemental Order. See
Fed.R.Evid. 201(c); e.g., The Washington Post v. Robinson,
935 F.2d 282, 291 (D.C. Cir. 1991) (taking judicial notice of newspaper
articles); accord Government of Rwanda v. Rwanda Working Group,
227 F. Supp. 2d 45, 60 n. 6 (D.D.C. 2002). washingtonpost.com Ex-Official Faults Hazmat Rail Safety
Federal Agencies Oppose D.C. Law
By Spencer S. Hsu
Washington Post Staff Writer
Friday, April 22, 2005; Page A08
The former deputy administrator of the U.S. Transportation
Security Administration said yesterday that the government lacked
adequate plans to secure rail shipments of hazardous cargo in
Washington and across the country during his tenure.
Stephen J. McHale, the agency's second-ranking official from
2002 to August 2004, offered his assessment during a panel
discussion at the Center for American Progress in Washington. He
expressed "disappointment at the pace and the amount of
resources" directed by the United States to secure hundreds of
containers of chemicals, explosives and other dangerous materials
crisscrossing the country daily.
McHale, now a lawyer with Patton Boggs LLP, spoke while the
U.S. District Court of Appeals in the District is considering a
challenge brought by rail giant CSX Transportation Inc. of
Jacksonville, Fla., against the D.C. Government, which recently
banned hazardous rail shipments. Yesterday, the U.S. departments
of Justice, Transportation and Homeland Security filed briefs in
support of CSX.
On Monday, a lower court upheld the District ban of rail
shipments of toxic materials such as chlorine within two miles of
the U.S. Capitol, citing in part the federal government's failure
to show that it had taken comprehensive steps to address the risk
of a terrorist attack. On Tuesday, the appeals court stopped the
law from taking effect while it weighs the case.
McHale said U.S. security officials lacked sufficient money,
inspectors and arrangements with privately owned railroads to
appropriately protect the public. He said the problem stemmed
from a lack of attention from Congress and the White House and a
"diffusion of responsibility" among federal agencies. The Bush
administration, he said, views railroad security as largely the
responsibility of the private sector.
"Basically, there is not enough money. There is no
comprehensive, plan. . . . We can do better, but it is going to
be difficult, given the scope and organization of the system,"
McHale said. Referring to the 42-mile Washington rail corridor,
McHale said he opposed the District ban, but he added, "You can
do things to secure the system, but enough has not been done to
In response to McHale's comments, TSA spokesman Mark Hatfield
Jr. released a written statement. "We're the first to acknowledge
there is room for security improvements in rail," he said. "Much
has been accomplished and the partnership TSA has forged with
industry and local governments paves the way for significant
McHale's comments followed inspector general reports
criticizing TSA management during his tenure for lavish spending on amenities at headquarters, contracting
problems that have ballooned in cost by hundreds of millions of
dollars and lapses in the screening of air passengers.
Several independent commissions and former officials also have
warned the public about the lack of progress in securing ground
transportation systems and chemical stockpiles. For instance, the
United States is spending $4.6 billion for aviation security this
year but $32 million for surface transportation security. TSA
employs 45,000 people for its air screening program but received
funding only recently to increase the number of rail security
inspectors from three to 100.
After the March 2004 commuter train bombings in Madrid, CSX
voluntarily rerouted all but 87 cars containing hazardous
materials from one line that passes through downtown and shipped
about 1,645 cars on a second line that passes mostly through
Northeast Washington, in consultation with U.S. security
officials, according to court documents filed early this year.
TSA has acknowledged the problem. It conducted the country's
first urban rail corridor study here last year and is
implementing a $7 million plan to add fencing, patrols and other
McHale said additional precautions are needed, such as limited
rerouting, securing information about hazardous shipments,
minimizing waiting times, using decoy cars and increasing track
McHale said the D.C. case has provoked "the best debate we've
had with rail security since 9/11, or at least since Madrid. This
will help force the federal government to respond and to
recognize it has to have a more visible security strategy with
the rail industry."
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