TRAC claims:
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The Board has full authority to place conditions on CN as part of its approval and that the two grade separations are appropriate.
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That the Board’s environmental analysis was flawed in many ways that have materially harmed the region:
Ø The Board failed to appropriately define the purpose and need of the transaction and therefore failed in examining alternatives to the transaction.
Ø The Board failed to select HDR to conduct the environmental review process for the project and instead allowed CN to choose the consultant, and thereafter failed to supervise HDR to make sure that the environmental review was not done with a bias in favor of CN.
Ø Because the Board used changing/evolving standards for analysis and mitigation, the mitigation didn’t really address harms in the region and arbitrarily resulted in some communities not getting mitigation provided to other communities.
Ø The Board inappropriately balanced purported benefits to existing CN line communities against harms to EJ&E communities without actually doing a full data-based analysis of any such purported benefits.
Ø The Board failed to address and make corrections on erroneous environmental assessments based on environmental analysis provided by some impacted communities and other federal environmental agencies with issue expertise.
Ø If CN didn’t like the mitigation terms, it did not have to consummate the sale.
As a result, TRAC is asking the Court to uphold the two grade separations, but reverse and remand the Decision to the Board for correction of environmental analysis and mitigation flaws.
The STB claims:
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That it has full authority under the Interstate Commerce Act to condition its approval for the transaction on mitigating environmental harms.
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The two grade separation projects and the CN dollar match are fully appropriate.
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CN cannot now argue that the Board can’t condition its decision with mitigation since it never argued that point prior to making its case in Court.
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That impacted communities have failed to make the case that there was anything wrong with the environmental review process.
As a result, the STB is asking the Court to uphold – as written – its decision approving the transaction.
All legal filings from all parties can be found on this website under the Documents tab.
APRIL 21, 2010
STB is calling CN on the carpet for erroneous reports that undercounted blocked crossings
The Surface Transportation Board (STB) released an April 20 Decision requiring officials from Canadian National Railway (CN) to appear before the Board on April 28, 2010 to explain a gross discrepancy in the number of reported incidents of blocked grade crossings on the EJ&E. In its mandated monthly operations report to the STB for the months of November and December 2009, CN had reported a total of only 14 instances when grade crossings were blocked for 10 minutes or more. In fact, an audit of CN’s own technology showed that in that two-month timeframe, grade crossings were blocked in 1,457 instances at 85 different crossings along the EJ&E.
The discovery of the discrepancy was due to TRAC’s frequent requests throughout 2009 to the STB to increase its audit oversight of CN’s mandatory reports. On November 17, 2009 the Board finally agreed to TRAC’s requests: “…the Board has decided to ask our independent third-party contractor…to independently verify and file a timely report…on CN’s representations made in its latest quarterly environmental report and monthly operations report (and in CN’s reply to TRAC’s October 14, 2009 letter.)” When the audit was undertaken, the Board discovered that there is technology at many crossings on the EJ&E that automatically generates reports indicating when crossing gates are down. CN not only failed to provide to the Board the data that this technology generated, but also failed to tell the Board that this equipment actually existed on the EJ&E.
In responding to this latest Decision by the Board, Tom Weisner, Mayor of Aurora & TRAC Co-Chair says, “Finally, CN’s lack of candor has caught up with it! TRAC has been monitoring CN’s monthly operations reports since the first one was issued and letting the STB know that what CN was saying about grade crossing blockages was factually inaccurate. We have residents of the region filing complaints on the TRAC website, so we always knew that the crossings were blocked with a great deal of frequency. It is encouraging to have the STB acknowledging the accuracy of what we have been saying all along. This isn’t a small error in math – when CN’s count is off by 1,443 it looks a lot like a willful effort to deceive the Board, especially when CN kept secret its own tracking technology.”
In addition to the Board’s requirement that CN appear before it on April 28 to explain the reporting discrepancy, the Board is also requiring that CN resubmit all previous reports to include the technology-generated data; and provide all of the data in its possession since CN acquired the EJ&E.
In discussing how this development could impact TRAC’s legal appeal of the STB Decision approving the transaction, Karen Darch Village President of Barrington and TRAC Co-Chair states, “When STB Chairman Elliott visited the region last December, he sat across the table and told us that if some of the assumptions made in the environmental review of the transaction proved to be factually inaccurate, it could be grounds for re-opening the Decision. We now have data showing that while only 10% of the additional planned freight trains were running on the EJ&E, we had lengthy periods of blocked crossings nearly 1,500 times! I can assure you, we are eager to hear what CN has to say and what the STB plans to do now that it has this information.”
This development ONLY occurred because residents along the EJ&E were vigil in using the complaint registration mechanism on the TRAC website. Your efforts finally paid off on this one issue, but we need to continue to weigh in and let the Board know what is happening in the region!
To view a copy of the April 20 STB Decision and TRAC’s ongoing communications with the Board, go to the Documents section of this website.
March 30, 2010
TRAC Seeks Congressional Supervision of STB’s CN Oversight
In response to the release of two of six oversight reports on March 15 by the Surface Transportation Board (STB), TRAC has asked Congress to convene a regional field hearing as a means of guiding improvements in the Board’s oversight of CN mitigation mandates and operations. In a March 24 letter to House Transportation and Infrastructure Committee Chairman Jim Oberstar, the TRAC co-chairs asked for a greater congressional role in assisting the STB with developing an oversight process that is fair and impartial and assures impacted communities that CN is living up to its obligations to the region.
Over the last several months, TRAC’s website has received numerous complaints related to track bed safety, grade crossing delays, excessive noise and vibration, extensive idling times, and quiet zone violations on the EJ&E. Additionally, CN seems to have been stalling on implementing some of the Board-mandated mitigation measures that accompanied the decision approving the acquisition of the EJ&E by CN.
As a result of TRAC’s repeated requests, the Board agreed last November to step up its oversight and asked its consultant do a review and report back to the Board on what it has documented. The first two of the six monitoring reports prepared by this consultant and released by the Board on March 15 indicate that the Board isn’t focusing on the right issues and is failing to take a proactive approach to holding CN’s feet to the fire. It is TRAC’s hope that the STB can rectify these deficiencies if Congress provides the necessary guidance.
Interested parties can find TRAC’s letter to Chairman Oberstar as well as the other pertinent documentation that led to our recent request in the documents/links section of this website.
January 14, 2010
The Federal Court Sets the Timeline for the Legal Appeal on CN’s Acquisition of the EJ&E
On January 14, the United States Court of Appeals for the District of Columbia Circuit set the briefing schedule for the parties that are appealing various aspects of the Surface Transportations Board’s (STB) approval of CN’s acquisition of the EJ&E rail line. The initial briefs are due on April 7 with the final filings set for July 22, 2010. No date has yet been set for oral arguments. A copy of the Court ruling can be found in the documents section of this website.
October 14, 2009
TRAC Questions Usefulness & Accuracy of CN's Monthly Operations Reports
Community Leaders Call on the STB to Hold CN Accountable and to Increase Oversight
In a letter sent today to the U.S. Surface Transportation Board (STB), communities who continue to scrutinize the impact of the CN/EJ&E acquisition asked the STB to increase oversight and become “further engaged” in the federal monitoring of a transaction that impacts more than one million Chicago area residents and businesses. The letter outlines close to 100 issues that were either not included in CN’s required operating report to the STB or incidents that were brought to TRAC’s attention by community members and first responders.
In a May 14 letter to TRAC, the STB stated that it “will rely on information provided by organizations such as yours [TRAC] to audit the report from CN.” While TRAC appreciates that the STB values its opinions the group points out that it does not have the resources to continually monitor CN’s actions along the EJ&E, especially given that fact that CN has not been open and forthright in sharing important information.
“We appreciate the STB’s openness to take into account our concerns however we lack the resources to provide the amount of oversight necessary to truly monitor CN’s activities along the EJ&E,” says TRAC co-chair and Aurora Mayor Tom Weisner. “As revenues decline, nearly all cities are struggling to provide basic services. During these challenging economic times, local taxpayers cannot afford to foot the bill for another unfunded mandate.”
TRAC communities have outlined dozens of alarming incidents in their letter to the STB that make it evident that CN is failing to meet the mitigation terms of the acquisition and continues to disregard public safety including derailments, grade crossing delays, excessive noise, vibration, idling, quiet zone violations, signage issues and environmental concerns.
"CN’s operational reports do not fully represent the true negative impact to communities, which is why we are asking the STB increase oversight to make sure that CN is making public safety in our communities a priority and that CN is complying with the STB’s mitigation requirements,” says TRAC co-chair and Barrington Village President Karen Darch.
Further, the group outlined its concerns listing 17 “action items” stating that “the current monitoring system is inadequate in providing the public and the STB with a full understanding of the real world impacts ensuing from its decision to allow CN to purchase the line.” Some of the “action items” are:
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