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Missed Opportunities
City officials spent more than $115,000 investigating actions preceding ethanol operation.
By Michael Lee Pope
Wednesday, December 17, 2008
The story of how Alexandria government officials failed to notify City Council members that a controversial ethanol loading station would be opening on the West End earlier this year is a cautionary tale. It’s a narrative of missed opportunities and blundered communication, one that has angered West End residents and enraged council members who were kept in the dark.
According to an "independent review" of events leading up to official notification of council members released over the weekend, City Hall was paralyzed into inaction by conflicting legal opinions and a failure to communicate ongoing developments between departments. A timeline presents five distinct opportunities when elected officials and community members could have been informed about the operation but were not. Meanwhile, as city officials were disagreeing with each other over legal strategy, Norfolk Southern was moving forward with plans to begin operations at the facility. Members of the City Council were not informed about what was happening until 36 days after the ethanol loading facility began operations — 12 days after city official alerted a nearby commercial development about the ethanol-loading operation.
"There were so many balls dropped, you’d think we were at a juggling convention," said Councilman Ludwig Gaines. "I’m not sure if heads are going to roll for this, but at this point I’m waiting to see how the city manager responds to this."
Although officials in the Fire Department and Code Enforcement expressed concern that local regulatory powers were preempted by the federal government, City Attorney Ignacio Pessoa continued to insist that Alexandria’s permitting process could be used to thwart the railroad’s proposal. But that was a determination Pessoa said was overturned by a February ruling of the Surface Transportation Board, although no action was taken during this critical period. By the time Pessoa abandoned that interpretation — two months later — the facility was only hours away from loading the first shipment of liquid ethanol.
"Inaction during this timeframe is unexplained, but for the fact that (Pessoa) was reviewing legal arguments," concluded Steven Jansen and David LaBahn in a report released on Saturday. "We find this two-month period is excessive in light of the progress made by Norfolk Southern regarding their pending fully operational date of April 2008 and the reliance on the (city attorney’s office) by other departments."
In September, Pessoa announced that he will be stepping down from his position at the end of the year. On Saturday, City Council appointed Assistant City Attorney Chris Spera to act as acting city attorney when Pessoa officially leaves on Dec. 31.
THE REVIEW, which was released over the weekend, cost city taxpayers $29,520 and was conducted two former prosecutors with more than 32 combined years of legal experience. It was the second formal review of events preceding ethanol-loading operations at the West End facility, in which 26 individuals were interviewed and 2,500 pages were examined. The first formal investigation took place over the summer at the request of City Manager Jim Hartmann, who authorized a $86,000 expenditure to hire a consultant who interviewed 36 individuals and concluded that "groupthink" and a "stovepipe culture" were to blame for the communication breakdown.
"I think what happened is that everybody offered their opinions but nobody took leadership," said Vice Mayor Del Pepper this week. "There’s plenty of blame to go around because the report also points out that Norfolk Southern knew they didn’t have the necessary safety equipment so they don’t come to this with clean hands either."
Norfolk Southern has operated in Alexandria for more than a century, but a growing number of residential construction on the West End has been changing the dynamics of land-use decisions in recent years. Corporate officials first approached Mayor Bill Euille about opening an ethanol loading facility in 2006, insisting from the outset that the company was immune from city oversight by federal regulations governing railroads. On Aug. 22, 2006, Pessoa issued a legal determination that the railroad would be required to obtain a special-use permit. Although he changed his opinion on April 4,2008, Pessoa failed to share the new determination with members of the City Council.
"We find the (city attorney) should have provided notice to the City Council at this point," the independent reviewers noted. "Since the city attorney has the opportunity to make a direct report to council during an executive session, this change in legal position should have been shared with council, which could have been convened at a regularly scheduled council session."
THE REPORT identified several problems and suggested remedies for increased communication, adding that many measures have already been implemented at City Hall. One problem identified by the review was a lack of documentation and a hesitancy to share information. For example, the report notes that Hartmann was at a 2006 meeting in which the ethanol operation was discussed, yet little documentation exists about what was said at the meeting. Furthermore, the report explained, no information about what transpired at the meeting was shared with City Council members. Since May, Hartmann has scheduled monthly meetings with individual council members and the agenda of the mayor’s meeting with the city manager have been circulated to all members of the City Council.
"It’s not that we were hiding anything, it’s just that we never had a reason to share the agenda before," said Euille. "I didn’t see any problem with sharing that information, so that’s something we started doing as a result of what happened with Norfolk Southern."
Another key problem contributing to the lack of timely communication identified by the review was a mindset in the city manager’s office whereby complete information was given precedence over partial information. Hartmann was willing to wait until all his questions had been answered before reporting to City Council members, creating a delay. At one point, the review notes, city officials decided not to inform community members because they expected Norfolk Southern to set up a meeting.
"This review finds relying upon private industry to conduct community outreach was inappropriate in this situation," the report noted. "After April 2, 2008, we find the delay in providing timely information and this memo to council during the next six weeks is excessive."
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Courtesy of the Alexandria Code Enforcement Bureau
Assistant Fire Marshal Russell Furr took this photo of the Norfolk Southern facility in February, about a month before the railroad’s contractor began loading liquid ethanol from rail cars to tanker trucks less than 1,000 feet from Tucker Elementary School.
Timeline
— June 20, 2006: Norfolk Southern Vice President David Lawson, who is the son of former City Manager Vola Lawson, meets with Alexandria Mayor Bill Euille about the railroad’s desire to transform the Van Dorn Yard into an ethanol "transloading" station. Lawson explains the railroad’s desire to transform the "intermodal facility" into an "ethanol transloading" operation in which the highly flammable liquid would be moved from rail cars to tanker trucks less than 300 feet from residents in Cameron Station.
— June 23, 2006: City Manager Jim Hartmann and Euille conduct a follow up meeting about the proposed ethanol loading operation. The independent review identifies this period as "the first opportunity to notify the council and community about the proposed transloading facility."
— Nov. 7, 2006: Norfolk Southern officials send a letter to the city’s Department of Planning and Zoning announcing plans to begin operations by January 2007, outlining their legal opinion that the railroad has federal immunity from local regulatory oversight. The review identifies this moment as "the second opportunity by city staff to notify council and the community," adding that the pending construction of the facility "should have created some urgency."
— Nov. 28 2007: Fire Marshal Robert Rodriguez prepares a memorandum containing an opinion that the city has no code-enforcement authority. Despite wide distribution of the memo, including City Manager’s Office, Fire Operations, Code Enforcement, Planning and Zoning Department, Emergency Management and Transportation and Environmental Services, the information is not shared with the City Council.
— Jan. 16, 2007: City Manager Jim Hartmann calls a meeting with several department heads and plots a legal strategy to use the city’s permitting process to thwart the railroad’s ability to begin operations. Although the idea of drafting a memo to council members was broached during the meeting, no document was prepared.
— April 4, 2008: After reviewing a February ruling of the Surface Transportation Board, the federal body that regulates railroads, City Attorney Ignacio Pessoa changes his legal opinion about the city’s ability to use its regulatory powers to prevent the facility from opening. City officials are now left without a mechanism to oppose the facility. The review identifies Pessoa’s e-mail to senior staff as "the fifth failed opportunity to notify council and the community."
— April 9, 2008: RSI Logistics began operating an ethanol loading operation for Norfolk Southern Railroad at the Van Dorn Yard even though railroad officials are aware that Code Enforcement officials and the Fire Department had not yet had a chance to inspect the facility. Members of the City Council will not be informed of the operation for another 36 days.
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