Chris Lisinski, 9/14/22 5:09 PM
STATE HOUSE, BOSTON, SEPT. 14, 2022.....The head of the Department of Public Utilities mostly defended his agency's approach to MBTA oversight, which drew criticism from federal investigators, while acknowledging Wednesday that DPU will "need to do more" to flex its muscle.
After investigators with the Federal Transit Administration concluded that DPU was falling short of fulfilling its duties as the agency responsible for MBTA oversight, DPU Chair Matthew Nelson faced more than an hour of pointed questions from legislators who wanted to know why the office appeared to remain on the sidelines while trains collided, careened off the rails and malfunctioned in recent months.
"We have a series of events I outlined in my opening remarks, really a five-alarm fire here, yet you never rang the alarm," Transportation Committee Co-chair Sen. Brendan Crighton said to Nelson during an oversight hearing. "You have not been there when safety incidents have occurred, and I need to know why, frankly."
Nelson's response and several other answers he gave at the Wednesday hearing echoed a similar theme: while he believes DPU can and will do more, he views the office's role more as an auditor than as a public-facing whistleblower.
"MBTA is still the primary and first line of defense on all safety activities. We're an auditing department. We don't have hundreds of employees. Our role is to ensure that MBTA and MBTA safety is doing their job and complying with their safety plan," Nelson said. "When you're saying we didn't ring the alarm bells, we've been in coordination with FTA and we've been working with FTA. We met all the deadlines and reported all the information. We've been on site of every major accident analyzing what happened and what has gone wrong with those incidents."
"Our fundamental goal is to try to ensure MBTA is taking the right steps to make those improvements. We aren't releasing press releases. That's not what our nature is," he added. "I think that safety is a bipartisan issue, and we take our role very seriously, but our primary people that we report to have been making sure that MBTA is aware of what we've identified as problems and also making sure that FTA is aware of what is happening on the system."
After their first oversight hearing featured testimony only from Transportation Secretary Jamey Tesler and MBTA General Manager Steve Poftak, lawmakers focused their second session on the DPU, MBTA Board of Directors Chair Betsy Taylor -- who said she is "not certain" why safety has deteriorated in recent years -- and a pair of frontline T workers.
DPU, which falls under the umbrella of the Executive Office of Energy and Environmental Affairs, by law is responsible for overseeing safety compliance at the MBTA, a role federal investigators said the department has not been doing "adequately."
The department's prominence in the FTA probe came as a surprise to some onlookers. Even seasoned reporters who spent years covering the T indicated they did not know the department was expected to play such a significant role, given how rarely MBTA officials referenced DPU oversight and how little the department operated in the public eye.
Nelson, who was appointed chair of the DPU in February 2019, told lawmakers that Wednesday's oversight hearing was in fact the very first time he ever appeared before the Transportation Committee.
"We have done what we are required to do, but I think facing the challenges of what is happening on the MBTA, we need to do more," Nelson said. "I'm not trying to say that everything's fine. That is not the message I'm delivering. I'm trying to say we've met our requirements, but given the circumstances, more needs to be done.
The DPU's transportation division has six field staff, an assistant director and a division director who focuses on both MBTA rail and on "common carriers" such as buses and towing companies, Nelson said. Officials are working to roughly double the size of that staff, including the addition of a new director of rail safety.
DPU officials have rarely taken steps to enforce any findings about the MBTA, according to Nelson. He said he recalls only two enforcement actions aimed at the T, one of which occurred some time before 2019 and the other after 2019.
"Given the level of safety violations and tragedies, it should seem surprising -- and I'm choosing the word carefully here -- surprising to anyone on the outside that our safety-reviewing agency reviewing the T has only stepped in twice to sanction the T when I think the public record that you've all reported on shows there's much more calling out," Rep. William Straus, the Transportation Committee's other co-chair, told reporters after the hearing.
Sen. John Keenan, a Quincy Democrat, said the DPU must approach its safety oversight work with "urgency."
"Yes, safety doesn't happen overnight, but you know what -- and I don't mean to be flip -- people die in an instant on our MBTA and we have to recognize that," he said.
"DPU having an additional two staff isn't going to make that not happen," Nelson replied. "We have a functional, critical role in the ecosystem of the safety of the T, but the T itself is still the primary defender of what happens on its system. It has the conductors that need to be properly trained. It has the large safety department that oversees all the actions of what happens on a day-to-day basis and has to ensure everyone is trained."
The FTA audited DPU's oversight of the MBTA in October 2019 and issued a report with 16 findings of non-compliance in December 2020. When federal investigators returned this spring and summer to conduct a nearly unprecedented additional probe of the T, seven of those DPU findings remained open and unresolved, the FTA said.
Rep. Natalie Blais of Sunderland asked Nelson why the DPU made only "vague references" to that federal audit in its 2020 and 2021 annual report to the Legislature with "no mention of how many findings there were or what they were."
"If I could go back and include them, I would," Nelson answered.
MBTA officials for months have projected that a sizable operating budget gap -- between $240 million and $421 million, depending on ridership -- will erupt in fiscal year 2024, then grow worse in subsequent years. And in the wake of the FTA's report, that outlook is "likely to get worse," Taylor, the MBTA board's chair, said.
Crighton asked if it was "safe to say" the MBTA's estimated operating budget shortfalls will "grow significantly" larger once that project is complete, giving the MBTA a better handle on how many more employees it needs to add, and once the agency finishes an updated systemwide asset condition assessment.
Taylor replied that fiscal year 2024 "may not have as much of a fiscal problem" if hiring challenges persist -- though that could pose "very real operational problems" -- but otherwise, she said Crighton is right.
"Going beyond that, there will be a need for -- the problem is likely to get worse," she said.
The MBTA is not alone facing major staffing challenges, and many transit agencies around the country have also struggled to retain staff or have shifted service around to match the workforce.
Individual T workers feel the impacts, too. Tonee Hobbs, a 23-year veteran MBTA bus operator, told the Transportation Committee her job is "absolutely" tougher with a more depleted workforce.
"We don't have enough drivers, and it shows all day," Hobbs said. "Because we're short drivers, it makes a difference in our workload and because we're short drivers, it makes a difference for passengers."
Jeb Mastandrea, an outside machinist and president of Machinists Union Local 264 Boston, linked staffing problems directly to safety concerns.
"We don't have time to even do preventive maintenance because we spend our days putting out, what we call in the business, just putting out fires," he said. "We don't have time to do things to prevent things from happening. We're just reactionary."
Some of the conclusions the FTA reached overlapped with or even mirrored the findings that an independent safety panel produced in December 2019. So what went wrong, Straus asked the chair of the MBTA's board, after 2019 that led to a cascade of failures and drew federal scrutiny?
"Quite frankly, I'm not certain," Taylor replied, noting that the latest iteration of the T's governing body has only been in place with her at the helm since October. "I am much more certain about the kind of actions that are currently being undertaken and that I think should be undertaken in the future with the Legislature's support that can change the pattern of behavior that we all find deeply regrettable and, quite frankly, unacceptable."
Taylor said she agrees with many of the FTA's recommendations, but she disagreed with one of the central conclusions in the federal probe: that the T has overemphasized capital work at the expense of day-to-day operations maintenance.
Instead, Taylor argued that the MBTA has "both an operating and a capital program," warning that "the level of deferred maintenance for decades is massive." She defended the agency's decision earlier this year to transfer $500 million from the operating budget to the capital budget, describing it as "investments [that] advanced critical safety projects" including an anti-collision system on the Green Line.
"The real problem is getting a handle on what it will take to maintain and update the existing facilities," Taylor said. "The lack of that is what has caused or largely contributed to a great many of the safety incidents we all find deplorable."
About $7.5 billion in the MBTA's five-year capital investment plan, or 80 percent of the total, focuses on safety and maintenance rather than flashier expansions, Taylor said.
"That's what the capital program is designed to do, and that's what we all need it to do if we are to have the safe and reliable T that this economy needs and deserves," she said.
Lawmakers plan to convene several more oversight hearings in the coming months and aim to submit a final report by the end of the session in early January.
Straus said the group's recommendations could include legislative changes to the T's overlapping operating and capital sides, and he also said testimony through the first two hearings shows the Baker administration's past insistence that the MBTA has the money it needs is "just not true."
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