The Orange Line reopened on Monday after its emergency 30-day shutdown, to the relief of riders. But while the stations are cleaner, the equipment is newer, and the ride will soon be quicker, a major issue raised by federal safety regulators remains unresolved: Who will keep an eye on the agency to make sure that it doesn’t slide right back into its old ways?
The MBTA must end the too-frequent collisions, derailments, and incidents like the horrifying dragging incident that killed a Red Line passenger last April. Doing so is not optional: it’s part of a set of requirements laid down less than a month ago by the Federal Transit Administration.
But critical to the future of safety on the MBTA is oversight — and right now the agency charged with being that overarching safety czar is the under-the-radar-screen Department of Public Utilities. Yes, that would be the same agency better known for holding gas or electric rate hearings “to ensure that consumers’ rights are protected, and that utility companies are providing the most reliable service at the lowest possible cost,” as its website notes.
The recent scathing FTA report noted that the DPU “has not demonstrated an ability to address safety issues and concerns demonstrated during” the FTA’s latest inspection.
To which most people, including lawmakers, responded, the DPU? Who knew?
“We have a series of events … really a five-alarm fire here, yet you never rang the bell,” Senator Brendan Crighton, Transportation Committee Senate chairman, told the DPU chair, Matthew Nelson, during a recent legislative oversight hearing. “You have not been there when safety incidents have occurred, and I need to know why, frankly.”
So does the FTA, which questioned the ability of the agency to protect public safety not just in this most recent report, but going back to a 2019 audit when the federal agency found “the DPU did not have a staffing level commensurate with the actual oversight needs” of the MBTA. Since then the DPU has beefed up its staff, but the latest FTA report added, “many DPU employees are relatively new and still learning” on the job.
In all, the branch of the DPU responsible for MBTA safety oversight has a director, an assistant director, and six field staffers (including three engineers and one auditor). That group is also responsible for oversight of all “common carriers” such as buses around the state and towing companies.
Nelson told lawmakers he hopes to double the staff and add a new director of rail safety.
“MBTA is still the primary and first line of defense on all safety activities,” Nelson told legislators. “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.”
But even in that exceedingly modest role, the DPU has been, well, quiescent. Under questioning by committee members, Nelson — who was appointed to chair the DPU in February of 2019 — said he could recall only two enforcement actions taken against the T — one before 2019 and the other after 2019. And, yes, that would be at a time when the wheels were truly coming off at the T.
It was a point not lost on lawmakers.
“Given the level of safety violations and tragedies, it should seem surprising — and I’m choosing the word carefully here,” said Representative William Straus, Transportation Committee House chairman, “surprising to anyone on the outside that our safety-reviewing agency reviewing the T has only stepped in twice to sanction the T.”
The FTA may well have put its finger on part of the problem — a problem not easily fixable with a larger or better trained staff. Federal regulations require the state safety oversight agency to be “financially and legally independent from any rail transit system under its oversight jurisdiction.” The federal report then notes that the MBTA Board’s seven members and the DPU’s three-member commission are all appointed by the governor. “As a result, FTA finds the DPU must review its independence from the MBTA.”
What is the point of a watchdog and the watched who report to the same master?
Several other states successfully use their DPU’s — but with the help of extensive rail safety divisions and the luxury of distance. California’s, for example, “regulates safety and security” for 15 separate rail transit authorities throughout the state. Its staff “performed approximately 60,427 hours of safety and security oversight activities,” according to its latest annual report.
Most states use their Department of Transportation as a safety oversight agency — but then most states don’t have the built in conflict of interest pointed out by the FTA.
New York state, however, created a Public Transportation Safety Board in 1984 — the first of its kind in the nation, it proudly boasts on its website — responsible for the safety oversight of all public transportation systems operating in the state that get state funds. Its board includes the state’s transportation commissioner but its six members also include the inspector general for New York City’s Metropolitan Transit Authority. Its staff conducts accident investigations, field safety audits, and as a board it approves the safety plans for all local transit agencies.
In other words, it has the kind of distance and independence much needed here, but overlooked in the giant blob that MBTA governance has become and that modest increases to the staff at the DPU aren’t going to solve.
It hints at a path lawmakers should consider as they continue their oversight hearings, aiming for an early January report. And that new model should certainly start with an inspector general. If New York City’s MTA has one, why not the MBTA? Using the same model used to select the Massachusetts IG — appointment by the governor, attorney general, and auditor — would provide a measure of independence. But real reform could build from there with a truly independent safety board.
Clearly the DPU has not been getting the job done, not protecting public safety in the way federal regulations demand. Massachusetts has the opportunity in the months ahead to try something new, something better, something with the independence the DPU has been lacking and federal regulators demand. Lawmakers should seize this opportunity to craft that new approach.
Editorials represent the views of the Boston Globe Editorial Board. Follow us on Twitter at @GlobeOpinion.