Roy, Barrett Revisit Oversight of DPU as Agency Hit for MBTA Laxity

Department of Public Utilities Chair Matt Nelson (right) and DPU Transportation Oversight Division Chair Elizabeth Cellucci (left) face questions from the Telecommunications, Utilities and Energy Committee on Thursday about the department's ability to fulfill MBTA safety oversight duties. [Chris Lisinski/SHNS]

Lawmakers should expect to weigh legislation next year that would stand up a more independent MBTA oversight system, one senator said Thursday, contending that the existing approach by the Department of Public Utilities is part of a "mass failure" that allowed T safety issues to fester.

Revisiting oversight of the DPU but the Joint Committee on Telecommunications, Utilities and Energy (TUE) Committee, he and his colleagues spent several hours grilling current and former DPU officials about their work to ensure the MBTA is safe. Sen. Mike Barrett said the Baker administration agency has not done enough in recent years to demonstrate that it can handle those responsibilities, even if it "means to do well."

"I'm thinking the sand in the hourglass has probably run out," Barrett, who co-chairs the TUE Committee with Franklin Rep. Jeff Roy, told reporters after the panel's oversight hearing. "Bottom line is, people have used the system at their risk. The current oversight supplied by the Department of Public Utilities is a part of that mass failure, and I think it's time, probably, to try a different institutional arrangement."

During the next legislative session that begins in January, the Lexington Democrat said he expects "to see at least one bill that proposes a truly independent transportation safety commission" whose members would be selected not only by the governor's office but also by other public officials.

Spreading out appointment authority could lead to "creative tension," Barrett said, and limit the chances of "a DPU appointed by a governor and an MBTA appointed by the same governor start(ing) to regard each other as sister agencies organized or living within the same family."

Fellow committee co-chair Rep. Jeff Roy said he remains undecided if the DPU should continue to serve as the designated state safety oversight agency for the T or if those duties should be shifted elsewhere.

DPU officials made a "good case" on Thursday that they can handle the responsibility, Roy said, adding that the department's work to bulk up its pipeline safety division in the wake of the 2018 Merrimack Valley gas explosions shows "they've got success in that area."

"I'd like to see if they can replicate that," Roy,  said.

The DPU landed in the spotlight in recent months after a string of crises at the MBTA, some of which caused injuries or deaths, prompted a nearly unprecedented Federal Transit Administration probe. FTA investigators concluded not only that the T suffered from major safety deficiencies, but also that the DPU has been falling short of its role as a watchdog.

DPU officials on Thursday described their top concern as one familiar to employers across the public and private sector: staffing shortages.

Elizabeth Cellucci, director of the department's Transportation Oversight Division, told lawmakers her team has seven full-time staffers, six of whom work in the field. She would like to bring on one more auditor, one more public utilities engineer and two more compliance officers, and DPU Chair Matt Nelson said the department is "in the middle of expanding the division and trying to invest in people."

But filling those roles has posed a challenge. Cellucci said that since she started her role about two years ago, the office has had job postings listed "continually."

Part of the problem, she said, is the dense subject matter and the lack of a clear "feeder program."

"It's not something that appeals to most young people. They want to do something else that has to do with IT or marketing or biomedical," Cellucci said. "It's not something that a kid graduates with a bachelor's degree and says, 'I always wanted to be a rail safety expert.' "

Another key factor is compensation. While Nelson and Cellucci did not offer specific figures, they said the DPU frequently loses staff to the MBTA or the energy utilities it regulates, who offer better pay and perks such as signing bonuses.

The T can pay more, Nelson said, because it has the "operational budget and the operational flexibility afforded to them by an entity that is running, in essence, a public utility."

"I've been working at this long before the (FTA investigation) in 2022, and I'm telling you, it's hard," Nelson said. "It's really hard to hire people in rail safety, especially when we're competing with MBTA, which pays far more robust salaries."

One pressure point that Nelson does not see as a factor in the DPU's transit safety struggles is state funding.

"We have the money. I'm not asking for money," he said. "Federal grants have given us money to spend. We're looking to spend it on individuals and potentially consultants."

Nelson said DPU's efforts to ramp up pipeline safety in the past few years could serve as a template for its work going forward on transit safety. At one point, the department's pipeline safety division had "under 10" workers, he said; now, that office has about 35 employees.

A new transportation safety oversight agency might be able to offer more competitive compensation packages and achieve greater hiring success, Nelson said, but he warned that spinning out those duties from beneath the DPU umbrella could create other challenges. An independent office would need its own support services like human resources and IT, which Nelson said might not "make sense."

In Barrett's mind, removing T safety from the DPU's purview would not be just a response to the department's past failures -- it would also, he said, free up resources at the DPU to focus on climate policy at a time when Massachusetts is pursuing a transformation of its energy use and aggressive greenhouse gas emissions cuts.

"No one asked the governor if he's too busy to deal with all the issues in the state," Nelson replied when asked about balancing those topics. "The department is fully capable and has very competent division directors, like Ms. Cellucci, running each individual part of the department."

One of Nelson's predecessors made clear Thursday that she does not share optimism that the DPU can continue to handle MBTA oversight.

Ann Berwick, who chaired the DPU from 2010 to 2015, told lawmakers that she believes a different agency should take over that job because "transit safety will always be a stepchild of the DPU."

Berwick said she knew during her tenure that T safety was part of the department's responsibilities, but conceded she did not do enough.

"I handled it inadequately because my focus and the predominance of my staff, numbers of staff, was focused on electric and gas utilities, rate-setting, related energy issues, and now, after my departure, by legislative mandate, focused on climate," she said. "When I was chair, there were never more than, I don't know, eight, nine, probably fewer transportation safety employees out of a total of 160. So I don't think the DPU under my stewardship was an adequate steward of transportation."

Nelson's appearance Thursday was his second before a legislative panel flexing its oversight authority in the wake of the FTA's report. Last month, he told the Transportation Committee the DPU will "need to do more" to fulfill its MBTA safety duties while defending his office as more of an auditor than a public-facing whistleblower.

As Thursday's hearing unfolded, U.S. Sen. Elizabeth Warren announced she will convene a federal hearing in Boston next Friday to examine "management failures" at the DPU and MBTA and the economic impacts of inadequate transit maintenance and oversight. FTA Administrator Nuria Fernandez has confirmed that she will testify at the Oct. 14 hearing at the JFK Federal Building.

FTA officials previously declined to testify at the Transportation Committee's state legislative hearing, saying they were prohibited from participating in "legal proceedings" and drawing ire from committee co-chair Rep. William Straus.