A Key Agency in the Ohio Train Derailment Response Hasn’t Had a Confirmed Leader Since Biden Took Office

One of the federal agencies working on the response to the Feb. 3 Ohio train derailment and spill of toxic chemicals has not had a confirmed leader––or even a nominee for the job–– under the Biden administration. 

The Pipeline and Hazardous Materials Safety Administration, established in 2004 and housed within the Transportation Department, develops and enforces regulations for the country’s 2.6-million-mile pipeline transportation system and the nearly 1 million daily shipments of hazardous materials by land, sea and air. Along with the Federal Railroad Administration, it is supporting the National Transportation Safety Board’s investigation into the derailment that caused havoc in East Palestine, Ohio, which is near the Pennsylvania border. 

The pipeline safety agency, which had about 550 employees as of September, has not had a confirmed leader since the end of the Trump administration. Tristan Brown has been in charge during the Biden administration, as acting administrator from February 2021 to November 2021 and since then as deputy administrator performing the duties of administrator, due to limits on how long he could assume the acting title under the 1998 Federal Vacancies Reform Act. 

“Since day one, Tristan Brown has been capably leading the agency, which was one of the first to arrive in East Palestine to support emergency response efforts,” said a White House official. The White House did not say if the president is considering any nominees for the role. 

“The [Transportation] secretary and the [Biden] administration have confidence in [the safety agency’s] current leadership, which has been one of the most productive in advancing new safety requirements in the agency’s history,” an agency spokesperson told Government Executive. 

However, Republican lawmakers, experts and former agency leaders underscored the importance of having confirmed leadership. 

“The fact that President Biden has not even nominated a [safety agency] administrator more than halfway through his term shows just how low hazardous materials and pipeline safety fall on his list of priorities,” said a spokesperson for the Republicans on the Senate Commerce, Science and Transportation Committee. 

“The Ohio train derailment underscores the need for Senate-confirmed leadership at [the safety agency] and all safety agencies, to ensure that current and emerging threats are recognized and addressed, and to represent their agencies to senior administration and congressional decision makers with regard to priorities, budgets, and needed authorities,” said Erin Murphy, senior attorney for energy markets and utility regulation at the Environmental Defense Fund. 

Bill Caram, executive director of the nonprofit Pipeline Safety Trust, said that “technically speaking, there’s nothing that Tristan Brown can’t do as deputy administrator that he could do as a Senate-confirmed administrator,” but “having a Senate-confirmed leader is still important, and I believe [the safety agency] is worse off for not having one.”

He agreed that the lack of a confirmed leader “demonstrates the administration’s priorities, or lack thereof. Also, a deputy administrator who might be waiting on a potential Senate hearing could play it safe on difficult decisions or issues for fear of angering Senate committee members.” But overall, Brown “has shown tremendous leadership” in working to keep people and the environment safe, Caram said. 

“Ideally, all positions would be confirmed, which is inherently a difficult and never-ending task,” said Brigham McCown, who served as the first acting administrator and first deputy administrator of the agency under the George W. Bush administration. 

“Whether it matters or not really depends on how the acting or deputy administrator is seen and received inside and outside of the agency,” said McCown, who is also the founder of the nonprofit think tank Alliance for Innovation and Infrastructure and is a senior fellow and director at the Hudson Institute, a think tank. “I have been an acting administrator and a deputy before and did not have a problem. Yet exercising the full authority of the office sometimes requires [Senate confirmation].” 

Howard “Skip” Elliott, who served as administrator under the Trump administration, said, “with responsibility for overseeing the safety of over 3 million miles of liquid and gas pipelines, and 1.2-millions daily shipments of hazardous materials by rail, highway, water and air, [the agency] is one of this nation’s most essential federal safety agencies.” Therefore, not having a confirmed administrator at this point “greatly hinders the ability of the agency to fully carry out its vital safety mission of protecting people and the environment.”

Elliott was one of two Trump officials selected to serve as an acting inspector general while also holding his agency position, which concerned some non-governmental watchdog groups, even though he told lawmakers how he would handle the roles fairly and recuse himself from safety agency matters as acting IG. Elliott told Government Executive his ability to lead the agency was “absolutely not” impacted by having the dual roles. “I had a capable deputy administrator, and a cadre of highly professional and dedicated Senior Executive Service leaders who were all focused on [the pipeline agency’s] important safety mission,” he said. 

Cynthia Quarterman, administrator under the Obama administration and now a fellow for the Atlantic Council, said ideally all political appointments that need Senate confirmation should “be filled as soon as ‘politically’ possible,” but “what is ‘politically’ possible in an equally or almost equally divided Senate?” The Biden administration has “employed the savvy strategy of filling the highest political appointments at agencies possible that did not require Senate confirmation,” she said. “An agency can operate with a high-level acting head or surrogate for as long as necessary.”

The lack of a confirmed agency head is an issue, Timothy Butters, acting administrator under President Obama, agreed. But in terms of the Ohio derailment “it’s more of an optics issue” because the agency has an “established process” to deal with derailments and work with other agencies. But “if you have agencies that have a very important public safety role and they don’t have a leader at the top, that doesn’t send a very strong message,” he said.  

This is not the only time the safety administration has gone a while without a permanent head; Politico reported in 2015 about the prolonged wait for a nominee then.