Big Dig epoxy firm indicted

Attorney General Martha Coakley announced yesterday the first criminal indictment in connection with last summer's Big Dig ceiling collapse, a manslaughter charge against the supplier of the ceiling-bolt epoxy believed to be the root cause of the tragedy that killed a Jamaica Plain woman.

New York-based Powers Fasteners will face one count of involuntary manslaughter in the death of Milena Del Valle in its alleged failure to adequately warn construction contractors of the potentially deadly consequences of using a fast-drying glue to secure the ceiling bolts.

Under Massachusetts law, the firm could face no more than a $1,000 fine. No individual company employees were charged. But a criminal conviction could increase the likelihood of the firm being found liable and having to pay penalties in separate civil lawsuits filed by the state and Del Valle's family.

"The direct result of the behavior of Powers was the cause of her death," Coakley said during an afternoon press conference at her office. "I won't be satisfied until there is a conviction in the case."

She acknowledged that $1,000 "does not appear to come close to being an appropriate penalty."

Powers officials said they were "stunned, beyond belief" by the indictment, asserting the company did nothing wrong and had briefed state highway officials that fast-set epoxy was not safe for overhead use long before the Interstate 90 connector tunnel ceiling was built in 1999 and 2000.

The National Transportation Safety Board last month said the tunnel ceiling caved in July 10, 2006, largely because workers used a fast-drying form of Powers's epoxy to secure ceiling bolts, even though it was not strong enough for overhead use, because bolts tend to slip out over time. Coakley charged that Powers Fasteners knew about the shortcomings of the fast-drying glue, but failed to make it clear in literature or on epoxy packages that only standard epoxy was safe for overhead use.

Even when bolts began to pull loose during the ceiling's construction in 1999, state officials said, Powers officials did not raise the possibility that the wrong glue had been used.

"They had the opportunity to make clear the distinction in the products and raise the red flag at that time and possibly change the course of events; they did not do so," Paul F. Ware Jr., the special prosecutor overseeing the Big Dig investigation, said during the press conference.

Jeffrey Powers, president of Powers, based in Brewster, N.Y., said in a statement that he was shocked when he learned of the indictment less than an hour before Coakley's press conference.

"The only reason that our company has been indicted is that, unlike others implicated in this tragedy, we don't have enough money to buy our way out," said Powers, noting that the company sold just $1,287.60 worth of epoxy for use in the connector ceiling.

Coakley's office is in negotiations with Bechtel/Parsons Brinckerhoff, the giant engineering consortium that managed the design and construction of the $15 billion Big Dig, to settle damage claims from the 15-year tunnel and highway project, including the ceiling collapse.

The attorney general, working with US Attorney Michael J. Sullivan, is seeking up to $500 million in exchange for releasing the consortium from criminal culpability and civil liability for past defects, including leaks in tunnels, and any problems discovered in the future, according to lawyers familiar with the talks.

Yesterday, Coakley declined to discuss the negotiations or even to confirm that they are happening.

Coakley and Ware stressed that the indictment of Powers may not be the last in the case, which involves more than a dozen companies and government agencies that had a hand in the design, construction, or inspection of the connector tunnel ceiling.

Ware told reporters, "The investigation is ongoing with respect to other possible defendants."

Those other companies include Bechtel/Parsons Brinckerhoff, as well as Gannett Fleming, a design firm that worked on the ceiling, and Modern Continental Construction Co., the ceiling builder.

All those companies -- as well as the Massachusetts Turnpike Authority, which had ultimate authority over the project -- were harshly criticized last month in a report by the federal National Transportation Safety Board for their roles in failing to detect the fact that workers were using the wrong epoxy to suspend the concrete ceiling panels.

The Transportation Safety Board, however, singled out Powers as having been "in the best position" to have averted the disaster.

Coakley said yesterday that there is no evidence that Powers Fasteners deliberately supplied the wrong epoxy or that it was motivated by profit in its mistakes, but she said the company should be held criminally liable for its failure to adequately warn. When the company had a chance to prevent the disaster, Powers was "more than a little asleep at the switch," Ware said.

Powers was summoned to the tunnel twice in 1999 for advice on what to do after engineers noticed that five bolts had begun to slip out just a month after ceiling panels were hung from them. Unlike the other engineers at the meetings, Powers officials were well aware that it had shipped two kinds of epoxy to the Big Dig project, and that one kind, so-called fast-set, could not support heavy loads over long periods. However, field notes from the meetings show that neither Powers nor anyone else raised the possibility that the workers were using the wrong epoxy. The fast-set epoxy had been intended to fasten tunnel bolts not carrying overhead loads.

"Powers was on the site," Ware said. "Powers was able to make first-hand observations. They were asked 'what's wrong here?' And they did not give a responsible answer."

Powers officials have argued that they had no reason to suspect that the wrong glue was used. In recent weeks, they have produced sales records showing Powers had received an order for standard-set epoxy for the tunnel ceiling, and they say that's what they supplied. In addition, the company has documents showing that it warned top Massachusetts Highway Department officials in the 1990s that fast-set epoxy was not approved for overhead use because the bolts tended to creep out of their holes over time.

"At no time did anyone ever tell Powers, and Powers never had reason to believe, that its Fast Set product was used in the tunnel ceiling," Jeffrey Powers said in the statement yesterday.

Coakley said that she was aware of Powers' arguments and added, "We'll sort it out at trial."

The National Transportation Safety Board reiterated in a letter sent to Powers last week that the company had done a poor job of making clear the crucial difference between fast-set and standard-set epoxy in literature and packaging.

"Powers should have made a clear distinction in all of its literature between the relative capability of its standard-set and fast-set formulations," according to the board's Aug. 3 letter, which asked for a progress report on the company's steps to improve labeling of its epoxies. "It did not do so, even though, before the epoxy was provided to the project, the company had conclusive evidence that its fast-set epoxy was susceptible to creep and that it was therefore inappropriate for long-term tension loading in safety-critical application."

The single count of manslaughter against the company, returned by a Suffolk County grand jury, will not result in anyone going to jail, Coakley said. However, she said a criminal conviction would strengthen the state's civil lawsuit to recover damages in the accident from Powers Fasteners. She also said the state would have the option of barring Powers from taking part in public works projects.

The Del Valle family released a statement yesterday lauding Coakley. "We applaud the efforts of the attorney general to hold people responsible for the loss of our mother," said the statement, attributed to Del Valle's daughter, Raquel Ibarra Mora. "We are hopeful that this is the beginning of a process."

Former attorney general Thomas F. Reilly, who launched the initial investigation into the ceiling collapse, said Coakley deserved credit for not giving up on a criminal inquiry that has generated an estimated 1.5 million documents so far.

Before leaving office, Reilly had said that he felt the ceiling collapse was a case of criminal negligence, but Coakley was more circumspect, stressing that a conviction against anyone would be difficult to obtain and hiring Ware, a prominent Boston lawyer, to help her investigate the case.

"The easiest thing would have been to walk away from it, and she didn't," Reilly said. "It is a gutsy move on her part, but she's always made the tough calls. Martha Coakley very clearly showed that she means business here."