Attorney General Martha Coakley has concluded that only three of the myriad companies involved in construction of the Big Dig tunnel ceiling that collapsed last year were criminally negligent, according to lawyers familiar with the investigation, and she has ruled out further indictments unless settlement talks with two of the companies break down.
That would leave only Powers Fasteners, a New York-based glue supply company, to face trial in a disaster that came to symbolize everything that went wrong in the $15 billion Big Dig project.
The lawyers said that Paul F. Ware Jr., Coakley's special prosecutor in the Big Dig investigation, determined that only three firms, Powers and the two that managed the overall Big Dig, had shown the "wanton or reckless" disregard for public safety necessary to prove that their role in the ceiling collapse was criminal rather than merely negligent.
The Big Dig managers, Bechtel Co. and Parsons Brinckerhoff Quade & Douglas, have offered to settle the ceiling-collapse case and other Big Dig issues without criminal charges, for an amount one of the lawyers said was "well north" of $300 million.
But the four brothers who own Powers Fasteners, the company that supplied epoxy for the tunnel ceiling, offered $8 million to settle the case, apparently in the mistaken belief that Coakley would not seek an indictment against them even if no agreement was reached, say the lawyers. The offer did not satisfy Coakley's demand that any settlement be painful, one lawyer said, and she immediately asked a Suffolk County grand jury to indict the firm on a charge of involuntary manslaughter in the death of Milena Del Valle.
"One of the reasons [Coakley] went ahead with Powers' [indictment] was to make the point to Bechtel: If you are going to pony up a whole lot of money, you'd better do it damn fast because [she] is closing in on a decision here," said one of the attorneys. The lawyers asked not to be identified because the negotiations are confidential.
Powers Fasteners officials protest that they are being made a scapegoat for an accident in which many companies were implicated.
Del Valle's family has sued 17 firms and a state agency over the July 10, 2006, accident in the Interstate 90 connector tunnel, which occurred because construction workers inadvertently secured ceiling bolts with a fast-drying form of Powers epoxy that tended to lose its grip over time.
The National Transportation Safety Board and Coakley said Powers should have made the danger clearer to customers and should have spotted the epoxy mix-up when its officials were called to the tunnel during construction in 1999 to figure out why bolts were coming loose.
But in a report last month on the tunnel collapse, the safety board also blamed four other companies and the Massachusetts Turnpike Authority for not taking steps to prevent the collapse. In addition to Powers, Bechtel, and Parsons Brinckerhoff, the board singled out the ceiling designers at Gannett Fleming and the builders at Modern Continental Construction Co. for playing a role in the accident.
"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," Powers Fasteners president Jeffrey Powers, said in a statement earlier this month.
Even though the maximum penalty against a corporation for manslaughter is $1,000 under Massachusetts law, he worries that the bad publicity could bankrupt the company, which has gross revenues of $90 million a year.
Lawyers in Coakley's office wrestled over the public perception of indicting an obscure firm only peripherally involved in the Big Dig -- Powers says it made only a few thousand dollars on the tunnel -- rather than the better-known companies that designed and built the ceiling.
Some argued that Coakley should also indict Bechtel and Parsons Brinckerhoff, then sue the companies separately for a monetary award, said lawyers familiar with the investigation. But Coakley was persuaded that the public would get more money sooner under a settlement of the criminal case, rather than waiting years for the resolution of a lawsuit.
"To the public, Bechtel is the malefactor," said one of the lawyers familiar with the talks. "Nothing [Coakley] can do is going to change that. Indicting them might make the public feel better, but she is weighing whether to protect the public in a different way."
This lawyer said the public relatons challenge for Coakley is to convince the public that Powers is the most culpable firm in the tragedy and uniquely deserving of criminal prosecution.
More than 500,000 pages of evidence collected by the attorney general, including newly released internal records from Powers, paint a picture of many hands on the fateful construction mistake that led to a ceiling collapse in a tunnel used by some 40,000 airport-bound vehicles daily.
Engineers from Gannett Fleming who drew the blueprints -- and their supervisors at the joint venture of Bechtel/Parsons Brinckerhoff -- required builders to secure ceiling bolts with epoxy, but didn't warn them that they had to use standard, or slow-drying, epoxy because bolts secured with fast-set epoxy tend to creep out over time.
Modern Continental workers used the wrong epoxy, but apparently did not know that it mattered which epoxy they applied, according to the safety board's report.
Ware, a Boston lawyer and former federal prosecutor hired by Coakley in March, concluded that, while several companies contributed to the accident through failure to act, only Powers, Bechtel, and Parsons Brinckerhoff had done anything potentially criminal. The state manslaughter law, which was used to convict the owner of the Cocoanut Grove nightclub after a fire killed 492 patrons in 1942, requires that the prosecutor prove that the defendant acted with "wanton or reckless" disregard for the safety of others.
Ware argued to Coakley that Bechtel/Parsons Brinckerhoff officials failed in their basic responsibility to ensure that the Big Dig was safe, ignoring repeated warnings that should have tipped them off that the ceiling was in danger of falling.
Powers, Ware argued, had even more liability: Company officials knew that their fast-setting epoxy repeatedly failed tests of long-term strength, yet the company catalog and product labels do not clearly warn about the hazard. They also knew that the distributor working with Modern Continental had ordered 1,000 tubes of fast-set epoxy and just 120 tubes of standard epoxy right before the ceiling was installed.
Yet, when Powers officials were asked to come to Boston to look at five bolts that had unexpectedly come loose shortly after ceiling panels were hung from them in 1999, they didn't even raise the possibility that workers may have used the wrong epoxy. Powers finally issued a warning to product distributors only last month that fast-set epoxy should not be used for holding deadweight over the long term.
This summer, Ware went to each of the three companies with the same message, according to one of the lawyers. "We think we have the evidence to indict you," Ware reportedly said. "If you think you can talk us out of this, talk us out of it. If you don't talk us out of it or if you don't have some alternative, we're going to indict you."
Bechtel and Parsons Brinckherhoff proposed to make the ceiling collapse part of a broader negotiation with the state and the US attorney over how much the companies should pay for problems over the entire 15-year Big Dig.
Though both sides say the talks are progressing, major issues remain, including whether Bechtel and Parsons Brinckerhoff will be barred from bidding on public construction projects in Massachusetts or those funded by the federal government and whether the state could come back to the joint venture for more money if additional problems emerge with the project. If the talks collapse, Coakley could still seek criminal indictments.
Powers lawyers argued to Ware that Coakley was wrong to seek to indict the company, saying it had not tried to hide the weakness of the fast-set epoxy. At the time of the ceiling's construction in 1999, according to documents recently sent to the safety board, Powers told officials at the state Highway Department that the fast-set epoxy could not pass creep tests and might not support deadweight over the long term. However, Coakley's office contends that the company should have done much more to warn Big Dig engineers directly about the hazard.
The Powers attorneys also argued that construction workers had made many mistakes installing the bolts and that those mistakes could explain why bolts were coming loose; as a result, the firm had no reason to suspect that workers were also using the wrong epoxy.
Powers initially offered $6 million, and then $8 million, to settle the case, say lawyers familiar with the talks, but Coakley was unimpressed. The company carries $26 million worth of professional liability insurance, which might more than cover the cost of the settlement. Coakley had wanted Powers to pay something out-of-pocket that was big enough to show contrition, though Ware never specified a number.
When the talks didn't produce an agreement, Powers lawyers still did not believe the company would be indicted.
"I did not think that any reasonable person looking at the evidence could think there was enough to indict," said Powers attorney Max D. Stern, who said he received just 70 minutes' advance notice that Coakley was going forward with the indictment on Aug. 8. "Yes, I was surprised."
But one legal observer says Powers is not necessarily a victim.
"It's hard to feel sympathy for them," said Anthony Tarricone, a lawyer at Kreindler & Kreindler who specializes in sorting out legal responsibility for major disasters but is not involved in the Big Dig.
"Just because someone is on the periphery doesn't mean they are unimportant," he said. "Sometimes a very big product or system can fail because of something small, like an O ring on the space shuttle Challenger," which exploded shortly after takeoff in 1986.