Big Dig firm may face more charges

Federal indictment possible over epoxy

After the major contractor that oversaw construction of the Big Dig avoided criminal prosecution by negotiating a large civil settlement with authorities, a small New York supplier of epoxy that failed in the 2006 fatal tunnel ceiling collapse is in the crosshairs of a federal grand jury investigation, according to two lawyers briefed on the case.

The company, Powers Fasteners Inc., of Brewster, N.Y., has already been indicted by the state. Now federal prosecutors are trying to determine whether the firm or any of its executives or employees should also be hit with federal criminal charges in connection with its work, the lawyers said. The collapse killed a 38-year-old Jamaica Plain woman, Milena Del Valle, whose car was crushed in the Interstate 90 connector tunnel in South Boston after bolts holding a ceiling panel gave way.

Federal officials would not confirm the grand jury probe, which was disclosed to the Globe by two lawyers who do not work for the government. Lawyers around the city have been contact ed to possibly represent Powers Fasteners employees as the federal probe progresses, the lawyers said.

Powers Fasteners was indicted on a charge of involuntary manslaughter by a state grand jury in August, making it the only company known to be facing criminal proceedings related to Del Valle's death. Trial is set to begin in January. In that case, Attorney General Martha Coakley and special assistant attorney general Paul Ware alleged that Powers Fasteners acted criminally by failing to warn construction contractors of the dangers of using a fast-drying epoxy to secure ceiling bolts.

In contrast, the construction manager for the $15 billion Big Dig, Bechtel/Parsons Brinckerhoff, agreed in January with both the federal and state governments to pay a $450 million settlement for a host of Big Dig flaws, including the faulty ceiling. The settlement included a provision that protected Bechtel/Parsons Brinckerhoff from any criminal liability.

Powers Fasteners is a family-owned business of about 200 employees with about $100 million in annual sales. By comparison, Bechtel Corp., also privately owned, has an estimated 40,000 employees and $20 billion in revenue, according to a 2006 Forbes magazine report. Parsons Brinckerhoff has 9,000 employees and revenues of about $1.5 billion, Forbes said.

Powers Fasteners officials have protested that they are being made a scapegoat for a disaster in which many companies were implicated. "The only reason that our company has been indicted is that we don't have enough money to buy our way out," Jeffrey Powers, company president, said last year in response to the state charges.

Max D. Stern, one of Powers Fasteners' lawyers, would not discuss whether the firm has become the focus of a federal grand jury investigation. In a statement, he noted that previous legal filings have indicated that there "continues to be a grand jury investigation into a number of the entities involved in the Big Dig project and that it expects that the investigation will be concluded by the end of May."

Powers Fasteners is the only company that has settled a civil claim against it by Del Valle's family. Bechtel/Parsons Brinckerhoff and other Big Dig companies, including contractor Modern Continental and designer Gannett Fleming Inc., as well as the Massachusetts Turnpike Authority, remain defendants in the family's lawsuit, which seeks unspecified damages.

Though grand juries conduct their business in secrecy, it has been widely known that the office of US Attorney Michael J. Sullivan has been investigating the $15 billion Central Artery tunnel project, one of the largest public works projects in the country's history. Nothing legally bars an individual or company from facing both state and federal criminal charges.

The recent flurry of activity by federal prosecutors comes against the backdrop of some criticism that the US Attorney's office, over more than a decade, failed to do enough to police the Big Dig, whose years of leaks, cost coverups, schedule delays, and ballooning costs have frustrated many. Chief Judge Mark L. Wolf of the US District Court criticized the US Attorney's office in December for not serving as a more aggressive watchdog on the massive tunnel-and-highway project.

There have been indications in court filings that the federal grand jury might be close to concluding its investigation. In documents filed in state court relating to the suit by Del Valle's family, federal prosecutors have asked to postpone some depositions to keep them from interfering with the prosecutors' continuing criminal investigation. The prosecutors said they need at least until May 30 to conclude their investigation.

The National Transportation Safety Board, in a report issued last summer, concluded that Powers Fasteners should have made clear to customers that its fast-drying epoxy should not be used to support ceilings after Powers officials were asked to find out why Big Dig bolts were coming loose in 1999. The NTSB found that Powers Fasteners provided "inadequate and misleading" information about its epoxy. Subsequently, Bechtel/Parsons Brinckerhoff and Modern Continental, the tunnel builder, failed to monitor whether bolts continued to come loose, and the Turnpike Authority did not inspect the ceiling after the tunnel opened in 2003, the NTSB found.

According to Coakley's investigators, company officials knew that their fast-setting epoxy repeatedly failed tests of long-term strength, yet the company catalogue and product labels did 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 just before the ceiling was installed, Coakley alleged.

But 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 did not raise the possibility that workers might have used the wrong epoxy, according to Coakley's indictment. Powers issued a warning to product distributors last month that fast-set epoxy should not be used for holding heavy loads over the long term.

Powers Fasteners offered the state $8 million to avoid criminal charges, just as Bechtel/Parsons Brinckerhoff negotiated a settlement, lawyers told the Globe at the time of the indictment. But, according to one lawyer familiar with the case, Coakley was not satisfied and secured the indictment.

Under state law, the maximum fine for a corporation convicted of manslaughter is $1,000.

In the state case, prosecutors are attempting to show that Powers Fasteners was so reckless in not speaking out more forcefully about the risks of the ceiling support system that it was criminal. Under federal law, prosecutors can consider criminal fraud, under which prosecutors would have to show that the Big Dig supplier accepted payment for a product it knew to be deficient, according to lawyers who have been involved in the case and state officials.

Sean Murphy can be reached at smurphy@globe.com