Big Dig collapse: mistake or crime?

TO THE AVERAGE outraged citizen, the Big Dig's $15 billion price tag is a crime unto itself. So, of course, the fatal Big Dig tunnel collapse is criminal.

But when it comes to weighing a potential case, Attorney General Martha Coakley must make a legal judgment, based on specific facts surrounding Milena Del Valle's death last summer.

Was it a screw up or a crime to use the wrong glue to hold up 3-ton concrete panels that would hang over a major roadway? Was it a screw up or a crime to fail to monitor those weighty panels even after problems were discovered?

And, if it was a crime, should Coakley prosecute the alleged criminals? Or, should she aim for the biggest possible monetary settlement and some admission of responsibility in lieu of criminal prosecution?

On his way out of office, then Attorney General Thomas F. Reilly declared flatly that people and companies connected with the tunnel's construction should face manslaughter charges. Now, it's up to Coakley to indict, or not. It's a tricky call and Reilly didn't make it easier by going public with his opinion that the design and construction of the tunnel ceiling were so reckless as to be criminal.

The National Transportation Safety Board blames multiple Big Dig contractors, and the state, for last summer's fatal tunnel collapse. However, one board member said "there was no malice," or intent to commit a wrongful act.

But the test here isn't malevolent intent. It's reckless conduct. As former attorney general L. Scott Harshbarger explains: "What did they know, when did they know it, and knowing it, who had a duty and who failed to act? If that is clear enough, a criminal prosecution is justified."

The cause of the Interstate 90 connector tunnel collapse is laid out very bluntly in the NTSB summary report.

A fast-drying epoxy was used instead of a standard epoxy to set anchor bolts. The fast-drying glue "was not capable of sustaining long-term loads. Over time, the epoxy deformed and fractured until several ceiling support anchors pulled free and allowed a portion of the ceiling to collapse."

The federal agency said the information provided by the epoxy supplier was inadequate and misleading. No one involved in the design or application anticipated the resulting epoxy "creep" as a problem. Then, a failure to monitor anchor performance after Big Dig contractors discovered the "creep" contributed to the accident. The failure of the Massachusetts Turnpike Authority to implement a timely tunnel inspection program was cited as another contributing factor.

Multiple contractors are responsible, according to the NTSB. They include Powers Fasteners Inc., which supplied the epoxy; Modern Continental Construction Co., which installed the anchors; Gannett Fleming Inc., designer of the tunnel section; and project manager Bechtel/Parsons Brinckerhoff, which had design and monitoring responsibilities. In response, the contractors said the findings show their companies were not to blame, or disputed the board's conclusions.

Coakley is entitled to reach her own conclusion about the merits of criminal prosecution, but she will have to explain it carefully to a skeptical public.

Prosecutors must weigh whether they can prove beyond a reasonable doubt that there was criminal conduct, as opposed to a negligent failure to do the job well. Also, should they send a message of deterrence with indictments, and, with it, risk a large monetary settlement? There's a possibility some companies will file for bankruptcy if they are indicted.

The average citizen simply wonders, if you use the wrong glue to put tons of concrete over someone's head, why is that not reckless? And if you know there's a problem, why wouldn't you go back and check on it?

For too long, Big Dig contractors seem to have gotten away with highway robbery. No one was ever made to answer for skyrocketing costs.

Then, taxpayers came to understand they were not only paying a premium price, they were paying it for a faulty, unsafe product. First came tunnel leaks, then tunnel collapse.

Now, a failure to prosecute could make it look like Big Dig contractors are also getting away with manslaughter.

The Del Valle family brought a multimillion-dollar civil lawsuit against more than a dozen contractors and the Turnpike Authority. State and federal authorities are finally trying to decide what's in the best interests of their client, the public.

It's a crime it's taken them so long to do so.

Joan Vennochi's e-mail address is vennochi@globe.com.