Massachusetts Attorney General Martha Coakley yesterday announced the first criminal indictment connected with the Big Dig ceiling collapse last summer, a charge of manslaughter against the New York-based supplier of the ceiling-bolt epoxy believed to be the cause of the tragic accident that killed Milena Del Valle, the Boston Globe reported.
Powers Fasteners will face one count of involuntary manslaughter in the death of the Jamaica Plain woman because it allegedly failed to sufficiently warn contractors of the potentially deadly consequences of securing the ceiling bolts with fast-drying glue, the newspaper reported.
The firm could face no more than a $1,000 fine under Massachusetts law, but a criminal conviction could increase the possibility of the firm being found liable and having to pay penalties in civil lawsuits filed by the state and the victim’s family.
"The direct result of the behavior of Powers was the cause of her death," Coakley said yesterday during an afternoon press conference at her office. "I won't be satisfied until there is a conviction in the case."
Powers officials said the indictment left them "stunned, beyond belief," contending the company did nothing wrong and had informed state highway officials that fast-set epoxy was not safe for overhead use long before the I-90 connector tunnel ceiling was constructed in 1999 and 2000, according to the Globe.
The National Transportation Safety Board (NTSB) said last month the tunnel ceiling caved in on July 10, 2006, largely due to the use of a fast-drying form of Powers' epoxy to secure ceiling bolts, even though it was not strong enough for overhead use, because bolts tended to slip out over time, the newspaper reported.
Coakley claimed that Powers Fasteners failed to make it clear on epoxy packages or in literature that only standard epoxy was safe for overhead use, even though they knew about the shortcomings of the fast-drying glue, according to the newspaper.
According to state officials, Powers officials did not raise concerns that the wrong glue had been used, even when bolts began to pull loose during the ceiling's construction in 1999, the Globe reported.
"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 the Brewster, N.Y.-based Powers, said in a statement that he was shocked when he first 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," Powers said, noting that the company sold only $1,287.60 worth of epoxy for the connector ceiling.
Coakley's office is negotiating 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 project, including the ceiling collapse, according to the Globe.
Coakley, working with U.S. 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 and any problems discovered in the future, according to lawyers familiar with the talks.
Yesterday, Coakley declined to discuss the negotiations or even confirm that they are taking place.
Coakley and Ware stressed that the Powers indictment may not be the last in the case, which involves more than a dozen government agencies and companies that contributed to the design, construction or inspection of the connector tunnel ceiling.
"The investigation is ongoing with respect to other possible defendants," Ware told reporters.
Those other companies include Bechtel/Parsons Brinckerhoff, as well as Modern Continental Construction Co., the ceiling builder, and Gannett Fleming, a design firm that worked on the ceiling, the newspaper reported.
Last month, a NTSB report severely criticized those companies--as well as the Massachusetts Turnpike Authority, which had ultimate authority over the project--for their roles in failing to discover that workers were using the wrong epoxy to suspend the concrete ceiling panels.
Powers was "in the best position" to have averted the disaster, however, according to the NTSB.
Coakley said yesterday that there is no evidence that Powers Fasteners deliberately supplied the wrong glue, but the company should be held criminally liable, she said, for its lack of adequate warning. Ware said that when the company had a chance to prevent the disaster, Powers was "more than a little asleep at the switch."
Powers was summoned twice to the tunnel in 1999 to give advice on what to do after engineers noticed that five bolts had begun to slip only a month after ceiling panels were hung from them, the newspaper reported. Powers officials, unlike the other engineers at the meetings, were aware that the company had shipped two kinds of epoxy to the Big Dig project, and that fast-set epoxy could not support heavy loads over long periods of time. However, notes from the meetings show that the possibility that the workers were using the wrong epoxy was never raised, according to the newspaper. The fast-set epoxy was 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."
They had no reason to suspect that the wrong glue was used, Powers officials argued. In recent weeks, Powers has produced sales records showing that they had received an order for standard-set epoxy for the tunnel ceiling, and they maintain that's what they supplied. The company also has documents showing that it warned Massachusetts Highway Department officials in the 1990s that fast-set epoxy was not approved for overhead use because over time, the bolts tended to creep out of their holes.
"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.
"We'll sort it out at trial," Coakley responded.
In a letter sent to Powers last week, the NTSB reiterated that the company had done a poor job of making the crucial difference between fast-set and standard-set epoxy clear in its packaging and literature, the Globe reported.
"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 also asked for a progress update on how the company is improving 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."
No one will go to jail as a result of the single count of manslaughter against the company, returned by a Suffolk County grand jury, Coakley said. However, she 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 extolling 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."
Coakley deserves credit for not giving up on a criminal inquiry that has generated an estimated 1.5 million documents so far, said former attorney general Thomas F. Reilly, who launched the initial investigation into the collapse.
Reilly had said before leaving office that he felt the ceiling collapse was a case of criminal negligence, but Coakley was more cautious, stressing that a conviction against anyone would be difficult to obtain and hiring Ware, a prominent Boston lawyer, to help investigate the case, the Globe reported.