Big Dig Epoxy Company Indicted In Death

The company that provided the epoxy blamed in the fatal Big Dig tunnel collapse was indicted Wednesday in the death of a motorist crushed by falling ceiling panels.

Powers Fasteners Inc. was charged with one count of involuntary manslaughter, Attorney General Martha Coakley said. The Brewster, N.Y.-based business was the only company involved in the construction and design of the tunnel to be indicted by the Suffolk County grand jury, Coakley said, stressing the investigation remains open.

Powers Fasteners president Jeffrey Powers said the company, which supplied $1,287.60 worth of epoxy for the project, was being unfairly targeted.

If convicted, the company faces a fine of $1,000, the maximum penalty for a company charged with manslaughter in Massachusetts. No individuals were indicted, although Coakley did not rule out future indictments against individuals.

"For this particular charge, it does not seem to be even close to an appropriate punishment," she said, adding that the criminal prosecution does not rule out possible civil charges against the company that could result in much higher fines.

The decision to indict Powers doesn't mean that any of the other companies involved in the construction of the tunnel, including Big Dig project manager Bechtel/Parsons Brinckerhoff, are off the hook, Coakley said.

A report from the National Transportation Safety Board released last month found the July 10, 2006, collapse could have been avoided if designers and construction crews had considered that the epoxy holding support anchors for the panels could slowly pull away over time.

Milena Del Valle, 39, was killed when 26 tons of concrete panels and hardware came crashing down from a tunnel ceiling onto her car as she and her husband drove through the westbound I-90 connector tunnel. Her husband crawled out of the rubble with minor injuries.

Prosecutors said Powers Fasteners knew the Fast Set epoxy it marketed and sold for the Big Dig project was unsuitable for the weight it would have to hold, but never told project managers.

"They failed to make that distinction clear," said Paul Ware, a special investigator hired by Coakley.

The only reason the company was charged was that "unlike others implicated in this tragedy, we don't have enough money to buy our way out," Powers said in a statement.

Powers said his company filled an order for its Standard Set product for use in the ceiling, and never knew its Fast Set product was used.

"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," he said.

Powers said that in July 1999, before the ceiling installation was done, the company informed Massachusetts Highway Department officials overseeing the Big Dig that the Fast Set epoxy was only intended for "short term loading."

The indictment comes after more than a year of investigations by state and federal agencies. The charge does not directly affect a separate wrongful death lawsuit that Del Valle's husband and daughter filed against Powers, the Massachusetts Turnpike Authority and eight other companies.

Milena Del Valle's daughter Raquel Ibarra Mora, praised the decision to indict.

"We applaud the efforts of the attorney general of Massachusetts to hold people responsible for the loss of our mother," she said in a statement. "We are hopeful that this is the beginning of a process that will find any and all people and/or companies to be held accountable."

Jeffrey Denner, an attorney for Angel Del Valle, said he thinks the grand jury would continue to consider criminal charges against others involved but that it was appropriate to charge Powers.

"They are certainly as culpable as it gets. They are the people who supplied the epoxy," he said.

A manslaughter conviction could have broad ramifications for the company's bottom line.

"It certainly is the kind of history that will stay with them for as long as they are in business," said David White, a Boston attorney who specializes in complex litigation. "One cannot imagine that a company, if it is convicted on a manslaughter charge, would have any success on getting public contracts."

A manslaughter conviction could also be used in the Del Valle family's civil case and could pressure other Big Dig contractors to agree to a civil settlement, he said.

"If there's a conviction in the criminal case, that would be a finding as a matter of law that there was negligence, and that would apply in the civil case," White said.

In the report released last month, federal investigators spread blame for the collapse among the many corporations, consultants and engineers involved in the Big Dig. The agency also faulted the Massachusetts Turnpike Authority for failing to conduct timely tunnel inspections.

The NTSB singled out Powers for providing "inadequate and misleading" information about its Power-Fast epoxy. Tests had shown the epoxy's "Fast Set" formulation to be "subject to creep under sustained tension loading," the report said.

On Aug. 3, the NTSB sent Powers Fasteners a letter recommending they "revise the packaging, for all distributors, of your Power-Fast Epoxy Injection Gel Fast Set formulation to state explicitly that this formulation is approved for short-term loads only."

Del Valle's death prompted tunnel and road closures and sparked a public furor over the Big Dig project, the most expensive highway project in U.S. history.

The $14.79 billion Big Dig, which had an initial price tag of $2.6 billion, has been plagued by problems and cost overruns throughout the two decades it took to design and build. The construction buried the old elevated Central Artery that ran through the heart of Boston with a series of tunnels, ramps and bridges.