From the bench, the bow-tied judge looked over at the attorney’s table. “I need a plumber266,” he quipped, “I don’t need a lawyer.” In fact, Armando David Mazzone had himself been playing the role of master plumber as much as credentialed jurist during his fifteen years overseeing the Boston Harbor cleanup case. Whenever relations among the various agencies and actors involved in the cleanup became hopelessly clogged, the judge would step in. Artfully using his federal power to nudge and cajole, he somehow had always found a way to clear the obstruction.
With the tunnel project now at a complete impasse, and the only communication between the MWRA and Kiewit resembling the huffy indignation of divorcing spouses, Doug MacDonald had maneuvered to get both sides before the judge. In his time as a defendant in Mazzone’s courtroom, MacDonald had become a big admirer of the man, a smart but self-effacing Harvard-educated son of Italian immigrants. The lanky guy known as Stretch had been a star tight end in high school, but his role quarterbacking the harbor cleanup case had given him a new nickname: the Sludge Judge267. By the time of this hearing in March 2000, David Mazzone was seventy-one years old, refusing to retire until he could close the case.
The hearing began with a briefing268 by the MWRA’s team on the two options for ventilating the tunneclass="underline" either the reinstallation of a giant ventilation bag line or the offshore venting of the tunnel from the IB-909 jack-up barge. An engineer for the MWRA269 explained that, since the accident, the tunnel had no lights, no ventilation, and about four million gallons of water seeping into it every day—the reason for Kiewit’s “water too wet” claim against the MWRA.
Whenever those safety plugs could be removed and hundreds of millions of gallons of treated sewer water could start flowing through the tunnel every day, the hydraulics of that eastward flow would render the current seepage insignificant. But until then, all that water seeping in would naturally continue to flow westward back to the shaft, where it had to be pumped up to Deer Island and then back into the sea.
Installing a new bag line270, the MWRA engineer told the judge, would require some kind of “scissors car,” a truck with staging that could be elevated enough to allow workers to hang the line from the ceiling of the twenty-four-foot-diameter tunnel. As they had with the installation of the first bag line, crews would ventilate the tunnel in sections, bringing air with them as they moved east. Doing so would also require a new power line with transformers or powerful generators. They estimated it would take small crews five or six months to install these services and establish free air. Workers could then yank out the remaining fifty-two safety plugs, before spending months more to remove all the utilities once and for all.
The offshore option would involve fabricating what amounted to an enormous steel “straw,” which would be lowered into the sea to make a vertical airtight and watertight connection to diffuser head number 3 on the seafloor. Once the connection was made, crews would use giant fans on the jack-up barge either to blow enough good air into the tunnel or to suck enough bad air out, drawing fresh air from the Deer Island shaft.
“How do you get air out nine miles271?” the judge asked. “Is there a pump strong enough to suck air in from the tunnel shaft?”
The engineer explained that, in theory, the answer was yes, but they still had a lot of number crunching to do.
As for how long this offshore option would take, the MWRA estimated about three months to mobilize and get the tunnel ventilated and then three weeks for crews to get the fifty-two plugs out. The biggest difference was that once the plugs had been pulled, the offshore option would involve almost no cleanup. They’d just pull up the giant steel straw and leave.
The MWRA’s lawyer said time dictated that they settle on one option, and the agency elected to pursue the offshore plan. He told the judge that the MWRA saw enough promise in it that the agency had already cut a check for three-quarters of a million dollars to reserve the IB-909272. Despite their confidence in this route, the MWRA was seeking the judge’s intercession because relations with Kiewit were in such a bad state. “These big contractual issues do loom over us,” the lawyer told the judge, “and particularly the question of who will own—who will be responsible for the work.” With that, Bob Popeo, Kiewit’s high-powered lawyer, stood up to address the judge. Popeo was a partner with the firm Mintz Levin, and his colleague had been the same lawyer-lobbyist who, years earlier, had put together the devastating-but-shelved PowerPoint presentation about the tunnel plugs.
Even before Popeo began, though, the judge shifted into action. From the gallery, MacDonald watched with delight as the distinguished federal jurist adopted the humble approach of a simple country judge. “I’m not quite sure what to expect from Mr. Popeo,” the judge began, “except I’m always flattered to see him.” The judge said that, through the years, “the less I have to do with the project, the better it works.” As if it needed repeating, he stressed that the job was supposed to be done by now. “We should have turned the key on this project, and you’d have seen the last of me, and I can’t tell you how much I was waiting for that day.” Then he hammered home his point. “Mr. Popeo,” the judge said, “I really earnestly need your help. I’m asking for it.”
The approach was classic Mazzone, solicitous rather than scolding. How could anyone deny such a reasonable plea for help? “You will have it, Your Honor,” Popeo replied.
Still, Popeo hadn’t risen to his level of success by allowing himself to get outmaneuvered in the courtroom. While MacDonald had orchestrated this hearing, Popeo was going to use it to get on the record all the failings by the MWRA and its consultants that Kiewit felt had forced the doomed diver plan and thrown the project into crisis. “This wasn’t its choice,” Popeo said. Yet by reluctantly going along with the plug-pulling sequence insisted on by the MWRA, the lawyer said, Kiewit somehow found itself holding the bag.
“I can assure you, Your Honor,” Popeo said, “that we’re not going to be subjected to that again. The plan’s going to be safe. We’re going to believe it’s safe. Everybody is going to sign on to it or we’re not going to do it.”
Stressing that the offshore option had never been tried before, Popeo cited a host of unknowns273. After they sank the steel straw down to the seabed, he asked, “Will the tunnel handle it?” Resurrecting the contentious matter at the heart of the memo wars, he asked, “Who owns the risk if there’s damage to the tunnel when you sink that down? Who owns the risk if this doesn’t work?”
Despite all the criticisms that Popeo managed to level at the MWRA, for MacDonald, the takeaway line was the lawyer’s comment to the judge that “the contractor intends to do the work.” That message was decidedly different from the one the agency had been hearing from Omaha prior to the hearing.
Still, the question about risk hung in the air. After all, a distorted concern over risk had laid much of the groundwork for the diver-mission disaster. The desire of all of the project’s players to insulate themselves from liability and to off-load risk onto other parties had made their relationships thoroughly dysfunctional. Unwittingly, that dysfunction had greatly elevated the risk of a bad outcome for everyone involved.
266 (Chapter 13, note 14)
“I need a plumber,”:
267 (Chapter 13, note 15)
the Sludge Judge: Tom Long, “A. D. Mazzone, Judge Who Led Harbor Effort, Dies at Age 76,”
268 (Chapter 13, note 16)
The hearing began with a briefing:
269 (Chapter 13, note 17)
An engineer for the MWRA: Charlie Button, who had left his post as the MWRA’s construction point man to work for a private company, had by now returned as a consultant to help the agency find a way out of its plug jam. As he took the stand, the unassuming Button was nervous. Judge Mazzone startled him with a question, “I don’t have to put you under oath, do I, Mr. Button?” and then followed that up with a comment, “You went to Everett High School.” Button’s nerves tightened until he saw the judge smile. Then he recalled that the judge had graduated from the same school. Meeting the judge’s grin with one of his own, Button said, “Yes. We learned to tell the truth.”
270 (Chapter 13, note 18)
Installing a new bag line:
272 (Chapter 13, note 20)
three-quarters of a million dollars to reserve the IB-909: Ibid., 36.