All this seemed to explain why Harald and Drybanski had gone overseas to find the mixers, resulting in the Danish-made units getting tied up in customs and arriving late to Deer Island. Harald had been unable to locate an approved mixer in the United States because no domestic manufacturer produced mixers for this kind of use. Circumventing that problem by going overseas suggested to McCauley that Harald hadn’t just been in over his head. In her view, he had301 shown willful disregard for the lives of the divers. How else to explain the decision to send them into the darkness without telling them their lives would depend on a device designed to package supermarket burritos and cheese?
Confident that she had demonstrated probable cause, McCauley submitted her report to the district attorney’s office.
Around the same time, the Norwesco fax machine in Roger Rouleau’s Spokane office started to whir. After wrapping up its own investigation, OSHA was now issuing a raft of citations and recommending a total of $410,900 in fines. Norwesco received the biggest ticket302, at just over $200,000. Kiewit and Kaiser each received303 $91,000 in fines, and Black Dog Divers $25,400. OSHA alleged a series of violations by all four companies, ranking them on an agency scale of seriousness, with “willful” being the most severe. OSHA said the breathing system the divers were given was “woefully inadequate,” and the agency slapped Norwesco with eleven “serious” and two “willful” violations, the latter for designing and building a deficient respirator system and failing to remove workers in the face of repeated problems with it. The deficiencies OSHA cited included inadequate hoses and mixers, inappropriately duct-taped fittings, disabled alarms, and the absence of an in-line analyzer. Meanwhile, Kiewit and Kaiser each received one “willful” violation, for failing to provide mechanical ventilation in all work areas in the tunnel, and three “serious” violations, for failing to provide adequate lighting and communication. Black Dog received thirteen “serious” violations, for various failures involving oversight of the divers.
As he looked over the citations, Roger was incensed. Of course, the Norwesco owner had expected some kind of slap from OSHA. But it was the agency’s tone of astonishment that rang hollow with him. The citations in no way acknowledged the fact that Roger and Kiewit officials had traveled to OSHA’s office a year before the mission began to brief officials on their plan. And yet no one from the agency had raised any red flags. As he scanned the citations now, Roger’s eyes stopped on the signature at the bottom. It belonged to Brenda Gordon, OSHA’s area director.
The name sounded familiar. Then it dawned on him: I met that gal back in 1998. At one point during Roger’s meeting with OSHA prior to the mission, a woman had walked in to turn down the office air-conditioning, which was controlled by a thermostat in the conference room. The OSHA assistant director who’d been running the meeting then introduced her to Roger and the Kiewit officials, explaining to his boss that the team was there to share their plugpulling plan for the Deer Island tunnel. She chatted with them briefly before leaving the room. Roger thought: And now she’s showing shocked indignation?
The OSHA fines didn’t represent a conclusion so much as an opening salvo. All four of the cited companies were allowed to contest the fines, and all four of them quickly signaled publicly304 that they would. To Dan Kuhs, the union business agent, that response was just further evidence of how shameful things had become. “You have two fatalities,” he told a local newspaper, “and everyone involved seems to think they have no responsibility.” He pinned more of his hope on the state police’s criminal investigation.
As far as Tap Taylor was concerned, the fines against Black Dog were entirely unfair. During the project, Tap had felt belittled by Harald and ignored by Roger and had seen the job claim the life of his best friend and threaten the existence of the business they had built together. Although the comparatively lower fines that OSHA had levied against Black Dog acknowledged his company’s lesser role, he was adamant that he had done nothing but provide labor for the job. He felt he was a victim, not a perpetrator.
Meanwhile, Roger, who had taken Kiewit’s advice to hire one of the top white-collar defense lawyers in Boston, now engaged a respected diving specialist as a consultant. He began an e-mail round robin with that consultant as well as Harald in his effort to mount an aggressive defense.
In March, eight months after the deaths of Billy and Tim, the Suffolk County district attorney’s office announced its decision: it would not be bringing criminal charges against Harald Grob or anyone else in connection with the case. McCauley couldn’t hide her frustration and disappointment. The deeper she had dug, the more convinced she had become that it had not been an accident that killed Billy and Tim. “The results were completely foreseeable,” she argued. “To suggest it was some accident is absurd.” Given the black and white prism through which she viewed the world, that conclusion naturally led her to another one: “If it wasn’t an accident, and people died, somebody should be held accountable.” Prosecutors in the DA’s office offered several reasons for declining to charge Harald. They felt that because he hadn’t been up to the challenge of putting the system together, he didn’t realize the extent to which his actions were endangering the divers’ lives. Also, they felt that because the divers had survived despite all the problems on Monday and Tuesday, it was reasonable for Harald to expect the same result when he sent them back in on Wednesday. Finally, because so many other players owned a share of the responsibility for the deaths, going after only Harald was a risky proposition.
McCauley had enormous respect for the prosecutors on the case, and she knew how difficult their task would have been in getting a jury to convict beyond a reasonable doubt. Still, she thought they might have been overthinking things. “It’s not that complicated,” she would later explain. “The guy knew that if something bad happened in the tunnel, those guys would die. And yet he went ahead. He didn’t send himself into the tunnel, did he?”
Of all the reasons the prosecutors cited for not filing charges, she agreed most with their reluctance to pin everything on Harald. She was personally appalled that so many seemingly bright people, working for so many large corporations and agencies, had let the situation deteriorate to the point where they needed to call in Harald, then had signed off on what was clearly a half-baked plan. She came to believe the managers should have had the sandhogs remove the plugs while the ventilation bag line was still in place, then instituted a policy of evacuating workers whenever a bad storm was forecast, when the risk of an errant anchor dragging along the seafloor would have been higher. If that sensible compromise had become obvious to a cop like her, why had it eluded the administrators and engineers who were in charge? Still, McCauley felt the fact that others owned some responsibility shouldn’t diminish Harald’s far larger share. While she could see how this shared culpability might lead to the prosecution of more parties—both individuals and corporate entities—she did not want it to be used as a justification for not charging anyone.
Despite the blow of the district attorney’s decision, there was one promising development for McCauley. Thanks largely to union pressure from Local 56, the case was being turned over to the state attorney general. Maybe that office would find a more successful path to prosecution.
301 (Chapter 14, note 22)
In her view, he had: Contributing to McCauley’s thinking was a letter from Airgas Northeast safety manager Tim Reading, who provided a record of Harald’s contact with his company and Jerry Anderskow of supplier A-L Compressed Gases. Reading stressed that Airgas was never informed that its liquid gases would be used to provide breathable air. In her report McCauley wrote that Reading “indicated that the gas supply industry in the United States does not sell liquid gas for the producing [of] breathing air in the field. This is why the mixer that was purchased by Norwesco was not sold in the United States.” McCauley, “Sudden Death/Deer Island,” 14. Also, Anderskow, in his May 16, 1999, memo to Harald, wrote that after consulting with the nation’s largest manufacturer of cryogenic storage systems, “We cannot find a breathing air approved mixer/blender.” Harald later told plaintiffs’ lawyers that’s when he took to the Internet and found the overseas device.
302 (Chapter 14, note 23)
Norwesco received the biggest ticket: OSHA Boston Area Office South to Norwesco Marine, Inc., Citation and Notification of Penalty, Inspection site: CP-282 Deer Island, issuance date January 14, 2000.
303 (Chapter 14, note 24)
Kiewit and Kaiser each received: OSHA Boston Area Office South to Kiewit-Atkinson-Kenny, Joint Venture, Citation and Notification of Penalty, Inspection site: CP-282 Deer Island, issuance date January 18, 2000; OSHA Boston Area Office South to Black Dog Divers, Inc., Citation and Notification of Penalty, Inspection site: CP-282 Deer Island, issuance date January 14, 2000.
304 (Chapter 14, note 25)
all four of them quickly signaled publicly: Tom Walsh, “4 Companies Appeal Worker Deaths Fines,”