Magazine

2005 BOSTONIAN OF THE YEAR

The Whistle-blower: Edward Ginsburg

It’s taken so long — two decades! — and cost so much — $14.6 billion! — that we never dreamed it could somehow not be safe in the end. Then these revolutionary tunnels started leaking. Only when a retired judge went public did we learn the hard truth behind the Big Dig.

Admit it. When you’re driving through the cavernous tunnels of the Big Dig these days, you can’t help but wonder if the drop of water that suddenly appeared on your windshield is just spray from another car or a tiny leak from overhead that - gulp - might mean gushing water is about to burst through. Who hasn’t imagined a mad dash to safety? Blame a silver-haired, buttoned-down former judge from Newton for your unease. He’s the one who blew the lid on the Big Dig’s leak problems. He’s the one who stripped away the project’s veneer of invincibility and may well be, more than anyone, responsible for the work being done to make the tunnels safer and to hold contractors accountable. For all of this, Edward Ginsburg is the one we are naming 2005 Bostonian of the Year.

“It was obvious the [project managers’] policy was not to go public and to try to take care of it,” says Ginsburg, a graduate of Exeter, Harvard, and Harvard Law, who looks every inch of it in his floral bow ties, white shirts, and staid suits. “But my feeling was that it was not being taken care of. I mean, it was going to be ignored or papered over. I just didn’t think that was appropriate. And I wasn’t going to be responsible for somebody getting killed if one of those walls gave out again.”

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No story defined 2005 in the way that a curse-busting baseball team memorialized 2004, yet one saga just would not go away. No story in Greater Boston generated more headlines than how the $14.6 billion tunnel project, after almost two decades of work and one probe after another, could still wind up leaking like the Red Sox front office. But in all the back and forth over blame, all the shifting political alliances from Beacon Hill to Washington, it’s been easy to lose track of who did what and to what effect.

Ginsburg, to be sure, did a lot. And he failed, too. He was unsuccessful in lightening the wallet of behemoth Bechtel/Parsons Brinckerhoff, the design and construction management consultant that since 1985 has sucked up well over $2 billion in Big Dig largesse (and still counting). Nor did Ginsburg have much luck squeezing money out of the smaller design firms on the grotesquely overbudget and behind-schedule project. Allies deserted him. And, finally, the Massachusetts Turnpike Authority, which oversees the Big Dig and hired Ginsburg in the first place, let him go at the beginning of this year. But in his parting salvo, a clearly annoyed Ginsburg then unleashed a blistering report accusing project managers of shutting down the flow of data to his team investigating the tunnel leaks. His report also ripped state officials for an overly trusting attitude toward Bechtel/Parsons Brinckerhoff. “They were all married to each other,” Ginsburg said at the time.

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Ultimately, it was Ginsburg going public that brought greater scrutiny of the project. He said publicly what insiders at the project had considered fit for their ears only - namely, that the Interstate 93 tunnels were riddled with leaks. He publicly presented paperwork showing just how poorly managed at least one aspect of the project had been. And he arranged for independent engineering experts to shadow project managers as they shined flashlights in the tunnel roof rafters, investigating leaks. That panel-by-panel inspection may not have happened if the leaks had not been revealed.

Ginsburg pushed over the first domino knowing he might be flattened in the process. The national media grabbed on to the irresistible story. And, indeed, in the storm of recrimination that followed, Ginsburg, his team of lawyers, and consultants Jack Lemley and George Tamaro were swept out of the sprawling sandbox that is the Big Dig. And the dominoes kept falling. Reawakened legislators demanded the Turnpike Authority’s assurances that the tunnels, while flawed, were robustly built and safe. Bechtel/Parsons Brinckerhoff publicly apologized for some mistakes and pledged to cover its fair share of repair costs.

Gradually, largely through Ginsburg’s efforts, the public came to understand the two types of leaks. There were the hundreds of small ones along the length of the I-93 tunnel roof. These had been in abundant evidence since 2000 - some of them stubbornly reopening time and again after being patched - but never disclosed to the public. Then there were the walls. On September 15, 2004, an 8-inch column of water burst through one of the walls of the northbound tunnel. Managers quickly characterized it as almost certainly isolated. But the public and press, whipped up by Ginsburg’s disclosures, began to learn of the ever-increasing number of similar defects. At present count, 188 such “isolated” defects in the walls have been identified, all requiring expensive repair. Look next time you’re driving the tunnels: Those unsightly gaps in the tiles are the ongoing repairs.

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Whether the Turnpike Authority would have conducted a close examination of the walls without Ginsburg’s embarrassing revelations is questionable. Keep in mind that the September 2004 breach wasn’t even the first penetration of the 3-foot-thick walls: Eight months earlier, water had flowed through a nearby section - something Big Dig managers had not disclosed.

It was in 2003 that Ginsburg, after 25 years in judicial robes, had jumped at the chance to investigate the Big Dig. At the time, the Turnpike Authority needed a shot of credibility to counter reports that there had been virtually no efforts at accountability on the project. But as he pursued recompense, Ginsburg, accustomed to the imperatives of the Middlesex Probate and Family Court bench, grew frustrated with Bechtel/ Parsons Brinckerhoff and its tenacious lawyer, David Hatem. Ginsburg’s strategy was to get the smaller design firms supervised by Bechtel/Parsons Brinckerhoff to admit to mistakes and cooperate in a megasuit against Bechtel/Parsons Brinckerhoff. But so long as the firms maintained a common defense, Ginsburg was going nowhere.

He then tried to go straight after Bechtel/Parsons Brinckerhoff. In a lawsuit, Ginsburg accused the consortium of failing to inform the state of the project’s true cost. Recovery would be predicated on proving that Bechtel/Parsons Brinckerhoff had long known that the cost would be upward of $14 billion but concealed it to keep the job going and profits flowing. Ginsburg demanded the return of its profit, estimated at about $150 million. He and lawyers William Horne and Richard Goldstein ultimately did settle with one design firm, which cut a $3.5 million check to the state for its errors. (That firm was promptly sued by the project’s insurers.) But in the end, Ginsburg was cashiered.

With the former judge off the case, Massachusetts Attorney General Tom Reilly, now a gubernatorial candidate, took over the cost-recovery efforts. Reilly quickly shelved Ginsburg’s $150 million suit. Since then, he’s made few public statements on his overall strategy.

“We didn’t have a choice, at least not in my conscience,” says Ginsburg, 73, of why he went public. “I thought, you know, this would be out and that it would then have to be done right.”

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