Feds Open Criminal Investigation Into Guardrail Safety Controversy, Officials Say

— -- Federal authorities have opened a criminal investigation related to a controversial highway guardrail system that victims have blamed for dozens of injuries and deaths, according to officials and individuals familiar with the probe.

Agents from the Boston offices of the FBI and the Department of Transportation Inspector General have been interviewing potential witnesses and have subpoenaed documents related to the activities of the guardrail maker, Trinity Industries of Texas, and its dealings with state and federal highway officials, individuals familiar with the probe told ABC News.

A company spokesperson, Jeff Eller, told ABC News that it had not been contacted by the Department of Justice, however, “Should they do so, we will respond openly to all requests for information.”

Officials for Federal Highway Administration, the embattled Department of Transportation agency at the center of the guardrail issue, declined to comment to ABC News on the federal investigation, first reported by Bloomberg News. A spokesperson for the FBI in Boston, Kristin Setera, said, “the FBI cannot confirm or deny the existence of an investigation.” An official with the DOT IG likewise said they could not confirm or deny the existence of an investigation.

But in addition to information provided by sources familiar with the investigation, internal FHWA emails released to ABC News through the Freedom of Information Act show that agents from the DOT IG –- tasked with investigating fraud, waste and abuse within DOT agencies –- had been observing controversial crash tests conducted on the ET-Plus in December and January, though their presence was not publicized.

One email from an FHWA official to a Trinity representative before one of the crash tests conducted in San Antonio, Texas notes, “We won’t have the OIG folks this week,” though the officials had been present previously. Official observer lists compiled and released by FHWA shows two representatives from DOT attended a crash test, although their titles were not included on the list, as other observers’ were.

One of those DOT representatives present at one December crash test has been involved in the current federal investigation, according to individuals with knowledge of the federal probe.

The ET-Plus guardrail system was the subject of an ABC News investigation last year, which examined allegations from accident victims that the guardrail’s design was flawed, making them dangerous to motorists.

The government ordered the eight crash tests after Trinity was found by a federal jury late last year to have committed fraud when it modified the ET-Plus guardrail’s end terminal a decade ago but failed to tell state or federal officials about the change at the time. Prior to the crash test results, 42 states had frozen installation of new ET-Plus guardrails pending the results.

Accident victims and critics say the modified guardrail end terminal can malfunction when struck from the front, sending pieces of metal through the car and potentially killing or dismembering its occupants.

In mid-March, FHWA officials announced that the ET-Plus had passed all eight tests, which would allow it to remain eligible to be used on American highways. At the time, Trinity spokesman Eller said the test results vindicated the company’s long-standing position that its product is safe and performs as intended.

But controversy continued to swirl around the eighth and final test, which critics called a “clear” failure. In that particular test, upon impact, the small test vehicle appeared to be severely damaged on the driver’s side after striking the guardrail. The government’s passing grade of that test spurred outrage in Congress.

"FHWA's unacceptable patterns of inadequate oversight unfortunately continues today," Sen. Richard Blumenthal told ABC News in March.

That final test also fueled questions about transparency and integrity of the crash tests, as well as the relationship between FHWA and Trinity Industries, which Blumenthal called “all too cozy.”In March, six U.S. Senators urged the Government Accountability Office to investigate FHWA following what they called “troubling developments regarding the FHWA’s evaluation of defective ET-Plus guardrail and end terminals.”