-- After analyzing dozens of real-world car crashes, a federal task force said today that a controversial guardrail system blamed by victims for gruesome injuries and deaths is not uniquely dangerous and could stay on American highways.
The finding comes as the maker of the guardrail system, Trinity Industries, faces a federal investigation into its dealings with state and federal safety officials and is fighting a state Department of Transportation over new crash tests for the embattled guardrail system.
While Trinity hailed the finding, saying “the joint task force’s conclusions reinforce what we have always stated” concerning the company’s confidence in the ET-Plus system, critics, including Sen. Richard Blumenthal, blasted the FHWA for allegedly “looking the other way.”
“More than three and a half years since states first raised concerns about ET-Plus guardrails and nearly one year since a jury reached a bombshell half-billion-dollar verdict against the ET-Plus’s manufacturer for fraud, FHWA still inexplicably denies that adequate evidence exists to remove these potentially-dangerous devices from our roads," said Blumenthal, D-Conn., a member of the Senate Committee on Commerce, Science, and Transportation. "Despite the mounting, irrefutable evidence, FHWA continues to look the other way, an approach that endangers our roads and imperils our drivers. FHWA’s continuing safety failure is a reason why some states are starting to re-test ET-Plus devices on their own – a troubling vote of no confidence in this agency."
The Federal Highway Administration (FHWA) and the American Association of State Highway and Transportation Officials (AASHTO) had created a task force to investigate crashes in which vehicles hit guardrail end terminals after it was revealed in 2012 that one of the guardrail makers, Trinity, had modified one of its end terminal models, the ET-Plus, years before and failed to notify state or federal officials as required. One of the modifications, making a five-inch wide piece of metal four inches, was estimated by an employee to save the company $50,000 per year.
In the years since, the modified end terminals were blamed by accident victims and critics for gruesome injuries and deaths after critics alleged that when hit a certain way, the tweaked guardrail would “lock up” and spear straight through the vehicle, rather than absorbing the impact as it was designed.
The modified end terminals, which were the subject of an ABC News “20/20” investigation last September, were already installed next to some highways across the country by the time a Texas court found Trinity had committed fraud and ordered it to pay more than $600 million in damages and penalties.
Late last year and early this year the FHWA conducted additional crash tests with the modified guardrail and said they passed, despite controversy of over one test that critics called a “clear” failure.
Today the FHWA/AASHTO task force said that while all the guardrail end terminal models it analyzed from real-world crashes, including those from other guardrail makers, had “performance limitations,” the ET-Plus was not singled out and the task force said further testing was unnecessary.
“They did find some performance limitations, but the performance limitations that they found were similar for all devices,” FHWA Executive Director Jeff Paniati told reporters.
In part, the limitations dealt with the installation and maintenance of the guardrails, as well as issues with all of the guardrail types when it came to vehicles hitting the end terminals at various directions and angles -- impacts different than those for which the guardrails are crash tested. The task force made eight recommendations, including moving on to the “next generation of guardrail terminals” and conducting “in-service performance evaluations” of existing terminals, but did not recommend removing any guardrails from the roads. The task force said it started by looking at more than 1,000 crashes, but determined 161 of those were worthy of performance analysis -- 15 "key" instances of which "highlighted performance limitations."
After the previous controversial crash tests, questions were raised by lawmakers as to whether FHWA officials had become “too cozy” with Trinity, to use Blumenthal’s phrase. In March, six U.S. Senators urged the Government Accountability Office to investigate the FHWA, and the next month ABC News reported federal authorities had opened a criminal investigation into Trinity’s dealings with state and federal officials.
One member of the task force, FHWA official Nick Artimovich, was the official who originally accepted Trinity’s explanation about the guardrail modification and determined the changed version was safe enough to be used on American highways.
Artimovich had once expressed concern “that it is hard to ignore the fatal results,” but after Trinity officials asked for what they described as an “intimate meeting,” Artimovich decided there was no problem with the new guardrail terminals.
For the original “20/20” report, when ABC News Chief Investigative Correspondent Brian Ross asked Artimovich about the safety of the guardrail system, Artimovich said, “Safety is a relative matter.”
Steven Lawrence, an attorney involved in litigation against Trinity on behalf of accident victims, told ABC News he suspects the task force is white-washing troubles found in the ET-Plus by making it a “class issue.”
“The FHWA could not avoid the obvious fact that there were performance issues with the ET-Plus, however their solution was anything but a recall,” he said. “They’re saying, ‘It’s not a problem that we were defrauded, we just need to accelerate better standards for the whole class.’”
Keith Cota, New Hampshire Department of Transportation Chief Project Manager and a member of the FHWA/AASHTO task force, defended the independence of the task force’s findings today, noting that a majority of the members of the task force were not FHWA officials.
“It was an independent review... We feel there is no conflict of interest given the findings of the task force,” Cota said.
Paniati declined to comment further on the FHWA’s relationship with Trinity.
The finding today comes shortly after Trinity exchanged forceful letters with Virginia’s Department of Transportation, which has been aggressively investigating the use of the ET-Plus on its roads. Late last month ABC News reported the VDOT planned to conduct its own crash tests with the ET-Plus, but Trinity recently complained in a letter that VDOT had not given the company the details of the crash test planning, and demanded the VDOT do so.
“In response to the various other demands, assertions and things said in your letter, I need to make the point that Virginia is a sovereign entity, not subject to direction from Trinity,” Richard McGrath, Senior Assistant Attorney General in Virginia, said in response Thursday.
The federal task force said today that while it did not recommend any guardrails be pulled from the highways, each state can decide for themselves what to do from here. Trinity officials have maintained that the company's guardrails are safe and that the previous crash tests support their position. Trinity officials have said the company plans to appeal the Texas verdict.