-- The Federal Highway Administration released details today for a plan to crash test the ET-Plus guardrail end terminal, which more than half the states in the country have stopped installing in the wake of what critics said was a cover-up of a dangerous change in the guardrail’s design made nearly a decade ago.
Trinity was notified by the FHWA last month that it was to submit a plan to crash test the ET-Plus or the agency would strip its eligibility to be sold to all states. Already, more than 30 states have already banned the end terminal, with one state, Virginia, saying it is making plans to remove the guardrails entirely from its highways. The most recent state to join the ban, California, announced their plans to stop installing the ET-Plus system today.
The crash test plan, released publicly by the FHWA after revisions, states testing is to begin next week at Southwest Research Institute in San Antonio and should be completed by the end of January 2015, what the company calls an “ambitious” schedule.
On the facility’s website, Southwest Research Institute is called “one of the oldest and largest independent, nonprofit, applied research and development organizations in the United States.” In its proposal, Trinity acknowledged that it has worked with Southwest Research in the past to develop highway products but stated that the patents on those products have expired and the company is no longer paying royalties to the facility.
The final plan accepted by the FHWA allows agency employees to inspect the installation and witness the crash test, but not record the tests with cameras or video equipment, “with the exception of those used by [Southwest Research] staff.”
FHWA officials said Trinity has agreed to have federal engineers and representatives of state departments of transportation present, but has left the decision to involve the media up to the company.
“What we have essentially communicated to Trinity is our commitment to be as transparent as possible with this entire process,” said FHWA Acting Administrator Greg Nadeau in a call today with reporters.
The demand from the FHWA for crash tests came a day after a Texas jury ruled that Trinity had defrauded the government by altering an approved guardrail end terminal design in 2005 and then failing to tell federal or state transportation departments about the changes until questions were raised in 2012. Trinity was ordered to pay $175 million in damages -- a figure expected to triple by statutory mandate.
Should the ET-Plus not pass the eight scheduled crash tests, the FHWA can strip its ineligibility for use across the country. Federal officials today estimated there are 200,000 ET-Plus devices currently in use on highways.
“This is pretty much pass-fail,” said Nadeau.
The ET-Plus System was the subject of an ABC News "20/20" investigation in September that looked into allegations from crash victims that the modified guardrail can malfunction when struck from the front by their vehicles. Rather than ribboning out and absorbing the impact as designed, the guardrails "locked up" and speared straight through the cars, severing the motorists' limbs in some cases.
Lawyers for the plaintiff in the Texas case, Josh Harman, expressed concern about any planned crash tests to the FHWA and have asked to be involved in discussions prior to the testing of the ET-Plus.
"While we believe crash testing is important, we have several concerns about the protocol outlined by your office for testing and... we believe that testing alone would be insufficient to determine whether the ET-Plus should be eligible for federal reimbursement," wrote attorney George Carpinello.
Dean Sicking, a renowned guardrail engineer who authored manuals for crash testing -- and who also testified against Trinity Industries in the federal trial -- wrote to the agency in detail, questioning the type of tests it may conduct, concerned that there has been an "ongoing deception of the FHWA" by Trinity Industries.
Sicking says he recently received a three-line letter from the FHWA in response, saying it “will review the information you sent to us very carefully.”
“It clearly shows they didn’t consider my input. And I clearly got the message they didn’t want it,” Sicking told ABC News today of the FHWA’s plan. “This stuff should not be done behind closed doors and in the dark of night.”
Trinity has maintained the guardrails are safe, noting that the FHWA approved the modified guardrail for use after questions about the modifications were raised in 2012. The company plans to appeal the Texas verdict and has previously told ABC News it has a "high degree of confidence in the performance and integrity" of the ET-Plus system.