Senators Want Investigation Into Federal Agency Overseeing Guardrail Safety

Lawmakers cite "questionable testing" amid guardrail controversy.

ByCindy Galli
March 03, 2015, 3:50 PM

— -- Half a dozen U.S. Senators are requesting a government investigation into the federal agency charged with keeping America’s highways safe, amid concerns over a popular guardrail system linked to multiple deaths and dismemberments across the country.

Sens. Richard Blumenthal, D-Conn., Cory Booker, D-N.J., Ed Markey, D-Mass., Mark Warner, D-Virginia, Sheldon Whitehouse, D-Rhode Island, and Tim Kaine, D-Virginia, sent a joint letter today to the Government Accountability Office, which audits and investigates federal agencies, following what they called in a press release “troubling developments regarding the FHWA’s evaluation of defective ET-Plus guardrail and end terminals.”

“In recent months, we have witnessed a host of troubling developments that call into question the safety of certain roadside devices known as highway guardrail end terminals,” the letter reads. “We are committed to looking closely at this issue.”

“FHWA, as the guardian of federal taxpayer dollars, has a unique and vital role and responsibility in ensuring that roadside hardware has been properly vetted for safety purposes and is eligible for reimbursement with federal funds,” it says.

The ET-Plus guardrail system, which is made by Trinity Industries in Texas and used in states throughout the U.S., was the subject of an ABC News "20/20" investigation last year. ABC News obtained an internal Trinity email from 2005 in which a Trinity official estimated that making a modification to its widely-used guardrail system -- reducing a piece of metal in the end terminal from five inches to four -- would save the company $2 per end terminal, or $50,000 a year.

The company made the change that year, but didn’t notify the FHWA. The modification went unnoticed by the federal agency until 2012 when questions were raised by a competitor of Trinity’s. The FHWA then approved that modified design for continued installation.

But critics claimed the modification made the guardrail more dangerous in certain types of crashes and late last year Trinity was found to have committed fraud by failing to notify government officials about the guardrail modification earlier. Now 42 states have ceased installing the ET-Plus pending the final report on new government crash tests conducted in December and January.

Last month, Sen. Blumenthal told ABC News the FHWA “cannot be considered blameless” in the ongoing controversy.

“The Federal Highway Administration has in effect disregarded the claims about lack of safety here, it has condoned sham testing and paid lip service to testing. It bears a major part of the responsibility for the crashes, injuries and some deaths that have occurred,” Blumenthal told ABC News.

In their letter, the Senators are asking the GAO to address a number of issues, including how transparent FHWA has been in the testing of highway devices for safety.

While the letter notes serious safety concerns with the controversial guardrail as prompting the Senators’ action, it questions more generally the structure of the agency itself and its ability to properly implement one of its primary purposes.

“The developments over the past several months raise serious questions about the effectiveness of the current framework for evaluating the reliability and integrity of roadside hardware products, including guardrail end terminals,” it reads.

At a Congressional hearing today, Blumenthal highlighted the letter to Department of Transportation chief Anthony Foxx. The FHWA is an agency within the DOT.

Jane Mellow, FHWA spokesperson, said of the letter, "We welcome the interest of Members of Congress and the GAO review of the process for, and the FHWA’s role in, determining whether roadside safety devices meet the safety criteria adopted by AASHTO and followed by state DOTs. We look forward to sharing the extensive research and analysis FHWA has conducted surrounding this process."

The letter does not mention Trinity Industries by name.

In defense of its product, Trinity has continually noted that it has an “unbroken chain of eligibility” with FHWA, meaning the device has met safety criteria in order to be eligible for federal aid reimbursement when sold to states for use on highways.

Of the new ET-Plus crash tests, the government said it passed its first four crash tests, but the analysts have not released the results of the last four. It’s the very last one, the eighth, that has proved controversial already after critics said the crash appeared to severely damage the driver’s side of the car.

PHOTO: Helicopter footage shows the eighth crash test of the ET-Plus guardrail system.
Helicopter footage shows the eighth crash test of the ET-Plus guardrail system.
ABC KSAT San Antonio

The Senators’ press release today linked to an ABC News report about questions surrounding the eighth and final crash test, video of which “has raised considerable concern by members of Congress and their constituents,” the release reads.

Blumenthal previously told ABC News he found the video “hideously shocking.”

“Long-term, we're going to insist on an overhaul of the Federal Highway Administration's standards, methods and approach to testing because this experience, particularly the latest test showing shocking damage to the passenger's side of the vehicle indicates that there is a need for a review of this agency's performance and its approach to safety,” Blumenthal said.

Trinity disputes what it calls conclusions made far too early surrounding the eighth test, and a spokesman told ABC News any comments other than what is released by FHWA after its evaluation is “pure speculation.” Results of the final four tests are expected to be released in the coming weeks.

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