Highway Agency Probe Sought in Connection With Guardrail Safety

By Patrick G. Lee | March 4, 2015

Six U.S. senators asked for an investigation of the Federal Highway Administration’s monitoring of roadside safety devices, including a common and allegedly defective guardrail system.

The request on Tuesday is the latest in a series of actions stemming from scrutiny of the system, made by Trinity Industries Inc. Senator Richard Blumenthal, a Connecticut Democrat who joined the request, started questioning the adequacy of the highway agency’s oversight in October, after a jury found that Trinity had defrauded the U.S. government by failing to report changes to the guardrail system for seven years.

Plaintiffs in injury and death suits have linked the system to at least eight fatalities.

Jeff Eller, a Trinity spokesman, declined to comment on specific lawsuits. The company has previously said that it takes “any lawsuit against us seriously and will respond in the appropriate manner.”

The highway agency, known as the FHWA, reviews crash-test data and other information to decide whether a product meets safety criteria, which are set by a coalition of state transportation departments.

States can receive federal money to help pay for agency- accepted devices. The FHWA’s sign-off on Trinity’s shock- absorbing system, first granted in 2000, released hundreds of millions of dollars in federal reimbursements to states.

Lawmakers’ Letter

“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,” the senators said in the letter, which they sent to Gene Dodaro, the head of the U.S. Government Accountability Office. “The developments over the past several months raise serious questions about the effectiveness of the current framework.”

The FHWA welcomes the interest of lawmakers and the potential GAO review, Jane Mellow, an agency spokeswoman, said in an e-mail.

“We look forward to sharing the extensive research and analysis FHWA has conducted surrounding this process,” she said.

It’s alleged in lawsuits that Trinity’s ET-Plus guardrail system — as modified in 2005 — jams up when hit, penetrating crashing cars and their inhabitants instead of helping them come to a stop.

An agency official first learned about the undisclosed changes to Trinity’s guardrail system in 2012, about seven years after they were made.

Product Testing

Based on information from Trinity and its own re- examination of crash-test data, the FHWA determined retroactively that the modified system had been successfully tested in 2005, and that an “unbroken chain of eligibility” for federal reimbursement had existed since then.

Trinity has said that notice of the design changes was “inadvertently omitted” in crash-test documentation sent to the agency in 2005.

The Texas A&M Transportation Institute, a part of the Texas A&M University System, conducted the crash tests of the ET-Plus system in 2005. Researchers at the institute, who helped develop the ET-Plus, stood to gain royalty payments from sales of the product if it passed testing and was accepted by the government.

Investigating Conflicts

The senators’ letter included a request to investigate the mechanisms in place for dealing with conflicts of interest between those that conduct crash tests of roadside safety gear and those with a commercial stake in selling it. The letter didn’t mention the transportation institute or Trinity by name. Neither would comment on the letter.

In addition to Blumenthal, Cory Booker of New Jersey, Edward Markey of Massachusetts, Mark Warner and Tim Kaine of Virginia, and Sheldon Whitehouse of Rhode Island signed the letter. All six senators are Democrats.

In October, the FHWA required Trinity to retest the ET-Plus system, after the jury in a whistle-blower lawsuit found Trinity liable for $525 million for failing to disclose the product changes it made in 2005. The FHWA announced in February that the system had passed the first four of eight government-mandated crash tests. Official results from the final four tests are pending.

Trinity has stopped shipping the product, and at least 42 states and the District of Columbia have suspended new installations of the device pending a final determination of its safety.

Trinity fell 1.4 percent to $33.75 Tuesday in New York trading. The shares have declined 5.2 percent in the past 12 months.

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