SCHUMER, BLUMENTHAL RAISE RED FLAGS ON FHWA TESTING OF POTENTIALLY-DEFECTIVE GUARDRAILS

Today, U.S. Senators Charles E. Schumer and Richard Blumenthal (D-Conn.) wrote Gregory Nadeau—Acting Administrator of the U.S. Federal Highway Administration (FHWA)—to express ongoing concerns regarding the FHWA’s evaluation of defective ET-Plus guardrail and end terminals.

The Senators each wrote Nadeau late last year urging the FHWA to ensure thorough and adequate testing of ET-Plus guardrail and terminals. The Senators found the FHWA’s response and public comments to these concerns to be inadequate and are asking the administration to take immediate action to address potential shortfalls in oversight:

"In light of the lack of clear information from FHWA, we find it difficult to maintain confidence that your agency is taking proper action to ensure that the device meets the highest safety standards,” the senators wrote. “In order to rest assured that ET-Plus guardrail end terminals are safe, we strongly urge FWHA to ensure that testing – which is now underway in Texas – use the most up-to-date methodology, be conducted on the products as they actually exist and perform on our roads, and be fully open and transparent. The testing now underway fails on all of these fronts, so we are writing to reiterate our concerns about apparent flaws in the process and ask you to rectify them immediately."

The letter asks the FHWA not only to ensure that testing of these guardrails relies on thorough and modern protocols, but also immediately to release specifications of models being tested, open testing to the public, and inform the Senators of future plans to test the device in the field to ensure its safety on our roads.

A full text of the letter is below:

 

Dear Acting Administrator Nadeau:

 

Several weeks ago, we wrote with grave concerns about the Federal Highway Administration’s (FHWA) efforts to evaluate the safety of ET-Plus guardrail end terminals (ET-Plus).  Although we appreciate your providing responses, after reviewing them we believe that they, along with public comments provided by your agency, fail to answer many of the questions we have raised.  In light of the lack of clear information from FHWA, we find it difficult to maintain confidence that your agency is taking proper action to ensure that the device meets the highest safety standards.  In order to rest assured that ET-Plus guardrail end terminals are safe, we strongly urge FWHA to ensure that testing – which is now underway in Texas – use the most up-to-date methodology, be conducted on the products as they actually exist and perform on our roads, and be fully open and transparent.  The testing now underway fails on all of these fronts, so we are writing to reiterate our concerns about apparent flaws in the process and ask you to rectify them immediately.

 

As you know, the ET-Plus is manufactured by Trinity Highway Products, LLC, and by many accounts there are at least 200,000 of these devices on our nation’s roads.  Before purchase and installation, they are supposed to undergo rigorous testing, but for many years serious questions have persisted about the sufficiency of past testing and whether the altered dimensions of the device rendered them unsafe compared to previous versions.  These questions were dramatically underscored late last year in a $525-million jury verdict that found Trinity defrauded the government by failing to disclose modifications, selling taxpayers a false bill of goods in the process.  Now, many years after the questions first surfaced, FHWA is asking Trinity to conduct what FHWA deems “additional testing.”  FHWA has a responsibility to assure the public that this testing is rigorous and accurate.

 

First, it is critical that testing now underway use the most credible and up-to-date methodology.  FHWA is allowing Trinity to use the National Cooperative Highway Research Program Report 350 (NCHRP 350) framework, which was the standard in place in 2005, the year that states were given what now appears to be insufficient assurance that the ET-Plus was thoroughly vetted and could be purchased using federal dollars.  In January 2011, FHWA began relying on the more modern and rigorous Manual for Assessing Safety Hardware (MASH) “for any existing safety hardware undergoing significant changes on or after that date.”  FHWA contends that it first learned that Trinity had reduced the ET-Plus’ feeder channel from five inches to four inches in January 2012.  It should have immediately been clear to FHWA that this constituted a “significant change,” rendering the ET-Plus with a four-inch feeder channel an entirely new and unapproved product.  Any such product should have undergone new testing under the standard currently in use at that time, which in 2012 was MASH.

                                 

Even if FHWA believes this is an older product that should be grandfathered in under the discarded NCHRP 350 methodology, there are many other compelling reasons why FHWA should mandate use of MASH during the current tests.  MASH requires that the ET-Plus be crash-tested from a variety of vehicle impact angles, and that it be tested for any known “window of vulnerability” and be scrutinized to “maximize the risk of test failure.”  The testing using NCHRP 350 now underway, however, limits the crash tests to just two vehicle impact angles:  a head-on impact and a 15 degree impact, an insufficient sample size from which to truly gauge the safety of the device.  Serious allegations have been raised that the device is vulnerable at vehicular impacts of four to six degrees, something NCHRP 350 will ignore.  Moreover, MASH requires use of heavier, more modern vehicles resembling real-world scenarios, unlike the smaller, lighter vehicles allowed by NCHRP 350.  By evaluating the ET-Plus with NCHRP 350 standards and limiting the scope of these tests, FHWA fails to grasp the primary goal of testing and its role as a federal safety agency.  FHWA is attempting to answer whether the agency received credible information from Trinity in past years.  This is undoubtedly an important question; however, the ultimate inquiry is whether this device is safe for today’s roads.  If the answer is no, then the device must be removed from the nation’s highways.  Focusing on whether or not this product should have been approved per old standards is irrelevant if the ET-Plus remains a danger.  Please move immediately to ensure that the testing relies on thorough and modern protocols outlined in MASH so that the public knows whether the device is truly safe for today’s roads. 

 

Second, it is critical that any testing include all iterations of the device.  Our offices have heard from a number of sources that Trinity produced several variations of the ET-Plus.  One variation was allegedly installed from 2005 through 2012.  Another variation was put in service in 2013, after Trinity allegedly made modifications to improve the safety of the device.  There could also be other variations that haven’t been observed yet or that Trinity has failed to disclose.  Testing should evaluate every version of the ET-Plus.  The testing now underway, however, is limited to just eight models sold in 2014.  These are likely to be later models, and they will therefore likely fail to truly represent the tens of thousands of other ET-Plus models on our roads.  And if, as some allege, the device was altered in 2012 or 2013, it further underscores the need to test using today’s testing protocols.  Please immediately release all specifications, dimensions and the composition of the models now being tested – including all aspects of the roadside hardware that are also part of the test – so the public can compare those measurements to measurements of other ET-Plus models and be assured accurate, comprehensive testing is underway.

 

Third, it is imperative that testing be open and transparent.  The safety of the device has become a major national issue, and cases alleging that the ET-Plus is responsible for deaths and injuries are pending in courts around the country.  The testing underway in Texas, however, severely restricts any public awareness and knowledge of how the device is being evaluated.  FHWA should be open about the testing – especially considering that this entire situation was borne out of Trinity’s failure to be forthcoming about its practices.  FHWA shouldn’t mimic that behavior now, restricting access to a limited few.  Please open the testing to the public and media in light of the tremendous significance of this issue and the clear lack of past transparency.

 

Finally, it is essential that testing include a thorough evaluation of the in-field performance of the device – not just in a laboratory setting.  We understand that FHWA “will consider” more testing beyond efforts underway in Texas, including this type of assessment, but an in-field evaluation isn’t optional and it’s long overdue.  It’s especially distressing that FHWA waited until the end of 2014 to ask the public for information about the device – nearly three years since the agency was first put on notice of possible problems.  The FHWA should not consider the ET-Plus to have passed any test until this evaluation is complete.  Otherwise, FHWA is giving the device a clean bill of health without ever giving it a full check-up.  Please immediately inform us of your plan to test the device in the field and assure us that the ET-Plus will not be deemed to have passed any test until the in-field performance evaluation is complete.

 

We are committed to safety and are eager to ensure that hundreds of millions in taxpayer dollars are used solely to buy safe products – not devices that can potentially threaten the lives of those on our highways.  That’s why it’s absolutely crucial that FHWA get this right.  Your agency can start by ensuring that each of our concerns is addressed immediately.  FHWA has the authority to mandate these actions – your agency can withhold any eligibility letter until Trinity complies.  The safety of the American people deserves and demands nothing less.