The tests come as several critics dispute the validity of eight road tests that the Federal Highway Administration (FHWA) claims that the ET-Plus passed in March. The ET-Plus guardrail is designed to act as a shock absorber when a vehicle collides with it, but many believe that the guardrail can buckle and splinter instead, spearing the vehicle and possibly drivers with jagged pieces of metal piercing through the door or window. Currently, there are over 200,000 ET-Plus guardrails installed throughout the U.S. highway system.
Dallas-based Trinity Industries will be facing more scrutiny in a few weeks, according to a document received by ABC News. The Virginia Department of Transportation (VDOT) will conduct a series of six road tests involving the company’s controversial ET-Plus guardrail system sometime in mid-September. VDOT spokesperson Marshal Herman confirmed with ABC News that the agaency “has decided to move forward with a plan to conduct additional crash tests.” The tests come as several critics dispute the validity of eight road tests that the Federal Highway Administration (FHWA) claims that the ET-Plus passed in March. The ET-Plus guardrail is designed to act as a shock absorber when a vehicle collides with it, but many believe that the guardrail can buckle and splinter instead, spearing the vehicle and possibly drivers with jagged pieces of metal piercing through the door or window. Currently, there are over 200,000 ET-Plus guardrails installed throughout the U.S. highway system. The document claims that the VDOT tests will be slightly different from the FHWA tests conducted earlier in the year, with the impact coming from slightly different angles. The FHWA will also be present to monitor the tests.
The disclosure comes after a Texas judge announced the largest whistleblower penalty in U.S. history, levied against Trinity as a result of a lawsuit filed by Joshua Harman, the owner of a bankrupt former competitor, Spig Industry. Harman alleged that Trinity altered the design of the ET-Plus in 2005, while failing to inform federal authorities about the change. In June, U.S. District Judge Rodney Gilstrap ordered Trinity to pay an astounding $663 million penalty, including $199 million to Harman. 20 additional lawsuits have been filed over the guardrail, with at least nine deaths attributed to the splintered ET-Plus systems. Trinity has since appealed the ruling, as well as filing bankruptcy itself, so it remains to be seen if Harman, or any of the other plaintiffs suing Trinity will actually receive any money. Trinity earns the majority, $2.8 billion of its $4.3 billion annual revenues manufacturing rail cars, while “construction projects,” which include the manufacturing of the ET-Plus, only accounts for 12 percent of revenues.
The FHWA tests conducted last March brought about mountains of criticism from road safety advocates and especially from state-level authorities. Among the criticisms include the passing grade on the final crash-test involving a 1998 Geo Metro moving at 60 mph. That crash caused a 6.75 inch gash on the driver’s side door, exceeding the 2003 threshold which is six inches. Virginia has been contemplating the removal of the ET-Plus for over a year, with Virginia’s Attorney General Mark Herring joining a separate lawsuit against Trinity alongside over 30 other state attorneys general. Virginia has also joined the other states in suspending ordering of new ET-Plus guardrails in light of the Texas case. Despite the suspension of ET-Plus purchases, the FHWA’s passing grade means that states that purchase the ET-Plus guardrail are still eligible for federal reimbursement, a key requirement to make the guardrails financially viable. The most vigorous critic of the FHWA’s handling of the ET-Plus has been Senator Richard Blumenthal (D-CT). Blumenthal praised VDOT’s decision to retest the guardrails, saying “I think this is a watershed moment. Clearly the states have concluded they cannot trust the Federal Highway Administration to get it right, and this signals to other states that they’ll have to fill in the gap themselves to determine if these guardrails are safe.”
For their parts, both the FHWA and Trinity Industries believe the tests to be unnecessary, and even vindictive. In a statement released following the disclosure, the FHWA wrote that they do not believe additional testing is needed, while citing the passage of the tests in March. The agency noted that “VDOT officials observed each test. Those tests were validated by an independent expert, Dr. Clay Gabler from Virginia Tech, and conducted under approved NCHRP 350 guidelines. The ET Plus has been installed on Virginia roadways for more than eight years and VDOT recently confirmed to the FHWA that the ET Plus end terminals are performing as expected.” Trinity spokesman Jeff Eller responded with a statement on Thursday saying that VDOT’s tests are “aimed at only one product which has been proven to perform as designed,” and that Trinity “does not believe additional tests are needed.” Given the upcoming tests, the Congressional scrutiny, along with the multiple legal actions occurring in many states, it is unlikely the ultimate fate of the ET-Plus guardrail will be decided anytime soon.
ABC News – Cindy Galli
Claims Journal – Patrick G. Lee
New York Times – Danielle Ivory and Aaron M. Kessler