Safety Research & Strategies Sues FHWA for Guardrail Documents

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Safety Research & Strategies, an automobile and product safety research and consulting firm, has sued the Federal Highway Administration for the public release of documents regarding the safety of guardrail end terminals used on highways nationwide. The ET-Plus model end terminals, manufactured by the Dallas-based Trinity Industries, have been allegedly linked to deaths and severe injuries, leading state and federal highway officials to question their efficacy and safety.

The civil lawsuit, filed in U.S. District Court, alleges that the FHWA violated the Freedom of Information Act by improperly withholding records and failing to respond to two separate administrative appeals on the failure to release documents pertaining to the agency’s interactions with Trinity and with the American Association of State Highway and Transportation Officials. SRS originally sought the documents in November and January. 

Guardrail designs have evolved since the 1960s. Earlier designs used blunt ends that acted like a spear, penetrating the vehicle occupant compartment in a crash. The turned-down twist design of the 1970s buried the exposed ends, but acted like a ramp in a crash, causing vehicles to rollover. Today’s preferred design on some highways is the Energy-Absorbing End Terminal, which absorbs the crash energy, bends the end terminal away from the vehicle, and extrudes it through a slot into a flat metal ribbon. In the early 1990s, Texas A&M designed the ET-2000 in cooperation with the Texas Department of Transportation. Originally manufactured by Syro, Inc., the ET-2000, a variant of the Energy Absorbing End Terminal design, addressed some of the safety failures of earlier guardrail designs. The FHWA first approved the ET-2000 in the early 1990s, and its field performance was satisfactory.

In 1999, Trinity, which bought Syro Steel in 1992, launched the first version of the ET-Plus. In 2005, the manufacturer made a design change to the ET-Plus, allegedly to save material and manufacturing costs. The newer versions of the ET-Plus, manufactured in 2005, bear a dimensional change to the height of the feeder chute, through which the rail is extruded. With this change, critics charge, the end terminal no longer performs like those of the earlier design. Instead of extruding smoothly and adequately through the feeder system; the rail may lock up or bend, penetrating the striking vehicle like a spear. 

Trinity changed the design without notifying the FHWA, as required, until seven years later, when a patent dispute between Trinity and SPIG Industries, of Bristol, Va. brought this modification to light. 

In the last two years, questions about the safety and field performance of the ET-Plus have been raised by state Departments of Transportation separately, and via their national organization, the American Association of State Highway and Transportation Officials (AASHTO). State Departments of Transportation buy highway safety equipment from a list of vendors whose products have been crash-tested and approved by the Federal Highway Administration; the FHWA, reimburses states that use approved equipment.

In the fall of 2012, three of its 21 members responded to a survey about the field performance of guardrail terminals indicating that the end terminals were involved in three severe vehicle crashes that resulted in serious injuries and deaths; two of the three agencies specifically referenced the ETPlus. AASHTO asked the FHWA to re-review its approval of the ET-Plus and document the modified barrier system’s crashworthiness under the federal criteria, NCHRP 350. More recently, in January, the Nevada Department of Transportation informed Trinity that its ET-Plus terminal would no longer be considered approved equipment because of the 2005 modification that was not disclosed.  

In the meantime, the Transportation Research Board of the National Academies of Science is in the nascent stages of a research study, funded by AASHTO, to evaluate the in-service crash performance of W-beam guardrail end terminals in the field. The study objectives include crash performance and vehicle occupant risk; the sensitivity to environmental conditions, site characteristics, and impact condition; and the sensitivity to improper installation, maintenance and repair.

These allegations have been the subject of numerous news stories in the U.S. and abroad, giving the issue a high-profile. To journalists, the FHWA has responded that the controversy is a business dispute between competitors. Internally, however, documents indicate that officials within the FHWA have admitted that these questions are valid. The draft of a Federal Highway Administration letter to Trinity that was never sent, called for an “in-service performance evaluation” of the terminals and “an investigation into the crashes documented by Mr. Joshua Harman.”…”The number of highway crashes with fatal injuries involving the ET-Plus terminals does not match the excellent history of the original ET-2000 terminal.”

This is the fifth FOIA lawsuit SRS has brought against a federal agency for failing to release documents that do not qualify for one of FOIA’s nine exemptions.

In November 2013, SRS sued NHTSA for withholding documents relating to two instances in which manufacturers allegedly did not report serious injury claims against them to NHTSA, as required under the Transportation Recall Enhancement Accountability and Documentation (TREAD) Act’s Early Warning Reports (EWR) provision. One crash occurred in April 2009, involving a tire tread separation which resulted in an occupant sustaining a serious closed head injury. The second crash occurred in June 2010, involving the apparent failure of Harmony Lite Rider child restraint, which caused severe injuries to two young children.

In January 2012, SRS sued NHTSA over its refusal to release records involving the agency’s investigation into Unintended Acceleration incidents experienced by Joseph McClelland, the owner of a 2003 Prius. Two ODI engineers examined the Prius in McClelland’s presence. According to a sworn statement by McClelland, they witnessed several instances of UA, that was not caused by the driver or mechanical interference, gathered data from the ECM and took videos of the UA incidents as they happened. SRS sought this material.

In April 2012, Safety Research & Strategies filed its third Freedom of Information Act lawsuit against the agency, alleging that NHTSA violated the law when it withheld communications between child products manufacturer Evenflo and NHTSA regarding the January 2008 recall of the Discovery infant carrier. In February 2008, NHTSA and Evenflo simultaneously released brief announcements that the juvenile products company would recall 1.1 million Discovery infant seats. Both press releases referenced recent tests conducted by NHTSA and Evenflo which showed that “this car seat has the potential to separate from its base.” SRS had sought the missing pieces of the public file – the reports, videos and photographs of the NHTSA tests that formed the basis of the recall; communications from NHTSA to Evenflo, and Evenflo’s detailed account of the events leading up to the recall. The agency released to SRS some test photos and data, with no context; two NHTSA letters granting confidentiality to Evenflo, NHTSA’s press release, and Evenflo’s notice to consumers, and claimed it had no other responsive records. (see The Safety Record Special Report: How Consumer’s Union Shocking Child Seat Tests Forced the Recall of the Evenflo Discovery)

In December 2011, SRS sued the agency for withholding public records involving an unintended acceleration incident reported by a 2007 Lexus RX owner in Sarasota Florida. On December 2, 2010, Timothy Scott, 47, experienced a UA event as he drove into his apartment complex. ODI looked into the Scott incident, generating photos, videos and other documents. SRS sought this material as part of its ongoing research into Toyota UA, but NHTSA withheld all but a few records related to the Scott investigation, claiming it was shielded under FOIA’s “deliberative process” exemption.

SRS and the Department of Transportation eventually settled all four lawsuits, after the federal government agreed to release more materials and pay SRS’s legal fees.