Washington, D.C. – U.S. Senators Sheldon Whitehouse (D-RI) and Richard Blumenthal (D-CT) today released a report from the Government Accountability Office (GAO) detailing the Federal Highway Administration’s (FHWA) failure to properly address defective highway guardrails. Whitehouse and Blumenthal requested the report following accounts across the country that “ET-Plus” guardrails fail to absorb impact during a crash—and instead can spear through the vehicle and impale passengers. Approximately 200,000 such guardrails remain on U.S. highways today.
“This report reveals the Federal Highway Administration’s failure to detect tens of thousands of unsafe guardrails and millions of wasted taxpayer dollars,” said Whitehouse. “Now, we must make sure the agency’s oversight and safety standards work to protect Americans on our roadways.”
For years, the FHWA has allowed tens of millions of federal dollars to be spent buying ET-Plus guardrails from Trinity Industries for the nation’s highways. In 2005, Trinity made secret design changes to the device to save production costs without publically disclosing the alterations. In the following years, despite mounting safety concerns, FHWA did little to investigate or stop states from buying the potentially dangerous devices even after it was finally notified about the changes in 2012. The report is in response to a letter Whitehouse and Blumenthal sent to the GAO last year requesting a formal investigation into FHWA’s oversight and evaluation of devices like these defective guardrails. Senators Cory Booker (D-NJ), Edward Markey (D-MA), Mark Warner (D-VA), and Tim Kaine (D-VA) cosigned the request letter. Rep. Mark DeSaulnier (D-MA) also supported the GAO report.
The GAO report found that FHWA is:
- Failing to provide strong oversight: FHWA has refrained from enacting enforceable rules to ensure safe devices are installed on highways, instead relying on a system of toothless, unenforceable guidance and encouragement. This leads to gaps in oversight, a patchwork of “inconsistent” practices by states, and the “widespread misperception” among officials that these are actual requirements governing the safety of devices.
- Carrying out an unreliable approval process of safety devices: FHWA provides products with an “eligibility letter” that many believe authorizes their purchase using federal dollars. States and stakeholders rely on these letters as a Good Housekeeping safety seal of approval. But the letter is essentially meaningless. FHWA still allows products to be bought with federal funds regardless of whether they have an eligibility letter or have been tested as safe. Moreover, FHWA provides eligibility letters with confusing, insufficient rationale for the agency’s decision.
- Allowing conflicts of interest at crash testing facilities: FHWA allows for testing that can be unreliable and full of bias and conflicts of interest. Several crash testing laboratories allow testing of products that were developed by the laboratory’s parent organization, thus an organization can test a device it also developed for the marketplace. FHWA provides no guidance to facilities on how to avoid conflicts of interest, and FHWA requires no third-party analysis and verification of testing results. This is uncommon. Other federal agencies, like EPA and NHTSA, require third-party or independent verification of test results when making similar pass-fail determinations.
- Allowing old, weak safety standards to guide testing: FHWA continues to allow the installation of devices under out-of-date, less rigorous standards known as NCHRP 350, adopted in 1993. In 2009, new standards known as MASH were published that reflect the presence of the larger and heavier cars, trucks and SUVs on our roads today. FHWA, however, will not require use of the updated standards for guardrail end terminals for at least another two years. Meanwhile, devices can continue to be installed under the out-of-date standards, and those devices “could be on the roads for years to come.” Moreover, FHWA has no plan to track the progress of installation under the new, robust standards, or assess which devices that “could be on the road for decades” would fail modern safety standards.
- Conducting little analysis of whether devices actually work once installed: FHWA is doing little to evaluate whether devices—like guardrail end terminals that are currently installed on our highways—have actually performed as they should, and have helped save lives instead of causing death and injury. Laboratory testing cannot replicate the effects of real-world roadside conditions and fails to provide vital information to stakeholders who make replacement or new product development decisions. FHWA has undertaken a small pilot program, but is holding off any sort of thorough evaluation, despite the dearth of data on how these devices have worked.
