According to the NTSB, six people died, twelve suffered debilitating injuries and dozens more had injuries in the 133-vehicle pile-up on February 11, 2021.
Private toll deal lacks transparency
Portions of roadway winter maintenance plan considered “proprietary” and cannot be made public
By Yamil Berard
From her bench, 153rd Tarrant District Court Judge Susan McCoy waved a large envelope over her head. Waiting in suspense that August afternoon were four attorneys and a small group of people gathered in the courtroom.
The envelope held potential evidence in a complex lawsuit triggered by one of the deadliest multi-vehicle crashes in Texas history. Six Texans died and dozens were injured in the 130-car pileup on an icy stretch of Interstate 35W in Fort Worth in February 2021.
“The issue here,” McCoy told two attorneys who represent families of those who died in the crash, “is whether you get to see this.”
The envelope held the pages of a “live” winter maintenance plan for the southbound lanes of a tollway where the tragedy occurred, but none of its contents was subsequently shared with the public.
Attorneys for North Texas Express Mobility Partners, the private company that operates the Fort Worth roadway, objected to its disclosure, saying a public release would put the company at a competitive disadvantage.
Provisions in private toll contracts make it difficult for the public to gain access to critical information, said Tony Dutzik, associate director and senior policy analyst at Frontier Group, which is the research and policy arm of PIRG, a Washington D.C. nonprofit that advocates on behalf of consumers.The reason, Dutzik said, is that private entities can consider decisions related to road monitoring, maintenance and upkeep as “proprietary.”
Yet those non-disclosure contract provisions can hinder efforts by the public to hold the Texas Department of Transportation and the private toll operator accountable, Dutzik said, and “can sometimes pop up to bite you years down the line.”
Like North Texas Express Mobility Partners, TxDOT is also a defendant in the suit.
A broad review by The Dallas Morning News of decisions made the morning of the February 2021 crash revealed a lack of general oversight by the Texas Department of Transportation of the operator – an issue that also was previously raised in “Toll Trap,” The News’ ongoing year-long investigation into the state’s toll roads.
The issue was also raised in an investigative report by the National Transportation Safety Board. The report, which found the operator failed to monitor and treat the elevated section during freezing rain, identified a lack of safety coordination between TxDOT and NTE. NTSB investigators also reported that NTE maintenance crews lacked adequate training on roadway safety best practices. If TxDOT had more oversight of the maintenance operations on the morning of the crash, the NTSB report suggested, the safety lapses may have been avoided, lessening the severity of the crash.
Transportation and safety analysts who spoke to The News acknowledged that such lapses can signal inadequate transparency between TxDOT and NTE, leaving the public and the government overseer without enough information to properly monitor NTE’s maintenance operations and demand improvements.
Efforts to bar the public from critical information can make it difficult for a public agency to hold a private company accountable to ensure it is working on behalf of the public’s interest.
New photos from Fort Worth officials take you inside the 2021 icy toll road pileup
28 images
Private toll companies, boosted by private equity and investments, are accountable to their shareholders rather than the public, so it is up to governments to demand they are transparent about the decisions and whether they benefit the public, Dutzik and others said.
Private toll roads can be built more quickly because they rely on private financing and not entirely on tax dollars, they said.
“When it’s done correctly,” the deals work, said Nina Farrell, vice president with the Chicago commercial real estate agency JLL, who represents local governments, public universities and transportation districts in private sector contracts.
But, to make it work, transparency is key, they said.
“Doing it the right way, you want to have as much information as you can about the services,” said Philip Plotch, principal researcher at the Eno Center for Transportation, a Washington D.C. nonprofit that provides independent analysis to governments and industry leaders on possible solutions to mobility issues.
Monthly status reports on road conditions are vital and should be shared with the public. Incident response times, procedures for toll road closures and maintenance activities are other items that should be shared, said Michele Diglio-Benkiran, a Florida attorney with more than 20 years of experience in negotiating partnerships between the public and private sector.
When contracts are written, they should include built-in clauses that allow the public to stay engaged. There should be community meetings and feedback systems, said Benson Varghese, a Dallas attorney who specializes in negotiating private-public partnerships.
“Strong accountability, such as public reporting and oversight, helps prevent corruption. Involving the community builds public trust and support,” he said. “The key is staying engaged, adapting as needed and always keeping the public’s interests front and center.”
But when contracts do not contain such disclosure requirements — none of the North Texas contracts with private toll roads do — it can lead to scenes like the one that played out in that Fort Worth courtroom.
Fort Worth lawyers Steve Samples and John Burkhead, who represent families of deceased drivers, urged the plan be released. The plan, though implemented after the crash, might reveal actions the plaintiffs could argue should have been in place at the time of the crash.
Families want the tollway operator and its Austin-based parent Cintra U.S. to be held accountable for the harm and losses they and their loved ones have endured.
Ultimately, the judge released some of the company’s plan, but the information in the envelope remained sealed because it pertained to post-incident conduct. The public will never know whether information in the envelope is relevant to public safety.
Other transparency issues
After the August court hearing in Fort Worth, The News requested a copy of NTE’s “live” winter maintenance plan from TxDOT under the Texas Public Information Act.
But the newspaper was not provided with the same document that was presented at the hearing. (The envelope was stamped, “For judge’s eyes only,” according to the court.) Instead, TxDOT released a generic plan that highlighted some basic roadway procedures.
TxDOT also did not respond to questions related to what oversight it had provided during the winter storm before the crash or how it verified the company had procedures in place at the time of the crash to ensure that the road was safe.
TxDOT spokesman Adam Hammons asked The News to provide questions in writing but did not answer them, citing the pending multidistrict case in Tarrant County.
The case is expected to go to trial Jan. 13, according to Jason Stephens, the lead attorney in the multidistrict case who is representing the family of Tiffany Gerred, a 34-year-old single mother who died in the crash.
One way governments can avoid surprises with private toll operators is to ensure that provisions for transparency are part of contracts before they are signed, said Dutzik, the senior policy analyst who co-wrote the 2009 report, “Private Roads, Public Costs: The Facts about Toll Road Privatization and How to Protect the Public,”
But, unfortunately, he said, it’s an issue that can be too late to fix.
Private investors prefer contracts that last a long time because it allows them to qualify for larger tax subsidies, Dutzik said.
As a result, private toll operators have sought contracts with some U.S. states that stretch 75 to 99 years, leaving governments stuck with their terms or having to renegotiate the deals at a large expense.
TxDOT’s contract with NTE doesn’t expire until June 2061, permitting NTE to collect tolls over 50 years.
Dutzik recommends that government bodies such as TxDOT sign contracts with private toll operators that last no longer than 30 years.
Again, TxDOT did not respond to questions from The News, citing pending litigation. NTE has previously told The News that all of its contracts are available for inspection online and that the operator has been transparent.
