Surface Transportation Project Delivery Program; Ohio Department of Transportation Audit Report, 14096-14102 [2017-05244]

Agencies

• Federal Highway Administration
• DEPARTMENT OF TRANSPORTATION

[Federal Register Volume 82, Number 50 (Thursday, March 16, 2017)]
[Notices]
[Pages 14096-14102]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-05244]


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DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

[FHWA Docket No. FHWA-2016-0034]


Surface Transportation Project Delivery Program; Ohio Department 
of Transportation Audit Report

AGENCY: Federal Highway Administration (FHWA), DOT.

ACTION: Notice; request for comment.

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SUMMARY: The Moving Ahead for Progress in the 21st Century Act (MAP-21) 
established the permanent Surface Transportation Project Delivery 
Program that allows a State to assume FHWA's environmental 
responsibilities for review, consultation, and compliance for Federal 
highway projects. When a State assumes these Federal responsibilities, 
the State becomes solely liable for carrying out the responsibilities 
it has assumed, in lieu of FHWA. This program mandates annual audits 
during each of the first 4 years of State participation to ensure 
compliance by each State participating in the Program. This notice 
announces and solicits comments on the first audit report for the Ohio 
Department of Transportation (ODOT).

DATES: Comments must be received on or before April 17, 2017.

ADDRESSES: Mail or hand deliver comments to Docket Management Facility: 
U.S. Department of Transportation, 1200 New Jersey Avenue SE., Room 
W12-140, Washington, DC 20590. You may also submit comments 
electronically at www.regulations.gov. All comments should include the 
docket number that appears in the heading of this document. All 
comments received will be available for examination and copying at the 
above address from 9 a.m. to 5 p.m., e.t., Monday through Friday, 
except Federal holidays. Those desiring notification of receipt of 
comments must include a self-addressed, stamped postcard or you may 
print the acknowledgment page that appears after submitting comments 
electronically. Anyone is able to search the electronic form of all 
comments in any one of our dockets by the name of the individual 
submitting the comment (or signing the comment, if submitted on behalf 
of an association, business, or labor union). The DOT posts these 
comments, without edits, including any personal information the 
commenter provides, to www.regulations.gov, as described in the system 
of records notice (DOT/ALL-14 FDMS), which can be reviewed at 
www.dot.gov/privacy.

FOR FURTHER INFORMATION CONTACT: Mr. Kreig Larson, Office of Project 
Development and Environmental Review, (202) 366-2056, 
Kreig.Larson@dot.gov, or Mr. Jomar Maldonado, Office of the Chief 
Counsel, (202) 366-1373, Jomar.Maldanado@dot.gov, Federal Highway 
Administration, Department of Transportation, 1200 New Jersey Avenue 
SE., Washington, DC 20590. Office hours are from 8:00 a.m. to 4:30 
p.m., e.t., Monday through Friday, except Federal holidays.

SUPPLEMENTARY INFORMATION:

Electronic Access

    An electronic copy of this notice may be downloaded from the 
specific docket page at www.regulations.gov.

Background

    The Surface Transportation Project Delivery Program, codified at 23 
U.S.C. 327, allows a State to assume FHWA's environmental 
responsibilities for review, consultation, and compliance for Federal 
highway projects. When a State assumes these Federal responsibilities, 
the State becomes solely liable for carrying out the responsibilities 
it has assumed, in lieu of the FHWA. The ODOT published its application 
for assumption under the National Environmental Policy Act (NEPA) 
Assignment Program on April 12, 2015, and made it available for public 
comment for 30 days. After considering public comments, ODOT submitted 
its application to FHWA on May 27, 2015. The application served as the 
basis for developing a Memorandum of Understanding (MOU) that 
identifies the responsibilities and obligations that ODOT would assume. 
The FHWA published a notice of the draft MOU in the Federal Register on 
October 15, 2015, with a 30-day comment period to solicit the views of 
the public and Federal agencies. After the close of the comment period, 
FHWA and ODOT considered comments and proceeded to execute the MOU. 
Effective December 28, 2015, ODOT assumed FHWA's responsibilities under 
NEPA, and the responsibilities for NEPA-related Federal environmental 
laws described in the MOU.
    Section 327(g) of Title 23, United States Code, requires the 
Secretary to conduct annual audits during each of the first 4 years of 
State participation. After the fourth year, the Secretary shall monitor 
the State's compliance with the written agreement. The results of each 
audit must be made available for public comment. This notice announces 
the availability of the first audit report for ODOT and solicits public 
comment on same.

    Authority: 23 U.S.C 327; 23 CFR 773; 49 CFR 1.85.

Issued on: March 9, 2017.
Walter C. Waidelich, Jr.,
Acting Deputy Administrator, Federal Highway Administration.

Surface Transportation Project Delivery Program FHWA Audit of the Ohio 
Department of Transportation December 28, 2015 through August 5, 2016

Draft Report

January 2017

Team Leaders: Carmen Stemen, Ohio Division, Planning and Environment 
Specialist; Kreig Larson, Office of Project Development & 
Environmental Review, Environment Specialist; Keith Moore, Resource 
Center, Environmental Program Specialist
Team Members: Jeffrey Blanton, Ohio Division, Director of Program 
Development; David Bruce, National Review Team Leader, Program 
Management Improvement (PMI) Team; Tom Bruechert, Texas Division, 
Environment Team Leader; Karen Brunelle, Florida Division, Director 
of Project Development; Benito Cunill, Florida Division, Environment 
Team Leader; Naureen Dar, Ohio Division, Transportation Engineer; 
David Grachen, Resource Center, Environmental Specialist and Program 
Delivery Team Leader; Justin Ham, Texas Division, Urban Engineer; 
Adam Johnson, Ohio Division, Major Project Engineer; Matt Lupes, 
Program Management Improvement (PMI) Team, Transportation 
Specialist; Noel Mehlo, Ohio Division, Planning and Environment 
Specialist; Leigh Oesterling, Ohio Division, Planning and 
Environment Team Leader; Laura Toole, Ohio Division, Planning and 
Environment Specialist; Rodney Vaughn, Resource Center, 
Environmental Program Specialist; Sharon Vaughn-Fair, FHWA HQ, 
Assistant Chief Counsel

[[Page 14097]]

Table of Contents

Executive Summary...............................................       3
Background......................................................       4
Scope and Methodology...........................................       6
    Overall Audit Opinion.......................................       7
Observations and Successful Practices...........................       9
    Program Management..........................................       9
    Documentation and Records Management........................      13
    Quality Assurance/Quality Control...........................      14
    Legal Sufficiency Review....................................      16
    Performance Measures........................................      17
    Training Program............................................      18
Next Steps......................................................      19
 

Executive Summary

    As part of responsibilities specified in 23 U.S.C. 327, as 
amended by the Fixing America's Surface Transportation (FAST) Act, 
this is the first audit of the Ohio Department of Transportation 
(ODOT)'s assumption of National Environmental Policy Act (NEPA) 
responsibilities, conducted by a team of Federal Highway 
Administration (FHWA) staff (the team). On December 28, 2015, ODOT 
assumed Federal Highway Administration's (FHWA) NEPA 
responsibilities and liabilities for the Federal-aid highway program 
in Ohio, as specified in a Memorandum of Understanding (MOU) signed 
on December 11, 2015. This audit examined ODOT's performance under 
the MOU regarding responsibilities and obligations assigned therein.
    The FHWA review team, formed in February 2016, met regularly to 
prepare and conduct elements of the review. Prior to the on-site 
visit, the team performed reviews of ODOT's project NEPA 
documentation in EnviroNet (ODOT's official environmental document 
filing system), the ODOT pre-audit information request (PAIR) 
response, and ODOT's self-assessment report. In addition, the team 
reviewed ODOT guidance documents, including the NEPA Quality 
Control/Quality Assurance Guidance and the ODOT NEPA Assignment 
Training Plan. The team developed interview questions for ODOT 
Central Office, ODOT Districts, and outside agencies for the on-site 
portion of this review, which took place from August 1-5, 2016.
    The ODOT is still in a transition phase and is developing and 
implementing procedures and processes for Federal decisionmaking 
responsibility under the NEPA Assignment Program. Overall, the team 
found evidence that ODOT made reasonable progress in implementing 
the NEPA Assignment Program and is committed to establishing a 
successful program. This report provides the team's assessment of 
ODOT's implementation of the NEPA Assignment Program, embodied in 11 
observations and 3 successful practices.
    It is important to differentiate between program-level 
compliance and project-level compliance under the NEPA Assignment 
Program. Project-level compliance refers to whether ODOT followed 
Federal environmental laws and regulations for a specific 
environmental action on a project. Project-level compliance trends 
may indicate program-level compliance. Program-level compliance 
refers to whether ODOT followed requirements (1) described in 
programs, processes, and procedures including Federal environmental 
laws and regulations for NEPA; (2) embodied in 23 U.S.C. 327 (as 
amended by the FAST Act, P.L. 114-94); and (3) stipulated in the MOU 
between FHWA and ODOT for the Assignment Program. The team did not 
make any program-level non-compliance observations during this first 
review; however, the team did note project-level non-compliance 
observations, which this report discusses in further detail.
    The team finds ODOT to be in substantial compliance with the 
provisions of the MOU. The ODOT has carried out the responsibilities 
that it has assumed, keeping with the intent of the MOU and its 
application for NEPA assumption responsibilities. We encourage ODOT 
to consider the observations in this report to continue to build 
upon the early successes of its program.

Background

    The Surface Transportation Project Delivery Program (NEPA 
Assignment Program) allows a State to assume FHWA's environmental 
responsibilities for review, consultation, and compliance with 
environmental laws for Federal-aid highway projects. When a State 
assumes these Federal responsibilities, the State becomes solely 
responsible and liable for carrying out the responsibilities it has 
assumed, in lieu of FHWA. The NEPA assignment first began as a pilot 
program established by Section 6005 of the Safe, Accountable, 
Flexible, Efficient Transportation Equity Act: A Legacy for Users. 
Section 1313 of the Moving Ahead for Progress in the 21st Century 
Act (MAP-21), as codified in 23 U.S.C. 327 and amended by the FAST 
Act, made this program permanent.
    Pursuant to Ohio Revised Code Section 5531.30, signed into law 
by Governor Kasich on April 1, 2015, the State of Ohio expressly 
consented to exclusive Federal court jurisdiction with respect to 
the compliance, discharge, and enforcement of any responsibility 
with respect to duties under NEPA and other Federal environmental 
laws assumed by ODOT. Ohio has therefore waived its sovereign 
immunity under 11th Amendment of the U.S. Constitution and consents 
to Federal Court jurisdiction for actions brought by its citizens 
for projects it has approved under the NEPA Assignment Program.
    The ODOT published its application for assumption under the NEPA 
Assignment Program on April 12, 2015, and made it available for 
public comment for 30 days. After considering public comments, ODOT 
submitted its application to FHWA on May 27, 2015. The application 
served as the basis for developing the MOU that identifies the 
responsibilities and obligations that ODOT would assume. The FHWA 
published a notice of the draft MOU in the Federal Register on 
October 15, 2015, at 80 FR 62153, with a 30-day comment period to 
solicit the views of the public and Federal agencies. After the 
comment period closed, FHWA and ODOT considered comments and 
executed the MOU.
    Effective December 28, 2015, ODOT assumed FHWA's project 
approval responsibilities under NEPA and NEPA-related Federal 
environmental laws.
    Federal responsibilities not assigned to ODOT that remain with 
FHWA include:

    (1) Any highway projects authorized under 23 U.S.C. 202 (Tribal 
Transportation Program);
    (2) any highway projects authorized under 23 U.S.C. 203 and 204 
(Federal Lands Transportation Program), unless such projects will be 
designed and constructed by ODOT;
    (3) any project that crosses State boundaries and any project 
that crosses or is adjacent to international boundaries (A project 
is considered ``adjacent to international boundaries'' if it 
requires the issuance of a new or the modification of an existing 
Presidential Permit by the U.S. Department of State.);
    (4) project-level conformity determinations under the Federal 
Clean Air Act; and
    (5) conducting government-to-government consultation with 
federally recognized Indian tribes.
    The FHWA will conduct a series of four annual compliance audits 
of the ODOT NEPA Assignment Program to satisfy provisions of 23 
U.S.C. 327(g) and Part 11 of the MOU. Audits, as stated in MOU 
Sections 11.1.1 and 11.1.5, are the primary mechanism to oversee 
ODOT's compliance with the MOU, ensure compliance with applicable 
Federal laws and policies, evaluate ODOT's progress toward achieving 
the performance measures identified in MOU Section 10.2, and collect 
information needed for the Secretary's annual report to Congress.
    This audit report will be available to ODOT and the public for 
review and comment. The FHWA will consider the status of 
observations from an audit as part of the scope of future audits and 
will include a summary discussion describing the progress made since 
the prior audit in all subsequent audit reports.
    To ensure a level of diversity and guard against unintended 
bias, the team is comprised of NEPA subject matter experts from the 
FHWA Ohio Division Office, as well as FHWA offices in Washington, 
DC; Atlanta, GA; Austin, TX; Tallahassee, FL; and Baltimore, MD. In 
addition to the NEPA experts, two individuals from FHWA's Program 
Management Improvement Team in Lakewood, CO, provided technical 
assistance in conducting reviews. All of these experts received 
training specific to evaluation of implementation of the NEPA 
Assignment Program. The diverse composition of the team and the 
process of developing the audit report for publication in the 
Federal Register ensure that the team conducted the audit in an 
unbiased and official manner.

Scope and Methodology

    The team conducted a careful examination of the ODOT NEPA 
Assignment Program through review of three primary sources of 
information: project files, ODOT's responses to the pre-audit 
information request, and interviews with ODOT Central Office and 
District environmental staff, as well as resource agency staff. All 
reviews focused on objectives related to the six NEPA Assignment 
Program elements contained in the MOU: program management; 
documentation and records management; quality assurance/quality 
control; legal sufficiency; performance measurement; and training.

[[Page 14098]]

    The purpose of the project file review was to evaluate the NEPA 
process and procedures utilized by ODOT, but not project-specific 
NEPA decisions. Fourteen members of the team reviewed a 
statistically valid sample of project files in ODOT's online 
environmental file system, EnviroNet. The universe of projects 
included any highway project with an environmental approval date 
between December 28, 2015, and May 31, 2016. Using a 90 percent 
confidence level and 10 percent margin of error, the team reviewed 
82 out of 535 total projects. The projects reviewed represented all 
NEPA classes of action available, all 12 ODOT Districts, and the 
Ohio Rail Development Commission.
    The team composed the 40-question PAIR based on requirements in 
the MOU that were incorporated into the objectives for the audit. 
The ODOT provided responses to the questions and the requests for 
documentation, such as its organizational structure. The team 
reviewed ODOT's responses to gain an understanding of how ODOT is 
currently meeting the requirements of the MOU. The team also 
compared the procedures described in the response to ODOT's written 
procedures. Finally, the team developed specific questions for the 
interviews to gather more information or to seek clarification based 
on ODOT's PAIR response.
    The team conducted approximately 40 on-site interviews with 
staff at three ODOT Districts (District 4 [Akron], District 5 
[Jacksontown], and District 9 [Chillicothe]); ODOT's Division of 
Planning, Office of Environmental Services (OES); the Ohio Rail 
Development Commission; and the Columbus, Ohio field offices of both 
the U.S. Fish and Wildlife Service and the U.S. Army Corps of 
Engineers. In each office, interviewees included staff, middle 
management, and executive management. The selected interviewees 
represented a diverse range of expertise and experience. The 
interviews at the ODOT Districts also included a discussion with the 
District Environmental Coordinators and environmental staff on 
project specific issues identified in the team's project file 
review. In addition, the team met with ODOT OES to discuss the 
audit's identified project file issues following the on-site review 
week.
    The team verified information on the ODOT NEPA Assignment 
Program through review of ODOT policies, guidance, manuals, and 
reports. This included the NEPA Quality Control/Quality Assurance 
Guidance, ODOT NEPA Assignment Training Plan, and ODOT NEPA 
Assignment Self-Assessment report. The team identified gaps between 
the information in the documents, project file review, and 
interviews. The team documented the results of its reviews and 
interviews and consolidated the results into related topics or 
themes. From these topics or themes, the team developed the review 
observations and successful practices. The FHWA defines an 
observation as a statement that explains the condition, criteria, 
cause, and effect. The team considers observations as sufficiently 
important to urge ODOT to consider improvements or enhancement to 
the area of project management in its NEPA Assignment Program.
    The FHWA defines successful practices as processes, procedures, 
practices, and technologies that the team wants to recognize, and 
that may benefit others. Successful practices should be replicable 
and scalable for other agencies.

Overall Audit Opinion

    The ODOT has carried out the responsibilities it has assumed 
pursuant to both the MOU and the Application. As such, the team 
finds ODOT to be in substantial compliance with the provisions of 
the MOU. Overall, the team found evidence that ODOT made reasonable 
progress in implementing the NEPA Assignment Program and is 
committed to establishing a successful program. The team identified 
eleven (11) observations, including both successful practices and 
opportunities for ODOT to improve its implementation of the NEPA 
Assignment Program.
    Project-level compliance refers to whether ODOT properly 
documented and followed Federal environmental laws and regulations 
for a specific environmental action on a project. Project-level 
compliance trends may indicate program-level compliance. The 
project-level compliance issues noted by the review team did not 
indicate a trend of program non-compliance in this review.
    Program-level compliance refers to whether ODOT followed 
requirements described in programs, processes and procedures 
including Federal environmental laws and regulations for NEPA; 
requirements imposed by 23 U.S.C. 327; and compliance with the MOU 
between FHWA and ODOT for the NEPA Assignment Program. The team did 
not make any program-level, non-compliance observations during this 
first review; however, the team noted project-level non-compliance 
observations, which this report discusses in further detail below.
    The team recognizes that ODOT is still implementing the NEPA 
Assignment Program and is in the early stages of fully adapting and 
incorporating the requisite programs, policies, and procedures into 
its overall project development program. The ODOT's efforts are 
appropriately focused on establishing and refining policies, 
procedures, and guidance; training staff, including those within and 
outside of ODOT; clarifying role and responsibility changes due to 
NEPA Assignment; and monitoring compliance with its assigned 
responsibilities.
    The ODOT's EnviroNet system provides a framework for ODOT's NEPA 
Assignment Program by serving as a records retention repository and 
as a project management tool for decisionmaking in the NEPA process. 
It also provides documentation of agency coordination and public 
involvement in that decision. The system has built-in controls, 
allowing ODOT to apply a measure of quality control and to enable 
the preparer to monitor project status, track when key decisions are 
required, and to record when they are completed.
    The team has noted eleven (11) observations. The team urges ODOT 
to consider improvements through one or more of the following: 
revising policies, procedures, and guidance, as needed; educating 
staff on the content and parameters of the policies, procedures, and 
guidance through targeted training; continued self-assessment; and 
continued information dissemination both inside and outside of ODOT 
and with the public. We encourage ODOT to consider the observations 
in this report to continue to build upon the early successes of its 
program.

Observations and Successful Practices

Program Management

    Observation 1: ODOT has established a strategy, direction, and 
framework for the integration and implementation of NEPA Assignment 
throughout ODOT, including OES, Districts, agencies, LPAs, and 
consultants.
    The ODOT has communicated--through procedure development and/or 
refinement, its day-to-day correspondence, and rollout presentations 
within and outside of ODOT--that it has a strategy for incorporating 
NEPA Assignment into the overall project development process. The 
team found in ODOT's responses to the PAIR and through interviews 
that ODOT has utilized various means to disseminate this information 
to ODOT Central Office, Districts, coordinating agencies, Local 
Public Agencies (LPA), consultants, and the public. The 
Administrator of OES has stated that NEPA Assignment should be 
invisible on a day-to-day basis, as the NEPA process itself has not 
changed. The ODOT is simply completing the process under the MOU, 
which reflects ODOT's authority to make NEPA decisions, as agreed to 
by FHWA and ODOT.
    Staff at all levels affirmed that OES management continuously 
stresses the responsibility and liability inherent in NEPA 
Assignment. Management stressed that all levels of staff should be 
fully aware of their responsibilities in all day-to-day activities. 
In addition, ODOT is also enhancing its working relationship with 
LPAs to ensure consistency in the preparation and review of NEPA 
documents, whether prepared by ODOT or the LPA. In general, ODOT 
takes pride in its assumed responsibilities and has worked to ensure 
that its staff is comfortable in this new role through policy and 
procedure review, and through various training opportunities. 
Interview responses also reflected that prior to NEPA Assignment, 
OES provided in-house training for ODOT consultants and staff at all 
levels.
    Additional training opportunities noted in the PAIR and 
interviews include the newly established, bi-weekly NEPA Chats and 
quarterly District Environmental Coordinator (DEC) meetings. 
Interviewees indicated that they appreciate these opportunities and 
view them as an effective forum for learning and practice. These 
activities provide avenues for OES to dispense information, 
examples, and tips; answer questions; and explain new concepts to 
enhance staff understanding of new processes and procedures. 
Attendance at the NEPA Chats is mandatory, and when staff cannot 
attend a session, ODOT provides a summary of the information covered 
shortly after the NEPA Chat is completed.
    The ODOT added three positions to address specific NEPA 
Assignment responsibilities: the NEPA Assignment Coordinator, 
environmentally focused legal

[[Page 14099]]

counsel, and another staff person who dedicates half her time to 
NEPA Assignment. The OES and District staff stated that there are 
sufficient personnel to deliver a successful NEPA Assignment 
program. District staff also indicated that OES subject matter staff 
and management are available to assist the Districts when needed.
    Observation 2: ODOT has proactively revised its policies, 
manuals, guidance, and processes to ensure that they are current and 
compliant with NEPA Assignment requirements.
    In demonstrating preparedness for NEPA Assignment, ODOT has been 
pro-active in revising its policies, manuals, guidance, and 
processes to ensure the documents are current, per NEPA Assignment 
requirements. An interview with OES executive management confirmed 
that these revisions account for approximately 80 documents to date, 
plus updates to ODOT's training curriculum.
    To prepare for NEPA Assignment, ODOT has reached out to each of 
the external resource agencies to assure them that long-established 
relationships will not change as a result of NEPA Assignment. The 
ODOT's PAIR response and self-assessment, as well as in resource 
agency interviews, evince this effort. In addition, ODOT developed 
escalation procedures with some resource agencies. Resource agencies 
have praised both the technical competency of ODOT staff and the 
effective documentation on ODOT sponsored projects. During the 
resource agency interviews, interviewees shared some opportunities 
for improvement; these included better response time from ODOT on 
non-compliance notices and project-specific information requests.
    Observation 3: EnviroNet, ODOT's robust and comprehensive NEPA 
process system, has facilitated implementation of NEPA Assignment.
    EnviroNet (ODOT's official online environmental file system) 
provides a framework for ODOT's NEPA Assignment Program, serving as 
a records retention repository and a project management tool for the 
NEPA process. It also provides documentation of agency coordination 
and public involvement for a particular decision. The system has 
built-in controls, allowing ODOT to apply a measure of quality 
control and to enable the preparer to monitor project status, track 
when key decisions are required, and record when they are completed.
    EnviroNet provides a robust and comprehensive system to capture 
the NEPA process. The system has been a useful tool in facilitating 
the implementation of NEPA Assignment. Two key features are its ease 
of use and the fact that it acts as a process guide to enhance the 
completion of NEPA documentation, assuring that the requisite 
documents are included in the electronic project file. The team 
supports ODOT's plans to upgrade the EnviroNet System and resource 
agency access.
    EnviroNet serves as ODOT's official online environmental file 
system, and ODOT procedures require that staff save all project-
related documents therein. The ODOT NEPA File Management and 
Documentation Guidance,\1\ dated March 23, 2016, states, ``ODOT must 
retain project files and general administrative files related to 
NEPA responsibilities. Every related decision-making document must 
be included the EnviroNet Project File.'' However, the team learned 
through its interviews with ODOT staff that ODOT deletes internal 
comments related to draft documents from the project file once the 
document is final. In addition, interviewees indicated that 
alternate and duplicate files are stored outside of the EnviroNet 
system. The team also discovered instances where the Environmental 
Assessment (EA) and the Environmental Impact Statement (EIS) 
documentation were located outside of EnviroNet.
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    \1\ Available at: https://www.dot.state.oh.us/NEPA-Assignment/Documents/ODOT_NEPA_File_Management.pdf.
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    These practices may represent a risk to ODOT, since they could 
eliminate documentation and evidence that support the ``hard look'' 
at projects required by NEPA. More specifically, the deleted 
comments and the use of alternate files could leave gaps in the 
decisionmaking process that may be subject to litigation. The 
deletion of internal document review comments and use of alternate 
files could also hinder the transparency of the process and 
potentially call into question reasonable assurances of compliance 
with NEPA and other recordkeeping requirements. In addition, ODOT's 
process of internal comment deletion does not allow for documenting 
trends in matters of compliance and non-compliance.
    Observation 4: ODOT does not include EAs, EISs, or their re-
evaluations in the EnviroNet system in the same way as Categorical 
Exclusions (CE).
    During interviews, ODOT personnel acknowledged EnviroNet 
contains date fields to track EAs, EISs, and their re-evaluations, 
but the system does not have fields to enter all information for 
these classes of NEPA actions. Interviewees stated that staff 
typically upload a PDF of the EA, EIS, or associated re-evaluation 
to the Project File Tab in EnviroNet, in addition to entering data 
into the date fields.
    The team reviewed two EIS re-evaluations that had incomplete 
documentation in EnviroNet, per ODOT's NEPA File Management and 
Documentation Guidance. Upon further inquiry, the team determined 
that ODOT had stored the complete documentation outside of EnviroNet 
because the original EIS documentation predated EnviroNet. Due to 
inconsistencies between ODOT's guidance and actual practices, the 
team encourages ODOT to update its NEPA File Management and 
Documentation Guidance to clarify how EAs, EISs, and their re-
evaluations should be documented and filed to ensure that staff 
includes all necessary information in the official environmental 
project file.

Documentation and Records Management

    Observation 5: FHWA identified project-level compliance issues 
with 12 projects in 7 environmental resource areas, including: 
Public Involvement, Environmental Justice, Environmental 
Commitments, Wetlands, Floodplains, and Section 4(f).
    The team discovered project compliance issues in the areas of 
Public Involvement (PI), Environmental Justice (EJ), Environmental 
Commitments, Wetlands, Floodplains, and Section 4(f). The ODOT's 
self-assessment identified these same issues, with the exception of 
Section 4(f). The review noted several instances that indicated the 
improvements ODOT should make in these areas. The project-level 
compliance issues noted did not rise to the level of a finding of 
program-level non-compliance. None of the reviewed projects were in 
danger of losing Federal funding. For example, 24 percent of the 
sampled projects demonstrated a need for improved public 
involvement, and 6 percent of sampled projects had insufficient EJ 
analyses to satisfy all Federal requirements.

[[Page 14100]]

[GRAPHIC] [TIFF OMITTED] TN16MR17.000

    The team met with ODOT, and ODOT agreed with the identified 
project compliance issues. The ODOT continues to improve its 
processes and procedures to ensure complete documentation and 
project-level compliance. The ODOT has indicated that it will take 
actions to correct the individual project compliance issues, such as 
adding missing documentation to the Project File tab in EnviroNet. 
The team encourages ODOT to look for any needed improvements to 
EnviroNet, policies, procedures, and manuals to ensure complete 
documentation and compliance on future projects.
    Observation 6: The team identified several instances where the 
information included in the online environmental file did not follow 
ODOT standards.
    The FHWA identified instances where ODOT was inconsistent with 
its documentation procedures, per the ODOT NEPA File Management and 
Documentation Guidance, and various other ODOT NEPA resource-area 
guidance documents. The ODOT's Self-Assessment also identified 
project file management as another area in need of improvement (see 
table above), in terms of documentation input errors within the 
EnviroNet environmental files. Overall, ODOT has sound documentation 
tools, procedures and guidance. However, opportunities exist for 
ODOT to refine the EnviroNet system, accompanying procedures and 
guidance, and improve documentation standards. The team encourages 
ODOT to refine its controls and training to ensure proper 
documentation. This may include upgrades to EnviroNet and policies, 
procedure, and manuals.

Quality Assurance/Quality Control (QA/QC)

    Observation 7: There are variations in awareness, understanding, 
and implementation of QA/QC process and procedures that may result 
in the potential for inconsistencies in project documentation.
    Interviews with ODOT District and OES staff revealed differences 
in the level of knowledge and understanding of the QC process. Some 
interviewees knew that they played a role and could describe exactly 
how they complete the process. Other interviewees were less familiar 
with their role in the QC process or indicated that they had little 
to no role. In addition, some interviewees who hold the same title, 
but work in different offices (both Districts and OES), reported 
different roles or engagement in the QC process. At the same time, 
nearly all interviewees reported that they review projects or other 
NEPA documents and provide or respond to comments, indicating a 
misunderstanding of the term QC.
    In addition, interviews with ODOT District and OES staff 
revealed many of ODOT's resource area manuals and guidance documents 
contain information that can assist in the QC review process. 
Interviewees reported that the contents of the manuals or guidance 
help them determine if the document under review is in compliance, 
that all necessary analysis was complete, and that all documentation 
is included. The FHWA did hear variation in the frequency and extent 
to which interviewees utilized the manuals and guidance as a tool in 
their QC reviews. For example, many interviewees stated that they 
use the manuals and guidance on a frequent basis, but others stated 
that they do not need to reference the documents during their 
review.
    Interviews also revealed variation in the implementation of the 
QC process, particularly related to comments generated through the 
QC process. Many interviewees indicated that they were able to 
generate comments and address them through EnviroNet; however, some 
indicated that they provided comments via email or other 
methodologies. In addition, some staff discussed capturing the 
comments generated during the QC process in EnviroNet through 
different means and saving them outside of the EnviroNet system.
    The FHWA reviewed ODOT's response to the PAIR, the ODOT NEPA 
Quality Control/Quality Assurance Guidance, and the ODOT NEPA 
Assignment Self-Assessment report to obtain clarification about some 
of the variation in the District and OES responses. The PAIR 
response contains the most detailed information regarding the 
manuals and guidance documents, ODOT staff's role in the QC process, 
and how the staff should capture comments generated in the QC 
process. The QC/QA Guidance contains general information about staff 
roles in some of the QC process, but does not discuss the use of 
manuals or comment documentation. Lastly, the self-assessment report 
contains some information about use of manuals, but does not discuss 
staff roles or comment documentation.
    Review of the ODOT NEPA Quality Control/Quality Assurance 
Guidance and ODOT's response to the PAIR revealed that ODOT's QA is 
primarily comprised of its self-assessment process. Interviews with 
ODOT Districts and OES staff revealed differences in awareness and 
understanding of the self-assessment process. Many of the 
interviewees indicated they did not know about ODOT's first self-
assessment.
    The ODOT Self-Assessment report included statements about areas 
of improvement. However, FHWA was uncertain how ODOT planned to 
implement changes. Through review of ODOT's response to the PAIR and 
interviews, FHWA determined that OES provided the Districts with 
Interoffice Communication memos that contained self-assessment 
results and suggestions for improvement for the specific District. 
In addition, OES emailed the self-assessment report to the District 
Environmental Coordinator's email list (includes staff and DECs) and 
shared the results with ODOT's executive management.
    The OES stated in interviews that it is going to develop 
strategies to address programmatic issues from the self-assessment 
after it gets the results of this report. In addition, OES indicated 
that they will follow-up with Districts to determine if the 
Districts have implemented project specific corrections.
    The QC/QA guidance does not contain detailed information on some 
elements of the QA/QC process. After the interviews, FHWA has a 
better understanding that many employees use the ODOT manuals and 
guidance as reference. However, staff still seems to be unclear 
about their role in the QC process, and there is variation in 
implementation of the process. This could create inconsistencies in 
the implementation

[[Page 14101]]

of the QA/QC process around the State, particularly regarding 
project documentation. The FHWA previously encouraged ODOT to expand 
its QC/QA guidance document to include information that is more 
detailed. The ODOT indicated in its PAIR response that the final 
updated version of the QC/QA Guidance document would be available in 
the coming months.

Legal Sufficiency Review

    Observation 8: ODOT has developed guidance for legal 
sufficiency. To date, guidance on legal sufficiency is untested.
    In December 2015, ODOT developed legal sufficiency guidance 
entitled ``ODOT NEPA Assignment Legal Sufficiency Review Guidance.'' 
The guidance sets forth the review procedure and criteria. In 
addition, the guidance provides information to environmental staff 
on what criteria an attorney will focus on during the legal 
sufficiency review. Per that guidance, ODOT is required to conduct 
legal sufficiency reviews of combined Final Environmental Impact 
statements/Record of Decision documents, individual Section 4(f) 
evaluations, and Federal Register notices on the Statute of 
Limitations of claims pursuant to 23 U.S.C. 139.
    To date, ODOT has not applied this guidance because it did not 
have any documents that required legal sufficiency review. However, 
if program staff were to receive such documents, they would forward 
a request for review to a dedicated attorney assigned to OES by the 
Chief Legal Counsel. The attorney has 15 business days to complete 
the legal sufficiency review. Upon receipt of the request, the 
attorney will notify the program staff, giving the staff an 
estimated date of completion, and provide any comments and a Legal 
Sufficiency finding to the OES Administrator, Deputy Director of 
Planning, and the Chief Legal Counsel.
    Successful Practice 1: ODOT has successfully integrated a 
dedicated legal counsel as part of the environmental team.
    Per the team's suggestion, ODOT has assigned one attorney from 
the Office of Chief Legal Counsel to provide legal services on 
environmental issues to ODOT. This dedicated attorney serves as a 
resource on all environmental matters and provides legal assistance 
to OES. The dedicated staff attorney has 8 months experience in his 
position and has taken all required environmental training courses. 
However, he does rely on outside resources for complex environmental 
matters. At this time, ODOT does not have a specific, identified 
attorney to take on the work if this dedicated attorney leaves the 
agency. The ODOT should consider training a backup attorney to 
assist when the dedicated legal counsel is not available.
    Since ODOT has not completed any documents that require a legal 
sufficiency review, the team's audit on this topic is necessarily 
limited. At this time, our report on legal sufficiency reviews is a 
description of ODOT's status as described in its response to the 
PAIR and during the interviews with ODOT staff. The team will 
examine ODOT's legal sufficiency reviews by project file inspection 
and through interviews in future audits.

Performance Measures

    Observation 9: Development of a program for collecting and 
maintaining Performance Measures as defined in Part 10.2 of the MOU 
is ongoing.
    The FHWA established the Performance Measures included in MOU 
Section 10.2 to provide an overall indication of ODOT's execution of 
its responsibilities assigned by the MOU. During the interviews, the 
team learned that staff at both the Districts and OES was not 
informed about the performance measures contained in the MOU, nor of 
any actions taken by OES to address the performance measures.
    Leadership at OES indicated in interviews that they were aware 
that the MOU requires ODOT to develop criteria for information and 
the means to collect such information. However, at the time of the 
interviews, ODOT was developing a plan to address the performance 
measures but it had not yet implemented that plan. Based on the 
responses contained in the PAIR and the Department's Self-Assessment 
report, OES indicated that it intends to report on performance 
measures in the future. The ODOT's timeline to fully develop the MOU 
performance measures is unclear. The FHWA is encouraged that ODOT 
executive management may add these performance measures, once 
developed, to the ODOT Critical Success Factors, which are ODOT's 
departmental performance measures.
    The ODOT told the team that it has begun developing performance 
measures, and that further development will continue. The team did 
learn that some OES staff had considered potential means to collect 
and measure baseline data. For example, ODOT staff considered 
measuring the times for completing the NEPA/environmental process 
for pre- and post-assignment projects to compare differences of 
timeliness and efficiencies. The ODOT is currently establishing the 
baseline. The team will assess meaningful measures in Audit #2.

Training Program

Observation 10: ODOT has a robust environmental training program.

    The ODOT documented its training plan in December 2015, as 
required by Section 12.2 of the MOU. The training plan includes both 
traditional, instructor-based training courses and quarterly 
District Environmental Coordinator meetings, where ODOT's OES can 
share new information and guidance with district staff and staff can 
participate in discussions on the environmental program. The 
training plan states that ``consultants must successfully complete 
training classes to be pre-qualified in specific environmental areas 
and have specific experience required in each area.'' During 
interviews with ODOT management, the team learned that pre-
qualification requirements also include the experience of the 
consultant in providing specific services, as well as the required 
ODOT training.
    Successful Practice 2: ODOT uses pre-qualified consultants for 
environmental work. Part of the qualifying criteria is completion of 
the same training as is required of ODOT environmental staff.
    The training plan states that all ODOT environmental staff (both 
central office and district offices) are required to take the pre-
qualification training courses. Staff is encouraged to take all 
training offered, beyond the required training. The team found 
through interviews with ODOT staff that there was a major effort to 
ensure that all staff was up to date on required training. The ODOT 
management indicated that there was a one-time increase in the 
training budget to ensure that staff had the necessary training to 
carry out their NEPA responsibilities. District management staff 
also indicated their support by describing how they prioritize and 
provide time for staff to attend training. All staff interviewed 
indicated that they had always received the support of management to 
receive necessary training.
    The training plan includes a system to track training needs 
within and outside ODOT. Interviewees indicated that the NEPA 
Assignment Coordinator or the OES Training Coordinator notifies 
individuals when they need training. This includes information on 
when the training needs to be completed and when it is available. 
The system also tracks training histories for local agencies and 
consultants.
    Successful Practice 3: ODOT includes required and on-going 
training of all environmental staff and consultants.
    The ODOT's training plan relies solely on ODOT-developed 
courses, with no outside training offered in the plan. Discussions 
with ODOT management noted that they were not opposed to such 
training, as long as it was relevant to Ohio's needs and program 
implementation. In support of this statement, ODOT management 
pointed to an upcoming National Highway Institute (NHI) training for 
ODOT staff on public speaking. Additionally, ODOT has sent staff to 
other Federal agency training, such as the conservation training 
offered by the U.S. Fish and Wildlife Service.
    Currently ODOT's training plan for required environmental 
courses consists of only instructor-led training and in-person 
meetings. Such courses allow for interaction among staff, 
consultants, and local agencies. However, ODOT management noted that 
relying solely on instructor-based training is costly and time 
consuming. The ODOT told the team that it is currently assessing 
each of its training courses to determine if any would be more 
suitable as web-based or electronic learning courses. The FHWA 
encourages ODOT to continue this evaluation and incorporate web 
based courses as appropriate.

Observation 11: Opportunities exist for expanding training in EJ.

    In its Self-Assessment report, ODOT identified EJ as an area 
needing improvement. The team asked several ODOT staff about EJ 
training opportunities. While most staff indicated that they had 
received such training within the past 5 years, they also noted that 
such training was part of a larger course, such as the ``NEPA--
Managing the Environmental and Project Development Process'' course, 
the ``Categorical Exclusion'' course, or the ``Public Involvement'' 
course.

[[Page 14102]]

There is not a stand-alone training course on EJ in ODOT's Training 
Plan. In one District, a project manager (non-environmental staff) 
stated they had never received training on EJ. When the team asked 
management in one district about expectations for EJ, management 
indicated that they had none.
    The ODOT management identified EJ as an area needing improvement 
in their Self-Assessment report. In the interim, FHWA encourages 
ODOT to consider EJ training for its staff and consultants, offered 
by the NHI and/or the FHWA Resource Center.

Next Steps

    The FHWA provided a draft of this audit report to ODOT for a 14-
day review and comment period and considered ODOT's comments in 
developing this draft report. In addition, FHWA will publish a 
notice in the Federal Register to make the report available to the 
public and for a 30-day comment period, pursuant to 23 U.S.C. 
327(g). No later than 60 days after the close of the comment period, 
FHWA will respond to all comments submitted, pursuant to 23 U.S.C. 
327(g)(2)(B). Once finalized, FHWA will publish the audit report in 
the Federal Register.
[FR Doc. 2017-05244 Filed 3-15-17; 8:45 am]
 BILLING CODE 4910-22-P