Surface Transportation Project Delivery Program; Ohio Department of Transportation Audit Report, 31673-31680 [2017-14233]
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BILLING CODE 4910–13–P
DEPARTMENT OF TRANSPORTATION
Federal Highway Administration
[FHWA Docket No. FHWA–2016–0034]
Surface Transportation Project
Delivery Program; Ohio Department of
Transportation Audit Report
Federal Highway
Administration (FHWA), DOT.
ACTION: Notice.
AGENCY:
The Moving Ahead for
Progress in the 21st Century Act (MAP–
21) established the permanent Surface
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SUMMARY:
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 makes
available the final report of Ohio
Department of Transportation’s (ODOT)
first audit under the program.
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.Maldonado@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., EST, 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. The FHWA published a
notice in the Federal Register on March
16, 2017, soliciting public comment for
30-days, pursuant to 23 U.S.C. 327(g).
This notice is available at 82 FR 14096.
The FHWA received comments on the
draft report from the American Road &
Transportation Builders Association
(ARTBA). The ARTBA’s comments were
supportive of the Surface Transportation
Project Delivery Program and did not
relate specifically to Audit #1. The team
has considered these comments in
finalizing this audit report. This notice
makes available the final report of
ODOT’s first audit under the program.
Authority: 23 U.S.C 327; 23 CFR 773; 49
CFR 1.85.
Issued on: June 29, 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
TABLE OF CONTENTS
Background .....................................................................................................................................................................................................
Scope and Methodology ................................................................................................................................................................................
Overall Audit Opinion ............................................................................................................................................................................
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 .......................................
Observation 2: ODOT has proactively revised its policies, manuals, guidance, and processes to ensure that they are current and compliant with NEPA Assignment requirements ........................................................................................................
Observation 3: EnviroNet, ODOT’s robust and comprehensive NEPA process system, has facilitated implementation of
NEPA Assignment ........................................................................................................................................................................
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Observation 4: ODOT does not include EAs, EISs, or their re-evaluations in the EnviroNet system in the same way as Categorical Exclusions (CE) ...............................................................................................................................................................
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) .................................................................................................................................................................................................
Observation 6: The team identified several instances where the information included in the online environmental file did
not follow ODOT standards .........................................................................................................................................................
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 .......................................................................
Legal Sufficiency Review ........................................................................................................................................................................
Observation 8: ODOT has developed guidance for legal sufficiency. To date, guidance on legal sufficiency is untested ......
Successful Practice 1: ODOT has successfully integrated a dedicated legal counsel as part of the environmental team .......
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 .................................................................................................................................................................
Training Program .....................................................................................................................................................................................
Observation 10: ODOT has a robust environmental training program ........................................................................................
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 ...............................................................................
Successful Practice 3: ODOT includes required and on-going training of all environmental staff and consultants ...............
Observation 11: Opportunities exist for expanding training in EJ ...............................................................................................
Preparation and Comment on the Draft Report ..........................................................................................................................................
Finalization of Report ....................................................................................................................................................................................
Executive Summary
As part of responsibilities specified in
23 U.S.C. 327, as amended by the Fixing
America’s Surface Transportation
(FAST) Act (P.L. 114–94), 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 preaudit 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
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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. Projectlevel 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); and (3)
stipulated in the MOU between FHWA
and ODOT for the Assignment Program.
The team did not make any programlevel non-compliance observations
during this first review; however, the
team did note project-level noncompliance 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
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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 (SAFETEA–LU).
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
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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 NEPArelated 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-togovernment 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
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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.
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
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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 SelfAssessment 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.
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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, noncompliance 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
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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 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
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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, biweekly 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 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 proactive 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
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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.
1 Available at: https://www.dot.state.oh.us/NEPAAssignment/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 noncompliance.
Observation 4: ODOT does not
include EAs, EISs, or their reevaluations 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 reevaluations, 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 reevaluations 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,
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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.
Areas Noted in Need of Improvement by
Agency
Areas in Need of Improvement
FHWA
ODOT
PI ......................................
EJ ......................................
Floodplains .......................
Environmental Commitments ............................
Wetlands Findings per
E.O. 11990 ....................
Section 4(f) .......................
Project File Management *
✓
✓
✓
✓
✓
✓
✓
✓
✓
✓
✓
✓
............
✓
* ODOT’s Self-Assessment identified Project
File Management (Documentation) is another
area in need of improvement, in terms of documentation input errors within the EnviroNet
project file.
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 SelfAssessment 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.
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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
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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 selfassessment 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 selfassessment.
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 selfassessment 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
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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 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
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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
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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 prequalification requirements also include
the experience of the consultant in
providing specific services, as well as
the required ODOT training.
Successful Practice 2: ODOT uses prequalified 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
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31679
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 inperson 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 webbased 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. There
is not a stand-alone training course on
EJ in ODOT’s Training Plan. In one
District, a project manager (nonenvironmental 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
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training for its staff and consultants,
offered by the NHI and/or the FHWA
Resource Center.
FOR FURTHER INFORMATION CONTACT:
Preparation and Comment on the Draft
Report
In consultation with ODOT, FHWA
prepared a draft audit report and
provided this draft to ODOT for a 14day review and comment period. After
considering ODOT’s comments, FHWA
published a notice in the Federal
Register on March 16, 2017, soliciting
public comment for 30-days, pursuant
to 23 U.S.C. 327(g). This notice is
available at 82 FR 14096.
Finalization of Report
The FHWA received comments on the
draft report from the American Road &
Transportation Builders Association
(ARTBA). The ARTBA’s comments were
supportive of the Surface Transportation
Project Delivery Program and did not
relate specifically to Audit #1. The team
has considered these comments in
finalizing this audit report.
Since the completion of this report,
staff from ODOT and FHWA have
established quarterly partnering
sessions where observations and other
issues relating to NEPA assignment are
being discussed, clarified, and resolved.
[FR Doc. 2017–14233 Filed 7–6–17; 8:45 am]
BILLING CODE 4910–22–P
DEPARTMENT OF TRANSPORTATION
Federal Highway Administration
Notice of Final Federal Agency Actions
on Proposed Gravina Access Project
in Alaska
Federal Highway
Administration (FHWA), Department of
Transportation (DOT).
ACTION: Notice of limitation of claims for
judicial review of actions by FHWA and
other Federal agencies.
AGENCY:
This notice announces final
actions taken by FWHA. The actions
relate to the proposed Gravina Access
Project in the Ketchikan Gateway
Borough in the State of Alaska. Those
actions grant approvals for the project.
DATES: By this notice, FHWA is advising
the public of final agency actions
subject to 23 U.S.C. 139(l)(1). A claim
seeking judicial review of FHWA
actions on the Gravina Access Project
will be barred unless the claim is filed
on or before December 4, 2017. If the
Federal law that authorizes judicial
review of a claim provides a time period
of less than 150 days for filing such
claim, then that shorter time period still
applies.
asabaliauskas on DSKBBXCHB2PROD with NOTICES
SUMMARY:
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Karen Pinell, Assistant Division
Administrator, Alaska Division Office,
FHWA, P.O. Box 21648, Juneau, Alaska
99802, Telephone (907) 586–7158. The
FHWA Alaska Division Office’s normal
business hours are 8:00 a.m. to 5:00 p.m.
(Alaska Standard Time), Monday
through Friday, except Federal holidays.
You may also contact Kirk Miller, P.E.,
Project Manager, DOT&PF Southcoast
Region, 6860 Glacier Highway, Juneau,
Alaska 99801–7999, Telephone (907)
465–1215. The DOT&PF Southcoast
Region’s normal business hours are 8:00
a.m. to 4:30 p.m. (Alaska Standard
Time), Monday through Friday, except
State and Federal holidays.
SUPPLEMENTARY INFORMATION: Notice is
hereby given that FHWA has taken final
agency action subject to 23 U.S.C.
139(l)(1) by issuing licenses, permits,
and approvals for the Gravina Access
Project in the State of Alaska. The
Gravina Access Project proposes to
improve access between Revillagigedo
Island and Gravina Island in the
Ketchikan Gateway Borough, Alaska.
The project includes the following
components:
1. Reconstruction of existing airport
ferry berths to meet current design
standards;
2. Upgrades and improvements to
pedestrian facilities at the airport ferry
terminals;
3. A new heavy freight mooring
facility and new ferry layup dock on
Gravina Island;
4. Shuttle vans to carry pedestrians
and their luggage to/from the airport;
5. New toll facilities;
6. Replacement of the bridge over
Airport Creek; and
7. Reconstruction of Seley Road from
Lewis Reef Road to approximately the
end of the Airport Reserve.
The actions by FHWA and the laws
under which such actions were taken
are described in the Gravina Access
Project Final Environmental Impact
Statement (SEIS) and Record of Decision
(ROD) issued on July 7, 2017, and in
other documents in the project records.
The Final SEIS, ROD, and other project
records are available by contacting
FHWA at the address provided above.
The Final SEIS and ROD can be viewed
and downloaded from the project Web
site at: at: https://dot.alaska.gov/sereg/
projects/gravina_access/ or by
contacting FHWA at the address
provided above.
This notice applies to all FHWA
decisions as of the issuance date of this
notice and all laws under which such
actions were taken. Laws generally
applicable to such actions include but
are not limited to:
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1. General: National Environmental
Policy Act (NEPA) [42 U.S.C. 4321–
4351; Federal-Aid Highway Act [23
U.S.C. 109].
2. Wildlife: Fish and Wildlife
Coordination Act [16 U.S.C. 661–667d;
Migratory Bird Treaty Act [16 U.S.C.
703–712], Magnuson-Stevens Fisheries
Conservation and Management Act of
1976, as amended [16 U.S.C. 1801–
1891d, Bald and Golden Eagle
Protection Act [16 U.S.C. 668–668d),
Endangered Species Act (16 U.S.C
1536).
3. Waters of the U.S.: Section 404 of
the Clean Water Act [33 U.S.C. 1344].
4. Cultural Resources: Section 106 of
the National Historic Preservation Act of
1966, as amended [54 U.S.C. 306108];
Archaeological and Historic
Preservation Act [54 U.S.C. 312501–
312508]; Archaeological Resources
Protection Act of 1977 [16 U.S.C.
470(aa)-470mm].
5. Executive Orders: Executive Order
12898, Environmental Justice; Executive
Order 11988, Floodplain Management;
Executive Order 11990, Protection of
Wetlands; Executive Order 13112,
Invasive Species; Executive Order 13166
Improving Access to Services for
Persons with Limited English
Proficiency; Executive Order 13186
Migratory Birds; Executive Order 11593,
Protection and Enhancement of the
Cultural Environment; and Executive
Order 13175, Consultation and
Coordination with Indian Tribal
Governments.
Authority: 23 U.S.C. 139(l)(1).
Issued On: June 27, 2017.
Sandra A. Garcia-Aline,
Alaska Division Administrator, Juneau,
Alaska.
[FR Doc. 2017–14234 Filed 7–6–17; 8:45 am]
BILLING CODE 4910–22–P
DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety
Administration
[Docket No. FMCSA–2017–0175]
Hours of Service of Drivers:
Application for Exemption; Rail
Delivery Services (RDS)
Federal Motor Carrier Safety
Administration (FMCSA), DOT.
ACTION: Notice of application for
exemption; request for comments.
AGENCY:
FMCSA announces that it has
received an application from Rail
Delivery Services (RDS) for an
exemption to spare its drivers who stay
within a 100 air-mile radius of their
SUMMARY:
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Agencies
[Federal Register Volume 82, Number 129 (Friday, July 7, 2017)]
[Notices]
[Pages 31673-31680]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-14233]
-----------------------------------------------------------------------
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.
-----------------------------------------------------------------------
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
makes available the final report of Ohio Department of Transportation's
(ODOT) first audit under the program.
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.Maldonado@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., EST, 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. The FHWA published a
notice in the Federal Register on March 16, 2017, soliciting public
comment for 30-days, pursuant to 23 U.S.C. 327(g). This notice is
available at 82 FR 14096. The FHWA received comments on the draft
report from the American Road & Transportation Builders Association
(ARTBA). The ARTBA's comments were supportive of the Surface
Transportation Project Delivery Program and did not relate specifically
to Audit #1. The team has considered these comments in finalizing this
audit report. This notice makes available the final report of ODOT's
first audit under the program.
Authority: 23 U.S.C 327; 23 CFR 773; 49 CFR 1.85.
Issued on: June 29, 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
TABLE OF CONTENTS
Background..................................................... 7
Scope and Methodology.......................................... 8
Overall Audit Opinion...................................... 9
Observations and Successful Practices.......................... 11
Program Management......................................... 11
Observation 1: ODOT has established a strategy, 11
direction, and framework for the integration and
implementation of NEPA Assignment throughout ODOT,
including OES, Districts, agencies, LPAs, and
consultants...........................................
Observation 2: ODOT has proactively revised its 12
policies, manuals, guidance, and processes to ensure
that they are current and compliant with NEPA
Assignment requirements...............................
Observation 3: EnviroNet, ODOT's robust and 12
comprehensive NEPA process system, has facilitated
implementation of NEPA Assignment.....................
[[Page 31674]]
Observation 4: ODOT does not include EAs, EISs, or 13
their re-evaluations in the EnviroNet system in the
same way as Categorical Exclusions (CE)...............
Documentation and Records Management....................... 13
Observation 5: FHWA identified project-level compliance 13
issues with 12 projects in 7 environmental resource
areas, including: Public Involvement, Environmental
Justice, Environmental Commitments, Wetlands,
Floodplains, and Section 4(f).........................
Observation 6: The team identified several instances 14
where the information included in the online
environmental file did not follow ODOT standards......
Quality Assurance/Quality Control (QA/QC).............. 14
Observation 7: There are variations in awareness, 15
understanding, and implementation of QA/QC process and
procedures that may result in the potential for
inconsistencies in project documentation..............
Legal Sufficiency Review................................... 16
Observation 8: ODOT has developed guidance for legal 16
sufficiency. To date, guidance on legal sufficiency is
untested..............................................
Successful Practice 1: ODOT has successfully integrated 17
a dedicated legal counsel as part of the environmental
team..................................................
Performance Measures................................... 17
Observation 9: Development of a program for collecting 17
and maintaining Performance Measures as defined in
Part 10.2 of the MOU is ongoing.......................
Training Program........................................... 18
Observation 10: ODOT has a robust environmental 18
training program......................................
Successful Practice 2: ODOT uses pre-qualified 18
consultants for environmental work. Part of the
qualifying criteria is completion of the same training
as is required of ODOT environmental staff............
Successful Practice 3: ODOT includes required and on- 18
going training of all environmental staff and
consultants...........................................
Observation 11: Opportunities exist for expanding 19
training in EJ........................................
Preparation and Comment on the Draft Report.................... 19
Finalization of Report......................................... 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 (P.L. 114-
94), 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); 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 (SAFETEA-LU).
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
[[Page 31675]]
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.
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.
[[Page 31676]]
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 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 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
[[Page 31677]]
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.
---------------------------------------------------------------------------
\1\ Available at: https://www.dot.state.oh.us/NEPA-Assignment/Documents/ODOT_NEPA_File_Management.pdf.
---------------------------------------------------------------------------
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.
------------------------------------------------------------------------
Areas Noted in Need of Improvement by Agency
-------------------------------------------------------------------------
Areas in Need of Improvement FHWA ODOT
------------------------------------------------------------------------
PI.................................................. [check] [check]
EJ.................................................. [check] [check]
Floodplains......................................... [check] [check]
Environmental Commitments........................... [check] [check]
Wetlands Findings per E.O. 11990.................... [check] [check]
Section 4(f)........................................ [check] ........
Project File Management *........................... [check] [check]
------------------------------------------------------------------------
* ODOT's Self-Assessment identified Project File Management
(Documentation) is another area in need of improvement, in terms of
documentation input errors within the EnviroNet project file.
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.
[[Page 31678]]
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 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
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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.
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
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training for its staff and consultants, offered by the NHI and/or the
FHWA Resource Center.
Preparation and Comment on the Draft Report
In consultation with ODOT, FHWA prepared a draft audit report and
provided this draft to ODOT for a 14-day review and comment period.
After considering ODOT's comments, FHWA published a notice in the
Federal Register on March 16, 2017, soliciting public comment for 30-
days, pursuant to 23 U.S.C. 327(g). This notice is available at 82 FR
14096.
Finalization of Report
The FHWA received comments on the draft report from the American
Road & Transportation Builders Association (ARTBA). The ARTBA's
comments were supportive of the Surface Transportation Project Delivery
Program and did not relate specifically to Audit #1. The team has
considered these comments in finalizing this audit report.
Since the completion of this report, staff from ODOT and FHWA have
established quarterly partnering sessions where observations and other
issues relating to NEPA assignment are being discussed, clarified, and
resolved.
[FR Doc. 2017-14233 Filed 7-6-17; 8:45 am]
BILLING CODE 4910-22-P