Surface Transportation Project Delivery Program; Ohio Department of Transportation Audit Report, 61677-61680 [2019-24654]

Download as PDF Federal Register / Vol. 84, No. 219 / Wednesday, November 13, 2019 / Notices DEPARTMENT OF TRANSPORTATION Federal Highway Administration [FHWA Docket No. FHWA–2019–001] Surface Transportation Project Delivery Program; Ohio Department of Transportation Audit Report Federal Highway Administration (FHWA), U.S. Department of Transportation (DOT). ACTION: Notice. AGENCY: The Moving Ahead for Progress in the 21st Century Act (MAP– 21) established the Surface Transportation Project Delivery Program that allows a State to assume FHWA’s environmental responsibilities for environmental review, consultation, and compliance under the National Environmental Policy Act (NEPA) for Federal 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. This program mandates annual audits during each of the first 4 years of State participation to ensure compliance with program requirements. This notice makes available the final report of Ohio Department of Transportation’s (ODOT) third audit under the program. FOR FURTHER INFORMATION CONTACT: Mr. James G. Gavin, Office of Project Development and Environmental Review, (202) 366–1473, James.Gavin@ dot.gov, Federal Highway Administration, U.S. Department of Transportation, 1200 New Jersey Avenue SE, Washington, DC 20590, or Mr. David Sett, Office of the Chief Counsel, (404) 562–3676, david.sett@ dot.gov, Federal Highway Administration, U.S. Department of Transportation, 60 Forsyth Street 8M5, Atlanta, GA 30303. Office hours are from 8:00 a.m. to 4:30 p.m., e.t., Monday through Friday, except Federal holidays. SUPPLEMENTARY INFORMATION: SUMMARY: 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, commonly known as the NEPA Assignment Program, allows a State to assume FHWA’s responsibilities for environmental review, consultation, and compliance for Federal highway projects. When a State assumes these Federal responsibilities, the State VerDate Sep<11>2014 17:23 Nov 12, 2019 Jkt 250001 becomes solely liable for carrying out the responsibilities it has assumed, in lieu of FHWA. 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 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, 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. Section 327(g) of Title 23, U.S.C., requires the Secretary to conduct annual audits to ensure compliance with the MOU during each of the first 4 years of State participation and, after the fourth year, monitor compliance. The results of each audit must be made available for public comment. The FHWA published a notice in the Federal Register on March 8, 2018, at 84 FR 8560, soliciting public comment for 30 days, pursuant to 23 U.S.C. 327(g). The FHWA received comments on the draft report from the American Road and Transportation Builders Association (ARTBA). The ARTBA’s comments were supportive of the Surface Transportation Project Delivery Program and did not relate specifically to Audit 3. The team has considered these comments in finalizing this audit report. This notice makes available the final report of ODOT’s third audit under the program. Authority: Section 1313 of Public Law 112–141; Section 6005 of Public Law 109–59; 23 U.S.C. 327; 23 CFR 773. Nicole R. Nason, Administrator, Federal Highway Administration. Surface Transportation Project Delivery Program FHWA Audit of the Ohio Department of Transportation August 5, 2017, to August 10, 2018 Executive Summary This is the third audit of the Ohio Department of Transportation’s (ODOT) assumption of National Environmental Policy Act (NEPA) responsibilities, conducted by a team of Federal Highway Administration (FHWA) staff (the team). The ODOT made the effective date of the project-level NEPA and environmental review PO 00000 Frm 00084 Fmt 4703 Sfmt 4703 61677 responsibilities it assumed from FHWA on December 28, 2015, as specified in a memorandum of understanding (MOU) signed on December 11, 2015, and amended on June 6, 2018. Within ODOT, the Division of Planning Office of Environmental Services (OES) is responsible to manage and deliver the environmental program. This audit examined ODOT’s performance under the MOU regarding responsibilities and obligations assigned therein. Prior to the on-site visit, the team performed reviews of ODOT’s project NEPA approval documentation in EnviroNet (ODOT’s official electronic environmental document filing system). This audit consisted of a review of a sample of 39 higher-risk project files out of 1,042 approved documents for Federal projects in ODOT’s EnviroNet system with an environmental approval date between April 1, 2017, and March 31, 2018. The team also reviewed ODOT’s response to the pre-audit information request (PAIR) and ODOT’s Self-Assessment report. In addition, the team reviewed ODOT’s environmental processes, manuals, and guidance; ODOT NEPA Quality Assurance and Quality Control (QA/QC) Processes and Procedures; and the ODOT NEPA Assignment Training Plan (collectively, ‘‘ODOT procedures’’). The team conducted an on-site review during the week of August 6 to August 10, 2018. The team conducted interviews with ODOT’s central office staff on August 6, 2018, and with three district office staffs on August 7, 2018. The team also interviewed staff with the Ohio Department of Natural Resources (ODNR) on July 23, 2018, as part of the review. Overall, the team found evidence that ODOT continues to make reasonable progress in implementing the NEPA Assignment Program based on Audit 1 and Audit 2 observations and demonstrated commitment to success of the program. The team found zero noncompliance observations but did note six general observations. Background The Surface Transportation Project Delivery Program (NEPA Assignment Program) allows a State to assume FHWA’s responsibilities for review, consultation, and compliance with environmental laws for Federal-aid highway projects. When a State assumes these responsibilities, it becomes solely responsible and liable for carrying out the responsibilities assumed, in lieu of FHWA. The State of Ohio represented by ODOT completed the application process and entered an MOU with E:\FR\FM\13NON1.SGM 13NON1 61678 Federal Register / Vol. 84, No. 219 / Wednesday, November 13, 2019 / Notices FHWA on December 28, 2015, and amended on June 6, 2018. With this agreement, ODOT assumed FHWA’s project approval responsibilities under NEPA and NEPA-related Federal environmental laws. The FHWA is obligated to conduct four annual compliance audits of ODOT’s compliance with the provisions of the MOU. Audits serve as FHWA’s primary mechanism of determining ODOT’s compliance with the MOU, applicable Federal laws and policies, evaluating ODOT’s progress toward achieving the performance measures identified in the MOU, and collecting information needed for the Secretary’s annual report to Congress. The team provided a draft of this report to ODOT for its review and the team considered the resulting comments in preparing the draft which was made available for public review and comment. The FHWA considered public comments on the draft in finalizing this report. Scope and Methodology The team conducted a careful examination of the ODOT NEPA Assignment Program through a review of ODOT procedures and project documentation, ODOT’s PAIR response, and the self-assessment summary report, as well as interviews with ODOT central office and district environmental staff and resource agency staff. This review focuses on the following six NEPA Assignment Program elements: (1) Program management; (2) documentation and records management; (3) QA/QC; (4) legal sufficiency; (5) performance measurement; and (6) training. The PAIR consisted of 18 questions, based on the responsibilities assigned to ODOT in the MOU. The team reviewed ODOT’s response and compared the responses to ODOT’s written procedures. The team utilized ODOT’s responses to draft interview questions to clarify information in ODOT’s PAIR response. The ODOT provided its NEPA Assignment Self-Assessment summary report 30 days prior to the team’s on-site review. The team considered this summary report both in focusing on issues during the project file reviews and in drafting interview questions. The report was compared against the previous year’s self-assessment report and the requirements in the MOU to identify any trends. Between March 16 and May 31, 2018, the team conducted a project file review by identifying and reviewing 39 higherrisk project files out of 1,042 approved documents of Federal-aid projects in VerDate Sep<11>2014 17:23 Nov 12, 2019 Jkt 250001 ODOT’s EnviroNet system with an environmental approval date between April 1, 2017, and March 31, 2018. The selection of these projects was based on a 100 percent sampling of d-listed Categorical Exclusions (CE), as well as all Environmental Assessments (EA) and Environmental Impact Statements. The team excluded from review those projects approved by ODOT under 23 CFR 771.117(c) (c-listed CEs) based on the review performance of those types of projects since ODOT assumed NEPA responsibilities in 2015. The projects reviewed represented all remaining NEPA classes of action available, including projects representing 9 out of 12 ODOT Districts and the Ohio Rail Development Commission. In addition, the team reviewed ODOT’s project file review associated with its self-assessment to determine if ODOT evaluated its projects in a similar fashion and using similar standards to that of the Federal portion of this review. The ODOT reviewed projects within the same sampling period as FHWA, however, ODOT samples included Federal-aid and State-only funded projects. The ODOT conducts NEPA on all projects regardless of funding source as they routinely convert funding from State to Federal later via the Advanced Construction process. The ODOT reviewed 248 projects, including 186 c-listed projects, 61 d-listed projects, and 1 EA. The team determined the State performed a rigorous annual QA review of its own projects. During the on-site review week, the team conducted interviews with 21 ODOT staff members at the central office and three districts: District 6 (Delaware); District 7 (Sydney); and District 10 (Marietta). Interviewees included ODOT OES management and subject matter experts, Office of Diversity and Inclusion (ODI), District Environmental Coordinators (DEC), environmental staff, and public information officers, representing a diverse range of expertise and experience. These interviews focused on NEPA Assignment with emphasis on items where additional information was deemed necessary to complete the review. The team conducted interviews 2 weeks prior to the on-site review with personnel from the ODNR. The ODNR staff provided valuable insight to the review team regarding ODOT’s performance and relationships with partner resource agencies. The team identified gaps between the information from the desktop review of ODOT procedures, PAIR, selfassessment, project file review, and PO 00000 Frm 00085 Fmt 4703 Sfmt 4703 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 audit results are described below. Overall, the team found evidence that ODOT continues to make reasonable progress in implementing the NEPA Assignment Program based on the Audit 1 and Audit 2 observations and demonstrated commitment to success of the program. The team found zero noncompliance observations but did note six general observations. The FHWA team urges ODOT to monitor and make additional improvements to the program for continued successes of the program. Observations and Successful Practices Program Management Observation 1: Opportunities Exist To Strengthen Coordination Between ODOT OES and ODOT ODI. The team encourages ODOT to ensure that a proper level of communication exists between OES and ODI in order to facilitate the coordination of OES guidance and training with the ongoing ODOT-wide Title VI program enhancements. The FHWA recognizes and is supportive of the coordination and partnering efforts between OES and ODI undertaken to date and stands ready to contribute to these efforts, where appropriate. Observation 2: There Are Inconsistencies in the Communication and Management of ODOT Policy, Manuals, Procedures, and Guidance The ODOT developed and implemented over 140 procedures to implement NEPA Assignment, manage the program, and provide detailed instruction for completion of environmental actions to document preparers and reviewers. The ODOT shares these documents and other guidance with NEPA practitioners on a quarterly basis via email, NEPA chats and DEC Meetings, and via training. In addition, these documents are saved on a local drive accessible by ODOT environmental staff and posted to ODOT’s website for consultants and local public agencies. The FHWA found that policies, manuals, and other guidance documents are readily available. However, interviews with district staff indicate that opportunities exist to improve upon the communication of this documentation in order to ensure more consistent implementation. In addition, there are examples of training materials E:\FR\FM\13NON1.SGM 13NON1 Federal Register / Vol. 84, No. 219 / Wednesday, November 13, 2019 / Notices containing information that is not included in the related guidance documents. In these cases, some environmental staff indicated they rely on the information in the guidance while others indicated they rely on OES instruction provided verbally or through email. Information prepared for ODOT staff should exhibit consistency, regardless of the form in which its presented. Observation 3: Inconsistencies Remain in Public Involvement (PI) Activities Specifically Regarding Outreach Activities to Underserved and Protected Populations The team notes and appreciates ongoing efforts by ODOT in response to previous audit recommendations for improvement and enhancement of the PI process. The team was provided examples of effective PI efforts during the interviews with district staff. However, as demonstrated in the project file reviews and the interviews, there remain areas of note in application and consistency of public involvement efforts and activities. During FHWA’s review, ODOT stated that the intent of its process regarding Environmental Justice (EJ) is to identify any disproportionately high and adverse impacts and disparate impacts on the associated populations. Although OES staff indicated that they have updated the guidance, developed new training, and provided forums for instructive discussion for all environmental staff, consultants, and Local Public Agencies, it is not clear how ODOT will ensure that outreach efforts and activities are commensurate with the level of impact or potential mitigation, as there is no discussion of outreach efforts in the ODOT–OES’ Underserved Populations Guidance. It is unclear that the distinctions and specific requirements of protected populations are fully discerned and distinguished from each other in the guidance document, including thresholds and requirements. In addition, interview responses within OES indicated a difference of opinion in terms of what constituted outreach to underserved and protected populations. At the district level, ODOT District environmental staff indicated that they had inconsistent information on how to determine if there were protected populations and how to conduct the required outreach activities, even if there were no disproportionately negative impacts. However, OES is trusting the districts, on projects with a lower level of NEPA classification, to ensure full and fair participation by underserved and protected populations in public involvement, NEPA and the VerDate Sep<11>2014 17:23 Nov 12, 2019 Jkt 250001 Selected ODOT OES and district environmental staff said that they rely on the ODOT Central Office for QC support. No training is provided exclusively for QA/QC. transportation decisionmaking processes. Documentation and Records Management Observation 4: Opportunities Exist To Continue Improving Documentation in the Areas of PI, EJ, and Environmental Commitments In response to previous audits and self-assessments, ODOT updated many procedures relating to the NEPA process to improve its processes and meet Federal requirements. The updates included changes to ODOT’s internal documentation and filing guidelines and updates to EnviroNet. The review team thinks these changes have positively impacted the program since Audits 1 and 2. The quality of documentation for projects is trending in a positive direction since Audits 1 and 2, as approximately 50 percent of all projects reviewed had zero deficiencies noted by the team. However, although there were examples of high quality PI, EJ reviews, development of environmental commitments, and documentation for some projects, these same elements were lacking in others. For the projects reviewed, 42 percent of substantive comments made by the team related to EJ, 22 percent to PI, 17 percent to environmental commitments, 11 percent to QA/QC, and 8 percent to documentation. This demonstrates inconsistencies in practice, which may indicate additional training, guidance, and/or quality controls may be needed to improve consistency in application of documentation statewide. The team met with ODOT to discuss individual deficiencies noted by both FHWA and ODOT OES during this audit. The ODOT evaluated these deficiencies at OES and then communicated them individually with the districts. The ODOT remains committed to improvements in documentation, with plans to continue updates to EnviroNet and guidance, as needed, and with the training required to deliver results. Quality Assurance/Quality Control Observation 5: There Are Variations in Awareness, Understanding, and Implementation of QA/QC Process and Procedures The inconsistencies and missing information noted in the Documentation and Records Management section are an indication of inconsistency in ODOT’s QA/QC process. The team found inconsistencies in awareness and use of peer reviews in the ODOT Districts, as well as use of comments in EnviroNet. PO 00000 Frm 00086 Fmt 4703 Sfmt 4703 61679 Legal Sufficiency Review The ODOT utilized its guidance for legal sufficiency to review one Environmental Impact Statement Reevaluation, one EA, and two Individual Section 4(f) approvals. Performance Measures The development of Performance Measures is required in MOU Section 10.2. The ODOT has refined its Performance Measures to provide a better overall indication of ODOT’s execution of its responsibilities as assigned by the MOU. The team found evidence that the results obtained through the Performance Measures are beginning to provide actionable feedback, allowing ODOT to make appropriate changes as it manages its environmental program. Training Program During the previous audits, it was noted that ODOT has a robust environmental training program and provides adequate budget and time for staff to access a variety of internal and external training. To add to the training program and plan, ODOT has complemented its traditional, instructor-based training courses, quarterly DEC meetings, and monthly NEPA chats with the development of several online courses. During the audit, ODOT reported that 10 online courses are anticipated to be available in August 2018, with an additional 19 online courses anticipated to be developed within the year. As of October 2018, it is not evident that these courses were yet deployed. Observation 6: Opportunities Exist To Expand Required and Continuous Training to Additional Staff and Develop Additional Instructor-Led or Online Training in NEPA-Related Subject Areas Also, during the previous audit, it was noted ODOT’s training plan states that all ODOT environmental staff (both central and district offices) and environmental consultants are required to take the pre-qualification training courses. The ODOT should consider extending this requirement to NEPA project managers and public involvement officers. Extending the training to additional staff may improve public outreach efforts and overall program delivery. The ODOT should focus on training in NEPA and NEPA- E:\FR\FM\13NON1.SGM 13NON1 61680 Federal Register / Vol. 84, No. 219 / Wednesday, November 13, 2019 / Notices related subject areas such as Limited English Proficiency and Public Involvement. The FHWA encourages ODOT to include specific EJ training opportunities in its training plan, such as the Web-based course currently under development. Finalization of Report The FHWA received one response to the Federal Register Notice during the public comment period for the draft report. This response, from the American Road and Transportation Builders Association, was supportive of the Surface Transportation Delivery Program and did not relate specifically to Audit 3. This final report is substantively the same as the draft version. [FR Doc. 2019–24654 Filed 11–12–19; 8:45 am] BILLING CODE 4910–22–P DEPARTMENT OF TRANSPORTATION Federal Highway Administration [FHWA Docket No. FHWA–2019–0009] Surface Transportation Project Delivery Program; Utah Department of Transportation Audit Report Federal Highway Administration (FHWA), U.S. Department of Transportation (DOT). ACTION: Notice. AGENCY: The Moving Ahead for Progress in the 21st Century Act (MAP– 21) established the Surface Transportation Project Delivery Program that allows a State to assume FHWA’s environmental responsibilities for environmental review, consultation, and compliance under the National Environmental Policy Act (NEPA) for Federal 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. This program mandates annual audits during each of the first 4 years of State participation to ensure compliance with program requirements. This notice finalizes the findings of the second audit report for the Utah Department of Transportation (UDOT). FOR FURTHER INFORMATION CONTACT: Ms. Deirdre Remley, Office of Project Development and Environmental Review, (202) 366–0524, Deirdre.Remley@dot.gov, 1200 New Jersey Avenue SE, Washington, DC 20590; or Mr. David Sett, Office of the Chief Counsel, (404) 562–3676, David.Sett@dot.gov, Federal Highway Administration, U.S. Department of SUMMARY: VerDate Sep<11>2014 17:23 Nov 12, 2019 Jkt 250001 Transportation, 60 Forsyth Street 8M5, Atlanta, GA 30303. Office hours are from 8:00 a.m. to 4:30 p.m., e.t., Monday through Friday, except Federal holidays. SUPPLEMENTARY INFORMATION: report incorporates the results of the draft report unchanged. Electronic Access Nicole R. Nason, Administrator, Federal Highway Administration. 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, commonly known as the NEPA Assignment Program, 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. The UDOT published its application for NEPA assumption on October 9, 2015, and made it available for public comment for 30 days. After considering public comments, UDOT submitted its application to FHWA on December 1, 2015. The application served as the basis for developing a memorandum of understanding (MOU) that identified the responsibilities and obligations that UDOT would assume. The FHWA published a notice of the draft MOU in the Federal Register on November 16, 2016, 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 UDOT considered comments and proceeded to execute the MOU. Effective January 17, 2017, UDOT 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, U.S.C., requires the Secretary to conduct annual audits to ensure compliance with the MOU during each of the first 4 years of State participation and, after the fourth year, monitor compliance. The FHWA must make the results of each audit available for public comment. This notice finalizes the findings of the second audit report for UDOT participation in the NEPA Assignment program. The FHWA published a draft version of this report in the Federal Register on April 16, 2019, at 84 FR 15663, and made it available for public review and comment for 30 days in accordance with 23 U.S.C. 327(g). The FHWA did not receive any responses to the Federal Register notice during the public comment period for the draft report. This final version of the audit PO 00000 Frm 00087 Fmt 4703 Sfmt 4703 Authority: Section 1313 of Public Law 112–141; Section 6005 of Public Law 109–59; 23 U.S.C. 327; 23 CFR 773. Surface Transportation Project Delivery Program FHWA Audit of the Utah Department of Transportation June 10, 2017–June 30, 2018 Executive Summary This report summarizes the results of the Federal Highway Administration’s (FHWA) second audit of the Utah Department of Transportation’s (UDOT) National Environmental Policy Act (NEPA) review responsibilities and obligations that FHWA has assigned and UDOT has assumed pursuant to 23 United States Code (U.S.C.) 327. Throughout this report, FHWA uses the term ‘‘NEPA Assignment Program’’ to refer to the program codified at 23 U.S.C. 327. Under the authority of 23 U.S.C. 327, UDOT and FHWA executed a memorandum of understanding (MOU) on January 17, 2017, to memorialize UDOT’s NEPA responsibilities and liabilities for Federal-aid highway projects and certain other FHWA approvals for transportation projects in Utah. The FHWA’s only NEPA responsibilities in Utah are oversight and review of how UDOT executes its NEPA Assignment Program obligations. The section 327 MOU covers environmental review responsibilities for projects that require the preparation of environmental assessments (EA), environmental impact statements (EIS), and non-designated documented categorical exclusions (DCE). A separate MOU, pursuant to 23 U.S.C. 326, authorizes UDOT’s environmental review responsibilities for other categorical exclusions (CE), commonly known as CE Program Assignment. This audit does not cover the CE Program Assignment responsibilities and projects. As part of its review responsibilities under 23 U.S.C. 327, FHWA formed a team (the ‘‘Audit Team’’) in July 2018 to plan and conduct an audit of NEPA responsibilities UDOT assumed. Prior to the on-site visit, the Audit Team reviewed UDOT’s NEPA project files, UDOT’s response to FHWA’s pre-audit information request (PAIR), UDOT’s self-assessment of its NEPA Program, UDOT’s NEPA Quality Assurance/ Quality Control (QA/QC) Guidance, its NEPA Assignment Training Plan, and E:\FR\FM\13NON1.SGM 13NON1

Agencies

[Federal Register Volume 84, Number 219 (Wednesday, November 13, 2019)]
[Notices]
[Pages 61677-61680]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-24654]



[[Page 61677]]

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DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

[FHWA Docket No. FHWA-2019-001]


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

AGENCY: Federal Highway Administration (FHWA), U.S. Department of 
Transportation (DOT).

ACTION: Notice.

-----------------------------------------------------------------------

SUMMARY: The Moving Ahead for Progress in the 21st Century Act (MAP-21) 
established the Surface Transportation Project Delivery Program that 
allows a State to assume FHWA's environmental responsibilities for 
environmental review, consultation, and compliance under the National 
Environmental Policy Act (NEPA) for Federal 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. This program mandates annual audits during 
each of the first 4 years of State participation to ensure compliance 
with program requirements. This notice makes available the final report 
of Ohio Department of Transportation's (ODOT) third audit under the 
program.

FOR FURTHER INFORMATION CONTACT: Mr. James G. Gavin, Office of Project 
Development and Environmental Review, (202) 366-1473, 
[email protected], Federal Highway Administration, U.S. Department of 
Transportation, 1200 New Jersey Avenue SE, Washington, DC 20590, or Mr. 
David Sett, Office of the Chief Counsel, (404) 562-3676, 
[email protected], Federal Highway Administration, U.S. Department of 
Transportation, 60 Forsyth Street 8M5, Atlanta, GA 30303. Office hours 
are from 8:00 a.m. to 4:30 p.m., e.t., Monday through Friday, except 
Federal holidays.

SUPPLEMENTARY INFORMATION: 

Electronic Access

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

Background

    The Surface Transportation Project Delivery Program, codified at 23 
U.S.C. 327, commonly known as the NEPA Assignment Program, allows a 
State to assume FHWA's responsibilities for environmental 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. 
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 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, 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.
    Section 327(g) of Title 23, U.S.C., requires the Secretary to 
conduct annual audits to ensure compliance with the MOU during each of 
the first 4 years of State participation and, after the fourth year, 
monitor compliance. The results of each audit must be made available 
for public comment. The FHWA published a notice in the Federal Register 
on March 8, 2018, at 84 FR 8560, soliciting public comment for 30 days, 
pursuant to 23 U.S.C. 327(g). The FHWA received comments on the draft 
report from the American Road and Transportation Builders Association 
(ARTBA). The ARTBA's comments were supportive of the Surface 
Transportation Project Delivery Program and did not relate specifically 
to Audit 3. The team has considered these comments in finalizing this 
audit report. This notice makes available the final report of ODOT's 
third audit under the program.

    Authority:  Section 1313 of Public Law 112-141; Section 6005 of 
Public Law 109-59; 23 U.S.C. 327; 23 CFR 773.

Nicole R. Nason,
Administrator, Federal Highway Administration.

Surface Transportation Project Delivery Program

FHWA Audit of the Ohio Department of Transportation

August 5, 2017, to August 10, 2018

Executive Summary

    This is the third audit of the Ohio Department of Transportation's 
(ODOT) assumption of National Environmental Policy Act (NEPA) 
responsibilities, conducted by a team of Federal Highway Administration 
(FHWA) staff (the team). The ODOT made the effective date of the 
project-level NEPA and environmental review responsibilities it assumed 
from FHWA on December 28, 2015, as specified in a memorandum of 
understanding (MOU) signed on December 11, 2015, and amended on June 6, 
2018. Within ODOT, the Division of Planning Office of Environmental 
Services (OES) is responsible to manage and deliver the environmental 
program. This audit examined ODOT's performance under the MOU regarding 
responsibilities and obligations assigned therein.
    Prior to the on-site visit, the team performed reviews of ODOT's 
project NEPA approval documentation in EnviroNet (ODOT's official 
electronic environmental document filing system). This audit consisted 
of a review of a sample of 39 higher-risk project files out of 1,042 
approved documents for Federal projects in ODOT's EnviroNet system with 
an environmental approval date between April 1, 2017, and March 31, 
2018. The team also reviewed ODOT's response to the pre-audit 
information request (PAIR) and ODOT's Self-Assessment report. In 
addition, the team reviewed ODOT's environmental processes, manuals, 
and guidance; ODOT NEPA Quality Assurance and Quality Control (QA/QC) 
Processes and Procedures; and the ODOT NEPA Assignment Training Plan 
(collectively, ``ODOT procedures''). The team conducted an on-site 
review during the week of August 6 to August 10, 2018. The team 
conducted interviews with ODOT's central office staff on August 6, 
2018, and with three district office staffs on August 7, 2018. The team 
also interviewed staff with the Ohio Department of Natural Resources 
(ODNR) on July 23, 2018, as part of the review.
    Overall, the team found evidence that ODOT continues to make 
reasonable progress in implementing the NEPA Assignment Program based 
on Audit 1 and Audit 2 observations and demonstrated commitment to 
success of the program. The team found zero non-compliance observations 
but did note six general observations.

Background

    The Surface Transportation Project Delivery Program (NEPA 
Assignment Program) allows a State to assume FHWA's responsibilities 
for review, consultation, and compliance with environmental laws for 
Federal-aid highway projects. When a State assumes these 
responsibilities, it becomes solely responsible and liable for carrying 
out the responsibilities assumed, in lieu of FHWA.
    The State of Ohio represented by ODOT completed the application 
process and entered an MOU with

[[Page 61678]]

FHWA on December 28, 2015, and amended on June 6, 2018. With this 
agreement, ODOT assumed FHWA's project approval responsibilities under 
NEPA and NEPA-related Federal environmental laws.
    The FHWA is obligated to conduct four annual compliance audits of 
ODOT's compliance with the provisions of the MOU. Audits serve as 
FHWA's primary mechanism of determining ODOT's compliance with the MOU, 
applicable Federal laws and policies, evaluating ODOT's progress toward 
achieving the performance measures identified in the MOU, and 
collecting information needed for the Secretary's annual report to 
Congress.
    The team provided a draft of this report to ODOT for its review and 
the team considered the resulting comments in preparing the draft which 
was made available for public review and comment. The FHWA considered 
public comments on the draft in finalizing this report.

Scope and Methodology

    The team conducted a careful examination of the ODOT NEPA 
Assignment Program through a review of ODOT procedures and project 
documentation, ODOT's PAIR response, and the self-assessment summary 
report, as well as interviews with ODOT central office and district 
environmental staff and resource agency staff. This review focuses on 
the following six NEPA Assignment Program elements: (1) Program 
management; (2) documentation and records management; (3) QA/QC; (4) 
legal sufficiency; (5) performance measurement; and (6) training.
    The PAIR consisted of 18 questions, based on the responsibilities 
assigned to ODOT in the MOU. The team reviewed ODOT's response and 
compared the responses to ODOT's written procedures. The team utilized 
ODOT's responses to draft interview questions to clarify information in 
ODOT's PAIR response.
    The ODOT provided its NEPA Assignment Self-Assessment summary 
report 30 days prior to the team's on-site review. The team considered 
this summary report both in focusing on issues during the project file 
reviews and in drafting interview questions. The report was compared 
against the previous year's self-assessment report and the requirements 
in the MOU to identify any trends.
    Between March 16 and May 31, 2018, the team conducted a project 
file review by identifying and reviewing 39 higher-risk project files 
out of 1,042 approved documents of Federal-aid projects in ODOT's 
EnviroNet system with an environmental approval date between April 1, 
2017, and March 31, 2018. The selection of these projects was based on 
a 100 percent sampling of d-listed Categorical Exclusions (CE), as well 
as all Environmental Assessments (EA) and Environmental Impact 
Statements. The team excluded from review those projects approved by 
ODOT under 23 CFR 771.117(c) (c-listed CEs) based on the review 
performance of those types of projects since ODOT assumed NEPA 
responsibilities in 2015. The projects reviewed represented all 
remaining NEPA classes of action available, including projects 
representing 9 out of 12 ODOT Districts and the Ohio Rail Development 
Commission.
    In addition, the team reviewed ODOT's project file review 
associated with its self-assessment to determine if ODOT evaluated its 
projects in a similar fashion and using similar standards to that of 
the Federal portion of this review. The ODOT reviewed projects within 
the same sampling period as FHWA, however, ODOT samples included 
Federal-aid and State-only funded projects. The ODOT conducts NEPA on 
all projects regardless of funding source as they routinely convert 
funding from State to Federal later via the Advanced Construction 
process. The ODOT reviewed 248 projects, including 186 c-listed 
projects, 61 d-listed projects, and 1 EA. The team determined the State 
performed a rigorous annual QA review of its own projects.
    During the on-site review week, the team conducted interviews with 
21 ODOT staff members at the central office and three districts: 
District 6 (Delaware); District 7 (Sydney); and District 10 (Marietta). 
Interviewees included ODOT OES management and subject matter experts, 
Office of Diversity and Inclusion (ODI), District Environmental 
Coordinators (DEC), environmental staff, and public information 
officers, representing a diverse range of expertise and experience. 
These interviews focused on NEPA Assignment with emphasis on items 
where additional information was deemed necessary to complete the 
review.
    The team conducted interviews 2 weeks prior to the on-site review 
with personnel from the ODNR. The ODNR staff provided valuable insight 
to the review team regarding ODOT's performance and relationships with 
partner resource agencies.
    The team identified gaps between the information from the desktop 
review of ODOT procedures, PAIR, self-assessment, 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 audit results are described below.
    Overall, the team found evidence that ODOT continues to make 
reasonable progress in implementing the NEPA Assignment Program based 
on the Audit 1 and Audit 2 observations and demonstrated commitment to 
success of the program. The team found zero non-compliance observations 
but did note six general observations.
    The FHWA team urges ODOT to monitor and make additional 
improvements to the program for continued successes of the program.

Observations and Successful Practices

Program Management

Observation 1: Opportunities Exist To Strengthen Coordination Between 
ODOT OES and ODOT ODI.
    The team encourages ODOT to ensure that a proper level of 
communication exists between OES and ODI in order to facilitate the 
coordination of OES guidance and training with the ongoing ODOT-wide 
Title VI program enhancements. The FHWA recognizes and is supportive of 
the coordination and partnering efforts between OES and ODI undertaken 
to date and stands ready to contribute to these efforts, where 
appropriate.
Observation 2: There Are Inconsistencies in the Communication and 
Management of ODOT Policy, Manuals, Procedures, and Guidance
    The ODOT developed and implemented over 140 procedures to implement 
NEPA Assignment, manage the program, and provide detailed instruction 
for completion of environmental actions to document preparers and 
reviewers. The ODOT shares these documents and other guidance with NEPA 
practitioners on a quarterly basis via email, NEPA chats and DEC 
Meetings, and via training. In addition, these documents are saved on a 
local drive accessible by ODOT environmental staff and posted to ODOT's 
website for consultants and local public agencies.
    The FHWA found that policies, manuals, and other guidance documents 
are readily available. However, interviews with district staff indicate 
that opportunities exist to improve upon the communication of this 
documentation in order to ensure more consistent implementation. In 
addition, there are examples of training materials

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containing information that is not included in the related guidance 
documents. In these cases, some environmental staff indicated they rely 
on the information in the guidance while others indicated they rely on 
OES instruction provided verbally or through email. Information 
prepared for ODOT staff should exhibit consistency, regardless of the 
form in which its presented.
Observation 3: Inconsistencies Remain in Public Involvement (PI) 
Activities Specifically Regarding Outreach Activities to Underserved 
and Protected Populations
    The team notes and appreciates ongoing efforts by ODOT in response 
to previous audit recommendations for improvement and enhancement of 
the PI process. The team was provided examples of effective PI efforts 
during the interviews with district staff. However, as demonstrated in 
the project file reviews and the interviews, there remain areas of note 
in application and consistency of public involvement efforts and 
activities.
    During FHWA's review, ODOT stated that the intent of its process 
regarding Environmental Justice (EJ) is to identify any 
disproportionately high and adverse impacts and disparate impacts on 
the associated populations. Although OES staff indicated that they have 
updated the guidance, developed new training, and provided forums for 
instructive discussion for all environmental staff, consultants, and 
Local Public Agencies, it is not clear how ODOT will ensure that 
outreach efforts and activities are commensurate with the level of 
impact or potential mitigation, as there is no discussion of outreach 
efforts in the ODOT-OES' Underserved Populations Guidance. It is 
unclear that the distinctions and specific requirements of protected 
populations are fully discerned and distinguished from each other in 
the guidance document, including thresholds and requirements. In 
addition, interview responses within OES indicated a difference of 
opinion in terms of what constituted outreach to underserved and 
protected populations.
    At the district level, ODOT District environmental staff indicated 
that they had inconsistent information on how to determine if there 
were protected populations and how to conduct the required outreach 
activities, even if there were no disproportionately negative impacts. 
However, OES is trusting the districts, on projects with a lower level 
of NEPA classification, to ensure full and fair participation by 
underserved and protected populations in public involvement, NEPA and 
the transportation decisionmaking processes.

Documentation and Records Management

Observation 4: Opportunities Exist To Continue Improving Documentation 
in the Areas of PI, EJ, and Environmental Commitments
    In response to previous audits and self-assessments, ODOT updated 
many procedures relating to the NEPA process to improve its processes 
and meet Federal requirements. The updates included changes to ODOT's 
internal documentation and filing guidelines and updates to EnviroNet. 
The review team thinks these changes have positively impacted the 
program since Audits 1 and 2.
    The quality of documentation for projects is trending in a positive 
direction since Audits 1 and 2, as approximately 50 percent of all 
projects reviewed had zero deficiencies noted by the team. However, 
although there were examples of high quality PI, EJ reviews, 
development of environmental commitments, and documentation for some 
projects, these same elements were lacking in others. For the projects 
reviewed, 42 percent of substantive comments made by the team related 
to EJ, 22 percent to PI, 17 percent to environmental commitments, 11 
percent to QA/QC, and 8 percent to documentation. This demonstrates 
inconsistencies in practice, which may indicate additional training, 
guidance, and/or quality controls may be needed to improve consistency 
in application of documentation statewide.
    The team met with ODOT to discuss individual deficiencies noted by 
both FHWA and ODOT OES during this audit. The ODOT evaluated these 
deficiencies at OES and then communicated them individually with the 
districts. The ODOT remains committed to improvements in documentation, 
with plans to continue updates to EnviroNet and guidance, as needed, 
and with the training required to deliver results.

Quality Assurance/Quality Control

Observation 5: There Are Variations in Awareness, Understanding, and 
Implementation of QA/QC Process and Procedures
    The inconsistencies and missing information noted in the 
Documentation and Records Management section are an indication of 
inconsistency in ODOT's QA/QC process. The team found inconsistencies 
in awareness and use of peer reviews in the ODOT Districts, as well as 
use of comments in EnviroNet. Selected ODOT OES and district 
environmental staff said that they rely on the ODOT Central Office for 
QC support. No training is provided exclusively for QA/QC.

Legal Sufficiency Review

    The ODOT utilized its guidance for legal sufficiency to review one 
Environmental Impact Statement Re-evaluation, one EA, and two 
Individual Section 4(f) approvals.

Performance Measures

    The development of Performance Measures is required in MOU Section 
10.2. The ODOT has refined its Performance Measures to provide a better 
overall indication of ODOT's execution of its responsibilities as 
assigned by the MOU. The team found evidence that the results obtained 
through the Performance Measures are beginning to provide actionable 
feedback, allowing ODOT to make appropriate changes as it manages its 
environmental program.

Training Program

    During the previous audits, it was noted that ODOT has a robust 
environmental training program and provides adequate budget and time 
for staff to access a variety of internal and external training. To add 
to the training program and plan, ODOT has complemented its 
traditional, instructor-based training courses, quarterly DEC meetings, 
and monthly NEPA chats with the development of several online courses. 
During the audit, ODOT reported that 10 online courses are anticipated 
to be available in August 2018, with an additional 19 online courses 
anticipated to be developed within the year. As of October 2018, it is 
not evident that these courses were yet deployed.
Observation 6: Opportunities Exist To Expand Required and Continuous 
Training to Additional Staff and Develop Additional Instructor-Led or 
Online Training in NEPA-Related Subject Areas
    Also, during the previous audit, it was noted ODOT's training plan 
states that all ODOT environmental staff (both central and district 
offices) and environmental consultants are required to take the pre-
qualification training courses. The ODOT should consider extending this 
requirement to NEPA project managers and public involvement officers. 
Extending the training to additional staff may improve public outreach 
efforts and overall program delivery. The ODOT should focus on training 
in NEPA and NEPA-

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related subject areas such as Limited English Proficiency and Public 
Involvement. The FHWA encourages ODOT to include specific EJ training 
opportunities in its training plan, such as the Web-based course 
currently under development.

Finalization of Report

    The FHWA received one response to the Federal Register Notice 
during the public comment period for the draft report. This response, 
from the American Road and Transportation Builders Association, was 
supportive of the Surface Transportation Delivery Program and did not 
relate specifically to Audit 3. This final report is substantively the 
same as the draft version.

[FR Doc. 2019-24654 Filed 11-12-19; 8:45 am]
BILLING CODE 4910-22-P