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

American Government Special Collections Reference Desk

American Government

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

Walter C. Waidelich, Jr.
Federal Highway Administration
7 July 2017


[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]


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DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

[FHWA Docket No. FHWA-2016-0034]


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

AGENCY: Federal Highway Administration (FHWA), DOT.

ACTION: Notice.

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

[[Page 31679]]

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

[[Page 31680]]

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

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