Surface Transportation Project Delivery Program; TxDOT Audit Report |
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Gregory G. Nadeau
Federal Highway Administration
August 21, 2015
[Federal Register Volume 80, Number 162 (Friday, August 21, 2015)]
[Notices]
[Pages 50905-50912]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-20733]
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DEPARTMENT OF TRANSPORTATION
Federal Highway Administration
[FHWA Docket No. FHWA-2015-0017]
Surface Transportation Project Delivery Program; TxDOT Audit
Report
AGENCY: Federal Highway Administration (FHWA), DOT.
ACTION: Notice; request for comment.
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SUMMARY: Section 1313 of 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. This section mandates semiannual audits
during each of the first 2 years of State participation to ensure
compliance by each State participating in the Program. 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 notice announces and solicits comments
on the first audit report for the Texas Department of Transportation
(TxDOT).
DATES: Comments must be received on or before September 21, 2015.
ADDRESSES: Mail or hand deliver comments to Docket Management Facility:
U.S. Department of Transportation, 1200 New Jersey Avenue SE., Room
W12-140, Washington, DC 20590. You may also submit comments
electronically at www.regulations.gov. All comments should include the
docket number that appears in the heading of this document. All
comments received will be available for examination and copying at the
above address from 9 a.m. to 5 p.m., e.t., Monday through Friday,
except Federal holidays. Those desiring notification of receipt of
comments must include a self-addressed, stamped postcard or you may
print the acknowledgment page that appears after submitting comments
electronically. Anyone is able to search the electronic form of all
comments in any one of our dockets by the name of the individual
submitting the comment (or signing the comment, if submitted on behalf
of an association, business, or labor union). The DOT posts these
comments, without edit, including any personal information the
commenter provides, to www.regulations.gov, as described in the system
of records notice (DOT/ALL-14 FDMS), which can be reviewed at
www.dot.gov/privacy.
FOR FURTHER INFORMATION CONTACT: Dr. Owen Lindauer, Office of Project
Development and Environmental Review, (202) 366-2655,
owen.lindauer@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., 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
Congress proposed and the President signed into law, MAP-21 Section
1313, establishing the Surface Transportation Project Delivery Program
that allows a State to assume FHWA's environmental responsibilities for
review, consultation, and compliance for Federal highway projects. This
provision has been codified at 23 U.S.C. 327. 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 permanent program follows a pilot program
established by Section 6005 of the Safe, Accountable, Flexible,
Efficient Transportation Equity Act: A Legacy for Users, where the
State of California assumed FHWA's environmental responsibilities (from
June 29, 2007). The TxDOT published its application for assumption
under the National Environmental Policy Act (NEPA) Assignment Program
on March 14, 2014, at Texas Register 39(11):1992 and made it available
for public comment for 30 days. After considering public comments,
TxDOT submitted its application to FHWA on May 29, 2014. The
application served as the basis for developing the memorandum of
understanding (MOU) that identifies the responsibilities and
obligations TxDOT would assume. The FHWA published a notice of the
draft of the MOU in the Federal Register on October 10, 2014, at 79 FR
61370 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
TxDOT considered comments and proceeded to execute the MOU. Since
December 16, 2014, TxDOT has assumed FHWA's responsibilities under
NEPA, and the responsibilities for the NEPA-related Federal
environmental laws. Section 327(g) of Title 23, United States Code,
requires the Secretary to conduct semiannual audits during each of the
first 2 years of State participation, and annual audits during each
subsequent year of State participation to ensure compliance by each
State participating in the Program. The results of each audit must be
presented in the form of an audit report and be made available for
public comment. This notice announces the availability of the first
audit report for TxDOT and solicits public comment on same.
Authority: 23 U.S.C. 327; 49 CFR 1.48.
Issued on: August 14, 2015.
Gregory G. Nadeau,
Administrator, Federal Highway Administration.
DRAFT--Surface Transportation Project Delivery Program FHWA Audit of
the Texas Department of Transportation December 16, 2014, and June 16,
2015
Executive Summary
This is the first audit conducted by a team of Federal Highway
Administration (FHWA) staff of the performance of the Texas Department
of Transportation (TxDOT) regarding responsibilities and obligations
assigned under a memorandum of understanding (MOU) whose term began on
December 16, 2014. From that date, TxDOT assumed FHWA's National
Environmental Policy Act (NEPA) responsibilities and liabilities for
the Federal-aid highway program funded projects in Texas (NEPA
Assignment Program) and FHWA's environmental role is now limited to
program oversight and review. The FHWA audit team (team) was formed in
January 2015 and met regularly to prepare for conducting the audit.
Prior to the on-site visit, the team performed reviews of TxDOT project
file NEPA documentation in the Environmental Compliance Oversight
System (ECOS, TxDOT's official project filing system), examined the
TxDOT pre-audit information response, and developed interview
questions. The on-site portion of this audit, when all TxDOT and other
agency interviews were performed, was conducted between April 13 and
17, 2015.
As part of its review responsibilities specified in 23 U.S.C. 327,
the team planned and conducted an audit of TxDOT's responsibilities
assumed under the MOU. The TxDOT is still in the transition of
preparing and implementing procedures and processes required for the
NEPA Assignment. It was evident that TxDOT has made reasonable progress
in implementing the start-up phase of the NEPA Assignment
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Program and that overall the team found evidence that TxDOT is
committed to establishing a successful program. This report provides
the team's assessment of the current status of several aspects of the
NEPA Assignment Program, including successful practices and 16
observations that represent opportunities for TxDOT to improve their
program. The team identified two non-compliance observations that TxDOT
will need to address as corrective actions in their self-assessment
report.
The TxDOT has carried out the responsibilities it has assumed in
keeping with the intent of the MOU and the Application. The team finds
TxDOT to be in substantial compliance with the provisions of the MOU.
By addressing the observations in this report, TxDOT will continue to
move the program toward success.
Background
Congress proposed and the President signed into law, the Moving
Ahead for Progress in the 21st Century Act (MAP-21) Section 1313, that
established the Surface Transportation Project Delivery Program that
allows a State to assume FHWA's environmental responsibilities for
review, consultation, and compliance for Federal highway projects. This
section is codified at 23 U.S.C. 327. 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 permanent program follows a pilot program established by
Section 6005 of the Safe, Accountable, Flexible, Efficient
Transportation Equity Act: A Legacy for Users (SAFETEA-LU), where the
State of California assumed FHWA's environmental responsibilities (from
June 29, 2007).
The TxDOT published its application for assumption under the NEPA
Assignment Program on March 14, 2014, and made it available for public
comment for 30 days. After considering public comments, TxDOT submitted
its application to FHWA on May 29, 2014. The application served as the
basis for developing the MOU that identifies the responsibilities and
obligations TxDOT would assume. The FHWA published a notice of the
draft of the MOU in the Federal Register on October 10, 2014, at 79 FR
61370, 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
TxDOT considered comments and proceeded to execute the MOU. Since
December 16, 2014, TxDOT has assumed FHWA's responsibilities under
NEPA, and the responsibilities for the NEPA-related Federal
environmental laws. These are responsibilities for (among a list of
other regulatory interactions) the Endangered Species Act, Section 7
consultations with the U.S. Fish and Wildlife Service (USFWS) and the
National Oceanic and Atmospheric Administration National Marine
Fisheries Service, and Section 106 consultations regarding impacts to
historic properties. Two Federal responsibilities were not assigned to
TxDOT and remain with FHWA: (1) Making project-level conformity
determinations under the Federal Clean Air Act and (2) conducting
government to government consultation with federally recognized Indian
tribes.
Under the NEPA Assignment Program, the State of Texas was assigned
the legal responsibility for making project NEPA decisions. In enacting
Texas Transportation Code, Sec. 201.6035, the State has waived its
sovereign immunity under the 11th Amendment of the U.S. Constitution
and consents to Federal court jurisdiction for actions brought by its
citizens for projects it has approved under the NEPA Assignment
Program. As part of FHWA's oversight responsibility for the NEPA
Assignment Program, FHWA is directed in 23 U.S.C. 327(g) to conduct
semiannual audits during each of the first 2 years of State
participation in the program; and audits annually for 2 subsequent
years. The purpose of the audits is to assess a State's compliance with
the provisions of the MOU as well as all applicable Federal laws and
policies. The FHWA's review and oversight obligation entails the need
to collect information to evaluate the success of the Project Delivery
Program; to evaluate a State's progress toward achieving its
performance measures as specified in the MOU; and to collect
information for the administration of the NEPA Assignment Program. This
report summarizes the results of the first audit.
Scope and Methodology
The overall scope of this audit review is defined both in statute
(23 U.S.C. 327) and the MOU (Part 11). An audit generally is defined as
an official and careful examination and verification of accounts and
records, especially of financial accounts, by an independent unbiased
body. With regard to accounts or financial records, audits may follow a
prescribed process or methodology and be conducted by ``auditors'' who
have special training in those processes or methods. The FHWA considers
this review to meet the definition of an audit because it is an
unbiased, independent, official and careful examination and
verification of records and information about TxDOT's assumption of
environmental responsibilities.
The diverse composition of the team, the process of developing the
review report, and publishing it in the Federal Register help define
this audit as unbiased and an official action taken by FHWA. To ensure
a level of diversity and guard against unintended bias, the team
consisted of NEPA subject matter experts from the FHWA Texas Division
Office, as well as FHWA offices in Washington, DC, Atlanta, GA,
Columbus, OH, and Baltimore, MD. All of these experts received training
specific to evaluation of implementation of the NEPA Assignment
Program. Aside from the NEPA experts, the team included a trainee from
the Texas Division office and two individuals from FHWA's Program
Management Improvement Team who provided technical assistance in
conducting reviews. This audit team conducted a careful examination of
highway project files and verified information on the TxDOT NEPA
Assignment Program through inspection of other records and through
interviews of TxDOT and other staff.
Audits, as stated in the MOU (Parts 11.1.1 and 11.1.5), are the
primary mechanism used by FHWA to oversee TxDOT's compliance with the
MOU, ensure compliance with applicable Federal laws and policies,
evaluate TxDOT's progress toward achieving the performance measures
identified in the MOU (Part 10.2), and collect information needed for
the Secretary's annual report to Congress. These audits also must be
designed and conducted to evaluate TxDOT's technical competency and
organizational capacity, adequacy of the financial resources committed
by TxDOT to administer the responsibilities assumed, quality assurance/
quality control process, attainment of performance measures, compliance
with the MOU requirements, and compliance with applicable laws and
policies in administering the responsibilities assumed. The four
performance measures identified in the MOU are (1) compliance with NEPA
and other Federal environmental statutes and regulations, (2) quality
control and quality assurance for NEPA decisions, (3) relationships
with agencies and the general public, and (4) increased efficiency and
timeliness and completion of the NEPA process.
The scope of this audit included reviewing the processes and
procedures used by TxDOT to reach and document project decisions. The
intent of the review was to check that TxDOT has the
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proper procedures in place to implement the MOU responsibilities
assumed, ensure that the staff is aware of those procedures, and that
the procedures are working appropriately to achieve NEPA compliance.
The review is not intended to evaluate project-specific decisions as
good or bad, or to second guess those decisions, as these decisions are
the sole responsibility of TxDOT.
The team gathered information that served as the basis for this
audit from three primary sources: (1) TxDOT's response to a pre-audit
information request, (2) a review of a random sample of project files
with approval dates subsequent to the execution of the MOU, and (3)
interviews with TxDOT, the Texas Historical Commission, and the USFWS
staff. The pre-audit information request consisted of questions and
requests for information focused on the following six topics: Program
management, documentation and records management, quality assurance/
quality control, legal sufficiency review, performance measurement, and
training. The team subdivided into working groups that focused on five
of these topics. The legal sufficiency review was limited to
consideration of material in TxDOT's response to the pre-audit
information request.
The team defined the timeframe for highway project environmental
approvals subject to this first audit to be between December 2014 and
February 2015. This initial focus on the first 3-4 months of TxDOT's
assumption of NEPA responsibilities was intended to: (1) Assist TxDOT
in start-up issues in the transition period where they assumed NEPA
responsibilities for all highway projects, (2) follow an August 2014
Categorical Exclusion (CE) monitoring review that generated expected
corrective actions, and (3) allow the first audit report to be
completed 6 months after the execution of the MOU. Based on monthly
reports from TxDOT, the universe of projects subject to review
consisted of 357 projects approved as CEs, 9 approvals to circulate an
Environmental Assessment (EA), 4 findings of no significant impacts
(FONSI), 3 re-evaluations of EAs, 2 Section 4(f) decisions, and 1
approval of a draft environmental impact statement (EIS) project. The
team selected a random sample of 57 CE projects sufficient to provide a
90 percent confidence interval and reviewed project files for all 19
approvals that were other than CEs (for a total of 76 files reviewed).
Regarding interviews, the team's focus was on leadership in TxDOT's
Environmental Affairs Division (ENV) Headquarters in Austin. Due to
logistical challenges, the team could only interview a sample of
environmental and leadership staff from TxDOT Districts focusing for
this first audit on face-to-face interviews in Austin, Waco, and San
Antonio and conference call interviews with Corpus Christi, Laredo, and
Fort Worth Districts. The team plans to interview staff from at least
18 TxDOT District offices by completion of the third audit. There are a
total of 25 TxDOT Districts and the team anticipates covering all over
the 5-year term of this MOU.
Overall Audit Opinion
The team recognizes that TxDOT is still in the beginning stages of
the NEPA Assignment Program and that its programs, policies, and
procedures are in transition. The TxDOT's efforts are appropriately
focused on establishing and refining policies and procedures; training
staff; assigning and clarifying changed roles and responsibilities; and
monitoring its compliance with assumed responsibilities. The team has
determined that TxDOT has made reasonable progress in implementing the
start-up phase of NEPA Assignment operations and believes TxDOT is
committed to establishing a successful program. Our analysis of project
file documentation and interview information found two non-compliance
observations, several other observations, and noted ample evidence of
good practice. The TxDOT has carried out the responsibilities it has
assumed in keeping with the intent of the MOU and the Application and
as such the team finds TxDOT to be in substantial compliance with the
provisions of the MOU.
The TxDOT's staff and management expressed a desire to receive
constructive feedback from the team. By considering and acting upon the
observations contained in this report, TxDOT should continue to improve
upon carrying out its assigned responsibilities and ensure the success
of its NEPA Assignment Program.
Non-Compliance Observations
Non-compliance observations are instances of being out of
compliance with a Federal regulation, statute, guidance, policy, TxDOT
procedure, or the MOU. The FHWA expects TxDOT to develop and implement
corrective actions to address all non-compliance observations. The
TxDOT may consider implementing any recommendations made by FHWA to
address non-compliance and other observations. The team acknowledges
that TxDOT has already taken corrective actions to address these
observations. The FHWA will conduct follow up reviews of the non-
compliance observations as part of Audit #2, and if necessary, future
audits.
The MOU (Part 3.1.1) states ``pursuant to 23 U.S.C. 327(a)(2)(A),
on the Effective Date, FHWA assigns, and TxDOT assumes, subject to the
terms and conditions set forth in 23 U.S.C. 327 and this MOU, all of
the U.S. Department of Transportation (DOT) Secretary's
responsibilities for compliance with the NEPA, 42 U.S.C. 4321 et seq.
with respect to the highway projects specified under subpart 3.3. This
includes statutory provisions, regulations, policies, and guidance
related to the implementation of NEPA for Federal highway projects such
as 23 U.S.C. 139, 40 CFR parts 1500-1508, DOT Order 5610.1C, and 23 CFR
part 771 as applicable.''
Non-Compliance Observation #1
The first non-compliance observation, in 1 of the 76 projects
reviewed, pertained to FHWA policy in 23 CFR 771.105(d) that (1)
``measures necessary to mitigate adverse impacts be incorporated into
the action,'' and (2) ``the Administration will consider, among other
factors, the extent to which the proposed measures would assist in
complying with a federal statute, Executive Order, or Administration
regulation or policy.'' The team identified a project whose description
indicated that its purpose was to mitigate impacts of a larger project
by constructing a noise abatement barrier. Classifying this project as
a CE [23 CFR 771.117(c)(6)], that specifies the action as a separate
noise abatement barrier mitigation project, does not comply with FHWA
approved TxDOT 2011 Noise Guidelines. The TxDOT must have a program for
Type II noise abatement projects in order to allow for the construction
of a noise abatement barrier as a separate project (23 CFR 772.5). The
TxDOT does not currently have such a program and, therefore, could not
approve the noise abatement barrier as a separate project. Before
approving any NEPA decision document, TxDOT should be knowledgeable of,
and must apply, all applicable provisions of FHWA policy and
regulation.
Non-Compliance Observation #2
The second non-compliance observation is a project approved by
TxDOT staff before all environmental requirements had been satisfied.
Before TxDOT's approval, the project required a project-level air
quality conformity determination pursuant to 40 CFR
[[Page 50908]]
93.121 and be consistent with the State Transportation Improvement
Program (STIP). The TxDOT staff made a conditional NEPA approval (CE
determination) on a project that, according to records, was not
correctly listed in the STIP. The TxDOT then reported the approval to
FHWA. The FHWA's policy in 23 CFR 771 is to coordinate compliance with
all environmental requirements as a single process under NEPA.
Conditional approvals do not comply with the FHWA NEPA policy because
they have the effect of allowing a project to move to the next step of
project development without satisfying all environmental requirements.
Also, there is no authority in the MOU for TxDOT to make conditional
approvals. There is a specific MOU requirement in Part 3.3.1 for a
project to be consistent with the STIP. The team found evidence in ECOS
that this project required a project-level air quality conformity
determination. The responsibility for this determination was not
assigned to TxDOT under the NEPA Assignment MOU, and FHWA subsequently
made this determination. The team acknowledges this project was
somewhat unusual as there was uncertainty at the Department as to
whether the project was adding capacity requiring a Division Office
conformity determination. Since that time, the Division Office has
confirmed that such projects do add capacity and are subject to
individual project level conformity. Where required, TxDOT needs to
coordinate with the FHWA Texas Division Office staff to obtain a
project-level air quality conformity determination before making a NEPA
approval decision for a project.
Observations and Successful Practices
This section summarizes the team's observations about issues or
practices that TxDOT may want to consider as areas to improve as well
as practices the team believes are successful that TxDOT may want to
continue or expand in some manner. All six topic areas identified in
FHWA's pre-audit information request are addressed here as separate
discussions. Our report on legal sufficiency reviews is a description
of TxDOT's current status as described in their response to the pre-
audit information request. The team will examine TxDOT's legal
sufficiency reviews by project file inspection and through interviews
in future audits.
The team lists 16 observations below that we urge TxDOT to act upon
to make improvements through one or more of the following: corrective
action, targeted training, revising procedures, continued self-
assessment, or by some other means. The team acknowledges that by
sharing this draft audit report with TxDOT, they have already
implemented actions to address the observations to improve their
program. The FHWA will consider the status of these observations as
part of the scope of Audit #2. We will also include a summary
discussion that describes progress since the last audit in the Audit #2
report.
Program Management
The team recognized four successful program management practices.
First, it was evident through interviews that TxDOT has employed highly
qualified staff for its program. Second, the team saw evidence of
strong communication between TxDOT's ENV and District staff explaining
roles and responsibilities associated with implementation of the MOU
for NEPA Assignment. Third, based on the response to the pre-audit
information request and from interviews, the team recognized efforts to
create procedures, guidance, and tools to assist Districts in meeting
requirements of the MOU. And finally, District staff understands and
takes pride in ownership when making CE determinations. The ENV
likewise takes pride in the responsibility for EA and Environmental
Impact Statement (EIS) decision-making as well as oversight for the
NEPA Assignment Program.
The team found evidence of successful practices in information
provided by TxDOT and through interviews. They learned of specific
incidences where TxDOT has intentionally hired new personnel and
reorganized existing staff to achieve a successful NEPA Assignment
program. The TxDOT hired a Self-Assessment Branch (SAB) manager, a
staff development manager (training coordinator), and an additional
attorney to assist with NEPA Assignment responsibilities. The audit
team recognizes the TxDOT ``Core Team'' concept (which provides joint
ENV and District peer reviews for EAs and EISs only) as a good example
of TxDOT utilizing their existing staff to analyze NEPA documents and
correct compliance issues before finalization. Many Districts
appreciate the efforts of the Core Team and credit them for assuring
their projects are compliant. The ``NEPA Chat'' is another great
example of TxDOT's intentional effort to achieve a compliant NEPA
Assignment Program with enhanced communication among TxDOT
environmental staff statewide. The NEPA Chat, led by ENV, provides a
platform for complex issues to be discussed openly, and for Districts
to learn about statewide NEPA Assignment Program issues. To date, the
NEPA Chat has proven to be an effective vehicle to disseminate relevant
NEPA information quickly and selectively to the TxDOT District
Environmental Coordinators. Lastly, based on interviews and the
response to the pre-audit information request, almost all the ENV and
District staff feels there is sufficient staff to deliver a successful
NEPA Assignment program. This is further supported by ENV's willingness
to shift responsibilities to better align with the needs of the NEPA
Assignment program. After interviewing the various Districts, they
indicated that ENV is available to assist the Districts when they need
help.
The SAB fosters regular and productive communication with District
staff. Based on reviews of project documentation, the SAB staff
prepares and transmits a summary of their results, both positive and
negative, and follows up via telephone with the District Environmental
Coordinator responsible for the project. They provided this feedback
within 2 weeks of their review, which results in early awareness of
issues and corrective action, where necessary; as well as positive
feedback when the project files appear to be in order. The creation of
the pilot ``Risk Assessment'' tool (a ``smart pdf form'') for
environmental documents is a successful, but optional procedure. When
used, it helps Districts understand the resources to be considered,
what resources should receive further analysis and documents District
decisions. Even though this tool is not currently integrated within
ECOS, it can be uploaded when used. The TxDOT noted that it had
recently developed a Quality Assurance/Quality Control (QA/QC)
Procedures for Environmental Documents Handbook (March 2015), and it is
used by the Core Team to develop EA and EIS documents. Through its
response to pre-audit questions and through interviews with various
staff, TxDOT has demonstrated that it has provided a good base of
tools, guidance, and procedures to assist in meeting the terms of the
MOU and takes pride in exercising its assumed responsibilities.
The team considers three observations as sufficiently important to
urge TxDOT to consider improvements or corrective actions to project
management in their NEPA Assignment Program.
Observation #1
The CE review completed in August resulted in expectations to
implement important updates to ECOS. The team found, however, that
TxDOT has been slow to implement updates to ECOS.
[[Page 50909]]
These improvements would ensure that TxDOT's project records are
complete and correct, utilizing the appropriate terms as cited in the
MOU, law, regulation, or executive order. The team's ECOS related
observations for improvement come from information provided by TxDOT
and through interviews. Beginning with the monitoring review of CE
projects completed in August 2014 the team identified the many
accomplishments made by TxDOT to ensure ECOS meets the needs of users
of this information. However, we also noted areas where necessary ECOS
improvement had not yet happened. The team was told that due to
outsourcing of many of TxDOT's IT services, the State was unable to
complete improvements, due to other perceived priorities in the
Department. The TxDOT interviewees indicated that a contract will soon
be executed to accomplish needed changes, based on the CE monitoring
report. Given the importance of ECOS as TxDOT's official file of record
(for projects under implementation of the MOU) for the NEPA Assignment
Program, and since obtaining IT contracting resources appears to be a
challenge, the team urges TxDOT leadership to support timely and
necessary updates to the ECOS system. The team recommends that the
statement of work for the IT contract be sufficiently broad to
implement all the required and necessary changes identified in both
reviews.
Observation #2
The team would like to draw the attention of TxDOT to issues and
concerns arising from interaction with resource and regulatory
agencies, especially in ways for TxDOT to address possible disputes and
conflicts early and effectively. During interviews with both the TxDOT
staff and resource agency staff, the team learned that there have been
no conflicts between TxDOT and agencies. Despite no reported conflicts,
agency staff reported issues of concern that they believed TxDOT was
not addressing. Examples include: being kept in the loop on the
decisions made by TxDOT, occasional quality concerns for information
provided by TxDOT, and occasionally feeling rushed to review and
process TxDOT projects. The team recognizes that good communication is
a shared responsibility among the parties and suggests TxDOT consider
ways to recognize and address disputes, issues, and concerns before
they become conflicts.
Observation #3
The team found indications from interviews that local public agency
(LPA) projects do not receive the same scrutiny as TxDOT projects,
despite TxDOT's project development and review process applying
uniformly to all highway projects. Several District staff confirmed
that LPA projects were reviewed no differently from TxDOT projects;
others did not, which means TxDOT may need to consider ways to ensure
its procedures are consistently applied, regardless of project sponsor.
The team found the approach to developing and providing training for
LPA sponsored projects to be a lower priority than for TxDOT projects.
Documentation and Records Management
The team relied completely on information in ECOS, TxDOT's official
file of record, to evaluate project documentation and records
management. The ECOS is a tool for information recordation, management
and curation, as well as for disclosure within TxDOT District Offices
and between Districts and ENV. The strength of ECOS is its potential
for adaptability and flexibility. The challenge for TxDOT is to
maintain and update the ECOS operating protocols (for consistency of
use and document/data location) and to educate its users on updates in
a timely manner.
Based on examination of the 76 files reviewed, the team identified
4 general observations (#4, #5, #6, and #7) about TxDOT record keeping
and documentation that could be improved or clarified. The team used a
documentation checklist to verify and review the files of the 76
sampled projects.
Observation #4
The team was unable to confirm in 11 of the projects where
environmental commitments may have needed to be recorded in an
Environmental Permits Issues and Commitments (EPIC) plan sheet, that
the commitments were addressed. All environmental commitments need to
be recorded and incorporated in the project development process so they
are documented and or implemented when necessary. If required
environmental commitments are not recorded in an EPIC, those
commitments would not be implemented. The TxDOT should evaluate whether
its procedures to ensure that environmental commitments are both
recorded and implemented is appropriate.
Observation #5
The team found 7 of the 57 CE projects reviewed to lack sufficient
project description detail to demonstrate that the category of CE
action and any related conditions or constraints were met, in order to
make a CE approval. The team performing the CE monitoring review
completed in August 2014 made a similar observation where TxDOT
indicated it would take corrective action. The particular project files
included actions that could not be determined to be limited to the
existing operational right-of-way (CE 23 CFR 771.117(c)22), or an
action that utilizes less than $5 million of Federal funds (CE c23) or
an action that met six environmental impact constraints before it could
be applied (CEs c26, c27, c28). The documented compliance with
environmental requirements prepared by TxDOT needs to support the CE
action proposed and that any conditions or constraints have been met.
The TxDOT should evaluate whether changes in ECOS and/or their
procedures are necessary to ensure that project descriptions are
recorded in sufficient detail to verify the appropriate CE action was
approved.
Observation #6
The team at times encountered difficulty finding information and
found outdated terms in project files. Several project files included
CE labels that are no longer valid (blanket categorical exclusion,
BCE), but approvals for those project identified the appropriate CE
action. Other files indicated that certain coordination had been
completed, but the details of the letters or approvals themselves could
not be located. In reviewing project records, the team occasionally
encountered difficulty finding uploaded files because information
occurred in different tabs within ECOS. Another source of confusion for
the team was inconsistency in file naming (or an absence of a file
naming convention) for uploaded files. Because of these difficulties
the team could not determine whether a project file was incomplete or
not. The audit team urges TxDOT to seek ways to establish procedures
and organize ECOS to promote project records where information may be
identified and assessed more easily.
Observation #7
The team notes that most ECOS project records are for CEs, which
may be difficult to disclose to the public. Based on interviews with
TxDOT staff the team wondered how TxDOT would
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disseminate information, such as technical reports, from ECOS as part
of Public Involvement procedures. The ENV management has since
explained that information will be provided upon request or at public
meetings/hearings for a project.
Quality Assurance/Quality Control
The team considers the QA/QC program to be generally in compliance
with the provisions of TxDOT's QA/QC Plan. However, TxDOT has yet to
apply the SAB program-level review for EA and EIS projects and the lack
of data from these types of projects means the team at this time cannot
fully evaluate the effectiveness of the program for these types of
projects. The team learned that TxDOT's SAB is still developing
standards and training for implementation.
The team recognized four areas of successful practices in TxDOT's
approach to QA/QC. First, TxDOT's use of a Core Team and its
development and usage of QA/QC checklists and toolkits are effective
and appear to result in a more standardized internal review process.
The TxDOT QA/QC Plan states that a Core Team, composed of a District
Environmental Coordinator and one individual from ENV, will be formed
for every EA and EIS project. The QA/QC Plan states that Toolkits,
Administrative Completeness Reviews and Determinations, Review for
Readiness, and Certification forms will be utilized to ensure quality
documents and compliance with NEPA laws and regulations.
Second, the team learned through interviews that TxDOT's SAB review
process has resulted in very timely and helpful feedback to District
staff. The team was told that feedback from SAB team reviews is
generally communicated within 2 weeks of the NEPA documentation
completion date. District staff said that they appreciate the feedback
that helps to ensure they are following procedures and guidelines. The
TxDOT also established a ``Corrective Action Team'' (CAT) that aids in
the SAB team's effectiveness. The CAT is responsible for determining if
findings from SAB reviews are systematic or confined to a certain area
or individual. The CAT is in place to ensure issues found by SAB review
are resolved.
Third, the team was told that some District staff developed their
own QA/QC tools and processes for CEprojects (i.e. smart PDF forms,
peer reviews, and a two signature approval process) that have led to
fewer errors.
Fourth, TxDOT's SAB and CAT recently implemented peer reviews for
forms, guidance, and handbooks that should lead to the reduction of
improper documentation and need for revisions. The SAB and CAT team
work together with ENV subject matter experts to update forms,
guidance, and handbooks in three locations (ENV internal server,
internal ENV Web page, and external TxDOT Web site). The ENV has
strongly encouraged the Districts to go to the appropriate location
before starting a new document to ensure they are using the most up to
date version of all forms. The end result of the form peer review
process should result in fewer errors and more consistency in NEPA
documentation.
The team considers three observations as sufficiently important to
urge TxDOT to consider improvements or corrective actions to their
approach to QA/QC.
Observation #8
The team learned through interviews that no EA or EIS projects had
been reviewed by the SAB and there was no agreed upon timeline for the
completion of SAB guidelines or standards. This is due to the standards
for SAB reviews of EA and EIS documents not yet being established, and
to the fact only four FONSIs were made on EAs at the time of the team's
ECOS project file review. The team acknowledges that TxDOT conducts QA/
QC for EA and EIS projects and urges TxDOT to complete and apply their
SAB approach in a timely manner.
Observation #9
The team learned through interviews that there is no established
project sampling methodology for self-assessing TxDOT's effectiveness
of their standards and guidance. While TxDOT employs sampling, the team
could not find information that described how TxDOT assessed that they
evaluated a sufficient number of projects. Through our interviews with
SAB staff the team learned that there have been several approaches to
conducting reviews of the CEs completed since the NEPA Assignment
Program. Before the NEPA Assignment Program began, the SAB team
reviewed 100 percent of CE files. Then between December 2014, and
February 2015, SAB reviews were a grab sample of 11 files each week.
Eight were partial project reviews that focused on certain project
types. The remaining three reviews were of complete project files for
new CE categories (c22 and c23's). Since February 2015, the SAB team
has reviewed only the CE Documentation Form in project files. The team
was unable to determine whether TxDOT staff had a basis to assert that
its process was working as intended and that they could adequately
identify areas needing improvement. The TxDOT needs to better assess
the effectiveness of its QA/QC approach (a performance measure that it
must report on) by clarifying its review approach, recording
justifications for decisions TxDOT makes on how often project records
are evaluated, and what specifically is reviewed.
Observation #10
The team learned that TxDOT District staff does not have a clear
and consistent understanding of what distinguishes ``quality
assurance'' and ``quality control'' and ``self-assessment'' with
regards to expectations for reviews necessary to reach a NEPA decision
versus feedback once a decision was made. From interviews with District
and ENV staff, the team found staff was unclear about the role and
responsibility of the SAB and the CAT. Several District managers said
that they had not seen the QA/QC feedback on projects in their District
and were not sure if their staff had received comments from the SAB or
the CAT. The TxDOT should evaluate whether they need to clarify
expectations for receiving review comments before and after NEPA
decisionmaking to District staff.
Legal Sufficiency Review
During this audit period FHWA attorneys delivered a legal
sufficiency training for the benefit of the TxDOT attorneys. The team
did not perform analyses of this topic area during this audit. However,
the team noted that TxDOT developed a set of Standard Operating
Procedures for Legal Sufficiency Review. The process is also described
in ENV's Project Delivery Manual, an internal document of processes and
procedures used by project delivery staff. The TxDOT's Office of
General Counsel tracks legal review requests and their status by
keeping a log.
According to TxDOT's project delivery manual, four attorneys are
available for legal reviews. Additional legal assistance may be
requested by TxDOT to the Transportation Division of the Office of the
Texas Attorney General. These attorneys would, as part of their review
responsibilities, provide written comments and suggestions (when
necessary) to TxDOT ENV to help ensure a document's legal sufficiency.
They would also be available to discuss questions or issues. Once the
reviewing attorney is satisfied that staff has addressed his or her
comments/suggestions to the maximum extent reasonably practicable, the
reviewing attorney will provide TxDOT ENV with
[[Page 50911]]
written documentation that the legal sufficiency review is complete.
The TxDOT ENV has indicated it will not finalize a Final
Environmental Impact Statement, individual Section 4(f) evaluation,
Notice of Intent, or 139(l) Notice before receiving written
documentation that the legal sufficiency review is complete. The team
was informed that, at the discretion of TxDOT ENV, EAs may be reviewed
for legal sufficiency. If additional reviews are needed, the type and
scope of an additional review would be determined by TxDOT ENV on a
case-by-case basis.
Performance Measurement
The purpose of performance measures is explained in the MOU (Part
10). Four performance measures were mutually agreed upon by FHWA and
TxDOT so that FHWA can take them into account in its evaluation of
TxDOT's administration of the responsibilities it has assumed under the
MOU. These measures provide an overall indication of TxDOT's discharge
of its MOU responsibilities. In collecting data related to the
reporting on the performance measures, TxDOT monitors its overall
progress in meeting the targets of those measures and includes this
data in self-assessments provided under the MOU (Part 8.2.5). The four
performance measures are: (1) Compliance with NEPA and other Federal
environmental statutes and regulations, (2) quality control and
assurance for NEPA decisions, (3) relationships with agencies and the
general public, and (4) increased efficiency and timeliness in
completion of the NEPA process.
The TxDOT is gathering performance baseline data and testing data
collection techniques designed to inform the performance measure
metrics that will be reported. The TxDOT intends, according to
information provided in their response to pre-audit information
questions, to begin reporting on performance measures with the
submittal of the next self-assessment summary report. This report is
expected in September 2015.
Developing baseline measures is an important part of establishing a
performance measure program. The team learned in interviews that
TxDOT's QA/QC process includes procedures to ensure that each
performance measure has begun with the careful vetting (by following up
with individuals in Districts) of data used to develop the baseline
measures for performance timeliness. This process should contribute to
the validity of the measures. The TxDOT staff explained in interviews
that the primary sources of information for overall performance measure
baselines are District records and ECOS records.
The TxDOT staff stated that they are considering a variety of
performance measurements in addition to measures identified in their
response to the pre-audit information request. The audit team
recognizes that developing meaningful measures for this program is
difficult. However, the audit team encourages TxDOT staff to continue
to explore innovative ways to measure performance. (For example, one
interviewee described statistical and visual methods to report the
performance measure of timeliness this way: ``We will calculate all the
statistical numbers. We will look at median and look at cluster around
the median. It will likely result in a visual analysis of the data (box
plot with outliers, measures of central tendency).'')
Observation #11
The TxDOT reports in their response to the pre-audit information
request that the QA/QC measure for NEPA decisions focuses only on EA
and EIS projects, but not decisions related to CEs and other specific
NEPA-related issues. Many decisions are tied to NEPA including
important ones such as decisions on Section 4f (identification of
properties, consideration of use, consideration of prudent and feasible
avoidance alternatives) and re-evaluations (whether the outcome was
adequately supported and is still valid). In applying this performance
measure, the team urges TxDOT consider evaluating a broader range of
decisions.
Observation #12
The team recognizes that TxDOT is still in the very early stages of
applying its performance measures. Based on information gained in the
pre-audit request and through interviews, more information on
performance measures and their verification may need to be presented
before the utility of such measures can be evaluated for audit
purposes. The performance measure for compliance with NEPA and other
Federal requirements for EA and EIS projects have yet to be fully
defined. The performance measurement plan indicated that TxDOT would
conduct agency polls to determine the measure for relationships with
agencies and the general public, but little detail was provided as to
what polls would be conducted and verified. The team also was concerned
that the measure for the TxDOT relationship with the public may be too
limited by focusing on the number of complaints. Such ``negative
confirmation'' monitoring tends to be used when the underlying system
or process under evaluation is known to have low levels of errors or
problems. Given that NEPA assumption is new to TxDOT, such practice
does not appear to be appropriate for gauging effectiveness at this
time.
Training Program
The team reviewed TxDOT's initial training plan provided in the
response to the pre-audit information request and evaluated its
contents and adequacy through interviews of ENV and District staff.
Based on information gained, TxDOT staff should consider the following
issues and questions in preparing the annual update of their training
plan, as required in the MOU. The team found the training plan
compliant.
The team recognizes two successful practices. First, FHWA
recognizes that TxDOT's largest venue for training is its annual
environmental conference. This annual gathering of Federal, State, and
local agency employees as well as consultants, in a context of
fellowship (400+ attendees), addresses a wide array of environmental
topics that reinforce existing and new environmental policies and
procedures. The presentations at the conference are usually no longer
than 1- hour per topic, but on some occasions does provide more in
depth training. The team encourages the continuation of the conference.
Second, the ``NEPA Chat'' is a monthly ENV-led web-based learning/
exchange opportunity for TxDOT environmental employees statewide. It is
a venue for them to receive updated news and announcements, exchange
ideas and is a forum for routine communication among Districts and ENV.
This informal training venue is versatile, flexible, and responsive to
the need to communicate information that should improve the consistency
of statewide NEPA Assignment practices.
The team considers four observations as sufficiently important to
urge TxDOT to consider improvements or corrective actions to their
approach to the training program. The FHWA recognizes that TxDOT's
assumption of Federal environmental responsibilities and liabilities is
new and involves tasks not previously performed or familiar to its
staff. This is the reason why training is a component of a State's
qualifications and readiness to assume FHWA's responsibilities and is
addressed in a separate section in the MOU (Part 12).
[[Page 50912]]
Observation #13
The team identified a concern about TxDOT's approach to training
and its training plan. Information gained in interviews indicated that
the initial TxDOT training plan relied heavily on a training model
employed by the California Department of Transportation (Caltrans),
because Caltrans is the only State that has assumed NEPA
responsibilities for the entire highway program. The FHWA does not
believe the Caltrans training model can replicate its current form to
meet the needs of TxDOT, because TxDOT has fewer NEPA staff, State
environmental laws that differ in scope, and a different business
``culture.'' There are other States (Idaho, Michigan, North Dakota,
Ohio, and Wyoming) that have established training plans that TxDOT
could draw upon as examples. These examples may benefit TxDOT and TxDOT
should consider evaluating components of these State's training plans
in their future annual updates of their own training plan.
Observation #14
The team found evidence that some aspects of training tasks were
either unattended and/or appear to have been forgotten based on the
training plan information provided to the team. The TxDOT has a section
of their Web site devoted to training, that the team learned from
interviews, is out of date. Some courses are no longer taught and
several classes are in need of updating, all of which provided for
training of non-TxDOT staff (i.e. local governments and consultants).
The team urges TxDOT to assess whether the proposed training approach
for non-TxDOT staff (relying heavily upon the annual environmental
conference) is adequate and responsive enough to address a need to
quickly disseminate newly developed procedures and policy.
Observation #15
The TxDOT training plan is currently silent on whether certain
subjects and topics are mandatory or required for certain job
responsibilities. The TxDOT staff told the team they would be
developing a ``progressive training plan'' that will identify the range
of training necessary for each job classification. District
Environmental Coordinators, and particularly District managers who
allocated training resources, indicated in interviews that they needed
to know which training was required for various TxDOT job categories,
to set budgeting priorities. The team recognized the important
connection between getting District staff trained and a clear statement
whether training was required for a certain job. Due to the connection
potentially being tenuous, this may explain the inconsistency the team
heard in interview responses to questions on training commitments from
District managers. The team suggests that the progressive training plan
clearly identify training required for each job classification.
Observation #16
From the perspective of the MOU, training planning and
implementation is a partnership effort amongst TxDOT, FHWA, and other
agencies. Training should be an ongoing task that follows an up-to-date
and mid-to-long range training plan. The current training plan includes
mostly TxDOT self-identified training needs and addresses those needs.
The MOU (Part 12.2) allows for 3 months after the MOU is executed, to
develop a training plan in consultation with FHWA and other agencies.
The TxDOT has committed in the MOU to consider the recommendations of
agencies in determining training needs, and to determine with FHWA, the
required training in the training plan MOU (Part 12.2). The TxDOT
considered and will address the specific comments from the U.S. Army
Corps of Engineers in the current training plan. However, the team
learned through interviews that individuals responsible for training
planning were unaware of the coordination between TxDOT subject matter
experts and other agencies related to training. It may be useful for
the TxDOT training coordinator to be fully involved and aware of the
range of coordination other TxDOT staff performs so that the training
plan benefits from this coordination.
Next Steps
The FHWA provided this draft audit report to TxDOT for a 14-day
review and comment period. The team has considered TxDOT comments in
developing this draft audit report. As the next step, FHWA will publish
a notice in the Federal Register to make it available to the public and
for a 30-day comment period review [23 U.S.C. 327(g)]. No later than 60
days after the close of the comment period, FHWA will respond to all
comments submitted in finalizing this draft audit report [pursuant to
23 U.S.C. 327(g)(B)]. Once finalized, the audit report will be
published in the Federal Register.
[FR Doc. 2015-20733 Filed 8-20-15; 8:45 am]
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