Surface Transportation Project Delivery Program; Ohio Department of Transportation Audit Report |
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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.
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\1\ Available at: https://www.dot.state.oh.us/NEPA-Assignment/Documents/ODOT_NEPA_File_Management.pdf.
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These practices may represent a risk to ODOT, since they could
eliminate documentation and evidence that support the ``hard look'' at
projects required by NEPA. More specifically, the deleted comments and
the use of alternate files could leave gaps in the decisionmaking
process that may be subject to litigation. The deletion of internal
document review comments and use of alternate files could also hinder
the transparency of the process and potentially call into question
reasonable assurances of compliance with NEPA and other recordkeeping
requirements. In addition, ODOT's process of internal comment deletion
does not allow for documenting trends in matters of compliance and non-
compliance.
Observation 4: ODOT does not include EAs, EISs, or their re-
evaluations in the EnviroNet system in the same way as Categorical
Exclusions (CE).
During interviews, ODOT personnel acknowledged EnviroNet contains
date fields to track EAs, EISs, and their re-evaluations, but the
system does not have fields to enter all information for these classes
of NEPA actions. Interviewees stated that staff typically upload a PDF
of the EA, EIS, or associated re-evaluation to the Project File Tab in
EnviroNet, in addition to entering data into the date fields.
The team reviewed two EIS re-evaluations that had incomplete
documentation in EnviroNet, per ODOT's NEPA File Management and
Documentation Guidance. Upon further inquiry, the team determined that
ODOT had stored the complete documentation outside of EnviroNet because
the original EIS documentation predated EnviroNet. Due to
inconsistencies between ODOT's guidance and actual practices, the team
encourages ODOT to update its NEPA File Management and Documentation
Guidance to clarify how EAs, EISs, and their re-evaluations should be
documented and filed to ensure that staff includes all necessary
information in the official environmental project file.
Documentation and Records Management
Observation 5: FHWA identified project-level compliance issues with
12 projects in 7 environmental resource areas, including: Public
Involvement, Environmental Justice, Environmental Commitments,
Wetlands, Floodplains, and Section 4(f).
The team discovered project compliance issues in the areas of
Public Involvement (PI), Environmental Justice (EJ), Environmental
Commitments, Wetlands, Floodplains, and Section 4(f). The ODOT's self-
assessment identified these same issues, with the exception of Section
4(f). The review noted several instances that indicated the
improvements ODOT should make in these areas. The project-level
compliance issues noted did not rise to the level of a finding of
program-level non-compliance. None of the reviewed projects were in
danger of losing Federal funding. For example, 24 percent of the
sampled projects demonstrated a need for improved public involvement,
and 6 percent of sampled projects had insufficient EJ analyses to
satisfy all Federal requirements.
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Areas Noted in Need of Improvement by Agency
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Areas in Need of Improvement FHWA ODOT
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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]
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* ODOT's Self-Assessment identified Project File Management
(Documentation) is another area in need of improvement, in terms of
documentation input errors within the EnviroNet project file.
The team met with ODOT, and ODOT agreed with the identified project
compliance issues. The ODOT continues to improve its processes and
procedures to ensure complete documentation and project-level
compliance. The ODOT has indicated that it will take actions to correct
the individual project compliance issues, such as adding missing
documentation to the Project File tab in EnviroNet. The team encourages
ODOT to look for any needed improvements to EnviroNet, policies,
procedures, and manuals to ensure complete documentation and compliance
on future projects.
Observation 6: The team identified several instances where the
information included in the online environmental file did not follow
ODOT standards.
The FHWA identified instances where ODOT was inconsistent with its
documentation procedures, per the ODOT NEPA File Management and
Documentation Guidance, and various other ODOT NEPA resource-area
guidance documents. The ODOT's Self-Assessment also identified project
file management as another area in need of improvement (see table
above), in terms of documentation input errors within the EnviroNet
environmental files.
[[Page 31678]]
Overall, ODOT has sound documentation tools, procedures and guidance.
However, opportunities exist for ODOT to refine the EnviroNet system,
accompanying procedures and guidance, and improve documentation
standards. The team encourages ODOT to refine its controls and training
to ensure proper documentation. This may include upgrades to EnviroNet
and policies, procedure, and manuals.
Quality Assurance/Quality Control (QA/QC)
Observation 7: There are variations in awareness, understanding,
and implementation of QA/QC process and procedures that may result in
the potential for inconsistencies in project documentation.
Interviews with ODOT District and OES staff revealed differences in
the level of knowledge and understanding of the QC process. Some
interviewees knew that they played a role and could describe exactly
how they complete the process. Other interviewees were less familiar
with their role in the QC process or indicated that they had little to
no role. In addition, some interviewees who hold the same title, but
work in different offices (both Districts and OES), reported different
roles or engagement in the QC process. At the same time, nearly all
interviewees reported that they review projects or other NEPA documents
and provide or respond to comments, indicating a misunderstanding of
the term QC.
In addition, interviews with ODOT District and OES staff revealed
many of ODOT's resource area manuals and guidance documents contain
information that can assist in the QC review process. Interviewees
reported that the contents of the manuals or guidance help them
determine if the document under review is in compliance, that all
necessary analysis was complete, and that all documentation is
included. The FHWA did hear variation in the frequency and extent to
which interviewees utilized the manuals and guidance as a tool in their
QC reviews. For example, many interviewees stated that they use the
manuals and guidance on a frequent basis, but others stated that they
do not need to reference the documents during their review.
Interviews also revealed variation in the implementation of the QC
process, particularly related to comments generated through the QC
process. Many interviewees indicated that they were able to generate
comments and address them through EnviroNet; however, some indicated
that they provided comments via email or other methodologies. In
addition, some staff discussed capturing the comments generated during
the QC process in EnviroNet through different means and saving them
outside of the EnviroNet system.
The FHWA reviewed ODOT's response to the PAIR, the ODOT NEPA
Quality Control/Quality Assurance Guidance, and the ODOT NEPA
Assignment Self-Assessment report to obtain clarification about some of
the variation in the District and OES responses. The PAIR response
contains the most detailed information regarding the manuals and
guidance documents, ODOT staff's role in the QC process, and how the
staff should capture comments generated in the QC process. The QC/QA
Guidance contains general information about staff roles in some of the
QC process, but does not discuss the use of manuals or comment
documentation. Lastly, the self-assessment report contains some
information about use of manuals, but does not discuss staff roles or
comment documentation.
Review of the ODOT NEPA Quality Control/Quality Assurance Guidance
and ODOT's response to the PAIR revealed that ODOT's QA is primarily
comprised of its self-assessment process. Interviews with ODOT
Districts and OES staff revealed differences in awareness and
understanding of the self-assessment process. Many of the interviewees
indicated they did not know about ODOT's first self-assessment.
The ODOT Self-Assessment report included statements about areas of
improvement. However, FHWA was uncertain how ODOT planned to implement
changes. Through review of ODOT's response to the PAIR and interviews,
FHWA determined that OES provided the Districts with Interoffice
Communication memos that contained self-assessment results and
suggestions for improvement for the specific District. In addition, OES
emailed the self-assessment report to the District Environmental
Coordinator's email list (includes staff and DECs) and shared the
results with ODOT's executive management.
The OES stated in interviews that it is going to develop strategies
to address programmatic issues from the self-assessment after it gets
the results of this report. In addition, OES indicated that they will
follow-up with Districts to determine if the Districts have implemented
project specific corrections.
The QC/QA guidance does not contain detailed information on some
elements of the QA/QC process. After the interviews, FHWA has a better
understanding that many employees use the ODOT manuals and guidance as
reference. However, staff still seems to be unclear about their role in
the QC process, and there is variation in implementation of the
process. This could create inconsistencies in the implementation of the
QA/QC process around the State, particularly regarding project
documentation. The FHWA previously encouraged ODOT to expand its QC/QA
guidance document to include information that is more detailed. The
ODOT indicated in its PAIR response that the final updated version of
the QC/QA Guidance document would be available in the coming months.
Legal Sufficiency Review
Observation 8: ODOT has developed guidance for legal sufficiency.
To date, guidance on legal sufficiency is untested.
In December 2015, ODOT developed legal sufficiency guidance
entitled ``ODOT NEPA Assignment Legal Sufficiency Review Guidance.''
The guidance sets forth the review procedure and criteria. In addition,
the guidance provides information to environmental staff on what
criteria an attorney will focus on during the legal sufficiency review.
Per that guidance, ODOT is required to conduct legal sufficiency
reviews of combined Final Environmental Impact statements/Record of
Decision documents, individual Section 4(f) evaluations, and Federal
Register notices on the Statute of Limitations of claims pursuant to 23
U.S.C. 139.
To date, ODOT has not applied this guidance because it did not have
any documents that required legal sufficiency review. However, if
program staff were to receive such documents, they would forward a
request for review to a dedicated attorney assigned to OES by the Chief
Legal Counsel. The attorney has 15 business days to complete the legal
sufficiency review. Upon receipt of the request, the attorney will
notify the program staff, giving the staff an estimated date of
completion, and provide any comments and a Legal Sufficiency finding to
the OES Administrator, Deputy Director of Planning, and the Chief Legal
Counsel.
Successful Practice 1: ODOT has successfully integrated a dedicated
legal counsel as part of the environmental team.
Per the team's suggestion, ODOT has assigned one attorney from the
Office of Chief Legal Counsel to provide legal services on
environmental issues to ODOT. This dedicated attorney serves
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as a resource on all environmental matters and provides legal
assistance to OES. The dedicated staff attorney has 8 months experience
in his position and has taken all required environmental training
courses. However, he does rely on outside resources for complex
environmental matters. At this time, ODOT does not have a specific,
identified attorney to take on the work if this dedicated attorney
leaves the agency. The ODOT should consider training a backup attorney
to assist when the dedicated legal counsel is not available.
Since ODOT has not completed any documents that require a legal
sufficiency review, the team's audit on this topic is necessarily
limited. At this time, our report on legal sufficiency reviews is a
description of ODOT's status as described in its response to the PAIR
and during the interviews with ODOT staff. The team will examine ODOT's
legal sufficiency reviews by project file inspection and through
interviews in future audits.
Performance Measures
Observation 9: Development of a program for collecting and
maintaining Performance Measures as defined in Part 10.2 of the MOU is
ongoing.
The FHWA established the Performance Measures included in MOU
Section 10.2 to provide an overall indication of ODOT's execution of
its responsibilities assigned by the MOU. During the interviews, the
team learned that staff at both the Districts and OES was not informed
about the performance measures contained in the MOU, nor of any actions
taken by OES to address the performance measures.
Leadership at OES indicated in interviews that they were aware that
the MOU requires ODOT to develop criteria for information and the means
to collect such information. However, at the time of the interviews,
ODOT was developing a plan to address the performance measures but it
had not yet implemented that plan. Based on the responses contained in
the PAIR and the Department's Self-Assessment report, OES indicated
that it intends to report on performance measures in the future. The
ODOT's timeline to fully develop the MOU performance measures is
unclear. The FHWA is encouraged that ODOT executive management may add
these performance measures, once developed, to the ODOT Critical
Success Factors, which are ODOT's departmental performance measures.
The ODOT told the team that it has begun developing performance
measures, and that further development will continue. The team did
learn that some OES staff had considered potential means to collect and
measure baseline data. For example, ODOT staff considered measuring the
times for completing the NEPA/environmental process for pre- and post-
assignment projects to compare differences of timeliness and
efficiencies. The ODOT is currently establishing the baseline. The team
will assess meaningful measures in Audit #2.
Training Program
Observation 10: ODOT has a robust environmental training program.
The ODOT documented its training plan in December 2015, as required
by Section 12.2 of the MOU. The training plan includes both
traditional, instructor-based training courses and quarterly District
Environmental Coordinator meetings, where ODOT's OES can share new
information and guidance with district staff and staff can participate
in discussions on the environmental program. The training plan states
that ``consultants must successfully complete training classes to be
pre-qualified in specific environmental areas and have specific
experience required in each area.'' During interviews with ODOT
management, the team learned that pre-qualification requirements also
include the experience of the consultant in providing specific
services, as well as the required ODOT training.
Successful Practice 2: ODOT uses pre-qualified consultants for
environmental work. Part of the qualifying criteria is completion of
the same training as is required of ODOT environmental staff.
The training plan states that all ODOT environmental staff (both
central office and district offices) are required to take the pre-
qualification training courses. Staff is encouraged to take all
training offered, beyond the required training. The team found through
interviews with ODOT staff that there was a major effort to ensure that
all staff was up to date on required training. The ODOT management
indicated that there was a one-time increase in the training budget to
ensure that staff had the necessary training to carry out their NEPA
responsibilities. District management staff also indicated their
support by describing how they prioritize and provide time for staff to
attend training. All staff interviewed indicated that they had always
received the support of management to receive necessary training.
The training plan includes a system to track training needs within
and outside ODOT. Interviewees indicated that the NEPA Assignment
Coordinator or the OES Training Coordinator notifies individuals when
they need training. This includes information on when the training
needs to be completed and when it is available. The system also tracks
training histories for local agencies and consultants.
Successful Practice 3: ODOT includes required and on-going training
of all environmental staff and consultants.
The ODOT's training plan relies solely on ODOT-developed courses,
with no outside training offered in the plan. Discussions with ODOT
management noted that they were not opposed to such training, as long
as it was relevant to Ohio's needs and program implementation. In
support of this statement, ODOT management pointed to an upcoming
National Highway Institute (NHI) training for ODOT staff on public
speaking. Additionally, ODOT has sent staff to other Federal agency
training, such as the conservation training offered by the U.S. Fish
and Wildlife Service.
Currently ODOT's training plan for required environmental courses
consists of only instructor-led training and in-person meetings. Such
courses allow for interaction among staff, consultants, and local
agencies. However, ODOT management noted that relying solely on
instructor-based training is costly and time consuming. The ODOT told
the team that it is currently assessing each of its training courses to
determine if any would be more suitable as web-based or electronic
learning courses. The FHWA encourages ODOT to continue this evaluation
and incorporate web based courses as appropriate.
Observation 11: Opportunities exist for expanding training in EJ.
In its Self-Assessment report, ODOT identified EJ as an area
needing improvement. The team asked several ODOT staff about EJ
training opportunities. While most staff indicated that they had
received such training within the past 5 years, they also noted that
such training was part of a larger course, such as the ``NEPA--Managing
the Environmental and Project Development Process'' course, the
``Categorical Exclusion'' course, or the ``Public Involvement'' course.
There is not a stand-alone training course on EJ in ODOT's Training
Plan. In one District, a project manager (non-environmental staff)
stated they had never received training on EJ. When the team asked
management in one district about expectations for EJ, management
indicated that they had none.
The ODOT management identified EJ as an area needing improvement in
their Self-Assessment report. In the interim, FHWA encourages ODOT to
consider EJ
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training for its staff and consultants, offered by the NHI and/or the
FHWA Resource Center.
Preparation and Comment on the Draft Report
In consultation with ODOT, FHWA prepared a draft audit report and
provided this draft to ODOT for a 14-day review and comment period.
After considering ODOT's comments, FHWA published a notice in the
Federal Register on March 16, 2017, soliciting public comment for 30-
days, pursuant to 23 U.S.C. 327(g). This notice is available at 82 FR
14096.
Finalization of Report
The FHWA received comments on the draft report from the American
Road & Transportation Builders Association (ARTBA). The ARTBA's
comments were supportive of the Surface Transportation Project Delivery
Program and did not relate specifically to Audit #1. The team has
considered these comments in finalizing this audit report.
Since the completion of this report, staff from ODOT and FHWA have
established quarterly partnering sessions where observations and other
issues relating to NEPA assignment are being discussed, clarified, and
resolved.
[FR Doc. 2017-14233 Filed 7-6-17; 8:45 am]
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