Surface Transportation Project Delivery Program; TxDOT Audit #4 Report |
|---|
Topics: Gasoline
|
Brandye L. Hendrickson
Federal Highway Administration
10 April 2018
[Federal Register Volume 83, Number 69 (Tuesday, April 10, 2018)]
[Notices]
[Pages 15448-15453]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-07293]
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
Federal Highway Administration
[FHWA Docket No. FHWA-2017-0038]
Surface Transportation Project Delivery Program; TxDOT Audit #4
Report
AGENCY: Federal Highway Administration (FHWA), DOT.
ACTION: Notice.
-----------------------------------------------------------------------
SUMMARY: The Surface Transportation Project Delivery Program allows a
State to assume FHWA's environmental responsibilities for review,
consultation, and compliance for Federal highway projects. When a State
assumes these Federal responsibilities, the State becomes solely
responsible and liable for carrying out the responsibilities it has
assumed, in lieu of FHWA. Prior to the Fixing America's Surface
Transportation (FAST) Act of 2015, the Program required semiannual
audits during each of the first 2 years of State participation to
ensure compliance by each State participating in the Program. This
notice finalizes the findings of the fourth audit report for the Texas
Department of Transportation's (TxDOT) participation in accordance with
these pre-FAST Act requirements.
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, U.S. 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
The Surface Transportation Project Delivery Program 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. Since December 16, 2014,
TxDOT has assumed FHWA's responsibilities under the National
Environmental Policy Act of 1969 and the responsibilities for reviews
under other Federal environmental requirements under this authority.
Prior to December 4, 2015, 23 U.S.C. 327(g) required the Secretary
to conduct semiannual audits during each of the first 2 years of State
participation, annual audits during years 3 and 4, and monitoring each
subsequent year of State participation to ensure compliance by each
State participating in the program. The results of each audit were
required to be presented in the form of an audit report and be made
available for public comment. On December 4, 2015, the President signed
into law the FAST Act, Public Law 114-94, 129 Stat. 1312 (2015).
Section 1308 of the FAST Act amended the audit provisions by limiting
the number of audits to one audit each year during the first 4 years of
a State's participation.
A draft version of this report was published in the Federal
Register on December 14, 2017, at 82 FR 59206 and was available for
public review can comment. The FHWA received seven responses during the
30-day public notice and comment period. None of the comments were
substantive. The American Road and Transportation Builders Association
voiced support of this program. The remaining six comments were
unrelated to this report. This notice finalizes the findings of the
fourth audit report for TxDOT participation in the Surface
Transportation Project Delivery Program.
Authority: Section 1313 of Public Law 112-141; Section 6005 of
Public Law 109-59; Public Law 114-94; 23 U.S.C. 327; 49 CFR 1.85.
Issued on: April 3, 2018.
Brandye L. Hendrickson,
Acting Administrator, Federal Highway Administration.
Surface Transportation Project Delivery Program
FHWA Audit #4 of the Texas Department of Transportation
June 16, 2016 to August 1, 2017
Executive Summary
This report summarizes the results of FHWA's fourth audit review
(Audit #4) to assess the performance by the Texas Department of
Transportation (TxDOT) regarding its assumption of responsibilities
assigned by Federal Highway Administration (FHWA), under a
memorandum of understanding (MOU) that took effect on December 16,
2014. TxDOT assumed FHWA's National Environmental Policy Act (NEPA)
responsibilities and other environmental review responsibilities
related to Federal-aid highway projects in Texas. The status of
FHWA's observations from the third audit review (Audit #3),
including any TxDOT self-imposed corrective actions, is detailed at
the end of this report. The FHWA Audit #4 team (team) appreciates
the cooperation and professionalism of TxDOT staff in conducting
this review.
The team was formed in October 2016 and met regularly to prepare
for the audit. Prior to the on-site visit, the team: (1) performed
reviews of project files in TxDOT's Environmental Compliance
Oversight System (ECOS), (2) examined TxDOT's responses to FHWA's
information requests, and (3) developed interview questions.
Interviews of TxDOT and resource agency staff occurred during the
on-site portion of this audit, conducted on May 22-26, 2017.
The TxDOT continues to develop, revise, and implement procedures
and processes required to carry out the NEPA Assignment Program.
Based on information provided by TxDOT and from interviews, TxDOT is
committed to maintaining a successful program. This report describes
two (2) categories of non-compliance observations and eight (8)
observations that represent opportunities for TxDOT to improve its
program. It also includes brief status updates of the Audit #3
conclusions.
The TxDOT has continued to make progress toward meeting the
responsibilities it has assumed in accordance with the MOU. The non-
compliance observations identified in this review will require TxDOT
to take corrective action. By taking corrective action and
considering changes based on the observations in this report, TxDOT
should continue to move the Surface Transportation Project Delivery
Program (NEPA Assignment Program) forward successfully.
Background
The NEPA Assignment Program allows a State to assume FHWA's
environmental responsibilities for review, consultation, and
compliance for highway projects. This program is codified at 23
U.S.C. 327. When a State assumes these Federal responsibilities for
NEPA project decision-making, the State
[[Page 15449]]
becomes solely responsible and liable for carrying out these
obligations in lieu of, and without further NEPA related approval
by, FHWA.
The State of Texas was assigned the responsibility for making
project NEPA approvals and the responsibility for making other
related environmental decisions for highway projects on December 16,
2014. 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 defend against any actions
brought by its citizens for NEPA decisions it has made in Federal
court.
The FHWA project-specific environmental review responsibilities
assigned to TxDOT are specified in the MOU. These responsibilities
include: compliance with the Endangered Species Act (ESA), Section 7
consultations with the U.S. Fish and Wildlife Service (USFWS) and
the National Oceanic and Atmospheric Administration's National
Marine Fisheries Service, and Section 106 consultations with the
Texas Historical Commission (THC) regarding impacts to historic
properties. Other responsibilities may not be assigned and remain
with FHWA. They include: (1) responsibility for project-level
conformity determinations under the Clean Air Act, and (2) the
responsibility for government-to-government consultation with
federally-recognized Indian Tribes. Based on 23 U.S.C. 327(a)(2)(D),
any responsibility not explicitly assigned in the MOU is retained by
FHWA.
The MOU specifies that FHWA is required to conduct six audit
reviews. These audits are part of FHWA's oversight responsibility
for the NEPA Assignment Program. The reviews are to assess a State's
compliance with the provisions of the MOU. They also are used to
evaluate a State's progress toward achieving its performance
measures as specified in the MOU; to evaluate the success of the
NEPA Assignment Program; and to inform the administration of the
findings regarding the NEPA Assignment Program. In December 2015,
statutory changes in Section 1308 of the Fixing America's Surface
Transportation Act (FAST Act) reduced the frequency of these audit
reviews to one audit per year during the first 4 years of State
participation in the program. This audit is the fourth completed in
Texas. The fifth and final audit is planned for 2018.
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. Regarding 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. Principal members of the team that conducted this
audit have completed special training in audit processes and
methods.
The diverse composition of the team and the process of
developing the review report and publishing it in the Federal
Register help to maintain an unbiased review and establish the audit
as an official action taken by FHWA. The team for Audit #4 included
NEPA subject-matter experts from the FHWA Texas Division Office, as
well as FHWA offices in Washington, DC, Atlanta, GA, Charleston, SC,
and Salt Lake City, UT. In addition to the NEPA experts, the team
included FHWA planners, engineers, and air quality specialists from
the Texas Division Office.
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, 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 consider TxDOT's technical competency and organizational
capacity, adequacy of the financial resources committed by TxDOT to
administer the responsibilities assumed, quality assurance/quality
control (QA/QC) process, attainment of performance measures,
compliance with the MOU requirements, and compliance with applicable
laws and policies in administering the responsibilities assumed.
This audit reviewed processes and procedures (i.e., toolkits and
handbooks) TxDOT staff use to process and make NEPA approvals. The
information the team gathered that served as the basis for this
audit came from three primary sources: (1) TxDOT's response to a
pre-audit #4 information request (PAIR #4), (2) a review of both a
judgmental and random sample of project files in ECOS with approval
dates after February 1, 2016, and (3) interviews with TxDOT and the
USFWS staff. The TxDOT provided information in response to FHWA pre-
audit questions and requests for documents and provided a written
clarification to FHWA thereafter. That material covered the
following six topics: program management, documentation and records
management, quality assurance/quality control, legal sufficiency
review, performance measurement, and training. In addition to
considering these six topics, the team also considered the following
topics: Endangered Species Act (ESA) compliance, consideration of
noise impacts and noise mitigation (Noise), and adherence to the
TxDOT Public Involvement plan.
The intent of the review was to check that TxDOT has the proper
procedures in place to implement the responsibilities assumed
through the MOU, ensure that the staff is aware of those procedures,
and make certain the staff implements the procedures appropriately
to achieve compliance with NEPA and other assigned responsibilities.
The review did not second guess project-specific decisions, as such
decisions are the sole responsibility of TxDOT. The team focused on
whether the procedures TxDOT followed complied with all Federal
statutes, regulation, policy, procedure, process, guidance, and
guidelines.
The team defined the timeframe for highway project environmental
approvals subject to this fourth audit to be between February 1,
2016, and January 31, 2017. The project file review effort occurred
in two phases: approvals made during Round 1 (Feb 1, 2016-July 31,
2016) and Round 2 (Aug 1, 2016-Jan 31, 2017). One important note is
that this audit project file review time frame spans a full 12
months, where previous audits reviewed project approvals that
spanned 6 months. The population of environmental approvals included
224 projects based on 12 certified lists of NEPA approvals reported
monthly by TxDOT. The NEPA project file approvals reviewed included:
(1) categorical exclusion (CE) determinations, (2) approvals to
circulate draft Environmental Assessments (EA), (3) findings of no
significant impacts (FONSI), (4) re-evaluations of EAs, Section 4(f)
decisions, (5) approvals of a draft environmental impact statement,
and (6) re-evaluations of EISs and records of decision (ROD).
Project files reviewed constitute a sample of randomly selected c-
listed CEs, and 100 percent of the following file approvals: 4(f)
approvals; CE determinations for actions not listed in the ``c'' or
``d'' lists; the FONSI and its EA; the ROD and its EIS; and re-
evaluations of these documents and approvals.
The interviews conducted by the team focused on TxDOT's
leadership and staff at the Environmental Affairs Division (ENV)
Headquarters in Austin and staff in four of TxDOT's Districts. The
team interviewed the Austin District and then divided into two
groups (the next day) to complete the face-to-face interviews of
district staff in Waco and San Antonio. Members of the team
interviewed staff from the Ft. Worth District via teleconference.
The team used the same ECOS project document review form but updated
interview questions for districts and ENV staff with new focus areas
to gather data.
Overall Audit Opinion
The TxDOT continues to make progress in the implementation of
its program that assumes FHWA's NEPA project-level decision
responsibility and other environmental responsibilities. The team
acknowledges TxDOT's effort to refine and, when necessary, establish
additional written internal policies and procedures. The team found
evidence of TxDOT's continuing efforts to train staff in clarifying
the roles and responsibilities of TxDOT staff, and in educating
staff in an effort to assure compliance with all of the assigned
responsibilities.
The team identified two non-compliant observations in this audit
that TxDOT will need to address through corrective actions. These
non-compliance observations come from a review of TxDOT procedures,
project file documentation, and interview information. This report
also identifies several notable observations and successful
practices that we recommend be expanded.
Non-Compliance Observations
Non-compliance observations are instances where the team found
the TxDOT was out of
[[Page 15450]]
compliance or deficient in proper implementation of a Federal
regulation, statute, guidance, policy, the terms of the MOU, or
TxDOT's own procedures for compliance with the NEPA process. Such
observations may also include instances where TxDOT has failed to
maintain technical competency, adequate personnel, and/or financial
resources to carry out the assumed responsibilities. Other non-
compliance observations could suggest a persistent failure to
adequately consult, coordinate, or consider the concerns of other
Federal, State, Tribal, or local agencies with oversight,
consultation, or coordination responsibilities. The FHWA expects
TxDOT to develop and implement corrective actions to address all
non-compliance observations. As part of information gathered for
this audit, TxDOT informed the team they are still implementing some
recommendations made by FHWA on Audit #3 to address non-compliance.
The FHWA will conduct follow-up reviews of non-compliance
observations in Audit #5 from this review.
The MOU (Part 3.1.1) states that ``[p]ursuant 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 USDOT Secretary's responsibilities for
compliance with the National Environmental Policy Act of 1969
(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
1500-1508, DOT Order 5610.1C, and 23 CFR 771 as applicable.'' Also,
the performance measure in MOU Part 10.2.1(A) for compliance with
NEPA and other Federal environmental statutes and regulations
commits TxDOT to maintaining documented compliance with requirements
of all applicable statutes and regulations, as well as provisions in
the MOU. The following non-compliance observations are presented as
two categories of non-compliance observations: (1) with procedures
specified in Federal laws, regulations, policy, or guidance, or (2)
with the State's environmental review procedures.
Audit #4 Non-Compliance Observation #1: Section 5.1.1 of the MOU
requires the State to follow Federal laws, regulations, policy, and
procedures to implement the responsibilities assumed. This review
identified several examples of deficient adherence to these Federal
procedures.
a) Project scope analyzed for impacts differed from the scope
approved
Making an approval that includes actions not considered as part
of environmental review is deficient according to the FHWA Technical
Advisory 6640.8A. The scope of the FONSI cannot include actions not
considered in the EA. This recurring deficiency was also identified
for a project file in Audit #3.
b) Plan consistency prior to NEPA approval
Section 3.3.1 of the MOU requires that prior to approving any CE
determination, FONSI, final EIS, or final EIS/ROD, TxDOT will ensure
and document that the project is consistent with the current
Transportation Improvement Plan, Regional Transportation Plan, or
Metropolitan Transportation Plan. The team identified two projects
where TxDOT made NEPA approval without meeting the MOU consistency
requirement.
c) Public Involvement
The FHWA's regulation at 23 CFR 771.119(h) requires a second
public notification to occur 30 days prior to issuing a FONSI. The
team reviewed a project file where TxDOT approved a FONSI for an
action described in 23 CFR 771.115(a) without evidence of a required
additional public notification. TxDOT acknowledges this requirement
in their updated public involvement handbook.
d) Timing of NEPA approval
One project file lacked documentation for Section 106 compliance
prior to TxDOT making a NEPA approval. The FHWA regulation at 23 CFR
771.133 expects compliance with all applicable laws or reasonable
assurance all requirements will be met at the time of an approval.
Audit #4 Non-Compliance Observation #2: Section 7.2.1 of the MOU
requires the State to develop State procedures to implement the
responsibilities assumed. This review identified several examples of
deficient adherence to these state procedures.
a) Reporting of approvals made by TxDOT
MOU section 8.7.1 requires the State to certify on a list the
approvals it makes pursuant to the terms of the MOU and Federal
review requirements so FHWA knows which projects completed NEPA and
are eligible for Federal-aid funding. The FHWA identified a project
whose approval was made pursuant to State law and therefore should
not have been on the certified list of projects eligible for
Federal-aid funding. This is a recurrence from Audit #3.
b) Noise workshop timing
One project did not follow the TxDOT Noise guidelines for the
timing of a required noise workshop. TxDOT improperly held a noise
workshop months before the public hearing opportunity. The TxDOT
noise guidelines (Guidelines for Analysis and Abatement of Roadway
Traffic Noise, 2011) identifies procedures for compliance with 23
CFR 772. This is a recurrence of the same non-compliance observation
in Audit #3.
c) Endangered Species Act Section 7
The TxDOT provided training to staff and updated its Section 7
compliance procedures, as part of a partnering effort after Audit #3
between FHWA, TxDOT, and USFWS. However, one project was still not
in compliance with the updated procedures.
d) Indirect & Cumulative Impacts
One project file reviewed by the team lacked the indirect and
cumulative impact analysis that is expected according to TxDOTs
indirect and cumulative impact evaluation procedures.
e) Federal approval request for a State-funded project
The review team reviewed a project file where TxDOT followed
State environmental laws and then requested Federal-aid to purchase
right-of-way. TxDOT informed the team that they are removing Federal
funds from the ROW portion of this project as corrective action.
This is a recurrence from Audit #3.
Successful Practices and Other Observations
This section summarizes the team's observations about issues or
practices that TxDOT may consider as areas to improve. It also
summarizes practices that the team believes are successful, so that
TxDOT can consider continuing or expanding those programs in the
future. Further information on these successful practices and
observations is contained in the following subsections that address
these six topic areas: program management; documentation and records
management; quality assurance/quality control; legal sufficiency;
performance management; and training.
Throughout the following subsections, the team lists eight
observations for TxDOT to consider in order to make improvements.
The FHWA's suggested implementation methods of action include:
corrective action, targeted training, revising procedures, continued
self-assessment, improved QA/QC, or some other means. The team
acknowledges that, by sharing the preliminary draft audit report
with TxDOT, TxDOT has begun the process of implementing actions to
address these observations and improve its program prior to the
publication of this report.
1. Program Management
Successful Practices and Observations
The team appreciates TxDOT ENV willingness to partner with FHWA
before, during, and after audit reviews. This has resulted in
improved communication and assisted the team in verifying many of
the conclusions in this report. The quarterly partnering sessions,
started in 2016, will be an ongoing effort. These exchanges of
information between FHWA and TxDOT have clarified and refined FHWA's
reviews and assisted TxDOT's efforts to make improvements to their
environmental review processes and procedures.
The team noted in district and ENV staff interviews that they
welcomed the opportunity to be responsible and accountable for NEPA
decisions. In addition, TxDOT District staff members and management
have said in interviews that they are more diligent with their
documentation because they know that these approvals will be
internally assessed and the district held accountable by the TxDOT
ENV Program Review Team (formerly TxDOT's Self-Assessment Branch,
[SAB]). District staff indicated in interviews that the former SAB
detailed reviews were highly valued because they learned from their
mistakes and make improvements. Accountability, in part, is driving
an enhanced desire for TxDOT staff to consistently and carefully
complete environmental reviews.
The team recognizes enhanced communication among individuals in
the project development process through the Core Team (a partnership
of district and ENV environmental staff assigned to an individual
EIS project) as a valuable concept. Information gained from
interviews and materials provided by TxDOT in most cases demonstrate
improved communication amongst districts and between districts and
ENV. The team noted that ``NEPA Chats'' (regular conference calls
led by ENV,
[[Page 15451]]
providing a platform for districts to discuss complex NEPA
implementation issues) are still, for the most part, well received.
Districts also provide internal self-initiated training across
disciplines so everyone in the district office is aware of TxDOT
procedures to try to ensure that staff follows NEPA-related,
discipline specific processes. This keeps projects on-schedule or
ensures that there are no surprises if projected schedules slip.
Audit #4 Observation #1: Noise procedure clarification.
TxDOT ENV is currently in the process of proposing an update to
their Noise Guidelines. The team reviewed a project file where the
decisions based on an original Noise Study were re-examined to reach
a different conclusion. The current TxDOT Noise Guidelines do not
address how, or under what conditions a re-examination of an
original Noise Study report that reaches different conclusions could
occur. The team urges TxDOT to clarify their Noise Guidelines to
ensure consistent and fair and equitable treatment of stakeholders
affected by highway noise impacts.
Audit #4 Observation #2: Section 7 of the Endangered Species Act
During the interviews, the review team learned that there is a
disincentive for ``may affect'' determinations because TxDOT cannot
predict the amount of time required to complete informal
consultation. If a particular project's schedule could accommodate
the time required for informal consultation, a ``may affect''
determination might be made to minimize a risk of a legal challenge.
The review team would like to draw TxDOT's attention to the
possibility that risk management decisionmaking can introduce a bias
or ``disincentive'' to coordinate with USFWS when it is expected
according to Federal policy and guidance. In fulfilling ESA Section
7(a)(2) responsibilities, Congress intended the ``benefit of the
doubt'' to be given to the species (H.R. Conf. Rep. 96-697, 96
Cong., 1st sess. 1979).
The team acknowledges that TxDOT plans to train staff on its
revised ESA handbook and standard operating procedures (SOP), and
this may inform staff of this bias. Through interviews, the team
learned that in certain districts with sensitive habitats (i.e.,
karst) or the possibility of a species present (i.e., a salamander),
ENV managers would review a project's information in addition to the
district's and/or ENV biologists. This enhanced review process is
currently limited only to two districts and could be expanded to
include instances where such bias may occur.
Audit #4 Observation #3: Project description and logical termini
The team reviewed one project where the scope described in the
NEPA document differed from what was proposed to be implemented. A
proposed added capacity project's description indicated a longer
terminus compared to a schematic. The team could not determine
whether the description or the schematic accurately reflected the
project proposal.
A second reviewed project contained a description of the
proposed project as the project's purpose instead of identifying a
purpose that would accommodate more than one reasonable alternative.
The team urges TxDOT to make reviewers aware of these challenges.
2. Documentation and Records Management
The team relied on information in ECOS, TxDOT's official file of
record, to evaluate project documentation and records management
practices. Many TxDOT toolkit and handbook procedures mention the
requirement to store official documentation in ECOS. The ECOS is
also a tool for storage and management of information records, as
well as for disclosure within TxDOT District Offices. ECOS is how
TxDOT identifies and procures information required to be disclosed
to, and requested by, the public. ECOS is being upgraded, and there
are four more phased upgrades planned over time. The most recent
work includes incorporation of a revised scope development tool,
Biological Evaluation form, and new way to electronically approve a
CE determination form in lieu of paper. The TxDOT staff noted that
ECOS is both adaptable and flexible.
Successful Practices and Observations
A number of successful practices demonstrated by TxDOT were
evident as a result of the documentation and records management
review. The team learned that ECOS continues to improve in download
speed and compatibility. The team learned through interviews with
TxDOT staff members that ENV is changing the scope development tool
within ECOS and that functionality will improve. Some staff
indicated that they also utilized the scope development tool to
develop their own checklists to ensure that all environmental
requirements have been met prior to making a NEPA approval.
Audit #4 Observation #4: Record keeping integrity
The team's review included project files that were incomplete
because of missing or incorrect references that would link the files
to environmental review documentation. TxDOT has indicated that they
are working to address this problem. In addition to the issue of
database links, the team identified a project file that lacked a
record of required public involvement required per TxDOT procedures.
The team learned from interviews that ENV and district staff do not
consistently include such documentation in ECOS. Also, one reviewed
project file had outdated data for threatened and endangered
species. The team urges TxDOT staff to rely upon up to date and
complete data in making project decisions.
The team identified one project file where total project costs
were not presented in the project documentation and EA documents
were added after the FONSI was signed. The added EA documentation
was editorial in nature. The team urges TxDOT to ensure the project
file contains supportive documentation. Material that was not
considered as part of the NEPA decision, and that was dated after
the NEPA approval should not be included in a project's file.
The team found a project file that had conflicting information
about a detour. The review form indicated that no detour was
proposed, but letters to a county agency said that a road would be
closed, which would require addressing the need for a detour. Our
review was unable to confirm the detour or whether the impact road
closure was considered.
3. Quality Assurance/Quality Control (QA/QC)
Successful Practices and Observations
The team observed some continued successful practices from
previous audits in QA/QC. These successful practices include the use
of established checklists, certifications, NEPA Chats, and the CORE
Team concept (items described in previous audit reports). The TxDOT
District Office environmental staff continue to do peer reviews of
environmental decisions to double check the quality and accuracy of
documentation. The Environmental Affairs Division has established a
post-NEPA review team (performance review team) that was briefly
mentioned in the Self-Assessment report to FHWA. Through our
interviews, we learned that the team reaches out to ENVs own Section
Directors and subject matter experts, in addition to District
environmental staff, regarding their observations to improve the
quality of documentation in future NEPA decisions. The FHWA team
observed increased evidence in ECOS of documentation of
collaboration illustrating the efforts to improve document quality
and accuracy.
Audit #4 Observation #5: Effectiveness and change in QA/QC
Based on project file reviews, the team found errors and
omissions that should have been identified and addressed through
TxDOT quality control. Also, TxDOT's certified monthly list of
project decisions contained errors, some of which were recurring.
During this review period, the team was informed that TxDOT's
approach to QA/QC had changed since the previous audit review. In
audit #3, the team identified the Self-Assessment Branch (SAB) as a
successful practice. TxDOT's response in the PAIR #4 indicated SAB
was disbanded and ENV did not explain how its function would be
replaced. Through interviews, the team learned that TxDOT had
reorganized its SAB staff and modified its approach to QA/QC. This
report identifies a higher number of observations that were either
non-compliant or the result of missing or erroneous information
compared to previous audits. The team could not assess the validity
and relevance of TxDOT's self-assessment of QA/QC because TxDOT's
methodology (sampling and timeframe) was not explained. Lastly,
through interviews with district environmental staff, the team
learned that they are unclear on how errors and omissions now
identified by the new ``performance review team'' and ENV subject
matter experts (SMEs) are to be resolved. The team urges TxDOT to
evaluate its new approach to QA/QC with relevant and valid
performance measures and to explain its approach to QA/QC to its
staff.
[[Page 15452]]
4. Legal Sufficiency Review
Based on the interviews with two of the General Counsel Division
(GCD) staff and documentation review, the requirements for legal
sufficiency under the MOU continue to be adequately fulfilled.
There are five attorneys in TxDOT's GCD, with one serving as
lead attorney. Additional assistance is provided by a consultant
attorney who has delivered environmental legal assistance to ENV for
several years and by an outside law firm. The contract for the
outside law firm is currently going through a scheduled re-
procurement. The GCD assistance continues to be guided by ENVs
Project Delivery Manual Sections 303.080 through 303.086. These
sections provide guidance on conducting legal sufficiency review of
FHWA-funded projects and those documents that are to be published in
the Federal Register, such as the Notice of Intent (NOI) to prepare
an EIS, Statute of Limitation (139(l)), and Notice of Availability
of EIS.
GCD continues to serve as a resource to ENV and the districts
and is involved early in the development of large and complex
projects. One example is the very large Houston District IH 45
project around downtown Houston with an estimated cost of $4.5
billion. The GCD lead attorney has been involved in the project and
participated in the project's public hearing. GCD participates in
the monthly NEPA chats and recently provided informal training
during the chat on project scoping, logical termini, and independent
utility.
According to TxDOT's response to FHWA's PAIR #4, GCD staff has
reviewed or been involved in legal review for eight projects. The
ENV project delivery managers make requests for review of a document
or assistance to the lead attorney, who then assigns that project to
an attorney for legal review. Attorney comments are provided in the
standard comment response matrix back to ENV and are reviewed by the
lead attorney. All comments must be satisfactorily addressed for GCD
to complete its legal sufficiency determination. The GCD does not
issue conditional legal sufficiency determinations. Legal
sufficiency is documented by email to ENV.
A notable effort by GCD, in the last year, were the two lawsuits
on TxDOT issued Federal environmental FONSI decision on the MOPAC
intersections, the ongoing environmental process on the widening of
south MOPAC, and State environmental decision on SH 45 SW. The
lawsuit advanced only the Federal environmental decision on the
MOPAC intersections. GCD worked first to develop the administrative
record, having the numerous consultant and TxDOT staff provide
documentation of their involvement on the MOPAC intersections
project. Staff from GCD, Attorney General, and outside counsel then
developed the voluminous record, which is their first since assuming
NEPA responsibilities. The initial request by the plaintiffs for a
preliminary injunction on the project was denied in Federal court,
and, since a hearing on the merits was held later, they are awaiting
the judge's decision. The FHWA and DOJ were notified, as
appropriate, of the notices of pleadings through the court's PACE
database.
Successful Practice
ENV involves GCD early on projects and issues in need of their
attention and expertise. Based on our discussions, GCD continues to
be involved with the districts and ENV throughout the NEPA project
development process, when needed, and addresses legal issues, as
appropriate. Based on interview responses, observation, and the
comments above, TxDOT's approach to legal sufficiency is adequate.
5. Performance Measurement
TxDOT states in their self-assessment summary report that they
achieved acceptable performance goals for all five performance-based
performance metrics with the remaining seven performance goals
remaining, consistent with the March 2016 self-assessment. The TxDOT
continues to devote a high level of effort to develop the metrics to
measure performance. During this audit, the team learned through
interviews that the methodology employed to assess QA/QC performance
had been revamped to the point that the results do not appear to be
comparable with measures from previous years.
Successful Practices and Observations
As part of TxDOT's response to the PAIR #4, TxDOT provided an
alternate performance metric for EA timeframes that analyzed the
distribution of EA durations for projects initiated and completed
prior to assignment, initiated prior to assignment but completed
after assignment, and ones initiated and completed after assignment.
This creative approach identified both improved and diminished
performance in EA timeframes for projects initiated before
assignment but completed after assignment. TxDOT reports in their
response to the PAIR #4 that, at a 95 percent confidence interval,
comparing completion times for EA projects before and after
assignment, the post-assignment median timeframe for completion is
faster after assignment.
Audit #4 Observation #6: Performance measure awareness and
effectiveness
The team noted through interviews of TxDOT District Office staff
that many were unaware of TxDOT performance measures and their
results. We encourage TxDOT environmental leadership to make these
results available to their staff, if only as a means of feedback on
performance. Overall, these measures are a positive reflection of
actions taken by TxDOT staff, and sharing changes in performance
measures may lead to improved performance.
As mentioned above, the team learned that TxDOT's QA/QC
methodology changed from that utilized since the previous audit.
Previously, the measure reported the percent of project files
determined to be complete and accurate, but included information on
substantive errors made across different documents. Now the measure
is limited only to the percent of project files determined to be
complete that relies upon new yes/no/NA response questions whose
result lacks an evaluation of the substantial-ness of errors of
accuracy or completion. The team urges TxDOT to continue to analyze
the information they are already collecting on the completeness and
accuracy of project files as means of implementing information that
usually leads to continuous improvement.
6. Training Program
Since the period of the previous audit, TxDOT has revamped its
on-line training program, as training courses content were out of
date. Training continues to be offered to TxDOT staff informally
through NEPA chats as well as through in-person instructor training.
All of the training information for any individual TxDOT District
staff environmental professional can be found on a TxDOT SharePoint
site and is monitored by the training coordinator (especially the
qualifications in the Texas Administrative Code). This makes it much
more straightforward for third parties (including FHWA) to assess
the district staff competency and exposure to training. Since Audit
#3 TxDOT has increased the number of hours of training that staff
are required to have to maintain environmental certification from 16
to 32 hours. Based on interviews, we learned that some individuals
had far exceeded the minimal number of training hours required. We
learned that training hours could be earned by participating in the
environmental conference, but with a stipulation that other sources
of training would be required.
Successful Practices and Observations
The team recognizes the following successful training practices.
We learned from interviews that two TxDOT District Offices conduct
annual training events for staff of local governments as a means to
help them develop their own projects. This training identifies the
TxDOT expectations for successful project development, including
environmental review.
Another successful practice we learned from interviews, and
reported by TxDOT in the list of training scheduled, is that public
involvement training has been revised to emphasize additional
outreach that goes beyond the minimum requirements. The emphasis
appears to be on achieving meaningful public engagement rather than
simple public disclosure.
Finally, the team would like to acknowledge that TxDOT has
recognized and taken advantage of cross training that is a
successful practice. The TxDOT ENV strategic planning coordinator
informed us in an interview that he co-taught a class on planning
consistency by adding an environmental component. The team taught
how the planning issues relate to environmental review and
compliance five or six times throughout the State. The ENV strategic
planning coordinator is now working with the local government
division to add an environment module to the Local Project
Assistance class with specific discussion of environmental reviews
(adding information on how to work with ENV at TxDOT, or how to find
consultants who are approved to do work for TxDOT).
Audit #4 Observation #7: Additional outreach on improvements.
The team learned through interviews the value and importance of
NEPA chats for informing ENV staff when there are changes
[[Page 15453]]
in procedures, guidance, or policy. For example, when the handbook
for compliance with ESA was first completed, it was the subject of a
NEPA chat. The team is aware of recent changes TxDOT made to the
handbook related to a non-compliance related to ESA compliance.
Based on information gained from interviews, the team learned that
the changes to the ESA SOP/handbook were not followed by a NEPA
chat. As a result, we confirmed that most of the TxDOT Biology SMEs
were unaware of the handbook changes. The team appreciates that
TxDOT has revised its ESA handbook and urges staff to implement
training or other outreach to inform TxDOT staff of these revisions.
Audit #4 Observation #8: FAST Act training.
The Fixing America's Transportation (FAST) Act included several
new statutory requirements for the environmental review process, as
well as other changes that change NEPA procedures and requirements.
The FHWA's Office of Project Development and Environmental Review
has released some guidance on how to implement these requirements
and anticipates releasing additional information. Even though
additional information on these changes is forthcoming, States under
NEPA assignment are required to implement these changes. The team
learned through TxDOT's PAIR #4, and through interviews, that TxDOT
has neither developed nor delivered training to its staff concerning
new requirements for the FAST Act for environmental review. In
response to this observation, TxDOT is currently collaborating with
FHWA to develop a presentation on this topic for its annual
environmental conference.
Status of Non-Compliance Observations and Other Observations from Audit
#3 (April 2017)
Audit #3 Non-Compliance Observations
1. Section 7 Consultation--TxDOT ENV made revisions to their ESA
procedures that they have shared with FHWA and USFWS via partnering
sessions. TxDOT implementation and training efforts are still
pending by ENV management on the revised procedures to ENV and
district staff.
2. Noise Policy--TxDOT has informed the team that TxDOT is in
the process of updating the 2011 Noise Guidelines. TxDOT will submit
those guidelines to FHWA for review and approval once they are
updated. TxDOT has not indicated whether they intend to provide
training on these guidelines for TxDOT District Office and
consultant staff.
3. Public Involvement--TxDOT updated their FHWA approved
Handbook in November 2016. There was one recurrence of a non-
compliant action that was reported in Audit #3 during Audit #4.
TxDOT informed FHWA that ENV will request that FHWA review their
Texas Administrative Code in lieu of their previous request that
FHWA review only their Public Involvement Handbook.
4. Section 4(f)--FHWA did not have any non-compliance
observations in regards to TxDOT carrying out their assigned Section
4(f) responsibilities during Audit #4.
Audit #3 Observations
1. A certified project had an incomplete review--TxDOT continues
to certify NEPA approvals for projects on a list provided to FHWA.
This audit review identified an error of the inclusion of a project
on a certified list.
2. Inconsistent and contradictory information in some project
files--TxDOT has made ECOS software upgrades recently that address
this problem. This audit review continued to identify project file
errors in the consistency of information.
3. TxDOT's QA/QC performance measure could demonstrate
continuous improvement--Since Audit #3, TxDOT has developed a new
approach to the QA/QC performance measure. For CE reviews, the
methodology is based on ``yes/no/NA'' answers to 50 questions (for
EA projects there are 100 questions) based on requirements in the
TxDOT handbooks. The measures are an average of the individual
projects reviewed. TxDOT has not addressed how this new measure may
demonstrate continuous improvement.
4. Consider implementing more meaningful timeliness measures--
TxDOT's response to the pre-audit information request as well as in
their self-assessment summary included detailed discussions of the
timeliness measures for CEs as well as for EA projects that are
meaningful.
5. TxDOT's ability to monitor the certification and competency
status of their qualified staff--TxDOT has included on its training
SharePoint site a database that identifies each environmental staff
member, a complete list of training they have completed, and when
that training occurred. TxDOT's training coordinator is responsible
for monitoring this database to ensure all staff maintain their
competency and qualification status per State law as well as the
ongoing training requirement specified by the ENV director.
Finalization of Report
The FHWA received seven responses to the Federal Register Notice
during the public comment period for this draft report. None of
comments were substantive; one from the American Road and
Transportation Builders Association voiced support of this program.
Six comments were unrelated to this report. This report is a
finalized draft version of this report without substantive changes.
[FR Doc. 2018-07293 Filed 4-9-18; 8:45 am]
BILLING CODE 4910-22-P