Surface Transportation Project Delivery Program; Ohio Department of Transportation Audit Report |
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Brandye L. Hendrickson
Federal Highway Administration
3 October 2018
[Federal Register Volume 83, Number 192 (Wednesday, October 3, 2018)]
[Notices]
[Pages 49973-49976]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-21565]
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DEPARTMENT OF TRANSPORTATION
Federal Highway Administration
[FHWA Docket No. FHWA-2018-0009]
Surface Transportation Project Delivery Program; Ohio Department
of Transportation Audit Report
AGENCY: Federal Highway Administration (FHWA), U.S. Department of
Transportation (DOT).
ACTION: Notice.
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SUMMARY: The Moving Ahead for Progress in the 21st Century Act (MAP-21)
established the Surface Transportation Project Delivery Program that
allows a State to assume FHWA's environmental responsibilities for
environmental review, consultation, and compliance under the National
Environmental Policy Act (NEPA) for Federal highway projects. When a
State assumes these Federal responsibilities, the State becomes solely
responsible and liable for the responsibilities it has assumed, in lieu
of FHWA. This program mandates annual audits during each of the first 4
years to ensure the State's compliance with program requirements. This
notice makes available the final report of Ohio Department of
Transportation's (ODOT) second audit under the program.
FOR FURTHER INFORMATION CONTACT: Mr. James G. Gavin, Office of Project
Development and Environmental Review, (202) 366-1473,
James.Gavin@dot.gov, or Mr. David Sett, Office of the Chief Counsel,
(404) 562-3676, David.Sett@dot.gov, Federal Highway Administration,
U.S. Department of Transportation, 61 Forsyth Street 17T100, Atlanta,
GA 30303. Office hours are from 8:00 a.m. to 4:30 p.m., e.t., Monday
through Friday, except Federal holidays.
SUPPLEMENTARY INFORMATION:
Electronic Access
An electronic copy of this notice may be downloaded from the
specific docket page at www.regulations.gov.
Background
The Surface Transportation Project Delivery Program, codified at 23
U.S.C. 327, commonly known as the NEPA Assignment Program, allows a
State to assume FHWA's responsibilities for environmental review,
consultation, and compliance for Federal highway projects. When a State
assumes these Federal responsibilities, the State becomes solely liable
for carrying out the responsibilities, in lieu of FHWA. The ODOT
published its application for assumption under the NEPA Assignment
Program on April 12, 2015, and made it available for public comment for
30 days. After considering public comments, ODOT submitted its
application to FHWA on May 27, 2015. The application served as the
basis for developing the memorandum of understanding (MOU) that
identifies the responsibilities and obligations that ODOT would assume.
The FHWA published a notice of the draft MOU in the Federal Register on
October 15, 2015, at 80 FR 62153, with a 30-day comment period to
solicit the views of the public and Federal agencies. After the comment
period closed, FHWA and ODOT considered comments and executed the MOU.
Section 327(g) of Title 23, U.S.C., requires the Secretary to
conduct annual audits to ensure compliance with the MOU during each of
the first 4 years of State participation and, after the fourth year,
monitor compliance. The results of each audit must be made available
for public comment. The FHWA published a notice in the Federal Register
on April 18, 2018, soliciting public comment for 30-days, pursuant to
23 U.S.C. 327(g). This notice is available at 83 FR 17212. 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 2. The team has considered these
comments in finalizing this audit report. This notice makes available
the final report of ODOT's second audit under the program.
Authority: Section 1313 of Public Law 112-141; Section 6005 of
Public Law 109-59; 23 U.S.C. 327; 23 CFR 773.
Issued on: September 26, 2018.
Brandye L. Hendrickson,
Deputy Administrator, Federal Highway Administration.
Surface Transportation Project Delivery Program
Final FHWA Audit of the Ohio Department of Transportation
August 6, 2016-August 4, 2017
Executive Summary
This is the second audit of the Ohio Department of Transportation's
(ODOT) assumption of National Environmental Policy Act (NEPA)
responsibilities, conducted by a team of Federal Highway Administration
(FHWA) staff (the team). The ODOT made the effective date of the
project-level NEPA and environmental review responsibilities it assumed
from FHWA on December 28, 2015, as specified in a
[[Page 49974]]
memorandum of understanding (MOU) signed on December 11, 2015. The ODOT
delegated these responsibilities to ODOT representatives located in the
Division of Planning. This audit examined ODOT's performance under the
MOU regarding responsibilities and obligations assigned therein.
Prior to the on-site visit, the team performed reviews of ODOT's
project NEPA approval documentation in EnviroNet (ODOT's official
environmental document filing system). This review consisted of a
statistically valid sample of 92 project files out of 736 approved
documents in ODOT's EnviroNet system with an environmental approval
date between May 31, 2016, and March 31, 2017. The team also reviewed
ODOT's response to the pre-audit information request (PAIR) and ODOT's
Self-Assessment report. In addition, the team reviewed ODOT's
environmental processes, manuals, and guidance; ODOT NEPA Quality
Assurance and Quality Control (QA/QC) Processes and Procedures; and the
ODOT NEPA Assignment Training Plan (collectively, ``ODOT procedures'').
The team conducted interviews with ODOT's Central Office during the on-
site portion of the review from July 31 to August 4, 2017. The team
interviewed the resource agencies the week prior to the on-site review.
Overall, the team finds ODOT continues to make reasonable progress
in implementing the NEPA Assignment Program. The team found one non-
compliance observation that will require ODOT to respond with
corrective action by its next self-assessment and subsequent report.
The team also noted five general observations and three successful
practices.
Background
The Surface Transportation Project Delivery Program (NEPA
Assignment Program) allows a State to assume FHWA's responsibilities
for review, consultation, and compliance with environmental laws for
Federal-aid highway projects. When a State assumes these
responsibilities, it becomes solely responsible and liable for carrying
out the responsibilities assumed, in lieu of FHWA.
The State of Ohio represented by ODOT completed the application
process and entered into an MOU with FHWA effective on December 28,
2015. With this agreement, ODOT assumed FHWA's project approval
responsibilities under NEPA and NEPA-related Federal environmental
laws.
The FHWA is obligated to conduct four annual compliance audits of
the ODOT's compliance with the provisions of the MOU. Audits serve as
FHWA's primary mechanism of overseeing ODOT's compliance with
applicable Federal laws and policies, evaluate ODOT's progress toward
achieving the performance measures identified in the MOU, and collect
information needed for the Secretary's annual report to Congress.
This audit is the second completed in Ohio. The third audit is
scheduled for 2018.
Scope and Methodology
The team conducted a careful examination of the ODOT NEPA
Assignment Program through a review of ODOT procedures and project
documentation, ODOT's PAIR response, and the self-assessment summary
report, as well as interviews with ODOT Central Office and district
environmental staff and resource agency staff. This review focuses on
the following six NEPA Assignment Program elements: (1) Program
management, (2) documentation and records management, (3) QA/QC, (4)
legal sufficiency, (5) performance measurement, and (6) training.
The PAIR consisted of 22 questions, based on responsibilities
assigned to ODOT in the MOU. The team reviewed ODOT's response, and
compared the responses to ODOT's written procedures. The team utilized
ODOT's responses to draft interview questions to clarify information in
ODOT's PAIR response.
The ODOT provided its NEPA Assignment Self-Assessment summary
report 30 days prior to the team's on-site review. The team considered
this summary report both in focusing on issues during the project file
reviews and in drafting interview questions. The report was compared
against the previous year self-assessment report and the requirements
in the MOU to identify any trends.
Between April 21 and June 5, 2017, the team conducted a project
file review of a statistically valid sample of 92 project files
representing ODOT NEPA project approvals in ODOT's online environmental
file system, EnviroNet with an environmental approval date between May
31, 2016, and March 31, 2017. The sample size of 92 projects was
calculated using a 90 percent confidence interval with a 10 percent
margin of error. The projects reviewed represented all NEPA classes of
action available, all 12 ODOT Districts and the Ohio Rail Development
Commission (ORDC).
During the on-site review week, the team conducted interviews with
37 ODOT staff members at the central office and three districts:
District 1 (Lima); District 11 (New Philadelphia); and District 12
(Cleveland). Interviewees included District Environmental Coordinators
(DEC), environmental staff, and executive management, representing a
diverse range of expertise and experience. The interviews at the ODOT
Districts included a discussion with staff regarding NEPA Assignment.
The team conducted interviews the week prior to the on-site review
with personnel from the Ohio Environmental Protection Agency Division
of Air Pollution Control, U. S. Environmental Protection Agency (EPA)
Region V Office, and the Ohio Historic Preservation Office. These
agencies provided valuable insight to the team regarding ODOT's
performance and relationships with partner resource agencies.
The team identified gaps between the information from the desktop
review of ODOT procedures, PAIR, self-assessment, project file review,
and interviews. The team documented the results of its reviews and
interviews and consolidated the results into related topics or themes.
From these topics or themes, the team developed the review observations
and successful practices. The audit results are described below.
Overall, the team found evidence that ODOT made reasonable progress
in implementing the NEPA Assignment Program based on the Audit 1
observations and demonstrated commitment to success of the program. The
team found one non-compliance observation that will require ODOT to
respond with corrective action by its next self-assessment and
subsequent report. The team also noted five general observations and
three successful practices.
The FHWA expects ODOT to develop and implement timely corrective
action to address the non-compliance observation. In addition, based on
the observations noted below, the team urges ODOT to consider
improvements in order to build upon the early successes of its program.
Observations and Successful Practices
Program Management
Observation 1: Implementation of ODOT policy, manuals, procedures, and
guidance is inconsistent across the State, particularly involving local
governments and consultants.
The team noted inconsistencies in the application of various ODOT
procedures in project file reviews. These inconsistencies were
particularly apparent in documents produced and
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actions taken by Local Public Agencies (LPA) and consultants, likely
due to variability in these outside parties' understanding of ODOT
procedures and requirements in areas such as public involvement (PI)
and environmental justice (EJ). Inconsistencies included items such as
not initiating contact with emergency and public services as part of PI
during the NEPA process and a failure to include EJ forms in project
files.
The ODOT representatives reported in response to interviews that
they have already taken action to train LPA and consultant staff in
response to this observation. The ODOT staff said that they moved
registration for the environmental training program from their office
to the Office of Local Technical Assistance Program and the result was
greater visibility and exposure of environmental training opportunities
for the LPAs. The ODOT representatives are hopeful the additional focus
on training will mitigate any inconsistencies in their program.
Successful Practice 1: ODOT has effective program management processes
in place resulting in successful project delivery.
In the 2 years since ODOT has assumed NEPA responsibilities, ODOT
has approved more than 1000 NEPA actions. Since Audit 1, ODOT undertook
measures to solidify its program management approach. The ODOT
representatives assigned subject matter experts with responsibility for
ODOT's procedures in their subject areas providing a sense of ownership
and allowing for ODOT to stay current in its program management
responsibilities. The ODOT developed and implemented over 140
procedures to document how to implement NEPA Assignment, manage the
program, and provide detailed instruction for completion of
environmental actions to document preparers and reviewers. The ODOT
implemented a quarterly update system for new or revised ODOT
procedures using a listserv approach and a single Web-based repository
of all guidance to share information. The ODOT continues to use routine
statewide NEPA chats and DEC Meetings to share updated information with
NEPA practitioners and to hear concerns from the field. Lastly, ODOT is
committed to continued process improvements to refine areas of noted
deficiency.
Documentation and Records Management
Non-Compliance Observation 1: Disclosure language required by Sections
3.1.2 or 3.1.3 of the MOU was missing from project materials and
documents.
The team identified 10 project files where PI materials lacked the
required disclosure language required in MOU Sections 3.1.2 or 3.1.3.
The disclosure in both sections states, ``The environmental review,
consultation, and other actions required by applicable federal
environmental laws for this project are being, or have been, carried-
out by ODOT pursuant to 23 U.S.C. 327 and a Memorandum of Understanding
dated December 11, 2015 and executed by FHWA and ODOT.'' In addition to
these 10 projects, ODOT identified 9 additional projects in which
various other documents lacked the required disclosure language, as
part of its self-assessment.
The projects identified by FHWA came from 8 of ODOT's 12 Districts
and included both ODOT and LPA projects. The projects identified by
ODOT have a similar distribution among districts and project sponsors.
The team considers this problem to be systemic across Ohio, identified
in about 20 percent of the FHWA sample.
The team acknowledges that ODOT has already developed an action
plan to address this issue, including the following:
In support of NEPA Assignment, ODOT has issued over 140
pieces of guidance, manuals or instructions on ODOT's process and
implementation of the NEPA Assignment Program. The ODOT will review
guidance that references this section of the MOU and ensure that there
are no changes that we could make to better provide direction or
guidance to our teams on how to comply with this requirement.
The MOU Section 3.1.3 requirement is already a part of
several of ODOT environmental training classes, including the PI class,
Categorical Exclusion (CE) class, 1-Week NEPA class, among others.
However, ODOT will review these classes to ensure Section 3.1.3
requirements are included and seek to include this compliance area into
other classes.
In addition, ODOT will make this area a renewed focus at
our NEPA chats and DEC meetings. Both of these events are training
events with all of ODOT's environmental staff, statewide. In addition,
this topic will be presented to our consultant teams at our next
Consultant Environmental Update Meeting and our Ohio Transportation
Engineering Conference (OTEC). Lastly, ODOT will look for opportunities
to increase outreach to our LPA's on this subject. The ODOT will keep
working to improve our overall performance in this area.
Observation 2: Project-level compliance issues were identified in four
areas: Public Involvement, Environmental Justice, Environmental
Commitments, and Fiscal Constraint. In addition, instances were
identified where the information included in the online environmental
file did not comply with ODOT standards.
The FHWA identified project-level compliance issues on 17 projects
in 4 areas in Audit 2. Three areas were identified in both Audit 1 and
Audit 2 (i.e., PI, EJ, and environmental commitments) and one was a new
area of issue in the current audit (i.e., fiscal constraint). Three of
the areas in need of improvement from the FHWA Audit 1 (i.e.,
floodplains, Wetlands Findings per E.O. 11990, and Section 4(f)) were
not identified in this audit, as shown in Table 1. As a result of the
first FHWA audit and ODOT's first self-assessment, ODOT updated many
procedures relating to the NEPA process and NEPA Assignment to improve
its processes and meet Federal requirements. This may be a contributing
factor to the changes in the areas in need of improvement identified in
FHWA Audit 1 and FHWA Audit 2
The ODOT's second Self-Assessment summary report also identified
PI, EJ, and environmental commitments as areas of needed improvements
and fiscal constraint as a compliance issue. During Audit 2, ODOT
informed FHWA about planned changes and improvements to EnviroNet that
should address some of the errors identified in the FHWA project file
review.
Table 1--Areas With Project-Level Compliance Issues by Year
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FHWA Audit 1 FHWA Audit 2
Area (2016) (2017)
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Public Involvement.................. [check] [check]
Environmental Justice............... [check] [check]
Environmental Commitments........... [check] [check]
Fiscal Constraint................... [check]
Floodplains......................... [check]
Wetlands Findings per E.O. 11990.... [check]
Section 4(f)........................ [check]
------------------------------------------------------------------------
In addition, FHWA identified issues with project file management in
both Audit 1 and Audit 2. The ODOT also identified project file
management as an
[[Page 49976]]
area in need of improvement through its Self-Assessment summary
reports. For example, the team could not find required documentation in
the Project File Tab even though there were indications that a related
task was completed. The areas under which the errors occurred, include,
but are not limited to PI, EJ, environmental commitments, maintenance
of traffic, and fiscal constraint. The projects identified represent
all ODOT's 12 districts and included ODOT, ORDC, and LPA projects.
The team considers these to be project level compliance issues
because, although documentation expected to be in the project file was
missing, the files generally contained indications that the necessary
review or commitments were being implemented. The team strongly
encourages ODOT to continue improvements to EnviroNet and ODOT
procedures to ensure complete documentation and compliance on future
projects. The FHWA will more closely review these project level
compliance issues in its next Audit review.
Quality Assurance/Quality Control (QA/QC)
Observation 3: There are variations in awareness, understanding, and
implementation of QA/QC process and procedures.
The inconsistencies and missing information so far described are an
indication that ODOT's QA/QC process requires attention. The interviews
revealed that middle and upper management at the districts are not
involved in the QA/QC process. The ODOT District environmental staff
and non-environmental staff said that they rely on the ODOT Central
Office to be the final backstop for QA/QC. However, most district staff
indicated a lack of awareness or understanding of the overall QA/QC
process. No training is provided exclusively for QA/QC.
Successful Practice 2: EnviroNet serves as QA/QC in terms of process
and consistency.
Interviews with district and ODOT Central Office staff indicated
that, overall, EnviroNet has changed the NEPA review process for the
better and represents a ``one-stop shop'' for documentation of the NEPA
process. The ODOT staff indicated that with everything now on-line,
including electronic signatures, communication is easier between ODOT,
the LPAs and consultants. The use of drop down menus and response
selections within the project file resource areas acts as QC, creating
increased standardization and consistency statewide.
The system of checks built into the system includes error messages
and a hard stop of the project if a peer review is required and not
completed. Another safeguard of EnviroNet is ``validation'' which
instigates a hard stop if required fields are not filled in the project
file. There are security protocols to allow access to the appropriate
staff for project file review and input, peer review and ultimately
approval officials.
Legal Sufficiency Review
To date, ODOT has not applied the ``ODOT NEPA Assignment Legal
Sufficiency Review Guidance'' guidance because it did not have any
documents that required legal sufficiency review. There are no
observations to report at this time.
Performance Measures
Observation 4: Some of ODOT's performance measures are ineffective.
The ODOT developed Performance Measures as required in MOU Section
10.2 to provide an overall indication of ODOT's execution of its
responsibilities assigned by the MOU. The team urges ODOT to refine or
revise performance measures to reveal any occasional or ongoing
challenges in agency relationships as well as any possible need to
adjust approaches to QC.
Training Program
The ODOT has a robust environmental training program and provides
adequate budget and time for staff to access a variety of internal and
external training. The ODOT updated its training plan in January 2017,
and provided the plan to FHWA and resource agencies for their review,
as required by Section 12.2 of the MOU. The training plan includes both
traditional, instructor-based training courses and quarterly DEC
meetings as well as monthly NEPA chats, where ODOT Central Office staff
can share new information and guidance with district staff, including
interactive discussions on the environmental program. Furthermore, the
training plan includes a system to track training needs within ODOT. In
addition, ODOT holds bi-annual meetings with consultants to provide on-
going updates about the environmental program.
Successful Practice 3: ODOT continues the practice of required and
continuous training of both staff and consultants involved in the
environmental process.
The ODOT's training plan states that all ODOT environmental staff
(both central and district offices) and environmental consultants are
required to take the pre-qualification training courses. Staff is also
encouraged to take training offered beyond the minimum required
training. All staff interviewed indicated that ODOT management fully
supports required training of staff and consultants.
Observation 5: Opportunities exist for expanding training in
Environmental Justice (EJ).
Currently, ODOT's training plan does not include a stand-alone
training course on EJ. In the Self-Assessment summary report, ODOT
identified EJ as an area needing improvement. This observation and that
the team found project level compliance issues related to EJ indicate
that additional attention should be paid by ODOT to EJ compliance. The
FHWA encourages ODOT to include specific EJ training opportunities in
its training plan, such as the Web-based course currently under
development, and other EJ courses offered by the National Highway
Institute, the FHWA Resource Center, and/or the EPA.
Finalization of Report
The FHWA received one response to the Federal Register Notice
during the public comment period for this draft report. This response,
from the American Road & Transportation Builders Association, was
supportive of the Surface Transportation Project Delivery Program and
did not relate specifically to Audit 2. This report is a finalized
draft version without substantive changes.
[FR Doc. 2018-21565 Filed 10-2-18; 8:45 am]
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