Notice2022-13172
Surface Transportation Project Delivery Program; Ohio Department of Transportation Audit #4 Report
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Published
June 21, 2022
Issuing agencies
Transportation DepartmentFederal Highway Administration
Abstract
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 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 with program requirements. This notice finalizes the findings of the fourth and last audit report for the Ohio Department of Transportation (ODOT).
Full Text
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<title>Federal Register, Volume 87 Issue 118 (Tuesday, June 21, 2022)</title>
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[Federal Register Volume 87, Number 118 (Tuesday, June 21, 2022)]
[Notices]
[Pages 36913-36916]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-13172]
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DEPARTMENT OF TRANSPORTATION
Federal Highway Administration
[FHWA Docket No. FHWA-2020-0008]
Surface Transportation Project Delivery Program; Ohio Department
of Transportation Audit #4 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 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
with program requirements. This notice finalizes the findings of the
fourth and last audit report for the Ohio Department of Transportation
(ODOT).
FOR FURTHER INFORMATION CONTACT: Ms. Megan Cogburn, Office of Project
Development and Environmental Review, (202) 366-2056,
<a href="/cdn-cgi/l/email-protection#deb3bbb9bfb0f0bdb1b9bcabacb09ebab1aaf0b9b1a8"><span class="__cf_email__" data-cfemail="3c51595b5d52125f535b5e494e527c585348125b534a">[email protected]</span></a>; or Mr. Patrick Smith, Office of the Chief
Counsel, (202) 366-1345, <a href="/cdn-cgi/l/email-protection#dbabbaafa9b2b8b0f5b8f5a8b6b2afb39bbfb4aff5bcb4ad"><span class="__cf_email__" data-cfemail="9cecfde8eef5fff7b2ffb2eff1f5e8f4dcf8f3e8b2fbf3ea">[email protected]</span></a>; 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 <a href="http://www.regulations.gov">www.regulations.gov</a>.
Background
The Surface Transportation Project Delivery Program, codified at 23
United States Code (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 it
has assumed, in lieu of the 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. The FHWA and ODOT amended the
MOU on June 6, 2018, to update recent national program guidance and
objectives for consistency with other States under the NEPA Assignment
Program. The FHWA and ODOT renewed the MOU on December 14, 2020, for a
new 5-year term effective December 28, 2020.
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 first audit report of ODOT compliance was
finalized on July 7, 2017. The second audit report of ODOT compliance
was finalized on October 3, 2018. The third audit report was finalized
on November 13, 2019. The FHWA published a notice in the Federal
Register on June 17, 2020, at 85 FR 36661, soliciting public comment
for 30 days on the draft fourth audit report. The FHWA received
comments on the draft report from the American Road and Transportation
Builders Association (ARTBA) and ODOT. The ARTBA's comments supported
the Surface Transportation Project Delivery Program and did not relate
specifically to Audit #4. The comments submitted by ODOT on the draft
audit report were substantially similar to comments that had previously
been discussed by the Audit Team with ODOT during the development of
the audit report. The FHWA considered these comments during the audit
process and determined they did not warrant changes to FHWA's
observations. This notice announces the availability of the fourth and
final audit report for ODOT.
Authority: Section 1313 of Public Law 112-141; Section 6005 of
Public Law 109-59; 23 U.S.C. 327; 23 CFR part 773.
Stephanie Pollack,
Deputy Administrator, Federal Highway Administration.
Surface Transportation Project Delivery Program
Final FHWA Audit #4 of the Ohio Department of Transportation
July 29, 2019 to August 2, 2019
Executive Summary
This is a report of the Federal Highway Administration's (FHWA)
fourth and final audit of the Ohio Department of Transportation's
(ODOT) assumption of National Environmental Policy Act (NEPA)
responsibilities. A
[[Page 36914]]
team of FHWA staff (the team) conducted the audit. 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 memorandum of understanding (MOU) signed on December 11,
2015, and amended on June 6, 2018. Within ODOT, the Division of
Planning Office of Environmental Services (OES) is responsible for
delivering the environmental program. 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 audit consisted of a review
of a statistically valid random sample of 72 project files out of 1,113
approved documents for Federal-aid projects in ODOT's EnviroNet system
with an environmental approval date between April 1, 2018, and March
31, 2019. The team conducted 100 percent sampling of the 2
Environmental Impact Statement (EIS) re-evaluations, 5 Environmental
Assessment (EA) re-evaluations, and 1 new EA approved by ODOT as part
of the sample. 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 Control and Quality Assurance Processes
and Procedures; and the ODOT NEPA Assignment Training Plan
(collectively, ``ODOT procedures''). The team conducted an on-site
review during the week of July 29 to August 2, 2019. The team conducted
interviews with ODOT's Central Office staff on July 29, 2019, and with
staff from three district offices on July 30, 2019. The team also
interviewed staff with the U.S. Fish and Wildlife Service (USFWS) on
August 9, 2019, as part of the review.
Overall, the team found ODOT to be in substantial compliance with
the terms of the MOU. The ODOT continues to make reasonable progress in
implementing the NEPA Assignment Program based on the results of four
audits, which demonstrates commitment to the success of the program.
For Audit #4, the team found zero non-compliance observations, but did
note one successful practice and four general observations. The FHWA
looks forward to continuing to work collaboratively with ODOT during
the monitoring phase of the program.
Background
The 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 an MOU with FHWA on December 28, 2015, which was
amended on June 6, 2018. The FHWA and ODOT renewed the MOU for a new 5-
year term effective December 28, 2020. With this MOU, ODOT assumed
FHWA's project approval responsibilities under NEPA and NEPA-related
Federal environmental laws.
The FHWA must conduct four annual compliance audits of ODOT's
compliance with the provisions of the MOU. Audits serve as FHWA's
primary mechanism of determining ODOT's compliance with the MOU,
applicable Federal laws and policies, evaluating ODOT's progress toward
achieving the performance measures identified in the MOU, and
collecting information needed for the Secretary's annual report to
Congress.
The team provided a draft of the Audit #4 report to ODOT for its
review. The team considered ODOT's comments in the draft made available
for public review and comment. The FHWA considered the public comments
received on the draft in finalizing this report.
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 focused on
the following six NEPA Assignment Program elements: (1) program
management; (2) documentation and records management; (3) quality
assurance/quality control (QA/QC); (4) legal sufficiency; (5)
performance measurement; and, (6) training.
The PAIR consisted of 18 questions based on the responsibilities
assigned to ODOT in the MOU. The team reviewed ODOT's PAIR 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 team compared the
report against the previous year's Self-Assessment report and the
requirements in the MOU to identify any trends.
Between April 1 and May 31, 2019, the team conducted a review using
a statistically valid random sample of 72 project files out of 1,113
approved documents for Federal-aid projects in ODOT's EnviroNet system
with an environmental approval date between April 1, 2018, and March
31, 2019. The team conducted a 100 percent sampling of the 2 EIS re-
evaluations, 5 EA re-evaluations, and 1 new EA approved by ODOT as part
of the audit. The projects reviewed represented all NEPA classes of
action available, with coverage of 11 out of 12 of the ODOT Districts
and the Ohio Rail Development Commission (ORDC) within those districts.
In addition, the team reviewed ODOT's project file review
associated with its self-assessment to determine if ODOT evaluated its
projects in a similar fashion and using similar standards to that of
the Federal portion of this review. The ODOT reviewed projects within
the same sampling period as FHWA. The ODOT reviewed a statistically
valid random sample of 199 projects, including 154 categorically
excluded (CE) c-listed projects, 38 CE d-listed projects, 5 EAs, and 2
EISs. The ODOT's review included projects in all districts including
ORDC and included representatives of all classes of action.
During the on-site review week, the team conducted interviews with
20 ODOT staff members at the central office and three districts:
District 2 (Bowling Green), District 3 (Ashland), and District 8
(Lebanon). Interviewees included ODOT OES management and subject matter
experts, District Environmental Coordinators (DEC), and environmental
staff, representing a diverse range of expertise and experience. These
interviews focused on NEPA Assignment with an emphasis on items where
additional information was necessary to complete the review.
The team conducted a phone interview with USFWS on August 9, 2019,
to determine if the resource agency had any potential concerns
regarding ODOT's performance and relationships with partner resource
agencies. The USFWS reported that ODOT continues to perform well and
[[Page 36915]]
offered no concern at the program-level. The ODOT staff continues to
partner with Agency staff in the delivery of projects and for the
protection of threatened and endangered species.
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 successful practices
and review observations.
Overall, the team found ODOT to be in substantial compliance with
the terms of the MOU. The ODOT continues to make reasonable progress in
management of the NEPA Assignment Program based on the results of four
audits, which demonstrates commitment to the success of the program.
For Audit #4, the team found zero non-compliance observations, but did
note one successful practice and four general observations.
The FHWA team urges ODOT to monitor and make additional
improvements to the program for continued success moving forward.
Successful Practices and General Observations
This section summarizes one successful practice, as well as four
observations on issues that ODOT may want to consider as areas to
improve. Further information on these successful practices and
observations are in the following subsections that address the six MOU
program elements: program management; document and records management;
QA/QC; legal sufficiency; performance measures; and training.
Program Management
Successful Practice 1: ODOT developed improvements to EnviroNet to
provide access to the federally recognized American Indian Tribes with
ties to Ohio.
The ODOT has developed an enhancement to EnviroNet, which allows
Tribal representatives to customize a Tribal profile and receive
notifications and project information based on their preferences. This
notification system allows Tribes to tailor the types of projects,
locations of projects, and the point in the project development process
for which they want to be notified (via email) and become involved.
These upgrades also provide the Tribes the opportunity to enter
comments and receive responses for each project. It is important to
note that this system does not replace personal relationships with
Tribal representatives as this is an important part of Tribal
consultation. The ODOT and FHWA will continue to host on-site meetings
for the Tribes and agencies to consult on the Federal-aid highway
program, projects, concerns, and processes in Ohio.
Observation 1: There are opportunities for ODOT to continue to
improve upon the identification and engagement of Environmental Justice
(EJ) populations to ensure full and fair participation in the
transportation decisionmaking process.
During each of the previous audits, both FHWA and ODOT identified
project-level compliance issues for EJ and public involvement (PI). The
team notes and appreciates ongoing efforts by ODOT to improve its
processes, documentation, and training in the areas of EJ and PI in
response to previous audits and self-assessments. While substantial
progress has been made in these areas, there are opportunities for ODOT
to continue to improve upon the identification and engagement of EJ
populations to ensure full and fair participation in the transportation
decisionmaking process.
During this year's audit, the team found that ODOT tends to use
general PI activities in lieu of targeted EJ outreach and engagement
activities. As a result, ODOT's CE documentation does not always
include a discussion of the steps taken to provide meaningful
opportunities for PI by members of minority and/or low-income
populations in the decisionmaking process, including the identification
of potential effects, alternatives, and mitigation measures.
Identification of EJ populations, soliciting and understanding
their issues or concerns, and actively engaging them throughout project
development is a continuing concern for FHWA. The team encourages ODOT
to continue to improve its EJ identification and outreach practices to
ensure full and fair participation in the transportation decisionmaking
process.
Documentation and Records Management
Observation 2: Opportunities exist to improve documentation by the
ODOT Districts and LPAs in response to ODOT's File Management Plan and
other guidance.
Over the course of NEPA assignment, ODOT has developed many
procedures relating to the NEPA process to improve its processes and
meet Federal requirements. The updates included changes to ODOT's
internal documentation and filing guidelines and updates to EnviroNet.
These changes appear to have positively impacted the program and we
continue to support ODOT's use of these procedures.
The team heard throughout the Audit #4 process that some districts
had concerns about the requirements in the ODOT NEPA File Management
and Documentation Guidance and other applicable guidance that did not
allow the CE to include what they viewed as decision documents.
The districts' concerns and resulting levels of understanding of
ODOT guidance appear to support the findings of both the team and
ODOT's OES. The team and ODOT's Self-Assessment both noted during the
project file reviews that the districts and local public agencies (LPA)
exhibit documentation inconsistencies pursuant to ODOT's File
Management Plan and related guidance. Between FHWA and ODOT data,
approximately 31 percent of projects exhibited these types of
inconsistencies.
The team met with ODOT to discuss individual inconsistencies noted
by both FHWA and ODOT OES during this audit. The ODOT evaluated these
findings and then communicated them individually with the districts.
The ODOT remains committed to improvements in documentation, with plans
to continue updates to EnviroNet and guidance as needed and with the
training required to deliver effective results.
Observation 3: Opportunities exist for ODOT to develop written
procedures and guidance for the re-evaluation of EAs and EISs.
The team found that ODOT has robust guidance for documentation
expectations for CEs and specific resource areas. However, during the
project file review, the team and ODOT both noted inconsistencies
regarding the preparation of re-evaluations for EAs and EISs. While
there is no required format for written re-evaluations, a written re-
evaluation should briefly document any changes in the project,
applicable laws or regulations, the project study area, and any
resulting impacts (beneficial and/or adverse). The re-evaluation should
succinctly acknowledge areas where there are few or no changes, and
document any public or agency consultation, if appropriate and
undertaken. A conclusion or finding as to whether the previous NEPA
document remains valid, should be plainly evident.
During the audit, the team found one of the two EIS re-evaluations
and three of the five EA re-evaluations had inconsistencies related to
FHWA regulation, policy, and guidance on re-evaluation requirements
discussed
[[Page 36916]]
above. During the onsite interviews, several ODOT staff members agreed
that it could be beneficial to develop a written procedure to establish
expectations and memorialize ODOT's re-evaluation process in compliance
with Federal requirements. The team also made note that in ODOT's Self-
Assessment, several ODOT districts requested development of re-
evaluation guidance. Based on these concerns, the team supports
consideration of the development of written procedures and guidance for
the re-evaluation of EAs and EISs to reduce risk to ODOT's program.
Quality Assurance/Quality Control (QA/QC)
Observation 4: Opportunities exist to improve QA/QC procedures
relevant to c-listed CE documentation.
The ODOT NEPA Quality Control and Quality Assurance Processes and
Procedures, dated April 6, 2017, indicates d-listed CEs (D2 and D3
actions per ODOT's CE guidance), EAs, and EISs will be peer reviewed by
OES staff and c-listed and d-listed CEs (D1 actions per ODOT's
guidance) will be reviewed by district environmental staff prior to
review and approval by the DEC. The team learned through all four
audits that district staff have their own methods of conducting reviews
which may lead to inconsistencies across the districts in the review of
c-listed projects. EnviroNet provides some programmed QA/QC. The system
itself does not identify missing support documentation under the
project file tab, or mistakes in data entry into the system, which
comprise most of the errors found by both FHWA and ODOT's Self-
Assessment. A more robust QA/QC process for c-level projects could
reduce risk and improve efficiency in ODOT's program. In addition,
there is no stand-alone QA/QC training to train ODOT personnel per
ODOT's expectations and guidance.
Legal Sufficiency Review
The ODOT did not have any documents that required legal sufficiency
reviews during the Audit #4 timeframe; therefore, the team had no
observations related to legal sufficiency.
Performance Measures
The MOU Section 10.2 requires the development of performance
measures. The ODOT has refined its performance measures to provide a
better overall indication of ODOT's execution of its responsibilities
as assigned by the MOU. The team found evidence that the results
obtained through the performance measures are allowing ODOT to make
appropriate changes as it manages its environmental program. The team
had no observations related to performance measures.
Training Program
Previous audits noted that ODOT had a robust environmental training
program and provided adequate budget and time for staff to access a
variety of internal and external training. The ODOT continues to
enhance its traditional training program and plan with the development
of additional online courses. The ODOT currently offers 28 online
trainings for free to ODOT staff, consultants, LPAs, partner agencies,
and anyone else who desires to take them. The ODOT utilizes the Ohio's
Local Technical Assistance Program to manage the courses. This free
online training makes training more accessible to a greater number of
staff and consultants and allows consistent, self-paced, and
individualized training. Also, the previous audit noted ODOT's training
plan required environmental consultants to take the pre-qualification
training courses and all ODOT environmental staff (both central and
district offices) take all environmental courses.
The team encourages ODOT to broaden its training program and
training collaboration with other Federal agencies and environmental
organizations. The team commends ODOT for its efforts in taking
external ecological and cultural resource courses, but feels there is
room for improvement exploring external human environment training.
During the interviews, ODOT staff noted they are reluctant to take
National Highway Institute training courses because of their broad
perspective; however, they did express interest in taking specialized
FHWA training that focus on specific topics such as the recently
offered FHWA Resource Center Air Quality Workshop. The ODOT also
expressed interest in getting assistance from FHWA to develop training
case studies that were relevant to its transportation program, which
the audit team supports. The team had no observations related to
training.
Finalization of Report
The FHWA published a notice in the Federal Register on June 17,
2020, at 85 FR 36661, soliciting public comment for 30 days on the
draft fourth audit report. The FHWA received comments on the draft
report from the American Road and Transportation Builders Association
(ARTBA) and ODOT. The ARTBA's comments supported the Surface
Transportation Project Delivery Program and did not relate specifically
to Audit #4. The comments submitted by ODOT on the draft audit report
were substantially similar to comments that had previously been
discussed by the Audit Team with ODOT during the development of the
audit report. The FHWA considered these comments during the audit
process and determined they did not warrant changes to FHWA's
observations. This final report is substantively the same as the draft
version. The FHWA looks forward to continuing to work collaboratively
with ODOT during the monitoring phase of the program.
[FR Doc. 2022-13172 Filed 6-17-22; 8:45 am]
BILLING CODE 4910-22-P
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