[Federal Register Volume 84, Number 219 (Wednesday, November 13, 2019)]
[Notices]
[Pages 61677-61680]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-24654]



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DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

[FHWA Docket No. FHWA-2019-001]


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 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 makes available the final report 
of Ohio Department of Transportation's (ODOT) third audit under the 
program.

FOR FURTHER INFORMATION CONTACT: Mr. James G. Gavin, Office of Project 
Development and Environmental Review, (202) 366-1473, 
[email protected], Federal Highway Administration, U.S. Department of 
Transportation, 1200 New Jersey Avenue SE, Washington, DC 20590, or Mr. 
David Sett, Office of the Chief Counsel, (404) 562-3676, 
[email protected], Federal Highway Administration, U.S. Department of 
Transportation, 60 Forsyth Street 8M5, 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 it has assumed, 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 March 8, 2018, at 84 FR 8560, soliciting public comment for 30 days, 
pursuant to 23 U.S.C. 327(g). The FHWA received comments on the draft 
report from the American Road and Transportation Builders Association 
(ARTBA). The ARTBA's comments were supportive of the Surface 
Transportation Project Delivery Program and did not relate specifically 
to Audit 3. The team has considered these comments in finalizing this 
audit report. This notice makes available the final report of ODOT's 
third 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.

Nicole R. Nason,
Administrator, Federal Highway Administration.

Surface Transportation Project Delivery Program

FHWA Audit of the Ohio Department of Transportation

August 5, 2017, to August 10, 2018

Executive Summary

    This is the third 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 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 to manage and deliver 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 
electronic environmental document filing system). This audit consisted 
of a review of a sample of 39 higher-risk project files out of 1,042 
approved documents for Federal projects in ODOT's EnviroNet system with 
an environmental approval date between April 1, 2017, and March 31, 
2018. 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 an on-site 
review during the week of August 6 to August 10, 2018. The team 
conducted interviews with ODOT's central office staff on August 6, 
2018, and with three district office staffs on August 7, 2018. The team 
also interviewed staff with the Ohio Department of Natural Resources 
(ODNR) on July 23, 2018, as part of the review.
    Overall, the team found evidence that ODOT continues to make 
reasonable progress in implementing the NEPA Assignment Program based 
on Audit 1 and Audit 2 observations and demonstrated commitment to 
success of the program. The team found zero non-compliance observations 
but did note six general observations.

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 an MOU with

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FHWA on December 28, 2015, and amended on June 6, 2018. 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 
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 this report to ODOT for its review and 
the team considered the resulting comments in preparing the draft which 
was made available for public review and comment. The FHWA considered 
public comments 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 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 18 questions, based on the 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's self-assessment report and the requirements 
in the MOU to identify any trends.
    Between March 16 and May 31, 2018, the team conducted a project 
file review by identifying and reviewing 39 higher-risk project files 
out of 1,042 approved documents of Federal-aid projects in ODOT's 
EnviroNet system with an environmental approval date between April 1, 
2017, and March 31, 2018. The selection of these projects was based on 
a 100 percent sampling of d-listed Categorical Exclusions (CE), as well 
as all Environmental Assessments (EA) and Environmental Impact 
Statements. The team excluded from review those projects approved by 
ODOT under 23 CFR 771.117(c) (c-listed CEs) based on the review 
performance of those types of projects since ODOT assumed NEPA 
responsibilities in 2015. The projects reviewed represented all 
remaining NEPA classes of action available, including projects 
representing 9 out of 12 ODOT Districts and the Ohio Rail Development 
Commission.
    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, however, ODOT samples included 
Federal-aid and State-only funded projects. The ODOT conducts NEPA on 
all projects regardless of funding source as they routinely convert 
funding from State to Federal later via the Advanced Construction 
process. The ODOT reviewed 248 projects, including 186 c-listed 
projects, 61 d-listed projects, and 1 EA. The team determined the State 
performed a rigorous annual QA review of its own projects.
    During the on-site review week, the team conducted interviews with 
21 ODOT staff members at the central office and three districts: 
District 6 (Delaware); District 7 (Sydney); and District 10 (Marietta). 
Interviewees included ODOT OES management and subject matter experts, 
Office of Diversity and Inclusion (ODI), District Environmental 
Coordinators (DEC), environmental staff, and public information 
officers, representing a diverse range of expertise and experience. 
These interviews focused on NEPA Assignment with emphasis on items 
where additional information was deemed necessary to complete the 
review.
    The team conducted interviews 2 weeks prior to the on-site review 
with personnel from the ODNR. The ODNR staff provided valuable insight 
to the review 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 continues to make 
reasonable progress in implementing the NEPA Assignment Program based 
on the Audit 1 and Audit 2 observations and demonstrated commitment to 
success of the program. The team found zero non-compliance observations 
but did note six general observations.
    The FHWA team urges ODOT to monitor and make additional 
improvements to the program for continued successes of the program.

Observations and Successful Practices

Program Management

Observation 1: Opportunities Exist To Strengthen Coordination Between 
ODOT OES and ODOT ODI.
    The team encourages ODOT to ensure that a proper level of 
communication exists between OES and ODI in order to facilitate the 
coordination of OES guidance and training with the ongoing ODOT-wide 
Title VI program enhancements. The FHWA recognizes and is supportive of 
the coordination and partnering efforts between OES and ODI undertaken 
to date and stands ready to contribute to these efforts, where 
appropriate.
Observation 2: There Are Inconsistencies in the Communication and 
Management of ODOT Policy, Manuals, Procedures, and Guidance
    The ODOT developed and implemented over 140 procedures to implement 
NEPA Assignment, manage the program, and provide detailed instruction 
for completion of environmental actions to document preparers and 
reviewers. The ODOT shares these documents and other guidance with NEPA 
practitioners on a quarterly basis via email, NEPA chats and DEC 
Meetings, and via training. In addition, these documents are saved on a 
local drive accessible by ODOT environmental staff and posted to ODOT's 
website for consultants and local public agencies.
    The FHWA found that policies, manuals, and other guidance documents 
are readily available. However, interviews with district staff indicate 
that opportunities exist to improve upon the communication of this 
documentation in order to ensure more consistent implementation. In 
addition, there are examples of training materials

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containing information that is not included in the related guidance 
documents. In these cases, some environmental staff indicated they rely 
on the information in the guidance while others indicated they rely on 
OES instruction provided verbally or through email. Information 
prepared for ODOT staff should exhibit consistency, regardless of the 
form in which its presented.
Observation 3: Inconsistencies Remain in Public Involvement (PI) 
Activities Specifically Regarding Outreach Activities to Underserved 
and Protected Populations
    The team notes and appreciates ongoing efforts by ODOT in response 
to previous audit recommendations for improvement and enhancement of 
the PI process. The team was provided examples of effective PI efforts 
during the interviews with district staff. However, as demonstrated in 
the project file reviews and the interviews, there remain areas of note 
in application and consistency of public involvement efforts and 
activities.
    During FHWA's review, ODOT stated that the intent of its process 
regarding Environmental Justice (EJ) is to identify any 
disproportionately high and adverse impacts and disparate impacts on 
the associated populations. Although OES staff indicated that they have 
updated the guidance, developed new training, and provided forums for 
instructive discussion for all environmental staff, consultants, and 
Local Public Agencies, it is not clear how ODOT will ensure that 
outreach efforts and activities are commensurate with the level of 
impact or potential mitigation, as there is no discussion of outreach 
efforts in the ODOT-OES' Underserved Populations Guidance. It is 
unclear that the distinctions and specific requirements of protected 
populations are fully discerned and distinguished from each other in 
the guidance document, including thresholds and requirements. In 
addition, interview responses within OES indicated a difference of 
opinion in terms of what constituted outreach to underserved and 
protected populations.
    At the district level, ODOT District environmental staff indicated 
that they had inconsistent information on how to determine if there 
were protected populations and how to conduct the required outreach 
activities, even if there were no disproportionately negative impacts. 
However, OES is trusting the districts, on projects with a lower level 
of NEPA classification, to ensure full and fair participation by 
underserved and protected populations in public involvement, NEPA and 
the transportation decisionmaking processes.

Documentation and Records Management

Observation 4: Opportunities Exist To Continue Improving Documentation 
in the Areas of PI, EJ, and Environmental Commitments
    In response to previous audits and self-assessments, ODOT updated 
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. 
The review team thinks these changes have positively impacted the 
program since Audits 1 and 2.
    The quality of documentation for projects is trending in a positive 
direction since Audits 1 and 2, as approximately 50 percent of all 
projects reviewed had zero deficiencies noted by the team. However, 
although there were examples of high quality PI, EJ reviews, 
development of environmental commitments, and documentation for some 
projects, these same elements were lacking in others. For the projects 
reviewed, 42 percent of substantive comments made by the team related 
to EJ, 22 percent to PI, 17 percent to environmental commitments, 11 
percent to QA/QC, and 8 percent to documentation. This demonstrates 
inconsistencies in practice, which may indicate additional training, 
guidance, and/or quality controls may be needed to improve consistency 
in application of documentation statewide.
    The team met with ODOT to discuss individual deficiencies noted by 
both FHWA and ODOT OES during this audit. The ODOT evaluated these 
deficiencies at OES 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 results.

Quality Assurance/Quality Control

Observation 5: There Are Variations in Awareness, Understanding, and 
Implementation of QA/QC Process and Procedures
    The inconsistencies and missing information noted in the 
Documentation and Records Management section are an indication of 
inconsistency in ODOT's QA/QC process. The team found inconsistencies 
in awareness and use of peer reviews in the ODOT Districts, as well as 
use of comments in EnviroNet. Selected ODOT OES and district 
environmental staff said that they rely on the ODOT Central Office for 
QC support. No training is provided exclusively for QA/QC.

Legal Sufficiency Review

    The ODOT utilized its guidance for legal sufficiency to review one 
Environmental Impact Statement Re-evaluation, one EA, and two 
Individual Section 4(f) approvals.

Performance Measures

    The development of Performance Measures is required in MOU Section 
10.2. 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 beginning to provide actionable 
feedback, allowing ODOT to make appropriate changes as it manages its 
environmental program.

Training Program

    During the previous audits, it was noted that ODOT has a robust 
environmental training program and provides adequate budget and time 
for staff to access a variety of internal and external training. To add 
to the training program and plan, ODOT has complemented its 
traditional, instructor-based training courses, quarterly DEC meetings, 
and monthly NEPA chats with the development of several online courses. 
During the audit, ODOT reported that 10 online courses are anticipated 
to be available in August 2018, with an additional 19 online courses 
anticipated to be developed within the year. As of October 2018, it is 
not evident that these courses were yet deployed.
Observation 6: Opportunities Exist To Expand Required and Continuous 
Training to Additional Staff and Develop Additional Instructor-Led or 
Online Training in NEPA-Related Subject Areas
    Also, during the previous audit, it was noted 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. The ODOT should consider extending this 
requirement to NEPA project managers and public involvement officers. 
Extending the training to additional staff may improve public outreach 
efforts and overall program delivery. The ODOT should focus on training 
in NEPA and NEPA-

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related subject areas such as Limited English Proficiency and Public 
Involvement. The FHWA encourages ODOT to include specific EJ training 
opportunities in its training plan, such as the Web-based course 
currently under development.

Finalization of Report

    The FHWA received one response to the Federal Register Notice 
during the public comment period for the draft report. This response, 
from the American Road and Transportation Builders Association, was 
supportive of the Surface Transportation Delivery Program and did not 
relate specifically to Audit 3. This final report is substantively the 
same as the draft version.

[FR Doc. 2019-24654 Filed 11-12-19; 8:45 am]
BILLING CODE 4910-22-P