[Federal Register Volume 87, Number 118 (Tuesday, June 21, 2022)]
[Notices]
[Pages 36913-36916]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[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, 
[email protected]; or Mr. Patrick Smith, Office of the Chief 
Counsel, (202) 366-1345, [email protected]; 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, 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

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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]
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