[Federal Register Volume 73, Number 241 (Monday, December 15, 2008)]
[Notices]
[Pages 76091-76096]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-29628]
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DEPARTMENT OF TRANSPORTATION
Federal Highway Administration
[FHWA Docket No. FHWA-2008-0158]
Surface Transportation Project Delivery Pilot Program; Caltrans
Audit Report
AGENCY: Federal Highway Administration (FHWA), DOT.
ACTION: Notice; request for comment.
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SUMMARY: Section 6005 of the Safe, Accountable, Flexible, Efficient
Transportation Equity Act: A Legacy for Users (SAFETEA-LU) established
the Surface Transportation Project Delivery Pilot Program, codified at
23 U.S.C. 327. Section 327(g) of Title 23, United States Code mandates
semiannual audits during each of the first 2 years of State
participation to ensure compliance by each State participating in the
Pilot Program. This notice announces and solicits comments on the
second audit report for the California Department of Transportation
(Caltrans).
DATES: Comments must be received on or before January 14, 2009.
ADDRESSES: Mail or hand deliver comments to Docket Management Facility:
U.S. Department of Transportation, 1200 New Jersey Avenue, SE., Room
W12-140, Washington, DC 20590. You may also submit comments
electronically at http://www.regulations.gov, or fax comments to (202)
493-2251.
All comments should include the docket number that appears in the
heading of this document. All comments received will be available for
examination and copying at the above address from 9 a.m. to 5 p.m.,
e.t., Monday through Friday, except Federal holidays. Those desiring
notification of receipt of comments must include a self-addressed,
stamped postcard or you may print the acknowledgment page that appears
after submitting comments electronically. Anyone is able to search the
electronic form of all comments in any one of our dockets by the name
of the individual submitting the comment (or signing the comment, if
submitted on behalf of an association, business, or labor union). You
may review the DOT's complete Privacy Act Statement in the Federal
Register published on April 11, 2000 (Volume 65, Number 70, Pages
19477-78), or you may visit http://DocketsInfo.dot.gov.
FOR FURTHER INFORMATION CONTACT: Ms. Ruth Rentch, Office of Project
Development and Environmental Review, (202) 366-2034,
[email protected], or Mr. Michael Harkins, Office of the Chief
Counsel, (202) 366-4928, [email protected], Federal Highway
Administration, Department of Transportation, 1200 New Jersey Avenue,
SE., Washington, DC 20590. Office hours are from 7:45 a.m. to 4:15
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 Office
of the Federal Register's home page at http://www.archives.gov and the
Government Printing Office's Web site at http://www.access.gpo.gov.
Background
Section 6005 of the Safe, Accountable, Flexible, Efficient
Transportation Equity Act: A Legacy for Users (SAFETEA-LU) (codified at
23 U.S.C. 327) established a pilot program to allow up to five States
to assume the Secretary of Transportation's responsibilities for
environmental review, consultation, or other actions under any Federal
environmental law pertaining to the review or approval of highway
projects. In order to be selected for the pilot program, a State must
submit an application to the Secretary.
On June 29, 2007, Caltrans and FHWA entered into a Memorandum of
Understanding (MOU) establishing the assignments to and assumptions of
responsibility to Caltrans. Under the MOU, Caltrans assumed the
majority of FHWA's responsibilities under the National Environmental
Policy Act, as well as the FHWA's responsibilities under other Federal
environmental laws for most highway projects in California.
Section 327(g) of Title 23, United States Code, requires the
Secretary to conduct semiannual audits during each of the first 2 years
of State participation, and annual audits during each subsequent year
of State participation to
[[Page 76092]]
ensure compliance by each State participating in the Pilot Program. The
results of each audit must be presented in the form of an audit report
and be made available for public comment. This notice announces the
availability of the second audit report for Caltrans and solicits
public comment on same.
Authority: Section 6005 of Public Law 109-59; 23 U.S.C. 315 and
327; 49 CFR 1.48.
Issued on: December 1, 2008.
Thomas J. Madison, Jr.,
Federal Highway Administrator.
Draft Report
Surface Transportation Project Delivery Pilot Program
Federal Highway Administration Audit of California Department of
Transportation
July 28-August 1, 2008
Background
The Safe, Accountable, Flexible, Efficient Transportation Equity
Act: A Legacy for Users (SAFETEA-LU, Pub L. 109-59) section 6005(a)
established the Surface Transportation Project Delivery Pilot
Program (Pilot Program), codified at title 23, United States Code
(U.S.C.), section 327. The Pilot Program allows the Secretary to
assign, and the State to assume, the Secretary of Transportation's
(Secretary) responsibilities under the National Environmental Policy
Act (NEPA) for one or more highway projects. Upon assigning NEPA
responsibilities, the Secretary may further assign to the State all
or part of the Secretary's responsibilities for environmental
review, consultation, or other action required under any Federal
environmental law pertaining to the review of a specific highway
project. When a State assumes the Secretary's responsibilities under
this program, the State becomes solely responsible and liable for
carrying out the responsibilities it has assumed, in lieu of the
Federal Highway Administration (FHWA).
To ensure compliance by each State participating in the Pilot
Program, 23 U.S.C. 327(g) mandates that FHWA, on behalf of the
Secretary, conduct semiannual audits during each of the first two
years of State participation; and annual audits during each
subsequent year of State participation. The focus of the FHWA audits
is to assess a pilot State's compliance with the required Memorandum
of Understanding (MOU) \1\ and applicable Federal laws and policies,
to collect information needed to evaluate the success of the Pilot
Program, to evaluate pilot State progress toward achieving its
performance measures, and to collect information needed for the
Secretary's annual report to Congress on the administration of the
Pilot Program. Additionally, 23 U.S.C. 327(g) requires FHWA to
present the results of each audit in the form of an audit report.
This audit report must be made available for public comment, and
FHWA must respond to public comments received no later than 60 days
after the date on which the period for public comment closes.
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\1\ Caltrans MOU between FHWA and Caltrans available at: http://environment.fhwa.dot.gov/strmlng/safe_cdot_pilot.asp.
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The California Department of Transportation (Caltrans) published
its Application for Assumption (Application) under the Pilot Program
on March 14, 2007, and made it available for public comment for 30
days. After considering public comments, Caltrans submitted its
application to FHWA on May 21, 2007, and FHWA, after soliciting the
views of other Federal agencies, reviewed and approved the
application. Then on June 29, 2007, Caltrans and FHWA entered into a
MOU that established the assignments to and assumptions of
responsibility to Caltrans, which became effective July 1, 2007.
Under the MOU, Caltrans assumed the majority of FHWA's
responsibilities under NEPA, as well as FHWA's responsibilities
under other Federal environmental laws for most highway projects in
California. Caltrans' participation in the Pilot Program will be
effective through August 2011 (23 U.S.C 327(i)(1)).
Scope of the Audit
This is the second FHWA audit of Caltrans' participation in the
Pilot Program. The onsite portion of this audit was conducted by the
FHWA audit team in California from July 28 through August 1, 2008.
As required in SAFETEA-LU, the second audit assessed Caltrans'
compliance with the roles and responsibilities it assumed in the MOU
and also provided recommendations to assist Caltrans in conducting a
successful Pilot Program.
The audit reviewed the following core areas: (1) Program
management; (2) legal sufficiency; (3) performance measures; (4)
documentation and file management; (5) training; and (6) quality
assurance and quality control measurement. Prior to the onsite
visits, FHWA conducted telephone interviews with staff in the
Caltrans Headquarters (HQ) office and with staff in Federal resource
agency regional offices (Environmental Protection Agency, U.S. Corps
of Engineers, U.S. Fish and Wildlife Service, National Oceanic and
Atmospheric Administration and U.S.D.A. Forest Service) and the
California State Historic Preservation Office. The audit included
onsite visits to three Caltrans District Offices: District 7 (Los
Angeles), District 8 (San Bernardino), and District 11 (San Diego).
Audit Process and Implementation
Each FHWA audit conducted under the Pilot Program is planned to
ensure a pilot State's compliance with the commitments in its MOU
with FHWA. FHWA does not evaluate specific project-related decisions
made by the State because these decisions are the sole
responsibility of the pilot State. However, the scope of the FHWA
audits does include the review of the processes and procedures used
by the pilot State to reach project decisions in compliance with MOU
section 3.2.
Also, Caltrans committed in its Application (incorporated by
reference in MOU section 1.1.2) to implement specific processes to
strengthen its environmental procedures in order to assume the
responsibilities assigned by FHWA under the Pilot Program. The FHWA
audits review how Caltrans is meeting each commitment and assesses
Pilot Program performance in the core areas specified in the Scope
of the Audit section of this report.
The Caltrans' Pilot Program commitments address:
Organization and Procedures under the Pilot Program
Expanded Quality Control Procedures
Independent Environmental Decisionmaking
Determining the NEPA Class of Action
Consultation and Coordination with Resource Agencies
Issue Identification and Conflict Resolution Procedures
Recordkeeping and Retention
Expanded Internal Monitoring and Process Reviews
Performance Measures to Assess the Pilot Program
Training to Implement the Pilot Program
Legal Sufficiency Review.
The FHWA audit team included representatives from the following
offices or agencies:
FHWA Office of Project Development and Environmental
Review
FHWA Office of Chief Counsel
FHWA Alaska Division Office
FHWA Resource Center Environmental Team
Volpe National Transportation Systems Center
Advisory Council on Historic Preservation
U.S.D.A. Forest Service.
During the onsite audit, FHWA interviewed more than 75 Caltrans
staff (from both the Capital and Local Assistance programs) in the 3
District offices and Caltrans' Legal Division staff in each of its 4
offices. The audit team interviewed a cross-section of staff
including top senior managers, senior environmental planners,
generalists, associate planners, and technical experts. The audit
also included a review of the project files and records for over 30
projects managed under the Pilot Program.
FHWA acknowledges that Caltrans identified specific issues
during its second self-assessment performed under the Pilot Program
(required by MOU section 8.2.6), and has processes in place to work
towards resolving each issue. Some issues described in the Caltrans
self-assessment may overlap with FHWA findings in this audit report.
This audit report documents findings within the scope of the audit
and as of the dates of the onsite portion of the audit.
In accordance with MOU section 11.4.1, FHWA provided Caltrans
with a 30-day comment period to review the draft audit report. FHWA
reviewed the comments received from Caltrans and revised sections of
the draft report, where appropriate, prior to publishing it in the
Federal Register for public comment.
Progress Since the Last Audit
As part of the second FHWA audit of the Caltrans' Pilot Program,
FHWA verified that Caltrans demonstrated continued compliance in the
``Compliant'' findings areas identified
[[Page 76093]]
in the first audit in January 2008. These compliant findings were:
1. Legal Sufficiency--Caltrans' Legal Division has developed a
consistent process to conduct formal legal sufficiency reviews by
attorneys (and has provided basic legal sufficiency training to each
reviewing attorney).
2. Establish Pilot Program Policies and Procedures--Caltrans
currently, in general, complies with MOU section 1.1.2 commitments
to establish Pilot Program policy and procedural documentation (as
detailed in Caltrans' Application).
3. Background NEPA Training--Caltrans' existing Environmental
Staff Development Program, outlined in the Application, has
processes in place to ensure that Environmental Staff involved in
NEPA documentation have the underlying foundational skill sets
required in addition to the added skills required to address
responsibilities under the Pilot Program.
4. Training Plan--Caltrans conducted a training needs assessment
specific to the Pilot Program and developed a training plan titled
``Caltrans Surface Transportation Project Delivery Pilot Program
Training Plan (Oct. 1, 2007).''
5. Interagency Agreements that Involve Other Agencies as
Signatories--Caltrans complied with MOU section 5.1.5 as it pertains
to the National Historic Preservation Act, Section 106 Programmatic
Agreement (PA) by completing an addenda to the PA within 6 months
after the effective date of the MOU to reflect Caltrans' assignment
of authority under the Pilot Program.
6. State Commitment of Resources--The initial evaluation of
resources to implement the Pilot Program and the assignment of
resources, as of the date of the first audit, is compliant with MOU
section 4.2.
FHWA also evaluated progress in resolving ``Deficient'' and ``Needs
Improvement'' audit findings from the first FHWA audit.
Caltrans addressed ``Deficient'' audit findings from
the January 2008 audit as follows:
(1) Statement Regarding Assumption of Responsibility--The
required statement regarding assumption of responsibility required
by MOU section 3.2.5 appeared on the cover page of each
environmental document reviewed in the second audit.
(2) Records Management--Caltrans demonstrated progress in the
area of records management. The audit team confirmed that project
files were present in Districts 7, 8, and 11 as required under the
Caltrans Uniform Filing System (UFS). Caltrans is working towards
full compliance of the implementation of MOU section 8.3, the
Caltrans Application (Section 773.106(b)(3)(i) and (ii)), and the
Caltrans Standard Environmental Reference (SER) Chapter 38.
(3) QA/QC Process--The audit team observed progress in
implementing the Quality Assurance/Quality Control (QA/QC) process
for environmental documents developed under the Pilot Program in the
following areas:
a. Completion of the Quality Control Certification forms--The
completion of the Internal and External Quality Control Reviews
Certification forms improved based on FHWA audit team project file
reviews completed in Districts 7, 8, and 11 during the second audit.
b. Peer Reviewer--In April 2008, Caltrans revised Chapter 38 of
the SER to clarify the description of the peer reviewer function for
the QA/QC process for environmental documents produced under the
Pilot Program. All of the QC forms reviewed by FHWA in Districts 7,
8, and 11 that were prepared after the change to the SER complied
with this requirement.
c. Internal and External Quality Control Reviews--Caltrans
revised the Internal and External QC certification forms and the
Environmental Document Preparation and Review Tool (Environmental
Document Checklist) to address feedback from Caltrans staff, the
initial Caltrans self-assessment, and the January 2008 FHWA audit.
Caltrans addressed ``Needs Improvement'' audit findings
from the January 2008 audit as follows:
(1) QA/QC Process Related to SER Chapter 38 Procedural and
Policy Changes--Caltrans has created a new section in the SER,
titled ``SER Posting History,'' which presents a chronology of
changes made in the SER (i.e., SER chapter changed, date of change,
summary of change).
(2) Self-assessment issues and corrective actions--The second
self-assessment completed by Caltrans correlated each identified
issue needing improvement to the corrective action(s) being taken to
address each issue.
(3) QA/QC process implementation and documentation--Caltrans
revised SER Chapter 38 in April 2008 to clarify the QA/QC process
requirements, the technical specialist review, the internal peer
review, the class of action determination, signature authorities,
and the options each District may use to communicate that an
environmental document is ready for signature. Through interviews
with staff in the four Caltrans Districts (Districts 4, 7, 8, and
11) visited, the audit team determined that the Districts are using
some format of a ``Ready for Signature'' QC form to transmit to the
District Deputy Director that the environmental document is ready
for signature.
Key Elements of Implementation
One of the purposes of each FHWA audit of a State Pilot Program
is to identify and collect information for consideration by
potential future Pilot Program participants. Key elements that are
being used by Caltrans in the implementation of the Pilot Program
include their SER, particularly Chapter 38-NEPA Delegation, Caltrans
annotated outlines for environmental documents, quality control
certification forms, environmental document review checklists, and
monthly NEPA delegation statewide teleconferences.
During the interviews and project files reviews completed in
Districts 7, 8, and 11, the audit team observed the following
effective practices:
(1) Use of standard ``spreadsheet'' template to convey the
comments of HQ NEPA coordinators on environmental documents to
District staff--Through interviews with HQ NEPA coordinators and
review of project files, the audit team observed a systematic
mechanism used to communicate comments on environmental documents.
The HQ NEPA coordinator consolidates the comments on each
environmental document reviewed and provides the comments to the
District point of contact via a standard ``spreadsheet'' template.
The template file includes information on each document section, the
comment and action needed, and identifies the commenter. The audit
team identified records of these communications in project files.
This approach provides a systematic and transparent mechanism to
transfer and document communications between HQ and District staff
on environmental documents.
(2) Use of intranet sites at Districts to access Pilot Program
materials and documents--The audit team determined through
interviews with staff at Districts 7, 8, and 11 that each of these
Districts use an intranet site (not accessible to the public) to
post District specific documents related to the Pilot Program.
Maintaining an internal system for all users at the District to
access the latest District specific Pilot Program documents provides
for improved consistency in implementing the Pilot Program.
(3) File transfer as standard operating procedure when
transferring projects between staff--The audit team determined
through interviews with Caltrans staff that file transfer procedures
were in selective use at some Districts visited during the audit, to
address employee turnover or the transitioning of projects between
staff. File transfer practices include a file transfer meeting where
the generalist hands off all documents to the Senior Planner
overseeing the individual's work.
Overall Audit Opinion
Based on the information reviewed, it is the FHWA audit team's
opinion that to date, Caltrans has been carrying out the
responsibilities it has assumed in keeping with the intent of the
MOU and the Application. During the onsite audit, Caltrans staff and
management continued to indicate ongoing interest in obtaining
constructive feedback on successes and areas for improvement. By
addressing the findings in this report, Caltrans will continue to
move the program toward success.
Findings Definitions
The FHWA audit team carefully examined Pilot Program areas to
assess compliance in accordance with established criteria (i.e.,
MOU, Application). The time period covered by this second audit
report is from the start of the Caltrans Pilot Program (July 1,
2007) through completion of the second onsite audit (August 1,
2008). This report presents audit findings in three areas:
Compliant--Audit verified that a process, procedure or
other component of the Pilot Program meets a stated commitment in
the Application for Assumption and/or MOU.
Needs Improvement--Audit determined that a process,
procedure or other component of the Pilot Program as specified in
the Application for Assumption and/or MOU is not fully implemented
to achieve the stated
[[Page 76094]]
commitment or the process or procedure implemented is not
functioning at a level necessary to ensure the stated commitment is
satisfied. Action is recommended to ensure success.
Deficient--Audit was unable to verify if a process,
procedure or other component of the Pilot Program met the stated
commitment in the Application for Assumption and/or MOU. Action is
required to improve the process, procedure or other component prior
to the next audit; or
Audit determined that a process, procedure or other component of
the Pilot Program did not meet the stated commitment in the
Application for Assumption and/or MOU. Corrective action is required
prior to the next audit.
Summary of Findings--July 2008
Findings--Compliant
(C1) Training of Legal Division Staff--In compliance with MOU
section 12.1.1 and section 773.106(b)(3)(iii) of Caltrans'
Application, Caltrans' Legal Division maintains a staff of qualified
attorneys supporting the Pilot Program and tracks the trainings
attended by each attorney. Attorney training is organized into five
core areas (Legal Sufficiency, Section 4(f), Section 7 of the
Endangered Species Act, Environmental Tools (internal to Caltrans),
and Audit). Additionally, the four Assistant Chief Counsels (ACC)
with environmental law responsibilities work together to identify
additional training opportunities available statewide. Each ACC has
approval authority to fund additional training opportunities for
attorneys on their team.
(C2) Conformity Determinations--Section 8.5 of the MOU requires
that FHWA's California Division Office document the project level
conformity determination by transmitting a letter to Caltrans to be
included in the Final Environmental Impact Statement (EIS) or
Environmental Assessment (EA). Based on interviews with Caltrans
staff and review of 15 project files, conformity decisions were
completed in accordance with MOU section 8.5.
Findings--Needs Improvement
(N1) Commitment of Resources--Section 4.2.2 of the MOU requires
Caltrans to maintain adequate organizational and staff capability to
effectively carry out the responsibilities it has assumed.
Interviews with Caltrans District staff working on Capitol Projects
revealed that the Work Breakdown Structure (WBS) code established to
track actual time spent on Pilot Program activities is not used in a
consistent manner. Inconsistent use and understanding of the WBS
code to track labor expenditures under the Pilot Program provides
inaccurate information on the resources used to support the Pilot
Program. Caltrans should continue to clearly define, communicate and
emphasize consistent use of the WBS to staff supporting the Capital
Projects component of the Pilot Program, which activities to track
using the designated WBS code for the Pilot Program.
Interviews with Caltrans District staff working on Local
Assistance Projects revealed an inability to track actual time spent
on Pilot Program activities through the use of the Expenditure
Authorization system.
Given this two part finding, it is unclear whether Caltrans is
able to accurately and fully assess the current and future resource
needs for implementation of the Pilot Program.
(N2) District Training Approaches and Implementation--MOU
section 4.2.2 requires Caltrans to maintain adequate organizational
and staff capability to effectively carry out the responsibilities
it has assumed under the Pilot Program. A fundamental component of
staff capability is maintaining a training program that ensures
staff competency to meet Pilot Program responsibilities. The
responsibility of identifying individual staff training needs
largely falls to managers at the District level. Audit observations
in the three Districts visited (Districts 7, 8, and 11) during this
audit, along with the one District visited (District 4) during the
previous audit, confirmed that considerable variation in training
approaches exist between District managers, which can result in
potentially widely varying levels of competency among staff. This
variation in staff training levels could affect staff competency
levels and compliance with commitments under the Pilot Program. As
Caltrans HQ and Districts continue to assess and address staff
training needs, Caltrans needs to actively monitor how District
staff training needs are assessed and demonstrate consistency among
and within Districts in the delivery of training in order to achieve
a sufficient level of competency among all associated staff.
Inconsistencies identified through Caltrans self-assessments and
audit findings also serve as a source to identify training needs,
including:
(a) Project Files--When to initiate a project file and what
information it should contain;
(b) Internal QA/QC Certification Form--Who the reviewers should
be and when they should sign the form;
(c) Class of action determinations--What documentation is used,
when a determination is required, and who must be involved;
(d) Differentiating between Categorical Exclusions (CE) that
fall under section 6004 and section 6005 MOUs between Caltrans and
FHWA; and
(e) What approvals and decisions are to be included in quarterly
reports on the Pilot Program and at what project stage they are to
be reported;
(f) Environmental document transmittals for the legal
sufficiency process; and
(g) Environmental document and project file transmittals to
transfer projects between staff.
(N3) Performance Measure Evaluation--MOU section 10.1.1 requires
Caltrans to develop performance measures for the Pilot Program. MOU
section 10.1.2 requires FHWA to evaluate these performance measures
during the audits and include the evaluation in the audit reports.
FHWA noted the following areas in need of improvement with
respect to two Pilot Program performance measures--``Timely
Completion of NEPA Process'' and ``Compliance with NEPA and other
Federal laws and regulations.''
(a) Performance Measure: Timely Completion of NEPA Process.
(i) Caltrans measures the time to complete the environmental
document review and approval process for draft and final documents.
While the document review component is one element that Caltrans may
use to evaluate performance under the Pilot Program, this
performance measure evaluates a relatively minor part of the overall
project timeline. In all cases where this current measure is
reported, Caltrans needs to provide full disclosure of the
limitations of the measure, preferably noting that the time period
covered is only a small part of the overall NEPA process. Caltrans
should consider expanding this measure to include other elements
assumed under the Pilot Program to more robustly evaluate the timely
completion of the NEPA process.
(ii) Caltrans uses baseline data to evaluate progress since
assuming Pilot Program responsibilities. Thirty-five environmental
documents reviewed and approved prior to the effective date of the
MOU (34 EAs and 1 EIS) are used to draw from for performance measure
purposes. Variables such as project size, scope, and complexity, as
well as any required scheduling coordination with resource agencies,
could affect the start time of document reviews and as such any
comparisons with Pilot Program projects need to consider these
factors. The current approach of using the median time from the
beginning of the administrative review process for a document to the
document approval date, prior to and during the Pilot Program does
not provide a realistic or reliable basis of comparison. At a
minimum, the metric does not account for the type of document being
reviewed or any of the other variables involved in the projects. A
more effective representation of project timing would be to compare
the timing of projects prior to and during the Pilot Program by
document type (i.e., compare EIS projects to EIS projects) and other
relevant variables, such as project size, scope and complexity.
(b) Performance Measure: Compliance with NEPA and other Federal
laws and regulations (Maintain documented compliance with
requirements of all Federal laws and regulations being assumed).
Caltrans measures performance by evaluating the percentage of
environmental documents (draft and final) with a completed
Environmental Document Preparation and Review Tool and Internal
Certification Environmental Document Quality Control Reviews form.
Caltrans set at the start of the Pilot Program a desired outcome of
this performance measure of a 100 percent completion rate. Based on
the results of the first two Caltrans self-assessments, the
acceptable completion rate was modified to a phased-in approach over
a two-year period of time (increasing from 75 percent to 95
percent).
The audit team was unable to identify the basis Caltrans used to
modify the acceptable completion rate for this performance measure.
As Caltrans is using the completion of the Environmental Document
Preparation and Review Tool and Internal Certification Environmental
Document Quality Control Reviews form as a method of demonstrating
[[Page 76095]]
compliance with NEPA and other Federal laws and regulations, a
completion rate of less than 100 percent would not correlate with
the demonstration of compliance with assumed responsibilities under
the Pilot Program.
For every compliance related performance measure that is not at
100 percent, Caltrans needs to document each item of noncompliance
in the project file and correct each deficiency identified.
Caltrans (with FHWA involvement under MOU section 10.1.1) needs
to develop an approach to evaluate the effectiveness of each
performance measure and to establish a process to communicate
changes implemented for each performance measure.
(N4) Quarterly Reports--The quarterly reports Caltrans provides
to FHWA under section 8.2.7 of the MOU have not consistently
included an accurate listing of all approvals and decisions under
the Pilot Program. Quarterly reports received by FHWA have been
revised and resubmitted by Caltrans to address reporting data gaps.
Audit team review of the content of the quarterly reports and
discussions with Caltrans staff who develop input for the quarterly
reports suggested that the processes leading to report production is
inconsistent in approach to what approvals and decisions are to be
reported Caltrans HQ by the District offices. Clear guidance to the
Districts is needed on what approvals and decisions are to be
reported and at what stage they are to be reported.
(N5) Varying Understanding of Section 6004/Section 6005 CEs--
Sections 3.1.1 and 3.1.2 of the MOU define the scope of assignment
in terms of the Section 6004 MOU (State Assumption of Responsibility
for the Categorical Exclusion program, 23 U.S.C. 326). An
inconsistent understanding of determinations of Section 6005 versus
Section 6004 project applicability was identified from interviews
and review of project files during the audit. For each CE, District
staff need to understand the purpose, use of Caltrans procedures
associated with CEs and consistently complete and maintain in the
project file the Categorical Exemption/Categorical Exclusion
Determination form and the Categorical Exclusion Checklist.
(N6) Creating and Maintaining Project File Protocols--Section
8.2.4 of the MOU requires that Caltrans maintain project files that
include all letters and comments received from governmental
agencies, the public, and others relating to the Pilot Program
responsibilities. In addition, section 8.2.5 of the MOU requires
Caltrans to review and monitor project file documentation thorough
its QA/QC process. In District 7, 8, and 11, the audit team
identified a lack of consistent filing and record keeping procedures
related to the storage of electronic communications. Caltrans does
not maintain a systematic process and has not established formal
directives regarding electronic correspondence and/or documents, a
lack which could result in the loss of electronic data.
(N7) Maintenance of Project and General Administrative Files--
Section 8.2.4 of the MOU requires Caltrans to maintain project and
general administrative files pertaining to its discharge of the
responsibilities assumed under the Pilot Program. The audit team
identified inconsistencies with established project files
maintenance procedures through file reviews conducted during the
audit. The following inconsistencies were noted:
(a) Files with incomplete and/or missing required documentation;
(b) files missing UFS file tabs;
(c) electronic correspondence and data not printed and/or
located in the project file; and
(d) project file materials maintained separately from the
project file.
Additionally, the audit team identified a lack of direction and
consistency among Caltrans staff on what items should be included in
the official administrative file. A lack of consistency of filing
procedures existed among generalists interviewed during the audit.
(N8) Establishment of Environmental Project Files--The audit
team observed a lack of clear understanding and inconsistent
implementation among Caltrans staff on when to establish
environmental project files. SER Chapter 38 ``Instructions for Using
the UFS'' states ``Establishing environmental project files based on
this UFS as soon as environmental studies begin, and maintaining
these files are mandatory.''
(N9) QA/QC Process Implementation--The Caltrans QA/QC process
developed to comply with section 8.2.5 of the MOU has not been
consistently implemented for all projects assumed under the Pilot
Program. Caltrans requires that each environmental document be
reviewed according to the processes established in the policy memo
``Environmental Document Quality Control Program under the NEPA
Pilot Program'' (July 2, 2007). The audit team identified through
interviews with Caltrans staff and through project files reviews
that an inconsistent understanding and implementation of the steps
in the QA/QC process for environmental documents existed.
The audit identified a general lack of understanding of the
purpose of the use of the Internal Certification with respect to its
role in the Pilot Program responsibilities assumed. This lack of
understanding involves the overall reasoning and logic for the
comprehensive progression of authorities of the reviews needed in
completion of the certification form. The audit identified a lack of
clear understanding among Caltrans staff that the environmental
branch chief must be the final signatory. Considering these
misunderstandings and the deficient finding (D2) below, the Audit
team recommends that Caltrans evaluate the use of the QC
Certification Forms to assess whether the intended goals of its use
are being met.
Findings--Deficient
(D1) Performance Measure--Section 10.1.3 of the MOU requires
Caltrans to collect data and monitor its progress in meeting the
performance measures in section 10.2 of the MOU, including
performance measure 10.2.1(C)(i): ``Assess change in communication
among Caltrans, Federal and State resource agencies, and the
public.'' Currently, Caltrans has no metric to evaluate this
performance measure.
(D2) QA/QC Certification Process--To comply with MOU section
8.2.5 and SER Chapter 38, Caltrans requires staff to review each
environmental document in accordance with the policy memo titled
``Environmental Document Quality Control Program under the NEPA
Pilot Program'' (July 2, 2007). The audit team observed the
following deficiencies through Caltrans staff interviews and project
file reviews:
(a) SER Chapter 38 section, ``Quality Control Program,''
requires the environmental branch chief's ``quality control
review,'' to always constitute the last review. In six instances
identified by the audit team, the environmental branch chief was not
the final reviewer based on the dates indicated on the forms.
(b) The SER Chapter 38 requires that the Caltrans' independent
review of the environmental document not begin until the External QC
Certification form has been completed. It was observed in three
instances that the completion of the Internal Certification QC form
predated the completion of the External Certification QC form.
(D3) Submission of Environmental Documents for Legal Review--
Three of the four environmental documents the audit team identified
as having undergone legal review prior to the July 2008 audit were
not submitted in accordance with the procedures specified in the
Division of Environmental Affairs (DEA) memorandum dated July 2,
2007, ``Environmental Document Quality Control Program under the
NEPA Pilot Program'' (nor, by reference, the then-operative October
15, 2007, Caltrans Legal Division memorandum, ``Procedures for
Determining Legal Sufficiency for Environmental Documents under the
NEPA Pilot Program''). The procedural deviations identified are as
follows:
(a) One NEPA environmental assessment, meeting Caltrans'
criteria for a ``Complex EA'' per the July 2, 2007, DEA memorandum
(public controversy and controversy over project purpose), underwent
legal review prior to approval without the program office having
provided the reviewing attorney any of the supporting documentation
for ``Complex EAs'' required by the July 2, 2007, and October 15,
2007, memoranda.
(b) Two other transmittals were sent to request the initiation
of the formal Legal Sufficiency review without the reviewing
attorney having been provided all six items required by the July 2,
2007, and the October 15, 2007, memoranda. In those cases, however,
the attorney did eventually receive all required items.
(c) It was observed that a District's transmittal of a Final EIS
for Legal Sufficiency review predated the Environmental Branch
Chief's certification on the Internal Certification form. The SER
Chapter 38 requires that the transmittal to the Legal Division will
include the completed and signed Internal and External QC
certification forms.
(D4) Environmental Document Process--Class of Action
Determinations--The audit team found an inconsistent understanding
and implementation of the process for documentation of class of
action
[[Page 76096]]
determinations and concurrences. The NEPA process, dictates that the
thought process and analysis necessary for the determination of the
class of action for a project should be documented as part of the
project's record-keeping. Sections 771.111(a) and (b) of Title 23,
Code of Federal Regulations discuss the determination and
identification of the class of action for a project and to verify
compliance with these regulations requires some documentation.
Additionally, Chapter 38 of the SER provides a means of
documenting class of action determinations via the Preliminary
Environmental Analysis Report for State Highway System projects or
via the Preliminary Environmental Study form for Local Assistance
projects. The procedures also require class of action determinations
for all EAs (including Complex EAs) and EISs to be made with the
concurrence of the Headquarters Environmental Coordinator. The SER
states that, ``obtaining the concurrence of the Headquarters
Environmental Coordinator may be done through an e-mail which
includes the project description, proposed class of action, and
rationale. The Coordinator's e-mail response will provide
concurrence.''
The audit team observed through project file review in the 3
Districts visited, the process described in the SER was not
consistently followed. In more than six instances, project files did
not contain any record of a class of action determination or
concurrence. This area was cited as Needs Improvement in the January
2008 audit. Interviews with Caltrans staff and review of project
files showed varying understanding and compliance with the SER and
with Caltrans Application section 773.106 (b)(3)(ii) and MOU section
5.1.1 regarding procedural and substantive requirements.
[FR Doc. E8-29628 Filed 12-12-08; 8:45 am]
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