[Federal Register Volume 74, Number 143 (Tuesday, July 28, 2009)]
[Notices]
[Pages 37299-37305]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-17896]
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
Federal Highway Administration
[FHWA Docket No. FHWA-2009-0051]
Surface Transportation Project Delivery Pilot Program; Caltrans
Audit Report
AGENCY: Federal Highway Administration (FHWA), DOT.
ACTION: Final report.
-----------------------------------------------------------------------
[[Page 37300]]
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 (pilot
program), codified at 23 U.S.C. 327. To ensure compliance by each State
participating in the pilot program, 23 U.S.C. 327(g) mandates
semiannual audits during each of the first 2 years of State
participation. This final report presents the findings from the third
FHWA audit of the California Department of Transportation (Caltrans)
under the pilot program.
FOR FURTHER INFORMATION CONTACT: Ms. Ruth Rentch, Office of Project
Development and Environmental Review, (202) 366-2034,
Ruth.Rentch@dot.gov, or Mr. Michael Harkins, Office of the Chief
Counsel, (202) 366-4928, Michael.Harkins@dot.gov, 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 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) that established 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.
To ensure compliance by each State participating in the pilot
program, 23 U.S.C. 327(g) 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. The
results of each audit must be presented in the form of an audit report
and be made available for public comment. The FHWA solicited comments
on the third audit report in a Federal Register Notice published on May
20, 2009, at 74 FR 23777. The FHWA received no comments. This notice
provides the final draft of the third FHWA audit report for Caltrans
under the pilot program.
Authority: Section 6005 of Public Law 109-59; 23 U.S.C. 315 and
327; 49 CFR 1.48.
Issued on: July 17, 2009.
Gregory G. Nadeau,
Acting Federal Highway Administrator.
Surface Transportation Project Delivery Pilot Program, Federal Highway
Administration Audit of California Department of Transportation,
January 26-30, 2009
Introduction
Overall Audit Opinion
Based on the information reviewed, it is the Federal Highway
Administration (FHWA) audit team's opinion that as of January 30,
2009, the California Department of Transportation (Caltrans)
continued to work toward meeting all responsibilities assumed under
the Surface Transportation Project Delivery Pilot Program (Pilot
Program), as specified in the Memorandum of Understanding (MOU) \1\
with FHWA and in the Caltrans Application for Assumption
(Application).
---------------------------------------------------------------------------
\1\ Caltrans MOU between FHWA and Caltrans available at: http://environment.fhwa.dot.gov/strmlng/safe_cdot_pilot.asp.
---------------------------------------------------------------------------
With the completion of FHWA's third audit, the audit team has
completed onsite audits of the majority of the Caltrans Districts.
The audit team identified significant differences across the
Districts in terms of the Pilot Program: resource availability and
allocation, details of implementation, processes, and improvement
and progress toward meeting all commitments. The highly
decentralized nature of Caltrans operations is a major contributing
factor to the variation observed. The decentralized nature of the
organization necessitates clear, consistent and ongoing oversight by
Caltrans Headquarters over District operations. A robust oversight
program will help foster the exchange of information and the sharing
of best practices and resources between Districts and will put the
entire organization in a better position to more fully implement all
assumed responsibilities and meeting all Pilot Program commitments.
Due to the multiyear timeframes associated with more complex and
controversial projects, the full lifecycle of project development
(beginning with environmental studies and concluding with the
issuance of a record of decision) has yet to be fully realized by
the Pilot Program. Caltrans continues to gain experience in
understanding the resource requirements and processes necessary to
administer its Pilot Program. It is the audit team's opinion that
Caltrans needs to continue to refine its approaches and resources to
meet all Pilot Program commitments, especially given the likelihood
of increasing resource demands associated with exclusively managing
more complex and controversial projects under the Pilot Program.
During the onsite audit, Caltrans staff and management continued
to express ongoing interest in receiving feedback from the FHWA
audit team related to program successes and areas in need of
improvement. By addressing all findings in this report, Caltrans
will continue to move its program toward full compliance with all
assumed responsibilities and meeting all Pilot Program commitments.
Background
The Safe, Accountable, Flexible, Efficient Transportation Equity
Act: A Legacy for Users (SAFETEA-LU, Pub. L. 109-59) section 6005(a)
established the Pilot Program, codified at title 23, United States
Code (U.S.C.), section 327. The Pilot Program allows the Secretary
of Transportation (Secretary) to assign, and the State to assume,
the Secretary's 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
FHWA.
Caltrans published its 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 Federal agencies, reviewed and approved the Application.
Then on June 29, 2007, Caltrans and FHWA entered into an 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)).
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 2
years of State participation; and annual audits during each
subsequent year of State participation. The focus of the FHWA audit
process is four fold: (1) To assess a Pilot State's compliance with
the required MOU and applicable Federal laws and policies, (2) to
collect information
[[Page 37301]]
needed to evaluate the success of the Pilot Program, (3) to evaluate
Pilot State progress in meeting its performance measures, and (4) to
collect information for use in 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 that is published in the Federal
Register. 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. The FHWA solicited comments on the third audit report in a
Federal Register Notice published May 20, 2009, at 74 FR 23777. The
FHWA received no comments during the comment period. This notice
provides the final draft of the third FHWA audit report for Caltrans
under the pilot program.
Scope of the Audit
This is the third FHWA audit of the Caltrans Pilot Program. The
onsite portion of the audit was conducted in California from January
26 through January 30, 2009. As required in SAFETEA-LU, each FHWA
audit must assess compliance with the roles and responsibilities
assumed by the Pilot State in the MOU. The audit also includes
recommendations to assist Caltrans in administering a successful
Pilot Program.
The audit primarily focused on four key Pilot Program areas: (1)
The Local Assistance (LA) program (Caltrans manages LA and Capital
projects through independent organizational entities), (2) the role
of the regional offices, (3) the effectiveness of and adherence to
specified performance measures, and (4) the continued review of
compliance with assumed responsibilities.
Prior to the onsite audit, FHWA conducted telephone interviews
with Federal resource agency staff at the U.S. Army Corps of
Engineers (USACE) and U.S. Fish and Wildlife Service (USFWS)
regional offices in California. The onsite audit included visits to
the Caltrans Headquarters Office (HQ) in Sacramento and to four
Caltrans District/Regional Offices: District 3/North Region
(Marysville), District 4 (Oakland), District 6/Central Region
(Fresno), and District 10 (Stockton). The audit team also visited
the USFWS and USACE offices in Sacramento.
This report documents findings within the scope of the audit as
of the completion date of the onsite audit (i.e., January 30, 2009).
Audit Process and Implementation
The intent of each FHWA audit completed under the Pilot Program
is to ensure that each Pilot State complies with the commitments in
its MOU with FHWA. The 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 FHWA audit
scope 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.
In addition, 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;
Record Keeping 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 team for the third audit 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;
U.S. Fish and Wildlife Service;
U.S.D.A. Forest Service.
During the onsite audit, FHWA interviewed more than 80 Caltrans
staff (from both the Capital and LA programs) in four District/
Region offices and Caltrans HQ. The audit team interviewed a cross-
section of staff including top senior managers, senior environmental
planners, generalists, associate planners, and technical experts.
The audit team also reviewed project files and records for over 35
projects managed under the Pilot Program.
The FHWA acknowledges that Caltrans identified specific issues
during its third self-assessment performed under the Pilot Program
(required by MOU section 8.2.6), and has established processes to
address each issue. Some issues described in the Caltrans self-
assessment may overlap with FHWA findings identified in this audit
report.
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 comments received from Caltrans and revised sections of the
draft report, where appropriate, prior to publishing it in the
Federal Register for public comment.
Status of Findings From the Last Audit
As part of the third audit, FHWA evaluated the corrective
actions implemented by Caltrans in response to the audit findings in
the second audit report.
The FHWA observed that Caltrans continues to demonstrate
compliance with two areas identified as ``Compliant'' in either the
first audit (January 2008) or second audit (July 2008); the
establishment of Pilot Program policies and procedures and
interagency agreements that involve other agencies as signatories.
While previous audits also found Caltrans to be ``Compliant''
with its commitment to put in place a consistent process to conduct
formal legal sufficiency reviews, limited information was available
to support any finding determination during the third audit because
only one formal finding of legal sufficiency had been completed.
The FHWA also reviewed the current status of ``Deficient'' and
``Needs Improvement'' audit findings identified during the second
FHWA audit in July 2008.
``Deficient'' audit findings:
(1) Performance Measure: ``Effectiveness of relationships with
the general public''--Caltrans reported progress in its third self-
assessment on the performance measure ``effectiveness of
relationships with agencies and the general public.'' Caltrans
developed a method to evaluate its relationships with the general
public by assigning a survey rating measuring the quality of public
meeting materials. The survey was completed for 27 projects for
which public meetings were held since the initiation of the Pilot
Program. (See related findings N10 and D2 below.)
(2) Quality Assurance/Quality Control (QA/QC) Certification
Process--Through project files reviews, the FHWA audit identified
one instance where the environmental branch chief was not the final
document reviewer (based on the signature dates included on the
form). The audit team did verify that the External QC Certification
form was correctly completed prior to proceeding with the Internal
QC Certification form.
(3) Environmental Document Process--Class of Action
Determinations--The audit team observed that the project files
reviewed in this audit contained the required concurrence by the HQ
Environmental Coordinator for Environmental Assessment (EA) and
Environmental Impact Statement (EIS) class of action determinations.
(See related finding D5 below.)
``Needs Improvement'' audit findings:
(1) Commitment of Resources--The audit team is aware that
Caltrans has systems in place designed to capture time spent by
staff on various tasks and activities required under the Pilot
Program. However, interviews with Caltrans District staff working on
LA projects revealed that work hours associated with the Pilot
Program are not consistently entered into the Expenditure
Authorization system using the Pilot Program-specific codes.
Caltrans has not clearly identified how the information gathered by
these time-recording systems helps Caltrans determine the
sufficiency of staff resources needed under the Pilot Program.
Resource tracking is an ongoing area of concern for the audit
team. As the complexity of projects increases with maturation of the
Pilot Program, the variability in reporting and tracking resource
expenditures may affect the timely delivery and quality of
environmental documents. (See related finding N5 below.)
[[Page 37302]]
(2) District Training Approaches and Implementation--During the
three FHWA audits, the audit team identified considerable variation
in training needs assessments, approaches, and responsibilities
across Districts and also within individual Districts. The observed
variations in training approaches may result in potentially widely
varying levels of competency among staff. In order to achieve a
sufficient level of competency among all staff, Caltrans HQ
environmental staff need to actively monitor each District's
training methods and ensure that consistency is achieved in terms of
training assessment and delivery. (See related findings N7 and N12
below.)
(3) Pilot Program Performance Measures--These two performance
measures have been addressed by Caltrans in the following manner:
(a) Performance Measure: ``Timely Completion of NEPA Process''--
Caltrans has expanded this performance measure to include tracking
the time from initiating environmental studies to the approval date
of the draft and final environmental documents. The performance
measure also now differentiates the timeframes by EAs and EISs.
Previously, project timeframes were reported in aggregate instead of
by environmental document type.
(b) Performance Measure: ``Maintain documented compliance with
requirements of all Federal laws and regulations being assumed.''--
Caltrans reported in its third self-assessment that 100 percent of
final environmental documents contained documentation of: Section 7
of the Endangered Species Act, as amended (section 7) biological
opinions and letters of concurrence, State Historic Preservation
Officer concurrences under section 106 of the National Historic
Preservation Act (section 106), and section 4(f) of the U.S.
Department of Transportation Act of 1966 (section 4(f)) findings and
conclusions. (See related finding N8 below.)
(4) Quarterly Reports--The quarterly reports Caltrans provides
to FHWA under section 8.2.7 of the MOU continue to include
inaccurate/incomplete information on environmental document
approvals and decisions under the Pilot Program. Each of the first
five quarterly reports received by FHWA have been revised, some
several times, to address data reporting errors including: Omitted
categorical exclusions, EAs, findings of no significant impacts, re-
evaluations, section 4(f) analyses, and section 7 and section 106
consultations, as well as numerous consultations and categorical
exclusions (CEs) reported in error. The third self-assessment
reported that a quarterly report protocol was developed and
implemented prior to preparing the fifth quarterly report. However,
the audit team determined that the fifth report also included errors
and omissions (omitted EA, re-evaluation and notice of intent, and
section 7 consultations reported in error) and a revised report was
submitted. (See related finding D1 below.)
(5) Varying Understanding of Section 6004/Section 6005 CEs--The
audit team did not observe any misunderstanding of section 6004 and
section 6005 SAFETEA-LU CE determinations in the District Offices
visited in the third audit.
(6) Creating and Maintaining Project Protocols and Project
Files--The Caltrans' third self-assessment reported that corrective
action discussions were completed with staff managing projects with
incomplete project files and/or those not conforming to the Uniform
Environmental File System (UFS) protocol. Additionally, it was
reported that discussions of the retention of electronic
communications were completed with District staff. (See related
findings C1 and N4 below.)
(7) QA/QC Process Implementation--Caltrans' third self-
assessment reported on the number of ways that Caltrans actively
monitors conformance with the Pilot Program QC procedures. Methods
include ongoing communication with senior environmental planners
regarding the QC processes, discussions at staff meetings, review by
senior environmental planners of environmental documents and HQ
Environmental Coordinators actively monitoring conformance with the
QC procedures. (See related finding C4 below.)
Key Elements of Implementation
One purpose of each FHWA audit of a State Pilot Program is to
identify and collect information on Pilot Program implementation
practices for consideration by potential future Pilot Program
participants. Key programmatic elements used by Caltrans to
administer its Pilot Program include documenting policies and
procedures in Standard Environmental Reference (SER) Chapter 38,
annotated outlines for environmental documents, QC certification
forms, environmental document review checklists, and monthly NEPA
delegation statewide teleconferences.
Effective Practices
The FHWA audit team observed during interviews and through
project file reviews completed in Districts 3, 4, 6, 10 and the
North and Central regions the following effective practices:
(1) Central Region practices:
(a) The environmental document template used for each project
establishes the format and provides technical cues at locations
where specific data should be entered by environmental document
authors. The use of document templates helps to ensure compliance
with environmental laws and to improve document consistency and
quality.
(b) For large projects, once the Preliminary Environmental Study
(PES) form has been completed by Caltrans staff, environmental
staffers perform joint field reviews with the local agencies and
their consultants. This affords Caltrans and local agency staff the
opportunity to discuss the NEPA process requirements and the
required technical studies needed to complete the process.
(c) Individual Development Programs (IDPs) are critical elements
in the training process for Caltrans staff (in both the Capital and
LA programs). Senior environmental planners regularly and
consistently use IDPs to guide and track staff training.
(2) The LA staff in District 10 use a work plan and tracking
sheet that serves as a work flow chart for LA projects in the
District. This tool is useful because it helps Caltrans and local
governments understand the requirements, sequencing, and timing of
environmental compliance activities throughout the project
development process.
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 third audit
report is from the start of the Caltrans Pilot Program (July 1,
2007) through completion of the third onsite audit (January 30,
2009) with the focus of the audit on the most recent 6 month period.
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 and/or MOU.
Needs Improvement--Audit determined that a process,
procedure or other component of the Pilot Program as specified in
the Application and/or MOU is not fully implemented to achieve the
stated 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 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 and/or MOU. Corrective action is required prior to the
next audit.
Summary of Findings--January 2009
Compliant
(C1) Completion of the PES form--As stated in Chapter 6 of the
LA Procedures Manual, completing the PES form for each project is
one of the roles and responsibilities of LA staff. The audit team
learned through interviews with LA staff in the Central Region
office that training had been provided on how to complete the PES
form. The audit team also confirmed through file reviews that the
PES forms in the Central Region were completed correctly.
(C2) Tracking and Managing Projects--The Central Region office
developed a sophisticated data management and tracking system using
the File Maker software application for tracking and managing
Capital projects (i.e., projects on the State Highway System (SHS)).
The Central Region has standard practices to ensure that all
projects are entered into the system and tracked appropriately. The
system included data validation features such as color coded items
to identify missed deadlines or inactive projects. The audit team
found that all environmental staffers in the office appear to be
able to input data into the system. The File Maker system is used to
track, manage, and provide reports on the Capital projects in the
Region. As a result, the audit team was able to determine that the
Central Region
[[Page 37303]]
office is compliant with section 8.2.7 of the MOU, requiring
Caltrans to report to FHWA any approvals and decisions Caltrans
makes with respect to the responsibilities it has assumed under the
Pilot Program.
(C3) Project Files/UFS--Section 8.2.4 of the MOU and procedures
specified in SER Chapter 38 require that Caltrans staff maintain
project files and general administrative files for all Capital and
LA projects in accordance with the UFS.
The audit team found that the North and Central Regions have
taken additional steps to ensure that project files are organized
correctly and that the proper information can be located easily.
Additional sub-tabs have been added to the UFS file tab system to
improve the clarity and consistency across the Districts in these
Regions. The new sub-tabs were added for topic areas likely to
contain large amounts of information (e.g., biology, special status
species, coordination correspondence).
(C4) QA/QC Process--The Central Region has established a QA/QC
unit. The audit team interviewed members of this unit during the
onsite visit at the Regional office. To ensure compliance with
section 8.2.5 of the MOU, the QA/QC unit implemented, for its
Capital program staff, a QC process that involves an internal review
and QA/QC branch chief signature that exceeds the requirements of
the QC plan in the SER Chapter 38.
Needs Improvement
(N1) QA/QC Certification Process--Section 8.2.5 of the MOU and
SER Chapter 38 require Caltrans staff to review each environmental
document in accordance with the policy memorandum titled
``Environmental Document Quality Control Program under the NEPA
Pilot Program'' (July 2, 2007). The audit team observed improvement
since the previous audit (July 2008) in the completion of the QC
certification forms. However, the audit team still identified
incomplete and incorrectly completed QC certification forms. These
inconsistencies were also identified in the third Caltrans self-
assessment and corrective actions were discussed in that report.
(N2) Self-Assessment and Process Reviews--Section 8.2.6 of the
MOU and SER Chapter 38 require Caltrans to regularly perform an
internal formal process review for environmental compliance,
referred to by Caltrans as a self-assessment. A summary report of
the Caltrans self-assessment is provided to FHWA prior to each FHWA
audit. The audit team has identified aspects of the self-assessment
process that need improvement in order for this process to meet its
stated intent. These areas include:
(a) Review of projects during the self-assessment. To fully
assess compliance with the project development process and
responsibilities assumed under the Pilot Program, Caltrans needs to
evaluate projects at all phases of project development, as well as
compliance with project filing procedures. A complete review should
include not only projects that have reached decision points and have
been reported in the quarterly reports to FHWA, but also projects
yet to reach a decision point.
(b) More details on performance measures. As the self-assessment
is the primary method of data collection and evaluation of success
in meeting Pilot Program performance measures, more details and
discussion regarding each performance measure should be included in
the self-assessments. Examples of areas that need further
explanation include: (1) The sampling procedures used for checking
EA/EIS project files organized according to the established filing
system and (2) the sampling procedures used for checking the
completeness of the QC certification forms.
(c) Limited scope of the self-assessment review. A significant
proportion of the third self-assessment focused on the effectiveness
of corrective actions implemented by Caltrans to address
deficiencies noted in its second self-assessment and actions taken
to address FHWA Pilot Program audit findings. While an important
component of the self-assessment process, review of improvement
regarding noted deficiencies from prior internal and external audits
is only one aspect of a successful self-assessment process. The bulk
of the self-assessment process should be focused on confirmation
that all Pilot Program requirements are being fully met, including
pursuit of newly occurring areas of weakness/potential weakness.
(d) To ensure that Caltrans is effectively reviewing all
elements of assumed responsibility as stated in the MOU and
Application, it must present a systematic review of all Pilot
Program processes and procedures. Caltrans has yet to establish a
methodology/approach to specify how it will conduct its self-
assessment process. In particular, the process it is using and
intends to use to determine, for each audit, what Pilot Program
elements warrant review, the level of review to be performed on each
selected element, the depth of the review (e.g., the sample size of
documents reviewed, the number of districts contacted/staff
interviewed, the frequency of reviews), and the coverage of each
self-assessment (what parts of the Program have been/need to be
reviewed/re-reviewed). The current self-assessment process has yet
to demonstrate that Caltrans is evaluating its Program in a manner
that will determine for all applicable components if ``its process
is working as intended, to identify any areas needing improvements
in the process'' (MOU Section 8.2.6). Evidence to suggest that the
self-assessment process needs improvement is demonstrated by new
Needs Improvement and Deficient audit findings identified by the
FHWA audit team in this audit in areas recently reviewed (but not
identified) under Caltrans self-assessment. In addition, the FHWA
audit team identified new Deficient findings in Pilot Program areas
not evaluated by the self-assessment process.
(N3) Air Quality Conformity Determinations--Section 8.5.1 of the
MOU and SER Chapter 38 require Caltrans staff to document the air
quality conformity analysis for each project by submitting a request
to FHWA for a formal conformity determination. The request for the
conformity determination should be submitted to FHWA as soon as
possible after the preferred alternative is identified. The FHWA
conformity determination must be received before the final NEPA
action is completed.
Through interviews and project file reviews in the Districts
visited, the audit team identified a misunderstanding by the
Caltrans staff regarding the air quality conformity determination
process. This misunderstanding and confusion was not observed in the
first two audits. Several Caltrans staff interviewed in both the
North and Central Regions were not aware of their responsibilities
to request formal FHWA conformity determinations for projects
processed through the LA program. Interviews identified a lack of
communication and misunderstandings between Caltrans staff and local
agencies regarding air quality conformity analysis and
determinations. In two of seven project files reviewed for air
quality conformity determinations, FHWA conformity determination
letters were missing. For another file, the conformity letter was
not included in the project file but was subsequently located by
Caltrans staff and included in the file during the audit.
(N4) Project Files/UFS--Section 8.2.4 of the MOU and SER Chapter
38 require Caltrans to maintain project files and general
administrative files. To support statewide consistency in file
content and organization, the UFS has been developed for mandatory
use for all Capital and LA projects.
Despite the ``Compliant'' finding regarding the North and
Central regions described under item C3 above, the audit team
identified that some project files were not established as soon as
environmental studies had begun, as required by SER Chapter 38.
Additional inconsistencies identified included:
(a) Several instances where project files were missing UFS tabs
and some sections contained no information or an explanation as to
why the tabs were missing or tab sections were incomplete (i.e.,
empty).
(b) Required project documentation was missing from several
project files. Examples of missing documents include PES forms, QA/
QC certification forms, air quality conformity determination
letters, State Historic Preservation Office concurrence letters for
section 106 determinations, ``Plans, Specifications and Estimates''
information, and various transmittal letters.
(c) Project file reviews identified unsigned/incomplete
documentation including incomplete environmental document filing
checklists, unsigned environmental document preparation and review
tools, and unsigned LA EA document title pages.
(N5) Commitment of Resources--Section 4.2.2 of the MOU requires
Caltrans to maintain adequate organizational and staff capability
effectively to carry out the responsibilities it has assumed,
including devoting adequate staff resources to the Pilot Program. In
the Districts/Regions visited, interviews with the Caltrans staff
working on LA projects revealed the following:
(a) Inconsistencies associated with charging time spent on Pilot
Program activities to the official Work Breakdown Structure (WBS)
code (6DELE). Staff
[[Page 37304]]
interviews identified two main reasons for incomplete adherence to
use of the WBS code: Not having the time to determine the amount of
time and enter it in the time sheet system; not tracking Pilot
Program labor expenditures at all.
(b) LA staffers expressed frustration to the audit team
regarding the amount of work to be accomplished by current LA staff
in the Districts. Concerns were frequently expressed regarding
inadequate staffing, lack of timeliness in filling vacant positions,
and the difficulty coping with the pressure to advance projects in a
timely manner and on schedule.
The audit team learned that Caltrans is considering updating and
enhancing the LP 2000 system which should present an opportunity to
improve resource tracking for LA staff, and projecting future staff
needs.
(N6) Adequate QA/QC Review of Technical Studies--The second
Caltrans self-assessment identified that the peer review of the
biological resources technical studies was sometimes less thorough
than the same reviews performed for SHS projects. The audit team
confirmed this finding through interviews with LA staff in one
District visited. Caltrans has committed to ensure that the
appropriate level of environmental analysis is conducted for all
NEPA documents for projects on both the SHS and also on local
streets and roads.
A corrective measure was identified in the self-assessment to
remind the staff biologists that the peer review of biological
resource technical studies for the LA projects uses the same
standard as for Capital projects. The audit team concurs in this
corrective measure and also recommends that additional follow-up
review occurs to ensure that it is being implemented.
(N7) Training on Air Quality Conformity--MOU section 12.1.1
requires Caltrans to provide training ``in all appropriate areas
with respect to the environmental responsibilities that Caltrans has
assumed.'' Three of four LA and Capital environmental planners
interviewed in the Central Region office indicated an ongoing need
for training in the area of air quality conformity, its role in the
Statewide Transportation Improvement Program, the Transportation
Improvement Plan, and emissions budgets. Interviewees indicated that
additional training or primers by Caltrans' air quality specialists
are needed for environmental planners due to this being such a
dynamic area affecting many projects. Caltrans should assess if
other environmental planners in other Districts/Region offices also
find this area problematic and require additional training in this
area. Air quality specialists should also work with environmental
planners in their Districts to ensure that everyone understands
their role and the required processes.
(N8) Procedural and Substantive Requirements--MOU section 5.1.1
requires Caltrans to be subject to the same procedural and
substantive requirements that apply to FHWA in carrying out the
responsibilities assumed. Through interviews with USACE and USFWS
staff located in California, the audit team learned that there have
been a few instances where environmental requirements were not
completely and correctly implemented.
(a) In at least one instance, based on the biological assessment
of the project, take of threatened or endangered species was
anticipated and quantified. However, Caltrans made a request for
informal, not formal consultation, to the USFWS. This process
decision is contrary to the implementing regulations of section 7 of
the ESA.
(b) In other instances, the USACE reported that environmental
assessment documents prepared pursuant to NEPA and reviewed by the
USACE under section 404 of the Clean Water Act, contained
insufficient information to support decisionmaking and chosen
alternatives. Further, as part of their Clean Water Act section 404
permit verification, the conclusions made by Caltrans in relation to
ESA requirements were not supported. This noncompliance prevented
the USACE from issuing its required permit without the proper
consultation with the USFWS.
It is the opinion of the audit team, based on these
observations, that Caltrans staff and/or the consultants hired by
Caltrans to conduct biological assessments, submit permit
applications, and perform NEPA analyses, could benefit from training
in various environmental laws and regulations. It is also noted that
the technical reviews and other QC reviews should have identified
these errors. The MOU section 10.2.1.C performance measure to
monitor relationships with Federal resource agencies needs to be
implemented.
(N9) Assignments Under the Pilot Program--MOU section 3.2.2
requires Caltrans to comply with the requirements of all applicable
environmental laws. Caltrans staff interviewed indicated a lack of
understanding of the SAFETEA-LU section 6002 (Sec. 6002; 23 U.S.C.
139) environmental review process definition and role of
participating agencies, particularly in comparison to that of
cooperating agencies.
In a review by the audit team of four EIS project files, the
audit team found that the cooperating and participating agency
invitation letters sent by Caltrans were not totally accurate and
were confusing. The letters were based on the template invitation
letter provided in the SER, with links to the Local Assistance
Manual. This template contains the following errors and confusing
language:
(a) The subject line for the letter only mentions an invitation
to become a participating agency, with no indication of an
invitation to also be a cooperating agency, when both apply. Yet, in
the body of the letter, there is a combined discussion of
cooperating agency status and participating agency status.
(b) In the list of activities that will be occurring during the
NEPA process, there are two instances listing both FHWA and Caltrans
as providing various information. Under the Pilot Program, as stated
in the first paragraph of the letter, FHWA is not involved in the
project.
(c) The letter does not clarify the different roles and
responsibilities of participating and cooperating agencies.
(d) The letter states that an agency will be a cooperating
agency only if it has ``jurisdiction for permit.'' That is not in
accordance with 40 CFR 1598.5 which defines cooperating agency as,
``any Federal agency other than the lead agency which has
jurisdiction by law or special expertise with respect to any
environmental impact involved in the proposal.''
Caltrans needs to ensure that the SAFETEA-LU environmental
review process (Sec. 6002; 23 U.S.C. 139) is fully and correctly
implemented.
(N10) Performance Measure--``Monitor Relationships With the
General Public''--MOU section 10.2.1.C requires Caltrans to monitor
relationships with the general public. This is the first audit to
evaluate this performance measure, as such a tool had not previously
been developed for this performance measure. This measure is
intended to assess the effectiveness of any changes in communication
that could affect an existing relationship among Caltrans and the
general public. The tool or indicator measure developed involves
Caltrans staff and/or consultants performing self assessments to
evaluate public meeting materials. To fully assess this
relationship, however, the views of the other party must be
considered as well. The current performance measure does not reflect
the general public's views on communication with Caltrans regarding
Federal-aid highway projects. More details need to be provided
regarding the projects for which the public meeting materials are
being evaluated. Different projects require different and
appropriate materials depending on the scope and issues involved in
the project. Using a generic rating for all projects, with no
additional information or explanation, may not truly reflect the
desired outcome.
(N11) Documentation of Class of Action Determinations.--Through
project file reviews, the audit team found inconsistencies in the
class of action determination documentation. The SER Chapter 38
``Defining the Class of Action'' requires for EAs and EISs, that
either a Deputy District Director for Environmental (or designee) or
a District Local Area (DLA) Engineer and a District senior
environmental planner make a determination with the concurrence of
the Division of Environmental Analysis Environmental Coordinator.
Four of six EIS project files reviewed by the audit team did not
include documentation on the class of action determination. For one
project, the class of action was changed from an EIS to an EA, but
no documentation was identified in the file to explain the change or
to demonstrate concurrence on the decision to down scope the
environmental document type. For another project, the project file
did not contain an explanation for the change of action from an EA
to an EIS.
(N12) LA Training Plan--Under section 12.1.1 of the MOU,
Caltrans is responsible for ensuring that its staff is properly
trained and that training will be provided ``in all appropriate
areas with respect to the environmental responsibilities Caltrans
has assumed.'' This section of the MOU also states that ``Caltrans
agrees to have all appropriate employees (including consultants
hired for the purpose of carrying
[[Page 37305]]
out the Secretary's responsibilities) attend such training.''
Additionally, the Application states that DLA environmental staffers
``will provide training to local agencies and their consultants to
ensure that LA environmental documents follow statewide procedures
and meet Federal requirements.''
Section 12.1.2 of the MOU requires that a training plan be
updated annually during Caltrans' participation in the Pilot
Program. This training plan is shared with FHWA on an annual basis.
The training plans submitted for Fiscal Year (FY) 07-08 and FY 08-09
included information only on Capital program training and did not
include information on training for DLA staff or how staff will
provide training to local agencies and consultants. The information
gaps in the FY08-09 Training Plan include:
(a) The lack of a formalized training plan for DLA staff on DLA-
specific processes--Four interviewees and pre-audit information
collection revealed no evidence of a formal training plan to carry
out the LA responsibilities under the Pilot Program, including
training for DLA staff and staff in local agencies and consultants.
Interviews in all Districts/Regions visited indicated varying
training activities have occurred; however, this information--or an
explanation on the approach--is not included in the training plan.
(b) The lack of an ongoing training procedure for local agencies
and consultants, including expected courses or outreach to be
offered. Six interviewees stated that there is no formal approach
being used by Caltrans Districts to ensure proper training or
outreach is provided to local agencies and consultants. Given the
very large number of LA projects in some Districts, and the
typically high staff turnover within local agencies, Caltrans needs
to formalize and implement an ongoing training plan to ensure that
LA program staff can carry out the responsibilities under the Pilot
Program and work with the local agencies and consultants to ensure
compliance with statewide procedures and Federal requirements
assumed by Caltrans.
Deficient
(D1) Quarterly Reports--The quarterly reports Caltrans provides
to FHWA under section 8.2.7 of the MOU continue to consistently
include an inaccurate listing of all approvals and decisions under
the Pilot Program. The quarterly reports received by FHWA for the
first five quarters have all contained substantial errors and have
had to be revised and resubmitted to FHWA by Caltrans.
Discussions with Caltrans staff developing input for the
quarterly reports identified inconsistent approaches and procedures
in the processes leading to report production. Communication is not
always timely between the project generalists and the staff
responsible for project tracking and reporting. Additionally, two of
the four Districts visited during the third audit were unable to
readily produce a list of the projects within that District that
fall under the Pilot Program. The audit team finds the quarterly
reporting process and products deficient.
(D2) Performance Measure--``Monitor Relationships With Federal
and State Resource Agencies''--MOU section 10.2.1.C requires
Caltrans to ``assess change in communication among Caltrans, Federal
and State resource agencies.'' In all three Caltrans self-
assessments (December 2007, June 2008, and December 2008) under
``Progress in Meeting Pilot Program Performance Metrics'' Caltrans
stated that this performance measure has not yet been implemented.
The audit team understands that Caltrans has engaged a consultant to
undertake a survey of Federal and State resource agencies to assess
their relationships with Caltrans; however, the minimal degree of
progress after 18 months of the Pilot Program renders Caltrans'
performance on this requirement deficient at the time of the audit.
(D3) Delegation of Signature Authority--In six of the eight
Caltrans District Offices reviewed in this audit, the audit team
learned of the delegation of signature authority for EISs and
individual Section 4(f) Evaluations that occurred in October 2007.
In September 2007, Caltrans asked for clarification of signature
authority for EISs as stated in the Application and section 1.1.2 of
the MOU. The FHWA responded with clarification of this signature
authority through a letter from FHWA to Caltrans dated September 12,
2007. This letter stated that the Draft EIS can be signed by either
the Deputy District Director for Environmental Planning or the
District Director, at the Caltrans' District discretion. Final EISs
are to be signed by District Directors, and not further delegated.
There was no request for clarification for individual Section 4(f)
Evaluations and therefore, that signature authority remains as
agreed to with the Deputy District Director.
During the audit, the audit team learned of two memos, dated
October 2007, that delegated, for six Districts, the signature of
individual Section 4(f) Evaluations to the Environmental Office
Chiefs and the signature of EISs to the Environmental Division Chief
or the District Director.
This delegation is inconsistent with the FHWA clarification
letter. Additionally, Chapter 38 of the SER is inconsistent
regarding this delegation of signature authority for Draft EISs,
indicating two different delegation signature authorities, one to
the Deputy District Director and one to the Deputy District Director
for Environmental Planning, in the sections ``Signature
Authorities'' and ``Signature Protocols.''
(D4) Assignment of Section 6002 Responsibility under the Pilot
Program--Under MOU section 3.2.2, Caltrans is responsible for
complying with the requirements of any applicable environmental law.
Therefore, Caltrans is responsible for complying with SAFETEA-LU
section 6002 (23 U.S.C. 139) which defines provisions of the
environmental review process. The SAFETEA-LU section 6002(d) (23
U.S.C. 139(d)) states that a Federal lead agency for a highway
project conducting a NEPA process under section 6002, in this case
Caltrans, ``shall identify, as early as practicable in the
environmental review process for a project, any other Federal and
non-Federal agencies that may have an interest in the project, and
shall invite such agencies to become participating agencies in the
environmental review process for the project.''
In three of the six EIS project files reviewed, there were
participating agency invitations sent out to only 5 to 10 agencies
per project. For those projects, the audit team, thorough interviews
and review of project files, learned that more local, State,
Federal, or tribal governmental agencies, either may have or already
had, expressed an interest in the project and were therefore
required to be an invited participating agency.
The Caltrans' third self-assessment included a section on
``Understanding of Section 6002 Requirements,'' and did not report
any finding that requires a corrective action.
Based on its review of project files and interviews with
Caltrans staff, the audit team finds Caltrans' compliance with its
Pilot Program responsibilities to be deficient with regard to the
intent and requirements of SAFETEA-LU section 6002 regarding
inviting participating agencies.
(D5) Corrective Action for Audit Deficiency--In three of the
project files reviewed by the audit team that contained a class of
action determination documentation, the class of action
determination concurrence was issued the day before the third audit
began, or actually, in two instances, the concurrence was issued
during the audit. This is a failure to fully address the deficiency,
``Environmental Document Process--Class of Action Determination,''
noted in the previous audit.
Response to Comments and Finalization of Report
The FHWA received no comments during the 30-day comment period
for the draft audit report. Therefore, the FHWA feels that there is
no need to revise the draft audit report findings and finalizes the
audit report with this notice.
[FR Doc. E9-17896 Filed 7-27-09; 8:45 am]
BILLING CODE 4910-22-P