Tony DeSimone, P.E. 
FHWA-Indiana Division 

Mr. Smith, 
Thank you for your patience on waiting for this response.
First, let me address your original questions.  I will repeat your questions as I copied them from your email.  I apologize in advance for the length of the responses but I wanted to include quotes from the documents, not just references and to be thorough.  Also, you wanted to know who was commenting from our legal counsel. That would be Mr. Robert Black, who I believe you have spoken to in the past.

>                       1. 
>                       
>                        When a Tier 1 ROD has approved the FEIS which 
>contained expected "Typical Cross Sections" and provided details of 
>numbers of traffic lanes and road way widths, is it appropriate and/or 
>legal for the Tier 2 study to not present these as active options or at 
>least as options that were eliminated for just cause to the public in 
>the first public meeting for the sections? 
>                       
>                          Specifically on the Corridor 18, section 3, 
>3C sections 5 & 6 the numbers of lanes past Bloomington and Martinsville 
>Indiana have been significantly reduced, including total elimination of 
>frontage roads by consultants studying even as they claim no design work 
>has begun.  The "raised" provision has been eliminated with never once 
>public discussion.  No mention of any elimination of capacity or lanes 
>was mentioned to the public in either section 5 or section 6 and in fact 
>the consultants to section 6 were oblivious to this content of the FEIS 
>and the fact that they had even made this change. 
>                       

First, please note that the Tier 1 FEIS had been determined legally sufficient prior to its approval by FHWA.  Therefore, the documentation met the regulatory requirements.
There are no federal legal requirements as to what information needs to be presented at these early public meetings INDOT is hosting to try to get some early public input on the current proposed alternatives.  These meetings, though, were advertised and held in compliance with INDOT public involvement procedures that were developed to be in compliance with Federal requirements in consultation with the FHWA.  Federal requirements will apply to the public hearings which will occur following the approval of the DEIS.  We will be determining the information to be presented formally at DEIS public hearings at a later date and will take your comments here under consideration.
The Tier 1 ROD "approves the selection of the alternative that was identified in the FEIS as "Preferred Alternative 3C." This alternative is a corridor, generally 2000 feet in width, within which specific alignments will be developed in Tier 2 studies." (page 4 of the ROD)  
The Tier 1 ROD did not approve an alignment or cross sections which would be part of an alignment.  This was left to Tier 2.  Working alignments with typical cross sections were developed to estimate cost and impacts for comparison purposes in the FEIS.  Also, in the FEIS page 5-2 it states that 
        "FHWA and INDOT have stated that the goal in Tier 1 is to develop sufficient information to make a Build/No Build decision and to select a corridor for I-69 between Evansville and Indianapolis; it is not intended to resolve the exact alignment or to specify details of mitigation measures."  
Again cross sections would be considered part of the exact alignment because cross sections vary throughout the project depending on traffic, urban or rural, terrain, and other specific natural and human environmental factors that could not be precisely determined at the higher scale of the Tier 1 study.  Page 5-2 and 5-3 goes into further detailed concerning these parameters that were set for Tier 1.  
On page 6 of the ROD it states 
        "The typical cross-sections used in the Tier 1 study were used solely for the purpose of estimating potential impacts, benefits, and costs.  Decisions regarding the cross-sections for the project (including auxiliary elements such as access roads) will be made in Tier 2."
A more refined Indiana Statewide Traffic Model using more recent traffic counts has been developed since the performance measures in Tier 1 were analyzed and cross sections developed for the Tier 1 working alignments.  Also, a much more refined corridor traffic model has been developed specifically for the Tier 2 analysis using the latest Indiana Statewide Traffic model data to make refined decisions on local access needs and the interstate traffic needs.  This information will be used in the Tier 2 studies to determine the number of needed lanes on the interstate.  If a cross section in the Tier 1 is no longer appropriate due to the changes in the traffic projections, it would not be reasonable to consider them in Tier 2. 
The Draft EIS for each section will need to address issues concerning changes in cross section compared to what was considered in the Tier 1 FEIS.  The public will have the opportunity to comment on these changes during the formal public hearing process for the Tier 2 DEISs.  Those comments will be considered and appropriately addressed before approval of Tier 2 FEISs.  Comments received as a result of the public meetings currently being hosted by INDOT will be considered in the development of the DEISs.
I have reviewed the cross sections suggested for Section 6 in the TIER 1 FEIS and I see that they do show retaining walls in some of the locations resulting in a "raised' highway.  This is basically due to the need for the highway to be elevated across existing streets and minimizing right-of-way impacts.  I have just quickly reviewed many sections of the FEIS and ROD and did not see where the word "raised" was used.  If you could tell me where you saw that or similar wording, I can better respond considering the context that it was in.  
The Section 6 managers and appropriate staff are very familiar with the Tier 1 FEIS and its contents related to their section.  I have been involved in discussions with them about capacity and number of lanes.  I understand that you showed the reproductions of some of the pages of the FEIS and/or ROD at the public meeting to the staff.  These documents were marked with the Count Us letterhead and website and there was a misunderstanding about the origin of the materials.  Section 6 staff had not seen the materials, they assumed and as presented, from Count Us website.
On the issue that "no design work has begun", there is some level of "design" that is done to create alternatives and estimate impacts.  This level of design does not provide the detail necessary to begin the purchase of right-of-way in most cases.  "No design work" really means the design for construction with the detail necessary to narrowly identify minimum right-of-way requirements and detailed estimates for construction estimating and actual construction.   We will work with INDOT and the consultants to try to improve the way that this is discussed with the public.  I can understand how this may cause some confusion.

> >                     2. 
> >                     
> >                         I would also request comment regarding the 
> >section 4 meeting that was held in section 5.  Is it appropriate and 
> >legal for a public information/ comment meeting to be held 

> in the region 

> >of another study (section 5), even though previous meetings have 
> >historically been held in existing and available public 

> buildings with 

> >equal capacity and facilities?  (I have made prior complaint 

> regarding 

> >this initial section 4 Tier 2, I-69 Indiana E-to-Indy 3C meeting.) 

The public information meetings have no specific requirements on location.  There are some regulations about public "hearings" which are the meetings required by NEPA following approval of a NEPA document.  INDOT has used these regulations to establish public involvement procedures which include the public meetings which are meant to be similar to the hearings.  Some language related to hearings is in our regulations, including "at a convenient time and place". (23 CFR 771.111(h)(2)(iii))  The meeting location was just off of the main State Route which basically follows the corridor and at the northeastern most end.   This is in the vicinity of the largest population near the corridor.  It does not appear to be an inconvenient location with respect to the entire population meant to be served.  To help serve the community at the other end of the corridor, future public meetings are being considered at a different location.

> >                     3. 
> >                         As a two tiered study, new traffic count 
> >estimations are being sited, but not being made publicly available to 
> >justify the elimination of lanes in these earliest phases of Tier 2 
> >study.  If the traffic counts are in fact now less than had been used 
> >for performance measures in the Tier 1, is it not the case that "Bait 
> >and Switch" tactics have contaminated the entire EIS.  Does the EIS 
> >process have a overall evaluation that protects the public from the 
> >Tiering failing of segmentation?  What is that process and 

> what active 

> >roll does the FHWA play and how broad is the internal FHWA 
> >participation? 

Traffic forecasts for Tier 2 studies are still being developed.  The updated traffic counts and information on the updated corridor model for I-69 and resulting projections will be part of the Tier 2 DEISs documentation and will be released to the public upon approval of the DEISs.  
The traffic forecasts for Tier 2 are being developed have been refined to better take into account the local travel patterns along the I-69 corridor and using the current statewide model which uses updated traffic counts.  The traffic forecasts for the Tier 1 study were developed from the previous version of the statewide model, which was the current model at the time the Tier 1 study was prepared.  In each stage of the study, the most current version of the statewide model has been used.  Our Tier 2 documents will explain the differences between the versions of the model used in Tier 1 and in Tier 2.  
When compared to Tier 1 traffic forecasts, the forecasts developed in Tier 2 may show higher traffic volumes in some locations and lower traffic volumes in others.  Engineering for the alternatives will be developed based on the new traffic data, which in some cases may result in a change in the number of lanes needed at a specific location.  The results of this analysis will be documented as part of the Tier 2 studies.  The Tier 2 studies will include a description of the alternatives considered and an explanation of the reasons for eliminating an alternative from detailed study.  
FHWA is involved in the development of the Tier 1 and Tier 2 documents at a number of levels.  The Indiana Division is responsible for the development and approval but we have had technical reviews from other FHWA experts from both Washington, D.C. and our Resource Center to ensure proper compliance with NEPA and reasonableness of the findings.  Consistency reviews with the Tier 1 documentation will also be conducted.  The use of new and better data is a normal and appropriate part of Tier 2 documentation
I hope this answers your questions.  I apologize for any earlier misunderstanding or confusion that my emails to you might have caused.  For a large project such as this, it is unfortunately true that miscommunication can occur.  
Concerning your INDOT records request, you will have to address those issues to INDOT.  I only know that they are working on them. Sorry, I cannot be of more assistance on that issue.
You also asked a question about how answers to questions becoming directives.  Answers to questions on FHWA websites, such as the Re:NEPA website, are not considered directives or even formal guidance but they are just explanations that we hope are helpful to people with similar issues.  Formal guidance occurs only when there is need to clarify regulations where consistent interpretation might need some assistance.
Feel free to sign up and post questions on the Re: NEPA website.  http://nepa.fhwa.dot.gov/ReNepa/ReNepa.nsf/home
Thanks for your interest in the NEPA process on our transportation projects.  Please let me know if I can clarify anything further or if I misunderstood any of your questions.  I believe I have responded to everything that you have asked in the past couple of weeks.  Please let me know if I have forgotten any of your requests.
  
Tony DeSimone, P.E. 
FHWA-Indiana Division 
(317) 226-5307 
Fax (317) 226-7341 
 

> >  _____  
> >
> >	From: Weingroff, Richard 
> >	Sent: Friday, October 14, 2005 7:46 AM
> >	To: 'John Smith'
> >	Subject: RE: Tier 2 Indiana Corridor 18 section 3: Three
> >questions
> >	
> >	
> >	May I suggest that you await an answer from our Indiana Division
> >Office before deciding whether additional views are needed?
> >	 
> >	Our Division Office reply will confirm whether your
> >communications will be made part of your official comments.  In that
> >regard, I would suggest you provide future communications directly to
> >the Division Office or INDOT rather than to me, since I have 

> no role in

> >the NEPA review of projects.
> >	 
> >	 
> >	 -----Original Message-----
> >	From: John Smith []
> >	Sent: Friday, October 14, 2005 8:33 AM
> >	To: Weingroff, Richard
> >	Subject: Re: Tier 2 Indiana Corridor 18 section 3: Three
> >questions
> >	
> >	
> >
> >		Richard Weingroff,
> >		
> >		    Thank you again for communication.
> >		
> >		    While I have no complaint with your sharing my
> >comments and questions with the Indiana FHWA staff, I am disappointed
> >with this response and will call the FHWA legal department next week
> >requesting a citizen's appeal to your choice of directing my legal
> >questions  away from the FHWA council.   
> >		
> >		    I believe that my questions are regarding legal
> >procedures (with specifics included for example) and therefore are
> >appropriate for the legal department.  Below I have removed the
> >specifics.  Perhaps you will reconsider and allow a citizen these
> >questions be answered by the FHWA legal department.  I have 

> found them

> >very open and informative in the past.
> >		
> >		
> >
> >			1.
> >			
> >			 When a Tier 1 ROD has approved the FEIS which
> >contained expected "Typical Cross Sections" and provided details of
> >numbers of traffic lanes and road way widths, is it 

> appropriate and/or

> >legal for the Tier 2 study to not present these as active 

> options or at

> >least as options that were eliminated for just cause to the public in
> >the first public meeting for the sections?
> >
> >
> >			2. 
> >			
> >			Is it appropriate and legal for a public
> >information/ comment meeting to be held in the region of 

> another study,

> >even though previous meetings have historically been held in 

> the region

> >of study in existing and available public buildings with 

> equal capacity

> >and facilities?  
> >
> >
> >			3.
> >			
> >			Does the EIS process have a overall evaluation
> >that protects the public from the Tiering failing of 

> segmentation?  What

> >is that process and what active roll does the FHWA play and 

> how broad is

> >the internal FHWA participation?
> >
> >
> >
> >		    You did not confirm that my communications will be
> >made part of my official comments to the EIS for Corridor 18 

> study here.

> >I will wait for the FHWA / INDOT in house representitive to 

> confirm or

> >deny that request.
> >		
> >		John Smith
> >		COUNT US!
> >		
> >		
> >		    
> >		
> >		Weingroff, Richard wrote:
> >		
> >
> >			I'm going to ask our Division Office, rather
> >than our Office of Chief Counsel, to address your questions.  As
> >mentioned in an earlier email, our Division Office has delegated
> >approval authority and can best discuss the specifics associated with
> >I-69.
> >			 
> >			 
> >			 -----Original Message-----
> >			From: John Smith []
> >			Sent: Thursday, October 13, 2005 9:05 AM
> >			To: Weingroff, Richard
> >			Subject: Tier 2 Indiana Corridor 18 section 3:
> >Three questions
> >			
> >			
> >			
> >			Richard Weingroff,
> >			
> >			Thank you again for your prompt response.  
> >			
> >			I request FHWA legal department opinions and
> >comments.  Opinions and comments of the NEPA division and other
> >divisions of FHWA appropriate are here requested too.
> >			
> >			My questions:
> >			
> >			1.
> >			
> >			 When a Tier 1 ROD has approved the FEIS which
> >contained expected "Typical Cross Sections" and provided details of
> >numbers of traffic lanes and road way widths, is it 

> appropriate and/or

> >legal for the Tier 2 study to not present these as active 

> options or at

> >least as options that were eliminated for just cause to the public in
> >the first public meeting for the sections?
> >			
> >			   Specifically on the Corridor 18, section 3,
> >3C sections 5 & 6 the numbers of lanes past Bloomington and 

> Martinsville

> >Indiana have been significantly reduced, including total 

> elimination of

> >frontage roads by consultants studying even as they claim no 

> design work

> >has begun.  The "raised" provision has been eliminated with 

> never once

> >public discussion.  No mention of any elimination of 

> capacity or lanes

> >was mentioned to the public in either section 5 or section 6 

> and in fact

> >the consultants to section 6 were oblivious to this content 

> of the FEIS

> >and the fact that they had even made this change.
> >			
> >			2. 
> >			
> >			    I would also request comment regarding the
> >section 4 meeting that was held in section 5.  Is it appropriate and
> >legal for a public information/ comment meeting to be held 

> in the region

> >of another study (section 5), even though previous meetings have
> >historically been held in existing and available public 

> buildings with

> >equal capacity and facilities?  (I have made prior complaint 

> regarding

> >this initial section 4 Tier 2, I-69 Indiana E-to-Indy 3C meeting.)
> >			
> >			3.
> >			    As a two tiered study, new traffic count
> >estimations are being sited, but not being made publicly available to
> >justify the elimination of lanes in these earliest phases of Tier 2
> >study.  If the traffic counts are in fact now less than had been used
> >for performance measures in the Tier 1, is it not the case that "Bait
> >and Switch" tactics have contaminated the entire EIS.  Does the EIS
> >process have a overall evaluation that protects the public from the
> >Tiering failing of segmentation?  What is that process and 

> what active

> >roll does the FHWA play and how broad is the internal FHWA
> >participation?
> >			
> >			
> >			
> >			    Thank you for passing my questions to the
> >appropriate divisions of FHWA and for your responses.  Please forward
> >this e-mail to any division or office that might find these 

> questions or

> >the procedure of interest.  Comments from the legal department is
> >specifically requested, but any who would chose to send comment or
> >questions would be welcomed.
> >			
> >			    If the legal department of the FHWA chooses
> >not to respond to these questions, is the civilian public 

> provided any

> >option other than hiring legal council to challenge these 

> issues in the

> >court system?
> >			
> >			    Please include this document in the EIS for
> >I-69 Evansville to Indianapolis.  
> >			
> >			
> >			John Smith
> >			COUNT US!
> >			
> >			
> >			
> >			
> >			
> >			
> >			Weingroff, Richard wrote:
> >			
> >			
> >			Our Division Office in Indianapolis has the
> >delegated authority to act for the FHWA on the EIS.  I 

> provided a copy

> >of your email yesterday to the Division Office, as well as to our
> >Headquarters NEPA office.  I will pass your new message on as well.  
> >			
> >			
> >			
> >			-----Original Message-----
> >			
> >			From: John Smith []
> >			
> >			Sent: Thursday, October 13, 2005 6:41 AM
> >			
> >			To: Weingroff, Richard
> >			
> >			Subject: Re: FW: Section six consultants
> >ignorant of FEIS Cross Sections
> >			
> >			Approved by ROD
> >			
> >			
> >			
> >			
> >			
> >			Richard,
> >			
> >			
> >			
> >			    Thank you.  I appreciate your quick
> >response. 
> >			
> >			
> >			
> >			    If anyone in your organization would like to
> >discuss any aspect of 
> >			
> >			this INDOT plan, or even the National I-69 /
> >Corridor 18 Boondoggle, I 
> >			
> >			am ready to talk and to be heard.  I appreciate
> >the EIS process, but 
> >			
> >			when for 14 years 90+% of the public can say "no
> >build" or "build this 
> >			
> >			on the least expensive/ least damaging route
> >(US41/I70)" with our 
> >			
> >			precious 2 minute comments, and then be TOTALLY
> >ignored in mass.... well 
> >			
> >			it is getting harder to listen to the 45 minute
> >power points of the 
> >			
> >			consultants that talk about everything least
> >important to the public.
> >			
> >			
> >			
> >			John Smith
> >			
> >			COUNT US!
> >			
> >			
> >			
> >			
> >			
> >			
> >			
> >			
> >			Weingroff, Richard wrote:
> >			
> >			
> >			
> >			  
> >			
> >			I wanted to acknowledge receipt of your email,
> >which I have forwarded to our environmental staff for their 

> information.

> >			
> >			
> >			
> >			-----Original Message-----
> >			
> >			From: John Smith []
> >			
> >			Sent: Wednesday, October 12, 2005 12:33 PM
> >			
> >			To:  section6@i69indyevn.org
> >			
> >			Cc: Weingroff, Richard; FHWA, ExecSecretariat
> >			
> >			Subject: Section six consultants ignorant of
> >FEIS Cross Sections
> >			
> >			Approved by ROD
> >			
> >			
> >			
> >			
> >			
> >			Tim Miller,
> >			
> >			
> >			
> >			   The formatting of my previous e-mail did not
> >work, this is that 
> >			
> >			document that should be printed and included in
> >the EIS and your 
> >			
> >			official comments with the Table and the photo
> >included.
> >			
> >			
> >			
> >			Thank you,
> >			
> >			
> >			
> >			John Smith
> >			
> >			http://www.i69tour.org/HNTBc01.html
> >			
> >			
> >			
> >			 
> >			
> >			    
> >			
> >			  
> >			
> >			
> >			
> >			  
> >			
> >			
> >			  
> >
> >
> >  
> >

>