[Federal Register Volume 75, Number 88 (Friday, May 7, 2010)]
[Notices]
[Pages 25244-25246]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-10911]
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ENVIRONMENTAL PROTECTION AGENCY
[FRL-9145-4]
Notice of a Project Waiver of Section 1605 (Buy American
Requirement) of the American Recovery and Reinvestment Act of 2009
(ARRA) to Warren County, OH (Warren County)
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice.
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SUMMARY: The EPA is hereby granting a project waiver of the Buy
American requirements of ARRA Section 1605 under the authority of
Section 1605(b)(2) [manufactured goods are not produced in the United
States of a satisfactory quality] to Warren County for the purchase of
a Trojan UV 4000 Plus medium-pressure, high-intensity ultraviolet
disinfection system to treat effluent from the Lower Little Miami River
Wastewater Treatment Plant. This is a project-specific waiver and only
applies to the use of the specified product for the ARRA funded project
being proposed. Any other ARRA project that may wish to use the same
product must apply for a separate waiver based on project-specific
circumstances. This disinfection system, which is supplied by Trojan
Technologies of London, Ontario, is manufactured in Canada and meets
[[Page 25245]]
Warren County's performance specifications and requirements. The Acting
Regional Administrator is making this determination based on the review
and recommendations of EPA Region 5's Water Division. Warren County has
provided sufficient documentation to support its request. The Assistant
Administrator of the Office of Administration and Resources Management
has concurred on this decision to make an exception to Section 1605 of
ARRA. This action permits the purchase of a Trojan UV 4000 Plus medium-
pressure, high-intensity ultraviolet disinfection system for the Lower
Little Miami River Wastewater Treatment Plant that may otherwise be
prohibited under Section 1605(a) of the ARRA.
DATES: Effective Date: January 26, 2010.
FOR FURTHER INFORMATION CONTACT: Andrew Lausted, SRF Program Manager
(312) 886-0189, or Puja Lakhani, Office of Regional Counsel, (312) 353-
3190, U.S. EPA Region 5, 77 W. Jackson Blvd., Chicago, IL 60604.
SUPPLEMENTARY INFORMATION: In accordance with ARRA section 1605(c) and
pursuant to section 1605(b)(2) of Public Law 111-5, the Buy American
requirements, EPA hereby provides notice that it is granting a project
waiver to Warren County for the acquisition of a Trojan 4000 Plus
medium-pressure, high-intensity ultraviolet disinfection system that is
manufactured in Canada.
Section 1605 of the ARRA requires that none of the appropriated
funds may be used for the construction, alteration, maintenance, or
repair of a public building or public work unless all of the iron,
steel, and manufactured goods used in the project are produced in the
United States, or unless a waiver is provided to the recipient by the
head of the appropriate agency, here EPA. A waiver may be provided if
EPA determines that (1) Applying these requirements would be
inconsistent with the public interest; (2) iron, steel, and the
relevant manufactured goods are not produced in the United States in
sufficient and reasonably available quantities and of a satisfactory
quality; or (3) inclusion of iron, steel, and the relevant manufactured
goods produced in the United States will increase the cost of the
overall project by more than 25 percent.
These manufactured goods will provide wastewater effluent
disinfection for Warren County's Lower Little Miami River Wastewater
Treatment Plant. Early in the design process, the County decided to use
a UV system that utilizes a medium pressure UV lamp. Warren County's
plant is relatively large and a medium pressure UV system uses many
fewer UV lamps than a low pressure system, and consequently has reduced
operation and maintenance costs and requires a much smaller building to
house the UV system.
While there are two companies that manufacture medium pressure UV
systems that are marketed in the United States for use in wastewater
disinfection, each manufacturer implements the technology differently
which generally requires a completely different facility layout. Based
on cost and technical concerns, the County decided in 2008--prior to
the enactment of ARRA--to finalize plant design using the Trojan 4000
Plus medium-pressure, high intensity ultraviolet disinfection system
with an open-channel configuration that will meet the capacity
requirements of the project.
The April 28, 2009 EPA HQ Memorandum, ``Implementation of Buy
American provisions of Public Law 111-5, the `American Recovery and
Reinvestment Act of 2009','' defines reasonably available quantity as
``the quantity of iron, steel, or relevant manufactured good is
available or will be available at the time needed and place needed, and
in the proper form or specification as specified in the project plans
and design.''
Here, the applicant met the requirements specified for the
availability inquiry by conducting an extensive investigation into all
possible sources for medium-pressure, high intensity ultraviolet
disinfection systems that can meet the capacity requirements of the
project. The one potential alternative to the Trojan 4000 Plus system,
an American-manufactured, medium-pressure ultraviolet disinfection
system for wastewater, was a closed-vessel, in-pipe system rather than
an open-channel system. Use of this alternative would require a
substantial and costly redesign of the disinfection facility from the
project specifications as finalized in 2008. Based on the information
provided to EPA and to the best of our knowledge at this time, because
the Trojan 4000 Plus is the only system that can meet the design
specification for an open-channel medium-pressure high-intensity UV
disinfection system, EPA believes that there is no domestic product of
satisfactory quality available to meet this justified specification.
The purpose of the ARRA is to stimulate economic recovery in part
by funding current infrastructure construction, and not to delay
projects that are ``shovel ready'' by requiring communities such as
Warren County to revise substantially their project design and
specifications, start the bidding process again, and potentially choose
a more costly, less efficient project. In this situation, the
imposition of ARRA Buy American requirements on a project otherwise
eligible for ARRA State Revolving Fund assistance would result in
unreasonable delay and thus displace the ``shovel ready'' status for
this project. To further delay project implementation is in direct
conflict with a fundamental economic purpose of the ARRA, which is to
create or retain jobs.
Based on the submitted waiver request, EPA's national contractor
prepared a technical assessment report dated November 3, 2009. The
report determined that the waiver request submittal was complete, that
adequate technical information was provided, and that there were no
significant weaknesses in the justification that was provided. The
report confirmed the waiver applicant's claim that there are no
comparable domestic products that can meet the design specifications
for the project. Therefore, based on the information provided to EPA
and to the best of our knowledge at this time, the medium-pressure,
high-intensity open-channel configuration ultraviolet disinfection
system necessary for this project is not manufactured in the United
States, and no other U.S. manufactured product can meet Warren County's
project performance specifications and requirements.
The State and Tribal Programs Branch has reviewed this waiver
request and has determined that the supporting documentation provided
by Warren County is sufficient to meet the criteria listed under
Section 1605(b) of the ARRA and in the April 28, 2009, ``Implementation
of Buy American provisions of Public Law 111-5, the `American Recovery
and Reinvestment Act of 2009' Memorandum'': Iron, steel, and the
manufactured goods are not produced in the United States in sufficient
and reasonably available quantities and of a satisfactory quality. The
basis for this project waiver is the authorization provided in Section
1605(b)(2) of the ARRA. Due to the lack of production of this item in
the United States in sufficient and reasonably available quantities and
of a satisfactory quality to meet Warren County's project performance
specifications and requirements, a waiver from the Buy American
requirement is justified.
The March 31, 2009, Delegation of Authority Memorandum provided
Regional Administrators with the authority to issue exceptions to
Section 1605 of the ARRA within the geographic boundaries of their
respective regions and with respect to requests by
[[Page 25246]]
individual grant recipients. Having established both a proper basis to
specify the particular good required for this project, and that this
manufactured good was not available from a producer in the United
States, Warren County is hereby granted a waiver from the Buy American
requirements of Section 1605(a) of Public Law 111-5 for the purchase of
a Trojan 4000 Plus medium-pressure, high-intensity ultraviolet
disinfection system using ARRA funds as specified in the community's
request of October 29, 2009. This supplementary information constitutes
the detailed written justification required by Section 1605(c) for
waivers ``based on a finding under subsection (b).''
Authority: Pub. L. 111-5, section 1605.
Dated: January 26, 2010.
Walter W. Kovalick,
Acting Regional Administrator, Region 5.
[FR Doc. 2010-10911 Filed 5-6-10; 8:45 am]
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