[Federal Register Volume 75, Number 105 (Wednesday, June 2, 2010)]
[Notices]
[Pages 30828-30829]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-13225]
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ENVIRONMENTAL PROTECTION AGENCY
[FRL-9157-6]
Notice of a Project Waiver of Section 1605 (Buy American
Requirement) of the American Recovery and Reinvestment Act of 2009
(ARRA) to the Canaan Valley Public Service District, West Virginia
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice.
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SUMMARY: The Regional Administrator of EPA Region 3 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 in sufficient and reasonably available
quantities and of a satisfactory quality] to the Canaan Valley Public
Service District (CVPSD) for the purchase of a membrane bioreactor
system (MBR), supplied by Enviroquip Inc., that contains a primary
component not manufactured in America, at two of its Wastewater
Treatment Plants (WWTPs). CVPSD indicates that the MBR treatment
process is necessary to achieve the wastewater treatment levels
required by the National Pollutant Discharge Elimination System (NPDES)
permits issued for these WWTPs. The membrane filtration equipment under
consideration is manufactured by a company located in Japan and no
United States manufacturer produces an alternative that meets the
CVPSD's technical specifications. 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 the specific
project circumstances. The Regional Administrator is making this
determination based on the review and recommendations of the EPA Region
III, Water Protection Division, Office of Infrastructure and
Assistance. The CVPSD has provided sufficient documentation to support
its request. The Assistant Administrator of the EPA's 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 membrane filtration cassettes for the proposed project
being implemented by the CVPSD.
DATES: Effective Date: May 17, 2010.
FOR FURTHER INFORMATION CONTACT: Robert Chominski, Deputy Associate
Director, (215) 814-2162, or David McAdams, Environmental Engineer,
(215) 814-5764, Office of Infrastructure & Assistance (OIA), Water
Protection Division, U.S. EPA Region III, 1650 Arch Street,
Philadelphia, PA 19103-2029.
SUPPLEMENTARY INFORMATION: In accordance with ARRA Sections 1605(c) and
1605(b)(2), EPA hereby provides notice that it is granting a project
waiver of the requirements of Section 1605(a) of Public Law 111-5, Buy
American requirements to the Canaan Valley Public Service District
(CVPSD) for the acquisition of an ``Enviroquip MBR system.'' CVPSD has
been unable to find an MBR system that contains American-made MBR
cassettes to meet its specific wastewater requirements.
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 unless a waiver is provided to the recipient by EPA. A
waiver may be provided if EPA determines that (1) applying these
requirements would be inconsistent with 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.
CVPSD's waiver request is to allow the purchase of the Enviroquip
MBR system with four membrane filtration cassettes, manufactured by
Kubota Inc. of Japan, for use in improvements to two existing WWTPs in
West Virginia. This project will upgrade two of its existing
[[Page 30829]]
WWTPs by adding a new MBR treatment process. The membrane filtration
cassette is an integral component of the MBR treatment process because
it separates the treated wastewater from the mixed liquor which comes
from the biological reactors, before the treated wastewater is
disinfected and discharged. After an engineering analysis of alternate
treatment processes, the CVPSD determined MBR to be the most
environmentally sound and cost effective solution. The MBR is an
advanced waste water treatment process which is designed to meet the
high quality effluent requirements of the waste load allocation under
the NPDES permit. In addition, in anticipation of procuring the MBR
system, the CVPSD has already incorporated specific technical design
requirements for installation of membrane filter cassettes with the MBR
treatment process at their WWTPs, including specific tankage footprint,
geometry and configuration. To require CVPSD to redesign its project
would cause an unacceptable delay to the initiation of construction.
The CVPSD has provided information to the EPA demonstrating that
there are no membrane filtration cassettes manufactured in the United
States in sufficient and reasonable quantity and of a satisfactory
quality to meet the required technical specification. Four companies
were considered for the membrane filtration cassettes, none based in
the United States. The CVPSD has performed market research but was
unsuccessful in its effort to locate any domestic manufacturers of
membrane filtration cassettes for WWTPs.
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.'' The CVPSD has incorporated specific technical design
requirements for installation of membrane filtration cassettes at its
WWTPs.
The purpose of the ARRA is to stimulate economic recovery in part
by funding current infrastructure construction, not to delay projects
that are ``shovel ready'' by requiring utilities, such as the CVPSD, to
revise their standards and specifications, institute a new bidding
process, and potentially choose a more costly, less efficient project.
The imposition of ARRA Buy American requirements on such projects
otherwise eligible for State Revolving Fund assistance would result in
unreasonable delay and thus displace the ``shovel ready'' status for
this project. To further delay construction is in direct conflict with
a fundamental economic purpose of the ARRA, which is to create or
retain jobs.
Based on additional research conducted by EPA's Office of
Infrastructure and Assistance (OIA) in Region 3, and to the best of the
Region's knowledge at the time of review, there do not appear to be
other membrane filtration cassettes manufactured domestically that
would meet the CVPSD's technical specification. EPA's national
contractor prepared a technical assessment report dated January 9, 2010
based on the waiver request submitted. This report included a detailed
review intended to enable EPA to determine if any company could be
considered to substantially transform these cassettes in the United
States. However, sufficient information was not available or made
available to establish either performance characteristics for any
potential alternative product, or the substantial transformation of any
such product in the United States. Accordingly, 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 provided. The report confirmed the waiver
applicant's claim that there are no American-made membrane filtration
cassettes for use in MBRs in WWTPs.
The OIA has reviewed this waiver request and to the best of our
knowledge at the time of review has determined that the supporting
documentation provided by the CVPSD is sufficient to meet the criteria
listed under Section 1605(b) 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). Due to the lack of production of this
product in the United States in sufficient and reasonably available
quantities and of a satisfactory quality in order to meet the CVPSD's
technical specifications, 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 ARRA within the geographic boundaries of their
respective regions and with respect to requests by 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, the Canaan
Valley Public Service District is hereby granted a waiver from the Buy
American requirements of Section 1605(a) of Public Law 111-5 for the
purchase of four membrane filtration cassettes using ARRA funds as
specified in the CVPSD's request of December 16, 2009. This
supplementary information constitutes the detailed written
justification required by Section 1605(c) for waivers ``based on a
finding under subsection (b).''
Authority: Public Law 111-5, section 1605.
Dated: May 17, 2010.
W. C. Early,
Acting Regional Administrator, Region III.
[FR Doc. 2010-13225 Filed 6-1-10; 8:45 am]
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