[Federal Register Volume 75, Number 185 (Friday, September 24, 2010)]
[Notices]
[Pages 58380-58382]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-23968]
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ENVIRONMENTAL PROTECTION AGENCY
[FRL-9206-3]
Notice of a Regional Project Waiver of Section 1605 (Buy
American) of the American Recovery and Reinvestment Act of 2009 (ARRA)
to the Town of Bristol, RI
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice.
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SUMMARY: The EPA is hereby granting a waiver of the Buy American
requirements of ARRA Section 1605 under the authority of Section
1605(b)(1) [inconsistent with the public interest] to the Town of
Bristol, Rhode Island (Town) for the utilization and installation of
two influent and two effluent sluice gates for the facility's two final
clarifiers as part of a larger overall wastewater treatment plant
upgrade project. This is a project specific waiver and only applies to
the use of the specified product for the ARRA project being proposed.
Any other ARRA recipient that wishes to use the same product must apply
for a separate waiver based on project specific circumstances. The Town
had been assured by the manufacturer that the sluice gates would be
made in a facility in Massachusetts. However, the manufacturer informed
the Town of Bristol in writing on July 8, 2010 that
[[Page 58381]]
due to an internal miscommunication, the sluice gates that were
delivered to the site for installation were actually manufactured in
Canada, and not in Massachusetts. The manufacturer has offered to
provide these sluice gates at no charge other than the cost for freight
and field service. Re-ordering the sluice gates and having them
manufactured in the Massachusetts facility would delay the upgrade work
to the final clarifiers by at least three months. Unfortunately, the
existing final clarifier equipment is failing, and given that existing
wastewater flows at the wastewater treatment plant are at seasonal
lows, the most opportune time to install the sluice gates would be
during the July and August time frame. Based upon information submitted
by the Town's consulting engineer, EPA has concluded that requiring the
installation of domestic manufactured sluice gates, which would extend
the time frame by at least three months, would be inconsistent with the
public interest, and that a waiver of the Buy American provisions is
justified. The Regional Administrator is making this determination
based on the review and recommendations of the Municipal Assistance
Unit. The Assistant Administrator of the Office of Administration and
Resources Management has concurred on this decision to make an
exception to the requirements of Section 1605(a) of ARRA. This action
allows the installation of the foreign manufactured influent and
effluent sluice gates, as specified in its July 8, 2010 request.
DATES: Effective Date: September 15, 2010.
FOR FURTHER INFORMATION CONTACT: Katie Connors, Environmental Engineer,
(617) 918-1658, or, David Chin, Environmental Engineer, (617) 918-1764,
Municipal Assistance Unit (CMU), Office of Ecosystem Protection (OEP),
U.S. EPA, 5 Post Office Square, Suite 100, Boston, MA 02109-3912.
SUPPLEMENTARY INFORMATION: In accordance with ARRA Section 1605(c), the
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 Town of Bristol, Rhode Island for the installation
of two influent and two effluent sluice gates for two final clarifiers
as part of a wastewater treatment plant upgrade project. Based on the
information provided by the Town's design engineer, EPA has determined
that it is inconsistent with the public interest for the Town to
further delay the project and pursue the purchase of domestically
manufactured sluice gates.
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 a public works project unless all of the
iron, steel, and manufactured goods used in the project is produced in
the United States, or unless a waiver is provided to the recipient by
the head of the appropriate agency, here the EPA. A waiver may be
provided under Section 1605(b) 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.
Consistent with the direction of OMB's regulation at 2 CFR 176.120,
EPA will generally consider a waiver request with respect to components
that were specified in the bid solicitation or in a general/primary
construction contract or those made after obligating ARRA funds for a
project to be a ``late'' request. However, in this case EPA has
determined that the Town's request, though made after the date the
contract was signed, can be evaluated as timely because the
manufacturer informed the general contractor on July 8, 2010 that due
to an internal miscommunication, the sluice gates that were delivered
to the construction site had been manufactured in its Quebec, Canada
facility. The need for a waiver was not determined until after the
general contractor was informed of the miscommunication and delivery of
the foreign manufactured sluice gates. The recipient could not
reasonably have foreseen the need for a determination until informed of
the error. Accordingly, EPA will evaluate the request as if it were
timely.
The Town is requesting a waiver of the Buy American provision for
installation of two influent and two effluent sluice gates for the
facility's two final clarifiers as part of a larger overall wastewater
treatment plant upgrade project. The planned upgrades to the final
clarifiers include removal and replacement of the following equipment:
(a) Two clarifier mechanisms including trusses supporting the sludge
rakes; scum skimmers; drive mechanisms and a new walkway; (b) two
influent and two effluent sluice gates; (c) scum removal equipment; and
(d) effluent weirs and troughs. The sluice gates are necessary for
isolating each final clarifier and are currently not functional as they
are remain ``stuck'' in the open position. The existing clarifier
mechanisms are over twenty years old and in need of immediate repair.
The mechanisms are approximately 75 feet in diameter and scrape the
settled sludge to the sludge pump for withdrawal and processing. Each
mechanism also incorporates scum removal rake arms and scum troughs
that provide scum removal from the surface of the tanks.
One of the final clarifier skimmer arm supports began to fail in
June of 2009. The supports became bent making the entire mechanism
inoperable. In order to allow the continued removal of the sludge from
the bottom of the tank, the sludge collection arms needed to be
removed. Since the existing sluice gates were inoperable, the Town was
required to hire a diver to disconnect the skimmer support arms.
Immediately after the failure of the first final clarifier skimmer, the
skimmer arm for the second final clarifier also failed and was also
removed. Since the removal of the skimmer arms last summer and until
the completion of these proposed upgrades, wastewater treatment plant
personnel have been manually removing scum from these tanks.
The Town's general contractor submitted the sluice gate shop
drawings for review in February of 2010. The Town's design engineer
reviewed the shop drawings and determined that the sluice gates were
manufactured in Canada and would not meet the Buy American
requirements. This was conveyed to the general contractor in March of
2010. The general contractor was informed by the manufacturer that it
had the capability to manufacture the sluice gates at its Orange,
Massachusetts facility. Based on the belief of all parties that this
would satisfy the Buy American requirements, the project proceeded and
the gates were scheduled for delivery and installation in July of 2010.
All of the other final clarifier equipment has been delivered to the
site and is ready for installation, pending installation of the new
sluice gates.
Unfortunately, the manufacturer informed the general contractor on
July 8, 2010 that due to an internal miscommunication, the sluice gates
that were delivered to the construction site had been manufactured in
its Quebec, Canada facility, not in Orange, Massachusetts. The Town had
been assured by the manufacturer in March of 2010 that the sluice gates
would be made in the Orange, Massachusetts manufacturing facility. The
[[Page 58382]]
manufacturer is aware of the scheduling implications and has offered to
provide the sluice gates at no cost, other than for freight and field
service charges. The Town, which could not reasonably foresee the need
for a waiver to the Buy American provision of the ARRA, submitted a
waiver request immediately (July 9th, 2010) after they were informed by
the manufacturer of the delivery oversight.
Re-ordering the gates and having them manufactured in the
Massachusetts facility would delay the upgrade work to the final
clarifiers by at least three months. Unfortunately, the existing final
clarifier equipment has already failed, and since existing wastewater
flows at the wastewater treatment plant are currently at seasonal lows,
the most opportune time to install the new sluice gates would be during
the July and August time frame.
Furthermore, the purpose of the ARRA is to stimulate economic
recovery by funding current infrastructure construction, not to delay
or require the substantial redesign of projects that are ``shovel
ready,'' such as this project at the Bristol, Rhode Island Wastewater
Treatment Plant. The implementation of the ARRA Buy American
requirements in this case would result in additional cost for this
project and unreasonable delay in its completion. Such delay would also
directly conflict with a fundamental economic purpose of ARRA, which is
to create or retain jobs. More importantly, the imposition of the Buy
American requirement would result in additional risk to water quality
protection.
The Municipal Assistance Unit (CMU) has reviewed this waiver
request and has determined that the supporting documentation provided
by the Town's design engineer established a proper basis to specify
that using the domestic manufactured good would be inconsistent with
the public interest of the Town of Bristol, Rhode Island. The
information provided is sufficient to meet the following criteria
listed under Section 1605(b)(1) of the ARRA and in the April 28, 2009
Memorandum: Applying these requirements would be inconsistent with the
public interest.
The March 31, 2009 Delegation of Authority Memorandum provided
Regional Administrators with the temporary authority to issue
exceptions to Section 1605 of the 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 using a domestically available
alternative manufactured good would be inconsistent with the public
interest, the Town of Bristol, Rhode Island is hereby granted a waiver
from the Buy American requirements of Section 1605(a) of Public Law
111-5. This waiver permits use of ARRA funds for the installation and
utilization of foreign manufactured influent and effluent sluice gates
as documented in the Town's waiver request submittal dated July 9,
2010. 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: September 15, 2010.
Ira W. Leighton,
Acting Regional Administrator, EPA Region 1--New England.
[FR Doc. 2010-23968 Filed 9-23-10; 8:45 am]
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