[Federal Register Volume 75, Number 185 (Friday, September 24, 2010)]
[Notices]
[Pages 58382-58383]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-23988]
-----------------------------------------------------------------------
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 City of Lowell, MA
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice.
-----------------------------------------------------------------------
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 City of
Lowell, Massachusetts (City) for the purchase of a foreign manufactured
30-inch diameter pipe tee fitting for a finished water pipe at the
Lowell Water Treatment Facility. 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 proposed work involved repairing an existing 30-inch
cement lined ductile iron fitting on a finished water line in the
Lowell Water Treatment Facility. Based upon information submitted by
the City's consulting engineer, EPA has concluded that, under the given
circumstances (i.e. emergency standby situation, the need to minimize
disruption in water transmission service), requiring the installation
of an alternative domestic manufactured pipe fitting 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 purchase and installation of the foreign
manufactured 30-inch pipe fitting media, as specified in its June 18,
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 City of Lowell, Massachusetts for the purchase of
a non-domestic 30-inch diameter pipe fitting for a finished water pipe
at the Lowell Water Treatment Facility. EPA has evaluated the City's
basis for procuring a 30-inch diameter pipe fitting from China at a
cost of $4,000. Based on the information provided by the City's design
engineer, EPA has determined that it is inconsistent with the public
interest for the City to have pursued the purchase of a domestically
manufactured 30-inch diameter pipe fitting under the specific
circumstances encountered by the City.
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
[[Page 58383]]
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.
When a recipient or sub-recipient has used foreign iron, steel,
and/or manufactured goods for an ARRA project without authorization, as
is the case here, OMB's regulation at 2 CFR 176.130 directs EPA to take
appropriate action, which may include processing a determination
concerning the inapplicability of Section 1605 of ARRA in accordance
with 2 CFR 176.120. Consistent with the direction of 2 CFR 176.120, EPA
will generally consider a waiver request made after obligating ARRA
funds for a project to be a ``late'' request. However, in this case EPA
has determined that the City's request, though made after the date the
contract was signed and after use of the foreign pipe fitting, can be
evaluated as timely because the City could not reasonably have foreseen
the need for such a determination until after initiating the work.
Accordingly, EPA will evaluate the request as if it were timely.
The City is requesting a waiver of the Buy American provision for a
30-inch diameter pipe fitting that was manufactured in China which
replaced an existing 30-inch diameter cement lined ductile iron fitting
on a finished water line at the Lowell Water Treatment facility.
According to the City's design engineer, the existing 30-inch diameter
pipe fitting had been leaking for some time at the threaded connection
with a 2-inch air release valve. The original intent of the City was to
remove the air release valve, clean the threads, perform the necessary
repairs, and re-install the existing 30-inch fitting. However, in the
event of a possible break in the pipe delivery system or if the
existing fitting failed during the repair work, a new 30-inch diameter
pipe fitting had to be on-site on an emergency standby basis. As a
result, the City explored having a 30-inch diameter pipe fitting on-
site before they could start any additional repair work.
During the week of May 3rd, 2010, the City was informed by three
suppliers/vendors that a 30-inch diameter domestic pipe fitting would
not be available on an emergency standby basis unless the City
purchased it outright. Based on information provided by the City's
consulting engineer, due to the large size of the fitting, vendors
would only make their imported 30-inch tee pipe fittings available on
standby status, but not their domestic pipe fittings. As a result, no
domestic-made fittings of that size were available for stand-by in an
emergency situation that would meet technical specifications. The City
could not find a supplier/vendor that would promise right of first
refusal on a domestic manufactured pipe fitting without purchasing it
in full. None of the available vendors would allow the City the
opportunity to return a 30-inch diameter domestic pipe fitting, if the
City had decided on not installing it.
The City decided to order a 30-inch diameter foreign manufactured
pipe fitting (made in China at a cost to the City of Lowell of $4,000)
to have it available on an emergency standby basis to minimize plant
shutdown and any disruption of water service delivery, in the event
total replacement became necessary or if the pipe delivery system
failed. The City had planned to repair and re-install the existing pipe
fitting, but once the repair work had begun, it was determined that
complete replacement was the proper approach to take. During the week
of June 14th, the new foreign manufactured 30-inch diameter pipe
fitting was installed. Fortunately, and more importantly, no disruption
of water transmission service took place due to proper planning. The
City then made the request to the EPA for a waiver on June 18, 2010,
immediately after the emergency replacement work took place and it
could not reasonably foresee the need for such a determination until
after initiating the repair work and determining that a complete
replacement of the pipe fitting was the proper course of action.
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 Lowell Water Treatment Plant. The
imposition of ARRA Buy American requirements in this case would have
likely resulted in unreasonable additional cost for this project and
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 could have resulted in a risk to
public health had water service been interrupted for any extended
period of time.
The Municipal Assistance Unit (CMU) has reviewed this waiver
request and has determined that the supporting documentation provided
by the City's design engineer established a proper basis to specify
that using the domestic manufactured good would be inconsistent with
the public interest of the City of Lowell. 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 City of Lowell, Massachusetts 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 purchase of a
foreign manufactured 30-inch diameter pipe fitting documented in the
City's waiver request submittal dated June 18, 2010. 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: September 15, 2010.
Ira W. Leighton,
Acting Regional Administrator, EPA Region 1--New England.
[FR Doc. 2010-23988 Filed 9-23-10; 8:45 am]
BILLING CODE 6560-50-P