[Federal Register Volume 75, Number 208 (Thursday, October 28, 2010)]
[Notices]
[Pages 66373-66375]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-27279]
=======================================================================
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
[FRL-9218-5]
Notice of a Project Waiver of Section 1605 (Buy American
Requirement) of the American Recovery and Reinvestment Act of 2009
(ARRA) to the Newport Borough Water Authority, Pennsylvania
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice.
-----------------------------------------------------------------------
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 Newport Borough Water
Authority (NBWA) for the purchase of membrane filtration cassettes,
supplied by GE Water & Process Technologies (GE), that contains a
primary component not manufactured in America, at its new Water
Treatment Plant (WTP). NBWA indicates that the membrane filtration
cassettes at its new WTP are necessary to replace groundwater wells
that cannot meet the system demands during drought conditions and
provide for the removal of Cryptosporidium and Giardia. The membrane
cassettes under consideration are manufactured by a company located in
Hungary and no United States manufacturer produces an
[[Page 66374]]
alternative that meets the NBWA'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 NBWA 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 NBWA.
DATES: Effective Date: October 7, 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 Newport Borough Water Authority (NBWA) for
the acquisition of a ``GE ZeeWeed[reg] 500 D membrane cassettes.'' NBWA
has been unable to find membrane filtration equipment that contains
American-made membrane cassettes to meet its specific water
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.
EPA has determined that NBWA's waiver request may be treated as
timely even though the request was made after the construction contract
was signed. Consistent with the direction of the OMB Guidance at 2 CFR
176.120, EPA has evaluated the NBWA's request to determine if the
request, though made after the contract date, can be treated as if it
were timely made. EPA will generally regard waiver requests with
respect to components that were specified in the bid solicitation or in
a general/primary construction contract as ``late'' if submitted after
the contract date. However, in this case EPA has determined that the
NBWA's request may be treated as timely because the need for a waiver
was not foreseeable at the time the contract was signed. The project
was bid and the general contractor for the NBWA project submitted
documentation that the equipment utilized in preparing their bid met
the ARRA Buy American provisions. Contracts were awarded in December
2009. GE initially believed that its ZeeWeed[reg] 500 D membrane
cassettes, though manufactured outside of the United States, would
fulfill the Buy American provisions through the Substantial
Transformation test. In May 2010, GE sent a letter to the General
Contractor stating that the membrane cassettes would not be
substantially transformed in the United States. NBWA responded back to
GE inquiring if the cassettes were the only piece of equipment in the
ZeeWeed[reg] 500 D ultra filtration membrane system that would require
a Buy American waiver if the product was used. GE responded back on
July 14, 2010 that only the cassettes required the Buy American waiver.
The need for a waiver was not determined until after the contractor had
completed their review of information provided by GE and had confirmed
that there were no domestically made membrane cassettes available to
meet project specifications. Accordingly, EPA will evaluate the request
as a timely request.
NBWA's waiver request is to allow for the purchase of the GE
ZeeWeed[reg] 500 D ultra filtration membrane system with thirty-two
membrane filtration cassettes, manufactured by GE Water & Process
Technologies of Hungary, for use in a new WTP in Pennsylvania. The
membrane filtration cassettes are an integral component of the ultra
filtration membrane process because it achieves the 4 log removal of
Cryptosporidium and Giardia from drinking water. After an engineering
analysis of alternate treatment processes, the NBWA determined that the
ultra filtration membrane system to be the most environmentally sound
and cost effective solution. The ultra filtration membrane system is an
advanced water treatment process which is designed to achieve 4 log
removal of Cryptosporidium and Giardia. In addition, in anticipation of
procuring the ultra filtration membrane system, the NBWA has already
incorporated specific technical design requirements for installation of
membrane filter cassettes with the ultra filtration membrane process at
their WTP, including specific tankage footprint, geometry and
configuration. To require NBWA to redesign its project would cause an
unacceptable delay to the completion of the project.
The NBWA 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. Three companies
were considered for the membrane filtration cassettes that either
manufactured their membranes outside the United States or did not meet
the specifications of the project. The NBWA has performed market
research but was unsuccessful in its effort to locate any domestic
manufacturers of membrane filtration cassettes for its WTP.
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 that 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 NBWA has incorporated specific technical design
requirements for installation of membrane filtration cassettes at its
WTP.
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 NBWA, 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
[[Page 66375]]
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 NBWA's technical specification. EPA's national
contractor prepared a technical assessment report dated August 18, 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 available from a domestic manufacturer in the proper form or
specification as specified in the project plans and design, and the
quality specified in the project plans and designs.
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 NBWA 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 NBWA'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
Newport Borough Water Authority is hereby granted a waiver from the Buy
American requirements of Section 1605(a) of Public Law 111-5 for the
purchase of thirty-two membrane filtration cassettes using ARRA funds
as specified in the Newport Borough Water Authority's request of August
4, 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: October 7, 2010.
W.C. Early,
Acting Regional Administrator, U.S. Environmental Protection Agency,
Region III.
[FR Doc. 2010-27279 Filed 10-27-10; 8:45 am]
BILLING CODE 6560-50-P