[Federal Register Volume 75, Number 80 (Tuesday, April 27, 2010)]
[Notices]
[Pages 22129-22131]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-9751]
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ENVIRONMENTAL PROTECTION AGENCY
[FRL-9142-5]
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 Falmouth, MA
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice.
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SUMMARY: The EPA is hereby granting a waiver of the Buy America
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 Town of Falmouth, Massachusetts for the purchase of a
foreign manufactured wind turbine to be installed at its existing
wastewater treatment facility site. 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. Based upon information submitted by the Town of Falmouth
and its consulting engineer, it has been determined that there are
currently no domestic manufactured wind turbines available to meet its
proposed project design and performance specifications. 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 Section 1605 of
ARRA. This action permits the purchase of a foreign manufactured wind
turbine by the Town of Falmouth, MA, as specified in its February 24,
2010 follow-up submittal.
DATES: Effective Date: April 19, 2010.
FOR FURTHER INFORMATION CONTACT: David Chin, Environmental Engineer,
(617) 918-1764, or Katie Connors, Environmental Engineer, (617) 918-
1658, 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(b)(2) of Public Law 111-5, Buy American
requirements, to the Town of Falmouth, Massachusetts for the purchase
of a foreign manufactured wind turbine that meets the Town of
Falmouth's design and performance specifications to be installed at its
existing wastewater treatment facility site.
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 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.
The Town of Falmouth, Massachusetts (MA) is proposing to construct
a foreign manufactured Vestas model V82, 1.65 megawatt (MW) wind
turbine generator at the Town's wastewater treatment facility located
at 154 Blacksmith Shop Road, a 314 acre town owned site in Falmouth,
MA. This proposed wind turbine would be the second one installed and
commissioned at the site although the existing wind turbine was not
funded through the ARRA. The Town of Falmouth is requesting a waiver
for the purchase of a 1.65 MW wind turbine comprised of all turbine
components, including, but not limited to: The blades, the nacelle
(i.e. cover housing that holds the equipment within a wind turbine),
the gear box, low and high speed shafts, generator, controller, and
brake. The wind turbine is manufactured by Vestas of Denmark, and meets
project design and performance specifications. The total estimated cost
to furnish, install and commission the proposed wind turbine is
approximately $4.3M.
Massachusetts is one of several northeast states that has a climate
change action plan which calls for significant CO2 emission
reductions by 2020. Integral to that plan is a wider adoption of non-
emitting renewable sources of electricity. Wind power is currently the
most practical source of renewable energy to meet that goal. The
Massachusetts' Renewable Portfolio Standard (RPS) requires an
increasing amount of the electricity sold in the Commonwealth to come
from renewable electricity, including wind power. RPS is also one of
the major policy tools put in place to meet the CO2
reduction goals under the climate change plan. This project, while
small, would contribute towards achieving those goals. The proposed
wind turbine is expected to generate an average of 3,075 MW hours of
electricity annually, representing approximately 30% of the Town's
total municipal building and facilities electrical needs.
The Town of Falmouth has thoroughly researched available domestic
and foreign wind turbine manufacturers. According to the Town, there
was only one domestic manufacturer that produces a wind turbine that
appears to meet project design and performance specifications. However,
the identified domestic manufacturer is not willing to supply a wind
turbine for installation at the Falmouth Wastewater Treatment Plant,
nor is it willing to support a warranty and service agreement for
another available unit that it has already manufactured. According to
the domestic manufacturer, the Town's proposed construction site would
not meet the manufacturer's internal setback requirement distances to
mitigate the risks associated with potential ice throws from the
turbine blades. The domestic manufacturer's internal siting
considerations recommended that, for safety in the event of icing, a
setback distance of 1.5 times the hub height and rotor diameter--in
this case, 646 feet--be maintained from occupied structures, roads,
property lines and public access areas. The proposed wind turbine would
be set back approximately 552 feet from the property line, 646 feet
from the nearest public road (Route 28), and 1,150 feet from the
nearest residential structure.
Thus, the siting would provide sufficient setback distances for the
road
[[Page 22130]]
and residential structures but not the property line. The domestic
manufacturer cited the setback distance to EPA's national contractor as
the basis for its refusal to make its product available for this
project. However, the domestic manufacturer's internal siting
considerations also provided for other possible mitigation techniques
for properties that do not meet these setback considerations, but the
manufacturer did not offer to make its product available based on the
potential application of such techniques at this site, notwithstanding
that the setback limitations at this site were relatively minor, and
can readily be addressed by mitigation techniques. (For example, while
a road located within the desired setback distance cannot practically
be moved and will present some continuing risk, a simple property line
incursion within the setback distance can effectively be addressed by
signs to provide notice of the risk during certain weather conditions.)
The foreign manufacturer which has already supplied an identical 1.65
MW wind turbine that meets the technical specifications required by
Falmouth at the site has agreed to supply another 1.65 MW wind turbine
to Falmouth at the same site.
Based on information provided to the EPA, the Town of Falmouth has
taken the necessary steps to obtain all required local, state, and
federal approvals to move forward with the proposed project. The Town
of Falmouth has adopted a local ordinance regulating large scale wind
turbines. According to the submittal, Zoning Article XXXIV, Chapter
240, Section 240-166 requires a Special Permit for windmills with
minimum setback from property lines. The setback requirements of the
ordinance states that ``On the lot of the petitioner there shall be an
area sufficient so that a circle, the center of which shall be no less
than the height of the tower as measured from the base of the tower to
the uppermost of the blade, or tower, whatever is greater plus 10 feet,
may be drawn and be completely within the petitioner's land.''
According to the Town, based on the setback requirements of the
local ordinance, a wind turbine with an 80 meter (262 feet) tower would
be required to be set back 272 feet from the property line. All setback
distances noted above for the proposed wind turbine meet the local
zoning code. The Town Planning Department has determined that a wind
turbine is a use allowed as a matter of right in a Public Use Zoning
district pursuant to Section 240-30, Permitted Community Service Uses,
of the Zoning Bylaw.
Furthermore, Special Legislation (Chapter 200 of the Acts of 2007)
was also passed by the General Court of Massachusetts to permit the
Town of Falmouth to design and install wind energy facilities at its
wastewater treatment facility at Blacksmith Shop Road, prepare and
improve the site, acquire all equipment necessary for the wind energy
facilities, and to make related improvements and repairs to the
facilities. The Town has also secured other project approvals and
permits from the Massachusetts Historical Commission, the Massachusetts
Natural Heritage and Endangered Species Program, the Department of Air
Force Space Command, the Massachusetts Division of Fisheries and
Wildlife and the Federal Aviation Administration for the proposed
project.
The Town of Falmouth, in discussions with the EPA Regional Office,
has stated that it will implement a mitigation plan to minimize any
potential ice throws to ensure public safety, which appears to provide
an ample margin of safety even within the domestic manufacturer's
internal siting considerations, where the setback distances meet Town
zoning requirements, and any setback concerns appear relatively minor
and appropriately mitigated. The Town of Falmouth has indicated that
the foreign manufactured wind turbine that is being supplied comes
equipped with vibration sensors to shut down the turbine when ice build
up is detected. The control system will also be programmed to allow for
manual start up as well, which will allow an operator to visually
inspect the turbine to confirm that there is no ice remaining before
the turbine is re-started. The Town of Falmouth will implement manual
wind turbine operational control strategies during periods of ice
accretion which include, but are not limited to: Curtailment of
operation of the turbine, braking the blades in a ``Y'' to facilitate
ice shedding directly underneath the wind turbine, and yawing the
nacelle so that the blades are in the safest position for ice shedding.
It may also post warning signs to alert personnel of the potential risk
in the area. Access to the turbine area at the site is currently and
will remain restricted. After hours, the only vehicular access to the
treatment plant site is through a gate that is typically closed and
locked. The mitigation plan will be part of the overall operational and
maintenance protocol for the Town of Falmouth wastewater treatment
facility.
Based on the evaluation of all of the submitted documentation by
EPA's technical review team, the Town of Falmouth's statement that no
U.S. manufacturer is willing to provide a 1.5 MW-2.0 MW wind turbine
generator that meets project performance specifications is supported by
the available evidence. In addition, the evaluation of the supporting
documentation indicates that at least one foreign manufacturer will
provide a wind turbine at the proposed site that can meet project
design and performance specifications.
The purpose of the ARRA is to stimulate economic recovery by
funding current infrastructure construction, not to delay projects that
are ``shovel ready'' by requiring SRF eligible recipients, such as the
Town of Falmouth, to redesign or relocate a potential project. The
imposition of ARRA Buy American requirements in this case would result
in unreasonable delay and potentially the cancellation of this project
as sited. The delay or cancellation of this construction would directly
conflict with a fundamental economic purpose of ARRA, which is to
create or retain jobs.
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' '' (``Memorandum''), 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 same Memorandum defines
``satisfactory quality'' as ``the quality of steel, iron or
manufactured good specified in the project plans and designs.''
The Municipal Assistance Unit (CMU) has reviewed this waiver
request and has determined that the supporting documentation provided
by the Town of Falmouth establishes a proper basis to specify the
particular good required for this project, that the Town of Falmouth
has agreed to implement a mitigation plan to minimize the likelihood of
any potential ice throws to ensure public safety, and that this
manufactured good was not available from a producer in the United
States. The information provided is sufficient to meet the following
criteria listed under Section 1605(b) of the ARRA and in the April 28,
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.
[[Page 22131]]
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 this manufactured good is not
available from a producer in the United States, the Town of Falmouth 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 wind turbine as documented in
the Town of Falmouth's follow-up submittal dated February 24, 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: April 19, 2010.
Ira W. Leighton,
Acting Regional Administrator, EPA Region 1--New England.
[FR Doc. 2010-9751 Filed 4-26-10; 8:45 am]
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