[Federal Register Volume 76, Number 12 (Wednesday, January 19, 2011)]
[Notices]
[Pages 3136-3138]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-1018]
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ENVIRONMENTAL PROTECTION AGENCY
[EPA-R07-OW-2010-1084; FRL-9254-3]
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 Columbia, MO
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) (2) [manufactured goods are not produced in the United States
in sufficient and reasonably available quantities and of a satisfactory
quality] to the City of Columbia, MO (``City'') for the purchase of two
(2) foreign manufactured Toshiba LQ500 Density Analyzers in Columbia,
Missouri. 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
critical performance requirements and project specifications for the
Toshiba LQ500 density analyzer, a list of potential manufacturers,
project schedule, and a price comparison worksheet of the different
manufacturers submitted by the City and its consulting engineer, it has
been determined that there are currently no domestically manufactured
density analyzers available to meet the City's project specifications.
The Regional Administrator is making this determination based on the
review and recommendations of the Clean Water
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State Revolving Fund (CWSRF) staff. 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 two foreign manufactured Toshiba LQ500 density
analyzers. City of Columbia, MO has provided sufficient documentation
to support their waiver request.
DATES: Effective Date: January 6, 2011 .
FOR FURTHER INFORMATION CONTACT: Christopher Simmons, Environmental
Engineer, Water Wetlands and Pesticides Division (WWPD), (913) 551-
7237, U.S. EPA Region 7, 901 N. Fifth Street, Kansas City, KS 66101.
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 Columbia, MO (``City'') for the purchase
of two non-domestically manufactured Toshiba LQ500 density analyzers,
to meet the City's design and performance specifications as part of its
proposed Wastewater Treatment Facility Phase 1 Improvement project in
Columbia, MO.
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 City of Columbia, MO is proposing a wastewater treatment
facility (WWTF) improvement project phase 1 that includes the use of a
non-domestically manufactured Toshiba LQ500 density analyzer. The
Toshiba LQ500 density analyzers measure the density of the WWTF's
primary sludge as a parameter for sludge waste process control. The
Toshiba LQ500 density analyzer provides improved settling of
microbiological populations, provides improved nutrient removal,
maintains constant mass solids loading to activated sludge thickeners,
and reduces variability of Total Solids (TS) concentrations which
results in a considerable improvement of thickener performance. Project
specifications for a density analyzer require the following to meet the
design and performance criteria:
(1) The density analyzer shall consist of an element and
transmitter that utilizes the microwave phase difference method to
determine the density of that process fluid;
(2) The element shall consist of an obstruction-less microwave
source;
(3) The element shall mount, non-intrusively, in line with the
process piping using mounting hardware furnished with the device;
(4) The element components shall be rated for explosion proof
service; and
(5) The transmitter shall be microprocessor based, generate an
isolated 4-20 mA dc output proportional to the process density, and be
provided in a NEMA 4 rated, wall mounted enclosure.
The Clean Water State Revolving Fund (CWSRF) staff has reviewed
this waiver request and has determined that the supporting
documentation provided by the City of Columbia, MO establishes both a
proper basis to specify a particular manufactured good, and that there
is no domestic manufactured good currently available. 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.
The LQ500 density/consistency analyzer is manufactured non-
domestically by the Toshiba Corporation. The supporting documentation
and independent research and communication with manufacturers of in-
line, non-intrusive sludge density analytical process analyzers
conducted by EPA's national contractor demonstrate that there are no
U.S. manufacturers able to meet the project specifications. None of the
companies contacted by EPA's national contractor manufacture their
density analytical instruments in the United States.
EPA has also evaluated Columbia, MO's waiver request to determine
if its submission is considered late or if it could be considered
timely, as per the OMB Guidance at 2 CFR 176.120. 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, EPA could
also determine that a request be evaluated as timely, though made after
the date that the contract was signed, if the need for a waiver was not
reasonably foreseeable. If the need for a waiver is reasonably
foreseeable, then EPA could still apply discretion in these late cases
as per the OMB Guidance, which says ``the award official may deny the
request.'' For those waiver requests that do not have a reasonably
unforeseeable basis for lateness, but for which the waiver basis is
valid and there is no apparent gain by the ARRA recipient or loss on
behalf of the government, then EPA will still consider granting a
waiver.
In this case, there are no U.S. manufacturers that meet Columbia,
MO's project specification for the density analyzer. The waiver request
was not made prior to the contract being signed because initially the
manufacturer said their product was substantially transformed in the
U.S.; however, Columbia, MO did not accept this documentation. There is
no indication that Columbia, MO failed to request a waiver in order to
avoid the requirements of the ARRA, particularly since there are no
domestically manufactured products available that meet the project
specifications. EPA will consider Columbia, MO's waiver request, a
foreseeable late request, as though it had been timely made since there
is no gain by Columbia, MO and no loss by the government due to the
late request.
Furthermore, 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 potential SRF eligible
recipients, such as the City of Columbia, MO, to revise their design
standards and specifications as well as their construction schedule.
There are no domestic manufacturers that can provide density analyzers
that meet the specifications of this WWTF improvement project. To delay
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
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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 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
manufactured good required for this project and that this manufactured
good was not available from a producer in the United States, the City
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 non-domestic manufactured Toshiba LQ500
Density Analyzers documented in City's waiver request submittal dated
August 11, 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: January 6, 2011.
Karl Brooks,
Regional Administrator, Region 7.
[FR Doc. 2011-1018 Filed 1-18-11; 8:45 am]
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