[Federal Register Volume 76, Number 62 (Thursday, March 31, 2011)]
[Notices]
[Pages 17855-17857]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-7602]
=======================================================================
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
[FRL-9288-7]
Notice of a Project Waiver of Section 1605 (Buy American
Requirement) of the American Recovery and Reinvestment Act of 2009
(ARRA) to the DeSoto Parish Waterworks District 1, Louisiana
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice.
-----------------------------------------------------------------------
SUMMARY: The Regional Administrator of EPA Region 6 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 DeSoto Parish
Waterworks District 1 (``the District'') for three (3) packaged, Memcor
XS 48 submerged membrane filtration Systems (MFSs), manufactured by
Siemens Water Technologies Corporation, proposed for the expansion of
its existing water treatment plant. The District requires a submerged
membrane treatment system capable of a 4-log removal of Giardia and
Cryptosporidium at a production rate of 1 million gallons per day
(MGD). The packaged, Memcor XS 48 submerged MFS is manufactured by
foreign manufacturers and no United States manufacturer produces an
alternative that meets the District'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 6, Water Quality Protection Division.
The District 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
three packaged, Memcor XS 48 submerged MFSs not manufactured in the
United States, for the proposed project being implemented by the
District.
DATES: Effective Date: March 8, 2011.
FOR FURTHER INFORMATION CONTACT: Nasim Jahan, Buy American Coordinator,
(214) 665-7522, SRF & Projects Section, Water Quality Protection
Division, U.S. EPA Region 6, 1445 Ross Avenue, Dallas, Texas 75202-
2733.
SUPPLEMENTARY INFORMATION: In accordance with ARRA Section 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 District for the acquisition of three
packaged, Memcor XS 48 submerged membrane filtration systems (MFSs).
The District has been unable to find an American made MFS to meet its
specific water requirements.
Section 1605 of ARRA requires that none of the appropriated funds
may be used for the construction, alteration,
[[Page 17856]]
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.
The District has provided information to the EPA demonstrating that
there is no packaged, Memcor XS 48 submerged MFS manufactured in the
United States in sufficient and reasonable quantity and of a
satisfactory quality to meet the required technical specification. The
District initiated planning on the water treatment plant expansion in
2008. They completed a pilot study of the submerged membrane
filtration/treatment system and a System Improvement Plan, which were
approved by the Louisiana Department of Health and Hospitals (LDHH).
The District requires a submerged membrane treatment system capable
of a 4-log removal of Giardia and Cryptosporidium at a production rate
of 1 MGD (694 gpm). As required by the project specifications, each
skid-mounted packaged MFS must include the backwash system, clean in
place (CIP) system, process control panel, compressed air system,
automatic feed strainers, block and bleed valves for isolation during
cleaning, and feed and filtrate turbidimeters. The specifications also
require that the frequency of chemical cleaning must not exceed once
per month, on average, while the frequency of maintenance washing must
not exceed once per day.
Based on additional research conducted by EPA Region 6, there do
not appear to be any domestic packaged, Memcor XS 48 submerged MFS
manufacturers that would meet the District's technical specifications.
EPA's national contractor prepared a technical assessment report based
on the waiver request submittal, which confirmed the waiver applicant's
claim that there are no American-made submerged MFS available for use
in the proposed water treatment system.
EPA has also evaluated the District's request to determine if its
submission is considered late or if it could be considered timely, as
per the OMB Guidance at 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, the waiver request was submitted after the contract
date because the District initiated an evaluation of substantial
transformation for the submerged MFS; however, after having a thorough
discussion at the Regional level, the District has made a decision that
the issuance of the project specific waiver for the membrane equipment
is the best way to ensure that the District is in compliance with the
Buy American provisions of ARRA. There is no indication that the
District 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 the District's waiver request, a foreseeable late request, as
though it had been timely made since there is no gain by the District
and no loss by the government due to the late request.
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 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 District has incorporated specific technical design
requirements for installation of membrane filtration cassettes at its
wastewater treatment plant.
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 District,
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 economic purpose of the ARRA, which is to create or
retain jobs.
The Region 6 Water Quality Protection Division has reviewed this
waiver request, and has determined that the supporting documentation
provided by the District is sufficient to meet the criteria listed
under ARRA, Section 1605(b), Office of Management and Budget (OMB)
regulations at 2 CFR 176.60-176.170, and in the April 28, 2009,
memorandum, ``Implementation of Buy American provisions of Public Law
111-5, the American Recovery and Reinvestment Act of 2009''. The basis
for this project waiver is the authorization provided in ARRA, 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 District's technical
specifications, a waiver from the Buy American requirement is
justified.
EPA headquarters' 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
District is hereby granted a waiver from the Buy American requirements
of ARRA, Section 1605(a) of Public Law 111-5 for the purchase of three
packaged, Memcor XS 48 submerged MFSs, using ARRA funds, as specified
in the District's request. This supplementary information constitutes
the detailed written justification required by ARRA, Section 1605(c),
for waivers ``based on a finding under subsection (b).''
Authority: Public Law 111-5, section 1605.
[[Page 17857]]
Issued on: March 8, 2011.
Al Armendariz,
Regional Administrator, U.S. Environmental Protection Agency, Region 6.
[FR Doc. 2011-7602 Filed 3-30-11; 8:45 am]
BILLING CODE 6560-50-P