[Federal Register Volume 76, Number 65 (Tuesday, April 5, 2011)]
[Notices]
[Pages 18757-18759]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-8018]
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ENVIRONMENTAL PROTECTION AGENCY
[FRL-9289-9]
Notice of a Project Waiver of Section 1605 (Buy American
Requirement) of the American Recovery and Reinvestment Act of 2009
(ARRA) to the Bayonne Municipal Utilities Authority, Bayonne, NJ
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice.
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SUMMARY: The EPA 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]
[[Page 18758]]
to the Bayonne Municipal Utilities Authority, New Jersey (Authority),
for the purchase of a foreign manufactured wind turbine generator that
meets the Authority's design and performance specifications, which is
to be installed at its existing Oak Street Pumping Station 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
project that may wish to use the same product must apply for a separate
waiver based on project specific circumstances. Based upon information
submitted by the Authority and its consulting engineer, EPA has
concluded that there are currently no domestic manufactured wind
turbines available in sufficient and reasonable quantity and of a
satisfactory quality to meet the Authority's project design and
performance specifications, and that a waiver is justified. The
Regional Administrator is making this determination based on the review
and recommendations of the State Revolving Fund Program Team. The
Assistant Administrator of the Office of Administration and Resources
Management has concurred on this decision to make an exception to
Section 1605(a) of ARRA. This action permits the purchase of foreign
manufactured wind turbine generator by the Authority, as specified in
its December 15, 2010 waiver request.
DATES: Effective Date: April 5, 2011.
FOR FURTHER INFORMATION CONTACT: Alicia Reinmund-Mart[iacute]nez,
Environmental Engineer, (212) 637-3827, State Revolving Fund Program
Team, Division of Environmental Planning and Protection, U.S. EPA, 290
Broadway, New York, NY 10007.
SUPPLEMENTARY INFORMATION:
In accordance with ARRA Sections 1605(c) and 1605(b)(2), 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 Authority for the purchase of a Leitwind LTW 77
wind turbine generator, manufactured by Leitner-Poma, that meets the
Authority's design and performance specifications to be installed at
its existing Oak Street Pumping Station site. EPA has evaluated the
Authority's basis for the procurement of a foreign made wind turbine
generator. Based upon information submitted by the Authority and its
consulting engineer, EPA has concluded that there are currently no
domestic manufactured wind turbines available in sufficient and
reasonable quantity and of a satisfactory quality to meet the
Authority's project design and performance specifications.
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 are 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) of ARRA 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 the Authority's waiver request is timely
even though the request was made after the construction contract was
signed. Consistent with the direction of the Office of Management and
Budget (OMB) regulations at 2 CFR 176.120, EPA has evaluated the
Authority'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 Authority's request may be
treated as timely because the need for a waiver was not foreseeable at
the time the contract was signed. The Authority submitted this waiver
request after the contract date because the domestic manufacturer of a
1.5 megawatt (MW) wind turbine generator that met project
specifications ultimately withdrew from the project. The need for a
waiver was not determined until on or about November 6, 2010, when the
domestic manufacturer notified the Authority that it was unwilling to
provide a 1.5 MW wind turbine generator on the basis that the project
site did not meet the manufacturer's property setback requirements as
well as other siting requirements. The Authority's subsequent research
indicated that no other domestic manufactured 1.5 MW wind turbine
generators met project specifications. Accordingly, EPA will evaluate
the request as a timely request.
The Authority's wind power project includes the installation of a
1.5 MW wind turbine generator at its existing Oak Street Pumping
Station, which is the main combined and sanitary pumping station
serving all of the City of Bayonne's (City) approximate 62,000
residents. The wind turbine generated electricity will drive the Oak
Street Pumping Station, which is operational 24 hours per day and has
an average daily dry weather flow of 8 million gallons per day (MGD),
and a total capacity of 18 MGD. The wind turbine generator will also be
interconnected with the nearby East 5th Street storm water relief
pumping station, which has four 150 horsepower (HP) lift pumps and one
60 HP lift pump that help prevent localized flooding in a residential
area of the City. The project was designed for a 1.5 MW domestic
manufactured wind turbine generator and will be located on a 22.95 acre
property owned by the Authority that is situated in a predominantly
industrial area.
The Authority is requesting a waiver for the purchase of a Leitwind
LTW77 wind turbine, manufactured by Leitner-Poma, because according to
the Authority, there is only one domestic manufacturer that produces a
wind turbine generator that meets the project design and performance
specifications. However, that domestic manufacturer withdrew from the
project on November 6, 2010, on the basis of its own internal siting
and setback recommendations that could not be met at the project site.
Although the site did not meet the domestic manufacturer's setback
requirements, the Authority had worked with the domestic manufacturer's
engineers to develop other mitigation measures to prevent damage or
injury from shedding ice. These measures include, but are not limited
to, sensors to detect ice buildup and stop the wind turbine generator
when ice is detected with manual restart and the repositioning of the
turbine blades to minimize ice shedding issues. Despite the Authority's
efforts, the domestic manufacturer was not willing to supply their
product and ultimately withdrew from the project.
The Authority examined twenty other available domestic and foreign
wind turbine generators and only the Leitwind LTW 77 model meets all
project specifications. Of the other five domestic manufacturers
contacted, several produce wind turbine generators that are larger than
the 1.5 MW allowed by the project specifications. In addition, many of
the domestic
[[Page 18759]]
machines were much heavier than the wind turbine generator produced by
the domestic manufacturer that withdrew from the project. The use of a
heavier machine would add significantly to project expenses and delay
the project schedule because a foundation redesign would be required
and the foundation for this project is already under construction.
Lastly, the Authority concluded that none of the domestic manufacturers
contacted could meet the City's zoning law requirement that the wind
turbine generator emit less than 104 decibels of noise.
The Authority states that only the Leitwind LTW 77 foreign
manufactured model meets the size and noise requirements for this
project. Although the Leitwind LTW 77 does not use the same site
consideration limitations that are used by the domestic manufacturer
that withdrew from the project and notwithstanding that there are
currently no local, State, or Federal requirements regulating the
setback distances associated with the operation of wind turbines, the
Authority has indicated that it has taken all necessary precautions to
eliminate ice shedding. Such mitigation measures include, but are not
limited to, the incorporation of controls with three levels of
redundancy to shut down the turbine during potential glaze icing events
and the restarting of the turbine only after a detailed visual
inspection is completed, vibration sensors on the blades that recognize
if the blades are out of balance due to ice formation, and the
positioning of the shut down turbine to facilitate ice shedding
directly into a fenced enclosure with posted warning signs directly
below the turbine.
Also, the Federal Aviation Administration (FAA) notified the
Authority that its study revealed that a wind turbine generator on the
site would not be a hazard to air navigation, provided that the turbine
structure is marked and/or lighted, in accordance with FAA Advisory
Circular 70/7640-1 K Change 2. The Authority confirmed that the LTW 77
specifications fall within the scope of the FAA's determination and
that the Authority will mark and/or light the turbine in accordance
with FAA requirements.
Based on the technical evaluation of the Authority's waiver request
and supporting documentation conducted by EPA's national contractor,
the Authority's claim that no domestic manufacturer can produce and
site a 1.5 MW wind turbine generator that meets the project
specifications is supported by the available evidence. In addition, the
evaluation of the supporting documentation indicates that at least one
foreign manufacturer, Leitner-Poma, will provide a 1.5 MW wind turbine
generator at the site that can meet project design and performance
specifications.
The purpose of the ARRA is to stimulate economic recovery in part
by funding current infrastructure construction, not to delay projects
that are already ``shovel ready'' by requiring entities, such as the
Authority, to revise their design standards and specifications 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 potentially the cancellation of this project as
sited. The delay or cancellation of this construction would directly
conflict with the fundamental economic purpose of ARRA, which is to
create or retain jobs.
The April 28, 2009, EPA Headquarters 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 the 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,'' and satisfactory quality as ``the
quality of iron, steel, or the relevant manufactured good as specified
in the project plans and designs.''
The Region 2 State Revolving Fund Program Team has reviewed this
waiver request and has determined that the supporting documentation
provided by the Authority establishes both a proper basis to specify
the particular good required and that the manufactured good is not
available from a producer in the United States to meet the design
specifications for the proposed project. The information provided is
sufficient to meet the criteria listed under Section 1605(b) of ARRA,
OMB regulations at 2 CFR 176.60-176.170, and in the EPA Headquarters
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 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 Authority's technical specifications, a
waiver from the Buy American requirement is justified.
The Administrator's 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
Authority is hereby granted a waiver from the Buy American requirements
of Section 1605(a) of Public Law 111-5 for the purchase of a Leitner-
Poma Leitwind LTW 77 1.5 MW wind turbine generator, as specified in its
December 15, 2010 waiver request. 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: March 10, 2011.
Judith A. Enck,
Regional Administrator, Environmental Protection Agency, Region 2.
[FR Doc. 2011-8018 Filed 4-4-11; 8:45 am]
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