[Federal Register Volume 74, Number 123 (Monday, June 29, 2009)]
[Notices]
[Pages 31032-31034]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-15318]


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ENVIRONMENTAL PROTECTION AGENCY

[FRL-8923-8]


Notice of a Regional Waiver of Section 1605 (Buy American 
Requirement) of the American Recovery and Reinvestment Act of 2009 
(ARRA) to the State of New Hampshire Department of Environmental 
Services' Winnipesaukee River Basin Bureau

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 State of New Hampshire Department of Environmental 
Services' Winnipesaukee River Basin Bureau (WRBB) for the purchase of 
air bearing turbo aeration blowers and an associated main blower 
control panel. These blowers and associated control panel are 
manufactured outside of the United States by APG-Neuros of South Korea, 
and meet the WRBB's technical design specifications. The Acting 
Regional Administrator is making this determination based on the review 
and recommendation of the Municipal Assistance Unit. The WRBB has 
provided sufficient documentation to support their request.
    The Assistant Administrator of the Office of Administration and 
Resources Management has concurred on this decision to make an 
exception to Section 1605 of the ARRA. This action permits the purchase 
of air bearing turbo aeration blowers and an associated main blower 
control panel by the WRBB, as specified in its May 11, 2009 waiver 
request, to upgrade its regional wastewater treatment facility in 
Franklin, New Hampshire as part of a project funded under the ARRA.

DATES: Effective Date: June 8, 2009

FOR FURTHER INFORMATION CONTACT: Katie Connors, Environmental Engineer, 
(617) 918-1658, or David Chin, Environmental Engineer, (617) 918-1764, 
Municipal Assistance Unit (CMU), Office of Ecosystem Protection (OEP), 
U.S. EPA, One Congress Street, CMU, Boston, MA 02114.

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 WRBB for the purchase of air bearing turbo 
aeration blowers and an associated main blower control panel 
manufactured outside of the United States by APG-Neuros of South Korea, 
which meet the WRBB's technical design specifications for its 
wastewater treatment plant upgrade project.
    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 is produced in the 
United States unless a waiver is provided to the recipient by EPA. A 
waiver may be provided if EPA determines under Section 1605(b) 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.
    In a letter dated May 11, 2009 to the EPA, the WRBB requested a 
waiver from the Buy American Provision for the purchase of air bearing 
turbo aeration blowers and an associated Main Blower Control Panel 
(MBCP), manufactured outside of the United States (US) by APG-Neuros, a 
South Korea based company.
    Based on information provided to the EPA, the WRBB performed a pre-
bid selection of the high efficiency, air bearing turbo aeration 
blowers with the help of a 12 member technical review committee that 
included WRBB operations, maintenance, electrical, electronics and 
management staff, WRBB's technical consultant, and the NHDES' 
Wastewater Engineering Bureau Design Review staff. This pre-bid 
selection committee determined critical specifications and manufacturer 
capabilities, and the development of a weighted scoring system to 
assess the submitted proposals. Three priority technical specifications 
were identified by the pre-bid committee:
    (1) That the entire proposed blower package proposed had to be 
Underwriters Laboratories (UL) or CSA-US (NRTL) certified in order to 
be approved by the State Fire Marshall for installation at the 
facility;
    (2) That the manufacturer demonstrated experience with installed

[[Page 31033]]

aeration blowers in US wastewater treatment plants; and
    (3) That their process include site specific blower monitoring, 
control and automation using dissolved oxygen, air flow, and pressure 
sensing to achieve appropriate aerobic treatment levels.
    A Request for Information (RFI) solicitation was published in the 
New Hampshire Union Leader newspaper and sent directly to four (4) 
known manufacturers of air-bearing turbo aeration blowers. Three of the 
four manufacturers responded to the RFI. According to the WRBB, the 
fourth manufacturer did not formally submit a RFI because its air-
bearing turbo aeration blower was not yet in production and it would 
not be able to provide the required scope of supply.
    One mandatory requirement identified by the pre-bid selection 
committee was that the entire blower package proposed had to be UL or 
CSA-US (NRTL) certified in order to be approved by the State Fire 
Marshall for installation at this state-operated wastewater treatment 
facility. The time for meeting required certifications was deemed 
critical by the WRBB pre-selection committee in order to incorporate 
the pre-selected blower into the construction contract documents so 
that the contract award could meet the ``ready to proceed'' ARRA 
requirements. APG-Neuros was the only manufacturer that met this 
requirement at the time of the RFI submittal. The other two 
manufacturers did not have this certification at the time of the RFI 
submittal nor did they indicate whether they would proceed to obtain 
the necessary certification.
    One of the highest priority requirements identified by the pre-
selection committee was demonstrated experience with numerous installed 
aeration blowers in wastewater treatment plants within the United 
States. According to the WRBB, wastewater aeration processes, as 
approved by the State through operational and design requirements, 
require the facility to include appropriate site specific blower 
monitoring, control and automation using dissolved oxygen, air flow, 
and pressure sensing to achieve appropriate aerobic treatment levels. 
Only one manufacturer, APG-Neuros, had a multiple year turbo aeration 
blower manufacturing history, including over sixty-five (65) aeration 
blower installations at US wastewater treatment plants, and provided 
additional verifiable documentation of their ability to automate the 
process using dissolved oxygen, air flow, and pressure sensing. The 
other two manufacturers that were evaluated, including the US-based 
manufacturer, did not cite or propose any experience with automated 
dissolved oxygen control as required in the specifications for this 
facility for aerobic wastewater treatment supplied with the RFI. Based 
upon conformance with identified mandatory and critical parameters, as 
well as the scoring for additional technical requirements, the twelve 
member pre-bid selection committee unanimously selected APG-Neuros, 
Inc. as the highest scoring respondent to the RFI.
    APG-Neuros of South Korea was the only manufacturer that met the 
technical design specifications set forth in the RFI, and had a 
verifiable history of supplying air bearing turbo aeration blowers for 
US wastewater treatment plant applications. It was the only 
manufacturer that had current UL/CSA-US certifications for their 
proposed air bearing turbo aeration blowers package systems as required 
for installation at State of New Hampshire operated facilities. The 
other two responding manufacturers did not meet any of these critical 
requirements.
    Based on the information provided to EPA from the WRBB, and to the 
best of our knowledge at the time of the review, there do not appear to 
be other air bearing turbo aeration blowers currently manufactured in 
the United States available to meet the WRBB's exact technical 
specifications and requirements.
    In addition, the WRBB is highly ranked on New Hampshire's Intended 
Use Plan due in part to the highly energy efficient air bearing turbo 
aeration blower components in this project. The electric energy savings 
from using these turbo blowers is projected to result in an estimated 
50-54% reduction in power compared to the existing blowers. This 
reduction will result in a savings of 548,000 kilowatt-hours of 
electricity use per year for an estimated 18-19% reduction in the total 
energy consumption required for the wastewater treatment plant 
operation.
    Requiring a less efficient product would be contrary to Congress' 
explicit and specific intent to achieve greater energy efficiency as 
stated in the SRF-specific 20% Green Project Reserve requirements of 
Title VII of the ARRA. Furthermore, the purpose of the ARRA is to 
stimulate economic recovery by funding current infrastructure 
construction, not to delay projects that are already ``shovel ready'' 
by requiring potentially eligible SRF recipients such as the WRBB to 
revise their standards and specifications and to start the bidding 
process again. The imposition of ARRA Buy American requirements in this 
case would result in unreasonable delay for this 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 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 WRBB 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 WRBB's technical 
specifications, a waiver from the ARRA 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 WRBB is hereby 
granted a waiver from the Buy American requirements of Section 1605(a) 
of Public Law 111-5 for the purchase of air bearing turbo aeration 
blowers and an associated main blower control panel manufactured 
outside of the United States by APG-Neuros of South Korea. This 
supplementary information constitutes

[[Page 31034]]

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: June 22, 2009.
Ira W. Leighton,
Acting Regional Administrator, Region I, New England.
[FR Doc. E9-15318 Filed 6-26-09; 8:45 am]
BILLING CODE 6560-50-P