[Federal Register Volume 74, Number 130 (Thursday, July 9, 2009)]
[Notices]
[Pages 32918-32919]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-16265]


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ENVIRONMENTAL PROTECTION AGENCY

[FRL-8928-4]


Notice of a Project Waiver of Section 1605 (Buy American 
Requirement) of the American Recovery and Reinvestment Act of 2009 
(ARRA) to the Claywood Park Public Service District, West Virginia

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] to the Claywood Park Public Service District 
(PSD) for the purchase of blowers at their Wastewater Treatment Plant 
(WWTP). These blowers are manufactured outside of the United States by 
Aerzen, a company based in Germany, and meet the PSD's technical 
specifications. The Acting Regional Administrator is making this 
determination based on the review and recommendations of the EPA Region 
III, Water Protection Division, Office of Infrastructure and 
Assistance. The Claywood Park Public Service 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 
specific type blowers for the proposed project being implemented by the 
Claywood Park Public Service District.

DATES: Effective Date: June 8, 2009.

FOR FURTHER INFORMATION CONTACT: Robert Chominski, Deputy Associate 
Director, (215) 814-2162, or David McAdams, Environmental Engineer, 
(215) 814-5764, Office of Infrastructure & Assistance (OIA), Water 
Protection Division, U.S. EPA Region III, 1650 Arch Street, 
Philadelphia, PA 19103-2029.

SUPPLEMENTARY INFORMATION: In accordance with ARRA Section 1605(c) and 
pursuant to Section 1605(b)(2) of Public Law 111-5, Buy American 
requirements, EPA hereby provides notice that it is granting a project 
waiver to the Claywood Park Public Service District (PSD) for the 
acquisition of specialized blowers manufactured outside of the United 
States by Aerzen, a company based in Germany. 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 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 PSD has provided information to the EPA representing that there 
are

[[Page 32919]]

currently no blowers manufactured in the United States that have the 
same product specifications in place. The specifications for the new 
blowers required that both the gear-end and the drive-end of the 
blowers shall be oil splash lubricated for minimal maintenance and long 
service life. Grease lubricated bearings are not acceptable and maximum 
average noise level, within enclosure, 76 dba measured at 6 locations 
at a distance of 3 feet from the blower system.''
    Since the original WWTP was built in 1990, additional homes in the 
community were constructed closer to the WWTP than existing houses had 
been. Moreover, because there is no additional space in the basement of 
the operations building, the two new blowers had to be constructed 
outside the operations building. The PSD has also provided information 
that the low-noise stand alone blower enclosure ensures that the plant 
does not become a noise nuisance to the Cedar Grove and Happy Valley 
Community. The Aerzen-style blowers are the quietest blowers available. 
Given the proximity of the new residents and the necessary exterior 
location of the blowers, the PSD had a reasonable and appropriate basis 
to limit the project specification to ultra-quiet blowers.
    The PSD's submission clearly articulates entirely functional 
reasons for its technical specifications, and has provided sufficient 
documentation that the relevant manufactured goods are not produced in 
the United States in sufficient and reasonably available quantity and 
of a satisfactory quality to meet its technical specifications.
    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 PSD has incorporated specific technical design 
features for its blowers for noise, improved reliability and ease of 
maintenance.
    The PSD has provided information to the EPA representing that there 
are currently no blowers manufactured in the United States that have 
the exact same product specifications in place. Based on additional 
research conducted by the Office of Infrastructure & Assistance and to 
the best of the Region's knowledge at the time of the review, there 
does not appear to be other blowers to meet the PSD's exact technical 
specifications.
    Furthermore, 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 Claywood Park Public Service District, to revise their standards 
and specifications and to start the bidding process again. 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 Office of Infrastructure & Assistance has reviewed this waiver 
request and has determined that the supporting documentation provided 
by the Claywood Park Public Service District 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 District's technical 
specifications, a waiver from the Buy American requirement is 
justified.
    The EPA'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 
Claywood Park Public Service District is hereby granted a waiver from 
the Buy American requirements of Section 1605(a) of Public Law 111-5 
for the purchase of blowers using ARRA funds as specified in the PSD's 
request of April 9, 2009. 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: June 18, 2009.
William C. Early,
Acting Regional Administrator, U.S. Environmental Protection Agency, 
Region III.
[FR Doc. E9-16265 Filed 7-8-09; 8:45 am]
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