[Federal Register Volume 74, Number 143 (Tuesday, July 28, 2009)]
[Notices]
[Pages 37221-37222]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-17931]


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ENVIRONMENTAL PROTECTION AGENCY

[FRL-8935-8]


Notice of a Project Waiver of Section 1605 (Buy American 
Requirement) of the American Recovery and Reinvestment Act of 2009 
(ARRA) to the Sharon Elementary School Water System, Sharon, VT

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 Sharon Elementary School Water System in 
Sharon, Vermont for the purchase of NSF-55 Class A certified Ultra 
Violet (UV) disinfection equipment. This is 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 project specific 
circumstances. The UV disinfection equipment under consideration is 
manufactured outside of the United States by two companies based in 
Canada and meets the water system's technical and design 
specifications. The Acting Regional Administrator is making this 
determination based on the review and recommendations of the Municipal 
Assistance Unit. The Sharon Elementary School Water System has provided 
sufficient documentation to support its 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 specific UV disinfection 
equipment for the proposed project being implemented by the Sharon 
Elementary School Water System.

DATES: Effective Date: July 17, 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) 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 Sharon 
Elementary School Water System (the ``System'') in Sharon, Vermont for 
the acquisition of NSF-55 Class A certified Ultra Violet (UV) 
disinfection equipment manufactured outside of the United States.
    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, or unless a waiver is provided to the recipient by the 
head of the appropriate agency, here 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 State of Vermont requires that water supply installations must 
comply with the Vermont Standards for Water System Design, Construction 
and Protection (Vermont Water Supply Rule--Chapter 21). In order to 
meet these standards the State of Vermont requires public water systems 
using UV disinfection to use National Sanitation Foundation (NSF) 
Standard 55 (Ultraviolet Microbial Water Treatment Systems) Class A 
certified UV equipment. The State of Vermont, Agency of Natural 
Resources, Water Supply Division (VTANR) has identified three lines of 
UV disinfection systems with NSF-55 Class A certification, all 
manufactured in Canada. Two of the three include the UV Pure Hallett 
15xs ultraviolet water system, as well as the Trojan Technologies 
Sterilight SPV 200 series units. The design engineer and the VTANR have 
conducted research and determined that there are no domestic 
manufacturers that have NSF-55 Class A certification at the time of 
this waiver request.
    The design engineer for the System indicated that he chose to use 
four Hallett 15xs (15 gpm) UV units for the school buildings and one 
Sterilight SPV 200 (2 gpm) UV unit for a remote location which receives 
its water supply from the school well. The designs also took into 
account the limited space available for retrofitting the water supply 
and distribution systems, as well as the attributes of the specific 
equipment. The estimated cost for all of the UV equipment for the 
proposed project was under $10,000.
    The System's submission clearly articulates functional reasons for 
its technical specifications and requirements, 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

[[Page 37222]]

plans and design''. After extensive research by the design engineer and 
the VTANR, the system has provided information to the EPA representing 
that there is currently no other UV disinfection equipment from a 
domestic manufacturer available to meet the System's exact design 
specifications.
    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 Sharon 
Elementary School Water System, 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 
construction must be completed by late August when the students return 
for the new school year.
    EPA's national contractor prepared a technical assessment report 
dated June 19, 2009 based on the waiver request submitted and 
supporting documentation. The report determined that the waiver request 
submittal was complete, that adequate technical information was 
provided, and that there were no significant weaknesses in the 
justification provided. The report confirmed the waiver applicant's 
claim that NSF Standard 55 Class A UV disinfection equipment of the 
size specified are not available from a domestic manufacturer.
    The Municipal Assistance Unit (CMU) has reviewed this waiver 
request and has determined that the supporting documentation provided 
by the Sharon Elementary School Water District is sufficient to meet 
the criteria listed under section 1605(b) of the ARRA 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) of the ARRA. 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 System's technical specifications and requirements, a 
waiver from the 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 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 good required for this project, and that this manufactured 
good was not available from a producer in the United States, the 
Sharon, Vermont Elementary School Water System is hereby granted a 
waiver from the Buy American requirements of section 1605(a) of Public 
Law 111-5 for the purchase of the specified UV disinfection equipment 
using ARRA funds as specified in the System's request of June 15, 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: July 17, 2009.
Ira W. Leighton,
Acting Regional Administrator, Region I, New England.
[FR Doc. E9-17931 Filed 7-27-09; 8:45 am]
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