[Federal Register Volume 74, Number 143 (Tuesday, July 28, 2009)]
[Notices]
[Pages 37222-37223]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-17937]


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ENVIRONMENTAL PROTECTION AGENCY

[FRL-8935-7]


Notice of a Project Waiver of Section 1605 (Buy American 
Requirement) of the American Recovery and Reinvestment Act of 2009 
(ARRA) to the Lewiston, ME Department of Public Services

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 Lewiston, Maine Department of Public 
Services (LMDPS) for the purchase of a Hydroslide model DR-400 VN-Vario 
constant flow regulator. 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 project specific 
circumstances. This flow regulator is manufactured outside of the 
United States by Gabriel Novac & Associates, Inc., a company based in 
Canada, and meets the LMDPS's technical specifications and 
requirements. The Acting Regional Administrator is making this 
determination based on the review and recommendations of the Municipal 
Assistance Unit. The LMDPS 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 ARRA. This action permits the 
purchase of a specific constant flow regulator for the proposed project 
being implemented by the LMDPS that may otherwise be prohibited under 
Section 1605(a) of the ARRA.

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 Lewiston, 
Maine Department of Public Services (LMDPS) for the acquisition of a 
Hydroslide model DR-400 VN-Vario constant flow regulator manufactured 
outside of the United States by Gabriel Novac & Associates, Inc., a 
company based in Canada.
    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;

[[Page 37223]]

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.
    This manufactured good will be installed as part of the ``Goff 
Brook Combined Sewer Overflow (CSO) Storage Project'' to help reduce 
combined sewer overflows. Parts for this specific constant flow 
regulator device are manufactured in Germany, will arrive in several 
pieces, and require assembly at the job site prior to installation at a 
total cost of $14,700. The Hydroslide DR-400 VN-Vario model is a 
hydraulically-operated flow control regulator that allows for continued 
discharge to the downstream sewers under normal, dry flow conditions. 
Under specified wet weather conditions, the mechanical flow control 
regulator would be activated to divert flows to a separate discharge 
pipe and storage chamber to help eliminate CSOs. CSOs currently 
discharge directly to a small brook nearby, and this project is being 
implemented to minimize those occurrences. The proposed project was 
designed to accommodate a one year, six-hour rain event (approximately 
2.04 inches over a 6-hour period), which is based on historical rain 
data from the area.
    As represented by the LMDPS, the project site is located in a 
remote rural area with limited space and no available electrical power. 
As a result, constant flow regulators with modulating sluice gates 
requiring electrical service cannot be installed for this project. The 
Hydroslide model DR-400 VN-Vario constant flow regulator, which does 
not require any electricity, maintains a pre-set flow rate at varying 
water levels ranging from 0 to 10 feet on the upstream side, with an 
adjustable flow  30% from the above ground. It is operated 
by use of a float to control a sliding plate to reduce the outflow area 
as the water level rises. This allows full use of the storage chamber 
while maintaining a constant flow to the 18 inch outlet pipe.
    According to the LMDPS, there are only two other non-electric 
manufacturers of regulators for CSO flow control, one foreign and one 
domestic. The only domestic alternative is not feasible for several 
reasons: (1) The flow rate is not adjustable; (2) the opening is 2\1/2\ 
inches smaller, making it more likely to be plugged; and (3) it does 
not reach its peak flow until the water level in the tank is at its 
peak and therefore would require a larger storage volume in order to 
capture the same size design storm of a one year, six hour rain event. 
As a result, the domestic alternative would not be able to meet the 
proposed design specifications.
    If the footprint of the project needs to be expanded to increase 
the storage volume to accommodate the domestic alternative, additional 
wetlands would be required to be filled. If the storage volume was not 
expanded, the tank would overflow more frequently and discharge a 
larger volume of combined sewer effluent. This would result in a large 
reduction in the environmental benefit for which the tank is being 
constructed and would not meet the level of abatement control in the 
CSO Long Term Control Plan approved by the State of Maine.
    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.'' Based on the information provided to EPA and to the best 
of our knowledge at this time, there do not appear to be other constant 
flow regulators manufactured in the United States available to meet the 
LMDPS's exact technical specifications and requirements. The Hydroslide 
flow regulator is self-operating, requires low maintenance, and does 
not use electricity. There do not appear to be any American 
manufacturers that make a comparable product.
    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 LMDPS 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 ARRA 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.
    EPA's national contractor prepared a technical assessment report 
dated June 19, 2009 based on the waiver request submitted. 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 there are no comparable 
non-electric domestic products that can handle the design storm event 
without overflow, and can be installed at the proposed site without 
requiring expanding the necessary storage volume.
    The Municipal Assistance Unit has reviewed this waiver request and 
has determined that the supporting documentation provided by the LMDPS 
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 
Lewiston, Maine Department of Public Services is hereby granted a 
waiver from the Buy American requirements of Section 1605(a) of Public 
Law 111-5 for the purchase of a constant flow regulator using ARRA 
funds as specified in the System's request of June 5, 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. E9-17937 Filed 7-27-09; 8:45 am]
BILLING CODE 6560-50-P