[Federal Register Volume 74, Number 168 (Tuesday, September 1, 2009)]
[Notices]
[Pages 45202-45203]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-21123]


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ENVIRONMENTAL PROTECTION AGENCY

[FRL -8951-6]


Notice of a Project Waiver of Section 1605 (Buy American 
Requirement) of the American Recovery and Reinvestment Act of 2009 
(ARRA) to the Town of Cape Charles, VA

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice.

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SUMMARY: The Acting Regional Administrator of EPA Region III 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 
Town of Cape Charles for the purchase of membrane filtrations 
cassettes, which are an integral component of the Membrane Bioreactor 
(MBR) wastewater treatment process, at its Wastewater Treatment Plant 
(WWTP). Cape Charles indicates that the MBR treatment process is 
necessary to achieve the wastewater treatment levels required by the 
National Pollutant Discharge Elimination System (NPDES) permits issued 
for this WWTP. The membrane filtration equipment under consideration is 
manufactured by a company located in Canada and no United States 
manufacturer produces an alternative that meets Cape Charles's 
technical specifications. 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 the specific project 
circumstances. 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. Cape Charles 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 
membrane filtration cassettes for the proposed project being 
implemented by Cape Charles.

DATES: Effective Date: August 19, 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), EPA 
hereby provides notice that it is granting a project waiver of the 
requirements of Section 1605(b)(2) of Public Law 111-5, Buy American 
requirements to the Town of Cape Charles for the acquisition of 
membrane filtration cassettes manufactured by GE Water and Process 
Technologies located in Canada. Cape Charles has been unable to find an 
American made membrane filtration cassette manufacturer to meet its 
specific wastewater requirements.
    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.
    Cape Charles's waiver request is to allow the purchase of three 
membrane filtration cassettes for use in improvements to its existing 
WWTP. This project will upgrade its existing WWTP by adding a new MBR 
treatment process. The membrane filtration cassette is an integral 
component of the MBR treatment process because it separates the treated 
wastewater from the mixed liquor which comes from the biological 
reactors, before the treated wastewater is disinfected and discharged. 
After an engineering analysis of alternate treatment processes, Cape 
Charles determined MBR to be the most environmentally

[[Page 45203]]

sound and cost effective solution. The MBR is an advance waste water 
treatment process which is designed to meet the high quality effluent 
requirements of the waste load allocation under the NPDES permit. In 
addition, in anticipation of procuring the MBR system, Cape Charles has 
already incorporated specific technical design requirements for 
installation of membrane filter cassettes with the MBR treatment 
process at their WWTP, including specific tankage footprint, geometry 
and configuration. To require Cape Charles to redesign its project 
would cause an unacceptable delay to the initiation of construction.
    Cape Charles has provided information to the EPA demonstrating that 
there are no membrane filtration cassettes manufactured in the United 
States in sufficient and reasonable quantity and of a satisfactory 
quality to meet the required technical specification. Cape Charles 
surveyed forty membrane manufacturers as part of its market research to 
locate domestic manufacturers of membrane filtration cassettes for 
WWTPs. It was unable to locate any domestic manufacturers. Most were 
unacceptable because their membrane products were not designed for 
domestic wastewater treatment plants. The remaining manufacturers 
either manufacture membrane materials without providing a package 
system similar to the system specified or were foreign manufacturers.
    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.'' Cape Charles has incorporated specific technical design 
requirements for installation of membrane filtration cassettes at its 
WWTP.
    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 communities, such as Cape 
Charles, to revise their standards and specifications, institute a new 
bidding process, 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 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.
    Based on additional research conducted by EPA's Office of 
Infrastructure and Assistance (OIA) in Region III, and to the best of 
the Region's knowledge at the time of review, there do not appear to be 
other membrane filtration cassettes manufactured domestically that 
would meet Cape Charles's technical specification. EPA's national 
contractor prepared a technical assessment report dated July 13, 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 American-made membrane filtration 
cassettes for use in MBRs in WWTPs.
    The OIA has reviewed this waiver request and to the best of our 
knowledge at the time of review has determined that the supporting 
documentation provided by Cape Charles 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 Cape 
Charles's technical specifications, 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 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 Town 
of Cape Charles is hereby granted a waiver from the Buy American 
requirements of Section 1605(a) of Public Law 111-5 for the purchase of 
three membrane filtration cassettes using ARRA funds as specified in 
Cape Charles's request of July 8, 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.

    Issued on: August 19, 2009.
William C. Early,
Acting Regional Administrator, U.S. Environmental Protection Agency, 
Region III.
[FR Doc. E9-21123 Filed 8-31-09; 8:45 am]
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