[Federal Register Volume 74, Number 179 (Thursday, September 17, 2009)]
[Notices]
[Pages 47796-47798]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-22429]


-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

[FRL-8956-6]


Notice of a Project Waiver of Section 1605 (Buy American 
Requirement) of the American Recovery and Reinvestment Act of 2009 
(ARRA) to the Canaan Valley Public Service District, WV

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice.

-----------------------------------------------------------------------

[[Page 47797]]

SUMMARY: The Acting Regional Administrator of EPA Region 3 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 
Canaan Valley Public Service District (CVPSD) for the purchase of 
membrane filtrations cassettes, which are an integral component of the 
Membrane Bioreactor (MBR) wastewater treatment process, at two of its 
Wastewater Treatment Plants (WWTPs). CVPSD 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 these WWTPs. The membrane filtration 
equipment under consideration is manufactured by a company located in 
Canada and no United States manufacturer produces an alternative that 
meets the CVPSD'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. The CVPSD 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 the CVPSD.

DATES: Effective Date: August 27, 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 Canaan Valley Public Service District (CVPSD) for 
the acquisition of membrane filtration cassettes manufactured by GE 
Water and Process Technologies located in Canada. CVPSD 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.
    CVPSD's waiver request is to allow the purchase of four membrane 
filtration cassettes for use in improvements to two existing WWTPs in 
West Virginia. This project will upgrade two of its existing WWTPs 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, the CVPSD determined MBR to be the most environmentally 
sound and cost effective solution. The MBR is an advanced 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, the CVPSD has 
already incorporated specific technical design requirements for 
installation of membrane filter cassettes with the MBR treatment 
process at their WWTPs, including specific tankage footprint, geometry 
and configuration. To require CVPSD to redesign its project would cause 
an unacceptable delay to the initiation of construction.
    The CVPSD 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. Four companies 
were considered for the membrane filtration cassettes, none based in 
the United States. The CVPSD has performed market research but was 
unsuccessful in its effort to locate any domestic manufacturers of 
membrane filtration cassettes for WWTPs.
    The April 28, 2009 EPA HQ Memorandum, Implementation of Buy 
American provisions of P.L. 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 CVPSD has incorporated specific technical design 
requirements for installation of membrane filtration cassettes at its 
WWTPs.
    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 CVPSD, 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 3, 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 the CVPSD's technical specification. EPA's national 
contractor prepared a technical assessment report dated July 15, 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

[[Page 47798]]

at the time of review has determined that the supporting documentation 
provided by the CVPSD 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 CVPSD'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 Canaan 
Valley 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 four membrane filtration cassettes using ARRA funds as 
specified in the CVPSD's request of July 1, 2009. This supplementary 
information constitutes the detailed written justification required by 
Section 1605(c) for waivers ``based on a finding under subsection 
(b).''

    Authority: Pub. L. 111-5, section 1605.

    Dated: August 27, 2009.
William C. Early,
Acting Regional Administrator, Region III.
[FR Doc. E9-22429 Filed 9-16-09; 8:45 am]
BILLING CODE 6560-50-P