[Federal Register Volume 74, Number 184 (Thursday, September 24, 2009)]
[Notices]
[Pages 48738-48739]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-23080]


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ENVIRONMENTAL PROTECTION AGENCY

[FRL-8962-7]


Notice of a Project Waiver of Section 1605 (Buy American 
Requirement) of the American Recovery and Reinvestment Act of 2009 
(ARRA) to the City of Salem, New Jersey

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 City of Salem, New Jersey (the City), for 
the purchase of a specific Canadian-manufactured membrane filtration 
system (ZeeWeed[supreg] 500). The ZeeWeed[supreg] 500 Immersed Ultra-
filtration Membranes are manufactured outside of the United States by 
GE Water & Processes Technologies (GEW&PT), in Canada. The design and 
specifications of the City's proposed new Surface Water Treatment Plant 
were based on the performance and characteristics of the 
ZeeWeed[supreg] 500 membrane system, following pilot testing conducted 
from March through August 2007, which demonstrated that the equipment 
worked very well in removing total organic carbon, as well as other 
contaminants; the successful pilot testing of surface treatment plant 
technologies is a prerequisite to obtaining a construction permit from 
the New Jersey Department of Environmental Protection (NJDEP). The 
Acting Regional Administrator is making this determination based on the 
review and recommendations of the State Revolving Fund Program Team. 
The City 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 
ZeeWeed[supreg] 500 Immersed Ultra-filtration Membranes for the 
proposed project being implemented by the City of Salem, New Jersey.

DATES: Effective Date: August 27, 2009.

FOR FURTHER INFORMATION CONTACT: Alicia Su[aacute]rez, Environmental 
Engineer, (212) 637-3851, State Revolving Fund Program Team, Division 
of Environmental Planning and Protection, U.S. EPA, 290 Broadway, New 
York, NY 10007.

SUPPLEMENTARY INFORMATION: In accordance with ARRA Section 1605(c) and 
pursuant to Section 1605(b)(2) of Public Law 111-5, Buy American 
requirements, the EPA hereby provides notice that it is granting a 
project waiver to the City for the acquisition of ZeeWeed[supreg] 500 
Immersed Ultra-filtration Membranes manufactured in Canada by GEW&PT.
    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 City proposes to replace its existing surface water treatment 
plant because the current plant, constructed in 1974, is unlikely to be 
able to provide water that complies with the Stage II Disinfectants and 
Disinfection Byproducts Rule or appropriate log removal of 
microorganisms. The use of the ZeeWeed[supreg] 500 membrane system is 
based on a stated need for immersed ultra-filtration membranes that 
have a reinforced hollow fiber membrane with a very high tensile 
strength and a high solids tolerance that is necessary for direct 
filtration after enhanced coagulation without clarification. The 
ZeeWeed[supreg] 500 Immersed Ultra-filtration Membranes were described 
by the City as meeting these specifications.
    The City has stated that all surface treatment plant technologies 
must be piloted in New Jersey in order to receive a construction permit 
from the NJDEP. Successful pilot testing prior to NJDEP approval of a 
construction permit ensures that the completed facility will be in 
compliance with the Stage II Disinfectants and Disinfection Byproducts 
Rule. The pilot testing results of the ZeeWeed[supreg] 500 membranes, 
conducted from March through August 2007, demonstrated that the 
equipment worked very well in removing total organic carbon, as well as 
other contaminants, and that the design of the new water treatment plan 
was based on the ZeeWeed[supreg] 500 ultra filtration membrane system. 
The City has provided information to the EPA representing that GEW&PT, 
manufacturer of the ZeeWeed[supreg] 500, is the only company capable of 
supplying a membrane system that meets the criteria of an immersed, 
reinforced, hollow fiber ultra filtration system that does not require 
clarification prior to filtration. The City'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 Headquarters 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 the 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,'' and satisfactory quality as ``the quality 
of iron, steel, or the relevant manufactured good as specified in the 
project plans and designs.''
    Based on additional research conducted by the State Revolving Fund 
Program Team of the Division of Environmental Planning and Protection 
and to the best of the Region's knowledge at the time of the review, 
there does not appear to be other membrane equipment that meets the 
City'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,

[[Page 48739]]

such as the City, to begin a new pilot study with an alternate 
membrane, revise plans and specifications, and apply for a new 
construction permit from the NJDEP. The City has stated that if the 
City were subject to the Buy American provision, the project would be 
delayed for at least one year. 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 the fundamental purpose of the 
ARRA, which is to preserve and create jobs and promote economic 
recovery.
    The State Revolving Fund Program Team has reviewed this waiver 
request and has determined that the supporting documentation provided 
by the City is sufficient to meet the criteria listed under Section 
1605(b), OMB's regulation at 2 CFR 176.100, and in the EPA Headquarters 
April 28, 2009, Memorandum, ``Implementation of Buy American provisions 
of Public Law 111-5, the `American Recovery and Reinvestment Act of 
2009':'' 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 City's technical 
specifications, a waiver from the Buy American requirement is 
justified.
    The Administrator'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 City 
of Salem is hereby granted a waiver from the Buy American requirements 
of Section 1605(a) of Public Law 111-5 for the purchase of a 
ZeeWeed[supreg] 500 ultra filtration membrane system using ARRA funds 
as specified in the City's request of June 5, 2009, as supplemented on 
June 16, 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: August 27, 2009.
Barbara Finazzo,
Acting Regional Administrator, Region 2.
[FR Doc. E9-23080 Filed 9-23-09; 8:45 am]
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