[Federal Register Volume 74, Number 201 (Tuesday, October 20, 2009)]
[Notices]
[Pages 53738-53740]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-25171]


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ENVIRONMENTAL PROTECTION AGENCY

[FRL-8970-5]


Notice of a Project Waiver of Section 1605 (Buy American 
Requirement) of the American Recovery and Reinvestment Act of 2009 
(ARRA) to the Village of Ruidoso/City of Ruidoso Downs, NM

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice.

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[[Page 53739]]

SUMMARY: The Acting Regional Administrator of EPA Region 6 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 
Village of Ruidoso/City of Ruidoso Downs--Joint Use Board (``Ruidoso'') 
for the purchase of a membrane bioreactor system (MBR), supplied by 
Enviroquip, Inc., that contains two primary components not manufactured 
in America, at the proposed Wastewater Treatment Plant (WWTP). Ruidoso 
indicates that the MBR system is necessary to achieve the wastewater 
treatment levels required by the National Pollutant Discharge 
Elimination System (NPDES) permit issued for this WWTP. 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 opts 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 6 Water Quality Protection Division. 
Ruidoso 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 
the MBR containing goods not manufactured in American from Enviroquip, 
Inc., for the proposed project being implemented by Ruidoso. It should 
be noted that for purposes of this action, the MBR, while treated as a 
single system, is not itself a manufactured good, but is an assembly of 
manufactured goods.

DATES: Effective Date: August 24, 2009.

FOR FURTHER INFORMATION CONTACT: Rajen Patel, Buy American Coordinator, 
(214) 665-2788, SRF & Projects Section, Water Quality Protection 
Division, U.S. EPA Region 6, 1445 Ross Avenue, Dallas, Texas 75202-
2733.

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 Village of Ruidoso/City of Ruidoso Down--Joint Use 
Board, New Mexico, for the acquisition of an ``Enviroquip MBR system.'' 
Ruidoso has been unable to find an MBR system that contains American-
made MBR cassettes and aeration blowers (as specified in Ruidoso's 
specifications for Enviroquip MBR system) 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 granted 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 Enviroquip MBR system is comprised of MBR filtration cassettes, 
aeration blowers, and several other auxiliary components integral to 
the efficient operation of the system. The MBR system is a packaged 
product that has undergone complex biological design, hydraulic 
modeling, control automation, fabrication and integration of 
specialized product components. The Enviroquip MBR system--as a whole, 
is designed to remove nutrients (Phosphorus and Nitrogen) to a level 
specified in Ruidoso's NPDES permit.
    The purpose of Ruidoso's waiver request is to allow the purchase of 
the Enviroquip MBR system with forty-eight MBR cassettes, manufactured 
by Kubota Inc., of Japan, and eight Aerzen Generation 5 aeration 
blowers, manufactured by Aerzen, Germany.
    The new WWTP would incorporate the entire MBR system to meet the 
effluent requirements of the National Pollutant Discharge Elimination 
System (NPDES) permit. The MBR cassettes are designed to provide 
increased nutrient removal capabilities, which will allow the City to 
meet their nutrient waste-load allocation for the Rio Ruidoso. Aerzen 
Generation 5 blowers are integral components of the MBR system because 
they maintain the critically important oxygen levels and membrane 
scouring capabilities through out the MBR system.
    Ruidoso chose the MBR treatment process after an engineering 
analysis of various treatment alternatives. Ruidoso determined this to 
be the most environmentally sound and cost effective solution because 
it meets the high quality effluent required by its waste load 
allocation under its Total Maximum Daily Limit, when compared to other 
considered solutions. In addition, in anticipation of procuring the MBR 
system, Ruidoso has already incorporated specific technical design 
requirements for installation of MBR system at their proposed WWTP, 
including specifics on MBR system footprint and configuration.
    Ruidoso has provided information to the EPA demonstrating that 
there are no MBR cassettes manufactured in the United States in 
sufficient and reasonable quantity and of a satisfactory quality to 
meet the required technical specification. Two companies were 
considered for the purchase of filtration cassettes, none based in the 
United States. Ruidoso has performed rigorous market research, but was 
unsuccessful in its effort to locate any domestic manufacturers of MBR 
cassettes for the MBR system.
    Based on additional research conducted by EPA Region 6, there does 
not appear to be any domestic MBR cassette manufacturers that would 
meet Ruidoso's technical specifications. EPA's national contractor 
prepared a technical assessment report dated August 3, 2009 based on 
the waiver request submittal. 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 MBR cassettes available for use 
in the proposed MBR system.
    Ruidoso could only identify three aeration blowers (Aerzen 
Generation 5, Aerzen Delta IV, and Dresser Roots) that could provide 
the oxygen levels and membrane scouring capabilities required by 
Enviroquip's process guarantee. Ruidoso disqualifies the use of Aerzen 
Delta IV blower on the grounds that its noise level, at 81 dB, is 
substantially higher than that of Aerzen Generation 5 models (72 dB for 
pre-air supply and 76 dB for MBR air supply) and that such a noise 
level would interfere with the system operators and with occupants of 
nearby offices. Noise levels of 72 dB and 76dB are included in the 
original specifications for the respective air supplies. Ruidoso 
disqualifies the Dresser Roots blowers on the grounds that they run at 
substantially higher revolutions per minute (RPM) rates (4,000 RPM for 
pre-air and 3,300 for MBR air) than called for in the specifications 
(3,244 RPM for pre-air and 2,740 RPM for MBR air).

[[Page 53740]]

    Ruidoso included a performance guarantee in the request for 
proposal (RFP) as well as the original specification. Enviroquip's 
performance guarantee applies to the entire MBR system, including all 
components supplied by Enviroquip, which would be voided by 
substitution of other components. The potential voiding of the 
performance raises a valid issue regarding availability of alternative 
aeration blowers. The existence of such a performance guarantee 
supports treating the entire MBR system as a unitary whole, rather than 
a collection of individual components. Therefore, EPA Region 6 
concludes that only the ``Enviroquip MBR System--as a whole'' meets the 
``specifications in project plans and design.''
    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.'' Ruidoso has incorporated specific technical design 
requirements for the installation of the MBR system 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 utilities, such as Ruidoso, 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 
the fundamental economic purpose of the ARRA, which is to create or 
retain jobs.
    The Region 6 Water Quality Protection Division has reviewed this 
waiver request, and to the best of my knowledge at the time of review, 
has determined that the supporting documentation provided by Ruidoso is 
sufficient to meet the criteria listed under ARRA, Section 1605(b), 
Office of Management and Budget (OMB) regulations at 2 CFR 176.60-
176.170., 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 ARRA, 
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 Ruidoso's technical 
specifications, a waiver from the Buy American requirement is 
justified.
    EPA headquarters' 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, Ruidoso is 
hereby granted a waiver from the Buy American requirements of ARRA, 
Section 1605(a) of Public Law 111-5 for the purchase of ``Enviroquip 
MBR system'' using ARRA funds, as specified in Ruidoso's request of 
July 6, 2009. This supplementary information constitutes the detailed 
written justification required by ARRA, Section 1605(c), for waivers 
``based on a finding under subsection (b).''

    Authority:  Public Law 111-5, section 1605.

    Dated: August 24, 2009.
Lawrence E. Starfield,
Acting Regional Administrator, Region 6.
[FR Doc. E9-25171 Filed 10-19-09; 8:45 am]
BILLING CODE 6560-50-P