[Federal Register Volume 74, Number 215 (Monday, November 9, 2009)]
[Notices]
[Pages 57670-57671]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-26960]


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ENVIRONMENTAL PROTECTION AGENCY

[FRL-8979-1]


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 Washburn, ND

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) 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 to the City of 
Washburn, ND for the Zenon ZeeWeed 1000 membrane filter manufactured by 
General Electric Water & Process Technologies for a capacity of 1.7 
MGD. 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. These 
membrane filters are manufactured in Canada, and meet the City of 
Washburn's performance specifications and requirements. The Acting 
Regional Administrator is making this determination based on the review 
and recommendation of EPA Region 8's Technical & Financial Services 
Unit. The City of Washburn 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 the Zenon ZeeWeed 1000 membrane filter for the Surface 
Water Treatment Plant upgrades being implemented by the City of 
Washburn that may otherwise be prohibited under Section 1605(a) of the 
ARRA.

DATES: Effective Date: October 23, 2009.

FOR FURTHER INFORMATION CONTACT: Jody Ostendorf, ARRA Coordinator, 
(303) 312-7814, or Brian Friel, SRF Coordinator, (303) 312-6277, 
Technical & Financial Services Unit, Water Program, Office of 
Partnerships & Regulatory Assistance, U.S. EPA Region 8, 1595 Wynkoop 
St., Denver, CO 80202.

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 City of Washburn for the Zenon ZeeWeed 1000 model of 
submerged membranes which are manufactured 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, in this case 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; 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 used as part of the City of 
Washburn's Surface Water Treatment Plant renovation. The City of 
Washburn states that only ZeeWeed 1000 submerged membranes meet the 
specific needs of this project. Because this is a renovation of an 
existing facility, the specifications appropriately require a 
technology that can be retrofitted to the existing filter basin. The 
City provided a copy of the contractor's specifications that state the 
product must be manufactured by Zenon Environmental, Inc. or equivalent 
because this reflects the parameters of the existing filter basin as to 
the technology being replaced, and the product must also meet certain 
performance standards for pH, turbidity, temperature, alkalinity, 
hardness, sodium, sulfate, chloride, iron and manganese.
    The City also provided a letter from an engineer with the State of 
North Dakota asserting a lack of domestic alternatives to the Zenon 
ZeeWeed 1000 submerged membranes. The letter states, ``that the Zenon 
ZeeWeed 1000 membrane filter will be required to be used in Washburn 
and Valley City water treatment plant renovations because:
    1. The Washburn and Valley City water treatment plant renovation 
projects will be using the existing infrastructure (existing filter 
bays) which require using the compact

[[Page 57671]]

immersed vacuum membrane filters. Membrane filters for this waiver are 
as defined in the EPA Membrane Filter Guidance Manual for compliance 
under the LT2ESWTR. Zenon is the only manufacturer of immersed vacuum 
membranes that meets the required specifications. The Zenon ZeeWeed 
1000 membrane cartilages are manufactured in Canada, but all the 
piping, pumps, etc. will be manufactured and assembled in America.
    2. The Zenon ZeeWeed 1000 membrane meets the requirements of the 
LT2ESWTR of 3.5 log removal of Giardia and 4.0 log removal of 
Cryptosporidium.
    3. To the best of our knowledge, there are no current domestic 
membrane manufacturers that meet the specifications of the ZeeWeed 1000 
membrane. Any domestic alternative membrane process would require 
extensive renovation and/or building addition resulting in substantial 
cost increases.''

A requirement by the primary regulatory enforcement agency of a State 
for a public water system to use a particular technology in order to 
comply with a National Primary Drinking Water Regulation (NPDWR), and/
or the approval by that State agency of a particular compliance 
technology for a specific NPDWR, is a crucial prerequisite to 
initiation of a drinking water infrastructure project to bring that 
public water system into compliance with that NPDWR. Given this 
requirement by the State and in light of the reasonableness of the 
retrofit specification, Washburn did not have a basis to use an 
alternative compliance technology within the ARRA time requirements for 
SRF projects to be under contract or construction by February 17, 2010.
    The April 28, 2009 EPA HQ Memorandum (``EPA April memo''), 
``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.'' It further defines satisfactory 
quality as ``the quality of iron, steel, or the relevant manufactured 
good as specified in the project plans and designs.''
    The applicant met the procedures specified for the availability 
inquiry as appropriate to the circumstances by conducting on-line 
research and contacting suppliers. All sources indicated that submerged 
ultrafiltration membrane treatment systems are only manufactured 
outside of the U.S. Therefore, based on the information provided to 
EPA, and to the best of our knowledge at this time, Zenon ZeeWeed 1000 
submerged membranes are not manufactured in the United States, and no 
other U.S. manufactured product can meet the City Washburn's 
performance specifications and requirements.
    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 cities such as Washburn 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 project 
implementation 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 September 25, 2009 based on the submitted waiver request. 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 
domestic products that can meet the project specifications.
    The Technical & Financial Services Unit has reviewed this waiver 
request and has determined that the supporting documentation provided 
by the City of Washburn is sufficient to meet the criteria listed under 
Section 1605(b) of the ARRA and in the EPA April memo: 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 City of Washburn's performance 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 City 
of Washburn is hereby granted a waiver from the Buy American 
requirements of Section 1605(a) of Public Law 111-5 for the purchase of 
Zenon ZeeWeed 1000 submerged membranes using ARRA funds as specified in 
the City's request of September 22, 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: October 23, 2009.
Debra H. Thomas,
Acting Regional Administrator, Region 8.
[FR Doc. E9-26960 Filed 11-6-09; 8:45 am]
BILLING CODE 6560-50-P