[Federal Register Volume 74, Number 234 (Tuesday, December 8, 2009)]
[Notices]
[Pages 64689-64690]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-29214]


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ENVIRONMENTAL PROTECTION AGENCY

[FRL-9090-5]


Notice of a Project Waiver of Section 1605 (Buy American 
Requirement) of the American Recovery and Reinvestment Act of 2009 
(ARRA) to Frederick County, MD

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice.

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SUMMARY: The 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 
Frederick County for the purchase of a Membrane Bioreactor (MBR) 
system, at the Ballenger McKinney Enhanced Nutrient Removal Wastewater 
Treatment Plant (WWTP) expansion. Frederick County indicates that the 
MBR treatment process is necessary to achieve the wastewater treatment 
levels required by the National Pollutant Discharge Elimination System 
(NPDES) permit issued for this WWTP. The MBR system under consideration 
is manufactured by a company located in Canada and no United States 
manufacturer produces an alternative that meets Frederick County'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 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. Frederick 
County 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 system containing goods not manufactured in America for the 
proposed project being implemented by Frederick County. 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: November 20, 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 Frederick County for the acquisition of a MBR system 
manufactured by GE Water and Process Technologies located in Canada. 
Frederick County has been unable to find an American made MBR system 
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.
    The GE Zenon MBR system is comprised of MBR filtration cassettes, 
air dryers 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 GE Zenon MBR system--as a whole, is designed to remove 
nutrients (Phosphorus and Nitrogen) to a level specified in Frederick 
County's NPDES permit.
    Frederick County's waiver request is to allow the purchase of the 
GE Zenon MBR system with one hundred forty membrane filtration 
cassettes, manufactured by GE Water and Process Technologies located in 
Canada, 2 desiccant air dryers, manufactured by Ingersol Rand located 
in the United Kingdom, and ten vacuum ejectors manufactured by Piab 
located in Sweden 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 cassettes, air dryers and vacuum 
ejectors are integral components of the MBR treatment process because 
they separate 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, Frederick County

[[Page 64690]]

determined MBR to be the most environmentally sound and cost effective 
solution. The MBR system 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, Frederick 
County had issued specifications for the MBR system in its June 2007 
Request for Proposal (RFP) and evaluated and awarded the contract in 
March 2008. Section 11500 of this RFP No. 07-CP-78 included technical 
specifications for Membrane Filtration Equipment, and the qualification 
criteria in Section 1.03 of the bidder questionnaire required an 
established record of installed systems at municipal WWTPs. 
Specifically, Section 1.03 of the bidder questionnaire required that: 
(1) The bidder furnish a list of five of its MBR system installations 
at municipal WWTPs, (2) three of these systems have been in operation 
for at least one year, and (3) at least one of the three systems has an 
average flow design capacity of 1.0 MGD or more. These specifications 
and requirements were justified by Frederick County's obligation to 
meet reliably the environmental requirements of its NPDES permit. In 
this selection phase, no domestic manufacturers were able to meet these 
technical specifications and experience requirements. In May 2009, 
Frederick County received bids for the construction of the entire WWTP 
expansion based on the RFP. The winning general contractor will use the 
pre-selected MBR design/equipment in the final installation.
    Frederick County has provided information to the EPA demonstrating 
that there are no membrane filtration systems manufactured in the 
United States in sufficient and reasonable quantity and of a 
satisfactory quality to meet these technical specifications in its RFP. 
Two companies, neither of which manufacture in the United States, met 
Frederick County's justified technical specifications and experience 
requirements.
    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'' (``EPA Memorandum''), 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.'' Frederick County has incorporated 
specific technical design requirements for installation of a 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 communities, such as Frederick 
County, 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 did not appear to 
be other MBR systems manufactured domestically back in March 2008 that 
would meet Frederick County's technical specifications. EPA's national 
contractor prepared a technical assessment report dated October 16, 
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 only non-domestic manufacturers of the MBR 
cartridge could meet the technical specifications included in the RFP 
for Membrane Filtration Equipment and the qualification criteria for an 
established record of installed systems at WWTPs included in the bidder 
questionnaire.
    Frederick County included a performance guarantee in the RFP as 
well as the original specification. GE's performance guarantee applies 
to the entire MBR system, including all components supplied by GE, 
which would be voided by substitution of other components. The 
potential voiding of the performance raises a valid issue regarding 
availability of alternative desiccant air dryers and vacuum ejectors. 
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 III concludes that only 
the ``GE Zenon MBR System--as a whole'' meets the ``specifications in 
project plans and design.''
    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 Frederick County is sufficient to meet the 
criteria listed under Section 1605(b), OMB's regulations at 2 CFR 
176.60-176.170, and in the April 28, 2009, EPA 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 Frederick 
County'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, Frederick 
County is hereby granted a waiver from the Buy American requirements of 
Section 1605(a) of Public Law 111-5 for the purchase of a MBR system 
using ARRA funds as specified in Frederick County's request of August 
18, 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: November 20, 2009.
William C. Early,
Acting Regional Administrator, U.S. Environmental Protection Agency, 
Region III.
[FR Doc. E9-29214 Filed 12-7-09; 8:45 am]
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