[Federal Register Volume 74, Number 241 (Thursday, December 17, 2009)]
[Notices]
[Pages 66964-66966]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-30046]


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ENVIRONMENTAL PROTECTION AGENCY

[FRL-9093-4]


Notice of a Project Waiver of Section 1605 (Buy American 
Requirement) of the American Recovery and Reinvestment Act of 2009 
(ARRA) to the Town of Taos, NM

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice.

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SUMMARY: The 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 Town of Taos 
(``Taos'') for the purchase of membrane filtrations cassettes, which 
are an integral component of the Membrane Bioreactor (MBR) system, 
proposed for the expansion of its existing Wastewater Treatment Plant 
(WWTP). Taos indicates that the MBR system is necessary to achieve the 
tertiary wastewater treatment levels at the proposed 4 million gallons 
per day WWTP. The membrane filtration equipment under consideration is 
manufactured by a company located in Canada and no United States 
manufacturer produces an alternative that meets Taos' 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 6, Water 
Quality Protection Division. Taos 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 
MBR system containing goods not manufactured in America, for the 
proposed project being implemented by Taos. It should be noted that for 
purposes of this action, the MBR system, while treated as a single 
system, is not itself a manufactured good, but is an assembly of 
manufactured goods.

DATES: Effective Date: December 9, 2009.

[[Page 66965]]


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 Taos for the acquisition of a GE/Zenon Zeeweed 500D MBR 
system's (MBR system) membrane filtration cassettes, manufactured by GE 
Water and Process Technologies, Canada. Taos 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.
    Taos' waiver request is to allow the purchase of sixteen membrane 
filtration cassettes for use in improvements to its existing WWTP in 
Taos, New Mexico. This project will replace its existing secondary 
wastewater treatment processes with a new MBR system to meet the 
effluent requirements of the NPDES permit. The membrane filtration 
cassette is an integral component of the MBR system because it 
separates the treated wastewater from the mixed liquor which comes from 
the biological reactors, before the treated wastewater is disinfected 
and discharged. Taos chose the MBR system after an engineering analysis 
of treatment alternatives. Taos determined this to be the most 
environmentally sound and cost effective solution because it meets the 
strict NPDES tertiary treatment standards for Total Suspended Solids, 
Biological Oxygen Demand, and turbidity, when compared to other 
considered solutions. In addition, in anticipation of procuring the MBR 
system, Taos has already incorporated specific technical design 
requirements for installation of membrane filter cassettes with the MBR 
system at its WWTP, including specific tank footprint, geometry and 
configuration.
    Taos 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. Six companies were 
considered for the membrane filtration cassettes, none based in the 
United States. Taos has performed market research but was unsuccessful 
in its effort to locate any domestic manufacturers of membrane 
filtration cassettes for its WWTP.
    Based on additional research conducted by EPA Region 6, there does 
not appear to be any domestic MBR cassette manufacturers that would 
meet Taos' technical specifications. EPA's national contractor prepared 
a technical assessment report dated November 19, 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. Taos included a performance guarantee in 
the request for proposal (RFP) as well as the original specification. 
GE's performance guarantee applies to the entire MBR system, including 
all components supplied by GE. The existence of the 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 the ``GE/Zenon Zeeweed 500D 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 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.'' Taos has incorporated specific technical design 
requirements for installation of membrane filtration cassettes 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 Taos, 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.
    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 Taos 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 Taos' 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, Taos is 
hereby granted a waiver from the Buy American requirements of ARRA, 
Section 1605(a) of Public Law 111-5 for the purchase of ``GE/Zenon 
Zeeweed 500D MBR system'' using ARRA funds, as specified in Taos' 
request of October 23, 2009. This supplementary information constitutes 
the detailed written justification required by ARRA,

[[Page 66966]]

Section 1605(c), for waivers ``based on a finding under subsection 
(b).''

    Authority: Public Law 111-5, section 1605.

    Dated: December 9, 2009.
Al Armendariz,
Regional Administrator, U.S. Environmental Protection Agency, Region 6.
[FR Doc. E9-30046 Filed 12-16-09; 8:45 am]
BILLING CODE 6560-50-P