[Federal Register Volume 75, Number 2 (Tuesday, January 5, 2010)]
[Notices]
[Pages 364-365]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-31404]


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ENVIRONMENTAL PROTECTION AGENCY

[FRL-9100-7]


Notice of a Project Waiver of Section 1605 (Buy American 
Requirement) of the American Recovery and Reinvestment Act of 2009 
(ARRA) to Valley City, 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) [manufactured goods are not produced in the United 
States of a satisfactory quality] to Valley City, ND for the Zenon 
ZeeWeed 1000 membrane filter manufactured by General Electric Water & 
Process Technologies for a capacity of 4 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 Valley City'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. Valley 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 the Zenon ZeeWeed 1000 
membrane filter for the Surface Water Treatment Plant upgrades being 
implemented by Valley City that may otherwise be prohibited under 
Section 1605(a) of the ARRA.

DATES: Effective Date: December 9, 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 Valley City 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, here 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 Valley City's 
Surface Water Treatment Plant renovation. Valley City states that only 
ZeeWeed 1000 submerged membranes meet the specific needs of this 
project, which requires a technology that can be installed into an 
existing basin previously used for pretreatment purposes. This basin 
will be retrofitted to house the ZeeWeed 1000 modules, thus taking 
advantage of the product's small footprint relative to other 
alternatives. The City provided a copy of the contractor's 
specifications that state the product must be manufactured by Zenon 
Environmental, Inc. or equivalent, and the product must 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 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 meet 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.''
    Given this requirement by the State and in light of the 
reasonableness of the retrofit specification, Valley City 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, ``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.''
    The applicant met the procedures specified for the availability 
inquiry as appropriate to the circumstances by conducting on-line 
research and contacting suppliers, and all sources indicated that 
submerged ultrafiltration

[[Page 365]]

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 Valley City'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 Valley City 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 December 2, 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 Valley City is sufficient to meet the criteria listed under Section 
1605(b) of the ARRA 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 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 Valley City'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, Valley 
City 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 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: December 28, 2009.
Carol Rushin,
Acting Regional Administrator, Region 8.
[FR Doc. E9-31404 Filed 1-4-10; 8:45 am]
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