[Federal Register Volume 75, Number 13 (Thursday, January 21, 2010)]
[Notices]
[Pages 3464-3465]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-1119]


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ENVIRONMENTAL PROTECTION AGENCY

[FRL-9104-8]


Notice of a Regional Project Waiver of Section 1605 (Buy 
American) of the American Recovery and Reinvestment Act of 2009 (ARRA) 
to Gwinnett County Department of Water Resources, Gwinnett County, GA

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice.

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SUMMARY: The EPA is hereby granting a waiver of the Buy American 
requirements of ARRA Section 1605 under the authority of Section 
1605(b)(1) [inconsistent with the public interest] to Gwinnett County 
Department of Water Resources, Gwinnett County, Georgia (``County'') 
for the purchase of a foreign manufactured submersible pump. This is a 
project specific waiver and only applies to the use of the specified 
product for the ARRA project being proposed. Any other ARRA recipient 
that wishes to use the same product must apply for a separate waiver 
based on project specific circumstances. The County's tunnel and tunnel 
lift station project will include installation of two submersible pumps 
as well as the purchase of one spare pump. The project was originally 
designed between 2003 and 2006, and bids were taken on March 1, 2007. 
The County standardized ITT Flygt Corporation as the sole manufacturer 
of submersible pumps in 2003, when design of the project started. At 
the time of design, the County already had in operation 88 Flygt pumps 
out of the 106 pumps in the system. The County has submitted a detailed 
memorandum dated October 17, 2003, explaining the rationale for 
standardization. According to the memorandum, the County desired to, 
``standardize on a single brand of submersible pumps for wastewater 
pump stations in order to provide greater reliability in the operation 
of pump stations and avoid the increased costs of inventory, service, 
maintenance, and engineering associated with using several different 
brands.'' This is a project whose earlier phases began prior the 
enactment of ARRA and was undertaken for the principal purpose of Clean 
Water Act compliance. The procurement for those prior phases 
standardized on a particular manufactured good that is subject to ARRA 
section 1605 requirements for its ARRA-funded phase but the performance 
from and operation and maintenance of such good in the performance of 
the facility would be detrimentally affected by a requirement to use a 
non-standardized good(s). Based on the review of the information 
provided, EPA has concluded that a waiver of the Buy American 
provisions is justified. 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 
County to purchase Flygt submersible pumps, manufactured by ITT Flygt 
Corporation, as specified in its September 1, 2009, request.

DATES: Effective Date: December 18, 2009.

FOR FURTHER INFORMATION CONTACT: Cynthia Y. Edwards, Project Officer, 
Grants and SRF Section, Water Protection Division (WPD), (404) 562-
9340, USEPA Region 4, 61 Forsyth St. SW., Atlanta, GA 30303.

SUPPLEMENTARY INFORMATION: In accordance with ARRA Section 1605(c), the 
EPA hereby provides notice that it is granting a project waiver of the 
requirements of Sections 1605(a) of Public Law 111-5, Buy American 
requirements, to Gwinnett County Department of Water Resources, 
Gwinnett County, Georgia, for the purchase of Flygt submersible pumps, 
manufactured by ITT Flygt Corporation of Sweden. EPA has evaluated the 
County's basis for standardizing to the Flygt submersible pumps. Based 
on the information provided by the applicant, EPA has determined that 
it is inconsistent with the public interest for the County to pursue 
the purchase of a domestically manufactured submersible pump.
    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 is produced in the 
United States, or unless a waiver is provided to the recipient by the 
head of the appropriate agency, here the EPA. A waiver may be provided 
if EPA determines that (1) applying these requirements would be 
inconsistent with public the 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 County has requested a waiver from the Buy American Provision 
for the purchase of the foreign made submersible pumps as part of its 
tunnel and tunnel lift station project. The purchase of the submersible 
pumps is part of a project that, according to the County, ``consists of 
a wastewater conveyance and linear storage tunnel from the existing 
Jack's Creek wastewater treatment facility to the existing No Business 
Creek pump station to convey wastewater flows from the tunnel to the 
pump station and a lift station to lift the flow from the tunnel invert 
to the pump station. The tunnel is an approximate 16,000 linear feet, 
12-foot diameter hard rock bore. The lift station is constructed inside 
an approximate 180 feet deep shaft constructed through hard rock and 
lined with concrete and shotcrete. The completed project will have a 
design flow capacity of 7.5 million gallons per day (mgd) and overflow 
storage capacity in excess of 13 million gallons of raw sewage.''
    The project requires the installation of two submersible pumps, 
plus an additional spare submersible pump. The pumps are specified at a 
maximum 335 hp and 5.5 mgd pumping capacity at a total head of 207 
feet. The project specification provided prospective bidders with one 
acceptable

[[Page 3465]]

manufacturer of submersible pumps: ITT Flygt Corporation. ITT Flygt was 
specified as the sole acceptable manufacturer of submersible pumps 
because the County had standardized on such pumps in 2003, when the 
project started. At the time, 88 out of 106 pump systems in the County 
were equipped with Flygt submersible pumps. The County standardized to 
these pumps, according to the standardization agreement with ITT Flygt 
Corporation, to provide greater reliability in the operation of pump 
stations and avoid the increased costs of inventory, service, 
maintenance, and engineering associated with using several different 
brands of pumps. Additionally, according to the County, standardization 
would allow the County to further its efforts to avoid sanitary sewer 
overflows by allowing maximum flexibility to interchange pumps during 
emergencies. Due to the difference in the design of pumps, guide rail 
systems, and electrical control systems, pumps from one manufacturer 
cannot be installed in a pump station outfitted for a different 
manufacturer's pumps. If there is a catastrophic failure or concurrent 
failure of pumps at a given station, interchangeability allows the 
immediate replacement of the failed pumps in one station with little-
used pumps removed from other comparably sized stations. This ability 
is, according to the County, critically important in the event of a 
catastrophic failure or concurrent pump failures. This minimizes the 
downtime of the failed pump station and mitigates the risks of a major 
wastewater overflow. It also eliminates the necessity of maintaining 
spare pumps as a contingency measure against such situations. EPA has 
determined that the County has provided ample cause for 
standardization. Furthermore, standardization took place well before 
ARRA funding was available, so such a decision by the County was 
clearly not an attempt to avoid application of the Buy American 
provisions of ARRA.
    The purpose of the ARRA is to stimulate economic recovery by 
funding current infrastructure construction, not to delay projects that 
are already ``shovel ready'' by requiring SRF eligible recipients such 
as the County to revise their design standards and specifications. The 
imposition of ARRA Buy American requirements in this case would result 
in unreasonable delay for this project, and an unnecessary burden to 
the County, in the form of increased maintenance costs in the future, 
as well as decreased performance of its system due to incompatible 
pumps. To delay this construction would directly conflict with a 
fundamental economic purpose of ARRA, which is to create or retain 
jobs.
    The information provided is sufficient to meet the following 
criteria listed under Section 1605(b) of the ARRA, OMB's regulations at 
2 CFR 176.60-176.170, and in the April 28, 2009, EPA Memorandum: 
Applying the Buy American requirements of ARRA would be inconsistent 
with the public interest.
    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 application of the Buy American 
requirements would be inconsistent with the public interest, the County 
is hereby granted a waiver from the Buy American requirements of 
Section 1605(a) of Public Law 111-5. This waiver permits use of ARRA 
funds for the purchase of the specified ITT Flygt Corporation 
submersible pumps documented in the County's waiver request submittal 
dated September 1, 2009. This supplementary information constitutes the 
detailed written justification required by Section 1605(c) for waivers 
based on a finding under subsection (b)(1).

    Authority: Public Law 111-5, section 1605.

    Dated: December 18, 2009.
A. Stanley Meiburg,
Acting Regional Administrator, Region 4.
[FR Doc. 2010-1119 Filed 1-20-10; 8:45 am]
BILLING CODE 6560-50-P