[Federal Register Volume 75, Number 25 (Monday, February 8, 2010)]
[Notices]
[Pages 6202-6203]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-2661]


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ENVIRONMENTAL PROTECTION AGENCY

[FRL -9111-4]


Notice of a Project Waiver of Section 1605 (Buy American 
Requirement) of the American Recovery and Reinvestment Act of 2009 
(ARRA) to the Auburn, Indiana Department of Water Pollution Control 
(Auburn)

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 Auburn for the purchase of a 
Hydroself model HS40 flushing gate system. 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 flushing gates, which are 
supplied by Gabriel Novac & Associates Inc, are manufactured in Canada, 
and meet Auburn's performance specifications and requirements. The 
Acting Regional Administrator is making this determination based on the 
review and recommendations of EPA Region 5's Water Division. Auburn 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 a flushing gate system for 
Auburn's ``Long Term Control Plan Store-Treat Facility Project'' that 
may otherwise be prohibited under Section 1605(a) of the ARRA.

DATES: Effective Date: December 10, 2009

FOR FURTHER INFORMATION CONTACT: Julie Henning, SRF Financial Analyst 
(312) 886-4882, or Puja Lakhani, Regional Counsel, (312) 353-3190, U.S. 
EPA Region 5, 77 W. Jackson Blvd., Chicago, IL 60613.

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 Auburn for the acquisition of a flushing gate system which is 
manufactured in Canada. The manufacturer is Gabriel Novac & Associates 
Inc.
    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.
    Auburn proposes to construct a ``Long Term Control Plan Store-Treat 
Facility Project'' at the Auburn Water Pollution Control Facility on 
Wayne Street in Auburn. The project is part of Auburn's 20- year Long 
Term Control Plan to reduce combined sewer overflows (CSO's). This 
project will provide storage volume for excess combined sewer flows in 
a storage tank during rain events which would have previously 
discharged to Cedar Creek. After the rain event, the excess sewer flow 
will be treated at the Water Pollution Control Facility. Proper 
maintenance of the storage tank will require periodic cleaning, to 
remove solids that settle at the bottom of the tank. Auburn proposes to 
use a flushing gate system to remove settled solids from the tank. The 
flushing gate system holds sewer overflow water in reserve in 
compartments at the upstream end of the storage tank. This flush water, 
released by a patented mechanism, gives rise to a high celerity wave 
that effectively removes all accumulated debris in basins and 
interceptors over flushway lengths greater than any other available 
method. The use of sewer

[[Page 6203]]

overflow water for this process eliminates the need for freshwater. 
Auburn researched additional options for cleaning the settled solids 
from the storage tank, including tipping buckets, and vacuum flushing, 
and concluded that the flushing gate system is preferable to the other 
options because it is more cost effective and allows for lower 
maintenance and more efficiency in operation due the use of stored CSO 
volume for cleaning.
    Auburn has requested a waiver from the Buy American provision for 
the purchase of a Hydroself model HS40 flushing gate system 
manufactured in Canada. Auburn stated in their waiver application that 
they were unable to locate any domestic manufacturers of flushing gate 
systems.
    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.''
    EPA's national contractor prepared a technical assessment report 
dated August 2, 2009 based on the submitted waiver request, identifying 
two potential domestic suppliers of flushing gates. After being 
notified of the potential domestic suppliers, Auburn contacted each of 
them to determine the availability of the manufactured good. The 
subsequent analysis by Auburn and EPA concluded that neither of the 
domestic suppliers were able to provide the specified good at the time 
needed and place needed, and in the proper form or specification as 
dictated by the project plans and design.
    Domestic supplier 1 is currently involved in a lawsuit 
that could stop the manufacturing and sale of the flushing gate. EPA 
has determined that, under certain circumstances, litigation creates a 
sufficient basis to render the specified equipment unavailable from a 
defendant U.S. manufacturer. Specifically, a U.S. manufacturer's 
product may be considered unavailable when litigation that may 
implicate an assistance recipient's legal rights to use--and 
consequently may subject the assistance recipient to patent 
infringement liability for using--the manufactured good being 
considered for a project has proceeded through initial legal processes, 
or been pending for a sufficient period of time (to make clear that the 
litigation will not be dismissed as frivolous). EPA reviewed the 
litigation documentation and concluded that, due to this pending 
litigation, procuring the flushing gates from domestic supplier 
1 would present an unacceptable risk to Auburn, and this 
impediment thus means that the specified goods are not available from 
this supplier. Auburn contacted domestic supplier 2, and 
inquired about their ability to deliver the manufactured good within 
the project timeline. On September 30, 2009, domestic supplier 
2 stated in writing that they could not meet Auburn's timeline 
requirements for this project, thus establishing that the flushing 
gates would not be available from domestic supplier 2. EPA's 
national contractor's technical assessment report from August 2, 2009, 
did not find any additional domestic suppliers of the specified 
manufactured good.
    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 Auburn 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.
    The State and Tribal Programs Branch has reviewed this waiver 
request and has determined that the supporting documentation provided 
by Auburn is sufficient to meet the 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: 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 Auburn'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, Auburn is 
hereby granted a waiver from the Buy American requirements of Section 
1605(a) of Public Law 111-5 for the purchase of the Hydroself model 
HS40 flushing gate system using ARRA funds as specified in the 
community's request of July 14, 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 10, 2009.
Walter W. Kovalick, Jr.,
Acting Regional Administrator, Region 5.
[FR Doc. 2010-2661 Filed 2-5-10; 8:45 am]
BILLING CODE 6560-50-P