[Federal Register Volume 75, Number 36 (Wednesday, February 24, 2010)]
[Notices]
[Pages 8348-8351]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-3703]


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ENVIRONMENTAL PROTECTION AGENCY

[FRL-9117-6]


Notice of a Regional Project Waiver of Section 1605 (Buy 
American) of the American Recovery and Reinvestment Act of 2009 (ARRA) 
to the Massachusetts Water Resources Authority (MWRA)

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice.

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SUMMARY: The EPA is hereby granting a waiver of the Buy America 
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 Massachusetts Water Resources Authority (``MWRA'') for 
the purchase of a 1.5 megawatt (MW) foreign manufactured wind turbine 
for the DeLauri Pump Station Renewable Energy Project in Charlestown, 
Massachusetts. 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. Based 
upon information submitted by the MWRA, it has been determined that 
there is currently no domestically manufactured wind turbine available 
or one that can be supplied to meet its proposed project 
specifications. The Regional Administrator is making this determination 
based on the review and recommendations of the Municipal Assistance 
Unit. 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 foreign manufactured 1.5 MW wind turbine by the MWRA, as specified in 
its November 19, 2009 request.

[[Page 8349]]


DATES: Effective Date: February 11, 2010.

FOR FURTHER INFORMATION CONTACT: David Chin, Environmental Engineer, 
(617) 918-1764, or Katie Connors, Environmental Engineer, (617) 918-
1658, Municipal Assistance Unit (CMU), Office of Ecosystem Protection 
(OEP), U.S. EPA, 5 Post Office Square, Suite 100, Boston, MA 02109-
3912.

SUPPLEMENTARY INFORMATION: In accordance with ARRA Sections 1605(c) and 
1605(b)(2), the EPA hereby provides notice that it is granting a 
project waiver of the requirements of Section 1605(a) of Public Law 
111-5, Buy American requirements, to the MWRA for the purchase of a 
foreign manufactured 1.5 MW wind turbine to meet the MWRA's design and 
performance specifications as part of its proposed DeLauri Pump Station 
Renewable Energy Project in Charlestown, MA.
    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 a public works project 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 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.
    The MWRA is proposing a renewable energy project consisting of a 
1.5 MW wind turbine, secondary unit substation, switchgear, associated 
conductors and controls to be installed at an existing MWRA wastewater 
pump station (DeLauri Pump Station) in Charlestown, Massachusetts (MA). 
The DeLauri Pump Station has an average flow of 31 million gallons a 
day (mgd) and a peak capacity of 93 mgd and serves Charlestown and 
portions of the communities of Somerville, Cambridge, and Medford, MA. 
The pump station functions during dry and wet weather and serves to 
overcome the hydraulic differential required to continue gravity flow 
through the MWRA collection system and eventually to the Deer Island 
Wastewater Treatment Plant.
    The site is located on an MWRA owned parcel of land along the north 
bank of the Mystic River and just west of Alford Street (Route 99) in 
the Charlestown section of Boston. The property area is comprised of 
8.65 acres located in a strictly industrial area and does not have any 
immediate residential abutters. The DeLauri Pump Station building is 
located in the middle of the property. The planned location for the 
wind turbine is near the southwest edge of the Pump Station property 
adjacent to the Mystic River, and approximately 275 feet west of Route 
99, a heavily traveled 4 lane undivided highway. The site is adjacent 
to the Boston Water and Sewer Commission property and directly across 
the highway from the 1600 MW U.S. Power Generating Company's Mystic 
Power Plant.
    The MWRA is requesting a waiver for the purchase of a 1.5 MW wind 
turbine (comprised of all turbine components, including the blades, the 
nacelle (i.e. cover housing that holds the equipment within a wind 
turbine), the gear box, low and high speed shafts, generator, 
controller, and brake), which is manufactured by Sinovel in China. The 
wind turbine is expected to generate electrical power to provide 80% of 
the simultaneous energy needs of the wastewater pump station itself. 
Contingent on pump station demand and wind conditions, the wind turbine 
is also expected to contribute more than 2.65 million kilowatt hours 
per year of clean renewable electricity back to the power grid, which 
is not consumed simultaneously with pump station demand. It should be 
noted that Massachusetts is one of several northeast states that has a 
climate change action plan which calls for significant CO2 
emission reductions by 2020. Integral to that plan is a wider adoption 
of non-emitting renewable sources of electricity. Wind power is 
currently the most practical source of renewable energy to meet that 
goal. The Massachusetts' Renewable Portfolio Standard (RPS) requires an 
increasing amount of the electricity sold in the Commonwealth to come 
from renewable electricity, including wind power. RPS is also one of 
the major policy tools put in place to meet the CO2 
reduction goals under the climate change plan. This project, while 
small, would contribute towards achieving those goals.
    The MWRA waiver request was submitted just after the project was 
advertised for bid. The estimated total cost of the proposed design, 
build, and operate project is $4.7M, with the wind turbine accounting 
for approximately half of the total cost. MWRA has specified a 1.5 MW 
wind turbine, with a height of approximately 262 feet to the top of the 
tower, and 393 feet to the tip of the blade. The maximum blade diameter 
will be approximately 269 feet. This is the largest (and most 
efficient) wind turbine that can be installed and still comply with 
height limitations imposed by the Federal Aviation Administration at 
this particular site.
    The MWRA has researched available domestic and foreign wind turbine 
manufacturers. One domestic manufacturer produces a larger capacity 
wind turbine, but the height of that turbine exceeds the Federal 
Aviation Administration height limitations for the site, and thus could 
not meet project specifications. Another domestic manufacturer that 
produces a wind turbine that meets project specifications was 
identified, but it is not willing to supply a wind turbine for 
installation at the DeLauri Pump Station due to site limitations. The 
domestic manufacturer's internal siting considerations recommended 
that, for safety in the event of icing, a setback distance of 1.5 times 
the hub height and rotor diameter be maintained. As the existing site 
did not allow for such a setback distance, the domestic manufacturer 
declined to make its product available for this project. However, the 
domestic manufacturer's internal siting considerations also provided 
for other possible mitigation techniques for properties that do not 
meet these setback considerations, but the manufacturer did not offer 
to make its product available based on the potential application of 
such techniques at this site.
    One foreign manufacturer, which has been identified to have a 1.5 
MW wind turbine that meets the technical specifications required by the 
MWRA, currently does not use the same site consideration limitations 
applied by the domestic manufacturer. The foreign manufacturer has 
agreed to supply a 1.5 MW wind turbine to the MWRA. There was also 
another foreign manufacturer that had been identified by the MWRA which 
had a 1.5 MW wind turbine that could meet the technical specifications, 
but that foreign manufacturer is now unwilling to provide single wind 
turbine installations.
    There are currently no local, State, Federal, or international 
requirements regulating setback distances associated with potential 
icing conditions while operating wind turbines. There have been 
guidelines that have been suggested by various wind energy industry 
groups, some of which the identified domestic manufacturer has adopted, 
as well as model zoning ordinance/bylaws like the one that the

[[Page 8350]]

Commonwealth of Massachusetts introduced in 2009. The technical aspect 
of detecting and controlling icing through instrumentation and 
equipment also is evolving.
    Based on information provided to the EPA, MWRA has taken all of the 
necessary steps to obtain all necessary local, state, and federal 
approvals to move forward with the proposed project. The project has 
been reviewed by the following regulatory agencies: Federal Aviation 
Administration (i.e. received a Determination of No Hazard to Air 
Navigation); the Boston Conservation Commission (i.e. an Order of 
Conditions); the Boston Redevelopment Authority; the Massachusetts 
Department of Environmental Protection (i.e. Chapter 91 Waterways 
License); Federal Communications Commission; and the Massachusetts 
Historical Commission. The MWRA has also completed significant public 
outreach to abutters (i.e. Boston Water and Sewer Commission, the 
Massachusetts Bay Transportation Authority, and the U.S. Power 
Generating Company), the Massachusetts Highway Department, local 
associations (i.e. City of Boston's Office of Neighborhood Services 
Department, the Charlestown Neighborhood Council (CNC), the CNC 
Development Committee, and the Charlestown Waterfront Coalition), local 
officials and Congressional staff.
    Based on information provided by the MWRA, concerns associated with 
potential ice throws from the wind turbine were not raised during the 
permitting and public outreach process. It should be noted that there 
are a number of existing wind turbine installations in Massachusetts 
that do not conform to the site setback considerations used by the 
domestic manufacturer. However, because the site setback and associated 
safety considerations were the basis for the unavailability of the 
domestic wind turbine, EPA must address these considerations in its 
findings and determination on this waiver request.
    A July 2008 University of Massachusetts (UMASS) Wind Energy Center 
research paper (Wind Turbine Siting--An Assessment of Safety Risks in 
Massachusetts and New England) suggests that the risks in these cases 
are relatively low. The paper references a study which notes that there 
have been no reported injuries from ice throws from wind turbines, 
despite the installation of 6,000 MW of wind energy worldwide. The 
UMASS study further suggests that while icing can be severe in New 
England, the incidence of icing events is relatively small. Several 
papers have noted that the odds of being struck by ice fragments from a 
wind turbine are similar to those odds of being struck by lightning.
    However, while these analyses place the low risks from ice damage 
or injury in the perspective of the experience available, the 
experience with these risks is largely anecdotal and has not been 
systematically assessed in situations where precautionary setback 
distances to heavily traveled public highways are not met. Several 
reports recommend that if setback distances cannot be maintained, 
alternative mitigation methods may be effective at limiting safety 
risks. As noted above, the use of mitigation measures--which may 
include monitoring the approach of conditions likely to lead to icing, 
shutting down the turbine in the event of icing, careful restart 
procedures, and a range of appropriate operational control strategies 
and measures--is also considered appropriate under the domestic 
manufacturer's internal siting considerations where setback distances 
cannot be met. This approach is consistent with available guidelines 
and model bylaws.
    The MWRA, in discussions with the EPA Regional Office, has 
indicated that it will implement a mitigation plan to minimize any 
potential ice throws to ensure public safety. Commercial wind turbines 
have been designed with vibration sensors to detect any imbalance which 
might be caused by icing of the blades, resulting in an automatic 
shutdown (or preventing start up) of the turbine when this imbalance is 
detected. In situations where conditions indicate a risk of icing of 
wind turbine components, mitigation measures can be taken automatically 
or manually. The foreign manufacturer supplying the wind turbine to the 
MWRA has indicated that the turbine comes equipped with vibration 
sensors to shut down when ice build up is detected. The contractor who 
will install the wind turbine has indicated that the control system can 
be programmed to allow for manual start up as well, which will allow an 
operator to visually inspect the turbine to confirm that there is no 
ice remaining before the turbine is re-started. The MWRA will implement 
manual wind turbine operational control strategies during periods of 
ice accretion which include, but are not limited to: Curtailment of 
operation of the turbine, braking the blades in a ``Y'' to facilitate 
ice shedding directly underneath the wind turbine, and yawing the 
nacelle so that the blades are in the safest position for ice shedding. 
It may also post warning signs alerting personnel of the potential risk 
in the area. Access to the turbine area site will be restricted during 
icing conditions, if necessary.
    Based on the evaluation of all of the submitted documentation by 
EPA's technical review team, MWRA's statement that no U.S. manufacturer 
will provide a 1.5 MW wind turbine generator that meets project 
specifications is supported by the available evidence. In addition, the 
evaluation of the supporting documentation indicates that at least one 
foreign manufacturer, Sinovel, will provide its wind turbine at the 
proposed site. Accordingly, EPA finds that the Sinovel wind turbine is 
available on terms that address the basis of the unavailability of the 
domestic-made wind turbine if the MWRA's mitigation plan as stated 
above is implemented. EPA further finds that the MWRA's acceptance and 
use of this waiver represents a commitment by the MWRA to implement the 
mitigation plan, and that such continuing implementation will 
constitute the MWRA's basis for compliance with the requirements of 
ARRA Sec.  1605 with respect to this wind turbine.
    The purpose of the ARRA is to stimulate economic recovery by 
funding current infrastructure construction, not to delay projects that 
are ``shovel ready'' by requiring potential SRF eligible recipients, 
such as the MWRA, to find alternative project sites when appropriate 
and more timely and feasible measures are available consistent with 
project design standards and specifications. The imposition of ARRA Buy 
American requirements in this case would result in unreasonable delay 
and potentially the cancellation of this project as sited. The delay or 
cancellation of this construction would directly conflict with a 
fundamental economic purpose of ARRA, which is to create or retain 
jobs.
    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' '' (``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.'' The same Memorandum defines 
``satisfactory quality'' as ``the quality of steel, iron or 
manufactured good specified in the project plans and designs.''
    The Municipal Assistance Unit (CMU) has reviewed this waiver 
request and has determined that the supporting

[[Page 8351]]

documentation provided by the MWRA establishes both a proper basis to 
specify a particular manufactured good, and that no domestic 
manufacturer is currently available or willing to supply that 
particular manufactured good which meets project specifications. The 
information provided is sufficient to meet the following criteria 
listed under Section 1605(b) of the ARRA and in the April 28, 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 March 31, 2009 Delegation of Authority Memorandum provided 
Regional Administrators with the temporary 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 a proper basis to specify the particular good 
required for this project, that the MWRA has agreed to implement a 
mitigation plan to minimize the likelihood of any potential ice throws 
to ensure public safety, and that this manufactured good was not 
available from a producer in the United States, the MWRA 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 a foreign manufactured wind turbine documented in MWRA's 
waiver request submittal dated November 19, 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: February 11, 2010.
Ira Leighton,
Acting Regional Administrator, EPA Region 1--New England.
[FR Doc. 2010-3703 Filed 2-23-10; 8:45 am]
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