[Federal Register Volume 75, Number 38 (Friday, February 26, 2010)]
[Notices]
[Pages 8943-8944]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-4073]


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ENVIRONMENTAL PROTECTION AGENCY

[FRL-9119-1]


Notice of a Regional Project Waiver of Section 1605 (Buy 
American) of the American Recovery and Reinvestment Act of 2009 (ARRA) 
to the Inland Empire Utilities Agency, California. Project  C-
06-5332-110 Funded by the California CWSRF ARRA Loan  08-823-
550

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice.

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SUMMARY: The Environmental Protection Agency (EPA) is hereby granting a 
waiver of the Buy American requirements of ARRA Section 1605 under the 
authority of Section 1605(b)(1) [applying the Buy American provision 
would be inconsistent with the public interest] to the Inland Empire 
Utilities Agency (``IEUA'') for the purchase of foreign data collection 
transducers. 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 IEUA's 
Rancho Cucamonga groundwater recharge project will include the purchase 
of three transducers with associated hardware manufactured by Solinst 
in Canada, for monitoring in two recharge basins. Beginning in about 
2005 (prior to the enactment of ARRA), the IEUA started procuring 
Solinst transducers, and they developed standard training and 
maintenance procedures for using the Solinst transducers. They 
currently use approximately 20 Solinst transducers at eight recharge 
basins. The IEUA submitted a memorandum dated January 21, 2010, 
explaining the basis in performance characteristics for the pre-ARRA 
selection of Solinst transducers, and explaining the IEUA's prior 
decision to make Solinst transducers their standard transducer for this 
type of application. This pre-ARRA selection of a product on which to 
standardize was undertaken to best enable the IEUA to comply with water 
quality permit requirements for recharged water imposed by State 
regulatory agencies. The procurement of transducers for the IEUA's ARRA 
project is subject to ARRA section 1605 requirements, but IEUA has 
requested a waiver of these requirements as they pertain to the 
transducers, because the use of non-standard transducers would 
detrimentally affect performance, operation and maintenance of the 
recharge project. Based on review of the information provided, EPA has 
concluded a waiver of the Buy American provision is justified pursuant 
to Section 1605(b)(1) [applying the Buy American provision would be 
inconsistent with the public interest]. The Assistant Administrator of 
the Office of Administration and Resources Management has concurred 
with this decision to make an exception to Section 1605 of ARRA. This 
action permits the IEUA to purchase three transducers manufactured by 
Solinst, a Canadian company, as specified in its November 3, 2009 
request, as amended by its January 21, 2010 memorandum.

DATES: Effective Date: February 10, 2010.

FOR FURTHER INFORMATION CONTACT: Abimbola Odusoga, Environmental 
Engineer, Water Division (WTR-4), USEPA Region 9, (415) 972-3437, 75 
Hawthorne Street, San Francisco, CA 94105.

SUPPLEMENTARY INFORMATION: In accordance with ARRA Sections 1605(c) and 
1605(b)(1), the EPA is hereby granting a project waiver of the 
requirements of Sections 1605(a) of Public Law 111-5, Buy American 
requirements, to the IEUA, Chino, California, for the purchase of 
transducers manufactured by Solinst, a Canadian company. EPA has 
evaluated the IEUA's basis for standardizing to the Solinst 
transducers. Based on the information provided by the applicant, EPA 
has determined it is inconsistent with the public interest for the IEUA 
to pursue the purchase of incompatible domestically manufactured 
transducers.
    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 the EPA. A waiver may be provided 
if EPA determines (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 IEUA has requested a waiver from the Buy American Provision for 
the purchase of the foreign made transducers as part of its project to 
meet the permit and other regulatory requirements of the Santa Ana 
Regional Water Quality Control Board (RWQCB) and the State Department 
of Health. According to the IEUA, to recharge recycled water into the 
Chino Groundwater Basin through the Victoria Basin and San Sevaine 
Basin No. 5 in Rancho Cucamonga, California, IEUA must comply with 
discharge requirements issued by the Santa Ana Regional Water Quality 
Control Board (RWQCB) for recharge. As part of the regulatory 
requirements set by the RWQCB and the State Department of Public 
Health, monitoring devices are to be installed to ensure recharged 
water meets the water quality requirements specified in the permit. In 
compliance with the permit, the Agency is installing three local 
monitoring wells and two lysimeter clusters.
    Once the monitoring wells are constructed, a device--which is 
called a transducer--is installed to measure the water level. The IEUA 
now uses approximately twenty transducers manufactured by Solinst, a 
Canadian company, to support the data collection for the monitoring 
wells at eight of the current recharge basins, to meet regulatory 
requirements and discharge permit conditions.
    Beginning in April 2005, the IEUA purchased Solinst transducers a 
few at a time as ground water recharge monitoring wells were contracted 
to be built, and were individually installed in the monitoring wells 
over the past several years as the wells were

[[Page 8944]]

constructed. Thus, over this time period prior to the enactment of 
ARRA, the IEUA standardized its use of the Solinst transducers. At the 
time of the initial transducer procurements, the IEUA concluded the 
Solinst transducers had superior durability and more efficient data 
output compared to the domestically-manufactured transducers. Solinst 
transducers have metal connections that the IEUA determined at that 
time to be more robust and durable than the plastic connections of the 
U.S.-made product, because the plastic connections tend to strip if 
sand or grit gets inside the threading. The IEUA also determined the 
Solinst product provides a consistent data file so that data reduction 
will not have different formats, and require different steps and 
different software. Thus, data manipulation can be streamlined and 
semi-automated. Fewer components are required for installation of the 
Solinst transducers, which reduces the costs for labor and equipment. 
Also, since this transducer has become the IEUA's standard, staff has 
been trained on how to use and maintain this particular equipment and 
software. If another type of transducer was utilized for the three 
monitoring wells being installed for this project, there would be 
approximately $10,000 a year in additional costs for labor and 
training, as well as additional capital costs for equipment due to the 
much higher cost of the domestic-made product.
    EPA finds these considerations as stated by IEUA provide ample 
functional justification for standardization, particularly because the 
use of a functionally effective and reliable set of transducers is 
integral to compliance with State-imposed regulatory requirements. 
Furthermore, as the IEUA's decision to standardize on the Solinst 
transducers took place years before ARRA was enacted, that decision was 
clearly not an attempt to avoid application of the Buy American 
provisions of ARRA. If the mandate of section 1605(a) was applied here 
to require the IEUA to use the domestically-manufactured good under 
these circumstances, it would either force the IEUA to use two 
different and incompatible types of equipment for the same purpose, or 
alternatively to resolve the incompatibility by in effect requiring 
them to buy only the American-made product for their entire system. It 
is not in the public interest to require the IEUA either to bear the 
duplicative (or more) life-cycle costs for two incompatible types of 
goods, or to replace their twenty pre-ARRA Solinst transducers with the 
domestic product, and thereby to extend the scope of the ARRA Buy 
American provision far beyond the procurement of three transducers for 
an ARRA-funded project.
    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 IEUA to revise their design standards and specifications, or to 
impair the efficient operation of project facilities thereafter. The 
imposition of ARRA Buy American requirements in this case would result 
in unreasonable delay for this project, and an unjustifiable burden to 
the IEUA, in the form of wasteful and duplicative life-cycle costs in 
the future, as well as problematic performance of its recharge well 
monitoring system due to incompatible transducers. Both results would 
directly conflict with fundamental economic purposes of ARRA, to create 
or retain jobs, and to build recovery by investments in effective 
infrastructure.
    The information provided is sufficient to meet the following 
criteria listed under Section 1605(b)(1) of the ARRA, OMB's regulations 
at 2 CFR 176.60-176.170, and in the April 28, 2009 EPA memorandum for 
implementation of ARRA Buy American provisions of Public Law 111-5. 
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 IEUA 
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 Solinst transducers as 
documented in the IEUA's waiver request submittal dated January 21, 
2010. 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: February 10, 2010.
Jared Blumenfeld,
Regional Administrator, EPA Pacific Southwest Region.
[FR Doc. 2010-4073 Filed 2-25-10; 8:45 am]
BILLING CODE 6560-50-P