[Federal Register Volume 75, Number 80 (Tuesday, April 27, 2010)]
[Notices]
[Pages 22129-22131]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-9751]


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ENVIRONMENTAL PROTECTION AGENCY

[FRL-9142-5]


Notice of a Regional Project Waiver of Section 1605 (Buy 
American) of the American Recovery and Reinvestment Act of 2009 (ARRA) 
to the Town of Falmouth, MA

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 Town of Falmouth, Massachusetts for the purchase of a 
foreign manufactured wind turbine to be installed at its existing 
wastewater treatment facility site. 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 Town of Falmouth 
and its consulting engineer, it has been determined that there are 
currently no domestic manufactured wind turbines available to meet its 
proposed project design and performance 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 wind 
turbine by the Town of Falmouth, MA, as specified in its February 24, 
2010 follow-up submittal.

DATES: Effective Date: April 19, 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 Section 1605(c), the 
EPA hereby provides notice that it is granting a project waiver of the 
requirements of Section 1605(b)(2) of Public Law 111-5, Buy American 
requirements, to the Town of Falmouth, Massachusetts for the purchase 
of a foreign manufactured wind turbine that meets the Town of 
Falmouth's design and performance specifications to be installed at its 
existing wastewater treatment facility site.
    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 Town of Falmouth, Massachusetts (MA) is proposing to construct 
a foreign manufactured Vestas model V82, 1.65 megawatt (MW) wind 
turbine generator at the Town's wastewater treatment facility located 
at 154 Blacksmith Shop Road, a 314 acre town owned site in Falmouth, 
MA. This proposed wind turbine would be the second one installed and 
commissioned at the site although the existing wind turbine was not 
funded through the ARRA. The Town of Falmouth is requesting a waiver 
for the purchase of a 1.65 MW wind turbine comprised of all turbine 
components, including, but not limited to: 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. The wind turbine is manufactured by Vestas of Denmark, and meets 
project design and performance specifications. The total estimated cost 
to furnish, install and commission the proposed wind turbine is 
approximately $4.3M.
    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 proposed 
wind turbine is expected to generate an average of 3,075 MW hours of 
electricity annually, representing approximately 30% of the Town's 
total municipal building and facilities electrical needs.
    The Town of Falmouth has thoroughly researched available domestic 
and foreign wind turbine manufacturers. According to the Town, there 
was only one domestic manufacturer that produces a wind turbine that 
appears to meet project design and performance specifications. However, 
the identified domestic manufacturer is not willing to supply a wind 
turbine for installation at the Falmouth Wastewater Treatment Plant, 
nor is it willing to support a warranty and service agreement for 
another available unit that it has already manufactured. According to 
the domestic manufacturer, the Town's proposed construction site would 
not meet the manufacturer's internal setback requirement distances to 
mitigate the risks associated with potential ice throws from the 
turbine blades. 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--in 
this case, 646 feet--be maintained from occupied structures, roads, 
property lines and public access areas. The proposed wind turbine would 
be set back approximately 552 feet from the property line, 646 feet 
from the nearest public road (Route 28), and 1,150 feet from the 
nearest residential structure.
    Thus, the siting would provide sufficient setback distances for the 
road

[[Page 22130]]

and residential structures but not the property line. The domestic 
manufacturer cited the setback distance to EPA's national contractor as 
the basis for its refusal 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, notwithstanding 
that the setback limitations at this site were relatively minor, and 
can readily be addressed by mitigation techniques. (For example, while 
a road located within the desired setback distance cannot practically 
be moved and will present some continuing risk, a simple property line 
incursion within the setback distance can effectively be addressed by 
signs to provide notice of the risk during certain weather conditions.) 
The foreign manufacturer which has already supplied an identical 1.65 
MW wind turbine that meets the technical specifications required by 
Falmouth at the site has agreed to supply another 1.65 MW wind turbine 
to Falmouth at the same site.
    Based on information provided to the EPA, the Town of Falmouth has 
taken the necessary steps to obtain all required local, state, and 
federal approvals to move forward with the proposed project. The Town 
of Falmouth has adopted a local ordinance regulating large scale wind 
turbines. According to the submittal, Zoning Article XXXIV, Chapter 
240, Section 240-166 requires a Special Permit for windmills with 
minimum setback from property lines. The setback requirements of the 
ordinance states that ``On the lot of the petitioner there shall be an 
area sufficient so that a circle, the center of which shall be no less 
than the height of the tower as measured from the base of the tower to 
the uppermost of the blade, or tower, whatever is greater plus 10 feet, 
may be drawn and be completely within the petitioner's land.''
    According to the Town, based on the setback requirements of the 
local ordinance, a wind turbine with an 80 meter (262 feet) tower would 
be required to be set back 272 feet from the property line. All setback 
distances noted above for the proposed wind turbine meet the local 
zoning code. The Town Planning Department has determined that a wind 
turbine is a use allowed as a matter of right in a Public Use Zoning 
district pursuant to Section 240-30, Permitted Community Service Uses, 
of the Zoning Bylaw.
    Furthermore, Special Legislation (Chapter 200 of the Acts of 2007) 
was also passed by the General Court of Massachusetts to permit the 
Town of Falmouth to design and install wind energy facilities at its 
wastewater treatment facility at Blacksmith Shop Road, prepare and 
improve the site, acquire all equipment necessary for the wind energy 
facilities, and to make related improvements and repairs to the 
facilities. The Town has also secured other project approvals and 
permits from the Massachusetts Historical Commission, the Massachusetts 
Natural Heritage and Endangered Species Program, the Department of Air 
Force Space Command, the Massachusetts Division of Fisheries and 
Wildlife and the Federal Aviation Administration for the proposed 
project.
    The Town of Falmouth, in discussions with the EPA Regional Office, 
has stated that it will implement a mitigation plan to minimize any 
potential ice throws to ensure public safety, which appears to provide 
an ample margin of safety even within the domestic manufacturer's 
internal siting considerations, where the setback distances meet Town 
zoning requirements, and any setback concerns appear relatively minor 
and appropriately mitigated. The Town of Falmouth has indicated that 
the foreign manufactured wind turbine that is being supplied comes 
equipped with vibration sensors to shut down the turbine when ice build 
up is detected. The control system will also 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 Town of Falmouth 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 to alert personnel of the potential risk 
in the area. Access to the turbine area at the site is currently and 
will remain restricted. After hours, the only vehicular access to the 
treatment plant site is through a gate that is typically closed and 
locked. The mitigation plan will be part of the overall operational and 
maintenance protocol for the Town of Falmouth wastewater treatment 
facility.
    Based on the evaluation of all of the submitted documentation by 
EPA's technical review team, the Town of Falmouth's statement that no 
U.S. manufacturer is willing to provide a 1.5 MW-2.0 MW wind turbine 
generator that meets project performance specifications is supported by 
the available evidence. In addition, the evaluation of the supporting 
documentation indicates that at least one foreign manufacturer will 
provide a wind turbine at the proposed site that can meet project 
design and performance specifications.
    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 SRF eligible recipients, such as the 
Town of Falmouth, to redesign or relocate a potential project. 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 documentation provided 
by the Town of Falmouth establishes a proper basis to specify the 
particular good required for this project, that the Town of Falmouth 
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 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.

[[Page 22131]]

    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 both a proper basis to specify the particular 
good required for this project and that this manufactured good is not 
available from a producer in the United States, the Town of Falmouth 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 as documented in 
the Town of Falmouth's follow-up submittal dated February 24, 2010. 
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: April 19, 2010.
Ira W. Leighton,
Acting Regional Administrator, EPA Region 1--New England.
[FR Doc. 2010-9751 Filed 4-26-10; 8:45 am]
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