[Federal Register Volume 75, Number 121 (Thursday, June 24, 2010)]
[Notices]
[Pages 36069-36071]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-15342]


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ENVIRONMENTAL PROTECTION AGENCY

[FRL-9167-9]


Notice of a Regional Project Waiver of Section 1605 (Buy 
American) of the American Recovery and Reinvestment Act of 2009 (ARRA) 
to the City of Newport, RI

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)(2) [manufactured goods are not produced in the United States in 
sufficient and reasonably available quantities and of a satisfactory 
quality] to the City of Newport, RI (``City'') for the purchase of a 
foreign manufactured ultraviolet (UV) light disinfection treatment 
system for the Easton Beach Project in Newport, Rhode Island. 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 City and its consulting engineer, it has been 
determined that there are currently no domestically manufactured UV 
disinfection treatment systems available to meet the City's project 
specifications and construction schedule. 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 UV light disinfection 
treatment system by the City, as specified in its February 4, 2010 
request.

DATES: Effective Date: June 15, 2010.

FOR FURTHER INFORMATION CONTACT: Katie Connors, Environmental Engineer, 
(617) 918-1658, or David Chin, Environmental Engineer, (617) 918-1764, 
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 City of Newport, RI (``City'') for the purchase of 
a non-domestically manufactured medium-pressure UV light disinfection 
treatment system from Trojan Technologies, manufactured in Canada, to 
meet the City's design and performance specifications and construction 
schedule as part of its proposed Easton Beach Project in Newport, RI. 
Trojan Technologies has a U.S. manufacturing facility in Ontario, 
California, but that site is not currently equipped to conduct a 
specific product test

[[Page 36070]]

procedure required for this project's specifications.
    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 City is proposing a disinfection system to treat storm water 
discharging into Easton Beach, a recreational area. The UV disinfection 
system is designed to treat as much as 62 MGD of storm water that has 
historically been the source of elevated concentration levels of 
bacterial contamination sufficient to cause health officials to close 
the Easton Beach area for recreational purposes during certain weather/
runoff events.
    The project specifications are for a medium pressure UV light 
disinfection system capable of treating up to 62 MGD with the following 
parameters: (1) Minimum 55% UV transmittance in storm water runoff, 
with a minimum of 30 mg/L total suspended solids (TSS) concentration, 
(2) 40 mW-sec/cm\2\ applied UV dose, (3) The Rhode Island Department of 
Health beach closure standard is that each sample shall be less than or 
equal to 104 Enterococci colonies/100 mL; a 20 year lifetime process 
performance guarantee will be required of the disinfection system 
supplier, (4) Allowable headloss at Peak Flow 18 inches, maximum from 
the controlling weir to the discharge pumps outlet, (5) Requisite UV 
dose at 254 nm wavelength: 40 mW-sec/cm\2\, (6) Ultraviolet 
transmittance at 253.7 nm: 55%, and (7) effluent to be able to meet 30 
mg/L of Total Suspended Solids (TSS).
    Trojan Technologies (``Trojan'') manufactures the applicable 3000+ 
UV disinfection treatment unit domestically in the Ontario, California 
plant as well as outside the U.S. in Canada. However, due to the beach 
closure standard by the RIDOH and the specification of a 20 year 
lifetime process performance guarantee for the UV system, the product 
will be subject to a device test cell procedure. Trojan's California 
site is not equipped for this test procedure at this time. However, the 
Canadian site is currently equipped for the test. The test is performed 
at the site of manufacture in Canada, according to the City's design 
engineer.
    The supporting documentation and independent research and 
communication with select manufacturers of medium pressure UV 
disinfection systems conducted by EPA's national contractor demonstrate 
that there are no U.S. manufacturers able to meet all the project 
specifications and the construction schedule. The design engineer for 
the City had identified one domestic manufacturer in the United States. 
According to the City's design engineer, although the domestic 
manufacturer could meet most of the project specifications and 
performance criteria, if the City used the domestic UV disinfection 
system, a redesign of the system would be required before construction 
could take place. The domestic system is larger than the proposed 
Trojan system and an increase in the size of the structure housing for 
the UV system would be necessary. Additionally, the electrical system 
of the UV system would also need to be redesigned if the domestic 
system was used. Project permits that have been approved for the 
proposed Trojan system would likely have to be modified and/or new 
permits would need to be secured because of the increase in the size of 
the structure. EPA confirmed that the footprint would increase by 50 
percent for the domestic system. There has already been considerable 
public concern regarding the size of the actual proposed stormwater 
disinfection structure being located in a popular and busy recreational 
section of Newport. There is a great deal of local and tourist traffic 
in the area. In addition, there are a number of site constraints 
involved with the proposed project. For example, one of the design 
requirements noted by the City of Newport was that the amount of land 
that may be disturbed is less than 25,000 square feet in order to 
minimize impacts to existing buried utilities, the existing street or 
right-of-way, as well as the nearby stream and dam. The City is 
concerned that significantly increasing the size of the structure will 
raise additional public concern and would indefinitely delay the 
project. The redesign of the structure would take months to complete 
and that along with the expected permitting process would ultimately 
delay the construction of the project by at least 2-3 months. An 
independent review of the submitted documentation by EPA's national 
contractor confirmed this evidence.
    Furthermore, 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 City of Newport, RI, to revise their design 
standards and specifications as well as their construction schedule. 
The imposition of ARRA Buy American requirements in this case would 
result in unreasonable delay for this project. To delay this 
construction would directly conflict with a fundamental economic 
purpose of ARRA, which is to create or retain jobs. In addition, the 
timely construction of the new stormwater disinfection system would 
allow further protection of Easton Beach and its users. The project 
delays are of particular concern for implementation of the system 
within the recreation season of 2010.
    The April 28, 2009 EPA HQ Memorandum, ``Implementation of Buy 
American provisions of P.L. 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 City establishes both a proper basis to specify a particular 
manufactured good, and that the domestic manufactured good that is 
currently available does not meet all of the design specifications and 
the construction schedule for the proposed project. 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

[[Page 36071]]

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, the City 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 non-domestic manufactured ultraviolet light disinfection 
treatment system documented in City's waiver request submittal dated 
February 4, 2010. This supplementary information constitutes the 
detailed written justification required by Section 1605(c) for waivers 
based on a finding under subsection (b).

    Authority: Pub. L. 111-5, section 1605.

    Dated June 15, 2010.
Ira W. Leighton,
Acting Regional Administrator, EPA Region 1--New England.
[FR Doc. 2010-15342 Filed 6-23-10; 8:45 am]
BILLING CODE 6560-50-P