[Federal Register Volume 75, Number 168 (Tuesday, August 31, 2010)]
[Notices]
[Pages 53301-53303]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-21676]


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ENVIRONMENTAL PROTECTION AGENCY

[FRL-9195-1]


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 Sturbridge, 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 Sturbridge, Massachusetts (``Town'') for the 
purchase of a foreign manufactured submersible mixer to be installed in 
a new septage storage tank as part of a proposed wastewater treatment 
plant upgrade. 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 Sturbridge and its consulting engineer, 
it has been determined that there are currently no domestic 
manufactured submersible mixers available to meet its proposed 
technical 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 submersible mixer by the Town of 
Sturbridge, Massachusetts, as specified in its May 25, 2010 request.

DATES: Effective Date: August 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(b)(2) 
and 1605(c), the EPA hereby provides notice that it is granting a 
project waiver of the requirements of

[[Page 53302]]

Section 1605(a) of Public Law 111-5, Buy American requirements, to the 
Town of Sturbridge, Massachusetts for the purchase of a non-domestic 
manufactured submersible mixer, the Landia Model POPR-1 made in 
Denmark, to be installed in a new septage storage tank to meet its 
technical design specifications as part of its proposed wastewater 
treatment plant upgrade.
    EPA has determined that the Town's waiver request is late, but EPA 
will evaluate the request as if it were timely made even though the 
request was made after the construction contract was signed. Consistent 
with the direction of the OMB Guidance at 2 CFR 176.120, EPA will 
generally regard waiver requests with respect to components that were 
specified in the bid solicitation or in a general/primary construction 
contract as ``late'' if submitted after the contract date. However, in 
this case EPA has determined that the Town's request, though made after 
the date that the contract was signed, can be evaluated as timely 
because a domestic submersible mixer meeting project specifications was 
found to be unavailable by the contractor only after the shop drawings 
had become available, which was after the contract date. The need for a 
waiver was not determined until after the contractor had completed its 
review and had confirmed that there were no domestic submersible mixers 
available to meet project specifications. Accordingly, EPA will 
evaluate the request as if it were timely made.
    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 Sturbridge is proposing a major upgrade to its existing 
secondary treatment facility. It will include the construction of a new 
headworks building; renovations to the existing process and filter 
buildings; renovations to existing storage tanks and the construction 
of new storage tanks; construction of new yard piping and conduit 
systems; and other site improvements. The construction will take place 
while the existing treatment facility remains fully operational. The 
estimated cost of the entire wastewater treatment facility upgrade, 
necessary to meet more stringent effluent limits in the future and to 
accommodate expansion of the municipal sewer system, is approximately 
$16M.
    According to the Town's design engineer, the corrosive nature of 
the septage and landfill leachate to be stored in the new septage 
storage tank requires that the submersible mixer be constructed 
entirely of stainless steel. Other prominent specifications require 
that the mixer be equipped with a single planetary gear box with gear 
reduction capability to provide increased longevity and efficiency for 
the submersible mixer, and require that the mixer shaft be equipped 
with a motor shaft sealing system comprised of three seals. Excerpts 
from the submersible mixer specifications document provided by the 
Town's design engineer include the following:
    (1) Each mixer shall be of the integral-gear, close coupled, 
submersible type with a maximum propeller speed of 390 rpm. All 
components of the mixer, including the motor and gearbox, shall be 
manufactured of solid AISI 316 acid-proof stainless steel and provide 
continuous underwater operation while the mixer blades are completely 
submerged. No stainless steel jackets that cover a cast iron housing 
shall be allowed.
    (2) Each mixer shall be provided with a grease chamber in the 
propeller hub for the shaft sealing system, and a separate oil chamber 
for the gearbox and mechanical seals. Drains and inspection plugs shall 
be provided with positive anti-leak seals and shall be accessible from 
the outside.
    (3) Each mixer shall be provided with a sealing system consisting 
of three seals separating the various parts. The outer seal in the 
propeller hub shall be a lip seal with a stainless steel spring, 
sealing the propeller shaft and hub grease chamber from the mixed 
media, running on a stainless steel exchangeable wear bushing.
    (4) The gearbox shall be a one-stage planetary reduction gear, 
equipped with high precision, low-loaded gears designed for infinite 
life and shall have a service factor of not less than 1.5.
    The Town provided information on four domestic manufacturers of 
submersible mixers and has determined that there are currently no 
domestic manufacturers able to provide a submersible mixer that can 
meet all of the project technical specifications. The Town also 
identified a foreign manufacturer, Landia, Inc., in Denmark, which 
produces a submersible mixer, Landia Model POPR-1. According to the 
design engineer for the Town, it is the only submersible mixer that is 
equipped with a gear reduction capability and is constructed entirely 
of stainless steel-wetted parts meeting all project specifications. The 
Town has requested a waiver for the Landia submersible mixer, Model 
POPR-1, to be installed in the new septage storage tank.
    An independent evaluation conducted by EPA's technical review team 
supports and confirms the Town' claim that there are currently no 
domestic manufacturers that can provide a submersible mixer to meet 
project specifications. Research and follow-up communications between 
EPA's national contractor and the four identified domestic 
manufacturers confirmed that three do not manufacture gear driven 
submersible mixers, and the fourth does not produce entirely stainless 
steel mixers. Additional research conducted by EPA's national 
contractor identified another domestic submersible mixer manufacturer. 
However, it is not able to provide a submersible mixer that meets 
project specifications. While this manufacturer claims that it plans to 
produce a submersible mixer to meet project specifications by the 
latter part of 2010, it does not currently do so.
    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.''
    Furthermore, the purpose of the ARRA is to stimulate economic 
recovery by funding current infrastructure construction, not to delay 
or curtail entirely projects that are ``shovel ready'' by requiring 
potential SRF eligible recipients, such as the Town of Sturbridge, to 
revise their design standards and specifications. To curtail entirely 
this construction would directly

[[Page 53303]]

conflict with a fundamental economic purpose of ARRA, which is to 
create or retain jobs.
    The Municipal Assistance Unit (CMU) has reviewed this waiver 
request and has determined that the supporting documentation provided 
by Sturbridge establishes both a proper basis to specify a particular 
manufactured good, and that the domestic manufactured goods that are 
currently available do not meet the design specifications 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 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 was not 
available from a producer in the United States, the Town of Sturbridge, 
Massachusetts 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 
submersible mixer in Sturbridge's waiver request submittal dated May 
25, 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: August 19, 2010.
Ira W. Leighton,
Acting Regional Administrator, EPA Region 1--New England.
[FR Doc. 2010-21676 Filed 8-30-10; 8:45 am]
BILLING CODE 6560-50-P