[Federal Register Volume 75, Number 185 (Friday, September 24, 2010)]
[Notices]
[Pages 58380-58382]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-23968]


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ENVIRONMENTAL PROTECTION AGENCY

[FRL-9206-3]


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 Bristol, 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)(1) [inconsistent with the public interest] to the Town of 
Bristol, Rhode Island (Town) for the utilization and installation of 
two influent and two effluent sluice gates for the facility's two final 
clarifiers as part of a larger overall wastewater treatment plant 
upgrade project. 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 Town 
had been assured by the manufacturer that the sluice gates would be 
made in a facility in Massachusetts. However, the manufacturer informed 
the Town of Bristol in writing on July 8, 2010 that

[[Page 58381]]

due to an internal miscommunication, the sluice gates that were 
delivered to the site for installation were actually manufactured in 
Canada, and not in Massachusetts. The manufacturer has offered to 
provide these sluice gates at no charge other than the cost for freight 
and field service. Re-ordering the sluice gates and having them 
manufactured in the Massachusetts facility would delay the upgrade work 
to the final clarifiers by at least three months. Unfortunately, the 
existing final clarifier equipment is failing, and given that existing 
wastewater flows at the wastewater treatment plant are at seasonal 
lows, the most opportune time to install the sluice gates would be 
during the July and August time frame. Based upon information submitted 
by the Town's consulting engineer, EPA has concluded that requiring the 
installation of domestic manufactured sluice gates, which would extend 
the time frame by at least three months, would be inconsistent with the 
public interest, and that a waiver of the Buy American provisions is 
justified. 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 the requirements of Section 1605(a) of ARRA. This action 
allows the installation of the foreign manufactured influent and 
effluent sluice gates, as specified in its July 8, 2010 request.

DATES: Effective Date: September 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(a) of Public Law 111-5, Buy American 
requirements, to the Town of Bristol, Rhode Island for the installation 
of two influent and two effluent sluice gates for two final clarifiers 
as part of a wastewater treatment plant upgrade project. Based on the 
information provided by the Town's design engineer, EPA has determined 
that it is inconsistent with the public interest for the Town to 
further delay the project and pursue the purchase of domestically 
manufactured sluice gates.
    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 under Section 1605(b) 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.
    Consistent with the direction of OMB's regulation at 2 CFR 176.120, 
EPA will generally consider a waiver request with respect to components 
that were specified in the bid solicitation or in a general/primary 
construction contract or those made after obligating ARRA funds for a 
project to be a ``late'' request. However, in this case EPA has 
determined that the Town's request, though made after the date the 
contract was signed, can be evaluated as timely because the 
manufacturer informed the general contractor on July 8, 2010 that due 
to an internal miscommunication, the sluice gates that were delivered 
to the construction site had been manufactured in its Quebec, Canada 
facility. The need for a waiver was not determined until after the 
general contractor was informed of the miscommunication and delivery of 
the foreign manufactured sluice gates. The recipient could not 
reasonably have foreseen the need for a determination until informed of 
the error. Accordingly, EPA will evaluate the request as if it were 
timely.
    The Town is requesting a waiver of the Buy American provision for 
installation of two influent and two effluent sluice gates for the 
facility's two final clarifiers as part of a larger overall wastewater 
treatment plant upgrade project. The planned upgrades to the final 
clarifiers include removal and replacement of the following equipment: 
(a) Two clarifier mechanisms including trusses supporting the sludge 
rakes; scum skimmers; drive mechanisms and a new walkway; (b) two 
influent and two effluent sluice gates; (c) scum removal equipment; and 
(d) effluent weirs and troughs. The sluice gates are necessary for 
isolating each final clarifier and are currently not functional as they 
are remain ``stuck'' in the open position. The existing clarifier 
mechanisms are over twenty years old and in need of immediate repair. 
The mechanisms are approximately 75 feet in diameter and scrape the 
settled sludge to the sludge pump for withdrawal and processing. Each 
mechanism also incorporates scum removal rake arms and scum troughs 
that provide scum removal from the surface of the tanks.
    One of the final clarifier skimmer arm supports began to fail in 
June of 2009. The supports became bent making the entire mechanism 
inoperable. In order to allow the continued removal of the sludge from 
the bottom of the tank, the sludge collection arms needed to be 
removed. Since the existing sluice gates were inoperable, the Town was 
required to hire a diver to disconnect the skimmer support arms. 
Immediately after the failure of the first final clarifier skimmer, the 
skimmer arm for the second final clarifier also failed and was also 
removed. Since the removal of the skimmer arms last summer and until 
the completion of these proposed upgrades, wastewater treatment plant 
personnel have been manually removing scum from these tanks.
    The Town's general contractor submitted the sluice gate shop 
drawings for review in February of 2010. The Town's design engineer 
reviewed the shop drawings and determined that the sluice gates were 
manufactured in Canada and would not meet the Buy American 
requirements. This was conveyed to the general contractor in March of 
2010. The general contractor was informed by the manufacturer that it 
had the capability to manufacture the sluice gates at its Orange, 
Massachusetts facility. Based on the belief of all parties that this 
would satisfy the Buy American requirements, the project proceeded and 
the gates were scheduled for delivery and installation in July of 2010. 
All of the other final clarifier equipment has been delivered to the 
site and is ready for installation, pending installation of the new 
sluice gates.
    Unfortunately, the manufacturer informed the general contractor on 
July 8, 2010 that due to an internal miscommunication, the sluice gates 
that were delivered to the construction site had been manufactured in 
its Quebec, Canada facility, not in Orange, Massachusetts. The Town had 
been assured by the manufacturer in March of 2010 that the sluice gates 
would be made in the Orange, Massachusetts manufacturing facility. The

[[Page 58382]]

manufacturer is aware of the scheduling implications and has offered to 
provide the sluice gates at no cost, other than for freight and field 
service charges. The Town, which could not reasonably foresee the need 
for a waiver to the Buy American provision of the ARRA, submitted a 
waiver request immediately (July 9th, 2010) after they were informed by 
the manufacturer of the delivery oversight.
    Re-ordering the gates and having them manufactured in the 
Massachusetts facility would delay the upgrade work to the final 
clarifiers by at least three months. Unfortunately, the existing final 
clarifier equipment has already failed, and since existing wastewater 
flows at the wastewater treatment plant are currently at seasonal lows, 
the most opportune time to install the new sluice gates would be during 
the July and August time frame.
    Furthermore, the purpose of the ARRA is to stimulate economic 
recovery by funding current infrastructure construction, not to delay 
or require the substantial redesign of projects that are ``shovel 
ready,'' such as this project at the Bristol, Rhode Island Wastewater 
Treatment Plant. The implementation of the ARRA Buy American 
requirements in this case would result in additional cost for this 
project and unreasonable delay in its completion. Such delay would also 
directly conflict with a fundamental economic purpose of ARRA, which is 
to create or retain jobs. More importantly, the imposition of the Buy 
American requirement would result in additional risk to water quality 
protection.
    The Municipal Assistance Unit (CMU) has reviewed this waiver 
request and has determined that the supporting documentation provided 
by the Town's design engineer established a proper basis to specify 
that using the domestic manufactured good would be inconsistent with 
the public interest of the Town of Bristol, Rhode Island. The 
information provided is sufficient to meet the following criteria 
listed under Section 1605(b)(1) of the ARRA and in the April 28, 2009 
Memorandum: Applying these requirements would be inconsistent with the 
public interest.
    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 using a domestically available 
alternative manufactured good would be inconsistent with the public 
interest, the Town of Bristol, Rhode Island 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 installation and 
utilization of foreign manufactured influent and effluent sluice gates 
as documented in the Town's waiver request submittal dated July 9, 
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: September 15, 2010.
Ira W. Leighton,
Acting Regional Administrator, EPA Region 1--New England.
[FR Doc. 2010-23968 Filed 9-23-10; 8:45 am]
BILLING CODE 6560-50-P