[Federal Register Volume 75, Number 185 (Friday, September 24, 2010)]
[Notices]
[Pages 58379-58380]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-23989]


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ENVIRONMENTAL PROTECTION AGENCY

[FRL-9205-4]


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 Lewiston, ME and the Auburn, Maine Water District

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 Lewiston, Maine and the Auburn, Maine Water 
District (``Auburn-Lewiston'') for the purchase of thirteen separate 
types of ductile iron pipe fittings (with various quantities for each 
individual fitting configuration totaling 33 fittings) that are foreign 
manufactured as part of an upgrade project at the Auburn-Lewiston Water 
Treatment Facility. 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 Auburn-Lewiston, it 
has been determined that there are currently no domestically 
manufactured pipe fittings available to meet the Auburn-Lewiston's 
project 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 foreign manufactured pipe fittings by Auburn-Lewiston, as 
specified in its July 28, 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 City of Lewiston, Maine and the Auburn, Maine 
Water District for the purchase of foreign manufactured pipe fittings 
as part of its water treatment facility upgrade project. The specific 
ductile iron fittings are not available from a domestic manufacturer to 
meet the project construction schedule. 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.
    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 Auburn-Lewiston's 
request, though made after the date that the contract was signed on 
March 11, 2010, can be evaluated as timely because the supplier 
informed the subcontractor of the recipient on July 19, 2010 that the 
domestic manufacturer would not be able to deliver the required type 
and number of fittings to meet the project schedule/delivery date. The 
need for a waiver was not determined until after the subcontractor had 
been informed of the extended delivery delay and further research 
indicated that there were no domestic manufacturers that could provide 
the necessary pipe fittings to meet the required project delivery 
schedule. The recipient could not reasonably foresee the need for such 
a determination until it was informed that the specific domestic pipe 
fittings would not be available at the originally scheduled time frame. 
Accordingly, EPA will evaluate the request as if it were timely.
    Auburn-Lewiston is constructing a new Ultraviolet (UV) disinfection 
treatment facility in order to comply with the Long Term 2 Enhanced 
Surface Water Treatment Rule requirements of the Safe Drinking Water 
Act, and part of the work involves the installation of new pipe and 
pipe fittings. According to information provided by Auburn-Lewiston, 
there are 13 different fitting types of various sizes and connection 
types, resulting in a total of 33 individual fittings. The fittings are 
also required to meet the following specifications: (1) Manufactured to 
conform with ANSI/AWWA A21.51/C151; (2) inside bituminous coating; and 
(3) outside primer of TNEMEC Omnithane Series 1.

[[Page 58380]]

    According to Auburn-Lewiston, the subcontract to furnish and 
install the ductile iron pipe and pipe fittings was awarded on March 
11, 2010 and none of the subcontractors raised any concerns about 
getting the pipe fittings delivered on time. A purchase order for the 
ductile iron piping and fittings was placed on April 29, 2010 with an 
agreed upon shipping date of July 19, 2010 to meet the project 
schedule.
    On July 19, 2010, the supplier received notification from the 
domestic foundries manufacturing the subject fittings that due to 
production order backlog, delivery of standard fittings would be 
delayed at least 4 weeks and delivery of the special, non-standard 
fittings (long radius bends and large diameter tees) could be delayed 
at least 8 weeks. The project procurement manager reported that the 
estimated 4 and 8 week delays were not guaranteed and that the delays 
could be longer. The possibility of delays was confirmed by EPA's 
national contractor in conversation with the manufacturer.
    The project schedule called for delivery and installation of the 
ductile iron pipe fittings between July 16, 2010 and August 12, 2010, 
so the testing of the lines could be initiated prior to September 1, 
2010. In addition, the ultraviolet disinfection treatment system 
testing completion and operator training milestone date is December 8, 
2010, with an overall project completion and transfer of facility to 
the owner date of January 5, 2011. If the delivery of the pipe fittings 
is delayed until mid-September of 2010, it is estimated that final 
completion date will be pushed back to at least several weeks. There 
also has been no guarantee given by the manufacturer that the fittings 
will be delivered by mid-September, the revised delivery date. 
According to Auburn-Lewiston, delivery times for certain items are 
being quoted as long as six months for existing orders.
    The project procurement manager solicited quotations and committed 
delivery times for non-domestic manufactured ductile iron fittings from 
two local suppliers. Based on the information that was obtained, the 
non-domestic manufactured ductile iron pipe fittings necessary for the 
project, with the exception of one 24'' x 4'' tee, could be delivered 
within a time frame to meet the project schedule. The work could be 
coordinated to accommodate the later delivery of the 24'' x 4'' tee and 
preserve the December 8, 2010 overall system testing and operator 
training milestone date, as well as the January 5, 2011 overall project 
completion date.
    Based on the review conducted by EPA's national contractor, Auburn-
Lewiston's claim that the specific ductile iron fittings are not 
available from a domestic manufacturer to meet project schedule 
milestones is supported by the available evidence. At least eight 
additional potential domestic manufacturers of ductile iron pipe 
fittings were contacted and it was determined that none would be able 
to meet the required project delivery schedule.
    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 Auburn-Lewiston to either revise their design 
standards and specifications, or in this situation significantly alter 
its construction schedule. The imposition of ARRA Buy American 
requirements in this case would result in an 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.
    The April 28, 2009 EPA HQ Memorandum, ``Implementation of Buy 
American provisions of Pub. 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 Auburn-Lewiston establishes both a proper basis to specify a 
particular manufactured good, and that the domestic manufactured good 
is currently not available to meet 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 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 of Lewiston, 
Maine and the Auburn, Maine Water District are 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 non-
domestic manufactured pipe fittings documented in Auburn-Lewiston's 
waiver request submittal dated July 28, 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. 2010-23989 Filed 9-23-10; 8:45 am]
BILLING CODE 6560-50-P