[Federal Register Volume 76, Number 10 (Friday, January 14, 2011)]
[Notices]
[Pages 2684-2686]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-752]


-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

[FRL-9252-8]


Notice of a Project Waiver of Section 1605 (Buy American 
Requirement) of the American Recovery and Reinvestment Act of 2009 
(ARRA) to the Lake County Special Districts

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice.

-----------------------------------------------------------------------

SUMMARY: The EPA is hereby granting a project waiver of the Buy 
American

[[Page 2685]]

requirements of ARRA Section 1605(a) 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 Lake County Special Districts (Lake County), California 
for the Kelseyville Wastewater Treatment Plant project. Lake County 
indicates that the design for the Kelseyville project (Project 
4593-110 funded by the California Clean Water State Revolving 
Fund (CWSRF) ARRA Loan 08-821) requires check valves capable 
of performing under high pressure at a wastewater effluent pump 
station. Lake County is receiving this waiver to purchase Noreva V625 
non-slam check valves for this purpose. This waiver applies only to 
this project. Other ARRA projects that wish to use the same product 
must apply for a separate waiver based on their project-specific 
circumstances. The Assistant Administrator of the Office of 
Administration and Resources Management has concurred with this 
decision to make an exception under section 1605(b)(2) of ARRA.

DATES: Effective Date: November 30, 2010.

FOR FURTHER INFORMATION CONTACT: Abimbola Odusoga, Environmental 
Engineer, U.S. EPA Region 9, Water Division (WTR-4), (415) 972-3437.

SUPPLEMENTARY INFORMATION: In accordance with ARRA Sections 1605(c) and 
1605(b)(2), EPA hereby provides notice it is granting a project waiver 
of the requirements of Section 1605(a) of Public Law 111-5, Buy 
American requirements, to Lake County for the acquisition of V625 non-
slam check valves by foreign manufacturer, Noreva. Section 1605(a) of 
the ARRA requires that none of the funds appropriated or otherwise made 
available by the ARRA may be used for the construction, alteration, 
maintenance, or repair of a public building or public work unless all 
of the iron, steel, and manufactured goods used in the project are 
produced in the United States. Pursuant to Section 1605(b), the head of 
each federal agency is authorized to issue a waiver from the 
requirements of Section 1605(a) for a specific project (project waiver) 
provided the agency determines: (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 EPA Administrator signed a memorandum, dated March 31, 2009, 
delegating authority to Regional Administrators to issue project 
waivers within the geographic boundaries of their respective regions 
and with respect to requests by individual recipients of ARRA financial 
assistance.
    The Kelseyville wastewater treatment project will enhance the 
reliability of the wastewater treatment process to better serve the 
Kelseyville community, which has been classified as a disadvantaged 
community. According to the applicant, the valves will be installed on 
a 15,000 foot, 6-inch effluent line under high pressure (515 feet of 
static head). Check valve failure could result in thousands of gallons 
of backflow at high velocities causing flooding in the pump station, 
overflowing and spilling of effluent. As the project site is located in 
a remote location, an operator will not be present at all times, thus 
increasing the need for high quality, reliable check valves. According 
to Lake County, they require a product without external adjustments or 
devices such as levers, weights, springs, shock absorbers, or speed 
controls. The absence of these features reduces concerns of accidental 
operator error or vandalism in the remote location.
    The applicant included the following specifications in its contract 
documents:
     Type V625 non-slam check valves;
     Axial-flow, quick-closing, non-slam design, spring-loaded 
annular or circular and hardened metal-to-metal seat;
     ANSI Class 300, wafer body to fit between ANSI B16.5 
flanges, rated working pressure 720 psig at 100 degrees F;
     Cast CF8M stainless steel body and disc, type 316 
stainless steel trim;
     Maximum pressure loss of 1 psi at 900 gpm; and
     Valves to be used in combination with a hydropneumatic 
surge tank.
    Upon review, two manufacturers appeared to have products that met 
most of the project specification requirements. One of these 
manufacturers was contacted by Lake County and provided a written 
statement indicating that the use of the hydropneumatic surge tank 
would preclude the use of their valves in this installation. The second 
manufacturer was contacted by the review team. The second manufacturer 
failed to meet the project specification requirements for the following 
reasons:
     The specification lists a maximum pressure loss of 1 psi 
at 900 gpm, whereas the head loss on the domestic valves is 3 psi; and
     The specification lists a hardened metal-to-metal seat. 
The domestic products were unable to fulfill this requirement.
    Based on these findings, EPA concurs with Lake County's claim that 
no known domestic manufacturers of V625 non-slam check valves are 
available to satisfy Lake County's specifications.
    The April 28, 2009, EPA memorandum for implementation of the ARRA 
Buy American provisions of Public Law 111-5 states the quantity of 
iron, steel, or relevant manufactured good is ``reasonably available'' 
if it is available at the time and place needed, and in the proper form 
or specification as specified in the project plans and design. Lake 
County's waiver request articulates a reasonable and appropriate basis 
for selecting the type of technology it chose for this project in 
environmental objectives and performance specifications. Further, it 
provides sufficient documentation to conclude the relevant manufactured 
goods are not produced in the United States of a satisfactory quality 
to meet its technical specifications. Lake County has incorporated 
specific technical design specifications for the proposed project based 
on their needs and has provided information to the EPA indicating there 
are currently no V625 non-slam check valves manufactured in the United 
States that have equivalent product specifications. Based on inquiry by 
EPA's national contractor, there do not appear to be other V625 non-
slam check valves available to meet Lake County's specifications.
    EPA has also evaluated Lake County's request to determine if its 
submission is considered late or if it could be considered timely, as 
per 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, EPA could also determine 
that a request be evaluated as timely, though made after the date that 
the contract was signed, if the need for a waiver was not reasonably 
foreseeable. If the need for a waiver is reasonably foreseeable, then 
EPA could still apply discretion in these late cases as per the OMB 
Guidance, which says ``the award official may deny the request.'' For 
those waiver requests that do not have a reasonably unforeseeable basis 
for lateness, but for which the waiver basis is valid and there is no 
apparent gain by

[[Page 2686]]

the ARRA recipient or loss on behalf of the government, then EPA will 
still consider granting a waiver.
    In this case, there are no U.S. manufacturers that meet Lake 
County's project specification for these check valves capable of 
performing under high pressure. Due to a delay in the construction of 
this project, Lake County was not made aware that there are no domestic 
equivalents for the valves in question until well after the contract 
was signed. There is no indication that Lake County failed to request a 
waiver in order to avoid the requirements of the ARRA, particularly 
since there are no domestically manufactured products available that 
meet the project specifications. EPA will consider Lake County's waiver 
request, a foreseeable late request, as though it had been timely made 
since there is no gain by Lake County and no loss by the government due 
to the late request.
    Furthermore, the purpose of the ARRA is to stimulate economic 
recovery by funding current infrastructure construction, not to delay 
shovel ready projects by requiring entities, like Lake County, to 
revise their design and potentially choose a more costly and less 
efficient project. The imposition of ARRA Buy American requirements on 
such projects eligible for CWSRF assistance would result in 
unreasonable delay and thus displace the ``shovel ready'' status for 
this project. Further delay of this project would contravene the most 
fundamental economic purposes of the ARRA: To create or preserve jobs 
in the United States.
    EPA Region 9's Water Division and Office of Regional Counsel, EPA's 
Buy American consultant, and EPA's Office of Administration and 
Resource Management have reviewed this waiver request and have 
determined the supporting documentation provided by Lake County is 
sufficient to meet the criteria listed under ARRA Section 1605(b)(2) 
and the EPA April 28, 2009, memorandum for implementation of ARRA Buy 
American provisions of Public Law 111-5.
    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, Lake County is hereby 
granted a waiver from the Buy American requirements of Sections 1605(a) 
of Public Law 111-5, for the purchase of Noreva V625 non-slam check 
valves, specified in Lake County's request of June 8, 2010. This 
supplementary information constitutes the detailed written 
justification required by Section 1605(c) for waivers based on a 
finding under Section 1605(b)(2).

    Authority:  Public Law 111-5, Section 1605.

    Dated: November 30, 2010.
Jared Blumenfeld,
Regional Administrator, EPA Pacific Southwest, Region 9.
[FR Doc. 2011-752 Filed 1-13-11; 8:45 am]
BILLING CODE 6560-50-P