[Federal Register Volume 76, Number 89 (Monday, May 9, 2011)]
[Notices]
[Pages 26725-26726]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-11216]


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ENVIRONMENTAL PROTECTION AGENCY

[FRL-9303-3]


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 South Burlington, VT

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 City of South 
Burlington, Vermont (``City'') for the installation of two specific 
turbo aeration blower units for the City's Airport Parkway Wastewater 
Treatment Plant Upgrade project. This is a project specific waiver and 
only applies to the use of the specified products for the ARRA project 
under construction. Any other ARRA recipient that wishes to use the 
same products must apply for a separate waiver based on project 
specific circumstances. The City was provided written representations 
by the manufacturer (K Turbo USA) during 2009 and early 2010 that the 
turbo aeration blower units being supplied would be substantially 
transformed in the United States and would be in compliance with the 
Buy American provisions of ARRA. However, as a result of a recent on-
going criminal investigation, the written representations provided by 
the manufacturer that the specified aeration blowers units had 
undergone substantial transformation in the United States have been 
questioned. Based on the information provided by the City, EPA agrees 
with the City that, if the K-Turbo units in question are determined to 
be non-American made, requiring the installation of domestically 
manufactured turbo aeration blower units will extend the time frame of 
the project by approximately five months due to the redesign, 
procurement, submittal delivery, submittal review, fabrication, 
delivery, and replacement of the aeration blower installation at the 
construction site. This delay is inconsistent with the public interest, 
and a waiver of the Buy American provisions in these circumstances 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 two specified turbo aeration blower 
units that have already been delivered to the construction site as 
noted in the City's March 31, 2011 request.

DATES: Effective Date: May 9, 2011.

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),

[[Page 26726]]

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 specific 
waiver of the requirements of Section 1605(a) of Public Law 111-5, Buy 
American requirements, to the City of South Burlington (City), Vermont 
for the installation of two specified aeration blower units as part of 
its Airport Parkway Wastewater Treatment Plant Upgrade project. Based 
on the information provided by the City, EPA has determined that it is 
inconsistent with the public interest for the City to further delay the 
project to pursue the purchase and installation of domestic 
manufactured turbo aeration blower units.
    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 City's request, though made after the date the 
contract was signed, can be evaluated as timely because of the 
extenuating circumstances surrounding this on-going project.
    The City was provided written representations prior to delivery by 
the manufacturer that the specified turbo aeration blower units would 
be substantially transformed in the United States. During the spring of 
2010, the City's general contractor and design engineer were actively 
engaged in the shop drawing submittal and review process. The general 
contractor submitted technical information to the design engineer for 
review and approval, along with ARRA certification required for 
contract specifications. The shop drawing process for the KTurbo 
aeration blower units was completed at that time and KTurbo provided 
additional certification regarding substantial transformation and 
compliance with the ARRA requirements, specifically the Buy American 
provision. However, as a result of a recent on-going criminal 
investigation, the written representations provided by the manufacturer 
that these specific turbo aeration blowers units had undergone 
substantial transformation in the United States have been questioned. 
The City of South Burlington could not reasonably have foreseen the 
need for a waiver from the Buy American provisions of ARRA until it was 
fully informed of the extenuating circumstances surrounding the on-
going criminal investigation involving KTurbo. Accordingly, EPA will 
evaluate the request as if it were timely.
    As of March 31, 2011, the City's Airport Parkway Wastewater 
Treatment Facility Upgrade construction project is approximately two 
thirds completed. One of the old existing three aeration blower units 
has already been removed, and one of the new turbo aeration blower 
units has already been installed and is in operation serving the 
plant's main biological treatment process. This aeration blower unit is 
identical to the two specified aeration blower units involved in this 
waiver request that have not yet been installed. The General 
Contractor's plans are to install these two specified turbo aeration 
blower units during April of 2011 to stay on its critical path to 
complete construction.
    Not allowing the installation of these two specified turbo aeration 
blower units that have been delivered to the site would cause a 
significant time delay to the project. The City would need to 
completely redesign, procure, and have domestic manufactured turbo 
aeration blower units delivered to the site. In addition, the City 
would need to make some necessary building and room changes (e.g. 
associated piping and electrical revisions) to accommodate any 
replacement units, install, and properly start-up the new equipment. 
According to the City, it is estimated that this approach could delay 
the construction completion date by up to five months.
    In addition to imposing a lengthy time delay to the project, not 
installing the two other specified aeration blower units would result 
in an unbalanced air blower system comprised of one high efficiency 
turbo blower with specific performance characteristics, and two 
conventional centrifugal blowers with different performance 
characteristics. Operation and maintenance of such an unbalanced system 
is not common and is not recommended since it would result in 
additional operating costs due to additional plant training, additional 
and non-matching spare parts, and possibly additional maintenance and 
repair, resulting in risk to water quality.
    The Municipal Assistance Unit (CMU) has reviewed this waiver 
request and has determined that the documentation provided by the City 
has established a proper basis to specify that using the domestic 
manufactured good, if in fact the goods provided by K-Turbo are 
determined to be non-domestic, would be inconsistent with the public 
interest. 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, if in fact the goods provided by K-Turbo 
are determined to be non-domestic, would be inconsistent with the 
public interest, the City of South Burlington, Vermont is hereby 
granted a waiver from the Buy American requirements of Section 1605(a) 
of Public Law 111-5. This waiver permits the use of ARRA funds for the 
installation of two specified turbo aeration blower units documented in 
the City's waiver request submittal dated March 31, 2011. This 
supplementary information constitutes the detailed written 
justification required by Section 1605(c) for waivers based on a 
finding under subsection (b).

    Authority:  Public Law 111-5, section 1605.

    Dated: April 28, 2011.
Ira W. Leighton,
Acting Regional Administrator, EPA Region 1--New England.
[FR Doc. 2011-11216 Filed 5-6-11; 8:45 am]
BILLING CODE 6560-50-P