[Federal Register Volume 76, Number 104 (Tuesday, May 31, 2011)]
[Notices]
[Pages 31330-31331]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-13401]


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ENVIRONMENTAL PROTECTION AGENCY

[FRL -9303-7]


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 Marathon, FL

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice.

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SUMMARY: The EPA is hereby granting a project 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 Marathon, Florida for the purchase 
of nine submerged membrane units (SMUs), as part of an overall membrane 
bioreactor system (MBR), from Kubota Corporation in Japan. The 
submerged membrane unit is a specialty product for this project. The 
membrane bioreactor system for which this SMU will be used is an 
advanced wastewater treatment process, which is designed to meet the 
high quality effluent requirements of the waste load allocation, under 
the National Pollutant Discharge Elimination System (NPDES) permit. 
Additionally, the City of Marathon facility has specific technical 
design requirements for the installation of the SMUs with the membrane 
bioreactor treatment process, including tankage footprint, geometry, 
and configuration. Only the Kubota Corporation product meets all these 
requirements. The City stated that there are no apparent domestic 
manufactured submerged membrane units with the design specifications as 
required for this project. This is a project specific waiver and only 
applies to the use of the specified product for the ARRA project being 
approved. Waivers for these types of products and components have 
already been published in the Federal Register, however, any other ARRA 
recipient that wishes to use the same product must apply for a separate 
waiver based on project specific circumstances. Based on the review of 
the information provided, EPA has concluded that a waiver of the Buy 
American provisions is justified. The Regional Administrator is making 
this determination based on the review and recommendation of the EPA 
Region 4, Water Protection Division, Grants and Infrastructure Branch. 
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 City to 
purchase nine submerged membrane units manufactured by Kubota, for the 
proposed project being implemented by the City of Marathon, Florida.

DATES: Effective Date: May 31, 2011.

FOR FURTHER INFORMATION CONTACT: Cynthia Y. Edwards, Project Officer, 
Grants and SRF Section, Water Protection Division (WPD), (404) 562-
9340, USEPA Region 4, 61 Forsyth St., SW., Atlanta, GA 30303.

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 Sections 1605(a) of Public Law 111-5, Buy American 
requirements, to the City of Marathon, Florida, for the purchase of 
nine submerged membrane units, manufactured by Kubota of Japan.
    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 public work unless all of the iron, 
steel, and manufactured goods used in the project are 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 City has requested a waiver from the Buy American Provision for 
the purchase of nine submerged membrane units, a specialty product for 
this project. The membrane bioreactor system for which this SMU will be 
used is an advanced wastewater treatment process, which is designed to 
meet the high quality effluent requirements of the waste load 
allocation, under the NPDES permit. The Marathon Area 5 Waste Water 
Treatment Plant (WWTP) Upgrade Project is a retrofit of an existing 
WWTP that will allow it to meet additional flow demands generated by 
Area 5. There is no additional land available for the expansion of the 
WWTP. Therefore, it is necessary to use membrane technology to increase 
capacity without expanding

[[Page 31331]]

the project site. The membrane modules, as manufactured by Kubota of 
Japan, are specified for this technology. EPA has determined that the 
City's waiver request may be treated as timely 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 has evaluated 
the City's request to determine if the request constitutes a late 
request. 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 City's 
request, though made after the date that the contract was signed, can 
be evaluated as timely because the need for a waiver was not reasonably 
foreseeable. The Area 5 Wastewater Treatment Plant project initially 
began design in October of 2008, prior to ARRA funding. After the 
preliminary design was completed, it was determined that the plant site 
could not be extended as was previously planned. The design approach 
was changed from SBR technology to membrane technology due to the 
limited space available. It was discovered during final design in July 
of 2010 that similar membranes on the market would also need a waiver, 
as they were also manufactured outside of the United States. The 
project specifications, including performance criteria, certification 
criteria, and design criteria, require that the SMU be a Kubota EK-400 
type unit that will be a part of a MBR system provided by Enviroquip/
Ovivo.
    EPA technical reviews for similar ARRA waiver requests found other 
manufacturers of submerged membrane filtration systems including 
Dynatec, Veolia/Kruger, GE Water Technologies, Norit, Pall, Siemens, 
Toray, and Koch. All manufacturers confirmed that their membrane units 
were obtained outside the U.S. The technical reviews did not find a 
membrane unit manufactured in the U.S. The City of Marathon considered 
Aqua-Aerobic and Zenon technologies, and found that these products are 
also made outside the U.S. EPA and the City's submissions clearly have 
provided sufficient documentation that the relevant manufactured goods 
are not produced in the United States in sufficient and reasonably 
available quantity and of a satisfactory quality to meet its technical 
specifications.
    The April 28, 2009 EPA Headquarters Memorandum, ``Implementation of 
Buy American provisions of Public Law 111-5, the American Recovery and 
Reinvestment Act of 2009,'' defines ``satisfactory quality'' as ``the 
quality of steel, iron or manufactured goods specified in the project 
plans and designs.''
    EPA's national contractor prepared a technical assessment report 
dated December 27, 2010 based on the submitted waiver request. The 
report stated that the waiver request submittal was complete, that 
adequate technical information was provided, and a waiver was supported 
by the available evidence. The purpose of the ARRA provisions is to 
stimulate economic recovery by funding current infrastructure 
construction, not to delay projects that are already shovel ready by 
requiring entities, like the City, to revise their design and 
potentially choose a more costly and less efficient project. The 
imposition of ARRA Buy American requirements on such projects would 
result in unreasonable delay and thus displace the ``shovel ready'' 
status for this project. To further delay construction is in direct 
conflict with the most fundamental economic purposes of ARRA: To create 
or retain jobs.
    The Region 4 Grants and Infrastructure Branch has reviewed this 
waiver request and has determined that the supporting documentation 
provided by the City is sufficient to meet the criteria listed under 
ARRA Section 1605(b), OMB's regulation at 2 CFR 176.100, and the 
aforementioned EPA Headquarters Memorandum of April 28, 2009. ARRA 
Section 1605(b)(2) permits a waiver if ``Iron, steel, and manufactured 
goods are not produced in the United States in sufficient and 
reasonably available quantities and of a satisfactory quality.'' This 
waiver request meets this criterion and is justified.
    The March 31, 2009, Delegation of Authority Memorandum provided 
Regional Administrators with the authority to issue exceptions to 
Section 1605 of 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 application of the Buy 
American requirements would be inconsistent with the public interest, 
the City of Marathon is hereby granted a waiver from the Buy American 
requirements. 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 Marathon, Florida is granted a waiver from the Buy American 
requirements of Section 1605(a) of Public Law 111-5 for the purchase of 
nine submerged membrane units as specified in the City's request of 
December 3, 2010 with supplemental information provided on December 6, 
2010. This supplemental information constitutes the detailed written 
justification required by Section 1605(c) for waivers ``based on a 
finding under subsection 9b.'' requirements of Section 1605(a) of 
Public Law 111-5.

    Authority: Pub. L. 111-5, section 1605.

    Dated: April 5, 2011.
A. Stanley Meiburg,
Acting, Regional Administrator, Region 4.
[FR Doc. 2011-13401 Filed 5-27-11; 8:45 am]
BILLING CODE 6560-50-P