[Federal Register Volume 76, Number 125 (Wednesday, June 29, 2011)]
[Notices]
[Pages 38164-38166]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-16383]


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ENVIRONMENTAL PROTECTION AGENCY

[FRL-9426-2]


Notice of a Project Waiver of Section 1605 (Buy American 
Requirement) of the American Recovery and Reinvestment Act of 2009 
(ARRA) to the Metropolitan Council Environmental Services of St. Paul, 
MN (MCES)

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 of a satisfactory quality] to the Metropolitan Council 
Environmental Services (MCES) of St. Paul, Minnesota, for the purchase 
of one Parkson StrainPress SC-4 pressurized in-line sludge screen to 
process gravity thickened primary sludge at its Blue Lake Wastewater 
Treatment Plant located in Shakopee, Minnesota. This is a project-
specific waiver and it only applies to the use of the specified product 
for the ARRA funded project being proposed. Any

[[Page 38165]]

other ARRA project that may wish to use the same product must apply for 
a separate waiver based on project-specific circumstances. This sludge 
screen, which is supplied by Parkson Corporation of Vernon Hills, 
Illinois, is manufactured in Germany, and meets MCES's performance 
specifications and requirements. The Regional Administrator is making 
this determination based on the review and recommendations of EPA 
Region 5's Water Division. MCES has provided sufficient documentation 
to support its request. 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 one StrainPress SC-4 pressurized in-line sludge screen for 
the Blue Lake Wastewater Treatment Plant Solids Improvements project 
that may otherwise be prohibited under Section 1605(a) of the ARRA.

DATES: Effective Date: June 29, 2011.

FOR FURTHER INFORMATION CONTACT: Andrew Lausted, SRF Program Manager, 
(312) 886-0189, or Puja Lakhani, Office of Regional Counsel, (312) 353-
3190, U.S. EPA Region 5, 77 W. Jackson Blvd., Chicago, IL 60604.

SUPPLEMENTARY INFORMATION: 
    In accordance with ARRA Section 1605(c) and pursuant to Section 
1605(b)(2) of Public Law 111-5, Buy American requirements, EPA hereby 
provides notice that it is granting a project waiver to MCES of St. 
Paul, Minnesota, for the acquisition of a Parkson StrainPress SC-4 
pressurized in-line sludge screen that is manufactured in Germany.
    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 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.
    This pressurized in-line sludge screen will remove undesirable 
contaminants and debris from the waste primary sludge prior to the 
pelletizing process. MCES selected this particular sludge screen 
because it already has two Parkson screens at the facility, and a third 
screen is needed to accommodate increased wastewater flows and loading. 
This screen is an exact match for the existing screens. Additionally, 
spare parts are in stock, and staff are trained to operate and maintain 
the screen. Only the Parkson StrainPress SC-4 screen is small enough to 
fit into the designated treatment area at the Blue Lake facility. 
MCES's submissions clearly articulated functional reasons that 
justified their technical specifications and requirements.
    The April 28, 2009 EPA HQ Memorandum, ``Implementation of Buy 
American provisions of Public Law 111-5, the `American Recovery and 
Reinvestment Act of 2009','' 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 applicant met the requirements specified for the availability 
inquiry as appropriate to the circumstances by conducting an extensive 
investigation into all possible sources for pressurized in-line sludge 
screens. Based on the investigation, three companies were found to 
manufacture the required sludge screens, but none were manufactured in 
the United States. Given the space limitations of the project and that 
the two existing Parkson sludge screens have operated effectively since 
1999 and still have many years of useful life, MCES believes that a 
third screen would perform equally well in this specific application. 
Therefore, MCES contends that there is no domestic product of 
satisfactory quality available consistent with the specifications of 
this project.
    EPA's national contractor prepared a technical assessment report 
based on the submitted waiver request. The report determined that the 
waiver request submittal was complete, that adequate technical 
information was provided, and that the utility's claim that no U.S. 
manufacturer could provide the item was supported by the available 
evidence. Therefore, based on the information provided to EPA and to 
the best of our knowledge at this time, the Parkson StrainPress SC-4 
pressurized in-line sludge screen necessary for this project is not 
manufactured in the United States, and no other U.S. manufactured 
product can meet MCES's project performance specifications and 
requirements.
    EPA has also evaluated MCES'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 a 
waiver. 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 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 MCES's 
project specification for this pressurized in-line sludge screen. The 
waiver request was submitted after the contract was signed due to the 
large size of the project, with approximately 200 sub-contracts, which 
led to MCES not being made aware that there are no domestic equivalents 
for the sludge screen until after the contract was signed. There is no 
indication that MCES 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 MCES's waiver request, a foreseeable late request, as 
though it had been timely made since there is no gain by MCES and no 
loss by the government due to the late request.
    The purpose of the ARRA is to stimulate economic recovery in part 
by funding current infrastructure construction, not to delay projects 
that are ``shovel ready'' by requiring loan recipients such as MCES to 
revise their standards and specifications and to start the bidding 
process again. The imposition of ARRA Buy American requirements on such 
projects otherwise eligible for ARRA State Revolving Fund assistance 
would result in unreasonable delay and thus displace the ``shovel 
ready'' status for this project. To further delay project 
implementation is in direct conflict with a fundamental

[[Page 38166]]

economic purpose of the ARRA, which is to create or retain jobs.
    EPA has reviewed this waiver request and has determined that the 
supporting documentation provided by MCES is sufficient to meet the 
criteria listed under Section 1605(b) of the ARRA and in the April 28, 
2009, ``Implementation of Buy American provisions of Public Law 111-5, 
the `American Recovery and Reinvestment Act of 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 basis for this project waiver is the 
authorization provided in Section 1605(b)(2) of the ARRA. Due to the 
lack of production of this item in the United States in sufficient and 
reasonably available quantities and of a satisfactory quality in order 
to meet MCES's project performance specifications and requirements, a 
waiver from the Buy American requirement is justified.
    The March 31, 2009, Delegation of Authority Memorandum provided 
Regional Administrators with the 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, MCES is 
hereby granted a waiver from the Buy American requirements of Section 
1605(a) of Public Law 111-5 for the purchase of one Parkson StrainPress 
SC-4 pressurized in-line sludge screen using ARRA funds as specified in 
the community's request. 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: January 31, 2011.
Susan Hedman,
Regional Administrator, Region 5.
[FR Doc. 2011-16383 Filed 6-28-11; 8:45 am]
BILLING CODE 6560-50-P