[Federal Register Volume 76, Number 135 (Thursday, July 14, 2011)]
[Notices]
[Pages 41495-41497]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-17061]
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ENVIRONMENTAL PROTECTION AGENCY
[FRL-9324-4]
Notice of a Regional Waiver of Section 1605 (Buy American
Requirement) of the American Recovery and Reinvestment Act of 2009
(ARRA) to the City of Ocean Shores (the City), WA
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice.
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SUMMARY: The Regional Administrator of EPA Region 10 is hereby granting
a waiver from the Buy American 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 City for the purchase
of Greensand Plus pressure filter media, manufactured in Brazil. This
is a project specific waiver and only applies to the use of the
specified products 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. The waiver applicant
states that the project requires the Greensand Plus filter media for
use in their new shallow aquifer treatment plant. The design
specifications of the project require a combination treatment process
comprised of greensand filtration and MIEX [supreg] treatment. The
greensand filtration process will primarily target the removal of iron
and manganese, whereas the proprietary MIEX [supreg] process targets
removal of dissolved organic carbon and other anionic species.
Greensand Plus is currently used in the City's existing water treatment
plant 1. In 2005, the City utilized Greensand Plus for their greensand
filter media during pilot testing, and identified that product as the
desired filter media for the proposed water treatment plant.
The Regional Administrator is making this determination based on
the review and recommendations of the Drinking Water Unit. The City has
provided sufficient documentation to support their request.
DATES: July 14, 2011.
FOR FURTHER INFORMATION CONTACT: Johnny Clark, DWSRF ARRA Program
Management Analyst, Drinking Water Unit, Office of Water & Watersheds
(OWW), (206) 553-0082, U.S. EPA Region 10 (OWW-136), 1200 Sixth Avenue,
Suite 900, Seattle, WA 98101.
[[Page 41496]]
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 for purchase of non-domestic manufactured
Greensand Plus pressure filter media. The City is replacing an existing
deep aquifer water treatment plant with a new shallow aquifer water
treatment plant. The shallow aquifer water supply contains levels of
iron, manganese, and color near or exceeding their secondary maximum
contaminant levels, and also has detectable levels of hydrogen sulfide,
ammonia, and organic nitrogen, as well as relatively high total organic
carbon. The proposed new shallow aquifer treatment plant is designed to
accommodate an average day demand of 1 MGD and a maximum day demand of
2 MGD. After conducting a pilot plant treatment study and evaluating
three treatment alternatives, the City selected a combination treatment
process comprising greensand filtration and MIEX [supreg] treatment.
The City previously obtained a Buy American waiver, granted July 24,
2009 for this project for the use of MIEX [supreg] DOC Resin used in
the MIEX [supreg] filtration process. The greensand filtration process
primarily targets removal of iron and manganese, whereas the
proprietary MIEX [supreg] process targets removal of dissolved organic
carbon and other anionic species. Greensand Plus media was used by the
City during their pilot testing, consistent with existing plant
greensand operations. The shallow aquifer treatment plant project will
require approximately 900 cubic feet (79,200 lbs) of Greensand Plus
filter media.
During the City's recent experience with Greensand Plus, currently
used in their existing water treatment plant 1 process, the City
utilized this product during greensand filter pilot testing and
identified that product as the desired media for the proposed water
treatment plan. The shallow aquifer raw water supply is a challenging
water source from a water quality perspective; therefore, an extensive
effort was made by the City to pilot a number of processes and to
select the most suitable combination of treatment processes for
effective water treatment. If a traditional greensand filter media,
such as Manganese Greensand, is used, it could introduce uncertainty
based on the unproven effectiveness of an alternative agent. Greensand
Plus has a number of properties that set it apart from traditional
greensand media. Key distinguishing points for Greensand Plus media
relate to its performance and durability. Greensand Plus has a more
robust physical structure and is expected to have a longer service life
of 10-15 years compared to traditional greensand, which typically has
5-8 years of service life. Greensand Plus has more of an absorptive
capacity over traditional media and a lower headloss profile. This
contributes to more effective iron and manganese removal, with less
backwashing resulting in higher average plant capacity. Use of a
traditional media would likely result in diminished plant performance
and plant capacity de-rating. Based on available information, it is
unlikely that other traditional greensand filter media would function
within the requirement of the project specifications. Additionally, the
City was informed that traditional greensand filter media is in short
supply because it is no longer commonly used since the advent of
Greensand Plus, which is a superior product.
EPA has also evaluated the City'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 contact 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 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 the City's
requirement for Greensand Plus pressure filter media, which was
selected based on their pilot testing. The waiver request was submitted
after contract signing; however, it was reasonably unforeseeable.
During the design and bid preparation process, this product was
understood by the greensand filter vendor Roberts Filter to be
manufactured in the United States. A request for ARRA compliance
documentation was sent by Roberts Filter to their filter media supplier
CEI on January 17, 2010.
Documentation of ARRA compliance was provided; however, the ARRA
compliance supplied was for a lesser greensand material, manufactured
in New Jersey and not Greensand Plus, a fact which was overlooked at
the time even though they have variations in their chemical properties.
In a letter dated January 28, 2011, Roberts Filter notified the
contractor Pease and Sons that Roberts had determined based on
communications about material shipping that Greensand Plus is not
manufactured in the United States, but is instead, produced by an
American company in Brazil and subsequently imported to the U.S. This
was the first time they were notified of the fact that Greensand Plus
filter media was not manufactured in the United States. Because ARRA
compliance documentation was solicited and thought to be in hand, the
circumstance of applying for a waiver after the start of construction
was not foreseen. EPA has evaluated this information and recognizes
that the responses submitted to the City regarding Buy American
compliance were done so in error. EPA will consider the City's waiver
request as a timely request since it was reasonably unforeseeable.
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 ``satisfactory quality'' as the
quality of iron, steel or the relevant manufactured good as specified
in the project plans and design. The City has provided information to
the EPA representing there are no current domestic manufacturers of the
Greensand Plus pressure filter media. EPA's consulting contractor
(Cadmus) reviewed the information provided by the City and determined
that the project specifications include the option for traditional
greensand filter media as well as Greensand Plus and identified
traditional greensand mined and produced domestically by Inversand
Company (Inversand) as an available alternative. However, the City
provided information from Inversand indicating that it has permanently
reduced production of traditional greensand as it is no longer commonly
used since it does not perform as well as Greensand Plus. The City
provided information indicating that the reduced production by
Inversand has resulted in extensive lead time and potential project
delays for the use of the traditional greensand. Based on the
information provided by Inversand, the project engineers began the
process of modifying the project
[[Page 41497]]
specifications to indicate that Greensand Plus be used for the project.
Ultimately the project specifications were not modified after the pilot
testing showed Greensand Plus to be the selected filter media for this
project because all of the project bids were based on Greensand Plus.
Furthermore, the purpose of the ARRA provisions was 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 effective project. The implementation of ARRA Buy
American requirements on such projects eligible for DWSRF assistance
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 Drinking Water Unit has reviewed this waiver request and has
determined that the supporting documentation provided by the City is
sufficient to meet the following criteria listed under Section 1605(b)
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), due to the lack of production of this product in
the United States in sufficient and reasonably available quantities and
of a satisfactory quality in order to meet the City's design
specifications. 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
assistance 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 manufacturer in the United
States, the City is hereby granted a waiver from the Buy American
requirements of Section 1605(a) of Public Law 111-5 for the purchase of
Greensand Plus pressure filter media, manufactured in Brazil, for a
shallow aquifer water treatment plant project specified in the City's
waiver request of February 11, 2011. 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: June 13, 2011.
Dennis J. McLerran,
Regional Administrator, EPA, Region 10.
[FR Doc. 2011-17061 Filed 7-13-11; 8:45 am]
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