[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]


=======================================================================
-----------------------------------------------------------------------

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.

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

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]
BILLING CODE 6560-50-P