Notice of a Project Waiver of Section 1605 (Buy American requirement) of the American Recovery and Reinvestment Act of 2009 (ARRA) to the Johnston County Department of Public Utilities (the County), North, 61687-61688 [E9-28291]

Agencies

• ENVIRONMENTAL PROTECTION AGENCY

[Federal Register Volume 74, Number 226 (Wednesday, November 25, 2009)]
[Notices]
[Pages 61687-61688]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-28291]



[[Page 61687]]

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ENVIRONMENTAL PROTECTION AGENCY

[FRL-8984-1]


Notice of a Project Waiver of Section 1605 (Buy American 
requirement) of the American Recovery and Reinvestment Act of 2009 
(ARRA) to the Johnston County Department of Public Utilities (the 
County), North

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice.

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SUMMARY: The Acting Regional Administrator of EPA Region 4 is hereby 
granting a waiver of the Buy America 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 County for the 
purchase of resin beads (MIEX[supreg] DOC Resin) supplied by Orica Ltd, 
in Victoria, Australia and manufactured in Australia. The applicant 
indicates that MIEX[supreg] DOC Resin is necessary to the MIEX[supreg] 
process, a treatment process evaluated in pilot studies at the County 
and selected for implementation. The MIEX[supreg] DOC Resin is only 
manufactured in Australia. It is patented and no alternative exists 
which can be used with the MIEX[supreg] process. The Acting Regional 
Administrator is making this determination based on the review and 
recommendations of the Grants and SRF Section. The County has provided 
sufficient documentation to support their request.

DATES: Effective Date: October 1, 2009.

FOR FURTHER INFORMATION CONTACT: Ed Springer, Chief, Grants and SRF 
Section, Water Protection Division (WPD), (404) 562-8410, U.S. EPA 
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 Section 1605(b)(2) of Public Law 111-5, Buy American 
requirements, to the County for the acquisition of resin beads 
(MIEX[supreg] DOC Resin) supplied by Orica Ltd, in Victoria, Australia 
and manufactured in Australia. The applicant indicates that 
MIEX[supreg] DOC Resin is necessary to the MIEX[supreg] process, a 
treatment process evaluated in pilot studies at the County and selected 
for use. The MIEX[supreg] DOC Resin is only manufactured in Australia. 
It is patented and no alternative exists which can be used with the 
MIEX[supreg] process. 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 is 
produced in the United States unless a waiver is provided to the 
recipient by EPA. A waiver may be provided if EPA determines that (1) 
applying these requirements would be inconsistent with 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.
    In order to meet the new Long Term II Surface Water Treatment Rule 
and Stage 2 Disinfection By-Product Rule under the Safe Drinking Water 
Act, the County will be required to reduce the levels of dissolved 
organic carbon (DOC)--a disinfection byproduct precursor of regulatory 
concern--from its source water supply. In 2007, the County commissioned 
their engineer to conduct a treatability testing program to evaluate 
treatment technologies for removing DOC from the County's source water 
supply. The treatability testing program evaluated powdered activated 
carbon, granular activated carbon, and the MIEX[supreg] process/resin 
for DOC removal. The 2007 treatability study summarized a previous 
treatability testing program conducted for the County in 2000, which 
concluded that physical/chemical treatments (i.e., conversion of 
chlorine disinfection to chloramines, alternative coagulants with 
enhanced clarification, dissolved air flotation and membrane treatment 
[using submerged low pressure membranes]) would be ineffective in 
meeting required treatment levels. The 2007 treatability testing 
program selected the MIEX[supreg] process/resin to meet the County's 
treatment requirements.
    Further, the County's waiver request states that ``[t]he Public 
Water Supply Section, Division of Environmental Health, N.C. Department 
of Environment and Natural Resources has reviewed the report and 
subsequent design and approved the project.'' Approval of a public 
water system's compliance technology by the primary regulatory 
enforcement agency of a State is a crucial prerequisite to initiation 
of a drinking water infrastructure project to comply with a National 
Primary Drinking Water Standard. Given this approval and in light of 
the outcome of the treatability testing program, the County did not 
have a basis to use a practicable alternative compliance technology 
within the ARRA time requirements for SRF projects to be under contract 
or construction by February 17, 2010.
    The County's submission clearly articulates entirely reasonable 
reasons for choosing the type of technology that it chose for this 
project and has 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 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 County has incorporated specific technical design 
features for the proposed project based on pilot studies which 
demonstrated MIEX[supreg] treatment is the best alternative.
    The County has provided information to the EPA representing that 
there are currently no resin beads manufactured in the United States 
that have the exact same product specifications in place. The County 
has also provided certification from its supplier representing that 
there are no beads of comparable quality available from a domestic 
manufacturer to meet its exact specifications. Based on additional 
research by EPA's consulting contractor (Cadmus), and to the best of 
the Region's knowledge at this time, there do not appear to be other 
resin beads available to meet the County's specifications.
    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 County, to revise their design and potentially choose a more 
costly and less efficient project. The imposition 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.

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    The Grants and SRF Section has reviewed this waiver request and has 
determined that the supporting documentation provided by the County 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 County'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 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, the County is hereby 
granted a waiver from the Buy American requirements of Section 1605(a) 
of Public Law 111-5 for the purchase of resin beads (MIEX[supreg] DOC 
Resin) supplied by Orica Ltd, in Victoria, Australia and manufactured 
in Australia as specified in the County's request of June 26, 2009. 
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: October 7, 2009.
J. Scott Gordan,
Acting Regional Administrator, Region 4.
[FR Doc. E9-28291 Filed 11-24-09; 8:45 am]
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