Notice of a Project Waiver of Section 1605 (Buy American Requirement) of the American Recovery and Reinvestment Act of 2009 (ARRA) to Frederick County, MD, 64689-64690 [E9-29214]
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Federal Register / Vol. 74, No. 234 / Tuesday, December 8, 2009 / Notices
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Dated: November 19, 2009.
Rebecca Clark,
Acting Director, National Center for
Environmental Assessment.
[FR Doc. E9–29218 Filed 12–7–09; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
WReier-Aviles on DSKGBLS3C1PROD with NOTICES
[FRL–9090–5]
Notice of a Project Waiver of Section
1605 (Buy American Requirement) of
the American Recovery and
Reinvestment Act of 2009 (ARRA) to
Frederick County, MD
AGENCY: Environmental Protection
Agency (EPA).
ACTION: Notice.
SUMMARY: The Regional Administrator
of EPA Region III is hereby granting a
project waiver of the Buy American
VerDate Nov<24>2008
15:16 Dec 07, 2009
Jkt 220001
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 Frederick County for the purchase of
a Membrane Bioreactor (MBR) system,
at the Ballenger McKinney Enhanced
Nutrient Removal Wastewater
Treatment Plant (WWTP) expansion.
Frederick County indicates that the
MBR treatment process is necessary to
achieve the wastewater treatment levels
required by the National Pollutant
Discharge Elimination System (NPDES)
permit issued for this WWTP. The MBR
system under consideration is
manufactured by a company located in
Canada and no United States
manufacturer produces an alternative
that meets Frederick County’s technical
specifications. This is a project specific
waiver and only applies to the use of the
specified product for the ARRA funded
project being proposed. Any other
ARRA project that may wish to use the
same product must apply for a separate
waiver based on the specific project
circumstances. The Regional
Administrator is making this
determination based on the review and
recommendations of the EPA Region III,
Water Protection Division, Office of
Infrastructure and Assistance. Frederick
County has provided sufficient
documentation to support its request.
The Assistant Administrator of the
EPA’s 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 the MBR system
containing goods not manufactured in
America for the proposed project being
implemented by Frederick County. It
should be noted that for purposes of this
action, the MBR, while treated as a
single system, is not itself a
manufactured good, but is an assembly
of manufactured goods.
DATES: Effective Date: November 20,
2009.
FOR FURTHER INFORMATION CONTACT:
Robert Chominski, Deputy Associate
Director, (215) 814–2162, or David
McAdams, Environmental Engineer,
(215) 814–5764, Office of Infrastructure
& Assistance (OIA), Water Protection
Division, U.S. EPA Region III, 1650
Arch Street, Philadelphia, PA 19103–
2029.
SUPPLEMENTARY INFORMATION: In
accordance with ARRA Section 1605(c),
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
PO 00000
Frm 00030
Fmt 4703
Sfmt 4703
64689
requirements to Frederick County for
the acquisition of a MBR system
manufactured by GE Water and Process
Technologies located in Canada.
Frederick County has been unable to
find an American made MBR system
manufacturer to meet its specific
wastewater requirements.
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 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.
The GE Zenon MBR system is
comprised of MBR filtration cassettes,
air dryers and several other auxiliary
components integral to the efficient
operation of the system. The MBR
system is a packaged product that has
undergone complex biological design,
hydraulic modeling, control automation,
fabrication and integration of
specialized product components. The
GE Zenon MBR system—as a whole, is
designed to remove nutrients
(Phosphorus and Nitrogen) to a level
specified in Frederick County’s NPDES
permit.
Frederick County’s waiver request is
to allow the purchase of the GE Zenon
MBR system with one hundred forty
membrane filtration cassettes,
manufactured by GE Water and Process
Technologies located in Canada, 2
desiccant air dryers, manufactured by
Ingersol Rand located in the United
Kingdom, and ten vacuum ejectors
manufactured by Piab located in
Sweden for use in improvements to its
existing WWTP. This project will
upgrade its existing WWTP by adding a
new MBR treatment process. The
membrane filtration cassettes, air dryers
and vacuum ejectors are integral
components of the MBR treatment
process because they separate the
treated wastewater from the mixed
liquor which comes from the biological
reactors, before the treated wastewater is
disinfected and discharged. After an
engineering analysis of alternate
treatment processes, Frederick County
E:\FR\FM\08DEN1.SGM
08DEN1
WReier-Aviles on DSKGBLS3C1PROD with NOTICES
64690
Federal Register / Vol. 74, No. 234 / Tuesday, December 8, 2009 / Notices
determined MBR to be the most
environmentally sound and cost
effective solution. The MBR system is
an advance waste water treatment
process which is designed to meet the
high quality effluent requirements of the
waste load allocation under the NPDES
permit.
In addition, in anticipation of
procuring the MBR system, Frederick
County had issued specifications for the
MBR system in its June 2007 Request for
Proposal (RFP) and evaluated and
awarded the contract in March 2008.
Section 11500 of this RFP No. 07–CP–
78 included technical specifications for
Membrane Filtration Equipment, and
the qualification criteria in Section 1.03
of the bidder questionnaire required an
established record of installed systems
at municipal WWTPs. Specifically,
Section 1.03 of the bidder questionnaire
required that: (1) The bidder furnish a
list of five of its MBR system
installations at municipal WWTPs, (2)
three of these systems have been in
operation for at least one year, and (3)
at least one of the three systems has an
average flow design capacity of 1.0 MGD
or more. These specifications and
requirements were justified by Frederick
County’s obligation to meet reliably the
environmental requirements of its
NPDES permit. In this selection phase,
no domestic manufacturers were able to
meet these technical specifications and
experience requirements. In May 2009,
Frederick County received bids for the
construction of the entire WWTP
expansion based on the RFP. The
winning general contractor will use the
pre-selected MBR design/equipment in
the final installation.
Frederick County has provided
information to the EPA demonstrating
that there are no membrane filtration
systems manufactured in the United
States in sufficient and reasonable
quantity and of a satisfactory quality to
meet these technical specifications in its
RFP. Two companies, neither of which
manufacture in the United States, met
Frederick County’s justified technical
specifications and experience
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’’ (‘‘EPA
Memorandum’’), 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.’’ Frederick County has
incorporated specific technical design
VerDate Nov<24>2008
15:16 Dec 07, 2009
Jkt 220001
requirements for installation of a MBR
system at its WWTP.
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
communities, such as Frederick County,
to revise their standards and
specifications, institute a new bidding
process, and potentially choose a more
costly, less efficient project. The
imposition of ARRA Buy American
requirements on such projects otherwise
eligible for State Revolving Fund
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 a fundamental economic purpose
of the ARRA, which is to create or retain
jobs.
Based on additional research
conducted by EPA’s Office of
Infrastructure and Assistance (OIA) in
Region III, and to the best of the
Region’s knowledge at the time of
review, there did not appear to be other
MBR systems manufactured
domestically back in March 2008 that
would meet Frederick County’s
technical specifications. EPA’s national
contractor prepared a technical
assessment report dated October 16,
2009 based on the waiver request
submitted. The report determined that
the waiver request submittal was
complete, that adequate technical
information was provided, and that
there were no significant weaknesses in
the justification provided. The report
confirmed the waiver applicant’s claim
that only non-domestic manufacturers
of the MBR cartridge could meet the
technical specifications included in the
RFP for Membrane Filtration Equipment
and the qualification criteria for an
established record of installed systems
at WWTPs included in the bidder
questionnaire.
Frederick County included a
performance guarantee in the RFP as
well as the original specification. GE’s
performance guarantee applies to the
entire MBR system, including all
components supplied by GE, which
would be voided by substitution of
other components. The potential
voiding of the performance raises a
valid issue regarding availability of
alternative desiccant air dryers and
vacuum ejectors. The existence of such
a performance guarantee supports
treating the entire MBR system as a
unitary whole, rather than a collection
of individual components. Therefore,
EPA Region III concludes that only the
‘‘GE Zenon MBR System—as a whole’’
PO 00000
Frm 00031
Fmt 4703
Sfmt 4703
meets the ‘‘specifications in project
plans and design.’’
The OIA has reviewed this waiver
request and to the best of our knowledge
at the time of review has determined
that the supporting documentation
provided by Frederick County is
sufficient to meet the criteria listed
under Section 1605(b), OMB’s
regulations at 2 CFR 176.60–176.170,
and in the April 28, 2009, EPA
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
Frederick County’s technical
specifications, 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 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, Frederick County
is hereby granted a waiver from the Buy
American requirements of Section
1605(a) of Public Law 111–5 for the
purchase of a MBR system using ARRA
funds as specified in Frederick County’s
request of August 18, 2009. 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: November 20, 2009.
William C. Early,
Acting Regional Administrator, U.S.
Environmental Protection Agency, Region III.
[FR Doc. E9–29214 Filed 12–7–09; 8:45 am]
BILLING CODE 6560–50–P
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Federal Election Commission.
Thursday, December 3,
2009, at 10 a.m.
PLACE: 999 E Street, NW., Washington,
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AGENCY:
DATE AND TIME:
E:\FR\FM\08DEN1.SGM
08DEN1
]]>Agencies
[Federal Register Volume 74, Number 234 (Tuesday, December 8, 2009)]
[Notices]
[Pages 64689-64690]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-29214]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
[FRL-9090-5]
Notice of a Project Waiver of Section 1605 (Buy American
Requirement) of the American Recovery and Reinvestment Act of 2009
(ARRA) to Frederick County, MD
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice.
-----------------------------------------------------------------------
SUMMARY: The Regional Administrator of EPA Region III 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
Frederick County for the purchase of a Membrane Bioreactor (MBR)
system, at the Ballenger McKinney Enhanced Nutrient Removal Wastewater
Treatment Plant (WWTP) expansion. Frederick County indicates that the
MBR treatment process is necessary to achieve the wastewater treatment
levels required by the National Pollutant Discharge Elimination System
(NPDES) permit issued for this WWTP. The MBR system under consideration
is manufactured by a company located in Canada and no United States
manufacturer produces an alternative that meets Frederick County's
technical specifications. This is a project specific waiver and only
applies to the use of the specified product for the ARRA funded project
being proposed. Any other ARRA project that may wish to use the same
product must apply for a separate waiver based on the specific project
circumstances. The Regional Administrator is making this determination
based on the review and recommendations of the EPA Region III, Water
Protection Division, Office of Infrastructure and Assistance. Frederick
County has provided sufficient documentation to support its request.
The Assistant Administrator of the EPA's 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
the MBR system containing goods not manufactured in America for the
proposed project being implemented by Frederick County. It should be
noted that for purposes of this action, the MBR, while treated as a
single system, is not itself a manufactured good, but is an assembly of
manufactured goods.
DATES: Effective Date: November 20, 2009.
FOR FURTHER INFORMATION CONTACT: Robert Chominski, Deputy Associate
Director, (215) 814-2162, or David McAdams, Environmental Engineer,
(215) 814-5764, Office of Infrastructure & Assistance (OIA), Water
Protection Division, U.S. EPA Region III, 1650 Arch Street,
Philadelphia, PA 19103-2029.
SUPPLEMENTARY INFORMATION: In accordance with ARRA Section 1605(c), 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 Frederick County for the acquisition of a MBR system
manufactured by GE Water and Process Technologies located in Canada.
Frederick County has been unable to find an American made MBR system
manufacturer to meet its specific wastewater requirements.
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 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.
The GE Zenon MBR system is comprised of MBR filtration cassettes,
air dryers and several other auxiliary components integral to the
efficient operation of the system. The MBR system is a packaged product
that has undergone complex biological design, hydraulic modeling,
control automation, fabrication and integration of specialized product
components. The GE Zenon MBR system--as a whole, is designed to remove
nutrients (Phosphorus and Nitrogen) to a level specified in Frederick
County's NPDES permit.
Frederick County's waiver request is to allow the purchase of the
GE Zenon MBR system with one hundred forty membrane filtration
cassettes, manufactured by GE Water and Process Technologies located in
Canada, 2 desiccant air dryers, manufactured by Ingersol Rand located
in the United Kingdom, and ten vacuum ejectors manufactured by Piab
located in Sweden for use in improvements to its existing WWTP. This
project will upgrade its existing WWTP by adding a new MBR treatment
process. The membrane filtration cassettes, air dryers and vacuum
ejectors are integral components of the MBR treatment process because
they separate the treated wastewater from the mixed liquor which comes
from the biological reactors, before the treated wastewater is
disinfected and discharged. After an engineering analysis of alternate
treatment processes, Frederick County
[[Page 64690]]
determined MBR to be the most environmentally sound and cost effective
solution. The MBR system is an advance waste water treatment process
which is designed to meet the high quality effluent requirements of the
waste load allocation under the NPDES permit.
In addition, in anticipation of procuring the MBR system, Frederick
County had issued specifications for the MBR system in its June 2007
Request for Proposal (RFP) and evaluated and awarded the contract in
March 2008. Section 11500 of this RFP No. 07-CP-78 included technical
specifications for Membrane Filtration Equipment, and the qualification
criteria in Section 1.03 of the bidder questionnaire required an
established record of installed systems at municipal WWTPs.
Specifically, Section 1.03 of the bidder questionnaire required that:
(1) The bidder furnish a list of five of its MBR system installations
at municipal WWTPs, (2) three of these systems have been in operation
for at least one year, and (3) at least one of the three systems has an
average flow design capacity of 1.0 MGD or more. These specifications
and requirements were justified by Frederick County's obligation to
meet reliably the environmental requirements of its NPDES permit. In
this selection phase, no domestic manufacturers were able to meet these
technical specifications and experience requirements. In May 2009,
Frederick County received bids for the construction of the entire WWTP
expansion based on the RFP. The winning general contractor will use the
pre-selected MBR design/equipment in the final installation.
Frederick County has provided information to the EPA demonstrating
that there are no membrane filtration systems manufactured in the
United States in sufficient and reasonable quantity and of a
satisfactory quality to meet these technical specifications in its RFP.
Two companies, neither of which manufacture in the United States, met
Frederick County's justified technical specifications and experience
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'' (``EPA Memorandum''), 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.'' Frederick County has incorporated
specific technical design requirements for installation of a MBR system
at its WWTP.
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 communities, such as Frederick
County, to revise their standards and specifications, institute a new
bidding process, and potentially choose a more costly, less efficient
project. The imposition of ARRA Buy American requirements on such
projects otherwise eligible for State Revolving Fund 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 a fundamental economic purpose of the ARRA, which is to
create or retain jobs.
Based on additional research conducted by EPA's Office of
Infrastructure and Assistance (OIA) in Region III, and to the best of
the Region's knowledge at the time of review, there did not appear to
be other MBR systems manufactured domestically back in March 2008 that
would meet Frederick County's technical specifications. EPA's national
contractor prepared a technical assessment report dated October 16,
2009 based on the waiver request submitted. The report determined that
the waiver request submittal was complete, that adequate technical
information was provided, and that there were no significant weaknesses
in the justification provided. The report confirmed the waiver
applicant's claim that only non-domestic manufacturers of the MBR
cartridge could meet the technical specifications included in the RFP
for Membrane Filtration Equipment and the qualification criteria for an
established record of installed systems at WWTPs included in the bidder
questionnaire.
Frederick County included a performance guarantee in the RFP as
well as the original specification. GE's performance guarantee applies
to the entire MBR system, including all components supplied by GE,
which would be voided by substitution of other components. The
potential voiding of the performance raises a valid issue regarding
availability of alternative desiccant air dryers and vacuum ejectors.
The existence of such a performance guarantee supports treating the
entire MBR system as a unitary whole, rather than a collection of
individual components. Therefore, EPA Region III concludes that only
the ``GE Zenon MBR System--as a whole'' meets the ``specifications in
project plans and design.''
The OIA has reviewed this waiver request and to the best of our
knowledge at the time of review has determined that the supporting
documentation provided by Frederick County is sufficient to meet the
criteria listed under Section 1605(b), OMB's regulations at 2 CFR
176.60-176.170, and in the April 28, 2009, EPA 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 Frederick
County's technical specifications, 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 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, Frederick
County is hereby granted a waiver from the Buy American requirements of
Section 1605(a) of Public Law 111-5 for the purchase of a MBR system
using ARRA funds as specified in Frederick County's request of August
18, 2009. 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: November 20, 2009.
William C. Early,
Acting Regional Administrator, U.S. Environmental Protection Agency,
Region III.
[FR Doc. E9-29214 Filed 12-7-09; 8:45 am]
BILLING CODE 6560-50-P
