Notice of a Regional Project Waiver of Section 1605 (Buy American Requirement) of the American Recovery and Reinvestment Act of 2009 (ARRA) to the Albany County Sewer District (ACSD), NY, 5585-5586 [2010-2253]

Agencies

• ENVIRONMENTAL PROTECTION AGENCY

[Federal Register Volume 75, Number 22 (Wednesday, February 3, 2010)]
[Notices]
[Pages 5585-5586]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-2253]


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

ENVIRONMENTAL PROTECTION AGENCY

[FRL-9108-9]


Notice of a Regional Project Waiver of Section 1605 (Buy American 
Requirement) of the American Recovery and Reinvestment Act of 2009 
(ARRA) to the Albany County Sewer District (ACSD), NY

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice.

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

SUMMARY: The Regional Administrator of EPA Region 2 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 the Albany County Sewer 
District (ACSD), New York for the purchase of a foreign manufactured 
Organic Rankine Cycle (ORC) turbine generator to recover waste heat 
from the sludge incineration operation at the ACSD's North Plant 
wastewater treatment plant (WWTP), and to produce electrical power for 
on-site consumption. The ACSD, through its consultant engineers, has 
indicated that no United States manufacturer produces an alternative 
that meets the ACSD's technical specifications; specifically, no ORC 
turbine generator manufactured in the United States is of adequate 
capacity to meet the electrical power output specifications for the 
proposed WWTP waste heat recovery and on-site electricity generation 
project. The foreign ORC turbine generators under consideration are 
manufactured by (1) Turboden, in Italy, (2) Ormat Technologies, Inc, in 
Israel, and (3) Adoratec, in Germany. This is a project specific waiver 
and only applies to the use of the identified 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 
project specific circumstances. The Regional Administrator is making 
this determination based on the review and recommendations of the 
Region 2 State Revolving Fund Program Team. The ACSD 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 ACSD to purchase an ORC turbine generator 
manufactured by (1) Turboden (Italy), (2) Ormat Technologies, Inc. 
(Israel) or (3) Adoratec (Germany) for the proposed WWTP waste heat 
recovery and on-site electricity generation project being implemented 
by the ACSD.

DATES: Effective Date: January 19, 2010.

FOR FURTHER INFORMATION CONTACT: Jane Leu, Environmental Engineer, 
(212) 637-3815, State Revolving Fund Program Team, Division of 
Environmental Planning and Protection, U.S. EPA, 290 Broadway, New 
York, NY 10007.

SUPPLEMENTARY INFORMATION: In accordance with ARRA Section 1605(c) and 
pursuant to Section 1605(b)(2) of Public Law 111-5, Buy American 
requirements, the EPA hereby provides notice that it is granting a 
project waiver to the Albany County Sewer District (ACSD), New York, 
for the acquisition of an Organic Rankine Cycle (ORC) turbine generator 
manufactured by any of the following foreign manufacturers: Turboden 
(Italy), Ormat Technologies, Inc. (Israel), or Adoratec (Germany) to 
meet the ACSD's technical design specifications for its proposed North 
Plant wastewater treatment plant (WWTP) waste heat recovery and on-site 
electricity generation project.
    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 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.
    The ACSD proposes to modify its North Plant WWTP, which has been in 
operation since 1974, to provide additional energy savings through the 
installation of a Combined Heat and Power (CHP) system. The proposed 
project and design involves the capture of waste heat from the solids 
handling process and a system that ducts the exhaust gas flow and 
transports it to a waste-heat-oil heater and ORC system. The ACSD has 
requested a waiver from the Buy American provision of ARRA for a 
foreign manufactured ORC turbine generator to recover waste heat from 
the sludge incineration operation at the ACSD's North Plant WWTP, and 
to produce electrical power for on-site consumption. ACSD's waiver 
request stated that the ORC turbine generators manufactured in the 
United States are not of adequate capacity to meet the electrical power 
output specifications for the project. The project specifications 
require that the ORC turbine generator has a maximum electrical 
generation net power output of 1,000 kilowatt (kW) and a minimum 
electrical generation net power output of 826 kW. The New York State 
Environmental Facilities Corporation administers the Clean Water State 
Revolving Fund on behalf of the New York State Department of 
Environmental Conservation, and has identified this project for ARRA 
funding.
    ACSD's waiver request included a design and performance 
specification matrix comparing foreign and domestic ORC turbine 
generator manufacturers consisting of three foreign (Turboden, Ormat 
Technologies, Inc, and Adoratec) and four domestic manufacturers (UTC 
Power, Infinity Turbine, TurboGenix and Barber-Nichols, Inc.). The 
matrix provides evidence that three of the four domestic manufacturers 
do not meet the electrical power generation output required by the 
project specifications. The fourth domestic manufacturer, Barber-
Nichols, Inc (BNI), was identified as a potential domestic manufacturer 
of ORC turbine generators. The ACSD's revised waiver request, however, 
indicated that BNI was no longer a viable domestic candidate for the 
ORC turbine generator based upon the following: (1) An e-mail from BNI 
to ACSD dated July 17, 2008, stating that BNI does not provide complete 
turbine generator packages (as required in the project specifications), 
and (2) an e-mail from BNI to ACSD dated August 13, 2008, declining 
ACSD's invitation to bid on this project.
    The information provided to EPA by the ACSD was confirmed through a 
technical review by EPA's national contractor of the submitted 
documentation. To the best of EPA's knowledge at this time, there does 
not

[[Page 5586]]

appear to be any American-manufactured ORC turbine generator available 
to meet the ACSD's project design specifications for its North Plant 
WWTP. The ACSD's submission clearly articulates entirely functional 
reasons for its technical specifications, 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 Headquarters 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 the 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,'' and satisfactory quality as ``the quality 
of iron, steel, or the relevant manufactured good as specified in the 
project plans and designs.''
    Based on additional research conducted by the State Revolving Fund 
Program Team of the Division of Environmental Planning and Protection 
and to the best of the Region's knowledge at the time of the review, 
there do not appear to be other ORC turbine generators manufactured 
domestically that would meet the ACSD's technical specifications.
    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 potential SRF eligible 
recipients, such as the ACSD, to revise their design standards and 
specifications. 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 the fundamental purpose of the ARRA, which is to 
preserve and create jobs and promote economic recovery.
    The State Revolving Fund Program Team has reviewed this waiver 
request and has determined that the supporting documentation provided 
by the ACSD establishes both a proper basis to specify the particular 
good required and that the manufactured good was not available from a 
producer in the United States to meet the design specifications for the 
proposed project. The information provided is sufficient to meet the 
criteria listed under Section 1605(b), OMB's regulation at 2 CFR 
176.100, and in the EPA Headquarters April 28, 2009, Memorandum, 
``Implementation of Buy American provisions of Public Law 111-5, the 
`American Recovery and Reinvestment Act of 2009':'' 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 ACSD's technical 
specifications, a waiver from the Buy American requirement is 
justified.
    The Administrator's 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 ACSD 
is hereby granted a waiver from the Buy American requirements of 
Section 1605(a) of Public Law 111-5 for the purchase of an ORC turbine 
generator from any of the following foreign manufacturers: Turboden 
(Italy), Ormat Technologies, Inc. (Israel), or Adoratec (Germany) to 
meet the ACSD's technical design specifications for its North Plant 
WWTP waste heat recovery and on-site electricity generation project 
using ARRA funds, as specified in the ACSD's request of September 30, 
2009, and as revised on October 28, 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: January 19, 2010.
Judith A. Enck,
Regional Administrator, Region 2.
[FR Doc. 2010-2253 Filed 2-2-10; 8:45 am]
BILLING CODE 6560-50-P