Notice of a Project Waiver of Section 1605 (Buy American Requirement) of the American Recovery and Reinvestment Act of 2009 (ARRA) to the City of LaSalle, IL (LaSalle), 6028-6030 [2010-2541]

Agencies

• ENVIRONMENTAL PROTECTION AGENCY

[Federal Register Volume 75, Number 24 (Friday, February 5, 2010)]
[Notices]
[Pages 6028-6030]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-2541]


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ENVIRONMENTAL PROTECTION AGENCY

[FRL-9110-6]


Notice of a Project Waiver of Section 1605 (Buy American 
Requirement) of the American Recovery and Reinvestment Act of 2009 
(ARRA) to the City of LaSalle, IL (LaSalle)

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice.

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SUMMARY: The EPA 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 of a satisfactory quality] to LaSalle for the purchase of 
membrane bioreactor (MBR) membrane racks, which include the hollow 
fiber membrane modules and the associated proprietary mechanical 
equipment to secure the membranes in the tank. 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 project-specific circumstances. These hollow fiber membrane racks, 
which are supplied by Siemens Water Technologies Corporation, are 
manufactured in Australia and China, and meet LaSalle's performance 
specifications and requirements. The Acting Regional Administrator is 
making this determination based on the review and recommendations of 
EPA Region 5's Water Division. LaSalle has provided sufficient 
documentation to support its request, as detailed below. 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 purchase of hollow fiber membrane racks 
for LaSalle's ``East Side

[[Page 6029]]

Regional Wastewater Treatment Facility Project'' that may otherwise be 
prohibited under Section 1605(a) of the ARRA.

DATES: Effective Date: January 7, 2010.

FOR FURTHER INFORMATION CONTACT: Julie Henning, SRF Financial Analyst 
(312) 886-4882, or Puja Lakhani, Regional Counsel, (312) 353-3190, U.S. 
EPA Region 5, 77 W. Jackson Blvd., Chicago, IL 60613.

SUPPLEMENTARY INFORMATION: In accordance with ARRA Section 1605(c) and 
pursuant to Section 1605(b)(2) of Public Law 111-5, Buy American 
requirements, EPA hereby provides notice that it is granting a project 
waiver to LaSalle for the acquisition of hollow fiber membrane racks 
which are manufactured in Australia and China. The manufacturer is 
Siemens Water Technologies Corporation.
    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, or unless a waiver is provided to the recipient by the 
head of the appropriate agency, here 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.
    LaSalle proposes to construct a new 0.50 million gallons per day 
(MGD) wastewater treatment plant. The plant is designed based upon 
membrane bioreactor (MBR) technology. The MBR technology will produce 
effluent which has superior quality than conventional secondary or 
tertiary treatment facilities. The superior effluent quality afforded 
by the MBR technology was necessary for this project due to the 
characteristics of the receiving stream, the Little Vermilion River. 
The segment of the Little Vermilion River into which the proposed 
wastewater treatment plant will discharge is on the list of impaired 
waters set forth in Section 303(d) of the Federal Clean Water Act and 
the Water Quality Planning and Management regulation at 40 CFR Part 
130. The segment has been listed with the designated use of aquatic 
life as impaired by potential pollutants including total nitrogen, pH, 
total phosphorus, total suspended solids, zinc and fecal coliform. The 
MBR technology proved to be the cost-effective alternative for 
achieving effluent of sufficient quality with regard to the pollutants 
that are the potential source of impairment that would be required in 
order to obtain a National Pollutant Discharge Elimination System 
(NPDES) permit for a new discharge into the 303(d)-listed receiving 
stream (Little Vermilion River).
    During the bidding phase of the project, LaSalle received proposals 
from three MBR equipment manufacturers, of which Siemens Water 
Technologies Corporation was selected. None of the three equipment 
manufacturers produces the hollow fiber membrane rack components of the 
MBR systems within the U.S. LaSalle stated in the waiver application 
that based on information gathered during the planning and early design 
stages of the project, including their contact with contractors and 
equipment suppliers during the bidding phase of the project, to the 
best of their knowledge at the time of equipment selection and design, 
they could not identify any other reputable membrane system for 
wastewater treatment applications that was currently manufactured in 
the United States and available to meet LaSalle's technical 
specifications and design requirements.
    The April 28, 2009 EPA HQ Memorandum, ``Implementation of Buy 
American provisions of P.L. 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.''
    EPA's national engineering contractor prepared a technical 
assessment report dated September 29, 2009, based on the submitted 
waiver request, identifying one potential domestic manufacturer of 
membrane racks which appeared to have the potential to meet LaSalle's 
performance criteria and specifications. Subsequent analysis by EPA and 
the national contractor, however, concluded that the potential domestic 
manufacturer only produces modules with flat plate membranes. LaSalle's 
project design plans specify that hollow fiber configured modules are 
required, and discussions with both EPA's national engineering 
contractors and LaSalle confirmed that the use of flat plate membranes 
would require re-designing major portions of the project, including the 
membrane bioreactor basins, process inlet and outlet piping, filtrate 
pumping system, recycle pumping system, air scour blowers and air 
piping system, chemical cleaning system, and other features. The re-
design would involve major changes to the basin concrete structures, 
masonry building enclosure, piping and mechanical systems, electrical/
controls systems, and access platforms. Therefore, the potential 
domestic manufacturer does not provide the required hollow fiber 
membrane racks in sufficient and reasonably available quantities and of 
a satisfactory quality to meet the design specifications. EPA's 
national contractor's technical assessment report from September 29, 
2009, did not find any additional domestic manufacturers of the 
specified manufactured good.
    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 Auburn to 
revise their standards and specifications and to start the bidding 
process again. The imposition of ARRA Buy American requirements on such 
projects otherwise eligible for ARRA State Revolving Fund assistance 
would result in unreasonable delay and thus displace the ``shovel 
ready'' status for this project. To further delay project 
implementation is in direct conflict with a fundamental economic 
purpose of the ARRA, which is to create or retain jobs.
    The State and Tribal Programs Branch has reviewed this waiver 
request and has determined that the supporting documentation provided 
by LaSalle is sufficient to meet the criteria listed under Section 
1605(b) of the ARRA 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) of the ARRA. 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 LaSalle's performance 
specifications and requirements, 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

[[Page 6030]]

1605 of the 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, LaSalle is hereby 
granted a waiver from the Buy American requirements of Section 1605(a) 
of Public Law 111-5 for the purchase of the MBR membrane racks using 
ARRA funds as specified in the community's request of September 10, 
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: January 7, 2010.
Bharat Mathur,
Acting Regional Administrator, Region 5.
[FR Doc. 2010-2541 Filed 2-4-10; 8:45 am]
BILLING CODE 6560-50-P