Notice of a Regional Project Waiver of Section 1605 (Buy American) of the American Recovery and Reinvestment Act of 2009 (ARRA) to the Massachusetts Water Resources Authority (MWRA), 8348-8351 [2010-3703]
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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 OMB ARRA Buy American
Guidance cites the Federal Acquisition
Regulation (FAR) as an appropriate
reference for availability waiver
inquiries. Specifically, the OMB
Guidance at section 176.80(a)(1) states
(at 77 FR 18452) that ‘‘The
determinations of nonavailability of the
articles listed at 48 CFR 25.104(a) and
the procedures at 48 CFR 25.103(b)(1)
also apply if any of those articles are
manufactured goods needed in the
project. The FAR’s list of nonavailable
articles includes ‘‘Fibers of the following
types: * * * coir,’’ thereby establishing
a presumption of lack of U.S.
availability. The FAR procedures at 48
CFR 25.103(b)(1) specified as required
in the OMB Guidance state that: (1)(i) A
nonavailability determination has been
made for the articles listed in 25.104.
This determination does not necessarily
mean that there is no domestic source
for the listed items, but that domestic
sources can only meet 50 percent or less
of total U.S. government and
nongovernment demand. (ii) Before
acquisition of an article on the list, the
procuring agency is responsible to
conduct market research appropriate to
the circumstances, including seeking of
domestic sources.
The applicant met the procedures
specified for the availability inquiry as
appropriate to the circumstances by
conducting on-line research and
contacting suppliers, and all sources
indicated that coconut fiber woven mats
are only manufactured outside of the
U.S. Therefore, based on the
information provided to EPA and to the
best of our knowledge at this time,
coconut fiber woven mats are not
manufactured in the United States, and
no other U.S. manufactured product can
meet Mecklenburg County’s
performance specifications and
requirements for this project.
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 agencies
such as Mecklenburg County Land Use
and Environmental Services Agency, to
revise their standards and
specifications. 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
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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.
EPA’s national contractor prepared a
technical assessment report dated
December 22, 2009, based on the
submitted waiver request. 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 there are
no comparable domestic products that
can meet the specific durability, size
and biodegradation needs of this
project.
The information and supporting
documentation provided by
Mecklenburg County 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 the County’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
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, Mecklenburg
County Land Use and Environmental
Services Agency, is hereby granted a
waiver from the Buy American
requirements of Section 1605(a) of
Public Law 111–5 for the purchase of
coconut fiber woven mats using ARRA
funds as specified in the Mecklenburg
County Land and Environmental
Services Agency request of December
16, 2009. This supplementary
information constitutes the detailed
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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 28, 2010.
J. Scott Gordon,
Acting Regional Administrator, Region 4.
[FR Doc. 2010–3684 Filed 2–23–10; 8:45 am]
BILLING CODE 6560–50–P
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AGENCY
[FRL–9117–6]
Notice of a Regional Project Waiver of
Section 1605 (Buy American) of the
American Recovery and Reinvestment
Act of 2009 (ARRA) to the
Massachusetts Water Resources
Authority (MWRA)
AGENCY: Environmental Protection
Agency (EPA).
ACTION: Notice.
SUMMARY: The EPA 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
Massachusetts Water Resources
Authority (‘‘MWRA’’) for the purchase of
a 1.5 megawatt (MW) foreign
manufactured wind turbine for the
DeLauri Pump Station Renewable
Energy Project in Charlestown,
Massachusetts. This is a project specific
waiver and only applies to the use of the
specified product 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. Based upon information
submitted by the MWRA, it has been
determined that there is currently no
domestically manufactured wind
turbine available or one that can be
supplied to meet its proposed project
specifications. The Regional
Administrator is making this
determination based on the review and
recommendations of the Municipal
Assistance Unit. 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 a foreign
manufactured 1.5 MW wind turbine by
the MWRA, as specified in its November
19, 2009 request.
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DATES:
Effective Date: February 11,
2010.
FOR FURTHER INFORMATION CONTACT:
David Chin, Environmental Engineer,
(617) 918–1764, or Katie Connors,
Environmental Engineer, (617) 918–
1658, Municipal Assistance Unit (CMU),
Office of Ecosystem Protection (OEP),
U.S. EPA, 5 Post Office Square, Suite
100, Boston, MA 02109–3912.
In
accordance with ARRA Sections 1605(c)
and 1605(b)(2), 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 MWRA for the
purchase of a foreign manufactured 1.5
MW wind turbine to meet the MWRA’s
design and performance specifications
as part of its proposed DeLauri Pump
Station Renewable Energy Project in
Charlestown, MA.
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 a public works project
unless all of the iron, steel, and
manufactured goods used in the project
is produced in the United States, or
unless a waiver is provided to the
recipient by the head of the appropriate
agency, here the 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 MWRA is proposing a renewable
energy project consisting of a 1.5 MW
wind turbine, secondary unit substation,
switchgear, associated conductors and
controls to be installed at an existing
MWRA wastewater pump station
(DeLauri Pump Station) in Charlestown,
Massachusetts (MA). The DeLauri Pump
Station has an average flow of 31
million gallons a day (mgd) and a peak
capacity of 93 mgd and serves
Charlestown and portions of the
communities of Somerville, Cambridge,
and Medford, MA. The pump station
functions during dry and wet weather
and serves to overcome the hydraulic
differential required to continue gravity
flow through the MWRA collection
system and eventually to the Deer Island
Wastewater Treatment Plant.
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SUPPLEMENTARY INFORMATION:
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The site is located on an MWRA
owned parcel of land along the north
bank of the Mystic River and just west
of Alford Street (Route 99) in the
Charlestown section of Boston. The
property area is comprised of 8.65 acres
located in a strictly industrial area and
does not have any immediate residential
abutters. The DeLauri Pump Station
building is located in the middle of the
property. The planned location for the
wind turbine is near the southwest edge
of the Pump Station property adjacent to
the Mystic River, and approximately
275 feet west of Route 99, a heavily
traveled 4 lane undivided highway. The
site is adjacent to the Boston Water and
Sewer Commission property and
directly across the highway from the
1600 MW U.S. Power Generating
Company’s Mystic Power Plant.
The MWRA is requesting a waiver for
the purchase of a 1.5 MW wind turbine
(comprised of all turbine components,
including the blades, the nacelle (i.e.
cover housing that holds the equipment
within a wind turbine), the gear box,
low and high speed shafts, generator,
controller, and brake), which is
manufactured by Sinovel in China. The
wind turbine is expected to generate
electrical power to provide 80% of the
simultaneous energy needs of the
wastewater pump station itself.
Contingent on pump station demand
and wind conditions, the wind turbine
is also expected to contribute more than
2.65 million kilowatt hours per year of
clean renewable electricity back to the
power grid, which is not consumed
simultaneously with pump station
demand. It should be noted that
Massachusetts is one of several
northeast states that has a climate
change action plan which calls for
significant CO2 emission reductions by
2020. Integral to that plan is a wider
adoption of non-emitting renewable
sources of electricity. Wind power is
currently the most practical source of
renewable energy to meet that goal. The
Massachusetts’ Renewable Portfolio
Standard (RPS) requires an increasing
amount of the electricity sold in the
Commonwealth to come from renewable
electricity, including wind power. RPS
is also one of the major policy tools put
in place to meet the CO2 reduction goals
under the climate change plan. This
project, while small, would contribute
towards achieving those goals.
The MWRA waiver request was
submitted just after the project was
advertised for bid. The estimated total
cost of the proposed design, build, and
operate project is $4.7M, with the wind
turbine accounting for approximately
half of the total cost. MWRA has
specified a 1.5 MW wind turbine, with
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a height of approximately 262 feet to the
top of the tower, and 393 feet to the tip
of the blade. The maximum blade
diameter will be approximately 269 feet.
This is the largest (and most efficient)
wind turbine that can be installed and
still comply with height limitations
imposed by the Federal Aviation
Administration at this particular site.
The MWRA has researched available
domestic and foreign wind turbine
manufacturers. One domestic
manufacturer produces a larger capacity
wind turbine, but the height of that
turbine exceeds the Federal Aviation
Administration height limitations for
the site, and thus could not meet project
specifications. Another domestic
manufacturer that produces a wind
turbine that meets project specifications
was identified, but it is not willing to
supply a wind turbine for installation at
the DeLauri Pump Station due to site
limitations. The domestic
manufacturer’s internal siting
considerations recommended that, for
safety in the event of icing, a setback
distance of 1.5 times the hub height and
rotor diameter be maintained. As the
existing site did not allow for such a
setback distance, the domestic
manufacturer declined to make its
product available for this project.
However, the domestic manufacturer’s
internal siting considerations also
provided for other possible mitigation
techniques for properties that do not
meet these setback considerations, but
the manufacturer did not offer to make
its product available based on the
potential application of such techniques
at this site.
One foreign manufacturer, which has
been identified to have a 1.5 MW wind
turbine that meets the technical
specifications required by the MWRA,
currently does not use the same site
consideration limitations applied by the
domestic manufacturer. The foreign
manufacturer has agreed to supply a 1.5
MW wind turbine to the MWRA. There
was also another foreign manufacturer
that had been identified by the MWRA
which had a 1.5 MW wind turbine that
could meet the technical specifications,
but that foreign manufacturer is now
unwilling to provide single wind
turbine installations.
There are currently no local, State,
Federal, or international requirements
regulating setback distances associated
with potential icing conditions while
operating wind turbines. There have
been guidelines that have been
suggested by various wind energy
industry groups, some of which the
identified domestic manufacturer has
adopted, as well as model zoning
ordinance/bylaws like the one that the
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Commonwealth of Massachusetts
introduced in 2009. The technical
aspect of detecting and controlling icing
through instrumentation and equipment
also is evolving.
Based on information provided to the
EPA, MWRA has taken all of the
necessary steps to obtain all necessary
local, state, and federal approvals to
move forward with the proposed
project. The project has been reviewed
by the following regulatory agencies:
Federal Aviation Administration (i.e.
received a Determination of No Hazard
to Air Navigation); the Boston
Conservation Commission (i.e. an Order
of Conditions); the Boston
Redevelopment Authority; the
Massachusetts Department of
Environmental Protection (i.e. Chapter
91 Waterways License); Federal
Communications Commission; and the
Massachusetts Historical Commission.
The MWRA has also completed
significant public outreach to abutters
(i.e. Boston Water and Sewer
Commission, the Massachusetts Bay
Transportation Authority, and the U.S.
Power Generating Company), the
Massachusetts Highway Department,
local associations (i.e. City of Boston’s
Office of Neighborhood Services
Department, the Charlestown
Neighborhood Council (CNC), the CNC
Development Committee, and the
Charlestown Waterfront Coalition), local
officials and Congressional staff.
Based on information provided by the
MWRA, concerns associated with
potential ice throws from the wind
turbine were not raised during the
permitting and public outreach process.
It should be noted that there are a
number of existing wind turbine
installations in Massachusetts that do
not conform to the site setback
considerations used by the domestic
manufacturer. However, because the site
setback and associated safety
considerations were the basis for the
unavailability of the domestic wind
turbine, EPA must address these
considerations in its findings and
determination on this waiver request.
A July 2008 University of
Massachusetts (UMASS) Wind Energy
Center research paper (Wind Turbine
Siting—An Assessment of Safety Risks
in Massachusetts and New England)
suggests that the risks in these cases are
relatively low. The paper references a
study which notes that there have been
no reported injuries from ice throws
from wind turbines, despite the
installation of 6,000 MW of wind energy
worldwide. The UMASS study further
suggests that while icing can be severe
in New England, the incidence of icing
events is relatively small. Several papers
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have noted that the odds of being struck
by ice fragments from a wind turbine are
similar to those odds of being struck by
lightning.
However, while these analyses place
the low risks from ice damage or injury
in the perspective of the experience
available, the experience with these
risks is largely anecdotal and has not
been systematically assessed in
situations where precautionary setback
distances to heavily traveled public
highways are not met. Several reports
recommend that if setback distances
cannot be maintained, alternative
mitigation methods may be effective at
limiting safety risks. As noted above, the
use of mitigation measures—which may
include monitoring the approach of
conditions likely to lead to icing,
shutting down the turbine in the event
of icing, careful restart procedures, and
a range of appropriate operational
control strategies and measures—is also
considered appropriate under the
domestic manufacturer’s internal siting
considerations where setback distances
cannot be met. This approach is
consistent with available guidelines and
model bylaws.
The MWRA, in discussions with the
EPA Regional Office, has indicated that
it will implement a mitigation plan to
minimize any potential ice throws to
ensure public safety. Commercial wind
turbines have been designed with
vibration sensors to detect any
imbalance which might be caused by
icing of the blades, resulting in an
automatic shutdown (or preventing start
up) of the turbine when this imbalance
is detected. In situations where
conditions indicate a risk of icing of
wind turbine components, mitigation
measures can be taken automatically or
manually. The foreign manufacturer
supplying the wind turbine to the
MWRA has indicated that the turbine
comes equipped with vibration sensors
to shut down when ice build up is
detected. The contractor who will
install the wind turbine has indicated
that the control system can be
programmed to allow for manual start
up as well, which will allow an operator
to visually inspect the turbine to
confirm that there is no ice remaining
before the turbine is re-started. The
MWRA will implement manual wind
turbine operational control strategies
during periods of ice accretion which
include, but are not limited to:
Curtailment of operation of the turbine,
braking the blades in a ‘‘Y’’ to facilitate
ice shedding directly underneath the
wind turbine, and yawing the nacelle so
that the blades are in the safest position
for ice shedding. It may also post
warning signs alerting personnel of the
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potential risk in the area. Access to the
turbine area site will be restricted
during icing conditions, if necessary.
Based on the evaluation of all of the
submitted documentation by EPA’s
technical review team, MWRA’s
statement that no U.S. manufacturer
will provide a 1.5 MW wind turbine
generator that meets project
specifications is supported by the
available evidence. In addition, the
evaluation of the supporting
documentation indicates that at least
one foreign manufacturer, Sinovel, will
provide its wind turbine at the proposed
site. Accordingly, EPA finds that the
Sinovel wind turbine is available on
terms that address the basis of the
unavailability of the domestic-made
wind turbine if the MWRA’s mitigation
plan as stated above is implemented.
EPA further finds that the MWRA’s
acceptance and use of this waiver
represents a commitment by the MWRA
to implement the mitigation plan, and
that such continuing implementation
will constitute the MWRA’s basis for
compliance with the requirements of
ARRA § 1605 with respect to this wind
turbine.
The purpose of the ARRA is to
stimulate economic recovery by funding
current infrastructure construction, not
to delay projects that are ‘‘shovel ready’’
by requiring potential SRF eligible
recipients, such as the MWRA, to find
alternative project sites when
appropriate and more timely and
feasible measures are available
consistent with project design standards
and specifications. The imposition of
ARRA Buy American requirements in
this case would result in unreasonable
delay and potentially the cancellation of
this project as sited. The delay or
cancellation of this construction would
directly conflict with a fundamental
economic purpose of ARRA, which is to
create or retain jobs.
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’ ’’
(‘‘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.’’ The same Memorandum
defines ‘‘satisfactory quality’’ as ‘‘the
quality of steel, iron or manufactured
good specified in the project plans and
designs.’’
The Municipal Assistance Unit (CMU)
has reviewed this waiver request and
has determined that the supporting
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documentation provided by the MWRA
establishes both a proper basis to
specify a particular manufactured good,
and that no domestic manufacturer is
currently available or willing to supply
that particular manufactured good
which meets project specifications. The
information provided is sufficient to
meet the following criteria listed under
Section 1605(b) of the ARRA and in the
April 28, 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 March 31, 2009 Delegation of
Authority Memorandum provided
Regional Administrators with the
temporary authority to issue exceptions
to Section 1605 of the ARRA within the
geographic boundaries of their
respective regions and with respect to
requests by individual grant recipients.
Having established a proper basis to
specify the particular good required for
this project, that the MWRA has agreed
to implement a mitigation plan to
minimize the likelihood of any potential
ice throws to ensure public safety, and
that this manufactured good was not
available from a producer in the United
States, the MWRA is hereby granted a
waiver from the Buy American
requirements of Section 1605(a) of
Public Law 111–5. This waiver permits
use of ARRA funds for the purchase of
a foreign manufactured wind turbine
documented in MWRA’s waiver request
submittal dated November 19, 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: February 11, 2010.
Ira Leighton,
Acting Regional Administrator, EPA Region
1—New England.
[FR Doc. 2010–3703 Filed 2–23–10; 8:45 am]
BILLING CODE 6560–50–P
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AGENCY
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Notice of a Regional Project Waiver of
Section 1605 (Buy American) of the
American Recovery and Reinvestment
Act of 2009 (ARRA) to the Old Town
Water District in Old Town, ME
AGENCY: Environmental Protection
Agency (EPA).
ACTION: Notice.
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SUMMARY: The EPA is hereby granting a
waiver of the Buy America requirements
of ARRA Section 1605 under the
authority of Section 1605(b)(1)
[inconsistent with the public interest] to
the Old Town Water District (‘‘Town’’) in
Old Town, Maine for the purchase of
GreensandPlus pressure filter media,
manufactured in Brazil, for two of the
12 foot diameter filters. This is a project
specific waiver and only applies to the
use of the specified product 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 Town
evaluated three different types of
pressure filter media during a pilot test
in April of 2008 and, well before the
enactment of ARRA, selected
GreensandPlus filter media. The media
was purchased for the first two of four
filter beds in October 2008, when the
price of the media was determined for
all four beds. The media was installed
in two of the filter beds in January 2009.
The ARRA funded project is for the
other two filter beds in the Old Town
Water District system. If an alternate
domestic filter media were to be
installed in the remaining two filter
beds, the Maine Drinking Water
Program would require replacement of
the underdrain and associated piping,
which would increase the cost of the
project from $40,019 to $86,405. Based
upon information submitted by the
Town, its consulting engineer, and the
Maine Department of Health and
Human Services (MEDHHS), EPA has
concluded that, under these
circumstances, requiring the installation
of an alternative domestic filter media
would be inconsistent with the public
interest, and that a waiver of the Buy
American provisions is justified. The
Regional Administrator is making this
determination based on the review and
recommendations of the Municipal
Assistance Unit. The Assistant
Administrator of the Office of
Administration and Resources
Management has concurred on this
decision to make an exception to the
requirements of Section 1605(a) of
ARRA. This action permits the purchase
of GreensandPlus pressure filter media,
as specified in its November 7, 2009
request.
DATES: Effective Date: February 12,
2010.
FOR FURTHER INFORMATION CONTACT:
Katie Connors, Environmental Engineer,
(617) 918–1658, or, David Chin,
Environmental Engineer, (617) 918–
1764, Municipal Assistance Unit (CMU),
Office of Ecosystem Protection (OEP),
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U.S. EPA, 5 Post Office Square, Suite
100, Boston, MA 02109–3912.
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 Old Town Water
District (Town) in Old Town, Maine for
the purchase of non-domestic
GreensandPlus pressure filter media for
two 12 foot diameter filters. EPA has
evaluated the Town’s basis for
procuring the GreensandPlus pressure
filter media for these filters. Based on
the information provided by the
applicant and the State of Maine, EPA
has determined that it is inconsistent
with the public interest for the Town to
pursue the purchase of domestically
manufactured filter media.
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 a public works project
unless all of the iron, steel, and
manufactured goods used in the project
is produced in the United States, or
unless a waiver is provided to the
recipient by the head of the appropriate
agency, here the EPA. A waiver may be
provided under Section 1605(b) 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 Town is requesting a waiver of
the Buy American provision for the
GreensandPlus filter media for two 12
foot diameter filters. At the Town’s
water treatment plant, there are four
filter beds. In April of 2008, the Town
performed a pilot study of three
different pressure filter media. Well
before the enactment of ARRA, they
selected GreensandPlus media—which
is manufactured in Brazil—because it
was more appropriate for the
configuration of the Old Town Water
District system. The GreensandPlus
media was purchased for the first two
filter beds in October 2008, when the
price was locked in for all four filter
beds. The media was installed in
January 2009 for the first of the filter
beds. The ARRA funded project to the
Town is for the installation of the
GreensandPlus media for iron and
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]]>Agencies
[Federal Register Volume 75, Number 36 (Wednesday, February 24, 2010)]
[Notices]
[Pages 8348-8351]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-3703]
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ENVIRONMENTAL PROTECTION AGENCY
[FRL-9117-6]
Notice of a Regional Project Waiver of Section 1605 (Buy
American) of the American Recovery and Reinvestment Act of 2009 (ARRA)
to the Massachusetts Water Resources Authority (MWRA)
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice.
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SUMMARY: The EPA 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 Massachusetts Water Resources Authority (``MWRA'') for
the purchase of a 1.5 megawatt (MW) foreign manufactured wind turbine
for the DeLauri Pump Station Renewable Energy Project in Charlestown,
Massachusetts. This is a project specific waiver and only applies to
the use of the specified product 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. Based
upon information submitted by the MWRA, it has been determined that
there is currently no domestically manufactured wind turbine available
or one that can be supplied to meet its proposed project
specifications. The Regional Administrator is making this determination
based on the review and recommendations of the Municipal Assistance
Unit. 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
a foreign manufactured 1.5 MW wind turbine by the MWRA, as specified in
its November 19, 2009 request.
[[Page 8349]]
DATES: Effective Date: February 11, 2010.
FOR FURTHER INFORMATION CONTACT: David Chin, Environmental Engineer,
(617) 918-1764, or Katie Connors, Environmental Engineer, (617) 918-
1658, Municipal Assistance Unit (CMU), Office of Ecosystem Protection
(OEP), U.S. EPA, 5 Post Office Square, Suite 100, Boston, MA 02109-
3912.
SUPPLEMENTARY INFORMATION: In accordance with ARRA Sections 1605(c) and
1605(b)(2), 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 MWRA for the purchase of a
foreign manufactured 1.5 MW wind turbine to meet the MWRA's design and
performance specifications as part of its proposed DeLauri Pump Station
Renewable Energy Project in Charlestown, MA.
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 a public works project unless all of the
iron, steel, and manufactured goods used in the project is produced in
the United States, or unless a waiver is provided to the recipient by
the head of the appropriate agency, here the 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 MWRA is proposing a renewable energy project consisting of a
1.5 MW wind turbine, secondary unit substation, switchgear, associated
conductors and controls to be installed at an existing MWRA wastewater
pump station (DeLauri Pump Station) in Charlestown, Massachusetts (MA).
The DeLauri Pump Station has an average flow of 31 million gallons a
day (mgd) and a peak capacity of 93 mgd and serves Charlestown and
portions of the communities of Somerville, Cambridge, and Medford, MA.
The pump station functions during dry and wet weather and serves to
overcome the hydraulic differential required to continue gravity flow
through the MWRA collection system and eventually to the Deer Island
Wastewater Treatment Plant.
The site is located on an MWRA owned parcel of land along the north
bank of the Mystic River and just west of Alford Street (Route 99) in
the Charlestown section of Boston. The property area is comprised of
8.65 acres located in a strictly industrial area and does not have any
immediate residential abutters. The DeLauri Pump Station building is
located in the middle of the property. The planned location for the
wind turbine is near the southwest edge of the Pump Station property
adjacent to the Mystic River, and approximately 275 feet west of Route
99, a heavily traveled 4 lane undivided highway. The site is adjacent
to the Boston Water and Sewer Commission property and directly across
the highway from the 1600 MW U.S. Power Generating Company's Mystic
Power Plant.
The MWRA is requesting a waiver for the purchase of a 1.5 MW wind
turbine (comprised of all turbine components, including the blades, the
nacelle (i.e. cover housing that holds the equipment within a wind
turbine), the gear box, low and high speed shafts, generator,
controller, and brake), which is manufactured by Sinovel in China. The
wind turbine is expected to generate electrical power to provide 80% of
the simultaneous energy needs of the wastewater pump station itself.
Contingent on pump station demand and wind conditions, the wind turbine
is also expected to contribute more than 2.65 million kilowatt hours
per year of clean renewable electricity back to the power grid, which
is not consumed simultaneously with pump station demand. It should be
noted that Massachusetts is one of several northeast states that has a
climate change action plan which calls for significant CO2
emission reductions by 2020. Integral to that plan is a wider adoption
of non-emitting renewable sources of electricity. Wind power is
currently the most practical source of renewable energy to meet that
goal. The Massachusetts' Renewable Portfolio Standard (RPS) requires an
increasing amount of the electricity sold in the Commonwealth to come
from renewable electricity, including wind power. RPS is also one of
the major policy tools put in place to meet the CO2
reduction goals under the climate change plan. This project, while
small, would contribute towards achieving those goals.
The MWRA waiver request was submitted just after the project was
advertised for bid. The estimated total cost of the proposed design,
build, and operate project is $4.7M, with the wind turbine accounting
for approximately half of the total cost. MWRA has specified a 1.5 MW
wind turbine, with a height of approximately 262 feet to the top of the
tower, and 393 feet to the tip of the blade. The maximum blade diameter
will be approximately 269 feet. This is the largest (and most
efficient) wind turbine that can be installed and still comply with
height limitations imposed by the Federal Aviation Administration at
this particular site.
The MWRA has researched available domestic and foreign wind turbine
manufacturers. One domestic manufacturer produces a larger capacity
wind turbine, but the height of that turbine exceeds the Federal
Aviation Administration height limitations for the site, and thus could
not meet project specifications. Another domestic manufacturer that
produces a wind turbine that meets project specifications was
identified, but it is not willing to supply a wind turbine for
installation at the DeLauri Pump Station due to site limitations. The
domestic manufacturer's internal siting considerations recommended
that, for safety in the event of icing, a setback distance of 1.5 times
the hub height and rotor diameter be maintained. As the existing site
did not allow for such a setback distance, the domestic manufacturer
declined to make its product available for this project. However, the
domestic manufacturer's internal siting considerations also provided
for other possible mitigation techniques for properties that do not
meet these setback considerations, but the manufacturer did not offer
to make its product available based on the potential application of
such techniques at this site.
One foreign manufacturer, which has been identified to have a 1.5
MW wind turbine that meets the technical specifications required by the
MWRA, currently does not use the same site consideration limitations
applied by the domestic manufacturer. The foreign manufacturer has
agreed to supply a 1.5 MW wind turbine to the MWRA. There was also
another foreign manufacturer that had been identified by the MWRA which
had a 1.5 MW wind turbine that could meet the technical specifications,
but that foreign manufacturer is now unwilling to provide single wind
turbine installations.
There are currently no local, State, Federal, or international
requirements regulating setback distances associated with potential
icing conditions while operating wind turbines. There have been
guidelines that have been suggested by various wind energy industry
groups, some of which the identified domestic manufacturer has adopted,
as well as model zoning ordinance/bylaws like the one that the
[[Page 8350]]
Commonwealth of Massachusetts introduced in 2009. The technical aspect
of detecting and controlling icing through instrumentation and
equipment also is evolving.
Based on information provided to the EPA, MWRA has taken all of the
necessary steps to obtain all necessary local, state, and federal
approvals to move forward with the proposed project. The project has
been reviewed by the following regulatory agencies: Federal Aviation
Administration (i.e. received a Determination of No Hazard to Air
Navigation); the Boston Conservation Commission (i.e. an Order of
Conditions); the Boston Redevelopment Authority; the Massachusetts
Department of Environmental Protection (i.e. Chapter 91 Waterways
License); Federal Communications Commission; and the Massachusetts
Historical Commission. The MWRA has also completed significant public
outreach to abutters (i.e. Boston Water and Sewer Commission, the
Massachusetts Bay Transportation Authority, and the U.S. Power
Generating Company), the Massachusetts Highway Department, local
associations (i.e. City of Boston's Office of Neighborhood Services
Department, the Charlestown Neighborhood Council (CNC), the CNC
Development Committee, and the Charlestown Waterfront Coalition), local
officials and Congressional staff.
Based on information provided by the MWRA, concerns associated with
potential ice throws from the wind turbine were not raised during the
permitting and public outreach process. It should be noted that there
are a number of existing wind turbine installations in Massachusetts
that do not conform to the site setback considerations used by the
domestic manufacturer. However, because the site setback and associated
safety considerations were the basis for the unavailability of the
domestic wind turbine, EPA must address these considerations in its
findings and determination on this waiver request.
A July 2008 University of Massachusetts (UMASS) Wind Energy Center
research paper (Wind Turbine Siting--An Assessment of Safety Risks in
Massachusetts and New England) suggests that the risks in these cases
are relatively low. The paper references a study which notes that there
have been no reported injuries from ice throws from wind turbines,
despite the installation of 6,000 MW of wind energy worldwide. The
UMASS study further suggests that while icing can be severe in New
England, the incidence of icing events is relatively small. Several
papers have noted that the odds of being struck by ice fragments from a
wind turbine are similar to those odds of being struck by lightning.
However, while these analyses place the low risks from ice damage
or injury in the perspective of the experience available, the
experience with these risks is largely anecdotal and has not been
systematically assessed in situations where precautionary setback
distances to heavily traveled public highways are not met. Several
reports recommend that if setback distances cannot be maintained,
alternative mitigation methods may be effective at limiting safety
risks. As noted above, the use of mitigation measures--which may
include monitoring the approach of conditions likely to lead to icing,
shutting down the turbine in the event of icing, careful restart
procedures, and a range of appropriate operational control strategies
and measures--is also considered appropriate under the domestic
manufacturer's internal siting considerations where setback distances
cannot be met. This approach is consistent with available guidelines
and model bylaws.
The MWRA, in discussions with the EPA Regional Office, has
indicated that it will implement a mitigation plan to minimize any
potential ice throws to ensure public safety. Commercial wind turbines
have been designed with vibration sensors to detect any imbalance which
might be caused by icing of the blades, resulting in an automatic
shutdown (or preventing start up) of the turbine when this imbalance is
detected. In situations where conditions indicate a risk of icing of
wind turbine components, mitigation measures can be taken automatically
or manually. The foreign manufacturer supplying the wind turbine to the
MWRA has indicated that the turbine comes equipped with vibration
sensors to shut down when ice build up is detected. The contractor who
will install the wind turbine has indicated that the control system can
be programmed to allow for manual start up as well, which will allow an
operator to visually inspect the turbine to confirm that there is no
ice remaining before the turbine is re-started. The MWRA will implement
manual wind turbine operational control strategies during periods of
ice accretion which include, but are not limited to: Curtailment of
operation of the turbine, braking the blades in a ``Y'' to facilitate
ice shedding directly underneath the wind turbine, and yawing the
nacelle so that the blades are in the safest position for ice shedding.
It may also post warning signs alerting personnel of the potential risk
in the area. Access to the turbine area site will be restricted during
icing conditions, if necessary.
Based on the evaluation of all of the submitted documentation by
EPA's technical review team, MWRA's statement that no U.S. manufacturer
will provide a 1.5 MW wind turbine generator that meets project
specifications is supported by the available evidence. In addition, the
evaluation of the supporting documentation indicates that at least one
foreign manufacturer, Sinovel, will provide its wind turbine at the
proposed site. Accordingly, EPA finds that the Sinovel wind turbine is
available on terms that address the basis of the unavailability of the
domestic-made wind turbine if the MWRA's mitigation plan as stated
above is implemented. EPA further finds that the MWRA's acceptance and
use of this waiver represents a commitment by the MWRA to implement the
mitigation plan, and that such continuing implementation will
constitute the MWRA's basis for compliance with the requirements of
ARRA Sec. 1605 with respect to this wind turbine.
The purpose of the ARRA is to stimulate economic recovery by
funding current infrastructure construction, not to delay projects that
are ``shovel ready'' by requiring potential SRF eligible recipients,
such as the MWRA, to find alternative project sites when appropriate
and more timely and feasible measures are available consistent with
project design standards and specifications. The imposition of ARRA Buy
American requirements in this case would result in unreasonable delay
and potentially the cancellation of this project as sited. The delay or
cancellation of this construction would directly conflict with a
fundamental economic purpose of ARRA, which is to create or retain
jobs.
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' '' (``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.'' The same Memorandum defines
``satisfactory quality'' as ``the quality of steel, iron or
manufactured good specified in the project plans and designs.''
The Municipal Assistance Unit (CMU) has reviewed this waiver
request and has determined that the supporting
[[Page 8351]]
documentation provided by the MWRA establishes both a proper basis to
specify a particular manufactured good, and that no domestic
manufacturer is currently available or willing to supply that
particular manufactured good which meets project specifications. The
information provided is sufficient to meet the following criteria
listed under Section 1605(b) of the ARRA and in the April 28, 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 March 31, 2009 Delegation of Authority Memorandum provided
Regional Administrators with the temporary authority to issue
exceptions to Section 1605 of the ARRA within the geographic boundaries
of their respective regions and with respect to requests by individual
grant recipients.
Having established a proper basis to specify the particular good
required for this project, that the MWRA has agreed to implement a
mitigation plan to minimize the likelihood of any potential ice throws
to ensure public safety, and that this manufactured good was not
available from a producer in the United States, the MWRA is hereby
granted a waiver from the Buy American requirements of Section 1605(a)
of Public Law 111-5. This waiver permits use of ARRA funds for the
purchase of a foreign manufactured wind turbine documented in MWRA's
waiver request submittal dated November 19, 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: February 11, 2010.
Ira Leighton,
Acting Regional Administrator, EPA Region 1--New England.
[FR Doc. 2010-3703 Filed 2-23-10; 8:45 am]
BILLING CODE 6560-50-P
