Notice of a Regional Waiver of Section 1605 (Buy American Requirement) of the American Recovery and Reinvestment Act of 2009 (ARRA) to the City of Richland (the City) Washington, 32467-32468 [2010-13619]

Agencies

• ENVIRONMENTAL PROTECTION AGENCY

[Federal Register Volume 75, Number 109 (Tuesday, June 8, 2010)]
[Notices]
[Pages 32467-32468]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-13619]





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ENVIRONMENTAL PROTECTION AGENCY



[FRL-9159-7]




Notice of a Regional Waiver of Section 1605 (Buy American 

Requirement) of the American Recovery and Reinvestment Act of 2009 

(ARRA) to the City of Richland (the City) Washington



AGENCY: Environmental Protection Agency (EPA).



ACTION: Notice.



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SUMMARY: The Regional Administrator of EPA Region 10 is hereby granting 

a late waiver request from the Buy American requirements of ARRA 

Section 1605(a) 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 

City for the purchase and use of a 42-inch by 24-inch AWWA C153 cement 

lined mechanical joint reducer tee fitting, manufactured outside of the 

U.S. This is a project specific waiver and only applies to the use of 

the specified product for the ARRA project discussed in this notice. 

Any other ARRA recipient that wishes to use the same product must apply 

for a separate waiver based on project specific circumstances. The 

City's waiver request included the project schedule and purchasing 

efforts attempting to meet Buy American compliance by the applicant, 

contractor and pipeline materials supplier. The domestic manufacturer 

notified the piping supplier that the shipment of the product would be 

delayed and it appears that the supplier on behalf of the City, the 

ARRA recipient, did an extensive, seemingly comprehensive, and 

ultimately unsuccessful search for a U.S. manufacturer who could meet 

the project specifications in accordance with the construction 

schedule.

    The Regional Administrator is making this determination based on 

the review and recommendations of the Grants & Strategic Planning Unit. 

The City has provided sufficient documentation to support their 

request.



DATES: Effective Date: May 21, 2010.



FOR FURTHER INFORMATION CONTACT: Bryan Fiedorczyk, CWSRF ARRA Program 

Management Analyst, Grants and Strategic Planning Unit, Office of Water 

& Watersheds (OWW), (206) 553-0506, U.S. EPA Region 10 (OWW-137), 1200 

Sixth Avenue, Suite 900, Seattle, WA 98101.



SUPPLEMENTARY INFORMATION:

    In accordance with ARRA Section 1605(c) and OMB regulations at 2 

CFR Part 176, Subpart B, the EPA hereby provides notice that it is 

granting a late project waiver request of the requirements of Section 

1605(a) of Public Law 111-5, Buy American requirements, to the City for 

the purchase and use of a 42-inch by 24-inch AWWA C153 cement lined 

mechanical joint reducer tee fitting, manufactured outside of the U.S. 

The AWWA C153 reducer fittings will be incorporated as part of a 

wastewater treatment system upgrade project that will replace an energy 

intensive inefficient aeration treatment process with a plug flow fine 

bubble aeration system. The improvements will reduce energy consumption 

by more than 70% and reduce the discharge of suspended solids, 

biochemical oxygen demand and nitrogen into the Columbia River. The 

City received $3,049,304 of ARRA funding through the Clean Water State 

Revolving Fund to complete this project. The City was unable to find a 

supplier that could provide American manufactured reducer fittings to 

meet the project specific requirements and the construction schedule 

agreed upon for the project.

    There are several noteworthy factors that impact this waiver 

analysis: (a) It is a late request because the waiver request came 

after the construction contract was signed; (b) under 2 CFR 

176.130(c)(1) the applicable non-compliance provision regarding 

unauthorized use of foreign manufactured goods, EPA is authorized to 

process a waiver under 2 CFR 176.120(a) if ``the need for such 

determination otherwise was not reasonably foreseeable,'' and EPA has 

further outlined this process in its April 28, 2009 memorandum: 

Implementation of Buy American provisions of Public Law 111-5, the 

``American Recovery and Reinvestment Act of 2009'' (the April 28 

memorandum); (c) EPA has determined that the applicant ordered 

domestically manufactured AWWA C153 reducer fittings, and due to the 

supplier's inability to deliver one of the fittings on schedule, the 

applicant could not reasonably foresee they would need to request a 

waiver for a foreign made product.

    The project contractor's piping supplier (H.D. Fowler) issued a 

purchase order to the manufacturer (Star Pipe Products) for the AWWA 

C153 reducer fittings (2 each) on February 23, 2010. One fitting is 

associated with the modification to the WWTF Aeration Basin 2 and the 

second fitting is associated with the modification to the WWTF Aeration 

Basin 1. The contract schedule requires that the subject product for 

Basin 2 be delivered to the project site by June 2, 2010, which will 

ensure the startup of Basin 2 by August 5, 2010 and the commissioning 

of Basin 2 by September 15, 2010. Work on the modification to Basin 1 

is scheduled to commence immediately following the commissioning of 

Basin 2. The piping supplier placed the order with the manufacturer on 

the basis of an agreed ship date of May 24, 2010 [90 days from receipt 

of purchase order] for one of the two products and an agreed ship date 

of June 23, 2010 [120 days from receipt of purchase order] for the 

second of the two products. On March 30, 2010, the manufacturer 

notified the piping supplier that the shipment of the product would be 

delayed. The estimated time of arrival at the site would be June 26, 

2010. The delay in shipment poses a negative impact to project 

construction costs, schedule, and employment. Late delivery would push 

the site piping installation into the same time frame as the diffuser 

installation in order to meet the project's contractual completion 

schedule. Since the reducer fitting is a central part of the piping 

scheme, most pipe cannot be installed prior to this central node being 

completed. Delay of the piping installation would impose extra costs of 

installation equipment (excavator, dump truck, and loader) that would 

need to remain on site for an additional month. Additionally, the 

contractor would need to lay off two full-time equivalent (FTE) 

employees (of the three FTE positions assigned to the project) for 

approximately 18 work days (between June 2nd and June 26th, 2010). 

Based on the technical evaluation conducted by EPA's consulting 

contractor (Cadmus), the available evidence supports the applicant's 

claim that the AWWA C153 reducer fitting for Basin 2 is not available 

from a domestic manufacturer within a timeframe that meets the 

project's schedule (i.e., delivery to the project site by June 2, 

2010). Further, the domestic manufacturer has advised the Grants and 

Strategic Planning Unit that it has a substantial back log of orders 

and will not be adversely affected if the City cancels the purchase 

order.

    Section 1605 of the ARRA requires that none of the appropriated 

funds may be used for the construction, alteration, maintenance, or 

repair of a public building or public work unless all of the iron, 

steel, and manufactured goods used in the project is produced in the 

United States unless a waiver is provided to the recipient by EPA. A 

waiver may be provided under Section 1605(b) if EPA determines that, 

(1)



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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 April 28 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. Based on additional research by EPA's consulting contractor 

(Cadmus), and to the best of the Region's knowledge at this time, the 

City attempted without success, to meet the Buy American requirements. 

Furthermore, the purpose of the ARRA provisions was to stimulate 

economic recovery by funding current infrastructure construction, not 

to delay projects that are already shovel ready by requiring entities, 

like the City, to halt construction pending manufacture of domestically 

produced goods. To further delay construction is in direct conflict 

with the most fundamental economic purposes of ARRA; to create or 

retain jobs.

    The Grants and Strategic Planning Unit has reviewed this waiver 

request and has determined that the supporting documentation provided 

by the City is sufficient to meet the following criteria listed under 

Section 1605(b) and in the April 28 memorandum: Iron, Steel, and 

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 U.S. production of a 42-inch by 

24-inch AWWA C153 cement lined mechanical joint reducer tee fitting, in 

order to meet the City's design schedule and specifications. The March 

31, 2009, Delegation of Authority Memorandum provided Regional 

Administrators with the authority to issue exceptions to Section 1605 

of ARRA within the geographic boundaries of their respective regions 

and with respect to requests by individual grant recipients. Having 

established both a proper basis to specify the particular good required 

for this project, and that this manufactured good was not available 

from a producer in the United States, the City is hereby granted a 

waiver from the Buy American requirements of Section 1605(a) of Public 

Law 111-5 for the purchase of a 42-inch by 24-inch AWWA C153 cement 

lined mechanical joint reducer tee fitting from a manufacturer outside 

of the U.S. 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: May 21, 2010.

Dennis J. McLerran,

Regional Administrator EPA, Region 10.

[FR Doc. 2010-13619 Filed 6-7-10; 8:45 am]

BILLING CODE 6560-50-P