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 Palmer (the City) Alaska, 66760-66761 [2010-27429]

Agencies

• ENVIRONMENTAL PROTECTION AGENCY

[Federal Register Volume 75, Number 209 (Friday, October 29, 2010)]
[Notices]
[Pages 66760-66761]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-27429]


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ENVIRONMENTAL PROTECTION AGENCY

[FRL-9218-3]


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 Palmer (the City) Alaska

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice.

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SUMMARY: The Regional Administrator of EPA Region 10 is hereby granting 
a 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 four rotary screw air compressors to provide 
aeration for the wastewater treatment facility's biological treatment 
lagoons. 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. These 
rotary compressors, which are supplied by Atlas Copco, are manufactured 
in England and Belgium, and meet the City's performance specifications 
and requirements. 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. 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 rotary screw air compressors for Palmer's activated 
wastewater treatment project that may otherwise be prohibited under 
Section 1605(a) of the ARRA.

DATES: Effective Date: October 20, 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 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 four Atlas Copco rotary screw air 
compressors manufactured outside of the U.S. The compressors will be 
incorporated as part of a wastewater treatment system upgrade project 
that includes lagoon insulation covers and a high-efficiency aeration 
system, which will reduce energy consumption by more than 40 percent. 
The City received $2,500,000 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 rotary screw 
compressors to meet the project specifications and performance 
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 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) 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.
    EPA has determined that the City's waiver request can be processed 
as timely even though the request was made after the construction 
contract was signed. Consistent with the direction of the OMB guidance 
at 2 CFR 176.120, EPA has evaluated the City's request to determine if 
the request constitutes a late request. EPA will generally regard 
waiver requests with respect to components that were specified in the 
bid solicitation or in a general/primary construction contract as 
``late'' if submitted after the contract date. However, in this case 
EPA has determined that the City's request, though submitted after the 
contract date, may be processed as if it were timely. EPA has 
determined that the City needed to complete installation of insulated 
lagoon covers and complete testing to verify that the aeration system 
assumptions would be accurate. This data was necessary to justify the 
blower modifications that give rise to the need for the air compressors 
that are subject to this waiver. The applicant could not reasonably 
foresee they would need to request a waiver for a foreign made product 
before the data sampling was completed, which occurred after the 
contract was signed. EPA is authorized under 2 CFR 176.120 to process a 
waiver request as if it were timely if the need for the waiver was not 
reasonably foreseeable. Accordingly, EPA has evaluated the request as a 
timely request.
    These manufactured goods will provide aeration for the City's 
treatment process. The City selected the specified rotary screw 
compressor technology because of: (1) Well documented energy-efficiency 
in wastewater operations; (2) necessary efficiency for energy modeling 
and to meet Green Project Reserve requirements; (3) oil free operation 
characteristics to reduce risk of pollutant discharges into a fish-
bearing stream; (4) reduced life cycle cost of operation and 
maintenance; (5) small footprint required by project space constraints, 
and; (6) low noise emission characteristics. Additionally, in the bid 
specifications for the rotary screw blowers, the City identified 
performance testing criteria to evaluate power consumption of the 
aeration system's components, including the main drive motor, Variable 
Speed Drives (VSD), filters, etc. The specifications also required the

[[Page 66761]]

performance test to be witnessed by the senior wastewater treatment 
plant operator and an independent engineer.
    Between February and July of 2010, the City's engineering 
consultant conducted an extensive investigation into all possible 
sources for American made rotary screw compressors. Based on the 
investigation, several companies were found to manufacture these 
machines, but only one, Universal Blower Pac (UBP), claimed to be able 
to meet the required performance specifications. EPA's national 
contractor prepared a technical assessment report dated August 26, 
2010, based on the submitted waiver request. The report indicated that 
UBP confirmed the EE-Pac compressor could comply with performance 
specification requirements, and the EPA contractor concluded that no 
other U.S. manufacturers produced rotary screw blowers that would meet 
the project specifications. Over the course of several months, the City 
and engineering consultant attempted to gather energy performance and 
independent engineering testing results from UBP to validate UBP's 
claim that the EE-Pac compressor would meet the project specifications. 
Responses from UBP have not included the required information to 
consider system energy loss and independent engineering testing as 
identified in the performance specifications. Therefore, UBP's claim to 
produce an acceptable compressor does not meet the project 
specifications. Thus, the City has demonstrated due diligence in their 
efforts and were ultimately unable to identify an available domestic 
product of satisfactory quality.
    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 the City and EPA's national 
contractor, 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 rotary screw 
air compressors, in order to meet the City's design specifications and 
performance requirements. 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 and use of four 
rotary screw air compressors manufactured by Atlas Copco 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: October 20, 2010.
Michelle L. Pirzadeh,
Acting Regional Administrator, EPA, Region 10.
[FR Doc. 2010-27429 Filed 10-28-10; 8:45 am]
BILLING CODE 6560-50-P