Notice of a Project Waiver of Section 1605 (Buy American Requirement) of the American Recovery and Reinvestment Act of 2009 (ARRA) to the Bayonne Municipal Utilities Authority, Bayonne, NJ, 18757-18759 [2011-8018]

Agencies

• ENVIRONMENTAL PROTECTION AGENCY

[Federal Register Volume 76, Number 65 (Tuesday, April 5, 2011)]
[Notices]
[Pages 18757-18759]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-8018]


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ENVIRONMENTAL PROTECTION AGENCY

[FRL-9289-9]


Notice of a Project Waiver of Section 1605 (Buy American 
Requirement) of the American Recovery and Reinvestment Act of 2009 
(ARRA) to the Bayonne Municipal Utilities Authority, Bayonne, NJ

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 in sufficient and reasonably available quantities and of a 
satisfactory quality]

[[Page 18758]]

to the Bayonne Municipal Utilities Authority, New Jersey (Authority), 
for the purchase of a foreign manufactured wind turbine generator that 
meets the Authority's design and performance specifications, which is 
to be installed at its existing Oak Street Pumping Station site. 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 
project that may wish to use the same product must apply for a separate 
waiver based on project specific circumstances. Based upon information 
submitted by the Authority and its consulting engineer, EPA has 
concluded that there are currently no domestic manufactured wind 
turbines available in sufficient and reasonable quantity and of a 
satisfactory quality to meet the Authority's project design and 
performance specifications, and that a waiver is justified. The 
Regional Administrator is making this determination based on the review 
and recommendations of the State Revolving Fund Program Team. The 
Assistant Administrator of the Office of Administration and Resources 
Management has concurred on this decision to make an exception to 
Section 1605(a) of ARRA. This action permits the purchase of foreign 
manufactured wind turbine generator by the Authority, as specified in 
its December 15, 2010 waiver request.

DATES: Effective Date: April 5, 2011.

FOR FURTHER INFORMATION CONTACT: Alicia Reinmund-Mart[iacute]nez, 
Environmental Engineer, (212) 637-3827, 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 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 Authority for the purchase of a Leitwind LTW 77 
wind turbine generator, manufactured by Leitner-Poma, that meets the 
Authority's design and performance specifications to be installed at 
its existing Oak Street Pumping Station site. EPA has evaluated the 
Authority's basis for the procurement of a foreign made wind turbine 
generator. Based upon information submitted by the Authority and its 
consulting engineer, EPA has concluded that there are currently no 
domestic manufactured wind turbines available in sufficient and 
reasonable quantity and of a satisfactory quality to meet the 
Authority's project design and performance specifications.
    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 are 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) of ARRA 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 Authority's waiver request is timely 
even though the request was made after the construction contract was 
signed. Consistent with the direction of the Office of Management and 
Budget (OMB) regulations at 2 CFR 176.120, EPA has evaluated the 
Authority's request to determine if the request, though made after the 
contract date, can be treated as if it were timely made. 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 Authority's request may be 
treated as timely because the need for a waiver was not foreseeable at 
the time the contract was signed. The Authority submitted this waiver 
request after the contract date because the domestic manufacturer of a 
1.5 megawatt (MW) wind turbine generator that met project 
specifications ultimately withdrew from the project. The need for a 
waiver was not determined until on or about November 6, 2010, when the 
domestic manufacturer notified the Authority that it was unwilling to 
provide a 1.5 MW wind turbine generator on the basis that the project 
site did not meet the manufacturer's property setback requirements as 
well as other siting requirements. The Authority's subsequent research 
indicated that no other domestic manufactured 1.5 MW wind turbine 
generators met project specifications. Accordingly, EPA will evaluate 
the request as a timely request.
    The Authority's wind power project includes the installation of a 
1.5 MW wind turbine generator at its existing Oak Street Pumping 
Station, which is the main combined and sanitary pumping station 
serving all of the City of Bayonne's (City) approximate 62,000 
residents. The wind turbine generated electricity will drive the Oak 
Street Pumping Station, which is operational 24 hours per day and has 
an average daily dry weather flow of 8 million gallons per day (MGD), 
and a total capacity of 18 MGD. The wind turbine generator will also be 
interconnected with the nearby East 5th Street storm water relief 
pumping station, which has four 150 horsepower (HP) lift pumps and one 
60 HP lift pump that help prevent localized flooding in a residential 
area of the City. The project was designed for a 1.5 MW domestic 
manufactured wind turbine generator and will be located on a 22.95 acre 
property owned by the Authority that is situated in a predominantly 
industrial area.
    The Authority is requesting a waiver for the purchase of a Leitwind 
LTW77 wind turbine, manufactured by Leitner-Poma, because according to 
the Authority, there is only one domestic manufacturer that produces a 
wind turbine generator that meets the project design and performance 
specifications. However, that domestic manufacturer withdrew from the 
project on November 6, 2010, on the basis of its own internal siting 
and setback recommendations that could not be met at the project site. 
Although the site did not meet the domestic manufacturer's setback 
requirements, the Authority had worked with the domestic manufacturer's 
engineers to develop other mitigation measures to prevent damage or 
injury from shedding ice. These measures include, but are not limited 
to, sensors to detect ice buildup and stop the wind turbine generator 
when ice is detected with manual restart and the repositioning of the 
turbine blades to minimize ice shedding issues. Despite the Authority's 
efforts, the domestic manufacturer was not willing to supply their 
product and ultimately withdrew from the project.
    The Authority examined twenty other available domestic and foreign 
wind turbine generators and only the Leitwind LTW 77 model meets all 
project specifications. Of the other five domestic manufacturers 
contacted, several produce wind turbine generators that are larger than 
the 1.5 MW allowed by the project specifications. In addition, many of 
the domestic

[[Page 18759]]

machines were much heavier than the wind turbine generator produced by 
the domestic manufacturer that withdrew from the project. The use of a 
heavier machine would add significantly to project expenses and delay 
the project schedule because a foundation redesign would be required 
and the foundation for this project is already under construction. 
Lastly, the Authority concluded that none of the domestic manufacturers 
contacted could meet the City's zoning law requirement that the wind 
turbine generator emit less than 104 decibels of noise.
    The Authority states that only the Leitwind LTW 77 foreign 
manufactured model meets the size and noise requirements for this 
project. Although the Leitwind LTW 77 does not use the same site 
consideration limitations that are used by the domestic manufacturer 
that withdrew from the project and notwithstanding that there are 
currently no local, State, or Federal requirements regulating the 
setback distances associated with the operation of wind turbines, the 
Authority has indicated that it has taken all necessary precautions to 
eliminate ice shedding. Such mitigation measures include, but are not 
limited to, the incorporation of controls with three levels of 
redundancy to shut down the turbine during potential glaze icing events 
and the restarting of the turbine only after a detailed visual 
inspection is completed, vibration sensors on the blades that recognize 
if the blades are out of balance due to ice formation, and the 
positioning of the shut down turbine to facilitate ice shedding 
directly into a fenced enclosure with posted warning signs directly 
below the turbine.
    Also, the Federal Aviation Administration (FAA) notified the 
Authority that its study revealed that a wind turbine generator on the 
site would not be a hazard to air navigation, provided that the turbine 
structure is marked and/or lighted, in accordance with FAA Advisory 
Circular 70/7640-1 K Change 2. The Authority confirmed that the LTW 77 
specifications fall within the scope of the FAA's determination and 
that the Authority will mark and/or light the turbine in accordance 
with FAA requirements.
    Based on the technical evaluation of the Authority's waiver request 
and supporting documentation conducted by EPA's national contractor, 
the Authority's claim that no domestic manufacturer can produce and 
site a 1.5 MW wind turbine generator that meets the project 
specifications is supported by the available evidence. In addition, the 
evaluation of the supporting documentation indicates that at least one 
foreign manufacturer, Leitner-Poma, will provide a 1.5 MW wind turbine 
generator at the site that can meet project design and performance 
specifications.
    The purpose of the ARRA is to stimulate economic recovery in part 
by funding current infrastructure construction, not to delay projects 
that are already ``shovel ready'' by requiring entities, such as the 
Authority, to revise their design standards and specifications and 
potentially choose a more costly, less efficient project. The 
imposition of ARRA Buy American requirements on such projects otherwise 
eligible for State Revolving Fund assistance 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 the fundamental economic purpose of ARRA, which is to 
create or retain jobs.
    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' '' (Memorandum), 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.''
    The Region 2 State Revolving Fund Program Team has reviewed this 
waiver request and has determined that the supporting documentation 
provided by the Authority establishes both a proper basis to specify 
the particular good required and that the manufactured good is 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) of ARRA, 
OMB regulations at 2 CFR 176.60-176.170, and in the EPA Headquarters 
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 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 Authority'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 
Authority is hereby granted a waiver from the Buy American requirements 
of Section 1605(a) of Public Law 111-5 for the purchase of a Leitner-
Poma Leitwind LTW 77 1.5 MW wind turbine generator, as specified in its 
December 15, 2010 waiver request. 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: March 10, 2011.
Judith A. Enck,
Regional Administrator, Environmental Protection Agency, Region 2.
[FR Doc. 2011-8018 Filed 4-4-11; 8:45 am]
BILLING CODE 6560-50-P