2010-33111. Notice of a Regional Project Waiver of Section 1605 (Buy American) of the American Recovery and Reinvestment Act of 2009 (ARRA) to the Town of Smyrna, DE

SUMMARY:

The EPA is hereby granting a 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] to the Town of Smyrna, DE (“Town”), for the purchase of GreensandPlus pressure filter media, manufactured in Brazil, for six pressure 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 eight different types of pressure filter media selecting GreensandPlus filter media. The ARRA funded project is for Well House upgrades that include filter media replacement, two filters in Well House #1, two filters in Well House #2 and two filters in Well House #3 in the Smyrna system. If an alternate domestic filter media were to be installed in the six pressure filters, the Town's system would experience increased backwash requirements, reduced capacity and would need modifications/replacement of underdrain and filter piping. Based upon information submitted by the Town and its consulting engineer, EPA has concluded that there are no filter media manufactured in the United States in sufficient and reasonable quantity and of a satisfactory quality to meet the technical specifications 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 EPA Region III, Water Protection Division, Office of Infrastructure and Assistance.

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 for the proposed project being implemented by the Town of Smyrna.

DATES:

Effective Date: December 9, 2010.

FOR FURTHER INFORMATION CONTACT:

Robert Chominski, Deputy Associate Director, [phone], or David McAdams, Environmental Engineer, [phone], Office of Infrastructure & Assistance (OIA), Water Protection Division, U.S. EPA Region III, 1650 Arch Street, Philadelphia, PA 19103-2029.

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 Town of Smyrna, Delaware for the purchase of non-domestic GreensandPlus pressure filter media for six pressure filters. EPA has evaluated the Town's basis for procuring the GreensandPlus pressure filter media for these filters. Based upon information submitted by the Town and its consulting engineer, EPA has concluded that there are no filter media manufactured in the United States in sufficient and reasonable quantity and of a satisfactory quality to meet the technical specifications 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.

EPA has determined that Town's waiver request may be treated 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 Town'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 Town's request may be treated as timely because the need for a waiver was not foreseeable at the time the contract was signed. The project was bid and the general contractor submitted documentation that Greensand filter media utilized in preparing their bid met the ARRA Buy American provisions. The need for a waiver was not determined until after the contract was signed, when the contractor was informed by the manufacturer of Greensand that they were no longer making this product and recommended the GreensandPlus pressure filter media as an alternative product. They then were notified that the GreensandPlus pressure filter media was made in Brazil. Accordingly, EPA will evaluate the request as a timely request.

The Town is requesting a waiver of the Buy American provision for the GreensandPlus filter media for six pressure filters. The Town has three well houses that each contains two pressure filters for their water treatment system. The project involves the replacement of standard manganese greensand in three well houses. The Town provided supporting documentation that the manufacturer, Inversand Company (Inversand), has temporarily shut down production of manganese greensand. Inversand advised its customers to instead use its GreensandPlus filter media, which is manufactured in Brazil, as an alternative product. The Town has stated that GreensandPlus filter media is compatible with existing treatment facilities, and the use of GreensandPlus filter media is expected to reduce overall operational costs. Detailed evaluation of all of the submitted documentation by EPA Region III, Office of Infrastructure and Assistance, and EPA's national contractor indicates that the Town did not know that the GreensandPlus filter media was made in Brazil until after the project was awarded. In addition, submitted documentation showed that the Town would require replacement/modification of the existing underdrain and associated filter piping if any of the other filter media were used in the project. Due to the existing backwash piping configuration, a lower backwash rate is needed which could be attained by the GreensandPlus filter media without replacement of the underdrain or piping. The GreensandPlus filter media will be capable of treating the raw water presently produced by the Town, removing iron and other impurities to comply with all State of Delaware Drinking Water Quality Regulations. Thus, the use of domestic filter media would require replacement of the underdrain and associated piping which would increase the cost of the project. In addition, the evaluation of the supporting documentation also demonstrated that the foreign filter media will be able to meet the proposed project design and specifications with no additional cost to the Town.

The Town has provided information to the EPA demonstrating that there are no filter media manufactured in the United States in sufficient and reasonable quantity and of a satisfactory quality to meet the required technical specifications. Eight domestic manufacturers of filter media were considered for this project but did not meet the specifications for the project.

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”, 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 Town has incorporated specific technical design requirements for installation of filter media at their three Well Houses.

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 utilities, such as the Town, to revise their standards and specifications, institute a new bidding process, 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 thus displace the “shovel ready” status for this project. To further delay construction is in direct conflict with a fundamental economic purpose of the ARRA, which is to create or retain jobs. The OIA has reviewed this waiver request and to the best of our knowledge at the time of review has determined that the supporting documentation provided by the Town is sufficient to meet the criteria listed under Section 1605(b) 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). 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 Town's technical specifications, 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 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 Town of Smyrna is hereby granted a waiver from the Buy American requirements of Section 1605(a) of Public Law 111-5 for the purchase of GreensandPlus filter media using ARRA funds as specified in the Town of Smyrna's request of October 1, 2010. 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: December 9, 2010.

W.C. Early,

Acting Regional Administrator, U.S. Environmental Protection Agency, Region III.