E9-27613. Notice of a Project Waiver of Section 1605 (Buy American Requirement) of the American Recovery and Reinvestment Act of 2009 (ARRA) to the Town of Greensboro, Maryland

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Notice.

SUMMARY:

The Acting Regional Administrator of EPA Region III 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] to the Town of Greensboro for the purchase of a moving bed biological reactor (Geo-Reactor®) containment drum, which is a major component of the Geo-Reactor® wastewater treatment process, for retrofit installation into an existing Rotating Biological Contactor (RBC) basin at its Wastewater Treatment Plant (WWTP). Greensboro indicates that the Geo-Reactor® treatment process is necessary to achieve the wastewater treatment levels required by the National Pollutant Discharge Elimination System (NPDES) permits issued for this WWTP. The Geo-Reactor® containment drum under consideration is manufactured by a company located in Canada and no United States manufacturer produces an alternative that meets Greensboro's justified technical specifications, including retrofit capacity. This is a project specific waiver and only applies to the use of the specified product for the ARRA funded project being proposed. Any other ARRA project that may wish to use the same product must apply for a separate waiver based on the specific project circumstances. The Acting 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. Greensboro has provided sufficient documentation to support its request.

The Assistant Administrator of the EPA's 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 Geo-Reactor® containment drum for the proposed replacement and retrofit project being implemented by Greensboro.

DATES:

Effective Date: November 5, 2009

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), EPA hereby provides notice that it is granting a project waiver of the requirements of Section 1605(b)(2) of Public Law 111-5, Buy American requirements to the Town of Greensboro for the acquisition of a Geo-Reactor® containment drum manufactured by Jebco Industries, located in Canada, for Parkson Corporation. Greensboro has been unable to find an American made moving bed biological reactor manufacturer to meet its specific wastewater 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 are produced in the United States unless a waiver is provided to the recipient by EPA. A waiver may be provided 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.

Greensboro's waiver request is to allow the purchase of a Geo-Reactor® containment drum for use in improvements to its existing WWTP. This project will upgrade its existing WWTP by replacing an existing RBC treatment unit with a new Geo-Reactor® treatment unit. The containment drum is an integral component of the Geo-Reactor® treatment process because it holds the plastic media which supports the attached biological biomass. The plastic media consists of irregular shaped pieces which are designed to maximize the surface area and prevent pieces from interlocking with each other. The plastic media will provide approximately 150,000 square feet of surface area for the attached biological biomass. The containment drum is specifically designed to fit within the existing RBC basin. The process utilizes the rotational design of the RBC process by having the containment drum rotate slowly. The plastic media pieces are raised out of the wastewater and tumble back as the drum reaches its apex. The movement aids the transfer of oxygen to the biomass and the sloughing off of excess biomass from the media. The Geo-Reactor® treatment process combines the requisite biological media surface area within the confines of the existing RBC basin.

After an engineering analysis of alternate treatment processes, Greensboro determined the Geo-Reactor® treatment process to be the most environmentally sound and cost effective solution, and in January 2008 completed the installation of a Geo-Reactor® treatment unit in one of Greensboro's two RBC basins. This proposal to procure and retrofit a second such Geo-Reactor® treatment unit would also enable Greensboro to provide necessary treatment redundancy and standardize its operation, maintenance, and spare parts functions for this equipment. The Geo-Reactor® is a waste water treatment process which is designed to meet the effluent requirements of the waste load allocation under the NPDES permit. In addition, in anticipation of procuring the Geo-Reactor® treatment process, Greensboro has already incorporated specific technical design requirements for installation of the Geo-Reactor® containment drum within the existing RBC basin at their WWTP, including specific geometry and configuration. To require Greensboro to redesign its project would cause an unacceptable delay to the initiation of construction.

Greensboro has provided information to the EPA demonstrating that there are no moving bed biological reactors manufactured in the United States in sufficient and reasonable quantity and of a satisfactory quality to meet the required technical specification. Greensboro surveyed ten moving bed biological reactors manufacturers as part of its market research to locate domestic manufacturers of moving bed biological reactors for WWTPs. It was unable to locate any acceptable domestic manufacturers because those U.S.-based manufacturers with biological treatment technologies similar to the Geo-Reactor® system were not capable of providing the required 150,000 square feet of biological media surface area as a retrofit within the confines of the existing RBC basin.

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” (“EPA 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.” Greensboro has incorporated specific technical design requirements which are justified by legitimate, performance and regulatory compliance objectives, as well as the applicant's prior experience with and investment in this technology, for the retrofit installation of a Geo-Reactor® treatment process, which includes the containment drum, at its WWTP.

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 communities, such as Greensboro, 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.

Based on additional research conducted by EPA's Office of Infrastructure and Assistance (OIA) in Region III, there does not appear to be another moving bed biological reactor manufactured domestically that would meet Greensboro's technical specification. EPA's national contractor prepared a technical assessment report dated October 8, 2009 based on the waiver request submitted. 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 American-made moving bed biological reactors that met the media surface area requirement within the confines of an existing RBC basin.

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 Greensboro is sufficient to meet the criteria listed under Section 1605(b), OMB's regulations at 2 CFR 176.60-176.170, and in the April 28, 2009 EPA 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 Greensboro's justified 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 Greensboro is hereby granted a waiver from the Buy American requirements of Section 1605(a) of Public Law 111-5 for the purchase of a Geo-Reactor® containment drum using ARRA funds as specified in Greensboro's request of July 28, 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: November 5, 2009.

William C. Early,

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