2010-27807. 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 Windsor, CA; Project# 4910017-033 Funded by the California DWSRF ARRA Loan# AR09FP45

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Notice.

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) to the Town of Windsor, a California Drinking Water State Revolving Fund (DWSRF)/ARRA loan recipient, for the purchase of a 20-inch diameter mild steel well casing (API standard 5L or ASTM standard A53 schedule 30b or better). 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 project-specific circumstances. The Assistant Administrator of the Office of Administration and Resources Management has concurred on this decision to make an exception under section 1605(b)(2) of ARRA.

DATES:

Effective Date: August 13, 2010.

FOR FURTHER INFORMATION CONTACT:

Abimbola Odusoga, Environmental Engineer, Water Division, Infrastructure Office (WTR-4), [phone], U.S. EPA Region 9, 75 Hawthorne, San Francisco, CA, 94105.

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 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 20-inch diameter mild steel well casing manufactured abroad. The head of each Federal agency is authorized to issue project waivers pursuant to Section 1605(c) of ARRA. A delegation of authority memorandum was issued by the EPA Administrator on March 31, 2009 which provided EPA Regional Administrators with the authority to issue waivers to Section 1605(a) of ARRA within the geographic boundaries of their respective regions and with respect to requests by individual recipients of ARRA financial assistance.

This waiver request came after the goods had been used in the project. Under 2 CFR 176.130(c)(1), the applicable noncompliance 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.” 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). EPA has determined under these circumstances that the need for such a waiver was not reasonably foreseeable. Therefore, under the authority of 2 CFR 176.120 and 176.130(c)(1), and as explained in the April 28 memorandum, EPA will process the waiver request as if it was requested in a timely manner. EPA has determined that it would have evaluated a waiver request had the recipient applied for a waiver prior to using the foreign casing in the ARRA project. EPA has determined that granting this waiver is appropriate because it avoids penalizing the City for the use of a non-U.S.-made good for which the City has sufficiently established that there were no U.S.-made alternatives. And, this determination takes into account the City's due diligence and good faith effort to implement the requirements of section 1605.

Section 1605(a) of the ARRA requires that none of the funds appropriated or otherwise made available by the ARRA 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. Pursuant to Section 1605(b) and (c), a waiver may be provided if EPA determines: (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.

The purpose of this project in Windsor is to replace the existing Bluebird and Esposti Park wells that were shut down due to arsenic contamination and build-up of sediment on the casings. To solve this problem, Windsor is installing two new wells designed to provide adequate storage for times of drought or emergency. The current system draws water from the Russian River, but the Sonoma County Water Agency (SCWA) issued an order to reduce the in-stream flow requirements for the Russian River. This reduction of in-stream flow requirements will deplete the water production of the off-river wells during the peak summer demand. The new well system will help maximize water storage to meet demand during peak seasons.

Per the specifications, the wells conductor casing and upper stem will be constructed of mild steel, while the well screening and lower stem will be constructed of stainless steel. For the two wells planned, 110 feet of 20-inch mild steel casing would be required. Analysis by EPA's national contractor indicated that American-made 20-inch diameter mild steel casing was not available for the conductor casing (as previously anticipated). The only casings to meet the town's dimensions and specifications are foreign made.

The April 28, 2009 EPA memorandum for implementation of the ARRA Buy American provisions of Public Law 111-5, states the quantity of iron, steel, or relevant manufactured good is “reasonably available” if it is available at the time and place needed, and in the proper form or specification as specified in the project plans and design. The same Memorandum defines “satisfactory quality” as “the quality of steel, iron or manufactured good specified in the project plans and designs.”

Windsor's submittal articulates a reasonable and appropriate basis for the type of technology it chose for this project in environmental objectives and performance specifications. Further, it provides sufficient documentation that the relevant manufactured goods are not produced in the United States in sufficient and reasonably available quantities and of a satisfactory quality to meet its technical specifications. Windsor has incorporated specific technical design specifications for the proposed project based on their needs and provided information to the EPA justifying the need for a 20-inch diameter mild steel casing. Windsor has also provided certification from its supplier indicating there are no products of comparable quality available from a domestic manufacturer to meet its specifications and satisfy project restrictions. Based on additional research conducted by the EPA's Buy American consultant, there did not appear to be other domestically manufactured products available to meet Windsor's specifications at the necessary delivery time. When the project was originally bid, the contractor was assured by pipe suppliers that domestically manufactured well casing material would be available for the project. However, as work progressed on the construction of the well, the applicant was informed by the contractor's material supplier that domestically made well casing pipe would not be available from any domestic mills in time to deliver to the West Coast for installation. The only available material would be supplied from Korean manufacturers.

EPA Region 9, EPA's Buy American consultant, and EPA's Office of Administration and Resource Management have reviewed this waiver request and have determined the supporting documentation provided by Windsor is sufficient to meet the criteria listed under ARRA Section 1605(b)(2) and the EPA April 28, 2009, memorandum for implementation of ARRA Buy American provisions of Public Law 111-5. 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, Windsor is hereby granted a waiver from the Buy American requirements of Sections 1605(a) of Public Law 111-5, for the purchase of the 20-inch mild steel casing, specified in Windsor's request of March 31, 2010. This supplementary information constitutes the detailed written justification required by Section 1605(c) for waivers based on a finding under Section 1605(b)(2).

Authority: Public Law 111-5, Section 1605.

Dated: August 13, 2010.

Jared Blumenfeld,

Regional Administrator, EPA Pacific Southwest Region.