E9-31045. Notice of a Regional Project Waiver of Section 1605 (Buy American) of the American Recovery and Reinvestment Act of 2009 (ARRA) to the North Conway, NH Water Precinct

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Notice.

SUMMARY:

The EPA is hereby granting a waiver of the Buy America 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 North Conway, New Hampshire Water Precinct (NCWP) for the purchase of two SB615 Series Boilers manufactured by Bosch Thermotechnology of Germany. 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. Based upon information submitted by the NCWP and its consulting engineer, it has been determined that there are currently no domestic manufacturers available to meet its proposed project design and performance specifications. The Regional Administrator is making this determination based on the review and recommendations of the Municipal Assistance Unit. 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 two foreign manufactured high efficiency boilers by the NCWP, as documented in its November 4, 2009 request.

DATES:

Effective Date: December 16, 2009.

FOR FURTHER INFORMATION CONTACT:

David Chin, Environmental Engineer, [phone], or Katie Connors, Environmental Engineer, [phone], Municipal Assistance Unit (CMU), Office of Ecosystem Protection (OEP), U.S. EPA, 5 Post Office Square, Suite 100, Boston, MA 02109-3912.

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(b)(2) of Public Law 111-5, Buy American requirements, to the North Conway, NH Water Precinct (NCWP) for the purchase of two SB615 Series Boilers manufactured by Bosch Thermotechnology of Germany. The boiler is manufactured under the brand name of Buderus, whose headquarters in the United States is located in Londonderry, NH. By incorporating high efficiency boilers into the design of the facility's proposed alternative energy project, it is estimated that 2,750 gallons of oil will be saved per year to heat the various buildings at the wastewater treatment facility. The estimated cost for each boiler is $35,000.

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 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.

The NCWP is proposing a two phase Alternative Energy project. Phase I involves the installation of solar panels that will augment the power supplied to the wastewater treatment plant and decrease the draw on the electrical grid. Phase II is a $1M construction project that will include the installation of geothermal wells that will supply groundwater to the facility's HVAC system. The constant temperature water will reduce the energy needed to heat and cool the various buildings of the entire wastewater treatment facility. In order to maximize the energy conserving potential, the NCWP has determined that it will also install new high efficiency boilers as part of the Phase II project. The existing boilers at the wastewater treatment facility are 14 years old, one of which is cracked, and several boiler plate sections need to be replaced. These boilers have an estimated rated 84.8% combustion efficiency and 83.6% thermal efficiency. The NCWP is proposing to replace these existing boilers and achieve a minimum 5% increase in efficiency given that the technology currently exists to provide this energy savings.

The design specifications for the proposed project require the following: A condensing oil fired boiler; rated combustion and thermal efficiencies exceeding 90%; performance of the boiler certified by the Air Conditioning, Heating, and Refrigeration Institute; and capacity in the range of 1.6 to 2.0 million BTU/hour.

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’ ” (“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.” The same Memorandum defines “satisfactory quality” as “the quality of steel, iron or manufactured good specified in the project plans and designs.”

Based on our review, it has been determined that the supporting documentation provided by the NCWP establishes both a proper basis to specify a particular manufactured good, and that no domestic manufactured good is currently available to meet the design and performance specifications for the proposed project. An evaluation of all of the submitted documentation by EPA's technical review team confirms the NCWP's claim that there are currently no domestic manufacturers of commercial grade condensing oil fired boilers with rated combustion and thermal efficiencies greater than 90%. The foreign manufactured boiler that has been identified has a rated combustion efficiency of 95.2% and a thermal efficiency of 92.6%. The information provided is sufficient to meet the criteria necessary for a waiver of the Buy American provision listed under Section 1605(b)(2) of the ARRA and in the “American Recovery and Reinvestment Act of 2009” April 28, 2009 Memorandum: Iron, Steel, and manufactured goods are not produced in the United States in sufficient and reasonably available quantities and of a satisfactory quality.

Furthermore, the purpose of the ARRA is to stimulate economic recovery by funding current infrastructure construction, not to delay projects that are “shovel ready” by requiring potential SRF eligible recipients, such as the NCWP, to revise their design standards and specifications. The imposition of ARRA Buy American requirements in this case would result in unreasonable delay for this project. To delay this construction would directly conflict with a fundamental economic purpose of ARRA, which is to create or retain jobs.

The March 31, 2009 Delegation of Authority Memorandum provided Regional Administrators with the temporary authority to issue exceptions to Section 1605 of the 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 NCWP is hereby granted a waiver from the Buy American requirements of Section 1605(a) of Public Law 111-5. This waiver permits use of ARRA funds for the purchase of two foreign manufactured high efficiency boilers as noted in the NCWP's waiver request submittal dated November 4, 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: December 16, 2009.

H. Curtis Spalding,

Regional Administrator, EPA Region 1—New England.