2011-2773. Notice of a Regional Project Waiver of Section 1605 (Buy American) of the American Recovery and Reinvestment Act of 2009 (ARRA) to Hernando County Utilities Department, (HCUD), Hernando County, FL

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 Hernando County Utilities Department, (HCUD), Hernando County, Florida for the purchase of four Chinese manufactured wafer swing check valves. The wafer swing check valves will be used for the filter feed pumps as part of the Glen Water Reclamation Facility Expansion. The pumps are low-head axial flow pumps which discharge into an open channel and require this specific wafer check valve which has a low head loss and does not require a full pipe downstream to operate properly. The valves are manufactured by 3D Valve, a Chinese company with a U.S. branch operated for sales and distribution only. The County stated that there are no apparent domestic manufactured wafer swing check valves with an outside lever and weight in the 12 inch and 16 inch sizes and design as required for this project. 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 on the review of the information provided, EPA has concluded that a waiver of the Buy American provisions is justified. The Regional Administrator is making this determination based on the review and recommendation of the EPA Region 4, Water Protection Division, Grants and Infrastructure Branch. 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 County to purchase wafer swing check valves manufactured by 3D Valve, for the proposed project being implemented by Hernando County Florida.

DATES:

Effective Date: December 20, 2010.

FOR FURTHER INFORMATION CONTACT:

Cynthia Y. Edwards, Project Officer, Grants and SRF Section, Water Protection Division (WPD), [phone], USEPA Region 4, 61 Forsyth St., SW., Atlanta, GA 30303.

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 Sections 1605(a) of Public Law 111-5, Buy American requirements, to Hernando County Utilities Department, Hernando County, Florida, for the purchase of wafer swing check valves, manufactured by 3D Valve of China.

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, 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 County has requested a waiver from the Buy American Provision for the purchase of four wafer style swing check valves with outside lever and weight in the 12 inch and 16 inch sizes as part of the Glen Water Reclamation Facility Expansion project. The wafer swing check valves will prevent backflow into the filter feed pumps at the Glen Water Reclamation Facility in Florida. EPA has determined that the County'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 County's request to determine if the request constitutes a late request. 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 County's request, though made after the date that the contract was signed, can be evaluated as timely because the need for a waiver was not reasonably foreseeable.

The original project specifications incorrectly included the standard check valves for the project, which have a high head loss and are designed for full pipe systems with some back pressure. The correct design specification is for the wafer check valves, which are low-head axial flow pumps discharging into an open channel. The engineering firm discovered the error during the submittal review process. When submitted to the supplier, the contractor was informed that only two manufacturers, both non-U.S., could provide the valves specified and therefore, did not meet the Buy American requirements.

The requirements for the check valves (Type 770-steel Wafer Single-disc Check Valves, Class 125 and Class 150) include (1) conformance to a pressure rating of Class 150 per ASME b16.5, and to the ANSI Flange class of 125/150; (2) diameters of 12 inch and 16 inch; (3) equipped with spring mechanism for non-slam closure without backflow which allows the mechanism to close without depending on gravity or backflow to close; (4) carbon steel body, stainless steel disc, disc arm, and shaft; (5) single-disc configuration.

EPA provided the County with the names of U.S. manufacturers that could potentially provide the specified product. Hernando County researched and communicated with these valve manufacturers, Cla-Val and Titon Flow Control, and neither manufacturer is able to meet the project specifications. The County's submission clearly has provided sufficient documentation that the relevant manufactured goods are not produced in the United States in sufficient and reasonably available quantity and of a satisfactory quality to meet its technical specifications.

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,” defines “satisfactory quality” as “the quality of steel, iron or manufactured goods specified in the project plans and designs.”

EPA's national contractor prepared a technical assessment report dated July 14, 2010 based on the submitted waiver request. The report determined that the waiver request submittal was complete, that adequate technical information was provided, but did not agree with the County that there were no available U.S. manufacturers that produced the wafer check valves. Subsequently, on September 30, 2010, the EPA contractor prepared an amended technical assessment report based on supplemental information provided by Hernando County and determined a waiver was supported by the available evidence. The purpose of the ARRA provisions was to stimulate economic recovery by funding current infrastructure construction, not to delay projects that are already shovel ready by requiring entities, like the County, to revise their design and potentially choose a more costly and less efficient project. The imposition of ARRA Buy American requirements on such projects would result in unreasonable delay and thus displace the “shovel ready” status for this project. To further delay construction is in direct conflict with the most fundamental economic purposes of ARRA: To create or retain jobs.

The Region 4 Grants and Infrastructure Branch has reviewed this waiver request and has determined that the supporting documentation provided by the County is sufficient to meet the criteria listed under ARRA Section 1605(b), OMB's regulation at 2 CFR 176.100 and the aforementioned EPA Headquarters Memorandum of April 28, 2009. ARRA Section 1605(b)(2) permits a waiver if “iron, steel, and manufactured goods are not produced in the United States in sufficient and reasonably available quantities and of a satisfactory quality.” This waiver request meets this criterion and 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 application of the Buy American requirements would be inconsistent with the public interest, the County is hereby granted a waiver from the Buy American requirements. 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, Hernando County Utilities Department is granted a waiver from the Buy American requirements of Section 1605(a) of Public Law 111-5 for the purchase of four wafer swing check valves as specified in the County's request of July 02, 2010, with supplemental information provided on September 7, 2010. This supplementary information constitutes the detailed written justification required by Section 1605(c) for waivers “based on a finding under subsection 9b.” requirements of Section 1605(a) of Public Law 111-5.

Authority: Pub. L. 111-5, section 1605.

Dated: December 20, 2010.

A. Stanley Meiburg,

Acting Regional Administrator, Region 4.