2010-2810. 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 Troy, VT

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 Town of Troy, Vermont (“Town”) for the purchase of foreign manufactured butterfly valves and actuators for an arsenic and manganese removal water treatment installation 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 upon information submitted by the Town and its consulting engineer, it has been determined that there are currently no domestic manufactured butterfly valves and actuators available to meet its proposed specialized needs and project schedule. 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 foreign manufactured butterfly valves and actuators by the Town, as specified in its November 19, 2009 request.

DATES:

Effective Date: January 29, 2010.

FOR FURTHER INFORMATION CONTACT:

Katie Connors, Environmental Engineer, [phone], or David Chin, 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 Town for the purchase of non-domestic manufactured butterfly valve and actuators to meet the Town's project schedule to install an for arsenic and manganese water treatment system.

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 the 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 Town of Troy, Vermont (“Town”) is receiving funding from the VT ARRA Drinking Water State Revolving Fund (DWSRF) to install a water treatment facility for arsenic and manganese removal, as well as water meters in the distribution system. The treatment system is a skid mounted, preassembled and prewired arsenic and manganese removal system from a U.S. manufacturer. The components of the filtration system are manufactured in the U.S. with the exception of the system's electrically actuated butterfly valves which are manufactured by Value Valve in Taiwan. The Town is requesting a waiver for these foreign manufactured valves and actuators which are standard components provided on the selected U.S. manufacturer's filtration treatment systems.

The waiver is being requested after bid solicitation has been completed and construction has begun. The late request was due to unavailability of a domestic company able to provide the specialized valves and actuators according to the project schedule. The Town is under an enforcement action deadline by the State of Vermont to install and operate an arsenic removal system by April 30, 2010.

The Town contacted several domestic manufacturers of butterfly valve and actuators and although some of them could provide the products within the project specifications, they could not do so within the established project schedule. In order to adhere to the April 30, 2010 regulatory deadline, the skid system must be delivered to the construction site by December 2009. The domestic manufacturers could not produce the specialized valves and actuators needed for incorporation into the system within the time required. The filter system, including the valves and actuators, is assembled in California and will be freighted across the country to Troy, VT. Delaying the components several weeks would put their availability to the manufacturer at mid December to early January, depending on the domestic supplier. To wait for domestically available valves and actuators and allowing for the time necessary to assemble and test the complete system would have pushed delivery of the system to the end of January. The delay would result in the Town of Troy possibly violating its regulatory compliance schedule.

An evaluation of all of the supporting documentation by EPA's national contractor, including results of research and communication with manufacturers of valves and actuators, supports and confirms the Town's claim that there are currently no domestic manufacturers that can provide specialized butterfly valves and actuators to meet the pre-established compliance schedule.

The consulting engineer for the Town identified three domestic manufacturers in the United States. The three companies could provide the valves and actuators. However, the shortest delivery time available was 6-8 weeks, with one of the companies estimating the delivery period to be 10-12 weeks. The supporting information for this proposed project includes contacts with valve and actuator manufacturers, telephone calls, and e-mail correspondence with domestic manufacturers. An independent review of the submitted documentation by EPA's national contractor confirmed this documentation.

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 Town of Troy, VT, to possibly violate the established compliance schedule. 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 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 Municipal Assistance Unit (CMU) has reviewed this waiver request and has determined that the supporting documentation provided by the Town establishes both a proper basis to specify a particular manufactured good, and that the domestic manufactured good that is currently available cannot be delivered in the necessary timeframe for the proposed project. The information provided is sufficient to meet the following criteria listed under Section 1605(b) of the ARRA and in the April 28, 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 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 in the necessary timeframe, the Town of Troy, Vermont 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 non-domestic manufactured butterfly valves and actuators documented in Town's waiver request submitted to the EPA on November 19, 2009. 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: January 29, 2010.

Ira Leighton,

Acting Regional Administrator, EPA Region 1—New England.