2010-4075. Notice of a Project Waiver of Section 1605 (Buy American Requirement) of the American Recovery and Reinvestment Act of 2009 (ARRA) to the Marin Resource Conservation District Project #C-06-6922-110 Funded by the California CWSRF ARRA Loan ...

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(b)(2) (manufactured goods are not produced in the United States in sufficient and reasonably available quantities and of a satisfactory quality) to the Marin Resource Conservation District (MRCD), a Clean Water State Revolving Fund/ARRA loan recipient, for the purchase of a GrundFos SQ Flex 6 SQF-2 solar powered submersible pump system with control and solar panels (pump system) manufactured in Denmark by GrundFos. 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: December 14, 2009.

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), EPA hereby provides notice it is granting a project waiver of the requirements of Section 1605(b)(2) of Public Law 111-5, Buy American requirements, to the MRCD for the acquisition of the GrundFos SQ Flex 6 SQF-2 solar powered submersible pump system with control and solar panels (pump system) manufactured in Denmark by GrundFos. The head of each federal agency is authorized to issue project waivers pursuant to Section 1605(c) of ARRA. 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(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. 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.

The MRCD implements projects within the Tomales Bay and Stemple Creek Watersheds to stop soil erosion, improve riparian habitat, and stabilize eroding stream channels on agricultural lands. The MRCD is installing the pump system to redevelop a brick well in order to provide replacement water for livestock which have been kept from natural water supplies, due to efforts to fence off a creek for streamside and riparian restoration, which restoration will also reduce non-point source pollution. This project is intended to further the purposes of the San Francisco Bay Regional Water Quality Control Board (SFBRWQCB) plan to facilitate land (grazing) management by providing water and water outlets. This will permit the landowner to practice rotational grazing and avoid depleting the integrity of the land with intense grazing.

The MRCD's specifications require the pump system to deliver 920 gallons per day (GPD) against a total dynamic head (TDH) of 160 feet. The MRCD stated in their waiver submission that the closest equivalent domestically-manufactured pump systems do not meet these project specifications. Initial analysis by EPA's national contractor indicated that there was one domestic manufacturer that might be able to meet the project specifications, but observed that additional information clarifying the project's winter month flow requirements was necessary to determine whether this domestic manufacturer could meet all necessary project specifications.

Additional information provided by the MRCD specified that the system must also have a pumping capacity of 1400 GPD at 160 feet of TDH during the winter. Further analysis by EPA and EPA's national contractor confirmed that domestic models capable of meeting the pumping capacity and TDH specifications in winter months would require an additional fuel source. The method to generate this power would require the use of the emergency generator system. Using the emergency system defeats the purpose of having a backup source, and leaves the project site vulnerable to failure. Moreover, as the back-up source of power supply would need to be in operation for nearly the same amount of time that the solar powered equipment would be in operation, this reliance on the emergency system compromises the environmental significance achieved by having a solar powered pump system.

The April 28, 2009 EPA Memorandum for implementation of the ARRA Buy American provisions of P.L. 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 MRCD's submission articulates a reasonable and appropriate basis for choosing the type of technology it chose for this project in environmental objectives and performance specifications. Further, it provides sufficient documentation 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 MRCD has incorporated specific technical design specifications for the proposed project based on their needs and provided information to the EPA indicating there are currently no pump systems manufactured in the United States that have equivalent product specifications. The MRCD has also provided certification from its supplier indicating there are no systems of comparable quality available from a domestic manufacturer to meet its specifications. Based on additional research conducted by the EPA's Buy American consultant, there do not appear to be other pump systems available to meet the MRCD's specifications.

Furthermore, the purpose of the ARRA is to stimulate economic recovery by funding current infrastructure construction, not to delay shovel ready projects by requiring entities, like the MRCD, to revise their design and potentially choose a more costly and less efficient project. The imposition of ARRA Buy American requirements on such projects eligible for CWSRF assistance would result in unreasonable delay and thus displace the “shovel ready” status for this project.

The EPA Region 9 Infrastructure Office, Office of Regional Counsel, 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 the MRCD 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, the MRCD is hereby granted a waiver from the Buy American requirements of Sections 1605(a) of Public Law 111-5, for the purchase of the GrundFos pump system, specified in the MRCD's request of September 23, 2009. 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: December 14, 2009.

Laura Yoshii,

Acting Regional Administrator, EPA Pacific Southwest Region.