2010-9751. 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 Falmouth, MA

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 Falmouth, Massachusetts for the purchase of a foreign manufactured wind turbine to be installed at its existing wastewater treatment facility site. 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 of Falmouth and its consulting engineer, it has been determined that there are currently no domestic manufactured wind turbines 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 a foreign manufactured wind turbine by the Town of Falmouth, MA, as specified in its February 24, 2010 follow-up submittal.

DATES:

Effective Date: April 19, 2010.

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 Town of Falmouth, Massachusetts for the purchase of a foreign manufactured wind turbine that meets the Town of Falmouth's design and performance specifications to be installed at its existing wastewater treatment facility site.

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 Town of Falmouth, Massachusetts (MA) is proposing to construct a foreign manufactured Vestas model V82, 1.65 megawatt (MW) wind turbine generator at the Town's wastewater treatment facility located at 154 Blacksmith Shop Road, a 314 acre town owned site in Falmouth, MA. This proposed wind turbine would be the second one installed and commissioned at the site although the existing wind turbine was not funded through the ARRA. The Town of Falmouth is requesting a waiver for the purchase of a 1.65 MW wind turbine comprised of all turbine components, including, but not limited to: The blades, the nacelle (i.e. cover housing that holds the equipment within a wind turbine), the gear box, low and high speed shafts, generator, controller, and brake. The wind turbine is manufactured by Vestas of Denmark, and meets project design and performance specifications. The total estimated cost to furnish, install and commission the proposed wind turbine is approximately $4.3M.

Massachusetts is one of several northeast states that has a climate change action plan which calls for significant CO₂ emission reductions by 2020. Integral to that plan is a wider adoption of non-emitting renewable sources of electricity. Wind power is currently the most practical source of renewable energy to meet that goal. The Massachusetts' Renewable Portfolio Standard (RPS) requires an increasing amount of the electricity sold in the Commonwealth to come from renewable electricity, including wind power. RPS is also one of the major policy tools put in place to meet the CO₂ reduction goals under the climate change plan. This project, while small, would contribute towards achieving those goals. The proposed wind turbine is expected to generate an average of 3,075 MW hours of electricity annually, representing approximately 30% of the Town's total municipal building and facilities electrical needs.

The Town of Falmouth has thoroughly researched available domestic and foreign wind turbine manufacturers. According to the Town, there was only one domestic manufacturer that produces a wind turbine that appears to meet project design and performance specifications. However, the identified domestic manufacturer is not willing to supply a wind turbine for installation at the Falmouth Wastewater Treatment Plant, nor is it willing to support a warranty and service agreement for another available unit that it has already manufactured. According to the domestic manufacturer, the Town's proposed construction site would not meet the manufacturer's internal setback requirement distances to mitigate the risks associated with potential ice throws from the turbine blades. The domestic manufacturer's internal siting considerations recommended that, for safety in the event of icing, a setback distance of 1.5 times the hub height and rotor diameter—in this case, 646 feet—be maintained from occupied structures, roads, property lines and public access areas. The proposed wind turbine would be set back approximately 552 feet from the property line, 646 feet from the nearest public road (Route 28), and 1,150 feet from the nearest residential structure.

Thus, the siting would provide sufficient setback distances for the road and residential structures but not the property line. The domestic manufacturer cited the setback distance to EPA's national contractor as the basis for its refusal to make its product available for this project. However, the domestic manufacturer's internal siting considerations also provided for other possible mitigation techniques for properties that do not meet these setback considerations, but the manufacturer did not offer to make its product available based on the potential application of such techniques at this site, notwithstanding that the setback limitations at this site were relatively minor, and can readily be addressed by mitigation techniques. (For example, while a road located within the desired setback distance cannot practically be moved and will present some continuing risk, a simple property line incursion within the setback distance can effectively be addressed by signs to provide notice of the risk during certain weather conditions.) The foreign manufacturer which has already supplied an identical 1.65 MW wind turbine that meets the technical specifications required by Falmouth at the site has agreed to supply another 1.65 MW wind turbine to Falmouth at the same site.

Based on information provided to the EPA, the Town of Falmouth has taken the necessary steps to obtain all required local, state, and federal approvals to move forward with the proposed project. The Town of Falmouth has adopted a local ordinance regulating large scale wind turbines. According to the submittal, Zoning Article XXXIV, Chapter 240, Section 240-166 requires a Special Permit for windmills with minimum setback from property lines. The setback requirements of the ordinance states that “On the lot of the petitioner there shall be an area sufficient so that a circle, the center of which shall be no less than the height of the tower as measured from the base of the tower to the uppermost of the blade, or tower, whatever is greater plus 10 feet, may be drawn and be completely within the petitioner's land.”

According to the Town, based on the setback requirements of the local ordinance, a wind turbine with an 80 meter (262 feet) tower would be required to be set back 272 feet from the property line. All setback distances noted above for the proposed wind turbine meet the local zoning code. The Town Planning Department has determined that a wind turbine is a use allowed as a matter of right in a Public Use Zoning district pursuant to Section 240-30, Permitted Community Service Uses, of the Zoning Bylaw.

Furthermore, Special Legislation (Chapter 200 of the Acts of 2007) was also passed by the General Court of Massachusetts to permit the Town of Falmouth to design and install wind energy facilities at its wastewater treatment facility at Blacksmith Shop Road, prepare and improve the site, acquire all equipment necessary for the wind energy facilities, and to make related improvements and repairs to the facilities. The Town has also secured other project approvals and permits from the Massachusetts Historical Commission, the Massachusetts Natural Heritage and Endangered Species Program, the Department of Air Force Space Command, the Massachusetts Division of Fisheries and Wildlife and the Federal Aviation Administration for the proposed project.

The Town of Falmouth, in discussions with the EPA Regional Office, has stated that it will implement a mitigation plan to minimize any potential ice throws to ensure public safety, which appears to provide an ample margin of safety even within the domestic manufacturer's internal siting considerations, where the setback distances meet Town zoning requirements, and any setback concerns appear relatively minor and appropriately mitigated. The Town of Falmouth has indicated that the foreign manufactured wind turbine that is being supplied comes equipped with vibration sensors to shut down the turbine when ice build up is detected. The control system will also be programmed to allow for manual start up as well, which will allow an operator to visually inspect the turbine to confirm that there is no ice remaining before the turbine is re-started. The Town of Falmouth will implement manual wind turbine operational control strategies during periods of ice accretion which include, but are not limited to: Curtailment of operation of the turbine, braking the blades in a “Y” to facilitate ice shedding directly underneath the wind turbine, and yawing the nacelle so that the blades are in the safest position for ice shedding. It may also post warning signs to alert personnel of the potential risk in the area. Access to the turbine area at the site is currently and will remain restricted. After hours, the only vehicular access to the treatment plant site is through a gate that is typically closed and locked. The mitigation plan will be part of the overall operational and maintenance protocol for the Town of Falmouth wastewater treatment facility.

Based on the evaluation of all of the submitted documentation by EPA's technical review team, the Town of Falmouth's statement that no U.S. manufacturer is willing to provide a 1.5 MW-2.0 MW wind turbine generator that meets project performance specifications is supported by the available evidence. In addition, the evaluation of the supporting documentation indicates that at least one foreign manufacturer will provide a wind turbine at the proposed site that can meet project design and performance specifications.

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 SRF eligible recipients, such as the Town of Falmouth, to redesign or relocate a potential project. The imposition of ARRA Buy American requirements in this case would result in unreasonable delay and potentially the cancellation of this project as sited. The delay or cancellation of 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 same Memorandum defines “satisfactory quality” as “the quality of steel, iron or manufactured good specified in the project plans and designs.”

The Municipal Assistance Unit (CMU) has reviewed this waiver request and has determined that the supporting documentation provided by the Town of Falmouth establishes a proper basis to specify the particular good required for this project, that the Town of Falmouth has agreed to implement a mitigation plan to minimize the likelihood of any potential ice throws to ensure public safety, and that this manufactured good was not available from a producer in the United States. 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 is not available from a producer in the United States, the Town of Falmouth 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 a foreign manufactured wind turbine as documented in the Town of Falmouth's follow-up submittal dated February 24, 2010. 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: April 19, 2010.

Ira W. Leighton,

Acting Regional Administrator, EPA Region 1—New England.