2010-15342. Notice of a Regional Project Waiver of Section 1605 (Buy American) of the American Recovery and Reinvestment Act of 2009 (ARRA) to the City of Newport, RI

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Notice.

SUMMARY:

The EPA is hereby granting a 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 City of Newport, RI (“City”) for the purchase of a foreign manufactured ultraviolet (UV) light disinfection treatment system for the Easton Beach Project in Newport, Rhode Island. 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 City and its consulting engineer, it has been determined that there are currently no domestically manufactured UV disinfection treatment systems available to meet the City's project specifications and construction 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 a foreign manufactured UV light disinfection treatment system by the City, as specified in its February 4, 2010 request.

DATES:

Effective Date: June 15, 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 City of Newport, RI (“City”) for the purchase of a non-domestically manufactured medium-pressure UV light disinfection treatment system from Trojan Technologies, manufactured in Canada, to meet the City's design and performance specifications and construction schedule as part of its proposed Easton Beach Project in Newport, RI. Trojan Technologies has a U.S. manufacturing facility in Ontario, California, but that site is not currently equipped to conduct a specific product test procedure required for this project's specifications.

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 City is proposing a disinfection system to treat storm water discharging into Easton Beach, a recreational area. The UV disinfection system is designed to treat as much as 62 MGD of storm water that has historically been the source of elevated concentration levels of bacterial contamination sufficient to cause health officials to close the Easton Beach area for recreational purposes during certain weather/runoff events.

The project specifications are for a medium pressure UV light disinfection system capable of treating up to 62 MGD with the following parameters: (1) Minimum 55% UV transmittance in storm water runoff, with a minimum of 30 mg/L total suspended solids (TSS) concentration, (2) 40 mW-sec/cm² applied UV dose, (3) The Rhode Island Department of Health beach closure standard is that each sample shall be less than or equal to 104 Enterococci colonies/100 mL; a 20 year lifetime process performance guarantee will be required of the disinfection system supplier, (4) Allowable headloss at Peak Flow 18 inches, maximum from the controlling weir to the discharge pumps outlet, (5) Requisite UV dose at 254 nm wavelength: 40 mW-sec/cm², (6) Ultraviolet transmittance at 253.7 nm: 55%, and (7) effluent to be able to meet 30 mg/L of Total Suspended Solids (TSS).

Trojan Technologies (“Trojan”) manufactures the applicable 3000+ UV disinfection treatment unit domestically in the Ontario, California plant as well as outside the U.S. in Canada. However, due to the beach closure standard by the RIDOH and the specification of a 20 year lifetime process performance guarantee for the UV system, the product will be subject to a device test cell procedure. Trojan's California site is not equipped for this test procedure at this time. However, the Canadian site is currently equipped for the test. The test is performed at the site of manufacture in Canada, according to the City's design engineer.

The supporting documentation and independent research and communication with select manufacturers of medium pressure UV disinfection systems conducted by EPA's national contractor demonstrate that there are no U.S. manufacturers able to meet all the project specifications and the construction schedule. The design engineer for the City had identified one domestic manufacturer in the United States. According to the City's design engineer, although the domestic manufacturer could meet most of the project specifications and performance criteria, if the City used the domestic UV disinfection system, a redesign of the system would be required before construction could take place. The domestic system is larger than the proposed Trojan system and an increase in the size of the structure housing for the UV system would be necessary. Additionally, the electrical system of the UV system would also need to be redesigned if the domestic system was used. Project permits that have been approved for the proposed Trojan system would likely have to be modified and/or new permits would need to be secured because of the increase in the size of the structure. EPA confirmed that the footprint would increase by 50 percent for the domestic system. There has already been considerable public concern regarding the size of the actual proposed stormwater disinfection structure being located in a popular and busy recreational section of Newport. There is a great deal of local and tourist traffic in the area. In addition, there are a number of site constraints involved with the proposed project. For example, one of the design requirements noted by the City of Newport was that the amount of land that may be disturbed is less than 25,000 square feet in order to minimize impacts to existing buried utilities, the existing street or right-of-way, as well as the nearby stream and dam. The City is concerned that significantly increasing the size of the structure will raise additional public concern and would indefinitely delay the project. The redesign of the structure would take months to complete and that along with the expected permitting process would ultimately delay the construction of the project by at least 2-3 months. An independent review of the submitted documentation by EPA's national contractor confirmed this evidence.

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 City of Newport, RI, to revise their design standards and specifications as well as their construction 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. In addition, the timely construction of the new stormwater disinfection system would allow further protection of Easton Beach and its users. The project delays are of particular concern for implementation of the system within the recreation season of 2010.

The April 28, 2009 EPA HQ Memorandum, “Implementation of Buy American provisions of P.L. 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 City establishes both a proper basis to specify a particular manufactured good, and that the domestic manufactured good that is currently available does not meet all of the design specifications and the construction schedule 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, the City 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 non-domestic manufactured ultraviolet light disinfection treatment system documented in City's waiver request submittal dated February 4, 2010. 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 June 15, 2010.

Ira W. Leighton,

Acting Regional Administrator, EPA Region 1—New England.