E9-15318. Notice of a Regional Waiver of Section 1605 (Buy American Requirement) of the American Recovery and Reinvestment Act of 2009 (ARRA) to the State of New Hampshire Department of Environmental Services' Winnipesaukee River Basin Bureau

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 State of New Hampshire Department of Environmental Services' Winnipesaukee River Basin Bureau (WRBB) for the purchase of air bearing turbo aeration blowers and an associated main blower control panel. These blowers and associated control panel are manufactured outside of the United States by APG-Neuros of South Korea, and meet the WRBB's technical design specifications. The Acting Regional Administrator is making this determination based on the review and recommendation of the Municipal Assistance Unit. The WRBB has provided sufficient documentation to support their request.

The Assistant Administrator of the Office of Administration and Resources Management has concurred on this decision to make an exception to Section 1605 of the ARRA. This action permits the purchase of air bearing turbo aeration blowers and an associated main blower control panel by the WRBB, as specified in its May 11, 2009 waiver request, to upgrade its regional wastewater treatment facility in Franklin, New Hampshire as part of a project funded under the ARRA.

DATES:

Effective Date: June 8, 2009

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, One Congress Street, CMU, Boston, MA 02114.

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(a) of Public Law 111-5, Buy American requirements, to the WRBB for the purchase of air bearing turbo aeration blowers and an associated main blower control panel manufactured outside of the United States by APG-Neuros of South Korea, which meet the WRBB's technical design specifications for its wastewater treatment plant upgrade project.

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 is produced in the United States unless a waiver is provided to the recipient by EPA. A waiver may be provided if EPA determines under Section 1605(b) 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.

In a letter dated May 11, 2009 to the EPA, the WRBB requested a waiver from the Buy American Provision for the purchase of air bearing turbo aeration blowers and an associated Main Blower Control Panel (MBCP), manufactured outside of the United States (US) by APG-Neuros, a South Korea based company.

Based on information provided to the EPA, the WRBB performed a pre-bid selection of the high efficiency, air bearing turbo aeration blowers with the help of a 12 member technical review committee that included WRBB operations, maintenance, electrical, electronics and management staff, WRBB's technical consultant, and the NHDES' Wastewater Engineering Bureau Design Review staff. This pre-bid selection committee determined critical specifications and manufacturer capabilities, and the development of a weighted scoring system to assess the submitted proposals. Three priority technical specifications were identified by the pre-bid committee:

(1) That the entire proposed blower package proposed had to be Underwriters Laboratories (UL) or CSA-US (NRTL) certified in order to be approved by the State Fire Marshall for installation at the facility;

(2) That the manufacturer demonstrated experience with installed aeration blowers in US wastewater treatment plants; and

(3) That their process include site specific blower monitoring, control and automation using dissolved oxygen, air flow, and pressure sensing to achieve appropriate aerobic treatment levels.

A Request for Information (RFI) solicitation was published in the New Hampshire Union Leader newspaper and sent directly to four (4) known manufacturers of air-bearing turbo aeration blowers. Three of the four manufacturers responded to the RFI. According to the WRBB, the fourth manufacturer did not formally submit a RFI because its air-bearing turbo aeration blower was not yet in production and it would not be able to provide the required scope of supply.

One mandatory requirement identified by the pre-bid selection committee was that the entire blower package proposed had to be UL or CSA-US (NRTL) certified in order to be approved by the State Fire Marshall for installation at this state-operated wastewater treatment facility. The time for meeting required certifications was deemed critical by the WRBB pre-selection committee in order to incorporate the pre-selected blower into the construction contract documents so that the contract award could meet the “ready to proceed” ARRA requirements. APG-Neuros was the only manufacturer that met this requirement at the time of the RFI submittal. The other two manufacturers did not have this certification at the time of the RFI submittal nor did they indicate whether they would proceed to obtain the necessary certification.

One of the highest priority requirements identified by the pre-selection committee was demonstrated experience with numerous installed aeration blowers in wastewater treatment plants within the United States. According to the WRBB, wastewater aeration processes, as approved by the State through operational and design requirements, require the facility to include appropriate site specific blower monitoring, control and automation using dissolved oxygen, air flow, and pressure sensing to achieve appropriate aerobic treatment levels. Only one manufacturer, APG-Neuros, had a multiple year turbo aeration blower manufacturing history, including over sixty-five (65) aeration blower installations at US wastewater treatment plants, and provided additional verifiable documentation of their ability to automate the process using dissolved oxygen, air flow, and pressure sensing. The other two manufacturers that were evaluated, including the US-based manufacturer, did not cite or propose any experience with automated dissolved oxygen control as required in the specifications for this facility for aerobic wastewater treatment supplied with the RFI. Based upon conformance with identified mandatory and critical parameters, as well as the scoring for additional technical requirements, the twelve member pre-bid selection committee unanimously selected APG-Neuros, Inc. as the highest scoring respondent to the RFI.

APG-Neuros of South Korea was the only manufacturer that met the technical design specifications set forth in the RFI, and had a verifiable history of supplying air bearing turbo aeration blowers for US wastewater treatment plant applications. It was the only manufacturer that had current UL/CSA-US certifications for their proposed air bearing turbo aeration blowers package systems as required for installation at State of New Hampshire operated facilities. The other two responding manufacturers did not meet any of these critical requirements.

Based on the information provided to EPA from the WRBB, and to the best of our knowledge at the time of the review, there do not appear to be other air bearing turbo aeration blowers currently manufactured in the United States available to meet the WRBB's exact technical specifications and requirements.

In addition, the WRBB is highly ranked on New Hampshire's Intended Use Plan due in part to the highly energy efficient air bearing turbo aeration blower components in this project. The electric energy savings from using these turbo blowers is projected to result in an estimated 50-54% reduction in power compared to the existing blowers. This reduction will result in a savings of 548,000 kilowatt-hours of electricity use per year for an estimated 18-19% reduction in the total energy consumption required for the wastewater treatment plant operation.

Requiring a less efficient product would be contrary to Congress' explicit and specific intent to achieve greater energy efficiency as stated in the SRF-specific 20% Green Project Reserve requirements of Title VII of the ARRA. Furthermore, the purpose of the ARRA is to stimulate economic recovery by funding current infrastructure construction, not to delay projects that are already “shovel ready” by requiring potentially eligible SRF recipients such as the WRBB to revise their standards and specifications and to start the bidding process again. 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 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 WRBB is sufficient to meet the criteria listed under Section 1605(b) and in the April 28, 2009, Implementation of Buy American provisions of Public Law 111-5, the “American Recovery and Reinvestment Act of 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 basis for this project waiver is the authorization provided in Section 1605(b)(2). Due to the lack of production of this product in the United States in sufficient and reasonably available quantities and of a satisfactory quality in order to meet the WRBB's technical specifications, a waiver from the ARRA Buy American requirement 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 this manufactured good was not available from a producer in the United States, the WRBB is hereby granted a waiver from the Buy American requirements of Section 1605(a) of Public Law 111-5 for the purchase of air bearing turbo aeration blowers and an associated main blower control panel manufactured outside of the United States by APG-Neuros of South Korea. 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: June 22, 2009.

Ira W. Leighton,

Acting Regional Administrator, Region I, New England.