E9-16265. Notice of a Project Waiver of Section 1605 (Buy American Requirement) of the American Recovery and Reinvestment Act of 2009 (ARRA) to the Claywood Park Public Service District, West Virginia

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 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 Claywood Park Public Service District (PSD) for the purchase of blowers at their Wastewater Treatment Plant (WWTP). These blowers are manufactured outside of the United States by Aerzen, a company based in Germany, and meet the PSD's technical specifications. The Acting Regional Administrator is making this determination based on the review and recommendations of the EPA Region III, Water Protection Division, Office of Infrastructure and Assistance. The Claywood Park Public Service District has provided sufficient documentation to support its request.

The Assistant Administrator of the EPA's 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 specific type blowers for the proposed project being implemented by the Claywood Park Public Service District.

DATES:

Effective Date: June 8, 2009.

FOR FURTHER INFORMATION CONTACT:

Robert Chominski, Deputy Associate Director, [phone], or David McAdams, Environmental Engineer, [phone], Office of Infrastructure & Assistance (OIA), Water Protection Division, U.S. EPA Region III, 1650 Arch Street, Philadelphia, PA 19103-2029.

SUPPLEMENTARY INFORMATION:

In accordance with ARRA Section 1605(c) and pursuant to Section 1605(b)(2) of Public Law 111-5, Buy American requirements, EPA hereby provides notice that it is granting a project waiver to the Claywood Park Public Service District (PSD) for the acquisition of specialized blowers manufactured outside of the United States by Aerzen, a company based in Germany. 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 are produced in the United States unless a waiver is provided to the recipient by EPA. A waiver may be provided if EPA determines that (1) Applying these requirements would be inconsistent with 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 PSD has provided information to the EPA representing that there are currently no blowers manufactured in the United States that have the same product specifications in place. The specifications for the new blowers required that both the gear-end and the drive-end of the blowers shall be oil splash lubricated for minimal maintenance and long service life. Grease lubricated bearings are not acceptable and maximum average noise level, within enclosure, 76 dba measured at 6 locations at a distance of 3 feet from the blower system.”

Since the original WWTP was built in 1990, additional homes in the community were constructed closer to the WWTP than existing houses had been. Moreover, because there is no additional space in the basement of the operations building, the two new blowers had to be constructed outside the operations building. The PSD has also provided information that the low-noise stand alone blower enclosure ensures that the plant does not become a noise nuisance to the Cedar Grove and Happy Valley Community. The Aerzen-style blowers are the quietest blowers available. Given the proximity of the new residents and the necessary exterior location of the blowers, the PSD had a reasonable and appropriate basis to limit the project specification to ultra-quiet blowers.

The PSD's submission clearly articulates entirely functional reasons for its technical specifications, and has provided sufficient documentation that 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 April 28, 2009 EPA HQ Memorandum, “Implementation of Buy American Provisions of Public Law 111-5, the ‘American Recovery and Reinvestment Act of 2009’ ”, 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 PSD has incorporated specific technical design features for its blowers for noise, improved reliability and ease of maintenance.

The PSD has provided information to the EPA representing that there are currently no blowers manufactured in the United States that have the exact same product specifications in place. Based on additional research conducted by the Office of Infrastructure & Assistance and to the best of the Region's knowledge at the time of the review, there does not appear to be other blowers to meet the PSD's exact technical specifications.

Furthermore, the purpose of the ARRA is to stimulate economic recovery in part by funding current infrastructure construction, not to delay projects that are “shovel ready” by requiring utilities, such as the Claywood Park Public Service District, to revise their standards and specifications and to start the bidding process again. The imposition of ARRA Buy American requirements on such projects otherwise eligible for State Revolving Fund assistance would result in unreasonable delay and thus displace the “shovel ready” status for this project. To further delay construction is in direct conflict with a fundamental economic purpose of the ARRA, which is to create or retain jobs.

The Office of Infrastructure & Assistance has reviewed this waiver request and has determined that the supporting documentation provided by the Claywood Park Public Service District 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 District's technical specifications, a waiver from the Buy American requirement is justified.

The EPA's 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 Claywood Park Public Service District is hereby granted a waiver from the Buy American requirements of Section 1605(a) of Public Law 111-5 for the purchase of blowers using ARRA funds as specified in the PSD's request of April 9, 2009. 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 18, 2009.

William C. Early,

Acting Regional Administrator, U.S. Environmental Protection Agency, Region III.