E9-19194. Notice of a Regional Project Waiver of Section 1605 (Buy American requirement) of the American Recovery and Reinvestment Act of 2009 (ARRA) to the Hooksett, New Hampshire Sewer Commission

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 Hooksett, New Hampshire Sewer Commission (“HSC”) for the purchase of a foreign manufactured polyethylene Biofilm chip media. HSC's proposed upgrade of its wastewater treatment facility upgrade will utilize an Integrated Fixed Film Activated Sludge (IFAS) process, in which the AnoxKaldnes^TM Biochip-M IFAS media manufactured in Germany by Kruger, Inc. will meet the HSC's design specifications. This is a project specific waiver and only applies to the use of the identified 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 circumstance. The Acting Regional Administrator is making this determination based on the review and recommendations of the Municipal Assistance Unit. The HSC through its design engineer 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 ARRA. This action permits the purchase of the AnoxKaldnes^TM Biochip-M IFAS media manufactured by Kruger, Inc. by the HSC, as specified in its May 19, 2009 waiver request, to upgrade its wastewater treatment facility in Hooksett, New Hampshire.

DATES:

Effective Date: July 29, 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 Sections 1605(b)(2) of Public Law 111-5, Buy American requirements, to the Hooksett, New Hampshire Sewer Commission HSC) for the purchase of the AnoxKaldnes^TM Biochip-M IFAS media manufactured by Kruger, Inc. in Germany, to meet the HSC's technical design specifications for its wastewater treatment plant upgrade project. The process equipment (including installation) is estimated to be $1.67M, with a total estimated project cost of $6.2M.

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 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 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 Hooksett, New Hampshire Sewer Commission (“HSC”), has requested through its design engineer a waiver from the Buy American Provision for the purchase of a foreign manufactured polyethylene Biofilm chip carrier element (media), as part of HSC's proposed wastewater treatment facility upgrade utilizing an Integrated Fixed Film Activated Sludge (IFAS) process.

According to HSC's design engineer, the rationale behind HSC's design and performance specifications utilizing the IFAS process is to increase its existing plant flow from 1.1 MGD to 2.2 MGD without requiring the construction of additional in-ground reinforced concrete aeration tanks. This process will also allow HSC to meet the current NPDES discharge permit loading requirements of 30 mg/L for both Biological Oxygen Demand (BOD) and Total Suspended Solids (TSS), as well as newly established ammonia limits.

The specified media greatly increases the fixed film surface area for biomass growth over conventional activated sludge processes resulting in additional organic loading capability. According to its manufacturer, Kruger, Inc., the AnoxKaldnes^TM Biochip-M IFAS media has a very high specific surface area, which makes it possible for the HSC to meet new ammonia limits at the Hooksett Wastewater Treatment Plant without having to construct two additional aeration tanks.

The HSC has requested a waiver of the ARRA Buy American provisions on the basis of unavailability of a domestic manufactured product that will meet the design specifications for this project, based on the following circumstances:

1. Each AnoxKaldnes^TM Biofilm chip has an effective surface area of 366 ft ²/ft ³. To achieve a plant flow of 2.2 MGD and to meet the current permit limits without constructing new aeration tanks, 6,316,263 ft ² of fixed film surface area is required for attachment of the biomass. The manufacturer of the AnoxKaldnes^TM Biofilm chip, Kruger, Inc., actually has another type of media that is manufactured domestically. The U.S. made K3 media has an effective surface area of 152 ft ²/ft ³ which would result in slightly less fixed film surface area, 5,597,233 ft ², but would require double the aeration tank volume: 64,443 cubic feet as opposed to 32,180 cubic feet. Therefore, the use of the domestic K3 media would result in the construction of two additional aeration tanks, which is contrary to the original project premise and would not meet project design specifications.

2. Constructing the additional aeration tanks to accommodate the U.S. made K3 media would not only be more costly, but would be physically and environmentally challenging due to space limitations, topography, the presence of a nearby perennial stream, and the need to find a location for a chemical building to be constructed adjacent to the existing aeration tanks. Constructing two additional aeration tanks would likely require the relocation of the perennial stream, involve creating additional compensatory flood plain storage, wetland restoration, extensive earthwork on a steep slope, and construction of stepped or cascading retaining walls. It would also require additional blower capacity, new process piping, slide gates, rapid mixers for dispersing chemicals, railings, additional dissolved oxygen analyzers, and the modification of a recently constructed influent flow splitter box.

3. Results from an on-site pilot study utilizing the AnoxKaldnes^TM Biofilm chip were provided by the HSC design engineer. The Biofilm Chip-M media, with an effective surface area of 366 ft ²/ft ³, was pilot tested and demonstrated that this total surface area was required to meet the treatment objectives. According to the HSC design engineer, the plant will operate near the maximum solids loading on the final clarifiers and, therefore, the effective surface area cannot be significantly reduced. Furthermore, the IFAS tank cannot be filled past the point where the media movement of the carrier elements no longer effectively moves within the bulk liquid. The fill fraction ranges between 33% to 55%, depending upon the media with each manufacturer specifying the maximum fill fraction for their media. For the BIOFILM Chip-M, the fill fraction is 52% for the first IFAS reactor and 55% for the second IFAS reactor.

The information provided to EPA by the HSC through its design engineer was confirmed through a technical review by EPA's national contractor of the submitted documentation. To the best of our knowledge at this time, there does not appear to be other IFAS process media manufactured in the United States available to meet the HSC's project design specifications and performance requirements for its proposed wastewater treatment plant upgrade. The applicant has provided a list of manufacturers of various polyethylene biofilm media, along with effective bulk specific surface area characteristics. The applicant has also provided additional information from the pilot testing to justify the 55% fill fraction and information on the surface area required to increase flow capacity from 1.1 MGD to 2.2 MGD.

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 that 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.”

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 potential SRF eligible recipients such as the HSC to revise their design standards and specifications. 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 Municipal Assistance Unit (CMU) has reviewed this waiver request and has determined that the supporting documentation provided by the HSC established both a proper basis to specify the particular good required and that this manufactured good was not available from a producer in the United States able to meet the design specifications 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 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 HSC is hereby granted a waiver from the Buy American requirements of Section 1605(a) of Public Law 111-5 for the purchase and use of the specified polyethylene Biofilm chip carrier element (media) documented in HSC's waiver request submittal dated May 19, 2009, for its proposed wastewater treatment plant upgrade using ARRA funds. 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: July 29, 2009.

Ira W. Leighton,

Acting Regional Administrator, Region I, New England.