E9-21940. Notice of a Project Waiver of Section 1605 (Buy American Requirement) of the American Recovery and Reinvestment Act of 2009 (ARRA) to the Kennebec Water District in Waterville, ME

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 Kennebec Water District (KWD) (also known as the “Water District”) in Waterville, Maine for the purchase of specific cast iron valve boxes. This is a project specific waiver and only applies to the use of the specified product for the ARRA funded project being proposed. Any other ARRA projects that may wish to use the same product must apply for a separate waiver based on project specific circumstances. These valve boxes meet KWD's technical specifications and requirements, reflecting the Water District's operation and maintenance experience with these boxes which are currently manufactured in Canada by the Bibby Foundry. The Acting Regional Administrator is making this determination based on the review and recommendations of the Municipal Assistance Unit. KWD has provided sufficient documentation to support its request. The Assistant Administrator of the Office of Administration and Resources Management has concurred in this decision to make an exception to Section 1605 of ARRA. This action permits the purchase of specific cast iron valve boxes for the proposed project being implemented by the Water District that may otherwise be prohibited under Section 1605(a) of the ARRA.

DATES:

Effective Date: September 2, 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) 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 Kennebec Water District (KWD) in Waterville, Maine for the acquisition of specific cast iron valve boxes manufactured in Canada by the Bibby Foundry. 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, or unless a waiver is provided to the recipient by the head of the appropriate agency, here 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.

Some utilities in the Northeast United States, including the KWD, have standardized their design specifications based on their operation and maintenance experience to utilize a high flange slide riser for valve boxes in their collection and distribution systems. The top section of the valve box is 36 inches long and has its flange designed so that the box is able to move up and down with the pavement surface to deal with the deeper frost cover in this area of Maine.

After completion of the bid phase, the contract supplier for the KWD was unable to locate any domestic valve box manufacturers with products that met the proposed project specifications. The KWD requires 22 valve boxes to complete a proposed water main replacement project. The cost of the 22 valve boxes is $2,901 and accounts for approximately 3% of the total value of the iron, steel, and manufactured goods on the project. These non-domestic valve boxes are eligible to be covered under the national revised de minimis waiver dated July 24, 2009. However, since the estimated total cost of all non-domestic materials was greater than 5% of the total cost for iron, steel, and manufactured goods used and incorporated in the proposed project, the KWD requested a project waiver for these specific valve boxes.

The 36-inch top section length valve box, which the KWD is proposing to use, works well for several reasons: (1) The flange is high and locked into the pavement so the top riser moves with the pavement surface and prevents frost from raising the box above the road surface; (2) its longer length of 36″ keeps it more aligned and straight, and is better able to contend with the 6 foot frost depth; (3) it has the top-flange box support area that is more than double that of the no-flange valve box top to help minimize settlement and maintain alignment; and (4) it will also support greater traffic loads compared to a no-flange valve box top, which will further minimize settlement.

There are valve boxes manufactured domestically. But based on the information provided to EPA by the KWD, the domestic manufacturers do not have the necessary top section length required. The KWD requires a top section length of 36 inches based on its past and current operations and maintenance experience. Without the necessary length in the top section, extensions would need to be connected together or “stacked” on top of one another. According to the KWD, stacking extensions to provide length beyond the standard 26-inch top section available through domestic manufacturers makes it difficult to keep the box plumb in the long term. There are three joints involved with stacking extensions and when they get out of alignment due to road settlement, it becomes difficult to insert a long handled “tee wrench” down into the box over the operating nut to operate the valve from ground level.

If a valve box cannot be opened, or if the operating nut cannot be accessed to operate the valve from the ground level, it may require replacement of the entire unit, resulting in additional costs to the water utility that could have been avoided. Over the past several years, the KWD has been replacing many of the older non-functioning valve boxes with the newer valve boxes, which meet their design specifications. The KWD has standardized this practice in order to simplify operation and maintenance and to minimize unnecessary repair and replacement costs in the future.

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,' ” 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.” Based on the information provided to EPA and to the best of our knowledge at this time, there do not appear to be other cast iron valve boxes with the top flange manufactured in the United States available to meet the Water District's exact technical specifications and requirements. The Water District has established a proper basis to specify the required cast iron valve boxes with the top flange and established that this manufactured good was not available from a domestic producer.

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 KWD 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 ARRA 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.

EPA's national contractor prepared a technical assessment report for the Kennebec Water District dated June 25, 2009 on the waiver request submitted. The report for the KWD determined that the waiver request submittal was complete and that adequate technical information was provided. The report also confirmed the waiver applicant's claims that there were presently no comparable cast iron valve boxes manufactured domestically. The technical review team found that domestic manufacturers do produce cast iron valve boxes, but could not identify any that offered the top flange product with the necessary top section length of 36 inches.

The Municipal Assistance Unit (CMU) has reviewed this waiver request and has determined that the supporting documentation provided by the KWD is sufficient to meet the criteria listed under Section 1605(b), OMB's regulations at 2 CFR 176.60-176.170, and in the April 28, 2009, “Implementation of Buy American provisions of P.L. 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 individual 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 Water District's technical specifications and requirements, a waiver from the 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 Kennebec Water District is hereby granted a waiver from the Buy American requirements of Section 1605(a) of Public Law 111-5 for the purchase of specified cast iron valve boxes using ARRA funds as specified in the Water District's requests of June 23, 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: September 2, 2009.

Ira W. Leighton,

Acting Regional Administrator, Region I, New England.