2010-23968. Notice of a Regional Project Waiver of Section 1605 (Buy American) of the American Recovery and Reinvestment Act of 2009 (ARRA) to the Town of Bristol, 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)(1) [inconsistent with the public interest] to the Town of Bristol, Rhode Island (Town) for the utilization and installation of two influent and two effluent sluice gates for the facility's two final clarifiers as part of a larger overall wastewater treatment plant upgrade project. 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. The Town had been assured by the manufacturer that the sluice gates would be made in a facility in Massachusetts. However, the manufacturer informed the Town of Bristol in writing on July 8, 2010 that due to an internal miscommunication, the sluice gates that were delivered to the site for installation were actually manufactured in Canada, and not in Massachusetts. The manufacturer has offered to provide these sluice gates at no charge other than the cost for freight and field service. Re-ordering the sluice gates and having them manufactured in the Massachusetts facility would delay the upgrade work to the final clarifiers by at least three months. Unfortunately, the existing final clarifier equipment is failing, and given that existing wastewater flows at the wastewater treatment plant are at seasonal lows, the most opportune time to install the sluice gates would be during the July and August time frame. Based upon information submitted by the Town's consulting engineer, EPA has concluded that requiring the installation of domestic manufactured sluice gates, which would extend the time frame by at least three months, would be inconsistent with the public interest, and that a waiver of the Buy American provisions is justified. 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 the requirements of Section 1605(a) of ARRA. This action allows the installation of the foreign manufactured influent and effluent sluice gates, as specified in its July 8, 2010 request.

DATES:

Effective Date: September 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(a) of Public Law 111-5, Buy American requirements, to the Town of Bristol, Rhode Island for the installation of two influent and two effluent sluice gates for two final clarifiers as part of a wastewater treatment plant upgrade project. Based on the information provided by the Town's design engineer, EPA has determined that it is inconsistent with the public interest for the Town to further delay the project and pursue the purchase of domestically manufactured sluice gates.

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 under Section 1605(b) 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.

Consistent with the direction of OMB's regulation at 2 CFR 176.120, EPA will generally consider a waiver request with respect to components that were specified in the bid solicitation or in a general/primary construction contract or those made after obligating ARRA funds for a project to be a “late” request. However, in this case EPA has determined that the Town's request, though made after the date the contract was signed, can be evaluated as timely because the manufacturer informed the general contractor on July 8, 2010 that due to an internal miscommunication, the sluice gates that were delivered to the construction site had been manufactured in its Quebec, Canada facility. The need for a waiver was not determined until after the general contractor was informed of the miscommunication and delivery of the foreign manufactured sluice gates. The recipient could not reasonably have foreseen the need for a determination until informed of the error. Accordingly, EPA will evaluate the request as if it were timely.

The Town is requesting a waiver of the Buy American provision for installation of two influent and two effluent sluice gates for the facility's two final clarifiers as part of a larger overall wastewater treatment plant upgrade project. The planned upgrades to the final clarifiers include removal and replacement of the following equipment: (a) Two clarifier mechanisms including trusses supporting the sludge rakes; scum skimmers; drive mechanisms and a new walkway; (b) two influent and two effluent sluice gates; (c) scum removal equipment; and (d) effluent weirs and troughs. The sluice gates are necessary for isolating each final clarifier and are currently not functional as they are remain “stuck” in the open position. The existing clarifier mechanisms are over twenty years old and in need of immediate repair. The mechanisms are approximately 75 feet in diameter and scrape the settled sludge to the sludge pump for withdrawal and processing. Each mechanism also incorporates scum removal rake arms and scum troughs that provide scum removal from the surface of the tanks.

One of the final clarifier skimmer arm supports began to fail in June of 2009. The supports became bent making the entire mechanism inoperable. In order to allow the continued removal of the sludge from the bottom of the tank, the sludge collection arms needed to be removed. Since the existing sluice gates were inoperable, the Town was required to hire a diver to disconnect the skimmer support arms. Immediately after the failure of the first final clarifier skimmer, the skimmer arm for the second final clarifier also failed and was also removed. Since the removal of the skimmer arms last summer and until the completion of these proposed upgrades, wastewater treatment plant personnel have been manually removing scum from these tanks.

The Town's general contractor submitted the sluice gate shop drawings for review in February of 2010. The Town's design engineer reviewed the shop drawings and determined that the sluice gates were manufactured in Canada and would not meet the Buy American requirements. This was conveyed to the general contractor in March of 2010. The general contractor was informed by the manufacturer that it had the capability to manufacture the sluice gates at its Orange, Massachusetts facility. Based on the belief of all parties that this would satisfy the Buy American requirements, the project proceeded and the gates were scheduled for delivery and installation in July of 2010. All of the other final clarifier equipment has been delivered to the site and is ready for installation, pending installation of the new sluice gates.

Unfortunately, the manufacturer informed the general contractor on July 8, 2010 that due to an internal miscommunication, the sluice gates that were delivered to the construction site had been manufactured in its Quebec, Canada facility, not in Orange, Massachusetts. The Town had been assured by the manufacturer in March of 2010 that the sluice gates would be made in the Orange, Massachusetts manufacturing facility. The manufacturer is aware of the scheduling implications and has offered to provide the sluice gates at no cost, other than for freight and field service charges. The Town, which could not reasonably foresee the need for a waiver to the Buy American provision of the ARRA, submitted a waiver request immediately (July 9th, 2010) after they were informed by the manufacturer of the delivery oversight.

Re-ordering the gates and having them manufactured in the Massachusetts facility would delay the upgrade work to the final clarifiers by at least three months. Unfortunately, the existing final clarifier equipment has already failed, and since existing wastewater flows at the wastewater treatment plant are currently at seasonal lows, the most opportune time to install the new sluice gates would be during the July and August time frame.

Furthermore, the purpose of the ARRA is to stimulate economic recovery by funding current infrastructure construction, not to delay or require the substantial redesign of projects that are “shovel ready,” such as this project at the Bristol, Rhode Island Wastewater Treatment Plant. The implementation of the ARRA Buy American requirements in this case would result in additional cost for this project and unreasonable delay in its completion. Such delay would also directly conflict with a fundamental economic purpose of ARRA, which is to create or retain jobs. More importantly, the imposition of the Buy American requirement would result in additional risk to water quality protection.

The Municipal Assistance Unit (CMU) has reviewed this waiver request and has determined that the supporting documentation provided by the Town's design engineer established a proper basis to specify that using the domestic manufactured good would be inconsistent with the public interest of the Town of Bristol, Rhode Island. The information provided is sufficient to meet the following criteria listed under Section 1605(b)(1) of the ARRA and in the April 28, 2009 Memorandum: Applying these requirements would be inconsistent with the public interest.

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 using a domestically available alternative manufactured good would be inconsistent with the public interest, the Town of Bristol, Rhode Island 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 installation and utilization of foreign manufactured influent and effluent sluice gates as documented in the Town's waiver request submittal dated July 9, 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: September 15, 2010.

Ira W. Leighton,

Acting Regional Administrator, EPA Region 1—New England.