[Federal Register Volume 76, Number 1 (Monday, January 3, 2011)]
[Notices]
[Pages 142-144]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-33111]


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ENVIRONMENTAL PROTECTION AGENCY

[FRL-9247-1]


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 Smyrna, DE

SUMMARY: The EPA is hereby granting a 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 Town of Smyrna, DE (``Town''), for the purchase of 
GreensandPlus pressure filter media, manufactured in Brazil, for six 
pressure filters. This is a project specific waiver and only applies to 
the use of the specified product for the ARRA project being proposed. 
Any

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other ARRA recipient that wishes to use the same product must apply for 
a separate waiver based on project specific circumstances. The Town 
evaluated eight different types of pressure filter media selecting 
GreensandPlus filter media. The ARRA funded project is for Well House 
upgrades that include filter media replacement, two filters in Well 
House <greek-i>1, two filters in Well House <greek-i>2 and two filters 
in Well House <greek-i>3 in the Smyrna system. If an alternate domestic 
filter media were to be installed in the six pressure filters, the 
Town's system would experience increased backwash requirements, reduced 
capacity and would need modifications/replacement of underdrain and 
filter piping. Based upon information submitted by the Town and its 
consulting engineer, EPA has concluded that there are no filter media 
manufactured in the United States in sufficient and reasonable quantity 
and of a satisfactory quality to meet the technical specifications 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 EPA Region III, Water Protection Division, 
Office of Infrastructure and Assistance.
    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 
permits the purchase of GreensandPlus pressure filter media for the 
proposed project being implemented by the Town of Smyrna.

DATES: Effective Date: December 9, 2010.

FOR FURTHER INFORMATION CONTACT: Robert Chominski, Deputy Associate 
Director, (215) 814-2162, or David McAdams, Environmental Engineer, 
(215) 814-5764, 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), 
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 Smyrna, Delaware for the purchase of non-
domestic GreensandPlus pressure filter media for six pressure filters. 
EPA has evaluated the Town's basis for procuring the GreensandPlus 
pressure filter media for these filters. Based upon information 
submitted by the Town and its consulting engineer, EPA has concluded 
that there are no filter media manufactured in the United States in 
sufficient and reasonable quantity and of a satisfactory quality to 
meet the technical specifications for the Town to pursue the purchase 
of domestically manufactured filter media.
    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.
    EPA has determined that Town's waiver request may be treated as 
timely even though the request was made after the construction contract 
was signed. Consistent with the direction of the OMB Guidance at 2 CFR 
176.120, EPA has evaluated the Town's request to determine if the 
request, though made after the contract date, can be treated as if it 
were timely made. EPA will generally regard waiver requests with 
respect to components that were specified in the bid solicitation or in 
a general/primary construction contract as ``late'' if submitted after 
the contract date. However, in this case EPA has determined that the 
Town's request may be treated as timely because the need for a waiver 
was not foreseeable at the time the contract was signed. The project 
was bid and the general contractor submitted documentation that 
Greensand filter media utilized in preparing their bid met the ARRA Buy 
American provisions. The need for a waiver was not determined until 
after the contract was signed, when the contractor was informed by the 
manufacturer of Greensand that they were no longer making this product 
and recommended the GreensandPlus pressure filter media as an 
alternative product. They then were notified that the GreensandPlus 
pressure filter media was made in Brazil. Accordingly, EPA will 
evaluate the request as a timely request.
    The Town is requesting a waiver of the Buy American provision for 
the GreensandPlus filter media for six pressure filters. The Town has 
three well houses that each contains two pressure filters for their 
water treatment system. The project involves the replacement of 
standard manganese greensand in three well houses. The Town provided 
supporting documentation that the manufacturer, Inversand Company 
(Inversand), has temporarily shut down production of manganese 
greensand. Inversand advised its customers to instead use its 
GreensandPlus filter media, which is manufactured in Brazil, as an 
alternative product. The Town has stated that GreensandPlus filter 
media is compatible with existing treatment facilities, and the use of 
GreensandPlus filter media is expected to reduce overall operational 
costs. Detailed evaluation of all of the submitted documentation by EPA 
Region III, Office of Infrastructure and Assistance, and EPA's national 
contractor indicates that the Town did not know that the GreensandPlus 
filter media was made in Brazil until after the project was awarded. In 
addition, submitted documentation showed that the Town would require 
replacement/modification of the existing underdrain and associated 
filter piping if any of the other filter media were used in the 
project. Due to the existing backwash piping configuration, a lower 
backwash rate is needed which could be attained by the GreensandPlus 
filter media without replacement of the underdrain or piping. The 
GreensandPlus filter media will be capable of treating the raw water 
presently produced by the Town, removing iron and other impurities to 
comply with all State of Delaware Drinking Water Quality Regulations. 
Thus, the use of domestic filter media would require replacement of the 
underdrain and associated piping which would increase the cost of the 
project. In addition, the evaluation of the supporting documentation 
also demonstrated that the foreign filter media will be able to meet 
the proposed project design and specifications with no additional cost 
to the Town.
    The Town has provided information to the EPA demonstrating that 
there are no filter media manufactured in the United States in 
sufficient and reasonable quantity and of a satisfactory quality to 
meet the required technical specifications. Eight domestic 
manufacturers of filter media were considered for this project but did 
not meet the specifications for the project.
    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

[[Page 144]]

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 Town has 
incorporated specific technical design requirements for installation of 
filter media at their three Well Houses.
    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 Town, to 
revise their standards and specifications, institute a new bidding 
process, and potentially choose a more costly, less efficient project. 
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 OIA has reviewed this waiver request and to the best 
of our knowledge at the time of review has determined that the 
supporting documentation provided by the Town 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 Town's 
technical specifications, 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 Town 
of Smyrna is hereby granted a waiver from the Buy American requirements 
of Section 1605(a) of Public Law 111-5 for the purchase of 
GreensandPlus filter media using ARRA funds as specified in the Town of 
Smyrna's request of October 1, 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: December 9, 2010.
W.C. Early,
Acting Regional Administrator, U.S. Environmental Protection Agency, 
Region III.
[FR Doc. 2010-33111 Filed 12-30-10; 8:45 am]
BILLING CODE 6560-50-P