[Federal Register Volume 75, Number 39 (Monday, March 1, 2010)]
[Notices]
[Pages 9207-9208]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-4075]


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ENVIRONMENTAL PROTECTION AGENCY

[FRL-9118-8]


Notice of a Project Waiver of Section 1605 (Buy American 
Requirement) of the American Recovery and Reinvestment Act of 2009 
(ARRA) to the Marin Resource Conservation District Project <greek-i>C-
06-6922-110 Funded by the California CWSRF ARRA Loan <greek-i>09-306-
550

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice.

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SUMMARY: The EPA is hereby granting a project waiver of the Buy 
American requirements of ARRA 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 Marin 
Resource Conservation District (MRCD), a Clean Water State Revolving 
Fund/ARRA loan recipient, for the purchase of a GrundFos SQ Flex 6 SQF-
2 solar powered submersible pump system with control and solar panels 
(pump system) manufactured in Denmark by GrundFos. 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 project that 
may wish to use the same product must apply for a separate waiver based 
on project-specific circumstances. The Assistant Administrator of the 
Office of Administration and Resources Management has concurred on this 
decision to make an exception under section 1605(b)(2) of ARRA.

DATES: Effective Date: December 14, 2009.

FOR FURTHER INFORMATION CONTACT: Abimbola Odusoga, Environmental 
Engineer, Water Division, Infrastructure Office (WTR-4), (415) 972-
3437, U.S. EPA Region 9, 75 Hawthorne San Francisco, CA 94105.

SUPPLEMENTARY INFORMATION: In accordance with ARRA Section 1605(c), EPA 
hereby provides notice it is granting a project waiver of the 
requirements of Section 1605(b)(2) of Public Law 111-5, Buy American 
requirements, to the MRCD for the acquisition of the GrundFos SQ Flex 6

[[Page 9208]]

SQF-2 solar powered submersible pump system with control and solar 
panels (pump system) manufactured in Denmark by GrundFos. The head of 
each federal agency is authorized to issue project waivers pursuant to 
Section 1605(c) of ARRA. Section 1605(a) of the ARRA requires that none 
of the funds appropriated or otherwise made available by the ARRA 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. Pursuant to Section 1605(c), a waiver may be provided if EPA 
determines: (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. A Delegation of Authority Memorandum was issued 
by the EPA Administrator on March 31, 2009 which provided EPA Regional 
Administrators with the authority to issue waivers to Section 1605(a) 
of ARRA within the geographic boundaries of their respective regions 
and with respect to requests by individual recipients of ARRA financial 
assistance.
    The MRCD implements projects within the Tomales Bay and Stemple 
Creek Watersheds to stop soil erosion, improve riparian habitat, and 
stabilize eroding stream channels on agricultural lands. The MRCD is 
installing the pump system to redevelop a brick well in order to 
provide replacement water for livestock which have been kept from 
natural water supplies, due to efforts to fence off a creek for 
streamside and riparian restoration, which restoration will also reduce 
non-point source pollution. This project is intended to further the 
purposes of the San Francisco Bay Regional Water Quality Control Board 
(SFBRWQCB) plan to facilitate land (grazing) management by providing 
water and water outlets. This will permit the landowner to practice 
rotational grazing and avoid depleting the integrity of the land with 
intense grazing.
    The MRCD's specifications require the pump system to deliver 920 
gallons per day (GPD) against a total dynamic head (TDH) of 160 feet. 
The MRCD stated in their waiver submission that the closest equivalent 
domestically-manufactured pump systems do not meet these project 
specifications. Initial analysis by EPA's national contractor indicated 
that there was one domestic manufacturer that might be able to meet the 
project specifications, but observed that additional information 
clarifying the project's winter month flow requirements was necessary 
to determine whether this domestic manufacturer could meet all 
necessary project specifications.
    Additional information provided by the MRCD specified that the 
system must also have a pumping capacity of 1400 GPD at 160 feet of TDH 
during the winter. Further analysis by EPA and EPA's national 
contractor confirmed that domestic models capable of meeting the 
pumping capacity and TDH specifications in winter months would require 
an additional fuel source. The method to generate this power would 
require the use of the emergency generator system. Using the emergency 
system defeats the purpose of having a backup source, and leaves the 
project site vulnerable to failure. Moreover, as the back-up source of 
power supply would need to be in operation for nearly the same amount 
of time that the solar powered equipment would be in operation, this 
reliance on the emergency system compromises the environmental 
significance achieved by having a solar powered pump system.
    The April 28, 2009 EPA Memorandum for implementation of the ARRA 
Buy American provisions of P.L. 111-5, states the quantity of iron, 
steel, or relevant manufactured good is ``reasonably available'' if it 
is available at the time and place needed, and in the proper form or 
specification as specified in the project plans and design.
    The MRCD's submission articulates a reasonable and appropriate 
basis for choosing the type of technology it chose for this project in 
environmental objectives and performance specifications. Further, it 
provides sufficient documentation 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 MRCD has incorporated specific technical design 
specifications for the proposed project based on their needs and 
provided information to the EPA indicating there are currently no pump 
systems manufactured in the United States that have equivalent product 
specifications. The MRCD has also provided certification from its 
supplier indicating there are no systems of comparable quality 
available from a domestic manufacturer to meet its specifications. 
Based on additional research conducted by the EPA's Buy American 
consultant, there do not appear to be other pump systems available to 
meet the MRCD's specifications.
    Furthermore, the purpose of the ARRA is to stimulate economic 
recovery by funding current infrastructure construction, not to delay 
shovel ready projects by requiring entities, like the MRCD, to revise 
their design and potentially choose a more costly and less efficient 
project. The imposition of ARRA Buy American requirements on such 
projects eligible for CWSRF assistance would result in unreasonable 
delay and thus displace the ``shovel ready'' status for this project.
    The EPA Region 9 Infrastructure Office, Office of Regional Counsel, 
EPA's Buy American consultant, and EPA's Office of Administration and 
Resource Management have reviewed this waiver request and have 
determined the supporting documentation provided by the MRCD is 
sufficient to meet the criteria listed under ARRA Section 1605(b)(2) 
and the EPA April 28, 2009, Memorandum for implementation of ARRA Buy 
American provisions of Public Law 111-5.
    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 MRCD is hereby 
granted a waiver from the Buy American requirements of Sections 1605(a) 
of Public Law 111-5, for the purchase of the GrundFos pump system, 
specified in the MRCD's request of September 23, 2009. This 
supplementary information constitutes the detailed written 
justification required by Section 1605(c) for waivers based on a 
finding under Section 1605(b)(2).

    Authority:  Public Law 111-5, Section 1605.

    Dated: December 14, 2009.
Laura Yoshii,
Acting Regional Administrator, EPA Pacific Southwest Region.
[FR Doc. 2010-4075 Filed 2-26-10; 8:45 am]
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