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###### Environmental Protection Agency

          - [FRL-9114-8]

# AGENCY:

Environmental Protection Agency (EPA).

# ACTION:

Notice.

# SUMMARY:

                        The Acting Regional Administrator of EPA Region 10 is hereby granting a waiver of the Buy America requirements of ARRA Section                               ( print page 8064)                            1605(a) 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 City for the purchase of ORION ® Water Meter Monitor with Leak Detection Indicator in-home water meter monitors manufactured in Malaysia by Escatech, Inc., under license from Badger Meter, Inc., located in Milwaukee, Wisconsin. 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 waiver applicant states that the Badger in-home water meter monitors are the only devices that are compatible with the water meter heads installed by the City since 2007. No other water meter monitors meet satisfactory quality to meet the specifications.                    

The Acting Regional Administrator is making this determination based on the review and recommendations of the Drinking Water Unit. The City has provided sufficient documentation to support their request.

# DATES:

*Effective Date:*                         February 11, 2010.                    

# FOR FURTHER INFORMATION CONTACT:

Johnny Clark, DWSRF ARRA Program Management Analyst, Drinking Water Unit, Office of Water & Watersheds (OWW), (206) 553-0082, U.S. EPA Region 10 (OWW-136), 1200 Sixth Avenue, Suite 900, Seattle, WA 98101.

# 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 City for the acquisition of ORION ® Water Meter Monitor with Leak Detection Indicator in-home water meter monitors manufactured in Malaysia by Escatech, Inc., under license from Badger Meter, Inc., located in Milwaukee, Wisconsin. The applicant indicates that Badger in-home water meter monitors are the only devices that are compatible with the water meter heads installed by the City since 2007 and that no other water meter monitors are capable or meeting satisfactory quality to meet the technical specifications. 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 unless a waiver is provided to the recipient by EPA. A waiver may be provided under Section 1605(b) 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.

This ARRA-funded project involves implementing a Water Meter Replacement Project by (1) improving efficiency by providing customers with a single meter reading platform and (2) promoting water conservation by providing customers with in-home monitoring devices. Because of extreme winter temperatures that can reach −60° F., the City requires that water meters be installed inside heated structures. Moreover, the in-home monitoring feature strongly promotes water conservation through the early detection and remediation of leaks. The City has used residential water meters supplied by Badger Meter, Inc. since the 1990s. In 2007, the City began replacing the heads on previously installed water meters with water meter heads containing a new transmitting technology, also from Badger Meter, Inc. The replacement Badger water meter head transmits a radio signal that can only be read by Badger Meter licensed meter reading technology including the in-home water meter monitoring units which are the subject of this waiver request. The City has completed the installation of approximately 425 of these meters, with the cost of procuring and installing the remaining approximately 100 replacement meters to be supported by this ARRA assistance agreement.

An inquiry by EPA's national contractor confirmed that no other electronic monitoring device is compatible with the Badger meter transmitter system. Based on available information, it is unlikely that another in-home meter monitoring device that is not licensed by Badger Meter, Inc. would function with the City's existing meter configuration. Use of another meter monitoring system would thus likely require replacement of the existing 425 meters and transmitters.

EPA finds these considerations as stated by the City provide ample functional justification for their specification of these meters, particularly because the use of meters with the specified features is required for their effective performance in the respects required by the City. Further, as the City initiated its procurement and installation of these meters in 2007, well before the enactment of ARRA, the decision to do so was clearly not an attempt to avoid application of the Buy American provisions of ARRA. Therefore, the City's specifications for the particular Badger Meter model and features were justified.

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 “satisfactory quality ” as the quality of iron, steel or the relevant manufactured good as specified in the project plans and design. The City has provided information to the EPA representing that there are currently no domestic manufacturers of the in-home water meter monitors that meet the project specification requirements. Based on additional research by EPA's consulting contractor (Cadmus), and to the best of the Region's knowledge at this time, there does not appear to be any other manufacturers capable of meeting the City's specifications.

Furthermore, the purpose of the ARRA provisions was to stimulate economic recovery by funding current infrastructure construction, not to delay projects that are already shovel ready by requiring entities, like the City, to revise their design and potentially choose a more costly and less effective project. The imposition of ARRA Buy American requirements on such projects eligible for DWSRF 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 the most fundamental economic purposes of ARRA; to create or retain jobs.

The Drinking Water Unit has reviewed this waiver request and has determined that the supporting documentation provided by the City is sufficient to meet the following 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                           ( print page 8065)                        quantities and of a satisfactory quality in order to meet the City's design specifications. 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 City is hereby granted a waiver from the Buy American requirements of Section 1605(a) of Public Law 111-5 for the purc hase ORION ® Water Meter Monitor with Leak Detection Indicator in-home water meter monitors manufactured in Malaysia by Escatech, Inc., under license from Badger Meter, Inc., located in Milwaukee, Wisconsin as specified in the City's request of November 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: P.L. 111-5, section 1605.

Issued on: February 11, 2010.

Michelle L. Pirzadeh,

Acting Regional Administrator, EPA, Region 10.

[FR Doc. 2010-3525 Filed 2-22-10; 8:45 am]

BILLING CODE 6560-50-P