[Federal Register Volume 75, Number 43 (Friday, March 5, 2010)]
[Notices]
[Pages 10258-10259]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-4053]


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ENVIRONMENTAL PROTECTION AGENCY

[FRL-9118-9]


Notice of a Project Waiver of Section 1605: (Buy American 
Requirement) of the American Recovery and Reinvestment Act of 2009 
(ARRA) to the Inland Empire Utilities Agency

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(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 Inland Empire Utilities Agency (IEUA), a 
Clean Water State Revolving Fund/ARRA loan recipient, for the purchase 
of Air Release Vacuum (ARV) Valves manufactured by A.R.I. in Israel, 
for Project<greek-i> C-06-5176-110 and C-06-5176-130 funded by the 
California CWSRF ARRA Loan<greek-i> 08-835-550-1 and 08-850-550-1. The 
IEUA indicates that the design for the pipeline project at issue 
includes A.R.I. valves, which are the standard air relief structures 
used within the regional pipeline system, and that currently there is 
not a comparable domestic equivalent that meets the IEUA 
specifications. 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 with this 
decision to make an exception under section 1605(b)(2) of ARRA.

DATES: Effective Date: February 10, 2010.

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 or 
Joshua Amaris, Life Scientist, Water Division, Infrastructure Office 
(WTR-4), (415) 972-3597, U.S. EPA Region 9, 75 Hawthorne, San 
Francisco, CA 94105.

SUPPLEMENTARY INFORMATION: In accordance with ARRA Sections 1605(c) and 
1605(b)(2), EPA hereby provides notice it is granting a project waiver 
of the requirements of Section 1605(a) of Public Law 111-5, Buy 
American requirements, to the IEUA for the acquisition of the ARV 
valves manufactured in Israel by A.R.I. The head of each federal agency 
is authorized to issue project waivers pursuant to Section 1605(b) 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(b), a waiver from this requirement 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 IEUA operates to provide drinking water and waste water 
treatment services to municipalities in the Chino Basin. The IEUA is 
installing the ARV valves as the air relief structures for the 1630 E. 
Recycled Water Pipeline and the 1299 E. Recycled Water Pipeline 
(project <greek-i>5176-110), which consists of approximately 13,000 
linear feet of 36-inch diameter pipeline. The project specifications 
provided by the applicant state that acceptable products are A.R.I. 
Flow Control Accessories, Ltd. (Model D-060) or an approved equal. The 
functional justification for these specifications advanced by the IEUA 
was that the IEUA had, in years prior to the enactment of ARRA, made 
the ARI valves their standard air relief structures used within the 
regional pipeline system based on the IEUA's determination that these 
valves had a superior design, functionality, and ease of maintenance. 
Specifically:
    <bullet> ARI combination valves (D-060's) have the air release on 
the top of the valve, whereas alternative valves have the air release 
on the side. A side release creates an internal air pocket on the 
valve, which allows the rubber seal for the vacuum component to dry out 
and leak over time.
    <bullet> The 316SS float for the ARI vacuum component stops against 
a 316SS ring. The alternative valves have a float that stops against a 
flat rubber seal on the top of the valve, and constant pounding during 
closure tends to crack the seal and cause leaks.
    <bullet> The ARI valves are half the weight and size of the 
alternative valves, which

[[Page 10259]]

makes installation and maintenance easier. Also, as the valves are 
smaller, the enclosures for the valves are less expensive.
    The consequences of finding the IEUA's specifications not justified 
would include the following:
    <bullet> Additional design costs would be incurred to change all 
ARV valves, including re-calculating the size of the valves based on 
the competitor's design criteria, modifying valve and enclosure 
details, and modifying the pipeline profiles to accommodate larger 
valves. Alternative ARV valves that must be buried would require 
lowering the pipeline depth several feet on each side of the valves to 
accommodate a deeper valve vault.
    <bullet> Construction costs would be higher due to the increase in 
valve sizes, larger enclosures, and a deeper pipeline. The pricing 
through the change order process would be significantly higher than 
prices for a competitive bid. The cost for the material and 
installation of the valves is approximately $198,708. If the ARI valves 
are replaced with alternative valves, the estimated cost for the 
material and installation would be approximately $100,000 more.
    <bullet> IEUA staff would have to be trained on the different types 
of valves installed and additional spare parts would need to be ordered 
and stocked. Since the IEUA has moved forward with implementing the ARI 
valves as the standard air relief structure, all valves that do not 
meet this standard would need to be replaced.
    Use of alternative valves that do not meet the IEUA's 
specifications would thus require a substantial redesign of, delay in, 
and higher costs for the project. Because of the IEUA's current, 
extensive installations of ARI valves, the use of alternative, 
incompatible valves would impose continuing high costs into the future 
to change spare parts and staff training in operations and maintenance, 
as well as in inferior performance of the alternative valves. 
Procurement of alternative valves would be inconsistent with basic 
principles of sustainable infrastructure and effective asset management 
that EPA has consistently promoted. For all these reasons, EPA finds 
that the IEUA's specifications for these ARV valves were justified.
    EPA also evaluated the project specifications to assess the IEUA's 
claim there are no known American manufacturers who can provide ARV 
valves of satisfactory quality to meet its technical specifications. 
Five domestic manufacturers of ARV valves were identified by the 
applicant. EPA's national contractor contacted the domestic 
manufacturers and inquired as to whether their products could meet the 
IEUA's specifications. Four of the five manufacturers responded. All 
four manufacturers indicated that they could provide similar products, 
but could not meet all of the IEUA's specifications, particularly with 
regard to manufacturing materials and product design.
    Based on these findings, EPA concludes the IEUA's claim that there 
are no known American manufacturers of ARV valves meeting the IEUA's 
specifications is supported by the available information.
    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 IEUA's 
waiver request 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 to conclude the relevant manufactured 
goods are not produced in the United States of a satisfactory quality 
to meet its technical specifications. The IEUA 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 ARV valves manufactured in the United States that have 
equivalent product specifications. The IEUA has also provided 
certification indicating there are no systems of comparable quality 
available from a domestic manufacturer to meet its specifications. 
Based on additional inquiry by EPA's national contractor, there do not 
appear to be other ARV valves available to meet the IEUA'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 IEUA, 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. 
Further delay of this project would contravene the most fundamental 
economic purposes of the ARRA: To create or preserve jobs in the United 
States.
    The EPA Region 9 Water Division, 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 IEUA 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 P.L. 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 IEUA is hereby 
granted a waiver from the Buy American requirements of Sections 1605(a) 
of Public Law 111-5, for the purchase of the A.R.I. valves, specified 
in the IEUA's request of January 21, 2010. 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: February 10, 2010.
Jared Blumenfeld,
Regional Administrator, EPA Pacific Southwest Region.
[FR Doc. 2010-4053 Filed 3-4-10; 8:45 am]
BILLING CODE 6560-50-P