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###### Environmental Protection Agency

          - [FRL-9119-1]

# AGENCY:

Environmental Protection Agency (EPA).

# ACTION:

Notice.

# SUMMARY:

The Environmental Protection Agency (EPA) is hereby granting a waiver of the Buy American requirements of ARRA Section 1605 under the authority of Section 1605(b)(1) [applying the Buy American provision would be inconsistent with the public interest] to the Inland Empire Utilities Agency (“IEUA”) for the purchase of foreign data collection transducers. 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 IEUA's Rancho Cucamonga groundwater recharge project will include the purchase of three transducers with associated hardware manufactured by Solinst in Canada, for monitoring in two recharge basins. Beginning in about 2005 (prior to the enactment of ARRA), the IEUA started procuring Solinst transducers, and they developed standard training and maintenance procedures for using the Solinst transducers. They currently use approximately 20 Solinst transducers at eight recharge basins. The IEUA submitted a memorandum dated January 21, 2010, explaining the basis in performance characteristics for the pre-ARRA selection of Solinst transducers, and explaining the IEUA's prior decision to make Solinst transducers their standard transducer for this type of application. This pre-ARRA selection of a product on which to standardize was undertaken to best enable the IEUA to comply with water quality permit requirements for recharged water imposed by State regulatory agencies. The procurement of transducers for the IEUA's ARRA project is subject to ARRA section 1605 requirements, but IEUA has requested a waiver of these requirements as they pertain to the transducers, because the use of non-standard transducers would detrimentally affect performance, operation and maintenance of the recharge project. Based on review of the information provided, EPA has concluded a waiver of the Buy American provision is justified pursuant to Section 1605(b)(1) [applying the Buy American provision would be inconsistent with the public interest]. The Assistant Administrator of the Office of Administration and Resources Management has concurred with this decision to make an exception to Section 1605 of ARRA. This action permits the IEUA to purchase three transducers manufactured by Solinst, a Canadian company, as specified in its November 3, 2009 request, as amended by its January 21, 2010 memorandum.

# DATES:

*Effective Date:*                         February 10, 2010.                    

# FOR FURTHER INFORMATION CONTACT:

Abimbola Odusoga, Environmental Engineer, Water Division (WTR-4), USEPA Region 9, (415) 972-3437, 75 Hawthorne Street, San Francisco, CA 94105.

# SUPPLEMENTARY INFORMATION:

In accordance with ARRA Sections 1605(c) and 1605(b)(1), the EPA is hereby granting a project waiver of the requirements of Sections 1605(a) of Public Law 111-5, Buy American requirements, to the IEUA, Chino, California, for the purchase of transducers manufactured by Solinst, a Canadian company. EPA has evaluated the IEUA's basis for standardizing to the Solinst transducers. Based on the information provided by the applicant, EPA has determined it is inconsistent with the public interest for the IEUA to pursue the purchase of incompatible domestically manufactured transducers.

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 are 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 if EPA determines (1) applying these requirements would be inconsistent with public the 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.

The IEUA has requested a waiver from the Buy American Provision for the purchase of the foreign made transducers as part of its project to meet the permit and other regulatory requirements of the Santa Ana Regional Water Quality Control Board (RWQCB) and the State Department of Health. According to the IEUA, to recharge recycled water into the Chino Groundwater Basin through the Victoria Basin and San Sevaine Basin No. 5 in Rancho Cucamonga, California, IEUA must comply with discharge requirements issued by the Santa Ana Regional Water Quality Control Board (RWQCB) for recharge. As part of the regulatory requirements set by the RWQCB and the State Department of Public Health, monitoring devices are to be installed to ensure recharged water meets the water quality requirements specified in the permit. In compliance with the permit, the Agency is installing three local monitoring wells and two lysimeter clusters.

Once the monitoring wells are constructed, a device—which is called a transducer—is installed to measure the water level. The IEUA now uses approximately twenty transducers manufactured by Solinst, a Canadian company, to support the data collection for the monitoring wells at eight of the current recharge basins, to meet regulatory requirements and discharge permit conditions.

                    Beginning in April 2005, the IEUA purchased Solinst transducers a few at a time as ground water recharge monitoring wells were contracted to be built, and were individually installed in the monitoring wells over the past several years as the wells were                           ( print page 8944)                        constructed. Thus, over this time period prior to the enactment of ARRA, the IEUA standardized its use of the Solinst transducers. At the time of the initial transducer procurements, the IEUA concluded the Solinst transducers had superior durability and more efficient data output compared to the domestically-manufactured transducers. Solinst transducers have metal connections that the IEUA determined at that time to be more robust and durable than the plastic connections of the U.S.-made product, because the plastic connections tend to strip if sand or grit gets inside the threading. The IEUA also determined the Solinst product provides a consistent data file so that data reduction will not have different formats, and require different steps and different software. Thus, data manipulation can be streamlined and semi-automated. Fewer components are required for installation of the Solinst transducers, which reduces the costs for labor and equipment. Also, since this transducer has become the IEUA's standard, staff has been trained on how to use and maintain this particular equipment and software. If another type of transducer was utilized for the three monitoring wells being installed for this project, there would be approximately $10,000 a year in additional costs for labor and training, as well as additional capital costs for equipment due to the much higher cost of the domestic-made product.                

EPA finds these considerations as stated by IEUA provide ample functional justification for standardization, particularly because the use of a functionally effective and reliable set of transducers is integral to compliance with State-imposed regulatory requirements. Furthermore, as the IEUA's decision to standardize on the Solinst transducers took place years before ARRA was enacted, that decision was clearly not an attempt to avoid application of the Buy American provisions of ARRA. If the mandate of section 1605(a) was applied here to require the IEUA to use the domestically-manufactured good under these circumstances, it would either force the IEUA to use two different and incompatible types of equipment for the same purpose, or alternatively to resolve the incompatibility by in effect requiring them to buy only the American-made product for their entire system. It is not in the public interest to require the IEUA either to bear the duplicative (or more) life-cycle costs for two incompatible types of goods, or to replace their twenty pre-ARRA Solinst transducers with the domestic product, and thereby to extend the scope of the ARRA Buy American provision far beyond the procurement of three transducers for an ARRA-funded project.

The purpose of the ARRA is to stimulate economic recovery by funding current infrastructure construction, not to delay projects that are already “shovel ready” by requiring SRF eligible recipients such as the IEUA to revise their design standards and specifications, or to impair the efficient operation of project facilities thereafter. The imposition of ARRA Buy American requirements in this case would result in unreasonable delay for this project, and an unjustifiable burden to the IEUA, in the form of wasteful and duplicative life-cycle costs in the future, as well as problematic performance of its recharge well monitoring system due to incompatible transducers. Both results would directly conflict with fundamental economic purposes of ARRA, to create or retain jobs, and to build recovery by investments in effective infrastructure.

The information provided is sufficient to meet the following criteria listed under Section 1605(b)(1) of the ARRA, OMB's regulations at 2 CFR 176.60-176.170, and in the April 28, 2009 EPA memorandum for implementation of ARRA Buy American provisions of Public Law 111-5. Applying the Buy American requirements of ARRA would be inconsistent with the public interest.

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 application of the Buy American requirements would be inconsistent with the public interest, the IEUA 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 purchase of the specified Solinst transducers as documented in the IEUA's waiver request submittal dated January 21, 2010. This supplementary information constitutes the detailed written justification required by Section 1605(c) for waivers based on a finding under subsection (b)(1).

Authority:Public Law 111-5, section 1605.

Dated: February 10, 2010.

Jared Blumenfeld,

Regional Administrator, EPA Pacific Southwest Region.

[FR Doc. 2010-4073 Filed 2-25-10; 8:45 am]

BILLING CODE 6560-50-P