[Federal Register Volume 74, Number 153 (Tuesday, August 11, 2009)]
[Notices]
[Pages 40186-40188]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-19194]


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ENVIRONMENTAL PROTECTION AGENCY

[FRL-8942-9]


Notice of a Regional Project Waiver of Section 1605 (Buy American 
requirement) of the American Recovery and Reinvestment Act of 2009 
(ARRA) to the Hooksett, New Hampshire Sewer Commission

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice.

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SUMMARY: The EPA is hereby granting a waiver of the Buy America 
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 Hooksett, New Hampshire Sewer Commission (``HSC'') for 
the purchase of a foreign manufactured polyethylene Biofilm chip media. 
HSC's proposed upgrade of its wastewater treatment facility upgrade 
will utilize an Integrated Fixed Film Activated Sludge (IFAS) process, 
in which the AnoxKaldnes<SUP>TM</SUP> Biochip-M IFAS media manufactured 
in Germany by Kruger, Inc. will meet the HSC's design specifications. 
This is a project specific waiver and only applies to the use of the 
identified 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 circumstance. The Acting 
Regional Administrator is making this determination based on the review 
and recommendations of the Municipal Assistance Unit. The HSC through 
its design engineer has provided sufficient

[[Page 40187]]

documentation to support their request. The Assistant Administrator of 
the Office of Administration and Resources Management has concurred on 
this decision to make an exception to Section 1605 of ARRA. This action 
permits the purchase of the AnoxKaldnes<SUP>TM</SUP> Biochip-M IFAS 
media manufactured by Kruger, Inc. by the HSC, as specified in its May 
19, 2009 waiver request, to upgrade its wastewater treatment facility 
in Hooksett, New Hampshire.

DATES: Effective Date: July 29, 2009.

FOR FURTHER INFORMATION CONTACT: Katie Connors, Environmental Engineer, 
(617) 918-1658, or David Chin, Environmental Engineer, (617) 918-1764, 
Municipal Assistance Unit (CMU), Office of Ecosystem Protection (OEP), 
U.S. EPA, One Congress Street, CMU, Boston, MA 02114.

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 Sections 1605(b)(2) of Public Law 111-5, Buy American 
requirements, to the Hooksett, New Hampshire Sewer Commission HSC) for 
the purchase of the AnoxKaldnes<SUP>TM</SUP> Biochip-M IFAS media 
manufactured by Kruger, Inc. in Germany, to meet the HSC's technical 
design specifications for its wastewater treatment plant upgrade 
project. The process equipment (including installation) is estimated to 
be $1.67M, with a total estimated project cost of $6.2M.
    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 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 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.
    The Hooksett, New Hampshire Sewer Commission (``HSC''), has 
requested through its design engineer a waiver from the Buy American 
Provision for the purchase of a foreign manufactured polyethylene 
Biofilm chip carrier element (media), as part of HSC's proposed 
wastewater treatment facility upgrade utilizing an Integrated Fixed 
Film Activated Sludge (IFAS) process.
    According to HSC's design engineer, the rationale behind HSC's 
design and performance specifications utilizing the IFAS process is to 
increase its existing plant flow from 1.1 MGD to 2.2 MGD without 
requiring the construction of additional in-ground reinforced concrete 
aeration tanks. This process will also allow HSC to meet the current 
NPDES discharge permit loading requirements of 30 mg/L for both 
Biological Oxygen Demand (BOD) and Total Suspended Solids (TSS), as 
well as newly established ammonia limits.
    The specified media greatly increases the fixed film surface area 
for biomass growth over conventional activated sludge processes 
resulting in additional organic loading capability. According to its 
manufacturer, Kruger, Inc., the AnoxKaldnes<SUP>TM</SUP> Biochip-M IFAS 
media has a very high specific surface area, which makes it possible 
for the HSC to meet new ammonia limits at the Hooksett Wastewater 
Treatment Plant without having to construct two additional aeration 
tanks.
    The HSC has requested a waiver of the ARRA Buy American provisions 
on the basis of unavailability of a domestic manufactured product that 
will meet the design specifications for this project, based on the 
following circumstances:
    1. Each AnoxKaldnes<SUP>TM</SUP> Biofilm chip has an effective 
surface area of 366 ft \2\/ft \3\. To achieve a plant flow of 2.2 MGD 
and to meet the current permit limits without constructing new aeration 
tanks, 6,316,263 ft \2\ of fixed film surface area is required for 
attachment of the biomass. The manufacturer of the 
AnoxKaldnes<SUP>TM</SUP> Biofilm chip, Kruger, Inc., actually has 
another type of media that is manufactured domestically. The U.S. made 
K3 media has an effective surface area of 152 ft \2\/ft \3\ which would 
result in slightly less fixed film surface area, 5,597,233 ft \2\, but 
would require double the aeration tank volume: 64,443 cubic feet as 
opposed to 32,180 cubic feet. Therefore, the use of the domestic K3 
media would result in the construction of two additional aeration 
tanks, which is contrary to the original project premise and would not 
meet project design specifications.
    2. Constructing the additional aeration tanks to accommodate the 
U.S. made K3 media would not only be more costly, but would be 
physically and environmentally challenging due to space limitations, 
topography, the presence of a nearby perennial stream, and the need to 
find a location for a chemical building to be constructed adjacent to 
the existing aeration tanks. Constructing two additional aeration tanks 
would likely require the relocation of the perennial stream, involve 
creating additional compensatory flood plain storage, wetland 
restoration, extensive earthwork on a steep slope, and construction of 
stepped or cascading retaining walls. It would also require additional 
blower capacity, new process piping, slide gates, rapid mixers for 
dispersing chemicals, railings, additional dissolved oxygen analyzers, 
and the modification of a recently constructed influent flow splitter 
box.
    3. Results from an on-site pilot study utilizing the 
AnoxKaldnes<SUP>TM</SUP> Biofilm chip were provided by the HSC design 
engineer. The Biofilm Chip-M media, with an effective surface area of 
366 ft \2\/ft \3\, was pilot tested and demonstrated that this total 
surface area was required to meet the treatment objectives. According 
to the HSC design engineer, the plant will operate near the maximum 
solids loading on the final clarifiers and, therefore, the effective 
surface area cannot be significantly reduced. Furthermore, the IFAS 
tank cannot be filled past the point where the media movement of the 
carrier elements no longer effectively moves within the bulk liquid. 
The fill fraction ranges between 33% to 55%, depending upon the media 
with each manufacturer specifying the maximum fill fraction for their 
media. For the BIOFILM Chip-M, the fill fraction is 52% for the first 
IFAS reactor and 55% for the second IFAS reactor.
    The information provided to EPA by the HSC through its design 
engineer was confirmed through a technical review by EPA's national 
contractor of the submitted documentation. To the best of our knowledge 
at this time, there does not appear to be other IFAS process media 
manufactured in the United States available to meet the HSC's project 
design specifications and performance requirements for its proposed 
wastewater treatment plant upgrade. The applicant has provided a list 
of manufacturers of various polyethylene biofilm media, along with 
effective bulk specific surface area characteristics. The applicant has 
also provided additional information from the pilot testing to justify 
the 55% fill fraction and information on the surface area required to 
increase flow capacity from 1.1 MGD to 2.2 MGD.
    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' '' (``Memorandum''), defines reasonably

[[Page 40188]]

available quantity as ``the quantity of iron, steel, or relevant 
manufactured good that 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 same Memorandum 
defines ``satisfactory quality'' as ``the quality of steel, iron or 
manufactured good specified in the project plans and designs.''
    Furthermore, 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 potential SRF 
eligible recipients such as the HSC to revise their design standards 
and specifications. The imposition of ARRA Buy American requirements in 
this case would result in unreasonable delay for this project. To delay 
this construction would directly conflict with a fundamental economic 
purpose of ARRA, which is to create or retain jobs.
    The Municipal Assistance Unit (CMU) has reviewed this waiver 
request and has determined that the supporting documentation provided 
by the HSC established both a proper basis to specify the particular 
good required and that this manufactured good was not available from a 
producer in the United States able to meet the design specifications 
for the proposed project. The information provided is sufficient to 
meet the following criteria listed under Section 1605(b) of the ARRA 
and in the April 28, 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 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 HSC is hereby 
granted a waiver from the Buy American requirements of Section 1605(a) 
of Public Law 111-5 for the purchase and use of the specified 
polyethylene Biofilm chip carrier element (media) documented in HSC's 
waiver request submittal dated May 19, 2009, for its proposed 
wastewater treatment plant upgrade using ARRA funds. This supplementary 
information constitutes the detailed written justification required by 
Section 1605(c) for waivers based on a finding under subsection (b).

    Authority: Public Law 111-5, section 1605.

    Dated: July 29, 2009.
Ira W. Leighton,
Acting Regional Administrator, Region I, New England.
[FR Doc. E9-19194 Filed 8-10-09; 8:45 am]
BILLING CODE 6560-50-P