[Federal Register Volume 74, Number 175 (Friday, September 11, 2009)]
[Notices]
[Pages 46770-46772]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-21940]


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ENVIRONMENTAL PROTECTION AGENCY

[FRL-8956-1]


Notice of a Project Waiver of Section 1605 (Buy American 
Requirement) of the American Recovery and Reinvestment Act of 2009 
(ARRA) to the Kennebec Water District in Waterville, ME

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 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 Kennebec Water District (KWD) (also known 
as the ``Water District'') in Waterville, Maine for the purchase of

[[Page 46771]]

specific cast iron valve boxes. 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 projects that may wish to use 
the same product must apply for a separate waiver based on project 
specific circumstances. These valve boxes meet KWD's technical 
specifications and requirements, reflecting the Water District's 
operation and maintenance experience with these boxes which are 
currently manufactured in Canada by the Bibby Foundry. The Acting 
Regional Administrator is making this determination based on the review 
and recommendations of the Municipal Assistance Unit. KWD has provided 
sufficient documentation to support its request. The Assistant 
Administrator of the Office of Administration and Resources Management 
has concurred in this decision to make an exception to Section 1605 of 
ARRA. This action permits the purchase of specific cast iron valve 
boxes for the proposed project being implemented by the Water District 
that may otherwise be prohibited under Section 1605(a) of the ARRA.

DATES: Effective Date: September 2, 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) and 
pursuant to Section 1605(b)(2) of Public Law 111-5, Buy American 
requirements, EPA hereby provides notice that it is granting a project 
waiver to the Kennebec Water District (KWD) in Waterville, Maine for 
the acquisition of specific cast iron valve boxes manufactured in 
Canada by the Bibby Foundry. 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 
EPA. A waiver may be provided if EPA determines that (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.
    Some utilities in the Northeast United States, including the KWD, 
have standardized their design specifications based on their operation 
and maintenance experience to utilize a high flange slide riser for 
valve boxes in their collection and distribution systems. The top 
section of the valve box is 36 inches long and has its flange designed 
so that the box is able to move up and down with the pavement surface 
to deal with the deeper frost cover in this area of Maine.
    After completion of the bid phase, the contract supplier for the 
KWD was unable to locate any domestic valve box manufacturers with 
products that met the proposed project specifications. The KWD requires 
22 valve boxes to complete a proposed water main replacement project. 
The cost of the 22 valve boxes is $2,901 and accounts for approximately 
3% of the total value of the iron, steel, and manufactured goods on the 
project. These non-domestic valve boxes are eligible to be covered 
under the national revised de minimis waiver dated July 24, 2009. 
However, since the estimated total cost of all non-domestic materials 
was greater than 5% of the total cost for iron, steel, and manufactured 
goods used and incorporated in the proposed project, the KWD requested 
a project waiver for these specific valve boxes.
    The 36-inch top section length valve box, which the KWD is 
proposing to use, works well for several reasons: (1) The flange is 
high and locked into the pavement so the top riser moves with the 
pavement surface and prevents frost from raising the box above the road 
surface; (2) its longer length of 36'' keeps it more aligned and 
straight, and is better able to contend with the 6 foot frost depth; 
(3) it has the top-flange box support area that is more than double 
that of the no-flange valve box top to help minimize settlement and 
maintain alignment; and (4) it will also support greater traffic loads 
compared to a no-flange valve box top, which will further minimize 
settlement.
    There are valve boxes manufactured domestically. But based on the 
information provided to EPA by the KWD, the domestic manufacturers do 
not have the necessary top section length required. The KWD requires a 
top section length of 36 inches based on its past and current 
operations and maintenance experience. Without the necessary length in 
the top section, extensions would need to be connected together or 
``stacked'' on top of one another. According to the KWD, stacking 
extensions to provide length beyond the standard 26-inch top section 
available through domestic manufacturers makes it difficult to keep the 
box plumb in the long term. There are three joints involved with 
stacking extensions and when they get out of alignment due to road 
settlement, it becomes difficult to insert a long handled ``tee 
wrench'' down into the box over the operating nut to operate the valve 
from ground level.
    If a valve box cannot be opened, or if the operating nut cannot be 
accessed to operate the valve from the ground level, it may require 
replacement of the entire unit, resulting in additional costs to the 
water utility that could have been avoided. Over the past several 
years, the KWD has been replacing many of the older non-functioning 
valve boxes with the newer valve boxes, which meet their design 
specifications. The KWD has standardized this practice in order to 
simplify operation and maintenance and to minimize unnecessary repair 
and replacement costs in the future.
    The April 28, 2009 EPA HQ Memorandum, ``Implementation of Buy 
American provisions of P.L. 111-5, the `American Recovery and 
Reinvestment Act of 2009,' '' defines reasonably available quantity as 
``the quantity of iron, steel, or relevant manufactured good 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.'' Based on the information provided to EPA and to the best 
of our knowledge at this time, there do not appear to be other cast 
iron valve boxes with the top flange manufactured in the United States 
available to meet the Water District's exact technical specifications 
and requirements. The Water District has established a proper basis to 
specify the required cast iron valve boxes with the top flange and 
established that this manufactured good was not available from a 
domestic producer.
    The purpose of the ARRA is to stimulate economic recovery in part 
by funding current infrastructure construction, not to delay projects 
that are ``shovel ready'' by requiring utilities such as the KWD to 
revise their standards and specifications and to start the bidding 
process again. The imposition of ARRA Buy American requirements on such 
projects otherwise eligible for ARRA State Revolving Fund assistance 
would result in unreasonable delay and thus displace the ``shovel 
ready'' status for this project. To further

[[Page 46772]]

delay construction is in direct conflict with a fundamental economic 
purpose of the ARRA, which is to create or retain jobs.
    EPA's national contractor prepared a technical assessment report 
for the Kennebec Water District dated June 25, 2009 on the waiver 
request submitted. The report for the KWD determined that the waiver 
request submittal was complete and that adequate technical information 
was provided. The report also confirmed the waiver applicant's claims 
that there were presently no comparable cast iron valve boxes 
manufactured domestically. The technical review team found that 
domestic manufacturers do produce cast iron valve boxes, but could not 
identify any that offered the top flange product with the necessary top 
section length of 36 inches.
    The Municipal Assistance Unit (CMU) has reviewed this waiver 
request and has determined that the supporting documentation provided 
by the KWD is sufficient to meet the criteria listed under Section 
1605(b), OMB's regulations at 2 CFR 176.60-176.170, and in the April 
28, 2009, ``Implementation of Buy American provisions of P.L. 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 individual 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 quantities and of a satisfactory quality in order 
to meet the Water District's technical specifications and requirements, 
a waiver from the Buy American requirement is justified.
    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 
Kennebec Water District is hereby granted a waiver from the Buy 
American requirements of Section 1605(a) of Public Law 111-5 for the 
purchase of specified cast iron valve boxes using ARRA funds as 
specified in the Water District's requests of June 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:  Public Law 111-5, section 1605

    Dated: September 2, 2009.
Ira W. Leighton,
Acting Regional Administrator, Region I, New England.
[FR Doc. E9-21940 Filed 9-10-09; 8:45 am]
BILLING CODE 6560-50-P