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###### Environmental Protection Agency

          - [FRL-8962-7]

# AGENCY:

Environmental Protection Agency (EPA).

# ACTION:

Notice.

# 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 City of Salem, New Jersey (the City), for the purchase of a specific Canadian-manufactured membrane filtration system (ZeeWeed® 500). The ZeeWeed® 500 Immersed Ultra-filtration Membranes are manufactured outside of the United States by GE Water & Processes Technologies (GEW&PT), in Canada. The design and specifications of the City's proposed new Surface Water Treatment Plant were based on the performance and characteristics of the ZeeWeed® 500 membrane system, following pilot testing conducted from March through August 2007, which demonstrated that the equipment worked very well in removing total organic carbon, as well as other contaminants; the successful pilot testing of surface treatment plant technologies is a prerequisite to obtaining a construction permit from the New Jersey Department of Environmental Protection (NJDEP). The Acting Regional Administrator is making this determination based on the review and recommendations of the State Revolving Fund Program Team. The City has provided sufficient documentation to support its 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 ZeeWeed® 500 Immersed Ultra-filtration Membranes for the proposed project being implemented by the City of Salem, New Jersey.

# DATES:

*Effective Date:*                         August 27, 2009.                    

# FOR FURTHER INFORMATION CONTACT:

Alicia Suárez, Environmental Engineer, (212) 637-3851, State Revolving Fund Program Team, Division of Environmental Planning and Protection, U.S. EPA, 290 Broadway, New York, NY 10007.

# SUPPLEMENTARY INFORMATION:

In accordance with ARRA Section 1605(c) and pursuant to Section 1605(b)(2) of Public Law 111-5, Buy American requirements, the EPA hereby provides notice that it is granting a project waiver to the City for the acquisition of ZeeWeed® 500 Immersed Ultra-filtration Membranes manufactured in Canada by GEW&PT.

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, unless a waiver is provided to the recipient by 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 City proposes to replace its existing surface water treatment plant because the current plant, constructed in 1974, is unlikely to be able to provide water that complies with the Stage II Disinfectants and Disinfection Byproducts Rule or appropriate log removal of microorganisms. The use of the ZeeWeed® 500 membrane system is based on a stated need for immersed ultra-filtration membranes that have a reinforced hollow fiber membrane with a very high tensile strength and a high solids tolerance that is necessary for direct filtration after enhanced coagulation without clarification. The ZeeWeed® 500 Immersed Ultra-filtration Membranes were described by the City as meeting these specifications.

The City has stated that all surface treatment plant technologies must be piloted in New Jersey in order to receive a construction permit from the NJDEP. Successful pilot testing prior to NJDEP approval of a construction permit ensures that the completed facility will be in compliance with the Stage II Disinfectants and Disinfection Byproducts Rule. The pilot testing results of the ZeeWeed® 500 membranes, conducted from March through August 2007, demonstrated that the equipment worked very well in removing total organic carbon, as well as other contaminants, and that the design of the new water treatment plan was based on the ZeeWeed® 500 ultra filtration membrane system. The City has provided information to the EPA representing that GEW&PT, manufacturer of the ZeeWeed® 500, is the only company capable of supplying a membrane system that meets the criteria of an immersed, reinforced, hollow fiber ultra filtration system that does not require clarification prior to filtration. The City's submission clearly articulates entirely functional reasons for its technical specifications, and has provided sufficient documentation that the relevant manufactured goods are not produced in the United States in sufficient and reasonably available quantity and of a satisfactory quality to meet its technical specifications.

                    The April 28, 2009, EPA Headquarters Memorandum, “Implementation of Buy American provisions of Public Law 111-5, the `American Recovery and Reinvestment Act of 2009,' ” defines:                     *reasonably available quantity*                     as “the quantity of iron, steel, or the 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,” and                     *satisfactory quality*                     as “the quality of iron, steel, or the relevant manufactured good as specified in the project plans and designs.”                

Based on additional research conducted by the State Revolving Fund Program Team of the Division of Environmental Planning and Protection and to the best of the Region's knowledge at the time of the review, there does not appear to be other membrane equipment that meets the City's exact technical specifications.

                    Furthermore, 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,                           ( print page 48739)                        such as the City, to begin a new pilot study with an alternate membrane, revise plans and specifications, and apply for a new construction permit from the NJDEP. The City has stated that if the City were subject to the Buy American provision, the project would be delayed for at least one year. The imposition of ARRA Buy American requirements on such projects otherwise eligible for State Revolving Fund 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 fundamental purpose of the ARRA, which is to preserve and create jobs and promote economic recovery.                

The State Revolving Fund Program Team has reviewed this waiver request and has determined that the supporting documentation provided by the City is sufficient to meet the criteria listed under Section 1605(b), OMB's regulation at 2 CFR 176.100, and in the EPA Headquarters April 28, 2009, Memorandum, “Implementation of Buy American provisions of Public Law 111-5, the `American Recovery and Reinvestment Act of 2009':” 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 quantities and of a satisfactory quality in order to meet the City's technical specifications, a waiver from the Buy American requirement is justified.

The Administrator's 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 of Salem is hereby granted a waiver from the Buy American requirements of Section 1605(a) of Public Law 111-5 for the purchase of a ZeeWeed® 500 ultra filtration membrane system using ARRA funds as specified in the City's request of June 5, 2009, as supplemented on June 16, 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: August 27, 2009.

Barbara Finazzo,

Acting Regional Administrator, Region 2.

[FR Doc. E9-23080 Filed 9-23-09; 8:45 am]

BILLING CODE 6560-50-P