[Federal Register Volume 75, Number 88 (Friday, May 7, 2010)]
[Notices]
[Pages 25244-25246]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-10911]


-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

[FRL-9145-4]


Notice of a Project Waiver of Section 1605 (Buy American 
Requirement) of the American Recovery and Reinvestment Act of 2009 
(ARRA) to Warren County, OH (Warren County)

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 of a satisfactory quality] to Warren County for the purchase of 
a Trojan UV 4000 Plus medium-pressure, high-intensity ultraviolet 
disinfection system to treat effluent from the Lower Little Miami River 
Wastewater Treatment Plant. 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. This disinfection system, which is supplied by Trojan 
Technologies of London, Ontario, is manufactured in Canada and meets

[[Page 25245]]

Warren County's performance specifications and requirements. The Acting 
Regional Administrator is making this determination based on the review 
and recommendations of EPA Region 5's Water Division. Warren County 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 a Trojan UV 4000 Plus medium-
pressure, high-intensity ultraviolet disinfection system for the Lower 
Little Miami River Wastewater Treatment Plant that may otherwise be 
prohibited under Section 1605(a) of the ARRA.

DATES: Effective Date: January 26, 2010.

FOR FURTHER INFORMATION CONTACT: Andrew Lausted, SRF Program Manager 
(312) 886-0189, or Puja Lakhani, Office of Regional Counsel, (312) 353-
3190, U.S. EPA Region 5, 77 W. Jackson Blvd., Chicago, IL 60604.

SUPPLEMENTARY INFORMATION: In accordance with ARRA section 1605(c) and 
pursuant to section 1605(b)(2) of Public Law 111-5, the Buy American 
requirements, EPA hereby provides notice that it is granting a project 
waiver to Warren County for the acquisition of a Trojan 4000 Plus 
medium-pressure, high-intensity ultraviolet disinfection system that is 
manufactured in Canada.
    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.
    These manufactured goods will provide wastewater effluent 
disinfection for Warren County's Lower Little Miami River Wastewater 
Treatment Plant. Early in the design process, the County decided to use 
a UV system that utilizes a medium pressure UV lamp. Warren County's 
plant is relatively large and a medium pressure UV system uses many 
fewer UV lamps than a low pressure system, and consequently has reduced 
operation and maintenance costs and requires a much smaller building to 
house the UV system.
    While there are two companies that manufacture medium pressure UV 
systems that are marketed in the United States for use in wastewater 
disinfection, each manufacturer implements the technology differently 
which generally requires a completely different facility layout. Based 
on cost and technical concerns, the County decided in 2008--prior to 
the enactment of ARRA--to finalize plant design using the Trojan 4000 
Plus medium-pressure, high intensity ultraviolet disinfection system 
with an open-channel configuration that will meet the capacity 
requirements of the project.
    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','' 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.''
    Here, the applicant met the requirements specified for the 
availability inquiry by conducting an extensive investigation into all 
possible sources for medium-pressure, high intensity ultraviolet 
disinfection systems that can meet the capacity requirements of the 
project. The one potential alternative to the Trojan 4000 Plus system, 
an American-manufactured, medium-pressure ultraviolet disinfection 
system for wastewater, was a closed-vessel, in-pipe system rather than 
an open-channel system. Use of this alternative would require a 
substantial and costly redesign of the disinfection facility from the 
project specifications as finalized in 2008. Based on the information 
provided to EPA and to the best of our knowledge at this time, because 
the Trojan 4000 Plus is the only system that can meet the design 
specification for an open-channel medium-pressure high-intensity UV 
disinfection system, EPA believes that there is no domestic product of 
satisfactory quality available to meet this justified specification.
    The purpose of the ARRA is to stimulate economic recovery in part 
by funding current infrastructure construction, and not to delay 
projects that are ``shovel ready'' by requiring communities such as 
Warren County to revise substantially their project design and 
specifications, start the bidding process again, and potentially choose 
a more costly, less efficient project. In this situation, the 
imposition of ARRA Buy American requirements on a project 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 delay project implementation is in direct 
conflict with a fundamental economic purpose of the ARRA, which is to 
create or retain jobs.
    Based on the submitted waiver request, EPA's national contractor 
prepared a technical assessment report dated November 3, 2009. The 
report determined that the waiver request submittal was complete, that 
adequate technical information was provided, and that there were no 
significant weaknesses in the justification that was provided. The 
report confirmed the waiver applicant's claim that there are no 
comparable domestic products that can meet the design specifications 
for the project. Therefore, based on the information provided to EPA 
and to the best of our knowledge at this time, the medium-pressure, 
high-intensity open-channel configuration ultraviolet disinfection 
system necessary for this project is not manufactured in the United 
States, and no other U.S. manufactured product can meet Warren County's 
project performance specifications and requirements.
    The State and Tribal Programs Branch has reviewed this waiver 
request and has determined that the supporting documentation provided 
by Warren County is sufficient to meet the criteria listed under 
Section 1605(b) of the ARRA and in the April 28, 2009, ``Implementation 
of Buy American provisions of Public Law 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 project waiver is the authorization provided in Section 
1605(b)(2) of the ARRA. Due to the lack of production of this item in 
the United States in sufficient and reasonably available quantities and 
of a satisfactory quality to meet Warren County's project performance 
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 the ARRA within the geographic boundaries of their 
respective regions and with respect to requests by

[[Page 25246]]

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, Warren County is hereby granted a waiver from the Buy American 
requirements of Section 1605(a) of Public Law 111-5 for the purchase of 
a Trojan 4000 Plus medium-pressure, high-intensity ultraviolet 
disinfection system using ARRA funds as specified in the community's 
request of October 29, 2009. This supplementary information constitutes 
the detailed written justification required by Section 1605(c) for 
waivers ``based on a finding under subsection (b).''

    Authority:  Pub. L. 111-5, section 1605.

    Dated: January 26, 2010.
Walter W. Kovalick,
Acting Regional Administrator, Region 5.
[FR Doc. 2010-10911 Filed 5-6-10; 8:45 am]
BILLING CODE 6560-50-P