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###### Environmental Protection Agency

          - [FRL-9195-1]

# AGENCY:

Environmental Protection Agency (EPA).

# ACTION:

Notice.

# 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 Town of Sturbridge, Massachusetts (“Town”) for the purchase of a foreign manufactured submersible mixer to be installed in a new septage storage tank as part of a proposed wastewater treatment plant upgrade. 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. Based upon information submitted by Sturbridge and its consulting engineer, it has been determined that there are currently no domestic manufactured submersible mixers available to meet its proposed technical project specifications. The Regional Administrator is making this determination based on the review and recommendations of the Municipal Assistance Unit. 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 foreign manufactured submersible mixer by the Town of Sturbridge, Massachusetts, as specified in its May 25, 2010 request.

# DATES:

*Effective Date:*                         August 19, 2010.                    

# FOR FURTHER INFORMATION CONTACT:

David Chin, Environmental Engineer, (617) 918-1764, or Katie Connors, Environmental Engineer, (617) 918-1658, Municipal Assistance Unit (CMU), Office of Ecosystem Protection (OEP), U.S. EPA, 5 Post Office Square, Suite 100, Boston, MA 02109-3912.

# SUPPLEMENTARY INFORMATION:

                    In accordance with ARRA Section 1605(b)(2) and 1605(c), the EPA hereby provides notice that it is granting a project waiver of the requirements of                           ( print page 53302)                        Section 1605(a) of Public Law 111-5, Buy American requirements, to the Town of Sturbridge, Massachusetts for the purchase of a non-domestic manufactured submersible mixer, the Landia Model POPR-1 made in Denmark, to be installed in a new septage storage tank to meet its technical design specifications as part of its proposed wastewater treatment plant upgrade.                

EPA has determined that the Town's waiver request is late, but EPA will evaluate the request as if it were timely made even though the request was made after the construction contract was signed. Consistent with the direction of the OMB Guidance at 2 CFR 176.120, EPA will generally regard waiver requests with respect to components that were specified in the bid solicitation or in a general/primary construction contract as “late” if submitted after the contract date. However, in this case EPA has determined that the Town's request, though made after the date that the contract was signed, can be evaluated as timely because a domestic submersible mixer meeting project specifications was found to be unavailable by the contractor only after the shop drawings had become available, which was after the contract date. The need for a waiver was not determined until after the contractor had completed its review and had confirmed that there were no domestic submersible mixers available to meet project specifications. Accordingly, EPA will evaluate the request as if it were timely made.

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 a public works project 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 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.

The Town of Sturbridge is proposing a major upgrade to its existing secondary treatment facility. It will include the construction of a new headworks building; renovations to the existing process and filter buildings; renovations to existing storage tanks and the construction of new storage tanks; construction of new yard piping and conduit systems; and other site improvements. The construction will take place while the existing treatment facility remains fully operational. The estimated cost of the entire wastewater treatment facility upgrade, necessary to meet more stringent effluent limits in the future and to accommodate expansion of the municipal sewer system, is approximately $16M.

According to the Town's design engineer, the corrosive nature of the septage and landfill leachate to be stored in the new septage storage tank requires that the submersible mixer be constructed entirely of stainless steel. Other prominent specifications require that the mixer be equipped with a single planetary gear box with gear reduction capability to provide increased longevity and efficiency for the submersible mixer, and require that the mixer shaft be equipped with a motor shaft sealing system comprised of three seals. Excerpts from the submersible mixer specifications document provided by the Town's design engineer include the following:

(1) Each mixer shall be of the integral-gear, close coupled, submersible type with a maximum propeller speed of 390 rpm. All components of the mixer, including the motor and gearbox, shall be manufactured of solid AISI 316 acid-proof stainless steel and provide continuous underwater operation while the mixer blades are completely submerged. No stainless steel jackets that cover a cast iron housing shall be allowed.

(2) Each mixer shall be provided with a grease chamber in the propeller hub for the shaft sealing system, and a separate oil chamber for the gearbox and mechanical seals. Drains and inspection plugs shall be provided with positive anti-leak seals and shall be accessible from the outside.

(3) Each mixer shall be provided with a sealing system consisting of three seals separating the various parts. The outer seal in the propeller hub shall be a lip seal with a stainless steel spring, sealing the propeller shaft and hub grease chamber from the mixed media, running on a stainless steel exchangeable wear bushing.

(4) The gearbox shall be a one-stage planetary reduction gear, equipped with high precision, low-loaded gears designed for infinite life and shall have a service factor of not less than 1.5.

The Town provided information on four domestic manufacturers of submersible mixers and has determined that there are currently no domestic manufacturers able to provide a submersible mixer that can meet all of the project technical specifications. The Town also identified a foreign manufacturer, Landia, Inc., in Denmark, which produces a submersible mixer, Landia Model POPR-1. According to the design engineer for the Town, it is the only submersible mixer that is equipped with a gear reduction capability and is constructed entirely of stainless steel-wetted parts meeting all project specifications. The Town has requested a waiver for the Landia submersible mixer, Model POPR-1, to be installed in the new septage storage tank.

An independent evaluation conducted by EPA's technical review team supports and confirms the Town' claim that there are currently no domestic manufacturers that can provide a submersible mixer to meet project specifications. Research and follow-up communications between EPA's national contractor and the four identified domestic manufacturers confirmed that three do not manufacture gear driven submersible mixers, and the fourth does not produce entirely stainless steel mixers. Additional research conducted by EPA's national contractor identified another domestic submersible mixer manufacturer. However, it is not able to provide a submersible mixer that meets project specifications. While this manufacturer claims that it plans to produce a submersible mixer to meet project specifications by the latter part of 2010, it does not currently do so.

                    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 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.” 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 or curtail entirely projects that are “shovel ready” by requiring potential SRF eligible recipients, such as the Town of Sturbridge, to revise their design standards and specifications. To curtail entirely this construction would directly                           ( print page 53303)                        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 Sturbridge establishes both a proper basis to specify a particular manufactured good, and that the domestic manufactured goods that are currently available do not 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 temporary authority to issue exceptions to Section 1605 of the 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 Town of Sturbridge, Massachusetts 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 a foreign manufactured submersible mixer in Sturbridge's waiver request submittal dated May 25, 2010. 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: August 19, 2010.

Ira W. Leighton,

Acting Regional Administrator, EPA Region 1—New England.

[FR Doc. 2010-21676 Filed 8-30-10; 8:45 am]

BILLING CODE 6560-50-P