[Federal Register Volume 75, Number 22 (Wednesday, February 3, 2010)]
[Notices]
[Pages 5586-5588]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-2252]


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ENVIRONMENTAL PROTECTION AGENCY

[FRL-9108-8]


Notice of a Regional Project Waiver of Section 1605 (Buy American 
Requirement) of the American Recovery and Reinvestment Act of 2009 
(ARRA) to the West Milford Township Municipal Utilities Authority 
(WMTMUA), New Jersey

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice.

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SUMMARY: The Regional Administrator of EPA Region 2 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 WMTMUA, New Jersey, 
for the purchase of a membrane bio-reactor (MBR) unit that uses flat-
plate membrane cartridges. The WMTMUA's proposed upgrade of its 
Awosting Sewage Treatment Plant to a MBR facility requires utilizing 
flat-plate membrane cartridges. No United States manufacturer produces 
a MBR unit with flat-plate membrane cartridges that meet the 
specifications for the project. The only MBR unit that incorporates the 
flat-plate membrane cartridges and meets the WMTMUA's specifications is 
manufactured in Japan by Kubota. 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 the project 
specific circumstances. The Regional Administrator is making this 
determination based on the review and recommendations of the Region 2 
State Revolving Fund Program Team. The WMTMUA 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 Kubota MBR unit that uses flat-plate MBR 
membrane cartridges for the ARRA-funded project being implemented by 
WMTMUA, New Jersey.

DATES: Effective Date: January 19, 2010.

FOR FURTHER INFORMATION CONTACT: Jane Leu, Environmental Engineer, 
(212) 637-3815, State Revolving Fund

[[Page 5587]]

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 
WMTMUA, New Jersey, for the acquisition of a MBR unit that utilizes 
flat-plate membrane cartridges manufactured in Japan by Kubota, to meet 
the WMTMUA's technical design specifications for its sewage treatment 
plant upgrade project.
    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 WMTMUA has requested a waiver from the Buy American Provision 
for the purchase of a MBR unit that incorporates flat-plate membrane 
cartridges manufactured by Kubota of Japan, as part of WMTMUA's 
proposed upgrade of its Awosting Sewage Treatment Plant to a MBR 
facility. The MBR unit is comprised of flat-plate membrane cartridges, 
membrane blowers, fine screens, and other auxiliary components integral 
to the efficient operation of the wastewater treatment process. The 
rationale behind WMTMUA's design specification requiring flat-plate MBR 
membrane cartridges was based on a comprehensive engineering evaluation 
and assessment of the plate membrane technical data analysis. The 
specifications required that the MBR membranes meet design removal 
standards for conventional pollutants and an anticipated, stringent 
Total Phosphorus effluent limit resulting from a Total Maximum Daily 
Loads (TMDL) for the receiving waters. Another criterion used was the 
demonstrated installation and operation of the MBR technology. During 
the WMTMUA's design research process, information was obtained from 
facility operators at installations of similar size with several years 
of operating experience. No American manufacturer of MBR units had a 
large enough installed base of MBR membranes to demonstrate successful 
operation of flat-plate MBR membrane cartridges. The Kubota MBR unit 
was determined to meet the sizing dimensions and design of the WMTMUA 
sewage treatment plant upgrade project
    The information provided to EPA by the WMTMUA was confirmed through 
a technical review by EPA's national contractor of the submitted 
documentation. To the best of EPA's knowledge at this time, there does 
not appear to be any American-manufactured MBR unit utilizing flat-
plate MBR membrane cartridges available that meets the WMTMUA's project 
design specifications for its proposed sewage treatment plant upgrade. 
The WMTMUA provided a list of membrane manufacturers with recognized 
experience in treating wastewater, with both types of membranes, hollow 
fiber and flat plates considered. The WMTMUA 's technical analysis 
included an ``equivalent'' specification, to allow the bidder to 
utilize any one of the various types of membranes (geometry of tankage 
for both the membranes and the supporting process tanks) in meeting the 
design specifications. No single domestic manufacturer was able to meet 
the required geometry of the tankage and supporting process tanks, as 
each manufacturer requires its own particular geometry. The WMTMUA'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 any American-manufactured MBR unit 
utilizing flat-plate MBR membrane cartridges that meets the WMTMUA's 
exact technical specifications.
    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 potential State Revolving Fund 
eligible recipients, such as the WMTMUA, to revise their design 
standards and specifications. 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 WMTMUA establishes both a proper basis to specify the particular 
good required and that the manufactured good was not available from a 
producer in the United States to meet the design specifications for the 
proposed project. The information provided 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 WMTMUA'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.

[[Page 5588]]

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 WMTMUA is hereby 
granted a waiver from the Buy American requirements of Section 1605(a) 
of Public Law 111-5 for the purchase of a Kubota MBR unit that 
incorporates flat-plate MBR membrane cartridges using ARRA funds, as 
specified in the WMTMUA 's request of June 5, 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 19, 2010.
Judith A. Enck,
Regional Administrator, Region 2.
[FR Doc. 2010-2252 Filed 2-2-10; 8:45 am]
BILLING CODE 6560-50-P