[Federal Register Volume 75, Number 185 (Friday, September 24, 2010)]
[Notices]
[Pages 58382-58383]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-23988]


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ENVIRONMENTAL PROTECTION AGENCY

[FRL-9206-3]


Notice of a Regional Project Waiver of Section 1605 (Buy 
American) of the American Recovery and Reinvestment Act of 2009 (ARRA) 
to the City of Lowell, MA

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice.

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SUMMARY: The EPA is hereby granting a waiver of the Buy American 
requirements of ARRA Section 1605 under the authority of Section 
1605(b)(1) [inconsistent with the public interest] to the City of 
Lowell, Massachusetts (City) for the purchase of a foreign manufactured 
30-inch diameter pipe tee fitting for a finished water pipe at the 
Lowell Water Treatment Facility. 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. The proposed work involved repairing an existing 30-inch 
cement lined ductile iron fitting on a finished water line in the 
Lowell Water Treatment Facility. Based upon information submitted by 
the City's consulting engineer, EPA has concluded that, under the given 
circumstances (i.e. emergency standby situation, the need to minimize 
disruption in water transmission service), requiring the installation 
of an alternative domestic manufactured pipe fitting would be 
inconsistent with the public interest, and that a waiver of the Buy 
American provisions is justified. 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 the requirements of Section 1605(a) of ARRA. 
This action allows the purchase and installation of the foreign 
manufactured 30-inch pipe fitting media, as specified in its June 18, 
2010 request.

DATES: Effective Date: September 15, 2010.

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, 5 Post Office Square, Suite 100, Boston, MA 02109-3912.

SUPPLEMENTARY INFORMATION: In accordance with ARRA Section 1605(c), the 
EPA hereby provides notice that it is granting a project waiver of the 
requirements of Section 1605(a) of Public Law 111-5, Buy American 
requirements, to the City of Lowell, Massachusetts for the purchase of 
a non-domestic 30-inch diameter pipe fitting for a finished water pipe 
at the Lowell Water Treatment Facility. EPA has evaluated the City's 
basis for procuring a 30-inch diameter pipe fitting from China at a 
cost of $4,000. Based on the information provided by the City's design 
engineer, EPA has determined that it is inconsistent with the public 
interest for the City to have pursued the purchase of a domestically 
manufactured 30-inch diameter pipe fitting under the specific 
circumstances encountered by the City.
    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 under Section 1605(b) 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

[[Page 58383]]

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.
    When a recipient or sub-recipient has used foreign iron, steel, 
and/or manufactured goods for an ARRA project without authorization, as 
is the case here, OMB's regulation at 2 CFR 176.130 directs EPA to take 
appropriate action, which may include processing a determination 
concerning the inapplicability of Section 1605 of ARRA in accordance 
with 2 CFR 176.120. Consistent with the direction of 2 CFR 176.120, EPA 
will generally consider a waiver request made after obligating ARRA 
funds for a project to be a ``late'' request. However, in this case EPA 
has determined that the City's request, though made after the date the 
contract was signed and after use of the foreign pipe fitting, can be 
evaluated as timely because the City could not reasonably have foreseen 
the need for such a determination until after initiating the work. 
Accordingly, EPA will evaluate the request as if it were timely.
    The City is requesting a waiver of the Buy American provision for a 
30-inch diameter pipe fitting that was manufactured in China which 
replaced an existing 30-inch diameter cement lined ductile iron fitting 
on a finished water line at the Lowell Water Treatment facility. 
According to the City's design engineer, the existing 30-inch diameter 
pipe fitting had been leaking for some time at the threaded connection 
with a 2-inch air release valve. The original intent of the City was to 
remove the air release valve, clean the threads, perform the necessary 
repairs, and re-install the existing 30-inch fitting. However, in the 
event of a possible break in the pipe delivery system or if the 
existing fitting failed during the repair work, a new 30-inch diameter 
pipe fitting had to be on-site on an emergency standby basis. As a 
result, the City explored having a 30-inch diameter pipe fitting on-
site before they could start any additional repair work.
    During the week of May 3rd, 2010, the City was informed by three 
suppliers/vendors that a 30-inch diameter domestic pipe fitting would 
not be available on an emergency standby basis unless the City 
purchased it outright. Based on information provided by the City's 
consulting engineer, due to the large size of the fitting, vendors 
would only make their imported 30-inch tee pipe fittings available on 
standby status, but not their domestic pipe fittings. As a result, no 
domestic-made fittings of that size were available for stand-by in an 
emergency situation that would meet technical specifications. The City 
could not find a supplier/vendor that would promise right of first 
refusal on a domestic manufactured pipe fitting without purchasing it 
in full. None of the available vendors would allow the City the 
opportunity to return a 30-inch diameter domestic pipe fitting, if the 
City had decided on not installing it.
    The City decided to order a 30-inch diameter foreign manufactured 
pipe fitting (made in China at a cost to the City of Lowell of $4,000) 
to have it available on an emergency standby basis to minimize plant 
shutdown and any disruption of water service delivery, in the event 
total replacement became necessary or if the pipe delivery system 
failed. The City had planned to repair and re-install the existing pipe 
fitting, but once the repair work had begun, it was determined that 
complete replacement was the proper approach to take. During the week 
of June 14th, the new foreign manufactured 30-inch diameter pipe 
fitting was installed. Fortunately, and more importantly, no disruption 
of water transmission service took place due to proper planning. The 
City then made the request to the EPA for a waiver on June 18, 2010, 
immediately after the emergency replacement work took place and it 
could not reasonably foresee the need for such a determination until 
after initiating the repair work and determining that a complete 
replacement of the pipe fitting was the proper course of action.
    Furthermore, the purpose of the ARRA is to stimulate economic 
recovery by funding current infrastructure construction, not to delay 
or require the substantial redesign of projects that are ``shovel 
ready,'' such as this project at the Lowell Water Treatment Plant. The 
imposition of ARRA Buy American requirements in this case would have 
likely resulted in unreasonable additional cost for this project and 
delay in its completion. Such delay would also directly conflict with a 
fundamental economic purpose of ARRA, which is to create or retain 
jobs. More importantly, the imposition could have resulted in a risk to 
public health had water service been interrupted for any extended 
period of time.
    The Municipal Assistance Unit (CMU) has reviewed this waiver 
request and has determined that the supporting documentation provided 
by the City's design engineer established a proper basis to specify 
that using the domestic manufactured good would be inconsistent with 
the public interest of the City of Lowell. The information provided is 
sufficient to meet the following criteria listed under Section 
1605(b)(1) of the ARRA and in the April 28, 2009 Memorandum: Applying 
these requirements would be inconsistent with the public interest.
    The March 31, 2009 Delegation of Authority Memorandum provided 
Regional Administrators with the 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 using a domestically available 
alternative manufactured good would be inconsistent with the public 
interest, the City of Lowell, 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 30-inch diameter pipe fitting documented in the 
City's waiver request submittal dated June 18, 2010. 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 15, 2010.
 Ira W. Leighton,
Acting Regional Administrator, EPA Region 1--New England.
[FR Doc. 2010-23988 Filed 9-23-10; 8:45 am]
BILLING CODE 6560-50-P