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###### Environmental Protection Agency

          - [FRL-9110-6]

# 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 LaSalle for the purchase of membrane bioreactor (MBR) membrane racks, which include the hollow fiber membrane modules and the associated proprietary mechanical equipment to secure the membranes in the tank. 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. These hollow fiber membrane racks, which are supplied by Siemens Water Technologies Corporation, are manufactured in Australia and China, and meet LaSalle'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. LaSalle has provided sufficient documentation to support its request, as detailed below. 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 hollow fiber membrane racks for LaSalle's “East Side                               ( print page 6029)                            Regional Wastewater Treatment Facility Project” that may otherwise be prohibited under Section 1605(a) of the ARRA.                    

# DATES:

*Effective Date:*                         January 7, 2010.                    

# FOR FURTHER INFORMATION CONTACT:

Julie Henning, SRF Financial Analyst (312) 886-4882, or Puja Lakhani, Regional Counsel, (312) 353-3190, U.S. EPA Region 5, 77 W. Jackson Blvd., Chicago, IL 60613.

# SUPPLEMENTARY INFORMATION:

In accordance with ARRA Section 1605(c) and pursuant to Section 1605(b)(2) of Public Law 111-5, Buy American requirements, EPA hereby provides notice that it is granting a project waiver to LaSalle for the acquisition of hollow fiber membrane racks which are manufactured in Australia and China. The manufacturer is Siemens Water Technologies Corporation.

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.

LaSalle proposes to construct a new 0.50 million gallons per day (MGD) wastewater treatment plant. The plant is designed based upon membrane bioreactor (MBR) technology. The MBR technology will produce effluent which has superior quality than conventional secondary or tertiary treatment facilities. The superior effluent quality afforded by the MBR technology was necessary for this project due to the characteristics of the receiving stream, the Little Vermilion River. The segment of the Little Vermilion River into which the proposed wastewater treatment plant will discharge is on the list of impaired waters set forth in Section 303(d) of the Federal Clean Water Act and the Water Quality Planning and Management regulation at 40 CFR Part 130. The segment has been listed with the designated use of aquatic life as impaired by potential pollutants including total nitrogen, pH, total phosphorus, total suspended solids, zinc and fecal coliform. The MBR technology proved to be the cost-effective alternative for achieving effluent of sufficient quality with regard to the pollutants that are the potential source of impairment that would be required in order to obtain a National Pollutant Discharge Elimination System (NPDES) permit for a new discharge into the 303(d)-listed receiving stream (Little Vermilion River).

During the bidding phase of the project, LaSalle received proposals from three MBR equipment manufacturers, of which Siemens Water Technologies Corporation was selected. None of the three equipment manufacturers produces the hollow fiber membrane rack components of the MBR systems within the U.S. LaSalle stated in the waiver application that based on information gathered during the planning and early design stages of the project, including their contact with contractors and equipment suppliers during the bidding phase of the project, to the best of their knowledge at the time of equipment selection and design, they could not identify any other reputable membrane system for wastewater treatment applications that was currently manufactured in the United States and available to meet LaSalle's technical specifications and design requirements.

                    The April 28, 2009 EPA HQ Memorandum, “Implementation of Buy American provisions of P.L. 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.”                

EPA's national engineering contractor prepared a technical assessment report dated September 29, 2009, based on the submitted waiver request, identifying one potential domestic manufacturer of membrane racks which appeared to have the potential to meet LaSalle's performance criteria and specifications. Subsequent analysis by EPA and the national contractor, however, concluded that the potential domestic manufacturer only produces modules with flat plate membranes. LaSalle's project design plans specify that hollow fiber configured modules are required, and discussions with both EPA's national engineering contractors and LaSalle confirmed that the use of flat plate membranes would require re-designing major portions of the project, including the membrane bioreactor basins, process inlet and outlet piping, filtrate pumping system, recycle pumping system, air scour blowers and air piping system, chemical cleaning system, and other features. The re-design would involve major changes to the basin concrete structures, masonry building enclosure, piping and mechanical systems, electrical/controls systems, and access platforms. Therefore, the potential domestic manufacturer does not provide the required hollow fiber membrane racks in sufficient and reasonably available quantities and of a satisfactory quality to meet the design specifications. EPA's national contractor's technical assessment report from September 29, 2009, did not find any additional domestic manufacturers of the specified manufactured good.

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 communities such as Auburn to revise their standards and specifications and to start the bidding process again. The imposition of ARRA Buy American requirements on such projects 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.

The State and Tribal Programs Branch has reviewed this waiver request and has determined that the supporting documentation provided by LaSalle 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 product in the United States in sufficient and reasonably available quantities and of a satisfactory quality in order to meet LaSalle's 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                           ( print page 6030)                        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, LaSalle is hereby granted a waiver from the Buy American requirements of Section 1605(a) of Public Law 111-5 for the purchase of the MBR membrane racks using ARRA funds as specified in the community's request of September 10, 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 7, 2010.

Bharat Mathur,

Acting Regional Administrator, Region 5.

[FR Doc. 2010-2541 Filed 2-4-10; 8:45 am]

BILLING CODE 6560-50-P