[Federal Register Volume 75, Number 201 (Tuesday, October 19, 2010)]
[Notices]
[Pages 64308-64309]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-26260]


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ENVIRONMENTAL PROTECTION AGENCY

[FRL-9214-6]


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)(2) [manufactured goods are not produced in the United States in 
sufficient and reasonably available quantities and of a satisfactory 
quality] to the City of Lowell, Massachusetts (``City'') for the 
purchase of a foreign manufactured heat recovery ventilator for the 
Lowell Wastewater Treatment Facility and Warren Street Combined Sewer 
Overflow (CSO) Diversion Station Improvements Project. 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 the City and its consulting engineer, it has been 
determined that there are currently no domestically manufactured heat 
recovery ventilators available to meet its proposed project and 
performance 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 heat recovery ventilator by the 
City, as specified in its July 14, 2010 request.

DATES: Effective Date: October 8, 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(b)(2) of Public Law 111-5, Buy American 
requirements, to the City for the purchase of a non-domestically 
manufactured fixed plate heat recovery ventilator to meet the City's 
design and performance specifications as part of its proposed Lowell 
Wastewater Treatment Facility and Warren Street Combined Sewer Overflow 
(CSO) Diversion Station Improvements 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 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.
    EPA has determined that the City's waiver request may be treated as 
timely even though the request was made after the construction contract 
was signed. Consistent with the direction of the OMB Guidance at 2 
CFR176.120, EPA has evaluated the City's request to determine if the 
request constitutes a late request. 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 City's request, though made after the date that the 
contract was signed, can be evaluated as timely because the need for a 
waiver was not reasonably foreseeable. After the contract date, during 
the shop drawing review, a domestic specified fixed plate heat recovery 
ventilator was found to be unavailable by the contractor. The need for 
a waiver was not determined until after the contractor had completed a 
search for a domestic manufacturer and had confirmed that there were no 
domestically made fixed plate heat recovery ventilators available to 
meet project specifications. Accordingly, EPA will evaluate the request 
as a timely request.

[[Page 64309]]

    The City is requesting a waiver from the Buy American provision of 
ARRA for one Cleanair Designs Heat Recovery Ventilator for use in the 
proposed activated sludge treatment building. The unit is scheduled for 
installation on the roof. The unit will provide ventilation and heating 
to the building and the design includes an air-to-air heat exchanger. 
The exchanger will recover energy in the exhaust air stream and 
transfer it to the fresh air stream, reducing the energy consumption 
during the heating season, with zero cross-contamination between the 
air streams.
    The City has researched foreign and domestic manufacturers of fixed 
plate heat recovery ventilators and has determined that domestic 
manufacturers are not able to manufacture a unit that meets all the 
project specifications. The specifications require that the heat 
exchanger be constructed with a polypropylene plate. The polypropylene 
plate was specified because the atmosphere inside the building where 
the heat recovery ventilator will be installed will be very corrosive. 
The polypropylene plate will better resist the corrosive return air 
circulated through the heat exchanger than a standard aluminum plate.
    An evaluation of all of the submitted documentation by EPA's 
technical review team supports and confirms the City's claim that there 
are currently no domestic manufacturers that can provide a suitable 
fixed plate heat recovery ventilator to meet project specifications. 
The consulting engineer for the City identified two domestic 
manufacturers in the United States. Neither of the two companies 
currently manufactures heat recovery units that meet all the project 
specifications. An independent review of the submitted documentation by 
EPA's national contractor found four possible domestic manufacturers. 
However, none of the manufacturers contacted currently provides a 
product that meets the specifications and project requirements. In 
addition, the evaluation of the supporting documentation demonstrated 
that foreign manufactured heat recovery ventilators are available and 
will be able to meet the proposed project design and specifications.
    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 City of Lowell, MA, to 
revise their design standards and specifications. To curtail entirely 
this construction would directly conflict with a fundamental economic 
purpose of ARRA, which is to create or retain jobs.
    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.''
    The Municipal Assistance Unit (CMU) has reviewed this waiver 
request and has determined that the supporting documentation provided 
by the City establishes both a proper basis to specify a particular 
manufactured good, and that the domestically manufactured good that is 
currently available does 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 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 this manufactured good was not 
available from a producer in the United States, the City of Lowell, MA 
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 non-domestically manufactured fixed plate 
heat recovery ventilator documented in City's waiver request submittal 
dated July 14, 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: October 8, 2010.
Ira W. Leighton,
Acting Regional Administrator, EPA Region 1--New England.
[FR Doc. 2010-26260 Filed 10-18-10; 8:45 am]
BILLING CODE 6560-50-P