[Federal Register Volume 75, Number 212 (Wednesday, November 3, 2010)]
[Notices]
[Pages 67718-67719]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-27807]


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ENVIRONMENTAL PROTECTION AGENCY

[FRL-9220-3]


Notice of a Project Waiver of Section 1605: (Buy American 
Requirement) of the American Recovery and Reinvestment Act of 2009 
(ARRA) to the Town of Windsor, CA; Project<greek-i> 4910017-033 Funded 
by the California DWSRF ARRA Loan<greek-i> AR09FP45

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice.

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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 in sufficient and reasonably available quantities and of a 
satisfactory quality) to the Town of Windsor, a California Drinking 
Water State Revolving Fund (DWSRF)/ARRA loan recipient, for the 
purchase of a 20-inch diameter mild steel well casing (API standard 5L 
or ASTM standard A53 schedule 30b or better). 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. The Assistant Administrator of the 
Office of Administration and Resources Management has concurred on this 
decision to make an exception under section 1605(b)(2) of ARRA.

DATES: Effective Date: August 13, 2010.

FOR FURTHER INFORMATION CONTACT: Abimbola Odusoga, Environmental 
Engineer, Water Division, Infrastructure Office (WTR-4), (415) 972-
3437, U.S. EPA Region 9, 75 Hawthorne, San Francisco, CA, 94105.

SUPPLEMENTARY INFORMATION: In accordance with ARRA Section 1605(c) and 
OMB regulations at 2 CFR Part 176, Subpart B, the EPA hereby provides 
notice that it is granting a late project waiver of the requirements of 
Section 1605(a) of Public Law 111-5, Buy American requirements, to the 
City for the purchase and use of a 20-inch diameter mild steel well 
casing manufactured abroad. The head of each Federal agency is 
authorized to issue project waivers pursuant to Section 1605(c) of 
ARRA. A delegation of authority memorandum was issued by the EPA 
Administrator on March 31, 2009 which provided EPA Regional 
Administrators with the authority to issue waivers to Section 1605(a) 
of ARRA within the geographic boundaries of their respective regions 
and with respect to requests by individual recipients of ARRA financial 
assistance.
    This waiver request came after the goods had been used in the 
project. Under 2 CFR 176.130(c)(1), the applicable noncompliance 
provision regarding unauthorized use of foreign manufactured goods, EPA 
is authorized to process a waiver under 2 CFR 176.120(a) if ``the need 
for such determination otherwise was not reasonably foreseeable.'' EPA 
has further outlined this process in its April 28, 2009 memorandum: 
Implementation of Buy American provisions of Public Law 111-5, the 
``American Recovery and Reinvestment Act of 2009'' (the April 28 
memorandum). EPA has determined under these circumstances that the need 
for such a waiver was not reasonably foreseeable. Therefore, under the 
authority of 2 CFR 176.120 and 176.130(c)(1), and as explained in the 
April 28 memorandum, EPA will process the waiver request as if it was 
requested in a timely manner. EPA has determined that it would have 
evaluated a waiver request had the recipient applied for a waiver prior 
to using the foreign casing in the ARRA project. EPA

[[Page 67719]]

has determined that granting this waiver is appropriate because it 
avoids penalizing the City for the use of a non-U.S.-made good for 
which the City has sufficiently established that there were no U.S.-
made alternatives. And, this determination takes into account the 
City's due diligence and good faith effort to implement the 
requirements of section 1605.
    Section 1605(a) of the ARRA requires that none of the funds 
appropriated or otherwise made available by the ARRA 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. Pursuant 
to Section 1605(b) and (c), a waiver may be provided if EPA determines: 
(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 purpose of this project in Windsor is to replace the existing 
Bluebird and Esposti Park wells that were shut down due to arsenic 
contamination and build-up of sediment on the casings. To solve this 
problem, Windsor is installing two new wells designed to provide 
adequate storage for times of drought or emergency. The current system 
draws water from the Russian River, but the Sonoma County Water Agency 
(SCWA) issued an order to reduce the in-stream flow requirements for 
the Russian River. This reduction of in-stream flow requirements will 
deplete the water production of the off-river wells during the peak 
summer demand. The new well system will help maximize water storage to 
meet demand during peak seasons.
    Per the specifications, the wells conductor casing and upper stem 
will be constructed of mild steel, while the well screening and lower 
stem will be constructed of stainless steel. For the two wells planned, 
110 feet of 20-inch mild steel casing would be required. Analysis by 
EPA's national contractor indicated that American-made 20-inch diameter 
mild steel casing was not available for the conductor casing (as 
previously anticipated). The only casings to meet the town's dimensions 
and specifications are foreign made.
    The April 28, 2009 EPA memorandum for implementation of the ARRA 
Buy American provisions of Public Law 111-5, states the quantity of 
iron, steel, or relevant manufactured good is ``reasonably available'' 
if it is available at the time 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.''
    Windsor's submittal articulates a reasonable and appropriate basis 
for the type of technology it chose for this project in environmental 
objectives and performance specifications. Further, it provides 
sufficient documentation that the relevant manufactured goods are not 
produced in the United States in sufficient and reasonably available 
quantities and of a satisfactory quality to meet its technical 
specifications. Windsor has incorporated specific technical design 
specifications for the proposed project based on their needs and 
provided information to the EPA justifying the need for a 20-inch 
diameter mild steel casing. Windsor has also provided certification 
from its supplier indicating there are no products of comparable 
quality available from a domestic manufacturer to meet its 
specifications and satisfy project restrictions. Based on additional 
research conducted by the EPA's Buy American consultant, there did not 
appear to be other domestically manufactured products available to meet 
Windsor's specifications at the necessary delivery time. When the 
project was originally bid, the contractor was assured by pipe 
suppliers that domestically manufactured well casing material would be 
available for the project. However, as work progressed on the 
construction of the well, the applicant was informed by the 
contractor's material supplier that domestically made well casing pipe 
would not be available from any domestic mills in time to deliver to 
the West Coast for installation. The only available material would be 
supplied from Korean manufacturers.
    EPA Region 9, EPA's Buy American consultant, and EPA's Office of 
Administration and Resource Management have reviewed this waiver 
request and have determined the supporting documentation provided by 
Windsor is sufficient to meet the criteria listed under ARRA Section 
1605(b)(2) and the EPA April 28, 2009, memorandum for implementation of 
ARRA Buy American provisions of Public Law 111-5. 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, Windsor is hereby granted a waiver from 
the Buy American requirements of Sections 1605(a) of Public Law 111-5, 
for the purchase of the 20-inch mild steel casing, specified in 
Windsor's request of March 31, 2010. This supplementary information 
constitutes the detailed written justification required by Section 
1605(c) for waivers based on a finding under Section 1605(b)(2).

    Authority: Public Law 111-5, Section 1605.

    Dated: August 13, 2010.
Jared Blumenfeld,
Regional Administrator, EPA Pacific Southwest Region.
[FR Doc. 2010-27807 Filed 11-2-10; 8:45 am]
BILLING CODE 6560-50-P