[Federal Register: August 13, 2009 (Volume 74, Number 155)]
[Notices]
[Page 40817-40818]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr13au09-42]
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ENVIRONMENTAL PROTECTION AGENCY
[FRL-8945-4]
Notice of a Regional Waiver of Section 1605 (Buy American
Requirement) of the American Recovery and Reinvestment Act of 2009
(ARRA) to the City of Ocean Shores (the City), Washington for the
Purchase of Resin Beads (Miex[supreg] DOC Resin) Manufactured Outside
of the United States Under the Section 1605 Waiver Authority Based on
the Conclusion That 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
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice.
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SUMMARY: The Acting Regional Administrator of EPA Region 10, is hereby
granting a waiver of the Buy America 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 for the purchase
of resin beads (MIEX[supreg] DOC Resin) supplied by Orica Ltd, in
Victoria, Australia and manufactured in Australia. The applicant
indicates that MIEX[supreg] DOC Resin is necessary to the MIEX[supreg]
process, a treatment process evaluated in pilot studies and selected
for implementation. While the majority of other equipment is
manufactured in the U.S., the MIEX[supreg] DOC Resin is only
manufactured in Australia. It is patented and no alternative exists
which can be used with the MIEX[supreg] process. The Acting Regional
Administrator is making this determination based on the review and
recommendations of the Drinking Water Unit. The City has provided
sufficient documentation to support their request.
DATES: Effective Date: July 24, 2009.
FOR FURTHER INFORMATION CONTACT: Rick Green, DWSRF Coordinator,
Drinking Water Unit (DWU), Office of Water & Watersheds (OWW), (206)
553-8504, U.S. EPA Region 10 (OWW-136), 1200 Sixth Avenue, Suite 900,
Seattle, WA 98101.
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 acquisition of resin beads (MIEX[supreg] DOC Resin)
supplied by Orica Ltd, in Victoria, Australia and manufactured in
Australia. The applicant indicates that MIEX[supreg] DOC Resin is
necessary to the MIEX[supreg] process, a treatment process evaluated in
pilot studies at the City and selected for use. While the majority of
other equipment is manufactured in the U.S., the MIEX[supreg] DOC Resin
is only manufactured in Australia. It is patented and no alternative
exists which can be used with the MIEX[supreg] process. 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 is 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 construction project being undertaken by the City is treatment
of water from a shallow aquifer, which contains problematic levels of
iron, manganese, hydrogen sulfide, ammonia, organic nitrogen, and
organic carbon. Based on the results of pilot studies, the City chose
to use a combination of greensand filtration and the MIEX[supreg]
process to treat this water supply. The community chose this treatment
process over the alternatives of ultrafiltration or nanofiltration
because the capital costs are significantly lower, the electrical
consumption is significantly less, and there is much less water wasted
during the treatment process.
The City's submission clearly articulates entirely reasonable
reasons for choosing the type of technology that it chose for this
project 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 HQ Memorandum, Implementation of Buy
American provisions of Pubilc Law 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. The City has incorporated specific technical design
features for the proposed project based on pilot studies which
demonstrated that the combination of greensand filtration and MIEX
treatment is the best alternative.
The City has provided information to the EPA representing that
there are currently no resin beads manufactured in the United States
that have the exact same product specifications in place. The City has
also provided certification from its supplier representing that there
are no beads of comparable quality available from a domestic
manufacturer to meet its exact specifications.
Based on additional research by EPA's consulting contractor
(Cadmus), and to the best of the Region's knowledge at this time, there
does not appear to be other resin beads available to meet the City's
specifications.
Furthermore, the purpose of the ARRA provisions was to stimulate
economic recovery by funding current infrastructure construction, not
to delay projects that are already shovel ready by requiring entities,
like the City, to revise their design and potentially choose a more
costly and less efficient project. The imposition of ARRA Buy American
requirements on such projects eligible
[[Page 40818]]
for DWSRF 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 most fundamental economic
purposes of ARRA; to create or retain jobs.
The Drinking Water Unit (DWU) has reviewed this waiver request and
has determined that the supporting documentation provided by the City
is sufficient to meet the following criteria listed under Section
1605(b) 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), 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 City's design
specifications.
The 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.
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 is hereby
granted a waiver from the Buy American requirements of Section 1605(a)
of Public Law 111-5 for the purchase of resin beads (MIEX[supreg] DOC
Resin) supplied by Orica Ltd, in Victoria, Australia and manufactured
in Australia as specified in the City's request of June 26, 2009. This
supplementary information constitutes the detailed written
justification required by Section 1605(c) for waivers based on a
finding under subsection (b).
Authority: Pubic Law 111-5, section 1605.
Issued on: July 28, 2009.
Michelle Pirzadeh,
Acting Regional Administrator, EPA, Region 10.
[FR Doc. E9-19465 Filed 8-12-09; 8:45 am]
BILLING CODE 6560-50-P