[Federal Register Volume 76, Number 89 (Monday, May 9, 2011)]
[Notices]
[Pages 26725-26726]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-11216]
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ENVIRONMENTAL PROTECTION AGENCY
[FRL-9303-3]
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 South Burlington, VT
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 South
Burlington, Vermont (``City'') for the installation of two specific
turbo aeration blower units for the City's Airport Parkway Wastewater
Treatment Plant Upgrade project. This is a project specific waiver and
only applies to the use of the specified products for the ARRA project
under construction. Any other ARRA recipient that wishes to use the
same products must apply for a separate waiver based on project
specific circumstances. The City was provided written representations
by the manufacturer (K Turbo USA) during 2009 and early 2010 that the
turbo aeration blower units being supplied would be substantially
transformed in the United States and would be in compliance with the
Buy American provisions of ARRA. However, as a result of a recent on-
going criminal investigation, the written representations provided by
the manufacturer that the specified aeration blowers units had
undergone substantial transformation in the United States have been
questioned. Based on the information provided by the City, EPA agrees
with the City that, if the K-Turbo units in question are determined to
be non-American made, requiring the installation of domestically
manufactured turbo aeration blower units will extend the time frame of
the project by approximately five months due to the redesign,
procurement, submittal delivery, submittal review, fabrication,
delivery, and replacement of the aeration blower installation at the
construction site. This delay is inconsistent with the public interest,
and a waiver of the Buy American provisions in these circumstances 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 installation of the two specified turbo aeration blower
units that have already been delivered to the construction site as
noted in the City's March 31, 2011 request.
DATES: Effective Date: May 9, 2011.
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),
[[Page 26726]]
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 specific
waiver of the requirements of Section 1605(a) of Public Law 111-5, Buy
American requirements, to the City of South Burlington (City), Vermont
for the installation of two specified aeration blower units as part of
its Airport Parkway Wastewater Treatment Plant Upgrade project. Based
on the information provided by the City, EPA has determined that it is
inconsistent with the public interest for the City to further delay the
project to pursue the purchase and installation of domestic
manufactured turbo aeration blower units.
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 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.
Consistent with the direction of OMB's regulation at 2 CFR 176.120,
EPA will generally consider a waiver request with respect to components
that were specified in the bid solicitation or in a general/primary
construction contract or those 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, can be evaluated as timely because of the
extenuating circumstances surrounding this on-going project.
The City was provided written representations prior to delivery by
the manufacturer that the specified turbo aeration blower units would
be substantially transformed in the United States. During the spring of
2010, the City's general contractor and design engineer were actively
engaged in the shop drawing submittal and review process. The general
contractor submitted technical information to the design engineer for
review and approval, along with ARRA certification required for
contract specifications. The shop drawing process for the KTurbo
aeration blower units was completed at that time and KTurbo provided
additional certification regarding substantial transformation and
compliance with the ARRA requirements, specifically the Buy American
provision. However, as a result of a recent on-going criminal
investigation, the written representations provided by the manufacturer
that these specific turbo aeration blowers units had undergone
substantial transformation in the United States have been questioned.
The City of South Burlington could not reasonably have foreseen the
need for a waiver from the Buy American provisions of ARRA until it was
fully informed of the extenuating circumstances surrounding the on-
going criminal investigation involving KTurbo. Accordingly, EPA will
evaluate the request as if it were timely.
As of March 31, 2011, the City's Airport Parkway Wastewater
Treatment Facility Upgrade construction project is approximately two
thirds completed. One of the old existing three aeration blower units
has already been removed, and one of the new turbo aeration blower
units has already been installed and is in operation serving the
plant's main biological treatment process. This aeration blower unit is
identical to the two specified aeration blower units involved in this
waiver request that have not yet been installed. The General
Contractor's plans are to install these two specified turbo aeration
blower units during April of 2011 to stay on its critical path to
complete construction.
Not allowing the installation of these two specified turbo aeration
blower units that have been delivered to the site would cause a
significant time delay to the project. The City would need to
completely redesign, procure, and have domestic manufactured turbo
aeration blower units delivered to the site. In addition, the City
would need to make some necessary building and room changes (e.g.
associated piping and electrical revisions) to accommodate any
replacement units, install, and properly start-up the new equipment.
According to the City, it is estimated that this approach could delay
the construction completion date by up to five months.
In addition to imposing a lengthy time delay to the project, not
installing the two other specified aeration blower units would result
in an unbalanced air blower system comprised of one high efficiency
turbo blower with specific performance characteristics, and two
conventional centrifugal blowers with different performance
characteristics. Operation and maintenance of such an unbalanced system
is not common and is not recommended since it would result in
additional operating costs due to additional plant training, additional
and non-matching spare parts, and possibly additional maintenance and
repair, resulting in risk to water quality.
The Municipal Assistance Unit (CMU) has reviewed this waiver
request and has determined that the documentation provided by the City
has established a proper basis to specify that using the domestic
manufactured good, if in fact the goods provided by K-Turbo are
determined to be non-domestic, would be inconsistent with the public
interest. 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, if in fact the goods provided by K-Turbo
are determined to be non-domestic, would be inconsistent with the
public interest, the City of South Burlington, Vermont is hereby
granted a waiver from the Buy American requirements of Section 1605(a)
of Public Law 111-5. This waiver permits the use of ARRA funds for the
installation of two specified turbo aeration blower units documented in
the City's waiver request submittal dated March 31, 2011. 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: April 28, 2011.
Ira W. Leighton,
Acting Regional Administrator, EPA Region 1--New England.
[FR Doc. 2011-11216 Filed 5-6-11; 8:45 am]
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