[Federal Register Volume 76, Number 107 (Friday, June 3, 2011)]
[Notices]
[Pages 32200-32202]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-13829]
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ENVIRONMENTAL PROTECTION AGENCY
[FRL -9314-7]
Notice of a Project Waiver of Section 1605 (Buy American
Requirement) of the American Recovery and Reinvestment Act of 2009
(ARRA) to Montgomery Township, NJ
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 Montgomery Township, New Jersey (the
Township), for the purchase of specific foreign manufactured immersed
hollow fiber ultrafiltration membrane cassettes, ZeeWeed[supreg] 500D,
which are the effluent filtration component of the Membrane Bioreactor
(MBR) for the Skillman Village Wastewater Treatment Plant (WWTP)
upgrade project. The ZeeWeed[supreg] 500D immersed ultrafiltration
membrane cassettes are manufactured outside of the United States by GE
Water & Processes Technologies (GEW&PT), in Oroszlany, Hungary. The
design and specifications of the Township's proposed Skillman Village
WWTP upgrade project were based on the recommendations provided by an
engineering study and pilot testing conducted in 2005, which concluded
that the WWTP facility be upgraded with a MBR process.
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 project that may wish to use the same product must apply for a
separate waiver based on project specific circumstances. Based upon
information submitted by the Township and its consulting engineer, EPA
has concluded that there are currently no domestic manufactured
submerged hollow fiber ultrafiltration MBR membranes available in
sufficient and reasonable quantity and of a satisfactory quality to
meet the Township's project design and performance specifications and
that a waiver is justified. The Regional Administrator is making this
determination based on the review and recommendations of the State
Revolving Fund Program Team. The Assistant Administrator of the Office
of Administration and Resources Management has concurred on this
decision to make an exception to Section 1605(a) of ARRA. This action
permits the purchase of foreign manufactured submerged hollow fiber
ultrafiltration membrane cassettes by the Township, as specified in its
January 18, 2011 waiver request and February 4, 2011 supplemental
submittal to EPA.
DATES: Effective Date: June 3, 2011.
FOR FURTHER INFORMATION CONTACT: Alicia Reinmund-Mart[iacute]nez,
Environmental Engineer, (212) 637-3827, State Revolving Fund Program
Team, Division of Environmental Planning and Protection, U.S. EPA, 290
Broadway, New York, NY 10007.
SUPPLEMENTARY INFORMATION: In accordance with ARRA Sections 1605(c) and
1605(b)(2), the EPA hereby provides notice that it is granting a
project waiver of the requirements of Section 1605(a) of Public Law
111-5, Buy American requirements, to the Township for the purchase of
ZeeWeed[supreg] 500D immersed hollow fiber ultrafiltration membrane
cassettes manufactured in Hungary by GEW&PT that meet the Township's
design and performance specifications of its Skillman Village WWTP
upgrade project. EPA has evaluated the Township's basis for the
procurement of the foreign made immersed hollow fiber ultrafiltration
membrane cassettes. Based upon information submitted by the Township
and its consulting engineer, EPA has concluded that there are currently
no domestic manufactured immersed hollow fiber ultrafiltration membrane
cassettes available in sufficient and reasonable quantity and of a
satisfactory quality to meet the Township's project design and
performance specifications.
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 are 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) of ARRA 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.
EPA has determined that the Township's waiver request is timely
even though the request was made after the construction contract was
signed. Consistent with the direction of the Office of Management and
Budget (OMB) regulations at 2 CFR 176.120, EPA has evaluated the
Township's request to determine if the request, though made after the
contract date, can be treated as if it were timely made. 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 Township's
request may be treated as timely because the need for a waiver was not
foreseeable at
[[Page 32201]]
the time the contract was signed. The Township submitted this waiver
request after the contract date because on June 22, 2009, GEW&PT had
provided a Buy American compliance certification letter to the Township
indicating that the MBR system would comply with ARRA Section 1605
pursuant to the ``substantial transformation'' test. At that time, the
Township considered this rationale reasonable and anticipated full
compliance with the Buy American provisions of ARRA. The Township did
not determine the need for a waiver until on or about May 25, 2010,
when GEW&PT notified the Township that the ZeeWeed[supreg] 500D
immersed hollow fiber ultrafiltration membrane cassettes of its MBR
system did not comply with the substantial transformation test and that
the Township should seek a waiver from Buy American requirements based
on no availability of domestic manufactured membrane cassettes that
meet project specifications. Accordingly, EPA will evaluate the request
as a timely request.
The Township's Skillman Village WWTP upgrade project includes the
installation of a MBR system that will enable the WWTP's effluent
quality to meet the new stringent effluent limitations stipulated in
its New Jersey Pollutant Discharge Elimination System (NJPDES)
wastewater discharge permit. The documentation provided by the Township
indicates that with the exception of the actual ZeeWeed[supreg]500D
membrane cassettes, GEW&PT will fabricate and assemble all of the MBR
system components in its Minnetonka, Minnesota facility. The
ZeeWeed[supreg] 500D immersed hollow fiber ultrafiltration membrane
cassettes are manufactured in Hungary and will be shipped directly from
the manufacturing facility in Hungary to the project site.
The Township is requesting a waiver for the purchase of
ZeeWeed[supreg] 500D immersed hollow fiber ultrafiltration membrane
cassettes because there are no submerged hollow fiber ultrafiltration
MBR membranes manufactured in the United States that meet the design
specifications for the project. Based on an engineering study and pilot
testing conducted in 2005, the Township identified MBR technology as
the most appropriate and best demonstrable technology for the Skillman
Village WWTP upgrade project. During the design and bidding phase of
the project, the Township evaluated multiple manufacturers of MBR
systems, and fully anticipated, by way of manufacturer/supplier
confirmation, that the specified GEW&PT membrane cassettes would be
fully compliant with ARRA Buy American requirements.
Upon learning from GEW&PT on May 25, 2010, that the ZeeWeed[supreg]
500D membranes would not meet the substantial transformation test and
therefore, is not in compliance with ARRA Buy American requirements,
the Township repeated its efforts to find domestic manufactured
ultrafiltration hollow fiber membranes that would meet the Skillman
Village WWTP upgrade project specifications. The Township's research
confirmed that no additional manufacturers of such membranes suitable
for the WWTP project had entered the North American market since the
design phase of the project The Township's research revealed that, the
MBR market is dominated by four manufacturers of MBR systems, including
General Electric (Zenon), Kubota, Siemens and Koch-Puron, and all four
companies manufacture their cassettes abroad. Of these manufacturers,
only General Electric and Siemens manufacture the specified immersed
hollow fiber ultrafiltration membrane cassettes. Therefore, the
Township concluded that there is no domestically available immersed
hollow fiber ultrafiltration membrane cassette and that a waiver from
Buy American requirements would be required. Based on the technical
evaluation of the Township's waiver request and supporting
documentation as well as the additional research conducted by EPA's
national contractor, the Township's claim that there are no submerged
hollow fiber ultrafiltration MBR membranes manufactured in the United
States that meet the design specification is supported by the available
evidence.
The purpose of the ARRA is to stimulate economic recovery in part
by funding current infrastructure construction, not to delay projects
that are already ``shovel ready'' by requiring entities, such as the
Township, to revise their design standards and specifications and
potentially choose a more costly, less efficient project. The
imposition of ARRA Buy American requirements on such projects otherwise
eligible for State Revolving Fund assistance would result in
unreasonable delay and potentially the cancellation of this project as
sited. The delay or cancellation of this construction would directly
conflict with the fundamental economic purpose of ARRA, which is to
create or retain jobs.
The April 28, 2009, EPA Headquarters 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 the 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,'' and satisfactory quality as ``the
quality of iron, steel, or the relevant manufactured good as specified
in the project plans and designs.''
The Region 2 State Revolving Fund Program Team has reviewed this
waiver request and has determined that the supporting documentation
provided by the Township establishes both a proper basis to specify the
particular good required and that the manufactured good is not
available from a producer in the United States to meet the design
specifications for the proposed project. The information provided is
sufficient to meet the criteria listed under Section 1605(b) of ARRA,
OMB regulations at 2 CFR 176.60-176.170, and in the EPA Headquarters
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 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 Township's technical specifications, a
waiver from the Buy American requirement is justified.
The Administrator's 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
Township is hereby granted a waiver from the Buy American requirements
of Section 1605(a) of Public Law 111-5 for the purchase of the
ZeeWeed[supreg] 500D immersed hollow fiber ultrafiltration membrane
cassettes, as specified in its January 18, 2011 waiver request and
February 4, 2011 supplemental submittal to EPA. 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.
[[Page 32202]]
Dated: April 25, 2011.
Judith A. Enck,
Regional Administrator, Environmental Protection Agency, Region 2.
[FR Doc. 2011-13829 Filed 6-2-11; 8:45 am]
BILLING CODE 6560-50-P