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Notice of a Project Waiver of Section 1605 (Buy American Requirement) of the American Recovery and Reinvestment Act of 2009 (ARRA) to the Lake County Special Districts

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Environmental Protection Agency (EPA).




The EPA is hereby granting a project waiver of the Buy American Start Printed Page 2685requirements of ARRA Section 1605(a) 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 Lake County Special Districts (Lake County), California for the Kelseyville Wastewater Treatment Plant project. Lake County indicates that the design for the Kelseyville project (Project #4593-110 funded by the California Clean Water State Revolving Fund (CWSRF) ARRA Loan #08-821) requires check valves capable of performing under high pressure at a wastewater effluent pump station. Lake County is receiving this waiver to purchase Noreva V625 non-slam check valves for this purpose. This waiver applies only to this project. Other ARRA projects that wish to use the same product must apply for a separate waiver based on their project-specific circumstances. The Assistant Administrator of the Office of Administration and Resources Management has concurred with this decision to make an exception under section 1605(b)(2) of ARRA.


Effective Date: November 30, 2010.

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Abimbola Odusoga, Environmental Engineer, U.S. EPA Region 9, Water Division (WTR-4), (415) 972-3437.

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In accordance with ARRA Sections 1605(c) and 1605(b)(2), EPA hereby provides notice it is granting a project waiver of the requirements of Section 1605(a) of Public Law 111-5, Buy American requirements, to Lake County for the acquisition of V625 non-slam check valves by foreign manufacturer, Noreva. 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), the head of each federal agency is authorized to issue a waiver from the requirements of Section 1605(a) for a specific project (project waiver) provided the agency 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 EPA Administrator signed a memorandum, dated March 31, 2009, delegating authority to Regional Administrators to issue project waivers within the geographic boundaries of their respective regions and with respect to requests by individual recipients of ARRA financial assistance.

The Kelseyville wastewater treatment project will enhance the reliability of the wastewater treatment process to better serve the Kelseyville community, which has been classified as a disadvantaged community. According to the applicant, the valves will be installed on a 15,000 foot, 6-inch effluent line under high pressure (515 feet of static head). Check valve failure could result in thousands of gallons of backflow at high velocities causing flooding in the pump station, overflowing and spilling of effluent. As the project site is located in a remote location, an operator will not be present at all times, thus increasing the need for high quality, reliable check valves. According to Lake County, they require a product without external adjustments or devices such as levers, weights, springs, shock absorbers, or speed controls. The absence of these features reduces concerns of accidental operator error or vandalism in the remote location.

The applicant included the following specifications in its contract documents:

  • Type V625 non-slam check valves;
  • Axial-flow, quick-closing, non-slam design, spring-loaded annular or circular and hardened metal-to-metal seat;
  • ANSI Class 300, wafer body to fit between ANSI B16.5 flanges, rated working pressure 720 psig at 100 degrees F;
  • Cast CF8M stainless steel body and disc, type 316 stainless steel trim;
  • Maximum pressure loss of 1 psi at 900 gpm; and
  • Valves to be used in combination with a hydropneumatic surge tank.

Upon review, two manufacturers appeared to have products that met most of the project specification requirements. One of these manufacturers was contacted by Lake County and provided a written statement indicating that the use of the hydropneumatic surge tank would preclude the use of their valves in this installation. The second manufacturer was contacted by the review team. The second manufacturer failed to meet the project specification requirements for the following reasons:

  • The specification lists a maximum pressure loss of 1 psi at 900 gpm, whereas the head loss on the domestic valves is 3 psi; and
  • The specification lists a hardened metal-to-metal seat. The domestic products were unable to fulfill this requirement.

Based on these findings, EPA concurs with Lake County's claim that no known domestic manufacturers of V625 non-slam check valves are available to satisfy Lake County's specifications.

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. Lake County's waiver request articulates a reasonable and appropriate basis for selecting the type of technology it chose for this project in environmental objectives and performance specifications. Further, it provides sufficient documentation to conclude the relevant manufactured goods are not produced in the United States of a satisfactory quality to meet its technical specifications. Lake County has incorporated specific technical design specifications for the proposed project based on their needs and has provided information to the EPA indicating there are currently no V625 non-slam check valves manufactured in the United States that have equivalent product specifications. Based on inquiry by EPA's national contractor, there do not appear to be other V625 non-slam check valves available to meet Lake County's specifications.

EPA has also evaluated Lake County's request to determine if its submission is considered late or if it could be considered timely, as per the OMB Guidance at 2 CFR 176.120. 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, EPA could also determine that a request be evaluated as timely, though made after the date that the contract was signed, if the need for a waiver was not reasonably foreseeable. If the need for a waiver is reasonably foreseeable, then EPA could still apply discretion in these late cases as per the OMB Guidance, which says “the award official may deny the request.” For those waiver requests that do not have a reasonably unforeseeable basis for lateness, but for which the waiver basis is valid and there is no apparent gain by Start Printed Page 2686the ARRA recipient or loss on behalf of the government, then EPA will still consider granting a waiver.

In this case, there are no U.S. manufacturers that meet Lake County's project specification for these check valves capable of performing under high pressure. Due to a delay in the construction of this project, Lake County was not made aware that there are no domestic equivalents for the valves in question until well after the contract was signed. There is no indication that Lake County failed to request a waiver in order to avoid the requirements of the ARRA, particularly since there are no domestically manufactured products available that meet the project specifications. EPA will consider Lake County's waiver request, a foreseeable late request, as though it had been timely made since there is no gain by Lake County and no loss by the government due to the late request.

Furthermore, the purpose of the ARRA is to stimulate economic recovery by funding current infrastructure construction, not to delay shovel ready projects by requiring entities, like Lake County, 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 for CWSRF assistance would result in unreasonable delay and thus displace the “shovel ready” status for this project. Further delay of this project would contravene the most fundamental economic purposes of the ARRA: To create or preserve jobs in the United States.

EPA Region 9's Water Division and Office of Regional Counsel, 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 Lake County 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, Lake County is hereby granted a waiver from the Buy American requirements of Sections 1605(a) of Public Law 111-5, for the purchase of Noreva V625 non-slam check valves, specified in Lake County's request of June 8, 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).

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Authority: Public Law 111-5, Section 1605.

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Dated: November 30, 2010.

Jared Blumenfeld,

Regional Administrator, EPA Pacific Southwest, Region 9.

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[FR Doc. 2011-752 Filed 1-13-11; 8:45 am]