'Buy American' - EPA Guidance

On March 20, 2014, the U.S. Environmental Protection Agency (EPA), which has been charged with interpreting and enforcing the "American Iron and Steel" language used in the 2014 Consolidated Appropriations Act, issued its guidance on the legislation. Among the most notable sections of the guidance:

• The EPA has interpreted primarily iron and steel to mean that products listed in Sec. 436(a)(2) of the legislation must be made of greater than 50 percent iron or steel, measured by cost, with the cost being based on the material costs.

Produced in the United States means all manufacturing processes, including melting, refining, forming, rolling, drawing, finishing, fabricating, and application of coatings, must take place in the United States. Even if the iron and steel is produced in the U.S., it cannot leave the country for assembly or modification and remain compliant. Metallurgical processes involving refinement of steel additives do not have to take place in the U.S., and non-iron or steel components of an iron and steel product do not have to come from the U.S.

• The legislation defines iron and steel product as one of the following made primarily of iron or steel that is permanently incorporated into the public water system or treatments works:

→ Lined or unlined pipes or fittings
→ Manhole covers
→ Municipal Castings (defined in more detail below)
→ Hydrants
→ Tanks
→ Flanges
→ Pipe clamps and restraints
→ Valves
→ Structural steel (defined in more details below)
→ Reinforced precast concrete
→ Construction materials (defined in more detail below)

• EPA further defines municipal castings as "cast iron or steel infrastructure products that are melted and cast. They typically provide access, protection, or housing for components incorporated into utility owned drinking water, storm water, wastewater, and surface infrastructure. They are typically made of grey or ductile iron, or steel." The EPA provides the following examples of municipal castings:
→ Access hatches
→ Ballast screen
→ Benches (iron or steel)
→ Bollards
→ Cast bases
→ Cast iron hinged hatches, square and rectangular
→ Cast iron riser rings
→ Catch basin inlet
→ Cleanout/monument boxes
→ Construction covers and frames
→ Curb and corner guards
→ Curb openings
→ Detectable warning plates
→ Downspout shoes (boot, inlet)
→ Drainage grates, frames and curb inlets
→ Inlets
→ Junction boxes
→ Lampposts
→ Manhole covers, rings and frames, risers
→ Meter boxes
→ Service boxes
→ Steel hinged hatches, square and rectangular
→ Steel riser rings
→ Trash receptacles
→ Tree grates
→ Tree guards
→ Trench grates
→ Valve boxes, covers and risers

• On May 30, 2014, EPA issued additional clarification regarding the AIS provision as it relates to valves and hydrants, as follows: "The EPA considers only the significant iron and steel components of a covered valve or hydrant - the body, bonnet, shoe, stem, and wedge/disc/gate/ball - to be within the definition of 'iron and steel products that must be made domestically, or otherwise must comply with the AIS requirement.'" Excluded are miscellaneous incidental components such as clips, pins, washers, nuts, and bolts. Electric powered, motor-operated valves are included in the requirement, though the actuator (a motor that controls the valve) is considered a separate product and is not included.

• EPA further defines structural steel as "rolled flanged shapes, having at least one dimension of their cross-section three inches or greater, which are used in the construction of bridges, buildings, ships, railroad rolling stock, and for numerous other constructional purposes. Such shapes are designated as wide-flange shapes, standard I-beams, channels, angles, tees and zees. Other shapes include H-piles, sheet piling, tie plates, cross ties, and those for other special purposes."

• EPA further defines construction materials as "those articles, materials, or supplies made primarily of iron and steel, that are permanently incorporated into the project, not including mechanical and/or electrical components, equipment and systems. Some of these products may overlap with what is also considered 'structural steel.'" The EPA indicates that this includes, but is not limited to:
→ Wire rod
→ Bar
→ Angles
→ Concrete reinforcing bar
→ Wire
→ Wire cloth
→ Wire rope and cables
→ Tubing
→ Framing
→ Joists, trusses
→ Fasteners (i.e., nuts and bolts)
→ Welding rods
→ Decking
→ Grating
→ Railings
→ Stairs
→ Access ramps
→ Fire escapes
→ Ladders
→ Wall panels
→ Dome structures
→ Roofing
→ Ductwork
→ Surface drains
→ Cable hanging systems
→ Manhole steps
→ Fencing and fence tubing
→ Guardrails
→ Doors
→ Stationary screens

• EPA adds that "construction materials" do NOT include "mechanical and electrical components, equipment and systems.... Mechanical equipment is typically that which has motorized parts and/or is powered by a motor. Electrical equipment is typically any machine powered by electricity and includes components that are part of the electrical distribution system." The Agency offer the following examples of items that are NOT considered construction materials (including their appurtenances necessary for their intended use and operation):
→ Pumps
→ Motors
→ Gear reducers
→ Drives (including variable frequency drives (VFDs))
→ Electric/pneumatic/manual accessories used to operate valves (such as electric valve actuators)
→ Mixers
→ Gates
→ Motorized screens (such as traveling screens)
→ Blowers/aeration equipment
→ Compressors
→ Meters
→ Sensors
→ Controls and switches
→ Supervisory control and data acquisition (SCADA)
→ Membrane bioreactor systems
→ Membrane filtration systems
→ Filters
→ Clarifiers and clarifier mechanisms
→ Rakes
→ Grinders
→ Disinfection systems
→ Presses (including belt presses)
→ Conveyors
→ Cranes
→ HVAC (excluding ductwork)
→ Water heaters
→ Heat exchangers
→ Generators
→ Cabinetry and housings (such as electrical boxes/enclosures)
→ Lighting fixtures
→ Electrical conduit
→ Emergency life systems
→ Metal office furniture
→ Shelving
→ Laboratory equipment
→ Analytical instrumentation
→ Dewatering equipment

A complete copy of the guidance can be found here.