The Leading Infrastructure For Tomorrow's America Act (LIFT America Act or the Act), H.R. 2741 – 116th Congress, was introduced by Rep. Frank Pallone Jr. (D-N.J.) on May 15, 2019. The House Committee on Energy and Commerce is scheduled to hold a hearing on the LIFT America Act on May 22, 2019, at 10 a.m. The LIFT America Act seeks to provide funding to rehabilitate drinking water infrastructure containing per- or polyfluoroalkyl substances (PFAS) and redevelop brownfields. In addition, the Act also proposes funding to rebuild and modernize the nation's infrastructure to expand access to broadband and Next Generation 9-1-1, modernize the electric grid and energy supply infrastructure, strengthen healthcare infrastructure, create jobs, and protect public health and the environment. This Holland & Knight alert focuses on the proposed PFAS and brownfields remediation grants.
PFAS Drinking Water Act
Subtitle A of Title II of the Act outlines the "PFAS Drinking Water Act," a new potential funding mechanism for community water systems affected by PFAS. The PFAS Drinking Act will require the U.S. Environmental Protection Agency (EPA) Administrator to establish, within 180 days of enactment, a program to award up to $2.5 billion in grants over five years (PFAS Grant). The authorized appropriation is limited to not more than $500 million for each of the fiscal years 2020 through 2024. Should the Act pass, the PFAS Drinking Water Act will be added to Part E of the Safe Drinking Water Act (42 U.S.C. 300j et seq.) at Section 1459E.
Community water systems will be eligible to use the PFAS Grant to pay for the capital costs associated with eligible treatment technologies. According to the Act, an eligible treatment technology is one that can remove "all detectable amounts of PFAS from drinking water." The legislation further directs the EPA Administrator to create a list of eligible treatment technologies within 150 days after enactment with the list to be amended every two years. The Act defines PFAS broadly as "a perfluoroalkyl or polyfluoroalkyl substance with at least one fully fluorinated carbon atom," rather than limiting the definition to the two most well-known PFAS, perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS). The Act does not define eligible capital costs.
To be eligible for a PFAS grant, community water systems must demonstrate that PFAS are present in the water, and that its current treatment system is not sufficient to remove all detectable amounts of PFAS. When awarding PFAS Grants, the Act directs the EPA Administrator to prioritize its awards by looking at the following affected communities: 1) those that serve a disadvantaged community, 2) those that will provide at least a 10 percent cost share for the cost of implementing an eligible treatment technology, or 3) those that demonstrate the capacity to maintain the eligible treatment technology to be implemented using the grant.
EPA Brownfield Program
The LIFT America Act also continues the federal government's trend over the last 15 years to support the remediation of brownfields. Title V of the Act proposes the following appropriations for the EPA Brownfield Program:
- Fiscal year 2020: $350 million
- Fiscal year 2021: $400 million
- Fiscal year 2022: $450 million
- Fiscal year 2023: $500 million
- Fiscal year 2024: $550 million
Additionally, Title V proposes additional funding for State and Tribal Brownfields Response Programs that address, for example, brownfields, treatment storage and disposal facilities and underground storage tanks regulated under the Resource Conservation and Recovery Act (RCRA), and PCB-contaminated sites subject to remediation under the Toxic Substances Control Act (TSCA):
- Fiscal year 2020: $70 million
- Fiscal year 2021: $80 million
- Fiscal year 2022: $90 million
- Fiscal year 2023: $100 million
- Fiscal year 2024: $110 million