PFAS took decades to go from an obscure lab finding to a nationally enforced drinking water standard. But once it did, things moved fast, and utilities that hadn’t already started preparing found themselves racing tight compliance deadlines with little time to plan, procure equipment or secure funding.

That arc is exactly why PFAS has become the reference case for how the next emerging contaminant is likely to unfold. At a recent AWWA ACE panel, “Utilizing Lessons from PFAS to Prepare for What’s Next,” attorneys Ashley Campbell (Sher Edling) and Katie Beran (Hausfeld) joined Tim Kilcommons, Chief Engineer at Suffolk County Water Authority (SCWA), to lay out what utilities can take from the PFAS experience and apply now, before the next contaminant reaches the regulatory spotlight.

A note before we go further: this isn’t legal advice. Legal outcomes depend on jurisdiction and individual circumstances, so utilities should seek their own legal counsel.

How a contaminant becomes regulated

Contaminants typically move through a predictable regulatory pipeline:

•        First appearance on the Contaminant Candidate List (CCL) 

•        Then the Unregulated Contaminant Monitoring Rule (UCMR)

•        Then, in some cases, state-level regulations

•        And eventually federal regulation under the Safe Drinking Water Act

Each step can take years, sometimes decades, of study and debate. But once a contaminant clears that last step and becomes federally regulated, compliance timelines compress fast: meeting a new federal standard within five years can feel like being asked to turn around an aircraft carrier in five minutes, when utilities are used to planning water infrastructure decades in advance.

Litigation and cost recovery move on an even longer clock. Cases against manufacturers can take years to resolve, and utilities may need documentation reaching back decades to prove what a contaminant actually cost them.

Contaminants to watch

The panel flagged five contaminants utilities should have on their radar as potential candidates for future federal regulation:

1.      1,4-Dioxane

2.      Microplastics

3.      Pharmaceuticals

4.      Next-generation disinfection byproducts and nitrosamines (including NDMA)

5.      Lithium

Worth noting: microplastics and pharmaceuticals appear on the draft CCL 6 but did not make it onto the proposed UCMR 6, a recent development as of this writing that utilities should keep an eye on. Further, even the sample taking process for microplastics isn't standardized as of this time. It will likely be a long road for that contaminate to be evaluated by the science and even longer to determine if it will ever be regulated. 

The “out of the ordinary” test

A central exercise from the panel gets at a question every utility eventually has to answer: what counts as a cost worth documenting separately, before there’s even a regulation on the books?

Campbell posed it this way: “If you detect an emerging contaminant, so no regulation at all, not even a guidance, in your system, but you elect to treat it, can you recover the cost of that treatment from the folks who manufactured it now, in the future, whenever, as a matter of law?”

Her answer was yes, and the reasoning is worth sitting with: “You are selling a product. You don’t have to sell a product that has a contaminant in it, even if it’s not regulated, even if there’s no legal standard that you have to comply with, particularly if it’s an emerging contaminant and there are some associated health effects, even if no regulator has said these are the associated health effects. If you decide, as a supplier of a product which is safe and clean drinking water, to treat that chemical, you can seek recovery for that as a matter of law.”

In other words, “out of the ordinary” means anything that gets in the way of delivering that core product: safe, clean drinking water. If a utility is spending money to keep a contaminant out of its water, that cost may be worth documenting separately, regardless of whether a regulator has weighed in yet.

What to document, and why

Good recordkeeping isn’t only for finance departments or grant applications. Years later, if a contaminant is found to have caused harm, a utility may need to show exactly what it spent addressing that specific compound, and why.

That means:

•        Contaminant-specific accounting. Generic expense codes are a mistake; costs and decisions need to trace back to the specific contaminant involved.

•        Dated notes explaining why decisions were made, including when contamination was discovered, why action was taken, why a particular treatment was justified, and what alternatives were considered.

Categories worth tracking separately include:

•        Sampling and laboratory analyses

•        Engineering evaluations, pilot studies and consulting

•        Treatment evaluations, design work and construction

•        Operations, media replacement and disposal

•        Staff time, even partial time. If someone starts spending 10% of their week on the issue, or a utility hires someone specifically to manage it, that should be quantified and documented

•        Communications and public outreach

The bigger picture

PFAS may eventually fade from the headlines, but the regulatory process it moved through won’t. Today’s UCMR contaminant could be tomorrow’s treatment project, and the utilities that start documenting and planning now will be better positioned not just for compliance, but to explain, justify and potentially recover the costs of protecting public health later.

Kilcommons closed the panel with a broader point about where responsibility should sit. “We want to shift the conversation from the water supplier always being the one over the last line of defense to move towards eliminating these contaminants before they enter the aquifer,” he said. “We’re willing to do our part to clean the water. We know that’s what we have to do. It’s our mission. But we shouldn’t be the first and last line of defense, right? We should be the last line of defense.”

For a closer look at how Suffolk County Water Authority put these lessons into practice, from reaching full compliance with the 4 part-per-trillion PFAS MCL to resolving a long-running 1,4-dioxane issue, see our companion case study on the utility’s approach.