Understanding Wisconsin’s Spills Law and the Exemptions for Municipalities and Utilities
environment.” Wisconsin Manufacturers & Commerce, Inc. v. DNR , 2025 WI 26, ¶ 28. The open-ended nature of “hazardous substance” can also prove to be controversial, especially in the case of emerging contaminants. “Emerging contaminants” refers to contaminants that were once unknown, undetectable, or generally considered benign but, due to scientific advances in understanding them, are now considered “hazardous substances.” The Spills Law does not have a good faith exception, so a property owner can subsequently learn they are liable for the discharge of a substance that they had not known was a problem. Over the past few decades, there has been a veritable alphabet soup of chemicals that fit this category – PCBs, MTBE, PCE. The latest troubling example is per- and polyfluoroalkyl substances, commonly referred to as PFAS. PFAS are a large group of man-made chemicals used in products like nonstick cookware, firefighting foam, and food packaging. Sometimes called “forever chemicals,” they break down very slowly and accumulate in the environment and in people’s bodies. Recent scientific developments have revealed that even at very low levels, PFAS are linked to health risks such as damage to immune systems, increased cholesterol, and certain cancers. Because of their widespread use and persistence, PFAS are now found in soil, groundwater, surface waters, and even the blood of most people tested. For municipalities, PFAS contamination poses not only a public health challenge but also a major policy dilemma. The cost of testing, treatment, and cleanup can be staggering, and there is ongoing debate about who should bear that responsibility – local governments and taxpayers or the companies that manufactured and used them. Given the scope of the PFAS problem, municipalities need to understand the Spills Law exemptions for local governments. One key exemption applies when municipalities take ownership of contaminated properties through tax delinquency, foreclosure, condemnation, or other involuntary transfers. Here, the law provides a safe harbor. If the municipality did not cause
The Wisconsin Spills Law, found in Wis. Stat. § 292.11, is unique in that it places a broad affirmative duty on the public. It does not set up a regulatory scheme, nor does it prohibit specific conduct. In the most basic of terms, the law says that if you make a mess, you are responsible for cleaning it up. Specifically, the Spills Law mandates that a party who is responsible for a discharge of a hazardous substance must notify the DNR and take actions necessary “to restore the environment to the extent practicable and minimize the harmful effects from the discharge to the air, lands or waters of this state.” Wis. Stat. § 292.11(2) and (3). The law is designed to cast a wide net. First, the Spills Law holds a wide range of parties potentially liable. The term “responsible party” includes any person who possesses or controls a hazardous substance or who causes the discharge. In State v. Mauthe , the Wisconsin Supreme Court held that an owner of contaminated property “possesses or controls a hazardous substance.” Thus, the court held that a landowner can be responsible under the Spills Law even if they did not cause the discharge – mere ownership is enough. State v. Mauthe , 123 Wis.2d 288, 301 (1985). Second, the Spills Law does not delineate which substances are hazardous. Rather, “hazardous substance” is defined in broad and open-ended terms. It includes any substance “. . . which may cause or significantly contribute to an increase in mortality or an increase in serious irreversible or incapacitating reversible illness or which may pose a substantial present or potential hazard to human health or the environment because of its quantity, concentration or physical, chemical or infectious characteristics.” Wis. Stat. § 292.01(5). The open-ended nature of this definition provides the public with a great deal of protection because what is hazardous can vary based on context. As the Wisconsin Supreme Court explained, “A mug of beer or a gallon of milk spilled into Lake Michigan may not ‘pose a substantial present or potential hazard to human health or the environment,’ but a 500-gallon tank of beer or milk discharged into a trout stream might well pose a substantial present hazard to the stream’s fish and
The Municipality - October 2025 | 24
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