While these statutory exemptions provide municipalities with certain protections, the application of these exemptions may not always be clear cut or uniform. Given the inherent breadth of the law and its open-ended definitions, there is a natural tilt towards the application of liability. Municipalities should exercise caution to ensure they are not unexpectedly saddled with the cost of ongoing monitoring and cleanup obligations, or hindered in their efforts to redevelop a property. Consulting with the DNR before assuming responsibility for hazardous substances or contaminated parcels whenever feasible will help to avoid these precarious situations. Overall, the Spills Law provides valuable protection for the public. It helps ensure that pollution is not left for the public to pay for and reduces the likelihood that contaminated sites are left to turn into brownfields. By understanding the statutory exemptions, municipalities can navigate their environmental responsibilities with greater clarity and can use the Spills Law to assist in redeveloping contaminated sites. Liability 445 Public Utilities 357
the contamination and complies with DNR requirements for managing the site, it cannot be held liable for past discharges. Wis. Stat. § 292.11(9)(e). This makes it possible for municipalities to acquire troubled properties, prepare them for redevelopment, and restore them to productive use without fear of liability. Without this protection, municipalities could face enormous cleanup costs whenever they attempt to address blighted or abandoned properties. However, before acquiring properties, it’s advisable for municipalities to check with the DNR on whether that acquisition would be exempt from liability and what ongoing obligations or redevelopment limitations the acquisition would include. Second, municipal utilities also benefit from targeted exemptions. The Spills Law recognizes that water and sewer utilities should not be treated as responsible parties when they are carrying out activities that are expressly authorized under state or federal permits. Discharges that occur as part of normal utility functions conducted in compliance with a valid permit are not considered violations of the law. Similarly, a utility is not automatically responsible for contamination that results from substances introduced into its system by others, provided it did not cause or contribute to the release. Wis. Stat. § 292.11(9)(a). This exemption ensures that utilities can continue to deliver vital public services without the fear of incurring liability for activities that the state already regulates and oversees through the permitting process. Finally, law shields municipal employees and emergency responders when they are acting in good faith to protect the public. Wisconsin Stat. § 292.11(9)(b) applies to law enforcement officers and firefighters using hazardous substances to protect public health, safety, and welfare. They must report any discharges but are exempt from the Spills Law penalty requirements.
Nick Zavos , Assistant General Counsel, League of Wisconsin Municipalities. Contact Nick at nzavos@lwm-info.org
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