You ask a number of questions concerning municipal liability and responsibility under Wis. Stat. ch. 166. I have rephrased and renumbered your questions, as follows:
1. Is the county or the town in which a hazardous spill occurs ordinarily required to provide the emergency response to a Level B release?
In my opinion the county is ordinarily required to respond to a Level B release within a town.
2. Is a town that provides an emergency response to a Level B release in its own capacity in the absence of a countywide HAZ-MAT agreement statutorily immune from civil liability for acts or omissions related thereto under Wis. Stat. § 895.483(2)?
In my opinion, a town that provides an emergency response to a Level B release in the absence of a countywide HAZ-MAT agreement is not statutorily immune from civil liability for acts or omissions related thereto under Wis. Stat. § 895.483(2). Other statutory and common law immunities are available.
3. Is a town that provides or makes provision for the payment of the cost of any emergency response to a Level B release under a countywide HAZ-MAT agreement statutorily immune from civil liability for acts or omissions related thereto under Wis. Stat. § 895.483(2)?
In my opinion, the intent of the Legislature under Wis. Stat. § 895.483(2) is to immunize a town that provides or makes provision for the payment of the cost of an emergency response to any Level B release under a countywide HAZ-MAT agreement from civil liability for acts or omissions related thereto.
4. Does a town have the authority to enter into an enforceable agreement to indemnify a county from damages resulting from an emergency response to a Level B release within the town under a countywide HAZ-MAT agreement?
In my opinion, a town does have the authority to enter into an enforceable agreement to indemnify a county from damages resulting from an emergency response to a Level B release within the town under a countywide HAZ-MAT agreement.
5. If a town agrees to indemnify a county from damages resulting from an emergency response to a Level B release within the town under a countywide HAZ-MAT agreement, does the existence of such an agreement in any way affect the county’s immunity from civil liability under Wis. Stat. § 895.483(2)?
In my opinion, the county’s immunity from civil liability under Wis. Stat. § 895.483(2) is unaffected if a town agrees to indemnify a county from damages resulting from an emergency response to a Level B release within the town under a countywide HAZ-MAT agreement.
PRINCIPAL EMERGENCY PLANNING STATUTES INVOLVED
Wisconsin Stat. § 59.54(8) provides in part:
Local emergency planning committees. (a) The [county] board shall do all of the following:
1. Create a local emergency planning committee, with members as specified in 42 USC 11001(c), which shall have the powers and the duties established for such committees under 42 USC 11000 to 11050 and under ss. 166.20 and 166.21.
Wisconsin Stat. § 166.03 provides in part:
(4) . . . .
. . . .
(4)(d) . . . Nothing in this chapter prohibits counties and municipalities from employing their emergency management organizations, facilities and resources to cope with the problems of local public emergencies except where restrictions are imposed by federal regulations on property donated by the federal government.
(5) Powers and duties of head of emergency management services. (a) The head of emergency management services in each county, town and municipality shall for his or her respective county, town or municipality, develop and promulgate emergency management plans consistent with state plans, direct the emergency management program and perform such other duties related to emergency management as are required by the governing body and the emergency management committee of the governing body when applicable.
(b) The head of emergency management services in each county shall coordinate and assist in developing town and municipal emergency management plans within the county, integrate such plans with the county plan, advise the department of all emergency management planning in the county and submit to the adjutant general such reports as he or she requires, direct and coordinate emergency management activities throughout the county during a state of emergency, and direct countywide emergency management training programs and exercises.
. . . .
(7) Cooperation. (a) Counties, towns and municipalities may cooperate under s. 66.30 to furnish services, combine offices and finance emergency management services.
(b) Counties, towns and municipalities may contract for emergency management services with political subdivisions, emergency management units and civil defense units of this state . . . .
(c) The state and its departments and independent agencies and each county, town and municipality shall furnish whatever services, equipment, supplies and personnel are required of them under this chapter.
Wisconsin Stat. § 166.20 provides in part:
(1) Definitions. In ss. 166.20 to 166.215:
(b) "Committee" means a local emergency planning committee created under s. 59.54(8)(a).
. . . .
(g) "Hazardous substance" means an extremely hazardous substance included in the list published by the administrator of the U.S. environmental protection agency under 42 USC 11002(a)(2) or a hazardous substance as defined under 42 USC 9601(14) or designated by the administrator of the U.S. environmental protection agency under 42 USC 9602(a).
(ge) "Level A release" means a release of a hazardous substance that necessitates the highest level of protective equipment for the skin and respiratory systems of emergency response personnel . . . .
. . . .
(gi) "Level B release" means a release of a hazardous substance that necessitates the highest level of protective equipment for the respiratory systems of emergency response personnel, but less skin protection than a level A release, because operations at the site of the release do not involve a high potential for exposure to liquids or particulates that are harmful to the skin or capable of being absorbed through intact skin . . . :
. . . .
(3) Duties of committees. A committee shall:
(a) Carry out all requirements of a committee under the federal act.
(b) Upon receipt by the committee or the committee's designated community emergency coordinator of a notification under sub. (5)(a)2. of the release of a hazardous substance, take all actions necessary to ensure the implementation of the local emergency response plan.
. . . .
(4m) Cooperation. A state agency or local governmental unit may assist the division or a committee in the performance of its duties and may enter into an agreement with the division or a committee.
Your first question is whether the county or the town in which a hazardous spill occurs ordinarily is required to provide the emergency response to a Level B release.
In my opinion, the county ordinarily has such responsibility.
Wisconsin Stat. § 166.03(4)(a) requires every county, town and municipality to adopt an effective program of emergency management that is consistent with the state plan of emergency management. Wisconsin Stat. § 166.03(4)(c) requires every county board to designate a committee of the board as a county emergency management committee. Wisconsin Stat. § 166.03(5)(b) requires the head of emergency management services in each county to coordinate and assist in developing town and municipal emergency management plans within the county and to integrate those plans with the county plan. The head of emergency management services in each county is also given authority to coordinate and direct countywide emergency management training programs and exercises.
Wisconsin Stat. § 59.54(8)(a)1. requires every county to create a LEPC and to establish the LEPC Plan required by 42 U.S.C.A. § 11003 (West 1993). Since I have not been furnished with a copy of the Columbia County LEPC Plan, I must assume that any provisions of the plan concerning the obligation of each municipality to respond to Level B releases generally reflect the legal obligations imposed upon local units of government by statute. It is, however, my opinion that Wis. Stat. §§ 66.30 and 166.03(7)(a) are broad enough to permit a town to assume responsibility for responding to Level B releases within its geographical boundaries.
Wisconsin Stat. § 166.20(3)(b) requires the LEPC or the county coordinator to take all actions necessary to ensure the implementation of the local emergency response plan in the event of receipt of notification of the discharge of a hazardous substance under Wis. Stat. § 166.20(5)(a)2. In addition, Wis. Stat. § 166.21(2m)(e) makes LEPCs eligible for emergency planning grants if the LEPC Plan includes the following:
Identification of a county emergency response team that is capable of responding to a level B release that occurs at any place in the county and whose members meet the standards for hazardous materials technicians in 29 CFR 1910.120(q)(6)(iii) and national fire protection association standards NFPA 471 and 472.
I therefore conclude that, under Wis. Stat. §§ 59.54(8)(a)1. and 166.21(2m)(e), the county ordinarily is required to respond to Level B releases within a town.
Your second question is whether a town that provides an emergency response to a Level B release in its own capacity in the absence of a countywide HAZ-MAT agreement is statutorily immune from civil liability for acts or omissions related thereto under Wis. Stat. § 895.483(2).
In my opinion, the answer to your second question as stated is no. A town that provides an emergency response in the absence of a countywide HAZ-MAT agreement does not receive the benefit of the statutory immunity granted under Wis. Stat. § 895.483(2).
A town could provide a response to a level B release under the authority granted in Wis. Stat. § 166.20(3)(b). If such a response is provided, Wis. Stat. § 895.483(2) by its terms immunizes:
A county emergency response team, a member of such a team and the county, city, village or town that contracts to provide the emergency response team to the county . . . from civil liability for acts or omissions related to carrying out responsibilities pursuant to a designation under s. 166.21(2m)(e).
The statutory language clearly immunizes both team members and the municipalities that contract to provide the team to the town from liability. In the situation described in your second question, there is no contract of any kind between the town and the county and none of the team members are town employees. The refusal of a town or other local unit of government to enter into a contract may affect the ability of the county to make the identification required under Wis. Stat. § 166.21(2m)(e) in order to claim immunity under Wis. Stat. § 895.483(2).
Immunities other than that accorded by Wis. Stat. §§ 166.21(2m)(e) and 895.483(2) are available even in the absence of a countywide HAZ-MAT agreement. The statutory immunity provided under Wis. Stat. § 893.80(4) which includes the common law immunity for discretionary acts is available to towns, their officer, employees and agents. Municipal officials are generally immune from liability for the execution of those actions that do not involve the negligent performance of a ministerial duty. See C.L. v. Olson, 143 Wis. 2d 701, 710, 422 N.W.2d 614 (1988). Such immunity has been found to exist in connection with “moment-to-moment decision making and crisis management[.]” Barillari v. Milwaukee, 194 Wis. 2d 247, 260, 533 N.W.2d 759 (1995).
The enactment of Wis. Stat. § 895.483(2) did not abrogate other preexisting immunities. I therefore conclude that, while a town that responds to a Level B release in its own capacity in the absence of a countywide HAZ-MAT agreement does not receive immunity from civil liability under Wis. Stat. § 895.483(2), the statutory and common law immunities afforded in connection with such emergency management activities are plentiful.
Your third question is whether a town that provides or makes provision for payment of the cost of an emergency response to any Level B release under a countywide HAZ-MAT agreement is statutorily immune from civil liability for acts or omissions related thereto under Wis. Stat. § 895.483(2).
In my opinion, the legislative intent is to accord immunity to a town in those circumstances.
In the fact situation you have described, the city employees who comprise the HAZ-MAT team are immune from liability under Wis. Stat. § 895.483(2). The city itself is also immune because it has agreed to provide the emergency response team to the county. If town employees were part of the countywide HAZ-MAT team, they clearly would also be immune from liability under Wis. Stat. § 895.483(2) even if the LEPC Plan provided that such employees would only respond to Level B releases within the geographic boundaries of that town. Similarly, if a town were to contract with the county to furnish a qualified response team that is under contract with the town to respond to any Level B releases within that town’s boundaries, the town would be immune from liability under Wis. Stat. § 895.483(2).
The statute does not specifically mention the circumstance where a local unit of government defrays a proportionate share of the costs incurred by a countywide HAZ-MAT team rather than directly providing personnel for that team. A statute should be construed so as to effectuate the intent of the Legislature and a court will favor a construction which fulfills the purpose of the statute over one which does not. See Heaton v. Independent Mortuary Corp., 97 Wis. 2d 379, 393, 294 N.W.2d 15 (1980). The legislative intent is to immunize municipalities that relieve the county from carrying out what otherwise would be the county’s primary responsibility to respond to any Level B release. I therefore conclude that a court would hold that that legislative policy would extend to a town that agrees to reimburse the county for the costs incurred by the response team designated by the county for responding to all Level B releases within town boundaries.
Your fourth question is whether a town has the authority to enter into an enforceable agreement to indemnify a county from damages resulting from an emergency response to a Level B release within the town under a countywide HAZ-MAT agreement.
In my opinion, the answer is yes.
There is general authority for the proposition that municipalities may enter into indemnification agreements with other local governmental entities. 18 McQuillen Municipal Corporations § 53.77 (3rd ed. 1993). Indemnity agreements were permissible at common law under the principle of freedom of contract. Gerdmann v. United States Fire Ins. Co., 119 Wis. 2d 367, 373, 350 N.W.2d 730 (Ct. App. 1984). Consequently, any claimed limitations on the validity of such agreements are strictly construed. Gerdmann, 119 Wis. 2d at 373-74.
Under Wis. Stat. § 59.54(8)(a)1. and 3., county LEPCs have the authority to establish LEPC Plans and to ensure that those plans are executed. LEPCs are also directed under Wis. Stat. § 166.21(2m)(e) to establish countywide procedures for responses to Level B releases. Under Wis. Stat. § 166.03(4)(a), towns also have a statutory role in the provision of emergency management services. Wisconsin Stat. § 166.03(7)(a) authorizes towns and counties to cooperate in the provision of such services. Wisconsin Stat. § 66.30 contains broad authority for towns and counties to enter into intergovernmental agreements. Wisconsin Stat. §§ 166.21(2m)(e) and 895.483(2) explicitly recognize that contracts concerning Level B responses may be made between towns and counties. I therefore conclude that there is sufficient statutory authority to permit contracts for indemnification under the circumstances you describe.
Your fifth question is whether a county’s immunity from civil liability under Wis. Stat. § 895.483(2) is affected if a town agrees to indemnify the county from damages resulting from an emergency response to a Level B release within the town under a countywide HAZ-MAT agreement.
In my opinion, the answer is no.
A progression of cases addressing the potential waiver of statutory immunity from municipal tort liability as a result of the purchase of insurance is summarized in Anderson v. City of Milwaukee, 208 Wis. 2d 18, 28-30, 559 N.W.2d 563 (1997). First, in Sambs v. Brookfield, 66 Wis. 2d 296, 224 N.W.2d 582 (1975), the Wisconsin Supreme Court held that the purchase of insurance did not waive the $50,000 limit on municipal liability now found in Wis. Stat. § 893.80(3). Then, in Stanhope v. Brown County, 90 Wis. 2d 823, 842, 280 N.W.2d 711 (1979), the court held that a municipality can waive a statutory limitation on liability by entering into an insurance contract that contains a clause prohibiting the insurer from raising the statutory immunity defense. Finally, in Gonzalez v. City of Franklin, 137 Wis. 2d 109, 128-29, 403 N.W.2d 747 (1987), the court held that a municipality cannot waive a statutory limitation on liability merely by entering into an insurance contract for coverage in excess of the liability limit.
I view the legal principles applicable to the potential waiver of municipal tort liability through the purchase of insurance as roughly analogous to the legal concerns applicable to the potential waiver of municipal liability under Wis. Stat. § 895.483(2) resulting from entry into an indemnification agreement. At most, under these cases, statutory immunity is not lost or waived unless the indemnification agreement specifically precludes the assertion of that statutory immunity from liability. I therefore conclude that a county’s immunity from civil liability under Wis. Stat. § 895.483(2) is unaffected when a town merely agrees to indemnify the county from damages resulting from an emergency response to a Level B release within the town.
In conclusion, the financial obligation of the town that has refused to sign the countywide HAZ-MAT agreement appears to be less than $600 annually. These statutes are designed to ensure that municipalities work together to ensure the availability of prompt responses to Level B releases on a countywide basis. I would encourage the municipalities involved to make every effort to effectuate that goal.
Sincerely,
James E. Doyle
Attorney General
JED:FTC:cla
CAPTION:
Authority and responsibility of local units of government to respond to Level B hazardous substance releases discussed.
