Chapter NR 2

NR 2.09 NR 2.09 Changes in time or place of hearing; adjournments; failures to appear.

NR 2.09(1) (1) Changes. Requests for changes in the time or place of a scheduled hearing may be granted by the department or administrative law judge only for good cause shown. A request received after a required newspaper publication or legal notice may be rescheduled only if the person requesting the change bears the cost of republication of the notice and the administrative law judge deems the change appropriate under the circumstances presented.

NR 2.09(2) (2) Adjournment. The department or the administrative law judge may adjourn a hearing for good cause shown, the hearing to be reset or reconvened at the discretion of the department or the administrative law judge or at a time and place set by the department or the administrative law judge on the record of the hearing prior to adjournment.

NR 2.09(3) (3) Failure to appear.

NR 2.09(3)(a) (a) If an applicant for a permit or license fails to appear at a hearing following due notice, the department or the administrative law judge may dismiss the application unless the applicant shows good cause for the failure to appear. If an applicant fails to submit proof of publication and notice as required by statute, the department or the administrative law judge may dismiss the application and cancel the hearing.

NR 2.09(3)(b) (b) If a respondent in an enforcement proceeding fails to appear, the department or the administrative law judge shall take testimony and issue, modify or rescind the order as may be appropriate.

NR 2.09(3)(c) (c) If a petitioner in a proceeding fails to appear, the department or the administrative law judge may dismiss the petition unless the petitioner shows good cause for the failure to appear.

NR 2.09 History History: Cr. Register, March, 1973, No. 207, eff. 4-1-73; am. (2) and (3), cr. (3) (c), Register, March, 1984, No. 339, eff. 4-1-84; CR 02-046: am. Register September 2004 No. 585, eff. 10-1-04.

NR 2.095 NR 2.095 Declaratory ruling hearings. When a petition for a declaratory ruling is granted under s. 227.41, Stats., the hearing shall be conducted as a noncontested case. The declaratory ruling may be based upon information presented at the hearing and other information available to the department to assist in rendering the declaratory ruling.

NR 2.095 History History: CR 02-046: cr. Register September 2004 No. 585, eff. 10-1-04.

NR 2.10 NR 2.10 Witnesses and subpoenas in contested cases. The department, the administrative law judge, on the judge’s own motion or at the request of a party, or any attorney of record for a party in a contested case hearing may issue subpoenas to compel the attendance of witnesses at contested case hearings or discovery proceedings under s. NR 2.11. A subpoena requiring the production of documents may be issued if the person issuing the subpoena specifies the documents to be presented by the subpoenaed witness. Sections 814.67, 885.06 and 885.07, Stats., shall govern the payment of witness fees and expenses. For good cause shown, the administrative law judge may issue orders to protect persons or parties from annoyance, embarrassment, oppression or undue burden, as provided in s. 804.01 (3), Stats.

NR 2.10 History History: Cr. Register, March, 1973, No. 207, eff. 4-1-73; am. Register, March, 1984, No. 339, eff. 4-1-84; CR 02-046: am. Register September 2004 No. 585, eff. 10-1-04.

NR 2.11 NR 2.11 Preservation of testimony and discovery of evidence in contested case hearings.

NR 2.11(1) (1) Discovery in class 2 proceedings. The department or any party in a class 2 proceeding may obtain prehearing discovery and preserve testimony as provided under ch. 804, Stats. For good cause, the administrative law judge may allow a shorter or longer time for discovery or preserving testimony than is allowed by ch. 804, Stats. For good cause shown, the administrative law judge may issue orders to protect persons or parties from annoyance, embarrassment, oppression or undue burden, as provided in s. 804.01 (3), Stats. The administrative law judge may issue orders to compel discovery.

NR 2.11(2) (2) Discovery in class 1 and 3 proceedings. For good cause shown, the department or the administrative law judge may allow prehearing discovery and the preservation of evidence in any class 1 proceeding or class 3 proceeding as provided under ch. 804, Stats. Any order allowing discovery or the preservation of evidence may include any reasonable limitations on the scope and extent of discovery as the department or the administrative law judge deems appropriate under the circumstances. In class 1 proceedings and class 3 proceedings, the taking and preservation of evidence shall be permitted with respect to a witness in any of the following:

NR 2.11(2)(a) (a) Who is beyond reach of a subpoena for the hearing.

NR 2.11(2)(b) (b) Who is about to go out of the state, not intending to return in time for the hearing.

NR 2.11(2)(c) (c) Who is so sick, infirm or aged as to make it probable that the witness will not be able to attend the hearing.

NR 2.11(2)(d) (d) Who is a member of the legislature, if any committee of the same or the house of which the witness is a member is in session, provided the witness waives his or her privilege.

NR 2.11(3) (3) Completion of discovery. In all contested cases, all discovery shall be completed at least 7 days prior to the date on which the hearing is scheduled to begin, unless otherwise agreed by the parties or ordered by the department or the administrative law judge.

NR 2.11 History History: Cr. Register, March, 1973, No. 207, eff. 4-1-73; am. Register, April, 1976, No. 244, eff. 5-1-76; am. Register, March 1978, No. 267, eff. 4-1-78; am. Register, March, 1984, No. 339, eff. 4-1-84; CR 02-046: renum. and am. (intro) to be (1), cr. (2) and (3) Register September 2004 No. 585, eff. 10-1-04.

NR 2.115 NR 2.115 Alternative dispute resolution.

NR 2.115(1) (1) Alternative settlement recommended. The administrative law judge or the department may, with or without a motion having been filed, upon determining that an action or proceeding is an appropriate one in which to consider a settlement alternative, recommend that the parties select a settlement alternative under s. 802.12, Stats., as a means to attempt settlement. Unless all parties consent, the pursuit of settlement alternatives may not delay the setting of the hearing date or other matters addressed in any scheduling order or conference.

NR 2.115(2) (2) Admissibility. Except for binding arbitration, all settlement alternatives are compromise negotiations for purposes of s. 904.08, Stats., and mediation for purposes of s. 904.085, Stats., and are not admissible in contested case hearings conducted under this chapter.

NR 2.115 History History: CR 02-046: cr. Register September 2004 No. 585, eff. 10-1-04.

NR 2.12 NR 2.12 Informal conferences, prehearing conferences and motions.

NR 2.12(1) (1) Call and purpose. The department or the administrative law judge may call an informal conference or prehearing conference at any time prior to or during the course of a hearing, and may require the attendance of all persons who are or wish to be parties to the proceeding, under s. NR 2.08. The purposes of the conferences shall be to consider, insofar as applicable:

NR 2.12(1)(a) (a) Clarification of issues.

NR 2.12(1)(b) (b) Amendments to the pleadings.

NR 2.12(1)(c) (c) Admissibility of evidence.

NR 2.12(1)(d) (d) The possibility of obtaining admissions or stipulations of fact and of documents which will avoid unnecessary proof.

NR 2.12(1)(e) (e) The identification of witnesses and limitation of the number of witnesses.

NR 2.12(1)(f) (f) The identification of all parties to the proceeding.

NR 2.12(1)(g) (g) The scope and conduct of prehearing discovery.

NR 2.12(1)(h) (h) The exchange of exhibits by all parties prior to the hearing.

NR 2.12(1)(i) (i) Filing of prehearing motions.

NR 2.12(1)(j) (j) Other matters as may aid in the disposition of the matter.

NR 2.12(2) (2) Recording stipulations. The administrative law judge shall record any stipulations made at the conference, which the judge intends shall bind the parties in the proceedings.

NR 2.12(3) (3) Prehearing motions. All motions, notices of motions, and any supporting papers which can reasonably be made prior to the hearing shall be served upon all parties and filed with the administrative law judge at least 7 days prior to the date on which the hearing is scheduled to begin, unless otherwise ordered by the department or the administrative law judge.

NR 2.12(4) (4) Decision on briefs. If an informal conference is held and the parties agree that there is no material dispute of fact raised by the pleadings, the administrative law judge or department may cancel the hearing and may decide the matter on the basis of briefs submitted by the parties.

NR 2.12 History History: Cr. Register, March, 1973, No. 207, eff. 4-1-73; am. (1) and cr. (3), Register, March, 1984, No. 339, eff. 4-1-84; CR 02-046: am. (1) and (2), renum. and am. (3) to be (4), cr. (3) Register September 2004 No. 585, eff. 10-1-04.

NR 2.13 NR 2.13 Conduct of contested case hearings.

NR 2.13(1) (1) Procedure. The administrative law judge shall open the hearing and make a concise statement of its scope and purposes. Appearances shall be entered on the record. The administrative law judge then shall state the issues in the proceedings. Thereafter, parties may make opening statements. Persons who are not identified as parties by the department or the administrative law judge at any prehearing conference for which notice was provided under s. NR 2.08 (5) may participate in the contested case hearing but may not examine or cross examine witnesses at the hearing unless otherwise ordered by the department or the administrative law judge.

NR 2.13(2) (2) Opening statements. When opening statements are made they shall be confined to:

NR 2.13(2)(a) (a) A brief summary or outline in clear and concise form of the evidence intended to be offered; and

NR 2.13(2)(b) (b) A statement of ultimate legal points relied upon.

NR 2.13(3) (3) Order of proceeding and burden of proof. Unless otherwise ordered by the administrative law judge:

NR 2.13(3)(a) (a) In proceedings where the department has issued an order or proposed order and the order recipient requests a hearing on the matter, the department shall proceed first with the presentation of evidence and shall have the burden of proof.

NR 2.13(3)(b) (b) In proceedings in which a person has been granted a review hearing under s. 227.42, 283.63 or 285.81, Stats., or in which persons have filed a complaint under s. 299.91, Stats., those persons shall proceed first with the presentation of evidence and shall have the burden of proof.

NR 2.13(3)(c) (c) Notwithstanding par. (b), in a de novo proceeding under a statute other than s. 283.63, 285.81 or 299.91, Stats., involving issuance of a license, permit or approval, the applicant for the license, permit or approval shall proceed first with the presentation of evidence and shall have the burden of proof.

NR 2.13(3)(d) (d) In all other proceedings not identified in pars. (a) to (c), the administrative law judge shall determine the order of proceeding and who has the burden of proof.

NR 2.13(4) (4) Off record. Proceedings may be conducted off the record only when the administrative law judge permits. If a discussion off the record is deemed pertinent by the administrative law judge, the judge may summarize it on the record.

NR 2.13(5) (5) Objections to evidence. Any argument before the administrative law judge on objections to receipt of evidence or on motions to strike will be recorded and parties will be afforded the opportunity to make an offer of proof.

NR 2.13(6) (6) Contempt. Contemptuous conduct at a hearing may be grounds for exclusion from the hearing or such other remedy as the administrative law judge shall impose by law.

NR 2.13 History History: Cr. Register, March, 1973, No. 207, eff. 4-1-73; r. and recr. (3), Register, June, 1979, No. 282, eff. 7-1-79; am. (1), r. and recr. (3), Register, March, 1984, No. 339, eff. 4-1-84; correction in (3) (b) made under s. 13.93 (2m) (b) 7., Stats., Register, January, 1987, No. 373; correction in (3) (b) made under s. 13.93 (2m) (b) 7., Stats., Register, October, 1999, No. 526; CR 02-046: am. (1), (3) (b), and (4) to (6), cr. (3) (intro.), (c) and (d) Register September 2004 No. 585, eff. 10-1-04.

NR 2.135 NR 2.135 Conduct of noncontested case hearings.

NR 2.135(1) (1) Notice. At least 10 days notice shall be given of the time, date and place of a noncontested case hearing.

NR 2.135(2) (2) Procedure.

NR 2.135(2)(a) (a) The presiding officer will open the hearing and make a concise statement of its scope and purposes. Appearances may be entered on the record. Any person may participate in any department noncontested case hearing. Any person desiring to participate in a department noncontested case hearing, whether on his or her own behalf or as an authorized agent or attorney, shall enter an appearance in person by giving his or her name and address, the name and address of any person being represented, and the capacity in which he or she is representing the person. The hearing may be recorded by use of an electronic recording device.

NR 2.135(2)(b) (b) Persons entering an appearance may make statements, offer evidence or ask questions concerning the matter being heard. Statements need not be made under oath unless required by the department. Cross-examination of those who speak is not permitted, but clarifying questions of those who speak may be allowed by the presiding officer. The presiding officer shall determine the order in which people may speak, and may continue the hearing on another date or limit the length of the presentations if it appears there will not be enough time for all who wish to speak, or if the presentations are unduly repetitious.

NR 2.135(2)(c) (c) Statements may be submitted in oral or written form. Any person may submit a written statement within the time period allowed by the presiding officer.

NR 2.135(4) (4) Transcripts. Typed transcripts of noncontested case hearings will be prepared upon request and receipt of payment. The person requesting the transcript is responsible for all reasonable costs incurred by the department in transcribing the record and preparing the transcript. If more than one person requests a transcript, the department may divide the costs of preparation equally among all such persons. In lieu of a typed transcript, the department may provide any person requesting a transcript with a copy of the tape recording of the hearing, or other record if not recorded on an electronic recording device, upon payment of a reasonable fee.

NR 2.135(5) (5) Applicability. The procedures in this section govern all noncontested case hearings held by the department, except rules hearings, which shall be conducted in accordance with s. 227.18, Stats. This section is applicable to hearings on environmental impact statements, unless it conflicts with the requirements of s. NR 2.085 or ch. NR 150.

NR 2.135 History History: Cr. Register, March, 1984, No. 339, eff. 4-1-84; corrections in (3) (intro.) and (5) made under s. 13.93 (2m) (b) 7., Stats., Register, January, 1987, No. 373; correction in (3) made under s. 13.93 (2m) (b) 1., Stats., Register, October, 1999, No. 526; CR 02-046: am. (2) (a) and (b) and (5), r. (3) Register September 2004 No. 585, eff. 10-1-04.

NR 2.14 NR 2.14 Rules of evidence in contested cases.

NR 2.14(1) (1) Rules. Rules of evidence in contested cases are governed by s. 227.45, Stats.

NR 2.14(2) (2) Admissibility. Evidence submitted at the time of hearing need not be limited to matters set forth in pleadings, petitions or applications. If variances of this nature occur, then the pleadings, petitions or applications shall be considered amended by the record. The administrative law judge may grant continuances as may be necessary to give other parties adequate time to prepare evidence to rebut that involved in any variances.

NR 2.14(3) (3) Technical data. When evidence to be presented consists of technical figures so numerous as to make oral presentation difficult to follow, it may be presented in exhibit form and supplemented and explained by oral testimony.

NR 2.14(4) (4) Petitions. Petitions or written communications not admissible as evidence may be filed with the administrative law judge but will not be part of the record.

NR 2.14(5) (5) Exhibits. Parties offering documentary exhibits or prepared testimony may be required by the administrative law judge to furnish copies to all other parties in advance of the hearings and to provide reasonable time as the administrative law judge may order to enable review of the prepared written testimony and exhibits. Upon compliance, written testimony and exhibits may be admitted in evidence as though given orally, providing the authors are present at the hearing and available for cross-examination.

NR 2.14(6) (6) Environmental impact statement. An environmental impact statement and all comments received by the department on it prior to the contested case hearing shall be received into the record of the contested case hearing under ss. 908.03 (6) and (8) and 227.45, Stats. The environmental impact statement and comments received on it shall be considered along with hearing testimony in making a decision on the merits of the proposed action, and in making findings on compliance with s. 1.11, Stats. Testimony regarding the content of the environmental impact statement or cross-examination of persons responsible for specific portions of the environmental impact statement shall be allowed, except as otherwise provided by law. No person may use an environmental impact statement or any portion thereof as the exclusive means of meeting a burden of proof of any statutory requirements for an approval, license or permit in a contested proceeding except upon stipulation of the parties.

NR 2.14 History History: Cr. Register, March, 1973, No. 207, eff. 4-1-73; am. (1) and cr. (6), Register, March, 1984, No. 339, eff. 4-1-84; r. and recr. (6), Register, June, 1985, No. 354, eff. 7-1-85; am. (6), cr. (7), Register, January, 1987, No. 373, eff. 2-1-87; corrections in (1) made under s. 13.93, (2m) (b) 7., Stats., Register, January, 1987, No. 373; CR 02-046: am. (2) and (4) to (7) Register September 2004 No. 585, eff. 10-1-04; CR 13-022: r. (7) Register March 2014 No. 699, eff. 4-1-14.

NR 2.15 NR 2.15 Close of hearing.

NR 2.15(1) (1) Closing and briefs. A hearing in a contested case shall be closed upon completion of the submission of all evidence and expiration of the period fixed for filing of briefs. If the time for filing briefs has expired and the brief of one or more parties is not filed within that time, the department or administrative law judge may proceed to the determination of the case. Extension of time to file briefs may be granted by the department or the administrative law judge upon good cause shown.

NR 2.15(2) (2) Additional evidence. If by stipulation of the parties, documentary evidence is permitted to be submitted after the close of testimony, the record will be closed when the documentary evidence is received by the department or when the specified time for furnishing it has elapsed without its being furnished. The administrative law judge may, upon the request of the stipulating parties, extend the time as originally prescribed for filing the additional evidence.

NR 2.15 History History: Cr. Register, March, 1973, No. 207, eff. 4-1-73; am. (1) Register, March, 1984, No. 339, eff. 4-1-84; CR 02-046: am. Register September 2004 No. 585, eff. 10-1-04.

NR 2.155 NR 2.155 Decisions in contested cases.

NR 2.155(1) (1) Administrative law judge decision. The administrative law judge shall prepare findings of fact, conclusions of law and decision subsequent to each contested case heard. Unless the department petitions for judicial review as provided in s. 227.46 (8), Stats., the decision shall be the final decision of the department, but may be reviewed in the manner described in s. NR 2.20. Every decision shall include findings regarding compliance with the requirements of s. 1.11, Stats., to the extent compliance with s. 1.11, Stats., was at issue in the contested case.

NR 2.155(2) (2) Secretary decision.

NR 2.155(2)(a) (a) Notwithstanding sub. (1), the secretary, prior to hearing, may direct that the record be certified to the secretary or secretary’s designee for decision in accordance with the provisions of s. 227.46 (3) (b), Stats., without an intervening decision by the administrative law judge.

NR 2.155(2)(b) (b) Notwithstanding sub. (1), the secretary, prior to hearing, may direct that the decision be made in accordance with the provisions of s. 227.46 (2) or (4), Stats.

NR 2.155(3) (3) Parties. Pursuant to s. 227.47, Stats., the administrative law judge under sub. (1), or the secretary or secretary’s designee under sub. (2), shall include in the decision a list of the names and addresses of all persons who appeared at the hearing and who are considered parties for purposes of review under s. 227.53, Stats. This list may differ from the list of parties prepared under s. NR 2.08, and shall be based on all of the following criteria:

NR 2.155(3)(a) (a) Nature of agency proceeding.

NR 2.155(3)(b) (b) Nature and effect of decision made.

NR 2.155(3)(c) (c) Nature of participation by those involved in the proceeding, including attendance at hearings and presentation of oral or written statements.

NR 2.155 History History: Cr. Register, December, 1976, No. 252, eff. 1-1-77; emerg. am. (2) (a), eff. 10-1-82; am. (2) (a), Register, May, 1983, No. 329, eff. 6-1-83; am. (1), Register, June, 1985, No. 354, eff. 7-1-85; am. (1), Register, September, 1986, No. 369, eff. 10-1-86; CR 02-046: am. (1) and (2) cr. (3) Register September 2004 No. 585, eff. 10-1-04.

NR 2.157 NR 2.157 Decisions in noncontested cases.

NR 2.157(1) (1) Decisions when an environmental analysis is completed. For any decision arising out of a noncontested case hearing, the department may not commence, engage in, fund, approve, conditionally approve, or disapprove an action that has been the subject of a department prepared environmental analysis until it has made a written findings of fact, conclusions of law and decision on compliance with s. 1.11, Stats. The decision shall include findings on all of the following whether:

NR 2.157(1)(a) (a) The department has considered the environmental analysis and comments received on it.