NR 2.13NR 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 HistoryHistory: 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 2.135NR 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)(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 HistoryHistory: 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 2.14NR 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 HistoryHistory: 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(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 2.155NR 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)(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)(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 HistoryHistory: 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 2.157NR 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. NR 2.157(1)(c)(c) Consistent with social, economic and other essential considerations, the department has adopted all practical means within its authority to avoid or minimize environmental harm, or if not, why. NR 2.157(2)(2) Other decisions. The department shall include a finding regarding compliance with s. 1.11, Stats., and ch. NR 150 in all written decisions, for which a noncontested case hearing has been held. NR 2.157 HistoryHistory: Cr. Register, January, 1987, No. 373, eff. 2-1-87; CR 02-046: am. Register September 2004 No. 585, eff. 10-1-04; CR 13-022: am. (1) (title), (intro.), (a) Register March 2014 No. 699, eff. 4-1-14. NR 2.16NR 2.16 Reopening hearings. When a hearing in a contested case is closed, no further evidence may be received, except by order of the department or the administrative law judge reopening a closed contested case for the taking of further evidence upon application of a party showing to the department’s or the administrative law judge’s satisfaction that the evidence is newly discovered or was not available at the time of the hearing and that the evidence is necessary for a just disposition of the case. NR 2.17NR 2.17 Transcripts in contested cases. NR 2.17(1)(1) Method and copies. Hearings shall be recorded either stenographically or electronically. A typed transcript shall be made when deemed necessary by the department or the administrative law judge. If a transcript is made by the department or the division of hearings and appeals, copies shall be furnished to all persons upon request and payment of a reasonable fee, as determined by the department or the division of hearings and appeals. If no transcript is deemed necessary by the department or the administrative law judge and a party requests that one be prepared, that party shall be responsible for all costs of transcript preparation. If several parties request transcripts, the department may divide the costs of transcription equally among the parties. In lieu of a transcript the department or the division of hearings and appeals may provide any person requesting a transcript with a copy of the tape recording of the hearing upon payment of a reasonable fee. All requests for transcripts shall be made in writing and sent to the administrative law judge who presided at the hearing. NR 2.17(2)(2) Financial need. Any person who by affidavit or other appropriate means can establish to the satisfaction of the department or the administrator of the division of hearings and appeals that the person is impecunious and has a legal need may be provided with a copy of a transcript without charge. NR 2.17(3)(3) Corrections. Any party, within 7 days of the date of mailing of the transcript, may file with the administrative law judge a notice in writing of any claimed error therein, and shall mail a copy of such notice to each party of record. Other parties may contest any claimed error within 12 days of the date of the mailing of the transcript by so notifying the administrative law judge and other parties of record. All parties will be advised by the administrative law judge of any authorized corrections to the record. NR 2.17 HistoryHistory: Cr. Register, March, 1973, No. 207, eff. 4-1-73; am. Register, December, 1976, No. 252, eff. 1-1-77; am. (1) and (2), Register, March, 1984, No. 339, eff. 4-1-84; CR 02-046: am. (1) and (3) Register September 2004 No. 585, eff. 10-1-04. NR 2.18(1)(1) Time for briefs. In contested cases, parties shall indicate on the record after the close of testimony at the hearing whether they desire to file briefs. The administrative law judge may establish a schedule for the filing of briefs. The party or parties having the burden of proof shall file the first brief. Other parties may then file response briefs, which may be replied to. In the alternative, the administrative law judge may direct that briefs of all parties be filed simultaneously. NR 2.18(2)(2) Number. Unless otherwise provided for by the administrative law judge, one copy of all briefs shall be filed with the division of hearings and appeals together with a certification showing when and upon whom copies have been served. Briefs which contain a summary of evidence or facts relied upon shall include reference to specific portions of the record containing the evidence. NR 2.18(3)(3) Effect of early filing. The filing of briefs in less time than allowed does not change the due dates for the remaining briefs. NR 2.18 HistoryHistory: 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 2.19NR 2.19 Confidential status. NR 2.19(1)(1) Applicability. This section establishes a procedure which shall apply to requests made to the department to treat as confidential, information in possession of the department or being requested by the department. NR 2.19(2)(2) Responsibility for establishing confidentiality. The burden of establishing the need for confidential treatment of any information shall be on the person requesting such treatment of the information. NR 2.19(3)(3) Application for confidential status. Any person seeking confidential treatment of information shall file with the department a written application for confidential status containing in affidavit form: NR 2.19(3)(b)(b) The position of the individual filing the application; NR 2.19(3)(c)(c) The specific type of information for which confidential status is sought; NR 2.19(3)(d)(d) The facts and supporting legal authority believed to constitute a basis for obtaining confidential treatment of the information. NR 2.19(4)(4) Additional information. Within 30 days of the receipt of an application, the department shall mail to the applicant a written set of questions if necessary for a determination under this section. If an extension has not been granted and if the applicant fails to answer all the questions in affidavit form within 30 days, the department shall deny the application. The responses to the questions shall be treated as confidential if a request for such treatment from the applicant accompanies the responses, and if the applicant demonstrates that the responses are entitled to confidential treatment under this section. NR 2.19(5)(a)(a) Within 60 days of receipt of a complete application or within 60 days of receipt by the department of the information requested in questions asked pursuant to sub. (4), the department shall issue a written decision on the request for confidentiality. The decision shall include all of the following: NR 2.19(5)(a)1.1. A finding which identifies the type of information sought to be assigned confidential status. NR 2.19(5)(a)2.2. A determination of whether the department has the authority to compel submittal of the information. NR 2.19(5)(a)3.3. If the authority exists, a determination of whether the department is authorized by law to assign confidential status to the type of information at issue. NR 2.19(5)(a)4.4. The decision to deny or to grant the request in whole or in part. NR 2.19(5)(b)(b) A decision to assign confidential status shall be made pursuant to one of the following: NR 2.19(5)(b)6.6. Upon a finding consistent with the ruling in State ex rel. Youmans v. Owens, 28 Wis.2d 672, that confidential treatment of the information is in the public interest. NR 2.19(5)(b)7.7. Other specific statutory or common law right to confidential treatment of information. NR 2.19(5)(c)(c) A decision made pursuant to Youmans shall also include answers to the following questions: NR 2.19(5)(c)1.1. How many people have knowledge of the supposedly “secret” information? Will disclosure increase that number to a significant degree?
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