Chapter NR 2

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.

NR 2.157(1)(b) (b) The department has complied with the requirements of ch. NR 150 and s. 1.11, Stats.

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 History History: 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 2.16 NR 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 2.16 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 2.17 NR 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 History History: 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 NR 2.18 Briefs.

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 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 2.19 NR 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)(a) (a) The name and address of the applicant;

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) (5) Decision.

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)1. 1. Section 285.70, Stats.

NR 2.19(5)(b)2. 2. Section 289.09, Stats.

NR 2.19(5)(b)3. 3. Section 291.15, Stats.

NR 2.19(5)(b)4. 4. Section 293.47, Stats.

NR 2.19(5)(b)5. 5. Section 283.55, Stats.

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?

NR 2.19(5)(c)2. 2. Does the contested information have any value to the possessor? To a competitor? Is that value substantial?

NR 2.19(5)(c)3. 3. What damage, if any, would the possessor of the secret suffer from its disclosure? What advantages would its competitors reap from disclosure?

NR 2.19(5)(c)4. 4. What benefits are likely to flow from disclosure? To whom? Are they significant? In this connection, what is the public “need” for disclosure? Can it be satisfied in any other way?

NR 2.19(5)(d) (d) The definition of “trade secret” in s. 134.90 (1), Stats., is adopted to apply to determinations made pursuant to s. 283.55, Stats.

NR 2.19(5)(e) (e) A decision to approve the request in whole or in part shall be published by the department as a class 1 notice in the official state newspaper, and such other notice as the department deems appropriate shall be provided. The applicant or any interested member of the public may obtain an adjudicatory hearing on the decision to grant the request in whole or in part by petitioning the department for such a hearing within 10 days of publication of the notice. If the decision is to deny the request, the applicant shall be notified in writing of the decision by the department, and shall have 15 days from the date of mailing of the decision to petition the department for an adjudicatory hearing on the decision. A decision to grant confidential status may state a term for which confidential status is granted. Upon expiration of the stated term, the confidential status shall terminate, unless it is renewed upon proper application.

NR 2.19(6) (6) Hearing on the decision.

NR 2.19(6)(a) (a) If the department grants a request under s. 227.42, Stats., for a contested case hearing on the decision to grant or deny confidential status, the department and any interested party may appear and present evidence or testimony supporting its position. A class 1 notice of the hearing shall be published by the department in the official state newspaper, and other notice as the department deems appropriate shall be provided.

NR 2.19(6)(b) (b) The hearing shall be before an administrative law judge and testimony shall be under oath and subject to cross-examination. The burden of establishing the confidential status shall be with the applicant who sought confidential status for the information which is the subject of the hearing.

NR 2.19(6)(c) (c) The administrative law judge shall exercise discretion to determine which individuals may have access to information alleged to be confidential and shall exercise the authority provided by law to impose protective measures and conditions for inspection necessary to safeguard confidentiality of the information during and after the hearing.

NR 2.19(7) (7) Decision following hearing. If a hearing is held, the decision of the administrative law judge shall be the final decision of the department. The decision of the administrative law judge shall be in writing, shall include findings of fact and conclusions of law, and shall be provided to all parties to the hearing.

NR 2.19(8) (8) Interim confidential status. Information for which confidential status has been requested shall be kept confidential by the department while it makes its decision under this section. Information for which confidential status has been denied may not be open to public scrutiny until 40 days after issuance of the denial. If the denial is appealed, the information may not be open to public scrutiny until 40 days after completion of all appeals. Additional information supplied by the applicant to support the request for confidentiality shall be treated as confidential if the applicant so requests and the applicant demonstrates that the additional information is entitled to confidential treatment under this section.

NR 2.19 History History: Emerg. cr. eff. 1-1-75; Cr. Register, May, 1975, No. 233, eff. 6-1-75; r, and recr. Register, July, 1978, No. 271, eff. 8-1-78; am. (5) (b) and (e), Register, March, 1984, No. 339, eff. 4-1-84; corrections in (5) (b), (c) and (d) made under s. 13.93 (2m) (b) 7., Stats., Register, October, 1999, No. 526; CR 02-046: am. (4), (5) (a), (b), (c) (intro.), (d) and (e), and (6) to (8), r. (9) Register, September 2004 No. 585, eff. 10-1-04.

NR 2.195 NR 2.195 Public records and information.

NR 2.195(1) (1) It is vital that the public receive factual information on the affairs of state government through all forms of communication. Whether the information is requested by media representatives or individual citizens, department employees shall assist in securing facts necessary to allow understanding of and participation in government and government agencies.

NR 2.195(2) (2) Department employees are authorized to answer questions within their competency, whether these are asked by the public or by representatives of the news media. Employees are responsible for the factual accuracy of the information they provide. Requests to inspect department records shall be referred to the custodian of the records.

NR 2.195(3) (3) In cases where the regional or bureau directors are concerned that the public interest in withholding inspection outweighs the public interest in permitting it, the file or requested information shall be provided to the secretary, deputy secretary or division administrator for review with the bureau of legal services and for determination.

NR 2.195(4) (4) Regional and bureau directors are designated as custodians of their respective department regional and central office records and files and are delegated the responsibility for them as well as the authority to provide copies or inspection as provided herein.

NR 2.195(5) (5) 

NR 2.195(5)(a) (a) Requests for copies of records and files shall be complied with unless the records fall within the categories in ss. 19.35 (1) (am), 19.356 and 19.36, Stats. The requestor shall pay the copying charge for 10 or more pages. For 9 or fewer pages, there shall be no charge. Copies shall be provided to the requestor as soon as possible.

NR 2.195(5)(b) (b) When a request requires a large amount of copy work, the department may require an advance payment of the copying charge and shall inform the person requesting the copy work that there will be an approximate processing period of 2 weeks. Unusually large requests may take longer than 2 weeks. When the copying work takes 3 or more hours, the person requesting the records shall pay the department an amount equivalent to the salary, including fringe benefits, of the person doing the copying work, prorated for the amount of time the work takes. The person requesting the records may pay the charge for the employee’s salary after the work is completed.

NR 2.195(6) (6)