Chapter TCS 12

TCS 12.09 TCS 12.09 Distribution and review of the FEIS.

TCS 12.09(1) (1) Distribution. The FEIS shall be distributed in the same manner as the DEIS under s. TCS 12.07, and shall also be distributed to any person, organization or agency that submitted comments on the DEIS.

TCS 12.09(2) (2) Notice of availability. The availability of the FEIS will be announced through a notice similar to the notice of availability of the DEIS under s. TCS 12.07 (3).

TCS 12.09(3) (3) Requested copies. A charge may be assessed to individuals or groups requesting the FEIS to cover reproduction and handling costs.

TCS 12.09(4) (4) Period of time for comment on the FEIS. A period of not less than 30 days from the date the FEIS is mailed shall be allowed for receipt of comments from state and federal agencies and the public.

TCS 12.09(5) (5) Public hearing. The board shall hold a public hearing on the FEIS. The hearing shall be announced through the notice of availability of the FEIS which shall be published as a class I notice, under ch. 985, Stats., at least 25 days prior to the hearing in a newspaper circulated in the affected area or, for actions of statewide significance, in the official state newspaper.

TCS 12.09 History History: Cr. Register, April, 1987, No. 376, eff. 5-1-87; correction in (1) and (2) made under s. 13.93 (2m) (b) 7., Stats., Register, June, 1994, No. 462.

TCS 12.10 TCS 12.10 Contested case hearing.

TCS 12.10(1) (1) Petition for contested case hearing. The board shall grant a petition for a contested case hearing on the FEIS when the petition contains a statement of the specific reasons why the petitioner believes a contested case hearing should be held and the petition contains sufficient facts for the board to determine that:

TCS 12.10(1)(a) (a) The petitioner satisfies the criteria of s. 227.42, Stats.; or

TCS 12.10(1)(b) (b) The petitioner has an individual interest in the outcome of the proceeding and a public interest will be served by holding a contested case hearing.

TCS 12.10(2) (2) Time limit for petition. Any petition received by the board requesting a contested case hearing more than 20 days after the date of publication of the notice of availability shall be denied.

TCS 12.10(3) (3) Hearing.

TCS 12.10(3)(a) (a) If the board grants a request for a contested case hearing, the board shall inform the person making the request about the date, time and place of the hearing.

TCS 12.10(3)(b) (b) In the event that more than one request for a contested case hearing on the FEIS is granted, the board shall consolidate the requests and hold one hearing.

TCS 12.10(3)(c) (c) The only issue at the hearing shall be whether the FEIS complies with the requirements of s. 1.11, Stats. The persons who requested the hearing shall have the burden of proving to a reasonable certainty by the greater weight of the credible evidence that the FEIS does not comply with the requirements of s. 1.11, Stats.

TCS 12.10(3)(d) (d) The hearing shall be held in accordance with the board’s general procedural rules for hearings or, in the absence of those rules, the conditions and procedures set out in ss. 227.44 to 227.50, Stats., except as otherwise provided in this subsection. Rescheduling of hearings shall be at the board’s discretion and shall be granted only for good cause.

TCS 12.10(4) (4) Evidence, discovery and disclosure.

TCS 12.10(4)(a) (a) The FEIS shall be received into the hearing record as an exception to the hearsay rule and shall be considered by the board in making its decision for whatever probative value the FEIS has.

TCS 12.10(4)(b) (b) Notwithstanding any other rule of the board, the parties in proceedings under this section shall have the means of discovery, except written interrogatories and depositions on written questions, available to parties through judicial proceedings set forth in ch. 804, Stats.

TCS 12.10(4)(c) (c) Not less than 10 days before the hearing the parties shall file with the board:

TCS 12.10(4)(c)1. 1. The names and addresses of all witnesses, including adverse witnesses, that the party may call to testify at the hearing;

TCS 12.10(4)(c)2. 2. A detailed written summary of the testimony to be elicited from each witness identified in subd. 1., including any option or conclusion of the witness on any matter relevant to the proceedings and the facts and data underlying that opinion or conclusion. The summary shall be an oath or affirmation; and

TCS 12.10(4)(c)3. 3. A copy of any document or other writing, except the FEIS, and a copy or detailed description of any demonstrative evidence the party may offer into evidence as exhibits.

TCS 12.10(4)(d) (d)

TCS 12.10(4)(d)1. 1. Any witness whose name, address and summary of testimony is not provided as required in par. (c) 1. and 2. shall not be permitted to testify at the hearing. No witness may testify on any matter not included in the summary of testimony.

TCS 12.10(4)(d)2. 2. No document or other writing or a copy of detailed description of any demonstrative evidence not filed as provided in par. (c) 3. may be made part of the record.

TCS 12.10(4)(e) (e) Unless objected to by the board, any summary of testimony of a witness for the person who requested the hearing shall be made part of the record in lieu of the testimony of that witness as an exception to the hearsay rule and shall be considered by the board for whatever probative value that testimony has in making its decision. Unless objected to by the person who requests the hearing, any summary of the testimony of a witness for the board shall be made part of the record in lieu of the testimony of such witness as an exception to the hearsay rule and shall be considered by the board for whatever probative value that testimony has in making its decision.

TCS 12.10 History History: Cr. Register, April, 1987, No. 376, eff. 5-1-87.

TCS 12.11 TCS 12.11 Record of decision. Where an EIS is prepared, the board shall also, at the time of its final decision, prepare a record of decision. The record of decision shall identify all alternatives considered in the order of their environmental preference. The record of decision for the alternative selected shall state whether all practicable means to avoid or minimize environmental harm have been adopted, and if not, why they were not.

TCS 12.11 Note Note: The final draft of the EIS issued by the board, and the record of decision provided in s. TCS 12.09, are intended to satisfy the decision requirement of s. 227.47, Stats.

TCS 12.11 History History: Cr. Register, April, 1987, No. 376, eff. 5-1-87.