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.