Section 93.190. Appeals and hearings on enforcement decisions.

 

(1)   Hearings.

(a) General. The owner or operator of a tank system may request a hearing with the department, as specified in s. ATCP 1.06 on any decision affecting that person's legal rights, including enforcement orders and any petition-for-variance, material-approval or permit decision issued under the scope of this chapter.

(b) Appeal requirements.

1. All appeals of enforcement orders issued under this chapter shall be in writing and shall be received by the department no later than 15 calendar days after the date of the enforcement order or decision being appealed, except as provided in subd. 2.

2. All appeals of petitions for variance or material-approval or permit decisions issued under this chapter shall be in writing and shall be received by the department no later than 30 calendar days after the date of the decision being appealed.

3. The department may make a determination not to proceed with a request for a hearing depending on the nature of the issue being appealed.

4. Appeals received after the appeal deadline shall be dismissed.

5. For purposes of this section, appeals filed after 4:30 p.m. shall be considered received on the next business day.

6. An appeal shall be signed by the person whose legal rights are affected by the decision being appealed or an attorney representing such person. Any appeal filed by a person other than the person whose legal rights are affected by the decision being appealed or an attorney representing that affected person shall be dismissed.

7. The written appeal shall list every reason the department's or authorized agent's decision is incorrect and shall identify every issue to be considered at the hearing. Issues not raised in the written appeal under this paragraph are considered waived and shall be dismissed.

(c) Response. Upon receipt of notification of hearing from the department, the affected party shall submit to the department a written response within 15 calendar days of the date of service. Failure to respond within the prescribed time limit, or failure to appear at the scheduled hearing, may result in the allegations specified in the complaint being accepted as true and accurate.

(d) Settlement agreement prior to hearing.

1. If the department and the affected party are able to reach preliminary agreement on disposition of a complaint prior to a hearing, such agreement shall be processed in accordance with all of the following:

a. Be transmitted in writing to the secretary of the department or the person so designated by the secretary.

b. Not be binding upon any party until accepted by the secretary of the department or the person so designated by the secretary.

2. The settlement agreement shall be considered a joint motion by the parties to dismiss the appeal in its entirety with prejudice or to dismiss such portions of the appeal with prejudice as may be covered by the terms of the settlement agreement.

(e) Witness fees. Witness fees and mileage of witnesses subpoenaed on behalf of the department shall be paid at the rate prescribed for witnesses in circuit court.

(2)   Conduct of hearings.

(a) All hearings shall be conducted by persons selected by the department in accordance with ch. 227 , Stats.

(b) Persons selected under par. (a) may administer oaths or affirmations and may grant continuances and adjournments for cause shown.

(c) The affected party shall appear in person and may be represented by legal counsel.

(d) Witnesses may be examined by persons designated by the department.

(e) There shall be no prehearing discovery except as provided in s. 227.45 (7) , Stats.

(3)   Determinations.

(a) The department may make determinations and enter its order on the basis of the facts revealed by its investigation.

(b) Any determinations as a result of petition or hearing shall be in writing and shall be binding unless appealed to the secretary of the department.

(4)   Appeal arguments. Appeal arguments shall be submitted to the department in writing unless otherwise ordered.

(5)   Location of hearings.

(a) All hearings shall be held at a location determined by the department.

(b) Telephone testimony of individual witnesses and telephone hearings may be held at the discretion of the person designated by the secretary as hearing officer.

(6)   Hearing transcripts.

(a) All hearings shall be electronically recorded.

(b) Any party may request a copy of the electronic recording.

(c)

1. A transcript of the recorded hearing shall be prepared upon request at the expense of the party requesting the transcript.

2. Copies of transcripts prepared under this subsection shall be provided to the other party or parties upon payment of the actual cost of copying or obtaining a copy of the transcript.

3. The department may require payment in advance.

4. A transcript may be provided at the department's expense to a party who demonstrates impecuniousness or financial need if that party has filed a petition for judicial review.

5. Where the department contracts with a court reporting firm for the preparation of transcripts, the fees charged for transcription and copying shall be equal to the fees charged to the department by the court reporting firm.

(7)   Enforcement action status. Enforcement action shall proceed until such time as an administrative law judge has issued under this subsection a decision overturning or modifying the order.

CR 07-029 : cr. Register November 2008 No. 635 , eff. 2-1-09; correction in (1) (a) made under s. 13.92 (4) (b) 7. , Stats., Register October 2013 No. 694 .

Note

The appellant or an attorney representing the appellant may request an administrative hearing to review this action by delivering, mailing, or faxing a written request for a hearing to one of the following: Microsoft Windows NT 6.1.7601 Service Pack 1 In-person delivery address: Microsoft Windows NT 6.1.7601 Service Pack 1 Department of Agriculture, Trade and Consumer Protection
2811 Agriculture Drive.
Madison, Wisconsin 53708 Microsoft Windows NT 6.1.7601 Service Pack 1 Mailing address: Microsoft Windows NT 6.1.7601 Service Pack 1 Secretary of Department of Agriculture, Trade and Consumer Protection
P.O. Box 8911
Madison WI 53708-8911 Microsoft Windows NT 6.1.7601 Service Pack 1