The Regulatory Process

Why does DEEP use regulations in addition to statutes?¹

Very often the General Assembly passes legislation that delegates regulatory authority to the commissioner of the Department of Energy and Environmental Protection. Once the Governor signs this type of legislation into law, the Department is authorized (or in some cases mandated) to draft regulations.

What is a regulation?

Generally speaking, a regulation is that part of the law that is known as administrative law. Regulations are what state agencies like DEEP use to more specifically establish how a general law (say a statutory requirement to improve water quality) is to be implemented. In Connecticut, the term regulation is defined in state statute²:

"Regulation" means each agency statement of general applicability, without regard to its designation, that implements, interprets, or prescribes law or policy, or describes the organization, procedure or practice requirements of any agency. The term includes the amendment or repeal of a prior regulation, but does not include (A) statements concerning only the internal management of any agency and not affecting private rights or procedures available to the public, (B) . . . or (C) intra-agency or interagency memoranda.

What is the Connecticut Uniform Administrative Procedure Act (UAPA)?

In 1972, Connecticut enacted a uniform state law known as the Uniform Administrative Procedure Act. This law is codified in the General Statutes of Connecticut (CGS) as Chapter 54 (Sections 4-166 et. seq.). Connecticut’s UAPA establishes procedures that state agencies must follow when performing listed administrative functions. One of the administrative functions that a state agency (like DEEP) performs is the development of regulations that are codified into the Regulations of Connecticut State Agencies (RCSA). The Connecticut UAPA sets out the procedures that state agencies must follow to adopt regulations. In Connecticut, a standing committee of the General Assembly (Regulations Review Committee) must ultimately approve a regulation before it becomes law. Regulations are given the same weight as statutes once the regulations have been properly enacted.

What is the procedure for making regulations (rulemaking)?

In addition to defining the term regulation, Chapter 54 of the CGS requires that each state agency "adopt as a regulation rules of practice".³ DEEP adopted Rules of Practice that are codified in RCSA Sections 22a-3a-2 through 22a-3a-6.  DEP and DPUC each promulgated Rules of Practice prior to merging into DEEP.  (Public Act 11-80)   PURA’s Division of Adjudications utilizes the former DPUC regulations, while the Environmental Protection Office of Adjudications utilizes the former DEP regulations.

RCSA Section 22-3a-3 entitled Regulation-making describes the procedures the Department must follow.  These regulations must be read in conjunction with CGS Section 4-167 through 4-174.

What is an emergency regulation?

Connecticut’s UAPA describes a special procedure for adopting emergency regulations. Codified at Section 4-168(f), an emergency regulation can be adopted by a state agency in an abbreviated way. Highlights of the emergency regulation process include situations in which:

• there is an imminent peril to the public health, safety or welfare or
• the Commissioner of Energy and Environmental Protection needs to comply with the provisions of interstate fishery management plans adopted by the Atlantic States Marine Fisheries Commission or to meet unforeseen circumstances or emergencies affecting marine resources

What typical steps are involved in adopting regulations?

The following are some of the important steps DEEP typically follows when developing regulations:

• The Department announces its decision to pursue regulation adoption or amendment.
• The need for an advisory group (and coordination with other state agencies) is evaluated and usually convened.
• DEEP legal counsel works with staff and stakeholders to complete the regulatory proposal.
• An Assistant Attorney General is consulted for an informal review.
• An draft fiscal note, certification sheet, public notice, small business impact statement, appointment of hearing officer, and statement of purpose is prepared.
• A public "Notice of Intent to Adopt / Amend Regulations" is approved by DEEP legal counsel and sent to the Connecticut Law Journal for publication. (Such notice must be published 30 days before any hearing is held.)
• Hearing held if properly requested or on Department’s own initiative.
• Public comment accepted.
• Hearing record closed.
• Hearing report, final proposed regulations and revised fiscal note prepared by DEEP.
• Final proposed regulations and associated documents approved by Bureau Chief, Deputy Commissioner and Commissioner.
• Final proposed regulation and fiscal note submitted to OPM.
• Notice of availability of regulation and hearing report mailed to everyone that commented on the regulations and certification of mailing done. (Must be mailed 20 days before submittal to Regulations Review Committee.)
• Formal submission of the regulatory package to the Attorney General for a legal sufficiency determination.
• Submission to Regulations Review Committee of the General Assembly and Office of Fiscal Analysis (for required regulations, must be 180 days after public notice published.)
• Regulation Review Committee considers proposed regulations.
• If rejected, the regulation may be resubmitted to Regulations Review Committee and Office of Fiscal Analysis (for required regulations, must be resubmitted by 1^st Tuesday of 2^nd month after rejection.)
• Regulation filed with Secretary of State (within 14 days of Regulation Review Committee approval.)
• Regulation published in Connecticut Law Journal.
• Regulation published in Regulations of Connecticut State Agencies.

¹ See the State of Connecticut Manual for Drafting Regulations prepared by the Legislative Commissioner's Office (Rev Dec. 2009) for more detailed information.

²  CGS Section 4-166(13)

³  CGS Section 4-167