§ 58-31-730 — Retail rate adjustment process; notice; interim rates; judicial review.

Prior to creating or revising any of its board-approved retail rate schedules, the Public Service Authority, through resolution of its board of directors or otherwise, shall adopt a process that shall include the following: (A) The Authority shall provide notice to all customers at least one hundred and eighty days before the board of directors' vote on a proposed rate adjustment. (1) The one hundred and eighty days' notice required under this section is established to allow customers to provide comments to the Authority as follows: (a) written comments to the Authority for ninety days from the date of notice; and (b) oral comments to the Authority for one hundred twenty days from the date of notice. (2) The notice required by this subsection must be given in the following forms: (a) by first-class United States mail addressed to the customer's billing address in the Authority's records at the time of the notice, or for customers who have elected paperless billing, by the same means of communication used for providing these customers paperless billing; (b) by advertisements to be published in newspapers of general circulation within the service territory of the Authority; (c) by way of the Authority's regularly maintained website, including a conspicuous portal or link accessible from the website's landing page; and (d) by issuance of a news release to local news outlets. (3) The notice of proposed rate adjustments required by this subsection shall contain the following information: (a) the date, time, and location of all public meetings; (b) the date, time, and location of the meeting at which a proposed rate adjustment is expected to be submitted to the board of directors for its consideration; (c) the date, time, and location of the meeting at which the board of directors is expected to vote on the proposed rate adjustment; (d) a notification to customers of their right to: (i) review the proposed rate schedules; (ii) appear and speak in person concerning the proposed rates at public meetings or the specified meetings of the board of directors; and (iii) submit written comments; (e) the means by which customers can submit written comments, including the email and physical addresses to which written comments may be submitted, and the deadline for submitting such comments; and (f) the means by which customers can access and review the Authority's written report containing the proposed rate adjustments, the non-proprietary and non-confidential portions of any rate study or other documentation developed by the Authority in support of the rate adjustment which shall be available at the time the notice is issued. (4) Contemporaneously with notice to customers, the Authority shall provide notice of proposed rate adjustments to the Office of Regulatory Staff. (B) In addition to the requirements of notice set forth above, the Authority shall provide for the following in its retail rate adjustment process: (1) the Office of Regulatory Staff must review any rate adjustments proposed to the Authority's board of directors under this article including conducting an inspection, audit, and examination of the proposed rate schedule, revenue requirements, cost-of-service analysis, and rate/tariff design. In accomplishing its responsibilities under this article, the Office of Regulatory Staff must use the authority granted to it pursuant to Section 58-31-225. The Office of Regulatory Staff must treat as confidential or proprietary the information provided by the Authority pursuant to this subsection that is identified by the Authority as such unless or until the Authority agrees that such information is no longer confidential or proprietary. Any disputes concerning whether such information is subject to protection must be resolved by the South Carolina Public Service Commission; (2) a comprehensive review of the Authority's rate structure and rates, consistent with the provisions of Chapter 31, Title 58, and the Public Service Authority's bond covenants concerning the Public Service Authority's revenue requirements, provided that: (a) management may engage consultants as necessary to assist the Authority in completing this review; and (b) this review should include such subjects as the Authority's revenue requirements, rate/tariff design recognizing the provisions of any wholesale power supply agreement, and a comprehensive cost-of-service analysis that includes an allocation of costs, between wholesale and retail customers, and among all classes of retail customers, including residential, commercial and industrial classes; (3) a written report of management's recommendations concerning proposed rate adjustments; (4) beginning no later than the date that notice of the proposed rate adjustment is issued by the Authority, an opportunity for customers and the Office of Regulatory Staff, in advance of the board of directors' consideration and determination of rates, to review the proposed rate schedules and written findings and analyses of employees and consultants retained by the Authority that support the proposed rate adjustments, provided that: (a) the Authority also shall provide customers and the Office of Regulatory Staff access to proposed rate schedules and written findings and analyses of employees and consultants retained by the Authority that support the proposed rate adjustments, such materials to be made available at a physical location, at public meetings, and posted on the Authority's website; and (b) the Authority shall not be required to provide to customers analyses which disclose the commercially sensitive information of individual customers or which is otherwise proprietary or confidential; (5) public meetings, to be held at locations convenient for customers and within the Authority's service territory, provided that: (a) the Authority shall convene at least two public meetings at a minimum of two locations within its service territory for the purpose of presenting the proposed rate adjustment and relevant information regarding the same to customers for their information and comment; (b) customers may appear and speak in person at public meetings and direct comments and inquiries about the rate adjustment to representatives of the Authority; (c) at least one representative of the Authority's staff or management and a quorum of the board of directors shall attend each public meeting; (d) the Authority shall cause a transcript of all such meetings to be prepared and maintained as a public record and for consideration by the board of directors prior to its consideration and vote on a proposed rate adjustment; and (e) the contents of this item must not be construed in such a manner as to prevent the Authority from extending the prescribed timelines, holding additional public meetings, holding additional meetings with customers as may be scheduled from time to time at the convenience of the Authority and the customers, or having additional representatives of staff, management, or the board of directors in attendance at such meetings; (6) the Authority's management shall respond to reasonable questions and requests for information from customers and the Office of Regulatory Staff during the comment period regarding the rate proposal, subject to the appropriate protection of confidential information. All information provided to the Office of Regulatory Staff upon request that is not confidential or proprietary shall be made publicly available immediately following disclosure to the requesting party; (7) submission by the Office of Regulatory Staff of written comments and supporting documentation in the same manner as customers and an opportunity for the Office of Regulatory Staff to provide comments to, and answer questions from, the board of directors; (8) a meeting of the board of directors, separate from its scheduled vote on proposed rate adjustments and no less than one hundred twenty days from the date of notice required pursuant to Section 58-31-730(A), at which the board of directors shall receive written comments received in accordance with Section 58-31-730(A)(1), and transcripts of the public meetings, provided that: (a) at this meeting customers who will be affected by a rate adjustment and other interested parties, including the Office of Regulatory Staff and Consumer Advocate, shall be entitled to appear and speak in person for a reasonable amount of time to offer their comments directly to the board of directors; (b) customer comments received by the Authority prior to this meeting and transcripts of the public meetings shall be submitted to the board of directors for their consideration in the determination of rates; (c) submissions from the Office of Regulatory Staff shall be provided to the board of directors for their consideration in the determination of rates; and (d) the Authority shall cause a transcript of this meeting to be prepared and maintained as a public record; (9) a meeting of the board of directors, separate from its scheduled vote on proposed rate adjustments and no less than one hundred fifty days from the date of notice required pursuant to Section 58-31-730(A), at which it shall receive the Authority management's recommendation, which shall be made publicly available, concerning proposed rate adjustments, the proposed rate schedules, and documentation supporting the same; and (10) a meeting at which the board of directors votes on the proposed rate adjustment, following notice as set forth in subsection (A) and completion of the process implemented by the board of directors pursuant to subsection (B). (C) Rates shall become effective no earlier than sixty days following board approval of proposed rate adjustments. (D) Nothing contained in this section may be construed to limit or derogate from the state's covenants as provided in Sections 58-31-30 and 58-31-360, and those covenants are hereby reaffirmed. (E) The board of directors shall utilize consultants independent from the Authority's management and is authorized to hire independent, outside experts and consultants as necessary to fulfill the board of directors' obligations and duties pursuant to this section. (F) Notwithstanding the provisions of this section, the Authority may place such adjusted rates and charges into effect on an interim basis under emergency circumstances such as the avoidance of default of its obligations and to ensure proper maintenance of its system; these interim rates must not be in effect for more than eighteen months. Said adjusted rates and charges shall be subject to prospective rate adjustment in accordance with the terms of this section, provided further, that the Authority may implement experimental rates on an interim basis for the purpose of developing improved rate offerings for customers. These experimental rates will be enacted for no longer than four years and (a) for large industrial customers, no more than twelve percent of the large industrial customer class except large industrial customers with one hundred megawatts or greater load shall be excluded from any class size limit, and (b) for all other customers no more than five percent of the customers in the class. All experimental rates must be disclosed in public session of the board prior to being enacted and are subject to approval by the board only to the extent that they meet the requirements of Section 58-31-55. (G) Judicial review of decisions by the board of directors under this article shall be by direct appeal to the South Carolina Supreme Court. The service of a notice of appeal from a decision of the board of directors pursuant to this article does not act to automatically stay the matters decided in the decision, in the same manner as provided by Rule 241(b)(11) of the South Carolina Appellate Court Rules. Rate adjustments approved by the board of directors pursuant to this article have been authorized by law. (1) The Office of Regulatory Staff, or any customer who has submitted written or oral comments as permitted under this article is considered a "party in interest" entitled to obtain judicial review of any final decision of the board under this article by appealing in the manner provided by Rule 203(b)(6) of the South Carolina Appellate Court Rules as applicable to appeals from administrative tribunals. No right to appeal accrues unless a request for reconsideration is submitted to the board and refused as set out in S.C. Code Ann. Section 58-31-730(G)(2). (2) Any party in interest seeking to appeal must first submit, within ten days after the decision of the board, a request for reconsideration. The board of directors shall either grant or refuse such request within twenty days of receipt. If the board grants the request for reconsideration, it must meet to consider the request within thirty days. (3) On appeal, the South Carolina Supreme Court may not substitute its judgment for the judgment of the board of directors as to the weight of the evidence on questions of fact. The court may affirm the decision of the board of directors or remand the case to the board of directors for further proceedings. The court may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the board's findings, inferences, conclusions, or decisions are: (a) in violation of constitutional or statutory provisions; (b) in excess of the statutory authority of the Authority; (c) made upon unlawful procedure; (d) affected by other error of law; (e) clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or (f) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion. (H) The procedure provided in this article is the exclusive process for challenging any rate adjustments approved by the board of directors. If a party in interest successfully challenges a rate approval decision on appeal, the exclusive remedy is a prospective adjustment of a new rate by the board of directors. The board of directors possesses authority only to adjust rates prospectively and has no authority to refund amounts collected pursuant to a rate adjustment approved pursuant to this article. The filed rate doctrine protects any such rate adjustment decisions from any collateral attack, which includes, but is not limited to, any claim that a rate adjustment decision by the board of directors violates S.C. Code Ann. Sections 58-31-55, 58-31-56, or 58-31-57.

Legislative History

HISTORY: 2021 Act No. 90 (H.3194), SECTION 11, eff January 1, 2022.