§ 58-33-110 — Certificate required before construction of major utility facility; transfer and amendment of certificate; exceptions; emergency certificates.

South Carolina § 58-33-110

• Jurisdiction: South Carolina
• Title 58: PUBLIC UTILITIES, SERVICES AND CARRIERS
• Ch. 33: UTILITY FACILITY SITING AND ENVIRONMENTAL PROTECTION

Text

(1) No person shall commence to construct a major utility facility without first having obtained a certificate issued with respect to such facility by the commission. The replacement of an existing facility with a like facility, as determined by the commission, shall not constitute construction of a major utility facility. Upon application for a determination by the commission that a proposed utility facility constitutes a like facility replacement, the commission must issue a written order approving or denying the application within sixty days of filing. Any facility, with respect to which a certificate is required, shall be constructed, operated, and maintained in conformity with the certificate and any terms, conditions, and modifications contained therein. A certificate may only be issued pursuant to this chapter; provided, however, any authorization relating to a major utility facility granted under other laws administered by the commission shall constitute a certificate if the requirements of this chapter have been complied with in the proceeding leading to the granting of such authorization. (2) A certificate may be transferred, subject to the approval of the commission, to a person who agrees to comply with the terms, conditions and modifications contained therein. (3) A certificate may be amended. (4) This chapter shall not apply to any major utility facility: (a) the construction of which is commenced within one year after January 1, 1972; or (b) for which, prior to January 1, 1972, an application for the approval has been made to any federal, state, regional, or local governmental agency which possesses the jurisdiction to consider the matters prescribed for finding and determination in subsection (1) of Section 58-33-160; or (c) for which, prior to January 1, 1972, a governmental agency has approved the construction of the facility and indebtedness has been incurred to finance all or part of the cost of such construction; or (d) which is a hydroelectric generating facility over which the Federal Energy Regulatory Commission has licensing jurisdiction; or (e) which is a transmission line or associated electrical transmission facilities constructed by the South Carolina Public Service Authority: (i) for which construction either is commenced within one year after January 1, 2022; (ii) which is necessary to maintain system reliability in connection with the closure of the Winyah Generating Station, provided that such transmission is not for generation subject to this chapter; or (iii) which is necessary to serve an identified commercial or industrial customer to promote economic development or industry retention as determined by the South Carolina Public Service Authority and agreed to by the Office of Regulatory Staff. In the event such an agreement is reached, the Office of Regulatory Staff shall provide a letter to the commission and the Public Utilities Review Committee with a description of the agreement. (5) Any person intending to construct a major utility facility excluded from this chapter pursuant to subsection (4) or Section 58-33-20(10) of this section may elect to waive the exclusion by delivering notice of the waiver to the commission. This chapter shall thereafter apply to each major utility facility identified in the notice from the date of its receipt by the commission. (6) The commission shall have authority to waive the normal notice and hearing requirements of this chapter and to issue a certificate on an emergency basis if it finds that immediate construction of a major utility facility is justified by public convenience and necessity; provided, that the Public Service Commission shall notify all parties concerned under Section 58-33-140 prior to the issuance of such certificate; provided, further, that the commission may subsequently require a modification of the facility if, after giving due consideration to the major utility facility, available technology and the economics involved, it finds such modification necessary in order to minimize the environmental impact. (7) The commission shall have authority, where justified by public convenience and necessity, to grant permission to a person who has made application for a certificate under Section 58-33-120 to proceed with initial clearing, excavation, dredging, and construction. Pending an application for determination of a like facility, no permission from the commission shall be required to proceed with initial clearing, excavation, dredging, and initial construction of any proposed like facility; provided that in engaging in such clearing, excavation, dredging, or construction, the person shall proceed at his own risk, and such early action in advance of a determination shall not in any way indicate approval by the commission of the proposed site or like facility. (8)(a) In seeking a certificate, the applicant must provide credible information demonstrating that the facility to be built has been compared to other generation options in terms of cost, reliability, schedule constraints, fuel cost and availability, transmission constraints and costs, ancillary services capabilities, current and reasonably expected future environmental costs and restrictions, that the facility supports system efficiency and reliability in light of those considerations, and any other regulatory implications deemed legally or reasonably necessary for consideration by the commission. The commission is authorized to adopt rules for such evaluation of other generation options. (b) The Office of Regulatory Staff may provide to the commission a report that includes any or all of the following: (i) an assessment of an unbiased independent evaluator retained by the Office of Regulatory Staff as to reasonableness of any certificate sought under this section for new generation; (ii) a report from the independent evaluator to the commission regarding the transparency, completeness, and integrity of bidding processes, if any; (iii) an assessment of whether there was a reasonable period for interested parties to review and comment on proposed requests for proposals, bid instructions, and bid evaluation criteria, if any, prior to finalization and issuance, subject to any trade secrets that could hamper future negotiations; however, the independent evaluator may access all such information; (iv) an assessment of whether the facility is consistent with an integrated resource plan or update previously filed with the commission or is otherwise justified by generation planning modeling comparable to that filed as part of the utility's integrated resource plan but updated with current data concerning system loads, fuel prices, environmental regulations, location-specific transmission costs, updated construction costs and updated construction timelines, updated costs of gas supply facilities, if any, and other relevant costs, schedules or inputs establishing that the facility in question supports system economy and reliability; and (v) an assessment detailing the treatment of utility affiliates as compared to nonaffiliates participating in the request for proposal process, if any. (9) The applicant may, but must not be required to, issue requests for proposals or otherwise conduct market procurement activities in support of the showings required pursuant to this chapter. (10) Not withstanding any other provision in this section, an electrical utility serving customers in this state may seek a certificate of public convenience and necessity when building a major utility facility, as defined in Section 58-33-20(2), in another state but within the electrical utility's balancing area serving customers in South Carolina. In such a case, the provisions of Sections 58-33-120, 58-33-140, and 58-33-160(1)(b), (c), and (e) shall not apply, but all other requirements of this section affecting customers in this state shall apply. In addition: (a) an applicant for a certificate shall file an application with the commission in such form as the commission may prescribe. The application must contain the following information: (i) a description of the location and of the major utility facility to be built; (ii) a summary of any studies which have been made by or for the applicant of the environmental impact of the major utility facility; (iii) a statement explaining the need for the major utility facility; (iv) any other information the applicant may consider relevant or as the commission may by regulation or order require. A copy of the report referred to in item (8)(b) must be filed with the commission, if ordered by the commission, and shall be available for public information. (b) If the commission denies an application made pursuant to this section and the utility continues to build such major utility facility, the utility must allocate all costs and benefits associated with the major utility facility away from the utility's South Carolina customers. (c) If the commission approves an application made pursuant to this subsection, the commission, for all future requests related to the major utility facility, shall utilize South Carolina law in determining costs and benefits for the utility's South Carolina customers.

Legislative History

HISTORY: 1962 Code SECTION 58-1810; 1971 (57) 889; 2019 Act No. 62 (H.3659), SECTION 9, eff May 16, 2019; 2021 Act No. 90 (H.3194), SECTION 9, eff June 15, 2021; 2025 Act No. 41 (H.3309), SECTION 20, eff May 12, 2025. Editor's Note 2025 Act No. 41, SECTION 1, provides as follows: "SECTION 1. This act may be cited as the 'South Carolina Energy Security Act.' " 2025 Act No. 41, SECTION 33, provides as follows: "SECTION 33. (A) To foster economic development and future jobs in this State resulting from the supply chains associated with the same while supporting the significant and growing energy and capacity needs of the State, enhance grid resiliency, and maintain reliability, the General Assembly finds that the State of South Carolina should take steps necessary to encourage the development of a diverse mix of long-lead, clean generation resources that may include nuclear and advanced nuclear, biomass as defined in Section 12-63-20(B)(2) of the S.C. Code, hydrogen-capable resources, fusion energy, and other technologies, and should preserve the option of efficiency development of such long-lead resources with timely actions to establish or maintain eligibility for or capture available tax or other financial incentives or address operational needs. "(B) For an electrical utility to capture available tax or other financial or operational incentives for South Carolina ratepayers in a timely manner, the commission may find that actions by an electrical utility in pursuit of the directives in Section 58-37-35(A) are in the public interest, provided that the commission determines that such proposed actions are in the public interest and reasonably balance economic development and industry retention benefits, capacity expansion benefits, resource adequacy and diversification and potential risks, costs, and benefits to ratepayers and otherwise comply with all other legal requirements applicable to the electrical utility's proposed action. For the South Carolina Public Service Authority, the Office of Regulatory Staff and the Public Service Authority's board of directors shall apply the same principles described in this subsection in evaluating and approving actions proposed by the management of the Public Service Authority to achieve the objectives of this section." 2025 Act No. 41, SECTION 41, provides as follows: "SECTION 41. (A) Five years after the effective date of this act, the Office of the Regulatory Staff shall prepare a report, to be filed with the Public Utilities Review Committee and the General Assembly, to address the implementation of Article 24, Chapter 27, Title 58 as it relates to the following areas: "(1) assessing the functioning of the procedures established by section with recommendation for any changes required to ensure their efficient functioning, to promote regulatory efficiency, and to make further the establishment of just, reasonable, and fair rates; "(2) assessing the effect of rates on ratepayers of all classes; "(3) assessing the reliability of the electric system and whether investments made by electric utilities increased reliability compared to any change in electric utility rates experienced by ratepayers within the same timeframe; and "(4) any other information requested by the General Assembly to be included within the report. "(B) The Office of Regulatory Staff may engage a qualified, independent third party to assist in preparation of the report. "(C) All expenses and charges incurred by the Office of Regulatory Staff in the performance of its duties within this section may be defrayed by assessments made by the Comptroller General against the regulated electrical utilities regulated and based upon twenty-five percent of the gross revenues collected by such electrical utilities from their business done wholly within this State in the manner set out in Section 58-4-60 for other corporations." 2025 Act No. 41, SECTION 42, provides as follows: "SECTION 42. Upon passage of this act, Dominion Energy shall evaluate the process for converting the Wateree Generating Station from coal-fired generation to biomass-fired generation. Biomass-fired generation includes, but is not limited to, generation from the firing of wood pellets and wood chips. Dominion Energy must make a report concerning the conversion process to the Public Service Commission and General Assembly by no later than January 13, 2026." Effect of Amendment 2019 Act No. 62, SECTION 9, added (8), providing for a mandatory demonstration before commencing construction of major utility facility. 2021 Act No. 90, SECTION 9, in (4), made nonsubstantive changes throughout, and added (e). 2025 Act No. 41, SECTION 20, rewrote the section.