SC Code § 58-33-110 (2021)
2021 South Carolina Code of Laws|Title 58 - Public Utilities, Services and Carriers|Chapter 33 - Utility Facility Siting And Environmental Protection|Section 58-33-110. Certificate required before construction of major utility facility; transfer and amendment of certificate; exceptions; emergency certificates.

 (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. 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.  (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;  (d) which is a hydroelectric generating facility over which the Federal Power Commission has licensing jurisdiction; or  (e) which is a transmission line or associated electrical transmission facilities constructed by the South Carolina Public Service Authority, for which construction either is commenced within one year after January 1, 2022, or 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.  (5) Any person intending to construct a major utility facility excluded from this chapter pursuant to subsection (4) 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; provided, however, that in engaging in such clearing, excavation, dredging or construction, the person shall proceed at his own risk, and such permission shall not in any way indicate approval by the Commission of the proposed site or facility.  (8)(a) Notwithstanding the provisions of item (7), and not limiting the provisions above, a person may not commence construction of a major utility facility for generation in the State of South Carolina without first having made a demonstration that the facility to be built has been compared to other generation options in terms of cost, reliability, 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 commission may, upon a showing of a need, require a commission-approved process that includes:  (i) the 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) 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) independent evaluator access and review of final bid evaluation criteria and pricing information for any and all projects to be evaluated in comparison to the request for proposal bids received;  (v) access through discovery, subject to appropriate confidentiality, attorney-client privilege or trade secret restrictions, for parties to this proceeding to documents developed in preparing the certificate of public convenience and necessity application;  (vi) a demonstration that the facility is consistent with an integrated resource plan approved by the commission; and  (vii) treatment of utility affiliates in the same manner as nonaffiliates participating in the request for proposal process.  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.  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).