SC Code § 48-46-40 (2021)
2021 South Carolina Code of Laws|Title 48 - Environmental Protection and Conservation|Chapter 46 - Atlantic Interstate Low-level Radioactive Waste Compact Implementation Act|Section 48-46-40. Fees for disposal of regional and nonregional radioactive waste in regional disposal facilities; disposition of fees; Higher Education Scholarship Grants.

 (A)(1) The office shall approve disposal rates for low-level radioactive waste disposed at any regional disposal facility located within the State. The approval of disposal rates pursuant to this chapter is neither a regulation nor the promulgation of a regulation as those terms are specially used in Title 1, Chapter 23.  (2) The office shall adopt a maximum uniform rate schedule for regional generators containing disposal rates that include the administrative surcharges specified in Section 48-46-60(B) and surcharges for the extended custody and maintenance of the facility pursuant to Section 13-7-30(4) and that do not exceed the approximate disposal rates, excluding any access fees and including a specification of the methodology for calculating fees for large components, generally applicable to regional generators on September 7, 1999. Any disposal rates contained in a valid written agreement that were applicable to a regional generator on September 7, 1999, that differ from rates in the maximum uniform rate schedule will continue to be honored through the term of such agreement. The maximum uniform rate schedule approved under this section becomes effective immediately upon South Carolina's membership in the Atlantic Compact. The maximum uniform rate schedule shall be the rate schedule applicable to regional waste whenever it is not superseded by an adjusted rate approved by the office pursuant to paragraph (3) of this subsection or by special disposal rates approved pursuant to paragraphs (5) or (6)(e) of this subsection.  (3) The office may at any time of its own initiative, at the request of a site operator, or at the request of the compact commission, adjust the disposal rate or the relative proportions of the individual components that constitute the overall rate schedule. Except as adjusted for inflation in subsection (4), rates adjusted in accordance with this section, that include the administrative surcharges specified in Section 48-46-60(B) and surcharges for the extended custody and maintenance of the facility pursuant to Section 13-7-30(4), may not exceed initial disposal rates set by the office pursuant to subsection (2).  (4) In March of each year the office shall adjust the rate schedule based on the most recent changes in the most nearly applicable Producer Price Index published by the Bureau of Labor Statistics as chosen by the office or a successor index.  (5) In consultation with the site operator, the office or its designee, on a case-by-case basis, may approve special disposal rates for regional waste that differ from the disposal rate schedule for regional generators set by the office pursuant to subsections (2) and (3). Requests by the site operator for such approval shall be in writing to the office. In approving such special rates, the office or its designee, shall consider available disposal capacity, demand for disposal capacity, the characteristics of the waste, the potential for generating revenue for the State, or other relevant factors; provided, however, that the office shall not approve any special rate for an entity owned by or affiliated with the site operator. Special disposal rates approved by the office under this subsection shall be in writing and shall be kept confidential as proprietary business information for one year from the date when the bid or the request for proposal containing the special rate is accepted by the regional generator; provided, however, that such special rates when accepted by a regional generator shall be disclosed to the compact commission and to all other regional generators, which shall, to the extent permitted by applicable law, keep them confidential as proprietary business information for one year from the date when the bid or request for proposal containing this special rate is accepted by the regional generator. Within one business day of a special disposal rate's acceptance, the site operator shall notify the office, the compact commission, and the regional generators of each special rate that has been accepted by a regional generator, and the office, the compact commission, and regional generators may communicate with each other about such special rates. If any special rate approved by the office for a regional generator is lower than a disposal rate approved by the office for regional generators pursuant to subsections (2) and (3) for waste that is generally similar in characteristics and volume, the disposal rate for all regional generators shall be revised to equal the special rate for the regional generator. Regional generators may enter into contracts for waste disposal at such special rates and on comparable terms for a period of not less than six months. An officer of the site operator shall certify in writing to the office and the compact commission each month that no regional generator's disposal rate exceeds any other regional generator's special rate for waste that is generally similar in characteristics and volume, and such certification shall be subject to periodic audit by the office and the compact commission.  (6)(a) To the extent authorized by the compact commission, the office on behalf of the State of South Carolina may enter into agreements with any person in the United States or its territories or any interstate compact, state, U.S. territory, or U.S. Department of Defense military installation abroad for the importation of waste into the region for purposes of disposal at a regional disposal facility within South Carolina. No waste from outside the Atlantic Compact region may be disposed at a regional disposal facility within South Carolina, except to the extent that the office is authorized by the compact commission to enter into agreements for importation of waste.  The office shall authorize the importation of nonregional waste into the region for purposes of disposal at the regional disposal facility in South Carolina so long as nonregional waste would not result in the facility accepting more than the following total volumes of all waste:  (i) 160,000 cubic feet in fiscal year 2001;  (ii) 80,000 cubic feet in fiscal year 2002;  (iii) 70,000 cubic feet in fiscal year 2003;  (iv) 60,000 cubic feet in fiscal year 2004;  (v) 50,000 cubic feet in fiscal year 2005;  (vi) 45,000 cubic feet in fiscal year 2006;  (vii) 40,000 cubic feet in fiscal year 2007;  (viii) 35,000 cubic feet in fiscal year 2008.  After Fiscal Year 2008, the office shall not authorize the importation of nonregional waste for purposes of disposal.  (b) The office may approve disposal rates applicable to nonregional generators. In approving disposal rates applicable to nonregional generators, the office may consider available disposal capacity, demand for disposal capacity, the characteristics of the waste, the potential for generating revenue for the State, and other relevant factors.  (c) Absent action by the office under subsection (b) above to establish disposal rates for nonregional generators, rates applicable to these generators must be equal to those contained in the maximum uniform rate schedule approved by the office pursuant to paragraph (2) or (3) of this subsection for regional generators unless these rates are superseded by special disposal rates approved by the office pursuant to paragraph (6)(e) of this subsection.  (d) Regional generators shall not pay disposal rates that are higher than disposal rates for nonregional generators in any fiscal quarter.  (e) In consultation with the site operator, the office or its designee, on a case-by-case basis, may approve special disposal rates for nonregional waste that differ from the disposal rate schedule for nonregional generators set by the office. Requests by the site operator for such approval shall be in writing to the office. In approving such special rates, the office or its designee shall consider available disposal capacity, demand for disposal capacity, the characteristics of the waste, the potential for generating revenue for the State, and other relevant factors; provided, however, that the office shall not approve any special rate for an entity owned by or affiliated with the site operator. Special disposal rates approved by the office under this subsection shall be in writing and shall be kept confidential as proprietary business information for one year from the date when the bid or request for proposal containing the special rate is accepted by the nonregional generator; provided, however, that such special rates when accepted by a nonregional generator shall be disclosed to the compact commission and to all regional generators, which shall, to the extent permitted by applicable law, keep them confidential as proprietary business information for one year from the date when the bid or request for proposal containing the special rate is accepted by the nonregional generator. Within one business day of a special disposal rate's acceptance, the site operator shall notify the office, the compact commission, and the regional generators in writing of each special rate that has been accepted by a nonregional generator, and the office, the compact commission, and regional generators may communicate with each other about such special rates. If any special rate approved by the office for a nonregional generator is lower than a disposal rate approved by the office for regional generators for waste that is generally similar in characteristics and volume, the disposal rate for all regional generators shall be revised to equal the special rate for the nonregional generator. Regional generators may enter into contracts for waste disposal at such special rate and on comparable terms for a period of not less than six months. An officer of the site operator shall certify in writing to the office and the compact commission each month that no regional generator disposal rate exceeds any nonregional generator's special rate for waste that is generally similar in characteristics and volume, and such certification shall be subject to periodic audit by the office and the compact commission.  (B)(1) Effective upon the implementation of initial disposal rates by the office under Section 48-46-40(A), the PSC is authorized and directed to identify allowable costs for operating a regional low-level radioactive waste disposal facility in South Carolina.  (2) In identifying the allowable costs for operating a regional disposal facility, the PSC shall:  (a) prescribe a system of accounts, using generally accepted accounting principles, for disposal site operators, using as a starting point the existing system used by site operators;  (b) assess penalties against disposal site operators if the PSC determines that they have failed to comply with regulations pursuant to this section; and  (c) require periodic reports from site operators that provide information and data to the PSC and parties to these proceedings. The Office of Regulatory Staff shall obtain and audit the books and records of the site operators associated with disposal operations as determined applicable by the PSC.  (3) Allowable costs include the costs of those activities necessary for:  (a) the receipt of waste;  (b) the construction of disposal trenches, vaults, and overpacks;  (c) construction and maintenance of necessary physical facilities;  (d) the purchase or amortization of necessary equipment;  (e) purchase of supplies that are consumed in support of waste disposal activities;  (f) accounting and billing for waste disposal;  (g) creating and maintaining records related to disposed waste;  (h) the administrative costs directly associated with disposal operations including, but not limited to, salaries, wages, and employee benefits;  (i) site surveillance and maintenance required by the State of South Carolina, other than site surveillance and maintenance costs covered by the balance of funds in the decommissioning trust fund or the extended care maintenance fund;  (j) compliance with the license, lease, and regulatory requirements of all jurisdictional agencies;  (k) administrative costs associated with collecting the surcharges provided for in subsections (B) and (C) of Section 48-46-60;  (l) taxes other than income taxes;  (m) licensing and permitting fees; and  (n) any other costs directly associated with disposal operations determined by the PSC to be allowable.  Allowable costs do not include the costs of activities associated with lobbying and public relations, clean-up and remediation activities caused by errors or accidents in violation of laws, regulations, or violations of the facility operating license or permits, activities of the site operator not directly in support of waste disposal, and other costs determined by the PSC to be unallowable.  (4) Within ninety days following the end of a fiscal year, a site operator may file an application with the PSC to adjust the level of an allowable cost under subsection (3), or to allow a cost not previously designated an allowable cost. A copy of the application must be provided to the Office of Regulatory Staff. The PSC shall process such application in accordance with its procedures. If such application is approved by the PSC, the PSC shall authorize the site operator to adjust allowable costs for the current fiscal year so as to compensate the site operator for revenues lost during the previous fiscal year.  (5) A private operator of a regional disposal facility in South Carolina is authorized to charge an operating margin of twenty-nine percent. The operating margin for a given period must be determined by multiplying twenty-nine percent by the total amount of allowable costs as determined in this subsection, excluding allowable costs for taxes and licensing and permitting fees paid to governmental entities.  (6) The site operator shall prepare and file with the PSC a Least Cost Operating Plan. The plan must be filed within forty-five days of enactment of this chapter and must be revised annually. The plan shall include information concerning anticipated operations over the next ten years and shall evaluate all options for future staffing and operation of the site to ensure least cost operation, including information related to the possible interim suspension of operations in accordance with subsection (B)(7). A copy of the plan must be provided to the Office of Regulatory Staff.  (7)(a) If the office, upon the advice of the compact commission or the site operator, concludes based on information provided to the office, that the volume of waste to be disposed during a forthcoming period of time does not appear sufficient to generate receipts that will be adequate to reimburse the site operator for its costs of operating the facility and its operating margin, then the office shall direct the site operator to propose to the compact commission plans including, but not necessarily limited to, a proposal for discontinuing acceptance of waste until such time as there is sufficient waste to cover the site operator's operating costs and operating margin. Any proposal to suspend operations must detail plans of the site operator to minimize its costs during the suspension of operations. Any such proposal to suspend operations must be approved by the Department of Health and Environmental Control with respect to safety and environmental protection.  (b) Allowable costs applicable to any period of suspended operations must be approved by the PSC according to procedures similar to those provided herein for allowable operating costs. During any such suspension of operations, the site operator must be reimbursed by the office from the extended care maintenance fund for its allowable costs and its operating margin. During the suspension funding to reimburse the office, the PSC, and the State Treasurer under Section 48-46-60(B) and funding of the compact commission under Section 48-46-60(C) must also be allocated from the extended care maintenance fund as approved by the office based on revised budgets submitted by the PSC, State Treasurer, and the compact commission.  (c) Notwithstanding any disbursements from the extended care maintenance fund in accordance with any provision of this act, the office shall continue to ensure, in accordance with Section 13-7-30, that the fund remains adequate to defray the costs for future maintenance costs or custodial and maintenance obligations of the site and other obligations imposed on the fund by this chapter.  (d) The PSC may promulgate regulations and policies necessary to execute the provisions of this section.  (8) The PSC may use any standard, formula, method, or theory of valuation reasonably calculated to arrive at the objective of identifying allowable costs associated with waste disposal. The PSC may consider standards, precedents, findings, and decisions in other jurisdictions that regulate allowable costs for radioactive waste disposal.  (9) In all proceedings held pursuant to this section, the office shall participate as a party representing the interests of the State of South Carolina, and the compact commission may participate as a party representing the interests of the compact states. The Executive Director of the Office of Regulatory Staff and the Attorney General of the State of South Carolina shall be parties to any such proceeding. Representatives from the Department of Health and Environmental Control shall participate in proceedings where necessary to determine or define the activities that a site operator must conduct in order to comply with the regulations and license conditions imposed by the department. Other parties may participate in the PSC's proceedings upon satisfaction of standing requirements and compliance with the PSC's procedures. Any site operator submitting records and information to the PSC may request that the PSC treat such records and information as confidential and not subject to disclosure in accordance with the PSC's procedures.  (10) In all respects in which the PSC has power and authority under this chapter, it shall conduct its proceedings under the South Carolina Administrative Procedures Act and the PSC's rules and regulations. The PSC is authorized to compel attendance and testimony of a site operator's directors, officers, agents, or employees.  (11) At any time the compact commission, the office, or any generator subject to payment of rates set pursuant to this chapter may file a petition against a site operator alleging that allowable costs identified pursuant to this chapter are not in conformity with the directives of this chapter or the directives of the PSC or that the site operator is otherwise not acting in conformity with the requirements of this chapter or directives of the PSC. Upon filing of the petition, the PSC shall cause a copy of the petition to be served upon the site operator. The petitioning party has the burden of proving that allowable costs or the actions of the site operator do not conform. The hearing shall conform to the rules of practice and procedure of the PSC for other cases.  (12) The PSC shall encourage alternate forms of dispute resolution including, but not limited to, mediation or arbitration to resolve disputes between a site operator and any other person regarding matters covered by this chapter.  (C) The operator of a regional disposal facility shall submit to the South Carolina Department of Revenue, the PSC, and the Office of Regulatory Staff, and the office within thirty days following the end of each quarter a report detailing actual revenues received in the previous fiscal quarter and allowable costs incurred for operation of the disposal facility.  (D)(1) Within thirty days following the end of the fiscal year the operator of a regional disposal facility shall submit a payment made payable to the South Carolina Department of Revenue in an amount that is equal to the total revenues received for waste disposed in that fiscal year (with interest accrued on cash flows in accordance with instructions from the State Treasurer) minus allowable costs, operating margin, and any payments already made from such revenues pursuant to Section 48-46-60(B) and (C) for reimbursement of administrative costs to state agencies and the compact commission. The Department of Revenue shall deposit the payment with the State Treasurer.  (2) If in any fiscal year total revenues do not cover allowable costs plus the operating margin, the office must reimburse the site operator its allowable costs and operating margin from the extended care maintenance fund within thirty days after the end of the fiscal year. The office shall as soon as practicable authorize a surcharge on waste disposed in an amount that will fully compensate the fund for the reimbursement to the site operator. In the event that total revenues for a fiscal year do not cover allowable costs plus the operating margin, or quarterly reports submitted pursuant to subsection (C) indicate that such annual revenue may be insufficient, the office shall consult with the compact commission and the site operator as early as practicable on whether the provisions of Section 48-46-40(B)(7) pertaining to suspension of operations during periods of insufficient revenues should be invoked.  (E) Revenues received pursuant to item (1) of subsection (D) must be allocated as follows:  (1) The South Carolina State Treasurer shall distribute the first two million dollars received for waste disposed during a fiscal year to the County Treasurer of Barnwell County for distribution to each of the parties to and beneficiaries of the order of the United States District Court in C.A. No. 1:90-2912-6 on the same schedule of allocation as is established within that order for the distribution of "payments in lieu of taxes" paid by the United States Department of Energy.  (2) All revenues in excess of two million dollars received from waste disposed during the previous fiscal year must be deposited in a fund called the "Nuclear Waste Disposal Receipts Distribution Fund". Any South Carolina waste generator whose disposal fees contributed to the fund during the previous fiscal year may submit a request for a rebate of 33.33 percent of the funds paid by the generator during the previous fiscal year for disposal of waste at a regional disposal facility. These requests along with invoices or other supporting material must be submitted in writing to the State Treasurer within fifteen days of the end of the fiscal year. For this purpose disposal fees paid by the generator must exclude any fees paid pursuant to Section 48-46-60(C) for compact administration and fees paid pursuant to Section 48-46-60(B) for reimbursement of the PSC, the Office of Regulatory Staff, the State Treasurer, and the office for administrative expenses under this chapter. Upon validation of the request and supporting documentation by the State Treasurer, the State Treasurer shall issue a rebate of the applicable funds to qualified waste generators within sixty days of the receipt of the request. If funds in the Nuclear Waste Disposal Receipts Distribution Fund are insufficient to provide a rebate of 33.33 percent to each generator, then each generator's rebate must be reduced in proportion to the amount of funds in the account for the applicable fiscal year.  (3) All funds deposited in the Nuclear Waste Disposal Receipts Distribution Fund for waste disposed for each fiscal year, less the amount needed to provide generators rebates pursuant to item (2), shall be deposited by the State Treasurer in the "Children's Education Endowment Fund". Thirty percent of these monies must be allocated to Higher Education Scholarship Grants and used as provided in Section 59-143-30, and seventy percent of these monies must be allocated to Public School Facility Assistance and used as provided in Chapter 144, Title 59.  (F) Effective beginning fiscal year 2001-2002, there is appropriated annually from the general fund of the State to the Higher Education Scholarship Grants share of the Children's Education Endowment whatever amount is necessary to credit to the Higher Education Scholarship Grants share an amount not less than the amount credited to that portion of the endowment in fiscal year 1999-2000. Revenues credited to the endowment pursuant to this subsection, for purposes of Section 59-143-10, are deemed to be received by the endowment pursuant to the former provisions of Section 48-48-140(C).  HISTORY: 2000 Act No. 357, Section 1; 2006 Act No. 318, Section 230; 2014 Act No. 121 (S.22), Pt V, Section 7.FF, eff July 1, 2015.  Effect of Amendment  2014 Act No. 121, Section 7.FF, substituted "office" for "board" throughout, and made other nonsubstantive changes.