Senate Judiciary Committee Amendment
H 5118 - Session 125 (2023-2024)
Electrical Utilities, Electricity Regulation, and Economic Development

The Committee on Judiciary proposes the following amendment (SJ-5118.BJ0052S):

Amend the bill, after the title but before the enacting words, by striking the twenty eighth paragraph and inserting:

Whereas, the South Carolina General Assembly recognizes the strategic importance of investigating in and pursuing fusion energy and advanced nuclear technologies such as small modular reactors and molten salt reactors at this time, understanding that proactive engagement in research and development positions the state to capitalize on future opportunities when SMRs become economically and technologically viable; and

Amend the bill further, by deleting SECTION 2.

Amend the bill further, SECTION 5, by striking Section 58-4-10(B) and inserting:

 (B) Unless and until it chooses not to participate, the Office of Regulatory Staff must be considered a party of record in all filings, applications, or proceedings before the commission. The regulatory staff must represent the public interest of South Carolina before the commission as it pertains to the matters below:. For purposes of this chapter only, "public interest" means
  (1) the concerns of the using and consuming public with respect to public utility services, regardless of the class of customer,;
  (2) economic development and job attraction and retention in South Carolina; and
  (3) preservation of the of continued investment in and maintenance of utility facilities so as to provide reliable and high quality utility services.

Amend the bill further, SECTION 6, by striking Section 58-4-150(A) and inserting:

 (A) To further advance and expand upon Executive Order 2023-18 which established the PowerSC Energy Resources and Economic Development Interagency Working Group, the Office of Regulatory Staff, in consultation with a stakeholder group that includes representatives of consumer, environmental, manufacturing, forestry, and agricultural organizations, natural gas and electrical utilities, the South Carolina Public Service Authority, and other affected state agencies, shall prepare a comprehensive South Carolina energy assessment and action plan, hereinafter referred to as "the plan". This plan must identify recommended actions over a ten-year period to ensure the availability of adequate, reliable, and economical supply of electric power and natural gas to the people and economy of South Carolina. For purposes of this section, natural gas and electrical utilities also includes any investor-owned electrical utility, a public utility as defined in Section 58-5-10, electric cooperatives, and any consolidated political subdivision that owns or operates in this State equipment or facilities for generating, transmitting, delivering, or furnishing electricity, but does not include an entity that furnishes electricity only to itself, its residents, or tenants when such current is not resold or used by others.

Amend the bill further, SECTION 7, by striking Section 58-38-20(7) and inserting:

 (7) The EPI shall collaborate across South Carolina in coordination with SC Nexus, Savannah River National Laboratory, energy utility providers, private industry, and workforce development to deliver advice on policy creation aligned with the state's distinctive needs and opportunities. EPI shall support and collaborate with SC Nexus, a consortium of public and private entities, formed within the South Carolina Department of Commerce concerning power generation, transmission, and storage.
 (8) The EPI shall collaborate with the Energy Center at Clemson University to identify research funding opportunities to meet the urgent needs for energy technology innovation in South Carolina, develop curriculum to ensure relevant academic programming for the future jobs and leadership roles in the new energy industry, provide energy-related training programs to meet the increasing demand for skilled workers in the new energy industry, and promote technology innovation, translational research, and rapid technology transfer from research labs to industry.

Amend the bill further, SECTION 8, by striking Section 58-33-195(A)(2) and inserting:

  (2) The General Assembly encourages Dominion Energy South Carolina, Inc. and the Public Service Authority to jointly complete evaluations related to the Joint Resource and to use such information as may be necessary from such evaluations to make a filing as soon as practicable with the commission to obtain a certificate pursuant to Article 3 of this chapter. The General Assembly instructs all governmental agencies to provide accelerated consideration of any action required to permit or authorize construction and operation of the facilities subject to this section in preference to all other pending nonemergency applications or requests. The General Assembly finds adding natural gas generation capacity at the retired Canadys coal site would advance the economy and general welfare of the State based on current conditions and information as of the effective date of this Act. However, this subsection does not exempt the entities from complying with the requirements of the Utility Facility Siting and Environmental Protection Act, including the requirement to seek commission approval for a certificate of environmental compatibility and public convenience and necessity nor does this subsection limit the commission's independent decision-making authority. The entities are further encouraged to use existing rights of way for new natural gas lines to the Canadys site to the greatest extent practicable.

Amend the bill further, SECTION 10, by striking Section 13-7-820(5) and inserting:

 (5) to engage stakeholders and develop a strategic plan to advance the development of advanced nuclear generation including small modular reactors, molten salt reactors, fusion energy, and spent nuclear fuel recycling facilities to serve customers in this State in the most economical manner at the earliest reasonable time possible.

Amend the bill further, SECTION 12, by striking Section 58-33-196 and inserting:

 Section 58-33-196. Electrical utilities and the Public Service Authority are encouraged to explore the potential for deploying fusion energy and advanced nuclear facilities including, but not limited to, small modular nuclear facilities at suitable sites. Suitable sites may include sites of current nuclear facilities, sites where nuclear facilities have been proposed but not constructed, and other brownfield sites, such as coal-generation sites. Any utility pursuing deployment of such nuclear facilities must provide annual progress reports to the commission and the Public Utilities Review Committee; this report may be in writing or in the form of testimony in an appropriate proceeding. A utility whose rates are regulated by the commission must provide estimates of the cost of the studies including, but not limited to, planning, licensing, and project development to the commission. If the commission finds such estimated costs are reasonable, prudent, and in the public interest, such costs may be recoverable through rates as they are incurred. Nothing in this section relieves an electrical utility of the burden of filing for a certificate under this article and obtaining appropriate approvals from the commission before commencing construction.

Amend the bill further, SECTION 13, by striking Section 58-37-70(B)(1) and inserting:

  (1) "Electrical utility" has the same meaning as provided in Section 58-27-10(7).

Amend the bill further, SECTION 13, by striking Section 58-37-70(F)(3) and inserting:

  (3) In the event the commission finds cost estimates provided by an electrical utility pursuant to item (2) are reasonable and prudent, the costs may be recoverable through rates, even if an application for a certificate of environmental compatibility and public convenience and necessity have not been filed. However, these costs shall not include a rate of return.

Amend the bill further, SECTION 14, by striking Section 58-37-130 and inserting:

 Section 58-37-130. The applicant or any person whose private rights are affected by an agency decision or action on an application for a permit for any energy infrastructure project may appeal that decision or action to the South Carolina Supreme Court. The Supreme Court shall hear these appeals as a direct appeal in accordance with South Carolina Appellate Court Rule 203. The Court shall provide for an expedited briefing and hearing of the appeal, in preference to all other nonemergency matters on its docket, and decide such appeals on an expedited basis. Any agency decision or action that is subject to a contested case review before the Administrative Law Court, pursuant to Section 1-23-600 et seq., shall be appealable under this section upon issuance of an appealable order by the Administrative Law Court.

Amend the bill further, SECTION 22, by striking Section 58-37-40(B)(1)(j) and inserting:

   (j) .a report addressing updates to the utility's transmission plan under the utility's open access transmission tariff pursuant to the federal jurisdictional planning process. In this report, the utility shall, when applicable, describe planned transmission improvements specific to siting of new resources expected to impact interconnection constraints or other operations of the systems. The utility shall also describe how it evaluated alternate transmission technologies when developing solutions for identified transmission needs for interconnecting resources. The utility's transmission report must include how the utility evaluates transmission investments, including:
    (i) a description of how the utility evaluated a range of transmission solutions, including non-wires alternatives, joint projects with neighboring and other regional utilities, other upgrades to existing facilities, and other best practices. Modeling may consider, as appropriate, grid-enhancing technologies and alternate transmission technologies such as static synchronous compensators, static Volt-Ampere Reactive (VAR) compensators, advanced power flow control devices, transmission switching, synchronous condensers, voltage source converters, advanced conductors, switchable reactors, and tower lifting in a manner consistent with common utility practice;
    (ii) a description of how transmission factored into the utility's evaluation of the range of future scenarios included in the fifteen-year time period of the utility's resource plan, including significant continued economic growth and the retirement of the utility's coal generation;
    (iii) a discussion of transmission considerations for facilities included in the utility's preferred resource plan for which there are particular sites specified;
    (iv) information such that intervenors and stakeholders can pursue participation in local transmission planning collaborative activities which are held pursuant to orders from the Federal Energy Regulatory Commission; and
    (v) any other information that the utility believes is relevant to its resource plan or future transmission investments.

Amend the bill further, SECTION 22, by striking Section 58-37-40(C)(1) and inserting:

 (C)(1) The commission shall have a proceeding to review each electrical utility subject to subsection (A)(1) and the Public Service Authority's integrated resource plan. As part of the integrated resource plan filing, the commission shall allow intervention by interested parties. The procedural schedule shall include dates for completion of each phase of discovery, including discovery related to the integrated resource plan as filed, direct testimony of the applicant, direct testimony of the Office of Regulatory Staff and other parties and intervenors, and rebuttal testimony of the applicant. Except upon showing exceptional circumstances, all discovery shall be served in time to allow its completion, but not less than ten days prior to the hearing. The commission shall establish a procedural schedule to permit reasonable discovery after an integrated resource plan is filed in order to assist parties in obtaining evidence concerning the integrated resource plan, including the reasonableness and prudence of the plan and alternatives to the plan raised by intervening parties. No later than three hundred days after an electrical utility or the Public Service Authority files an integrated resource plan, the commission shall issue a final order approving, modifying, or denying the plan filed by the electrical utility or the Public Service Authority.

Amend the bill further, SECTION 23, by striking Section 58-3-260(H)(2) and inserting:

  (2) conducting a site visit of a utility or Public Service Authority facility under construction or attending educational tours of utility or Public Service Authority plants or other facilities provided:
   (a) the Executive Director of the Office of Regulatory Staff or his designee also attends the site visit or educational tour;
   (b) a summary of the discussion is produced and posted on the commission's website, along with copies of any written materials utilized, referenced, or distributed; and
   (c) each party, person, commission, and commission employee who participated in the site visit or educational tour, within forty-eight hours of the site visit or educational tour, files a certification with the Executive Director of the Office of Regulatory Staff that no commitment, predetermination, or prediction of any commissioner's action as to any ultimate or penultimate issue or any commission employee's opinion or recommendation as to any ultimate or penultimate issue in any proceeding was requested by any person or party, nor any commitment, predetermination, or prediction was given by any commissioner or commission employee as to any commission action or commission employee opinion or recommendation on any ultimate or penultimate issue.

Amend the bill further, SECTION 26, by striking Sections 58-33-310 and 58-33-320 and inserting:

 Section 58-33-310. Any party may appeal, in accordance with Section 1-23-380, from all or any portion of any final order or decision of the commission, including conditions of the certificate required by a state agency under Section 58-33-160 as provided by Section 58-27-2310. Any appeals may be called up for trial out of their order by either party. The commission shall issue all orders on rehearing or reconsideration within thirty days of the date the petition is filed. Any final order on the merits issued pursuant to this chapter shall be immediately appealable to the Supreme Court of South Carolina in accordance with South Carolina Appellate Court Rule 203. The commission must not be a party to an appeal.

 Section 58-33-320. Except as expressly set forth in Section 58-33-310, no court of this State shall have jurisdiction to hear or determine any issue, case, or controversy concerning any matter which was or could have been determined in a proceeding before the commission under this chapter or to stop or delay the construction, operation, or maintenance of a major utility facility, except to enforce compliance with this chapter or the provisions of a certificate issued hereunder, and any such action shall be brought only by the Office of Regulatory Staff. Provided, however, nothing herein contained shall be construed to abrogate or suspend the right of any individual or corporation not a party to maintain any action which he might otherwise have been entitled.

Amend the bill further, SECTION 33, by striking Section 58-31-215(C) and inserting:

 (C) There is hereby established the "Energy Investment and Economic Development Fund" to be held in an operating account by the Public Service Authority to further the provisions of this section and other energy investment needs. Subject to the approval of the Joint Bond Review Committee, the Energy Investment and Economic Development Fund may be funded by the amount required to be paid to the State pursuant to Section 58-31-110 less the annual costs billed by the Office of Regulatory Staff and the South Carolina Public Service Commission. The South Carolina Department of Commerce shall report, at least once annually and no later than September first, to the Joint Bond Review Committee as to the level and need for funding to advance the provisions of this section. If sufficient funding is allocated to the Energy Investment and Economic Development Fund, the Public Service Authority may execute a binding precedent agreement on behalf of the State pursuant to this section, provided such action is approved by the Joint Bond Review Committee. In no event shall the costs associated with serving as an anchor affect the rates and charges for electric or water service for the Public Service Authority's customers.

Amend the bill further, SECTION 34.A., by adding:

Section 58-3-60(A) of the S.C. Code is amended to read:

 (A) The commission is authorized and empowered to employ: a chief clerk and deputy clerk; a commission attorney and assistant commission attorneys; hearing officers; hearing reporters; and such other professional, administrative, technical, and clerical personnel as the commission determines to be necessary in the proper discharge of the commission's duties and responsibilities as provided by law. The chairman must organize and direct the work of the commission staff. The chief clerk shall receive a salary in an amount equal to ninety percent of the salary fixed for commission members, unless disapproved by the Public Utilities Review Committee. The salaries of the chairman, the commissioners, and the chief clerk shall not be construed as limiting the maximum salary which may be paid to other employees of the Public Service Commission. The commission staff shall not appear as a party in commission proceedings and shall not offer testimony on issues before the commission.

Amend the bill further, by striking SECTION 34.B and inserting:

B. This section is effective beginning with the fiscal year immediately following the next Public Service Commission election after the effective date of this act.

Amend the bill further, SECTION 35, by striking Section 58-41-50(B)(1) and inserting:

 (B)(1) An electrical utility may file a proposed agreement regarding co-located resources between the utility and a customer or multiple customers with an electric load in excess of 25 megawatts for the commission's consideration. The proposed agreement must contain at least one of the following requirements:
   (a) co-location of electric generation or storage on the customer's property provides bulk system benefits for all customers and benefits for the host customer;
   (b) co-location of renewable electric generation resources on the customer's property provides bulk system benefits for all customers and the renewable attributes associated with such generation can be allocated to the host customer;
   (c) co-location of electric generation on the customer's property would result in permitting and siting efficiencies to enable electric generation to come online earlier than otherwise could occur; or
   (d) co-location of electric generation resources on the customer's property could be utilized as resiliency resources to serve the electric grid in times of need.

Amend the bill further, SECTION 35, by deleting Section 58-41-50(B)(2)(a).

Amend the bill further, SECTION 35, by striking Section 58-41-50(C)(1) and inserting:

  (1) the proposed program was voluntarily agreed upon by the electrical utility and the customer or multiple customers,

Amend the bill further, SECTION 35, by striking Section 58-41-50(D) and inserting:

 (D) For purposes of this section, "co-located" or "co-location" includes electric generation, storage, renewables, and associated facilities on a customer's site as well as any location where the connection to the electrical utility enables resilient power supply to support the development of power supply to meet the customer's needs. An agreement regarding co-location may also include potential co-ownership of the electric generation and associate facilities by the electrical utility and the customer. A customer participating in a co-location or co-ownership agreement shall not be considered an electrical utility.

Amend the bill further, by striking SECTION 37 and inserting:

SECTION 37. (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 advanced small modular reactors, biomass as defined in Section 12-63-20(B)(2) of the S.C. Code, hydrogen-capable resources, fusion energy and the Carolina Long Bay Project, 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, emissions reduction levels, 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.

Amend the bill further, by deleting SECTION 39.

Amend the bill further, by adding an appropriately numbered SECTION to read:

SECTION X. Chapter 33, Title 58 of the S.C. Code is amended by adding:

 Section 58-33-200. For any construction project with a project budget of at least five hundred million dollars and in order to maintain the financial integrity of significant expenditures affecting ratepayers, the Office of Regulatory Staff shall retain an independent construction analyst who shall monitor the construction project on a regular basis and who shall provide to the Office of Regulatory Staff, the Public Service Commission, the Public Utilities Review Committee, and the Joint Bond Review Committee regular reports as to the status of the construction efforts as needed, but at least on a quarterly basis.