Archives > 1976 South Carolina Code of Laws - Previous Versions > 2006 Session > Title 58

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Title 58 - Public Utilities, Services and Carriers

CHAPTER 33.

UTILITY FACILITY SITING AND ENVIRONMENTAL PROTECTION

ARTICLE 1.

SHORT TITLE; DEFINITIONS

SECTION 58-33-10. Short title.

This chapter shall be known, and may be cited, as the "Utility Facility Siting and Environmental Protection Act".

SECTION 58-33-20. Definitions.

The following words, when used in this chapter, has the following meanings, unless otherwise clearly apparent from the context:

(1) The term "commission" means Public Service Commission.

(2) The term "major utility facility" means:

(a) electric generating plant and associated facilities designed for, or capable of, operation at a capacity of more than seventy-five megawatts.

(b) an electric transmission line and associated facilities of a designed operating voltage of one hundred twenty-five kilovolts or more; provided, however, that the words "major utility facility" shall not include electric distribution lines and associated facilities, nor shall the words "major utility facility" include electric transmission lines and associated facilities leased to and operated by (or which upon completion of construction are to be leased to and operated by) the South Carolina Public Service Authority.

(3) The term "commence to construct" means any clearing of land, excavation, or other action that would adversely affect the natural environment of the site or route of a major utility facility, but does not include surveying or changes needed for temporary use of sites or routes for nonutility purposes, or uses in securing geological data, including necessary borings to ascertain foundation conditions.

(4) The term "municipality" means any county or municipality within this State.

(5) The term "person" includes any individual, group, firm, partnership, corporation, cooperative, association, government subdivision, government agency, local government, municipality, any other organization, or any combination of any of the foregoing, but shall not include the South Carolina Public Service Authority.

(6) The term "public utility" or " utility" means any person engaged in the generating, distributing, sale, delivery, or furnishing of electricity for public use.

(7) The term "land" means any real estate or any estate or interest therein, including water and riparian rights, regardless of the use to which it is devoted.

(8) The term "certificate" means a certificate of environmental compatibility and public convenience and necessity.

(9) The term "regulatory staff" means the executive director or the executive director and the employees of the Office of Regulatory Staff.

ARTICLE 3.

CERTIFICATION OF MAJOR UTILITY FACILITIES

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; or

(d) Which is a hydroelectric generating facility over which the Federal Power Commission has licensing jurisdiction.

(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.

SECTION 58-33-120. Application for certificate; service on and notice to municipalities, government agencies and other persons of application.

(1) 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:

(a) a description of the location and of the major utility facility to be built;

(b) a summary of any studies which have been made by or for applicant of the environmental impact of the facility;

(c) a statement explaining the need for the facility; and

(d) any other information as the applicant may consider relevant or as the commission may by regulation or order require. A copy of the study referred to in item (b) above shall be filed with the commission, if ordered, and shall be available for public information.

(2) Each application shall be accompanied by proof of service of a copy of the application on the Office of Regulatory Staff, the chief executive officer of each municipality, and the head of each state and local government agency, charged with the duty of protecting the environment or of planning land use, in the area in the county in which any portion of the facility is to be located. The copy of the application shall be accompanied by a notice specifying the date on or about which the application is to be filed.

(3) Each application also must be accompanied by proof that public notice was given to persons residing in the municipalities entitled to receive notice under subsection (2) of this section, by the publication of a summary of the application, and the date on or about which it is to be filed, in newspapers of general circulation as will serve substantially to inform such persons of the application.

(4) Inadvertent failure of service on, or notice to, any of the municipalities, government agencies, or persons identified in subsections (2) and (3) of this section may be cured pursuant to orders of the commission designed to afford them adequate notice to enable their effective participation in the proceeding. In addition, the commission may, after filing, require the applicant to serve notice of the application or copies thereof, or both, upon such other persons, and file proof thereof, as the commission may deem appropriate.

(5) An application for an amendment of a certificate shall be in such form and contain such information as the commission shall prescribe. Notice of the application shall be given as set forth in subsections (2) and (3) of this section.

SECTION 58-33-130. Hearings.

(1) Upon the receipt of an application complying with Section 58-33-120, the Commission shall promptly fix a date for the commencement of a public hearing, not less than sixty nor more than ninety days after the receipt, and shall conclude the proceedings as expeditiously as practicable. The testimony presented at the hearing may be presented in writing or orally, provided that the Commission may make rules designed to exclude repetitive, redundant or irrelevant testimony.

(2) On an application for an amendment of a certificate, the Commission shall hold a hearing in the same manner as a hearing is held on an application for a certificate if the proposed change in the facility would result in any significant increase in any environmental impact of the facility or a substantial change in the location of all or a portion of the facility; provided, that the Public Service Commission shall forward a copy of the application to all parties upon the filing of an application.

SECTION 58-33-140. Parties to certification proceedings; limited appearances; intervention.

(1) The parties to a certification proceeding shall include:

(a) the applicant;

(b) the Office of Regulatory Staff, the Department of Health and Environmental Control, the Department of Natural Resources, and the Department of Parks, Recreation and Tourism;

(c) each municipality and government agency entitled to receive service of a copy of the application under subsection (2) of Section 58-33-120 if it has filed with the commission a notice of intervention as a party within thirty days after the date it was served with a copy of the application; and

(d) any person residing in a municipality entitled to receive service of a copy of the application under subsection (2) of Section 58-33-120, any domestic nonprofit organization, formed in whole or in part to promote conservation or natural beauty, to protect the environment, personal health, or other biological values, to preserve historical sites, to promote consumer interest, to represent commercial and industrial groups, or to promote the orderly development of the area in which the facility is to be located; or any other person, if such a person or organization has petitioned the commission for leave to intervene as a party, within thirty days after the date given in the published notice as the date for filing the application, and if the petition has been granted by the commission for good cause shown.

(2) Any person may make a limited appearance in the sixty days after the date given in the published notice as the date for filing the application. No person making a limited appearance shall be a party or shall have the right to present oral testimony or argument or cross-examine witnesses.

(3) The commission may, in extraordinary circumstances for good cause shown, and giving consideration to the need for timely start of construction of the facility, grant a petition for leave to intervene as a party to participate in subsequent phases of the proceeding, filed by a municipality, government agency, person, or organization which is identified in paragraphs (b) or (c) of subsection (1) of this section, but which failed to file a timely notice of intervention or petition for leave to intervene, as the case may be.

SECTION 58-33-150. Record of proceedings; consolidation of representation of parties.

A record shall be made of the hearing and of all testimony taken and the cross-examination thereon. Upon request of a party, either before or after the decision, a State agency which proposes to or does require a condition to be included in the certificate as provided for in Section 58-33-160 shall furnish for the record all factual findings, documents, studies, rules, regulations, standards, or other documentation, supporting the condition. The Commission may provide for the consolidation of the representation of parties having similar interests.

SECTION 58-33-160. Decision of Commission.

(1) The Commission shall render a decision upon the record either granting or denying the application as filed, or granting it upon such terms, conditions or modifications of the construction, operation or maintenance of the major utility facility as the Commission may deem appropriate; such conditions shall be as determined by the applicable State agency having jurisdiction or authority under statutes, rules, regulations or standards promulgated thereunder, and the conditions shall become a part of the certificate. The Commission may not grant a certificate for the construction, operation and maintenance of a major utility facility, either as proposed or as modified by the Commission, unless it shall find and determine:

(a) The basis of the need for the facility.

(b) The nature of the probable environmental impact.

(c) That the impact of the facility upon the environment is justified, considering the state of available technology and the nature and economics of the various alternatives and other pertinent considerations.

(d) That the facilities will serve the interests of system economy and reliability.

(e) That there is reasonable assurance that the proposed facility will conform to applicable State and local laws and regulations issued thereunder, including any allowable variance provisions therein, except that the Commission may refuse to apply any local law or local regulation if it finds that, as applied to the proposed facility, such law or regulation is unreasonably restrictive in view of the existing technology, or of factors of cost or economics or of the needs of consumers whether located inside or outside of the directly affected government subdivisions.

(f) That public convenience and necessity require the construction of the facility.

(2) If the Commission determines that the location of all or a part of the proposed facility should be modified, it may condition its certificate upon such modification, provided that the municipalities and persons residing therein affected by the modification shall have been given reasonable notice.

(3) A copy of the decision and any opinion shall be served by the Commission upon each party.

SECTION 58-33-170. Opinion of Commission.

In rendering a decision on an application for a certificate, the Commission shall issue an opinion stating its reasons for the action taken. If the Commission has found that any regional or local law or regulation, which would be otherwise applicable, is unreasonably restrictive pursuant to paragraph (e) of subsection (1) of Section 58-33-160, it shall state in its opinion the reasons therefor.

ARTICLE 5.

JUDICIAL REVIEW

SECTION 58-33-310. Appeal from final order or decision.

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 must not be a party to an appeal.

SECTION 58-33-320. Jurisdiction of courts.

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.

ARTICLE 7.

MISCELLANEOUS PROVISIONS

SECTION 58-33-410. Authority of other agencies or local governments; application of other laws.

Notwithstanding any other provision of law, no State or regional agency, or municipality or other local government may require any approval, consent, permit, certificate or other condition for the construction, operation or maintenance of a major utility facility authorized by a certificate issued pursuant to the provisions of this chapter; provided, that nothing herein shall prevent the application of State laws for the protection of employees engaged in the construction, operation or maintenance of such facility; provided, however, that State agencies shall continue to have authority to enforce compliance with applicable State statutes, rules, regulations or standards promulgated within their authority.

SECTION 58-33-420. Joint hearings with agencies from other states; agreements and compacts; joint investigations.

The commission, in the discharge of its duties under this chapter or any other statute, is authorized to hold joint hearings within or without the State and issue joint or concurrent orders in conjunction or concurrence with any official or agency of any other state of the United States, whether in the holding of any hearings, or in the making of such orders, the commission shall function under agreements or compacts between states or under the concurrent power of states to regulate interstate commerce or as an agency of the United States, or otherwise. The commission, in the discharge of its duties under this chapter, is authorized to enter into agreements or compacts with agencies of other states, pursuant to any consent of Congress, for cooperative efforts in certificating the construction, operation, and maintenance of major utility facilities in accord with the purposes of this chapter and for the enforcement of the respective state laws regarding same. The commission may request the Office of Regulatory Staff to make joint investigations with any official board or commission of any state or of the United States.

SECTION 58-33-430. Annual reports shall be furnished by public utilities.

Each public utility shall annually furnish a report to the commission and provide to the Office of Regulatory Staff for its review containing a ten-year forecast of loads and resources; provided, however, this section shall not apply to any electric cooperative. The report shall list the major utility facilities which, in the judgment of such utility, will be required to supply system demands during the forecast period. The forecast shall cover the ten-year period next succeeding the date of the report, shall be made available to the public, and furnished upon request to municipalities and government agencies charged with the duty of protecting the environment or of planning land use.