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TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 1976, BY ADDING SECTION 58-3-65 SO AS TO ALLOW THE PUBLIC SERVICE COMMISSION TO HIRE QUALIFIED, INDEPENDENT THIRD-PARTY EXPERTS AND CONSULTANTS; AND TO AMEND SECTION 58-41-20, RELATING TO REVIEW AND APPROVAL PROCEEDINGS FOR ELECTRICAL UTILITIES, SO AS TO MAKE CONFORMING CHANGES.
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. Article 1, Chapter 3, Title 58 of the 1976 Code is amended by adding:
"Section 58-3-65. (A) To the extent necessary to carry out commission responsibilities, the commission is authorized to employ, through contract, qualified, independent third-party experts and consultants in carrying out its duties under this title. When the commission determines that the assistance of an expert or consultant will materially aid the commission in carrying out its duties under this title, such expert or consultant may be retained for purposes of a specific proceeding in either an advisory role, pursuant to item (1), or in a commission-appointed expert witness role, pursuant to item (2), as provided in this section. The commission may employ both advisory professional expertise and commission-appointed expert witnesses in the same proceeding; however, an expert or consultant may not serve in both capacities in the same proceeding.
(1) The commission is authorized to retain professional expertise to provide advisory assistance to the commission for the purposes of a specific proceeding. Such professional expertise must be retained through a process that is transparent and designed to identify an expert who will be fair and unbiased and who will provide the commission with advice on an issue or issues to be addressed in the specific proceeding. For the purposes of compliance with the communications restrictions contained in Section 58-3-260, experts retained pursuant to this item must be treated like staff of the commission. Experts retained pursuant to this item shall not testify in the proceeding for which they are retained, and shall not be subject to discovery or to deposition.
(2) The commission is authorized to employ a commission-appointed expert witness in a specific proceeding when, in the commission's discretion, it appears that such expert witness will materially aid the commission in carrying out their duties and in developing a full and complete record in such proceeding. The commission may appoint one or more experts to investigate, to render a report as may be ordered by the commission, or to testify as an expert at a proceeding relative to the fact or matter as to which the expert evidence is or may be required. The commission must inform the expert of the expert's duties. The commission may do so in writing and have a copy filed with the clerk or may do so orally at a conference in which the parties have an opportunity to participate. Such expert must be selected through a process that is transparent and designed to identify an expert who will be fair and unbiased and who will offer testimony and exhibits, including any report requested by the commission, on issues identified by the commission to be addressed in the specific proceeding. For purposes of compliance with the communications restrictions contained in Section 58-3-260, any expert witness appointed by the commission pursuant to this item must be treated like a party to the proceeding. An expert only may communicate with parties to the proceeding through discovery under the commission's rules governing discovery or through public questioning at a related hearing. An expert retained pursuant to this item has both: (a) the right to submit discovery requests to parties in the proceeding, and (b) the obligation to respond to discovery propounded by the parties, pursuant to the commission's rules governing discovery. Any testimony and exhibits, including any report requested by the commission, to be offered by a commission-appointed expert witness pursuant to this item must be prefiled in the proceeding at least twenty-five days prior to the hearing scheduled in the proceeding and parties to the proceeding must be allowed an opportunity to file testimony and exhibits responding to the testimony and exhibits submitted by the commission-appointed expert witness. The testimony and exhibits to be offered by the commission-appointed expert witness retained pursuant to this item are subject to the rules of evidence applicable in proceedings before the commission.
(B) Except as otherwise indicated within this subsection, the commission is exempt from complying with the State Procurement Code in the selection and hiring of professional expertise authorized by this subsection. The expenses for the third-party consultant must be paid from the assessments collected pursuant to Section 58-3-100. The chairman, within allowed budgetary limits and as otherwise allowed by law, must authorize and approve travel, subsistence, and related expenses of third-party consultants incurred while traveling on commission business. The commission shall provide an accounting of compensation and expenses incurred for third-party consultants in a report provided annually to the review committee, the Speaker of the House of Representatives, and the Chairman of the Senate Judiciary Committee. The commission and the Office of Regulatory Staff may not hire the same third-party consultant or expert or independent third-party consultant or expert in the same proceeding or to address the same or similar issues in different proceedings."
SECTION 2. Section 58-41-20(I) of the 1976 Code, as added by Act 62 of 2019, is amended to read:
"(I) The commission is authorized to employ, through contract or otherwise, third-party consultants and experts in carrying out its duties under this section, including, but not limited to, evaluating avoided cost rates, methodologies, terms, calculations, and conditions under this section pursuant to Section 58-3-65. The commission is exempt from complying with the State Procurement Code in the selection and hiring of a third-party consultant or expert authorized by this subsection. The commission shall engage, for each utility, a qualified independent third party to submit a report that includes the third party's independently derived conclusions as to that third party's opinion of each utility's calculation of avoided costs for purposes of proceedings conducted pursuant to this section. The qualified independent third party is subject to the same ex parte prohibitions contained in Chapter 3, Title 58 as all other parties. The qualified independent third party shall submit all requests for documents and information necessary to their analysis under the authority of the commission and the commission shall have full authority to compel response to the requests. The qualified independent third party's duty will be to the commission. Any conclusions based on the evidence in the record and included in the report are intended to be used by the commission along with all other evidence submitted during the proceeding to inform its ultimate decision setting the avoided costs for each electrical utility. The utilities may require confidentiality agreements with the independent third party that do not impede the third-party analysis. The utilities shall be responsive in providing all documents, information, and items necessary for the completion of the report. The independent third party shall also include in the report a statement assessing the level of cooperation received from the utility during the development of the report and whether there were any material information requests that were not adequately fulfilled by the electrical utility. Any party to this proceeding shall be able to review the report including the confidential portions of the report upon entering into an appropriate confidentiality agreement. The commission and the Office of Regulatory Staff may not hire the same third-party consultant or expert in the same proceeding or to address the same or similar issues in different proceedings The commission and the Office of Regulatory Staff may not hire the same third-party consultant or expert in the same proceeding."
SECTION 3. This act takes effect upon approval by the Governor.
This web page was last updated on March 11, 2021 at 10:25 AM