764 S.E.2d 913
S.C.2014Background
- SCE&G obtained an initial BLRA base load review order in 2009 approving construction of two nuclear units at V.C. Summer and setting capital cost and schedule parameters.
- In May 2012 SCE&G petitioned the Public Service Commission to modify the original order to increase capital costs by about $283 million and to delay Unit 2 completion (overall project completion advanced by 7.5 months but Unit 2 delayed 11 months).
- Sierra Club, SCEUC (industrial customers), and a residential intervenor participated; a hearing was held in October 2012.
- The Commission approved $278.05 million of the requested increases and the schedule update, finding changes reflected normal evolution and not imprudence. Rehearing was denied.
- Appellants appealed, arguing the Commission applied the wrong BLRA provision (§58-33-270 rather than §58-33-275), that the Commission should have reexamined prudence of continuing construction at the update stage, and that evidence did not show the costs were prudent.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1. Which BLRA provision governs a petition to modify an existing base load review order? | Appellants: §58-33-275(E) should apply because the additional costs could have been anticipated and thus are deviations subject to the deviation/deprudence standard. | SCE&G/ORS: §58-33-270(E) governs modifications to an existing BLRA order; §58-33-275 applies only after a proven deviation. | Court: Affirmed Commission — §58-33-270(E) controls modification proceedings; §58-33-275(E) applies to post-deviation recovery challenges. |
| 2. Must the Commission re-evaluate the prudence of continuing construction in a modification proceeding? | Appellants: Commission should reassess overall project prudence at the update stage (reopen initial prudency review). | SCE&G/ORS: BLRA forecloses repeated relitigation; initial comprehensive prudency review is binding unless deviation/abandonment standards are met. | Court: No. Reopening initial prudency on each update would defeat BLRA’s purpose; Commission not required to reassess overall prudence at modification stage. |
| 3. Did the record support the Commission’s finding that the additional costs and schedule changes were not the result of imprudence? | Appellants: SCEUC/Sierra Club contend SCE&G failed to prove prudence of the cost increases and schedule changes. | SCE&G/ORS: The Commission’s findings are supported by substantial, technical evidence from the hearing. | Court: Substantial evidence supports the Commission’s factual findings; appellants failed to show the decision was unsupported. |
| 4. Can parties use the modification proceeding to convert the proceeding into a deviation challenge requiring proof by preponderance? | Appellants: Yes — conversion warranted because costs could have been anticipated. | SCE&G/ORS: No — such conversion is improper; statutory scheme separates modification and deviation processes. | Court: No. The Commission correctly treated this as a modification under §58-33-270(E), not a deviation under §58-33-275(E). |
Key Cases Cited
- S.C. Energy Users Comm. v. Pub. Serv. Comm'n of S.C., 388 S.C. 486 (2010) (describing BLRA purpose and precluding recovery of imprudent contingency costs in initial review)
- Friends of the Earth v. Pub. Serv. Comm'n of S.C., 387 S.C. 360 (2010) (interpreting §58-33-270(E) as permitting post-order modification petitions)
- Duke Power Co. v. Pub. Serv. Comm'n of S.C., 343 S.C. 554 (2001) (establishing deferential standard of review for PSC decisions)
- Hodges v. Rainey, 341 S.C. 79 (2000) (statutory construction: courts must give clear statutes their plain meaning)