NEBRASKA POWER REVIEW BOARD
October 19, 2020
The 813th meeting of the Nebraska Power Review Board (“the Board” or “PRB”) was held in the First Floor hearing room, Nebraska State Office Building, 301 Centennial Mall, Lincoln, Nebraska. The roll was called and present were Chairman Reida, Vice Chairman Hutchison, Mr. Grennan, Ms. Loutzenhiser and Mr. Moen. Executive Director Texel stated that public notice for the meeting had been published in the Lincoln Journal Star newspaper on October 9, 2020. The Board also made the meeting available to the public through Webex. The Webex log-in information was available on the Board’s website and was published in the Lincoln Journal Star notice. If any member of the public wanted to speak, they could use the “raise your hand” icon. At that time they would be unmuted and announced so everyone would know who was speaking. All background materials for the agenda items to be acted on were provided to all Board members prior to the meeting and a copy of the materials was in each Board member’s notebook. The executive director announced that a copy of the Nebraska Open Meetings Act was on display on the south wall of the room for the public to review, and another copy was available in a black three-ring binder on the table at the back of the room. A copy of all materials that the Board would consider was available for public inspection on a table in the back of the room, as well as extra copies of the agenda.
Executive Director Texel noted that Elizabeth Hilyard was married a few months ago and her married name is now Loutzenhiser. That is the reason for the different name. The Board members are the same.
The Board first considered the draft minutes from its August 10, 2020, meeting. The staff did not have any recommended changes and no one had contacted the staff to request any changes. Mr. Grennan moved to approve the minutes for the August 10, 2020 meeting. Vice Chairman Hutchison seconded the motion. Voting on the motion: Chairman Reida – yes, Vice Chairman Hutchison – yes, Mr. Grennan – yes, Ms. Loutzenhiser – yes, and Mr. Moen – yes. The motion carried 5 – 0.
The next agenda item was acceptance of the expense reports for the months of August and September. In August, there was $25,495.57 in personal services, $18,490.91 in operating expenses, and $369.66 in travel expenses. The total expenses for August were $44,356.14. In September, there was $23,203.07 in personal services, $19,099.33 in operating expenses, and $0.00 in travel expenses. The total expenses for September were $42,302.40. Executive Director Texel noted that the Board has used 24.88% of its cash fund and 25% of the fiscal year has passed. Mr. Grennan moved to accept the August and September expense reports. Vice Chairman Hutchison seconded the motion. Voting on the motion: Chairman Reida – yes, Vice Chairman Hutchison – yes, Mr. Grennan – yes, Ms. Loutzenhiser – yes, and Mr. Moen – yes. The motion carried 5 – 0.
The next item on the agenda was a joint application to amend retail Service Area Agreement 363. The application was designated as SAA 363-20-A. SAA 363 is the retail service area agreement between the City of Hickman and the Norris Public Power District. The application was filed on September 10, 2020. The application would transfer a tract of territory on the northeast edge of the City, near the intersection of Hickman Road and South 82nd Street, from Norris PPD to the City. The amendment is based on an annexation. The City passed Ordinance #2020-05 earlier this year. The territory annexed is known as the “Terrace View 1st Addition.” There are no existing customers or facilities in the annexed area. The application included a map labeled Exhibit A-1, a metes and bounds description labeled Exhibit A-2 and a copy of the Ordinance labeled Exhibit A-3. Chairman Reida asked that the approval order include a statement that there was no compensation for customers or facilities. Mr. Grennan moved to approve SAA 363-20-A. Vice Chairman Hutchison seconded the motion. Voting on the motion: Chairman Reida – yes, Vice Chairman Hutchison – yes, Mr. Grennan – yes, Ms. Loutzenhiser – yes, and Mr. Moen –yes. The motion carried 5– 0.
The next two items on the agenda have an evidentiary hearing scheduled that will need to take place before any action could be taken on them. The Board tabled agenda items PRB-3931-G and PRB-3932-G until after the hearing.
The next item on the agenda was the executive director’s report. The first item was the Southwest Power Pool (SPP) update. Mr. Grennan gave an update on the activities occurring in SPP. There has been preparation for the quarterly meeting coming up next week. There will be three items voted on at the upcoming meeting. One will be to select the officers for 2021. Mr. Grennan will be stepping down as chair of the RSC, and a new chair will be elected. Another item is the budget for 2021. The third item deals with the definition of the highway byway cost allocations. There has been a lot of discussion regarding transmission planning across the SPP footprint. There were no questions concerning the monthly update letters from the Board’s consultant, JK Energy.
Executive Director Texel stated that he prepared a brief on a Nebraska Supreme Court decision, REO Enterprises, LLC v. Village of Dorchester, 306 Neb. 683 (2020). On August 7, 2020, the Nebraska Supreme Court issued a decision that upheld a village ordinance requiring landlords to provide a written guarantee that the property owner-landlord would pay any unpaid utility bills, including electricity, if the tenant did not pay. The Court found classification does not violate the Equal Protection Clauses of the U.S. or Nebraska constitutions because it constitutes a valid policy reason, it reasonably relates to achievement of that policy reason, and the relationship of the classification to the goal is not arbitrary or irrational. Landlords have an interest in the underlying property, on which a municipality can place a lien. Tenants have no permanent ties to the property, and possibly the community, so they can disappear easily, making collection efforts very difficult and costly. At the district court level the plaintiff had alleged other grounds for the lawsuit, such as that the ordinance violated the Nebraska Residential Landlord Tenant Act. The district court did not address the additional claims because it found the ordinance violated the Equal Protection Clauses of the U.S. and Nebraska constitutions. The Nebraska Supreme Court remanded the case to the district court so it could decide on the additional claims plaintiff had asserted. Although the Plaintiff was unsuccessful on the Equal Protection claim, it is still possible the ordinance could be struck down based on the additional three claims. The executive director acknowledged that the PRB normally has no direct involvement when it comes to deposits and payment guarantees, but the Board does receive complaints on these types of issues, so he wanted the Board to be aware of the Court’s decision.
The executive director also had an overview of FERC Order 2222, however, the time for the hearing at 9:30 had been reached. The Board therefore recessed it public meeting. During the recess the Board will conduct a hearing on the two applications from OPPD for generation facilities. During the hearing, the Board will first take up the issue of whether an Intervenor has standing to become a party. Depending on the decision on that issue, the Intervenor’s Motion for Continuance will be addressed. If the Intervenor has standing and a continuance is not granted, the Board may proceed to an evidentiary hearing on the merits. The two generation applications were placed on the agenda prior to the filing of an intervention. The Board would only take a preliminary vote during its public meeting on the two generation applications in the event the Intervenor is found not to have standing and the evidentiary hearing is concluded today. The Board went into recess at 9:35 a.m.
At 7:05 p.m. the Board reconvened its public meeting. All Board members were again present. During recess, the Board accepted arguments regarding whether the Sierra Club had standing to become a party in the proceedings on PRB-3931-G and PRB-3932-G. The Board determined that the Sierra Club did not meet the common law requirements for standing, and therefore denied the Sierra Club’s Petition for Intervention. A written order will be prepared on the issue of standing. The Board then held an evidentiary hearing to accept evidence on the two applications filed by OPPD. Following the adjournment of the hearing, the Board deliberated on the applications. The executive director reminded those present that Mr. Grennan had recused himself from participating in the discussion, deliberations or decision on applications PRB-3931-G and PRB-3932-G. Mr. Grennan works for HDR, Inc. an engineering firm that had performed work on the two projects. Although Mr. Grennan has not personally worked on the projects and the Nebraska Accountability and Disclosure Commission determined he did not have a conflict of interest under Nebraska law, Mr. Grennan decided to recuse himself from any involvement in the two applications.
The next items on the agenda was to consider PRB-3931-G and PRB-3932-G, OPPD’s applications for authority to construct two natural gas generation facilities. PRB-3931-G would be a 450 megawatt capacity simple-cycle facility in Sarpy County. PRB-3932-G would be a 150 megawatt capacity reciprocating internal combustion engine facility in Douglas County. After the Notices of Filing were mailed to the interested parties, the hearing officer consolidated the two applications for procedural purposes and the hearing. On October 13, 2020, the Sierra Club filed a Petition to Intervene and a Motion for Continuance. The Sierra Club and OPPD filed a brief in support of its Petition and Motion. OPPD filed a brief in opposition to both the Petition for Intervention and the Motion for Continuance.
PRB-3931-G is an approximately 450 megawatt natural gas simple-cycle combustion turbine generation facility. PRB-3931-G was filed on September 16, 2020. The total estimated cost of the facility unit is $394,000. The generation station itself will cost $362,000, and other related facilities will cost $32,000. The commercial operation of the facility is estimated to be in the spring of 2023. The location of the facility is near the intersection of 168th Street and Fairview Road, in Sarpy County, Nebraska. A Notice of Filing and Hearing Date was sent out to all interested parties in this application. The notice was sent to OPPD, LES, MEAN, NPPD, City of Auburn, City of Fremont, City of Nebraska City, City of Tecumseh and City of Wahoo. The Notice was sent to the power suppliers with generation assets that are within a fifty-mile radius of the proposed facility, and therefore are potentially interested in the proceeding. A public notice was also placed in the local newspapers. The newspapers in which the notices were published were the Omaha World Herald on September 24, 2020, and the Papillion Times, and the Gretna Breeze on September 30, 2020. Vice Chairman Hutchison moved to approve PRB-3931-G, finding that the proposed facility will serve the public convenience and necessity, that the applicant can most economically and feasibly supply the electric service resulting from the proposed construction, without unnecessary duplication of facilities or operations. Ms. Loutzenhiser seconded the motion. Voting on the motion: Chairman Reida – yes, Vice Chairman Hutchison – yes, Mr. Grennan – recused, Ms. Loutzenhiser – yes, and Mr. Moen –yes. The motion carried 4– 0.
PRB-3932-G is an approximately 150 megawatt natural gas reciprocating internal combustion engine generation facility. PRB-3932-G was submitted on September 16, 2020. The total cost of the unit will be $257,000. The station itself will cost $240,000 and the related facilities will be $17,000. The commercial operation of the facility is estimated to begin in the spring of 2023. The location of the facility is southeast of the intersection of 120th Street and Military Road, in Douglas County, Nebraska. A Notice of Filing and Hearing Date was sent out to OPPD, LES, MEAN, NPPD, the City of Fremont, the City of Nebraska City, the City of Wahoo, and the City of West Point. The Notice was sent to the power suppliers with generation assets within a fifty-mile radius of the proposed facility, and therefore are potentially interested in the proceeding. A public notice was also placed in the local newspapers. The newspapers in which the notice was published were the Omaha World Herald on September 24, 2020, and the Papillion Times and the Gretna Breeze on September 30, 2020. Mr. Moen moved to approved PRB-3932-G, finding that the proposed facility will serve the public convenience and necessity, that the applicant can most economically and feasibly supply the electric service resulting from the proposed construction, without unnecessary duplication of facilities or operations. As a condition of the approval, OPPD must follow the mitigation measures for the threatened Northern Long-Eared Bats outlined in the Nebraska Game and Parks Commission’s consultation letter dated October 13, 2020. Ms. Loutzenhiser seconded the motion. Voting on the motion: Chairman Reida – yes, Vice Chairman Hutchison – yes, Mr. Grennan – recused, Ms. Loutzenhiser – yes, and Mr. Moen –yes. The motion carried 4– 0.
Executive Director Texel stated that the Board’s decisions in PRB-3931-G and PRB-3932-G were preliminary determinations. Although preliminary in nature, the decision as to approval or denial is binding. The Board will issue a written decision which will constitute the Board’s final action on the applications. The Board sometimes provides preliminary decisions during its public meetings when there is no opposing party participating in the evidentiary hearing on the merits in order to allow applicants to begin preparations and initial construction work on projects without the need to wait 30 to 60 days for the Board’s written decision to be issued.
The next meetings will be November 9, December 14, 2020 and January 11, 2021.
Ms. Loutzenhiser moved to adjourn the meeting. Mr. Moen seconded the motion. Voting on the motion: Chairman Reida – yes, Vice Chairman Hutchison –yes, Mr. Grennan – yes, Ms. Loutzenhiser – yes, and Mr. Moen – yes. The motion carried 5 – 0. The meeting was adjourned at 7:12 p.m.
Timothy J. Texel
Executive Director and General Counsel