NEBRASKA POWER REVIEW BOARD
November 9, 2020
The 814th 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 30, 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 they could announce 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.
The Board first considered the draft minutes from its October 19, 2020, public meeting. Mr. David Ried had contacted the office and let the staff know that the dollar amounts on page 4, referring to the costs involved for applications PRB-3931-G and PRB-3932-G, should each have three additional zeroes at the end of the numbers. For example, the cost estimate in the draft minutes was $394,000. That number should actually be $394,000,000. Vice Chairman Hutchison moved to approve the minutes with the corrected cost amounts for the October 19, 2020 meeting. Mr. Grennan 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 report for the month of October. In October, there was $24,548.71 in personal services, $19,548.86 in operating expenses, and $370.66 in travel expenses. The total expenses for October were $44,468.23. Executive Director Texel noted that the Board has used 32.67% of its cash fund and 33% of the fiscal year has passed. Ms. Loutzenhiser moved to accept the October expense report. 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 an application filed by the Nebraska Public Power District (NPPD) and the Village of Winnebago to amend retail Service Area Agreement 316. The application was designated as SAA 316-20-A. SAA 316 is the retail service area agreement between the Nebraska Public Power District and the Burt County Public Power District. The application was filed on October 15, 2020. The application would transfer a tract of territory on the northern edge of the Village of Winnebago from Burt Co. PPD to NPPD. The amendment is based on an annexation. The Village passed Ordinance No. 20-10-1 earlier this year. There are no existing customers or facilities in the annexed area. The Village is considered part of the application because it is requesting that NPPD add the annexed territory to NPPD’s retail service area including and in the vicinity of the Village. Burt Co. PPD did not consent to the transfer. A Notice of Filing and Hearing Date was mailed on October 16 setting a hearing to be held in conjunction with the Board’s November public meeting. On November 2, Burt Co. PPD filed a Protest. A conference call was held on November 4 with Executive Director Texel, in his capacity as hearing officer, and legal counsels for NPPD and Burt Co. PPD. It was decided that NPPD and Burt Co. PPD would file a stipulation setting out the agreed-upon facts, and Burt Co. PPD’s General Manager would submit a statement in the form of a letter to the Board outlining the District’s frustration. The parties would waive the hearing and submit the matter on the pleadings. At the public meeting on November 9, legal counsels for both parties were present via Webex and responded to questions posed by the Board members. Ms. Kreifel, counsel for Burt Co. PPD, stated that the District could not tell if the annexation was valid from the documents in the application. Ms. Loutzenhiser asked if Burt Co. PPD had submitted a request to Winnebago for additional materials that would authenticate the annexation. Burt Co. PPD had not submitted a records request prior to the Notice of Hearing. Mr. Grennan asked about whether the parties had engaged in joint planning prior to the filing of the application. He noted that in the letter submitted by Burt Co. PPD’s general manager, he alleged that “NPPD and Winnebago failed to engage in any meaningful joint planning which would have put BCPPD on notice that this specific newly annexed area would potentially be removed from BCPPD’s service territory.” Mr. Grennan pointed out that joint planning is a requirement under state law in section 70-1008(3). The statute even specifically refers to annexations. Chris Elliott, legal counsel for NPPD, told the Board that in May or June NPPD had contacted Burt Co. PPD about the annexation. Burt Co. PPD did not like the fact that it would be required to give up a portion of its service area and could not do anything to stop it. Mr. Grennan said if one party refuses to engage in joint planning, the other utility should contact the PRB for assistance. Vice Chairman Hutchison said this is not the first time the Board has heard that power suppliers are not engaging in joint planning, which then created issues that are raised in proceedings before the Board. He expressed concern whether this was becoming a problem. He wondered what the Board could do to ensure that adjoining suppliers engage in the required joint planning. He thought at the least the Board should send a letter to all power suppliers with a service area reminding them of the joint planning requirement, and that the Board will assist if one party refuses to participate. The Board continued to discuss issues involving joint planning for several more minutes. Following the discussion, Mr. Grennan made a motion to approve SAA 316-20-A. The motion failed for lack of a second. Vice Chairman Hutchison made a motion to go into closed session to further discuss legal issues regarding SAA 316-20-A. The motion failed for lack of a second. All Board members then agreed to table action on SAA 316-20-A until after the Board heard oral arguments on formal Complaint C-55.
The Board then went into recess at 9:40 a.m. During the recess, the Board heard oral arguments on C-55’s Motion to Dismiss and deliberated on SAA 316-20-A. Complaint C-55 is a formal complaint, and its proceedings are quasi-judicial in nature. That is why the matter was not placed on the Board’s agenda.
The Board reconvened its public meeting at 11:13 a.m. All members were again present. The Board returned to discussion on SAA 316-20-A. Executive Director Texel stated that during the recess the Board had deliberated on SAA 316-20-A. This was allowable because the Board was operating in its quasi-judicial capacity, pursuant to the Notice of Filing and Notice of Hearing, and Burt Co. PPD’s Protest. The parties had waived an evidentiary hearing and submitted the matter on the pleadings. Since both parties’ counsels were present via Webex, the Board was able to pose questions without implicating either parties’ due process rights. This procedure had been agreed upon when Executive Director Texel held a conference call with both parties’ legal counsels on November 4. Mr. Grennan moved to approve SAA 316-20-A. Ms. Loutzenhiser 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 to consider SAA 369-20-A. This is a joint application filed by the City of Central City and Southern Public Power District on October 26, 2020. The application would transfer a tract of territory on the southwest edge of the City, just southwest of the intersection of 28th Street and 15th Road, from Southern PPD to the City. The City annexed a triangle-shaped tract of territory in March 2019. Exhibit A-1 is a map showing the area to be transferred. The area involved is shaded in light blue. There is also a metes and bounds description of the territory on the map. Exhibit A is an agreement between the parties and clarifies that there are no customers in the area. Vice Chairman Hutchison moved to approve SAA 369-20-A. Mr. Grennan 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 to consider SAA 390-20-A. This is a joint application filed by NPPD and Elkhorn Rural Public Power District. The application was filed on October 29, 2020. The application would transfer a tract of territory annexed by the City of Norfolk from Elkhorn RPPD to NPPD’s retail service area. The City of Norfolk and its immediate surrounding area is part of NPPD’s retail service area. The annexed territory is located on the western side of the City’s corporate limits. The annexation occurred on July 15, 2019. Exhibit B is a metes and bounds description of NPPD’s service area including and around the City. Exhibit C is a copy of Ordinance No. 5621 accomplishing the annexation. There are no customers in the area, but the parties agreed upon compensation for some infrastructure in the area. Mr. Moen moved to approve SAA 369-20-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 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 were no questions concerning the monthly update letters from the Board’s consultant, JK Energy.
Executive Director Texel provided the Board with a brief overview of Order 2222 issued by the Federal Energy Regulatory Commission (FERC). On September 17, 2020, FERC issued Order 2222. The subject matter was titled “Participation of Distributed Energy Resource Aggregations in Markets Operated by Regional Transmission Organizations and Independent System Operators.” The Order does not directly affect the PRB, but the executive director wanted the members to be aware of it. The Order is intended to remove barriers to the participation of distributed energy resource aggregations in the capacity, energy, and ancillary service markets operated by Regional Transmission Organizations such as the Southwest Power Pool. The rule allows distributed energy sources to aggregate in order to participate in the RTO market, since they would be far too small to do so individually. SPP must revise its tariff to allow aggregated distributed energy resources to be a category of market participant. SPP must also establish a size requirement for aggregations, but the minimum size cannot exceed 100 kilowatts. FERC did not set a deadline for the necessary changes. Instead, it is allowing the RTOs and ISOs to propose their own compliance deadlines.
During the discussion of SAA 316-20-A, the Board mentioned that it might need to send a letter to power suppliers with service areas reminding them of their joint planning obligation. The executive director asked the Board if it wanted to give an directions on that subject to the staff. All Board members agreed that the executive director should draft a letter to the utilities regarding joint planning for the Board to review and approve at the December 14 meeting. All Board members also agreed that the executive director should raise this issue at the next meeting of the Nebraska Power Association’s Board of Directors.
The Board’s next public meetings will be December 14, 2020, January 11, and February 8, 2021.
Mr. Grennan moved to adjourn the 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 meeting was adjourned at 12:12 p.m.
Timothy J. Texel
Executive Director and General Counsel