NEBRASKA POWER REVIEW BOARD
January 15, 2021
The 815th 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, and Mr. Moen. Chairman Reida , Mr. Grennan and Mr. Moen were participating through videoconference on Web-ex, pursuant to the provisions Executive Orders 21-02 and 20-36. Ms. Loutzenhiser had informed the staff earlier this week that due to an emergency at work she would not be able to participate in the meeting. Executive Director Texel stated that public notice for the meeting had been published in the Lincoln Journal Star newspaper on January 7, 2021. 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.
Mr. Texel took a moment to announce that Governor Ricketts has appointed Mr. Moen and Vice Chairman Hutchison to a second term on the Power Review Board. The Legislature will need to confirm both appointments.
The Board first considered the draft minutes from its November 9, 2020, public meeting. The Board did not receive any comments about the minutes. The staff did not have any changes to suggest. Vice Chairman Hutchison moved to approve the minutes. Mr. Grennan seconded the motion. Voting on the motion: Chairman Reida – yes, Vice Chairman Hutchison – yes, Mr. Grennan – yes, Ms. Loutzenhiser – absent, and Mr. Moen – yes. The motion carried 4-0 with one absent.
The next agenda item was acceptance of the expense reports for the month of November and December. In November, there was $26,637.12 in personal services, $19,985.25 in operating expenses, and $1,347.53 in travel expenses. The total expenses for November were $48,227.89. In December, there was $35,209.17 in personal services, $26,747.53 in operating expenses, and $258.70 in travel expenses. The total expenses for December were $62,215.40. The December expenses were higher due to three pay periods that month. Executive Director Texel noted that the Board has used 52.17% of its cash fund and 50% of the fiscal year has passed. Vice Chairman Hutchison moved to accept the November and December expense reports. Mr. Moen seconded the motion. Voting on the motion: Chairman Reida – yes, Vice Chairman Hutchison – yes, Mr. Grennan – yes, Ms. Loutzenhiser – absent, and Mr. Moen – yes. The motion carried 4-0 with one absent.
The next item on the agenda was to consider an amendment to Board Policy 3. This policy sets out the PRB’s policy for making copies of public documents and receiving reimbursement for allowed costs. In responding to a recent records request, the staff found that one part of the policy was outdated. The records requests involved a fair amount of staff time and quite a few documents to be copied. In 2013, the Legislature changed the statute setting out what is allowed for copying public documents. The statute was changed to allow the first four hours of staff time at no cost to the person submitting the records request. The current policy allows only one-half hour of staff time as free. The amendment updates the policy to allow up to four hours of staff time to research and copy documents without cost to the requesting person. Mr. Moen moved to approve the change to Board Policy 3. Vice Chairman Hutchison seconded the motion. Voting on the motion: Chairman Reida – yes, Vice Chairman Hutchison – yes, Mr. Grennan – yes, Ms. Loutzenhiser – absent, and Mr. Moen – yes. The motion carried 4-0 with one absent.
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 Consulting. Mr. Grennan stated the SPP was still holding its meetings virtually and has not held any in-person meetings for some time.
The Board then went into recess at 9:33 a.m. During the recess, the Board held a hearing on the merits of formal Complaint C-55. This proceeding is quasi-judicial in nature, which is why the matter is not shown on the Board’s agenda. The hearing was also available for the public to view on Webex.
The Board reconvened its public meeting at 4:36 p.m. The four members who were present prior to the recess were again present. The Board returned to discussion on the executive director’s report. Executive Director Texel discussed a letter that the Board asked him to draft a letter reminding all Nebraska utilities with a retail service area concerning of their duties to engage in joint planning with their adjoining electric power suppliers. Executive Director Texel said the Nebraska Power Association (NPA) was planning to have representatives provide an update regarding their understanding of what joint planning entails and what they currently do to engage in joint planning. The Board members all agreed that they wanted to hear from the NPA representatives prior to sending out a letter. All four Board members agreed to table the issue until the February meeting.
The next item was to discuss the bills introduced in the Legislature this session.
LB 83 was introduced by Senator Flood. The bill would amend the Open Meetings Act to provide for virtual conferencing. The Board members discussed the use of videoconferencing due to the pandemic. Executive Director Texel told the Board about several technical issues that he thought would be helpful to clarify in the bill to avoid uncertainty. One issue dealt with the lack of definition of a term. Another pertained to the meaning of a phrase. The last issue was that a phrase used in current law was changed in one place in the bill, but remained in another place, and it was not clear what the new phrase is intended to mean. The Board stated it would remain neutral on the bill. The Board authorized the executive director to contact the Committee or testify concerning the technical issues discussed.
LB 112 was introduced by Senator Albrecht. It would require that members of the public be allowed to speak at each meeting subject to the Open Meetings Act. This would include PRB meetings, although the PRB already allows members of the public to speak at every PRB meeting.
LB 213 was introduced by Senator Briese. This bill requires an efficiency review of state agencies. The Power Review Board is one of the many agencies listed in the bill.
LB 257 was introduced by Senator Hansen. This bill changes provisions relating to vacancies on public power district and public power and irrigation district boards. Under current law, if a district has fewer than 25 cities in its chartered territory, the remaining board members choose a replacement to fill the vacancy, while the Governor appoints a replacement for vacancies if the district has 25 or more cities in its chartered territory. LB 257 would authorize the remaining board members to fill a vacancy for all public power districts.
LB 266 was introduced by Senator McCollister. This bill would adopt the “Renewable Energy Standards Act.” It would require Nebraska electric utilities to achieve net-zero carbon emissions by 2050. It would exempt a public power supplier from the net-zero carbon emission standard if the supplier’s board of directors determines that compliance would negatively affect the operation of the supplier’s power system. Executive Director Texel pointed out that although the bill applies to all public power suppliers, the section allowing for an exemption cites only to a finding by the power supplier’s “board of directors”. This would not include municipalities, which have a village board or city council. The term “governing body” would include all power suppliers. Also, on page 3, lines 25-27 of the bill it provides that the definition of the term “Renewable energy generation facility includes “The transmission and distribution facilities necessary to conduct the energy produced by a facility described in subdivision (3)(a) of this section to users.” Technically, this definition is broad enough that all transmission and distribution assets in the State could arguably be defined to be part of a “renewable energy generation facility”. The Board suggested that the executive director should contact Senator McCollister’s office about these two technical points.
Executive Director Texel told the Board that each year the Board sets up a committee of two board members and the executive director that are delegated the authority to take positions on bills or amendments that come up between PRB meetings. Only two board members are on the committee to avoid any quorum issues under the Open Meetings Act. All four board members agreed that Chairman Reida and Vice Chairman Hutchison should be the two board members on the Legislation Committee.
There was some discussion concerning the mainline budget bill. The Board’s budget request included an increase in the category of contractual services to accommodate a possible need to increase the amount paid to the SPP consultant. The Governor’s budget recommendation was to not include the increase in the contractual services category. The Budget Office comment was that the Board’s current cash fund balance can accommodate the requested increase for the engineering contract. The engineering contract will expire at the end of June 20201, and a new request for proposals (RFP) will be issued shortly. The starting period for the new contract will be July 1, 2021. There was some discussion about the Board’s budget and its cash reserve fund. The Board decided the issue would be addressed by setting a maximum bid amount in the RFP, and the Board would not ask the Legislature to replace the requested increase.
The Board then discussed proposed legislation concerning electric storage facilities. OPPD had provided a draft bill to Executive Director Texel. Initially it would have exempted such facilities from PRB jurisdiction. Executive Director Texel expressed concerns about this approach. There was a second draft that attempted to address the executive director’s concerns. OPPD notified the executive director on Thursday that it was not going to pursue introducing the bill this session. OPPD would like to discuss the issue with the PRB and NPA and determine how to address the issue. The Board discussed what is included in the definition of an electric storage facility. The Board members thought that one option might be for the Board to draft a guidance document that would provide electric suppliers more clarity regarding the Board’s interpretation of how to electric storage facilities are addressed under current law. The Board asked the executive director to discuss this issue with the NPA at its next board meeting.
The Board’s next public meetings will be February 8, March 8, and April 12, 2021.
Vice Chairman Hutchison moved to adjourn the meeting. Mr. Grennan seconded the motion. Voting on the motion: Chairman Reida – yes, Vice Chairman Hutchison –yes, Mr. Grennan – yes, Ms. Loutzenhiser – absent, and Mr. Moen – yes. The motion carried 4-0 with one absent. The meeting was adjourned at 5:36 p.m.
Timothy J. Texel
Executive Director and General Counsel