NEBRASKA POWER REVIEW BOARD
Minutes of the 837th Meeting
January 27, 2023
The 837th meeting of the Nebraska Power Review Board (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, Mr. Moen, and Ms. Peck. Executive Director Texel stated that public notice for the meeting had been published in the Lincoln Journal Star newspaper on January 17, 2023. 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. The agenda on the Board’s website provided links to the agenda items with associated documents the Board will consider, as well as a link to the Nebraska Open Meetings Act. Executive Director Texel explained that if any member of the public watching the meeting on Webex wanted to speak, they could click on the “raise your hand” icon. At that time they would be unmuted, they could announce who is speaking, provide an address, and disclose if they represent an organization. Anyone wishing to comment on an item or ask a question could also type the comment or question in the “chat” function and the Board’s staff would read the question. 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 meeting notebook. The executive director announced that a copy of the Nebraska Open Meetings Act was on display on the south wall of the room, 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 file cabinet along the south wall near the back of the room, as well as extra copies of the agenda.
The Board first considered the draft minutes from its December 16, 2022, public meeting. The minutes had been sent electronically to the Board members. The staff did not have any recommended changes, and no one had contacted them with any requested changes. Vice Chairman Hutchison moved to approve the draft minutes. Mr. Grennan seconded the motion. Voting on the motion: Chairman Reida – yes, Vice Chairman Hutchison – yes, Mr. Grennan – yes, Mr. Moen – yes and Ms. Peck – yes. The motion carried 5-0.
The next agenda item was acceptance of the expense report for the month of December. In December there was $23,351.99 in personal services, $20,499.93 in operating expenses, and $235.88 in travel expenses. The total December expenses were $46,087.88. Fifty percent of the fiscal year has gone by, and the PRB has used 47.97% of its cash fund. Ms. Peck moved to accept the December expense report. Mr. Moen seconded the motion. Voting on the motion: Chairman Reida – yes, Vice Chairman Hutchison – yes, Mr. Grennan – yes, Mr. Moen – yes and Ms. Peck – yes. The motion carried 5-0.
The next item on the agenda was to consider Loup River Public Power District’s Petition for Charter Amendment 10. This is a follow-up action to correct an omission from Loup River PPD’s previous charter amendment 9. Loup River PPD captioned its Petition as a correction to charter amendment 9, but since it is a separate charter amendment it was formally docketed as a Petition for Charter Amendment 10. In charter amendment 9 there was an omission in section (f), subdivision 1. The township of St. Bernard was supposed to be included, but was inadvertently omitted. The map shows St. Bernard as part of the subdivision, and the township was included in the description of the District’s chartered territory, but the text was not included in the language placing St. Bernard Township in voting subdivision 1. The additional language is a substantive change and would therefore need to follow the statutory steps for a charter amendment. The Board published notice as required by statute in two newspapers for three consecutive weeks. The Notice was published in the Humphrey Democrat and the Columbus Telegram on November 23, November 30 and December 7, 2022. The Board did not receive any protests, or objections. Neb. Rev. Stat. section 70-663 allows the PRB to approve a charter amendment without a hearing if no protests or objections are filed. To approve the proposed amendment the Board needs to find that the charter amendment will not be contrary to the best interests of the District and will not jeopardize or impair the rights of creditors of the district or of other persons. The executive director recommended to the Board to waive the hearing and approve the Petition for Charter Amendment 10. Mr. Grennan moved to waive the hearing and approve Loup River Public Power District’s Petition for Charter Amendment 10. Vice Chairman Hutchison seconded the motion. Voting on the motion: Chairman Reida – yes, Vice Chairman Hutchison – yes, Mr. Grennan – yes, Mr. Moen – yes and Ms. Peck – yes. The motion carried 5-0.
The next agenda item was to consider renewal of State Contract 94906 O4. This is the contract the State has with JK Energy Consulting, LLC for John Krajewski to be the Board’s designated member on the Southwest Power Pool’s (SPP) Cost Allocation Working Group (CAWG) and to advise the Board member that serves as the PRB’s representative on the SPP’s Regional State Committee (RSC). In 2021 a new contract was issued. This would be the second renewal of the contract. The State allows a maximum of five renewals. The new contract period would run from July 1, 2023, to June 30, 2024. The current dollar amount is $13,750 per month, which is $165,000 annually. The contract allows the contractor to request an increase in pay of up to five percent after the second year of the contract. JK Energy submitted a letter requesting a pay increase of five percent, which would be $14,435 per month, or $173,220 annually. The letter contains reasons supporting the compensation increase. Executive Director Texel explained that when the request for proposals was issued three years ago, JK Energy was making $14,300 per month at the end of the previous contract term. With the requested increase, JK Energy would be making $135 more per month than it did under the contract three years ago. DAS Materiel Division will process the renewal and is responsible for executing the new contract if the Board votes to approve the renewal. Mr. Krajewski was available via Webex. Chairman Reida asked if there has been any further issues with conflicts of interest. Mr. Krajewski stated that the system that is in place has been working well. Executive Director Texel responds quickly to any proposed new projects submissions that are given to him. Mr. Grennan stated that Nebraska needs to continue to have good representation at SPP, and Mr. Krajewski has done a fine job. Vice Chairman Hutchison stated that Mr. Krajewski continues to do a good job helping the PRB’s representative prepare for the RSC meetings. He also is a good source of information for other states who call upon him for information. He is well respected at SPP and on the CAWG and has represented Nebraska’s interests very well. Vice Chairman Hutchison moved to approve the renewal of contract 94906 O4 with JK Energy Consulting, LLC for July 1, 2023 to June 30, 2024, with the requested compensation increase of five percent, to $14,435 per month. Mr. Grennan seconded the motion. Voting on the motion: Chairman Reida – yes, Vice Chairman Hutchison – yes, Mr. Grennan – yes, Mr. Moen – yes, and Ms. Peck—yes. The motion carried 5-0.
The Board recessed its public meeting at 9:32 a.m. During the recess the Board conducted evidentiary hearings on NPPD’s applications PRB-3979 and PRB-3980. These items are on the agenda and are uncontested applications. It is the Board’s policy to conduct an evidentiary hearing on any line that is over five miles in length and rated at or higher than 34.5 kilovolts. The Board will be conducting the hearings in its quasi-judicial capacity. The board may act upon the applications during its public meeting. This allows the applicant to continue planning and proceed with the construction phase of the project while the Board’s final written order is drafted. The written order is the Board’s final action on the matter, and will outline the Board’s findings. Mr. Grennan announced that he will be recusing himself from participating in the hearings because his employer, engineering firm HDR, Inc., has performed work on these applications. Although he has not personally worked on the projects, he wishes to avoid any appearance of bias.
The Board reconvened its public meeting at 1:00 p.m. During the recess the Board heard testimony on both PRB-3979 and PRB-3980. The Board then took time to deliberate on the applications. All members were again present.
The next item on the agenda was the consideration of PRB-3979. This is an application submitted by the Nebraska Public Power District. The application was received on November 7, 2022. NPPD is requesting to construct nine miles of 115 kilovolt transmission line in Buffalo County, near the City of Kearney, Nebraska. The line would interconnect the Kearney TechOne and Kearney Tower 115kV substations. The Board placed a public notice in the Kearney Hub newspaper on December 14, 2022. The notice stated that anyone wishing to be heard or to protest said application must file a written Petition for Intervention prior to the hearing date. The Board did not receive any protest or petition for intervention. A notice of filing and hearing date was sent to those parties that the PRB deemed interested. The notice was sent to NPPD, Dawson Public Power District and the City of Kearney. The Board also submitted the application to the Game and Parks Commission for consultation as required by Neb. Rev. Stat. section 37-807(3). In a letter dated November 21, 2022, the Commission stated that the project is located within the range of the state-listed endangered Interior Least Tern, state and federally listed threatened Northern Long-eared Bat and Piping Plover, and the state and federally listed endangered Whooping Crane. The project’s proximity to the Platte River makes it suitable habitat and foraging grounds for migratory whooping cranes. The project also anticipates tree removal, which is suitable roosting structures for Northern Long-eared Bats. The Commission referred to a consultation request from HDR, the engineering firm that is working on the application for NPPD. NPPD agreed to implement conservation and mitigation measures to avoid adverse impacts to Whooping Cranes and Northern Long-eared Bats. Based on the mitigation measures agreed to by NPPD, the Commission determined that the proposed project “May Affect But is Not Likely to Adversely Affect” any state listed threatened or endangered species. The Board heard additional testimony during the hearing to support the reasons for constructing this line. Mr. Moen moved to approve Nebraska Public Power District’s application PRB-3979. Ms. Peck seconded the motion. Voting on the motion: Chairman Reida – yes, Vice Chairman Hutchison – yes, Mr. Grennan – abstain, Mr. Moen – yes, and Ms. Peck—yes. The motion carried 4-0 with 1 abstaining.
The next item on the agenda was the consideration of PRB-3980. This is an application submitted by the Nebraska Public Power District. The application was received on November 7, 2022. NPPD is requesting to construct nine miles of 115 kilovolt transmission line in Scotts Bluff County, Nebraska. The line would interconnect the Scottsbluff and Victory Hill 115kV substations. The Board placed a public notice in the Star-Herald newspaper on December 14, 2022. The notice stated that anyone wishing to be heard or to protest said application or in any way participate in hearing, must file a written petition for intervention prior to the hearing date. The Board did not receive any protest or petition for intervention. A notice of filing and hearing date was sent to those parties that the PRB deemed interested. The notice was sent to NPPD, Roosevelt Public Power District, Western Area Power Administration, the City of Scottsbluff, and the City of Gering. The Board also submitted the application to the Game and Parks Commission for consultation as required by Neb. Rev. Stat. section 37-807(3). In a letter dated November 21, 2022, the Commission stated that the project is located within the range of the state-listed endangered swift fox. The project area has been previously disturbed by city development or agricultural activities and is unlikely to have suitable habitat for swift fox. Therefore, the project is not anticipated to have an impact on any state listed endangered or threatened species. The Board heard testimony during the hearing to support the reasons for constructing this line. Vice Chairman Hutchison moved to approve Nebraska Public Power District’s application PRB-3980. Mr. Moen seconded the motion. Voting on the motion: Chairman Reida – yes, Vice Chairman Hutchison – yes, Mr. Grennan – abstain, Mr. Moen – yes, and Ms. Peck—yes. The motion carried 4-0 with 1 abstaining.
Executive Director Texel then gave an update on the letter to the Nebraska Power Association (NPA) detailing additional requests for information to be included in future annual Load and Capability reports. The issue stems from the PRB-Electric Industry workshop meetings. At the Board’s December 16, 2022 public meeting, the Board approved a letter which was sent to the NPA. The NPA notified Executive Director Texel that the letter did not include some language that the NPA had requested. This new letter corrects that oversight and contains the requested language. Ms. Peck pointed out that there was an issue with the numbering. Paragraph 6 started on one page, but with the page break the remainder of paragraph 6 was renumbered as paragraph 7. Mr. Grennan moved to approve the letter and to authorize the Board chairman to sign it, with the correction noted of the paragraph numbers, then send the letter to the Nebraska Power Association. Vice Chairman Hutchison seconded the motion. Voting on the motion: Chairman Reida – yes, Vice Chairman Hutchison – yes, Mr. Grennan – yes, Mr. Moen – yes and Ms. Peck – yes. The motion carried 5-0.
Executive Director Texel then gave an update on the PRB-Electric Industry Workshop. The workshop group decided that it should issue a “whitepaper” or summary report of what was discussed and decided during the workshop meetings. Shelley Sahling (who, along with Executive Director Texel, served as co-moderators for the group) created a first draft of the document. At the November meeting the Board asked to have two additional sections added to end of the paper. One would be a brief description of what an Integrated Resource Plan (IRP) is, followed by a brief summary of the most recent IRPs issued by LES, MEAN, NPPD and OPPD. Second would be a description of all the different entities with jurisdiction over mandatory reliability standards and a description of each entity’s role, jurisdiction and authority. There were several changes to the final draft, but all but one were minor, non-substantive changes. The one substantive change was that Tri-State Generation and Transmission, Inc. informed the executive director that they also produce an IRP, and asked to be added to the list. With those final changes made, it was the plan to have the paper issued and distributed to the members of the workshop, and also provide a copy to the members of the Legislature’s Natural Resources Committee.
Vice Chairman Hutchison gave an update on the SPP monthly activities. The Board had a copy of JK Energy’s monthly report. All members receive this report by e-mail and a copy is available in their meeting notebooks. Vice Chairman Hutchison said the RSC will be meeting next week. The CAWG has met several times last month trying to resolve issues in the tariff revisions. There is also a new request to change the deficiency payment for the planning reserve margin (PRM) requirement. He also stated that the RSC has a new president – Commissioner Andrew French from Kansas.
Executive Director Texel announced that the new Board member, Kristen Gottschalk, had her committee hearing this Wednesday. Her appointment was voted on favorably by the committee and forwarded to the full Legislature on a vote of 7-0-1. The Legislature might be confirming her today. The plan is to have her come in next week to take her oath of office. He then gave an update on the appointment of an attorney member to replace Chairman Reida, whose term ended on December 31, 2022. The Board has not heard from the Governor’s office on when an appointment for the attorney member might happen.
The executive director then went over the bills that the Board may have an interest in or could affect the State’s electric industry.
LB 49 was introduced by Senator Dungan. This bill changes provisions relating to solar and wind energy. The bill creates a right to direct sunlight for property. Essentially neighboring property owners could be prohibited from erecting structures or allowing vegetation that blocks sunlight. It also voids any homeowners association covenants or bylaws that would prohibit installation or use of solar panels. The bill does not directly affect the PRB.
LB 120 was introduced by Senator Bostelman. This bill does away with obsolete statute sections 70-1029 to 70-1033. The statutes were enacted in 2014 when the Legislature wanted a study done on transmission infrastructure and exporting energy outside Nebraska. Senator Bostelman asked the executive director if there were any obsolete PRB statutes, and these were an obvious example. This bill does affect the Board. The Board took a position to support the bill and authorized Executive Director Texel testify in support.
LB 255 was introduced by Senator Brewer. The bill changes eminent domain and renewable energy generation provisions relating to certain power suppliers. This bill would prohibit cities of the primary class (Lincoln) or public power districts whose chartered territory include half the counties in Nebraska (NPPD), or whose service area includes a city of the metropolitan class (OPPD) from exercising their power of eminent domain for the purpose of constructing or operating a wind or solar generation facility. The definition of a privately developed renewable energy generation facility (PDREGF) would be changed. It also prevents joint ownership of a PDREGF. Ownership would need to be exclusively private entities and not include any public power entities. The bill also prohibits public power entities from participating in a special generation application or a community based energy development (C-BED) facility.
LB 267 was introduced by Senator Brewer. This bill would adopt the Critical Infrastructure Utility Worker Protection Act. This bill was introduced in previous years. It was requested by OPPD. This bill would prioritize utility workers’ access to personal protection equipment similar to law enforcement and health care workers. Critical infrastructure employee lists would not be a public record.
LB 289 was introduced by Senator Bostelman. This bill was requested by the Municipal Energy Agency of Nebraska (MEAN). It would clarify that MEAN has the authority to own, operate, contract to operate, or lease advanced metering infrastructure technology and provide advanced metering infrastructure services. MEAN has some members requesting to use smart meters and would like MEAN to own and/or operate the meters, but it is not clear if MEAN has that authority.
LB 399 was introduced by Senator Brewer. This bill changes the provisions in the PRB statutes related to privately developed renewable energy generation facilities (PDREGF). The major components are that it requires a public hearing and board approval. The bill also repeals some language that refers to the importance of the Sandhills. Currently private developers submit a notice with certain certifications, and if notice is properly completed, the PRB executive director sends a letter confirming receipt and that the developer is exempt from the PRB’s normal approval process. Under LB 399, when a private developer submits an application for a PDREGF, the PRB would hold a public hearing. The Board would then determine if the developer meets the normal requirements, and must also find that the certifications are not outweighed by the testimony or evidence in opposition to the application. The executive director described his concerns about the public hearing process compared to the evidentiary hearing process in 70-1006. Also, the approval criteria is quite vague, which could create the possibility the Court of Appeals or Nebraska Supreme Court would find the approval criteria is void for vagueness. All Board members agreed to authorize Executive Director Texel testifying in a neutral capacity to express his concerns about LB 399.
LB 450 was introduced by Senator Brewer. This bill prohibits land disposal of wind turbine blades and their parts in Nebraska. The bill is pretty straightforward. It prohibits disposal of wind turbine blades and their components in landfills. This does not directly affect the Board.
LR 21 was introduced by Senator Brewer. This would create a special committee of the legislature to be known as the “Small Modular Nuclear Reactor Study Committee.” The bill sets out the members on the committee. The committee will study the feasibility of constructing and operating small modular nuclear reactors to generate electric power in Nebraska. The committee is to seek input from interested sources, which includes the PRB.
LB 505 was introduced by Senator Bostar. This bill allows non-utilities to sell electricity by the kilowatt-hour (kwh) at commercial electric vehicle charging stations and changes tax provisions for electric vehicles. The bill creates a definition for commercial electric vehicle charging station, commercial electric vehicle charging station operator and plug-in electric vehicle. The electric supplier definition clarifies that an electric vehicle supplier does not include a commercial electric vehicle charging station operator. This bill was a joint effort of the petroleum industry, convenience store association, and the electric utilities. Executive Director Texel had also been a part of the discussions.
LB 541 was introduced by Senator Lowe. The bill provides for nomination and election of director for public power districts and public power and irrigation districts by partisan ballot.
LB 566 was introduced by Senator Bostelman. This bill requires a study and report by the Natural Resources Committee regarding intermittent renewable energy generation. The report is due by November 15, 2023. The cost cannot exceed $30,000.
LB 567 was introduced by Senator Bostelman. This bill provides a definition of the term “reliable” or “reliability”, makes the PRB’s requests for additional information in the annual Load and Capability Reports mandatory, if it is submitting in writing, is consistent with the PRB’s statutory duties and can be performed at a reasonable cost. It also removes a prohibition against high-level managers of public power districts from serving as a director on other public power district boards. This similar to a bill introduced last year. The Board authorized the executive director to testify in favor of the part of the bill dealing with the annual Load and Capability Reports.
LB 568 was introduced by Senator Bostelman. The bill adopts the Nuclear and Hydrogen Development Act. The bill appropriates $5 million dollars from the general fund, which terminates on July 31, 2028.
LB 569 was introduced by Senator Bostelman. This bill prohibits financial interest by certain county officers and family members in electric generation facilities. It exempts existing contracts, it would prohibit members of county boards or planning commissions from having a direct or indirect financial interest in any entity that is a party to a contract relating to construction or operation of any electric generation facility within Nebraska or ownership of lease of any related property.
LB 725 was introduced by Senator Dungan. This bill prohibits public power districts or cooperatives from using ratepayer proceeds for the purpose of campaigning for or against any candidate for elected office or a ballot question. The executive director stated he had a concern about the definition of a “ratepayer.” The definition includes wholesale customers as “ratepayers”. Normally a ratepayer is only retail, end-use customers of a utility. He told the Board he contacted Senator Dungan’s office about the definition. The office said the primary purpose of the bill is to include cooperatives, which are private companies.
LB 726 was introduced by Senator Dungan. The bill would adopt the Nebraska Electric Consumer Right to Transparency and Local Control Act. The bill would require public power districts and municipal electric utilities to publish various information on the utility’s website, including a listing of all expenditures. Executive Director Texel noted that some of the smaller municipalities, mostly villages, do not have websites. AS with LB 725, LB 726 includes wholesale customers in its definition of “ratepayers”.
The Board in the past has elected several members to be on a legislative committee. This is so the Board can take positions on amendments and other legislation in between board meetings where the entire Board can take action. The current members are the Chairman and Vice Chairman. The Board agreed to leave the legislative committee members as is until the new attorney member is appointed. The issue may be revisited at that time.
The Board decided to table the appointment of the Vice Chair and Chair until the Board has its two new members seated.
Executive Director Texel reminded the Board that the next meetings are February 17, March 17, and April 21, 2023. During February the Board also has an evidentiary hearing scheduled to begin on February 15 and potentially may continue to the 16th and 17th. The hearing is to address the merits of the protest in opposition to the Petition for Charter Amendment 6 filed by the Central Nebraska Public Power and Irrigation District.
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, Mr. Moen – yes and Ms. Peck – yes. The motion carried 5–0. The meeting was adjourned at 3:10 p.m.
Timothy J. Texel
Executive Director and General Counsel