NEBRASKA POWER REVIEW BOARD
Minutes of the 852nd Meeting
April 19, 2024
The 852nd 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 South, Lincoln, Nebraska. The roll was called and present were Vice Chairwoman Gottschalk, Mr. Austin, Mr. Liegl, and Mr. Moen. Chairman Hutchison had informed the Board at the previous meeting he would not be attendance since he would be at an in-person meeting of the Southwest Power Pool’s REAL team meeting in Denver, Colorado. Executive Director Texel stated that public notice for the meeting had been published in the Lincoln Journal Star newspaper on April 9, 2024. The Board also made the meeting available to the public through Webex. The Webex login 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 wants to speak, they can 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 in the back of the room. A copy of all materials that the Board would consider was available for public inspection on a file cabinet on 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 March 15, 2024, 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. Mr. Liegl moved to approve the draft minutes. Mr. Austin seconded the motion. Voting on the motion: Chairman Hutchison – absent, Vice Chairwoman Gottschalk – yes, Mr. Austin – yes, Mr. Liegl – yes, and Mr. Moen – yes. The motion carried 4-0 with one absent.
The next agenda item was acceptance of the expense report for the month of March. In March there was $27,342.63 in personal services, $22,705.97 in operating expenses, and $882.70 in travel expenses. The total March expenses were $50,931.30. Executive Director Texel explained that the Board has used 78% of the agency’s cash fund, and 75% of the fiscal year has gone by. The Board is roughly 3% over budget. Mr. Liegl moved to accept the March expense report. Mr. Moen seconded the motion. Voting on the motion: Voting on the motion: Chairman Hutchison – absent, Vice Chairwoman Gottschalk – yes, Mr. Austin – yes, Mr. Liegl – yes, and Mr. Moen – yes. The motion carried 4-0 with one absent.
The next item on the agenda was to consider Polk County Rural Public Power District’s petition for charter amendment 12. This Petition was initiated by the Board on its own motion. In January 2022, Polk Co. RPPD filed its Petition for Charter Amendment 10. The District amended the number of directors allocated to voting subdivisions II and III in Section 6 of its charter. The Petition requested that the number of directors in Subdivision II be increased from 2 to 3, and the number of directors in Subdivision III be decreased from 3 to 2. The notice published by the Board mistakenly did not include the two number changes. Both the Board’s staff and the District failed to catch this omission when Charter Amendment 11 occurred. The purpose of Charter Amendment 12 is to correct the number of directors in subdivisions II and II that are set out in Section 6 of the charter. The language needed to be published in a notice to allow an opportunity for any person with standing to object. As required by statute the Board published notice in two newspapers for three consecutive weeks. The Notice was published in the Polk County News and the Central City Republican Non-Pareil on February 29, March 7 and 14, 2024. Although state law requires an applicant for a charter amendment to pay for the public notices, since the omission of the correct numbers in Charter Amendment 10 was the fault of the Board, the Board is paying the cost for the public notices in Charter Amendment 12. The Board did not receive any protest or objection to the proposed changes. Nebraska Revised Statute section 70-663 allows the PRB to approve a charter amendment without a hearing if no protests or objections are filed. The Board must 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. Mr. Austin moved to waive the hearing and approve the Petition for Charter Amendment 12. Mr. Liegl seconded the motion. Voting on the motion: Voting on the motion: Chairman Hutchison – absent, Vice Chairwoman Gottschalk – yes, Mr. Austin – yes, Mr. Liegl – yes, and Mr. Moen – yes. The motion carried 4-0 with one absent.
The next item on the agenda was to consider Burt County Public Power District’s Petition for Charter Amendment 9. The Petition was filed on February 22, 2024. The Petition requests changes to Sections II, V and VI of the District’s charter. The changes in Section II would amend the description of the District’s chartered territory. The new description would incorporate changes that have occurred around municipalities due to annexations and update the language to address name changes in precincts made by the counties. It would also cause the chartered territory to more closely align with the District’s retail service area. The changes in Section V would add language that “the District has no authority to issue general obligation bonds” that is required to be included in district charters by Neb. Rev. Stat. section 70-604(5). The changes in Section VI would update the list of directors. Burt Co. PPD requested the notice to be published in three local newspapers instead of only two. Notice was published in the Rustler-Sentinel on March 6, 13, and 20, 2024, the Burt County Plaindealer on March 5, 12, and 19, 2024, and the Pender Times on March 7, 14, and 21, 2024. The Board did not receive any protest or objection. The Board must 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. Mr. Liegl moved to waive the hearing and approve the Petition for Charter Amendment 9. Mr. Moen seconded the motion. Voting on the motion: Voting on the motion: Chairman Hutchison – absent, Vice Chairwoman Gottschalk – yes, Mr. Austin – yes, Mr. Liegl – yes, and Mr. Moen – yes. The motion carried 4-0 with one absent.
The next agenda item was the executive director’s report. Since Chairman Hutchison was not present there would not be an update on SPP activities. Mr. Austin did ask about getting a copy of the list of acronyms prepared by the Board’s staff. Vice Chairwoman Gottschalk told the Board that a staff member at Lincoln Electric System (LES) had approached her and offered to give a briefing about LES’s role in the SPP. She thought perhaps such a presentation would be good for most of the Board members. Executive Texel stated that any briefing a utility gives to the Board would need to be done during a public meeting. There was also a discussion about asking SPP to give presentation to the Board on the SPP and recent activities, as SPP staff has done numerous times in the past. The Board asked the executive director to contact SPP to see if they still do the presentations, or would be willing to do so.
The legislative bills in the 2024 session was the next item to be discussed. The executive director reviewed the bills that directly affect the PRB or the electric industry. The last day of the 2024 Legislative session was April 18. The bills with an emergency clause will go into effect when they are signed by the Governor. Bills without an emergency clause will go into effect 90 days after the end of the session, which would be July 18.
LB 43 was used as a vehicle for a group of bills that will all be packaged together. Section 8 expands who can submit public records requests. Currently the statute refers to “citizens.” Section 8 would replace citizens with “residents.” Sections 13 and 14 are of particular interest to the PRB. Section 13 requires a court involved in an administrative appeal to interpret a statute, rule or regulation without deference to the agency’s interpretation. Section 14 requires that a court involved in an administrative proceeding, after applying all customary rules of interpretation, must resolve any remaining doubt in favor of an interpretation consistent with a person’s fundamental constitutional rights. The bill also clarifies that information concerning cybersecurity is a type of record that can be withheld from the public. Section 21 requires public bodies to allow members of the public an opportunity to speak at each meeting, not just certain meetings. This will not affect the PRB because the PRB already allows the public to speak at all of its public meetings. The Governor signed this bill on March 27. The bill had an emergency clause, which applies to section 11.
LB 399 originally would have changed provisions relating to privately developed renewable energy generation facilities, and have those facilities be approved by the PRB, instead of the current administrative certification process. The bill went through numerous rewrites. In the final approved version of the bill, before any generation facility is constructed or installed that will be more than ten megawatts capacity, the governing body of the entity constructing the facility is required to hold a public meeting, with advanced notice, in at least one of the counties in which the proposed facility will be located. At least fifty percent of the governing body must participate in the meeting, and at least one member of the governing body must attend the meeting in person. The rest can attend via videoconference. This requirement applies to both private developers and public power utilities. The applicant shall provide a report to the PRB containing minutes of the meeting, which will include how many people provided comments. The PRB can also request to receive a copy of any documents that were received at the meeting. These public meetings do not count toward the fifty percent restriction for videoconference meetings in the Open Meetings Act. No public meeting is required if the proposed facility will be located on real property owned by the applicant. Private developers must certify the meeting was held as part of their Privately Developed Renewable Energy Generation Facility certification process. LB 399 bill will go into effect on July 18.
LB 867 is a package of bills that includes LB 866, the bill Senator Bostelman introduced for the Board to amend the board member requirements and per diem amount. The bill eliminates the requirement that one board member be an accountant. It allows one member to be appointed with less than four years separation from an electric utility, but that member must abstain from participating in actions involving their former employer for four years. It changes the term limit from two to three consecutive terms. The per diem amount increases from $60 to $100, and the maximum per diem allowed increases from $6,000 to $7,000 per member. The PRB’s changes are in section 11 of the bill. The bill was signed by the Governor on April 15. The bill will go into effect on July 18.
LB 1317 is another package of bills. It includes LB 1218, which deals with sales of electricity through electric vehicle (EV) charging stations. The portions of the bill dealing with EVs are sections 62 through 68. The bill offsets loss of fuel taxes by adding a $150 registration charge for EVs. Beginning January 1, 2028, an excise tax of 3.5 cents per kilowatt hour (kwh) will be charged on sales of electricity at commercial EV charging stations. No such charge applied to EVs charged at a residence. The important sections for the PRB are 65 to 68. Section 65 adds definitions for “commercial electric vehicle charging station” and “commercial electric vehicle charging station operator” to the PRB’s definitions statute (70-1001.01). The definition of “electric supplier” is amended to clarify that the term does not include commercial EV charging station operators. Section 66 amends 70-1002.02 to exempt EV charging station operators from the normal service area protections, and authorizes sales of electricity at EV chargers to be based on the kilowatts used. The exemption is limited to EV charging stations, and the owner must purchase the electricity from the utility with the service area rights to that location. It also allows EV charging stations to use battery back-up as a power source, so long as the batteries are charged solely with electricity from the local utility. Section 67 creates a non-compete clause. It gives a right of first refusal to private entities to operate EV chargers. Public power utilities cannot install an EV charger within 15 miles of an existing EV charger. After January 1, 2028, public power utilities cannot install EV chargers within 10 miles of a privately-owned EV charger. Since the bill was passed on the last day of the session, the Governor has not yet taken action on the bill. However, it is the executive director’s understanding that Governor Pillen supports the bill.
LB 1370 addresses retirements of dispatchable electric generation facilities. As with the other bills, several other bills were amended into LB 1370. Section 1 requires a public power utility in Nebraska to provide written notice to the PRB prior to closing or decommissioning an existing dispatchable electric generation facility with over 100 megawatts capacity. The notice must include recommendations addressing transition activities to avoid economic harm to the workers at the facility. The PRB has the discretion to set the matter for hearing to accept information concerning closing or decommissioning the facility. The hearing is closed to the public, and all information regarding the notice and hearing are confidential and not subject to the Open Meetings Act and the associated documents are not public records until the utility publicly announces the closure or decommissioning. The Board then makes recommendations to the utility on whether the closure is in the best interests of the utility and its customers. The utility must consider the Board’s recommendations before making a final decision. Section 5 requires that electric suppliers constructing or acquiring a generation or transmission facility within 10 miles of certain military installations must provide written notice to the PRB certifying that no materials or components were manufactured by a foreign adversary, as defined in 15 C.F.R. 7.4. Electric suppliers are exempt if they file a certification that they are in compliance with the North American Electric Reliability Corporation’s critical infrastructure protection requirements. Suppliers are required to notify the PRB if they fall out of compliance of the NERC standards. Similar provisions address facilities built by private developers under the privately developed renewable energy generation facility process. The Governor signed this bill on April 15. Section 1 will go into effect on July 18, but section 5 had the emergency clause, so it went into effect on April 15.
Executive Director Texel stated that the next PRB meetings are scheduled for May 17, June 21, and July 12, 2024. He noted that the July meeting is not on the normal third Friday of the month. Mr. Liegl notified the Board that he would not be able to attend the June meeting.
Mr. Austin moved to adjourn the meeting. Mr. Liegl seconded the motion. Voting on the motion: Chairman Hutchison –absent, Vice Chairwoman Gottschalk – yes, Mr. Austin – yes, Mr. Liegl – yes, and Mr. Moen – yes. The motion carried 4 –0 with one absent. The meeting was adjourned at 10:34 a.m.
Timothy J. Texel
Executive Director and General Counsel
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