Minutes of the December 15, 2023 Meeting


Minutes of the 848th Meeting

December 15, 2023


The 848th 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 Chairman Reida, Vice Chairman Hutchison, Ms. Gottschalk and Mr. Moen.  Executive Director Texel stated that public notice for the meeting had been published in the Lincoln Journal Star newspaper on December 7, 2023.  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 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 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 November 17, 2023, 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.  Ms. Gottschalk moved to approve the draft minutes.  Mr. Moen seconded the motion. Voting on the motion:  Chairman Reida – yes, Vice Chairman Hutchison – yes, Ms. Gottschalk – yes, and Mr. Moen – yes.  The motion carried 4-0, with one vacancy.


The next agenda item was acceptance of the expense report for the month of November.  In November there was $38,641.95 in personal services, $16,475.12 in operating expenses, and 1,571.00 in travel expenses.  The total November expenses were $56,688.07.  Executive Director Texel explained that the Board has used 43.9% of the agency’s cash fund, and as of November 41.6% of the fiscal year has gone by, so the Board’s budget is approximately 2.25% over budget.  He stated that during the month of December there was a third pay period, which makes the Personal Services category larger than normal.  Vice Chairman Hutchison moved to accept the November expense report.  Ms. Gottschalk seconded the motion.  Voting on the motion:  Chairman Reida – yes, Vice Chairman Hutchison – yes, Ms. Gottschalk – yes, and Mr. Moen – yes.  The motion carried 4-0, with one vacancy.


The next item on the agenda was a presentation by the Nebraska Public Power District on its 2023 Integrated Resource Plan (IRP).  The Board has asked those entities that prepare an IRP to give a presentation to the Board briefing them on what is in the IRP.  The Board has been given an IRP presentation from OPPD, LES and MEAN.  NPPD finalized its IRP and contacted the Board to give its presentation.  Jim Fehr, NPPD’s Resource Planning and Risk Manager, and Jason Rosenkranz, Director of Business Transformation, gave NPPD’s presentation.  The IRP is available on NPPD’s website at 2023IRPapproved (nppd.com).  The Board thanked Mr. Fehr and Mr. Rosenkranz for the presentation and discussion during the presentation.


The Board took a recess at 10:28 a.m.  The Board reconvened its meeting at 10:43 a.m.  All or members present prior to the recess were again present.


The next agenda item was the executive director’s report.  First was an update on Southwest Power Pool (SPP) activities.  The Board had a copy of JK Energy’s monthly activities report. Vice Chairman Hutchison spoke about the SPP proposed winter planning reserve margin (PRM) that was rejected by the Federal Energy Regulatory Commission (FERC).  FERC had a concern about deficiency payments and that SPP’s proposal did not ensure the generation capacity would be met during the winter.  SPP is trying to develop an outage policy related to the FERC filing.  Vice Chairman Hutchison stated the SPP’s Resource and Energy Adequacy Leadership (REAL) team would be reviewing the policy at its meeting next Monday.  He discussed the possibility that the REAL team might hire a consultant to assist in this issue and perhaps on other matters as well.  John McClure, general counsel for NPPD, asked about the cost of the consultant and who was paying for it.  Vice Chairman Hutchison said that the Regional State Committee (RSC) budget has an expense category for a consultant.  Previously it was established because the RSC believes at some point it might need to hire legal counsel to assist in dealing with FERC filings that are separate from the SPP’s filing on an issue.  Vice Chairman Hutchison stated the budget money comes from the entities who pay rates into SPP.  However, he was not sure if there would be funds to hire both a consultant and have legal counsel, should both be necessary.


The Board members then discussed its SPP RSC succession planning activities and potential legislation.  Vice Chairman Hutchison, Ms. Gottschalk and Executive Director Texel met with Nebraska Power Association representatives Shelley Sahling-Zart and John McClure after the August PRB meeting to discuss the issue.  Some of the changes would include removing the requirement that one board member be an accountant and a slight increase in the per diem amount.  Another change would allow a recent employee of a utility to be appointed with less than four years separation from working at an electric utility.  The executive director addressed the issue with the NPA Board of Directors at its meeting this last week.  The NPA takes official positions on legislation after a bill is introduced and its Legislative Committee reviews the bill and provides a recommendation.  However, the NPA directors took an informal straw poll and gave a unanimous “thumbs up” in favor of the bill.  Senator Bostelman, chair of the Natural Resources Committee, has agreed to introduce the bill.  The Senator asked the executive director to write an opening statement for the Natural Resources Committee hearing.  Executive Director Texel drafted a statement and shared it with Vice Chairman Hutchison and Ms. Gottschalk for editing prior to giving it to Senator Bostelman.  The bill has been drafted and should be in its final form.  Executive Director Texel also forwarded the draft bill to attorneys that represent multiple private developers – David Levy, David Bracht and Mike Degan.  Their initial reactions were that they did not see any concerns with the bill.  They agreed to speak with their private developer clients and ask if any would submit a letter in support of the bill.  In preparation for the floor debate, Executive Director Texel asked Sara Birkett, the Board’s paralegal, to prepare a list showing the per diem rate for all State agencies.  One list is alphabetical, while another lists the agencies from highest to lowest per diem rate.  The lists also show each agency’s term limits (if any) and the number of years for each term.  Vice Chairman Hutchison said one factor to raise that could differentiate the PRB from other agencies and why the per diem is justified is that some other agencies may not exercise quasi-judicial authority.  At the NPA meeting Shelley Sahling-Zart pointed out there is no emergency clause on the bill, and asked whether that might be helpful.  An emergency clause would allow the bill to go into effect once the Governor signs it.  Without there emergency clause the bill goes into effect 90 days after the last day of the session.  This year is a short session and is tentatively scheduled to end April 18, 2024.  This means the bill if signed would become effective approximately July 18, 2024.  Executive Director Texel believed that the emergency clause was not necessary because if the changes became effective in July it provides plenty of time for the Governor to make a decision on appointments prior to the end of the year, and he thought the other changes are not really time-sensitive.  He asked if the Board would prefer the draft bill be amended to add an emergency clause.  The Board members all agreed that an e-clause is not necessary.


The next item to discuss was clarification on issues in the annual load and capability report.  At the November meeting Vice Chairman Hutchison raised the issue that the NPA did not seem to fully address a couple of issues in the 2023 report, at least according to how the Board thought the issues would be addressed.  He wanted to meet with Jason Fortik, chair of the NPA’s Joint Planning Committee, to clarify his concerns.  That is the committee that prepares the report.  The Board appointed Vice Chairman Hutchison and Ms. Gottschalk as a committee to address Load & Capability Report issues.  Vice Chairman Hutchison and Ms. Gottschalk met with Jason Fortik and Shelley Sahling via Webex on December 8.  At the meeting they discussed resource adequacy reporting, stress testing and how to present different system stress scenarios.  The items that were discussed included section 3 of the Load & Capability Report, including an aggregate calculation based on non-public historical GADS data showing the combined estimated forced outage rate or demand forced outage rate for LES, NPPD and OPPD.  This information is available and SPP will have this data once the performance-based accreditation rules are approved by FERC.  There was discussion about the varied definitions for committed, planned and studied resources.  During the 2023 presentation of the report there was variance in how data was submitted because utilities have different guidelines for what is defined as committed, planned and studied.  Vice Chair Hutchison and Ms. Gottschalk asked that a uniform definition for each term be used by all utilities.  That should clear up the confusion in the data.  There was concern about how the on-site fuel availability was shown in section 6.  It was suggested that the pie chart be changed to a graph.  In 2023 the report included stress periods scenarios for both summer and winter peaks.  One scenario was that all natural gas generation in the State became unavailable during an emergency event.  Vice Chairman Hutchison said this was not a realistic event, and he would like to see more real-world scenarios.  He explained that it would be better to explain to the public and the Legislature that the PRB and the utilities examined potential outages that could happen during extreme events.  Executive Director Texel said at the NPA Board meeting, one concern expressed by the directors was that if an emergency event occurs and this was not a scenario addressed in the report, then the utilities would be criticized for not anticipating the correct scenarios.  The executive director had said that if the PRB selects the scenarios, then that would seem to mute the criticism because the utilities were only doing what the PRB told them to do.  Vice Chairman Hutchison recommended that the PRB annually select several scenarios for the NPA to use.  He agreed that if that were the case the utilities could not be held accountable for the types of scenarios examined, and the criticism would be directed to the PRB instead.


Vice Chairman Hutchison spoke about the Market Monitoring Unit (MMU), which is part of the SPP, but may make separate filings on issues before FERC.  The MMU filed a protest opposing SPP’s filing for its winter accreditation method.  In its disapproval of SPP’s filing, FERC agreed with and in large part adopted a large portion of the MMU’s arguments.


Executive Director Texel spoke about an update to a carry-over bill from last year’s legislative session.  LB 399 would change provisions relating to privately developed renewable energy generation facilities.  There is a proposal to significantly amend the bill.  Senator Brewer, Senator Bostelman, public power utility representatives and the executive director were meeting later that day to review the proposed changes to the draft bill.


Executive Director Texel stated that the next PRB meetings are scheduled for January 19, February 16, and March 15, 2024.


Ms. Gottschalk moved to adjourn the meeting.  Vice Chairman Hutchison seconded the motion.  Voting on the motion:  Chairman Reida – yes, Vice Chairman Hutchison –yes, Ms. Gottschalk – yes, and Mr. Moen – yes.  The motion carried 4 –0 with one vacancy.  The meeting was adjourned at 11:33 a.m.


Timothy J. Texel

Executive Director and General Counsel