NEBRASKA POWER REVIEW BOARD
Minutes of the 828th Meeting
February 18, 2022
The 828th 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, and Mr. Moen. Mr. Moen was participating via Web-Ex. Mr. Grennan will be arriving late due to another appointment. Executive Director Texel stated that public notice for the meeting had been published in the Lincoln Journal Star newspaper on February 8, 2022. 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 also includes 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. 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.
Executive Director Texel took a moment to introduce Bridget Peck. Ms. Peck was appointed to fill the Board’s accountant position by the Governor. Her confirmation hearing before the Legislature’s Natural Resources Committee was held on Thursday, February 17, 2022. Her appointment must be confirmed by the full Legislature before she can be seated as a Board member. Ms. Peck lives in Scottsbluff.
The Board first considered the draft minutes from its January 21, 2022, public meeting. The minutes were sent electronically to the Board members. The staff did not have any recommended changes. Vice Chairman Hutchison moved to approve the draft minutes. Mr. Moen seconded the motion. Voting on the motion: Chairman Reida – yes, Vice Chairman Hutchison – yes, Mr. Grennan – absent, and Mr. Moen – yes. The motion carried 3-0 with one absent and one vacancy.
The next agenda item was acceptance of the expense report for the month of January. In January there was $23,284.03 in personal services, $36,416.21 in operating expenses, and $321.33 in travel expenses. The total January expenses were $60,021.57. The operating expense was larger than normal due to the large amount of publication fees for the charter amendment notices. The cash flow worksheet shows the publications account at 655% of its budgeted amount. As the Board receives reimbursements the percentage will change. Approximately 58.4% of the fiscal year has gone by as of the end of January, and 62.2% of the Board’s cash fund has been used. Vice Chairman Hutchison commented that being slightly over the percentage is not a large enough amount to worry about. He believes that the Board’s budget is still looking good. Mr. Moen moved to accept the January 2022 expense report. Vice Chairman Hutchison seconded the motion. Voting on the motion: Chairman Reida – yes, Vice Chairman Hutchison – yes, Mr. Grennan – absent, and Mr. Moen – yes. The motion carried 3-0 with one absent and one vacancy.
The next agenda items deal with approval of petitions to amend public power district charters. The Board thoroughly reviewed the following charter amendments at the Board’s December 27, 2021 public meeting. The charters received conditional approval, but the Board needed to wait on the publication of notice and three-week period to see if any protests or objections would be filed. Executive Director Texel thought it would be cleaner and more legally sound to go through each charter amendment and do a separate motion for each. Since the Board discussed these previously he would keep his comments on each charter amendment brief.
Executive Director Texel stated that for each of the public power district charter amendments the Board would need to make the following findings in order to approve each amendment: 1) That the amendment will not be contrary to the best interests of the District; 2) The amendment will not jeopardize or impair the rights of the creditors of the District or of other persons; 3) the plants, systems and works, the operation of the same, the exercise of powers and the assumption of duties and responsibilities, of or on the part of the District will not nullify, conflict with, or materially affect those of, or on the part of, any other district, and 4) that the amendment provides for substantially equal population in the district’s voting subdivisions, which is set out in Neb. Rev. Stat. section 70-604(6). If a district’s boundaries will follow county or precinct boundaries, then the finding for 4) would be that the interests of the District’s rural users of electricity will not be prejudiced by the amendment, as set out in Neb. Rev. Stat. section 70-612(1)(b).
The Board first considered Dawson Public Power District’s Petition for Charter Amendment 4. The application was filed on December 16, 2021. The purpose of the amendment is to better align the District’s chartered territory with its retail service area, redraw voting subdivision boundaries based on the 2020 Census, and update the names and terms of the directors listed in the charter. The petition is submitted pursuant to section 70-604(6), which is the “substantially equal population” standard. Dawson PPD currently has 3 subdivisions with 11 directors. There are 4 directors in the Buffalo Subdivision, 4 in the Dawson Subdivision, and 3 in the Lincoln subdivision. In the proposed reconfiguration, the total variance would be .45%. The largest subdivision is +.23% over the ideal, while the smallest is -.22 under the ideal. The notice was published in the Lexington Clipper-Herald and the North Platte Telegraph newspapers on December 29, 2021 and January 5 and 12, 2022. The notice states that any protests or objection must be filed by February 4, 2022. At the December meeting, the executive director told the Board the notice would also be published in the Kearney Hub. Due to the geographic scope of the District’s territory, Dawson PPD asked that the notice be placed in the three newspapers. The notice was sent to all three newspapers. However, the Kearney Hub and Lexington Clipper-Herald are both owned by the same parent company. The newspaper mistakenly only published the notice in the Lexington Clipper-Herald, and not in the Kearney Hub. Unfortunately, the Board’s staff was not aware of the error until the affidavits of publication were issued. The notice is still valid because the legal requirement is for the notice to be in at least two newspapers. Vice Chairman Hutchison moved to waive the hearing and approve Dawson Public Power District’s Petition for Charter Amendment 4. Mr. Moen seconded the motion. Voting on the motion: Chairman Reida – yes, Vice Chairman Hutchison – yes, Mr. Grennan – absent, and Mr. Moen – yes. The motion carried 3-0 with one absent and one vacancy.
The next item on the agenda was to consider Nebraska Public Power District’s Petition for Charter Amendment 8. The purpose of the amendment is to better align the District’s chartered territory with its retail service area, redraw voting subdivision boundaries based on the 2020 Census, and update the names and terms of the directors listed in the charter. The petition is submitted pursuant to section 70-604(6), the “substantially equal population” standard. NPPD currently has 11 subdivisions with one director representing each subdivision. In the proposed reconfiguration, the total variance would be .69%. The population in the largest subdivision is +.34% over the ideal, while the subdivision with the smallest population is -.35% below the ideal. The notice was published in the Ainsworth Star-Journal, Columbus Telegram, Kearney Hub, Lincoln Journal-Star, Norfolk Daily News, North Platte Telegraph, Scottsbluff Star-Herald, and the York-News Times newspapers on December 22, 2021, December 29, 2021 and January 5, 2022. Due to NPPD’s large chartered territory, the District asked the Board to publish notice in eight newspapers instead of just two. No protest or objection was filed. Vice Chairman Hutchison moved to waive the hearing and approve Nebraska Public Power District’s Petition for Charter Amendment 8. Mr. Moen seconded the motion. Voting on the motion: Chairman Reida – yes, Vice Chairman Hutchison – yes, Mr. Grennan – absent, and Mr. Moen – yes. The motion carried 3-0 with one absent and one vacancy.
The next item on the agenda was to consider Northeast Nebraska Public Power District’s Petition for Charter Amendment 10. The application was filed on December 17, 2021. The PRB staff identified several issues and an amended petition was filed on December 22, 2021. The purpose of the amendment is to better align the District’s chartered territory with its retail service area, redraw voting subdivision boundaries based on the 2020 Census, and update the names and terms of the directors listed in the charter. The petition is submitted pursuant to section 70-604(6), the “substantially equal population” standard. Northeast Nebraska PPD currently has 8 subdivisions with one director in each subdivision. The amendment would remove section 13, which is the list of directors, and add a new section 17 with language authorizing the District’s legal counsel to make non-substantive grammatical corrections to charter amendments as necessary. In the proposed reconfiguration, the total variance would be 9.8%. The largest subdivision is over the ideal by +5%, while the smallest is below the ideal by -4.8%. Notice was published in the Wayne Herald and the Pierce County-Leader newspapers on December 30, 2021 and January 6 and 13, 2022. No protest or objection was filed. Mr. Moen moved to waive the hearing and approve Northeast Nebraska Public Power District’s Amended Petition for Charter Amendment 10. Vice Chairman Hutchison seconded the motion. Voting on the motion: Chairman Reida – yes, Vice Chairman Hutchison – yes, Mr. Grennan – absent, and Mr. Moen –yes. The motion carried 3– 0 with one absent and one vacancy.
The next item on the agenda was to consider Roosevelt Public Power District’s Petition for Charter Amendment 8. The purpose of the amendment is to better align the chartered territory with the District’s retail service area, redraw the voting subdivision boundaries based on the 2020 Census, and update the names and terms of the directors listed in the charter. An amended petition was filed on December 20, 2021. The amended petition is submitted pursuant to section 70-604(6), the “substantially equal population” standard. Roosevelt PPD has seven voting subdivisions, each with one director. A colored map labeled Exhibit 3 shows with specificity the exact boundary of the District’s subdivisions. The map will actually be part of the charter. In the published legal notices the map was included, as the District incorporated the map as part of its proposed charter. The total variation from the largest to smallest subdivision is 1.32%. The largest subdivision is +.64%, while the smallest subdivision is -.68%. The notice was published in the Scottsbluff Star-Herald and the Gering Courier newspapers on January 5, January 12, and January 19, 2022. No protest or objection was filed. Vice Chairman Hutchison moved to waive the hearing and approve Roosevelt Public Power District’s amended Petition for Charter Amendment 8. Mr. Moen seconded the motion. Voting on the motion: Chairman Reida – yes, Vice Chairman Hutchison – yes, Mr. Grennan – absent, and Mr. Moen – yes. The motion carried 3-0 with one absent and one vacancy.
The next item on the agenda was Polk County PPD’s charter amendment petition. This is scheduled for an evidentiary hearing to start at 9:30 a.m. The Board tabled this agenda item and continued with the executive director’s report.
The first item on the executive director’s report was on update on the Southwest Power Pool activities. Vice Chairman Hutchison is now the PRB’s representative on the SPP Regional State Committee. He stated that SPP cancelled the RSC meeting scheduled for February. The next meeting will be held in person at Dallas, Texas.
The executive director discussed the legislative bills introduced in the 2022 session. He only discussed bills that had seen some activity since the January Board meeting.
LB 804 was introduced by Senator Hughes. This is the Board’s bill for increasing the annual amount of per diem compensation allowed for the PRB’s designated SPP RSC member. The Natural Resources Committee voted to move the bill to General File. However, the vote was 6-2 . Unless it gets a priority designation it probably would not move forward. Senator Hughes told the executive director he thought the Speaker would designate the bill as a Speaker priority bill. If that happens the bill might advance to final reading if there is enough time in the session.
LB 908 was introduced by Senator McDonnell. This bill deals with virtual conferencing under the Open Meetings Act. The bill was requested by Douglas County. Counties are not one of the public entities allowed to use virtual conferencing. The bill was intended to allow counties and other public bodies not currently allowed to use virtual conferencing to use virtual conferencing for the purpose of having briefings, presentations and discussions, but no action could be taken at such virtual meetings. The problem is as it is drafted the language could be read to restrict the entities that can currently use virtual conferencing to only the briefings and presentations, and not allow action to be taken at a virtual conference meeting. At the committee hearing Sen. McDonnell had offered an amendment to correct this problem. It is anticipated the corrected language will make the bill non-controversial.
Mr. Grennan arrived at 9:35 a.m., during the discussion of the legislative bills.
LB 1047 was introduced by Senator Bostelman. This bill adds some requirements of what must be included in the annual load and capability reports filed with the PRB, creates a definition for the terms “reliable and reliability”, and adds the term “and reliable” after the word “adequate” in the policy statement in §70-1001. The most important provisions are on page five of the green copy of the bill. Executive Director Texel testified at the Natural Resources Committee hearing regarding the importance of reliability in the electric industry.
At 9:40 a.m. the Board recessed its public meeting to conduct an evidentiary hearing on the Polk County Rural Public Power District’s Second Amended Petition for Charter Amendment 10. During the hearing the Board operates in its quasi-judicial capacity. The public who are watching the meeting on Webex are welcome to watch the hearing but will not be able to participate in any way. Only the Board members, hearing officer, and applicant’s legal counsel and witnesses can participate in the hearing. The Board received exhibits and heard testimony concerning the Polk County Public Power District’s charter amendment. The Board reconvened its public meeting at 9:57 a.m. All members present prior to the recess were again present.
The next item on the agenda was Polk County Rural Public Power District’s Second Amended Petition for Charter Amendment 10. This item had been tabled earlier. At the Board’s December 27, 2021 meeting the Board determined an evidentiary hearing was needed to gather additional information concerning the population variance between the District’s three subdivisions. The purpose of the petition is to amend charter section 6 to redraw the district’s subdivision boundaries based on the 2020 census and update the list of directors. The Petition was filed pursuant to §70-604(6), which is the “substantially equal population” standard. Polk County RPPD has 3 subdivisions, with two directors for subdivisions 1 and 3 and three directors for subdivision 2. In response to the concerns expressed by the Board, Polk Co. RPPD filed a Second Amended Petition. In this petition the District moved several sections, which addressed the population variance concerns. New notices were published after the Second Amended Petition was filed. The Board published notice of the language in the proposed second amended petition in the Polk County News and the Central City Non-Pareil newspapers on January 13, 20 and 27, 2022. During the hearing the District’s legal counsel explained to the Board that moving these sections put the population variance at less than ten percent. Vice Chairman Hutchison expressed his appreciation to the District for addressing the concerns. Vice Chairman Hutchison moved to approve the Second Amended Petition for Charter Amendment 10 filed by the Polk County Rural Public Power District. Mr. Grennan seconded the motion. Voting on the motion: Chairman Reida – yes, Vice Chairman Hutchison – yes, Mr. Grennan – yes, and Mr. Moen –yes. The motion carried 4– 0 with one vacancy.
The next item on the agenda was consideration of application PRB-3961-G. This is an application filed by the Northeast Nebraska Public Power District to build or install a 1,600 kilowatt diesel generation unit in Pierce County, Nebraska, near the City of Osmond. At the January 21, 2022 meeting the Board held an evidentiary hearing. The Board members requested additional information at that time and the hearing officer left the record open for the additional information. Northeast Nebraska PPD submitted an affidavit that detailed the cost of the three different options that could address the District’s needs. The Board wanted to see the cost of the alternative options so it could make the finding that the diesel generating unit was the most economical and feasible means to supply the electric service needed, in accordance with Neb. Rev. Stat. § 70-1014(1). The executive director explained that in reviewing this application the Board is operating in its quasi-judicial capacity. A formal vote is not required during a public meeting. The application was uncontested and as a courtesy to the applicant, the Board wanted to vote on the matter during its public meeting. Although the Board’s written order will be the final action on the application, the Board’s vote will be binding regarding the approval or denial of the application. By voting on the issue at today’s meeting, the District will be able to proceed with its project without any delay in waiting for the formal written order. Mr. Grennan commented on the affidavit that was received. He stated that it outlined the cost of the different options well and showed that the installation of the diesel generator would be the most beneficial and cost effective alternative. Vice Chairman Hutchison move to approve Northeast Nebraska Public Power District’s application PRB-3961-G. Mr. Grennan seconded the motion. Voting on the motion: Chairman Reida – yes, Vice Chairman Hutchison – yes, Mr. Grennan – yes, and Mr. Moen –yes. The motion carried 4– 0 with one vacancy.
The Board had a discussion on following up with the Shelley Sahling-Zart, LES legal counsel and administrator for the Nebraska Power Association, regarding setting up a workshop with the Board and public and private industry representatives. Executive Director Texel said he will speak with Ms. Sahling during the week to see about scheduling the workshop. He asked if the Board wanted to do this as a public meeting or with only two members. Several of the Board members wanted to be involved with the discussion, so it would be best to do it as a public meeting. Executive Director Texel explained that the plan is to have a meeting in Lincoln and one in Kearney. The purpose would be to discuss the regulatory framework for the electric industry in Nebraska, if any changes were needed, and how to address having the industry members provide confidential information regarding decommissioning to the Board and ensure that the information remains confidential and not a public record. The plan is to hold the meetings in March or April.
Vice Chairman Hutchison wanted to discuss the National Association of Regulatory Utility Commissioners (NARUC) and how the Board could become more active in the organization. There was discussion about the State of Nebraska not having an agency that approves electric utility rates. Because Nebraska has only public power utilities that supply electricity to customers at retail, the rate-making authority is with the elected officials that comprise the governing bodies of the public power utilities. The PRB has regulatory authority over service areas, construction of lines outside of service areas and generation. The full members of NARUC are those state agencies with authority to approve rates. Vice Chairman Hutchison thought that Nebraska likely does not have anyone on NARUC’s electricity committee because Nebraska does not have a State agency that approves rates. It would seem to be a good idea for Nebraska and its public power entities to have that perspective represented at NARUC.
At the January meeting it was asked if OPPD would give a presentation to the Board on OPPD’s proposed Integrated Resource Plan (IRP). Joe Lang, Director of Energy Regulatory Affairs at OPPD, addressed the Board and said OPPD would be willing to give a presentation once the public comment period on the draft IRP has ended. The IRP is available on OPPD’s website. The public can make comments until February 28. After that the IRP will be put into final form. Mr. Lang stated that the May meeting would work best for him. The Board told the staff to schedule the OPPD IRP presentation for the PRB’s May 20, 2022 public meeting.
Executive Director Texel reminded the Board that the next meetings are March 18, April 15, and May 20, 2022. Mr. Moen noted that the PRB’s April meeting is scheduled on Good Friday and asked if that created any issues. The executive director said Good Friday is not a State holiday, but some businesses do close on that day. The Board members did not see any reason to change the schedule date at this time.
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, 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
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