NEBRASKA POWER REVIEW BOARD
Minutes of the 820th Meeting
June 14, 2021
The 820th 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. Mr. Moen was participating via videoconference on Webex. Ms. Loutzenhiser had informed the staff that she had a conflict due to a scheduled family vacation. Executive Director Texel stated that legislative bill 83 had been signed by the Governor. LB 83 amended Nebraska Revised Statute section 84-1411(2), which is part of the Nebraska Open Meetings Act. LB 83 had an emergency clause, so it is already in effect. The new statutory provisions allow public meetings by video conference and other electronic means and sets out requirements for those meetings. The Board has met those requirements. Executive Director Texel stated that public notice for the meeting had been published in the Lincoln Journal Star newspaper on June 4, 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. 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 wanted to speak, they could click on the “raise your hand” icon. At that time they would be unmuted, they could announce who was speaking, provide an address, and disclose if they represent an organization. Then they could offer their comment or 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 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.
The Board first considered the draft minutes from its May 10, 2021, public meeting. The Board did not receive any comments recommending changes to the draft minutes. The staff did not have any changes to suggest, either. The minutes were sent electronically to the Board members. Mr. Grennan moved to approve the minutes. 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 Board next considered an edit to the minutes from its April 12, 2021, public meeting. At that meeting the Midwest Reliability Organization (MRO) had given the Board a presentation about the MRO. Tasha Ward and Bryan Clark gave the presentation. Ms. Ward contacted Executive Director Texel and suggested a couple changes. Prior to the presentation, Ms. Ward’s title had changed. She asked if this could be updated to her new title. Also, the answer to a question about how the MRO is funded was not accurate, and she asked to correct it. Ms. Ward provided the Board with the correct language to describe the MRO’s funding mechanism. Both edits were highlighted in a copy of the minutes provided to the Board. Mr. Grennan moved to approve the correction to the April 12, 2021 minutes as highlighted. 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 agenda item was acceptance of the expense report for the month of May. In May there was $24,536.38 in personal services, $14,729.76 in operating expenses, and $269.60 in travel expenses. The total expenses for May were $39,535.74. Executive Director Texel noted that the Board has used 89.25% of its cash fund (not including the emergency reserve) and 91.6% of the fiscal year has passed. Vice Chairman Hutchison moved to accept the May expense report. 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 item on the agenda was to consider SAA 329-21-A. S.A.A. 329 is the retail service area agreement between the City of Hastings and Southern Public Power District. This is a joint request to amend the service area boundary. The application was filed on May 3, 2021. The application requests to transfer of tract of territory annexed by the Village of Juniata. The territory is southwest of the intersection of Brass Avenue and 8th Street. The annexed area is known as the “JELC addition.” State law allows a municipal utility to add annexed territory to its retail service area. The Board has historically considered the utility serving a municipality at retail to be the “municipal utility” for service area purposes. The territory is currently part of Southern Public Power District’s service area. Southern PPD has agreed to the transfer of the annexed territory. The Board asked if there are any Southern PPD customers or infrastructure in the annexed area. The Board’s staff was not sure, and the application does not address that issue. Mr. Grennan moved to approve SAA 329-21-A between Hastings and Southern Public Power District as described in application SAA 329-21-A. 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 to consider the draft of Guidance Document 14. This guidance document would address issues related to the Board’s interpretation of its jurisdiction and approval procedures for electric energy storage resources (ESR). Executive Director Texel told the Board he had sent the latest draft guidance document to the Nebraska Power Association (NPA), several private attorneys that represent private developers (David Levy, Mike Degan and David Bracht), and attorneys that represent public power utilities for comments. At the May meeting there had been discussion with the Nebraska Rural Electric Association (NREA) concerning several issues, including the definition of ESRs in the draft. Executive Director Texel incorporated some of the NREA’s requested changes into the current draft. Comments had also been received from the Lincoln Electric System, Nebraska Public Power District, and David Levy. Executive Director Texel added those comments as proposed changes in the draft. The proposed changes were in legislative format (new language underlined, and language requested to be removed has overstrikes). The proposed changes were also highlighted, with a different color of highlight showing each person or entity’s recommended changes, including the changes added by the PRB staff. The Board had agreed at the May meeting that suggested language by Mr. Moen be adopted into the document. Mr. Moen believed that an ESR installed with an associated facility but after the commercial operation date of the associated facility was analogous to installation of a fuel storage system, such as a coal pile or a natural gas fuel tanks. As long as the ESR’s capacity does not exceed the associated facility’s capacity, and the PRB receives notice of the addition, he thought the ESR should be considered part of the associated facility and would not require separate PRB approval. The Board does not have jurisdiction over fuel storage systems, so it should not in this instance, either. New language to accomplish Mr. Moen’s change was added to the new draft.
The Board members and Executive Director Texel went through the highlighted comments in the draft document. Mr. Levy, an attorney representing NextEra, stated that many of his recommended changes had been added to the draft, and his client believes the draft is acceptable. Mr. Levy’s changes that were not adopted are more grammatical in nature and are not crucial. Mr. Levy said it was therefore not necessary to further discuss any of his recommended changes. James Dukesherer, NREA Interim Director of Governmental Relations, spoke about his concerns with certain language in the draft. After further discussion with the Board and the executive director, Mr. Dukesherer felt comfortable that the language was acceptable. Jon Dockhorn, General Manager for Burt County Public Power District, expressed concerns about the issue of demand side management. The draft states that ESRs can be either generation, transmission, or multi-use (both generation and transmission). He thought that there should be a fourth category that includes distribution level ESRs. It was Executive Director Texel’s opinion that the Board could not create a new category of facilities over which it would have jurisdiction. If there is a facility that is distribution behind the meter or that is found to be self-generation, the Board could find that it lacks jurisdiction over a facility and dismiss an application. The Board members agreed. Mr. Dockhorn said knowing the Board would be willing to use that approach reduces his concerns about the draft. After further discussion about the language concerning third-party and self-generation, Mr. Dockhorn felt more comfortable with knowing that the Board understands that not every ESR will necessarily fall under the Board’s jurisdiction.
Chairman Reida stated this is a guidance document and that the Board cannot create regulatory language that the statutes do not already give the Board. Vice Chairman Hutchison said the guidance document will give the Board a construct in which to review and evaluate any ESR that could be submitted to the Board. If there is a new category created by FERC or elsewhere, then the Board could amend the guidance document. Executive Director Texel thought it would be very helpful for the Legislature to address some of these issues to provide clear direction. Until that happens the guidance document will give the Board and industry some general guidelines to follow. Vice Chairman Hutchison moved to approve Guidance Document 14, adopting the changes recommended in the draft by the executive director. 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 item on the agenda was the executive director’s report. The first item was the Southwest Power Pool (SPP) update. Mr. Grennan said he had a conference call with the Southwest Power Pool Regional State Committee today and needed to leave at 11:30 a.m. Mr. Grennan discussed the quarterly meeting coming up in July. This will be held in Little Rock, Arkansas.
The executive director then discussed bills enacted during the 2021 Legislative session. He said the main bill to mention at this point is LB 83. This was discussed at the beginning of the meeting. The bill amends the Open Meetings Act to allow public bodies to hold some meetings by conference call or video call (such as Webex or Zoom). Since a public body can only hold one-half of its meetings by videoconference, the Board members stated the number of videoconference meetings needs to be tracked. The Board members said the next few meetings should be held in person so that in December when the weather can be hazardous there is at least one more available videoconference that can be used.
The executive director told the Board about the passage of LB 285. The Secretary of State’s office asked to amend the bill with AM 1133, which made changes to multiple statutes to address election issues caused by the late release of 2020 federal Census figures. Section 18 deals with public power district charter amendments. A copy of section 18 had been given to the Board members. Section 18 amends Neb. Rev. Stat. section 70-663, and affects charter amendments filed with the PRB prior to December 31, 2021. Subsection 2 requires public power districts to submit charter amendments to the PRB on or before December 17, 2021. If the petition to amend the charter is in proper form, the PRB shall give conditional approval on or before December 30, 2021. That means the Board will need to plan to have a meeting during the last week of December to address any charter amendments that are filed yet this year. The Board’s normal approval process will occur concurrently with the new process. If the Board receives a protest or objection to a charter amendment, the Board’s decision must be issued and delivered to the Secretary of State by March 1, 2022.
The executive director next told the Board about LR 136. This was filed on May 11. This will be an interim study hearing to examine and evaluate causes, costs and impacts of the February 2021 power outages. The resolution also calls for investigating the authority of Nebraska’s utilities to join SPP without legislative or other State approval, and review the benefits and disadvantages of Nebraska’s public power districts participating in a regional transmission organization. Mr. Grennan said he would be interested in testifying at the hearing. He would be busy at the end of July due to the quarterly SPP RSC and board of directors meetings , but he would make himself available any other time. He asked the executive director to let the Natural Resources Committee staff know that he is interested in testifying, if the Committee would like the Board’s RSC representative to participate.
Executive Director Texel updated the Board on the request for proposals for the new contract for an SPP consultant. The final language addressing conflicts of interest had been given to JK Energy. It appears all disagreements over language had been worked out. Now the final version will need to be sent to JK Energy for approval. It should not be a problem to finalize the contract prior to the July 1 start date.
The Board members had wanted the executive director to give them a summary of the Federal Energy Regulatory Commission’s technical conference on extreme weather and climate change held June 1 and 2 ( FERC docket AD21-13-000). Due to time constraints, the Board members aske the executive director to instead prepare a one-page memo summarizing what happened at the technical conference.
The Board tabled the discussion of reimbursement for the 2021 Wind and Solar Conference expenses, as an agenda with speakers is not available yet. The Board will take this up again at the July 12 meeting.
The next item on the agenda was to consider a pay raise for the executive director and general counsel. All eligible state employees, both the bargaining unit and the rules covered employees, will receive a 2% pay raise effective July 1, 2021. Agency heads are non-classified employees and their salary is left to the discretion of the Board, within budgetary constraints. The Legislature appropriated to the agency an appropriation to cover a 2% increase for all three PRB employees. Chairman Reida said the executive director’s work has been very good and he thinks the raise is warranted. Vice Chairman Hutchison moved to give the executive director and general counsel a 2% pay increase effective July 1, 2021. 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 executive director announced that the Board’s next public meetings are scheduled for July 12, August 9, and September 13, 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 11:33 p.m.
Timothy J. Texel
Executive Director and General Counsel
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