Minutes of the March 18, 2022 Meeting


Minutes of the 829th Meeting

March 18, 2022

The 829th 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. Moen and Ms. Peck.  Mr. Grennan informed the staff approximately a week ago week that he would be unable to attend due to a medical procedure.  Executive Director Texel was in attendance via Webex.  He stated that the public notice for the meeting had been published in the Lincoln Journal Star newspaper on March 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 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.  They could also state in the “chat” that they would like to speak.  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 February 18, 2022, public meeting.  The minutes were sent electronically to the Board members.  The staff did not have any recommended changes.  Mr. Moen moved to approve the draft minutes.  Vice Chairman Hutchison seconded the motion.  Voting on the motion:  Chairman Reida – yes, Vice Chairman Hutchison – yes, Mr. Grennan – absent, Mr. Moen – yes and Ms. Peck – yes.  The motion carried 4-0 with one absent.


The next agenda item was acceptance of the expense report for the month of February.  In February there was $24,823.43 in personal services, $15,965.22 in operating expenses, and $534.72 in travel expenses.  The total February expenses were $41,323.57.   Approximately 66.7% of the fiscal year has gone by as of the end of February, and 69.74% of the Board’s cash fund has been used.  Mr. Moen moved to accept the February 2022 expense report.  Vice Chairman Hutchison seconded the motion.  Voting on the motion:  Chairman Reida – yes, Vice Chairman Hutchison – yes, Mr. Grennan – absent, Mr. Moen – yes and Ms. Peck – yes.  The motion carried 4-0 with one absent.


The next item on the agenda was to consider the Municipal Energy Agency of Nebraska’s (MEAN) Petition for Charter Amendment 38.  This amendment would remove the town of Fountain, Colorado as a voting member of MEAN.  Executive Director Texel explained that statute section 18-2433 sets out the approval criteria.  The statute states that the Board must determine that the statements in the petition are true and conform to the  public convenience and welfare, and that 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, such agency, do not nullify, conflict with, or materially affect those of any other district or a corporation organized under the provisions of chapter 70, article 6 or 8, or the Electric Cooperative Corporation Act, or those of any part of such district or corporation.  MEAN supplied a certified copy of its Board’s resolution approving the removal of Fountain as a voting member.  A certified copy of Fountain’s ordinance where the city authorized the actions necessary to be removed as a member of MEAN was also provided to the Board.  Public notice was published in the Fountain Valley News of Fountain, Colorado on February 16, and statewide notice in Nebraska was published in the Omaha World Herald on February 17, 2022.  Written Notice was sent to the Nebraska Public Power District, the Western Area Power Association (WAPA) and Tri-State Generation and Transmission Association, Inc.  Written Notice was also sent to the mayor of Fountain, Colorado.  Chris Dibbern, legal counsel for MEAN, spoke on behalf of MEAN and told the Board that Fountain is one of the communities that had been reviewing its options regarding its membership in MEAN.  Fountain has not been using MEAN as a power purchaser and is using different avenues to meet its power needs.  MEAN reviewed its membership and asked Fountain to take the steps to be removed as a member.  Fountain has not participated for at least two years.  Executive Director Texel stated that because there were no protests or objections to the petition, the Board can choose to have a hearing or to waive the hearing.  He recommended the Board waive the hearing, since no party requested a hearing.  Vice Chairman Hutchison moved to waive the hearing and approve MEAN’s Petition for Charter Amendment 38.  Mr. Moen seconded the motion.  Voting on the motion:  Chairman Reida – yes, Vice Chairman Hutchison – yes, Mr. Grennan – absent, Mr. Moen – yes and Ms. Peck – yes.  The motion carried 4-0 with one absent.


During the discussion Chairman Reida asked if in the future when MEAN files charter amendments, it would be helpful if MEAN could set out the approval requirements in the statutes along with the other information in its petition.  Ms. Dibbern stated that she would include additional information in the petition that addresses the statutory requirements.


The first item on the executive director’s report was an update on the Southwest Power Pool activities.  Vice Chairman Hutchison discussed items from the RSC meeting.  Mr. Moen asked about a line in the JK Energy update that discussed facility retirements.   Vice Chairman Hutchison stated that some states have authority over retirements and if SPP felt that the reliability of the transmission grid would be compromised with the retirement then SPP may ask to have the generation remain online until other generation or transmission assets became available that could address the problem.  The power supplier would be compensated for the extension.  SPP does not have authority over retirements of generations, so SPP would only request the generator to keep its facility operating.  With compensation that covered the operating costs, it is expected that a generator would have no issue continuing to operate the facility for a short period.


The executive director discussed the legislative bills introduced in the 2022 session.  He only discussed bills that had seen some activity since the February Board meeting.


LB 804 was introduced by Senator Hughes.  This is the Board’s bill to increase the maximum annual amount of per diem compensation allowed for the PRB’s designated SPP Regional State Committee member.  The Natural Resources Committee voted to move the bill to General File.  However, the vote was 6-2 .  Senator Hughes told the executive director he thought the Speaker would designate the bill as a Speaker priority bill, which he did.  The bill moved to final reading on March 10 without any opposition.  Executive Director Texel is confident that the bill will be passed this session.


LB 1046 was introduced by Senator Bostelman.  This bill changes the provisions relating to selection of the directors and chief executive officer of certain public power districts.  The bill applies only to public power districts which have chartered territory comprising more than half the counties in Nebraska, and public power districts whose retail service area includes a city of metropolitan class.  The Governor would appoint the CEO, who would serve at the pleasure of the Governor, but will be an employee of the district.  This bill did not get a priority designation, so the bill is effectively dead.


LB 1045 was introduced by Senator Bostelman.  This bill changes the eligibility for certain public power district board members.  The bill would allow high level public power district managers to serve as a director on a public power district board other than the one at which the person works.  The Natural Resources Committee merged LBs 1045, 1047 and 1058 into one bill under the LB 1045 heading.  LB 1047 is the bill that 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 utilities and Senator met to come up with new information for the Load and Capability Report and apparently they came to an agreement on that provision.  Executive Director Texel drafted a definition for “reliable or reliability” that, after a few changes, was acceptable to all parties.  AM2263 is the amendment that contains the new  definition.  LB1058 defines the terms of “base load”, “base load capacity” and “base load unit”.  That part of the new LB 1045 that was LB 1058 would require the utility to make large payments if the utility decided to retire or reduce the capacity of a dispatchable base load unit prior to the expiration of its license or the end of its operational or useful life.  The utility would have to pay severance to all full-time employees at the facility at their normal pay for five years.  The utility would also have to pay $50 million to the county in which the unit is located.


The Board briefly discussed the Infrastructure Investment Jobs Act.  Vice Chairman Hutchison read that the bill provides $5 billion of the federal infrastructure bill for distribution to states to install electric vehicle charging stations along interstate corridors.  Vice chairman Hutchison discussed how Tesla can track vehicles and tell a driver where the next charging stop would be located.  Executive Director Texel stated that he met via Webex with the employees at the Nebraska Department of Transportation (NDOT) and the Nebraska Department of Environment and Energy (NDEE) responsible for preparing Nebraska’s request for the funds.  He provided them a copy of the Board’s guidance document prohibiting non-utilities from charging for electricity based on usage.  NDOT is the agency that will actually submit the funding request and receive any funds.  Executive Director Texel will receive updates on any future announcements related to the electric vehicle charging stations.


The Board next had a follow-up discussion about the workshop with Nebraska’s electric industry to evaluate the regulatory structure for electric power suppliers in Nebraska and determine if any changes or updates might be warranted.  Executive Director Texel had spoken with Shelley Sahling-Zart, LES legal counsel and administrator for the Nebraska Power Association, regarding how the workshop might be structured.  Executive Director Texel had prepared an outline of the logistics for the workshop, which he had provided to Ms. Sahling-Zart.  It covered possible meeting dates and locations, what parties should be represented at the workshop, general topics to be covered, and related issues.  He then discussed the plan with the NPA Board of Directors at its meeting held March 16.  Both Ms. Sahling-Zart and the NPA Board agreed with the points in the outline document.  The PRB members discussed the dates to possibly have the meeting.  It was suggested to have the meeting after the Legislature adourned its 2022 session.  The Board members decided to try to arrange the workshop May 27.  Executive Director Texel told the Board it was discussed whether to hold the workshop at LES’s headquarters in Lincoln, or to hold it in a conference room in the Nebraska State Office Building (NSOB).  It was decided that if a room is available the staff should try to set the meeting up in the NSOB.  That may be more of a neutral site.  It had been discussed whether a moderator is needed.  The Board and Executive Director Texel thought that the executive director and Ms. Sahling-Zart could serve as co-moderators.  That would save some cost, and they could do as good a job as anyone else.  Ms. Sahling-Zart addressed the Board via Webex.  She stated that it would be beneficial if all those that attended the meeting with a “clean slate.”  The purpose of the workshop is to look at and understand the role the PRB plays in generation and transmission, and the regulatory structure of the electric industry in Nebraska.  Executive Director Texel and Ms. Sahling-Zart both agreed that it would not be helpful for anyone to come to the workshop with any specific new language.  The purposed is a high-level discussion of how the regulatory structure should work.  Discussing specific language would bog things down quickly about the language itself.  Ms. Sahling-Zart said the workshop should basically be as if the PRB were being created and what should the role be.  There was discussion about Mr. Grennan’s participation, since his term as a Board member has ended and once the Governor appoints a new Board member Mr. Grennan would no longer be on the board.  The Board members believed it would be very important to have Mr. Grennan’s perspective at the workshop.  Executive Director Texel said the NPA Board had agreed it would be beneficial to have Mr. Grennan at the workshop, and the NPA could cover his mileage to attend the workshop.  The PRB would not be able to reimburse Mr. Grennan for mileage, as he would most likely no longer be a PRB member at the time of the workshop.  In the proposed membership list, Executive Director Texel included two lawyers who represent numerous private developers that operate in Nebraska.  The Board agreed they wanted the private developers’ representatives to provide their input at the workshop.  However, all parties agreed that at this time the plan is to only invite entities that participate directly in Nebraska’s electric industry, and are subject in some way to the PRB’s regulatory jurisdiction.  Ms. Sahling-Zart noted the executive director had suggested having a representative from a mid-to-large municipality with a generation facility at the workshop.  She suggested Tim Luchsinger be the representative.  Grand Island has generation facilities, Mr. Luchsinger has been tracking this process, and he has a great deal of experience in the industry.  Executive Director Texel will try to reserve a conference room in the NSOB for May 27, and get together again with Ms. Sahling-Zart to finish the details and finalize the list of attendees.


Executive Director Texel reminded the Board that the next meetings are April 15, May 20, and June 17, 2022. 


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 – absent, Mr. Moen – yes and Ms. Peck –yes.  The motion carried 4-0 with one absent.  The meeting was adjourned at 10:56 a.m.


Timothy J. Texel

Executive Director and General Counsel