NEBRASKA POWER REVIEW BOARD
Minutes of the 853rd Meeting
May 31, 2024
The 853rd 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 Hutchison, Mr. Austin, Mr. Liegl, and Mr. Moen. Vice Chairwoman Gottschalk had informed the Board prior to the meeting that she would not be attendance since she would be traveling out of the country. Executive Director Texel stated that public notice for the meeting had been published in the Lincoln Journal Star newspaper on May 21, 2024. The Board 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 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 April 19, 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. Moen seconded the motion. Voting on the motion: Chairman Hutchison – yes, Vice Chairwoman Gottschalk – absent, 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 April. In April there was $27,547.14 in personal services, $18,447.38 in operating expenses, and $176.88 in travel expenses. The total April expenses were $46,171.88. Executive Director Texel explained that the Board has used 86.12% of the agency’s cash fund, and 83% of the fiscal year has gone by. The Board is roughly 3% over budget. Mr. Moen moved to accept the April expense report. Mr. Austin seconded the motion. Voting on the motion: Voting on the motion: Chairman Hutchison – yes, Vice Chairwoman Gottschalk – absent, 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 an application filed by Y-W Electric Association for approximately .75 mile of 12.47 kilovolt 3-phase distribution line in Dundy County. The application was received on April 24, 2024. Y-W Electric is requesting permission to build the line to serve a feedlot in southwest Dundy County. The application states the line would be 1.05 mile in length, but only the .75 mile that is to be located in Nebraska requires the Board’s approval. The construction is in the service area of the Southwest Public Power District. The Board received a signed Consent and Waiver form from Southwest PPD consenting to the construction and waiving a hearing. Y-W Electric is a cooperative that is headquartered in Akron, Colorado. Y-W Electric does not have a retail service area in Nebraska. Rather, it provides service to individual customers located near the Colorado-Nebraska border. Y-W Electric is one of the electric suppliers that the Board assesses every year. The assessment for them last year was $95. The PRB consulted with the Game and Parks Commission as required by Neb. Rev. Stat. section 37-807(3). The Commission’s review letter stated that the project is within range of the endangered Swift Fox, but there appears to be no habitat suitable for the foxes in the project area. The Commission determined the project would have “no effect” on any threatened or endangered species, and the Commission did not object to approval of the project. Mr. Austin moved to approve PRB-4030. Mr. Liegl seconded the motion. Voting on the motion: Voting on the motion: Chairman Hutchison – yes, Vice Chairwoman Gottschalk – absent, 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 PRB-4031. This item was scheduled for a hearing to begin at 9:30 a.m. The Board tabled the item until after the hearing could be held. Due to possibly extensive discussion on item 5, a discussion of a possible intervention in proceeding before the Federal Energy Regulatory Commission, the Board table item 5 and moved on to agenda item 6, a proposed amendment to NPRB Guidance Document 12.
Guidance Document 12 explains the PRB’s jurisdiction when a non-utility provides electricity to third parties. In this year’s legislative session, LB 1317 was passed. The bill authorizes owners of electric vehicle (EV) charging stations to sell electricity based on kilowatt hour usage. Sections 65 and 66 of LB 1317 change the language in the PRB statutes. The bill was passed on April 23, 2024 with an emergency clause. Since Guidance Document 12 states that non-utilities cannot sell electricity to third parties, and uses EV charging stations as an example, the Guidance Document needs to be amended. The changes in Guidance Document 12 include removing the example of EV chargers as a prohibited sale of electricity. The changes also include a new paragraph that cites the statutory language. Chairman Hutchison asked why the new paragraph with the statutory language was needed. Executive Director Texel explained that he included the statutory language to make it easier for anyone reading the document to understand the new language and not have to look up the statute. Mr. Liegl moved to approve the proposed amendments to Guidance Document 12. Mr. Moen seconded the motion. Voting on the motion: Voting on the motion: Chairman Hutchison – yes, Vice Chairwoman Gottschalk – absent, Mr. Austin – yes, Mr. Liegl – yes, and Mr. Moen – yes. The motion carried 4-0 with one absent.
The Board went into to recess at 9:25 a.m. During this recess the Board held a hearing on PRB-4031 to first address whether it had jurisdiction over the merits of an application filed by the Cheyenne Light, Fuel and Power Company to construct a 230 kilovolt transmission line. The Board returned to its public meeting at 11:39 a.m. All four members present prior to the recess were again present.
The Board reconvened their meeting, they addressed application PRB-4031. The Cheyenne Light, Fuel and Power Company (CLFP) is headquartered in Cheyenne, Wyoming. Due to statutory definitions and the specific facts involved, the Board first took up the issue of whether the Board has jurisdiction over the application. There were no intervenors or protestants opposing the application involved in the proceeding. The Board deliberated after the hearing. During the hearing it was explained that Black Hills Corporation, which is the parent company of CLFP, serves natural gas customer in Nebraska through its subsidiary, doing business as Black Hills Energy. Executive Director Texel, in his capacity as hearing officer, disclosed that he is a natural gas customer of Black Hills Energy, but he owns no stock in Black Hills Corporation. Since Black Hills Energy is a separate company from CLFP, Black Hills Energy does not sell electricity in Nebraska, and he owns no stock in the Black Hills Corporation, Executive Director Texel determined he had no conflict of interest. Mr. Moen brought up that he does own stock in Black Hills Corporation. Mr. Moen therefore recused himself from deliberations. Mr. Liegl made a motion to find that the NPRB does not have jurisdiction over application PRB-4031, as there is no evidence that the applicant supplies, produces or distributes electric energy in the State of Nebraska, and therefore does not fall under the definition of the term “electric supplier” in Neb. Rev. Stat. section 70-1001.01.
The next agenda item was the discussion of whether the PRB will request to intervene in FERC docket EL24-110-000. On May 20, Southwest Power Pool’s general counsel, Paul Suskie, called to give the PRB a courtesy notice that SPP would be filing a Petition for Declaratory Order with FERC on May 21. The docket concerns a dispute between the Omaha Public Power District (OPPD) and the Eolian Company over three proposed battery storage facilities totaling 500 megawatts capacity that Eolian wants to construct inside OPPD’s service area, and have the facilities interconnected to OPPD’s transmission grid. SPP included the PRB on the notice list as a potentially interested party. Executive Director Texel had spoken with Eolian’s legal counsel, David Levy, and OPPD’s director of Energy Regulation, Robin Spady. Eolian requested a generation interconnection agreement (GIA) with OPPD for the three proposed battery storage units. OPPD’s position is that Nebraska law would not allow a private company to build generation units in Nebraska, other than renewables under the privately developed renewable energy generation facility (PDREGF) process. The issue is that under SPP’s Tariff section 39.1, if the governing body of a public power entity determines that an action would cause the public power entity to violate its state’s laws, the public power entity cannot be required to take the action. The public power entity is to notify SPP of the determination. OPPD’s board passed Resolution 6646, in which it made a finding that Nebraska law does not allow private companies to build generation facilities (other than PDREGFs) in Nebraska. Eolian’s requested interconnection of the battery storage units would therefore violate Nebraska law. OPPD then provided notice of the finding to SPP. Eolian believes the interconnection is allowed, and pursuant to other SPP Tariff provisions requested that SPP file an unsigned GIA with FERC.
Executive Director Texel stated that Attorney General’s opinion number 96073 addressed the issue involved, concluding that although Nebraska law seems to assume applications would primarily come from public power entities, nothing in state law prohibits a private entity from constructing an electric generating facility in Nebraska, subject to the PRB’s approval process. The opinion was written by Executive Director Texel when he was an assistant attorney general. However, the PRB has never officially addressed the issue in any adjudicative proceeding, so the PRB has never determined whether private companies can build non-PDREGF generation facilities in Nebraska. Executive Director Texel explained that he spoke with the assistant attorney general assigned to the PRB. He recommended that if the PRB wants to intervene, the Board should vote on a motion requesting the intervention, and then have a separate motion requesting to designate Executive Director Texel to be designated as a special assistant attorney general to represent the PRB in the FERC proceeding.
David Levy, an attorney representing Eolian, spoke to the Board and stated that it was never Eolian’s intent to avoid obtaining approval from the PRB for the proposed battery storage facilities. He stated that he believes the PRB should request to intervene. He stated that the private developers he works with will get their interconnection agreements prior to coming to the PRB. Melissa Miller, Senior Vice President of Development of the central region for Eolian, stated that Eolian has had other projects with OPPD. She stated that she wanted to make it clear that it was never the company’s intention to avoid the State’s approval process. Guidance Document 14 has assisted Eolian regarding how to proceed with development, and she hoped to continue to have a good working relationship with the PRB. Steve Bruckner, legal counsel for OPPD, addressed the Board and stated that OPPD fully supports the idea of the PRB filing to intervention in the proceeding. He also explained the GIA interconnection situation. He stated that 500 megawatts proposed to be interconnected to OPPD’s transmission grid is a big deal. He also stated that OPPD included in its GIA with Eolian for a smaller project that it must comply with state law in order to execute the connection. Mr. Austin made a motion that the Power Review Board find it is necessary for the PRB to intervene in the FERC docket EL24-110-000 in order to defend the interests of both the PRB and the State of Nebraska, and the PRB therefore requests the Attorney General’s office to authorize such intervention. Mr. Moen seconded the motion. Voting on the motion: Voting on the motion: Chairman Hutchison – yes, Vice Chairwoman Gottschalk – absent, Mr. Austin – yes, Mr. Liegl – yes, and Mr. Moen – yes. The motion carried 4-0 with one absent.
Mr. Liegl then made a motion that the Power Review Board request that the Nebraska Attorney General appoint PRB general counsel Tim Texel as a special assistant attorney general for the purpose of representing the interests of the PRB and the State of Nebraska before FERC in docket EL24-110-000, subject to whatever co-counsel or other requirements the attorney general may believe appropriate. Mr. Moen seconded the motion. Voting on the motion: Voting on the motion: Chairman Hutchison – yes, Vice Chairwoman Gottschalk – absent, Mr. Austin – yes, Mr. Liegl – yes, and Mr. Moen – yes. The motion carried 4-0 with one absent.
The Board acknowledged that it needed to have s a committee work with Executive Director Texel to draft the exact language of the intervention. The Board appointed Chairman Hutchison and Mr. Austin to work with Executive Director Texel to draft the language for the intervention and to deal with any further filings in the matter. Mr. Moen made a motion to create a committee of Chairman Hutchison and Mr. Austin to work with the executive director to draft the intervention. Mr. Liegl seconded the motion. Voting on the motion: Voting on the motion: Chairman Hutchison – yes, Vice Chairwoman Gottschalk – absent, Mr. Austin – yes, Mr. Liegl – yes, and Mr. Moen – yes. The motion carried 4-0 with one absent.
The assessment figure item was tabled until the June meeting. The budget office does not have the figure prepared yet. This will be close to the end of the fiscal period, so the Board’s business manager will need to work to get all the letters out July 1 to start getting the next year’s funds in during the month of July.
The next agenda item was the executive director’s report. The first item is the SPP consultant monthly update. The Board had a copy of JK Energy’s monthly update. Chairman Hutchison stated that the last SPP Regional State Committee (RSC) quarterly meeting was held in Colorado. There was a full agenda. The RSC dealt with policy updates and it was the first time there was unanimous approval of the agenda items. Mr. Austin asked about the grids and what is the difference between them. Chairman Hutchison explained the situation of the Eastern, Western and ERCOT grids, and all of operate on different frequencies. Any transfer of electricity between them required and AC-DC intertie. The executive director added that it was once explained to him as similar to trying to put two moving gears together that are not in sync. Chairman Hutchison stated that there is a deficiency loss and added cost to convert from AC to DC. He also discussed the JTIQ, which is addressing the interconnections between MISO and SPP. There was some federal funding and grant money available.
Executive Director Texel talked about the new statutory requirement that any electric supplier commencing construction of or acquiring a generation or transmission facility located within 10 miles of certain military installations provide written notice certifying to the PRB that no materials, electronics, or other components were manufactured by a foreign adversary, or certify that the owner complies with the North American Electric Reliability Corporation’s (NREC) critical infrastructure protection (CIP) requirements. This is also a requirement for owners of privately developed renewable energy generation facilities. The bill had an emergency clause, so it went into effect when the Governor signed it on April 15. A letter was sent to all electric suppliers assessed by the PRB and to attorneys who represent private developers. The language in the new law states “before any electric supplier commences construction of or acquires….” The Nebraska Rural Electric Association (NREA) asked what was included in the term “construction.” Does it only mean new construction, or any type of construction such as maintenance, replacing transformers or conductors, etc.? Executive Director Texel thought that was a good question. After some thought, he believed the term was intended to cover any type of construction or maintenance that included adding new parts or components to generation or transmission facilities. He explained that it might be helpful to clarify this in a new guidance document so electric suppliers know what constitutes “construction.” The executive director asked if the Board agreed. The Board members unanimously agreed that the executive director should draft a new guidance document clarifying what is included in the term construction so the Board could act on it at the June 21 meeting.
The next item on the agenda was the pay raise for the executive director and general counsel. This item was tabled. The State Personnel Division has not released the information for what the rules covered employees will be getting for a raise effective July 1. The Board members agreed to table the item until the June 21 meeting.
Executive Director Texel stated that the next PRB meetings are scheduled for June 21, July 12, and August 16, 2024. He pointed out 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. Moen moved to adjourn the meeting. 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 meeting was adjourned at 12:51 p.m.
Timothy J. Texel
Executive Director and General Counsel
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