Minutes of the October 21, 2022 Meeting



Minutes of the 834th Meeting

October 21, 2022


The 834th 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, Mr. Moen, and Ms. Peck.  Executive Director Texel stated that public notice for the meeting had been published in the Lincoln Journal Star newspaper on October 11, 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.  Anyone wishing to ask a question could also type the 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 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 September 16, 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. Grennan seconded the motion.  Voting on the motion:  Chairman Reida – yes, Vice Chairman Hutchison – yes, Mr. Grennan – yes, Mr. Moen – yes and Ms. Peck – yes.  The motion carried 5-0.


The next agenda item was acceptance of the expense report for the month of September.  In September there was $24,759.90 in personal services, $16,125.35 in operating expenses, and $1,513.56 in travel expenses.  The total September expenses were $42,398.81.  Three months of the fiscal year has gone by, which equals 25 percent of the fiscal year, and the PRB has used 22.42% of its cash fund.  Vice Chairman Hutchison moved to accept the September expense report.  Ms. Peck seconded the motion.  Voting on the motion:  Chairman Reida – yes, Vice Chairman Hutchison – yes, Mr. Grennan – yes, Mr. Moen – yes and Ms. Peck – yes.  The motion carried 5-0.


The next item on the agenda was to consider SAA 252-22-A.  This is a joint application filed by Loup River Public Power District and Cornhusker Public Power District to amend its retail service area boundary around the Village of Lindsay.  The application was filed on September 8, 2022, and was designated as SAA 252-22-A.  The application will transfer the service area rights to a tract of territory annexed by the Village of Lindsay.  The territory is located on the north edge of Lindsay.  In the application there is a map of the current service area boundary marked as Exhibit A, a map showing the annexed area is marked as Exhibit B, and a map showing the proposed service area boundary if the application is approved is marked as Exhibit C.  The annexation occurred in May 2022.  There is a one-year deadline for the village to request the annexation to be added to its service area, so this application is well within the one-year timeframe.  Loup River PPD holds the retail service area rights to Lindsay and its immediate surrounding area.  The PRB’s longstanding precedent is that when a public power district or cooperative holds the service area rights to a municipality it operates as the municipal utility for purposes of service area amendments.  Loup River PPD is therefore allowed to file a service area agreement amendment when a city or village it serves at retail annexes territory.  The application states that there is no compensation involved, as there are no current customers or infrastructure in the annexed area.  Mr. Grennan moved to approve SAA 252-22-A.  Mr. Moen seconded the motion.  Voting on the motion:  Chairman Reida – yes, Vice Chairman Hutchison – yes, Mr. Grennan – yes, Mr. Moen –yes, and Ms. Peck – yes.  The motion carried 5 – 0.


The next item on the agenda was approval of PRB Guidance Document 16.  This proposed guidance document pertains to the PRB’s interpretation of its jurisdiction over mobile generation sources.  Several months ago, the Municipal Energy Agency of Nebraska inquired if PRB approval was needed if the utility would purchase a mobile generator.  The current statute does not specifically address mobile generators.  MEAN ended up not purchasing the mobile generator, but it raised the point that the PRB has not clearly defined whether it has jurisdiction over mobile generation sources.  The Executive Director Texel, PRB chairman Reida and vice-chairman Hutchison discussed the issue and decided that a guidance document would be helpful for both the utilities and the PRB to clearly determine what jurisdiction the PRB has regarding mobile generation units.  It was pointed out at the meeting that guidance documents are only interpretive documents, and do not have the force of law like regulations and rules of practice do.  Guidance documents are binding on an agency, but the agency can amend or rescind the document at any time during any of its public meetings.  Nebraska Revised Statute section 70-1012 sets out the PRB’s primary jurisdiction over generation sources.  The statute was written when large-scale commercial mobile generation was not really envisioned.  The language in the statute states “Before any electric generation facilities … are constructed or acquired by any supplier, an application, filed with the board and containing such information as the board shall prescribe, shall be approved by the board….”


Executive Director Texel told the Board that Shelley Sahling, LES General Counsel, had asked that the Board table action on this item until the November meeting.  The Board also received a letter from John McClure, Nebraska Public Power District’s general counsel, opposing approval of the draft guidance document on mobile generation.  In the letter he shared that he was authorized to state that the Lincoln Electric System, Municipal Energy Agency of Nebraska, and the Omaha Public Power District joined the comments.  The Board’s meeting coincides with LES’s board meeting, so Ms. Sahling was not able to attend the meeting, and Mr. McClure was out of town on business.  The Board discussed some language concerning the guidance document.  There was a discussion of what is mobile and what is not, the size or capacity of a mobile generator, and whether it mattered if the mobile unit were leased for more than one year for purposes of PRB jurisdiction.  Mr. Moen brought up the Osmond generator that was approved previously.  The Osmond generator was going to use some of its capacity as accreditation with the SPP market so there was some financial offsets to support the reasoning for the generator.  He expressed reservation whether mobile generation is or needs to be within the PRB’s approval jurisdiction.  Chris Dibbern, MEAN’s general counsel, provided additional background about MEAN’s analysis whether it would purchase or lease a CAT portable generator in the Scottsbluff area.  The additional generation would have been expensive and in the end Tri-State Generation and Transmission Association, Inc. was able to accommodate MEAN’s capacity needs without the need for mobile generation.  Mr. Grennan thought that mobile generation is more of an operational matter for utilities, so he was not sure the PRB should have jurisdiction over the issue.  The Board members discussed that as the reliance on renewable generation sources increases, the utilities’ have a greater need to “fill in the gaps” when the renewable resources are not producing electricity, and mobile generation might play a role in that.  Vice Chairman Hutchison discussed whether the capacity mattered, and what exactly defines a unit as being “mobile”.  What constitutes a “facility” and what the term “acquired” means are likely key issues to this discussion.  The Board members agreed that a guidance document was needed so that the PRB and industry know what the Board’s position is on this topic.  The Board asked the executive director to work with the industry representatives to see if an agreement could be reached regarding mobile generation.  The Board agreed unanimously to table this item.


The first item on the executive director’s report was an update on Southwest Power Pool activities.  The Board had a copy of JK Energy’s update in its notebook, and had received the update electronically prior to the meeting.  Vice Chairman stated that the Regional State Committee (RSC) has only met in educational sessions since the last meeting.  There are SPP RSC and Board of Directors meetings next week.  Most of the interest right now is around the waiver process for the planning reserve margin increase.  The Cost Allocation Working Group (CAWG) approved a one-year waiver with a one year extension, so basically a two year waiver.  What is being waved is a deficiency payment associated with not being able to meet the required amount of planning reserve margin.  There was also some questions about JK Energy’s monthly update.  Mr. Moen asked about the testing requirement for accreditation for generators.  Mr. Grennan was curious about the retirement of Missouri’s RSC representative.  Vice Chairman Hutchison told the Board he had been asked to chair the RSC Seams Committee, and he had accepted.


Executive Director Texel then gave an update on the PRB-Electric Industry Workshop.  The group decided that it should issue a “whitepaper” or summary of what was discussed and decided during the workshop.  Shelley Sahling created a first draft of the document.  Executive Director Texel and the two PRB members that are part of the workshop group (Vice Chairman Hutchison and Mr. Grennan) had edited the draft whitepaper.  Vice Chairman Hutchison, Mr Grennan, and Executive Director Texel had also worked on a memorandum of understanding that could be presented to the Nebraska Power Association setting out some additional information that the PRB would like addressed in the annual Load and Capability Report.  It was decided to wait to send out the whitepaper/summary until it could be sent with the draft MOU.  Vice Chairman Hutchison, Mr. Grennan, the executive director and Joe Lang (with OPPD) are meeting today after the PRB meeting to try to finalize the MOU.


Executive Director Texel reminded the Board that the next meetings are November 18 and December 16, 2022, and January 27, 2023.  The January meeting is on the fourth Friday to accommodate another agency that needed to use the Board’s hearing room to hold several days of hearings on the third week of January.


It was pointed out that Chairman Reida’s term will expire at the end of this year, and he cannot be reappointed, as this is his second term.  Executive Director Texel did not know if Governor Rickets will appoint a replacement or if he will allow the next Governor to appoint the replacement.  He was also unsure if the Governor has any qualified applicants that have submitted their names.  The new member will need to be an attorney, as Chairman Reida is the board’s designated attorney member.


Mr. Grennan moved to adjourn the meeting.  Vice Chairman Hutchison seconded the motion.  Voting on the motion:  Chairman Reida – yes, Vice Chairman Hutchison –yes, Mr. Grennan – yes, Mr. Moen – yes and Ms. Peck – yes.  The motion carried 5 –0.  The meeting was adjourned at 10:42 a.m.


Timothy J. Texel

Executive Director and General Counsel