Chapter 1: BOARD ROLES AND RESPONSIBILITIES
Chapter 2: HISTORICAL PERSPECTIVE
Chapter 3: THE ELECTRIC INDUSTRY IN NEBRASKA
Chapter 4: HOW THE BOARD OPERATES
Chapter 5: PRB PLANNING AND REPORTS
Chapter 6: PRB POLICIES
The overall mission of the Power Review Board (hereafter referred to as “the Board”) can probably be best summarized by citing the following statutory language:
70-1001. Declaration of policy.
In order to provide the citizens of the state with adequate electric service at as low overall cost as possible, consistent with sound business practices, it is the policy of this state to avoid and eliminate conflict and competition between public power districts, public power and irrigation districts, individual municipalities, registered groups of municipalities, electric membership associations, and cooperatives in furnishing electric energy to retail and wholesale customers, to avoid and eliminate the duplication of facilities and resources which result therefrom, and to facilitate the settlement of rate disputes between suppliers of electricity.
The Board was created in 1963 by Neb. Rev. Stat. section 70-1003. Its primary responsibilities are for the regulation of electrical power suppliers operating in the State of Nebraska and to operate as a quasi-judicial forum to resolve disputes between power suppliers. The Board strives to facilitate negotiated resolutions of conflicts between power suppliers, and in limited circumstances between power suppliers and customers. When a negotiated settlement is not possible, the Board will conduct a hearing. New generation facilities, and all transmission facilities located outside a power supplier’s service area, must be approved by the Board prior to commencement of construction or acquisition. The Board is also the approval authority and official repository for all service area agreements, public power district charters, and applications to construct or acquire generation and transmission facilities.
The Board is entirely cash funded, which means it receives no funds from general tax revenues. The Board’s operating funds are received from assessments levied on power suppliers operating in the State of Nebraska.
Requirements for the Board’s basic composition are set out in the following pertinent statutory language:
70-1003. Nebraska Power Review Board; establishment; composition; appointment; term; vacancy; qualifications; compensation; jurisdiction; officers; executive director; staff; report.
(1) There is hereby established an independent board to be known as the Nebraska Power Review Board to consist of five members, one of whom shall be an engineer, one an attorney, one an accountant, and two lay persons . . . Members of the board shall be appointed by the Governor subject to the approval of the Legislature. . . . No more than three members of the board shall be registered members of that political party represented by the Governor.
Board members serve four-year terms and cannot serve more than two consecutive terms. Unlike many other boards and commissions, the Power Review Board has no geographic requirements or limitations concerning the residency of its board members.
The Board’s full-time staff is currently comprised of three employees – an executive director, a business manager, and a paralegal.
The executive director is the administrative head of the agency and manages the day-to-day operations of the Board, under the general parameters established by the Board. He or she hires and manages the staff, and oversees all facets of the agency’s functions. The executive director acts as hearing officer for evidentiary and contested hearings conducted by the Board. He or she is the primary point of contact when dealing with representatives of Nebraska’s power industry and the public. The executive director serves at the pleasure of the Board and is responsible solely to the Board.
The business manager has primary responsibility over all aspects of the agency’s accounting and financial operations. The business manager is the primary staff member involved in handling all receipts, deposits, payments, purchases, supplies and employee benefits information.
The paralegal assists the executive director in managing the Board’s legal functions. The paralegal’s duties includes initial processing of applications, reviewing applications for compliance with statutory criteria and the Board’s rules of practice, corresponding with
representatives of Nebraska’s power suppliers concerning required filings, drafting orders and certificates of approval, preparing information for the Board prior to public meetings, maintaining and updating various forms and stored information, and assisting in the preparation and distribution of the biennial, net metering and, when necessary, conditions certain reports.
Together, the staff provides the basic support needed for the Board to conduct its regulatory and quasi-judicial functions efficiently and appropriately.
The Board’s offices are located on the fifth floor of the Nebraska State Office Building, 301Centennial Mall South, Lincoln, Nebraska. As the Board members are not full-time and normally only come to the offices for the public meetings and hearings, the Board members do not have their own offices. The Board’s mailing address is:
Nebraska Power Review Board
P.O. Box 94713
Lincoln, NE 68509-4713
Nebraska Power Review Board
301 Centennial Mall South – 5th Floor
Lincoln, NE 68509-4713
The Board conducts its formal work during public meetings, usually held once a month in Lincoln. There is no requirement that the Board hold a meeting each month. On very rare occasions the Board has held two meetings in one month. Meetings are occasionally held in other parts of the state. The date, location and start time for meetings are issues left up to the Board’s discretion, as long as meetings are held within the State of Nebraska. At each meeting, the Board members set the date, time and location for future meetings several months in advance the next one or two meetings. For at least the past ten years, the Board has held its meetings on a Friday, in order to accommodate the schedules of the members. On rare occasions the Board has decided to meet on other days of the week.
Reviewing and ruling on applications normally comprises the majority of the Board’s business. These applications are presented in a standardized format described in the Board Rules of Practice and Procedure. A more detailed description of the application process is found in Chapter 4, “How the Board Regulates.”
In addition to regular business meetings, Board members also frequently attend other meetings, conferences and functions related to the power industry. Examples are Nebraska Power Association conferences and American Public Power Association’s annual convention. Board members are often invited to other functions such as receptions and meetings. A timeline of annual meetings is included in the Appendix.
Revenue for the Board’s normal operating budget comes entirely from direct assessments levied against power suppliers operating in the State of Nebraska. The only exception is that applicants for Certified Renewable Export Facilities submit a filing fee of $5,000 that is used to pay for expenses directly related to review and hearing costs for the application. Although the Legislature must approve the Board’s budget, the Board does not receive any general fund appropriations derived from tax revenue. The business manager compiles the data for the annual assessments based on the projected budget. The proposed assessment figure is then submitted to the Board for approval. The Board’s budget timeline is dictated by the state fiscal year, which runs from July 1 to June 30.
The following are the general steps in the budgeting process:
MID-JULY: Business manager and executive director begin budget process, using instructions from the Nebraska Department of Administrative Services.
AUG. – SEPT.: Proposed budget is reviewed by Board members.
MID-SEPT.: 1) Board formally approves its budget request 2) Budget request is submitted to Governor’s Budget Office.
SEPT. - JAN.: Governor’s office prepares overall State budget; adjustments in Board’s budget are made, if necessary.
JANUARY: Governor submits proposed State budget to Legislature.
JAN. – FEB.: Legislature’s Appropriations Committee conducts budget hearings. The Board’s executive director testifies before the Committee.
MARCH - MAY: Legislature approves overall State Budget.
AFTER APPROVAL: 1) Board approves its assessment figure. 2) Governor approves the Board’s assessment figure. 3) The Board sends assessments to each Nebraska power supplier. In 2010 the assessment figure was 18.324184 cents per $1,000 gross revenue.
Board members vote to approve or deny applications, but sometimes a hearing must be held before the Board can make its final decision. Some hearings are mandatory, while others are left up to the Board’s discretion. In some situations, a hearing may not be mandated by statute or regulation, but the Board has historically made it a practice to conduct a hearing on all such applications.
Examples of when a hearing must be held (or by practice always has been held):
Examples when a hearing may be held:
Once it is determined that a hearing is necessary, the executive director will coordinate with the Board members to determine an appropriate hearing date and location. Hearings are normally held in conjunction with the Board’s monthly public meetings. The Board will convene the public meeting, recess in order to conduct the hearing, deliberate, then reconvene the public meeting and act on the hearing. The Board will sometimes take the matter under advisement, request briefs from the parties, and defer the final decision until its next public meeting.
Although it is an administrative agency, the Board operates in a quasi-judicial capacity when rendering most of its decisions. Appeals of final decisions issued by the Board are filed directly with the Nebraska Court of Appeals. (See Neb. Rev. Stat. section 70-1016).
In addition to creating the Board and providing for its funding, Chapter 70, Article 10 establishes the Board’s primary responsibilities. It does so initially in section 70-1001, which sets forth a policy statement that reflects the Board’s overall purpose.
The Board does not regulate in the same way as many other administrative agencies. The purpose served by many other agencies is to initiate enforcement actions against the regulated persons or entities over which it has authority, issuing cease and desist orders, and in many instances levying fines and/or revoking licenses or certifications. The Board does not normally operate in such a capacity, and currently has no authority to levy fines or penalties. The purpose of the Board is oriented more toward a quasi-judicial function of resolving conflicts between power suppliers or ensuring that certain criteria are met when facilities are constructed or when public power district charters are amended. The Board’s role is often to provide a forum in which conflicts and grievances between power suppliers can be decided. The Board provides a more expedient and cost effective forum than the court system. In very limited circumstances the Board has authority to conduct hearings when ratepayers file complaints against power suppliers. The Board also acts as a repository for certain filings that create permanent documentation of information such as service area boundaries and transmission/distribution line extensions. These records are then available to both power suppliers and the public.
Nebraska is the only state where a regulatory agency does not approve changes to each power supplier’s retail electric rates. Nebraska allows rate decisions to be made by the elected officials with oversight responsibilities for that entity. These include the directors of the public power districts and cooperatives, city councils, village boards, and public corporations formed under the Municipal Cooperative Financing Act (such as the Municipal Energy Agency of Nebraska).
Nebraska law provides the Board with jurisdiction in the following areas involving the electric power industry:
Advisory Opinions on Rates
Although the Board does not approve electric rates or formally regulate them, the Board is authorized to serve in an advisory capacity when there is a dispute between suppliers over rates for service (see Neb. Rev. Stat. section 70-1018). Board records indicate this authority has only been utilized once, within the first few years after the Board’s creation.
In addition to its regulatory responsibilities, the Board also is authorized by statute to undertake studies of the power industry in order to provide a statewide perspective of future power needs for Nebraska. There are three reports involved: 1) the coordinated long-range power supply plan; 2) the annual load and capability report; and 3) the research and conservation report.
The requirements for the coordinated long-range power supply plan are set out in Neb. Rev. Stat. section 70-1025. This plan is intended to be a detailed analysis of both the current status of the industry’s generation and transmission assets and capabilities, and provide a forecast of what the state’s power needs will be and how those needs will be met for the next twenty years. The Board cannot request a new power supply plan more often than biennially.
The requirements for the annual load and capability report is set out in Neb. Rev. Stat. section 70-1025(3). The report shows statewide utility load forecasts and the resources available to meet those loads for the next twenty years.
The requirements for the research and conservation report are set out in Neb. Rev. Stat. section 70-1026. This report examines industry programs related to energy conservation such as renewable energy sources and load management. The Board cannot request a new report more often than biennially.
Under Neb. Rev. Stat. section 70-1024, the Board is to designate a representative organization responsible for preparation of the reports. If the Board believes that no representative organization is willing or capable of preparing the long-range power supply plan, the Board can prepare the plan itself by using consultants, and assess the costs against Nebraska’s power suppliers. The Board has designated the Nebraska Power Association as the representative organization to compile the reports. Board records indicate the option of preparing the reports by the Board itself has never been utilized.
Conditions Certain Report
Another report that the Board is authorized to prepare is a report examining the conditions that indicate whether retail competition in Nebraska’s electric industry would benefit Nebraska’s citizens. This report includes such topics as comparing Nebraska’s wholesale electricity prices to the prices in the region, whether a viable wholesale electricity market exists in the region, and monitoring deregulation activities at the federal level and in other states. The conditions to be monitored and related enabling legislation is found Neb. Rev. Stat. section 70-1003(5) to (8). From 2000 to 2010 this report was required to be prepared annually. In 2010 the statute was amended removing the annual requirement and instead leaving it up to the Board’s discretion when preparation of the report is warranted.
Biennial Report to Governor
Every two years the Board is required to publish a biennial report which is submitted to the Governor with copies sent to the Clerk of the Legislature and the State Energy Office. The report basically provides an overview of the Board’s activities and data on expenditures during the biennial period. The specific requirements for the Board’s biennial report are set out in Neb. Rev. Stat. section 70-1003(4).
In addition to the functions described in the statutes, the Board plays an important role in establishing the overall climate of the state’s electrical industry. Specifically, the Board serves as a forum for industry representatives to work through problematic areas or to examine power issues from a statewide perspective. The Board can also serve as an informal catalyst to encourage industry representatives to solve conflicts in a manner that best serves the ratepayers.
JANUARY - Election of officers for the upcoming calendar year.
FEBRUARY - Send out Accountability and Disclosure Forms to Board members. Legislative Budget Hearing before the Appropriations Committee.
MARCH - Staff sends out form to all electric suppliers to obtain their gross revenue figures.Confirm that Accountability and Disclosure Forms are filed by April 1.
JUNE - Approve assessment figure setting the next fiscal year’s budget.
JULY - Board considers approval and acceptance of the annual load and capability report. Consider calling for a power supply plan, but not more often than biennially.
AUGUST - Prepare annual performance evaluation of the Board’s Executive Director and General Counsel.
SEPTEMBER - Final review and submission of the budget to the Governor’s Budget Office and the Legislative Fiscal Office.