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 previous sections of this manual have provided narratives describing what the Board does and the industry framework within which it operates.
This section deals with how the Board fulfills its duties. This section provides a brief overview of the procedures that are followed by the Board from the filing of an application through the Board’s final decision.
The most common type of application filed with the Board is a request to approve transmission lines and related facilities. It should be noted that the term “transmission,” as it is used in the Board’s statutes, is used generically and includes transmission, sub-transmission and distribution lines. Applications for generation facilities follow the same basic procedures as those for transmission lines, but are far less common.
A power supplier wishing to construct a generation or transmission facility will normally coordinate with other interested utilities in the pertinent geographic area. If the facility is being constructed by more than one entity, the application can be filed by several parties jointly. Joint applications are commonly used for generation facilities where several utilities have joined together to own or operate the project. Transmission projects almost never involve a joint application.
If a new transmission line or related facilities will be located entirely within a power supplier’s retail service area, no Board approval is required and nothing needs to be filed with the Board.
If a proposed transmission line will extend ½ mile or less outside the applicant’s service area and the power suppliers holding the service area rights to the area in which the proposed line would be located consent to the project, no formal Board approval is required. However, the Board still requires that an application be filed with the Board in order to create a record of the project involved and the consent. In these circumstances, the Board’s executive director and general counsel can administratively approve the application. The executive director’s administrative approval consists of a letter confirming that the application was properly completed and that all necessary Consent and Waiver forms have been filed with the Board.
The Board must vote to approve construction of all transmission lines that will extend over ½ mile in length outside an applicant’s service area. If the necessary Consent and Waiver forms are not filed with the Board, a hearing must be held on the application.
Depending on the timing of when the application is submitted, the Board’s staff will place an uncontested application on the agenda for consideration at the Board’s next meeting. The Board’s rules of practice and procedure do not establish a specific deadline in order to be on the next Board’s agenda, but the Board’s standard practice is to require that an application be received ten business days prior to the next meeting in order to be placed on the agenda for that meeting. This is done to allow the staff sufficient time in which to review the application and work with the applicant to correct any problems that may be found in the application or the Consent and Waiver Forms. The Board’s executive director can waive this deadline for good cause.
When the application is received at the Board’s office, the executive director and/or paralegal review it for completeness and then summarize his/her findings on an application checklist.
If the application is for a generation or large transmission facility, a hearing date is set. Such a hearing will normally be held on such applications regardless of whether the necessary Consent and Waiver forms have been submitted. A Notice of Filing and Hearing Date, along with a copy of the application, is sent via certified mail to the applicant and any other parties the Board deems to be potentially interested. Normally interested parties will include the power supplier holding the service area rights to the area in which a generation or transmission facility would be located, and other large generators that could supply the power or transmission capability. In the case of generating facilities, it has been the Board’s practice to provide notice to all power suppliers owning generating facilities within approximately 50 miles of the proposed generation facility. Board Policies 16 and 17 outline what entities the Board deems to be interested and are therefore entitled to notice when an application is filed. The hearing date is normally scheduled to be held on the same day as a Board meeting.
Public notice of the filing and the hearing date is then published in a newspaper with general circulation in the area where the new facility would be located, or that covers a large part of the applicant’s service area, whichever is deemed more appropriate. If a business or member of the public files a Petition in Intervention in order to protest or object to the proposed facility, a hearing before the Board or the Board’s hearing officer will be held to determine whether the proposed intervenor has standing. If standing is granted, the intervenor becomes a party to the proceedings.
In order to be approved, Neb. Rev. Stat. section 70-1014 states that an applicant for a generation or transmission facility (certified renewable export facilities are described separately below) must provide sufficient evidence for the Board to make the following findings:
Certified Renewable Export Facilities
In order to approve an application for a certified renewable export facility (“CREF”), the Board must be able to make the findings set out in Neb. Rev. Stat. section 70-1014.02. The statute allows for a two-step approval process involving a conditional and final approval. An applicant could choose to go directly to the final approval stage, though. Under Neb. Rev. Stat. section 70-1014.02(2)(a), the Board must be able to make the following findings to give conditional approval:
Primary Statutes Involved
70-1012. Electric generation facilities and transmission lines; construction or acquisition; application; approval; when not required.
Before any electric generation facilities or any transmission lines or related facilities carrying more than seven hundred volts 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, except that such approval shall not be required (1) for the construction or acquisition of a transmission line extension or related facilities within a supplier's own service area or for the construction or acquisition of a line not exceeding one-half mile outside its own service area when all owners of electric lines located within one-half mile of the extension consent thereto in writing and such consents are filed with the board, (2) for any generation facility when the board finds that: (a) Such facility is being constructed or acquired to replace a generating plant owned by an individual municipality or registered group of municipalities with a capacity not greater than that of the plant being replaced, (b) such facility will generate less than twenty-five thousand kilowatts of electric energy at rated capacity, and (c) the applicant will not use the plant or transmission capacity to supply wholesale power to customers outside the applicant's existing retail service area or chartered territory, or (3) for acquisition of transmission lines or related facilities, within the state, carrying one hundred fifteen thousand volts or less, if the current owner of the transmission lines or related facilities notifies the board of the lines or facilities involved in the transaction and the parties to the transaction.
70-1013. Electric generation facilities and transmission lines; application; hearing; waiver; appearances; objections; amendments.
Upon application being filed under section 70-1012, the board shall fix a time and place for hearing and shall give ten days' notice by mail to such power suppliers as it deems to be affected by the application. The hearing shall be had within sixty days unless for good cause shown, the applicant requests in writing that such hearing not be scheduled until a later time, but in any event such hearing shall not be more than one hundred twenty days after the filing of the application, and the board shall give its decision within sixty days after the conclusion of the hearing. Any parties interested may appear, file objections, and offer evidence. The board may grant the application without notice or hearing, upon the filing of such waivers as it may require, if in its judgment the finding required by section 70-1014 or subdivision (2) (a) of section 70-1014.02 can be made without a hearing. Such hearing shall be conducted as provided in section 70-1006. The board may allow amendments to the application, in the interests of justice.
70-1014. Power Review Board; electric generation facilities and transmission lines; hearing; approval or denial of application; findings required.
After hearing, the board shall have authority to approve or deny the application. Except as provided in section 70-1014.01 for special generation applications and except as provided in section 70-1014.02, before approval of an application, the board shall find that the application will serve the public convenience and necessity, and that the applicant can most economically and feasibly supply the electric service resulting from the proposed construction or acquisition, without unnecessary duplication of facilities or operations.
70-1014.02 This statute sets out the approval criteria for certified renewable export facilities. It is a very long statute, and so will not be set out in its entirety here.
A service area provides a power supplier with the exclusive rights to provide retail electric service and construct transmission lines within a designated geographic area. That power supplier is then obligated to provide electric service to all customers in that territory, unless it can be shown it is not economically feasible to do so.
As of April 2011, there are 366 active service area agreements between Nebraska’s power suppliers (a total of 417 such agreements have been created, but 51 have been terminated). The original written agreements and accompanying maps are retained at the Board’s offices. Almost all of the agreements were established within the first two or three years following the Board’s creation in 1963.
Problems and conflicts sometimes arise over these service area agreements. To address these issues, Nebraska law requires that the adjoining power suppliers engage in joint planning. Joint planning is a process that normally occurs between municipalities and public power districts. Its purpose is to encourage communication and coordination between parties with adjacent service areas, particularly to make transfers based on annexations proceed more smoothly and with less cost and infrastructure modifications on the part of both suppliers.
When an application to amend a service area agreement is received, the Board’s staff will review the application to make sure that it is complete and complies with all requirements set out in the statutes and in the Board’s rules of practice and procedure.
If the application was filed jointly by both parties to the agreement, then the application will be placed on the agenda for the Board’s next public meeting. If the application was received less than ten business days prior to the next meeting, it may be placed on the agenda for the following meeting. The Board’s staff will send a letter confirming receipt of the application and notifying the parties at which Board meeting the application will be considered. If there are any problems with the application, the Board’s staff will work with the power suppliers to correct them.
If one party filed the application unilaterally, a Notice of Filing is sent via certified mail to the other adjoining power supplier that is a party to the service area agreement. The adjoining power supplier has twenty days in which to file a protest objecting to the approval of the application and stating its reasons for the protest. If any other party affected by the application wishes to participate in the proceeding, they will need to file a Petition in Intervention. The hearing officer will schedule preliminary hearings as necessary to address motions and other preliminary matters.
If the adjoining power supplier files a protest, a hearing is scheduled. Hearings are normally scheduled on the same day as an upcoming public meeting. The Board will send a Notice of Hearing to both the Applicant and the Protestant. After the hearing is concluded and the Board renders its decision, the executive director will draft a Findings of Fact, Conclusions of Law, and Order reflecting the Board’s decision for the Board chairman’s signature. If the chairman did not participate in the decision or was not part of the majority, the vice chairman will sign the order. The Order will be mailed to the parties via certified mail.
Amendments to Retail Service Area Agreement Applications -- Approval Criteria
Joint Applications. If both parties to an agreement filed a joint application, and the Board’s staff has confirmed it is complete, the parties are generally entitled to approval. The Board must be able to find that the transfer of customers or facilities will not impair the rights of bondholders or mortgage holders.
Municipal Annexations. If the application was filed by a municipality requesting that territory annexed by the municipality be incorporated into its service area, the municipality is generally entitled to approval. The following criteria must be met in service area agreement modifications based on an annexation:
Contested Applications (not based on an annexation or filed more than one year after an annexation). If the party from whom customers or facilities would be taken contests the approval of the application, then the Board will hold a hearing. To approve the application, the Board would need to find that:
Primary Statutes Involved
70-1002.01. Suppliers of electricity; agreements; wholesale electric energy; submission to board; considerations; investigation; approval; effect.
All suppliers of electricity, including public power districts, public power and irrigation districts, individual municipalities, registered groups of municipalities, electric membership associations, and cooperatives, shall have authority to enter into written agreements with each other limiting the areas in which or the customers to which a party to the agreement shall provide or sell electric energy at wholesale.
70-1007. Establishment of service areas; board; orders; policy consideration.
After the hearing, the board shall make an order establishing the service areas in the matter covered by the notice...It shall give such consideration as is appropriate in each case to the following:
70-1011. Suppliers; service outside area; application for approval; when granted; applicability of section.
Except by agreement of the suppliers involved, no supplier shall offer electric service to additional ultimate users outside its service area or construct or acquire a new electric line or extend an existing line into the service area of another supplier for the purpose of furnishing service to ultimate users therein without first applying to the board and receiving approval thereof, after due notice and hearing under rules and regulations of the board. Such approval shall be granted only if the board finds that the customer or customers proposed to be served cannot or will not be furnished adequate electric service by the supplier in whose service area the customer is located, or that the provision thereof by such supplier would involve wasteful and unwarranted duplication of facilities. This section shall not apply to agreements referred to in subsection (2) of section 70-1002.
If a hearing before the Board is not contested, it will be an evidentiary hearing. The purpose for these hearings is for the applicant to provide sufficient evidence for the Board to find that the application meets the approval criteria set out in the pertinent statute. In the case of generation and transmission facilities, the criteria are set out in Neb. Rev. Stat. section 70-1014, or in the case of certified renewable export facilities, in section 70-1014.02. If another utility or one or more intervenors file an object to the approval of the application, the hearing is contested. Contested hearings are conducted much like a court proceeding. Specific hearing procedures are set out in the Board’s Rules of Practice and Procedure.
The Board’s executive director and general counsel acts as the hearing officer for all Board hearings. He or she will rule on preliminary matters filed by the parties and on objections raised during the hearing. The Board has directed the hearing officer that it reserves the right to rule on dispositive motions — ones that will effectively end the matter, or end the matter for a particular party. These would include such motions as a Motion to Dismiss and most Petitions in Intervention.
A copy of the application is provided to all Board members so they have an opportunity to review it prior to the hearing.
As previously mentioned, the Board will normally schedule a hearing in conjunction with one of its public meetings. On the day of the hearing, the Board begins its public meeting and continues until the time set for the hearing. The Board then takes a break or recess from its public meeting. The contested or evidentiary hearing will then be convened. The hearing will be held, after which the hearing officer will adjourn the hearing. If the hearing is not concluded that day, the hearing officer will recess the hearing and schedule it to reconvene at a later date, usually on the same date as the Board’s next public meeting.
Following the conclusion of the hearing, the Board will reconvene its public meeting. The Board then will normally consider the agenda item of whether to approve the facility involved, or give its decision on a formal complaint, etc. The Board has the opportunity to discuss the matter, and then may take a roll call vote. On complicated matters, the Board will often request the parties to submit briefs summarizing their arguments and legal authorities.
When acting on a matter following a hearing, the Board is acting in its quasi-judicial capacity. The Board therefore can deliberate in private and issue its decision in much the same manner as a court. The Board’s custom is to place the matter on the agenda and vote on the matter in order to provide the parties with a preliminary answer. This allows the parties to proceed without delay on transmission and generation projects. It should be pointed out that the Board’s written order is actually the Board’s final decision in a proceeding, not the vote during the public meeting.
Following the Board’s vote, the executive director and general counsel will draft an order setting out the Board’s Findings of Fact, Conclusions of Law, and Order. The draft order will be provided to the Board members for their comments and corrections. The Board members that were not in the majority are provided an opportunity to submit a dissenting opinion. After the Board’s decision is finalized, the Board’s chairman will sign the final order (or the vice chairman will sign it if the chairman was not in the majority) and it will be mailed to the parties via certified mail. It is this written order that forms the basis upon which a party can appeal the Board’s decision. Appeals of Power Review Board decisions are filed directly with the Nebraska Court of Appeals. See Neb. Rev. Stat. section 70-1016.
Ex Parte Communications
Once a contested application is filed with the Board, state law does not permit the Board members or the hearing officer to have ex parte communications with any party to the matter or to another party having an interest in the application. An ex parte communication is defined as an oral or written communication not on the record in a contested case when all parties involved in the matter did not receive notice of the meeting or discussion. See Neb. Rev. Stat. sections 84-901(4) and 84-914(6).
Consent and Waiver forms
A Consent and Waiver Form is a document whereby a power supplier that is an interested party or potentially interested party to an application formally notifies the Board that it consents to the Board approving the application, it stipulates the applicant can meet the approval criteria, it waives its right to receive further notices regarding the matter, and that it waives its right to a hearing. Consent and Waiver forms are part of the process for generation and transmission applications. The most common situations are when a power supplier wants to construct a transmission or distribution line that will be located in the service area of another power supplier, or that a utility wants to serve a customer in another utility’s service area because its has a line much closer to the customer. Normally one power supplier cannot “invade” another supplier’s retail service area by building transmission or distribution lines inside that service area, or to serve a customer located in another utility’s service area. But it is common for the supplier holding the service area rights to submit a Consent and Waiver form showing that it does not object to the project.
If the power supplier holding the service area rights to the affected area does not submit a Consent and Waiver form, then the matter is normally considered contested. The Board must then schedule a hearing and provide all potentially interested parties with formal written notice of the application. If the power supplier holding the service area right does not file an objection or protest with the Board after receiving notice, then the Board can conduct an evidentiary hearing where the applicant provides the Board with evidence that it meets the appropriate approval criteria. In the case of generation and transmission projects, the criteria are set out in Neb. Rev. Stat. section 70-1014.
Interveners and parties with a vested interest in a certain application can also cause a hearing to be held.