State Codes and Statutes

Statutes > Nebraska > Chapter70 > 70-1014_02

70-1014.02. Certified renewable export facilities;approval of application; board; powers and duties; conditional approval; finalapproval; failure to commence construction; effect; application fee; eminentdomain; revocation of certification; procedure; recertification.(1)For purposes of this section, electric supplier means a public power district,a public power and irrigation district, an individual municipality, a registeredgroup of municipalities, an electric membership association, or a cooperative.(2)(a) Theboard shall conditionally approve an application for a certified renewableexport facility if it finds that only the criteria described in subdivisions(a)(i) through (iv) of this subsection are met: (i) The facility will providereasonably identifiable and quantifiable public benefits, including economicdevelopment, to the residents of Nebraska or the local area where the facilitywill be located; (ii) the facility meets the requirements of subdivisions(2)(a) and (b) of section 70-1001.01; (iii) the facility has a memorandumof understanding or other written evidence of mutual intent to negotiate apower purchase agreement or agreements with a purchaser or purchasers outsidethe State of Nebraska for at least ninety percent of the output of the facilityfor ten years or more; and (iv) the applicant offers electric suppliers servingloads greater than fifty megawatts at the time the initial application isfiled an option to purchase in the aggregate an amount of power up to tenpercent of the output of any facility with greater than eighty megawatts ofnameplate capacity contingent upon the applicant and electric suppliers negotiatingin good faith a power purchase agreement and any other necessary agreements.Such electric suppliers shall be entitled to a minimum of their pro rata sharebased on the load ratio share of Nebraska electric load served among thoseelectric suppliers eligible under this subdivision (iv). If an electric supplierdeclines to contract for some or all of its pro rata share, the remainingeligible electric suppliers may share the balance on a pro rata basis. Theten percent may be above the total generation amount proposed in the applicationfor a certified renewable export facility and shall require no separate approvalby the board. Any transmission studies, additions, or upgrades due to participationby electric suppliers serving loads greater than fifty megawatts shall bethe responsibility of the participating electric supplier. Upon receivingthe initial application under this section, the board shall notify electricsuppliers identified in this subdivision (iv) of a pending application witha nameplate capacity greater than eighty megawatts. Such suppliers shall haveforty-five days following the date of the board's notice to notify the applicantof an interest in exercising the option to purchase power, except that suchsuppliers may withdraw their option to purchase power once the costs of thetransmission additions and upgrades are determined. Electric suppliers withdrawingtheir option to purchase power are responsible for their pro rata share ofany costs resulting from their participation in and withdrawal from the generationinterconnection and transmission delivery studies.(b) Following the board'sconditional approval of an application under subdivision (a) of this subsection,the applicant shall notify the board within eighteen months that it is preparedto proceed to consideration of the criteria in subdivision (c) of this subsection.The board may extend such eighteen-month deadline not more than twelve additionalmonths for good cause shown. If the applicant fails to notify the board withinsuch time that it is so prepared, the conditional approval granted under thissubdivision is void.(c) Upon finding that the criteria described in subdivisions (c)(i)through (viii) of this subsection have also been met by the applicant andafter the board has fulfilled the requirements of subsection (3) of section 37-807, the board shall grant final approval of an application for a certifiedrenewable export facility:(i) The facility will not have a materiallydetrimental effect on the retail electric rates paid by any Nebraska ratepayers,except that, notwithstanding subdivisions (c)(v) and (vi) of this subsection,the determination of a materially detrimental effect on rates shall not includeregional transmission improvements dictated by a regional transmission operatoror transmission improvements required due to participation by an eligibleentity pursuant to subdivision (2)(a)(iv) of this section;(ii) The applicanthas obtained the necessary generation interconnection and transmission serviceapprovals from and has executed agreements for such generation interconnectionand transmission service with the appropriate regional transmission organization,transmission owner, or transmission provider;(iii) There has been no demonstrationthat the proposed facility will result in a substantial risk of creating strandedassets;(iv) The applicant has certified that it has applied for and isactively pursuing the required approvals from any other federal, state, orlocal entities with jurisdiction or permitting authority over the certifiedrenewable export facility;(v) The applicant and the electric supplierowning the transmission facilities to which the certified renewable exportfacility will be interconnected, along with any electric supplier which ownstransmission facilities of one hundred fifteen thousand volts or more andis required to receive notice pursuant to section 70-1013, have entered intoa joint transmission development agreement on reasonable terms and conditionsconsistent with and subject to the notice to construct or other directivesof any regional transmission organization with jurisdiction over the additionor upgrade to transmission facilities or, for any electric supplier that isnot a member of a regional transmission organization with which the facilitywill interconnect, covers the addition or upgrade to transmission facilitiesrequired as a result of the certified renewable export facility. Such jointtransmission development agreement shall include provisions addressing construction,ownership, operation, and maintenance of such additions or upgrades to transmissionfacilities. The electric supplier or suppliers shall have the right to purchaseand own transmission facilities as set forth in the joint transmission developmentagreement;(vi) The applicant agrees to reimburse any costs that are not coveredby a regional transmission organization tariff or that are allocated throughthe tariff to the electric suppliers as a result of the certified renewableexport facility or not covered by the tariff of a transmission owner or transmissionprovider that is not a member of a regional transmission organization, costsincurred by any electric supplier as a result of adding the certified renewableexport facility, including, but not limited to, renewable integration costs,and costs which allow the interconnected electric supplier to operate andmaintain the transmission facilities under reasonable terms and conditionsagreed to by the parties within the joint transmission development agreement;(vii)The applicant shall submit a decommissioning plan. The applicant or ownerof the facility shall establish decommissioning security by posting an instrument,a copy of which is given to the board, no later than the tenth year followingfinal approval of the facility to ensure sufficient funding is available forremoval of the facility and reclamation at the end of the useful life of suchfacility pursuant to the decommissioning plan. The owner of the certifiedrenewable export facility shall be solely responsible for decommissioning.If the applicant or any subsequent owner of the facility intends to transferownership of the facility, the proposed new owner shall provide the boardwith adequate evidence demonstrating that substitute decommissioning securityhas been posted or given prior to transfer of ownership. The requirementsof this subdivision (vii) shall be waived if a local governmental entity withauthority to create requirements for decommissioning has enacted decommissioningrequirements for the applicable jurisdiction; and(viii) The facility meetsthe requirements of subdivisions (2)(a) through (c) of section 70-1001.01.(3)If the applicant does not commence construction of the certified renewableexport facility within eighteen months after receiving final approval fromthe board under subsection (2) of this section, the approval is void. Uponwritten request filed by the applicant, the board may, for good cause shown,extend the time period during which an approval will remain valid. Good causeincludes, but is not limited to, national or regional economic conditions,lack of transmission infrastructure, or an applicant's inability to obtainauthorization from other required governmental regulatory authorities despitethe applicant's exercise of a good-faith effort to obtain such approvals.(4)The applicant shall remit an application fee of five thousand dollars withthe application. The fee shall be remitted to the State Treasurer for creditto the Nebraska Power Review Fund. The board shall use the application feeto defray the board's reasonable expenses associated with reviewing and actingupon the application, including the costs of the hearing. If the board incursexpenses of more than five thousand dollars associated with the application,the board shall provide written notification to the applicant of the additionalsum needed or already expended, after which the applicant shall promptly submitan additional sum sufficient to cover the board's anticipated or incurredexpenses or shall file an objection with the board. If, after completion ofthe application process and any subsequent legal action, including appealof the board's decision, the board's expenses associated with processing andacting upon the application do not equal the amount submitted by the applicant,the board shall return the unused funds to the applicant if the amount isfifty dollars or more. The applicant shall reimburse the board for any reasonableexpenses the board incurs as a result of an appeal of the board's decisionor shall file an objection with the board. The board shall rule on any objectionbrought pursuant to this subsection within thirty days. The applicant mayrequest a hearing on its objection, in which case the board shall hold suchhearing within thirty days after the request and shall rule within forty-fivedays after the hearing.(5) No facility or part of a facility whichis a certified renewable export facility is subject to eminent domain by anelectric supplier or by any other entity if the purpose of the eminent domainproceeding is to acquire the facility for electric generation or transmission.(6)Except as provided in subsection (5) of this section, only an electric suppliermay exercise its eminent domain authority to acquire the land rights necessaryfor the construction of transmission lines and related facilities to providetransmission services for a certified renewable export facility. The exerciseof eminent domain to provide needed transmission lines and related facilitiesfor a certified renewable export facility is a public use. Nothing in thissection shall be construed to grant the power of eminent domain to a privateentity.(7) If any transmission facilities serving a certified renewableexport facility are proposed to cross the service area of any electric supplierwhich owns transmission facilities of one hundred fifteen thousand volts ormore and is required to receive notice pursuant to section 70-1013, then suchelectric supplier may elect to be a party to a joint transmission developmentagreement for such transmission facilities.(8) If a certified renewable export facilityno longer meets the requirements of subdivisions (2)(a) through (c) of section 70-1001.01, the owner of the facility shall notify the board. An electricsupplier or a governmental entity with regulatory jurisdiction over the certifiedrenewable export facility may apply to the board or the board may file itsown motion to have the certification of a certified renewable export facilityrevoked upon a showing by the applicant for decertification that the facilityno longer meets the requirements of such subdivisions. Upon the filing ofsuch application and making of a prima facie showing by the applicant fordecertification that the facility no longer meets the requirements of suchsubdivisions, the board shall set the matter for hearing. The hearing shallbe held within forty-five days unless an extension is necessary for good causeshown. The applicant for decertification shall have the burden of proof. Withinforty-five days after the conclusion of the hearing, the board shall enteran order to either reaffirm the facility's status as a certified renewableexport facility or to revoke the certification. During the pendency of theapplication for decertification and before the board's final order on decertification,the facility may continue to operate if the electricity generated at the facilityis sold to customers outside the State of Nebraska, or to an electric supplierpursuant to a power purchase agreement or similar agreement. The board shallretain jurisdiction over the decertification action for at least thirty daysafter entry of such an order. Within thirty days after a final order revokingcertification, the owner of the facility may apply for recertification, withthe time period for recertification being no longer than one year unless theboard extends the time period for good cause shown. Such application for recertificationshall extend the board's jurisdiction over the decertification action untilthe board completes its review of the application for recertification andenters an order granting or denying the application. If the applicant forrecertification demonstrates to the board that it is working diligently andin good faith to restore its compliance with subdivisions (2)(a) through (c)of section 70-1001.01, the board shall not terminate the application for recertification.During the pendency of the application for recertification and before theboard's final order on recertification, the facility may continue to operateif the electricity generated at the facility is sold to customers outsidethe state, or to an electric supplier pursuant to a power purchase agreementor similar agreement. If the board retains jurisdiction over the decertificationaction, the prohibition on eminent domain set forth in subsection (5) of thissection shall remain in full force and effect. If the board enters an orderdecertifying a certified renewable export facility and such order becomesfinal due to a failure to timely seek recertification or judicial review,the prohibition on eminent domain set forth in subsection (5) of this sectionshall no longer apply. Nothing in this section shall prohibit a decertifiedfacility from being recertified in the same manner as a new facility. SourceLaws 2010, LB1048, § 6.Effective Date: July 15, 2010

State Codes and Statutes

Statutes > Nebraska > Chapter70 > 70-1014_02

70-1014.02. Certified renewable export facilities;approval of application; board; powers and duties; conditional approval; finalapproval; failure to commence construction; effect; application fee; eminentdomain; revocation of certification; procedure; recertification.(1)For purposes of this section, electric supplier means a public power district,a public power and irrigation district, an individual municipality, a registeredgroup of municipalities, an electric membership association, or a cooperative.(2)(a) Theboard shall conditionally approve an application for a certified renewableexport facility if it finds that only the criteria described in subdivisions(a)(i) through (iv) of this subsection are met: (i) The facility will providereasonably identifiable and quantifiable public benefits, including economicdevelopment, to the residents of Nebraska or the local area where the facilitywill be located; (ii) the facility meets the requirements of subdivisions(2)(a) and (b) of section 70-1001.01; (iii) the facility has a memorandumof understanding or other written evidence of mutual intent to negotiate apower purchase agreement or agreements with a purchaser or purchasers outsidethe State of Nebraska for at least ninety percent of the output of the facilityfor ten years or more; and (iv) the applicant offers electric suppliers servingloads greater than fifty megawatts at the time the initial application isfiled an option to purchase in the aggregate an amount of power up to tenpercent of the output of any facility with greater than eighty megawatts ofnameplate capacity contingent upon the applicant and electric suppliers negotiatingin good faith a power purchase agreement and any other necessary agreements.Such electric suppliers shall be entitled to a minimum of their pro rata sharebased on the load ratio share of Nebraska electric load served among thoseelectric suppliers eligible under this subdivision (iv). If an electric supplierdeclines to contract for some or all of its pro rata share, the remainingeligible electric suppliers may share the balance on a pro rata basis. Theten percent may be above the total generation amount proposed in the applicationfor a certified renewable export facility and shall require no separate approvalby the board. Any transmission studies, additions, or upgrades due to participationby electric suppliers serving loads greater than fifty megawatts shall bethe responsibility of the participating electric supplier. Upon receivingthe initial application under this section, the board shall notify electricsuppliers identified in this subdivision (iv) of a pending application witha nameplate capacity greater than eighty megawatts. Such suppliers shall haveforty-five days following the date of the board's notice to notify the applicantof an interest in exercising the option to purchase power, except that suchsuppliers may withdraw their option to purchase power once the costs of thetransmission additions and upgrades are determined. Electric suppliers withdrawingtheir option to purchase power are responsible for their pro rata share ofany costs resulting from their participation in and withdrawal from the generationinterconnection and transmission delivery studies.(b) Following the board'sconditional approval of an application under subdivision (a) of this subsection,the applicant shall notify the board within eighteen months that it is preparedto proceed to consideration of the criteria in subdivision (c) of this subsection.The board may extend such eighteen-month deadline not more than twelve additionalmonths for good cause shown. If the applicant fails to notify the board withinsuch time that it is so prepared, the conditional approval granted under thissubdivision is void.(c) Upon finding that the criteria described in subdivisions (c)(i)through (viii) of this subsection have also been met by the applicant andafter the board has fulfilled the requirements of subsection (3) of section 37-807, the board shall grant final approval of an application for a certifiedrenewable export facility:(i) The facility will not have a materiallydetrimental effect on the retail electric rates paid by any Nebraska ratepayers,except that, notwithstanding subdivisions (c)(v) and (vi) of this subsection,the determination of a materially detrimental effect on rates shall not includeregional transmission improvements dictated by a regional transmission operatoror transmission improvements required due to participation by an eligibleentity pursuant to subdivision (2)(a)(iv) of this section;(ii) The applicanthas obtained the necessary generation interconnection and transmission serviceapprovals from and has executed agreements for such generation interconnectionand transmission service with the appropriate regional transmission organization,transmission owner, or transmission provider;(iii) There has been no demonstrationthat the proposed facility will result in a substantial risk of creating strandedassets;(iv) The applicant has certified that it has applied for and isactively pursuing the required approvals from any other federal, state, orlocal entities with jurisdiction or permitting authority over the certifiedrenewable export facility;(v) The applicant and the electric supplierowning the transmission facilities to which the certified renewable exportfacility will be interconnected, along with any electric supplier which ownstransmission facilities of one hundred fifteen thousand volts or more andis required to receive notice pursuant to section 70-1013, have entered intoa joint transmission development agreement on reasonable terms and conditionsconsistent with and subject to the notice to construct or other directivesof any regional transmission organization with jurisdiction over the additionor upgrade to transmission facilities or, for any electric supplier that isnot a member of a regional transmission organization with which the facilitywill interconnect, covers the addition or upgrade to transmission facilitiesrequired as a result of the certified renewable export facility. Such jointtransmission development agreement shall include provisions addressing construction,ownership, operation, and maintenance of such additions or upgrades to transmissionfacilities. The electric supplier or suppliers shall have the right to purchaseand own transmission facilities as set forth in the joint transmission developmentagreement;(vi) The applicant agrees to reimburse any costs that are not coveredby a regional transmission organization tariff or that are allocated throughthe tariff to the electric suppliers as a result of the certified renewableexport facility or not covered by the tariff of a transmission owner or transmissionprovider that is not a member of a regional transmission organization, costsincurred by any electric supplier as a result of adding the certified renewableexport facility, including, but not limited to, renewable integration costs,and costs which allow the interconnected electric supplier to operate andmaintain the transmission facilities under reasonable terms and conditionsagreed to by the parties within the joint transmission development agreement;(vii)The applicant shall submit a decommissioning plan. The applicant or ownerof the facility shall establish decommissioning security by posting an instrument,a copy of which is given to the board, no later than the tenth year followingfinal approval of the facility to ensure sufficient funding is available forremoval of the facility and reclamation at the end of the useful life of suchfacility pursuant to the decommissioning plan. The owner of the certifiedrenewable export facility shall be solely responsible for decommissioning.If the applicant or any subsequent owner of the facility intends to transferownership of the facility, the proposed new owner shall provide the boardwith adequate evidence demonstrating that substitute decommissioning securityhas been posted or given prior to transfer of ownership. The requirementsof this subdivision (vii) shall be waived if a local governmental entity withauthority to create requirements for decommissioning has enacted decommissioningrequirements for the applicable jurisdiction; and(viii) The facility meetsthe requirements of subdivisions (2)(a) through (c) of section 70-1001.01.(3)If the applicant does not commence construction of the certified renewableexport facility within eighteen months after receiving final approval fromthe board under subsection (2) of this section, the approval is void. Uponwritten request filed by the applicant, the board may, for good cause shown,extend the time period during which an approval will remain valid. Good causeincludes, but is not limited to, national or regional economic conditions,lack of transmission infrastructure, or an applicant's inability to obtainauthorization from other required governmental regulatory authorities despitethe applicant's exercise of a good-faith effort to obtain such approvals.(4)The applicant shall remit an application fee of five thousand dollars withthe application. The fee shall be remitted to the State Treasurer for creditto the Nebraska Power Review Fund. The board shall use the application feeto defray the board's reasonable expenses associated with reviewing and actingupon the application, including the costs of the hearing. If the board incursexpenses of more than five thousand dollars associated with the application,the board shall provide written notification to the applicant of the additionalsum needed or already expended, after which the applicant shall promptly submitan additional sum sufficient to cover the board's anticipated or incurredexpenses or shall file an objection with the board. If, after completion ofthe application process and any subsequent legal action, including appealof the board's decision, the board's expenses associated with processing andacting upon the application do not equal the amount submitted by the applicant,the board shall return the unused funds to the applicant if the amount isfifty dollars or more. The applicant shall reimburse the board for any reasonableexpenses the board incurs as a result of an appeal of the board's decisionor shall file an objection with the board. The board shall rule on any objectionbrought pursuant to this subsection within thirty days. The applicant mayrequest a hearing on its objection, in which case the board shall hold suchhearing within thirty days after the request and shall rule within forty-fivedays after the hearing.(5) No facility or part of a facility whichis a certified renewable export facility is subject to eminent domain by anelectric supplier or by any other entity if the purpose of the eminent domainproceeding is to acquire the facility for electric generation or transmission.(6)Except as provided in subsection (5) of this section, only an electric suppliermay exercise its eminent domain authority to acquire the land rights necessaryfor the construction of transmission lines and related facilities to providetransmission services for a certified renewable export facility. The exerciseof eminent domain to provide needed transmission lines and related facilitiesfor a certified renewable export facility is a public use. Nothing in thissection shall be construed to grant the power of eminent domain to a privateentity.(7) If any transmission facilities serving a certified renewableexport facility are proposed to cross the service area of any electric supplierwhich owns transmission facilities of one hundred fifteen thousand volts ormore and is required to receive notice pursuant to section 70-1013, then suchelectric supplier may elect to be a party to a joint transmission developmentagreement for such transmission facilities.(8) If a certified renewable export facilityno longer meets the requirements of subdivisions (2)(a) through (c) of section 70-1001.01, the owner of the facility shall notify the board. An electricsupplier or a governmental entity with regulatory jurisdiction over the certifiedrenewable export facility may apply to the board or the board may file itsown motion to have the certification of a certified renewable export facilityrevoked upon a showing by the applicant for decertification that the facilityno longer meets the requirements of such subdivisions. Upon the filing ofsuch application and making of a prima facie showing by the applicant fordecertification that the facility no longer meets the requirements of suchsubdivisions, the board shall set the matter for hearing. The hearing shallbe held within forty-five days unless an extension is necessary for good causeshown. The applicant for decertification shall have the burden of proof. Withinforty-five days after the conclusion of the hearing, the board shall enteran order to either reaffirm the facility's status as a certified renewableexport facility or to revoke the certification. During the pendency of theapplication for decertification and before the board's final order on decertification,the facility may continue to operate if the electricity generated at the facilityis sold to customers outside the State of Nebraska, or to an electric supplierpursuant to a power purchase agreement or similar agreement. The board shallretain jurisdiction over the decertification action for at least thirty daysafter entry of such an order. Within thirty days after a final order revokingcertification, the owner of the facility may apply for recertification, withthe time period for recertification being no longer than one year unless theboard extends the time period for good cause shown. Such application for recertificationshall extend the board's jurisdiction over the decertification action untilthe board completes its review of the application for recertification andenters an order granting or denying the application. If the applicant forrecertification demonstrates to the board that it is working diligently andin good faith to restore its compliance with subdivisions (2)(a) through (c)of section 70-1001.01, the board shall not terminate the application for recertification.During the pendency of the application for recertification and before theboard's final order on recertification, the facility may continue to operateif the electricity generated at the facility is sold to customers outsidethe state, or to an electric supplier pursuant to a power purchase agreementor similar agreement. If the board retains jurisdiction over the decertificationaction, the prohibition on eminent domain set forth in subsection (5) of thissection shall remain in full force and effect. If the board enters an orderdecertifying a certified renewable export facility and such order becomesfinal due to a failure to timely seek recertification or judicial review,the prohibition on eminent domain set forth in subsection (5) of this sectionshall no longer apply. Nothing in this section shall prohibit a decertifiedfacility from being recertified in the same manner as a new facility. SourceLaws 2010, LB1048, § 6.Effective Date: July 15, 2010

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State Codes and Statutes

Statutes > Nebraska > Chapter70 > 70-1014_02

70-1014.02. Certified renewable export facilities;approval of application; board; powers and duties; conditional approval; finalapproval; failure to commence construction; effect; application fee; eminentdomain; revocation of certification; procedure; recertification.(1)For purposes of this section, electric supplier means a public power district,a public power and irrigation district, an individual municipality, a registeredgroup of municipalities, an electric membership association, or a cooperative.(2)(a) Theboard shall conditionally approve an application for a certified renewableexport facility if it finds that only the criteria described in subdivisions(a)(i) through (iv) of this subsection are met: (i) The facility will providereasonably identifiable and quantifiable public benefits, including economicdevelopment, to the residents of Nebraska or the local area where the facilitywill be located; (ii) the facility meets the requirements of subdivisions(2)(a) and (b) of section 70-1001.01; (iii) the facility has a memorandumof understanding or other written evidence of mutual intent to negotiate apower purchase agreement or agreements with a purchaser or purchasers outsidethe State of Nebraska for at least ninety percent of the output of the facilityfor ten years or more; and (iv) the applicant offers electric suppliers servingloads greater than fifty megawatts at the time the initial application isfiled an option to purchase in the aggregate an amount of power up to tenpercent of the output of any facility with greater than eighty megawatts ofnameplate capacity contingent upon the applicant and electric suppliers negotiatingin good faith a power purchase agreement and any other necessary agreements.Such electric suppliers shall be entitled to a minimum of their pro rata sharebased on the load ratio share of Nebraska electric load served among thoseelectric suppliers eligible under this subdivision (iv). If an electric supplierdeclines to contract for some or all of its pro rata share, the remainingeligible electric suppliers may share the balance on a pro rata basis. Theten percent may be above the total generation amount proposed in the applicationfor a certified renewable export facility and shall require no separate approvalby the board. Any transmission studies, additions, or upgrades due to participationby electric suppliers serving loads greater than fifty megawatts shall bethe responsibility of the participating electric supplier. Upon receivingthe initial application under this section, the board shall notify electricsuppliers identified in this subdivision (iv) of a pending application witha nameplate capacity greater than eighty megawatts. Such suppliers shall haveforty-five days following the date of the board's notice to notify the applicantof an interest in exercising the option to purchase power, except that suchsuppliers may withdraw their option to purchase power once the costs of thetransmission additions and upgrades are determined. Electric suppliers withdrawingtheir option to purchase power are responsible for their pro rata share ofany costs resulting from their participation in and withdrawal from the generationinterconnection and transmission delivery studies.(b) Following the board'sconditional approval of an application under subdivision (a) of this subsection,the applicant shall notify the board within eighteen months that it is preparedto proceed to consideration of the criteria in subdivision (c) of this subsection.The board may extend such eighteen-month deadline not more than twelve additionalmonths for good cause shown. If the applicant fails to notify the board withinsuch time that it is so prepared, the conditional approval granted under thissubdivision is void.(c) Upon finding that the criteria described in subdivisions (c)(i)through (viii) of this subsection have also been met by the applicant andafter the board has fulfilled the requirements of subsection (3) of section 37-807, the board shall grant final approval of an application for a certifiedrenewable export facility:(i) The facility will not have a materiallydetrimental effect on the retail electric rates paid by any Nebraska ratepayers,except that, notwithstanding subdivisions (c)(v) and (vi) of this subsection,the determination of a materially detrimental effect on rates shall not includeregional transmission improvements dictated by a regional transmission operatoror transmission improvements required due to participation by an eligibleentity pursuant to subdivision (2)(a)(iv) of this section;(ii) The applicanthas obtained the necessary generation interconnection and transmission serviceapprovals from and has executed agreements for such generation interconnectionand transmission service with the appropriate regional transmission organization,transmission owner, or transmission provider;(iii) There has been no demonstrationthat the proposed facility will result in a substantial risk of creating strandedassets;(iv) The applicant has certified that it has applied for and isactively pursuing the required approvals from any other federal, state, orlocal entities with jurisdiction or permitting authority over the certifiedrenewable export facility;(v) The applicant and the electric supplierowning the transmission facilities to which the certified renewable exportfacility will be interconnected, along with any electric supplier which ownstransmission facilities of one hundred fifteen thousand volts or more andis required to receive notice pursuant to section 70-1013, have entered intoa joint transmission development agreement on reasonable terms and conditionsconsistent with and subject to the notice to construct or other directivesof any regional transmission organization with jurisdiction over the additionor upgrade to transmission facilities or, for any electric supplier that isnot a member of a regional transmission organization with which the facilitywill interconnect, covers the addition or upgrade to transmission facilitiesrequired as a result of the certified renewable export facility. Such jointtransmission development agreement shall include provisions addressing construction,ownership, operation, and maintenance of such additions or upgrades to transmissionfacilities. The electric supplier or suppliers shall have the right to purchaseand own transmission facilities as set forth in the joint transmission developmentagreement;(vi) The applicant agrees to reimburse any costs that are not coveredby a regional transmission organization tariff or that are allocated throughthe tariff to the electric suppliers as a result of the certified renewableexport facility or not covered by the tariff of a transmission owner or transmissionprovider that is not a member of a regional transmission organization, costsincurred by any electric supplier as a result of adding the certified renewableexport facility, including, but not limited to, renewable integration costs,and costs which allow the interconnected electric supplier to operate andmaintain the transmission facilities under reasonable terms and conditionsagreed to by the parties within the joint transmission development agreement;(vii)The applicant shall submit a decommissioning plan. The applicant or ownerof the facility shall establish decommissioning security by posting an instrument,a copy of which is given to the board, no later than the tenth year followingfinal approval of the facility to ensure sufficient funding is available forremoval of the facility and reclamation at the end of the useful life of suchfacility pursuant to the decommissioning plan. The owner of the certifiedrenewable export facility shall be solely responsible for decommissioning.If the applicant or any subsequent owner of the facility intends to transferownership of the facility, the proposed new owner shall provide the boardwith adequate evidence demonstrating that substitute decommissioning securityhas been posted or given prior to transfer of ownership. The requirementsof this subdivision (vii) shall be waived if a local governmental entity withauthority to create requirements for decommissioning has enacted decommissioningrequirements for the applicable jurisdiction; and(viii) The facility meetsthe requirements of subdivisions (2)(a) through (c) of section 70-1001.01.(3)If the applicant does not commence construction of the certified renewableexport facility within eighteen months after receiving final approval fromthe board under subsection (2) of this section, the approval is void. Uponwritten request filed by the applicant, the board may, for good cause shown,extend the time period during which an approval will remain valid. Good causeincludes, but is not limited to, national or regional economic conditions,lack of transmission infrastructure, or an applicant's inability to obtainauthorization from other required governmental regulatory authorities despitethe applicant's exercise of a good-faith effort to obtain such approvals.(4)The applicant shall remit an application fee of five thousand dollars withthe application. The fee shall be remitted to the State Treasurer for creditto the Nebraska Power Review Fund. The board shall use the application feeto defray the board's reasonable expenses associated with reviewing and actingupon the application, including the costs of the hearing. If the board incursexpenses of more than five thousand dollars associated with the application,the board shall provide written notification to the applicant of the additionalsum needed or already expended, after which the applicant shall promptly submitan additional sum sufficient to cover the board's anticipated or incurredexpenses or shall file an objection with the board. If, after completion ofthe application process and any subsequent legal action, including appealof the board's decision, the board's expenses associated with processing andacting upon the application do not equal the amount submitted by the applicant,the board shall return the unused funds to the applicant if the amount isfifty dollars or more. The applicant shall reimburse the board for any reasonableexpenses the board incurs as a result of an appeal of the board's decisionor shall file an objection with the board. The board shall rule on any objectionbrought pursuant to this subsection within thirty days. The applicant mayrequest a hearing on its objection, in which case the board shall hold suchhearing within thirty days after the request and shall rule within forty-fivedays after the hearing.(5) No facility or part of a facility whichis a certified renewable export facility is subject to eminent domain by anelectric supplier or by any other entity if the purpose of the eminent domainproceeding is to acquire the facility for electric generation or transmission.(6)Except as provided in subsection (5) of this section, only an electric suppliermay exercise its eminent domain authority to acquire the land rights necessaryfor the construction of transmission lines and related facilities to providetransmission services for a certified renewable export facility. The exerciseof eminent domain to provide needed transmission lines and related facilitiesfor a certified renewable export facility is a public use. Nothing in thissection shall be construed to grant the power of eminent domain to a privateentity.(7) If any transmission facilities serving a certified renewableexport facility are proposed to cross the service area of any electric supplierwhich owns transmission facilities of one hundred fifteen thousand volts ormore and is required to receive notice pursuant to section 70-1013, then suchelectric supplier may elect to be a party to a joint transmission developmentagreement for such transmission facilities.(8) If a certified renewable export facilityno longer meets the requirements of subdivisions (2)(a) through (c) of section 70-1001.01, the owner of the facility shall notify the board. An electricsupplier or a governmental entity with regulatory jurisdiction over the certifiedrenewable export facility may apply to the board or the board may file itsown motion to have the certification of a certified renewable export facilityrevoked upon a showing by the applicant for decertification that the facilityno longer meets the requirements of such subdivisions. Upon the filing ofsuch application and making of a prima facie showing by the applicant fordecertification that the facility no longer meets the requirements of suchsubdivisions, the board shall set the matter for hearing. The hearing shallbe held within forty-five days unless an extension is necessary for good causeshown. The applicant for decertification shall have the burden of proof. Withinforty-five days after the conclusion of the hearing, the board shall enteran order to either reaffirm the facility's status as a certified renewableexport facility or to revoke the certification. During the pendency of theapplication for decertification and before the board's final order on decertification,the facility may continue to operate if the electricity generated at the facilityis sold to customers outside the State of Nebraska, or to an electric supplierpursuant to a power purchase agreement or similar agreement. The board shallretain jurisdiction over the decertification action for at least thirty daysafter entry of such an order. Within thirty days after a final order revokingcertification, the owner of the facility may apply for recertification, withthe time period for recertification being no longer than one year unless theboard extends the time period for good cause shown. Such application for recertificationshall extend the board's jurisdiction over the decertification action untilthe board completes its review of the application for recertification andenters an order granting or denying the application. If the applicant forrecertification demonstrates to the board that it is working diligently andin good faith to restore its compliance with subdivisions (2)(a) through (c)of section 70-1001.01, the board shall not terminate the application for recertification.During the pendency of the application for recertification and before theboard's final order on recertification, the facility may continue to operateif the electricity generated at the facility is sold to customers outsidethe state, or to an electric supplier pursuant to a power purchase agreementor similar agreement. If the board retains jurisdiction over the decertificationaction, the prohibition on eminent domain set forth in subsection (5) of thissection shall remain in full force and effect. If the board enters an orderdecertifying a certified renewable export facility and such order becomesfinal due to a failure to timely seek recertification or judicial review,the prohibition on eminent domain set forth in subsection (5) of this sectionshall no longer apply. Nothing in this section shall prohibit a decertifiedfacility from being recertified in the same manner as a new facility. SourceLaws 2010, LB1048, § 6.Effective Date: July 15, 2010

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