Oct 19 - McClatchy-Tribune Business News Formerly Knight Ridder/Tribune Business News - Patricia Daddona The Day, New London, Conn.

Superior Court Judge George Levine ruled Wednesday that a state utility regulator examining a whistleblower case does not need to hold a hearing on an anti-nuclear activist's complaint about nuclear safety at Millstone Power Station.

Activist Nancy Burton, director of the Connecticut Coalition Against Millstone, complained that the state Department of Public Utility Control had failed to hold a hearing, as required by law, on her complaint that the agency was procrastinating in making a decision on the case of whistleblower Sham Mehta.

Levine is a judge in the court's division of Tax and Administrative Appeals.

After hearing oral arguments from attorneys for both sides and testimony from Dominion employee Daniel Weekley, Levine ruled that the state agency is not required to conduct a hearing on Burton's complaint because state statute allows a hearing only if the subject is a public service utility or electric supplier, and Millstone is neither.

Before Dominion completed the purchase of Millstone on April 1 of 2001, the Federal Energy Regulatory Commission approved the operation of Millstone as an "exempt wholesale generator." Millstone fits that definition by generating electricity for resale to other suppliers, and by not delivering the commodity directly to consumers.

The testimony offered by Weekley, Dominion's director of Northeast Government Affairs, established that the FERC ruled to that effect on March 19 of 2001, and that Dominion continues to operate that way.

Consequently, said Levine, since Millstone is not a public utility or electric supplier, the state is under no obligation to conduct a hearing on Burton's complaint.

Burton alleged "fraud" and argued that the FERC made the wrong decision, since it approved the status of "exempt wholesale generator" before the holding company that owns Millstone, Dominion Nuclear Connecticut, actually took title to the site.

Levine repeated several times that his court was not the place to "retry" a federal decision.

Dominion attorney Bradford Babbitt had also submitted as evidence a 2001 ruling by Superior Court Judge Peter Weiss that found no basis for similar allegations regarding the legality of the FERC decision that Burton brought five years ago.

Levine also found that the state agency has no jurisdiction over matters pertaining to nuclear safety, which are handled exclusively by the federal Nuclear Regulatory Commission.

Mehta has alleged that Millstone owner Dominion routinely allowed the disabling of a security system at the plant because it was prone to false alarms, and that the company retaliated against him for bringing the concerns to light by eliminating his job.

Burton contended that the state agency's inaction perpetuated a "chilling effect" on workers -- that is, unsafe working conditions and lack of a safety-conscious work environment -- because of the delay in reaching a conclusion about whether the company retaliated against Mehta.

At the time of Burton's complaint, the DPUC had not acted on a recommendation from its prosecutor to re-instate Mehta in a job at the plant while his complaint is pending and conduct a full hearing on the case. It has since ordered both.

Mehta has appealed a similar complaint to the federal Labor department, which found that the company acted properly in restructuring Mehta's department, where he was not rehired. That hearing is scheduled for next week.