DATE:  August 1, 1994
CASE NOS. 94-CAA-1
          94-CAA-6


IN THE MATTER OF

GERALD E. MCCOY,

          COMPLAINANT,

     v.

UTAH POWER/PACIFIC POWER,

          RESPONDENT.


BEFORE:   THE SECRETARY OF LABOR


                     FINAL ORDER APPROVING SETTLEMENT
                         AND DISMISSING COMPLAINT

     These cases arise under the employee protection provisions
of the Clean Air Act (CAA), 42 U.S.C. § 7622 (1988) and were
consolidated for hearing purposes. [1]   The parties jointly
submitted to the Administrative Law Judge (ALJ) a Memorandum of
Settlement Agreement, General Release and Covenants, agreeing to
the dismissal of the Department of Labor complaints and the civil
action in the U.S. District Court.  The ALJ issued a Recommended
Order Dismissing Complaints on February 7, 1994, which was
submitted to me for review.  No copy of the settlement agreement
was included in the record, nor was it reviewed by the ALJ prior
to the issuance of his recommended order.  
     On March 22, 1994, I issued an Order requiring the parties
to submit the settlement agreement for review, for it is not
possible for the Secretary to enter into a settlement with the
parties and it would be error to otherwise dismiss a case which
has been settled without reviewing the settlement agreement to
determine whether it is fair, adequate and reasonable. 
See 29 C.F.R. § 24.6(a) (1993); Macktal v.
Secretary of Labor, 923 F.2d 1150, 1153-54 (5th Cir. 1991);
Thompson v. United States Dep't of 
[PAGE 2]
Labor, 885 F.2d 551, 556 (9th Cir. 1989); McGlynn v.
Pulsar Incorporated, Case No. 93-CAA-2, Sec. Final Ord.
Approving Settlement, June 28, 1993.  
     The parties have submitted the agreement and attachment
pursuant to the Secretary's March 22nd Order.  These documents
are part of the record of the case subject to the Department of
Labor's regulation implementing the Freedom of Information Act
(FOIA), 5 U.S.C. § 552 (1988), and are FOIA requires federal
agencies to disclose requested records unless they are exempt
from disclosure under the Act. [2]   See Debose v.
Carolina Power & Light Co., Case No. 92-ERA-14, Order
Disapproving Settlement and Remanding Case, Feb. 7, 1994, slip
op. at 2-3 and cases there cited.  
     Paragraph 9 provides that the parties shall keep the terms
of the settlement confidential, with certain specified
exceptions.  I note that Utah Power/Pacific Power, through its
attorney and the Complainant on his own behalf, have designated
in writing certain terms in the agreement and attachment as
confidential commercial information.  See 29 C.F.R. §
70.26(b).  The parties are hereby notified pursuant to 29 C.F.R.
§ 70.26(c), that a FOIA request for a copy of the settlement
agreement was received by the Secretary before the settlement
agreement was received from the parties.  That request was
denied.  A notice will be prominently displayed in the record of
this case referring to the requests of the parties and directing
that the procedures in 29 C.F.R. § 70.26 be followed if a
subsequent FOIA request is received for the settlement or
attachment in these cases.              
     I note that paragraphs 4.1, 4.2 and 7 of the agreement could
be construed as a waiver by the Complainant of any causes of
action he may have which arise in the future.  As the Secretary
has held in prior cases, see Johnson v. Transco
Products, Inc., Case No. 85-ERA-7, Sec. Order Approving
Settlement, issued Aug. 8, 1985, such a provision must be
interpreted as limited to the right to sue in the future on
claims or causes of action arising out of facts or any set of
facts occurring before the date of the agreement.  See
also Alexander v. Gardner-Denver Co., 415 U.S. 36,
51-52, (1974); Rogers v. General Electric Co., 781 F.2d
452, 454 (5th Cir. 1986).
     The agreement encompasses the settlement of matters arising
under various laws, only one of which is the CAA.  See
¶¶ 2, 3.1, 3.2 and 4.1.  For the reasons set forth in
Poulos v. Ambassador Fuel Oil Co., Inc., Case No. 86-CAA-
1, Sec. Ord., Nov. 2, 1987, slip op. at 2, I have limited my
review of the agreement to determining whether its terms are a
fair, adequate and reasonable settlement of the Complainant's
allegations that the Respondent violated the CAA.  Upon review of
the settlement agreement, I 
[PAGE 3]
find the terms to be fair, adequate and reasonable and I approve
them.  Accordingly, the complaints in these cases are DISMISSED
WITH PREJUDICE.  Settlement agreement, ¶ 8.
     SO ORDERED.


                              ROBERT B. REICH
                              Secretary of Labor

Washington, D.C.








[ENDNOTES]
           
[1]   The Complainant also instituted legal action on the same
cause of action in the United States District Court for the
District of Utah, Central Division, Civil Docket No. 93C-760B.

[2]   Pursuant to 29 C.F.R. § 70.26(b), submitters may
designate specific information as confidential commercial
information to be handled as provided in the regulations.  When
FOIA requests are received for such information, the Department
of Labor shall notify the submitter promptly, 29 C.F.R. §
70.26(c); the submitter will be given a reasonable period of time
to state its objections to disclosure, 29 C.F.R. § 70.26(e);
and the submitter will be notified if a decision is made to
disclose the information, 29 C.F.R. § 70.26(f).  If the
information is withheld and suit is filed by the requester to
compel disclosure, the submitter will be notified, 29 C.F.R.
§ 70.26(h).