DATE:  December 21, 1994
CASE NO. 94-CAA-11


IN THE MATTER OF

CHARLES A. BABEL,

          COMPLAINANT,

     v.

FEDERAL WAY WATER and 
SEWER DISTRICT,

          RESPONDENTS.


BEFORE:   THE SECRETARY OF LABOR


                     FINAL ORDER APPROVING SETTLEMENT

     Before me for review is the Recommended Decision and Order-
Approval of Settlement issued September 26, 1994, by the
Administrative Law Judge (ALJ) in this case, under the employee
protection provisions of the Clean Air Act, 42 U.S.C. § 7622
(1988); the Safe Drinking Water Act, 42 U.S.C. § 300j-9(i)
(1988); the Solid Waste Disposal Act, as amended by the Resource
Conservation and Recovery Act, 42 U.S.C. § 6971 (1988); the
Clean Water Act, also known as the Water Pollution Control Act, 
33 U.S.C. § 1367 (1988); and the Toxic Substances Control
Act, 15 U.S.C. § 2601 (1988).  The ALJ recommended approval of
the settlement agreement and dismissal of the complaint with 
prejudice, having found the agreement fair, adequate and
reasonable.  See Macktal v. Secretary of Labor, 923
F.2d 1150, 1153-54 (5th Cir. 1991); Thompson v. U.S. Dep't of
Labor, 885 
[PAGE 2]
F.2d 551, 556 (9th Cir. 1989); Fuchko and Yunker v. Georgia
Power Co., Case Nos. 89-ERA-9, 89-ERA-10, Sec. Order, Mar.
23, 1989, slip op. at 1-2.

   Review of the agreement reveals that it may encompass
the settlement of matters under laws other than those enumerated
above. See Settlement Agreement ¶ 2.  As stated in
Poulos v. Ambassador Fuel Oil Co., Inc., Case No. 86-CAA-
1, Sec. Order, Nov. 2, 1987, slip op. at 2:
          [The Secretary's] authority over settlement
          agreements is limited to such statutes as are
          within [the Secretary's] jurisdiction and is
          defined by the applicable statute. See
          Aurich v. Consolidated Edison Company of
          New York, Inc., Case No. [86-]CAA-2,
          Secretary's Order Approving Settlement,
          issued July 29, 1987; Chase v. Buncombe
          County, N.C., Case No. 
          85-SWD-4, Secretary's Order on Remand, issued
          November 3, 1986.

I have therefore, limited my review of the agreement to
determining whether the terms thereof are a fair, adequate and
reasonable settlement of Complainant's allegation that Respondent
violated the above enumerated acts.

     I note that pursuant to ¶ 7 of the agreement that the
parties agree that the terms of the agreement will be kept
confidential.  This paragraph also contains a provision for the
payment of liquidated damages if either party breaches its
conditions, though reasonable limits on the parties' liability
have been further delimited by an Addendum to the Settlement
Agreement dated September 12, 1994, which is likewise part of the
case record.

     I have held in a number of cases with respect to
confidentiality provisions in settlement agreements that the FOIA
"requires agencies to disclose requested documents unless they
are exempt from disclosure . . . ."  Plumlee v. Alyeska
Pipeline Service Co., Case Nos. 92-TSC-7, 10; 92-WPC-6, 7, 8,
10, Sec'y Final Order Approving Settlements and Dismissing Cases
with Prejudice, Aug. 6, 1993, slip op. at 6.  See
also Davis v. Valley View Ferry Authority, Case No.
93-WPC-1, Sec'y Final Order Approving Settlement and Dismissing
Complaint, Jun. 28, 1993, slip op. at 2 n.1 (parties' submissions
become part of record and are subject to FOIA); Ratliff v.
Airco Gases, Case No. 93-STA-5, Sec'y Final Order Approving
Settlement and Dismissing Complaint with Prejudice, Jun. 25,
1993, slip op. at 2 (same); Reid v. Tennessee Valley
Auth., Case No. 91-ERA-17, Sec'y Order Approving Settlement
and Dismissing Complaint with Prejudice, Aug. 31, 1992, slip op.
at 3 n.1 (same); Daily v. Portland Gen'l Elec. 
[PAGE 3]
Co., Case No. 88-ERA-40, Sec'y Order Approving Settlement and
Dismissing Case, Mar. 1, 1990, slip op. at 1 n.1 (same).  

     The case record in this case are agency records which must
be made available for public inspection and copying under the
FOIA.  In the event a request for inspection or copying of the
record of this case is made by a member of the public, that
request must be responded to as provided in the FOIA.  If an
exemption is applicable to the record in this case or any
specific document in it, the Department of Labor would determine
at the time a request is made whether to exercise its discretion
to claim the exemption and withhold the document.  If no
exemption were applicable, the document would have to be
disclosed.  Since no FOIA request has been made, it would be
premature to determine whether any of the exemptions in FOIA
would be applicable and whether the Department of Labor would
exercise its authority to claim such an exemption and withhold
the requested information.  It would also be inappropriate to
decide such questions in this proceeding.  

     Department of Labor regulations provide specific procedures
for responding to FOIA requests, for appeals by requestors from
denials of such requests, and for protecting the interests of
submitters of confidential commercial information.  See 29
C.F.R. Part 70 (1993).   

     The ALJ has acceded to Complainant's Counsel's request that
the document setting forth his attorney fee be placed in a
separate clearly marked "restricted access" file. [1]  
See Debose v. Carolina Power & Light Co., Case No.
92-ERA-14,  Ord. Disapproving Settlement and Remanding Case, Feb 7, 1994, slip op.
at 2-3 and cases there cited.
  
     As so construed, I find the terms of the agreement to be
fair, adequate and reasonable, and therefore approve the
settlement agreement.  Accordingly, the complaint is DISMISSED
WITH PREJUDICE.  See Agreement at ¶ 3.

     SO ORDERED.


                              ROBERT B. REICH
                              Secretary of Labor

Washington, D.C.




[ENDNOTES]
           
[1]   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 will notify the submitter promptly, 29 C.F.R. §
70.26(c); the submitter will be given a reasonable amount 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 a suit is filed by the requester to
compel disclosure, the submitter will be notified, 29 C.F.R.
§ 70.26(h).