DATE:  February 22, 1994
CASE NO. 93-SDW-4


IN THE MATTER OF

RICHARD W. EMORY, Jr.,

          COMPLAINANT,

     v.

UNITED STATES ENVIRONMENTAL
PROTECTION AGENCY,

          RESPONDENT.


BEFORE:   THE SECRETARY OF LABOR


                     FINAL ORDER APPROVING SETTLEMENT

     Before me for review is the Recommended Decision and Order
Approving Settlement Agreement issued January 14, 1994, by the
Administrative Law Judge (ALJ) in this case, under the employee
protection provisions of the Clean Water Act, also known as the
Water Pollution Control Act, 33 U.S.C. § 1367 (1988); the
Energy Reorganization Act of 1974, as amended, 42 U.S.C. §
5851 (1988); 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 Toxic
Substances Control Act, 15 U.S.C. § 2601 (1988); and the
Comprehensive Environmental Response, Compensation and Liability
Act, 42 U.S.C. § 9610 (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 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 encompasses the
settlement of matters under laws other than those enumerated
above. See Settlement Agreement ¶ IX.  As stated in
Poulos v. 
[PAGE 2]
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-SDW-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 ¶ X of the agreement that the
parties agree that the terms of the agreement will be kept
confidential.  I have held in a number of cases with respect to
confidentiality provisions in settlement agreements that the
Freedom of Information Act (FOIA) 5 U.S.C. § 552 (1988),
"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. 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. 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. 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. Order Approving Settlement
and Dismissing Complaint with Prejudice, Aug. 31, 1992, slip op.
at 3 n.1 (same); Daily v. Portland Gen'l Elec. Co., Case
No. 88-ERA-40, Sec. Order Approving Settlement and Dismissing
Case, Mar. 1, 1990, slip op. at 1 n.1 (same).  
     The settlement agreement is an agency record which is
subject to 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 
[PAGE 3]
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).     
     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 ¶ IX.
     SO ORDERED.




                                  ROBERT B. REICH
                                  Secretary of Labor
Washington, D.C.