DATE: September 27 1990
CASE NO. 90-SWD-3

IN THE MATTER OF

EVERETT R. FITZGERALD,
    COMPLAINANT,

    v.

THE ADAMSON COMPANY, INC.,
    RESPONDENT.

BEFORE: THE SECRETARY OF LABOR

   Before me for review is the Recommended Order of Dismissal (R.O.D.) of Administrative Law Judge (ALJ) Theodor P. von Brand issued on July 5, 1990, in the captioned case which arises under the employee protection provisions of the Solid Waste Disposal Act (SWDA), 42 U.S.C. § 6971 (1982), and the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) 42 U.S.C. § 9610 (1982). Having reviewed the executed Settlement Agreement and Release, the terms of which he found to be fair, adequate and reasonable and in the public interest, the ALJ recommended that the case be dismissed with prejudice.

   On August 21, 1990, after reviewing the Settlement Agreement and Release, I found the settlement to be fair, adequate and reasonable with certain exceptions and limitations. As stated in the August 21 order:

Paragraphs 7 and 8 of the Settlement Agreement and Release . . . restricts Complainant from bringing information obtained in the course of this case or other cases to the Environmental Protection Agency (EPA) or any other agency. Such information could be relevant and material to law enforcement investigations by the EPA or other agencies under the SWDA, CERCLA or other laws. . . .

Paragraphs 7 and 8 of the Settlement Agreement and

Release may accordingly restrict access by government agencies to information Complainant may be able to provide relevant to the administration and enforcement of the SWDA, CERCLA and many other laws. So construed, its effect would be to "dry up" channels of communication which are essential for government agencies to carry out their responsibilities. See Polizzi v. Gibbs & Hill, Inc., Case No. 87-ERA-38, Sec. Order, July 18, 1989, slip op. at 3-6.

For the reasons set forth in Polizzi, slip op. at 5-7, I hold that Paragraphs 7 and 8 of the Agreement are void to the extent that they would prohibit Complainant from communicating to federal or state enforcement authorities as identified above.

Slip op. at 2-4. Accordingly, the August 21 show cause order, for the reasons set forth fully therein, permitted Complainant and Respondent to show cause why the remainder of the settlement agreement should not be approved if the provisions of Paragraphs 7 and 8 found to be void were severed.

   Additionally, the August 21 order noted:

. . . counsel for Complainant represents that the Settlement Agreement and Release contains a contingency, agreed to by the parties, namely, that it must be approved by the Secretary of Labor no more than forty-five (45) days from the ALJ's decision in this matter. [citations omitted] I do not find it necessary to determine the legal effect of this representation vis-a-vis the parties' formally executed Settlement Agreement and Release. Inasmuch as the settlement agreement cannot be approved until the parties have had an opportunity to respond to the present show cause order, which cannot likely occur within the 45 days imposed by the contingency, the parties shall also be given an opportunity to show cause why the Secretary should not proceed to review this case without regard to the forty-five day period imposed by the parties for review of the case.

Slip op. at 5-6.

   In response to the August 21 show cause order the parties have submitted a joint letter stating their understanding of the proposed content of the Secretary's final order if no cause is shown, and, assuming their understanding is correct, stating that the parties will not show cause. The parties' understanding as reflected in their joint letter is consistent with the present final order.¹ The letter accordingly serves as notice by the parties that no cause will be shown. As stated in the August 21 order, "[i]f no cause is shown by the parties. . ., a final order will be issued approving the settlement as severed and interpreted in the order, and the case will be dismissed with prejudice." See Consent Order of Dismissal.

   Wherefore, Paragraphs 7 and 8 of the Settlement Agreement and Release, to the extent that they would restrict Complainant from communicating information to federal or state enforcement authorities, as fully set forth in the August 21, 1990, order are severed. My review of this case is performed without regard to any time limitations purportedly set by the parties for such review. The settlement as severed and interpreted is fair, adequate and reasonable and is approved. Accordingly, this case is DISMISSED with prejudice.

   SO ORDERED.

       ELIZABETH DOLE
       Secretary of Labor

Washington, D.C.

¹ I do not however, adopt the precise formulation in the parties' letter as my own, nor do I incorporate said formulation herein.