U.S. Department of Labor
Administrative Review Board
200 Constitution Avenue, N.W.
Washington, D.C. 20210
ARB CASE NO. 97-066
ALJ CASE NO. 96-CAA-11
DATE: July 24, 1997
In the Matter of:
GREGORY TAKVORIAN,
COMPLAINANT,
v.
SAYBOLT, INC.,
RESPONDENT.
BEFORE: THE ADMINISTRATIVE REVIEW BOARD
FINAL ORDER APPROVING SETTLEMENT
AND DISMISSING COMPLAINT
This case arises under the Clean Air Act (CAA), 42 U.S.C.
§7622 (1988). The parties have submitted a Settlement Agreement and General Release
seeking approval of the settlement and dismissal of the complaint.
The request for approval is based on an agreement entered into
by the parties, therefore, we must review it to determine whether the terms are a fair, adequate
[Page 2]
and reasonable settlement of the complaint. 29 C.F.R. §24.6. Macktal v.
Secretary of Labor, 923 F.2d 1150, 1153-54 (5th Cir. 1991); Thompson v. U.S.
Dep't of Labor, 885 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 the CAA. See ¶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.
We have therefore limited our review of the agreement to determining whether the terms
thereof are a fair, adequate and reasonable settlement of Complainant's allegations that
Respondent violated the CAA.
Paragraph 12 provides that the agreement will be governed by the laws
of Massachusetts. We construe this to except the authority of the Secretary of Labor and any
Federal court which shall be governed in all respects by the laws and regulations of the United
States. See Phillips v. Citizens' Ass'n for Sound Energy, Case No. 91-ERA-25,
Final Ord. of Dismissal, Nov. 4, 1991, slip op. at 2.
Paragraph 8 provides that the Complainant shall keep the terms of the
settlement confidential, with certain specified exceptions. We have held in a number of cases
with respect to confidentiality provisions in settlement agreements that the Freedom of
Information Act, 5 U.S.C. §552 (1988)(FOIA) "requires agencies to disclose
requested documents unless they are exempt from disclosure. . . ." Coffman v.
Alyeska Pipeline Services Co. and Arctic Slope Inspection Services, ARB Case No. 96-141, Final Order Approving Settlement and Dismissing Complaint, June 24, 1996, slip op.
at 2-3. See also Plumlee v. Alyeska Pipeline Services 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; Davis v. Valley View Ferry Authority, Case
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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 the
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).
The records 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 and 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 the 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 (1995).1
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 shall notify the submitter promptly, 29 C.F.R. §70.26(e); and 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).