U.S. Department of Labor Administrative Review Board
200 Constitution Avenue, N.W.
Washington, D.C. 20210
ARB CASE NO. 98-023
ALJ CASE NO. 98-SWD-1
DATE: December 16, 1997
In the Matter of:
JERRY WAYNE MONROE,
COMPLAINANT,
v.
ENVIROCON SERVICES, INC.,
RESPONDENT.
BEFORE: THE ADMINISTRATIVE REVIEW BOARD
FINAL ORDER APPROVING SETTLEMENT
AND DISMISSING COMPLAINT
This case arises under the Clean Air Act, 42 U.S.C.
§7622 (1988), Toxic Substances Control Act, 15 U.S.C. §2622 (1988), Solid
Waste Disposal Act, 42 U.S.C. §6971 (1988), Safe Drinking Water Act, 42 U.S.C.
§300j-9(i) (1988), the Water Pollution Control Act, 33 U.S.C. §1367
(1988)("the whistleblower acts") and the applicable regulations which appear at
29 C.F.R. Part 24 (1994). The parties submitted a Settlement Agreement, General Release
[Page 2]
and Confidentiality Agreement to the Administrative Law Judge (ALJ) seeking approval of the
settlement and dismissal of the complaint. The ALJ issued a Recommended Decision and
Order on November 17, 1997 approving the settlement.
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 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 whistleblower acts. See General Release
¶¶ 2,3. 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 whistleblower acts.
The confidentiality agreement 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 No. 93-WPC-1, Sec. Final Order Approving Settlement and Dismissing
[Page 3]
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).