U.S. Department of Labor
Administrative Review Board
200 Constitution Avenue, N.W.
Washington, D.C. 20210
ARB CASE NO. 98-024
ALJ CASE NO. 97-TSC-4
DATE: JAN 20 1998
In the Matter of:
ANTHONY J. DIMARCO,
COMPLAINANT,
v.
REYNOLDSTECH
FABRICATORS, INC.,
RESPONDENT.
BEFORE: THE ADMINISTRATIVE REVIEW BOARD
FINAL ORDER APPROVING SETTLEMENT AND DISMISSING COMPLAINT
This case arises under the Toxic Substances Control Act (TSCA), 15 U.S.C.
§2622 (1988). The parties submitted a Settlement 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 18, 1997, approving the settlement.
The request for approval is based on an agreement entered into by the par-ties,
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
[Page 2]
Cir. 1989); Fuchko and Yunker v. Georgia Power Co., Case Nos. 89-ERA-9, 89ERA-10,
Sec. Order, Mar. 23, 1989, slip op. at 1-2.
Paragraph 5 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 ArcticSlope 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 PipelineServices 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 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 requesters 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
1Pursuant 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).