DATE:  August 23, 1995
CASE NO. 95-CAA-13


IN THE MATTER OF

KEVIN GAINER, 

          COMPLAINANT,

     v.

AMERICAN ELECTRIC POWER,

          RESPONDENT.


BEFORE:   THE SECRETARY OF LABOR


                     FINAL ORDER APPROVING SETTLEMENT

     Before me for review is the Recommended Order of Dismissal,
approving the parties  settlement dated August 4, 1995, in this
case arising under the employee protection provisions of the
Clean Air Act (CAA), 42 U.S.C. § 7622 and the implementing
regulations at 29 C.F.R. Part 24 (1994).  The ALJ recommended
approval of the settlement agreement and dismissal of the
complaint with prejudice, having found the agreement fair,
adequate and reasonable.  See 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
Settlement Agreement at 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] 
[PAGE 2]
     jurisdiction and is defined by the applicable statute. 
     See Aurich v. Consolidated Edison Company of New York,
     Inc., Case No. [86-]CAA-2, Sec. Ord. Approving Settlement,
     issued July 29, 1987; Chase v. Buncombe County, N.C., Case
     No. 85-SWD-4, Sec. Ord. 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 CAA.
     I note that pursuant to the Settlement Agreement at 3, the
Complainant agrees to keep the terms of the agreement
confidential.  I have held in a number of cases with respect to
confidentiality provisions in settlement agreements that the
Freedom of Information Act (FOIA) "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 Ord. 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 Ord. 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 Ord. 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. Ord. 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. Ord.
Approving Settlement and Dismissing Case, Mar. 1, 1990, slip op.
at 1 n.1 (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 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.    
     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 (1994).[1]     
     As so construed, I find the terms of the agreement to be 
[PAGE 3]
fair, adequate and reasonable, and therefore approve the 
settlement agreement.  Accordingly, the complaint is DISMISSED
WITH PREJUDICE.  See Settlement Agreement at 3.
     SO ORDERED.

                              ROBERT B. REICH
                              Secretary of Labor

Washington, D.C.






[ENDNOTES]
           
[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 will
notify the submitter promptly, 29 C.F.R. § 70.26(c); the
submitter will be given a reasonable amount 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 a suit is filed by the requester to compel
disclosure, the submitter will be notified, 29 C.F.R. §
70.26(h).