FINAL ORDER APPROVING SETTLEMENT
AND DISMISSING CASE
Before me for review is the Recommended Decision and Order
of Administrative Law Judge (ALJ) Steven E. Halpern issued on
January 25, 1990, in the captioned case which arises under the
employee protection provision of the Solid Waste Disposal Act
(SWDA), 42 U.S.C. § 6971 (1982). Having reviewed the Release and
Settlement AGreement and Notice of Settlement of Claim, the ALJ
found the settlement to be fair, adequate and reasonable and
recommended that the case be dismissed with prejudice.
On March 28, 1990, after reviewing the Release and
Settlement Agreement, I found the settlement to be fair, adequate
and reasonable with certain exceptions and limitations. As
stated in the March 28 order:
Paragraph 13 of the Release and Settlement
Agreement inter alia, prohibits Complainant
and the City of Duvall from discussing with
or revealing "to any third party, except as
necessary to the Department of Labor or as
otherwise required by law, the allegations
made by each party against the other or the
basis on which the parties have settled their
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claims and potential claims against each
other." The foregoing language, if broadly
construed, would appeal to restrict
Complainant and Respondent from providing
information obtained in the course of this
case to the Environmental Protection Agency
(EPA) or any other agency.
* * * *
Paragraph 13 of the Release and Settlement
Agreement accordingly may restrict access by government
agencies to information Complainant and Respondent may
be able to provide relevant to the administration and
enforcement of the SWDA and many other laws. So
construed, its effects would be to "dry up" channels of
communications which are essential for government
agencies to carry out their responsibilities. SeePolizzi v. Gibbs & Hill, Inc., Case No. 87-ERA-38, Sec.
Order, July 18, 1988, slip op. at 3-6.
* * * *
For the reasons set forth in Polizzi, slip
op. at 5-7, I hold that Paragraph 13 of the
Release and Settlement Agreement is void to
the extent that it would prohibit Complainant
and Respondent from communicating to federal
or state enforcement authorities as
identified above.
Slip op. at 2-3. Accordingly, the March 28 show cause order, for
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 Paragraph
13 found to be void were severed.
Additionally, the March 28 Order stated that:
Paragraph 15 provides in part that "[a]ny
action to enforce or for breach of this
agreement shall be brought exclusively in
King County Superior Court, and the parties
waive all objections to jurisdiction and
venue there." I interpret the quoted
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language of Paragraph 15 as not restricting
in any way the authority of the Secretary
under the SWDA and regulations promulgated
thereto. 29 C.F.R. Part 24 (1989)
Slip op. at 4-5.
The time allotted for responding to the show cause order has
expired and no submissions have been received. As stated in the
March 28 order, "[i]f no cause is shown by the parties . . . as
indicated, a final order will be issued approving the settlement
as severed and interpreted in this order, and this case will be
dismissed with prejudice." See Release and Settlement Agreement,
¶ 6.
Wherefore, Paragraph 13 of the Release and Settlement
Agreement, to the extent that it would restrict Complainant and
Respondent from communicating information to federal or state
enforcement authorities as described above, is severed.
Paragraph 15 is interpreted as not restricting the authority of
the Secretary under the SWDA and regulations promulgated thereto.
The settlement as severed and interpreted is fair, adequate and
reasonable and is approved. Accordingly, this case is DISMISSED
with prejudice.
