Office of Administrative Law Judges 525 Vine Street, Suite
900 Cincinnati, OH 45202
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Date: July 28, 1999
Case No: 1999-TSC-2
In the Matter of
BERNARD G. HOLLAND,
Complainant,
v.
AHTNA AGA SECURITY INCORPORATED and
ALYESKA PIPELINE SERVICE COMPANY,
Respondents.
RECOMMENDED DECISION AND ORDER
This proceeding arises under the Toxic Substances Control Act (15 U.S.C.
§ 2622); Water Pollution Control Act (33 U.S.C. § 1367); Clean Air Act (42 U.S.C.
§ 7622); and the Solid Waste Disposal Act (42 U.S.C. § 5851). The regulations
pertaining to this proceeding are found at 29 C.F.R. Parts 18 and 24. A notice was issued on April 22,
1999 scheduling the matter for hearing on August 9, 1999 at Anchorage, Alaska.
By letter dated July 8, 1999, counsel for the complainant, A. Alene Anderson,
submitted a joint motion for approval of settlement and dismissal. This document is signed by Ms.
Anderson, counsel for Ahtna AGA Security, Inc., Jerome H. Juday and by Charles P. Flynn, counsel
for Alyeska Pipeline Service Company. Attached to the motion is a Settlement Agreement and Release
of All Claims signed by the complainant and Arthur English, President of Ahtna AGA Security, Inc.
Copies of the Settlement Agreement are attached to the copies of this Order to be served on counsel
for the complainant, respondents and Secretary of Labor.
This Recommended Decision and Order will constitute the final order of the
Secretary of Labor unless appealed to the Administrative Review Board. 29 C.F.R. § 24.7.
Therefore, it is my responsibility to determine whether the terms of the settlement agreement are a fair,
adequate and reasonable settlement of the complaint. See 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, March 23, 1989, slip op. at 1-
2.
[Page 2]
My review of the settlement and release agreement leads me to conclude that it is
intended to encompass the settlement of matters under laws other than those specified in paragraph 1
above. See Settlement Agreement and Release ¶¶ 3 and 4. As explained by the
Administrative Review Board in Poulos v. Ambassador Fuel 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 Co. 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.
I have therefore limited my review of the agreement to determine whether the terms are a fair,
adequate and reasonable settlement of complainant's allegations that the respondents violated the Toxic
Substances Control Act and other Federal employee protection statutes under my jurisdiction.
Paragraph 7 of the Settlement Agreement and Release essentially provides that
the terms of the agreement shall be kept confidential. Moreover, the parties acknowledge in paragraph
7 of the agreement that this proceeding is subject to the Freedom of Information Act and that the
agreement does not limit the U.S. Department of Labor with respect to claims under that statute.
The Administrative Review Board has held in a number of proceedings with
respect to the confidentiality provisions and 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 Agreement 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, Secretary 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, Secretary 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, Secretary Final
Order Approving Settlement and Dismissing Complaint with Prejudice, Jun. 25, 1993, slip op. at 2. As
explained by the Administrative Review Board in Paine v. Saybolt, Inc., ARB Case No. 97-
[Page 3]
136, Final Order Approving Settlement and Dismissing Complaint, Sept. 5, 1997, slip op. at 2:
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 in 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 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). [endnote omitted.]
I therefore recommend approval of the Settlement Agreement and Release with
the understanding the Department of Labor will address any Freedom of Information Request in
accordance with 29 C.F.R. Part 70 (1995).
The Administrative Review Board requires that all parties seeking approval of a
settlement agreement arising under the Toxic Substances Control Act provide the settlement
documentation for any other alleged claim arising from the same factual circumstances forming the basis
of the federal claim or to certify that no other settlement agreements were entered into by the parties.
Biddy v. Alyeska Pipeline Service Co., ARB Case Nos. 96-109, 97-1015, Final Order
Approving Settlement and Dismissing Complaint, Dec. 3, 1996, slip op. at 3. Therefore, the parties
have acknowledged that the Settlement Agreement and Release supplements the settlement reached
regarding Mr. Holland's 1997 lawsuit, Case Number 3AN-97-670 Civil, the terms of which are set
forth on page one, paragraph D of the Settlement Agreement and Release.
I find that the Settlement Agreement and Release is a fair, adequate and
reasonable settlement of the complaint involved in this proceeding. Therefore, IT IS HEREBY
RECOMMENDED that the Joint Motion to Approve Settlement Agreement and for Order of
Dismissal, together with the Settlement Agreement and Release, be granted.
