DOL Home > OALJ > Whistleblower > Emory v. United States Environmental Protection Agency, 93-SDW-4 (Sec'y Feb. 22, 1994) |
DATE: February 22, 1994 CASE NO. 93-SDW-4 IN THE MATTER OF RICHARD W. EMORY, Jr., COMPLAINANT, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, RESPONDENT. BEFORE: THE SECRETARY OF LABOR FINAL ORDER APPROVING SETTLEMENT Before me for review is the Recommended Decision and Order Approving Settlement Agreement issued January 14, 1994, by the Administrative Law Judge (ALJ) in this case, under the employee protection provisions of the Clean Water Act, also known as the Water Pollution Control Act, 33 U.S.C. § 1367 (1988); the Energy Reorganization Act of 1974, as amended, 42 U.S.C. § 5851 (1988); the Clean Air Act, 42 U.S.C. § 7622 (1988); the Safe Drinking Water Act, 42 U.S.C. § 300j-9(i) (1988); the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act, 42 U.S.C. § 6971 (1988); the Toxic Substances Control Act, 15 U.S.C. § 2601 (1988); and the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. § 9610 (1988). The ALJ recommended approval of the settlement agreement and dismissal of the complaint with prejudice, having found the agreement fair, adequate and reasonable. See 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 encompasses the settlement of matters under laws other than those enumerated above. See Settlement Agreement ¶ IX. As stated in Poulos v.
[PAGE 2] 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-SDW-4, Secretary's Order 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 above enumerated acts. I note that pursuant to ¶ X of the agreement that the parties agree that the terms of the agreement will be kept confidential. I have held in a number of cases with respect to confidentiality provisions in settlement agreements that the Freedom of Information Act (FOIA) 5 U.S.C. § 552 (1988), "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 Order 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 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 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); Reid v. Tennessee Valley Auth., Case No. 91-ERA-17, Sec. Order 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. Order Approving Settlement and Dismissing Case, Mar. 1, 1990, slip op. at 1 n.1 (same). The settlement agreement is an agency record which is subject to 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. Since no FOIA request has been made, it would be premature to determine whether any of the exemptions in FOIA would be applicable and whether the Department of Labor would
[PAGE 3] 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 (1993). As so construed, I find the terms of the agreement to be fair, adequate and reasonable, and therefore approve the settlement agreement. Accordingly, the complaint is DISMISSED WITH PREJUDICE. See Agreement at ¶ IX. SO ORDERED. ROBERT B. REICH Secretary of Labor Washington, D.C.