Dated: AUG 21 1997

CASE NO.: 97-CAA-4

IN THE MATTER OF:

Stephen M. Paine
   Complainant

    v.

Saybolt, Inc.
    Respondent

    This is a proceeding arising under the Clean Air Act, 42 U.S.C. §7622, and its implementing regulations found at 29 C.F.R. Part 24. The undersigned issued a Recommended Order Approving Settlement and Dismissing Complaint with Prejudice on May 20, 1997.¹ On July 22, 1997, the Administrative Review Board issued its Order Disapproving Settlement and Remanding Case.² The Board refused to accept the parties' designation of the settlement agreement and any and all documents filed in the matter as confidential commercial information in order to avoid disclosure pursuant to the Freedom of Information Act, 5. U.S.C. §552.

    The parties have now submitted an Amended Settlement Agreement, dated August 21, 1997, which conforms with the Board's Order. Accordingly, it is hereby RECOMMENDED that the Amended Settlement Agreement between Complainant Stephen M. Paine and Respondent Saybolt, Inc. be approved as it conforms with the Board's July 22, 1997 Order. It is FURTHER RECOMMENDED that this matter be DISMISSED WITH PREJUDICE.

      DAVID W. DI NARDI
      Administrative Law Judge

Boston, Massachusetts
DWD:jw

NOTICE: This Recommended Decision and Order and the administrative file in this matter will be forwarded for review to the Administrative Review Board, U.S. Department of Labor, Frances Perkins Building, Room S-4309, 200 Constitution Avenue, N.W., Washington D.C. 20210. The Administrative Review Board is the authority vested with the responsibility of rendering a final decision in this matter in accordance with 29 C.F.R. Part 24.6, pursuant to Secretary's Order 2-96, 61 Federal Register 19978 (May 3, 1996).

¹In that recommended order, this Judge severed that part of the Settlement Agreement which I had no authority to approve. See Recommended Order, at p. 3. That severance was ordered based on the precedent Brown v. Holmes & Narver, Inc., 90-ERA-26 (5/11/94), and the severability provision in the Settlement Agreement. See (original) Settlement Agreement, para. 18. In framing my recommended order, this Judge construed Macktal v. Secretary of Labor, 923 F.2d 1150 (5th Cir. 1991) as standing for the proposition that I could not sever an offensive term of a settlement agreement without the consent of both parties. See Generally Wampler v. Pullman-Higgins Co., 84-ERA-13 (Sec'y 2/14/94) (wherein the Secretary opined "I feel constrained to follow the Court's decision in Macktal holding that the Secretary must consent or not consent to the terms of a proposed settlement as written, and cannot sever a term and enforce the remainder of the agreement under the language of the ERA, without the consent of both parties").

²The Board expressly rejected my severance of the offending portion of paragraph 16.