SECRETARY OF LABOR,

Complainant,

v.
TIRE RECLAMATION SERVICES, INC.,
Respondent.
OSHRC Docket No. 91-2080
ORDER

The Occupational Safety and Health Administration (OSHA) issued a
citation to Tire Reclamation Services, Inc., alleging violations of
various OSHA standards. After the company had timely contested the
citation, the parties entered into a settlement agreement which reduced
the amount of the penalties imposed for the violations. The Chief
Administrative Law Judge entered an order approving that agreement.
Subsequently, a vice president of the company sent a letter to the
Review Commission stating that the president of the company had agreed
to the reduced penalty before a fire closed down the company. The letter
stated that "at present" there were no funds available to pay the
penalty and asked for relief.
That letter was construed to be a petition for the Commission to review
the judge's order approving the agreement between the parties, and the
case was directed for review by Commissioner Montoya pursuant to 29
U.S.C. § 661(j) and 29 C.F.R. § 2200.92(a). The direction for review
specified the issue to be considered as:

Whether the Judge's Order approving the settlement agreement should be
set aside, and/or possibly modified, because, due to a subsequent change
in Respondent's circumstances that could not have been foreseen, the
Respondent no longer consents to the Settlement terms.

Examination of the written agreement submitted to the Judge reveals that
it hears an undated handwritten notation to the same effect as the
letter, followed by the signature of the same person who signed the
letter and the agreement on behalf of the company. While we construe the
letter as a request for relief from the judge's order, it does not
allege a sufficient basis for the Review Commission to set aside the
judge's order approving that agreement and does not allege any basis on
which to afford the company relief under Rule 60(b) of the Federal Rules
of Civil Procedure. Nevertheless, we will remand this case to the Chief
Judge for him to afford the parties an opportunity to amend the
settlement agreement if they wish to do so. If the company is out of
business, or the violations will not recur, it is possible that the
Secretary of Labor may elect not to pursue the matter.

Accordingly, this case is remanded for the Chief Judge to determine
whether the parties desire to enter into a new agreement. If the parties
do not agree within thirty days of the date of this order to amend their
agreement, the judge's order affirming the parties' settlement agreement
shall become a final order.

Edwin G. Foulke, Jr. Chairman
Donald G. Wiseman Commissioner


Velma Montoya Commissioner
Dated: February 6, 1992

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LYNN MARTIN, SECRETARY OF LABOR, UNITED STATES DEPARTMENT OF LABOR
Complainant, V.
TIRE RECLAMATION SERVICES, INC., and its successors,
Respondent.

OSHRC DOCKET No. 91-2080 INSPECTION No. 109368563 REGION III
CONSENT ORDER APPROVING SETTLEMENT

The parties advise that all matters in dispute have been amicably
resolved and agree to entry of the order set forth below. It is
therefore ORDERED that:

1. The settlement agreement in approved and the term thereof are
incorporated into this order.

2. The citation items and proposed penalties are affirmed as modified in
accordance with the settlement agreement.

3. The total penalty associated with the affirmed citation items amounts
to $450.00. Respondent shall pay said penalty in accordance with the
terms of the settlement agreement.

Irving-Sommer Judge, OSHRC
Dated:Nov 18, 1991

LYNN MARTIN SECRETARY OF LABOR, UNITED STATES DEPARTMENT OF LABOR
Complainant,

v.
TIRE RECLAMATION SERVICES INC., and its successors,
Respondent.
OSHRC DOCKET No. 91-2080 INSPECTION
No. 109368563 REGION III

STIPULATION OF SETTLEMENT


The parties hereto, pursuant to Review Commission Rule 29 CFR §
2200.100(a), in an effort to reach an amicable resolution of the issues
presented herein jointly present the following:

1. Complainant amends the Citations and Notifications of Penalty as follows:
Serious Citation Number 1, Item 1a, b, c and d. The proposed penalty is
reduced from $450.00 to $350.00. The abatement dates are extended from
September 14, 1991 to October 1, 1991.
Other Citation Number 2, Item 1. The proposed penalty is reduced from
$300.00 to $100.00.
As a result of these amendments the total penalty proposed is $450.00.
In support of the amendments set forth above Complainant avers that upon
review of the facts underlying the alleged violations, the proposed
amendments are justified and appropriate.

2. Respondent, moves the Commission for an order allowing it to withdraw
its Notice of Contest to the Citations and Notifications of Penalty as
amended herein and in support of said motion represents as follows:
a. Serious Citation Number 1, Item 1a, b, c and d will be abated by
October 1, 1991. Other Citation Number 2, Item 1 has been abated.
b. Respondent agrees to comply with the applicable provisions of the
Occupational Safety and Health Act of 1970 and the regulations duly
promulgated pursuant thereto.
c. Copies of the Citations and the Notifications of Penalty were posted
on or about when ? and a copy of this Stipulation of Settlement will be
posted on or before Nov. 8, 1991, as required by 29 CFR §§ 2200.7 and 100.
d. Respondent will forward on or before November 15, 1991 a certified
check in the sum of $450.00 made payable to "DOL-OSHA" to the United
States Department of Labor - OSHA, Room 2005, 20 North Pennsylvania
Avenue, Wilkes-Barre, Pennsylvania 10701.

3. The parties further stipulate and agree that the Citations and
Notifications of Penalty, as amended herein, shall become final orders
of the Occupational Safety and Health Review Commission.

4. Each of the parties hereby agrees to bear the payment of its costs,
fees and such other expenses as are related to this proceeding.

TIRE RECLAMATION SERVICES, INC. BY:
John J. Lynch
Vice President
David S. Fortney
Deputy Solicitor of Labor
Marshall H. Harris
Regional Solicitor
U.S. DEPARTMENT Of LABOR Attorneys for Complainant

CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing Stipulation of Settlement
and final Consent Order was mailed this 12th day of November 1991, in a
postage prepaid government envelope, addressed as follows:
John J. Lynch, Vice President
Tire Reclamation Services, Inc
56 Went Eagle Road
Havertown, PA 19083
Howard K. Agran Attorney