ILLINOIS POLLUTION CONTROL BOARD

October 23, 1986

IN THE MATTER OF:

)

HAZARDOUS WASTE

)

R86-9

PROHIBITIONS

)

CONCURRING OPINION (by J. Theodore Meyer):

I wish to supplement the Board’s Order of today denying

Citizens’ for a Better Environment (CBE) motion for

disqualification directed towards me. CBE contends that my

participation in the passage of S.B. 171 into law now

disqualifies me from deliberating on the merits of the proposed

rule arising out of that legislation. I might note that in

addition to S.B. 171 my involvement with environmental

legislation during my tenure in the House was extensive. I was a

cosponsor of the Act creating the Board and was a member of the

committee which oversaw the passage of all environmental

legislation in the House. In addition, I voted on every piece of

environmental legislation from 1969 to the time

I left the

House.

Thus, were CBE’s position successful,

in effect, I would

be precluded from participating

in almost every conceivable

matter that might come before the Board because of

my legislative

experience. Moreover, this argument, if successful, would

preclude every former legislator from serving on a board or

commission if he or she participated in any way in the passage of

legislation concerning the entity. Just how much participation

would be necessary to require disqualification or recusal is not

delineated by CBE. For instance, would voting alone, whether for

or against the legislation, be sufficient to require recusal? In

any event, it is CBE’s position that the level of my

participation with S.B. 171 has risen to the point of objection.

On this point, I would suggest that the recent Second

District Case of M.I.G. Investments, Inc. v. Environmental

Protection Agency, No. 2—85—734 (October 15, 1986) is instructive

of how courts are likely to view this argument. In M.I.G.

Investments, the Board had construed the legislative intent of

S.B. 172, the companion bill to S.B. 171 at issue today.

Similarly, I was involved in the passage of S.B. 172 into law as

the Chairman of the House Energy and Environmental Committee and

sponsor of the governor’s amendatory veto. Based on my

experience with S.B. 172, I dissented from the Board’s

interpretation of the legislative intent. In reversing the

Board, the court cited my dissent and noted that because of my

legislative experience with S.B. 172 my interpretation of the

legislative intent was entitled to some weight in its analysis.

Slip op. at 10. Nowhere did the court question my right to voice

that interpretation as constituting “bias”. Rather my

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interpretation was accorded some persuasive value by the court.

Clearly, “this turn of affairs” constitutes an implicit rejection

of CBE’s position.

In addition, I would like to point out that CBE’s argument

could be used against other Board members besides former

legislators. In this regard, the Environmental Protection Act

(Act) requires that each Board member be “technically

qualified.” Section 5. At the same time federal laws and

regulations prohibit the appointment of Board members too closely

tied to the regulated industry. See Section 128 of the Clean Air

Act and 40 C.F.R. Section 123.26(c) (1986). Together these two

strictures leave a rather small pool of qualified persons to

serve on the Board. CBE’s argument that a former legislator

should not participate in decisions concerning legislation he is

familiar with could extend to all forms of technical expertise

since that very expertise could arguably

lead to a predisposition

one way or another. Thus, followed

to its logical conclusion,

CBE’s argument would require the disqualification of Board

members from participation on the very matters that they are most

familiar with. As a result, the Act’s requirement for

technically qualified people would be stood on its head since the

experts would be prohibited from assisting the Board in their

areas of expertise.

Finally, I would like to take issue with the tone of the

order as written today as I believe it erroneously leaves the

ultimate question unanswered. The Board’s order is ambiguous as

to whether or not it has the authority to disqualify its

members. While the order recites case law on this subjec~which

principally supports the proposition that no such authority

exists in boards and commissions, it implies that under certain

circumstances the Board may have such power. For example, the

conclusion of the order rests on a discussion of In

the matter of

Segal and Smith,

5

FCC

3

(1937) holding that in a judicial or

quasi—judicial proceeding the Federal Communications Commission

could disqualify a member. The Board concludes, however, that

this matter is neither judicial or quasi—judicial and

“tlO

allow

a majority of the Board to determine the eligibility to vote of

an individual Member in a particular regulatory proceeding would

be to travel a road fraught with hazards.” Or. at 3 (emphasis

added). Thus, the order as written implies that in quasi—

judicial or judicial matters the Board may order one of its

members not to vote.

A similar qualifier is also made at the

conclusion of the order where it is stated that “the Board does

not believe that in a regulatory proceeding it should exercise

its authority, if any, to rule on the qualification of one of its

members to participate in the decision absent compelling

circumstances.” Id. (emphasis added). This implies that in

certain “compelling” situations the Board may find the authority

to

disqualify a member whether the matter is regulatory in nature

or not. Nowhere in the Environmental Protection Act, the

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Administrative Procedure Act or Roberts Rules of Order

is such

authority granted to the Board. I suggest that in any

proceeding, whether judicial, quasi—judicial or not, a

determination that the power of disqualification does rest with

the Board and the exercise of that power would lead to

disaster. What safeguards would exist to prevent the majority

from simply disqualifying the minority? Such a situation would

upset the balance of power in the Board envisioned by the Act and

usurp the authority of the Governor to appoint 7 equal and

independent members who are then confirmed by the Senate.

Thus, although I agree with the result of today’s order I do

not feel that the order goes far enough and for the foregoing

reasons concur.

J.\~Theodore Meyer

Board Member

I, Dorothy M. Gurin, Clerk of the Illinois Pollution Control

Board, hereby certify that the above ,çoripurring Opinion was

submitted on the

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day of

_________________,

1986.

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t~

Dorothy M. Gunn, Clerk

Illinois Pollution Control Board