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 SB.

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

73-464

---

—2—

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

riot

it has the authority to disqualify its

members.

While the order recites case law on this subject- 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

“tb

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

73-465

---

—3—

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.\~TheodoreMeyer

Board Member

I,

Dorothy

M. Gum, Clerk of the Illinois Pollution Control

Board, hereby certify that the above ,çon5.urring Opinion was

submitted on the .~‘-L~tday of

__________________,

1986.

/~

/

~

~

~

/~-~

~.

Dorothy

M.

Gunn,

Clerk

Illinois Pollution Control Board