ILLINOIS POLLUTION CONTROL BOARD

October

23, 1986

IN THE MATTER OF:

HAZARDOUS WASTE PROHIBITIONS

)

R 86-9

ORDER OF THE BOARD (by

J.

D.

Dumelle):

This matter comes before the Board upon a October

6,

1986

motion for disqualification

filed on behalf of Citizens for a

Better Environment (CBE).

On October

3,

1986 CBE filed

a motion

for recusal directed to Board Member

J.

Theodore Meyer to which

the Illinois Environmental Regulatory Group responded on October

6,

1986. On that date Board Member Meyer

stated at a special

Board meeting

that he would not recuse himself.

This motion was

subsequently filed.

The Board will not reach the merits of this motion since it

finds that matters such as this should primarily be determined by

the Board Member involved.

Absent compelling circumstances the

Board will not assert any authority it may have to order one of

its members not to participate

in any particular vote.

Nowhere

in the Act is such authority expressly granted to the Board, and

CBE has cited no case law indicating that the Board has any such

powers.

Section 7(a)

of the federal Administrative Procedure Act

states that “on the filing

in good faith of

a timely and

sufficient affidavit of personal bias

or other disqualification

of

a presiding or participating employee, the agency shall

determine

the matter

a part of the record and decision in the

case.”

However, there

is no similar state provision and,

as

pointed out

in The United Corporation,

32 S.E.C.

633,634

(1951),

that section “does not relate to charges of bias against members

of the

Securities

and Exchange

Commission acting

in their

quasi—judicial capacity.

See S. Rep. No. 752, 79th Cong.

2nd

Sess.

(1946)

21;

U.R. Rep.

No. 1980,

79th Cong.,

2nd Sess.

(1946)

34—35.”

Furthermore, the S.E.C. has held that “it does not have

the authority to rule upon the qualifications of its members, and

that each individual member must determine his own

qualification.”

Otis

& Co.,

31 S.E.C.

380

(1950).

Similarly,

the Nuclear Regulatory Commission has stated that “consistent

with the Commission’s past practice, and the generally accepted

practice of the federal courts and administrative agencies, the

Commission has determined that disqualification decisions should

reside exclusively with the challenged Commissioner and are not

reviewable by the Commission.”

Pacific Gas and Electric Co., 48

Ad.

L.

819

(NRC 1980).

It so held despite the fact that by

73.457

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—2—

regulation the Commissioners do review Appeal Board member’s

decisions not to disqualify themselves.

Pacific Gas and Electric

Co.,

48 Ad.

L.

820

(NRC 1980).

Similarly,

the FTC has

traditionally viewed requests

for disqualification as a matter

primarily to be determined

by the individual member concerned.

Hearst Corp.,

30 Ad.

L.

1127

(FTC 1972).

In Standard Oil Compar~y

of California et al.

29 Ad.

L. 2nd 338

(FTC 1971)

the FTC set

forth its reasoning as follows:

The Procedure that was followed here is that

which

the

Commission

has

always

followed

where

motions

to

disqualify

individual

members

of

the

Commission

have

been

filed.

As reiterated many times by the commission in

previous cases:

“Section

7(a)

of

the

Administrative

Procedure

Act

clearly

empowers

the

Commission

to

determine

whether

a

presiding officer conducting a ‘hearing’

on

behalf

of

the Commission

is

subject

to

‘personal

bias

or

disqualification.’

It

is

less

clear

that

it

was

meant

to

apply

to

participation

of

individual

agency

members

in

final

or

appellate

determinations.

The

inquiry

called

for

by

a

motion

for

disqualification

is

necessarily subjective in nature.

It

is

extremely difficult

and delicate

for

a

tribunal

to assume the responsibility of

weighing,

objectively,

the

ability

of

one

of

its

own

members

to

make

an

objective judgement in a case.

Further,

the

existence

of

such

a

power

to

disqualify

carries

with

it

an

inherent

danger

of

abuse,

as

a

potential

instrument

for suppression of dissent.

“Under

the

Commission’s

practice,

disqualification

is

treated as

a matter

primarily

for

determination

by

the

individual

member

concerned,

resting

within

the

exercise

of

his

sound

and

responsible discretion.”

American Cyanamid Company,

59 FTC 1488

(Order

of December 20, 1961);

id,

60 FTC 1885

(Order

of

February

5,

1962

denying

motion

to

reconsider);

Campbell

Taggart

Associated

Bakeries,

Inc.,

62

FTC 1510

(Order of May

7,

73.458

---

—3—

1963);

Id,

62

FTC

1511

(Order

denying

reconsideration).

Bakers

of

Washington,

Inc..,

66

FTC

1569;

Sun

Oil

Co.,

66

FTC

1570.

See

also

Carvel

Corporation,

66

FTC

1577.

Furthermore,

this policy

is consistent

with

the

practice

followed

by

the

Supreme

Court

and

other

Federal

and

State

multimembered

.

judicial

tribunals

when

a

motion to disqualify a member

is filed, where

there

is no clear statutory authorization

for

the

court

to disqualify one

of

its members.

Frank,

“Disqualification

of

Judges.”

56 Yale

U

605,

612.

See

also

Jewell

Ridge

Coal

Corp.

v.

Local

No.

6167,

325

US

897

(1945),

(statement of Justice Jackson):

‘Because of

this

lack

of

authoritative

standards

it

appears

always

to

have

been

considered

the

responsibility

of

each

Justice

to determine

for

himself

the propriety

of

withdrawing

in

any

particular

circumstances.’

We

believe

that

the

procedure

used

in

this

case

was

proper and consistent with the law.

The Federal Communications Commission reached

a somewhat

different result in

In the Matter of Segal and Smith,

5 F.C.C.

3

(1937) wherein

it held that “the Commission has jurisdiction to

hear and determine

a motion to disqualify a member of the

Commission from participation

in and consideration of

a judicial

or quasi—judicial proceeding in which he is challenged on grounds

of personal bias, malice or prejudice.”

5 F.C.C.

11.

Support

for that position is found

in Section

4(j)

of the Communications

Act of 1934 as well as the “inherent jurisdiction and duty”

of

the Commission.

5 F.C.C.

12.

However, the matter before the

Board

is neither

judicial nor quasi—judicial,

but is quasi—

legislative.

Board Members are appointed by the governor and confirmed by

the Senate.

They are equal and independent.

To 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.

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.

No such compelling circumstances have been

demonstrated here.

CEE’s motion to disqualify

is hereby denied.

IT IS SO ORDERED.

Board Member J. Theodore Meyer concurred.

73.459

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—4—

I, Dorothy

M. Gunn,

Clerk of the Illinois Pollution Control

Board,

hereby certify that ~4ieabove Order was adopted on

the

______________

day of cC~~c~

,

1986 by

a vote

of

______________

~77).

~

Dorothy M.

G4’nn,

Clerk

Illinois Pollution Control Board

73-460