ILLINOIS POLLUTION CONTROL BOARD

October 23, 1986

IN THE MATTER OF:

)

HAZARDOUS WASTE PROHIBITIONS

)

R 86-9

ORDER OF THE BOARD (by 3. 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

3.

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; HR. 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

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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 Company

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

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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.

CBE’s motion to disqualify is hereby denied.

IT IS SO ORDERED.

Board Member 3. Theodore Meyer concurred.

73-459

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

Board, hereby certify that ~4-ie above Order was adopted on

the

~c~’~—

day of ~

,

1986 by a vote

of

(2~~

~

Dorothy M. G~’nn, Clerk

Illinois Pollution Control Board

73-460