author: Mr. PRESIDING JUSTICE McNAMARA

text:
    Commonwealth Edison Company, Petitioner, v. The Pollution Control Board et al., Respondents.
    (No. 57487;
    First District (3rd Division)
    December 19, 1974.

      Rehearing denied January 23, 1975.

      Isham, Lincoln & Beale, of Chicago (Richard E. Powell, Charles E. Whalen, and Gerald D. Mindell, of counsel), for petitioner.
    William J. Scott, Attorney General, of Springfield (James I. Rubin, Richard W. Cosby, and Thomas J. Immel, Assistant Attorneys General, and Merideth Wright, Senior Law Student, of counsel), for respondents.
   Mr. PRESIDING JUSTICE McNAMARA

delivered the opinion of the court:

In 1971, the Federal Environmental Protection Agency, acting under the Clean Air Act amendments of 1970 (42 U.S.C. § 1857 et seq. (1970), amending 81 Stat. 485 (1967)), adopted new primary and secondary ambient-air-quality standards. (42 C.F.R. § 410.1 et seq. (1971).) By its terms the States were required to devise their own implementation plans to achieve compliance with Federal standards. Accordingly, the Illinois Environmental Protection Agency (hereinafter the Agency), acting pursuant to section 4(j) of the Environmental Protection Act (hereinafter the Act) (Ill. Rev. Stat. 1971, ch. 111½, par. 1004(j)), submitted proposals to the Illinois Pollution Control Board (hereinafter the Board) governing the emission rates of various pollutants into the air which it deemed necessary to achieve compliance with those Federal standards. Included in the plan were substantive rules limiting the emission rates from stationary sources for particulates and sulfur. In a consolidated proceeding, the Board held public hearings in relation to the proposed plan. Petitioner, Commonwealth Edison Company (hereinafter Commonwealth), appeared and produced testimony critical of the plan. On April 13, 1972, the Board adopted a final set of rules and regulations, and accompanied their issuance with an explanatory opinion entitled “In the Matter of Emission Standards.” (# R. 71-23.) Pursuant to section 29 of the Act, Commonwealth has filed directly in this court a petition seeking review of the rules pertaining to the particulates and sulfur dioxide emission limitations. Commonwealth also challenges the validity of three other rules promulgated by the Board relating to certain procedures involving the Agency.

Commonwealth contends that Board Rules 203(g)(1) and 204(a)(1) and (c)(1)(A), relating to the limitation of the above-mentioned pollutants, are arbitrary and unreasonable as applied to it or, alternatively, were not enacted in accordance with the statutory command; that Board Rule 103(Z), which empowers the Agency to require the posting of bond as a condition to the issuance of a permit under Title X of the Act, constitutes an unauthorized legislative penalty, unlawful delegation of legislative authority, and illegal usurpation of judicial powers; that Board Rule 103(e)(1), which states that the Agency has the power to conduct a hearing pursuant to a permit request, is void as an unlawful delegation of legislative authority; and that Board Rule 303, which authorizes the Agency to vary ambient-air-quality standards in particular instances, is invalid as an unauthorized redelegation of legislative authority. Before reviewing Rules 203 and 204, we elect to consider these latter three contentions.

Since the filing of briefs in this cause, section 39 of the Act has been amended to provide that a bond or other security shall not be required of the applicant by the Agency as a condition for the issuance of a permit. (Ill. Rev. Stat. 1973, ch. 111½, par. 1039(a).) The enactment serves to moot Commonwealth’s challenge to Board Rule 103(1).

Commonwealth next challenges the validity of Board Rule 103(e)(1). The rule is as follows:

“The Agency may conduct hearings, prior to issuing a Permit pursuant to this Chapter, to determine whether an applicant has submitted proof that the emission source or air pollution control equipment is or will be in compliance with every Rule of this Chapter.”

Commonwealth argues that the rule constitutes an unlawful delegation of authority by the Board of the Agency. Commonwealth points out that the statute does not expressly authorize the Agency to conduct such a hearing, in contradistinction to section 5(d) of the Act, which expressly recites that the Board has the authority to hold a hearing in review of the Agency’s denial of a permit application. Commonwealth thus maintains that the legislative intent must have been to deny the Agency the right to hold a hearing pursuant to its consideration of a permit application. The Board responds that the statute gives the Agency die implied power to hold such a hearing and presents the alternative argument that the rule is a proper and valid delegation of power.

In determining an administrative agency’s jurisdiction, the focus is on the agency’s creator. (See Pinkertons Nat. D. Agency v. Fidelity & Deposit Co. (7th Cir. 1943), 138 F.2d 469, cert. denied (1944), 321 U.S. 766.) An express grant of authority to the agency cames with it the clear and express grant of power to do all that is reasonably necessary to execute the power or perform the duty specifically conferred. A. F. Staley Manufacturing Co. v. Enivronmental Protection Agency (1972), 8 Ill.App.3d 1018, 290 N.E.2d 892.

The principal provision relating to the permit procedure is section 39(a). It states in pertinent part as follows:

“When the Board has by regulation required a permit for the construction, installation, or operation of any type of facility, equipment * * *, the applicant shall apply to the Agency for such permit and it shall be the duty of the Agency to issue such a permit upon proof by the applicant that the facility, equipment, * * * will not cause a violation of this Act or of regulations hereunder. The Agency shall adopt such procedures as are necessary to carry out its duties under this Section.”

In addition section 4(g) imposes upon the Agency the duty to administer the permit system. According to section 40, an applicant denied a permit may petition the Board for a hearing. Affirmance by the Board will enable the applicant to petition for review directly to this court.

An examination of the Act reveals the depth of the legislature’s concern to purify the environment and to take care that new facilities and equipment will not be constructed which might hinder this task. Having found that “environmental damage seriously endangers the public health and welfare” (Ill. Rev. Stat. 1971, ch. 111½, par. 1002(a) (i)), and having specified its purpose to be the creation of “a unified, state-wide program * * * to restore, protect and enhance the quality of the environment” (Ill. Rev. Stat. 1971, ch. 111½, par. 1002(b)), the legislature has prescribed that, when decreed by the Board, a project to be constructed which might violate the applicable statutory provisions or regulations must secure a permit from the Agency. Rather than setting forth detailed procedures which the Agency must follow in administering the permit system, the General Assembly saw fit to adopt broad language empowering the Agency to utilize “such procedures as are necessary” to carry out its statutory mandate.

The power of the Agency is an important one. In our view section 39(a) provides ample power to enable the Agency to conduct a hearing relating to a permit application when it deems it necessary to pass on the application. The Agency may determine that it would be beneficial to hear and question experts to predict the probable impact on the environment that a permit issuance would cause. It may wish to question members of die same or similar industry to accumulate specific information omitted from the application. The Agency may need a clarification or amplification of complicated facts or positions set forth by the applicant. Moreover, as mandated by section 39, subsections (a)(i) through (a) (iv) require a detailed explanation by die Agency to accompany die denial of a permit request which may necessitate the gathering of information not furnished in the application.

We recognize that the legislature saw fit to make an express grant of power to die Board to conduct a hearing upon review of the Agency’s denial of a permit application. It can be inferred that the legislature wished to guarantee at least one full hearing in the permit structure and placed such a hearing at the review stage. At the same time, it can be seen that the legislature determined that the Agency should be free to adopt flexible procedures in gathering evidence and seeking advice, and thus granted that body the power found in section 39(a). While we appreciate the fact that an applicant may be forced to bear the expense of two hearings in its attempt to secure a permit, that will be the price it will have to pay for its decision to construct facilities which the expert agencies have decided possess possible adverse environmental implications.

We hold that the Agency has the implied power by statute to conduct a hearing pursuant to an application for a permit. Thus, we need not consider Commonwealth’s claim that Rule 103(e)(1) constitutes an unlawful delegation of authority by the Board to the Agency.

Commonwealth next challenges the validity of Board Rule 303. It contends that the rule is an unlawful delegation from the Board to the Agency of responsibilities imposed by statute directly on the Board. Commonwealth further argues that if the delegation is not per se unlawful, the failure by the Board to set forth ascertainable standards renders it invalid.

Rule 303 is as follows:

“Nondegradation
Existing ambient air quality which is better than the established ambient air quality standards at the date of their adoption will be maintained in its present high quality. Such ambient air quality shall not be lowered unless and until it is proved to the Agency that such change is justifiable as a result of necessary economic and social development and will not interfere with or become injurious to human health or welfare.”

The Board is empowered to adopt regulations to promote the control of air pollution (Ill. Rev. Stat. 1971, ch. 111½, par. 1010(b)) and to prescribe standards for the issuance of permits by the Agency (Ill. Rev. Stat. 1971, ch. 111½, par. 1010(c)). While a regulation, like a statute, enjoys the presumption of validity (Armstrong Chemcon, Inc. v. Pollution Control Board (1974), 18 IlI.App.3d 753, 310 N.E.2d 648), an administrative agency cannot extend the operation of a statute through its own rulemaking. (Mallen Co. v. Department of Finance (1939), 372 Ill. 598, 25 N.E.2d 43.) The key question in determining the validity of a rule or regulation is whether the rule or regulation was made in furtherance of the intentions of the legislature as set forth' in the statute. People ex rel. Illinois Highway Transportation Co. v. Biggs (1949), 402 Ill. 401 84 N.E.2d 372.

The Board’s first answer to Commonwealth’s challenge is that the rule cannot be considered a delegation of authority. Rather the rule must be viewed as merely a statement of “principle” expressing a “policy” to be followed by the Agency in the latter’s administration of the permit system. The Board notes page 45 of its opinion accompanying the enactment of the rules, which allegedly supports the Board’s underlying position in this regard:

“Rule 303: N onde gradation, embodies the principle, already found in Illinois air quality standards (APCB Rules and Regs. Ch. 5) and in water pollution regulations (SWB-7 through SWB-15; PCB Regs. Ch. 3 Rule 208), that parts of the state now clean shall not be unnecessarily degraded. This does not forbid all new facilities, as some seem to have thought. It requires Agency consideration, in advance of issuing a construction permit, to assure that degradation not justified by need will not occur and that new facilities are not put in the wrong place.”

We believe the Board’s position to be without merit. The rule cannot be considered a mere expression of policy to guide the Agency’s deliberations over a permit request. Section 39 clearly states that if the proof presented to the Agency pursuant to a permit application shows that the proposed construction facility will not cause a violation of the Act or the regulations made thereunder, the permit shall be issued by the Agency. To imply that the Agency shall have the discretion to deny the application where the proposed facility would meet the requirements of the Act or regulations although lower the ambient-air quality essentially authorizes the Agency to create a new ambient-air-quality standard. Since it cannot be disputed that section 5(b) clearly authorizes the Board to create smch standards, the rule must be viewed as an attempt by the Board to delegate that duty to the Agency.

Consequently, we must consider the question of whether an administrative agency can validly redelegate authority imposed upon it by statute to another administrative agency through administrative rule-making in the absence of legislative approval. It must be observed that redelegation, a transmission of authority along horizontal lines, is unrelated and possesses far greater implications than subdelegation, a vertical transmission of power with ultimate authority usually reserved in the transmitter. See 1 Davis, Administrative Law Treatise (1958), § 9.07, at 639.

Courts in this State have consistently held that a legislature’s delegation of discretionary power to a municipal corporation will not permit a redelegation by that body in the absence of a clear express or implied authorization in the statute. (People ex rel. Healy v. Clean Street Co. (1907), 225 Ill. 470, 80 N.E. 298; Elder v. Board of Education (1965), 60 Ill.App.2d 56, 208 N.E.2d 423.) The roots of such a doctrine are found in 2 Am. Jur. 2d Administrative Law (1962), § 222, at 52:

“It is a general principle of law, expressed in the maxim “delegatus non potest delegare,” that a delegated power may not be further delegated by the person to whom such power is delegated, and that in all cases of delegated authority, where personal trust or confidence is reposed in the agent and especially where the exercise and application of the power is made subject to his judgment or discretion, the authority is purely personal and cannot be delegated to another unless there is a special power of substitution either express or necessarily implied.”

Other jurisdictions have also held that a redelegátion of a discretionary power by an administrative agency to another agency by its rule-making power is void. (See Mercer Council # 4, N.J. Civil Service Association, Inc. v. Alloway (1972), 119 N.J. Super. 94, 290 A.2d 300; Bunger v. Iowa High School Athletic Association (Iowa 1972), 197 N.W.2d 555; Anderson v. Grand River Dam Authority (Okla. 1968), 446 P.2d 814; Voth v. Eisher (1965), 241 Ore. 590, 407 P.2d 848; Hillman v. Northern Wasco County PUD (1958), 213 Ore. 264, 323 P.2d 664; Hutchins v. Mayo (1940), 143 Fla. 707, 197 So. 495.) We believe that application of the above-stated redelegation doctrine is appropriate in the present case.

A thorough scrutiny of the Act conclusively establishes that the legislature intended that the Board alone should possess the power to promulgate air-quality standards. Section 5(b) provides that the Board “shall determine, define and implement the environmental control standards” in this State. Section 5(a) recites that the Board shall consist of “5 technically qualified members.” In the absence of any evidence to the contrary, we believe that the legislature intended that the Boárd exercise its discretion and apply its expertise in evaluating and promulgating the proper standards governing air quality. It was up to the legislature to vest by appropriate language express or implied authority in the Board to redelegate its duty. The legislature did not do so, and accordingly the Board’s attempt to redelegate its duty on its own in the form of Rule 303(e) was futile. Rule 303(e) has no validity. ,

The primary thrust of Commonwealth’s final contention is that Board Rules 203(g)(1) and 204(a)(1) and (c)(1)(A), which limit emissions of particulates and sulfur dioxide from new and existing fuel-combustion stationary sources, are arbitrary and unreasonable as applied to it. The argument is based upon the number of generating units and the nature of operations maintained by Commonwealth.

We will not set forth the operations pertaining to Commonwealth described in the voluminous record before us for the reason that we do not believe an “as applied” argument can be successfully urged in a proceeding such as this.

Substantive rules of this nature are promulgated for general, not special, application. Consequently, investigators for the Board gather facts and solicit expert advice in regard to pollution problems affecting all types of companies in a particular trade. In a case like the present one, the Board would have been charged with investigating facts and operations of all types of generating units — single- and multi-unit, commercial, industrial, and public utility— and from these surveys extrapolate the appropriate principles and propose the necessary regulations. The Board cannot be expected to research, evaluate, and make allowance for every special, unusual, or unique problem involving every producer of electrical energy. Where one fails to challenge the rules generally and instead seeks to relax their enforcement against him exclusively due to arbitrary and unreasonable hardship, the legislature has determined that the appropriate remedy is for the aggrieved party to seek a variance in accordance with Title IX of the Act. If that is denied, the aggrieved can petition to this court for review based on the record at that proceeding. We hold, therefore, that Commonwealths “as applied” argument cannot be raised at this stage of review.

We next consider Commonwealth’s challenge to the general validity of the rules in question. The statute sets out the appropriate standard governing the proper promulgation of substantive rules by the Board. Section 27 states in pertinent part that “the Board shall take into account the existing physical conditions, the character of the area involved, • * * the nature of the existing air quality, * * * anti the technical feasibility and economic reasonableness of measuring or reducing the particular type of pollution.” The Board maintains that upon a showing in the record that a single individual emission source can conform technically and economically to the rules, Commonwealth’s contention that the rules do not evidence the Board’s compliance with the requirement that they evidence technical feasibility and economic reasonableness must fall.

Predicating the validity of these rules upon such a lowest-common-denominator standard cannot be rationalized. Such a proposition fails to take into account any specific reason why the one unit was able to comply. The rules cannot be upheld in such a vacuum. We believe that the rules in question should be found valid when one can reasonably infer from the evidence in the record that the Board con-eluded in promulgating the rules that it was technically feasible and economically reasonable for a substantial number of the individual emission sources in this State to comply by the specified deadline.

We must also determine what the appropriate scope of our review should be. An administrative agency’s exercise of its rulemaking powers is legislative in appearance and function. In promulgating rules prospective in application, it acts as “a minor legislative body considering proposed legislation under á grant of power.” (Consolidation Coal Co. v. Kandle (1969), 105 N.J. Super. 104, 113, 251 A.2d 295, 300.) Thus, we hold that a regulation need not be supported by substantial evidence; rather it will be deemed valid unless shown to be arbitrary, capricious, unreasonable, or otherwise not in accordance with the law. See Illinois Coal Operators Association v. Pollution Control Board (1974), 59 Ill.2d 305.

The rules in question read as follows:

“Rule 203 — Particulate Emission Standards and Limitations « « «
(g) Particulate Emission Standards and Limitations for Fuel Combustion Emission Sources.
(1) Fuel Combustion Emission Sources Using Solid Fuel Exclusively.
(A) Existing Fuel Combustion Emission Sources Using Solid Fuel Exclusively Located in the. Chicago Major Metropolitan Area. No person shall cause or allow the emission of particulate matter into the atmosphere from any existing fuel combustion source using solid fuel exclusively, located in the Chicago major metropolitan area, to exceed 0.1 pounds of particulate matter per million btu of actual heat input in any one hour period except as provided in sub-paragraph (C) of this Rule 203(g) (1).
(B) Existing Fuel Combustion Emission Sources Using Solid Fuel Exclusively Located Outside the Chicago Major Metropolitan Area. No person shall cause or allow the emission of particulate matter into the atmosphere from any existing fuel combustion source using solid fuel exclusively, located outside the Chicago major metropolitan area, to exceed the limitations specified in Table 2.4 and Figure 2.3 in any one hour period except as provided in sub-paragraph (C) of this Rule 203 (g)(1):
(C) Existing Controlled Fuel Combustion Emission Sources Using Solid Fuel Exclusively. Notwithstanding sub-paragraphs (A) and (B) of this Rule 203(g)(1), any existing fuel combustion source using solid fuel exclusively may emit up to, but not exceed, 0.2 pounds per million btu, if, as of the effective date of Part 2 of this Chapter, either of the following conditions is met:
(i) The emission source has an emission rate based on original design or equipment performance test conditions, whichever is stricter, which is less than 0.2 pounds per million btu of actual heat input, and the emission control of such source is not allowed to degrade more than 0.05 pounds per million btu from such original design or acceptance performance test conditions; or, (ii) The source is in full compliance with the terms and conditions of a variance granted by the Pollution Control Board sufficient to achieve an emission rate less than 0.2 pounds per million btu, and construction has commenced on equipment or modifications prescribed under that program; and emission control of such source is not allowed to degrade more than 0.05 pounds per million btu from original design or equipment performance test conditions, whichever is stricter.
(D) New Fuel Combustion Emission Sources Using Solid Fuel Exclusively.
No person shall cause or allow the emission of particulate matter into the atmosphere in any one hour period from any new fuel combustion emission source using solid fuel exclusively, to exceed 0.1 pounds of particulate matter per million btu of actual heat input.

PROVISO: Nothing in this rule 203(g) (1) shall be construed to apply in any manner inconsistent with the following paragraph 8 (B) of an 'order of the Circuit Court of Cook County dated April 13, 1972 in case no. 72 CH 1484:

The defendants, and each of them, their agents, employees, and attorneys, are hereby restrained for a period of ten days from the date hereof from (1) adopting or from (2) holding or conducting, scheduling or rescheduling public hearings pertaining to the adoption of proposed Rule 203(g) (1) (A) of the Illinois Pollution Control Board and so much of proposed Rule 203(g) (1) (C) of the Illinois Pollution Control Board as pertains to proposed Rule 203(g) (1) (A), insofar as such rules pertain to the use of coal as a source of fuel in residential and commercial buildings in the Chicago Major Metropolitan Area, or from (1) adopting or from (2) holding or conducting public hearings to adopt a rule which would eliminate or ban the use of coal as a source of fuel in residential and commercial buddings in the Chicago Major Metropolitan Area as such area is defined by the Illinois Pollution Control Board, unless there is a provision in said proposed rule for just compensation to owners of businesses in the class represented by plaintiffs and to owners of commercial and residential buildings whose property rights would be affected by said rule wherever said rule is effective.

And such further orders as may be entered by the Court.

Rule 204: Sulfur Standards and Limitations

(a) Sulfur Dioxide Emission Standards and Limitations for New Fuel Combustion Emission Sources with Actual Heat Input Greater than 250 Million Btu per Hour.
(1) Solid Fuel Burned Exclusively. No person shall cause or allow the emission of sulfur dioxide into the atmosphere in any one hour period fom any new fuel combustion emission source greater than 250 million btu per hour, burning solid fuel exclusively, to exceed 1.2 pounds of sulfur dioxide per million btu of actual heat input. 4 4 4
4 " 4 4
(c) Sulfur Dioxide Emission for Existing Fuel Combustion Sources. (1) Solid Fuel Burned Exclusively.
(A) Existing Fuel Combustion Sources Located in the Chicago, St. Louis (Illinois) and Peoria Major Metropolitan Areas. No person shall cause or allow the emission, of sulfur dioxide into the atmosphere in any existing fuel combustion source, burning solid fuel exclusively, located in the Chicago, St. Louis (Illinois) and Peoria major metropolitan areas, to exceed 1.8 pounds of sulfur dioxide per million btu of actual heat input, on or after May 30, 1975. 9 9 9»

The 1967 regulations adopted by the Air Pollution Control Board, the predecessor to the Board in this State, ordered that the emissions of particulates from coal-fired generating units be limited to .6 pounds per million Btu of heat input. Apparently this was the first time that this State had set a limitation for particulate emissions. From the expert testimony at the hearings in this cause regarding the operation of centrifugal and electrostatic precipitators, which are used to control such limitations, we can infer that substantial sums of money had to be expended to comply with the 1967 regulations by either retiring the generating units or upgrading the collection efficiencies for the existing sources.

Rule 203(g)(1) would now place a further limitation on allowable particulate emissions, specifically, .2 pounds per million Btu of heat input. No prior rule limited the emissions of sulfur dioxide. Rule 204(a) (1), as enforced, would now limit emissions from new coal-fired generating stations to 1.2 pounds per million Btu of heat input, with Rule 204 (e)(1)(A) limiting such emissions from existing coal-fired generating units in the Chicago and Peoria Major Metropolitan Regions to 1.8 pounds per million Btu of heat input.

Upon a complete review of the record, we are compelled to conclude that Rules 203(g)(1) and 204(a)(1) and (c)(1)(A) were not promulgated in accordance with the law and must be viewed as arbitrary and unreasonable.

There are but a few options that a generating source can employ to comply with both of these rules simultaneously. Although a total conversion from coal to natural gas or low-sulfur oil as the fuel supply might enable a source to comply with these rules, the Board itself recognized in its opinion that there is insufficient known supply of either of these resources to permit such a change now. Total conversion to nuclear energy is also not presently feasible. Therefore, coal must remain the principal source of energy for most of the electrical output users for the foreseeable future. In our view, the record fully supports Commonwealth’s claims that there are only two options which could conceivably achieve compliance with both the challenged rules simultaneously: (1) the full conversion to the use of low-sulfur coal, which would satisfy Rule 204, combined with either the adoption of new, or the remodeling of existing, electrostatic precipitators or other type of collection efficiency systems installed on the electrical generating units, which would meet the new particulate limitations set out in Rule 203; or (2) the continued use of high-sulfur coal and the collection efficiency systems programmed to that type of coal, which would meet Rule 203, combined with the use of removal processes, which would satisfy the requirements of Rule 204.

It is clear that the Board rejected the first option as a nonviable method of achieving compliance by the May 30, 1975, deadline. .Several witnesses agreed that one of the most important factors affecting the rate of emission of particulates is the efficiency of precipitators and other cleaning equipment. This equipment is presently geared to the use of high-sulfur coal. A change to the use of low-sulfur coal would have an adverse effect on the collection efficiencies of the precipitators due to the fact that the ash in this type of coal would cause a high electrical resistivity. This fact was confirmed by a key witness for the Agency, Professor Lyon Babcock, who testified:

“I did not include [the use of low sulfur coal] in my calculations. It is my understanding that the low sulfur coal will change the resistivity of the particles in the flue gas and decrease the collection efficiency of certain installed electrostatic precipitators. It is my personal feeling that electrostatic precipitators currently in use were rather well designed, developed, optimized for the specific coal that they were handling.
« * *
Well, it would take admittedly significant developmental work * * *. Eventually, it would conceivably require quite an amount of redesign of the electrostatic precipitators, and the TVA has several things under development at the moment, investigating this specific problem.” Record at 602.

Moreover, the testimony at the hearing regarding the apparent uncertainty of obtaining the needed amount of low-sulfur coal from the West as well as the great cost which may be involved in obtaining it also appeared to have had an effect upon the Board. As it stated at page 33 of its opinion:

“Our standard is phrased in terms of pounds of emission per unit of heat input rather than in terms of sulfur content of the fuel, both to discourage resort to fuels of low sulfur content and low heating value that might pollute just as badly as that they replaced, and to allow for the use of equipment to permit the combustion of high-sulfur fuels by removing sulfur dioxide from the exhaust gas.”

In focusing upon the installation of sulfur-removal devices contemplated by the second approach to meeting its two rules, the Board stated that enough evidence had been shown that the devices would work. It pointed out that a “number of films” have constructed “sulfur control plants” which utilize “principles of sulfur oxide treatment * * * considerably beyond the laboratory stage”; that three full-sized units employing a wet limestone process had been constructed and operated in England prior to World War II; that a Swedish company had installed a similar unit on a hospital boiler that had operated for 6 months at a good removal efficiency percentage; that there are “existing demonstration projects” around the country “embodying various technologies”; and that manufacturers reportedly were prepared to sell sulfur-removal equipment and guarantee its compliance with the regulations. Yet, immediately after the above statements, the Board recognized that operating problems had been shown to exist in some of the systems and that the performance guarantees made by the manufacturers of the equipment were riddled with conditions. At one point in its opinion, the Board expressly recognized what had been stressed at the hearings: more information had to be accumulated and results of ongoing operations had to be tested and analyzed to determine the effectiveness of the systems.

We do not believe that the legislature intended by section 27 that the Board would be limited by the technology of the sulfur-removal systems solely existent at the time of the adoption of its rules. (See International Harvester Co. v. Ruckelshaus (D.C. Cir. 1973), 478 F.2d 615.) However, to fulfill that statutory provision, there must be some factors to which the Board can point to show that its projection was reasonable and capable of compliance by a substantial number of the individual units in this State. Such evidence is absent in the present record. Again, Professor Babcock’s testimony becomes relevant. While he stated that 60 to 70 approaches for controlling sulfur dioxide emissions were being explored, only 5 were considered to be processes sufficiently well developed and advanced within the cycle of development to be capable of providing or contributing to the control of sulfur dioxide emissions within the next 5 years. Yet the five processes — low-sulfur fuel, dry-limestone injection, wet-lime and limestone-scrubbing process, magnesium oxide process, and catalytic process — either had specific limitations or required further development. The hearings revealed that the principles of sulfur removal were known but that their application was not.

From our reading of the record, we are unable to state that the Board took into account the technical feasibility of these rules. In so ruling, we are not commenting on the wisdom of the rules. That is not our province. Without any evidence that the needed systems are beyond the conceptually workable stage of development, it cannot be said that the Board’s rules rest upon any evidence of statutory compliance. See Incinerator, Inc. v. Pollution Control Board (1974), 59 I11.2d 290.

We further hold that there is no evidence that the Board took into account the economic reasonableness of these rules for a substantial number of the generating units in this State. The testimony at the hearings indicated the cost of the sulfur-removal systems would be great. Rather than presenting a formula indicating a balance between cost and pollution control or giving some concrete cost projections, the Board in its opinion offered general statements that there must be a “balancing [of] the benefits of the contemplated rule against its costs” and that greater costs may be needed to be absorbed “when the need for pollution abatement is greater.”

This court, whenever possible, will approve actions taken by the expert administrative agencies in this State charged with the public trust to cleanse our environment. The advancement of productive human life and human welfare predominate over all other considerations. However, we must also scrutinize the actions of the Board to be sure that they comply with the statute and with reason.

We recognize that possibly scientific evidence may have been developed since the hearing and the resultant Board opinion in this cause that may not demand a relaxation of these challenged rules. Accordingly, we remand this cause on this matter with instructions to the Board either to validate Rules 203(g) and 204(a)(1) and (c)(1)(A) in accordance with section 27 of the Act or to prepare proper rules as substitutes.

For all the reasons stated, the action of the Board in promulgating Rule 103(e)(1) is held valid. The enactment of Rule 303 is held to be void. The Board’s adoption of Rules 203(g)(1) and 204(a)(1) and (c)(1)(A) is reversed and remanded for further consideration in accordance with the views expressed in this opinion.

Affirmed in part; reversed in part; reversed in part and remanded.

DEMPSEY and McGLOON, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Robert E. Doby et al., Defendants-Appellants.
    (No. 59176;
    First District (2nd Division)
    December 17, 1974.
    Paul Bradley and Richard D. Thomas, both of State Appellate Defender’s Office, of Chicago, for appellants.
    Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., and Thomas D. Rafter, Assistant State’s Attorneys, of counsel), for the People.
   PER CURIAM.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Garthan Lee Glenn, Defendant-Appellant.
    (No. 59556;
    First District (2nd Division)
    December 17, 1974.
    James J. Doherty, Public Defender, of Chicago (David W. Hirschboeck, Assistant Public Defender, of counsel), for appellant.
    Bernard Carey, State’s Attorney, of Chicago, for the People.
   PER CURIAM.


author: Mr. JUSTICE MEJDA

text:
    Eufidel Alberty, Plaintiff-Appellant, v. David L. Daniel, Director of Cook County Department of Public Aid, Defendant-Appellee.
    (No. 59588;
    First District (3rd Division)
    December 19, 1974.

      Davis, Miner, Barnhill & Bronner, of Chicago (Charles Barnhill, Jr., and George F. Galland, Jr., of counsel), for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Sheldon Gardner and Edna Selan Epstein, Assistant State’s Attorneys, of counsel), for appellee.
   Mr. JUSTICE MEJDA

delivered the opinion of the court:

Plaintiff, Eufidel Alberty, brought action against David L. Daniel, Director of Cook County Department of Public Aid, seeking reinstatement to his position, back pay, and restoration of seniority. Plaintiff’s second amended complaint, in which he petitioned for a writ of certiorari, a writ of mandamus, and relief under the Federal Civil Rights Act of 1871 (42 U.S.C. § 1983 (1970)) was dismissed upon motion of defendant. Plaintiff appeals from the order of dismissal.

The issues on appeal raised exclusively on the pleadings are: (1) whether a state court has jurisdiction of an action predicated on 42 U.S.C. § 1983 of the Federal statutes; (2) whether a cause of action for violation of rules and regulations in the discharge of a probationary employee is stated; and (3) whether a cause of action for violation of civil rights under 42 U.S.C. § 1983 is stated.

Count I of plaintiff’s amended complaint, entitled “Petition for Writ of Certiorari,” states in substance that:

(1) plaintiff was a probationary employee of the Department of Public Aid from March 16, 1971, to May 9, 1971;
(2) defendant Director has the authority to discharge probationary employees only in accordance with the regulations of the Department;
(3) On May 9, 1971, plaintiff was presented with an evaluation report stating that his job performance was failing and that said evaluation was in error and prepared contrary to the rules of the Department in the following respects:
a) plaintiff’s supervisor was prejudiced against plaintiff because of race or national origin;
b) no regular conferences with his supervisor were afforded;
c) plaintiff was given less training in his job than customary;
d) plaintiff was given a disproportionately greater case load;
e) the evaluation did not specify the areas of performance in which plaintiff failed to meet minimum standards and was concerned only with the incidents occurring during a two-day period;
f) the evaluation was graded lower than deserved because of his supervisor’s prejudice against him; and
g) the evaluation, purportedly encompassing the work under two supervisors, was predicated on the opinion of one supervisor, the other rating plaintiff as a good employee;
(4) on May 9, 1971, plaintiff was dismissed from the Department on the basis of the evaluation;
(5) pursuant to Department rules, plaintiff filed a grievance, a hearing was held thereon, and the committee ruled that the evaluation was in error and recommended reinstatement;
(6) although grievance procedures exempt probationary employees, it has been the custom of the Department to accept grievances concerning the content and preparation of evaluations; and
(7) contrary to the grievance procedure established, defendant discharged plaintiff by arbitrarily refusing to follow the recommendation of the grievance panel.

Plaintiff further alleges that the Director refused to read the record and examine the evidence taken by the panel, allowed himself to be counseled by a person prejudiced against plaintiff, based his decision to discharge plaintiff on the ex parte counsel of a prejudiced employee and not upon the evidence or recommendations of the grievance panel, and failed to submit the reasons for plaintiff’s discharge to the civil service commission as required by law. Plaintiff further states that the Cook County Civil Service Commission denied review of plaintiff’s appeal from defender’s decision to discharge plaintiff, and that as a result of defendant’s refusal to abide by the rules of the grievance procedure and the failure of plaintiff’s evaluation to conform to and be supported by applicable Department rules, plaintiff was denied due process of law contrary to the constitutions of the United States and the State of Illinois.

In Count II, designated “Petition for Mandamus,” plaintiff realleges the above and further states that the “right sought to be enforced in this proceeding by petitioner is a public right, and the statutory duty which respondent refused to perform is a duty owned [sic] to the public.”

In Count III, entitled “Complaint for Discrimination,” plaintiff realleges the above and further states that the actions of the defendant and his agents were in violation of 42 U.S.C. § 1983 and constituted a violation of his civil rights.

I.

Initially, we consider the issue of whether the Illinois courts have jurisdiction to adjudicate claims for alleged violations of civil rights predicated on section 1983 of title 42 of the United States Code (42 U.S.C. § 1983 (1970)), which provides:

“Civil Action for Deprivation of Rights. Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.”

Defendant maintains that the remedy provided under section 1983 may be sought only in the Federal district courts and argues that section 1343 of title 28 of the United States Code (28 U.S.C. § 1343 (1970)) limits claims under section 1983 to the Federal courts which have exclusive jurisdiction in such matters. Defendant claims that this is analogous to matters arising out of Federal bankruptcy laws that preclude State courts from hearing cases predicated upon the Federal bankruptcy law. Section 1343 of title 28 (28 U.S.C. § 1343 (1970)) provides in pertinent part:

“Civil Rights and Elective Franchise. The district courts shall have original jurisdiction of any civil action authorized by law to be commenced by any person: * # #
(3) To redress the deprivation, under color of any State law, statute, ordinance, regulation, custom or usage, of any right, privilege or immunity secured by the Constitution of the United States or by any Act of Congress providing for equal rights of citizens or of all persons within the jurisdiction of the United States; * * *.”

Plaintiff relies on People v. Fort (1971), 133 Ill.App.2d 473, 273 N.E.2d 439, and Chicago Welfare Rights Organization v. Weaver (1972), 5 Ill. App.3d 655, 284 N.E.2d 20, as supporting the maintenance of the action in the state courts. Although these cases were commenced in Illinois courts, predicated upon section 1983, the question of jurisdiction was not considered nor determined in either instance. We have, however, reviewed the few decisions considered by our sister states.

In Perry v. Apache Junction Elementary School District #43 (1973), 20 Ariz. App. 561, 514 P.2d 514, 516, the Arizona Appellate Court held that the appellant should be allowed to put on proof of any denial of due process and damages caused thereby. The court referred to its previous holding in New Times, Inc. v. Arizona Board of Regents (1973), 20 Ariz. App. 422, 513 P.2d 960, where it held that 28 U.S.C. § 1343 does not confer an exclusive jurisdiction upon the federal courts to adjudicate claims founded upon 42 U.S.C. § 1983. The court held that although tire federal courts have original jurisdiction in such matters the state courts possess concurrent jurisdiction. See also Lakewood Homes, Inc. v. Board of Adjustment (C.P. Allen County 1970), 23 Ohio Misc. 211, 52 Ohio. Op. 2d 213, 258 N.E.2d 470, aff’d in part, rev'd in part (1971), 25 Ohio App. 2d 125, 54 Ohio Op. 2d 306, 267 N.E.2d 595.

In Chamberlain v. Brown (Tenn. 1969), 442 S.W. 2d 248, 252, the Supreme Court of Tennessee, after an examination of the legislative history of 42 U.S.C. § 1983, stated that “it would be illogical indeed to hold that a State court should enforce, or is required to enforce, an alleged cause of action which owes its very existence to congressional recognition of reluctance or refusal of State courts to act.” We disagree with and choose not to follow the holding in Chamberlain for the very reason that although the historical background and the congressional records as recited by the court pertinent to this legislation indicate that the statute creating the action was directed to the Federal trial forum, there is no evidence that the action was limited to the exclusive jurisdiction of the Federal courts. The provisions of 28 U.S.C. § 1343 confer upon injured parties the right to maintain an action based on section 1983 in the Federal courts without the necessity of satisfying jurisdictional requirements of the diversity of citizenship and amount in controversy. The practical considerations as to pursuing relief in the federal or state courts are left to the individual litigants. We conclude that the courts of the State of Illinois have concurrent jurisdiction with the Federal courts to hear claims founded upon alleged violations of 42 U.S.C. § 1983.

II.

Next to be considered is the sufficiency of plaintiff’s allegations in the second amended complaint to state a cause of action. Plaintiff has asserted three separate alleged violation's of rules and regulations, and in addition, a claimed violation of civil rights under the Federal statute. Defendant’s first contention thereto is that thé plaintiff, ás a’probationary employee, had no constitutionally protected right either to be retained as a probationary employee or to be promoted to permanent status. He therefore argues that plaintiff was not denied due process of law by his summary discharge in the absence of such right. Nevertheless, the courts of this State have recognized the rights of probationary employees not to be discharged except according to law. See People ex rel. Shelton v. City of Chicago (1973), 13 Ill.App.3d 729, 301 N.E.2d 162.

In the instant case plaintiff has alleged that defendant failed to submit in writing to the civil service commission the reasons assigned for plaintiffs discharge, as required by law. The statute specifies that a probationary employee serves at the discretion of the appointing officer or the executive head of the department in which such employee is then employed (Ill. Rev. Stat. 1971, ch. 34, par. 1118). Rule VI-4 of the Civil Service Commission of Cook County relative thereto states: “While serving his probationary period, any person may have his employment in the service terminated by the officer having the power of appointment upon such officers assigning in writing the reasons for such termination and with the consent of the Commission.” (Emphasis supplied.)

In Fish v. McGann (1903), 205 Ill. 179, 188, 68 N.E. 761, the supreme court held that under the terms of the statute, the head of the department must assign in writing his reasons for discharging an appointee. In Rose v. Civil Service Com. (1957), 14 Ill.App.2d 337, 340, 144 N.E.2d 768, this court more specifically stated:

“Thus, only two things are required by law to make the discharge of a probationer effective: 1. The assignment of a reason therefor to tire Commission; and 2. The consent of the Commission to the discharge.”

Again, in People ex rel. Vestuto v. O’Connor (1953), 351 Ill.App. 539, 543, 115 N.E.2d 810, the court held:

“We presume that the ‘consent’ required under sec. 10 of the City Civil Service Act was intended as a check upon the arbitrary action of a department head. * * * The right to have his discharge consented to by the Commission was a substantial right of Vestuto.
The term consent implies an intellectual act giving assent (People v. Walker, Gen. No. 45957 [351 Ill.App. 545], opinion filed concurrently with this opinion). Consent implies a knowledge of the facts. We think that the knowledge needed for consent is that which the ordinary prudent person would require before giving assent to as serious a matter as the discharge of a probationary patrolman.”

While the consent required in the statute is only as to the discharge and not as to the reason set forth (People ex rel. Heffernan v. Smykal (1957), 13 Ill.App.2d 342, 349, 142 N.E.2d 133), and although a plaintiff is not entitled to a hearing before the commission upon the alleged real reason for his discharge (People ex rel. Wiechern v. Smykal (1957), 12 Ill.App.2d 398, 139 N.E.2d 839), it is established that a probationary employee may be discharged without a hearing with the commission’s consent, provided the head of the department follows the procedure authorized in Rose v. Civil Service Commission, sv/pra. In the instant case, plaintiff has alleged that no written assignment of reasons for his discharge was tendered to the commission. The allegations are sufficient to sustain an action that defendant violated Rule VI-4 of the Civil Service Commission of Cook County in discharging plaintiff.

III.

Defendant agrees with plaintiff that he, as director of an administrative agency, was required to follow his own rules and regulations in establishing a detailed procedure for the evaluation of probationary employees. Plaintiff reasons that the purpose of the procedure is to protect probationary employees from losing their jobs on tire basis of unfair evaluations and that since the procedure of interim evaluations, regular conferences or written recommendations supported by documentation was not followed, a substantial right of tire plaintiff was violated. Defendant responds that the Illinois statute (Ill. Rev. Stat. 1971, ch. 34, par. 1118) and Rule VI-4 of the Cook County Civil Service Commission specifically exempt probationary employees from the safeguards against discharge accorded to permanent employees.

Plaintiff has set forth in his complaint a memorandum of the Cook County Department of Public Aid, dated April 5, 1968, entitled “Evaluations on Probationary Employees,” which provides in part:

“1. A ninety (90) day or interim evaluation must be submitted on every employee who is serving his probationary period,
2. A six (6) month or final evaluation must be submitted at the end of the probationary period.
a a a
4. It is essential that regular conferences be held with employees who are serving their probationary period * * * and should be held frequently enough to assure full and complete periodic review of the employee’s performance.
a a a
6. « a # [Recommendations for a release of an employee are based upon the observation and judgment of the supervisors * a a [N]o action can be taken on such recommendations unless they are supported by proper documentation which gives specific information concerning the areas of performance in which the employee has failed to meet minimum standards.”

We find that the procedures established do not limit the right and duty of defendant to make independent evaluations of probationary employees in proper cases. The allegations in the conplaint indicate that •plaintiff was employed for less than 8 weeks and, accordingly, a 90-day or a 6-month evaluation would have been premature at the time of his discharge. While the memorandum provides for regular conferences it does not specify when they were to be held. Plaintiff has failed to allege any facts establishing, either by custom or otherwise, the regularity required for such conferences. Defendant admits in his brief to this court that plaintiff received an unsatisfactory evaluation on his job performance and was dismissed from employment as a result of that evaluation. While plaintiff did allege that the evaluation was based on the opinion of one supervisor, he further alleges that he would not have received a failing mark if the evaluation had been properly weighted by consultation with other supervisors. Plaintiff has failed to allege any regulation or procedure of the department requiring that evaluations shall be so weighted, nor is there any allegation that the allegedly prejudiced supervisor either recommended plaintiff’s release or prepared his evaluation upon which the discharge was based, contrary to the prescribed procedure. The principal purpose of the evaluation procedure is not to protect the rights of probationary employees, as plaintiff contends, but rather, to aid the department head in making a determination to either discharge or retain such employee. We conclude that the second amended complaint fails to state a cause of action against defendant for failing to follow the rules and regulations for the evaluation of plaintiff as a probationary employee.

IV.

Plaintiff next contends that defendant is estopped to deny plaintiff’s right to pursue the department grievance procedure and that, since the grievance was accepted, the defendant is bound to base his final action on the findings and recommendation of the grievance hearing panel. Plaintiff’s second amended complaint incorporates therein and sets forth Cook County Department of Public Aid Bulletin 68.21, entitled “Steps in Formal Grievance Procedure,” which provides in relevant part:

“Step 5. a. If the grievance is not resolved to the employee’s • satisfaction, such employee may, within 5 working days after the Grievance Hearing Panel has rendered its decision, request, in writing, that the Department Director review the decision. The Director will review the decision and approve, disapprove, or modify the findings of the Grievance Hearing Panel.
b. * * * If the Panel’s recommendation concurs with the action already taken, this fact will be noted by the Director. If the Panel’s decision does not concur with the action already taken, the Panel’s written report shall indicate the new facts and what it deems to be appropriate action. The Director shall decide whether he wishes to modify the original decision or to let the decision stand as previously determined.”

Plaintiff alleges in his complaint that he filed a grievance over the failing evaluation which was accepted and a hearing was held; that the hearing panel ruled that the evaluation upon which plaintiff had been discharged was in error, null and void, and recommended his reinstatement; that defendant arbitrarily refused to follow the recommendation, failed and refused to read the record and to examine the evidence prior to his decision to ignore the recommendation; and that defendant permitted himself to be counseled secretly by an employee prejudiced against plaintiff, and based his decision on the secret appeal and evidence dehors the record. The above mentioned Bulletin 68.21 expressly states that the discharge of probationary or temporary employees is not subject to the grievance procedure. Nonetheless, a grievance proceeding was granted and held. However, in order for the defendant to be required to review the decision and approve, disapprove or modify the findings of the grievance hearing panel, it was necessary for plaintiff to “request, in writing, that the Department Director review the decision” as provided in step 5(a) of the bulletin. We find no allegation that such a written request had been made from which the defendant would have been required to take the further actions prescribed in the bulletin. We therefore conclude that the complaint is insufficient to sustain a cause of action based upon defendant’s alleged failure to follow the formal grievance procedure in effecting plaintiff’s discharge.

V.

In Count III of the second amended complaint, plaintiff alleges, by incorporating the allegations of Count I, inter alia, that his supervisor was prejudiced against him because of his race and/or national origin and consistently treated him differently; that his evaluation was graded lower than deserved because of his supervisor’s prejudice against him; that he was dismissed apparently on the basis of the evaluation; and that plaintiff was given a case load twice the size of those given English-speaking employees. Plaintiff further alleges that the actions of defendant and his agents were in violation of 42 U.S.C. § 1983.

As noted before, defendant in his brief has admitted that plaintiff received an unsatisfactory evaluation on his job performance and was discharged as a result of such evaluation. Upon a review, we conclude that the allegations of Count III are sufficient to state a cause of action predicated on an alleged violation of 42 U.S.C. § 1983.

VI.

For the reasons stated, the judgment of the trial court dismissing Counts I, II and III of plaintiff’s second amended complaint is reversed and the cause remanded for further proceedings not inconsistent with this opinion.

Reversed and remanded.

McNAMARA, P. J., and DEMPSEY, J., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellant, v. William Werholick et al., Defendants-Appellees.
    (Nos. 60308-12 cons.;
    First District (3rd Division)
    December 19, 1974.
    Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., and Michael F. Baccash, Assistant State’s Attorneys, of counsel), for the People.
    No brief for appellees.
   PER CURIAM.


author: Mr. JUSTICE McGLOON

text:
    Edward Fandrich, Plaintiff-Appellant, v. Allstate Insurance Company, Inc., Defendant-Appellee.
    (Nos. 58005, 58207 cons.;
    First District (3rd Division)
    December 19, 1974.

      Rehearing denied January 16, 1975.

      A. Denison Weaver, of Chicago, for appellant.
    C. Roy Peterson, Richard E. Mueller and Hugh C. Griffin, all of Lord, Bissell & Brook, of Chicago, for appellee.
   Mr. JUSTICE McGLOON

delivered the opinion of the court:

This is an appeal from an action brought under the Structural Work Act (Ill. Rev. Stat. 1965, ch. 48, pars. 60 — 69) and common law negligence. The plaintiff, Edward Fandrich, was injured when the boom and jib of a construction crane fell on him, but a jury found for the defendant, Allstate Insurance Company, Inc. Judgment for defendant was entered upon the verdict by the circuit court of Cook County. Plaintiff appeals from the adverse judgment, raising three issues for our consideration: (1) whether a venireman insured by the named defendant is qualified to act as a juror; (2) whether the plaintiff was prejudiced by the court’s admission of certain evidence and exclusion of other evidence; and (3) whether the verdict was contraiy to the manifest weight of the evidence.

We affirm.

The evidence at trial revealed that on February 23, 1966, plaintiff was employed as a journeyman carpenter by W. E. O’Neil & Co., a general contractor engaged by the Allstate Insurance Company to construct Allstate’s new home office complex in Northbrook, Illinois, a northern suburb of Chicago. During the course of his work at the Allstate site, Mr. Fandrich sustained severe injuries when he was struck by the 110-foot-long boom and attached jib of a 50-ton truck crane which toppled over. Immediately preceding the incident, the wheeled crane was being operated on a dirt road on the construction site, and was in the process of attempting to traverse a slight incline which was slippery and mushy due to a thawing of the frozen February soil. The crane driver encountered a lack of traction, so he backed the crane up and then proceeded forward. The wheels still slipped and spinned in the soil, so he repeated the process with little success. During the third backing up maneuver, the crane capsized.

Eyewitnesses testified that the boom was at an angle of between 50° and 70° and that an empty bucket used to transport concrete, weighing between 700 and 800 pounds, was suspended from the crane and was swinging back and forth like a pendulum. Testimony was given that there was not a signalman on the ground to direct the crane driver. 'Other testimony was elicited by plaintiff that timber mats were not used :to improve the cranes traction on the slippery ground. Plaintiff’s theory <of the case was that the crane’s boom elevation combined with the un'dulating bucket to cause the crane to become topheavy, and that the failure to use timber mats and a signalman constituted negligence and ;a violation of the Structural Work Act.

Defendant’s theory was that the evidence did not show that anyone was negligent or that anyone’s negligence had anything to do with the ¡accident. Testimony was given that the crane was being used in its customary manner and in its customary place, and that the angle of the boom was usual, so as to keep the weight of the boom centered over the (crane. After plaintiff’s witness testified concerning the nonuse of timber ?mats, defendant’s cross-examination established that mats were normally used under a stationary crane to keep it from sinking in a swamp, but not under a moving crane such as was in this case. Neither the foreman nor the crane driver knew why the crane tipped over.

A key issue in the case was whether or not the defendant was in charge of the work being done so as to fall within the purview of the .Act. Briefly summarized, the evidence supporting the jury’s verdict ¡showed that the contractor, O’Neil, ran the entire job of hiring the workmen, issuing all orders to the tradesmen, and directly supervising the 'O’Neil employees who were involved in moving the crane. The undisputed testimony of the workmen, including the plaintiff, was that the ■only persons who ever issued orders concerning the manner and method iof performing the work were the O’Neil foremen.

Plaintiff’s first contention on appeal pertains to the fact that the jury which returned a verdict for defendant Allstate Insurance Company was composed in part of five jurors who were insured by the defendant at ■the time of trial. It is alleged that the trial court erred in refusing to excuse the Allstate-insured jurors for cause, that these jurors were unqualified, and that plaintiff was deprived of a fair trial. Although plaintiff has raised the point, we will not consider the merits of the problem because plaintiff failed to properly raise the question in the trial court. Plaintiff’s opposition to the Allstate-insured jurors was confined to informal, off-the-record questions to the trial court of whether the court would excuse those jurors for cause. The court replied in the negative.

A formal objection or a motion to dismiss a juror for cause was never presented to the trial court.

In People v. Adams (1954), 4 Ill.2d 453, 458, the Illinois Supreme Court held that a party with an objection to the competency of a juror “should explicitly make known to the court the nature of his objection, and move the court for the particular relief desired.” The informal, off-the-record inquiry in that case was insufficient to preserve the defendant’s objection, if any, to the competency of jurors. In the instant case, we hold that the plaintiffs failure to formally object to the veniremen insured by the named defendant insurance company and move for dismissal of the veniremen for cause constituted a waiver of plaintiff’s objections, if in fact plaintiff had a bona fide objection to the veniremen.

Plaintiff’s next contention on appeal related to the trial court’s ruling on two items tendered into evidence; defendant’s group exhibit no. 1 and plaintiff’s exhibit no. 81. It is argued that the trial court’s rulings were prejudicial to the plaintiffs right to a fair trial. Defendant’s group exhibit no. 1 is a letter from the general contractor, W.E. O’Neil & Co., to Allstate, soliciting the contract from Allstate. The letter tells how experienced and competent O’Neil is, and lists the important buildings and bridges it has constructed. The only foundation laid for the letter was the testimony of an Allstate employee that the letter was received by Allstate in the regular course of business. Plaintiff objected to the letter’s • admission, into evidence on the grounds of relevancy, but the trial court overruled the objection and admitted the letter into evidence. The defendant contends that the letter was relevant because it showed the care Allstate used in letting the contract, which bears upon the issue of whether .there was a wilful violation of the Structural Work Act. Plaintiff argues on appeal that Allstate’s method for selecting a general contractor was irrelevant to any of the issues of the case, and particularly irrelevant to the wilful-violation issue, arguing that a contractor’s expert status does not exculpate an owner in charge of the work from liability under the Act.

One of the elements to be decided in a Structural Work Act case is whether or not there was a wilful violation of the Act. In Tenebaum v. City of Chicago (1973), 11 Ill.App.3d 987, 1000, the court discussed the element of wilfulness and concluded that the "essence of the Structural Work Act is not limited to the concept of knowing or intentional misconduct or even to reckless disregard. Liability is imposed where the existence of dangerous conditions could have been discovered by reasonable care.” The question in the instant case, therefore, is whether or not Allstate’s care in selecting a contractor may have been probative of Allstate’s use of reasonable care in discovering a dangerous-condition on the job site.

An owner in charge of the work who hires a contractor he knows to be inexperienced may have to supervise the job site more carefully than an owner who hires an expert in order to exercise reasonable care. Although Allstate’s care in the selection of a contractor is not conclusive of its exercise of reasonable care in discovering dangerous conditions on the job site, or exculpatory under the Act, we feel the letter was properly admitted within the sound discretion of the trial court as being relevant.

PlaintiíFs other objections to the admission into evidence of defendant’s group exhibit no. 1 were raised in the trial court for the first time in plaintiff s post trial motion. Although plaintiff contends on appeal that the inherent defects of hearsay, improper foundation, self-serving statement, and the mention of Workmen’s Compensation insurance were not waived, citing Johnson v. Jackson (1963), 43 Ill.App.2d 251, we disagree. In that case, the court held that a general objection is sufficient to preserve unstated grounds of objection which are obvious and incurable. The question in the instant case is whether the unstated grounds of objection were obvious and incurable so as to be preserved for appeal without having been specifically raised in the trial court.

The hearsay objection was not obvious because the letter was not objectionable as hearsay. The letter was not introduced to show the truth of matters contained therein; rather, it was introduced for the sole purpose of showing the information Allstate received from O’Neil as bearing upon Allstate’s reasonableness in selecting a contractor. The letter falls outside the hearsay rule. McCormick on Evidence § 249, at 589-90 ( 2nd ed. 1972).

Inasmuch as the letter was not hearsay, the improper foundation objection was not obvious. Had the letter been offered for the truth of its contents, the business records exception to the hearsay rule contained in Supreme Court Rule 236(a) would have applied and required a proper foundation for the introduction of the letter. However, the letter was not hearsay for the purposes that it was introduced and the business records exception to the hearsay rule is inapplicable under these facts.

The self-serving statement objection was also not obvious. As plaintiff notes, self-serving declarations by a party or on behalf of a party are inadmissible as evidence in favor of the party. (Werdell v. Turzynski (1970), 128 Ill.App.2d 139, 150.) The letter from O’Neil to Allstate was not a self-serving statement by Allstate because it was not written by Allstate. As to plaintiff’s contention that the letter was written by O’Neil on Allstate’s behalf, we note that although the form of the letter may have been specified by Allstate for its administrative purposes, the substance of the letter was solely within O’Neil’s control and was not a self-serving statement by Allstate.

Regarding the objection concerning the oblique reference in the letter to O’Neil’s discount on compensation insurance, suffice it to say that the error, if any, was curable but waived by plaintiff. Inasmuch as the abovementioned objections to defendant’s group exhibit no. 1 were raised by plaintiff for the first time in his post-trial motion and were not so obvious or incurable so as to be properly preserved for appeal, we need not consider the objections further.

Plaintiff’s exhibit 81 was excluded from evidence on the grounds of relevancy. The exhibit is a letter from Allstate to O’Neil requesting that O’Neil hire two students as summer construction workers. The latter was dated May 26, 1966, 3 months and 3 days after the date of the accident. Plaintiff contends that the letter was relevant to the control Allstate had over O’Neil, and was improperly excluded. In Larson v. Commonwealth Edison Co. (1965), 33 Ill.2d 316, 323-24, the Illinois Supreme Court briefly discussed the rule that evidence of repairs or precautions taken after an accident may be admissible to show control of premises where such control is disputed in a Structural Work Act case. Although the plaintiff in the instant Structural Work Act case did not cite any authorities in support of his argument, we wish to point out that the facts at bar do not involve repairs effected after an accident; rather, they involve a letter written 3 months after the accident involving a matter marginally related to control over the manner of the performance of the work or control of the premises.

The admission of evidence is within the sound discretion of the trial court, whose rulings will not be set aside absent a showing that its discretion was abused to the prejudice of a party. (Department of Public Works & Buildings v. Dalessio (1968), 101 Ill.App.2d 187.) In the instant case, the trial court did not abuse its discretion to the prejudice of plaintiff by refusing to admit the letter into evidence, and plaintiff’s right to a fair trial was not prejudiced.

Plaintiff’s final contention on appeal is that the jury’s verdict for defendant on both counts of the complaint was against the manifest weight of the evidence. Regarding the negligence count, plaintiff argues that the evidence showed O’Neil to have been Allstate’s agent as a matter of law and fact, thus making Allstate liable in tort under the principle of respondeat superior. Regarding the Structural Work Act count, it is argued that the manifest weight of the evidence showed Allstate to have been “in Gharge” of the work and to have wilfully violated the Act. Allstate’s position is that O’Neil was an independent contractor, that Allstate was not in charge of the work, and that there was not a wilful violation of the Act.

We first consider the plaintiff’s agency arguments pertinent to the negligence count. The general rules of law to be followed in such cases were compiled in Dumas v. Lloyd, (1972), 6 Ill.App.3d 1026, 1029-30, wherein the court wrote:

“Of primary consideration in the determination of whether a person is acting as an independent contractor or as an agent or employee is tire degree and character of control exercised over the work being done. (See Decatur Railway & Light Co. v. Industrial Board, 276 Ill. 472, 114 N.E. 915.) When one undertakes to produce a given result without being in any way controlled as to the method used, he is considered an independent contractor and not an employee. (Hartley v. Red Ball Transit Co., 344 Ill. 534, 539, 176 N.E. 751.) But the relationship of principal and agent exists if the principal has the right or the duty to supervise and control, and also die right to terminate the relationship at any time. (Hulke v. International Manufacturing Co., 14 Ill.App.2d 5, 33, 142 N.E.2d 717.) The test is in the right to control and is not dependent upon its exercise. (Darner v. Colby, 375 Ill. 558, 561, 31 N.E.2d, 950.) The general rule of liability is that a principal is liable for the negligent acts of his agent, but not for those of an independent contractor. Hulke v. International Manufacturing Co., supra.”

Whether a person is an independent contractor or an agent is a question of fact for the jury. Hulke, supra.

In this regard, plaintiff’s initial argument is that O’Neil was Allstate’s agent as a matter of law because the O’Neil-Allstate contract gave Allstate the right to terminate the relationship at any time. Article 21 of the contract provides:

“The provisions of this Article supersede all of Article 22 of the General Conditions of the Contract except the first sentence. If the Owner should terminate the Contract under the first sentence of Article 22 of the General Conditions of the Contract or for any other reason, it shall reimburse the Contractor for the balance of all payments made by said Contractor under Article 7, plus a proportionate amount of fee. * *

The first sentence of article 22 describes Allstate’s right to terminate the contract in specific instances providing the architect certifies “that sufficient cause exists to justify such action.” The specific instances include bankruptcy, receivership, failure to supply necessary workmen and materials, failure to pay subcontractors, and violation of laws, ordinances, architect’s instructions, or contract provisions. Plaintiff’s position is that the phrase for any other reason means that Allstate had the right to terminate O’Neil’s contract for any reason at any time, and that as a matter of law, the retention of this right by Allstate made O’Neil an agent of Allstate rather than an independent contractor. Defendant’s position is that the contract did not grant Allstate the right to terminate O’Neil at any time without cause.

It is a fundamental rule of construction of contracts that a document msut be considered as a whole and that the intent of its drafters cannot be ascertained from isolated phrases. (Hammes v. Esposito (1973), 10 Ill.App.3d 6, 10.) Viewing the O’Neil-Allstate contract as a whole, we are satisfied that it was not the intent of the parties that Allstate should have had an unbridled right to discharge O’Neil without cause. The contract contains express provisions concerning the types of causes deemed to be grounds for termination of the contract. These provisions would be meaningless if plaintiff’s interpretation of the isolated phrase or for any other reason were given effect. It is clear that the contract gave Allstate the right to terminate O’Neil only upon a proper showing of cause and an architect’s certificate that sufficient cause exists, not at any time as is argued. Accordingly, plaintiff’s argument must fail. Tansey v. Robinson (1960), 24 Ill.App.2d 227, 233-34.

Plaintiff’s other agency argument is that the evidence overwhelmingly showed O’Neil to have been Allstate’s agent because Allstate actually directed the manner and method in winch the work was performed by O’Neil. The pertinent evidence can be categorized as contractual provisions, face-to-face dealings, and written correspondence. The contractual provisions state that Allstate was to pay all costs for the job, to lease the construction equipment used, to approve subcontracts and terms, and to retain title to all work completed and all materials, tools, and supplies. Also, Allstate reserved the right to attend O’Neil’s progress meetings, established a trust relationship with O’Neil, and reserved the right to make changes in the contract. The face-to-face conversations deal mainly with the relationships between Allstate’s full-time field superintendent, Allstate’s home office men, and O’Neil’s field manager. The written correspondence consists of letters from Allstate to O’Neil directing O’Neil to do certain tilings. Each of these categories will be dealt with respectively.

With regard to the contractual provisions wherein Allstate retained control over the expenditures and other matters, plaintiff argues that Allstate deprived O’Neil of its own judgment and discretion as to the method or means by which the work was to be accomplished, citing Lawrence v. Industrial Com. (1945), 391 Ill. 80, 85, where the court wrote:

“The decisions of this court are agreed that an independent contractor is one who renders service in accordance with the will of the person for whom the work is done only as to the results of the work, and who is free to exercise his own judgment and discretion as to the method or means by which it is accomplished, entirely exclusive of the control and direction of the party for whom the work is done.”

Allstate’s position is that the contract was awarded to O’Neil on a “cost plus” basis, and Allstate’s control over expenditures operated solely to regulate the cost of the project, not to control die manner in which the work was performed by O’Neil. For example, although the crane which fell on plaintiff was leased by Allstate at the time of the injury, the crane was owned and operated by O’Neil and the only purpose for the lease arrangement was to assign a cost to the crane’s use so Allstate would know how much to pay O’Neil. The evidence of the contractual provisions was submitted to the jury, and we feel the verdict is supported by this evidence.

The face-to-face dealings between Allstate and O’Neil personnel are cited by plaintiff to show that Allstate retained and exercised actual control over the manner and method in which the work was performed by maintaining a full-time supervisor at the job site and by -sending its home office men to inspect the job site. In particular, plaintiff notes that the Allstate field supervisor sent daily reports of job conditions to the home office, attended safety meetings, and made inspections of the work in progress. The home office personnel visited the job site over 60 times prior to the accident, and plaintiff argues that O’Neil’s field superintendent admitted that when the Allstate home office engineer “gave him directions either orally or in writing, he would comply.” Allstate’s position is that its field supervisor’s reports were confined to observations on the progress of the work in accordance with the contract, not on how the work was to be done. Furthermore, the Allstate people never gave directions to the O’Neil people on how the work was to be done. Allstate points out that O’Neil’s field superintendent alleged to have testified that “he would comply” actually testified that the one specific instance he recalled involving a direction from an Allstate person was when Allstate’s engineer asked him to do something, but the O’Neil supervisor said he “reviewed the schedule and decided that we were okay the way we were.” Also, the testimony at trial was that the only people who gave directions as to the manner in which the work was to be performed were the O’Neil foremen.

Inspection of work by an owner or his employees or agents does not of itself constitute the level of control over the builder’s work necessary to establish an agency relationship with the builder as a matter of law. (John Gabel Manufacturing Co. v. Murphy (1945), 390 Ill. 455, 462.) We feel the jury’s verdict has support in the evidence of face-to-face dealings.

The relevant written correspondence between O’Neil and Allstate is cited by plaintiff to show that Allstate gave written directions to O’Neil as to the manner of doing the work. Plaintiff argues that O’Neil was directed as to the manner and method of setting the concrete and removing the forms, the depth of disks in the topsoil, the deployment of O’Neil’s work force, the hauling of trees from the job site, and the working hours and schedules. Allstate’s position is that these letters were concerned with matters bearing upon the cost of the project, not upon the actual method in which the work was to be completed. Having examined the correspondence mentioned by plaintiff, we note that Allstate’s directions were the specification of results, and not directions of the manner in which the work was to be done. The matter was presented to the jury and the jury’s verdict is supported by this evidence.

Having examined the evidence noted by plaintiff in support of his argument that O’Neil was Allstate’s agent, we find that the evidence at its best created questions of fact, and inasmuch as there is a factual basis for the verdict, it cannot be said that the verdict was contrary to the manifest weight of the evidence.

We now consider plaintiff’s argument that the jury’s verdict on the Structural Work Act count was contrary to the manifest weight of the evidence. In particular, plaintiff alleges that the manifest weight of the evidence shows that Allstate was an owner in charge of the work who committed a wilful violation of the Act. In support of the “in charge of” allegation, plaintiff cites the evidence discussed above in the agency issues. To support the wilful violation allegation, plaintiff contends the evidence shows that Allstate knew the crane was being used on the job site on muddy ground yet did nothing to insure the safe movement of the crane.

The determination of whether a particular individual or corporation is a person having charge of the work under the Structural Work Act is within the province of the jury. (Rooney v. Morton Salt Building, Inc. (1974), 19 Ill.App.3d 962, 964; Larson v. Commonwealth Edison Co., supra.) Briefly summarized, the evidence presented to the jury showed that the general contractor, O’Neil, had the sole responsibility for running the job, hiring, issuing orders to workmen, and the operation of the crane. There is some dispute as to whether any Allstate employee ever directed an O’Neil employee in the method for the performance of the work. It is undisputed that Allstate maintained a resident field superintendent at the job site and that Allstate employees frequently visited the job site.

The fact that an owner may have and exercise the right to inspect the progress of work does not necessarily mean the owner is in charge of the work so as to fall within the purview of the Structural Work Act. (Gannon v. Chicago, M., St. P. & P. Ry. Co. (1961), 22 Ill.2d 305, 323.) Having considered the evidence presented in this case, the most that can be said for the plaintiff is that whether defendant was in charge of the work was a question of fact for the jury, and there is sufficient evidence to support the jury’s determination.

As to tire question of whether Allstate wilfully violated the Act or was negligent, we feel there was sufficient evidence to support the jury’s verdict.

The judgment of the circuit court of Cook County is affirmed.

Judgment affirmed.

DEMPSEY and MEJDA, JJ., concur.