ILLINOIS POLLUTION CONTROL BOARD
    December 17, 1998
    LAWRENCE C. SWEDA,
    Complainant,
    v.
    OUTBOARD MARINE CORPORATION
    and THE CITY OF WAUKEGAN,
    Respondents.
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    PCB 99-38
    (Enforcement - Noise, Citizens)
    ORDER OF THE BOARD (by M. McFawn):
    On December 1, 1998, respondent Outboard Marine Corporation (OMC) filed a “Motion
    to Correct Board Order,” in which OMC identified an error in the Board’s September 17, 1998
    order denying the respondents’ motions to dismiss. The Board’s order refers to allegations in the
    complaint as violations of 35 Ill. Adm. Code 901.102; in fact, the complaint alleges violations of
    35 Ill. Adm. Code 900.102. The Board’s order of September 17, 1998, is hereby corrected by
    changing all occurrences of “901.102” to “900.102” and replacing the last paragraph on the first
    page of the order with the following:
    Section 900.102 prohibits emission of sound so as to cause noise
    pollution,
    i.e.
    , emission of sound that unreasonably interferes with
    the enjoyment of life or any lawful business or activity. Section
    901.104 prohibits emission of sound above certain decibel levels
    under various circumstances. Mr. Sweda alleges that OMC and
    Waukegan have violated these provisions through their operation of
    propane cannons to frighten seagulls away from OMC and
    Waukegan property on Waukegan Harbor. Comp. at 2-3.
    OMC continues to argue that the complaint is frivolous, and now cites to the concurring
    opinion in Williams v. Schaumburg Park District (May 16, 1996), PCB 96-186. OMC argues that
    this matter is frivolous because there is no actual environmental harm. This argument, however, is
    based upon facts not included in the complaint, but instead set forth in the respondents’ prior
    motions to dismiss. The narratives in respondents’ motions to dismiss, including that cited by
    OMC in the present motion, are not evidence and cannot be relied upon by the Board in making
    any determination in this case. The concurring opinion in the Williams case was predicated on an
    analysis of the allegations in the complaint. The Board accordingly concludes that the complaint
    is not frivolous with respect to the alleged violations of Section 900.102.
    On December 7, 1998, OMC filed a “Motion to Substitute Name on Service List,”
    requesting that the OMC representative on the service list be changed from president and CEO
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    David B. Jones to senior counsel Joseph Moran. No response to the motion has been received.
    This motion is granted, and the service list will be modified accordingly.
    IT IS SO ORDERED.
    I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, hereby certify that
    the above order was adopted on the 17th day of December 1998 by a vote of 6-0.
    Dorothy M. Gunn, Clerk
    Illinois Pollution Control Board

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