¢ On April 29, 1991, Ed Ryan, a company environmental engineer, stated in the Ottawa
Daily Times that “we’ve been working with the EPA on this all along. Nobody’s at
risk. Nobody’s drinking the water [that’s contaminated].”

# In June 1992, the middle aquifer tested positive for arsenic in the amount of 0.0066
mg/L, an amount well below the IEAP’s standard of .05 mg/L.

The information disseminated by Naplate officials and by Pilkington stated over and over again
that the middle aquifer, containing Naplate’s drinking water, was not contaminated with arsenic.
This, in my opinion, could have led the Plaintiffs to reasonably believe that Naplate’s
groundwater had not been contaminated. More importantly, class representatives Kim Nanouski
and Lloyd Ludwig testified in depositions that they did not have knowledge of groundwater
contamination before 2002. Additionally, none of the other class members deposed testified to
having had prior knowledge. At a bare minimum, these circumstances establish a genuine issue
of material fact concerning when Plaintiffs should have discovered the contamination of their
groundwater, which is best left for a jury.

With regards to the arsenic contamination that may have resulted from Pilkington’s so
called “fugitive emissions,” Pilkington’s arguments are much the same. Pilkington does,
however, present two additional letters as evidence to show Plaintiffs had knowledge of soil
contamination prior to 1998. The first is a letter written by the Village Clerk in 1954
complaining about dust emanating from Pilkington’s waste pits. Given the age of the letter and
the vague nature of its reference to dust, there is a very distinct possibility that the current
residents of Naplate were either unaware of its existence or did not know it dealt with arsenic-
containing waste. The second is a report from the IEPA, given to a Village official, which

discussed the potential for contamination via aerial dispersion. Since there is no direct link



argument, Pilkington points to the long-time discussions between Pilkington, Naplate officials,
and Naplate residents, concerning the possibility of groundwater contamination. Beginning in
1986, Naplate officials and residents were informed by Pilkington that the St. Peter Sandstone
aquifer (“the upper aquifer”) was contaminated with arsenic. The upper aquifer is one of three
separate aquifers through which groundwater passes under Naplate; the aquifers are separated by
layers of stone. Although the upper aquifer was not used for drinking water, there was some
concern of cross contamination to the New Richmond Sandstone aquifer (“the middle aquifer”),
which does supply Naplate’s drinking water.

Pilkington’s arguments, however, lose much of their force when the results of its own
testing of the middle aquifer is taken into consideration. In response to its concerns as well as the
community’s concerns over contamination of groundwater, Pilkington engaged in extensive
groundwater testing between 1986 and 1995, which showed either no contamination or minimal
contamination. Information concerning the lack of contamination in the middle aquifer was
actively disseminated throughout Naplate by Pilkington’s representatives and the media. The
following are some relevant examples:

# On May 28, 1986, Naplate’s Board President granted Pilkington permission to install
groundwater monitoring wells in Naplate.

# On September 17, 1986, Robert DiNardo, a Pilkington representative, stated in the
Ottawa Daily Times “we are not concerned that anyone is at risk.”

# On September 18, 1986, the Ottawa Daily Times reported that Naplate’s drinking
well was tested and no concentration of arsenic was found in Naplate’s drinking
supply.

# On January 6, 1987, the Ottawa Daily Times reported retesting mirrored previous
results showing no contamination in the public drinking water.


between the Plaintiffs and this report, it is also not enough to overcome Plaintiffs’ dispersion
testimony that they did not become aware of the contamination before 2002. Since there still
remains a genuine issue of material fact as to when the Plaintiffs became aware of the alleged
arsenic contamination from aerial dispersion, this issue is also best left for the jury.

In addition to arguing the existence of a material question of fact as to knowledge of
contamination, Plaintiffs also claim summary judgment is inappropriate because the tortious
activity has been ongoing, at least as to groundwater contamination, and has, therefore, tolled the
statutory period. Plaintiffs claim some contamination has been caused by Pilkington’s on-going
maintenance of arsenic-containing landfills. Whether Pilkington’s tortious activity has, in fact,
been ongoing is also a genuine issue of material fact, creating additional grounds for denial of
summary judgment.

B. Plaintiffs’ Expert Roy Ball

Pilkington argues for summary judgment on Plaintiffs’ aerial contamination claims
because, in Pilkington’s opinion, Plaintiffs have not presented any admissible evidence showing
that aerial arsenic emissions emanating from Pilkington’s Ottawa facility caused contamination
in Naplate. In support of that theory, Pilkington argues that the opinion of Plaintiffs’ expert, Roy
Ball, on aerial dispersion of arsenic contamination, is inadmissable because it is not based on
what Pilkington considers to be a sound enough methodology to satisfy Fed. R. Evid. 702 and
Daubert. See Cummins y. Lyle Indus., 93 F.3d 362, 368 (7" Cir. 1996). Pilkington’s criticisms
of Dr. Ball’s analysis lie primarily with his failure to use computer modeling to recreate the path
taken by the emissions allegedly released from the Ottawa facility and his failure to consider

other locations as sources of arsenic emissions.


2 Order Form (06/97)

United States District Court, Northern District of Illinois

+
Name of Assigned Judge Sitting Judge if Other
or Magistrate Judge James B. Zagel than Assigned Judge
7ASE NUMBER 03 C 1086 DATE 10/25/2004
CASE LUDWIG vs. PILKINGTON
TITLE
[In the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
[OTION: of the motion being presented.]
)OCKET ENTRY:
1) o Filed motion of [ use listing in “Motion” box above.]
2) as) Brief in support of motion due
3) 0 Answer brief to motion due . Reply to answer brief due
4) o Ruling/Hearing on set for at
5) Oo Status hearing{held/continued to] [set for/re-set for] on set for at
6) oO Pretrial conference[held/continued to] [set for/re-set for] on set for at
7) Oo Trial{set for/re-set for] on _ at.
8) oO (Bench/Jury trial] [Hearing] held/continued to at
9) oO This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
QFRCP4(m) QO Local Rule 41.1 OFRCP41(a)(1) 0 FRCP41(a)(2).
10) [Other docket entry] Defendant’s motion for summary judgment is denied. Enter Memorandum
Opinion and Order.
di) [For further detail see order attached to the original minute order.]
‘No notices required, advised in open court,
No notices required. somber notes
Notices mailed by judge’s staff.
Notified counsel by telephone. q ,
v Docketing to mail notices. HY
i) AO 450 fe ”
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Copy to judge/magistrate judge. vas

gate waited notice

courtroom °c
deputy’s ‘
initials

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Date/time received.in, | -4
central Clerk's Office

railing deputy inicials



Instead of modeling, Dr. Ball relied on information provided about the actual amount of
arsenic released and historical wind patterns. He undertook a statistical analysis of the data and
rendered his opinion based on that analysis. As part of this analysis, Dr. Ball compared the
statistical signatures of contamination found within Naplate to contamination found within the
Ottawa site. In Dr. Ball’s opinion, this comparison showed a direct correlation between the
contamination present on the Ottawa site and the contamination found in Naplate. While this
approach may, according to Pilkington’s expert, be less accurate than a modeling approach, it is
sufficiently reliable to warrant the jury’s consideration. Pilkington’s criticisms of accuracy are
best directed towards weight, not admissibility. Furthermore, Dr. Ball states that his analysis was
done in accordance with a statistical technique described in many standard textbooks and
endorsed by USEPA guidance documents. It is my opinion that Dr. Ball’s analysis meets the
reliability requirements of Rule 702 and Daubert and will assist the jury in rendering a decision
in this case.

For the reasons stated above, Pilkington’s Motion for Partial Summary Judgment is
DENIED.

ENTER:

Q) 6, |
Ames B. Zagel t)
United States District Judge

pate:29 Od CodY



UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

VICKI LUDWIG, LLOYD LUDWIG, KIM
NANOUSKI and JOSEPH NANOUSKI,
individually and on behalf of all persons
similarly situated,

No. 03 C 1086
Plaintiffs, Judge James B. Zagel

Vv.

PILKINGTON NORTH AMERICA, INC.,

Defendants. DOSKETED

OCT 2 8 2004

MEMORANDUM OPINION AND ORDER

Background

Since 1931, PNA has owned and operated a glass manufacturing facility in Ottawa,
Illinois, which is adjacent to the Village of Naplate (“Naplate”). For many years, arsenic was
used at this facility as a raw material and was generated, in both liquid and solid form, as a waste
product. Plaintiffs allege that PNA has, over the course of 70 years, negligently, recklessly,
and/or intentionally disposed of arsenic-containing waste in multiple quarries located on PNA’s
property as well as in off-site areas adjacent to the PNA facility. According to the Plaintiffs, this
improper disposal caused both the soil and the groundwater in Naplate to become contaminated
with arsenic. Plaintiffs further allege that even though PNA has known about this for at least 15
years, PNA has failed to investigate, remediate, or notify Plaintiffs about the contamination.
Plaintiffs seek to enjoin PNA from generating contamination, require PNA to fully investigate
and remediate the existing contamination, require PNA to reimburse them for costs incurred, and

recover compensatory and punitive damages.

BY



Analysis

Just over one month before the liability phase of this case was set to begin, Pilkington,
with leave of this court, filed a motion for partial summary judgment on the issues of direct
groundwater contamination and soil contamination from aerial dispersion of arsenic. Summary
judgment is proper when there is no genuine issue of material fact and the moving party is
entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322-323 (1986).
In determining whether any genuine issue of material fact exists, I must construe all facts in the
light most favorable to the non-moving party and draw all reasonable and justifiable inferences in
its favor. Anderson vy. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). A genuine issue of fact
exists only when, based on the record as a whole, a reasonable jury could find for the non-
movant. Pipitone y. United States, 180 F.3d 859, 861 (7th Cir. 1999).
A. Pilkington’s Statute of Limitations Arguments

Pilkington argues that Plaintiffs’ claims of direct groundwater contamination and soil
contamination from airborne arsenic pollution are barred by Illinois’s five-year statute of
limitations.' With respect to the groundwater contamination, Pilkington claims that Naplate
residents were aware or should have been aware of the possibility of groundwater contamination

long before February 1998, five years prior to filing the instant Complaint. To support this

' Under Illinois law, property damage claims must be brought within five years after the
cause of action accrued. 735 Ill. Comp. Stat. Ann. 5/13-205 (2004). In Illinois, the courts apply
the “discovery rule” to determine when a cause of action accrues and the statute of limitations
begins to run. See AdcWane, Inc. v. Crow Chicago Indus., Inc., 224 F.3d 582, 585 (7" Cir. 2000).
“The Illinois Supreme Court has held that a cause of action accrues when a party knows or
reasonably should know both that an injury has occurred and that it was wrongfully caused.”
Landry v. Keene Corp., 811 F. Supp. 367, 373 (N.D. Ill. 1993)(citing Nolan v. Johns-Manville
Asbestos, 421 N.E.2d 864, 868 (Ill. 1981).