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STATE COURT OF GWINNETT COUNTY
STATE OF GEORGIA
LANIER PARKWAY ASSOCIATES, )
LLC, ADAMS PROPERTIES )
ASSOCIATES, LLC, ANNE ADAMS )
RABBINO, RONALD M. ADAMS, and )
WALTER D. ADAMS, )
) Case No.: 22-C-01681-S1
Plaintiffs, )
)
vs. )
)
HERCULES, LLC, ASHLAND, LLC, )
and PINOVA, (DE) INC., )
)
Defendants. )
PLAINTIFFS’ RESPONSE TO DEFENDANTS’ BRIEF IN SUPPORT OF
FORUM NON CONVENIENS MOTION TO TRANSFER
Defendants do not nearly meet their lofty burden for transferring the present action to
Glynn County and have failed to demonstrate that there are any factors that cut in their favor and
overcome Georgia’s strong deference to a plaintiff’s choice of venue. There is no question, and
Defendants have not alleged, that venue is improper in Gwinnett County, and thus Defendants
seek extraordinary relief that is not supported by the long history of Georgia cases that analyze
this issue. Defendants were unable to cite a single case under Georgia law where a Court
transferred a case from one proper venue within the state to another proper venue in Georgia
under circumstances remotely similar to the facts here. The only cases cited by Defendants are
either based on the law of other jurisdictions or on cases where a court has dismissed a case
based on forum non conveniens because the overwhelming majority of witnesses were located in
other states. Defendants even go as far to rely on a case where a federal court dismissed a
plaintiff’s claims on forum non conveniens grounds because the plaintiffs were Japanese, and
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the claims related to a nuclear incident in Japan. (See Defs.’ Brief at pgs. 12-13). This is a far
cry from the case sub judice.
This case is pending in Georgia where there are plenty of cases that have interpreted
Georgia’s seven statutory factors for transferring a case within Georgia. Defendants fail to
incorporate any of these cases in their briefing for one simple reason—those cases dramatically
cut in favor of Plaintiff’s choice of venue and against Defendants’ motion to transfer. For all of
the reasons stated below, Plaintiffs respectfully request that the Court deny Defendants’ motion
and permit Plaintiffs’ claims to move forward in the forum of their choice.
STATEMENT OF FACTS
This is a negligence, nuisance, and trespass action involving the underground
contamination of benzene, chlorobenzene, and other toxic contaminants. Defendants admit in
their statement of facts that all remediation efforts conducted by Defendants include remediation
of the groundwater that is contaminated well below the surface of the subject properties. (See
Defs.’ Brief at pg. 3; Hercules’ Letter with Attached Interim Measures Plan for Groundwater,
attached hereto as Exhibit 1). Moreover, Plaintiffs’ claims are based on the subsurface
migration of these toxic substances from Defendants’ properties to Plaintiffs’ properties. (See
Complaint for Damages at ¶¶ 17-19). Thus, it is unclear how a lay juror would gain any insight
into Plaintiff’s claims or Defendants’ defenses from viewing the surface levels of the properties
that have no visible contamination. Even the experts in this case must rely on sampling of
groundwater to understand the environmental impacts of Defendants’ ongoing nuisance and
trespass. (See Report of Phase 2 Sampling Activities, attached hereto as Exhibit 2). In any event,
Defendants have failed and continue to fail to adequately and appropriately remediate the
properties.
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Plaintiffs’ previously filed an action in Glynn County which consisted of several years of
litigation and multiple depositions. (See Summary of Depositions from the Glynn County Action,
attached hereto as Exhibit 3). The locations of these depositions and the addresses of the
deponents tell a very different story than what Defendants would have this Court believe in terms
of the availability of evidence and location of witnesses. The depositions of Charles Hill, Denney
Dobbs, James Joseph Brown, Jonathan Alix, Randall John Ellis, Jr., and Scott Recker were all
taken in Atlanta, Georgia and just outside the venue of this Court. (Id.). The only depositions
taken in Glynn County were Molly Matthew, Pat Grozier, Kirk Watson, and Steven Crews. (Id.).
Importantly, there are no documents that have been provided by Defendants to suggest that any
of these witnesses are uncooperative or unwilling to testify in Gwinnett County at trial. All
remaining depositions from the first action were either taken out of state or within Georgia but a
long distance from Glynn County. (Id.). With the largest airport in the world by volume, a venue
in metro-Atlanta is much more convenient for the out-of-state witnesses who have already been
deposed and who will be deposed in the future of this case, and it will also be more convenient
for Defendants’ lead counsel who reside in Pennsylvania. While it is true that two of the three
individual-Plaintiffs reside in Glynn County, they have submitted to the jurisdiction of this
Court, have chosen to have their claims determined in this Court, and are cooperative and willing
to be present in this Court at trial.
Defendants even admit that their employees who are involved in the remediation projects
of the subject properties are based in Delaware. (Defs.’ Brief at pg. 6). These employees have to
travel to Glynn County from time-to-time to perform their remediation work, but this does not
explain why Glynn County as a venue for this action is more convenient for these witnesses than
a venue in metro-Atlanta that has the largest airport in the world.
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Plaintiffs filed the present renewal action in Gwinnett County where venue is proper as to
all parties through Defendants Hercules’ and Ashland’s 1 presence in the venue via their
registered agents. There is no dispute that Gwinnett County is a proper venue for Plaintiffs’
claims, and Plaintiffs used their discretion in filing this action in Gwinnett County based on
Georgia’s long history of deference to a plaintiff’s choice of venue. Plaintiffs’ prior counsel who
represented them in the Glynn County action also resided in Glynn County and, with Plaintiffs,
made the decision to initially file their claims in that venue. However, after careful consideration
with Plaintiffs’ new counsel who have offices in Atlanta, Birmingham, and Savannah, it was
determined that Gwinnett was the best and most convenient venue to have their day in Court. For
all of the reasons stated herein, Defendants’ motion should be denied.
ARGUMENT AND CITATION OF AUTHORITY
Defendants have not met their heavy burden to transfer this case based on forum non
conveniens by overcoming Georgia’s strong deference of a plaintiff’s choice of forum. Georgia
law allows a trial court to transfer a case to another county within this state for forum non
conveniens only after weighing a variety of factors and findings that the interests of justice
require the transfer:
(a) If a court of this state . . . finds that in the interest of justice and for the
convenience of the parties and witnesses a claim or action would be more properly
heard in…a different county of proper venue within this state, the court shall
decline to adjudicate the matter under the doctrine of forum non conveniens…As
to a claim or action that would be more properly heard in a different county of
proper venue within this state, the venue shall be transferred to the appropriate
county. In determining whether to grant a motion…to transfer venue under the
doctrine of forum non conveniens, the court shall give consideration to the
following factors:
(1) Relative ease of access to sources of proof;
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Defendant’s omitted that Ashland has also submitted to the jurisdiction and venue of this Court
though maintaining its registered agent in Gwinnett County.
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(2) Availability and cost of compulsory process for attendance of unwilling
witnesses;
(3) Possibility of viewing the premises, if viewing would be appropriate to the
action;
(4) Unnecessary expense or trouble to the defendant not necessary to the plaintiff’s
own right to pursue his or her remedy;
(5) Administrative difficulties for the forum courts;
(6) Existence of local interests in deciding the case locally; and
(7) The traditional deference given to a plaintiff’s choice of forum.
O.G.C.A. § 9-10-31.1(a).
The party seeking transfer bears the heavy burden of proving that, in light of the seven
factors, the interests of justice require the court to transfer the case. See R.J. Taylor Mem’l Hosp.
v. Beck, 280 Ga. 660, 662 (2006); Park Ave. Bank v. Steamboat City Dev. Co., L.P., 317 Ga.
App. 289 (2012); O.G.C.A § 9-10-31.1(a). If the balance of factors does not strongly weigh in
favor of the moving party, the plaintiff’s choice of forum “should not be disturbed.” St. James
Entm’t, LLC v. Dash Crofts, 2010 WL 2802616 at *5 (N.D. Ga. July 13, 2010) (citing Paul,
Hastings, Janofsky & Walker, LLP v. City of Tulsa, 245 F. Supp. 2d 1248, 1260 (N.D. Ga.
2002)) (emphasis added). “[A]s expressly set forth in the statute, there is . . . traditional
deference given to the plaintiff’s choice of forum.” Beck, 280 Ga. At 663. The burden of proof
is on the movant to establish that a case should more properly be heard in a different forum. Id.;
O.C.G.A. § 9-10-31.1(a). Georgia courts have denied motions to dismiss on forum non
conveniens grounds even where all parties (unlike here) were residents of another state, and the
accident occurred in that state. Gowdy v. Schley, 317 Ga. App. 693 (2012) (denying a motion to
dismiss an action brought in Georgia between Alabama residents involved in an accident in
Alabama). A trial court has broad discretion in deciding a forum non conveniens motion; any
such order is reviewed only for an abuse of discretion. Beck, supra. 280 Ga. at 662.
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For example, in R. J. Mem. Hosp. v. Beck, a case where the defendant made very similar
arguments to this case, transfer of venue from Bibb County to Pulaski County was not warranted.
R. J. Taylor Mem. Hosp., Inc. v. Beck, 280 Ga. 660, 662 (2006). The defendants argued that the
following facts supported a transfer from Bibb to Pulaski County based on the doctrine of forum
non conveniens: the plaintiff lived in Pulaski County; the defendant hospital was located in
Pulaski County; all pertinent medical records were located in Pulaski County; and all interactions
between plaintiff and the several defendants occurred in Pulaski County. Id. at 662.
Under those facts, the Georgia Supreme Court agreed that transfer was not warranted. Id.
The court emphasized that defendants set forth nothing in the record showing that compulsory
process of witnesses would be necessary because of venue in Bibb County, there was no
demonstrated need to view the premises at issue, and further, nothing showed the hospital is
unnecessarily inconvenienced by litigating the matter in Bibb County. Id. The court also noted
that it was “difficult to accept the assertions that what is at issue affects the receipt of medical
care solely in Pulaski County or that there is no local interest in deciding the case in Bibb
County.” Id. at 663. Further, the Bibb County court determined there would be no administrative
difficulties for the case to proceed there. Id. Finally, the court noted the traditional deference
afforded to a plaintiff’s choice of forum, and after an evaluation of the statutory factors, upheld
the trial court’s denial of transfer. Id.
Here, upon application of the various factors, Defendants have failed to meet their heavy
burden of proving the necessity for transferring this case to another venue, and this Court should
reject Defendants’ attempt to have this case unilaterally transferred. As set forth below,
Defendants’ recitation of the relevant factors is flawed and incomplete, and they fail to provide
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support for the proposition that in the interest of justice, Plaintiffs’ right to pursue their case in
their chosen forum should be disrupted.
1. Relative Ease of Access to Sources of Proof.
To analyze the “relative ease of access to sources of proof,” a court must “scrutinize the
substance of the dispute between the parties to evaluate what proof is required, and determine
whether the pieces of evidence cited by the parties are critical, or even relevant, to the plaintiff’s
cause of action and to any potential defenses to the action. Van Cauwenberghe v. Biard, 486
U.S. 517, 528 (1988). Defendants did not even attempt to provide evidence or point to any legal
authority that supports their motion on this factor. They merely make the conclusory allegations
that “Plaintiffs’ and Defendants’ properties and the environmental impacts to them” are the “key
sources of proof.” (Defs.’ Brief at pgs. 13-14). While it is true that much testing has been
completed on the subject properties and that more testing will continue, Defendants fail to show
why this evidence can more easily be accessed or presented to the court in Glynn County as
opposed to this Court. The ease of access to this proof is the same no matter what court in
Georgia this case is pending.
However, the Court should look no further than where the significant majority of
depositions occurred when the case was filed in Glynn County. (Ex. 3, Summary of Depositions
from the Glynn County Action). The depositions of Charles Hill, Denney Dobbs, James Joseph
Brown, Jonathan Alix, Randall John Ellis, Jr., and Scott Recker were all taken in Atlanta,
Georgia. (Id.). Most of these witnesses are either employees of Defendants, were designated
representatives of Defendants, or were engineers hired by Defendants, and the locations of these
depositions were picked by Defendants. So the Court should look no further than Defendants’
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own actions and representations as to what venue is more convenient for this case—metro
Atlanta.
Other than two of the Plaintiffs (who have chosen Gwinnett County to have their claims
decided), the only witnesses whose depositions were in Glynn County were Molly Matthew, Pat
Grozier, Kirk Watson, and Steven Crews. (Id.). Defendants have not provided any evidence that
the relative ease of access to these witnesses is greater in Glynn County than it is in Gwinnett
County. The remaining depositions were taken in Americus, Georgia (Dennis Carey) (Americus
is closer to Gwinnett County than Glynn County), Scottsdale, Arizona (Kristina Woods),
Cynwyd, Pennsylvania (Timothy Hassett), and New York, New York (Plaintiff Anne Adams
Rabbino). (Id.).
In addition to where the witnesses reside, virtually all of the evidence in this case is
electronic and based on expert reports, sampling data, and other information that can be accessed
with the click of a button. The seven-factor test created for transferring a case based on forum
non conveniens was generated in a time where evidence was stored in hard-copy files and
maintained at a central location. With present-day technology, Defendants simply cannot show
that the “relative ease of access to sources of proof” is in any way affected by the venue of the
case.
Due to the clear witness availability in and around Atlanta, the technological ease of
access of electronic documents, and the lack of any proof otherwise provided by Defendants,
factor one cuts greatly in Plaintiffs’ favor.
2. Availability and Cost of Compulsory Process for Attendance of Unwilling
Witnesses.
Defendants, who bear the ultimate burden of proof on this motion, have not filed a single
affidavit or other document that supports the contention that there are any unwilling witnesses or
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that there will be any costs incurred at trial in Gwinnett County that are not the same or less than
the costs associated with trying this case in Glynn County. For this reason alone, Defendants
have failed to meet their burden on this factor of the analysis. This is not like a personal injury
case where there are dozens of neutral EMTs, police officers, and other eye-witnesses who are
necessary for trial, and Defendants have not identified a single neutral fact-witness who will be
compelled to travel a longer distance to Glynn County than to Gwinnett County.
In fact, the overwhelming majority of neutral fact witnesses reside in Atlanta and metro
Atlanta—much closer to the current venue than the venue proposed by Defendants. (Ex. 3).
From the same summary discussed in the prior factor, the witnesses who reside in Georgia are
located in Brookhaven, Covington, Cobb, Mableton, and Richmond Hill. Only two witnesses
other than Plaintiffs reside in Glynn County. (Id.).
But even if every single witness resided in Glynn County, this would only be half of the
battle for Defendants’ burden of proof under factor 2. Under this factor the court must only
analyze the availability and costs associated with compelling unwilling witnesses to testify at
trial. Defendants have simply made no showing that any of the witnesses in this case are
unwilling to participate at trial. Without providing any proof, affidavit, or other valid evidence,
Defendants make the statement that a single witness, Brian Considine, is the “most likely to be
uncooperative or unwilling to participate” in the trial of this matter. (Defs.’ Brief at pg. 14). Even
if they could prove, which they have not, that Mr. Considine is “uncooperative or unwilling” to
testify at trial, Defendants fail to demonstrate why it would be prohibitively costly to compel his
attendance at trial. Mr. Considine resides within the state of Georgia and this Court has the
power of compulsion over him for trial. In addition, Defendants fail to describe why they cannot
depose Mr. Considine and play his videotaped deposition at trial. Finally, Mr. Considine does not
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live in Glynn County and would have to travel at least an hour and a half to testify in Glynn
County as opposed to approximately four hours in Gwinnett County. So essentially, Defendants
entire costs of having this case tried in Gwinnett instead of Glynn is the difference in
approximately 2.5 hours of driving time of a single witness. This does not come close to
overcoming Georgia’s strong deference to a plaintiff’s choice of forum.
Tellingly, in its analysis of factor 5, Defendants admit that “attendance of witnesses is not
expected to be a significant issue in either jurisdiction.” (Defs.’ Brief at pg. 17). This begs the
question of why Defendants are even arguing that factor two cuts in their favor at all. It clearly
does not, and Defendants have utterly failed to prove that this factor even remotely cuts in their
favor.
3. Possibility of Viewing the Premises.
This case involves a toxic contamination by Defendants of Plaintiffs’ properties. This
toxic contamination almost exclusively exists below the surface of the properties and is
undetectable based on a basic inspection of the surface level of the property.
In a Hail Mary attempt to have this Court overrule the strong deference typically afforded
to plaintiffs when choosing a proper venue, Defendants make the conclusory allegation that the
subject premises in this matter must be viewed by the jury. There is absolutely nothing that can
be gleaned by naked-eye viewing of the subject premises as the contamination of the properties
is almost entirely contained underneath the surface and beyond the view of any juror. Even the
expert witnesses cannot evaluate any of Plaintiffs’ claims based on a basic, surface inspection
and require intricate subsurface testing for their evaluations. Defendants completely fail to
demonstrate how viewing the premises would provide any benefit to the potential jurors of this
case. The maps, drawings, data samples, expert analyses, and all other technical proof that will
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be offered at the trial of this case does not require the trial to occur anywhere near the subject
premises. Defendants have failed to show how the thousands of pages of documentary evidence
and expert testimony that will be easily shown to a jury somehow is not adequate or complete
evidence or how the viewing of the property with contamination completely obscured to the
jury’s view will somehow add anything. Factor three cuts in Plaintiffs’ favor because a viewing
of the premises would be a complete waste of time and judicial resources.
4. Unnecessary Expense or Trouble to the Defendants Not Necessary to the Plaintiff’s
Own Right to Pursue Their Remedies.
Defendants have utterly failed to show how litigation in Gwinnett County versus Glynn
County would cause Defendants “[u]nnecessary expense or trouble,” or that Plaintiffs selected a
forum in order to “vex,” “harass,” or “oppress” Defendants by inflicting costs unnecessary to
pursuit of the plaintiffs’ remedy. Defendants’ conclusory allegations that it will be
“inconvenienced by travelling regularly to Gwinnett County” have absolutely no merit.
Defendants fail to offer any analysis of factor 4 in their briefing and merely reiterate
arguments pertaining to other factors that are also noticeably lacking in substance. They misstate
the standard of factor 4 by their heading that states “[n]one of the parties have a regular presence
in Gwinnett County or the Atlanta area.” (Defs.’ Brief at p. 17). First, the “regular presence” of
the parties is not an enumerated factor in any cases, and Defendants do not cite to any cases or
law that offer this conclusion. Second, even if this was a factor to be considered, Defendants’
make the false statement that no party has a presence in Gwinnett County. In fact, the very
reason why venue is proper in Gwinnett County is due to Defendants Hercules’ and Ashland’s
presence in Gwinnett County where they maintain their registered agents. Consequently, factor
four also cuts in Plaintiffs’ favor.
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5. Administrative Difficulties for the Forum Courts.
Defendants admit that there is “not expected to be a significant issue in either
jurisdiction” but again makes the false allegation that “more witnesses are located in or around
Glynn County” and that somehow this supports that attendance is more likely in that venue.
(Defs.’ Brief at pg. 17). As shown above, the significant majority of witnesses reside well-
outside of Glynn County.
Defendants misapply the standard under this factor where “administrative difficulties”
typically involve the application of different laws or administrative delays based on factors such
as parallel pending litigation. See e.g., Hawkins v. Blair, 334 Ga. App. 898, 903 (2015) (court
ruled that administrative difficulties favored dismissal where a Georgia court would be asked to
apply South Carolina law); Waldon v. Alger, 352 Ga. App. 496, 499 (2019) (Georgia Court of
Appeals agreed that the trial court properly supported its decision to dismiss where the trial court
considered that there was parallel ongoing litigation in Florida and that “administrative delays
and scheduling conflicts due to travel arrangements and accommodations of the parties and
witnesses” would be too difficult). Any venue in Georgia that conducts the trial of this case will
have to apply Georgia law and there are no parallel actions related to this action that will cause
unnecessary delays. This factor unequivocally cuts in favor of the Court retaining jurisdiction.
Again, Defendants have failed to cite to any Georgia cases similar to this case or supply
the Court with any facts that support transfer under factor five. Defendants have thus failed to
meet their burden under this factor.
6. Existence of Local Interests in Deciding the Case Locally.
Defendants again do not cite to any cases or other law nor do they point to any facts that
support their motion to transfer on factor six of the forum non conveniens analysis. It is
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Defendants’ burden to show the Court why they are entitled to the relief being sought, and mere
conclusory allegations will not suffice. Even if those conclusory allegations are taken at face
value, this factor still cuts against Defendants. The residents of Gwinnett County are a proud
community that would likely not like the fact that two large corporations registered to do
business within the county are polluting Georgia with toxic chemicals that are known to cause
cancer and other disease. This community would also not likely be happy with Defendants’
continued refusal to clean up their mess. Defendants’ assertion that Gwinnett County does not
have an interest in holding one of its own accountable for this reprehensible behavior is
completely misguided.
One of the main reasons why the Georgia legislature made venue proper in the county
where a corporation maintains its registered agent is because those communities have a vested
interest in policing the conduct of those corporations. Defendants are attempting to avoid the
consequences of facing a Gwinnett County jury because they do not want to face the community
in which Georgia law provides that Hercules and Ashland reside. Defendants have not met their
burden under factor six.
7. The Traditional Deference Given to a Plaintiff’s Choice of Forum.
Not even Defendants can argue that this factor favors their motion. However, Defendants
attempt to downplay the significance of this factor by stating that “Plaintiffs’ choice of forum is
entitled to some deference.” (Defs.’ Brief at pg. 19) (emphasis added). It is understandable why
Defendants attempt to downplay this factor, but Georgia law is clear that the deference of a
plaintiff’s choice of forum is strong and must be clearly overcome by the other factors listed
above. Defendants have not come close to meeting this lofty burden and has not provided a shred
of evidence to support even one of the above factors. This motion should be denied.
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CONCLUSION
Defendants carry the heavy burden of proving that the seven statutory factors applied to a
forum non conveniens analysis overcome the strong deference afforded to Plaintiffs’ choice of a
proper venue in Gwinnett County. They did not even attempt to acquire and file affidavits that
there are unreasonable costs and unwilling trial participants that will make the trial of this matter
in Gwinnett County more difficult or inconvenient. The interests of justice dictate that this case
should remain in Gwinnett County where the citizens of this venue have a vested interest in
policing the malfeasance of corporations that reside there. Accordingly, Defendants’ motion
should be denied.
This 25th day of July, 2022.
/s/ Andy Conn
Andrew J. Conn
Georgia Bar No. 732541
410 East Broughton Street
Savannah, Georgia 31401
Telephone: 912-651-9967
Facsimile: 912-651-1276
aconn@hlmlawfirm.com
FRIEDMAN, DAZZIO & ZULANAS, P.C.
/s/ Matt Conn
Matt Conn*
*Application for Admission
Pro Hac Vice Forthcoming
3800 Corporate Woods Drive
Birmingham, Alabama 35242
Telephone: 205-278-7000
Facsimile: 205-278-7001
mconn@friedman-lawyers.com
14
CERTIFICATE OF SERVICE
I hereby certify that I have this date served the within and foregoing upon all parties
electronically, statutory electronic mail, or by depositing a copy of same in the United States
Mail in a properly addressed envelope with adequate postage thereon to ensure delivery to:
Mark D. Johnson
GILBERT HARRELL
SUMERFORD &MARTIN, P.C.
P.O. Box 190
Brunswick, GA 31521-0190
mjohnson@gilbertharrelllaw.com
Kathleen B. Campbell
Garrett D. Trego
MANKO GOLD KATCHER & FOX, LLP
401 City Avenue, Suite 901
Bala Cynwyd, PA 19004
kcampbell@mankogold.com
gtrego@mankogold.com
Respectfully submitted July 25, 2022,
/s/ Andy Conn
Andrew J. Conn
Georgia Bar No. 732541
410 East Broughton Street
Savannah, Georgia 31401
Telephone: 912-651-9967
Facsimile: 912-651-1276
aconn@hlmlawfirm.com
FRIEDMAN, DAZZIO & ZULANAS, P.C.
/s/ Matt Conn
Matt Conn*
*Application for Admission
Pro Hac Vice Forthcoming
3800 Corporate Woods Drive
Birmingham, Alabama 35242
Telephone: 205-278-7000
15
Facsimile: 205-278-7001
mconn@friedman-lawyers.com
16
EX 1
Brunswick Interim Measures Plan For
Groundwater
Former Hercules Brunswick Facility
Antea Group Project No. WBS2014B3
June 6, 2014
Prepared for: Prepared by:
Hercules Incorporated Antea®Group
Hercules Research Center 8008 Corporate Center Drive
500 Hercules Road Suite 100
Wilmington, DE 19808 Charlotte, NC 28226
1-800-477-7411
Antea USA, Inc.
Brunswick Interim Measures Plan For
Groundwater
Former Hercules Brunswick Facility
Antea Group Project No. WBS2014B3
June 6, 2014
Prepared for:
Hercules Incorporated
Hercules Research Center
500 Hercules Road
Wilmington, DE 19808
Prepared by:
Antea®Group
8008 Corporate Center Drive
Suite 100
Charlotte, NC 28226
Brunswick Interim Measures Plan For Groundwater
Former Hercules Brunswick Facility
Antea Group Project No. WBS2014B3
Table of Contents
1.0 INTRODUCTION ........................................................................................................................................................... 1
1.1 SITE DESCRIPTION AND BACKGROUND .................................................................................................................. 1
1.2 REGULATORY OVERVIEW ........................................................................................................................................ 2
1.3 PHASE III RFI FINDINGS ........................................................................................................................................... 3
1.4 INTERIM MEASURES PLAN OBJECTIVE .................................................................................................................... 4
1.5 NON-INTERIM MEASURES VOLUNTARY INVESTIGATION EFFORTS ........................................................................ 4
2.0 GENERAL TECHNOLOGY EVALUATION AND CONCEPTUAL INTERIM MEASURES APPROACH ..................................... 5
2.1 ADDITIONAL FIELD AND LABORATORY DATA COLLECTION, ANALYSES, AND EVALUATION ................................... 7
2.2 BENCH AND FIELD SCALE PILOT TESTING AND DATA EVALUATION ....................................................................... 9
2.3 INTERIM MEASURES DESIGN AND IMPLEMENTATION ......................................................................................... 12
2.4 POST-IMPLEMENTATION EFFECTIVENESS EVALUATION ...................................................................................... 12
3.0 ESTIMATED SCHEDULE OF PERFORMANCE ............................................................................................................... 13
4.0 REMARKS ................................................................................................................................................................... 13
5.0 CERTIFICATIONS ........................................................................................................................................................ 14
Figures
Figure 1 Site Location Map
Figure 2 Shallow Zone Groundwater Benzene Distribution
Figure 3 Intermediate Zone Groundwater Benzene Distribution
Figure 4 Lower Zone Groundwater Benzene Distribution
Figure 5 Conceptual Site Groundwater Transport Pathways
Figure 6 3-Dimensional Groundwater Benzene Distribution
Figure 7 Proposed Interim Measures and Monitoring Well Location Map
Attachments
Attachment 1 December 21, 2013 GA EPD Correspondence to Hercules
Attachment 2 Preliminary Remediation Technologies Evaluation Matrix
Attachment 3 PLUMESTOP™ COLLOIDAL BIOMATRIX: Securing Rapid Contaminant Reduction And Accelerated
Bioremediation Using A Dispersive Injectable Reagent” Regenesis UK, Bath, UK and Regenesis San
Clemente, CA USA. May 2014
i www.anteagroup.com
Brunswick Interim Measures Plan For
Groundwater
Former Hercules Brunswick Facility
1.0 INTRODUCTION
This Interim Corrective Action Plan for Groundwater pursuant to Hazardous Waste Facility Permit HW-052(D&S)
permit condition V.E. is prepared in response to a December 23, 2013, correspondence from the Georgia
Environmental Protection Division (EPD) requesting that Hercules ”… implement corrective action beyond the
property boundary, where necessary to protect human health and the environment [and]…prepare an Interim
Measures Plan to address offsite contamination…”. The purpose of this Plan is to reduce dissolved groundwater
concentrations on-site, and mitigate offsite migration of dissolved volatile organics in groundwater. On March 12,
2014, Hercules met with EPD to discuss their request, and to present a preliminary conceptual interim measures
approach. During the meeting, Hercules and EPD discussed a collaborative effort regarding communication with
the community, proposed technologies for interim corrective measures and voluntary actions by Hercules to
conduct additional investigation activities both on-site and off-site.
Hercules provided a more detailed description,
and summary of the March 12, 1014 meeting, in an April 14, 2014 correspondence to EPD. This plan was prepared
in response to EPD’s December 23, 2013 request, the March 12, 2014 meeting, and Hercules’ April 14, 2014
correspondence.
1.1 SITE DESCRIPTION AND BACKGROUND
The former Hercules Incorporated (Hercules) facility is located In Glynn County, Georgia near U.S. Highway 17,
north of the Torras Causeway in the City of Brunswick (Figure 1). The Former Hercules facility occupies
approximately 300-acres, 50-acres of which are actively utilized for chemical manufacturing and support
operations. The remaining 250-acres are primarily utilized as stump-wood storage, and as a perimeter buffer zone.
Adjacent land to the north and west of the site consist of single and multi-family residential properties.
Commercial and residential properties, and a park are located to the south. Dupree Creek and Terry Creek, and a
tidal marsh, are located to the east across Highway 17 from the site.
Site operations for the manufacturing of wood rosins, turpentine and pine oils began in 1911. The facility was
purchased by Hercules in 1920. Wood rosin and terpene oils are produced primarily from a milling and extraction
process of pine stumps that come from the Southeastern US. Between 1948 and 1980, toxaphene was also
produced at the facility.Other non-rosin products including CMC, di-isopropyl benzene (DIB) and Kymene (wet-
strength resin) were once produced at the site, but are no longer produced by the facility.
1 www.anteagroup.com
Brunswick Interim Measures Plan For Groundwater
Former Hercules Brunswick Facility
Antea Group Project No. WBS2014B3
Since December 31, 1987, Hercules has been regulated as a hazardous waste facility under Hazardous Waste
Facility Permit Number HW-052(D&S) issued by EPD. In 2010, Hercules sold approximately 150-acres, which
included the chemical manufacturing and primary supporting operations areas of the facility, to Pinova, Inc.
(Pinova). Hercules retained ownership of the remaining portion of the property, primarily non-production areas to
the north and east of the physical plant. In the interim, the entire former Hercules property has continued to be
regulated under a December 4, 2012, revision to Permit HW-052(D&S), on which both Hercules and Pinova are the
identified permittees.
The main products currently produced at the facility are pale wood rosin; modified pale wood rosins (produced
through disproportionation, hydrogenation and esterification processes); and, polyterpenes. These products have
a wide variety of end uses in the adhesives, printing, and building materials industries, and as food additives.
Glynn County lies in the Lower Coastal Plain geologic province. The strata in the Lower Coastal Plain geologic
province is comprised of unconsolidated to semi-consolidated layers of sand and clay, an
Preview
STATE COURT OF GWINNETT COUNTY STATE OF GEORGIA LANIER PARKWAY ASSOCIATES, ) LLC, ADAMS PROPERTIES ) ASSOCIATES, LLC, ANNE ADAMS ) RABBINO, RONALD M. ADAMS, and ) WALTER D. ADAMS, ) ) Case No.: 22-C-01681-S1 Plaintiffs, ) ) vs. ) ) HERCULES, LLC, ASHLAND, LLC, ) and PINOVA, (DE) INC., ) ) Defendants. ) PLAINTIFFS’ RESPONSE TO DEFENDANTS’ BRIEF IN SUPPORT OF FORUM NON CONVENIENS MOTION TO TRANSFER Defendants do not nearly meet their lofty burden for transferring the present action to Glynn County and have failed to demonstrate that there are any factors that cut in their favor and overcome Georgia’s strong deference to a plaintiff’s choice of venue. There is no question, and Defendants have not alleged, that venue is improper in Gwinnett County, and thus Defendants seek extraordinary relief that is not supported by the long history of Georgia cases that analyze this issue. Defendants were unable to cite a single case under Georgia law where a Court transferred a case from one proper venue within the state to another proper venue in Georgia under circumstances remotely similar to the facts here. The only cases cited by Defendants are either based on the law of other jurisdictions or on cases where a court has dismissed a case based on forum non conveniens because the overwhelming majority of witnesses were located in other states. Defendants even go as far to rely on a case where a federal court dismissed a plaintiff’s claims on forum non conveniens grounds because the plaintiffs were Japanese, and 1 the claims related to a nuclear incident in Japan. (See Defs.’ Brief at pgs. 12-13). This is a far cry from the case sub judice. This case is pending in Georgia where there are plenty of cases that have interpreted Georgia’s seven statutory factors for transferring a case within Georgia. Defendants fail to incorporate any of these cases in their briefing for one simple reason—those cases dramatically cut in favor of Plaintiff’s choice of venue and against Defendants’ motion to transfer. For all of the reasons stated below, Plaintiffs respectfully request that the Court deny Defendants’ motion and permit Plaintiffs’ claims to move forward in the forum of their choice. STATEMENT OF FACTS This is a negligence, nuisance, and trespass action involving the underground contamination of benzene, chlorobenzene, and other toxic contaminants. Defendants admit in their statement of facts that all remediation efforts conducted by Defendants include remediation of the groundwater that is contaminated well below the surface of the subject properties. (See Defs.’ Brief at pg. 3; Hercules’ Letter with Attached Interim Measures Plan for Groundwater, attached hereto as Exhibit 1). Moreover, Plaintiffs’ claims are based on the subsurface migration of these toxic substances from Defendants’ properties to Plaintiffs’ properties. (See Complaint for Damages at ¶¶ 17-19). Thus, it is unclear how a lay juror would gain any insight into Plaintiff’s claims or Defendants’ defenses from viewing the surface levels of the properties that have no visible contamination. Even the experts in this case must rely on sampling of groundwater to understand the environmental impacts of Defendants’ ongoing nuisance and trespass. (See Report of Phase 2 Sampling Activities, attached hereto as Exhibit 2). In any event, Defendants have failed and continue to fail to adequately and appropriately remediate the properties. 2 Plaintiffs’ previously filed an action in Glynn County which consisted of several years of litigation and multiple depositions. (See Summary of Depositions from the Glynn County Action, attached hereto as Exhibit 3). The locations of these depositions and the addresses of the deponents tell a very different story than what Defendants would have this Court believe in terms of the availability of evidence and location of witnesses. The depositions of Charles Hill, Denney Dobbs, James Joseph Brown, Jonathan Alix, Randall John Ellis, Jr., and Scott Recker were all taken in Atlanta, Georgia and just outside the venue of this Court. (Id.). The only depositions taken in Glynn County were Molly Matthew, Pat Grozier, Kirk Watson, and Steven Crews. (Id.). Importantly, there are no documents that have been provided by Defendants to suggest that any of these witnesses are uncooperative or unwilling to testify in Gwinnett County at trial. All remaining depositions from the first action were either taken out of state or within Georgia but a long distance from Glynn County. (Id.). With the largest airport in the world by volume, a venue in metro-Atlanta is much more convenient for the out-of-state witnesses who have already been deposed and who will be deposed in the future of this case, and it will also be more convenient for Defendants’ lead counsel who reside in Pennsylvania. While it is true that two of the three individual-Plaintiffs reside in Glynn County, they have submitted to the jurisdiction of this Court, have chosen to have their claims determined in this Court, and are cooperative and willing to be present in this Court at trial. Defendants even admit that their employees who are involved in the remediation projects of the subject properties are based in Delaware. (Defs.’ Brief at pg. 6). These employees have to travel to Glynn County from time-to-time to perform their remediation work, but this does not explain why Glynn County as a venue for this action is more convenient for these witnesses than a venue in metro-Atlanta that has the largest airport in the world. 3 Plaintiffs filed the present renewal action in Gwinnett County where venue is proper as to all parties through Defendants Hercules’ and Ashland’s 1 presence in the venue via their registered agents. There is no dispute that Gwinnett County is a proper venue for Plaintiffs’ claims, and Plaintiffs used their discretion in filing this action in Gwinnett County based on Georgia’s long history of deference to a plaintiff’s choice of venue. Plaintiffs’ prior counsel who represented them in the Glynn County action also resided in Glynn County and, with Plaintiffs, made the decision to initially file their claims in that venue. However, after careful consideration with Plaintiffs’ new counsel who have offices in Atlanta, Birmingham, and Savannah, it was determined that Gwinnett was the best and most convenient venue to have their day in Court. For all of the reasons stated herein, Defendants’ motion should be denied. ARGUMENT AND CITATION OF AUTHORITY Defendants have not met their heavy burden to transfer this case based on forum non conveniens by overcoming Georgia’s strong deference of a plaintiff’s choice of forum. Georgia law allows a trial court to transfer a case to another county within this state for forum non conveniens only after weighing a variety of factors and findings that the interests of justice require the transfer: (a) If a court of this state . . . finds that in the interest of justice and for the convenience of the parties and witnesses a claim or action would be more properly heard in…a different county of proper venue within this state, the court shall decline to adjudicate the matter under the doctrine of forum non conveniens…As to a claim or action that would be more properly heard in a different county of proper venue within this state, the venue shall be transferred to the appropriate county. In determining whether to grant a motion…to transfer venue under the doctrine of forum non conveniens, the court shall give consideration to the following factors: (1) Relative ease of access to sources of proof; 1 Defendant’s omitted that Ashland has also submitted to the jurisdiction and venue of this Court though maintaining its registered agent in Gwinnett County. 4 (2) Availability and cost of compulsory process for attendance of unwilling witnesses; (3) Possibility of viewing the premises, if viewing would be appropriate to the action; (4) Unnecessary expense or trouble to the defendant not necessary to the plaintiff’s own right to pursue his or her remedy; (5) Administrative difficulties for the forum courts; (6) Existence of local interests in deciding the case locally; and (7) The traditional deference given to a plaintiff’s choice of forum. O.G.C.A. § 9-10-31.1(a). The party seeking transfer bears the heavy burden of proving that, in light of the seven factors, the interests of justice require the court to transfer the case. See R.J. Taylor Mem’l Hosp. v. Beck, 280 Ga. 660, 662 (2006); Park Ave. Bank v. Steamboat City Dev. Co., L.P., 317 Ga. App. 289 (2012); O.G.C.A § 9-10-31.1(a). If the balance of factors does not strongly weigh in favor of the moving party, the plaintiff’s choice of forum “should not be disturbed.” St. James Entm’t, LLC v. Dash Crofts, 2010 WL 2802616 at *5 (N.D. Ga. July 13, 2010) (citing Paul, Hastings, Janofsky & Walker, LLP v. City of Tulsa, 245 F. Supp. 2d 1248, 1260 (N.D. Ga. 2002)) (emphasis added). “[A]s expressly set forth in the statute, there is . . . traditional deference given to the plaintiff’s choice of forum.” Beck, 280 Ga. At 663. The burden of proof is on the movant to establish that a case should more properly be heard in a different forum. Id.; O.C.G.A. § 9-10-31.1(a). Georgia courts have denied motions to dismiss on forum non conveniens grounds even where all parties (unlike here) were residents of another state, and the accident occurred in that state. Gowdy v. Schley, 317 Ga. App. 693 (2012) (denying a motion to dismiss an action brought in Georgia between Alabama residents involved in an accident in Alabama). A trial court has broad discretion in deciding a forum non conveniens motion; any such order is reviewed only for an abuse of discretion. Beck, supra. 280 Ga. at 662. 5 For example, in R. J. Mem. Hosp. v. Beck, a case where the defendant made very similar arguments to this case, transfer of venue from Bibb County to Pulaski County was not warranted. R. J. Taylor Mem. Hosp., Inc. v. Beck, 280 Ga. 660, 662 (2006). The defendants argued that the following facts supported a transfer from Bibb to Pulaski County based on the doctrine of forum non conveniens: the plaintiff lived in Pulaski County; the defendant hospital was located in Pulaski County; all pertinent medical records were located in Pulaski County; and all interactions between plaintiff and the several defendants occurred in Pulaski County. Id. at 662. Under those facts, the Georgia Supreme Court agreed that transfer was not warranted. Id. The court emphasized that defendants set forth nothing in the record showing that compulsory process of witnesses would be necessary because of venue in Bibb County, there was no demonstrated need to view the premises at issue, and further, nothing showed the hospital is unnecessarily inconvenienced by litigating the matter in Bibb County. Id. The court also noted that it was “difficult to accept the assertions that what is at issue affects the receipt of medical care solely in Pulaski County or that there is no local interest in deciding the case in Bibb County.” Id. at 663. Further, the Bibb County court determined there would be no administrative difficulties for the case to proceed there. Id. Finally, the court noted the traditional deference afforded to a plaintiff’s choice of forum, and after an evaluation of the statutory factors, upheld the trial court’s denial of transfer. Id. Here, upon application of the various factors, Defendants have failed to meet their heavy burden of proving the necessity for transferring this case to another venue, and this Court should reject Defendants’ attempt to have this case unilaterally transferred. As set forth below, Defendants’ recitation of the relevant factors is flawed and incomplete, and they fail to provide 6 support for the proposition that in the interest of justice, Plaintiffs’ right to pursue their case in their chosen forum should be disrupted. 1. Relative Ease of Access to Sources of Proof. To analyze the “relative ease of access to sources of proof,” a court must “scrutinize the substance of the dispute between the parties to evaluate what proof is required, and determine whether the pieces of evidence cited by the parties are critical, or even relevant, to the plaintiff’s cause of action and to any potential defenses to the action. Van Cauwenberghe v. Biard, 486 U.S. 517, 528 (1988). Defendants did not even attempt to provide evidence or point to any legal authority that supports their motion on this factor. They merely make the conclusory allegations that “Plaintiffs’ and Defendants’ properties and the environmental impacts to them” are the “key sources of proof.” (Defs.’ Brief at pgs. 13-14). While it is true that much testing has been completed on the subject properties and that more testing will continue, Defendants fail to show why this evidence can more easily be accessed or presented to the court in Glynn County as opposed to this Court. The ease of access to this proof is the same no matter what court in Georgia this case is pending. However, the Court should look no further than where the significant majority of depositions occurred when the case was filed in Glynn County. (Ex. 3, Summary of Depositions from the Glynn County Action). The depositions of Charles Hill, Denney Dobbs, James Joseph Brown, Jonathan Alix, Randall John Ellis, Jr., and Scott Recker were all taken in Atlanta, Georgia. (Id.). Most of these witnesses are either employees of Defendants, were designated representatives of Defendants, or were engineers hired by Defendants, and the locations of these depositions were picked by Defendants. So the Court should look no further than Defendants’ 7 own actions and representations as to what venue is more convenient for this case—metro Atlanta. Other than two of the Plaintiffs (who have chosen Gwinnett County to have their claims decided), the only witnesses whose depositions were in Glynn County were Molly Matthew, Pat Grozier, Kirk Watson, and Steven Crews. (Id.). Defendants have not provided any evidence that the relative ease of access to these witnesses is greater in Glynn County than it is in Gwinnett County. The remaining depositions were taken in Americus, Georgia (Dennis Carey) (Americus is closer to Gwinnett County than Glynn County), Scottsdale, Arizona (Kristina Woods), Cynwyd, Pennsylvania (Timothy Hassett), and New York, New York (Plaintiff Anne Adams Rabbino). (Id.). In addition to where the witnesses reside, virtually all of the evidence in this case is electronic and based on expert reports, sampling data, and other information that can be accessed with the click of a button. The seven-factor test created for transferring a case based on forum non conveniens was generated in a time where evidence was stored in hard-copy files and maintained at a central location. With present-day technology, Defendants simply cannot show that the “relative ease of access to sources of proof” is in any way affected by the venue of the case. Due to the clear witness availability in and around Atlanta, the technological ease of access of electronic documents, and the lack of any proof otherwise provided by Defendants, factor one cuts greatly in Plaintiffs’ favor. 2. Availability and Cost of Compulsory Process for Attendance of Unwilling Witnesses. Defendants, who bear the ultimate burden of proof on this motion, have not filed a single affidavit or other document that supports the contention that there are any unwilling witnesses or 8 that there will be any costs incurred at trial in Gwinnett County that are not the same or less than the costs associated with trying this case in Glynn County. For this reason alone, Defendants have failed to meet their burden on this factor of the analysis. This is not like a personal injury case where there are dozens of neutral EMTs, police officers, and other eye-witnesses who are necessary for trial, and Defendants have not identified a single neutral fact-witness who will be compelled to travel a longer distance to Glynn County than to Gwinnett County. In fact, the overwhelming majority of neutral fact witnesses reside in Atlanta and metro Atlanta—much closer to the current venue than the venue proposed by Defendants. (Ex. 3). From the same summary discussed in the prior factor, the witnesses who reside in Georgia are located in Brookhaven, Covington, Cobb, Mableton, and Richmond Hill. Only two witnesses other than Plaintiffs reside in Glynn County. (Id.). But even if every single witness resided in Glynn County, this would only be half of the battle for Defendants’ burden of proof under factor 2. Under this factor the court must only analyze the availability and costs associated with compelling unwilling witnesses to testify at trial. Defendants have simply made no showing that any of the witnesses in this case are unwilling to participate at trial. Without providing any proof, affidavit, or other valid evidence, Defendants make the statement that a single witness, Brian Considine, is the “most likely to be uncooperative or unwilling to participate” in the trial of this matter. (Defs.’ Brief at pg. 14). Even if they could prove, which they have not, that Mr. Considine is “uncooperative or unwilling” to testify at trial, Defendants fail to demonstrate why it would be prohibitively costly to compel his attendance at trial. Mr. Considine resides within the state of Georgia and this Court has the power of compulsion over him for trial. In addition, Defendants fail to describe why they cannot depose Mr. Considine and play his videotaped deposition at trial. Finally, Mr. Considine does not 9 live in Glynn County and would have to travel at least an hour and a half to testify in Glynn County as opposed to approximately four hours in Gwinnett County. So essentially, Defendants entire costs of having this case tried in Gwinnett instead of Glynn is the difference in approximately 2.5 hours of driving time of a single witness. This does not come close to overcoming Georgia’s strong deference to a plaintiff’s choice of forum. Tellingly, in its analysis of factor 5, Defendants admit that “attendance of witnesses is not expected to be a significant issue in either jurisdiction.” (Defs.’ Brief at pg. 17). This begs the question of why Defendants are even arguing that factor two cuts in their favor at all. It clearly does not, and Defendants have utterly failed to prove that this factor even remotely cuts in their favor. 3. Possibility of Viewing the Premises. This case involves a toxic contamination by Defendants of Plaintiffs’ properties. This toxic contamination almost exclusively exists below the surface of the properties and is undetectable based on a basic inspection of the surface level of the property. In a Hail Mary attempt to have this Court overrule the strong deference typically afforded to plaintiffs when choosing a proper venue, Defendants make the conclusory allegation that the subject premises in this matter must be viewed by the jury. There is absolutely nothing that can be gleaned by naked-eye viewing of the subject premises as the contamination of the properties is almost entirely contained underneath the surface and beyond the view of any juror. Even the expert witnesses cannot evaluate any of Plaintiffs’ claims based on a basic, surface inspection and require intricate subsurface testing for their evaluations. Defendants completely fail to demonstrate how viewing the premises would provide any benefit to the potential jurors of this case. The maps, drawings, data samples, expert analyses, and all other technical proof that will 10 be offered at the trial of this case does not require the trial to occur anywhere near the subject premises. Defendants have failed to show how the thousands of pages of documentary evidence and expert testimony that will be easily shown to a jury somehow is not adequate or complete evidence or how the viewing of the property with contamination completely obscured to the jury’s view will somehow add anything. Factor three cuts in Plaintiffs’ favor because a viewing of the premises would be a complete waste of time and judicial resources. 4. Unnecessary Expense or Trouble to the Defendants Not Necessary to the Plaintiff’s Own Right to Pursue Their Remedies. Defendants have utterly failed to show how litigation in Gwinnett County versus Glynn County would cause Defendants “[u]nnecessary expense or trouble,” or that Plaintiffs selected a forum in order to “vex,” “harass,” or “oppress” Defendants by inflicting costs unnecessary to pursuit of the plaintiffs’ remedy. Defendants’ conclusory allegations that it will be “inconvenienced by travelling regularly to Gwinnett County” have absolutely no merit. Defendants fail to offer any analysis of factor 4 in their briefing and merely reiterate arguments pertaining to other factors that are also noticeably lacking in substance. They misstate the standard of factor 4 by their heading that states “[n]one of the parties have a regular presence in Gwinnett County or the Atlanta area.” (Defs.’ Brief at p. 17). First, the “regular presence” of the parties is not an enumerated factor in any cases, and Defendants do not cite to any cases or law that offer this conclusion. Second, even if this was a factor to be considered, Defendants’ make the false statement that no party has a presence in Gwinnett County. In fact, the very reason why venue is proper in Gwinnett County is due to Defendants Hercules’ and Ashland’s presence in Gwinnett County where they maintain their registered agents. Consequently, factor four also cuts in Plaintiffs’ favor. 11 5. Administrative Difficulties for the Forum Courts. Defendants admit that there is “not expected to be a significant issue in either jurisdiction” but again makes the false allegation that “more witnesses are located in or around Glynn County” and that somehow this supports that attendance is more likely in that venue. (Defs.’ Brief at pg. 17). As shown above, the significant majority of witnesses reside well- outside of Glynn County. Defendants misapply the standard under this factor where “administrative difficulties” typically involve the application of different laws or administrative delays based on factors such as parallel pending litigation. See e.g., Hawkins v. Blair, 334 Ga. App. 898, 903 (2015) (court ruled that administrative difficulties favored dismissal where a Georgia court would be asked to apply South Carolina law); Waldon v. Alger, 352 Ga. App. 496, 499 (2019) (Georgia Court of Appeals agreed that the trial court properly supported its decision to dismiss where the trial court considered that there was parallel ongoing litigation in Florida and that “administrative delays and scheduling conflicts due to travel arrangements and accommodations of the parties and witnesses” would be too difficult). Any venue in Georgia that conducts the trial of this case will have to apply Georgia law and there are no parallel actions related to this action that will cause unnecessary delays. This factor unequivocally cuts in favor of the Court retaining jurisdiction. Again, Defendants have failed to cite to any Georgia cases similar to this case or supply the Court with any facts that support transfer under factor five. Defendants have thus failed to meet their burden under this factor. 6. Existence of Local Interests in Deciding the Case Locally. Defendants again do not cite to any cases or other law nor do they point to any facts that support their motion to transfer on factor six of the forum non conveniens analysis. It is 12 Defendants’ burden to show the Court why they are entitled to the relief being sought, and mere conclusory allegations will not suffice. Even if those conclusory allegations are taken at face value, this factor still cuts against Defendants. The residents of Gwinnett County are a proud community that would likely not like the fact that two large corporations registered to do business within the county are polluting Georgia with toxic chemicals that are known to cause cancer and other disease. This community would also not likely be happy with Defendants’ continued refusal to clean up their mess. Defendants’ assertion that Gwinnett County does not have an interest in holding one of its own accountable for this reprehensible behavior is completely misguided. One of the main reasons why the Georgia legislature made venue proper in the county where a corporation maintains its registered agent is because those communities have a vested interest in policing the conduct of those corporations. Defendants are attempting to avoid the consequences of facing a Gwinnett County jury because they do not want to face the community in which Georgia law provides that Hercules and Ashland reside. Defendants have not met their burden under factor six. 7. The Traditional Deference Given to a Plaintiff’s Choice of Forum. Not even Defendants can argue that this factor favors their motion. However, Defendants attempt to downplay the significance of this factor by stating that “Plaintiffs’ choice of forum is entitled to some deference.” (Defs.’ Brief at pg. 19) (emphasis added). It is understandable why Defendants attempt to downplay this factor, but Georgia law is clear that the deference of a plaintiff’s choice of forum is strong and must be clearly overcome by the other factors listed above. Defendants have not come close to meeting this lofty burden and has not provided a shred of evidence to support even one of the above factors. This motion should be denied. 13 CONCLUSION Defendants carry the heavy burden of proving that the seven statutory factors applied to a forum non conveniens analysis overcome the strong deference afforded to Plaintiffs’ choice of a proper venue in Gwinnett County. They did not even attempt to acquire and file affidavits that there are unreasonable costs and unwilling trial participants that will make the trial of this matter in Gwinnett County more difficult or inconvenient. The interests of justice dictate that this case should remain in Gwinnett County where the citizens of this venue have a vested interest in policing the malfeasance of corporations that reside there. Accordingly, Defendants’ motion should be denied. This 25th day of July, 2022. /s/ Andy Conn Andrew J. Conn Georgia Bar No. 732541 410 East Broughton Street Savannah, Georgia 31401 Telephone: 912-651-9967 Facsimile: 912-651-1276 aconn@hlmlawfirm.com FRIEDMAN, DAZZIO & ZULANAS, P.C. /s/ Matt Conn Matt Conn* *Application for Admission Pro Hac Vice Forthcoming 3800 Corporate Woods Drive Birmingham, Alabama 35242 Telephone: 205-278-7000 Facsimile: 205-278-7001 mconn@friedman-lawyers.com 14 CERTIFICATE OF SERVICE I hereby certify that I have this date served the within and foregoing upon all parties electronically, statutory electronic mail, or by depositing a copy of same in the United States Mail in a properly addressed envelope with adequate postage thereon to ensure delivery to: Mark D. Johnson GILBERT HARRELL SUMERFORD &MARTIN, P.C. P.O. Box 190 Brunswick, GA 31521-0190 mjohnson@gilbertharrelllaw.com Kathleen B. Campbell Garrett D. Trego MANKO GOLD KATCHER & FOX, LLP 401 City Avenue, Suite 901 Bala Cynwyd, PA 19004 kcampbell@mankogold.com gtrego@mankogold.com Respectfully submitted July 25, 2022, /s/ Andy Conn Andrew J. Conn Georgia Bar No. 732541 410 East Broughton Street Savannah, Georgia 31401 Telephone: 912-651-9967 Facsimile: 912-651-1276 aconn@hlmlawfirm.com FRIEDMAN, DAZZIO & ZULANAS, P.C. /s/ Matt Conn Matt Conn* *Application for Admission Pro Hac Vice Forthcoming 3800 Corporate Woods Drive Birmingham, Alabama 35242 Telephone: 205-278-7000 15 Facsimile: 205-278-7001 mconn@friedman-lawyers.com 16 EX 1 Brunswick Interim Measures Plan For Groundwater Former Hercules Brunswick Facility Antea Group Project No. WBS2014B3 June 6, 2014 Prepared for: Prepared by: Hercules Incorporated Antea®Group Hercules Research Center 8008 Corporate Center Drive 500 Hercules Road Suite 100 Wilmington, DE 19808 Charlotte, NC 28226 1-800-477-7411 Antea USA, Inc. Brunswick Interim Measures Plan For Groundwater Former Hercules Brunswick Facility Antea Group Project No. WBS2014B3 June 6, 2014 Prepared for: Hercules Incorporated Hercules Research Center 500 Hercules Road Wilmington, DE 19808 Prepared by: Antea®Group 8008 Corporate Center Drive Suite 100 Charlotte, NC 28226 Brunswick Interim Measures Plan For Groundwater Former Hercules Brunswick Facility Antea Group Project No. WBS2014B3 Table of Contents 1.0 INTRODUCTION ........................................................................................................................................................... 1 1.1 SITE DESCRIPTION AND BACKGROUND .................................................................................................................. 1 1.2 REGULATORY OVERVIEW ........................................................................................................................................ 2 1.3 PHASE III RFI FINDINGS ........................................................................................................................................... 3 1.4 INTERIM MEASURES PLAN OBJECTIVE .................................................................................................................... 4 1.5 NON-INTERIM MEASURES VOLUNTARY INVESTIGATION EFFORTS ........................................................................ 4 2.0 GENERAL TECHNOLOGY EVALUATION AND CONCEPTUAL INTERIM MEASURES APPROACH ..................................... 5 2.1 ADDITIONAL FIELD AND LABORATORY DATA COLLECTION, ANALYSES, AND EVALUATION ................................... 7 2.2 BENCH AND FIELD SCALE PILOT TESTING AND DATA EVALUATION ....................................................................... 9 2.3 INTERIM MEASURES DESIGN AND IMPLEMENTATION ......................................................................................... 12 2.4 POST-IMPLEMENTATION EFFECTIVENESS EVALUATION ...................................................................................... 12 3.0 ESTIMATED SCHEDULE OF PERFORMANCE ............................................................................................................... 13 4.0 REMARKS ................................................................................................................................................................... 13 5.0 CERTIFICATIONS ........................................................................................................................................................ 14 Figures Figure 1 Site Location Map Figure 2 Shallow Zone Groundwater Benzene Distribution Figure 3 Intermediate Zone Groundwater Benzene Distribution Figure 4 Lower Zone Groundwater Benzene Distribution Figure 5 Conceptual Site Groundwater Transport Pathways Figure 6 3-Dimensional Groundwater Benzene Distribution Figure 7 Proposed Interim Measures and Monitoring Well Location Map Attachments Attachment 1 December 21, 2013 GA EPD Correspondence to Hercules Attachment 2 Preliminary Remediation Technologies Evaluation Matrix Attachment 3 PLUMESTOP™ COLLOIDAL BIOMATRIX: Securing Rapid Contaminant Reduction And Accelerated Bioremediation Using A Dispersive Injectable Reagent” Regenesis UK, Bath, UK and Regenesis San Clemente, CA USA. May 2014 i www.anteagroup.com Brunswick Interim Measures Plan For Groundwater Former Hercules Brunswick Facility 1.0 INTRODUCTION This Interim Corrective Action Plan for Groundwater pursuant to Hazardous Waste Facility Permit HW-052(D&S) permit condition V.E. is prepared in response to a December 23, 2013, correspondence from the Georgia Environmental Protection Division (EPD) requesting that Hercules ”… implement corrective action beyond the property boundary, where necessary to protect human health and the environment [and]…prepare an Interim Measures Plan to address offsite contamination…”. The purpose of this Plan is to reduce dissolved groundwater concentrations on-site, and mitigate offsite migration of dissolved volatile organics in groundwater. On March 12, 2014, Hercules met with EPD to discuss their request, and to present a preliminary conceptual interim measures approach. During the meeting, Hercules and EPD discussed a collaborative effort regarding communication with the community, proposed technologies for interim corrective measures and voluntary actions by Hercules to conduct additional investigation activities both on-site and off-site. Hercules provided a more detailed description, and summary of the March 12, 1014 meeting, in an April 14, 2014 correspondence to EPD. This plan was prepared in response to EPD’s December 23, 2013 request, the March 12, 2014 meeting, and Hercules’ April 14, 2014 correspondence. 1.1 SITE DESCRIPTION AND BACKGROUND The former Hercules Incorporated (Hercules) facility is located In Glynn County, Georgia near U.S. Highway 17, north of the Torras Causeway in the City of Brunswick (Figure 1). The Former Hercules facility occupies approximately 300-acres, 50-acres of which are actively utilized for chemical manufacturing and support operations. The remaining 250-acres are primarily utilized as stump-wood storage, and as a perimeter buffer zone. Adjacent land to the north and west of the site consist of single and multi-family residential properties. Commercial and residential properties, and a park are located to the south. Dupree Creek and Terry Creek, and a tidal marsh, are located to the east across Highway 17 from the site. Site operations for the manufacturing of wood rosins, turpentine and pine oils began in 1911. The facility was purchased by Hercules in 1920. Wood rosin and terpene oils are produced primarily from a milling and extraction process of pine stumps that come from the Southeastern US. Between 1948 and 1980, toxaphene was also produced at the facility.Other non-rosin products including CMC, di-isopropyl benzene (DIB) and Kymene (wet- strength resin) were once produced at the site, but are no longer produced by the facility. 1 www.anteagroup.com Brunswick Interim Measures Plan For Groundwater Former Hercules Brunswick Facility Antea Group Project No. WBS2014B3 Since December 31, 1987, Hercules has been regulated as a hazardous waste facility under Hazardous Waste Facility Permit Number HW-052(D&S) issued by EPD. In 2010, Hercules sold approximately 150-acres, which included the chemical manufacturing and primary supporting operations areas of the facility, to Pinova, Inc. (Pinova). Hercules retained ownership of the remaining portion of the property, primarily non-production areas to the north and east of the physical plant. In the interim, the entire former Hercules property has continued to be regulated under a December 4, 2012, revision to Permit HW-052(D&S), on which both Hercules and Pinova are the identified permittees. The main products currently produced at the facility are pale wood rosin; modified pale wood rosins (produced through disproportionation, hydrogenation and esterification processes); and, polyterpenes. These products have a wide variety of end uses in the adhesives, printing, and building materials industries, and as food additives. Glynn County lies in the Lower Coastal Plain geologic province. The strata in the Lower Coastal Plain geologic province is comprised of unconsolidated to semi-consolidated layers of sand and clay, an