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Case: 23CI1:18-cv-00104 Document #: 13 Filed: 04/01/2019 Page 1 of 5

IN THE CIRCUIT COURT OF HANCOCK COUNTY, MISSISSIPPI

BOUDIN’S ENVIRONMENTAL SERVICES, LLC


AND ROBERT JOSEPH BOUDIN, JR. APPELLANTS

V. CAUSE NO. 18-0104

BOARD OF SUPERVISORS OF
HANCOCK COUNTY, MISSISSIPPI APPELLEE
________________________________________________________________________________________________________________

APPELLANTS’ REPLY BRIEF
___________________________________________________________________________________

ARGUMENT IN REPLY

In addition to the illegal action taken by the Board of Supervisors in the denial of the Boudin

application, the action of the Board and its determination as set forth in the transcript of their April 2,

2018, meeting (pages 272 through 314) clearly shows that the action is arbitrary and capricious and is not

fairly debatable. The only time the Supervisors discussed this matter is in the above-mentioned meeting.

There were reasons given in regard to the Motion to approve the application, but there were no reasons

given regarding the vote to deny the application; there was simply a majority vote against the Motion to

Approve. The well-worded Resolution was not the product of the Supervisor’s meeting but came from

out of the blue, because it did not exist at the time they voted on it. The Resolution itself doesn’t even

recite that there was a motion to approve the Resolution and a second. It is just a resolution without a

mention of a motion or a second. Perhaps that was because there was not a motion made regarding the

Resolution at the April 2, 2018 meeting.

Mr. Yarborough’s argument that of the Board of Supervisors relied on the Compton

Report is misplaced in that the Compton Report did not say that there is not a need for additional

Class I space. That report said there wasn’t a need “solely based on capacities.” Then Compton

went on to make the statements quoted on page 2 of this brief.

Mississippi Code Section 17-7-5 and 19-5-17 clearly impose a duty on the county (in this

case one assumed by the Hancock County Solid Waste Authority) to plan for and provide

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Case: 23CI1:18-cv-00104 Document #: 13 Filed: 04/01/2019 Page 2 of 5

rubbish disposal capacity for 20 years. The plan adopted by the County (beginning 2008)

provided for 9,000,000 cubic yards of disposal capacity for a 20-year period.

The Authority’s plan calls for a minimum of two Class I rubbish facilities. There is only

one in operation.

The record shows that the only existing site (the King’s site) charges whatever tariff the

market will bear and has no set fees, thus an operator like Boudin has to dispose of Hancock

County waste outside of Hancock County because of the very failure of the County to have the

two disposal sites that are required by the plan. Mr. Boudin’s testimony before the Planning

Commission (see record page 285) is that he is moving 11,430 tons of rubbish a year outside of

Hancock County.

The main thrust of the County’s position in this matter is that the Engineer for the

Hancock County Solid Waste Authority reported that there was not a need for additional Class I

space. A careful reading of the report of Compton Engineering, which is found on pages 1537

through 1544 of the record, indicates that the Compton report says that the applicant did not

clearly identify a need for additional space based on capacities. The summary in the Compton

Report, found on page 1543 of the record, goes further to state as follows:

As indicated in the review the Applicant does provide some potentially


positive and significant effects of an additional Class I site. As previously
stated in the review these potential benefits are operating/business decisions
to be contemplated by the HCSWA. The economic benefits the applicant
presents while hard to specifically quantify are in fact potentially valid
benefits to the public and local government entities. The applicants proposed
site as submitted does appear to have adequate capacity to handle the waste
stream that they have indicated they would potentially be hauling to the site
based on a required 20 year design life. Consequently it potentially would
also have available capacity for any outside waste. These observations are
based on numbers provided in the request and would be subject to change
with any changes in estimated volumes of waste streams.

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Case: 23CI1:18-cv-00104 Document #: 13 Filed: 04/01/2019 Page 3 of 5

The Court’s attention is also called to the fact sheet found on page 1774 of the record,

which states as follows:

Based on the analysis above and the chart below, it is clear that the quantity
of Class I rubbish has increased 302% (3,938 tons/year to 11,895 tons/year)
between the Pre-Katrina and Post Katrina Eras while the generation rate of
Class II Rubbish has been reduced to 30% of Pre-Katrina era quantities.
Considering that the combined Class I and Class II rubbish has increased
17.9% (11,780 to 13,891 tons/year) between the Pre-Katrina and Post
Katrina eras along with the change in rubbish composition, Class I rubbish
disposal space is plainly needed more today (the Post Katrina era) than the
Pre-Katrina era.

The Board of Supervisors’ Resolution summarily dismisses the fact that the plan calls for

two Class I sites, and there is only one Class I site available. Clearly that creates a monopoly

and does not comply with the existing plan.

The Authority set up for Hancock County to investigate and recommend these manners

carefully considered this and both in its preliminary recommendation and in its final

recommendation unanimously agreed and recommended that the Boudin application be

approved.

A careful reading of the comments made by the Supervisors during their meeting held on

April 2, 2018 (see record pages 272 through 314) clearly indicates that this was not a factual

determination by the Board but a political decision influenced not by the record or the facts but

by their political preferences and loyalties. This is further made manifestly clear by the manner

in which in they adopted their Resolution. The vote called for in the Supervisor’s meeting held

on April 2, 2018, was not against the application, it was for the application, which was defeated.

But the resolution, which was not even before them that day, is worded entirely different. It is

not consistent with the minutes. Everything they did was arbitrary, capricious and totally illegal,

and this matter should be literally taken out of the hands of the Board of Supervisors and

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Case: 23CI1:18-cv-00104 Document #: 13 Filed: 04/01/2019 Page 4 of 5

remanded with instructions to approve the Boudin application and the recommendation of the

Hancock County Solid Waste Authority, since the Board of Supervisors has clearly indicated that

it cannot do so in a fair and legal manner.

RESPECTFULLY submitted, this the 1st day of April 2019.

BOUDIN’S ENVIRONMENTAL SERVICES,


LLC
AND ROBERT JOSEPH BOUDIN, JR.

By: /s/ Virgil G. Gillespie


VIRGIL G. GILLESPIE, their attorney

Prepared by:

Virgil G. Gillespie, MSB No. 4843


GILLESPIE LAW FIRM
1901 24th Avenue (39501)
P.O. Box 850
Gulfport, MS 39502
Phone: (228) 864-4520
Fax: (866) 859-2530
vgg@gillespielawfirm.com

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Case: 23CI1:18-cv-00104 Document #: 13 Filed: 04/01/2019 Page 5 of 5

CERTIFICATE OF SERVICE

I, Virgil G. Gillespie, hereby certify that I have this day electronically filed the foregoing
Appellant’s Reply Brief or other paper with the Clerk of the Court using the MEC system, which
sent notice of such filing to the following:

Gary M. Yarborough, Jr., Esq.


Yarborough Law Firm, PLLC
845-B Highway 90
Bay St. Louis, MS 39520
ylf.garyyarborough@att.net

I further certify that I have mailed a copy of the foregoing Brief via U.S.P.S. mail,
postage pre-paid, to the following:

Judge Lawrence P. Bourgeois, Jr.


Harrison County Circuit Court
P.O. Box 1461
Gulfport, MS 39502

So certified, this the 1st day of April 2019.

/s/ Virgil G. Gillespie


VIRGIL G. GILLESPIE, MSB No. 4843

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