United States v. Reuter Recycling of Florida, Inc. and Waste Management Inc. of Florida; Proposed Final Judgment and Competitive Impact Statement

DEPARTMENT OF JUSTICE

Antitrust Division

United States v. Reuter Recycling of Florida, Inc. and Waste

Management Inc. of Florida; Proposed Final Judgment and Competitive

Impact Statement

Notice is hereby given pursuant to the Antitrust Procedures and

Penalties Act, 15 U.S.C. Sec. 16(b)-(h), that a proposed Final Consent

Judgment, Stipulation, and Competitive Impact Statement have been filed

with the United States District Court for the District of Columbia, in

a civil antitrust case, United States v. Reuter Recycling of Florida,

Inc. and Waste Management Inc. of Florida, Civ. No. 1:95CV01982.

On October 20, 1995, the United States and the State of Florida

filed a Complaint seeking to enjoin a

[[Page 55731]]

transaction by which Waste Management Inc. of Florida agreed to acquire

Reuter. Waste Management and its affiliates constitute one of only two

private competitors in the market for solid waste disposal services in

Broward and Dade Counties, Florida. The other private competitor--

Chambers Waste Systems of Florida, Inc.--can only effectively compete

in that market because it has access to a transfer station owned by

Reuter. Waste Management would acquire that transfer station in the

acquisition. The Complaint alleged that the proposed acquisition may

substantially lessen competition in the municipal solid waste disposal

services market in Dade and Broward Counties, Florida, in violation of

Section 7 of the Clayton Act, 15 U.S.C. 18.

The proposed Final Judgment requires defendants to give Chambers

unimpeded access to the Reuter Transfer Station for up to five years.

It also requires defendants to make certain real estate available to

Chambers for up to five years upon which Chambers may construct its own

transfer station. A Competitive Impact Statement filed by the United

States describes the Complaint, the proposed Final Judgment, and

remedies available to private litigants.

The Public is invited to comment to the Justice Department and to

the Court. Comments should be addressed to Anthony V. Nanni, Chief,

Litigation I Section, U.S. Department of Justice, Antitrust Division,

1401 H Street N.W., Room 4000, Washington, D.C. 20530 (telephone: (202)

307-5777). Comments must be received within sixty days.

Copies of the Complaint, proposed Final Judgment, and Competitive

Impact Statement are available for inspection in Room 207 of the U.S.

Department of Justice, Antitrust Division, 325 7th Street, N.W.,

Washington, D.C. 20530 (telephone: (202) 514-2481). Copies of these

materials may be obtained upon request and payment of a copying fee.

Constance K. Robinson,

Director of Operations.

In the United States District Court for the District of Columbia

In the matter of: UNITED STATES OF AMERICA, and STATE OF

FLORIDA, by and through its Attorney General, Plaintiffs, v. REUTER

RECYCLING OF FLORIDA, INC., and WASTE MANAGEMENT INC. OF FLORIDA,

Defendants. Civil Action No.: 1:95CV01982; Filed: 10/20/95; Judge

Royce C. Lambert.

Complaint

The United States of America, acting under the direction of the

Attorney General of the United States, and the State of Florida, acting

under the direction of the Attorney General of the State of Florida,

plaintiffs, bring this civil action to obtain equitable and other

relief against the defendants named and allege as follows:

1. The United States and the State of Florida bring this antitrust

case to prevent the proposed acquisition by Waste Management Inc. of

Florida (``WMF'') of Reuter Recycling of Florida, Inc. (``Reuter'').

The acquisition will reduce the entities competing for municipal solid

waste disposal service in the relevant geographic market from three to

two and will substantially increase concentration among municipal solid

waste disposal entities in that market.

2. If this transaction is not blocked, consumers will be harmed by

having to pay significant and immediate price increases for municipal

solid waste disposal service, as the history in the market indicates.

After Chambers Waste Systems of Florida, Inc. (``Chambers'') entered

the relevant geographic market by using a transfer station owned by

Reuter, prices for municipal solid waste disposal service dropped

substantially. Consequently, this transaction must be enjoined to

protect consumers.

I

Jurisdiction and Venue

3. This action is filed under Section 15 of the Clayton Act, 15

U.S.C. 25, and 15 U.S.C. 26, to prevent and to restrain the violation

by the defendants, as hereinafter alleged, of Section 7 of the Clayton

Act, 15 U.S.C. 18.

4. Reuter and WMF are engaged in interstate commerce and in

activities substantially affecting interstate commerce. The Court has

jurisdiction over this action, over the parties, and venue is

appropriate in this District, pursuant to 15 U.S.C. 22 and 28 U.S.C.

Secs. 1391 and 1337, since both defendants consent to personal

jurisdiction in this proceeding.

II

Defendants

5. WMF is a Florida corporation with its principal offices in

Pompano Beach, Florida. WMF provides municipal solid waste disposal

service within the State of Florida. In 1994, WMF reported total

revenues of over $245 million.

6. Reuter is a Florida corporation with its principal offices in

Pembroke Pines, Florida. Reuter provides municipal solid waste disposal

service within the State of Florida through the Transfer Station

Agreement with Chambers. In 1994, Reuter reported total revenues in

excess of $13 million.

IV

Trade and Commerce

7. Municipal solid waste is nonhazardous waste collected from

households, and commercial and industrial establishments. It includes

waste that is putrescible (such as garbage) and compactible but does

not include construction and demolition debris. The waste is generally

collected by municipalities or private haulers with collection trucks.

When the collection truck is full, it must leave its collection route

and travel to a municipal solid waste disposal site where the truck is

emptied.

8. Municipal solid waste disposal service is the final disposal of

municipal solid waste in a landfill or a facility that incinerates that

waste. Municipal solid waste can be transported to a relatively distant

final disposal site by using a transfer station. At a transfer station,

municipal solid waste is received from municipal and private haulers.

Generally, the waste is combined, further compacted, and then loaded

into large tractor trailer trucks. These tractor trailer trucks can

economically transport that waste a considerably longer distance to a

final disposal site than can collection trucks.

9. The provision of municipal solid waster disposal service is a

relevant product for purposes of analyzing this acquisition under the

Clayton Act. There is no practical substitute for municipal solid waste

disposal service to which a significant number of customers would

switch in response to a small but significant, nontransitory increase

in price imposed by all providers of municipal solid waste disposal

service.

10. State and federal laws restrict the facilities that may accept

municipal solid waste for final disposal. Municipal solid waste

disposal service is provided to consumers in Dade and Broward Counties

through facilities owned or operated by Defendant WMF, directly or

through its affiliates, in Broward County, Florida and in Dade County,

Florida, owned or operated by Dade County, Florida in Dade; and, owned

by Chambers in Okeechobee County, Florida, about 100 miles north of

Dade. Chambers transports municipal solid waste to its Okeechobee

landfill from the Reuter transfer station in southern Broward pursuant

to an agreement between Reuter and Chambers dated July 14, 1993

(``Transfer Station Agreement''). The Reuter transfer station is

currently the only means by which Chambers can transport municipal

solid waste from consumers in Dade and

[[Page 55732]]

Broward Counties to its landfill in Okeechobee County.

11. The relevant geographic market for purposes of analyzing this

transaction is Broward and Dade Counties, Florida. The above facilities

are the only significant disposal sites for Broward and Dade municipal

solid waste. County-owned facilities in St. Lucie, Martin and Palm

Beach Counties are not alternative municipal solid waste disposal sites

for Dade and Broward Counties, since the distance from Dade and Broward

Counties is too great to be economically travelled by collection

trucks. In addition, these facilities do not generally take out-of-

county waste and are much higher priced alternatives than the

Okeechobee landfill for waste from the relevant geographic market. It

is not economically efficient for municipal solid waste haulers to

transport that waste long distances in collection trucks to a municipal

solid waste disposal site. Consequently, haulers generally transport

the waste to nearby landfills or incinerators or transfer stations that

enable waste economically to be hauled to more distant disposal sites.

Therefore, other municipal solid waste disposal sites outside the area

are not substitutes for service provided by the facilities described in

paragraph 10.

12. Defendant WMF and Chambers compete with each other and with

Dade to provide municipal solid waste disposal service to

municipalities and private haulers in the relevant geographic market.

WMF, Chambers, and Dade bid against one another for the right to

dispose of municipal solid waste in that area. The vast majority of

this waste is generated in Dade. Chambers is currently able to compete

for this waste only because it has access to the transfer station owned

by Defendant Reuter in southern Broward County, Florida pursuant to the

Transfer Station Agreement.

13. The acquisition of Reuter by WMF will have the effect of

excluding Chambers from its only current means of economically

providing municipal solid waste disposal service in Broward and Dade

Counties in competition with WMF and Dade and will therefore reduce the

firms competing for municipal solid waste disposal service there from

three to two. Therefore, the acquisition of Reuter by WMF will

substantially increase concentration among municipal solid waste

disposal entities in the relevant geographic market. Using a measure of

market concentration called the HHI, defined and explained in Appendix

A, the acquisition of Reuter by WMF would increase the HHI by about

1,700 to about 5,000.

14. The only significant competitor of WMF that would remain after

the acquisition is Dade County. Rivalry between WMF and Dade County

alone will not prevent prices from rising, because Chambers provides a

substantial competitive check on WMF's and Dade County's individual

ability to set prices for their services. This is evidenced by the

substantial drop in municipal solid waste disposal service prices that

followed Chambers' entry into the market.

15. There are substantial barriers to entry into municipal solid

waste disposal service in the relevant geographic market. The siting,

permitting and construction of a municipal solid waste landlfill or

incinerator within or near Dade will take well in excess of two years,

if such a facility is permitted to be constructed at all. Furthermore,

the zoning, siting, permitting and construction of a municipal solid

waste transfer station in a commercially and economically feasible

location to receive municipal solid waste from the relevant geographic

market is likely to take more than two years.

V

Violation Alleged

16. On June 1, 1995, defendant WMF and the parent of Reuter signed

a purchase agreement providing for the purchase by WMF of all of the

outstanding common stock of Reuter.

17. The effect of the acquisition of Reuter by WMF may be

substantially to lessen competition in the aforesaid trade and commerce

in violation of Section 7 of the Clayton Act in the following ways,

among others:

(a) Actual competition and potential competition between WMF and

Chambers in municipal solid waste disposal service in the above-

described geographic market will be eliminated; and

(b) Actual and potential competition generally in municipal solid

waste disposal service in that geographic market may be substantially

lessened.

Prayer

WHEREFORE, plaintiffs pray,

1. That the proposed acquisition of the common stock of Reuter by

WMF be adjudged to be in violation of Section 7 of the Clayton Act;

2. That the defendants and all persons acting on their behalf be

permanently enjoined from carrying out the acquisition of the common

stock of Reuter by WMF or any similar agreement, understanding, or

plan.

3. That the plaintiffs have such other and further relief as the

Court may deem just and proper; and

4. That plaintiffs recover the costs of this action.

Dated: This 20th day of October, 1995.

FOR PLAINTIFF UNITED STATES OF AMERICA:

Anne K. Bingaman,

Assistant Attorney General

Lawrence R. Fullerton,

Deputy Assistant Attorney General

Constance K. Robinson,

Director of Operations

Charles E. Biggio,

Senior Counsel

Anthony V. Nanni,

Chief, Litigation I Section

Willie L. Hudgins, Jr.

Attorneys, U.S. Department of Justice, Antitrust Division.

Nancy H. McMillen,

Attorney, U.S. Department of Justice, Antitrust Division, 1401 H

Street, N.W., Suite 4000, Washington, D.C. 20530, 202/307-5777

For Plaintiff State of Florida:

Robert A. Butterworth,

Attorney General.

Patricia A. Conners,

Assistant Attorney General.

Lizabeth A. Leeds,

Assistant Attorney General.

H. Edward Burgess, Jr.,

Assistant Attorney General, Office of Attorney General, State of

Florida, The Capitol, Tallahassee, FL 32399-1050, (904) 488-9105.

Appendix A

``HHI'' means the Herfindahl-Hirschman Index, a commonly

accepted measure of market concentration calculated by squaring the

market share of each firm competing in the market and then summing

the resulting numbers. For example, for a market consisting of four

firms with shares of 30, 30, 20, and 20 percent, respectively, the

HHI is 2600 (30 squared + 30 squared + 20 squared + 20 squared =

2600). The HHI, which takes into account the relative size and

distribution of the firms in a market, ranges from virtually zero to

10,000. The index approaches zero when a market consists of a large

number of firms of relatively equal size. The index increases as the

number of firms in the market decreases and may also increase as the

disparity in size between the leading firms and the remaining firms

increases. Thus, a market of two firms with shares of 60 and 40

percent would have an HHI of 5200 (60 squared + 40 squared = 3600 +

1600 = 5200).

The Department of Justice and Federal Trade Commission 1992

Horizontal Merger Guidelines consider that markets in which the HHI

is between 1000 and 1800 are moderately concentrated and those in

which the HHI is in excess of 1800 points are concentrated.

Transactions that increase the HHI by more than 100 points in

moderately concentrated and concentrated markets

[[Page 55733]]

presumptively raise antitrust concerns under the Merger Guidelines.

United States District Court for the District of Columbia

In the matter of: UNITED STATES OF AMERICA, and STATE OF

FLORIDA, by and through its Attorney General, Plaintiffs, v. REUTER

RECYCLING OF FLORIDA, INC., and WASTE MANAGEMENT INC. OF FLORIDA,

Defendants. Civil Action No.: 1:95CV01982, Filed: 10/20/95.

Stipulation

It is stipulated by and between the undersigned parties, by their

respective attorneys, that:

1. The Court has jurisdiction over the subject matter of this

action and over each of the parties hereto, and venue of this action is

proper in the District of Columbia.

2. The parties consent that a Final Judgment in the form hereto

attached may be filed and entered by the Court, upon the motion of any

party or upon the Court's own motion, at any time after compliance with

the requirements of the Antitrust Procedures and Penalties Act (15

U.S.C. 16 (b)-(h)), and without further notice to any party or other

proceedings, provided that Plaintiffs have not withdrawn their consent,

which they may do at any time before the entry of the proposed Final

Judgment by serving notice thereof on the Defendants and by filing that

notice with the Court; and

3. The parties shall abide by and comply with the provisions of the

proposed Final Judgment pending entry of the Final Judgment, and shall,

from the date of the filing of this Stipulation, comply with all the

terms and provisions thereof as though the same were in full force and

effect as an order of the Court.

4. This Stipulation shall become effective when, if and only if,

defendant Waste Management Inc. of Florida acquires a majority of the

outstanding shares of defendant Reuter Recycling of Florida, Inc. If

the Plaintiffs withdraw their consent or if the proposed Final Judgment

is not entered pursuant to this Stipulation, this Stipulation shall be

of no effect whatsoever, and the making of this Stipulation shall be

without prejudice to any party in this or in any other proceeding.

Dated this 20th day of October, 1995.

Respectfully submitted,

For the Plaintiff the United States of America:

Anne K. Bingaman,

Assistant Attorney General, Antitrust Division, U.S. Department of

Justice.

Lawrence R. Fullerton,

Deputy Assistant Attorney General.

Constance K. Robinson,

Director of Operations.

Charles E. Biggio,

Senior Counsel.

Anthony V. Nanni,

Chief, Litigation I Section.

Willie L. Hudgins, Jr.,

Attorney, U.S. Department of Justice, Antitrust Division.

Nancy H. McMillen,

Attorney, U.S. Department of Justice, Antitrust Division, City Center

Building, Suite 4000, 1401 H Street, NW., Washington, DC 20530, 202/

307-5777.

For Plaintiff State of Florida:

Robert A. Butterworth,

Attorney General.

Patricia A. Conners,

Assistant Attorney General.

Lizabeth A. Leeds,

Assistant Attorney General.

H. Edward Burgess, Jr.,

Assistant Attorney General, Office of Attorney General, State of

Florida, The Capitol, Tallahassee, Florida 32399-1050, (904) 488-9105.

For the Defendant Reuter Recycling of Florida, Inc.:

John H. Korns,

(D.C. Bar No. 142745), Oppenheimer, Wolff & Donnelly, 1020 19th Street,

N.W., Suite 400, Washington, D.C. 20036, (202) 293-6300.

For the Defendant Waste Management Inc. of Florida:

Michael Sennett,

Bell, Boyd & Lloyd, Three First National Plaza, Chicago, Illinois

60602, (312) 372-1121.

Andrew N. Cook,

(D.C. Bar No. 416199), Bell, Boyd & Lloyd, 1615 L Street, N.W.,

Washington, D.C. 20036, (202) 466-6300.

In The United States District Court for The District of Columbia

In the matter of: UNITED STATES OF AMERICA, and STATE OF

FLORIDA, by and through its Attorney General, Plaintiffs, v. REUTER

RECYCLING OF FLORIDA, INC., and WASTE MANAGEMENT INC. OF FLORIDA,

Defendants. Civil Action No.: 1:95CV01982; Filed: 10/20/95.

Final Judgment

WHEREAS Plaintiffs, United States of America (hereinafter ``United

States'') and the State of Florida (hereinafter ``Florida''), having

filed their Complaint in this action on October 20, 1995, and

Plaintiffs and Defendants, by their respective attorneys, having

consented to the entry of this Final Judgment without trial or

adjudication of any issue of fact or law; and without this Final

Judgment constituting any evidence or admission by any party with

respect to any issue of fact or law;

AND WHEREAS, Defendants have agreed to be bound by the provisions

of this Final Judgment pending its approval by the Court;

AND WHEREAS, the Plaintiffs intend Defendants to be required to

preserve competition for solid waste disposal by honoring certain

contracts, as amended, and by giving to a competitor an option to

purchase real property capable of being used as a municipal solid waste

transfer station to preserve competition in solid waste disposal in

Dade and Broward Counties, Florida, now and in the future, and, by

permitting a competitor to preserve its ability to compete for and to

have access to capacity for sufficient volumes of municipal solid waste

to remain a viable solid waste disposal competitor while it seeks

another transfer station site;

AND WHEREAS, Defendants have represented that the contract changes

and the option agreement to purchase real estate described below can

and will be made and honored and that Defendants will later raise no

claims of hardship or difficulty as grounds for asking the Court to

modify any of the provisions contained below;

NOW, THEREFORE, before any testimony is taken, and without trial or

adjudication of any issue of fact or law, and upon consent of the

parties, it is hereby

ORDERED, ADJUDGED AND DECREED as follows:

I

Jurisdiction

This Court has jurisdiction of the subject matter of this action

and over each of the parties hereto. The Complaint states a claim upon

which relief may be granted against Defendants under Section 7 of the

Clayton Act, as amended, 15 U.S.C. 18.

II

Definitions

As used in this Final Judgment:

(A) ``Broward'' means Broward County, Florida.

(B) ``Chambers'' means Chambers Waste Systems of Florida, Inc., a

subsidiary of USA Waste Services, Inc. Chambers is a corporation

organized and existing under the laws of the State of Florida with its

principal offices in Okeechobee, Florida.

(C) ``Dade'' means Dade County, Florida.

[[Page 55734]]

(D) ``Defendants'' means Reuter and WMF, as hereinafter defined.

(E) ``Reuter'' means defendant Reuter Recycling of Florida, Inc.

Reuter is a corporation organized and existing under the laws of the

State of Florida with its principal offices in Pembroke Pines, Florida.

(F) ``Solid waste disposal service'' means the final disposal of

municipal solid waste, generally in a landfill or incineration

facility.

(G) ``Transfer Station Agreement'' means the agreement between

Reuter and Chambers dated as of July 14, 1993 pursuant to which Reuter,

among other things, accepts for transfer certain solid waste material

delivered by Chambers or Chambers' subcontractors. A copy of the

Transfer Station Agreement is attached as Exhibit A.

(H) ``Amendment to Transfer Station Agreement'' means the Agreement

between Reuter and Chambers dated October 20, 1995 modifying the

Transfer Station Agreement. A copy of the Amendment to Transfer Station

Agreement is attached as Exhibit B.

(I) ``Option Agreement'' means the Agreement between Reuter and

Chambers dated October 20, 1995. A copy of the Option Agreement is

attached as Exhibit C.

(J) ``WMF'' means defendant Waste Management Inc. of Florida, a

subsidiary of Waste Management, Inc. WMF is a corporation organized and

existing under the laws of the State of Florida with its principal

offices in Pompano Beach, Florida.

(K) ``Acquisition'' means the acquisition of the majority of the

outstanding stock of Reuter by WMF.

(L) ``Reuter Transfer Station'' means the facility owned by Reuter

and located at 2079 Pembroke Road, Pembroke Pines, FL which currently,

among other things, accepts for transfer certain solid waste material

delivered by Chambers or Chambers' subcontractors and also accepts

waste from the cities of Pompano Beach, Pembroke Pines, Dania, and

Hallandale, FL.

III

Applicability

This Final Judgment applies to Defendants and to their officers,

directors, managers, agents, employees, successors, assigns,

affiliates, parents and subsidiaries, and to all other persons in

active concert or participation with any of them who shall have

received actual notice of this Final Judgment by personal service or

otherwise. Nothing contained in this Final Judgment is or has been

created for the benefit of any third party, and nothing herein shall be

construed to provide any rights to any third party.

IV

Entry Into and Compliance With Agreements

On or before the date the Acquisition is consummated, Reuter shall

enter into the Amendment to Transfer Station Agreement and the Option

Agreement. Defendants shall be bound by the terms of the Transfer

Station Agreement, as modified by the Amendment to Transfer Station

Agreement, and the Option Agreement. Defendants shall not convey to any

person other than Chambers, the property subject to the Option

Agreement, prior to the later of July 14, 1998 or any extension of that

Option Agreement, except as provided in the Option Agreement.

Defendants shall not exercise their right to replace Chambers as the

Facility operator under Paragraph 3f of the Amendment to Transfer

Station Agreement without the prior approval of the United States, in

consultation with Florida.

V

Termination of the Agreements

In the event Chambers has secured the right to use and is using

another transfer station capable of serving Broward or Dade Counties

prior to July 14, 1998, Defendants may notify Plaintiffs of that fact

and Defendants may request in writing that they be relieved of the

obligation to extend the term of the Transfer Station Agreement as set

forth in Paragraph 2 of the Amendment to Transfer Station Agreement,

and of the obligation to convey property under the Option Agreement.

The United States may grant one or both of Defendants' requests if it

determines, in its sole discretion after consultation with Florida,

that Chambers can effectively compete in the relevant markets without

access to the Reuter Transfer Station or without access to the property

subject to the Option Agreement.

VI

Interim Preservation of Viable Competition

(A) Defendants shall not enter into any contract or contracts, with

any firm listed on Exhibit D, having a term in excess of one (1) year,

or having multiple consecutive one (1) year terms, for the disposal of

solid waste, where any such waste would be transported through the

Reuter Transfer Station for disposal elsewhere. Exhibit D is a list of

the customers of Chambers for whom Chambers uses the Reuter Transfer

Station to enable it to dispose of solid waste as of the date this

Final Judgment is filed (``Chambers Customers'').

(B) Defendants' obligations under Paragraph VI.A. shall terminate

upon the United States providing Defendants with written notice,

following application by Defendants, that the United States, in its

sole discretion after consultation with Florida, has determined that

Chambers can compete effectively in the relevant market if Defendants

are permitted to contract with Chambers' Customers as proscribed in

Paragraph VI.A. In any event, Paragraph VI.A. shall terminate on the

date the Transfer Station Agreement, as amended by the Amendment to the

Transfer Station Agreement, terminates.

(C) Nothing herein shall preclude Defendants from contracting with

any of the Chambers' Customers for a period of one (1) year or less;

or, for a period in excess of one (1) year where that customer's solid

waste is not transported by Defendants, directly or indirectly, through

the Reuter Transfer Station.

VII

Defendants' Obligations of Noninterference and Assistance

In the event that Chambers seeks to permit a new transfer station

or seeks access to a new or existing transfer station other than the

Reuter Transfer Station, Defendants shall take no action to protest,

lobby against, object to, or otherwise impede, directly or indirectly,

any attempts by Chambers to lease, purchase, site, obtain appropriate

zoning for, obtain permits and any and all other governmental approvals

for a solid waste transfer station capable of serving Broward or Dade,

nor shall Defendants provide financing or other assistance to any

person who does so. Furthermore, from the effective date of the Option

Agreement through the termination date of that Agreement, including any

extensions thereof, Defendants will cooperate with Chambers' efforts to

obtain any necessary government approvals on the property subject to

the Option Agreement.

Notwithstanding the provisions of this Final Judgment, Defendants

may bid on and enter into contracts with municipal or governmental

entities for the provision or use of transfer station facilities in

Dade and Broward.

VIII

Acquisition of the Option Property

If the option to purchase under the Option Agreement is exercised,

Defendants shall not, without prior

[[Page 55735]]

written consent of the United States, after consultation with Florida,

re-acquire any of the property conveyed pursuant to the Option

Agreement.

IX

Reporting and Plaintiffs' Access

(A) To determine or secure compliance with this Final Judgment,

duly authorized representatives of the Plaintiffs shall, upon written

request of the Assistant Attorney General in charge of the Antitrust

Division or the Florida Attorney General or his duly authorized

representative, respectively, on reasonable notice given to Defendants

at their principal offices, subject to any lawful privilege, be

permitted:

(1) Access during normal office hours to inspect and copy all

books, ledgers, accounts, correspondence, memoranda and other documents

and records in the possession, custody, or control of Defendants, which

may have counsel present, relating to any matters contained in this

Final Judgment.

(2) Subject to the reasonable convenience of Defendants and without

restraint or interference from them, to interview officers, employees,

or agents of Defendants, who may have counsel present, regarding any

matters contained in this Final Judgment.

(B) Upon written request of the Assistant Attorney General in

charge of the Antitrust Division or the Florida Attorney General or his

duly authorized representative, on reasonable notice given to

Defendants at their principal offices, subject to any lawful privilege,

Defendants shall submit such written reports, under oath if requested,

with respect to any matters contained in this Final Judgment.

(C) No information or documents obtained by the means provided by

this Section shall be divulged by the Plaintiffs to any person other

than a duly authorized representative of the Executive Branch of the

United States government or of the State of Florida, except in the

course of legal proceedings to which the United States is a party, or

for the purpose of securing compliance with this Final Judgment, or as

otherwise required by law.

(D) If at the time information or documents are furnished by

Defendants to Plaintiffs, Defendants represent and identify in writing

the materials in any such information or document to which a claim of

protection may be asserted under Rule 26(c)(7) of the Federal Rules of

Civil Procedure, and Defendants mark each pertinent page of such

material ``Subject to claim of protection under Rule 26(c)(7) of the

Federal Rules of Civil Procedure,'' then ten days notice shall be given

by Plaintiffs to Defendants prior to divulging such material in any

legal proceeding (other than a grand jury proceeding) to which

Defendants are not a party.

X

Further Elements of Judgment

(A) This Final Judgment shall expire on the tenth anniversary of

the date of its entry.

(B) Jurisdiction is retained by this Court over this action and the

parties thereto for the purpose of enabling any of the parties thereto

to apply to this Court at any time for further orders and directions as

may be necessary or appropriate to carry out or construe this Final

Judgment, to modify or terminate any of its provisions, to enforce

compliance, and to punish violations of its provisions.

XI

Public Interest

Entry of this Final Judgment is in the public interest.

Entered: __________

Court approval subject to procedures of Antitrust Procedures and

Penalties Act, 15 U.S.C. 16.

----------------------------------------------------------------------

United States District Judge

Note: Exhibits A, B, C & D will not be published in the Federal

Register but a copy can be obtained from the Department of Justice,

Antitrust Division's, Legal Procedures Office at (202) 514-2481.

United States District Court for the District of Columbia

In the matter of: UNITED STATES OF AMERICA, and STATE OF

FLORIDA, by and through its Attorney General Plaintiffs, v. REUTER

RECYCLING OF FLORIDA, INC. and WASTE MANAGEMENT INC. OF FLORIDA,

Defendants. CIVIL ACTION NO.: 1:95CV01982; Filed: 10/20/95.

Competitive Impact Statement

The United States, pursuant to Section 2(b) of the Antitrust

Procedures and Penalties Act (``APPA''), 15 U.S.C. 16(b)-(h), files

this Competitive Impact Statement relating to the proposed Final

Judgment submitted for entry in this civil antitrust proceeding.

I

Nature and Purpose of the Proceeding

The United States filed a civil antitrust Complaint on October 20,

1995, alleging that the proposed acquisition of Reuter Recycling of

Florida, Inc. (``Reuter'') by Waste Management Inc. of Florida

(``WMF'') would violate Section 7 of the Clayton Act, 15 U.S.C. 18. The

State of Florida, by and through its Attorney General, is a co-

plaintiff with the United States in this action.\1\ WMF and Reuter are

two of only three entities that provide municipal solid waste disposal

service in Broward and Dade Counties, Florida.

\1\ The APPA obligates only the United States to file a

Competitive Impact Statement.

---------------------------------------------------------------------------

The Complaint alleges that the combination of these two competitors

would substantially lessen competition in solid waste disposal service

in Dade and Broward Counties, Florida. The prayer for relief seeks: (1)

A judgment that the proposed acquisition would violate section 7 of the

Clayton Act; and (2) a permanent injunction preventing WMF from

acquiring the stock of Reuter. At the same time that suit was filed, a

proposed Final Judgment was filed that was designed to eliminate the

anticompetitive effects of the acquisition. Also filed was a

Stipulation under which the parties consented to the entry of the

proposed Final Judgment.

The proposed Final Judgment preserves competition that would have

existed absent the acquisition by requiring defendants to give Chambers

unimpeded access to the Reuter Transfer Station for up to five years

from today. It also requires defendants to make certain real estate

available to Chambers for up to five years from today upon which

Chambers may construct its own transfer station.

The United States, its co-plaintiff, and Defendants have stipulated

that the proposed Final Judgment may be entered after compliance with

the APPA. Entry of the proposed Final Judgment would terminate the

action, except that the Court would retain jurisdiction to construe,

modify, or enforce the provisions of the proposed Final Judgment and to

punish violations thereof.

II

Description of the Events Giving Rise to the Alleged Violation

A. The Defendants and the Proposed Transaction

WMF, based in Pompano Beach, Florida, is an indirect wholly-owned

subsidiary of WMX Technologies, Inc., the world's largest solid waste

hauling and disposal company, with operations throughout the United

States. In 1994, WMF reported total revenues of over $245 million.

Reuter, based in Pembroke Pines, Florida, is a subsidiary of Reuter

Manufacturing, Inc., formerly known as Green Isle Environmental

Services, Inc. Reuter operates a municipal solid waste transfer station

and does some recycling

[[Page 55736]]

at a facility in Broward County, Florida. In 1994, Reuter reported

total revenues of over $13 million.

On June 1, 1995, WMF entered into an agreement to purchase from

Green Isle Environmental Services, Inc. all of the outstanding common

stock of Reuter for about $18 million.

B. The Solid Waste Disposal Industry

Municipal solid waste is nonhazardous waste collected from

households and commercial and industrial establishments. It includes

waste that is putrescible (such as garbage) and compactible, but does

not include construction and demolition debris. Municipal solid waste

is collected by municipalities or private haulers either with

collection trucks, that compact the waste in the truck, or roll-off

trucks. When the collection truck is full, it leaves its collection

route and travels to a municipal solid waste disposal site where the

truck is emptied. Roll-off trucks pick up large containers and take

them to the disposal site or transfer station individually.

Solid waste disposal service is the final disposal of municipal

solid waste, generally in a landfill or a facility that incinerates

that waste. It is generally not efficient to transport municipal solid

waste in collection trucks long distances. to disposal sites. Municipal

solid waste can be transported to a relatively distant final disposal

site by using a transfer station. Municipal solid waste accepted at a

transfer station is combined, further compacted, and then loaded into

large tractor trailer trucks. These tractor trailer trucks, which can

transport a volume of waste equal two to four times that of collection

trucks, can economically transport that waste a considerably longer

distance to a disposal site than can collection trucks.

Because of its unique disposal function, a small but significant

increase in the price of municipal solid waste disposal service by all

suppliers would not be rendered unprofitable by consumers substituting

to any other type of disposal service. State and federal laws restrict

the facilities that may accept municipal solid waste for final

disposal. In Florida, it is restricted to Class I and Class II

landfills \2\ and to facilities that incinerate the waste. Disposal of

municipal solid waste, as compared to disposal of construction and

demolition or other types of debris, accounts for a large percentage of

total disposal service revenues.

\2\ A Class I landfill in Florida is a landfill that receives an

average of 20 tons or more of solid waste per day. Each is permitted

to receive general, non-hazardous household, commercial, industrial,

and agricultural wastes. Class II landfills may receive up to 20

tons per day of these same types of waste, but there are no such

landfills in Dade or Broward counties, FL.

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C. Competition in the Relevant Market

WMF and Chambers Waste Systems of Florida, Inc. (``Chambers''),

through its use of the Reuter Facility pursuant to an agreement between

Chambers and Reuter, compete directly in providing municipal solid

waste disposal service in Broward and Dade Counties.

WMF, through its affiliates, owns or operates a Class I landfill

and two incineration facilities \3\ in Broward County that accept and

dispose of municipal solid waste. It also owns a Class I landfill in

Dade County that disposes of such waste. Dade County owns or operates

several Class I landfills and one incineration facility in Dade County.

\3\ The incinerators are resource recovery facilities owned by

Wheelabrator North Broward Inc. and Wheelabrator South Broward Inc.,

affiliates of WMF. These facilities accept municipal solid waste

pursuant to a contract with Broward County. These facilities also

compete for waste from other haulers and municipalities.

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Chambers owns a Class I landfill located in Okeechobee County,

Florida, about 100 miles north of Dade County, that accepts and

disposes of municipal solid waste from Dade and Broward Counties.

Pursuant to a contract containing an initial term of five years with

Reuter, dated July 14, 1993 (``Transfer Station Agreement''), Chambers

currently transports municipal solid waste to its Okeechobee landfill

from the transfer station owned by Reuter, which is located in

southwestern Broward County.

D. Nature of Competition

Prior to July 1993 WMF and Dade County were the only significant

suppliers of municipal solid waste disposal service in Dade and Broward

Counties. When Chambers entered the market, prices dropped

substantially. Chambers, therefore, has provided a significant

competitive constraint on pricing in the market. WMF and Chambers

compete for municipal solid waste disposal brought to their facilities

on a short-term basis absent any contract and for contracts with

municipalities and private haulers in the area that are not at the time

committed to a disposal site pursuant to a long-term contract. Almost

all of the solid waste collected in Broward County is under long-term

contracts. Consequently, the vast majority of the customers for which

WMF, Dade County, and Chambers currently compete generate municipal

solid waste in Dade County, Florida. Because its solid waste disposal

site is over 100 miles north of Dade County, Chambers is able to

compete for these customers in Dade County only because it has access

to the transfer station currently owned by Reuter--the transfer station

that WMF will control if it acquires the stock of Reuter.

The relevant geographic market for purposes of analyzing this

transaction is Broward and Dade Counties, Florida. The WMF Class I

landfills and incineration facilities, the Dade County incinerator and

Class I landfills, and Chambers' Okeechobee Class I landfill are the

only significant disposal sites for Broward and Dade municipal solid

waste.\4\ It is not economically efficient for municipal solid waste

haulers to transport that waste long distances in collection trucks to

a municipal solid waste disposal site. Consequently, haulers generally

transport the waste to nearby landfills, incinerators, or to transfer

stations that enable waste economically to be hauled to more distant

disposal sites.

\4\ Broward County has a Class I landfill, but that landfill

does not currently accept municipal solid waste. It was constructed

to accept waste until the two resource recovery facilities came on

line, to accept waste in the event of an incinerator shutdown, and

for its future use, if needed. There are landfills owned by St.

Lucie County, and Martin County, and an incinerator owned by Palm

Beach County that are within 100 miles of Dade County. However, they

are not good alternatives to disposal sites in Dade and Broward

Counties because the distance is too great for collection trucks to

reach economically. Furthermore, they are much higher-priced

alternatives than the Okeechobee landfill and do not generally

accept from Dade or Broward Counties.

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E. Anticompetitive Consequences of the Acquisition

The acquisition will place the Reuter Transfer Station in the hands

of WMF, who, as a competitor, will have the incentive and opportunity

to deprive Chambers of its only current means of economically providing

municipal solid waste disposal service in Dade County. This would

remove the competitive constraint of Chambers and facilitate WMF's

exercise of market power (i.e. the ability to increase prices to

consumers in Broward and Dade Counties). Specifically, the Complaint

alleges that the acquisition of Reuter by WMF will have the effect of

substantially increasing concentration in an already highly

concentrated, difficult to enter market; the HHI would increase by

about 1,700 to about 5,000.\5\

\5\ These HHI's are calculated using a bidding model. The three

existing competing bidders for municipal solid waste disposal

service in the market are treated as equal-sized firms for purposes

of this HHI calculation.

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The only significant competitor of WMF that would remain after the

[[Page 55737]]

acquisition is Dade County. Rivalry between WMF and Dade County alone

will not prevent prices from rising, because Chambers provides a

substantial competitive check on WMF's and Dade County's individual

ability to set prices for their services. This is evidenced by the

substantial drop in municipal solid waste disposal prices that followed

Chambers' entry into the market.

The Complaint alleges that new entry in the Broward and Dade County

market is unlikely to counteract these anticompetitive effects. The

siting, permitting and construction of a municipal solid waste landfill

or incinerator within or near Dade will take well in excess of two

years. In fact, it is unlikely that a new municipal solid waste

landfill or incinerator could be constructed in the area in the

foreseeable future, given opposition from the nearby general public to

such facilities.

The zoning, siting, permitting and construction of a municipal

solid waste transfer station in a commercially and economically

feasible location to receive municipal solid waste from the relevant

geographic market can also be expected to take more than two years due

to public opposition in this geographic market.

III

Explanation of the Proposed Final Judgment

The provisions of the proposed Final Judgment are designed to

preserve the level of competition that would exist absent this

acquisition, and thereby eliminate the anticompetitive effects of the

acquisition in municipal solid waste disposal service in the relevant

geographic market.

A. Entry Into and Compliance With Agreements

Section IV of the proposed Final Judgment requires that Reuter

shall enter into two agreements on or before the date WMF purchases the

majority of the stock of Reuter. First, Reuter is required to enter

into a contract with Chambers entitled ``Amendment to Transfer Station

Agreement'' (hereinafter ``Amendment''). Second, Reuter is required to

enter into an Option Agreement, giving Chambers an irrevocable option

to purchase certain property from Reuter upon which to construct its

own municipal solid waste transfer station. Section IV also prohibits

Reuter from conveying to anyone other than Chambers the property

subject to the Option Agreement prior to the later of July 14, 1998 or

any extension of the Option Agreement. Section IV obligates Reuter and

WMF to comply with the terms of both agreements.

1. Amendment to Transfer Station Agreement

On July 14, 1993, Reuter and Chambers entered into the Transfer

Station Agreement. That contract permitted Chambers to use the facility

built by Reuter as a transfer station to transport waste to Chambers'

Okeechobee landfill in south central Florida.

The agreement has a five year term and could be extended by mutual

agreement for two additional five year terms. Reuter operated the

transfer station under this agreement and agreed to pay Chambers to

transport municipal solid waste from the transfer station to Chambers'

landfill in Okeechobee County. In return, Chambers agreed to pay Reuter

for operating the transfer station. Initially, the vast majority of

waste transported through the transfer station came from four cities in

Broward County--Pompano Beach, Pembroke Pines, Dania, and Hallandale--

pursuant to a 20 year contract between Reuter and those cities.

However, the agreement also assured Chambers the right to bring up to

800 tons per day of waste from its own customers to the transfer

station for transportation to its landfill.

The Amendment requires WMF to honor the Transfer Station Agreement

giving Chambers access to the transfer station and modifies that

agreement in ways that prevent WMF from interfering with Chambers' use

of the transfer station to compete with WMF. The Amendment also

eliminates the provision that would have given WMF veto power over an

extension of the contract beyond its initial five year term. The

Amendment gives to Chambers, in its sole discretion, the option to

extend the Transfer Station Agreement for two additional one year

terms.

The Amendment modifies the Transfer Station Agreement to permit

Chambers to operate approximately one half of the transfer station

(roughly its current capacity) as an independent entity. In effect,

Chambers will replace Reuter as the operator of the transfer station

for the next three years, handling all waste from its customers and any

waste not recycled from the four cities. During any extension period,

Chambers will continue to operate about half of the transfer station,

handling waste from its own customers.

The Amendment also prohibits WMF from reducing Chambers' capacity

in the transfer station as the Transfer Station Agreement would have

allowed. The Amendment prohibits WMF from reducing the 800 ton per day

capacity Chambers currently has to use for the waste of its own

customers.

These, and other provisions in the Amendment, assure that Chambers

can operate in the acquired transfer station as an independent

competitive force in the solid waste disposal market as it would have

been able to do absent the acquisition.

2. Option Agreement

The proposed Final Judgment also requires Reuter to enter into an

Option Agreement on or before the date WMF acquires a majority of

Reuter's stock. The Option Agreement gives Chambers an irrevocable

option for up to three years to purchase certain real estate. That real

estate is on the grounds of the current Reuter Transfer Station

facility. Chambers will have up to three years to seek necessary

permits before it needs to pay Reuter any substantial monies for the

real estate. Furthermore, during the initial three years of the Option

Agreement, Chambers is not obligated to purchase the land. It may seek

to permit the site for a transfer station without actually buying the

real estate.

The Option Agreement also gives Chambers the right to extend the

option for two additional one year periods upon payment to Reuter of a

fee, part of which will be credited toward the purchase price if

Chambers buys the property. Chambers' right to extend the Option

Agreement is contingent upon Chambers' active pursuit of transfer

station permits from the appropriate state and county authorities.

This Option Agreement provides Chambers with the right to purchase

a well-situated piece of real estate upon which to permit and build its

own transfer station for use in the long term. It gives Chambers up to

five years to obtain any necessary permits on the land without actually

purchasing the real estate from Reuter.

B. Termination of the Agreements

The proposed Final Judgment also provides that the obligations of

the Defendants under the above agreements can be terminated under

certain conditions. Specifically, if Defendants notify Plaintiffs that

Chambers has secured the right to use and is using another transfer

station capable of serving the relevant geographic market at current or

increased capacity levels, Plaintiffs may relieve Defendants of the

obligation to extend the Transfer Station Agreement or to hold open the

Option Agreement. As provided in the proposed Final Judgment, however,

the

[[Page 55738]]

Plaintiffs will not relieve Defendants of these obligations unless the

United States has determined, after consultation with Florida, that

Chambers can effectively compete in the relevant market without access

to either the Reuter Transfer Station under the Transfer Station

Agreement, as amended, or without the property subject to the Option

Agreement.

C. Interim Preservation of Viable Competition

Section VI of the proposed Final Judgment assures that competition

is not unduly undermined by the fact that Chambers has access to the

Reuter Transfer Station for only a limited period of time while WMF has

use of that facility for the long term. Specifically, the provision is

designed to assure that WMF cannot tie up all customers that want to

use the Reuter Transfer Station by offering long-term contracts when

Chambers would be at a huge competitive disadvantage in offering

similar contracts. The provision prohibits WMF from offering contracts

for longer than a year through Reuter to existing Chambers customers

using the Reuter facility since Chambers cannot offer long-term

contracts until it builds its own facility.

Plaintiffs determined that allowing WMF to use the Reuter facility

to offer long-term contracts could seriously undermine competition.

without long-term use of a facility, Chambers cannot effectively

compete for long-term contracts. If WMF can do so, it will be able to

disadvantage Chambers and, ultimately, consumers by tying up most, if

not all, the customers in the market before Chambers can effectively

compete for customers using long-term contracts. To preserve the long-

term options of consumers while Chambers or other competitors establish

a long-term presence, Plaintiffs placed a limit on the length of

contract WMF could offer using the Reuter facility.

The limitation is narrowly drawn, however. First, the provision

applies only to existing customers of Chambers using the Reuter

facility. Second, the provision does not preclude WMF from offering

long-term contracts to these customers if it uses any facility other

than the Reuter Transfer Station to accept the waste. Third, it does

not preclude WMF from competing with Chambers for these customers using

short-term contracts. In effect, this provision prevents WMF from

committing customers to long-term contracts through the use of Reuter

while Chambers is unable to offer similar contracts. However, the

protection is limited by WMF's ability to continue to compete for these

customers using either other sites or short-term contracts. The

provision does not affect competition between Chambers and Dade County

in any way.

D. Defendants' Obligations of Noninterference and Assistance

Obtaining permits and other governmental approvals constitute the

largest barrier to entry into the municipal solid waste disposal market

in the relevant geographic area. Section VII of the proposed Final

Judgment prohibits any interference, directly or indirectly, by

Defendants, including any action to protest, lobby against, object to,

or otherwise impede any attempts by Chambers to lease, purchase, site,

obtain appropriate zoning for, obtain permits and any and all other

governmental approvals for a solid waste transfer station capable of

serving the relevant market. It also prohibits Defendants from

providing financing or other assistance to any person who does so.

Finally, it obligates Defendants to cooperate with Chambers' efforts to

obtain government permits and approvals on the property subject to the

Option Agreement.

E. Acquisition of Optioned Property

Section VIII of the proposed Final Judgment prohibits Defendants

from reacquiring the property subject to the Option Agreement from

Chambers or its successors or assigns without the prior written consent

of the United States, after consultation with Florida, for the life of

the proposed Final Judgment.

F. Reporting and Access

Section IX of the proposed Final Judgment establishes standards and

procedures by which the Department of Justice and Florida may obtain

access to documents and information from Defendants related to its

compliance with the Final Judgment.

G. Duration

Section X of the proposed Final Judgment provides that the Final

Judgment will expire on the tenth year after its entry. Jurisdiction

will be retained by the Court to conduct further proceedings relating

to the Final Judgment, as specified in Section IX.

IV

Remedies Available to Potential Private Litigants

Section 4 of the Clayton Act (15 U.S.C. Sec. 15) provides that any

person who has been injured as a result of conduct prohibited by the

antitrust laws may bring suit in federal court to recover three times

the damages the person has suffered, as well as costs and reasonable

attorneys' fees. Entry of the proposed Final Judgment will neither

impair nor assist the bringing of any private antitrust damage action.

Under the provisions of Section 5(a) of the Clayton Act (15 U.S.C.

16(a)), the proposed Final Judgment has no prima facie effect in any

subsequent private lawsuit that may be brought against defendants.

V

Procedures Available for Modification of the Proposed Final Judgment

The United States, Florida, and Defendants have stipulated that the

proposed Final Judgment may be entered by the Court after compliance

with the provisions of the APPA, provided that Plaintiffs have not

withdrawn their consent. The APPA conditions entry upon the Court's

determination that the proposed Final Judgment is in the public

interest.

The APPA provides a period of at least 60 days preceding the

effective date of the proposed Final Judgment within which any person

may submit to the United States written comments regarding the proposed

Final Judgment. Any person who wishes to comment should do so within

sixty (60) days of the date of publication of this Competitive Impact

Statement in the Federal Register. The United States will evaluate and

respond to the comments. All comments will be given due consideration

by the Department of Justice, which remains free to withdraw its

consent to the proposed Judgment at any time prior to entry. The

comments and the response of the United States will be filed with the

Court and published in the Federal Register.

Written comments should be submitted to: Anthony V. Nanni, Chief,

Litigation I Section, Antitrust Division, United States Department of

Justice, 1401 H Street, N.W., Suite 4000, Washington, D.C. 20530.

The proposed Final Judgment provides that the Court retains

jurisdiction over this action, and the parties may apply to the Court

for any order necessary or appropriate for the modification,

interpretation, or enforcement of the Final Judgment.

VI

Alternatives to the Proposed Final Judgment

The United States considered, as an alternative to the proposed

Final Judgment, a full trial on the merits of its Complaint against

Defendants. It also considered the possibility of requiring WMF to

divest itself of the transfer

[[Page 55739]]

station buildings and related appurtenances before permitting it to

acquire Reuter. The United States is satisfied, however, that the

relief outlined in the proposed Final Judgment will eliminate WMF's

ability to constrain prices or output by eliminating a competitor from

the solid waste disposal market in the relevant geographic market. The

relief obtained will maintain the competition in the market by creating

an essentially independent transfer station for five years and also by

providing property upon which an independent transfer station can be

constructed to be in operation for the indefinite future. The relief

sought eliminates anticompetitive effects in the short term by

essentially maintaining the status quo. It preserves competition in the

long term by providing time to build and by facilitating the

construction of an additional competitive transfer station.

VII

Standard of Review Under the APPA for Proposed Final Judgment

The APPA requires that proposed consent judgments in antitrust

cases brought by the United States be subject to a sixty-day comment

period, after which the court shall determine whether entry of the

proposed Final Judgment ``is in the public interest.'' In making that

determination, the court may consider--

(1) the competitive impact of such judgment, including

termination of alleged violations, provisions for enforcement and

modification, duration or relief sought, anticipated effects of

alternative remedies actually considered, and any other

considerations bearing upon the adequacy of such judgment;

(2) the impact of entry of such judgment upon the public

generally and individuals alleging specific injury from the

violations set forth in the complaint including consideration of the

public benefit, if any, to be derived from a determination of the

issues at trial.

15 U.S.C. 16(e) (emphasis added). As the D.C. Circuit recently held,

this statute permits a court to consider, among other things, the

relationship between the remedy secured and the specific allegations

set forth in the government's complaint, whether the decree is

sufficiently clear, whether enforcement mechanisms are sufficient, and

whether the decree may positively harm third parties. See United States

v. Microsoft, 56 F.3d 1448, 1462 (D.C. Cir. 1995).

In conducting this inquiry, ``the Court is nowhere compelled to go

to trial or to engage in extended proceedings which might have the

effect of vitiating the benefits of prompt and less costly settlement

through the consent decree process.'' \6\ Rather,

absent a showing of corrupt failure of the government to discharge

its duty, the Court, in making its public interest finding, should *

* * carefully consider the explanations of the government in the

competitive impact statement and its responses to comments in order

to determine whether those explanations are reasonable under the

circumstances.

\6\ 119 Cong. Rec. 24598 (1973). See United States v. Gillette

Co., 406 F. Supp. 713, 715 (D. Mass. 1975). A ``public interest''

determination can be made properly on the basis of the Competitive

Impact Statement and Response to Comments filed pursuant to the

APPA. Although the APPA authorizes the use of additional procedures,

15 U.S.C. Sec. 16(f), those procedures are discretionary. A court

need not invoke any of them unless it believes that the comments

have raised significant issues and that further proceedings would

aid the court in resolving those issues. See H.R. Rep. 93-1463, 93rd

Cong. 2d Sess. 8-9, reprinted in (1974) U.S. & Ad. News 6535, 6538.

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United States v. Mid-America Dairymen, Inc., 1977-1 Trade Cas.

para.61,508, at 71,980 (W.D. Mo. 1977).

Accordingly, with respect to the adequacy of the relief secured by

the decree, a court may not ``engage in an unrestricted evaluation of

what relief would best serve the public.'' United States v. BNS, Inc.,

858 F.2d 456, 462 (9th Cir. 1988) quoting United States v. Bechtel

Corp., 648 F.2d 660, 666 (9th Cir.), cert. denied, 454 U.S. 1083

(1981); see also Microsoft, 56 F.3d at 1460. Precedent requires that

the balancing of competing social and political interests affected by a

proposed antitrust consent decree must be left, in the first instance,

to the discretion of the Attorney General. The court's role in

protecting the public interest is one of insuring that the government

has not breached its duty to the public in consenting to the decree.

The court is required to determine not whether a particular decree is

the one that will best serve society, but whether the settlement is

``within the reaches of the public interest.'' More elaborate

requirements might undermine the effectiveness of antitrust enforcement

by consent decree.\7\

\7\ United States v. Bechtel, 648 F.2d at 666 (citations

omitted) (emphasis added); see United States v. BNS, Inc., 858 F.2d

at 463; United States v. National Broadcasting Co., 449 F. Supp.

1127, 1143 (C.D. Cal. 1978); United States v. Gillette Co., 406 F.

Supp. at 716. See also United States v. American Cyanamid Co., 719

F.2d at 565.

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The proposed Final Judgment, therefore, should not be reviewed

under a standard of whether it is certain to eliminate every

anticompetitive effect of a particular practice or whether it mandates

certainty of free competition in the future. Court approval of a final

judgment requires a standard more flexible and less strict than the

standard required for a finding of liability. ``[A] proposed decree

must be approved even if it falls short of the remedy the court would

impose on its own, as long as it falls within the range of

acceptability or is `within the reaches of public interest.' (citations

omitted).'' \8\

\8\ United States v. American Tel. and Tel Co., 552 F. Supp.

131, 150 (D.D.C. 1982), aff'd sub nom. Maryland v. United States,

460 U.S. 1001 (1983) quoting United States v. Gillette Co., supra,

406 F. Supp. at 716; United States v. Alcan Aluminum, Ltd., 605 F.

Supp. 619, 622 (W.D. Ky 1985).

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VIII

Determinative Documents

In formulating the proposed Final Judgment, the United States

considered the following determinative materials or documents within

the meaning of the APPA: the Transfer Station Agreement attached to the

proposed Final Judgment as Exhibit A; the Amendment to Transfer Station

Agreement attached to the proposed Final Judgment as Exhibit B; and the

Option Agreement attached to the proposed Final Judgment as Exhibit C.

Dated: October 20, 1995.

Respectfully submitted,

Nancy H. McMillen,

Attorney, Antitrust Division, U.S. Department of Justice, 1401 H

Street, N.W., Suite 4000, Washington, D.C. 20530, (202) 307-5777.

Certification of Service

I hereby certify that a copy of the foregoing has been served upon

Waste Management, Inc. of Florida and Reuter Recycling of Florida,

Inc., by placing a copy of this Competitive Impact Statement in the

U.S. mail, directed to each of the above named parties at the addresses

given below, this 20th day of October, 1995.

Michael Sennett, Esquire,

Bell, Boyd & Lloyd, 3 First National Plaza, 70 West Madison Street,

Chicago, IL 60602.

Andrew N. Cook, Esquire,

Bell, Boyd & Lloyd, 1615 L Street, N.W., Washington, D.C. 20036.

John H. Korns,

Oppenheimer, Wolff & Donnelly, 1020 19th Street, N.W., Suite 400,

Washington, D.C. 20036.

Office of the Attorney General, State of Florida, The Capitol,

Tallahassee, Florida 32399-1050.

Nancy H. McMillen,

Attorney, U.S. Department of Justice, Antitrust Division, 1401 H.

Street, N.W., Suite 4000, Washington, D.C. 20530, (202) 307-5777.

[FR Doc. 95-27060 Filed 11-1-95; 8:45 am]

BILLING CODE 4410-01-M