United States v. USA Waste Services, Inc. and Sanifill, Inc.; Proposed Final Judgment and Competitive Impact Statement

DEPARTMENT OF JUSTICE

Antitrust Division

United States v. USA Waste Services, Inc. and Sanifill, Inc.;

Proposed Final Judgment and Competitive Impact Statement

Notice is hereby given pursuant to the Antitrust Procedures and

Penalties Act, 15 U.S.C. Secs. 16 (b) through (h), that proposed Final

Judgment, Stipulation, and Competitive Impact Statement have been filed

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

United States v. USA Waste Services, Inc. and Sanifill, Inc., Civil

Action No. 1:96CV02031.

On August 30, 1996, the United States filed a Complaint alleging

that the proposed acquisition by USA Waste Services, Inc. of the stock

of Sanifill, Inc. would violate Section 7 of the Clayton Act, 15 U.S.C.

18. The proposed Final Judgment, filed the same time as the Complaint,

requires the companies, among other things, to divest a dry waste

landfill and certain commercial and residential hauling assets in

Houston, Texas; make available certain municipal solid waste landfill

capacity rights in the Houston area and the Johnstown, Pennsylvania

area; and amend specified waste hauler contract terms in the Johnstown

area in a way which fosters competition.

Public comment is invited within the statutory 60-day comment

period. Such comments and response thereto will be published in the

Federal Register and filed with the Court. Comments should be directed

to J. Robert Kramer, Chief, Litigation II Section, Antitrust Division,

United States Department of Justice, 1401 H Street, N.W., Suite 3000,

Washington, D.C. 20530 (telephone: 202/307-0924).

Copies of the Complaint, Stipulation and Order, Proposed Final

Judgment, and Competitive Impact Statement are available for inspection

in Room 215 of the U.S. Department of Justice, Antitrust Division, 325

7th Street, N.W., Washington, D.C. 20530, (202) 514-2841. 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

United States of America, State of Texas, by and through its

Attorney General, Dan Morales and Commonwealth of Pennsylvania, by

and through its Attorney General, Thomas W. Corbett, Jr. Plaintiffs,

v. USA Waste Services, Inc., and Sanifill, Inc. Defendants.

[Civil Action No.: 1:96-CZ02031]

Filed: August 30, 1996.

Judge Gladys Kessler

Stipulation on Jurisdiction and Agreed Final Judgment

It is stipulated by and between the undersigned parties, through

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 defendants and by filing that

notice with the Court.

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. In the event plaintiffs withdraw their consent or if the

proposed Final Judgment is not entered pursuant to this Stipulation,

this Stipulation shall have no effect whatever and the making of this

Stipulation shall be without prejudice to any party in this or any

other proceeding.

Dated: August 30, 1996.

Respectfully submitted,

For Plaintiff United States of America:

Anne K. Bingaman,

Assistant Attorney General.

Lawrence R. Fullerton,

Deputy Assistant Attorney General.

[[Page 48972]]

Constance K. Robinson,

Director of Operations.

J. Robert Kramer II,

PA Bar # 23963.

Willie L. Hudgins,

DC Bar # 37127.

David R. Bickel,

DC Bar # 393409.

Joel A. Christie,

WI Bar # 1019438.

Michael K. Hammaker,

DC Bar # 233684.

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

St., NW., Suite 3000, Washington, DC 20530, (202) 307-1168.

For Plaintiff State of Texas:

Dan Morales,

Attorney General of Texas.

Jorge Vega,

First Assistant Attorney General.

Laquita A. Hamilton,

Deputy Attorney General for Litigation.

Thomas P. Perkins, Jr.,

Chief, Consumer Protection Division.

Mark Tobey,

Assistant Attorney General, Deputy Chief for Antitrust.

Amy R. Krasner,

Assistant Attorney General, TX Bar No. 00791050.

Office of the Attorney General of Texas, P.O. Box 12548, Austin, TX

78711-2548, (512) 463-2185.

For Plaintiff Commonwealth of Pennsylvania:

Thomas W. Corbett, Jr.,

Attorney General of Pennsylvania.

Carl S. Hisiro,

Chief Deputy Attorney General.

James A. Donahue, III,

Senior Deputy Attorney General.

Carron M. Trainer,

Deputy Attorney General.

Garrett S. Gallia,

Deputy Attorney General.

Office of the Attorney General of Pennsylvania, Antitrust Section,

14th Floor, Strawberry Square, Harrisburg, PA 17120, (717) 787-4530.

For Defendant USA Waste Services, Inc.:

Gregory T. Sangalis,

Vice-President, General Counsel, and Secretary.

For Defendant Sanifill, Inc.:

Kirk K. Van Tine,

DC Bar # 257139, Baker & Botts, LLP, 1299 Pennsylvania Ave., NW,

Washington, DC 20004.

Attorneys for Sanifill, Inc.

So ordered on this ____, day of 1996.

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

United States District Court Judge

Certification of Service

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

USA Waste Services, Inc., Sanifill, Inc., the Office of the Attorney

General of the State of Texas, and the Office of the Attorney General

of the Commonwealth of Pennsylvania, by placing a copy of the United

States' Explanation of Consent Decree Procedures in the U.S. mail,

directed to each of the above-named parties at the addresses given

below, this 30th day of August, 1996.

USA Waste Services, Inc.: c/o James R. Weiss, Preston, Gates, Suite

500, 1735 New York Ave., NW., Washington, DC 20006.

Sanifill, Inc.: c/o Kirk K. Van Tine, Baker & Botts, LLP, 1299

Pennsylvania Ave., NW., Washington, DC 20004.

State of Pennsylvania: James A. Donahue, III, Senior Deputy Attorney

General, Antitrust Section, 14th Floor, Strawberry Square, Harrisburg,

PA 17120.

State of Texas: Mark Tobey, Assistant Attorney General, Deputy Chief

for Antitrust, Office of the Attorney General of Texas, P.O. Box 12548,

Austin, TX 78711-2548.

David R. Bickel,

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

Street, N.W., Suite 3000, Washington, D.C. 20503, (202) 307-1168.

Final Judgment

Whereas, plaintiffs, United States of America (``United States''),

the State of Texas (``Texas''), and the Commonwealth of Pennsylvania

(``Pennsylvania''), having filed their Complaint herein on August 30,

1996, 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 herein, and without this Final

Judgment constituting any evidence against or an admission by any party

with respect to any issue of law or fact herein;

And whereas, defendants have agreed to be bound by the provisions

of this Final Judgment pending its approval by the Court;

And whereas, prompt and certain divestiture of certain assets, the

provision of certain disposal airspace rights, and the prompt

modification of contract terms to assure that competition is not

substantially lessened is the essence of this agreement;

And whereas, the parties intend to require defendants to divest, as

viable business operations, the Divestiture Assets specified herein;

And whereas, defendants have represented to plaintiffs that the

divestiture and contract changes required below can and will be made

and that defendants will later raise no claims of hardship or

difficulty as grounds for asking the Court to modify any of the

divestiture or contract provisions contained below;

Now, therefore, before the taking of any testimony, and without

trial or adjudication of any issue of fact or law herein, and upon

consent of the parties hereto, it is hereby ordered, adjudged, and

decreed as follows:

I

Jurisdiction

This Court has jurisdiction over 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 the defendants under Section 7 of

the Clayton Act, as amended (15 U.S.C. Sec. 18).

II

Definitions

As used in this Final Judgment:

A. ``Solid waste hauling'' means the collection and transportation

to a disposal site of municipal solid waste (but not construction and

demolition waste; medical waste; organic waste; special waste, such as

contaminated soil; sludge; or recycled materials) from residential,

commercial and industrial customers. Solid waste hauling includes hand

pick-up, containerized pick-up and roll-off service.

B. ``USA Waste'' means defendant USA Waste Services, Inc., a

Delaware corporation with its headquarters in Dallas, Texas, and its

successors and assigns, their subsidiaries, affiliates, directors,

officers, managers, agents and employees.

C. ``Sanifill'' means Sanifill, Inc., a Delaware corporation with

its headquarters in Houston, Texas, and its successors and assigns,

their subsidiaries, affiliates, directors, officers, managers, agents

and employees.

D. ``Houston Area'' means Harris County, Texas; Chambers County,

Texas; Brazoria County, Texas; Fort Bend County, Texas; Montgomery

County, Texas; Walker County, Texas; and Galveston County, Texas.

E. ``Johnstown Area'' means Cambria County, Pennsylvania; Blair

County, Pennsylvania; Indiana County, Pennsylvania; Somerset County,

Pennsylvania; and northeast Westmoreland County, Pennsylvania.

[[Page 48973]]

F. ``Houston Hauling Assets'' means the frontload commercial

business of Sanifill that provides solid waste hauling services in the

Houston Area, and, at the option of the purchaser, the rearload

residential business of Sanifill presently served by Sanifill's

Channelview garage located at 999 Ashland in Channelview, Texas. These

assets include all customer lists, contracts and accounts, including

all contracts for disposal of solid waste at disposal facilities, and,

with respect to the rearload residential business, assignable

contracts, all trucks, containers, equipment, material, and supplies

associated with these assets.

G. ``Sunray Assets'' means the operating, permitted Type 4 landfill

(also known as the North County Landfill) and other related assets of

USA Waste with an office at 2015 Wyoming in League City, Texas. These

include the current permit Number 1849 and permit application Number

1849A filed with the Texas Natural Resource Conservation Commission,

all customer lists, contracts and accounts, including all equipment,

material, and supplies associated with these assets. These assets are

not required to include the assets of any hauling business in operation

at the Sunray site.

H. ``Airspace Rights'' means the right of independent private

haulers to dispose municipal solid waste at the Pellegrene Landfill in

the Johnstown Area over a ten-year period beginning on the date of the

divestiture as described more fully in Section IX.

I. ``Airspace Assets'' means the right to dispose, over a ten-year

period beginning on the date of the divestiture, of up to a total of

2,000,000 tons of municipal solid waste in amounts of up to a total of

270,000 tons per year at the Hazelwood Landfill located at 4971 Tri-

City Beach Road in Baytown, Texas and the Brazoria County Landfill

located at 10310 FM in Angleton, Texas.

J. ``Divestiture Assets'' refers to the Houston Hauling Assets,

Sunray Assets, and Airspace Assets.

K. ``Small Container'' means a 1 to 10 cubic yard container.

L. ``Small Containerized Solid Waste Hauling Service'' means

providing solid waste hauling service to commercial customers by

providing the customer with a Small Container that is picked up

mechanically using a frontload, rearload, or sideload truck, and

expressly excludes hand pick-up service, and service using a compactor

attached to or part of a small container.

M. ``Customer'' means a Small Containerized Solid Waste Hauling

Service customer.

III

Applicability

A. The provisions of this Final Judgment apply to the defendants,

their successors and assignees, their subsidiaries, affiliates,

directors, officers, managers, agents, and employees, and 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.

B. Defendants shall require, as a condition of the sale or other

disposition of all or substantially all of the Divestiture Assets, that

the acquiring party or parties agree to be bound by the provisions of

this Final Judgment.

IV

Divestiture of Assets

A. Defendants are hereby ordered and directed, within 90 days from

the filing of this Final Judgment, to divest the Divestiture Assets,

unless the United States, after consultation with Texas, consents that

only some portion of the Divestiture Assets need be divested.

Defendants are further ordered and directed to notify plaintiffs in

writing immediately when they have completed the divestitures.

B. Unless the United States, after consultation with Texas,

otherwise consents, divestiture under Section IV.A, or by the trustee

appointed pursuant to Section V, shall be accomplished in such a way as

to satisfy the United States, in its sole determination after

consultation with Texas, that the Houston Hauling Assets can and will

be operated by the purchaser as a viable, ongoing business engaged in

solid waste hauling, and that the Sunray Assets can and will be

operated by the purchaser as a viable, ongoing business engaged in

solid waste disposal in the Houston Area. Divestiture under Section

IV.A or by the trustee, shall be made to a purchaser or purchasers for

whom it is demonstrated to the satisfaction of the United States, after

consultation with Texas, that (1) the purchase or purchases is or are

for the purpose of competing effectively in solid waste hauling, dry

waste disposal, or both, and (2) the purchaser or purchasers has or

have the managerial, operational, and financial capability to compete

effectively in solid waste hauling and/or disposal.

C. In accomplishing the divestitures ordered by this Final

Judgment, defendants promptly shall make known, by usual and customary

means, the availability of the Divestiture Assets and Airspace Rights

described in this Final Judgment. Defendants shall inform any person

making an inquiry regarding a possible purchase that the sale is being

made pursuant to this Final Judgment and provide such person with a

copy of this Final Judgment. Defendants shall also offer to furnish to

all bona fide prospective purchasers, subject to customary

confidentiality assurances, all information regarding the Divestiture

Assets customarily provided in a due diligence process except such

information subject to attorney-client or work-product privileges.

Defendants shall make available such information to plaintiffs at the

same time such information is made available to any other person. In

giving notice of the availability of the Houston Hauling Assets,

defendants shall not exclude any persons bound by any non-compete

obligations to Sanifill.

D. Defendants shall not require of the purchaser or purchasers, as

a condition of sale, that any current employee of the Divestiture

Assets be offered or guaranteed continued employment after the

divestiture.

E. Defendants shall take all reasonable steps to accomplish quickly

the divestiture contemplated by this Final Judgment.

F. As part of the sale of the Airspace Assets, defendants will

include an agreement to accept waste from the purchaser or anyone

designated by the purchaser to dispose of waste at the landfills. As

agents of the purchaser, defendants will operate the gate, scale house,

and disposal area under terms and conditions no less favorable than

those provided by defendants' vehicles or the vehicles of any

municipality in the Houston Area, except as to price and credit terms.

V

Appointment of Trustee

A. In the event that Defendants have not divested all of their

assets required by Section IV.A by the time set forth in Section IV.A,

the Court shall, on application of the United States, after

consultation with Texas, appoint a trustee selected by the United

States to effect the divestiture required by Section IV.A. After the

appointment of a trustee becomes effective, only the trustee shall have

the right to sell the assets required to be divested pursuant to

Section IV.A. The trustee shall have the power and authority to

accomplish the divestiture at the best price then obtainable upon a

reasonable effort by the trustee, subject to the provisions of Section

VI of this Final Judgment, and shall have such other powers as the

Court shall deem appropriate.

[[Page 48974]]

Defendants shall not object to a sale by the trustee on any grounds

other than the trustee's malfeasance, or on the grounds that the sale

is contrary to the express terms of this Final Judgment. Any such

objections by defendants must be conveyed in writing to plaintiffs and

the trustee within ten (10) days after the trustee has provided the

notice required under Section VI.

B. The trustee shall serve at the cost and expense of defendants,

on such terms and conditions as the Court may prescribe, and shall

account for all monies derived from the sale of the assets sold by the

trustee and all costs and expenses so incurred. After approval by the

Court of the trustee's accounting, including fees for its services, all

remaining money shall be paid to defendants and the trust shall then be

terminated. The compensation of such trustee shall be reasonable and

based on a fee arrangement providing the trustee with an incentive

based on the price and terms of the divestiture and the speed with

which it is accomplished.

C. Defendants shall use their best efforts to assist the trustee in

accomplishing the required divestiture. The trustee and any

consultants, accountants, attorney, and other persons retained by the

trustee shall have full and complete access to the personnel, books,

records, and facilities of the Divestiture Assets, and defendants shall

develop financial or other information relevant to such assets as the

trustee may reasonably request, subject to reasonable protection for

trade secret or other confidential research, development, or commercial

information. Defendants shall take no action to interfere with or to

impede the trustee's accomplishment of the divestiture.

D. After its appointment, the trustee shall file monthly reports

with the parties and the Court setting forth the trustee's efforts to

accomplish the divestiture order under this Final Judgment. If the

trustee has not accomplished such divestiture within six months after

its appointment, the trustee shall thereupon promptly file with the

Court a report setting forth (1) the trustee's efforts to accomplish

the required divestiture, (2) the reasons, in the trustee's judgment,

why the required divestiture has not been accomplished, and (3) the

trustee's recommendations. The trustee shall at the same time furnish

such report to the parties, who shall each have the right to be heard

and to make additional recommendations consistent with the purposes of

the trust. The Court shall thereafter enter such orders as it shall

deem appropriate in order to carry out the purpose of the trust, which

may, if necessary, include extending the trust and the term of the

trustee's appointment by a period requested by the United States, after

consultation with Texas.

E. Defendants shall give 30 days' notice to the United States,

Texas, and Pennsylvania prior to acquiring any interest that is not

otherwise reportable under the Hart-Scott Rodino Act in any assets,

capital stock, or voting securities, other than in the ordinary course

of business, of any person that, at any time during the twelve months

immediately preceding the acquisition, was engaged in the solid waste

hauling industry in the Houston Area or the Johnstown Area where that

person had small container revenues in excess of $500,000 per year or

total revenues in excess of $1 million per year. However, nothing

herein shall preclude defendants from acquiring less than five (5)

percent of the stock of a publicly traded company.

F. Defendants shall give 30 days' notice to the United States,

Texas, and Pennsylvania prior to acquiring any interest that is not

otherwise reportable under the Hart-Scott Rodino Act in any assets,

capital stock, or voting securities, other than in the ordinary course

of business of any person that, at any time during the twelve months

immediately preceding the acquisition, was engaged in the municipal

solid waste or dry waste disposal industry in the Houston Area or the

Johnstown Area, where the revenues of that person, when aggregated with

the revenues of any person or persons acquired in the previous six

months, exceed the revenue limits of paragraph E above. However,

nothing herein shall preclude defendants from acquiring less than five

(5) percent of the stock of a publicly traded company.

G. The purchaser or purchasers of the Divestiture Assets, or any of

them, shall not, without the prior written consent of the United

States, after consultation with Texas, sell any of those assets to, or

combine any of those assets with, those of defendants during the life

of this decree. Furthermore, the purchaser or purchasers of the

Divestiture Assets, or any of them, shall notify plaintiffs 45 days in

advance of any proposed sale of all or substantially all of the assets,

or change in control over those assets, acquired pursuant to this Final

Judgment.

VI

Notification

A. Defendants or the trustee, whichever is then responsible for

effecting the divestiture required herein, shall notify plaintiffs of

any proposed divestiture required by Section IV or V of this Final

Judgment. If the trustee is responsible, it shall similarly notify

defendants. The notice shall set forth the details of the proposed

transaction and list the name, address, and telephone number of each

person not previously identified who offered or expressed an interest

or desire to acquire any ownership interest in the Divestiture Assets

or any of them, together with full details of the same. Within fifteen

(15) days after receipt of the notice, plaintiffs may request

additional information concerning the proposed divestiture, the

proposed purchaser, and any other potential purchaser. Defendants or

the trustee shall furnish the additional information within fifteen

(15) days of the receipt of the request. Within thirty (30) days after

receipt of the notice or within fifteen (15) days after receipt of the

additional information, whichever is later, the United States, after

consultation with Texas, shall notify in writing defendants and the

trustee, if there is one, if it objects to the proposed divestiture. If

the United States fails to object within the period specified, or if

the United States notifies in writing defendants and the trustee, if

there is one, that it does not object, then the divestiture may be

consummated, subject only to defendant's limited right to object to the

sale under Section V.A. Upon objection by the United States, after

consultation with Texas, or by defendants under Section V.A, the

proposed divestiture shall not be accomplished unless approved by the

Court.

B. Thirty (30) days from the date when defendants consummate the

acquisition, but in no event later than October 30, 1996, and every

thirty (30) days thereafter until the divestiture has been completed,

defendants shall deliver to plaintiffs a written report as to the fact

and manner of compliance with Section IV of this Final Judgment. Each

such report shall include, for each person who during the preceding

thirty (30) days made an offer, expressed an interest or desire to

acquire, entered into negotiations to acquire, or made an inquiry about

acquiring any ownership interest in the Divestiture Assets or any of

them, the name, address, and telephone number of that person and a

detailed description of each contact with that person during that

period. Defendants shall maintain full records of all efforts made to

divest the Divestiture Assets or any of them.

[[Page 48975]]

VII

Financing

Defendants shall not finance all or any part of any purchase made

pursuant to Sections IV or V of this Final Judgment without the prior

written consent of the United States, after consultation with Texas and

Pennsylvania.

VIII

Prohibited Conduct

With respect to the Johnstown Area, defendants are enjoined and

restrained as follows:

A. Except as set forth in paragraph VIII.B. and G., defendants

shall not enter into any contract with a Customer for a service

location that:

(1) Has an initial term longer than one (1) year;

(2) Has any renewal term longer than one (1) year;

(3) Requires that the Customer give defendants notice of

termination more than thirty (30) days prior to the end of any initial

term or renewal term;

(4) Requires that the Customer pay liquidated damages in excess of

three times the greater of its prior monthly charge or its average

monthly charge over the most recent six months during the first year of

the initial term of the Customer's contract;

(5) Requires that the Customer pay liquidated damages in excess of

two times the greater of its prior monthly charge or its average

monthly charge over the most recent six months after the Customer has

been a Customer of a defendant for a continuous period in excess of one

(1) year;

(6) Requires the Customer to give defendants notice of any offer by

or to another solid waste hauling firm or requires the Customer to give

defendants a reasonable opportunity to respond to such an offer for any

period not covered by the contract (sometimes referred to as a ``right

to compete'' clause);

(7) Is not easily readable (e.g., formatting and typeface) or is

not labeled, in large letters, SERVICE CONTRACT; or

(8) Requires a Customer to give defendants the right or opportunity

to provide hauling service for recyclables or more than one solid waste

hauling service for a Customer unless the Customer affirmatively

chooses to have defendant do so by so stating on the front of the

contract.

B. Notwithstanding the provisions of paragraph VIII.A. of this

Final Judgment, defendants may enter into a contract with a Customer

for a service location with an initial term in excess of one year

provided that:

(1) The Customer has acknowledged in writing that the defendants

have offered to the Customer the form contracts defendants are required

under VIII.A. and D. to offer generally to Customers by notice in the

form attached hereto as Exhibit B;

(2) The Customer has the right to terminate the contract after one

year by giving notice to defendants thirty (30) days or more prior to

the end of that one year period;

(3) The contract otherwise complies with the provisions of

paragraph VIII.A. (2)-(8); and

(4) The number of service locations subject to contracts permitted

under subparagraph B. does not exceed 25% of the total number of

service locations for small containerized solid waste hauling service

in any year.

C. From the date of the filing of an executed Stipulation,

defendants shall offer to new Customers with service locations only

contracts that conform to the requirements of paragraphs VIII.A. or B.

of this Final Judgment, except as provided in VIII.G.

D. Except as provided in VIII.G., within thirty (30) days following

the entry of this Final Judgment, defendants shall send to all existing

Customers with service locations with contracts having an initial term

longer than one year and which otherwise do not conform with paragraph

VIII.B. a notice in the form attached hereto as Exhibit A. If the

customer elects to accept the offered contract language, defendants

shall execute such an agreement.

E. Except as provided in VIII.G., for each Customer with a contract

having an initial term longer than one year and that otherwise does not

conform to paragraphs VIII.B. that enters a renewal term 120 days after

entry of this Final Judgment, defendants shall send a reminder to that

Customer, in the form attached hereto as Exhibit B, ninety (90) days or

more prior to the effective date of the renewal term. This remainder

may be sent to the Customer as part of a monthly bill, but if it is, it

must be displayed on a separate page and in large print.

F. Upon entry of this Final Judgment, defendants may not enforce

those contract provisions that are inconsistent with this Final

Judgment.

G. Notwithstanding the provisions of this Final Judgment,

defendants may enter into contracts with municipal or governmental

entities that are not in compliance with paragraphs VIII.A.-F. provided

that those contracts are awarded to defendants on the basis of a formal

request for bids or a formal request for proposals issued by the

Customer.

H. Notwithstanding the provisions of this Final Judgment,

defendants shall not be required to do business with any Customer.

I. Defendants may not oppose any efforts by any persons to amend

any county plans to add any landfill, to permit a new landfill, or to

permit expansion of an existing landfill.

IX

Airspace Rights

A. Defendants shall provide the Airspace Rights at the Pellegrene

Landfill, located at SR 2019 Lucisboro Road in Homer City, Pennsylvania

as follows:

(1) Defendants are obligated to accept up to 200 tons per day and

up to 62,400 tons per year during the ten-year period;

(2) Subject to applicable county plans, these Airspace Rights will

be available to any independent private hauler for waste collected in

the Pennsylvania counties of Cambria, Blair, Westmoreland, and Somerset

until the tonnage limits in IX.A(1) are met; and

(3) Defendants will provide these Airspace rights under terms and

conditions no less favorable than those provided to defendants'

vehicles or the vehicles of any municipality in the Johnstown area,

except as to price and credit terms.

B. For purposes of measuring the tonnage of airspace rights

provided under Section IX,

(1) Construction and demolition or other Type 4 materials and waste

delivered in transfer trailers are not included in the tonnage limits

set forth in IX.A.(1);

(2) ``Independent private hauler'' refers to any private firm, not

including municipalities, providing solid waste collection services,

but no disposal services, in the Johnstown Area.

X

Preservation of Assets

Until the divestitures required by the Final Judgment have been

accomplished:

A. Defendants shall take all steps necessary to ensure that the

Houston Hauling Assets will be maintained and operated in the ordinary

course of business and consistent with past practices, and shall (1)

maintain all insurance policies and all permits that are required for

the operation of the assets, and (2) maintain books of account and

records in the usual, regular, and ordinary manner and consistent with

past practices.

[[Page 48976]]

B. Defendants shall take all steps necessary to ensure that the

Sunray Assets will be maintained and operated as an independent,

ongoing, economically viable and active competitor in the provision of

dry waste disposal services in the Houston Area, with management

operations, books, records and competitively-sensitive sales, marketing

and pricing information and decision-making kept separate and apart

from, and not influenced by, that of Sanifill's solid waste hauling and

disposal businesses.

C. Defendants shall use all reasonable efforts to maintain and

increase sales of solid waste hauling and disposal services provided by

the Divestiture Assets, and they shall maintain at 1995 or previously

approved levels, whichever is higher, promotional, advertising, sales,

marketing and merchandising support for such services.

D. Defendants shall take all steps necessary to ensure that the

Divestiture Assets are fully maintained in operable condition, and

shall maintain and adhere to normal or previously approved repair,

improvement and maintenance schedules for the Divestiture Assets.

E. Defendants shall not, except as part of a divestiture approved

by plaintiffs, remove, sell or transfer any Divestiture Assets, other

than solid waste hauling and disposal services provided in the ordinary

course of business.

F. Defendants shall take no action that would jeopardize the sale

of Divestiture Assets.

G. Defendants shall appoint a person with oversight responsibility

for the Divestiture Assets to insure compliance with this section of

the Final Judgment.

XI

Compliance Inspection

For the purpose of determining or securing compliance with this

Final Judgment, and subject to any legally recognized privilege, from

time to time.

A. Duly authorized representatives of the United States, Texas, or

Pennsylvania, including consultants and other persons retained by the

plaintiffs, shall, upon the written request of the Assistant Attorney

General in charge of the Antitrust Division or the Attorney General of

the State of Texas or the Attorney General of the Commonwealth of

Pennsylvania, respectively, and on reasonable notice to defendants made

to its principal offices, be permitted:

1. access during office hours to inspect and copy all books,

ledgers, accounts, correspondence, memoranda, and other records and

documents in the possession or under the control of defendants, which

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

Final Judgment; and

2. subject to the reasonable convenience of defendants and without

restraint or interference from them, to interview defendants'

directors, officers, employees, and agents who may have counsel

present, regarding any such matters.

B. Upon the written request of the Assistant Attorney General in

charge of the Antitrust Division or the Attorney General of the State

of Texas or the Attorney General of the Commonwealth of Pennsylvania,

respectively, made to defendants at their principal offices, defendants

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

respect to any of the matters contained in this Final Judgment as may

be requested.

C. No information nor any documents obtained by the means provided

in this Section XI shall be divulged by any representative of the

United States or the Office of the Attorney General of Texas or of the

Office of the Attorney General of Pennsylvania to any person other than

a duly authorized representative of the Executive Branch of the United

States or of the Office of the Attorney General of Texas or of the

Office of the Attorney General of Pennsylvania, except in the course of

legal proceedings to which the United States, Texas or Pennsylvania is

a party (including grand jury proceedings), 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 material in any such information or documents for 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 plaintiffs shall give ten (10)

days notice to defendants prior to divulging such material in any legal

proceeding (other than a grand jury proceeding) to which any defendant

is not a party.

XII

Retention of Jurisdiction

Jurisdiction is retained by this Court for the purpose of enabling

any of the parties to this Final Judgment to apply to this Court at any

time for such further orders and directions as may be necessary or

appropriate for the construction, implementation, or modification of

any of the provisions of this Final Judgment, for the enforcement of

compliance herewith, and for the punishment of any violations hereof.

XIII

Termination

This Final Judgment will expire on the tenth anniversary of the

date of its entry.

XIV

Public Interest

Entry of this Final Judgment is in the public interest.

Dated:-----------------------------------------------------------------

Court approval subject to procedures of Antitrust Procedures and

Penalties Act, 15 U.S.C. 16

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

United States District Judge

Notice to Customers

Dear Valued Customer:

[Insert name of local operating company] is offering a new one

year contract to all small containerized solid waste hauling

customers with service locations in [insert market here]. We would

like to take this opportunity to offer this contract to you. Of

course, if you prefer, you can continue with your existing contract.

In most cases, this new contract will have terms that are more

advantageous to customers than their current contracts. This new

contract has the following features:

An initial term of one year (unless you request a

longer term);

A renewal term of one year;

At the end of your initial term, you may take no action

and your contract will renew or you can choose not to renew the

contract by simply giving us notice at any time up to 30 days prior

to the end of your term;

If you can request a contract with a term longer than

one year, you can cancel that contract after one year by giving us

notice at any time up to 30 days prior to the end of the first year;

If you terminate the contract at any other time, you

will be required to pay, as liquidated damages, no more than three

times the greater of your prior monthly or average monthly charge.

If you've been a customer continuously for more than one year, the

liquidated damages would be reduced to two times the greater of your

prior monthly or average monthly charge;

You will not be required to give us notice of any offer

from another waste hauling firm or to give us an opportunity to make

a counteroffer although you may do so if you wish;

You will be able to choose on the contract which

specific types of waste hauling services you would like us to

perform.

You may obtain a new contract containing these terms by calling

[insert telephone number or sales rep name and number].

[[Page 48977]]

Exhibit A

If you prefer, you may continue with your existing contract. If

you retain your existing contract, we will not enforce any terms

that are inconsistent with the new form contract terms.

We thank you for your business and look forward to a continued

relationship with you. If you have any questions, please call

[insert contact person and phone number].

Reminder to Customers

Your contract will automatically renew on [MM/DD/YY] unless we

receive your cancellation by [MM/DD/YY].

You may also obtain a new form contract with some terms more

advantageous to you than your current contract.

You may obtain a new contract containing these terms by calling

[insert telephone number or sales rep name and number].

Exhibit B

Competitive Impact Statement

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

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

files this Competitive Impact Statement relating to the proposed Final

Judgment submitted for entry in this civil proceeding.

I

Nature and Purpose of the Proceeding

On August 30, 1996, the United States filed a civil antitrust

Complaint which alleges that the proposed acquisition of the voting

stock of Sanifill, Inc. (``Sanifill'') by USA Waste Services, Inc.

(``USA Waste'') would violate Section 7 of the Clayton Act, 15 U.S.C.

Sec. 18. The Complaint alleges that the combination of these two

significant competitors would lessen competition substantially in the

provisions of small containerized waste hauling services and landfill

disposal services in the Houston, Texas and Johnstown Pennsylvania

areas. As defined in the Complaint, the Houston area encompasses Harris

County, Texas; Chambers County, Texas; Brazoria County, Texas, Fort

Bend County, Texas; Montgomery County, Texas; Walker County, Texas and

Galveston County, Texas; including the municipalities located, in whole

or in part, in those counties (``Houston market''). The Johnstown area

encompasses Indiana County, Pennsylvania; Somerset County,

Pennsylvania; Cambria County, Pennsylvania; northeastern Westmorland

County, Pennsylvania; and Blair County, Pennsylvania, including the

municipalities located, in whole or in part, in those counties

(``Johnstown market''). The prayer for relief in the Complaint seeks:

(1) A judgment that the proposed acquisition would violate Section 7 of

the Clayton Act; and (2) a permanent injunction preventing USA Waste

from acquiring control of Sanifill.

When the Complaint was filed, the United States also filed a

proposed settlement that would permit USA Waste to complete its

acquisition of Sanifill, but require certain divestitures and contract

modifications that will preserve competition in the Houston and

Johnstown markets. This settlement consists of a Stipulation and Order

and a proposed Final Judgment.

The proposed Final Judgment orders USA Waste to divest the Sanifill

garage located at 999 Ashland, Channelview, Texas 77530; Sanifill's

frontload commercial hauling business that provides solid waste hauling

services in the Houston market, most of the rearload residential

business of Sanifill presently served by Sanifill's Channelview

facility (``Houston Hauling Assets''), and USA Waste's North County

Landfill located at 2015 Wyoming, League City, Texas (``Houston

Landifill Site'').

In addition, USA Waste is ordered to sell the right to use landfill

capacity for up to 2,000,000 tons of municipal solid waste (``MSW'')

over a ten year period beginning on the date of divestiture (and capped

at an annual total of 270,000 tons) at one or both of the following

sites in the Houston market: the Hazelwood Landfill located at 4719

Tri-City Beach Road, Baytown, Texas 77520 and the Brazoria County

Landfill located at 10310 FM 523, Angleton, Texas. (``Houston Airspace

Assets''). USA Waste must complete the divestiture of the Houston

Assets, the Houston Landfill Site, and the Houston Airspace Assets

within ninety (90) days after the date on which the proposed Final

Judgment was filed (i.e., August 30, 1996), in accordance with the

procedures specified therein.

The Stipulation and Order and proposed Final Judgment requires USA

Waste to ensure that, until the divestitures mandated by the proposed

Final Judgment have been accomplished, the Houston Hauling Assets and

the Houston Landfill Site will be maintained and operated as an

independent, ongoing, economically viable and active competitor. USA

Waste must preserve and maintain the assets to be divested as salable,

ongoing concerns, with competitively sensitive business information and

decision-making divorced from that of USA Waste. USA Waste will appoint

a person or persons to monitor and ensure its compliance with these

requirements of the proposed Final Judgment.

Further, the proposed Final Judgment orders USA Waste to take

certain actions to eliminate any anticompetitive impact from the

proposed acquisition on the Johnstown market. USA Waste is ordered to

offer less restrictive service contracts to their small container solid

waste hauling customers in the Johnstown market. It must provide at

least 30 days written notice to the U.S. Department of Justice and the

Commonwealth of Pennsylvania Attorney General's Office in advance of

its purchase of any significant waste hauling or waste disposal company

in the Johnstown market. It shall not oppose the addition of any

landfill, existing or new, to any county landfill plan in the Johnstown

market. And further, USA Waste shall make available a total of 200 tons

per day of MSW landfill capacity over a ten year period beginning on

the date of divestiture at the following site in the Johnstown market:

the Pellegrene Landfill located at SR 2019 Lucisboro Road, Homer City,

Pennsylvania 15748. The Pelligrene Landfill capacity shall be made

available by the defendants for use by any and all independent private

MSW haulers.

The United States and the 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

USA Waste is the third largest solid waste hauling and disposal

company in the nation, and several municipal, commercial, industrial

and residential customers in 24 states. In 1995, USA Waste had total

revenues of over $730 million.

Sanifill is one of the top ten companies in the solid waste hauling

and disposal business in the United States with operations in 23

states, the District of Columbia, Puerto Rico, Mexico and Canada. In

1995, Sanifill had total revenues of about $257 million.

On June 22, 1996, USA Waste agreed to acquire all of the voting

stock of Sanifill for a purchase price of $1.5 billion. This

transaction, which would take place in the highly concentrated Houston

and Johnstown small container hauling and landfill disposal industries,

precipitated the government's suit.

[[Page 48978]]

The Transaction's Effects in the Houston and Johnstown Markets

A. The Solid Waste Hauling Industry

The Complaint alleges that small containerized hauling services and

landfill disposal services constitute lines of commerce, or relevant

product markets, for antitrust purposes, and that the Houston area and

the Johnstown area constitute appropriate sections of the country, or

relevant geographic markets. The Complaint alleges the effect of USA

Waste's acquisition may be to lessen competition substantially in the

provision of small containerized hauling services in the Houston and

Johnstown markets and landfill disposal services in the Houston market.

Solid waste hauling involves the collection of paper, food,

construction material and other solid waste from homes, businesses and

industries, and the transporting of that waste to a landfill or other

disposal site. These services may be provided by private haulers

directly to residential, commercial and industrial customers, or

indirectly through municipal contracts and franchises.

Service to commercial customers accounts for a large percentage of

total hauling revenues. Commercial customers include restaurants, large

apartment complexes, retail and wholesale stores, office buildings, and

industrial parks. These customers typically generate a substantially

larger volume of waste than that generated by residential customers.

Waste generated by commercial customers is generally placed in metal

containers of one to ten cubic yards provided by their hauling company.

One to ten cubic yard containers are called ``small containers.'' Small

containers are collected primarily by front-end load vehicles that lift

the containers over the front of the truck by means of a hydraulic

hoist and empty them into the storage section of the vehicle, where the

waste is compacted. Specially-rigged rear-end load vehicles can also be

used to service some small container customers, but these trucks

generally are not as efficient as front-end load vehicles and are

limited in the size of containers they can safely handle. Front-end

load vehicles can drive directly up to a container and hoist the

container in a manner similar to a forklift hoisting a pallet; the

containers do not need to be manually rolled into position by a truck

crew as with a rear-end load vehicle. Service to commercial customers

that use small containers is called ``small containerized hauling

service.''

Solid waste hauling firms also provide service to residential and

industrial (or ``roll-off'') customers. Residential customers,

typically households and small apartment complexes that generate small

amounts of waste, use noncontainerized solid waste hauling service,

normally placing their waste in plastic bags or trash cans at curbside.

Rear-end load vehicles are generally used to collect waste from

residential customers and from those commercial customers that generate

relatively small quantities of solid waste, similar in amount and kind

to those generated by residential customers. Generally, rear-end

loaders use a two or three person crew to manually load the waste into

the rear of the vehicle.

Industrial or roll-off customers include factories and construction

sites. These customers either generate noncompactible waste, such as

concrete or building debris, or very large quantities of compactible

waste. They deposit their waste into very large containers (usually 20

to 40 cubic yards) that are loaded onto a roll-off truck and

transported individually to the disposal site where they are emptied

before being returned to the customer's premises. Customers, like

shopping malls, use large, roll-off containers with compactors. This

type of customer generally generates compactible trash, like cardboard,

in very great quantities; it is more economical for this type of

customer to use roll-off service with a compactor than to use a number

of small containers picked up multiple times a week.

There are no practical substitutes for small containerized hauling

service. Small containerized hauling service customers will not

generally switch to noncontainerized service because it is too

impractical and costly for those customers to bag and carry their trash

to the curb for hand pick-up. Small containerized hauling service

customers also value the cleanliness and relative freedom from

scavengers afforded by that service. Similarly, roll-of service is much

too costly and takes up too much space for most small containerized

hauling service customers. Only customers that generate the largest

volumes of solid waste can economically consider roll-off service, and

for customers that do generate large volumes of waste, roll-off service

is usually the only viable option.

Solid waste hauling services are generally provided in very

localized areas. Route density (a large number of customers that are

close together) is necessary for small containerized solid waste

hauling firms to be profitable. In addition, it is not economically

efficient for trash hauling equipment to travel long distances without

collecting significant amounts of waste. Thus, it is not efficient for

a hauler to serve major metropolitan areas from a distant base.

Haulers, therefore, generally establish garages and related facilities

within each major local area served. Local laws or regulations may

further localize markets. For example, flow control regulations in

Pennsylvania can designate the facilities where trash picked up within

a geographic area must be disposed. Other local regulations may

prohibit the depositing of trash from outside a particular jurisdiction

in disposal facilities located within that jurisdiction. By designating

certain disposal facilities, these laws and regulations can dictate

which disposal facilities can compete for waste from these local

jurisdictions and how a hauler can set up its routes.

The Complaint alleges that USA Waste's acquisition of Sanifill

would substantially lessen competition for the provision of small

containerized hauling service in the Houston and Johnstown markets.

Actual and potential competition between USA Waste and Johnstown for

the provision of small containerized hauling service in the Houston and

Johnstown markets will be eliminated.

USA Waste and Sanifill are two of the largest providers of small

containerized hauling service in the Houston and Johnstown markets. In

the Houston market, USA Waste has a 24 percent share and Sanifill has a

7 percent share. The acquisition would increase the Herfindahl-

Hirschmann Index (HHI) by about 325 to about 2225.

In the Johnstown market, USA Waste has a 31 percent share and

Sanifill has a 14 percent share. The acquisition would increase the HHI

by about 850 to about 2550.

Solid waste hauling is an industry highly susceptible to tacit or

overt collusion among competing firms. Overt collusion has been

documented in more than a dozen criminal and civil antitrust cases

brought in the last decade and a half. Such collusion typically

involves customer allocation and price fixing, and where it has

occurred, has been shown to persist for many years.

The elimination of one of a small number of significant

competitors, such as would occur as a result of the proposed

transaction in the alleged markets, significantly increases the

likelihood that consumers in these markets are likely to face higher

prices or poorer quality service.

A new entrant cannot constrain the prices of larger incumbents

until it

[[Page 48979]]

achieves minimum efficient scale and operating efficiencies comparable

to the incumbent firms. In small containerized hauling service,

achieving comparable operating efficiencies requires achieving route

density comparable to existing firms, which typically takes a

substantial period of time. A substantial barrier to entry is created

by the use of long-term contracts coupled with selective pricing

reductions to specific customers to deter new entrants into small

containerized hauling service and to hinder them in winning enough

customers to build efficient routes. Further, even if a new entrant

endures and grows to a point near minimum efficient scale, the entrant

will often be purchased by an incumbent firm and will be removed as a

competitive threat.

B. Landfill Disposal Services

Most commercial solid waste is taken by haulers to landfills for

disposal. Access to a suitable MSW landfill at a competitive price is

essential to a hauling company performing commercial containerized

hauling service because disposal costs account for approximately 30-50

percent of the revenues received for this service. Suitable MSW

landfills are difficult and time consuming to obtain because of the

scarcity of appropriate land, high capital costs, local resident

opposition, and government regulation. Several years are required to

process an application, with no guarantee of success.

In Texas, dry waste can be taken to what are referred to as a MSW

(Type 1) landfill or to a dry waste (Type 4) landfill. Access to a

suitable landfill at a competitive price is essential to a hauling

company collecting dry waste because disposal costs can account for

over 60% of the revenues for this service. Dry waste landfills are

difficult and time consuming to obtain because to permit and build a

Type 4 landfill in Texas, one must go through a process similar to that

for permitting a Type 1 landfill. Several years are required to process

an application, with no guarantee of success.

USA Waste's acquisition of Sanifill would substantially lessen

competition for the provision of MSW landfill and dry waste landfill

service in the Houston market. Actual and potential competition between

USA Waste and Sanifill for the provision of MSW and dry waste landfill

service in the Houston market will be eliminated.

USA Waste and Sanifill are two leading providers of MSW landfill

and dry waste landfill services in the Houston market. There are nine

MSW landfills (owned by four firms) and approximately 18 dry waste

landfills (owned by seven firms) in the Houston area. USA Waste and

Sanifill each operate one MSW landfill; Sanifill has 11 dry waste

landfills (four operating) and USA Waste has one dry waste landfill.

As a result of the acquisition, the concentration of MSW and dry

waste landfill services in the Houston market will be substantially

increased, which is likely to result in price increases. The

acquisition would increase the HHI in MSW landfill disposal service by

225 points to 3550; and in dry waste landfills by 650 points to 4000.

In the Houston market, there are no alternative types of facilities

available for the disposal of either MSW waste or dry waste. Although

dry waste can be taken to either a MSW landfill or a dry waste

landfill, prices at the MSW landfill are significantly higher than at

the dry waste landfill, so that MSW landfills are not normally used for

dry waste. Accordingly, haulers are not likely to switch to another

disposal service despite an increased concentration in the ownership of

MSW or dry landfills and a likely price increase resulting from the

merger.

C. Harm to Competition as a Consequence of the Acquisition

The Complaint alleges that the transaction would have the following

effects, among others: competition for the provision of small

containerized hauling service in the Houston and Johnstown markets and

landfill disposal service in the Houston market will be substantially

lessened; actual and potential competition between USA Waste and

Sanifill in the provision of small containerized hauling service and

landfill disposal service in the Houston market will be eliminated; and

prices for small containerized hauling service in the Houston and

Johnstown markets and landfill disposal service in the Houston market

are likely to increase above competitive levels.

III

Explanation of the Proposed Final Judgment

A. The Houston Market

The provisions of the proposed Final Judgment are designed to

eliminate the anticompetitive effects of the acquisition in small

containerized hauling services in the Houston market by establishing a

new, independent and economically viable competitor in that market. The

proposed Final Judgment requires USA Waste and Sanifill, within 90 days

of August 30, 1996, to divest, as viable ongoing businesses, the

Houston Hauling Assets, Houston Landfill Site and the Houston Airspace

Assets. The divestitures would include the small containerized hauling

service assets, landfill disposal assets, and such other assets as may

be necessary to insure the viability of the small container and

landfill businesses. If USA Waste and Sanifill cannot accomplish these

divestitures within the above-described period, the Final Judgment

provides that, upon application (after consultation with the State of

Texas) by the United States as plaintiff, the Court will appoint a

trustee to effect divestiture.

The proposed Final Judgment provides that the assets must be

divested in such a way as to satisfy plaintiff United States (after

consultation with the State of Texas) that the operations can and will

be operated by the purchaser or purchasers as viable, ongoing

businesses that can compete effectively in the relevant market. The

defendants must take all reasonable steps necessary to accomplish the

divestitures, shall cooperate with bona fide prospective purchasers

and, if one is appointed, with the trustee.

If a trustee is appointed, the proposed Final Judgment provides

that USA Waste and Sanifill will pay all costs and expenses of the

trustee. The trustee's commission will be structured so as to provide

an incentive for the trustee based on the price obtained and the speed

with which divestiture is accomplished. After his or her appointment

becomes effective, the trustee will file monthly reports with the

parties and the Court, setting forth the trustee's efforts to

accomplish divestiture. At the end of six months, if the divestiture

has not been accomplished, the trustee and the parties will make

recommendations to the Court which shall enter such orders as

appropriate in order to carry out the purpose of the trust, including

extending the trust or the term of the trustee's appointment.

In addition, the proposed Final Judgment intends to eliminate the

anticompetitive effects of the acquisition in the Houston area market

for MSW disposal services by requiring USA Waste and Sanifill to sell

the rights to disposal of 2 million tons of MSW waste over ten years at

their only two MSW landfills in the area. The Final Judgment limits the

amount disposed of in any one year to 270,000 tons and requires that

USA Waste and Sanifill will provide the necessary services to dispose

of the waste to the purchaser or any agents designated by the purchaser

in a nondiscriminatory manner. The 270,000 ton limit is approximately

80%

[[Page 48980]]

of the total capacity used in 1995 at the Sanifill MSW landfill.

Sanifill will retain some of the hauling operations that used this

landfill in 1995 and needs some capacity to compete for large disposal

contracts against its two larger landfill competitors in the area. The

availability of this significant capacity limits the impact of any

increase in MSW landfill concentration in the Houston market. The

availability of this landfill capacity further helps to ensure the

success of any entity purchasing the Houston Hauling Assets in

competing with other haulers in the Houston market.

Pursuant to its terms, the proposed Final Judgment mandates that

USA Waste also divest its sole dry waste (Type 4) landfill in the

Houston area market. USA Waste's divestiture of the North County

Landfill eliminates any possible anticompetitive effect related to the

merger and its impact on dry waste landfills in the Houston area

market.

Finally, the requirement of the proposed Final Judgment that

defendants provide 30 days written notice of any proposed purchase of

significant waste hauling or disposal companies in the Houston market

insures that the U.S. Department of Justice and the State of Texas

General's Office will be able to review, consider and oppose if

necessary any future consolidation in the market for a period of ten

years.

B. The Johnstown Market

The proposed Final Judgment also requires USA Waste and Sanifill to

offer less restrictive contracts to small containerized hauling

customers in the Johnstown area market. These changes to the contracts

involve substantially shortening the term of contracts USA Waste and

Sanifill use from three years to one year, substantially reducing the

amount of liquidated damages, and eliminating other terms that could

make entry more difficult. The proposed Final Judgment generally

requires that these revised contracts shall be offered immediately to

all new small containerized hauling customers. Within 30 days of the

entry of the proposed Final Judgment, USA Waste and Sanifill must offer

the revised contract to all their non-municipal small containerized

hauling service customers in the Johnstown market. These changes in the

contract will make it easier for a new entrant to gain customers and

set up an efficient route or for a small hauler to expand its route if

prices increase. In the Johnstown area, a rural market in which most

haulers offer rearload small containerized hauling services and there

are a number of small containerized haulers, contract relief should

substantially eliminate any anticompetitive effects in the small

containerized hauling market.

The proposed Final Judgment further limits any anticompetitive

effect in the small containerized hauling market related to the USA

Waste acquisition of Sanifill in the Johnstown market in several ways.

First, the defendants are required to make available specified MSW

landfill airspace rights to independent haulers for a ten year period.

Defendants are obliged to accept up to 200 tons per day and up to

62,400 tons per year during this period at the Pelligrene landfill

under non-price terms no less favorable than those provided to

defendants' vehicles or the vehicles of any municipality in the

Johnstown market. Second. USA Waste and Sanifill are required to

refrain from opposing in any way the addition of new or existing

landfills to any county landfill plan in the Johnstown market from

entry of the Final Judgment and refrain from opposing any permit

application for a new landfill or expansion of an existing landfill for

a period of ten years. Finally, the requirement that defendants provide

at least 30 days written notice of any proposed purchase of significant

waste hauling or disposal companies in the Johnstown area market

insures that the U.S. Department of Justice and the Commonwealth of

Pennsylvania Attorney General's Office will be able to review, consider

and oppose if necessary any future consolidation in the market for a

period of ten years.

The United States concluded divestiture was not necessary in the

Johnstown market. It determined that a change in the type of contracts

used with small containerized hauling service in this market, combined

with the additional notice and landfill capacity agreements reached

with the parties, will adequately address the competitive concerns

posed by USA Waste's acquisition of Sanifill. A number of factors led

to that decision, including the number of existing competitors in the

market; the size of the population; the number, location and density of

commercial establishments requiring small containerized hauling

service; and the extensive use of rear-end load mixed (hand and

containerized) collection routes. Absent the long-term contracts and

limitations on landfill access, these firms could be expected to expand

significantly their containerized hauling operations in response to an

anticompetitive price increase. Requiring USA Waste and Sanifill to

offer less restrictive contracts within the market and to provide

access to landfill capacity to independent haulers eliminates a major

barrier to entry and expansion, thus constraining any possible

anticompetitive price increase by the post-acquisition firm.

The relief sought in the various markets alleged in the Complaint

has been tailored to insure that, given the specific conditions in each

market, the relief will protect consumers of small containerized

hauling services and landfill disposal services from higher prices and

poorer quality service in those markets that might otherwise result

from the acquisition.

IV

Remedies Available to Potential Private Litigants

Section 4 of the Clayton Act (15 U.S.C. 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 defendant.

V

Procedures Available for Modification of the Proposed Final Judgment

The United States and defendant have stipulated that the proposed

Final Judgment may be entered by the Court after compliance with the

provisions of the APPA, provided that the United States has not

withdrawn its 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

[[Page 48981]]

published in the Federal Register. Written comments should be submitted

to: J. Robert Kramer II, Chief, Litigation II Section, Antitrust

Division, United States Department of Justice, 1401 H Street, N.W.,

Suite 3000, 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, litigation against defendants USA Waste and Sanifill.

The United States could have brought suit and sought preliminary and

permanent injunctions against USA Waste's acquisition of the voting

stock Sanifill. The United States is satisfied, however, that the

divestiture of the described assets, the provision of significant

landfill capacity to competitors, and the contract relief outlined in

the proposed Final Judgment will encourage viable waste hauling and

disposal competitors in the markets identified by the United States as

requiring the relief implemented. The United States is satisfied that

the proposed relief will prevent the acquisition from having

anticompetitive effects in those markets. The divestiture, the

provision of landfill capacity and the proposed contractual relief will

restore the markets to the structure that existed prior to the

acquisition, will preserve the existence of independent competitors in

those areas, and will allow for new entry and expansion by existing

firms in those markets where contract relief is sought. For the reasons

discussed above, infra at pages 17-18, the United States concluded

divestiture was not necessary in the Johnstown market because the

contractual, notification, and landfill capacity agreements reached

with the parties adequately address the competitive concerns.

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 Court of Appeals for the

District of Columbia Circuit recently held, the APPA 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 (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.'' \1\ Rather,

\1\ 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. 93-1463, 93rd

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

6535, 6538.

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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.

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 1448 (D.C. Cir. 1995). 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.\2\

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\2\ 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 Cynamid Co., 719

F.2d at 565.

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).'' \3\

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\3\ 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., 505 F. Supp.

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

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VIII

Determinative Documents

There are no determinative materials or documents within the

meaning of the APPA that were considered by the United States in

formulating the proposed Final Judgment.

For Plaintiff United States of America:

Dated: September 6, 1996.

J. Robert Kramer II,

PA Bar #23963.

Willie L. Hudgins,

DC BAR #37127.

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

David R. Bickel,

DC Bar #393409.

Joel A. Christie,

WI Bar #1019438.

Michael K. Hammaker,

DC Bar #233684.

[[Page 48982]]

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

St., N.W., Washington, D.C. 20530, (202) 307-1168.

Certification of Service

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

USA Waste Services, Inc., Sanifill, Inc., the Office of the Attorney

General of the State of Texas, and the Office of the Attorney General

of the Commonwealth of Pennsylvania, 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 6th day of

September, 1996.

USA Waste Services, Inc.: c/o James R. Weiss, Preston, Gates, Suite

500, 1735 New York Ave., NW, Washington, DC 20006

Sanifill, Inc.: c/o Kirk K. Van Tine, Baker & Botts, LLP, 1299

Pennsylvania Ave., NW, Washington, DC 20004

State of Pennsylvania: James A. Donahue, III, Senior Deputy Attorney

General, Antitrust Section, 14th Floor, Strawberry Square, Harrisburg,

PA 17120

State of Texas: Mark Tobey, Assistant Attorney General, Deputy Chief

for Antitrust, Office of the Attorney General of Texas, P.O. Box 12548,

Austin, TX 78711-2548

David R. Bickel,

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

Street, N.W., Suite 3000, Washington, D.C. 20530, (202) 307-1168.

[FR Doc. 96-23700 Filed 9-16-96; 8:45 am]

BILLING CODE 4410-01-M