Proposed Final Judgment and Competitive Impact Statement

DEPARTMENT OF JUSTICE

Antitrust Division

Proposed Final Judgment and Competitive Impact Statement

United States v. USA Waste Services, Inc. et al.

Notice is hereby given pursuant to the Antitrust Procedures and

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

Stipulation and Order, Hold Separate Stipulation and Order, and

Competitive Impact Statement have been filed with the United States

District Court in the Western District of Pennsylvania, Pittsburgh

Division, Civil No. 97-1524.

On August 22, 1997, the United States filed a Complaint alleging

that the proposed acquisition by USA Waste through Riviera of the

voting stock of United Waste would violate Section 7 of the Clayton

Act, 15 U.S.C. 18. The Complaint further alleges that competition in

providing disposal services to haulers of MSW generated in Allegheny

County and competition in providing hauling of MSW generated in

Allegheny County would be lessened by the acquisition. The proposed

Final Judgment, filed the same time as the Complaint, requires USA

Waste to divest the Kelly Run Landfill in Pittsburgh, Pennsylvania,

which it will obtain in connection with its acquisition of United

Waste.

Public comment is invited within the statutory 60-day comment

period. Such comments and responses 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, Hold Separate

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) 514-2481. Copies of these materials may

be obtained upon request and payment of a copying fee.

Constance K. Robinson,

Director of Operations.

United States District Court, Western District of Pennsylvania,

Pittsburgh Division

United States of America, and Commonwealth of Pennsylvania

Plaintiffs, v. USA Waste Services, Inc., Riviera Acquisition

Corporation, and United Waste Systems, Inc. Defendants. Civil No.:

97-1524. Filed 8/22/97, Judge Ambrose.

Stipulation and Order

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

respective attorneys, as follows:

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 United States District Court for the Western District of

Pennsylvania.

2. The parties stipulate 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), 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. Defendants shall abide by and comply with the provisions of the

proposed Final Judgment pending entry of the Final Judgment, or until

expiration of time for all appeals of any court ruling declining entry

of the

[[Page 47681]]

proposed Final Judgment, and shall, from the date of the signing of

this Stipulation., comply with all the terms and provisions of the

proposed Final Judgment as though they were in full force and effect as

an order of the Court.

4. This Stipulation shall apply with equal force and effect to any

amended proposed Final Judgment agreed upon in writing by the parties

and submitted to the Court.

5. In the event (a) plaintiffs have withdrawn their consent, as

provided in paragraph 2 above, or (b) the proposed Final Judgment is

not entered pursuant to this Stipulation, the time has expired for all

appeals of any Court ruling declining entry of the proposed Final

Judgment, and the Court has not otherwise ordered continued compliance

with the terms and provisions of the proposed Final Judgment, then the

parties are released from all further obligations under this

Stipulation, and the making of this Stipulation shall be without

prejudice to any party in this or any other proceeding.

6. Defendants represent that the divestiture ordered in the

proposed Final Judgment can and will be made, and that the defendants

will later raise no claim of hardship or difficulty as grounds for

asking the Court to modify any of the divestiture provisions contained

therein.

Dated: August 21, 1997.

For Plaintiff United States:

Frederick H. Parmenter,

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

Suite 3000, Washington, D.C. 20530, (202) 307-0620.

Linda L. Kelly,

United States Attorney.

Amy Reynolds Hay,

Assistant United States Attorney, Western District of Pennsylvania.

For the Commonwealth of Pennsylvania Office of the Attorney

General:

D. Michael Fisher,

Attorney General.

James A. Donahue, III,

Chief Deputy Attorney General, Antitrust Section.

Garrett F. Gallia,

Deputy Attorney General, Antitrust Section.

Attorneys for the Commonwealth of Pennsylvania:

14th Floor, Strawberry Square,

Harrisburg, Pennsylvania 17120,

(717) 787-4530

For Defendants USA Waste Services, Inc. and Riviera Acquisition

Corporation:

James R. Weiss,

Preston, Gates, Ellis & Rouvelas Meeds, 1735 New York Avenue, N.W.,

Suite 500, Washington, D.C. 20530, (202) 662-8425.

For Defendant United Waste Systems, Inc.

Ilene Knable Gotts,

Wachtell, Lipton, Rosen & Katz, 51 West 52d Street, New York, New York

10019-6150, (212) 403-1247.

Order

It is so ordered, this 22nd day of August, 1997.

Donetta Ambrose,

United States District Judge.

United States District Court, Western District of Pennsylvania,

Pittsburgh Division

United States of America, and Commonwealth of Pennsylvania

Plaintiffs, versus USA Waste Services, Inc., Riviera Acquisition

Corporation, and United Waste Systems, Inc., Defendants. Civil No.:

97-1524. Filed: 8/22/97, Judge Ambrose.

Hold Separate Stipulation and Order

It is hereby stipulated and agreed by and between the undersigned

parties, subject to approval and entry by the Court, that:

I

Definitions

As used in this Hold Separate and Order:

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

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

includes its successors and assigns, and its subsidiaries, divisions,

groups, affiliates, directors, officers, managers, agents, and

employees.

B. ``Riviera'' means defendant Riviera Acquisition Corporation, a

Delaware corporation which is a wholly owned subsidiary of USA Waste,

and includes its successors and assigns, and its subsidiaries,

divisions, groups, affiliates, directors, officers, managers, agents,

and employees.

C. ``United'' means defendant United Waste Systems, Inc., a

Delaware corporation with its headquarters, in Greenwich, Connecticut,

and includes its successors and assigns, and its subsidiaries,

divisions, groups, affiliates, directors, officers, managers, agents,

and employees.

D. ``Allegheny County'' refers to Allegheny County, Pennsylvania.

E. ``Kelly Run Sanitation'' means Kelly Run Sanitation, Inc., which

is a wholly owned subsidiary of United, and all assets excluding the

hauling business, including:

1. All tangible assets, including all fee and all leasehold and

renewal rights in a landfill located at Road #3, Route 51, Elizabeth,

Pennsylvania 15037 (known as Kelly Run Landfill); the garage and

related facilities; offices; and landfill-related assets including

capital equipment, trucks and other vehicles, scales, power supply

equipment, interests, permits, and supplies; and

2. All intangible assets, including landfill-related customer

lists, contracts, and accounts.

F. ``Hauling Business'' means the Kelly Run Sanitation hauling-

related assets, including.

1. All tangible assets, including capital equipment, trucks and

other vehicles, interest, permits, supplies, and related facilities,

except the garage and related facilities, located at Road #3, Route 51,

Elizabeth, Pa. 15037; and

2. All intangible assets, including hauling-related customer lists,

contracts, and accounts.

G. ``Hauling'' means the collection of nonhazardous solid waste

from customers and the transporting of the collected waste to disposal

sites.

H. ``Waste Disposal Business'' means the business of disposing of

nonhazardous solid waste into Pennsylvania Department of Environmental

Protection approved disposal sites.

II

Objectives

The Final Judgment filed in this case is meant to ensure USA

Waste's prompt divestiture of Kelly Run Sanitation for the purpose of

maintaining a viable competitor in the waste disposal business in

Allegheny County to remedy the effects that the United States and the

Commonwealth of Pennsylvania allege would otherwise result from USA

Waste's proposed acquisition of United. This Hold Separate Stipulation

and Order ensures, prior to such divestiture, that Kelly Run Sanitation

which is being divested be maintained as an independent, economically

viable, ongoing business concern, and that competition is maintained

during the pendency of the divestiture.

III

Hold Separate Provisions

Until the divestiture required by the Final Judgment has been

accomplished:

A. USA Waste shall preserve, maintain, and operate Kelly Run

Sanitation and the Hauling Business as an independent competitor with

management, sales and operations held entirely separate, distinct and

apart from those of USA Waste. USA Waste

[[Page 47682]]

shall not coordinate the marketing or sale of its waste disposal and

hauling business with the waste disposal and hauling business at Kelly

Run Sanitation and the Hauling Business. Within thirty (30) days of the

entering of this Order, USA Waste will inform plaintiffs of the steps

taken to comply with this provision.

B. USA Waste shall take all steps necessary to ensure that Kelly

Run Sanitation and the Hauling Business will be maintained and operated

as an independent, ongoing, economically viable and active competitor

in the waste disposal and hauling business in Allegheny County; and

that the management of Kelly Run Sanitation will not be influenced by

USA Waste, and the books, records, competitively sensitive sales,

marketing and pricing information, and decision-making associated with

Kelly Run Sanitation and the Hauling Business will be kept separate and

apart from the operations of USA Waste. USA Waste's influence over

Kelly Run Sanitation and the Hauling business shall be limited to that

necessary to carry out USA Waste's obligations under this Order and the

Final Judgment.

C. USA Waste shall use all reasonable efforts to maintain and

increase waste disposal and hauling sales at Kelly Run Sanitation and

the Hauling Business, and shall maintain at 1996 or previously approved

levels, whichever are higher, promotional, advertising, sales,

technical assistance, marketing and merchandising support for the

disposal and hauling of waste associated with Kelly Run Sanitation.

D. USA Waste shall provide sufficient working capital to maintain

Kelly Run Sanitation and the Hauling Business as an economically

viable, ongoing business.

E. USA Waste shall take all steps necessary to ensure that the

Kelly Run Landfill is fully maintained in operable condition at no

lower than its current rated capacity, and shall maintain and adhere to

normal repair and maintenance schedules for Kelly Run Sanitation and

the Hauling Business.

F. USA Waste shall not, except as part of a divestiture approved by

plaintiffs, remove, sell, lease, assign, transfer, pledge or otherwise

dispose of any assets of Kelly Run Sanitation, including intangible

assets that relate to the permits described in Section II of the Final

Judgment.

G. USA Waste shall maintain, in accordance with sound accounting

principles, separate, accurate and complete financial ledgers, books

and records that report on a periodic basis, such as the last business

day of every month, consistent with past practices, the assets,

liabilities, expenses, revenues and income of Kelly Run Sanitation and

the Hauling Business.

H. Except in the ordinary course of business or as is otherwise

consistent with this Hold Separate Agreement, defendants shall not hire

and defendants shall not transfer or terminate, or alter any current

employment or salary agreements for any USA Waste or United employees

who (i) on the date of the signing of this Agreement, work at Kelly Run

Sanitation and the Hauling Business or (ii) are members of management

referenced in Section III(I) of this Order.

I. Until such time as Kelly Run Sanitation is divested, the Assets

to be Divested shall be managed by Stephen M. Callahan. Stephen M.

Callahan shall have complete managerial responsibility for Kelly Run

Sanitation and the Hauling Business, subject to the provisions of this

Order and the Final Judgment. In the event that Stephen M. Callahan is

unable to perform his duties, USA Waste shall appoint, subject to

plaintiffs' approval, a replacement within ten (10) working days.

Should USA Waste fail to appoint a replacement acceptable to plaintiffs

within ten (10) working days, plaintiffs shall appoint a replacement.

J. USA Waste shall take no action that would interfere with the

ability of any trustee appointed pursuant to the Final Judgment to

complete the divestiture pursuant to the Final Judgment to a suitable

purchaser.

K. This Hold Separate Stipulation and Order shall remain in effect

until consummation of the divestiture contemplated by the Final

Judgment or until further Order of the Court.

Dated: August 21, 1997.

For Plaintiff United States:

Frederick H. Parmenter,

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

Suite 3000, Washington, D.C. 20530, (202) 307-0620.

Linda L. Kelly,

United States Attorney.

Amy Reynolds Hay,

Assistant United States Attorney, Western District of Pennsylvania.

For the Commonwealth of Pennsylvania Office of the Attorney

General:

D. Michael Fisher,

Attorney General.

James A. Donahue, III,

Chief Deputy Attorney General, Antitrust Section.

Garrett F. Gallia,

Deputy Attorney General, Antitrust Section.

Attorneys for the Commonwealth of Pennsylvania:

14th Floor, Strawberry Square, Harrisburg, Pennsylvania 17120, (717)

787-4530

For Defendants USA Waste Services, Inc. and Riviera Acquisition

Corporation

James R. Weiss,

Preston, Gates, Ellis & Rouvelas Meeds, 1735 New York Avenue, N.W.,

Suite 500, Washington, D.C. 20530, (202) 662-8425.

For Defendant United Waste Systems, Inc.

Ilene Knable Gotts,

Wachtell, Lipton, Rosen & Katz, 51 West 52d Street, New York, New York

10019-6150, (212) 403-1247.

Order

It is so ordered, this 22d day of August, 1997.

Donetta Ambrose,

United States District Judge.

United States District Court, Western District of Pennsylvania,

Pittsburgh Division

United States of America, and Commonwealth of Pennsylvania

Plaintiffs, v. USA Waste Services, Inc., Riviera Acquisition

Corporation, and United Waste Systems, Inc. Defendants. Civil No.:

97-1524. Filed: 8/22/97, Judge Ambrose.

Final Judgment

Whereas, plaintiffs, the United States of America and the

Commonwealth of Pennsylvania, and defendants USA Waste Services, Inc.

(``USA Waste''), Riviera Acquisition Corporation (``Riviera''), and

United Waste Systems, Inc. (``United''), 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 provision of

this Final Judgment pending its approval by the Court;

And whereas, the essence of this Final Judgment is the prompt and

certain divestiture of Kelly Run Sanitation, Inc. to assure that

competition is not substantially lessened;

And whereas, plaintiffs require defendants to make certain

divestitures for the purpose of establishing a viable competitor in the

disposal business in the Allegheny County, Pennsylvania area;

And whereas, defendants have represented to the plaintiffs that the

divestitures ordered herein 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 provisions contained

below;

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

trial or

[[Page 47683]]

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 each of the parties hereto and

over the subject matter of this action. The Complaint states a claim

upon which relief may be granted against defendants, as hereinafter

defined, under Section 7 of the Clayton Act, as amended (15 U.S.C.

Sec. 18).

II

Definitions

As used in this Final Judgment:

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

Delaware corporation with its headquarters in Houston, Texas, and

includes its successors and assigns, and its subsidiaries, divisions,

groups, affiliates, directors, officers, managers, agents, and

employees.

B. ``Riviera'' means defendant Riviera Acquisition Corporation, a

Delaware corporation which is a wholly owned subsidiary of USA Waste,

and includes its successors and assigns, and its subsidiaries,

divisions, groups, affiliates, directors, officers, managers, agents,

and employees.

C. ``United'' means defendant United Waste Systems, Inc., a

Delaware corporation with its headquarters in Greenwich, Connecticut,

and includes its successors and assigns, and its subsidiaries,

divisions, groups, affiliates, directors, officers, managers, agents,

and employees.

D. ``Allegheny County'' refers to Allegheny County, Pennsylvania.

E. ``Kelly Run Sanitation'' means Kelly Run Sanitation, Inc., which

is a wholly owned subsidiary of United, and all assets excluding the

Hauling Business, including:

1. All tangible assets, including all fee and all leasehold and

renewal rights in a landfill located at Road #3, Route 51, Elizabeth,

Pennsylvania 15037 (known as Kelly Run Landfill); the garage and

related facilities; offices; and landfill-related assets including

capital equipment, trucks and other vehicles, scales, power supply

equipment, interests, permits, and supplies; and

2. All intangible assets, including landfill-related customer

lists, contracts, and accounts.

F. ``Hauling Business'' means the Kelly Run Sanitation hauling-

related assets, including:

1. All tangible assets, including capital equipment, trucks and

other vehicles, containers, interests, permits, supplies, and related

facilities, except the garage and related facilities, located at Road

#3, Route 51, Elizabeth, PA 15037; and

2. All intangible assets, including hauling-related customer lists,

contracts, and accounts.

G. ``Hauling'' means the collection of nonhazardous solid waste

from customers and the transporting of the collected waste to disposal

sites.

H. ``Waste'' means nonhazardous solid waste.

I. ``Disposal'' means the business of disposing of nonhazardous

solid waste into Pennsylvania Department of Environmental Protection

approved disposal sites.

III

Applicability

A. The provisions of this Final Judgment apply to USA Waste, its

successors and assigns, subsidiaries, 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. USA Waste shall require, as a condition of the sale or other

disposition of all or substantially all of the assets that comprise

Kelly Run Sanitation, that the transferee agrees to be bound by the

provisions of this Final Judgment.

IV

Divestiture

A. USA Waste is hereby ordered and directed in accordance with the

terms of this Final Judgment, within one hundred and twenty (120)

calendar days after the filing of the Complaint in this matter, or five

(5) days after notice of the entry of this Final Judgment by the Court,

whichever is later, to divest Kelly Run Sanitation as an ongoing

business to a purchaser acceptable to the United States in its sole

discretion, after consultation with the Commonwealth of Pennsylvania.

B. USA Waste shall use its best efforts to accomplish the

divestiture as expeditiously and timely as possible. The United States,

in its sole determination after consultation with the Commonwealth of

Pennsylvania, may extend the time period for any divestiture an

additional period of time not to exceed sixty (60) calendar days.

C. In accomplishing the divestiture ordered by this Final Judgment.

USA Waste promptly shall make known, by usual and customary means, the

availability of Kelly Run Sanitation. USA Waste 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. USA Waste shall also offer to furnish to

all bona fide prospective purchasers, subject to customary

confidentiality assurances, all information regarding Kelly Run

Sanitation customarily provided in a due diligence process except such

information subject to attorney-client privilege or attorney work-

product privilege. USA Waste shall make available such information to

the plaintiffs at the same time that such information is made available

to any other person.

D. USA Waste shall not interfere with any negotiations by any

purchaser to employ any USA Waste (or former United) employee who works

at, or whose principal responsibility is the waste disposal business

concerning Kelly Run Sanitation.

E. USA Waste shall permit prospective purchasers of Kelly Run

Sanitation to have access to personnel and to make such inspection of

Kelly Run Sanitation; access to any and all environmental, zoning, and

other permit documents and information; and access to any and all

financial, operational, or other documents and information customarily

provided as part of a due diligence process.

F. USA Waste shall warrant to the purchaser of Kelly Run Sanitation

that Kelly Run Sanitation will be operational on the date of sale.

G. USA Waste shall not take any action, direct or indirect, that

will impede in any way the operation of Kelly Run Sanitation.

H. USA Waste shall warrant to the purchaser of Kelly Run Sanitation

that there are no material defects in the environment, zoning, or other

permits pertaining to the operation of Kelly Run Sanitation and that

USA Waste will not undertake, directly or indirectly, following the

divestiture of Kelly Run Sanitation, any challenges to the environment,

zoning, or other permits pertaining to the operation of Kelly Run

Sanitation.

I. At the option of the purchaser, USA Waste will enter into an

agreement with the purchaser, at commercially available reasonable

terms and conditions, guaranteeing a flow of waste into the Kelly Run

Landfill for the purpose of maintaining Kelly Run Sanitation as a

viable, ongoing waste disposal business and preserving competition in

the disposal and hauling businesses in Allegheny County.

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J. USA Waste shall not be permitted to locate any of its operations

at Kelly Run Sanitation.

K. Unless the United States, after consultation with the

Commonwealth of Pennsylvania, otherwise consents in writing, the

divestiture pursuant to Section IV, or by trustee appointed pursuant to

Section V of this Final Judgment, shall include Kelly Run Sanitation

and be accomplished by selling or otherwise conveying the Kelly Run

Sanitation to a purchaser in such a way as to satisfy the United

States, in its sole discretion, after consultation with the

Commonwealth of Pennsylvania, that Kelly Run Sanitation can and will be

used by the purchaser as part of a viable, ongoing business or

businesses, engaged in the waste disposal business in Allegheny County.

The divestiture, whether pursuant to Section IV or Section V of this

Final Judgment, shall be made to a purchaser for whom it is

demonstrated to the United States' sole satisfaction, after

consultation with the Commonwealth of Pennsylvania: (1) Has the

capability and intent of competing effectively in the waste disposal

business in Allegheny County; (2) has or soon will have the managerial,

operational, and financial capability to compete effectively in the

waste disposal business in Allegheny County; and (3) none of the terms

of any agreement between the purchaser and USA Waste gives USA Waste

the ability unreasonably to raise the purchaser's costs, to lower the

purchaser's efficiency, or otherwise to interfere in the ability of the

purchaser to compete effectively in Allegheny County.

V

Appointment of Trustee

A. In the event that USA Waste has not divested Kelly Run

Sanitation within the time specified in Section IV of this Final

Judgment, the Court shall appoint, on application of the United States,

a trustee selected by the United States, to effect the divestiture of

Kelly Run Sanitation.

B. After the appointment of a trustee becomes effective, only the

trustee shall have the right to sell Kelly Run Sanitation described in

Section II(E) of this Final Judgment. 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 Sections IV and VIII of this Final Judgment, and shall

have such other powers as the Court shall deem appropriate. The trustee

shall have the right, in its sole discretion, to include in the package

of assets to be divested the Hauling Business: in such event, all of

the obligations of USA Waste under Section IV of this Final Judgment

shall apply to the Hauling Business as well. Subject to Section V(C) of

this Final Judgment, the trustee shall have the power and authority to

hire at the cost and expense of USA Waste any investment bankers,

attorneys, or other agents reasonably necessary in the judgment of the

trustee to assist in the divestiture, and such professionals and agents

shall be accountable solely to the trustee. The trustee shall have the

power and authority to accomplish the divestiture at the earliest

possible time to a purchaser acceptable to the United States, upon

consultation with the Commonwealth of Pennsylvania, and shall have such

other powers as this Court shall deem appropriate. USA Waste shall not

object to a sale by the trustee on any grounds other than the trustee's

malfeasance. Any such objections by USA Waste must be conveyed in

writing to the plaintiffs and the trustee within ten (10) calendar days

after the trustee has provided the notice required under Section VI of

this Final Judgment.

C. The trustee shall serve at the cost and expense of USA Waste, on

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

for all monies derived from the sale of Kelly Run Sanitation 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

and those of any professionals and agents retained by the trustee, all

remaining money shall be paid to USA Waste and the trust shall then be

terminated. The compensation of such trustee and of any professionals

and agents retained by the trustee shall be reasonable in light of the

value of the divested business 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.

D. USA Waste shall use its best efforts to assist the trustee in

accomplishing the required divestiture, including best efforts to

effect all necessary regulatory approvals. The trustee and any

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

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

records, and facilities of the business to be divested, and USA Waste

shall develop financial or other information relevant to the business

to be divested customarily provided in a due diligence process as the

trustee may reasonably request, subject to customary confidentiality

assurances. USA Waste shall permit bona fide prospective acquirers of

Kelly Run Sanitation to have reasonable access to personnel and to make

such inspection of physical facilities and any and all financial,

operational or other documents and other information as may be relevant

to the divestiture required by this Final Judgment.

E. 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 ordered under this Final Judgment; provided,

however, that to the extent such reports contain information that the

trustee deems confidential, such reports shall not be filed in the

public docket of the court. Such reports shall include the name,

address and telephone number of each person who, during the preceding

month, made an offer to acquire, expressed an interest in acquiring,

entered into negotiations to acquire, or was contacted or made an

inquiry about acquiring, any interest in the business to be divested,

and shall describe in detail each contact with any such person during

that period. The trustee shall maintain full records of all efforts

made to divest the business to be divested.

F. If the trustee has not accomplished such divestiture within six

(6) months after its appointment, the trustee thereupon shall file

promptly 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; provided, however,

that to the extent such reports contain information that the trustee

deems confidential, such reports shall not be filed in the public

docket of the Court. 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 purpose of the

trust. The Court shall enter thereafter 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.

VI

Notification

Within two (2) business days following execution of a definitive

agreement contingent upon compliance with the terms of this Final

Judgment to effect, in whole or in part, any proposed divestiture

pursuant to Sections IV of V of this Final Judgment, USA Waste or

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the trustee, whichever is then responsible for effecting the

divestiture, shall notify plaintiffs of the proposed divestiture. If

the trustee is responsible, it shall similarly notify USA Waste. 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 to, or expressed an interest in or a desire to,

acquire any ownership interest in the business to be divested that is

the subject of the binding contract, together with full details of

same. Within fifteen (15) calendar days of receipt by plaintiffs of

such notice, the United States, in its sole discretion, after

consultation with the Commonwealth of Pennsylvania, may request from

USA Waste, the proposed purchaser, or any other third party additional

information concerning the proposed divestiture and the proposed

purchaser. USA Waste and the trustee shall furnish any additional

information requested from them within fifteen (15) calendar days of

the receipt of the request, unless the parties shall otherwise agree.

Within thirty (30) calendar days after receipt of the notice or within

twenty (20) calendar days after the plaintiffs have been provided the

additional information requested from USA Waste, the proposed

purchaser, and any third party, whichever is later, the United States,

after consultation with the Commonwealth of Pennsylvania, shall provide

written notice to USA Waste and the trustee, if there is one, stating

whether or not it objects to the propose divestiture. If the United

States provides written notice to USA Waste and the trustee that it

does not object, then the divestiture may be consummated, subject only

to USA Waste's limited right to object to the sale under Section V(B)

of this Final Judgment. Upon objection by the United States, a

divestiture proposed under Section IV or Section V shall not be

consummated. Upon objection by USA Waste under the provision in Section

V(B), a divestiture proposed under Section V shall not be consummated

unless approved by the Court.

VII

Affidavits

A. Within twenty (20) calendar days of the filing of the Final

Judgment in this matter and every thirty (30) calendar days thereafter

until the divestiture has been completed whether pursuant to Section IV

of Section V of this Final Judgment, USA Waste shall deliver to

plaintiffs an affidavit as to the fact and manner of compliance with

Section IV of Section V of this Final Judgment. Each such affidavit

shall include, inter alia, the name, address, and telephone number of

each person who, at any time after the period covered by the last such

report, made an offer to acquire, expressed an interest in acquiring,

entered into negotiations to acquire, or was contact or made an inquiry

about acquiring, any interest in the business to be divested, and shall

described in detail each contact with any such person during that

period. Each such affidavit shall also include a description of the

efforts that USA Waste has taken to solicit a buyer for Kelly Run

Sanitation and to provide required information to prospective

purchasers including the limitations, if any, on such information.

Assuming the information set forth in the affidavit is true and

complete, any objection by the United States after the consultation

with the Commonwealth of Pennsylvania to information provided by USA

Waste including limitations on information, shall be made within

fourteen (14) days of receipt of such affidavit.

B. Within twenty (20) calendar days of the filing of the Complaint

in this matter USA Waste shall deliver to plaintiffs and affidavit

which describes in detail all actions USA Waste has taken and all steps

USA Waste has implemented on an on-going basis to preserve Kelly Run

Sanitation and the Hauling Business pursuant to Section VIII of this

Final Judgment and the Hold Separate Stipulation and Order entered by

the Court. The affidavit also shall describe, but not be limited to,

USA Waste's efforts to maintain and operate Kelly Run Sanitation and

the Hauling Business as an active competitor, maintain the management,

staffing, sales, marketing and pricing of Kelly Run Sanitation and

Hauling Business, and maintain the Kelly Run Landfill in operable

condition at current capacity configurations. USA Waste shall deliver

to plaintiffs an affidavit describing any changes to the efforts and

actions outlined in USA Waste's earlier affidavit(s) filed pursuant to

this Section within fifteen (15) calendar days after the change is

implemented.

C. Until one year after such divestiture has been completed, USA

Waste shall preserve all records of all efforts made to preserve the

business to be divested and effect the divestiture.

Hold Separate Order

Until the divestitures required by the Final Judgment have been

accomplished. USA Waste shall take all steps necessary to comply with

the Hold Separate Stipulation and Order entered by this Court.

Defendants shall take no action that would jeopardize the divestiture

of Kelly Run Sanitation.

IX

Financing

USA Waste is ordered and directed not to finance all or any part of

any purchase by an acquirer made pursuant to Sections IV or V of this

Final Judgment without prior written consent of the United States, in

it sole discretion, after consultation with the Commonwealth of

Pennsylvania.

X

Compliance Inspection

For purposes of determining or securing compliance with the Final

Judgment and subject to any legally recognized privilege from time to

time:

A. Duly authorized representatives of the United States Department

of Justice, upon written request of the Attorney General or of the

Assistant Attorney General in charge of the Antitrust Division, or upon

written request of duly authorized representatives of the Attorney

General's Office of the Commonwealth of Pennsylvania, and on reasonable

notice to USA Waste made to its principal offices, shall be permitted:

1. Access during office hours of USA Waste to inspect and copy all

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

and documents in the possession or under the control of USA Waste, who

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

Final judgment and the Hold Separate Stipulation and Order; and

2. Subject to the reasonable convenience of USA Waste and without

restraint or interference from it, to interview, either informally or

on the record, its officers, employees, and agents, who may have

counsel present, regarding any such matters.

B. Upon the written request of the Attorney General or of the

Assistant Attorney General in charge of the Antitrust Division, or upon

the written request of the Attorney General's Office of the

Commonwealth of Pennsylvania. USA Waste shall submit such written

reports, under oath if requested, with respect to any matter contained

in the Final Judgment and the Hold Separate Stipulation and Order.

C. No information or documents obtained by the means provided in

Sections VII or X of this Final Judgment shall be divulged by a

representative of the plaintiffs to any person other than a duly

authorized representative of the Executive Branch of the United States,

or the Attorney General's Office of the Commonwealth of Pennsylvania,

except

[[Page 47686]]

in the course of legal proceedings to which the United States or the

Commonwealth of 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 USA

Waste to plaintiffs, USA Waste represents and identifies in writing the

material in any such information or documents to which a claim of

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

Civil Procedure, and USA Waste marks 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 (10) calendar days notice

shall be given by plaintiffs to USA Waste prior to divulging such

material in any legal proceeding (other than a grand jury proceeding)

to which USA Waste is not a party.

XI

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 or carrying out of this Final

Judgment, for the modification of any of the provisions hereof, for the

enforcement of compliance herewith, and for the punishment of any

violations hereof.

XII

Termination

Unless this Court grants an extension, this Final Judgment will

expire upon the tenth anniversary of the date of its entry.

XIII

Public Interest

Entry of this Final Judgment is in the public interest.

Dated ____________________, 1997.

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

United States District Judge

United States District Court, Western District of Pennsylvania,

Pittsburgh Division

United States of America, and Commonwealth of Pennsylvania,

Plaintiffs, versus USA Waste Services, Inc., Riviera Acquisition

Corporation, and United Waste Systems, Inc., Defendants. Civil No:

97-1524. Filed: 8/22/97, Judge Ambrose.

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 proceeding.

I

Nature and Purpose of the Proceeding

On August 22, 1997, the United States filed a civil antitrust

Complaint which alleges that the proposed acquisition of the voting

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

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

U.S.C. 18. The Complaint alleges that the combination of these two

significant competitors would substantially lessen competition in

providing disposal services to haulers of municipal solid waste

(``MSW'') generated in Allegheny County, Pennsylvania. MSW means

garbage, refuse, industrial lunchroom and office waste and other

materials generated by residential, municipal, commercial or industrial

establishments. It does not include special hauling waste or

construction demolition debris. 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 United.

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

proposed settlement that would permit USA Waste to complete its

acquisition of United but requires a divestiture that will preserve

competition in the Allegheny County market. This settlement consists of

a Stipulation and Order, a Hold Separate Stipulation and Order, and a

proposed Final Judgment.

The proposed Final Judgment orders USA Waste to divest Kelly Run

Sanitation, Inc. (``Kelly Run Sanitation'') which is located in

Pittsburgh, Pennsylvania. Kelly Run Sanitation is a subsidiary of

United and owns the Kelly Run Landfill. The proposed Final Judgment

excludes the hauling-related Kelly Run Sanitation assets from

divestiture. At the option of the purchaser of Kelly Run Sanitation,

USA Waste will enter into an agreement with the purchaser, containing

reasonable terms and conditions, guaranteeing a flow of waste into the

Kelly Run Landfill for the purpose of maintaining Kelly Run Sanitation

as a viable ongoing waste disposal business.

The Stipulation and Order, Hold Separate Stipulation and Order, and

proposed Final Judgment require USA Waste to ensure that, until the

divestitures mandated by the proposed Final Judgment have been

accomplished, Kelly Run Sanitation will be maintained and operated as

an independent, ongoing, economically viable and active competitor. USA

Waste must preserve and maintain Kelly Run Sanitation as a saleable,

ongoing concern, 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.

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 a Delaware corporation with its principal office in

Houston, Texas. USA Waste is engaged in providing nonhazardous solid

waste hauling and/or disposal services in 36 states in the United

States; Washington, D.C., and Puerto Rico. In 1996, USA Waste had total

revenues of approximately $1.3 billion.

United is a Delaware corporation with its principal office in

Greenwich, Connecticut. United is engaged in providing nonhazardous

solid waste hauling and/or disposal services in 23 states in the United

States. In 1996, United had total revenues of approximately

$335,743,000.

Rivera is a Delaware corporation. It is a wholly owned subsidiary

of USA Waste. USA Waste, Riviera, and United entered into an Agreement

and Plan of Merger on April 13, 1997 through which Riviera will be

merged with United and United's common stock will be converted into USA

Waste common stock. As a result of the Agreement and Plan of Merger,

USA Waste will hold 100 percent of the voting securities of United.

This transaction, which would take place in a highly concentrated

Allegheny County, Pennsylvania MSW disposal market, precipitated the

government's suit.

[[Page 47687]]

A. The Transaction's Effects in the Allegheny County, Pennsylvania

Market

The Complaint alleges that MSW disposal services constitutes a line

of commerce, or relevant product market, for antitrust purposes, and

that Allegheny County constitutes an appropriate section of the

country, or relevant geographic market. The Complaint alleges the

effect of USA Waste's acquisition may be to substantially lessen

competition in providing disposal services to haulers of MSW generated

in Allegheny County.

Disposal of MSW in the Commonwealth of Pennsylvania is regulated

and the requirements imposed by Pennsylvania law limit the means by

which MSW can properly be disposed. The Pennsylvania Solid Waste

Management Act (``Solid Waste Act''), 35 P.S. 6018.101 et seq., is

intended to protect the public by setting forth requirements for the

proposed disposal of solid waste in the Commonwealth of Pennsylvania.

The statute authorizes the Pennsylvania Department of Environmental

Protection to oversee the storage, collection, transportation,

processing, treatment and disposal of non-hazardous solid waste

through, among other things, a comprehensive system of permits and

regulations governing Pennsylvania landfills. MSW regulated by the

Solid Waste Act include garbage, refuse, industrial lunchroom and

office waste, and other materials generated by residential, municipal,

commercial or institutional establishments.

In Pennsylvania, MSW is a separate and distinct waste product. The

statutes and regulations of the Commonwealth of Pennsylvania which

regulate MSW and the physical characteristics of MSW result in MSW

being stored, handled, hauled, and disposed of differently from other

types of waste.

MSW haulers use landfills to dispose of waste. Access to landfills

at competitive prices where a hauler is operating (e.g. Allegheny

County) is essential to hauling companies. Disposal costs account for

approximately 30 to 40 percent of the amount a hauler charges for

collection services. A large amount of MSW is generated in Allegheny

County and the defendants' landfills are the recipients of a very large

percentage of the MSW generated in Allegheny County.

MSW generated in Allegheny County is generally transported by

collection trucks to landfills, and the availability of landfills close

to a hauler's MSW routes is a major element that determines a hauler's

competitiveness and profitability. In addition, MSW haulers must

achieve route density (a large number of customers that are located

close together in a small geographic area) for them to be profitable.

As a result, local haulers generally establish MSW routes, utilize

landfills, and establish garages and related facilities in a local

geographic area.

Due to the high costs of transporting MSW, and the substantial

travel time to other landfills based on distance, natural barriers and

congested roadways, haulers of MSW generated in Allegheny County are

limited to landfills located in Allegheny County and in central

Washington County, western Westmoreland County and Butler County,

(hereinafter the ``greater Pittsburgh area''). Virtually all of the MSW

generated in Allegheny County is disposed of exclusively in landfills

in the greater Pittsburgh area. In addition, landfills in the greater

Pittsburgh area price discriminate--in other words, they charge higher

prices to haulers of MSW generated in Allegheny County than they charge

to other haulers outside of Allegheny County where more MSW disposal

facilities are available to them. In the event of a small but

significant and non-transitory price increase by landfills in the

greater Pittsburgh area, haulers of MSW generated in Allegheny County

would not turn to disposal facilities outside the greater Pittsburgh

area.

USA Waste and United compete with each other and with other

companies to provide disposal for MSW generated in Allegheny County.

USA Waste and United are the first and third largest disposers of MSW

generated in Allegheny County. USA Waste, Browning Ferris Industries

(``BFI''), and United dispose of more than 90 percent of the MSW

generated in Allegheny County at their landfills. During 1996, based on

Allegheny County MSW disposal data, USA Waste accounted for 51.3

percent of the market and United accounted for 8.2 percent. The

acquisition would give USA Waste almost 60 percent of the market (59.5

percent) and two firms would control over 90 percent of the MSW

disposal market for MSW generated in Allegheny County. The post-merger

HHI based on the amount of municipal waste from Allegheny County

disposed in 1996 would be approximately 4600, an increase of about 840

over the pre-acquisition HHI. Alternatively, the post merger HHI, based

on the daily capacity available for MSW generated in Allegheny County,

would be approximately 3480 with a change of about 590.

The substantial increase in concentration in the market for

disposal of MSW generated in Allegheny County caused by the acquisition

by USA Waste of United's Kelly Run Landfill would likely understate the

impact of the acquisition on competition. Downtown Pittsburgh and other

heavily populated areas of Allegheny County are located on the southern

side of the Ohio and Allegheny Rivers. Travel from north to south in

the county is time-consuming because of the need to use bridges and

tunnels. These physical constraints on travel result in three firms,

USA Waste, United and BFI, having substantial locational advantages in

serving Pittsburgh and its close-in suburbs. After the acquisition, USA

Waste will control four of the five landfills that are within 20 miles

of downtown Pittsburgh and in the area of highest population in

Allegheny County. More distant landfills in the greater Pittsburgh

area, such as those located in Butler County, would not be realistic

competitive alternatives south of the Allegheny and Ohio Rivers in the

event of a small but significant and non-transitory price increase by

landfills in that area.

USA Waste is also engaged in the collection and hauling of MSW in

Allegheny County. Because USA Waste will control four of the five

landfills that are within 20 miles of downtown Pittsburgh and the area

of highest population in Allegheny County. USA Waste will be able to

raise landfill rates to haulers competing against them for MSW

collection in many of the highest populated areas of Allegheny County.

In outlying areas of Allegheny County where alternative landfill

operation may exist, USA Waste can charge lower prices to haulers

(price discriminate) to retain their business. Because disposal costs

range from approximately 30 percent to 40 percent of a hauler's

revenue, USA Waste's ability to raise the competitions' hauling prices

in many of the most populated areas of Allegheny County will quickly

make those haulers uncompetitive.

Entry by a new landfill would not be timely, likely or sufficient

to prevent substantial harm to competition. Opening a new landfill in

the greater Pittsburgh area is considered to be difficult, time

consuming, and costly. Commonwealth of Pennsylvania Executive Order

1996-5, Municipal Waste Facilities Review program, August 29, 1996,

makes it difficult if not impossible to obtain a landfill permit. Local

opposition to a new landfill would be considerable. In addition, it

would be extremely difficult to obtain the necessary land and building

the landfill would be very costly. A new

[[Page 47688]]

landfill built in the greater Pittsburgh area to serve Allegheny County

is not expected in the next 10 years. Similarly, it is very difficult

and possibly unlikely that a transfer station permit could be obtained

to serve the populated areas of Allegheny County. Executive Order 1996-

5 and opposition from local citizens would make it unlikely.

B. Harm to Competition as a Consequence of the Acquisition

The Complaint alleges that the transaction would have the following

effects, among others: competition in providing disposal services to

haulers of MSW generated in Allegheny County will be substantially

lessened; actual and potential competition between USA Waste and United

in providing disposal services to haulers of MSW generated in Allegheny

County will be eliminated; and prices for disposal services to haulers

of MSW generated in Allegheny County are likely to increase above

competitive levels.

III

Explanation of the Proposed Final Judgment

The provisions of the proposed Final Judgment are designed to

eliminate the anticompetitive effects of the acquisition in the market

for the disposal of MSW generated in Allegheny County by establishing a

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

proposed Final Judgment requires USA Waste and United, within 120 days

after the filing of the Complaint in this matter, or five days after

notice of entry of this Final Judgment by the Court, whichever is

later, to divest, as a viable ongoing business, Kelly Run Sanitation

and related assets, but excludes the Kelly Run Sanitation hauling-

related assets. The divestiture would include, among other assets, the

Kelly Run Landfill, the garage and office, trucks and vehicles, scales,

permits, and intangible assets such as landfill customer contracts. In

addition, the proposed Final Judgment intends to eliminate the

anticompetitive effects of the acquisition by providing that, at the

option of the purchaser, USA Waste will enter into an agreement with

the purchaser, containing reasonable terms and conditions, guaranteeing

a flow of waste into the Kelly Run Landfill. Such a waste flow

agreement would help assure the viability of the purchaser.

If USA Waste and United cannot accomplish this divestiture within

the above-described period, the Final Judgment provides that, upon

application (after consultation with the Commonwealth of Pennsylvania)

by the United States as plaintiff, the Court will appoint a trustee to

effect divestiture. The trustee has the power to include with Kelly Run

Sanitation the Kelly Run Sanitation hauling-related assets to make

Kelly Run Sanitation saleable.

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 Commonwealth of Pennsylvania) that the operation

can and will be operated by the purchaser or purchasers as a viable,

ongoing business that can compete effectively in the relevant market.

The defendants must take all reasonable steps necessary to accomplish

the divestiture, and 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 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 trustees 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.

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 defendants 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 and 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 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,

NW., 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, a full trial on the merits against defendants USA Waste

and United. The United States could have brought suit and sought

preliminary and permanent injunctions against USA Waste's acquisition

of the voting stock of United. The United States is satisfied, however,

that the divestiture of the described assets outlined in the proposed

Final Judgment will encourage viable competitors in the market

identified by the United States as requiring the relief implemented.

The United States is satisfied that the proposed relief will prevent

the

[[Page 47689]]

acquisition from having anticompetitive effects in this market. The

divestiture will restore the market to the structure that existed prior

to the acquisition, and will preserve the existence of independent

competitors in this area.

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. 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.

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

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\

\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 Cyanamid 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\

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

\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., 605 F.

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

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

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:

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

Frederick H. Parmenter

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

Arthur A. Feiveson

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

Stephen F. Sonnett

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

Viqar M. Shariff

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

H St., N.W., Washington, D.C. 20530 (202) 307-0620.

Certification of Service

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

USA Waste Services, Inc., United Waste Systems, Inc., 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

______ day of August, 1997.

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

Rouvelas Meeds, Suite 500, 1735 New York Ave., NW, Washington, D.C.

20006-5209

United Waste Systems, Inc.: c/o Ilene Knable Gotts, Wachtell, Lipton,

Rosen & Katz, 51 West 52d Street, New York, NY 10019-6150

Commonwealth of Pennsylvania: James A. Donahue, III, Chief Deputy

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

Harrisburg, PA 17120

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

Fredrick H. Parmenter,

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

Street, N.W., Suite 3000, Washington, D.C. 20530, (202) 307-0620.

[FR Doc. 97-23869 Filed 9-9-97; 8:45 am]

BILLING CODE 4410-11-M