47680 Federal Register / Vol. 62, No. 175 / Wednesday, September 10, 1997 / Notices

salaries and benefits. Funding will begin

once the new officers have been hired

or on the date of the award, whichever

is later, and will be paid over the course

of the grant.

In hiring new officers with a COPS

Universal Hiring Program grant,

grantees must follow standard local

recruitment and selection procedures.

All personnel hired under this program

will be required to be trained in

community policing. In addition, all

personnel hired under this program

must be in addition to, and not in lieu

of, other hiring plans of the grantees.

An award under the COPS Universal

Hiring Program will not affect the

eligibility of an agency for a grant under

any other COPS program.

The Catalog of Federal Domestic

Assistance reference number for this

program is 16.710.

Dated: August 29, 1997.

Joseph E. Brann,

Director.

[FR Doc. 97–23986 Filed 9–9–97; 8:45 am]

BILLING CODE 4410–AT–M

DEPARTMENT OF JUSTICE

Notice of Lodging of Consent Decree

Under the Clean Water Act and the

Safe Drinking Water Act

Under 28 C.F.R. 50.7, notice is hereby

given that on August 25, 1997, a

proposed Consent Decree in United

States v. Bethlehem Steel Corp., Civil

Action No. 2–96–096, was lodged with

the United States District Court for the

Northern District of Indiana.

In this action, the United States

sought penalties and injunctive relief for

claims under Section 301(a) of the Clean

Water Act (‘‘CWA’’), 33 U.S.C. 1311(a),

for unpermitted discharges of

pollutants, and for claims under Section

1423 of the Safe Drinking Water Act, 42

U.S.C. 300h–2, for violation of

underground injection control (‘‘UIC’’)

permits issued by EPA. The claims arose

in connection with Bethlehem Steel

Corporation’s facility in Burns Harbor,

Indiana. Under the Consent Decree,

Bethlehem Steel Corporation will pay a

civil penalty of $441,300 and will

perform injunction relief, including the

continued operation and maintenance of

a series of dewatering wells designed to

prevent unpermitted discharges of

pollutants, the reconstruction of a blast

furnace slag quench basin, and the

training of operators of its underground

injection control wells.

The Department of Justice will receive

for a period of thirty (30) days from the

date of this publication comments

relating to the Consent Decree.

Comments should be addressed to the

Assistant Attorney General of the

Environment and Natural Resources

Division, Department of Justice,

Washington, D.C. 20530, and should

refer to United States v. Bethlehem Steel

Corp., D.J. Ref. No. 90–5–1–1–4271.

The Consent Decree may be examined

at the Office of the United States

Attorney, 1001 Main St., Suite A, Dyer,

IN 46311, at the Region 5 Office of the

United States Environmental Protection

Agency, 77 West Jackson Boulevard,

Chicago, IL 60604–3590, and at the

Consent Decree Library, 1120 G Street,

N.W., 4th Floor, Washington, D.C.

20005. A copy of the Consent Decree

may be obtained in person or by mail

from the Consent Decree Library 1120 G

Street, N.W., 4th Floor, Washington,

D.C. 20005. In requesting a copy, please

refer to the above-referenced case and

enclose a check in the amount of $13.75

($.25 per page reproduction costs)

payable to the Consent Decree Library.

Bruce S. Gelber,

Deputy Section Chief, Environmental

Enforcement Section, Environment and

Natural Resources Division.

[FR Doc. 97–23877 Filed 9–9–97; 8:45 am]

BILLING CODE 4410–15–M

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
Federal Register / Vol. 62, No. 175 / Wednesday, September 10, 1997 / Notices 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 landfillrelated 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
47682 Federal Register / Vol. 62, No. 175 / Wednesday, September 10, 1997 / Notices

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
Federal Register / Vol. 62, No. 175 / Wednesday, September 10, 1997 / Notices 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.

§ 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 landfillrelated 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.
47684 Federal Register / Vol. 62, No. 175 / Wednesday, September 10, 1997 / Notices

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
Federal Register / Vol. 62, No. 175 / Wednesday, September 10, 1997 / Notices 47685

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
47686 Federal Register / Vol. 62, No. 175 / Wednesday, September 10, 1997 / Notices

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 llllllllll, 1997.

lllllllllllllllllllll

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 decisionmaking 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.
Federal Register / Vol. 62, No. 175 / Wednesday, September 10, 1997 / Notices 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 preacquisition 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
47688 Federal Register / Vol. 62, No. 175 / Wednesday, September 10, 1997 / Notices

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
Federal Register / Vol. 62, No. 175 / Wednesday, September 10, 1997 / Notices 47689

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.

2United 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.

3United 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).

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.

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.

¶ 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

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

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:

lllllllllllllllllllll

Frederick H. Parmenter

lllllllllllllllllllll

Arthur A. Feiveson

lllllllllllllllllllll

Stephen F. Sonnett

lllllllllllllllllllll

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 lll 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

lllllllllllllllllllll

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

DEPARTMENT OF JUSTICE

Antitrust Division

Notice Pursuant to the National

Cooperative Research and Production

Act of 1993—Advanced Lead-Acid

Battery Consortium

Notice is hereby given that, on July

24, 1997, pursuant to Section 6(a) of the

National Cooperative Research and

Production Act of 1993, 15 U.S.C. 4301

et seq. (‘‘the Act’’), the Advanced LeadAcid Battery Consortium (‘‘ALABC’’), a

program of International Lead Zinc

Research Organization, Inc., filed

written notification simultaneously with