Federal Register / Vol. 74, No. 114 / Tuesday, June 16, 2009 / Notices 28527 

If additional information is required 

contact: Lynn Bryant, Department 

Clearance Officer, United States 

Department of Justice, Justice 

Management Division, Policy and 

Planning Staff, Patrick Henry Building, 

Suite 1600, 601 D Street NW., 

Washington, DC 20530. 

Dated: June 11, 2009. 

Lynn Bryant, 

Department Clearance Officer, PRA, United 

States Department of Justice. 

[FR Doc. E9–14137 Filed 6–15–09; 8:45 am] 

BILLING CODE 4410–09–P 

FOREIGN CLAIMS SETTLEMENT 

COMMISSION 

[F.C.S.C. Meeting Notice No. 3–09] 

Meetings; Sunshine Act 

The Foreign Claims Settlement 

Commission, pursuant to its regulations 

(45 CFR Part 504) and the Government 

in the Sunshine Act (5 U.S.C. 552b), 

hereby gives notice in regard to the 

scheduling of meetings for the 

transaction of Commission business and 

other matters specified, as follows: 

Date and Time: Thursday, June 25, 

2009, at 10:30 a.m. 

Subject Matter: Issuance of Proposed 

Decisions, Amended Proposed 

Decisions and Orders in claims against 

Albania. 

Status: Open. 

All meetings are held at the Foreign 

Claims Settlement Commission, 600 E 

Street, NW., Washington, DC. Requests 

for information, or advance notices of 

intention to observe an open meeting, 

may be directed to: Administrative 

Officer, Foreign Claims Settlement 

Commission, 600 E Street, NW., Room 

6002, Washington, DC 20579. 

Telephone: (202) 616–6975. 

Mauricio J. Tamargo, 

Chairman. 

[FR Doc. E9–14182 Filed 6–12–09; 11:15 am] 

BILLING CODE 4410–01–P 

DEPARTMENT OF JUSTICE 

Antitrust Division 

Public Comments and Response on 

Proposed Final Judgment 

Pursuant to the Antitrust Procedures 

and Penalties Act, 15 U.S.C. 16(b)–(h), 

the United States hereby publishes 

below the comments received on the 

proposed Final Judgment in United 

States et al. v. Republic Services, Inc. 

and Allied Waste Industries, Inc., No. 

1:08–CV–02076–RWR, which were filed 

in the United States District Court for 

the District of Columbia on May 14, 

2009, together with the response of the 

United States to the comments. 

Copies of the comments and the 

response are available for inspection at 

the Department of Justice Antitrust 

Division, 325 Seventh Street, NW., 

Room 200, Washington, DC 20530, 

(telephone (202) 514–2481), and at the 

Office of the Clerk of the United States 

District Court for the District of 

Columbia, 333 Constitution Avenue, 

NW., Washington, DC 20001. Copies of 

any of these materials may be obtained 

upon request and payment of a copying 

fee. 

Patricia Brink, 

Deputy Director of Operations, Antitrust 

Division. 

United States District Court for the 

District of Columbia 

United States of America, State of 

California, Commonwealth of Kentucky, 

State of Michigan, State of North Carolina, 

State of Ohio, Commonwealth of 

Pennsylvania, and State of Texas, Plaintiffs, 

v. Republic Services, Inc., and Allied Waste 

Industries, Inc., Defendants. 

Civil Action No.: 1:08–cv–02076 

Judge: Hon. Richard W. Roberts 

Description: Antitrust 

Date Stamp: May 14, 2009 

Response of the United States to Public 

Comments on the Proposed Final 

Judgment 

Pursuant to the requirements of the 

Antitrust Procedures and Penalties Act, 

15 U.S.C. 16(b)–(h) (‘‘APPA’’ or 

‘‘Tunney Act’’), the United States 

hereby responds to five public 

comments received regarding the 

proposed Final Judgment in this case. 

After careful consideration of the five 

comments, the United States continues 

to believe that the proposed Final 

Judgment will provide an effective and 

appropriate remedy for the antitrust 

violations alleged in the Complaint. The 

United States will move the Court for 

entry of the proposed Final Judgment 

after the public comments and this 

Response have been published in the 

Federal Register, pursuant to 15 U.S.C. 

16(d). 

I. Procedural History 

On December 3, 2008, the United 

States and the State of California, 

Commonwealth of Kentucky, State of 

Michigan, State of North Carolina, State 

of Ohio, Commonwealth of 

Pennsylvania, and State of Texas (the 

‘‘States’’) filed the Complaint in this ma 

tter, alleging that defendant Republic 

Services, Inc.’s (‘‘Republic’’) acquisition 

of defendant Allied Waste Industries, 

Inc. (‘‘Allied’’), if permitted to proceed, 

would combine two of only a few 

significant providers of small container 

commercial waste collection or 

municipal solid waste (‘‘MSW’’) 

disposal services in several markets in 

violation of Section 7 of the Clayton 

Act, 15 U.S.C. 18. Simultaneously, the 

United States filed a proposed Final 

Judgment and a Hold Separate 

Stipulation and Order signed by the 

United States, the States and the 

defendants consenting to the entry of 

the proposed Final Judgment after 

compliance with the requirements of the 

APPA. 

Pursuant to those requirements, a 

Competitive Impact Statement (‘‘CIS’’) 

also was filed in this Court on December 

3, 2008; the proposed Final Judgment 

and CIS were published in the Federal 

Register on December 16, 2008, see 73 

FR 76,383 (2008); and a summary of the 

terms of the proposed Final Judgment 

and CIS, together with directions for the 

submission of written comments 

relating to the proposed Final Judgment, 

was published for seven days in The 

Washington Post on December 31, 2008 

through January 6, 2009. The defendants 

filed the statement required by 15 U.S.C. 

16(g) on April 24, 2009. The 60-day 

public comment period ended on March 

9, 2009; five comments were received, 

as described below and attached hereto. 

II. The Investigation and Proposed 

Resolution 

After Republic and Allied announced 

their plans to merge, the United States 

Department of Justice (the ‘‘United 

States’’) conducted an extensi ve 

investigation into the competitive 

effects of the proposed transaction. As 

part of this investigation, the United 

States obtained documents and 

information from the merging parties 

and others and conducted more than 

600 interviews with customers, 

competitors, and other individuals 

knowledgeable about the industry. The 

investigative staff carefully analyzed the 

information provided and thoroughly 

considered all of the issues presented. 

The United States considered the 

potential competitive effects of the 

transaction on small container 

commercial waste collection or MSW 

disposal services in a number of 

geographic areas, obtaining information 

about these services and these areas 

from market participants. The United 

States concluded that the combination 

of Republic and Allied likely would 

lessen competition in small container 

commercial waste collection or MSW 

disposal services in 15 separate 

geographic markets. 

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Small container commercial waste 

collection service is the collection of 

MSW from commercial businesses such 

as office and apartment buildings and 

retail establishments (e.g., stores and 

restaurants) for shipment to, and 

disposal at, an approved disposal 

facility. Because of the type and volume 

of waste generated by commercial 

accounts and the frequency of service 

required, haulers organize commercial 

accounts into routes, and generally use 

specialized equipment to store, collect, 

and transport MSW from these accounts 

to approved MSW disposal sites. This 

equipment (e.g., one- to ten-cubic-yard 

containers for MSW storage, and frontend load vehicles commonly used for 

collection and transportation of MSW) 

is un iquely well suited to providing 

small container commercial waste 

collection service. Providers of other 

types of waste collection services (e.g., 

residential, hazardous waste, and rolloff services) are not good substitutes for 

small container commercial waste 

collection firms. In these types of waste 

collection efforts, firms use different 

waste storage equipment (e.g., garbage 

cans or semi-stationary roll-off 

containers) and different vehicles (e.g., 

rear-load, side-load, or roll-off trucks), 

which, for a variety of reasons, cannot 

be used conveniently or efficiently to 

store, collect, or transport MSW 

generated by commercial accounts and, 

hence, rarely are used on small 

container commercial waste collection 

routes. In the event of a small but 

significant increase in price for small 

container commercial waste collection 

services, customers would not switch to 

any other alternative. 

A number of Federal, State, and local 

safety, environmental, zoning, and 

permit laws and regulations dictate 

critical aspects of storage, handling, 

transportation, processing and disposal 

of MSW. In order to be disposed of 

lawfully, MSW must be disposed in a 

landfill or incinerator permitted to 

accept MSW. Anyone who attempts to 

dispose of MSW in an unlawful manner 

risks severe civil and criminal penalties. 

In some areas, landfills are scarce 

because of significant population 

density and the limited availability of 

suitable land. Accordingly, most MSW 

generated in these areas is burned in an 

incinerator or taken to transfer stations 

where it is compacted and transported 

on tractor trailer trucks to a more 

distant, permanent MSW disposal site. 

A transfer station is an intermediate 

disposal site for processing and 

temporary storage of MSW before 

transfer in bulk to more distant landfills 

or incinerators for final disposal. 

Because of the strict laws and 

regulations that govern MSW disposal, 

there are no good substitutes for MSW 

disposal in landfills, incinerators, or at 

transfer stations located near the source 

of the waste. Firms that do not offer 

MSW disposal cannot gain significant 

sales from MSW haulers by offering 

lower prices. MSW disposal generally 

occurs in localized markets. Because of 

transportation costs and travel time to 

more distant MSW disposal facilities, a 

substantial percentage of the MSW 

generated in an area is disposed of at 

nearby landfills or transfer stations. In 

the event that a local disposal facility 

imposed a small but significant increase 

in the price of disposal of MSW, haulers 

of MSW generated in that area could not 

profitably turn to more distant disposal 

sites. 

After its investigation, the United 

States concluded that the proposed 

transaction would lessen competition in 

the provision of non-franchised small 

container commercial waste collection 

or MSW disposal services in 15 areas: 

Los Angeles, California; San Francisco, 

California; Denver, Colorado; Atlanta, 

Georgia; northwestern Indiana; 

Lexington, Kentucky; Flint, Michigan; 

Cape Girardeau, Missouri; Charlotte, 

North Carolina; Cleveland, Ohio; 

Philadelphia, Pennsylvania; GreenvilleSpartanburg, South Carolina; Fort 

Worth, Texas; Houston, Texas; and 

Lubbock, Texas. In each of these areas, 

Republic and Allied are two of only a 

few significant firms providing small 

container commercial waste collection 

or MSW disposal services. 

As explained more fully in the 

Complaint and the CIS, this loss of 

competition would result in consumers 

paying higher prices and receiving 

fewer services for the collection and 

disposal of MSW. Complaint ¶ 23 et 

seq.; CIS ¶ II(B). As alleged in the 

Complaint, the proposed acquisition of 

Allied by Republic would remove a 

significant competitor in small 

container commercial waste collection 

and MSW disposal services in already 

highly concentrated and difficult-toenter markets. Complaint ¶ 25. In each 

of these markets, the resulting 

substantial increase in concentration, 

loss of competition, and absence of any 

reasonable prospect of significant new 

entry or expansion by market 

incumbents likely would result in 

higher prices for small container 

commercial waste collection or MSW 

disposal services. Id. 

The proposed Final Judgment is 

designed to preserve competition in 

each of the 15 affected geographic 

markets. It requires Republic and Allied 

to divest a total of 87 commercial waste 

hauling routes, nine landfills and 10 

transfer stations, together with ancillary 

assets and, in three cases, access to 

landfill disposal capacity. The 

divestiture provisions of the proposed 

Final Judgment will eliminate the 

anticompetitive effects of the 

acquisition in small container 

commercial waste collection and MSW 

disposal services in each of these areas. 

The divestiture of these assets to an 

independent, economically viable 

competitor will ensure that users of 

these services in each market will 

continue to receive the benefits of 

competition that otherwise would be 

lost. 

III. Summary of Public Comments and 

the Response of the United States 

During the 60-day public comment 

period, the United States received 

comments from: (1) The Center for a 

Competitive Waste Industry (‘‘CCWI’’); 

(2) Ms. June Guidotti; (3) the 

Pennsylvania Independent Waste 

Haulers Association (‘‘PIWHA’’); (4) 

Metro Disposal; and (5) the Cuyahoga 

County Solid Waste District. The 

comments are attached in the 

accompanying Appendix and are 

summarized below. After reviewing the 

five comments, the United States 

continues to believe that the proposed 

Final Judgment is in the public interest. 

A. Public Comment From the CCWI 

1. Summary of the CCWI’s Comment 

The CCWI, through its attorney David 

Balto, asserts that ‘‘[t]he DOJ must 

strengthen the [proposed Final 

Judgment] to remedy the significant 

competitive problems posed by this 

merger.’’ CCWI Comment, at 1. The 

CCWI comment may be summarized in 

eight points. 

First, the CCWI argues that ‘‘[t]here 

should be divestitures of assets in both 

the [small container commercial waste 

collection] and [municipal solid waste] 

disposal markets in local affected 

geographic areas not named in the 

[proposed Final Judgment].’’ CCWI 

Comment, at 14. 

Second, the CCWI argues that 

‘‘[b]ecause [the] markets consist of 

oligopolies’ [sic] with lock holds on 

local landfills, which create bottlenecks 

that impede new entry, divested assets 

should be sold to independent haulers 

with the right to contract for airspace in 

the merger companies’ landfills.’’ Id. In 

effect, the CCWI requests that the 

proposed Final Judgment be modified to 

preclude the sale of assets to the top five 

municipal solid waste companies. 

Third, instead of the divestiture of 

landfills to qualified purchasers, the 

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CCWI seeks a modification to the 

proposed Final Judgment that would 

give independent haulers 

nondiscriminatory access to landfills. 

CCWI Comment, at 11–12. 

Fourth, the CCWI advocates for 

additional airspace disposal rights to be 

included in the proposed Final 

Judgment. CCWI Comment, at 9. 

Fifth, the CCWI asserts that the 

proposed Final Judgment should be 

‘‘modified to immediately impose the 

use of a monitor trustee to ensure 

compliance with the order,’’ citing to a 

prior case for support. CCWI Comment, 

at 6–7. 

Sixth, the CCWI advocates for the 

inclusion of certain behavioral remedies 

in the proposed Final Judgment, stating 

that ‘‘[u]se of the merged companies’ 

evergreen contracts ought to be 

discontinued, especially in their term 

lengths, renewal provisions, liquidated 

damages, and escalator clauses.’’ CCWI 

Comment, at 14. The CCWI cites to a 

prior consent decree that contained 

such behavioral relief. Id. at 7. 

Seventh, the CCWI proposes that ‘‘the 

goal of encouraging new entrants in the 

commercial waste hauling industry will 

be better served by requiring the 

divested assets in each individual 

market to be offered for sale 

individually rather than in a package,’’ 

such as the requirements in the 

proposed Final Judgment relating to the 

sale of Divestiture Assets in Atlanta, 

Georgia; Cleveland, Ohio; Philadelphia, 

Pennsylvania; and Fort Worth, Texas. 

CCWI Comment, at 10. 

Lastly, the CCWI asserts that the 

proposed Final Judgment departs from 

past enforcement actions by allowing 

Republic to acquire an asset, the 

Newnan Transfer Station, that Allied 

previously was required to divest as a 

condition of the Allied/BFI merger in 

1999.(1) CCWI Comment, at 6. 

2. Response of the United States to 

CCWI’s Comment 

a. The Final Judgment Need Not 

Remedy Competitive Concerns Not 

Addressed in the Complaint 

The CCWI’s comment that the United 

States should have alleged harm to 

competition in small container 

commercial waste collection and MSW 

disposal services in other areas is 

outside the scope of this Tunney Act 

proceeding. As explained by this Court, 

in a Tunney Act proceeding, the district 

court should not second-guess the 

prosecutorial decisions of the United 

States regarding the nature of the claims 

brought in the first instance; ‘‘rather, the 

court is to compare the complaint filed 

by the United States with the proposed 

consent decree and determine whether 

the proposed decree clearly and 

effectively addresses the 

anticompetitive harms initially 

identified.’’ United States v. Thomson 

Corp., 949 F. Supp. 907, 913 (D.D.C. 

1996); accord United States v. Microsoft 

Corp., 56 F.3d 1448, 1459 (D.C. Cir. 

1995) (in APPA proceeding, ‘‘district 

court is not empowered to review the 

actions or behavior of the Department of 

Justice; the court is only authorized to 

review the decree itself ’’); United States 

v. BNS Inc., 858 F.2d 456, 462–63 (9th 

Cir. 1988) (‘‘the APPA does not 

authorize a district court to base its 

public interest determination on 

antitrust concerns in markets other than 

those alleged in the government’s 

complaint’’). This Court has held that ‘‘a 

district court is not permitted to ‘reach 

beyond the complaint to evaluate claims 

that the government did not make and 

to inquire as to why they were not 

made.’ ’’ United States v. SBC 

Commc’ns, Inc., 489 F. Supp. 2d 1, 14 

(D.D.C. 2007) (quoting Microsoft, 56 

F.3d at 1459). 

The CCWI’s suggestion that the 2004 

Amendments to the Tunney Act require 

a more extensive review of the United 

States’s exercise of its prosecutorial 

judgment conflicts with this Court’s 

holding in SBC Communications. In 

SBC Communications, this Court held 

that ‘‘a close reading of the law 

demonstrates that the 2004 amendments 

effected minimal changes, and that this 

Court’s scope of review remains sharply 

proscribed by precedent and the nature 

of [APPA] proceedings.’’ SBC 

Commc’ns, 489 F. Supp. 2d at 11. This 

Court explained that because ‘‘review 

[under the 2004 amendments] is focused 

on the ‘judgment,’ it again appears that 

the Court cannot go beyond the scope of 

the complaint.’’ Id. 

In short, the Tunney Act, as amended 

in 2004, requires the Court to evaluate 

the effect of the ‘‘judgment upon 

competition’’ as alleged in the 

Complaint. In this case, therefore, the 

remedy in the proposed Final Judgment 

must correspond to the harm to 

competition in small container 

commercial waste collection and MSW 

disposal services in the 15 geographic 

markets identified in the Complaint. See 

15 U.S.C. 16(e)(1)(b). Because the 

United States did not allege that 

Republic’s acquisition of Allied would 

cause competitive harm in additional 

markets, it is not appropriate for the 

Court to determine whether the 

acquisition will have anticompetitive 

effects in other regions of the country. 

b. There Is No Evidence That Selling 

Assets to an Appropriate Large National 

Firm Would Be Less Competitive Than 

a Sale to a Smaller Firm 

The United States has carefully 

considered the CCWI’s concern that 

divested assets should be sold only to 

regional haulers, but respectfully 

disagrees. The United States does not 

have any evidence that would lead it to 

conclude categorically that the 

divestiture of assets to a large national 

waste firm would be less competitive 

than a sale to a small regional firm. In 

fact, larger firms might enjoy some 

competitive advantages, such as better 

access to capital and more extensive 

experience, that might make them more 

formidable competitors than regional 

haulers. 

The proposed Final Judgment does 

not require Republic to accept a 

particular offer, only that any Acquirer 

of the divested assets meet the 

conditions set out in Paragraph IV(I)(1) 

and (2). These provisions require the 

divested assets to be sold to a purchaser 

who ‘‘has the intent and capability 

(including the necessary managerial, 

operational, technical, and financial 

capability) of competing effectively in 

the disposal or hauling business.’’ The 

divestitures in the proposed Final 

Judgment thus are designed to preserve 

competition in the marketplace. 

c. Divestiture of an Entire Landfill Is 

Essential to Restoring Competition to 

Pre-Merger Levels 

The CCWI states that ‘‘the [proposed 

Final Judgment] should be modified to 

confer upon independent haulers * * * 

the legal right to acquire 15-year 

contracts for space in Republic/Allied 

landfills in all markets that are highly 

concentrated under the Merger 

Guidelines, or at least the 15 markets 

that are the subject of the [proposed 

Final Judgment].’’ CCWI Comment, at 9. 

Essentially, the CCWI argues against the 

sale of complete landfill assets to a 

prospective purchaser, preferring 

instead to carve landfills into separate, 

discrete portions to be made available to 

independent waste haulers. The United 

States has considered this issue and has 

determined that such relief is contrary 

to the public interest. As stated in the 

U.S. Department of Justice Antitrust 

Division’s Policy Guide to Merger 

Remedies, the United States believes it 

is important that a divestiture include 

all assets necessary for a purchaser to be 

an effective, stand-alone long-term 

competitor. See U.S. Dep’t of Justice, 

Antitrust Division Policy Guide to 

Merger Remedies, § III(B) (2004) 

(‘‘Remedies Guide’’). Under the CCWI 

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proposal, the proposed relief would 

interfere with a landfill owner’s ability 

to manage and operate the assets 

successfully. In particular, a landfill 

owner typically attempts to capture as 

much volume pursuant to long-term 

contracts under the requisite permits. 

The profitability of a landfill depends 

upon a variety of factors, including the 

volume disposed at the site on a daily 

basis. Under the CCWI’s proposal, the 

landfill owner no longer would have 

control over critical operational 

elements of the landfill, such as 

determining the price charged for 

disposal services, establishing the 

duration of contracts, and managing 

expected daily volumes at the facility. 

The CCWI proposal would create 

uncertainty as to whether the landfill 

assets would be fully utilized, as 

independent haulers might not remain 

in business over the life of a divested 

landfill. Predicting which small 

container commercial waste collection 

service provider would use what 

capacity over the life of the landfill 

would be nearly impossible. Thus, this 

proposed remedy could jeopardize the 

competitive significance of the landfill 

assets. 

The proposed remedy proffered by the 

CCWI also would require the United 

States to oversee and enforce contracts 

between the defendants and nonvertically integrated MSW haulers for an 

undetermined period of time. As stated 

in the Remedies Guide, structural 

remedies, such as those in the proposed 

Final Judgment, are preferred in merger 

cases because they are relatively clean 

and certain, and generally avoid 

managing or regulating the merged 

firm’s post-merger business conduct. 

Remedies Guide § III(A). For the reasons 

identified above, the CCWI’s proposal 

would be more difficult, cumbersome, 

and costly to administer. The United 

States believes that the remedies in the 

proposed Final Judgment will address 

the alleged competitive harm more 

effectively and preserve competition in 

each of the affected areas. 

d. No Additional Airspace Disposal 

Rights Are Necessary 

The CCWI argues for the inclusion of 

additional landfill disposal rights or 

‘‘airspace rights’’ in the Final 

Judgment.(2) Simply because the 

proposed Final Judgment includes 

additional airspace rights in Houston, 

Texas, Northwest Indiana, and 

Philadelphia, Pennsylvania, the CCWI 

argues that such relief is warranted in 

other areas. The United States 

conducted a case-by-case analysis of the 

specific facts in each market. In eight 

areas in which the United States 

determined the acquisition would result 

in competitive harm in the market for 

MSW disposal Charlotte, North 

Carolina; Greenville-Spartanburg, South 

Carolina; Fort Worth, Texas; Denver, 

Colorado; San Francisco, California; Los 

Angeles, California; Cleveland, Ohio; 

and Flint, Michigan the proposed Final 

Judgment requires the divestiture of an 

entire landfill. In two other areas 

Atlanta, Georgia and Cape Girardeau, 

Missouri transfer stations are the 

preferred option for MSW disposal 

because the distance to landfills makes 

them an unattractive option for the 

direct haul of MSW. In as much as MSW 

disposal competitors permanently 

utilize transfer stations, the divestiture 

of transfer stations in these areas is 

sufficient to remedy the competitive 

harm in MSW disposal.(3) In the 

Philadelphia, Pennsylvania, Northwest 

Indiana, and Houston, Texas areas, the 

proposed Final Judgment requires the 

defendants to sell airspace rights at the 

buyer’s option. These airspace rights 

generally were intended as an option 

during a transitional period to assist an 

Acquirer who might not yet have a plan 

for final MSW disposal. If the proposed 

buyer already has an ultimate disposal 

option(s) in a market, it is not required 

to purchase these airspace rights. 

In the Philadelphia area, the proposed 

Final Judgment requires the divestiture 

of the Girard Point Transfer Station and 

the Philadelphia Recycling and Transfer 

Station, as well as, at the option of the 

Acquirer, airspace rights at Republic’s 

Modern Landfill for a period of 18 

months. Proposed Final Judgment 

¶ II(H)(1)(j). These airspace rights are 

designed to assist an Acquirer that may 

not have an ultimate disposal option for 

a transitional period. 

In the Northwest Indiana area, the 

proposed Final Judgment requires the 

divestiture of Allied’s Valparaiso 

Transfer Station, various small 

container commercial waste collection 

assets, and, at the option of the 

Acquirer, airspace rights at Allied’s 

Newton County Development 

Corporation Landfill (‘‘Newton County 

Landfill’’) for a two-year period. 

Proposed Final Judgment ¶ II(H)(1)(i). 

Pre-merger, both Allied and Republic 

owned a transfer station in this area. 

The proposed Final Judgment requires 

the sale of Allied’s Valparaiso Transfer 

Station, which will preserve pre-merger 

competition. With regard to landfill 

options, pre-merger, both Republic and 

Allied operate landfills in the area— 

Republic’s Forest Lawn Landfill and 

Allied’s Newton County Landfill. 

Because Republic’s Forest Lawn 

Landfill is expected to be open for only 

two more years, the proposed Final 

Judgment requires the sale of airspace 

capacity at Allied’s Newton County 

Landfill for the expected remaining life 

of the Forest Lawn Landfill at the 

Acquirer’s option. Therefore, the 

remedy preserves competition that 

otherwise would be lost as a result of 

the merger. 

In the Houston, Texas area, the 

proposed Final Judgment requires the 

divestiture of Republic’s Hardy Road 

Transfer Station, Republic’s Seabreeze 

Environmental Landfill, 32 Republic 

small container commercial waste 

collection routes, and, at the option of 

the Acquirer, airspace rights at Allied’s 

Blue Ridge Landfill for a ten-year 

period. Proposed Final Judgment 

¶¶ II(H)(2)(f) & II(I)(6). The United 

States sought airspace rights at Allied’s 

Blue Ridge Landfill, because the landfill 

may be a more convenient and costefficient disposal option for the divested 

hauling routes in the southern and 

western areas of Houston and Harris 

County. The Houston divestiture 

package in the proposed Final Judgment 

is comparable to the remedy in United 

States v. USA Waste Service,(4) in which 

the Modified Final Judgment required 

divestiture of Waste Management, Inc.’s 

(‘‘WMI’’) Hardy Road Transfer Station, 

USA Waste’s Brazoria County Landfill, 

31 WMI small container commercial 

waste collection routes, and, at the 

option of the Acquirer, airspace rights at 

WMI’s Atascocita or Security landfills 

for a period of ten years. Republic used 

its prior purchase of the group of assets 

to compete effectively and grow its 

business in the Houston, Texas area. 

Therefore, the remedy is sufficient to 

preserve competition in this area. 

e. A Monitoring Trustee Is Unnecessary 

The CCWI emphasizes the need for a 

monitoring trustee in this case. A 

monitoring trustee would be responsible 

for reviewing a defendant’s compliance 

with its decree obligations to sell the 

assets as a viable enterprise to an 

acceptable purchaser and to abide by 

injunctive provisions to hold separate 

certain assets from a defendant’s other 

business operations. The CCWI cites to 

United States v. Computer Associates 

Int’l (5) as support for its contention that 

additional oversight is needed to ensure 

compliance with the proposed Final 

Judgment. 

The United States has considered the 

CCWI’s position and respectfully 

disagrees. In Computer Associates, a 

trustee was appointed at the outset to 

sell the divested assets because the 

United States had reason to believe that 

the parties would not effectuate the 

divestitures in a timely manner. Here, 

the United States had no reason to 

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believe that the defendants would not 

comply promptly with the divestiture 

requirements of the proposed Final 

Judgment, and the defendants have 

done so. The CCWI ’s conclusion that a 

monitoring trustee is necessary in this 

matter rests on an assumption that the 

United States’s own monitoring efforts 

will not suffice, and it is counter to the 

position stated in the Remedies Guide 

on the use of monitoring trustees in 

merger-related actions. 

Remedies Guide § IV(I)(3). According 

to Section IV(I)(3) of the Remedies 

Guide, ‘‘[i]n a typical merger case, a 

monitoring trustee’s efforts would 

simply duplicate, and could potentially 

conflict with, the Division’s own decree 

enforcement efforts * * * [and] should 

be reserved for relatively rare situations 

where a monitoring trustee with 

technical expertise unavailable to the 

Division could perform a valuable role.’’ 

Id. In this particular case, the Division 

has sufficient knowledge of the industry 

to ensure compliance with the proposed 

Final Judgment. 

f. Restriction of Evergreen Contracts Is 

Unnecessary 

The CCWI states that the United 

States ‘‘fails to limit the ability of the 

merged firm to use evergreen contracts.’’ 

CCWI Comment, at 7. In seeking the 

discontinuance of such contracts, the 

CCWI cites to a single prior enforcement 

action in which the United States 

employed such a remedy.(6) CCWI 

Comment, at 7. Simply because that 

prior consent decree contained such a 

remedy, the CCWI believes similar 

provisions are necessary in this case. 

As stated above, see supra Part III.2.c, 

the structural remedy of a divestiture is 

preferable to a behavioral remedy in 

merger cases because of the speed, 

certainty, cost, and efficacy associated 

with such a remedy. Unlike a structural 

remedy, a behavioral remedy of contract 

relief is less certain and is required only 

when warranted by the facts of the case. 

The United States has extensive 

experience reviewing mergers in the 

waste industry, and it reviews each 

transaction and each implicated 

geographic area on a case-by-case basis. 

The United States has considered this 

issue and has concluded that the 

modification of contracts is not 

necessary to preserve effective 

competition in the markets identified in 

the Complaint. 

The United States conducted a 

thorough market-by-market 

investigation, which included hundreds 

of hours of interviews with customers 

and competitors of the merging parties. 

The United States heard no specific 

concern that would warrant the type of 

relief suggested by the CCWI. The 

United States determined that the 

proposed remedy, i.e., the divestiture of 

all or most small container commercial 

waste collection routes of one of the 

merging parties in each affected market, 

is sufficient to provide effective 

competition in small container 

commercial waste collection services in 

each market and is consistent with prior 

Antitrust Division practice. 

The proposed Final Judgment would 

require the divestiture of either 

Republic’s or Allied’s entire small 

container commercial waste collection 

business in six of the nine geographic 

areas in which it has alleged 

competitive harm to competition in the 

provision of small container commercial 

waste collection services: Cape 

Girardeau, Missouri; Charlotte, North 

Carolina; Fort Worth, Texas; GreenvilleSpartanburg, South Carolina; Lexington, 

Kentucky; and Lubbock, Texas. The sale 

of the entire small container commercial 

waste collection business preserves the 

pre-merger market structure in each of 

these markets. Accordingly, no 

additional contract relief is necessary. 

In the remaining three areas in which 

the United States has alleged 

competitive harm to competition in the 

provision of small container commercial 

waste collections services Houston, 

Texas, Atlanta, Georgia, and Northwest 

Indiana the proposed Final Judgment 

would require the divestiture of most of 

either Allied’s or Republic’s small 

container commercial waste collection 

business. In the Houston, Texas area, 

the small container commercial waste 

collection routes and related assets that 

would be divested pursuant to the 

proposed Final Judgment, Proposed 

Final Judgment ¶ II(I)(6), represent a set 

of assets comparable to those divested 

in USA Waste.(7) In USA Waste, the 

defendants divested 31 routes; by 

comparison in this case, the proposed 

Final Judgment includes 32 routes. 

Republic, as the purchaser of the 

Houston assets in USA Waste, was able 

to use these assets as a platform for 

entry into the area and to grow and 

become an effective, fully integrated, 

and viable competitor in the area. No 

contract relief was required to remedy 

any market in USA Waste, including 

Houston, Texas. In the present case, the 

divestiture of the small container 

commercial waste collection assets, 

coupled with the related sale of disposal 

assets, once again will enable a qualified 

acquirer to provide effective 

competition in the Houston, Texas area, 

much as Republic was able to do. 

Therefore, contract relief is not 

necessary here. 

In the Atlanta, Georgia area, the 

proposed Final Judgment would require 

the divestiture of all of Allied’s routes 

in the northern and eastern areas of 

Atlanta, where Allied and Republic 

most directly overlapped and competed 

most intensely. Proposed Final 

Judgment ¶ II(I)(1). Numerous factors 

affect waste transport and disposal in 

the area, such as local requirements that 

require MSW to be disposed at 

designated disposal facilities, 

congestion, traffic patterns, and local 

ordinances. In light of these factors, 

haulers typically do not travel outside 

the northern and eastern portions of the 

area. The remedy here was designed to 

preserve the small container commercial 

waste collection competition that 

existed pre-merger. The United States 

has approved Advanced Disposal 

Services, Inc., which already has a 

presence in the area, as the Acquirer of 

these assets. With a footprint in the area, 

Advanced Disposal not only will 

replace competition lost as a result of 

the merger, but will become a more 

efficient competitor. Therefore, contract 

relief is not necessary here. 

In the Northwest Indiana area, the 

proposed Final Judgment would require 

the divestiture of most of Allied’s small 

container commercial waste collection 

business in Porter, LaPorte, and Lake 

Counties. Proposed Final Judgment 

¶ II(I)(9). In these areas, Republic and 

Allied competed most directly to 

provide customers with small container 

commercial waste collection services. 

The proposed Final Judgment addresses 

the harm alleged in the Complaint by 

requiring the divestiture of those routes 

necessary to create an effective 

competitor. To the extent the CCWI 

argues that additional routes or contract 

relief, might be necessary to create an 

effective remedy in MSW disposal, the 

United States concluded that this is not 

necessary because there are numerous 

hauling competitors in the area to 

support the divested Valparaiso 

Transfer Station. Therefore, the 

proposed remedy is sufficient to restore 

competition to pre-merger levels. 

g. The Individual Sale of All the 

Divestiture Assets Is Not Necessary 

The CCWI suggests that the proposed 

Final Judgment be modified to require 

that the Divestiture Assets in each 

market be offered for sale separately and 

that no Divestiture Assets be sold 

together as a bundle. The CCWI cites to 

the requirements in the proposed Final 

Judgment that the assets in Atlanta, 

Georgia, Cleveland, Ohio, Philadelphia, 

Pennsylvania, and Fort Worth, Texas be 

sold separately from the Divestiture 

Assets in the other areas. Proposed Final 

Judgment ¶ IV(A). 

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The United States has considered the 

CCWI’s position and respectfully 

disagrees. Based on its extensive 

experience in overseeing divestitures of 

assets in antitrust cases, the United 

States has concluded that it is most 

efficient to allow the defendants to 

manage the process of selling divestiture 

assets, which may include the bundling 

of assets. In particular, a sale of bundled 

divestiture assets typically results in a 

quicker divestiture and a more efficient 

utilization of the divestiture assets by 

the acquirer. As always, the United 

States retains the authority to review a 

proposed acquirer of divestiture assets 

to determine whether the respective 

acquirer will fully utilize a package of 

divestiture assets. 

In this case, based on a fact-specific 

investigation of potential buyers in each 

area, the United States concluded that 

competition would benefit from the 

separate sale of the Divestiture Assets in 

the Atlanta, Georgia, Cleveland, Ohio, 

Philadelphia, Pennsylvania, and Fort 

Worth, Texas areas.(8) Specifically, the 

separate sale of the Divestiture Assets in 

each of these four markets may permit 

a local or regional waste firm to acquire 

them and combine such assets with 

their own existing assets already serving 

these markets. The decision of the 

United States to require the sale of the 

Divestiture Assets in certain markets 

separately was also based on the 

recognition that approval of a single 

purchaser of all of the Divestiture Assets 

in the 15 relevant markets would be 

unlikely given the potential competitive 

overlap in some of these markets by 

some likely purchasers. For the reasons 

above, the CCWI’s proposal is both 

unnecessary and contrary to the 

purposes of antitrust relief. If 

implemented, the proposal could 

substantially lengthen the divestiture 

process. 

h. Republic’s Acquisition of the Newnan 

Transfer Station Would Not 

Substantially Diminish Competition for 

the Provision of MSW Disposal Services 

in the Atlanta, Georgia Area 

The CCWI states that the proposed 

Final Judgment ‘‘permits Allied to 

reacquire assets it was required to divest 

as a condition of previous final 

judgments,’’ which ‘‘represents a 

departure from previous agreements 

preventing such reacquisitions.’’ CCWI 

Comment, at 6. The CCWI cites to 

Republic acquiring the Newnan Transfer 

Station, a disposal asset that was 

required to be divested in 1999 pursuant 

to the terms of a Final Judgment entered 

in Allied/BFI. 

In 1999, in connection with the 

acquisition by Allied of Browning 

Ferris, Industries, Allied was required to 

divest the Newnan Transfer Station 

located in Newnan, Georgia, which at 

the time was serving the Atlanta, 

Georgia area. As part of the Final 

Judgment entered in Allied/BFI, 

Republic acquired the Newnan Transfer 

Station from Allied and owns it today. 

Paragraph VIII(A) of the Allied/BFI 

Modified Final Judgment prohibits for a 

ten-year period Allied’s reacquisition of 

divested assets without the prior written 

consent of the United States. Although 

Republic’s acquisition of Allied will 

recombine the Newnan Transfer Station 

with Allied’s other disposal assets in the 

Atlanta area, the United States has 

consented to this recombination because 

it concluded that the Newnan Transfer 

Station no longer participates 

meaningfully in the Atlanta market for 

MSW disposal services, and no 

competitive issues exist in the rural 

areas southwest of Atlanta served by the 

Newnan Transfer Station. Specifically, 

the United States found that, although 

Allied used the Newnan Transfer 

Station to serve the Atlanta MSW 

disposal market as of 1999 and that 

facility competed directly with transfer 

stations in the Atlanta area that Allied 

was acquiring in the Allied/BFI merger 

the focus of the Newnan Transfer 

Station has changed under Republic’s 

ownership, and other transfer stations in 

the Atlanta area now accept the MSW 

that previously was disposed at the 

Newnan Transfer Station. Waste flow 

reports show that the Newnan Transfer 

Station disposes of waste generated in 

rural areas southwest of Atlanta and 

competes much less directly with other 

disposal facilities in the Atlanta area. 

Accordingly, the United States 

concluded that the proposed acquisition 

of Allied by Republic, whereby Allied’s 

MSW disposal assets would be 

recombined with the Newnan Transfer 

Station, would not substantially 

diminish competition for the provision 

of MSW disposal services in the Atlanta, 

Georgia area. Instead, the divestiture of 

Republic’s Central Gwinnett Transfer 

Station and Allied’s BFI Smyrna 

Transfer Station will be an effective 

remedy for the anticompetitive effects of 

the proposed acquisition on MSW 

disposal services in this market. 

B. Public Comment From June Guidotti 

1. Summary of Ms. Guidotti’s Comment 

Ms. June Guidotti owns property 

adjacent to Republic’s Potrero Hills 

Landfill. Guidotti Comment, at 1. As a 

neighbor to the Potrero Hills Landfill, 

Ms. Guidotti, through her counsel 

William Reustle, asserts that the Potrero 

Hills Landfill ‘‘should be put back to its 

original status as a marsh environment.’’ 

Id. Ms. Guidotti further contends that 

‘‘Republic Services should be required 

to forever clean up and be accountable 

for the damage they have caused to 

untold plants and marine life.’’ Id. Also, 

she requests that ‘‘Republic Services 

(Allied Services) bear the costs to make 

the land useable once again, and to 

restore it to its prior pristine condition.’’ 

Id. 

2. Response of the United States to Ms. 

Guidotti’s Comment 

In this antitrust suit, the allegations in 

the Complaint are based on current 

market conditions. In the current 

market, Potrero Hills is being used as a 

landfill. Given its current use as a 

landfill, the proposed divestiture will 

remedy the competitive harm that 

would have resulted from the merger. 

Whether the landfill continues to 

operate is within the purview of the 

State of California and local authorities; 

nothing in the proposed Final Judgment 

affects their authority or precludes the 

responsible State and local authorities 

from discontinuing the operation of a 

landfill on the site. The decision 

whether to permit the continuing use of 

the site for waste disposal should be left 

to the appropriate regulatory entities. 

C. Public Comment From the 

Pennsylvania Independent Waste 

Haulers Association 

1. Summary of the PIWHA’s Comment 

The PIWHA submitted a comment 

through counsel, Anthony Mazillo and 

Leonard Dimare. In the comment, the 

PIWHA opined that the proposed Final 

Judgment should be revised to: (1) 

Require the ‘‘divestiture of the 

Quickway transfer station * * * and the 

T.R.C. transfer station * * *, or at least 

one of them, instead of the Girard Point 

transfer station * * * and the 

Philadelphia Recycling and Transfer 

Station;’’ PIWHA Comment, at 1, (2) 

require the sale of the ‘‘divested 

facilities * * * to small, independent 

acquirers, if possible, and should permit 

the sale of each facility * * * to 

separate acquirers’’; id., (3) ‘‘permit 

seller financing’’; id., (4) require ‘‘the 

two facilities in the Philadelphia area 

* * * to be sold separately to two 

different acquirers;’’ id. at 3, and (5) 

‘‘require the defendants to offer three (3) 

year disposal contracts to all waste 

haulers.’’ Id. at 1. 

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2. Response of the United States to the 

PIWHA’s Comment 

a. The Divestitures in the Proposed 

Final Judgment Will Preserve 

Competition 

The proposed Final Judgment requires 

the defendants to divest the Girard Point 

Transfer Station and the Philadelphia 

Recycling and Transfer Station. 

Proposed Final Judgment ¶ 

II(H)(2)(h)(i)–(ii). The Final Judgment 

also requires that the Acquirer of the 

transfer stations be offered the option of 

an 18-month disposal agreement at 

Republic’s Modern Landfill in York, 

Pennsylvania for the final disposal of 

waste received at the transfer stations. 

Proposed Final Judgment 

¶ II(H)(1)(j). The PIWHA’s comment 

asserts that this proposed remedy is 

insufficient for several reasons. First, 

PIWHA states that, although PIWHA 

does not have access to the defendants’ 

financial data, ‘‘marginal profitability of 

the Girard Point and [Philadelphia 

Recycling and Transfer Station] 

facilities has been the distinct 

impression of various PIWHA 

members.’’ PIWHA Comment, at 2. Also, 

the PIWHA asserts that the Girard Point 

Transfer Station and the Philadelphia 

Recycling and Transfer Station are 

‘‘substantially further geographically 

from haulers servicing Bucks and 

Montgomery counties than Quickway 

and TRC, and, accordingly, are more 

costly for those haulers to use.’’ Id. 

With regard to the financial viability 

of the Philadelphia assets, the bidding 

process for these assets has generated 

interest from several proposed 

purchasers; this demonstrated interest is 

persuasive evidence of the substantial 

value of the two transfer stations as 

ongoing business concerns. 

With regard to the PIWHA’s 

contention that the United States should 

have selected different MSW disposal 

assets, the United States respectfully 

disagrees. The relief proposed by the 

PIWHA goes beyond the scope of the 

allegations in the Complaint and, as 

discussed in Part III.A.2(a) above, 

should not be considered by the Court. 

The United States alleged in the 

Complaint that the merger would have 

the effect of reducing competition in the 

market for MSW disposal services in the 

Philadelphia, Pennsylvania area—which 

identifies specifically in Philadelphia 

County—and not in the areas identified 

by the PIWHA. Complaint ¶ 22. Both 

the Girard Point Transfer Station and 

the Philadelphia Recycling and Transfer 

Station are located in Philadelphia 

County and are accessible to MSW 

haulers in Philadelphia County. Based 

on current market conditions, the 

ordered divestitures of Republic’s 

Girard Point Transfer Station and 

Allied’s Philadelphia Recycling and 

Transfer Station will alleviate the 

competitive concerns alleged in the 

Complaint by introducing a new MSW 

disposal services competitor into the 

Philadelphia, Pennsylvania area 

described in the Complaint. 

b. The Divestiture Will Be Sold to a 

Viable and Competitive Firm 

As stated in Part III.A.2(b) above, 

Paragraphs IV(I)(1) and (2) of the 

proposed Final Judgment require the 

divested assets to be sold to a purchaser 

that ‘‘has the intent and capability 

(including the necessary managerial, 

operational, technical, and financial 

capability) of competing effectively in 

the disposal and hauling business.’’ 

When presented with a proposed 

acquirer of the Divestiture Assets, the 

United States will evaluate the proposed 

acquirer to determine whether it meets 

these requirements. Thus, the proposed 

Final Judgment already addresses this 

aspect of the PIWHA’s comment. 

c. Requiring the Separate Sale of the 

Philadelphia Assets Will Not Resolve 

Harm Alleged in Complaint 

With regard to separating the 

Divestiture Assets in the Philadelphia 

area, the United States does not believe 

that this proposal is appropriate. The 

goal of the divestiture of the Girard 

Point Transfer Station and Philadelphia 

Recycling and Transfer Station facilities 

to one acquirer is to find a purchaser 

that possesses both the means and the 

incentive to maintain the level of 

premerger competition in the area. In 

this area, transfer stations are the 

primary disposal option for haulers of 

MSW in this market because roadways 

in much of the area are highly congested 

and MSW landfills generally are too far 

from collection routes for the direct haul 

of MSW to landfills to be economical. 

Because transfer stations are the primary 

disposal options for haulers in this area, 

an acquisition of both transfer stations 

is necessary for a new competitor to 

compete for large municipal contracts in 

the area. Such contracts require a firm 

to handle large volumes of waste. The 

proposed remedy will enable a 

purchaser to maintain the premerger 

level of competition between Republic 

and Allied. 

d. Seller Financing is Strongly 

Disfavored 

The PIWHA advocates the need for 

seller financing of the Divestiture 

Assets. PIWHA Comment, at 3–4. Seller 

financing essentially is a loan provided 

by the seller of an asset to the buyer, to 

cover part or all of the sale price. The 

PIWHA argues that small independent 

purchasers will not have access to the 

capital needed to bid on the assets. Id. 

at 3. In its view, the benefits of seller 

financing outweigh the ‘‘potential 

problems’’ associated with it. Id. 

The United States strongly disfavors 

seller financing of the divestitures for 

several reasons. Remedies Guide 

§ IV(G). First, the seller may retain 

partial control over the assets, which 

could weaken the purchaser’s 

competitiveness. Second, the seller’s 

incentive to compete may be impeded 

because of the seller’s concern that 

vigorous competition may jeopardize 

the purchaser’s ability to repay the debt. 

Third, the seller may have some legal 

claim on the Divestiture Assets in the 

event the purchaser goes into 

bankruptcy. Fourth, the seller may use 

the ongoing relationship as a conduit for 

the exchange of competitively sensitive 

information. Lastly, a purchaser’s 

inability to obtain financing from banks 

or other lending institutions may raise 

questions about the purchaser’s 

viability. The United States believes that 

it is unnecessary to accept the risks 

associated with seller financing when a 

satisfactory divestiture is likely to occur 

without them. 

e. Requiring the Defendants to Offer 

Three-Year Disposal Contracts Is 

Unnecessary 

In its comment, the PIWHA requests 

that ‘‘the defendants be required to offer 

three year disposal contracts to all 

haulers, not just the larger ones as is 

currently the case.’’ PIWHA Comment, 

at 4. The PIWHA believes that ‘‘large, 

vertically integrated waste industry 

firms are generally unwilling to offer 

smaller haulers disposal contracts for a 

term exceeding one year.’’ Id. Thus, 

PIHWA asserts that a three-year disposal 

contract requirement will benefit the 

independent haulers and, ultimately, 

competition generally in the 

Philadelphia, Pennsylvania area. Id. 

The United States does not believe 

that additional injunctive relief is 

necessary to eliminate the competitive 

effects from the merger in the 

Philadelphia area. The proposed Final 

Judgment should be no more restrictive 

than necessary to keep the Divestiture 

Assets competitive. Remedies Guide § II. 

The United States has no evidence that 

the defendants’ merger would raise 

competitive issues warranting the 

imposition of the additional relief 

proposed by the PIWHA. Because the 

Divestiture Assets will remain 

competitive without such injunctive 

relief, the remedy in the proposed Final 

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Judgment is sufficient to resolve the 

harm alleged in the Complaint. 

D. Public Comment From Metro 

Disposal 

1. Summary of Metro Disposal’s 

Comment 

Metro Disposal operates small 

container commercial waste collection 

and MSW disposal services principally 

in the Cleveland, Ohio area. In its 

comment, Metro Disposal asserts that 

the proposed Final Judgment should be 

revised to include the sale of 15 small 

container commercial waste collection 

routes in Cuyahoga County along with 

the sale of the Harvard Road Transfer 

Station and an unspecified number of 

additional routes in the town of 

Mansfield to the purchaser of the 

Oakland Marsh Landfill. Metro Disposal 

Comment, at 2. Metro Disposal further 

asserts that the Divestiture Assets will 

not be attractive ‘‘[w]ithout having some 

guarantee of volumes into the Harvard 

transfer [station].’’ Id. 

2. Response of the United States to 

Metro Disposal’s Comment 

The United States conducted a 

thorough investigation into small 

container commercial waste collection 

and MSW disposal services in the 

Cleveland, Ohio area. During the 

investigation, the United States 

conducted many interviews of market 

participants to determine the 

competitive impact of the proposed 

merger. Based on the investigation and 

current market conditions, the ordered 

divestitures of Allied’s Superior 

Oakland Marsh Landfill and Republic’s 

Harvard Road Transfer Station will 

alleviate the competitive concerns 

alleged in the Complaint by introducing 

a new MSW disposal services 

competitor to the market. A new 

competitor should provide a significant 

competitive alternative to the 

defendants’ MSW disposal services in 

the Cleveland market. Metro Disposal’s 

proposal to revise the proposed Final 

Judgment to require the sale of small 

container commercial waste collection 

routes in effect would require a remedy 

in a market in which no competitive 

harm has been alleged, and therefore 

would exceed the scope of the 

Complaint. The United States has no 

evidence that the merger would have 

anticompetitive effects in the market for 

small container commercial waste 

collection services in the Cleveland 

area. Numerous competitors for the 

provision of small container commercial 

waste collection services will remain in 

the Cleveland area following the merger. 

Because the merger will not cause 

competitive harm in this market, the 

additional remedy proposed by Metro 

Disposal is unnecessary. 

With regard to Metro Disposal’s 

concern that additional MSW volumes 

are necessary for the continued viability 

of the Harvard Road Transfer Station 

and Superior Oakland Marsh Landfill, 

the United States respectfully disagrees. 

In its investigation, the United States 

found that the Harvard Road Transfer 

Station is centrally located in the City 

of Cleveland and is accessible to MSW 

haulers in Cuyahoga County. In 

addition, the Superior Oakland Marsh 

landfill will provide the Acquirer with 

an option for the final disposal of MSW. 

In the Cleveland, Ohio area, there are 

several independent haulers who are 

seeking additional disposal options. 

Accordingly, in addition to internalizing 

its own MSW in the transfer station and 

landfill, the Acquirer of the Divestiture 

Assets will be able to compete for thirdparty volumes to supply these disposal 

facilities. Thus, the ordered divestitures 

of Allied’s Superior Oakland Marsh 

Landfill and Republic’s Harvard Road 

Transfer Station will alleviate the 

competitive concerns alleged in the 

Complaint by introducing a new MSW 

disposal services competitor into the 

Cleveland, Ohio area, thereby 

maintaining the pre-merger level of 

competition. 

E. Public Comment From the Cuyahoga 

Solid Waste District 

1. Summary of the Cuyahoga Solid 

Waste District’s Comment 

Like Metro Disposal, the Cuyahoga 

Solid Waste District urges that 

‘‘sufficient small container commercial 

collection routes in the Cleveland, Ohio 

market area be added to the Relevant 

Hauling Assets’’ to make ‘‘the sale of the 

Harvard Road Transfer Station and the 

Oakland Marsh Landfill a financially 

viable transaction necessary to attract a 

qualified buyer.’’ Cuyahoga Comment, 

at 2. The Cuyahoga Solid Waste District 

also asserts that the proposed Final 

Judgment should prohibit Republic from 

acquiring transfer station assets in 

Cuyahoga County, including the 

Broadview Heights Recycling Center. Id. 

2. Response of the United States to the 

Cuyahoga Solid Waste District’s 

Comment 

As explained in Part III.D.2. above, 

the United States has seen no evidence 

of anticompetitive harm in the 

Cleveland, Ohio market for small 

container commercial waste collection 

services, and the Complaint contains no 

allegation of such harm; accordingly, 

the relief proposed by the Cuyahoga 

Solid Waste District goes beyond the 

scope of the Complaint and should not 

be considered by the Court. Moreover, 

independent haulers generate sufficient 

volumes of MSW to support the types of 

volumes needed to supply the Harvard 

Road Transfer Station and Oakland 

Marsh Landfill. With regard to the 

Cuyahoga Solid Waste District’s 

suggestion that Republic be barred from 

acquiring transfer station assets in 

Cuyahoga County, the United States 

already has addressed this concern in 

Section VII of the proposed Final 

Judgment: 

[D]efendants, without providing advance 

notification to United States and the Relevant 

State, shall not directly or indirectly acquire, 

any (1) interest in any business engaged in 

a relevant service in a relevant area, (2) assets 

(other than in the ordinary course of 

business) used in a relevant service in a 

relevant area, (3) capital stock, or (4) voting 

securities of any person that, at any time 

during the twelve (12) months immediately 

preceding such acquisition, was engaged in 

MSW disposal or small container commercial 

waste collection in any relevant area, where 

that person’s annual revenues in the relevant 

area from MSW disposal and/or small 

container commercial waste collection 

service were in excess of $500,000 annually. 

For clarity, this provision also applies to an 

acquisition of disposal facilities that serve a 

relevant area but are located outside the 

relevant area, whether or not they are 

physically located in the relevant area. 

Section VII of the proposed Final 

Judgment requires the defendants to 

notify the United States and the 

Relevant State if they plan to acquire 

any additional assets in the area, 

including Broadview Heights Recycling 

Center. Such notification would provide 

the United States and the Relevant State 

the opportunity to investigate, review, 

and ultimately determine whether the 

defendants’ potential acquisition of 

additional small container commercial 

waste collection or MSW disposal assets 

in the Cleveland, Ohio area would 

present the potential for anticompetitive 

harm. The Cuyahoga Solid Waste 

District’s concern thus is addressed in 

the proposed Final Judgment. 

IV. Standard of Judicial Review 

Upon the publication of the 

Comments and this Response, the 

United States will have fully complied 

with the Tunney Act and will move for 

entry of the proposed Final Judgment as 

being ‘‘in the public interest.’’ 15 U.S.C. 

16(e)(1), as amended. 

The Tunney Act states that, in making 

that determination, the Court shall 

consider: 

A. The competitive impact of such 

judgment, including termination of 

alleged violations, provisions for 

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enforcement and modification, duration 

of relief sought, anticipated effects of 

alternative remedies actually 

considered, whether its terms are 

ambiguous, and any other competitive 

considerations bearing upon the 

adequacy of such judgment that the 

court deems necessary to a 

determination of whether the consent 

judgment is in the public interest; and 

B. The impact of entry of such 

judgment upon competition in the 

relevant market or markets, 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)(1)(A)–(B); see 

generally United States v. AT&T Inc., 

541 F. Supp. 2d 2, 6 n.3 (D.D.C. 2008) 

(listing factors that the Court must 

consider when making the publicinterest determination); United States v. 

SBC Commc’ns, Inc., 489 F. Supp. 2d 1, 

11 (D.D.C. 2007) (concluding that the 

2004 amendments to the Tunney Act 

‘‘effected minimal changes’’ to scope of 

review under Tunney Act, leaving 

review ‘‘sharply proscribed by 

precedent and the nature of Tunney Act 

proceedings’’).(9)

As the United States Court of Appeals 

for the District of Columbia Circuit has 

held, under the APPA, a court 

considers, 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 Corp., 56 F.3d 

1448, 1458–62 (D.C. Cir. 1995). 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) (citing 

United States v. Bechtel Corp., 648 F.2d 

660, 666 (9th Cir. 1981)); see also 

Microsoft, 56 F.3d at 1460–62. Courts 

have held that: 

[t]he 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. 

Bechtel, 648 F.2d at 666 (emphasis 

added) (citations omitted); cf. BNS, 858 

F.2d at 464 (holding that the court’s 

‘‘ultimate authority under the [APPA] is 

limited to approving or disapproving 

the consent decree’’); United States v. 

Gillette Co., 406 F. Supp. 713, 716 (D. 

Mass. 1975) (noting that, in this way, 

the court is constrained to ‘‘look at the 

overall picture not hypercritically, nor 

with a microscope, but with an artist’s 

reducing glass’’); see generally 

Microsoft, 56 F.3d at 1461 (discussing 

whether ‘‘the remedies [obtained in the 

decree are] so inconsonant with the 

allegations charged as to fall outside of 

the ‘reaches of the public interest’ ’’). 

The government is entitled to broad 

discretion to settle with defendants 

within the reaches of the public interest. 

AT&T Inc., 541 F. Supp. 2d at 6. In 

making its public-interest 

determination, a district court ‘‘must 

accord deference to the government’s 

predictions about the efficacy of its 

remedies, and may not require that the 

remedies perfectly match the alleged 

violations.’’ SBC Commc’ns, 489 F. 

Supp. 2d at 17; see also Microsoft, 56 

F.3d at 1461 (noting the need for courts 

to be ‘‘deferential to the government’s 

predictions as to the effect of the 

proposed remedies’’); United States v. 

Archer-Daniels-Midland Co., 272 F. 

Supp. 2d 1, 6 (D.D.C. 2003) (noting that 

the court should grant due respect to the 

United States’s prediction as to the 

effect of proposed remedies, its 

perception of the market structure, and 

its views of the nature of the case). 

Court approval of a consent decree 

requires a standard more flexible and 

less strict than that appropriate to court 

adoption of a litigated decree following 

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.’ ’’ 

United States v. Am. Tel. & Tel. Co., 552 

F. Supp. 131, 151 (D.D.C. 1982) 

(citations omitted) (quoting United 

States v. Gillette Co., 406 F. Supp. 713, 

716 (D. Mass. 1975)), aff’d sub nom. 

Maryland v. United States, 460 U.S. 

1001 (1983); see also United States v. 

Alcan Aluminum Ltd., 605 F. Supp. 619, 

622 (W.D. Ky. 1985) (approving the 

consent decree even though the court 

would have imposed a greater remedy). 

To meet this standard, the United States 

‘‘need only provide a factual basis for 

concluding that the settlements are 

reasonably adequate remedies for the 

alleged harms.’’ SBC Commc’ns, 489 F. 

Supp. 2d at 17. 

Moreover, the Court’s role under the 

APPA is limited to reviewing the 

remedy in relationship to the violations 

that the United States has alleged in its 

complaint, rather than to ‘‘construct [its] 

own hypothetical case and then 

evaluate the decree against that case.’’ 

Microsoft, 56 F.3d at 1459. Because the 

‘‘court’s authority to review the decree 

depends entirely on the government’s 

exercising its prosecutorial discretion by 

bringing a case in the first place,’’ it 

follows that ‘‘the court is only 

authorized to review the decree itself,’’ 

and not to ‘‘effectively redraft the 

complaint’’ to inquire into other matters 

that the United States did not pursue. 

Id. at 1459–60. As this Court recently 

confirmed in SBC Communications, 

courts ‘‘cannot look beyond the 

complaint in making the public interest 

determination unless the complaint is 

drafted so narrowly as to make a 

mockery of judicial power.’’ SBC 

Commc’ns, 489 F. Supp. 2d at 15. 

In its 2004 amendments to the 

Tunney Act, Congress made clear its 

intent to preserve the practical benefits 

of utilizing consent decrees in antitrust 

enforcement, adding the unambiguous 

instruction that ‘‘[n]othing in this 

section shall be construed to require the 

court to conduct an evidentiary hearing 

or to require the court to permit anyone 

to intervene.’’ 15 U.S.C. 16(e)(2). The 

amendments codified what Congress 

intended when it passed the Tunney 

Act in 1974, as Senator Tunney then 

explained: ‘‘[t]he 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.’’ 

119 Cong. Rec. 24,598 (1973) (statement 

of Senator Tunney). Rather, the 

procedure for the public-interest 

determination is left to the discretion of 

the court, with the recognition that the 

court’s ‘‘scope of review remains 

sharply proscribed by precedent and the 

nature of Tunney Act proceedings.’’ 

SBC Commc’ns, 489 F. Supp. 2d at 

11.(10)

V. Conclusion 

After careful consideration of the 

public comments, the United States 

concludes that entry of the proposed 

Final Judgment will provide an effective 

and appropriate remedy for the antitrust 

violations alleged in the Complaint and 

is therefore in the public interest. 

Accordingly, after the comments and 

this Response are published in the 

Federal Register pursuant to 15 U.S.C. 

16(b) and (d), the United States will 

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move this Court to enter the proposed 

Final Judgment. 

Dated: May 14, 2009. 

Respectfully submitted, 

lllllllllllllllllll

Stephen A. Harris (NJ Bar No. 

020201999), 

U.S. Department of Justice, Antitrust 

Division, 1401 H Street, NW., Suite 

3000, Washington, DC 20530. 

Telephone: (202) 514–4901. 

Facsimile: (202) 307–6283. 

Attorney for Plaintiff the United States. 

Certificate of Service 

I, Stephen A. Harris, hereby certify 

that on May 14, 2009, I caused a copy 

of the foregoing Response of the United 

States to Public Comments on the 

Proposed Final Judgment and the 

attached Appendix to be served by 

electronic filing on Republic Services, 

Inc. and Allied Waste Industries, Inc., 

and plaintiffs the State of California, 

Commonwealth of Kentucky, State of 

Michigan, State of North Carolina, State 

of Ohio, Commonwealth of 

Pennsylvania, and the State of Texas by 

mailing the document electronically to 

the duly authorized legal 

representatives as follows: 

Edward B. Schwartz, Kenneth G. 

Starling, DLA Piper LLP, 800 Eighth 

Street, NW., Washington, DC 20004. 

Tel.: (202) 799–4516. Fax: (202) 700– 

5518. E-mail: 

edward.schwartz@dlapiper.com. 

Counsel for Defendant Republic 

Services, Inc. 

Richard J. Favretto, John Roberti, Mayer 

Brown LLP, 1909 K Street, NW., 

Washington, DC 20006–1101. Tel.: 

(202) 263–3428. Fax: (202) 762–4228. 

E-mail: jroberti@mayerbrown.com. 

Counsel for Defendant Allied Waste 

Industries, Inc. 

Nicole S. Gordon, Deputy Attorney 

General, 455 Golden Gate Avenue, 

San Francisco, CA 94102. Tel.: (415) 

703–5702. Fax: (415) 703–5480. Email: nicole.gordon@doj.ca.gov. 

Counsel for Plaintiff State of 

California. 

C. Terrell Miller, Assistant Attorney 

General, Consumer Protection 

Division, 1024 Capital Center Drive, 

Frankfort, KY 40601. Tel.: (502) 696– 

5389. Fax: (502) 573–8317. E-mail: 

Terrell.Miller@ag.ky.gov. Counsel for 

Plaintiff Commonwealth of Kentucky. 

M. Elizabeth Lippitt, Assistant Attorney 

General, Consumer Protection 

Division, Antitrust Section, Attorneys 

for the State of Michigan, G. Mennen 

Williams Building, 6th Floor, 525 W. 

Ottawa Street, Lansing, Michigan 

48913. Tel.: (517) 335–0855. Fax: 

517–335–1935. E-mail: 

Lippitte@michigan.gov. Counsel for 

Plaintiff State of Michigan. 

K. D. Sturgis, Assistant Attorney 

General, North Carolina Department 

of Justice, 9001 Mail Service Center, 

Raleigh, NC 27699–9001. Tel.: (919) 

716.6000. Fax: 919–716–6050. E-mail: 

KSturgis@ncdoj.gov. Counsel for 

Plaintiff State of North Carolina. 

Jennifer L. Pratt, Chief, Antitrust 

Section, Office of the Ohio Attorney 

General, 150 East Gay St., 23rd Floor, 

Columbus, Ohio 43215. Tel: (614) 

466–4328. Fax: (614) 995–0266. Email: Jpratt@ag.state.oh.us. Counsel 

for Plaintiff State of Ohio. 

James A. Donahue, III, Chief Deputy 

Attorney General, Antitrust Section, 

14th Floor, Strawberry Square, 

Harrisburg, PA 17120. Telephone: 

(717) 787–4530. Facsimile: (717) 705– 

7110. E-mail: 

jdonahue@attorneygeneral.gov. 

Counsel for Plaintiff Commonwealth 

of Pennsylvania. 

Kim Van Winkle, Texas Bar No. 

24003104, Antitrust Division, Office 

of the Attorney General, P.O. Box 

12548, Austin, TX 78711–2548. Tel.: 

(512) 463–1266. Fax: (512) 320–0975. 

E-mail: 

Kim.Vanwinkle@oag.state.tx.us. 

Counsel for Plaintiff State of Texas. 

lllllllllllllllllllll

Stephen A. Harris (NJ Bar No. 020201999), 

United States Department of Justice, 

Antitrust, Division, Litigation II Section, 

1401 H Street, NW., Suite 3000, 

Washington, DC 20530. Tel.: (202) 514– 

4901. Fax: (202) 307–6583. E-mail: 

stephen.harris@usdoj.gov. 

Footnotes 

1. See United States v. Allied Waste 

Industries & Browning-Ferris Industries 

(D.D.C. 1999) (No. 1:99 CV 01962) 

[hereinafter Allied/BFI]. 

2. The CCWI asserts that ‘‘Despite the 

consistency of prevailing market 

conditions cited in the [proposed Final 

Judgment], the remedies vary widely 

from market to market.’’ CCWI 

Comment, at 8. In particular, the CCWI 

states that ‘‘the [proposed Final 

Judgment] provides for the divestiture of 

airspace disposal rights * * * in several 

local markets, but requires that such 

rights remain with the acquirer for 

varying durations and upon varying 

terms.’’ Id. at 9. In the proposed Final 

Judgment, the United States carefully 

crafted a remedy based on the particular 

facts presented in each of the affected 

areas. The United States’s goal is to 

restore competition lost as a result of the 

merger, not to enhance premerger 

competition by requiring additional 

remedies not warranted by the facts. 

The CCWI’s desire for an identical 

remedy in each of the affected areas 

would be counter to this goal. Based on 

a market-by-market analysis of each of 

the affected areas, the proposed remedy 

will restore competition lost as a result 

of the merger in each area. 

3. In two other areas Lubbock, Texas 

and Lexington, Kentucky it was 

determined that there was no harm to 

MSW disposal. Rather, the proposed 

Final Judgment requires the sale of 

Allied and Republic’s small container 

commercial waste collection businesses 

as well as associated hauling facilities, 

respectively. Because there was no 

competitive harm to the market for 

MSW disposal, no disposal remedy is 

necessary. 

4. See United States, et al. v. USA 

Waste Services, Inc., et al., (N.D. Ohio 

1999) (Civil No. 1:98CV1616) 

(hereinafter USA Waste). 

5. (D.D.C. 1999) (Case No. 1:99 CV 

01318). 

6. The CCWI cites to United States v. 

Allied Waste Industries, Inc., (D.D.C. 

2000) (No. 1:00 CV 01469), in support 

of its assertion that contract relief 

should be required in this case. In a 

more recent case, however, United 

States v. Waste Management, Inc., et al. 

(D.D.C. 2003) (No. 1:03 CV 01409), the 

United States sought contract relief in 

some markets, but not others, as 

warranted by the specific facts of the 

case. 

7. See USA Waste, at ¶ II(D)(7). 

8. In addition, after the filing of the 

proposed Final Judgment, the 

defendants agreed to separately market 

and sell the Divestiture Assets in the 

San Francisco, California area, pursuant 

to an agreement with the Attorney 

General for the State of California. 

9. The 2004 amendments substituted 

‘‘shall’’ for ‘‘may’’ in directing relevant 

factors for courts to consider and 

amended the list of factors to focus on 

competitive considerations and to 

address potentially ambiguous judgment 

terms. Compare 15 U.S.C. 16(e) (2004) 

with 15 U.S.C. 16(e)(1) (2006). 

10. a> See United States v. Enova 

Corp., 107 F. Supp. 2d 10, 17 (D.D.C. 

2000) (noting that the ‘‘Tunney Act 

expressly allows the court to make its 

public interest determination on the 

basis of the competitive impact 

statement and response to comments 

alone’’); United States v. Mid-Am. 

Dairymen, Inc., 1977–1 Trade Cas. 

(CCH) ¶ 61,508, at 71,980 (W.D. Mo. 

1977) (‘‘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 

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comments in order to determine 

whether those explanations are 

reasonable under the circumstances.’’); 

S. Rep. No. 93–298, 93d Cong., 1st Sess., 

at 6 (1973) (‘‘Where the public interest 

can be meaningfully evaluated simply 

on the basis of briefs and oral 

arguments, that is the approach that 

should be utilized.’’). 

March 6, 2009 

Maribeth Petrizzi, 

Chief, Litigation II Section, Antitrust 

Division, U.S. Department of 

Justice, 1401 H Street NW., Suite 

3000, Washington, DC 20530. 

Re: Comments of the Center for a 

Competitive Waste Industry, on the 

Proposed Judgment in U.S. v. 

Republic Services, Inc. and Allied 

Waste Industries, Inc., Case No. 

1:08–cv–02076 (D.D.C. 2008) 

Dear Ms. Petrizzi: The proposed final 

judgment (‘‘PFJ’’) in this case will not 

fully remedy the competitive problems 

identified in the complaint but rather 

will permit a three-firm oligopoly to 

consolidate into an even more 

concentrated two-firm oligopoly based 

upon a remedy that is fatally discredited 

by the very parties involved. The 

proposal to create a duopoly in an 

industry with a history of persistent 

anticompetitive conduct is something 

that warrants the utmost scrutiny. In 

1998 and 1999 the Department of Justice 

permitted two mega-mergers by ordering 

the divestiture of overlapping assets 

primarily to Republic Services, at that 

time ranked fifth. Now, in this 

proceeding, that same Republic 

Services, which was then supposed to 

restore competition, is applying to 

consolidate an already highly 

consolidated industry into a duopoly, 

with a few divested assets to the current 

fifth ranked oligopoly member, in this 

case Waste Connections. 

The PFJ is both inconsistent with past 

DOJ waste enforcement actions and 

internally inconsistent. A more lax 

approach is not warranted; indeed, the 

failure to abide with past divestitures 

calls for a more strict approach now. 

The DOJ must strengthen the PFJ to 

remedy the significant competitive 

problems posed by this merger. As we 

recommend, the merged firm should be 

required to sell to independent haulers 

some of the airspace in their landfills 

where the two firms’ markets overlap. 

Unlocking control over landfills is most 

often the key element in effective relief, 

because the extreme difficulty in 

permitting new sites creates near 

impenetrable barriers to entry for 

disposal. Moreover, consistent with past 

DOJ practice, undisputedly 

anticompetitive evergreen contracts 

should be curtailed and enforcement 

monitors should be established to insure 

compliance—especially when, as here, 

the merged firms have a past history of 

violating prior orders. 

On December 3, 2008 the Antitrust 

Division of the Department of Justice 

filed a complaint and proposed final 

judgment (‘‘PFJ’’) with this Court 

regarding the acquisition of Allied 

Waste Industries, Inc. (‘‘Allied’’) by 

Republic Services, Inc (‘‘Republic’’). 

Although this acquisition creates a 

dominant waste hauling and disposal 

company nationally, the DOJ restricted 

its remedy to a very limited set of 

geographic markets in which 

competitive concerns arise in the small 

container commercial waste collection 

(‘‘SCCWC’’) and municipal solid waste 

(‘‘MSW’’) disposal markets. Moreover, 

the proposed remedies in these limited 

markets are inadequate to remedy 

competitive harm and are overall 

inconsistent as compared to other 

previous enforcement actions in the 

waste hauling and disposal industry. 

The Center for a Competitive Waste 

Industry files these comments pursuant 

to the Antitrust Procedures and 

Penalties Act, 15 U.S.C. § 16(b–e) 

(known as the ‘‘Tunney Act’’) because 

the DOJ’s complaint and PFJ are 

seriously inadequate to remedy the 

competitive concerns arising from this 

transaction. This merger results in a 

duopoly that threatens competition in 

the SCCWC markets in 10 local markets 

(Atlanta, Georgia; Cape Girardeau, 

Missouri; Charlotte, North Carolina; Fort 

Worth, Houston, and Lubbock, Texas; 

Greenville and Spartanburg, South 

Carolina; Lexington, Kentucky and 

Northwest Indiana), with combined 

market shares of just the merging firms 

of up to 75%. 

This merger also results in Republic 

dominating the municipal solid waste 

disposal markets (‘‘MSW markets’’), 

according to the proposed order, just in 

13 local markets (Atlanta, Georgia; 

Charlotte, North Carolina; Cleveland, 

Ohio; Denver, Colorado; Flint, 

Michigan; Fort Worth and Houston, 

Texas; Greenville and Spartanburg, 

South Carolina; Los Angeles and San 

Francisco, California; Northwest 

Indiana; and Philadelphia, 

Pennsylvania), with combined market 

shares of just the merging firms of up to 

80%. 

In these designated markets, the PFJ 

attempts to remedy the anticompetitive 

effects of the merger but takes no action 

in other markets that have an equal or 

greater level of concentration. Even if 

the identified local markets are the only 

markets of competitive concern the PFJ 

is inadequate in several respects: 

• The PFJ is inconsistent with past 

waste merger enforcement actions; 

• The relief in the PFJ is internally 

inconsistent; 

• The PFJ limits itself to divestiture of 

landfill and transfer station assets, 

which independent haulers usually 

cannot afford, and does not include 

mechanisms for non-discriminatory 

access to such assets; 

• The PFJ fails to restrict the sales of 

divested assets to the other oligopolists 

in the waste industry; and 

• The PFJ fails to require the 

modification of evergreen contracts that 

severely limit customer choice and 

provide formidable barriers to entry for 

potential competitors, despite this 

requirement in previous enforcement 

actions. 

To alleviate these problems we 

suggest the following modifications to 

the PFJ: 

• The PFJ should prohibit evergreen 

contracts and provide for modification 

of terms of length, renewal provisions, 

liquidated damages, and escalator 

clauses; 

• The PFJ should prohibit divestiture 

to other oligopolists; 

• The PFJ should provide 

independent haulers access to landfills 

in all markets on a non-discriminatory 

basis; and 

• The DOJ should appoint a trustee to 

monitor compliance with the final 

judgment. 

I. The Interests of the Parties 

These comments are submitted on 

behalf of the Center for a Competitive 

Waste Industry (‘‘The Center’’), a nonprofit research and advocacy 

organization dedicated to the protection 

of a competitive waste industry. The 

Center advances efforts to restore and 

maintain competition in the solid waste 

industry of especial interest for public 

works directors, independent haulers, 

businesses using solid waste services, 

and recyclers. These stakeholders and 

ultimately consumers will be harmed 

from this merger even if the PFJ is 

implemented in its current form. The 

merger will result in a dominant waste 

hauling and disposal company with the 

unilateral ability to reduce competition 

in the waste industry and extend its 

market power into the recycling 

industry, thereby raising prices for 

consumers while simultaneously 

reducing services to these consumers. 

II. Procedural Background 

In June 2008, Republic announced its 

proposed purchase of Allied for $4.5 

billion. In July, the DOJ issued a 

‘‘second request’’ under the Federal 

Hart-Scott-Rodino Antitrust 

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1 In this matter, the DOJ may claim that the 

court’s review is limited to reviewing the remedy 

in relationship to the violations that the United 

States has alleged in its complaint, and does not 

authorize the court to go beyond the scope of the 

complaint. See Fed. Reg. Vol. 73, No. 47, at 12774 

(March 10, 2008). We believe that view is 

inconsistent with the legislative history of the 2004 

Amendments to the Tunney Act. Congress amended 

the Tunney Act in 2004 to overrule District of 

Columbia Circuit Court of Appeals and District 

Court precedent that was overly deferential to 

Antitrust Division consent decrees. The 

amendments to the Tunney Act compel the 

reviewing court to consider, inter alia, the ‘‘impact’’ 

of the entry of judgment on ‘‘competition in the 

relevant market.’’ See Pub. L. 108–327, § 221(b)(2) 

rewriting 15 U.S.C. § 16(e). 

No suggestion is made in the statute or legislative 

history that the courts should defer to either the 

Government’s identification of injury or the 

Government’s proposed remedy to that injury. On 

the contrary, as one of the authors of the legislation 

noted, the reviewing court is to achieve an 

‘‘independent, objective, and active determination 

without deference to the DOJ.’’ See 150 Cong. Rec., 

S 3617 (April 2, 2004) (Statement of Sen. Kohl). 

For criticism of the overly deferential standard 

see Darren Bush and John J. Flynn, The Misuse and 

Abuse of the Tunney Act: The Adverse 

Consequences of the ‘‘Microsoft Fallacies’’, 34 Loy. 

U. Chi. L.J. 749 (2002–2003). 

2See 150 Cong. Rec., S 3617 (April 2, 2004) 

(Statement of Sen. Kohl). 

3 Id. 

4 Id. 

5See DOJ Press Release (Aug. 2, 2004), available 

at http://www.usdoj.gov/opa/pr/2004/August/ 

04_crt_529.htm. 

6See DOJ Press Release (Nov. 30, 2004), available 

at http://www.usdoj.gov/atr/public/press_releases/ 

2004/206569.htm. 

7Proposed Final Judgment, US v. Computer 

Associates International, Inc. and Platinum 

Technology International, Inc., Case No. 99CV01318 

(D.D.C., May 25, 1999). 

Improvements Act of 1976, seeking 

more information. The States of 

California, Kentucky, Michigan, North 

Carolina, Ohio, Pennsylvania and Texas 

conducted simultaneous investigations. 

On December 3, 2008, the DOJ and the 

several States mentioned above filed an 

enforcement action to enjoin the merger 

of Republic and Allied. The DOJ action 

claimed that the merger would pose 

significant competitive problems in the 

SCCWC market in 9 geographic areas 

and the MSW market in 13 geographic 

areas because the merged firm would 

substantially lessen competition by 

reducing the number of significant 

competitors and permitting a single firm 

to control a substantial market share in 

each geographic area in each product 

market. The DOJ alleged this would 

result in higher prices, fewer choices, 

and a reduction in the quality of waste 

services provided in these areas. The 

PFJ attempts to address these issues by 

requiring just the divestiture of SCCWC 

assets (including hauling routes, trucks, 

containers and customer lists) in 9 

markets, and MSW disposal assets 

(including landfills, transfer stations, 

airspace disposal rights, and storage) in 

13 markets. 

III. The Tunney Act Standards 

The Tunney Act requires that 

‘‘[b]efore entering any consent judgment 

proposed by the United States * * *, 

the court shall determine that the entry 

of such judgment is in the public 

interest.’’, 16 U.S.C. § 15(e)(1). In 

applying this ‘‘public interest’’ standard, 

the burden is on the government to 

‘‘provide a factual basis for concluding 

that the settlements are reasonably 

adequate remedies for the alleged 

harms.’’ United States v. SBC, 489 

F.Supp. 2d 1, 16, (D.D.C. 2007), citing 

United States v. Microsoft Corp., 56 

F.3d 1448, 1460–61 (D.C. Cir. 1995). 

The 2004 Congressional amendments 

to this Act specifically overruled 

District of Columbia Circuit Court of 

Appeals and District Court precedent 

that was deemed overly deferential to 

Antitrust Division consent decrees.1 In 

response to those decisions, Congress 

reemphasized its intention that courts 

reviewing consent decrees ‘‘make an 

independent, objective, and active 

determination without deference to the 

DOJ.’’ 2 Courts are to provide an 

‘‘independent safeguard’’ against 

‘‘inadequate settlements’’.3 Specifically, 

the Act was amended to compel 

reviewing courts to consider both 

‘‘ambiguity’’ in the terms of the 

proposed remedy, as well as the 

‘‘impact’’ of the proposed settlements on 

‘‘competitors in the relevant market or 

markets.’’ 4 Moreover, Congress adopted 

these 2004 amendments to highlight the 

expectation that an independent 

judiciary would oversee proposed 

settlements to ensure that those 

settlements met the needs of consumers. 

We submit the DOJ has an extra 

burden to justify the limited relief in 

this case. First, parties in these markets 

have failed to abide with past DOJ 

merger decrees and the DOJ has brought 

enforcement actions to compel 

compliance with decrees. Second, the 

PFJ is inconsistent with past 

enforcement actions. Third, the PFJ is 

internally inconsistent requiring certain 

types of remedies in some markets and 

not others. Fourth, it relies at its center 

upon an asset divestiture remedy that 

has demonstrably failed to provide 

offsetting relief from the anticompetitive 

effects of major consolidation. Finally, 

the PFJ does not address several markets 

that will be adversely affected by the 

merger. 

As to the PFJ, we submit it is 

inadequate because it fails to provide for 

airspace disposal rights, access to 

landfills, nondiscriminatory access and 

modification of evergreen contracts 

divestiture. 

IV. The PFJ Needs a Monitor Trustee to 

Ensure Compliance 

Waste firms’ failure to abide with past 

merger divestitures raises significant 

concerns about the adequacy of the 

remedy in this case. Two examples are 

illuminating. 

In 1999, Allied merged with 

Browning Ferris Industries (‘‘BFI’’). The 

merger was cleared after the 

requirement of divestiture of several 

landfills, incinerators, airspace disposal 

rights, transfer stations, and commercial 

hauling routes. In August 2004, the DOJ 

brought a contempt order against Allied 

for prematurely terminating landfill 

disposal rights in a divested asset as 

part of the Allied/BFI merger. The DOJ 

secured a fine of $10,000 per day for 

every day in violation of the untimely 

termination and required a 

comprehensive compliance program for 

Allied’s relevant management-level 

employees.5

In 2000, Allied attempted a merger 

with Republic that resulted in a number 

of divestitures in hauling routes and 

contract revisions limiting contracting 

periods and requiring renewal notices in 

a number of affected markets. In 

November 2004, the DOJ brought a 

contempt action against Republic for 

failing to comply with certain contract 

revision requirements. This resulted in 

the payment of a $1.5 million fine to the 

Department of the Treasury.6

We believe that these violations raise 

serious concerns about Republic’s likely 

compliance with the provisions of the 

PFJ and highlight the need to strengthen 

the PFJ provisions. One of the 

approaches the DOJ has taken in cases 

where a firm that has violated past 

orders proposes to resolve a merger 

through a divestiture is to appoint a 

monitor trustee to ensure that the 

parties fully comply with the PFJ.7 We 

suggest that the PFJ be modified to 

immediately impose the use of a 

monitor trustee to ensure compliance 

with the order. 

V. The DOJ Has Arbitrarily Departed 

From Its Past Antitrust Enforcement 

Policies in Waste Mergers and Should 

Restrict Evergreen Contracts and 

Liquidated Damage Provisions 

Consistent With Past Actions 

Even though the waste markets have 

become more concentrated and there is 

evidence that past orders have not been 

complied with the DOJ’s PFJ is actually 

weaker than orders in past waste 

mergers. In past enforcement actions the 

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8See e.g., Final Judgment, United States v. Allied 

Waste Industries, Inc. and Republic Services (D.C. 

Dist. 2000) at XII. 

9Notably, Republic’s alleged failure to adhere to 

the contract revision requirements of the FJ resulted 

in Republic making a $1.5 million payment to settle 

a civil contempt claim. See ‘‘Republic Services Inc. 

Agrees to Pay $1.5 Million Civil Penalty,’’ Dept. of 

Justice Press Release, Nov. 30, 2004. 

10Modified Final Judgment, United States v. 

Allied Waste Industries, Inc. and Browning-Ferris 

Industries, Inc., Case No. 1:99CV01962 (D.D.C. 

1999). 

11 Id. 

12Competitive Impact Statement, United States v. 

Allied Waste Industries, Inc. and Republic Services, 

Inc., Case No. 1:00–cv–01469 (D.C. Dist. 2000). 

13Complaint, United States v. Allied Waste 

Industries, Inc. and Republic Services, Inc., Case 

No. 1:08 CV02076 (D.C. Dist. 2008) at 20. 

14 Id. 

15Final Judgment, United States v. Allied Waste 

Industries, Inc. and Republic Services, Inc., Case 

No. 1:08 CV2076 (D.C. Dist. 2008) at XII. 

DOJ has relied on various forms of 

behavioral relief in addition to 

divestiture of assets in order to ensure 

that mergers between MSW companies 

do not harm competition.8 If DOJ has 

changed its enforcement policy on 

waste services mergers it bears an 

obligation to disclose the reasons for 

those changes, so that the court can 

determine whether entry of the PFJ is in 

the public interest. 

For example, the 2000 Allied/ 

Republic merger Final Judgment 

required modification of commercial 

waste hauling contracts to limit contract 

durations and the availability of 

liquidated damages by the merging 

firms. As described below, initial 

contracts were limited to two years, 

with renewal contracts limited to one.9

Although included as a key component 

of the 2000 Allied/Republic decree, 

contract revision requirements are 

noticeably absent from the PFJ in this 

case. 

Second, the PFJ permits Allied to 

reacquire assets it was required to divest 

as a condition of previous final 

judgments (‘‘FJs’’). The Allied/BFI 

merger in 1999 resulted in Allied being 

ordered to divest the Newnan Transfer 

Station, which was purchased by 

Republic.10 As a result of the Allied/ 

Republic merger, the transfer station 

will once again be owned by Allied, in 

contravention of the FJ. The DOJ has 

consented to the reacquisition because 

the ‘‘focus of the Newnan Transfer 

Station changed under Republic 

ownership,’’ other transfer stations 

accept waste that previously went to 

Newnan, and because the transfer 

station ‘‘competes much less directly 

with other disposal facilities in the 

Atlanta area.’’ 11 Regardless of the 

impact of the shift in ownership on the 

status of the previously divested asset, 

permitting Allied to reacquire assets 

previously divested represents a 

departure from previous agreements 

preventing such reacquisitions. 

Third, the PFJ fails to limit the ability 

of the merged firm to use evergreen 

contracts. In past enforcement actions, 

the DOJ has repeatedly acknowledged 

the significance of evergreen contracts 

and the impact of such contracts on 

competitiveness in local waste hauling 

markets. For example, in the 2000 

Republic/Allied merger the DOJ 

articulated the important reasons for 

restricting evergreen contracts: 

[T]he common use of long-term selfrenewing ‘‘evergreen’’ contracts by 

existing commercial waste collection 

firms can leave too few customers 

available to the entrant in a sufficiently 

confined geographic area to create an 

efficient route. These contracts often run 

for several years and frequently have 

high liquidated damage terms which 

make it costly to a customer who wishes 

to change its collection service without 

giving proper notice. When giving 

proper notice, the customer must often 

inform the firm in writing 60 days 

before the contract renews. This time 

period allows the incumbent firm an 

opportunity to react to a prospective 

entrant’s solicitation to that customer. 

The incumbent firm can inquire why 

the customer wishes to change its 

service, and if a prospective entrant has 

offered a lower price, the incumbent can 

lower its price to retain the customer. 

This can result in price discrimination; 

i.e., an incumbent firm can selectively 

(and temporarily) charge unbeatably low 

prices to some customers targeted by 

entrants, a tactic that would strongly 

inhibit a would-be entrant from 

competing for such accounts, which, if 

won, may be unprofitable to serve, and 

would limit its ability to build an 

efficient route. Because of these factors, 

a new entrant may find it difficult to 

compete by offering its services at preentry price levels comparable to the 

incumbent.12

The DOJ also recognizes similar 

concerns in the present case. 

Particularly in the commercial waste 

hauling industry, ‘‘the incumbent’s 

ability to engage in price discrimination 

and enter into long-term contracts with 

collection customers is effective in 

preventing new entrants from winning a 

large enough base of customers to 

achieve efficient routes in sufficient 

time to constrain the post-acquisition 

firm from significantly raising 

prices.’’ 13 Moreover, ‘‘incumbent firms 

frequently use three to five year 

contracts, which may automatically 

renew or contain large liquidated 

damage provisions for contract 

termination.’’ 14

However, despite this clear 

acknowledgement of the serious 

competitive problems posed by longterm commercial waste-hauling 

contracts, the PFJ does not provide a 

remedy. The PFJ fails to require the 

modification of evergreen contracts that 

severely limit customer choice and 

provide formidable barriers to entry for 

potential competitors. As a result, the 

success of other remedies, like asset 

divestitures, is jeopardized, especially 

in markets in which commercial waste 

hauling routes are not being divested. In 

the absence of a reliable customer base 

and without the opportunity to entice 

competitors’ customers to switch firms, 

new competitors will be unable to build 

efficient routes capable of generating a 

profit. These new ‘‘competitors’’ will be 

quickly precluded from providing any 

meaningful competition. 

In previous waste hauling merger 

cases, the final judgments have included 

provisions limiting both the length of 

contracts by merging firms for 

commercial waste collection services 

and the circumstances under which the 

contracts renew. For example, in the 

2000 Allied/Republic merger, the FJ 

required that commercial waste hauling 

contracts be revised to adhere to strict 

limits.15 New contracts were limited to 

two years, and renewal contracts could 

not exceed one year. The FJ also 

attempted to decrease the effectiveness 

of automatic renewal provisions by 

forbidding contracts from requiring 

customers to provide written notice of 

termination more than 30 days before 

the end of the contract term. Liquidated 

damage provisions were also limited to 

no more than three times the customer’s 

average monthly charge during the first 

year, and two times the average monthly 

charge for subsequent years. In order to 

provide relief for existing customers, 

Allied and Republic had to offer the 

revised contract terms to customers who 

previously agreed to ‘‘evergreen’’ 

contracts. 

In this case we recommend adding the 

requirement of modifying the merging 

firms’ current contracts consistent with 

the Allied/Republic matter. The 

customer should be permitted to cancel 

the contract without penalty after one 

year in the case of non-compacting 

container service, and after two years for 

compacting container service; automatic 

renewal provisions should be prohibited 

except if the customer’s express written 

agreement is secured; liquidated 

damages should not exceed charges for 

the last three months in cases where 

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16Competitive Impact Statement at 25. 

17Raymond James, Landfill Pricing Power, Waste 

Business Journal, Landfill Data Bases (2003). 

18 Ilan Brat, Garbage Haulers Hoist Prices: Truce 

Allows Waste Management, Allied and Republic to 

Push Higher, Wall Street Journal (Sept 18, 2008). 

19The increase in consolidation of waste hauling 

firms was aided by a sharp decrease in the number 

of functioning landfills from 7900 in 1989 to 2142 

they would apply; escalator charges 

should be barred unless the specific 

basis of the calculation is based upon an 

independent third party’s index, clearly 

stated in the contract, and shown in the 

bill as a separate line; and any escalator 

must also operate reciprocally when the 

index declines as when it increases. 

VI. The Remedies in the PFJ Are 

Internally Inconsistent and the PFJ 

Should Be Modified To Require 

Divestiture of Airspace Rights and 

Restrictions on the Sales of the Assets 

in all Markets 

The PFJ identifies similar threats to 

competition due to increased 

concentration in 15 markets. In each 

affected market recognized in the PFJ, 

initially high concentration levels are 

exacerbated by further consolidation by 

Allied/Republic. In the majority of 

markets, the resulting Allied/Republic 

market presence will be at least 50 

percent, with no more than three 

significant competitors. However, the 

PFJ does not respond to similar market 

concentration problems with similar 

remedies. Despite the consistency of 

prevailing market conditions cited in 

the PFJ, the remedies vary widely from 

market to market. 

For example, the PFJ provides for the 

divestiture of airspace disposal rights, or 

landfill space, in several local markets, 

but requires that such rights remain 

with the acquirer for varying durations 

and upon varying terms. Airspace 

disposal rights are to be divested only 

in Houston, Texas, Northwest Indiana, 

and Philadelphia, Pennsylvania, and not 

in any of the other markets addressed in 

the PFJ. Although the PFJ allows for a 

10-year contract in Houston, the Indiana 

and Philadelphia contracts extend for 

only two years and 18 months, 

respectively. Neither the Competitive 

Impact Statement nor the PFJ offer an 

explanation as to why a lengthy contract 

is appropriate in one market, but 

contracts of only minimal duration are 

acceptable in the others. Moreover, no 

explanations are offered as to why 

airspace disposal rights are an 

unnecessary remedy in other markets. 

Although the lengthy contract required 

in Houston may provide disposal rights 

of a sufficient duration to support a 

purchaser’s needs, given that no 

landfills are to be divested in either 

Indiana or Philadelphia, minor 

provisions granting short-term airspace 

disposal rights contracts to purchasers 

are likely to be insufficient to address 

their disposal needs in any meaningful 

way. 

Airpace rights are crucial to the 

success of the PFJ in restoring 

competition. We believe the PFJ should 

be modified to confer upon independent 

haulers, namely those without their own 

landfill assets, the legal right to acquire 

15-year contracts for space in Republic/ 

Allied landfills in all markets that are 

highly concentrated under the Merger 

Guidelines, or at least the 15 markets 

that are the subject of the PFJ. These 

independent haulers should be given 

the right to secure access nondiscriminatorily at the same price that 

the companies’ corporate headquarters 

have internally billed their divisions, 

and up to 150% of the volumes the 

independent hauler has averaged for the 

past five years. To insure nondiscriminatory treatment, Attachment A 

sets forth proposed terms. 

In the alternative, in the event 

airspace remedies are not afforded in all 

overlapping markets that the DOJ 

Merger Guidelines predict will result in 

the acquisition of market power, at the 

very least those markets identified by 

the PFJ as possessing those impacts 

should be provided with an airspace 

remedy. If not, in the alternative, the 

three markets that the PFJ does provide 

some airspace rights should be 

enhanced to include the essential type 

of protections set forth in Attachment A. 

For without specific and enforceable 

protections against discriminatory 

conduct, such as subjecting the trucks of 

the independent haulers with these 

contracts to long waits at the landfill, 

the right will be eviscerated in practice. 

Ironically, this is exactly what was done 

to Republic when it purchased similar 

rights to the 1998–99 merger spinoffs in 

Florida without anti-discriminatory 

protections. 

Similarly, the PFJ restricts the sales of 

the divested assets so that all the assets 

are offered for sale individually. 

However, this restriction is imposed in 

only four markets: Atlanta, Georgia; 

Cleveland, Ohio; Philadelphia, 

Pennsylvania and Fort Worth, Texas. 

The DOJ explains that the restrictions in 

those markets operate to increase the 

pool of potential bidders.16 In order to 

encourage bidding from local and 

regional firms who may not be 

interested in or capable of purchasing a 

large group of divestiture assets, the DOJ 

requires that certain divestiture assets in 

certain markets be offered for separate 

purchase. However, the DOJ fails to 

indicate why assets in the four markets 

selected for individual sale are uniquely 

well-suited to be packaged 

independently. The choice to restrict 

the sale of assets in certain markets with 

the idea of encouraging purchase by 

local or regional firms is particularly 

significant given the extreme levels of 

concentration in all of the markets 

addressed in the PFJ. We believe that 

the goal of encouraging new entrants in 

the commercial waste hauling industry 

will be better served by requiring the 

divested assets in each individual 

market to be offered for sale 

individually rather than in a package. 

VII. The PFJ Should be Modified to 

Prevent Divestiture to Other Members 

of the Waste Oligopoly and Provide for 

Nondiscriminatory Access 

We believe that the merger ought not 

to have been approved in the first 

instance. If it is approved nonetheless, 

we ask that eligible buyers be restricted, 

just as the PFJ attempts to do in four 

markets (Atlanta, Cleveland, 

Philadelphia and Fort Worth), but does 

so with such imprecision as to be 

marginally useful even there. 

The waste hauling industry currently 

functions as an oligopoly, with only two 

or sometimes three national or regional 

companies vertically integrated into 

landfill competing in a given local 

market: Waste Management, Allied, 

Republic, BFI, and Waste Connections. 

This extreme level of concentration has 

allowed the top companies to 

continually and inexorably increase 

their control of crucial waste hauling 

assets. For example, the three largest 

waste hauling companies controlled 68 

percent of landfill space in 2004, up 

from 35 percent in 1994.17 The 

consolidation of the waste hauling 

industry has not escaped public notice, 

as an article in the Wall Street Journal 

recently noted: 

‘‘The country’s three largest garbage 

haulers have been steadily raising prices 

despite the slowing economy. And with 

a major buyout among them looming, 

prices are likely to continue their climb. 

‘‘The increases are a break from the 

recent past, and follow a strategy shift 

in the wake of the industry’s 1990s 

consolidation. They also followed some 

blunt, public suggestions about pricing 

by the companies’ top executives * * * 

‘‘Another big merger among the waste 

giants could spur ever higher contract 

prices, say industry observers. The big 

three trash companies already control 

about two-thirds of the landfill 

business.’’ 18

While alluding to the dramatic 

consolidation of waste hauling 

companies during the 1990s,19 the 

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Federal Register / Vol. 74, No. 114 / Tuesday, June 16, 2009 / Notices 28541 

in 2001. See Ralph E. Townsend and Francis 

Ackerman, An Analysis of Competition in 

Collection and Disposal of Solid Waste in Maine, 

19, Dec. 31, 2002, available at http:// 

www.maine.gov/ag/dynld/documents/ 

Solid_Waste_Report.pdf. 

20Hold Separate Stipulation, U.S. v. USA Waste, 

Case No. 98CV1616 (N.D. Ohio, July 23, 1998); Hold 

Separate Stipulation, U.S. v. Allied Waste, Case No. 

99CV07962 (D.D.C. July 20, 1999); Hold Separate 

Stipulation, USA v. Waste Management, Case No. 

98CV7168 (E.D.N.Y. February 2, 1999). 

In Waste Management’s 1999 acquisition of 

Eastern Environmental Services, Allied attempted 

to purchase a number of Waste Management 

divestiture assets, but J. Robert Kramer, chief of the 

Justice Department’s Litigation II section, rejected 

these sales to another an oligopoly member, ‘‘[s]uch 

a sale, we concluded, would raise serious 

competitive concerns in waste collection or 

disposal or both in virtually all the markets for 

which the judgment has ordered relief.’’ Bob 

Brown, DOJ Letter Squashed Allied Deal, Waste 

News.com (May 31, 1999). 

21On February 9, 2009, Waste Connections, the 

fourth largest waste company nationally, 

announced an agreement with Republic to purchase 

$110 million in divestiture assets across seven 

markets required by DOJ as a part of the Republic 

and Allied merger requirements. This is particularly 

troubling given that if this merger is to be approved, 

Waste Connections will become the third largest 

waste company nationally and a large member of 

the waste oligopoly effectively having the ability to 

maintain anticompetitive market concentration and 

behavior. 

22Proposed Final Judgment at paragraph 48. 

23Bob Brown, WMI Raises Tip Fees, Waste News 

(Mar 1, 1999). 

24Examples of markets exhibiting extreme levels 

of concentration that are likely to be negatively 

impacted by the Allied/Republic merger include: 

Lafayette, Elkhart, and Terra Haute, Indiana: 

Mansfield, Ohio; and Saginaw, Grand Rapids, and 

Kalamazoo, Michigan. 25The Center for a Competitive Waste Industry, 

Projected Impacts on Competition from the Merger 

of Republic Services and Allied Waste (Nov. 14, 

2008). 

article also highlights the current levels 

of consolidation and the role of Allied 

and Republic in the waste hauling 

oligopoly. The merger between Allied 

and Republic will reduce the big three 

waste hauling companies to two, 

drawing the wave of consolidations 

begun in the 1990s to a near close. As 

the Wall Street Journal article notes, the 

current conditions in the waste hauling 

industry have already allowed the three 

largest firms to raise prices. In the 

absence of sufficient safeguards to 

protect and promote competition in 

local markets, the ability of the new big 

to firms to control prices may continue 

to increase dramatically. 

In past enforcement actions, the DOJ 

has agreed that sales should be barred 

to the other top three firms in this 

market.20 But even selling assets to the 

fourth largest competitor in a market, 

will effectively allow the fourth player 

to become number three immediately 

after a merger of two of the top firms, 

as the current case demonstrates.21 Most 

divested assets in this industry are too 

expensive to be acquired by 

independent haulers and smaller sized 

firms who do not have the capital or the 

resources to purchase the assets as a 

package. 

Moreover, the PFJ limits itself to 

divestiture of assets and does not 

include mechanisms for nondiscriminatory access to landfill 

disposal and airspace rights. Nondiscriminatory access would require, for 

example, a landfill owner to sell 

disposal rights to an independent hauler 

at the same rate it charges its local 

subsidiary, or providing equal access to 

landfills without ability to incumbent 

firms to discriminate. The PFJ makes 

provisions for the divestiture of landfills 

and landfill rights, transfer stations, 

commercial hauling routes, and limited 

airspace disposal rights in the affected 

markets. As the PFJ notes, a new entrant 

to commercial waste collection ‘‘cannot 

provide a significant competitive 

constraint on the prices charged by 

market incumbents until it achieves 

minimum efficient scale and operating 

efficiencies comparable to existing 

firms.’’ 22

These divestitures will not be 

effective without providing 

nondiscriminatory access to landfills. 

Given the current and widespread 

oligopoly in commercial waste hauling, 

firms in a position to purchase divested 

assets will likely either be existing 

members of the oligopoly or small local 

or regional firms in need of further 

assistance in order to be competitive. 

Non-discriminatory access is necessary 

to allow independent and smaller waste 

firms to compete in an increasingly 

concentrated market of oligopolies. In 

highly concentrated markets, 

oligopolists have the ability to control 

prices requiring smaller firms to pay 

higher prices to even attempt to 

compete, which are eventually passed 

on to the consumer. This is evidenced 

by the ‘‘eye-popping spot market price 

hikes’’ averaged at 89% immediately 

after the DOJ approved the USA–Waste/ 

Waste Management merger in 1999.23 In 

any instance, divestiture of assets alone 

is unlikely to fully restore competition 

without additional mechanisms to 

ensure their enforcement. 

We recommend that the PFJ be 

modified to limit the sales of assets to 

the the top five municipal solid waste 

companies, namely, Waste Management, 

Republic Services, Veolea 

Environmental Services, Waste 

Connections and BFI Canada in order to 

reduce the risk of divestitures becoming 

little more than a game of musical chairs 

among other oligopoly members instead 

of a measure with any chance of 

restoring competition. In the event that 

independent haulers without their own 

disposal facilities are unable to afford 

certain divested assets, they can be sold 

the hauling assets and given the right to 

long-term contracts for airspace in the 

merged companies’ landfills at the same 

price that the local subsidiary is billed 

by its parent. This will dissuade 

anticompetitive concentration in 

localized markets and permit more 

access and new entry allowing for 

competitive pricing of disposal and 

hauling services, and ultimately 

improve price and service to the 

consumer. Finally, we recommend that 

independent haulers be given 

nondiscriminatory access to landfills. 

VIII. The PFJ Fails To Address 

Concentration in the Majority of 

Affected Markets 

The PFJ includes remedies for many 

markets, but fails to include the vast 

majority of affected markets. The PFJ 

requires a combination of landfills and 

landfill disposal rights to be divested in 

11 markets, but fails to require 

divestiture in other markets that have an 

equal or greater level of concentration. 

For example, the complaint identified 

Fort Worth, Texas and Cleveland, Ohio, 

with premerger HHIs of 2267 and 1928 

respectively, as requiring remedial 

measures. Although the DOJ Merger 

Guidelines generally consider a market 

with an HHI greater than 1800 to be 

highly concentrated, in this case the 

DOJ ignores several markets with an 

HHI for waste disposal in tons per day 

in excess of 4800. The PFJ also fails to 

secure relief in dozens of markets with 

HHIs in excess of 2500, which are likely 

to suffer adverse effects from the further 

consolidation of commercial waste 

hauling services.24

In an independent analysis of the 

impact of this merger, the Center for a 

Competitive Waste Industry identified 

at least 78 separate highly-concentrated 

geographic markets in which this 

merger will cause significant and 

sustained competitive harm and 

substantial increases to Republic’s 

market power.25 Additionally, it found 

at least 46 of these markets will become 

so concentrated that they result in postmerger HHIs of more than 2500. 

Moreover, the PFJ includes remedies 

in markets in California, Colorado, 

Georgia, Indiana, Kentucky, Michigan, 

Missouri, North Carolina, South 

Carolina, Ohio, Pennsylvania, and 

Texas, but Illinois is noticeably absent 

from the list. The DOJ does not seek 

divestitures in any market in Illinois, 

despite the State having six markets 

exhibiting extreme levels of 

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28542 Federal Register / Vol. 74, No. 114 / Tuesday, June 16, 2009 / Notices 

26See Attachment B for a table of the pre and 

post-merger landfill HHI concentration by state in 

the specific metropolitan areas where high levels 

were found based upon tons per day disposed of in 

the market in 2007, and also the remaining life that 

year. 

concentration, and four with post 

merger HHI’s greater than 4000.26

IX. Proposed Remedies 

The PFJ falls short of adequately 

remedying the anticompetitive problems 

at issues here. 

• First and foremost, if this merger— 

which creates a duopoly with 

overwhelming market power—is to be 

allowed, the landfill asset divestiture 

must be eschewed in overlapping 

markets, and replaced with the right of 

independent haulers to fairly contract 

for air space in the merging firms’ 

landfills. The DOJ recognized this 

alternative, but only did so in three 

markets and in such a crabbed fashion 

that their effective enforcement would 

be dysfunctional. Properly structured 

for fair application, the air space remedy 

should be offered to independent 

haulers in every highly concentrated 

market. 

• Second, due to the already highly 

concentrated market, and based on past 

evidence of intentional consolidation, 

where asset divestitures are nonetheless 

utilized, the largest five vertically 

integrated waste firms, which are least 

inclined to pursue a competitive model, 

should be ineligible to buy those assets. 

• Third, evergreen contracts, as they 

once had been, should be sharply 

curtailed to minimize their indisputably 

anticompetitive effects in those markets. 

• Finally, because of the failure of 

past divestitures in this industry, and 

the history of non-compliance of 

consent decrees by the merging parties, 

a monitor, paid by the Department and 

States with fees levied on the applicant 

should be established to enforce the 

terms of the final order and serve for a 

term of not less 10 years. 

Overall, we believe the remedies 

should be strengthened in the following 

fashion: 

• There should be divestiture of 

assets in both the SCCWC and MSW 

disposal markets in local affected 

geographic areas not named in the PFJ. 

• Because these markets consist of 

oligopolies’ with lock holds on local 

landfills, which create bottlenecks that 

impede new entry, divested assets 

should be sold to independent haulers 

with the right to contract for airspace in 

the merger companies’ landfills. 

• Use of the merged companies’ 

evergreen contracts ought to be 

discontinued, especially in their term 

lengths, renewal provisions, liquidated 

damages, and escalator clauses. 

• There should be the appointment of 

a monitor trustee to ensure compliance 

with the final judgment. 

VIII. Conclusion 

After investigation lasting over half a 

year of a merger posing an 

unprecedented level of concentration in 

numerous local markets in the United 

States, the DOJ chose modest 

divestitures and limited airspace 

contracting in a small number of 

affected geographic regions. In doing so 

it ignored the very fact of this merger, 

in which yesterday’s white knight now 

stands before the DOJ as today’s 

ultimate consolidator, proves that, in 

this industry, asset divestitures do not 

work in almost all cases. 

This PFJ will not fully restore 

competition and is inconsistent with 

past DOJ waste enforcement actions. But 

more important, the PFJ fails to address 

the significant loss of competition due 

to the inability of independent haulers 

to compete with the highly concentrated 

waste firms in these local markets and 

the oppressive evergreen contracts with 

the merging companies’ customers. The 

DOJ action permits a merger that poses 

a significant threat of causing 

substantial harm to consumers. 

Thus, we believe the PFJ should be 

rejected. If the court however accepts 

the PFJ, we strongly urge it to treat the 

PFJ as an interim remedy and expressly 

leave open the possibility of 

supplementing the PFJ with additional 

remedies to address these competitive 

concerns. 

Respectfully Submitted, 

/s/ lllllllllllllllll

David A. Balto, 

Attorney at Law, 1350 I Street, NW., 

Suite 850, Washington, DC 20005 

Peter Anderson, 

RECYCLEWORLDS CONSULTING, 313 

Price Place, Suite 14, Madison, WI 

53705 

Attachment A 

Long Term Air Space Contract 

1. Eligible Buyers. Any municipal 

solid waste or construction and 

demolition debris service provider, 

whether publicly or privately owned, 

which serves the local market in the 

year in which the HSR notification was 

filed, and does not in that year have its 

own landfill assets, is eligible to 

purchase airspace as provided here. 

2. Maximum Volume. Eligible buyers 

may contract for a maximum volume of 

airspace at any landfill owned by the 

merged company and previously used 

by it to serve the market, in amount up 

to 150% of the tons the buyer collected 

from its customers, in the year in which 

it disposed of the greatest quantity 

during the prior five years, multiplied 

by 15 years. The eligible buyer may 

dispose of up to one-tenth of the 

maximum volume of waste in any year 

during the length of the contract, but is 

not required to dispose of any minimum 

quantity. Volume shall be converted 

into weight based upon the density of 

waste in the landfill in the year the HSR 

notification is filed. 

3. Price. The price for disposal in that 

airspace under the contract may not 

exceed that which had been internally 

booked by the parent firm that owned 

the landfill prior to the merger and 

charged to its district unit, adjusted 

annually for inflation by the producer 

price index. 

4. Length of Contract. The contract 

shall be for not less than 15 years. 

5. Purchase Period. Each State 

Attorney General in the States with 

local markets affected by this provision 

shall timely notify eligible buyers about 

the opportunity for them to purchase 

airspace rights. Eligible buyers have 6 

months from entry of the settlement or 

court order to request in writing from 

the merged company, with copies to the 

DOJ and State Attorney General, for a 

contract for airspace as provided here. If 

the eligible buyer has a contract for 

airspace at a landfill that is closed prior 

to the end of the 15-year period, the 

merged company shall permit the buyer 

to contractually substitute airspace at 

another of the merged company’s 

landfills in the market of its choosing. 

6. Non-Discrimination. (a) 

Inspections. If the seller of landfill 

airspace conducts inspections of 

incoming loads to its landfills at which 

airspace has been contracted for the 

purpose of rejecting certain loads, it 

must do so on a non-discriminatory 

basis as between its trucks with and 

those with airspace contracts. The seller 

must also maintain publicly available 

documentation to show that loads 

selected for inspection, and the type and 

severity of violations used to justify 

rejecting loads, are done on a nondiscriminatory basis, including an 

accurate video record of all inspections 

and a tabulation of the number of truck 

loads dumping at the landfill by waste 

firm and the number of loads rejected, 

along with the reasons why. (b) Queues. 

Gate queues shall be nondiscriminatory. If an airspace buyer 

claims that its trucks are kept on a 

longer queue than the seller’s, the seller 

will visually record the queue and make 

tapes publicly available. (c) Arbitration. 

The buyer may take claims of 

discriminatory treatment to arbitration. 

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If the seller loses the arbitration, he or 

she must pay the costs of arbitration, 

including the buyer’s legal fees. A 

record of all complaints and arbitrations 

will be filed with the State Attorney 

General. 

7. Succession or Sale. Landfill 

airspace contracts shall transfer to 

successor companies. Holders of landfill 

airspace contracts may sell their 

contract to another firm, if that other 

firm does not own landfill assets. 

8. Dispute Resolution. If either the 

merged company or eligible buyer has 

any other dispute with the other that is 

not finally resolved under ¶6, DOJ will 

delegate the arbitration resolution 

process to the applicable State Attorney 

General, who may either, after hearing 

from both sides, issue a final decision, 

or submit the issue on behalf of the 

parties for final resolution to arbitration. 

BILLING CODE P 


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28544 Federal Register / Vol. 74, No. 114 / Tuesday, June 16, 2009 / Notices 

BILLING CODE C 

January 16, 2009 

Via regular and certified mail 

Ms. Maribeth Petrizzi, Chief, Litigation 

II Section, Antitrust Division, 

United States Department of Justice, 

1401 H Street, NW, Suite 3000, 

Washington, D.C. 20530 

Re: Comments on Proposed Final 

Judgment in United States * * * 

Commonwealth of Pennsylvania, et 

al. v. Republic Services, Inc., and 

Allied Waste Industries, Inc., Case: 

1:08–cv–02076 (D. D.C. December 3, 

2008) 

Dear Ms. Petrizzi: We represent the 

Pennsylvania Independent Waste 

Haulers Association (‘‘PIWHA’’) and on 

its behalf submit the following 

comments regarding the Proposed Final 

Judgment (‘‘PFJ’’) in response to the 

Competitive Impact Statement filed by 

the United States Department of Justice 

on December 3, 2008, in the above 

referenced matter. 

PIWHA is a trade association of over 

one hundred members established 

sixteen years ago for the purpose of 

promoting the survival of smaller, 

independent business owners in the 

increasingly concentrated waste 

industry. We respectfully request that 

our comments be assessed in the context 

of this purpose. 

Summary of Comments 

As to the Philadelphia area, the PFJ 

should require the divestiture of the 

Quickway transfer station (‘‘Quickway’’) 

and the T.R.C. transfer station (‘‘TRC’’), 

or at least one of them, instead of the 

Girard Point transfer station (Girard 

Point’’) and the Philadelphia Recycling 

and Transfer Station (‘‘58th Street’’). 

The PFJ should require that the divested 

facilities be sold to small, independent 

acquirers, if possible, and should permit 

the sale of each facility to be made to 

separate acquirers. The PFJ should 

permit seller financing and the 

Government should encourage such 

financing for smaller acquirers, 

provided that they are creditworthy. 

The PFJ should require the defendants 

to offer three (3) year disposal contracts 

to all waste haulers, not just to larger 

haulers as is the case now. 

Comments 

A. Hauling services consumers would 

be better served if the PFJ were to 

require different transfer stations to be 

divested in the Philadelphia area. 

The PFJ requires divestiture of the 

following transfer stations: (1) Republic 

owned Girard Point; and (2) Allied 

owned 58th Street. The PFJ should, 

instead, require divestiture of Quickway 


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and TRC, or at least one of the latter, for 

two reasons. 

First, both Girard Point and 58th 

Street, PIWHA contends, are 

substantially less financially viable than 

Quickway and TRC. Financial viability, 

of course, should be a significant factor 

in assessing the likelihood of the long 

term successful operation of a divested 

facility. Certainly PIWHA does not have 

access to the defendants’ financial data, 

but marginal profitability of the Girard 

Point and 58th Street facilities has been 

the distinct impression of various 

PIWHA members who are fully familiar 

with the eastern Pennsylvania waste 

hauling/disposal market. 

The accuracy of this impression is 

corroborated by PIWHA’s learning, as it 

reported to the Government while the 

investigation of the merger was in 

progress, that the defendants would be 

willing to divest Girard Point and 58th 

Street in order to receive Government 

approval of their then proposed merger. 

It is further corroborated by the fact, as 

PIWHA understands it, that these two 

facilities were/have been unsuccessfully 

offered for sale for a number of years. 

The inability of the defendants to sell 

the facilities no doubt was due to the 

limited size (and, accordingly, limited 

profitability) of the two facilities and the 

impossibility/impracticality of physical 

expansion. 

Secondly, there is a significant issue 

with regard to the location of the 

facilities. The 58th Street and the Girard 

Point facilities are substantially further 

geographically from haulers servicing 

Bucks and Montgomery counties than 

Quickway and TRC and, accordingly, 

are more costly for those haulers to use. 

Please see Appendices A and B attached 

hereto. Further, the 58th Street and the 

Girard Point facilities are significantly 

more difficult in terms of ingress and 

egress, which results in additional 

increased cost for use of these facilities. 

In this connection, it is PIWHA’s 

position that the Government should 

take into account the anticompetitive 

effects the increased concentration of 

ownership of disposal facilities in 

Philadelphia County will have upon 

consumers of hauling services in areas 

close to Philadelphia but located in the 

contiguous northern counties of Bucks 

and Montgomery and revise its 

divestiture order accordingly. In 

PIWHA’s opinion this would require the 

divestiture of Quickway and T.R.C., or 

at least one of them. 

With the intense development of 

Bucks and Montgomery counties over 

the last several decades and the 

migration of population from 

Philadelphia to those counties, it would 

seem extremely likely that a massive 

number of ‘‘suburban’’ hauling services 

consumers could be adversely affected 

by the increased concentration of 

disposal facilities located in the more 

northern part of Philadelphia County 

(Quickway and TRC). Quickway and 

TRC are the facilities which haulers in 

Bucks and Montgomery counties are far 

more likely to utilize. Assuming 

divesture as required by the PFJ, the 

increased prices haulers are likely to 

pay for use of Quickway and TRC will, 

in all likelihood, be directly passed on 

to the hauling service consumers in 

Bucks and Montgomery counties. 

The relative number of suburban 

hauling services consumers who could 

be adversely impacted is magnified by 

the fact that residential consumers in 

the suburbs largely use private haulers, 

unlike in Philadelphia, where the 

municipal government collects 

residential waste. 

B. The PFJ should require that the 

divested disposal facilities be sold to 

small, independent acquirers, if 

possible, and not sold to large, national 

or regional waste industry firms 

PIWHA contends that wherever 

reasonable from the perspective of 

serving the public interest, efforts 

should be undertaken by the 

Government to encourage 

deconcentration in the waste industry, 

which has for years experienced rapidly 

accelerating market concentration. In 

this regard, the PFJ should require that 

the defendants’ disposal assets which 

are to be divested be sold, if possible, 

to smaller, independent, non-publicly 

traded firms, with demonstrated ability 

to operate the acquired facilities 

successfully over the long term. 

C. The PFJ should be revised to allow 

sale of the two Philadelphia disposal 

facilities to be made to separate 

acquirers, without obtaining prior 

Governmental written consent, as the 

PFJ currently requires 

Should the Government concur in 

PIWHA’s position that preference 

should be given to small independent 

acquirers, achievement of that goal 

would clearly be facilitated by allowing, 

perhaps requiring, the two facilities in 

the Philadelphia area which are to be 

divested to be sold separately to two 

different acquirers. 

The possibility of the sale of the two 

divested Philadelphia County disposal 

facilities to separate acquirers would, of 

course, necessitate revision of the PFJ 

provision at Section II. H. 1. j. (p. 8–9) 

which requires use of the defendants’ 

landfill in York, Pennsylvania be made 

available ‘‘[a]t the option of the Acquirer 

[singular] * * * at rates to be 

negotiated.’’ In any event, PIWHA 

contends that the grant of this option is 

meaningless in view of the location of 

the landfill (a three hour, one way drive 

from Philadelphia) and access being 

dependent upon the parties agreeing 

upon price. 

D. The PFJ should be revised to permit 

seller financing of the purchase of 

divested facilities in this case and the 

Government should encourage seller 

financing for small, independent 

creditworthy acquirers 

PIWHA is aware of the inclination of 

the Government to disfavor seller 

financing of the purchase of divested 

assets, as stated in the Antitrust 

Division Policy Guide to Merger 

Remedies (‘‘Guide’’) (October 2004) 

Section IV. G. (p. 35–36). The current 

severe contraction of the availability of 

credit the country is experiencing, 

however, warrants the Government’s reevaluating its stated position on the 

issue of seller financing, particularly if 

the sale of the divestment assets to 

small, independent acquirers is a 

desirable goal, as PIWHA strongly 

believes it is. The defendants are multibillion dollar companies and no doubt 

can well afford to extend financing to 

buyers of their facilities. All of the 

‘‘potential problems’’ identified in the 

Guide regarding seller financing would 

appear to be capable of being effectively 

addressed. We discuss each of these 

‘‘potential problems’’ enumerated in the 

Guide immediately below. 

The problem of the seller retaining 

‘‘some partial control over the [divested] 

assets’’ could be resolved by the seller’s 

security interest (mortgage instrument) 

being so crafted as to deny the seller 

authority to exercise control over the 

buyer and that the seller’s sole right 

would be limited to receiving 

installment payments. In the event of 

default and foreclosure, the Consent 

Decree could preclude the seller from 

regaining ownership and require that 

the facility be sold to a third party. 

The Guide’s concern regarding 

impeding the seller’s ‘‘incentive to 

compete’’ with the divested facility 

because of the seller’s fear of 

jeopardizing the purchaser’s ability to 

repay, would seem unfounded. It would 

seem unlikely that the seller in the 

present matter would forego profit 

opportunities to assure full repayment 

of a relatively small debt when it retains 

the ability to resell the facility in the 

event of default by the buyer. As to the 

potential concern of the buyer’s possible 

disinclination to compete vigorously 

because it ‘‘may cause the seller to 

exercise various rights under the loan,’’ 

this cause for concern evaporates if the 

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seller’s sole remedy is foreclosure and 

sale if the buyer defaults in repaying the 

loan. 

The Guide’s expressed concern 

regarding the seller’s having ‘‘some legal 

claim on the divestiture assets in the 

event the purchaser goes bankrupt’’ 

would also be effectively addressed by 

the Consent Decree’s limiting the 

seller’s remedy for the buyer’s default to 

sale of the divested asset to a third 

party. It is difficult to imagine that a 

bankruptcy court would ignore this 

judicial mandate. 

As to the concern that the ‘‘ongoing 

relationship’’ between the seller and 

buyer could be used as ‘‘a conduit for 

exchanging competitively sensitive 

information,’’: again, the cause for this 

concern does not exist if the only 

relationship between the parties is the 

duty of the buyer to make installment 

payments to the seller in satisfaction of 

the loan. 

As to concerns which the buyer’s 

need for seller financing might raise 

regarding the buyer’s financial viability, 

we again submit that in the present 

financial credit market environment this 

should not be considered a poor 

reflection upon a prospective buyer of 

divested facilities. 

In summary as to the issue of seller 

financing, it is PIWHA’s position that, 

in the language of the Guide, ‘‘none of 

the possible concerns discussed * * * 

exist’’ and that current conditions in the 

financial markets warrant allowing 

seller financing. 

E. The PFJ should address the issue of 

the availability to small haulers of three 

year disposal contracts and require the 

defendants to offer such contracts to all 

waste haulers 

During the course of the 

Government’s investigation of the 

proposed merger of the defendants, 

PIWHA urged that the defendants be 

required to offer three year disposal 

contracts to all haulers, not just the 

larger ones as is currently the case. The 

PFJ is silent as to this issue. It is 

PIWHA’s experience that large, 

vertically integrated waste industry 

firms are generally unwilling to offer 

smaller haulers disposal contracts for a 

term exceeding one year. This practice 

prevents smaller haulers from 

submitting bids on longer term hauling 

contracts required by local governments, 

school districts and other large 

organizations. During these bidding 

processes, the bidders must certify that 

it has a three year disposal contract at 

an authorized facility. To require the 

offering of longer term disposal 

contracts to smaller haulers as well as 

larger haulers would certainly stimulate 

competition for the business of large 

customers who insist upon longer term 

hauling contracts. 

PIWHA is aware of the Government’s 

hesitancy to seek ‘‘conduct relief’’ in 

Clayton Act Section 7 cases for the 

reasons stated in its 2004 Merger 

Remedies Guide, but PIWHA believes, 

to use the terminology of the Guide at 

Section III. E. (p. 17) that the ‘‘limited 

conduct relief’’ it proposes here will ‘‘be 

useful in [the present case] to help 

perfect structural relief.’’ The 

Government has, in fact, required 

limited conduct relief in a Section 7 

case against these very same defendants, 

United States v. Allied Waste Industries 

Inc., and Republic Services Inc. (D.D.C., 

June 21, 2000) in which the defendants 

had entered into an asset exchange 

agreement. The limited conduct relief 

provided for by the Consent Decree in 

that case was the revision of onerous 

hauling services customer contracts in 

markets where structural relief was 

ordered. 

Certainly, should the offering of three 

year contracts be required, the 

defendants should be permitted to offer 

different prices for different volumes of 

waste disposal. If the volume/price 

offerings of the defendants were 

required to be made publicly available, 

volume/price offerings not made in 

good faith would be easily identified by 

those haulers who were prejudiced and 

reported to the Government for 

appropriate action to assure compliance 

with the Consent Decree. 

Respectfully submitted, 

PENNSYLVANIA INDEPENDENT 

WASTE HAULERS ASSOCIATION 

/s/ lllllllllllllllll

Leonard E. Dimare 

/s/ lllllllllllllllll

Anthony J. Mazullo, Jr. 

February 3, 2009 

Maribeth Petrizzi, Chief, Litigation II 

Section, Antitrust Division, U.S. 

Department of Justice, 1401 H 

Street, Suite 3000, Washington, D.C. 

20530 

RE: United States of America, et al v. 

Republic Services, Inc. and Allied 

Waste Industries, Inc. 

Dear Ms. Petrizzi: On behalf of the 

Cuyhaoga County Solid Waste 

Management District of Cuyahoga 

County, Ohio and the Board of County 

Commissioners of Cuyahoga County, 

Ohio, I am submitting comments 

regarding the draft Proposed Final 

Judgment attached to the Hold Separate 

Stipulation and Order dated December 

3, 2008 in the above referenced case. 

The Cuyahoga County Solid Waste 

Management District was established by 

the Board of County Commissioners of 

Cuyahoga County, Ohio on August 29, 

1988 pursuant to the requirements 

imposed by the State of Ohio in Chapter 

3734 of the Ohio Revised Code. The 

Cuyahoga County Solid Waste 

Management District contains the City 

of Cleveland and 58 suburban 

municipalities, villages and townships, 

with a population totaling 1,393,978. 

The statutory purpose of the District is 

the preparation, adoption, submission 

and implementation of a solid waste 

management plan of the District and the 

subsequent safe and sanitary 

management of all solid waste generated 

with the District. The Plan must provide 

adequate solid waste disposal capacity 

for at least 15 years and present a 

system to reduce, reuse and recycle at 

least 25% of the waste generated in the 

District. 

The Board of Commissioners of the 

Cuyahoga County Solid Waste 

Management District concurs and 

supports the civil antitrust complaint 

filed by the United States and States and 

Commonwealths party to the complaint. 

The Board of Commissioners also 

concurs and supports the remedy stated 

in the Hold Separate Stipulation and 

Order filed with the Court on December 

3, 2008. The Board of Commissioners, 

however, does not concur or support the 

Cleveland, Ohio market remedy Exhibit 

A, Section I, Relevant Hauling Assets 

beginning on page 10. 

The remedy proposed within 

Appendix A fails to provide for 

divestiture of any small container 

commercial waste collection routes in 

the Cleveland, Ohio market area. Waste 

collected on such routes produce the 

volume of waste needed to make the 

sale of the Harvard Road Transfer 

Station and the Oakland Marsh Landfill 

a financially viable transaction 

necessary to attract a qualified buyer. 

The sale of the landfill and transfer 

assets without the sale of collection 

routes is akin to taking delivery of a new 

automobile of which the gasoline tank is 

bone dry. It is unreasonable to expect a 

potential buyer from outside the market 

area to incur the expense of maintaining 

the transfer and disposal assets while 

developing revenue volumes from 

scratch. To achieve a truly competitive 

remedy in the Cleveland, Ohio market 

requires the sale of commercial routes 

along with the transfer station and 

landfill assets. Thus the Board of 

Commissioners urges that sufficient 

small container commercial collection 

routes in the Cleveland, Ohio market 

area be added to the Relevant Hauling 

Assets listed in Section I. 

Additionally, the defendants should 

be prohibited from acquiring additional 

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transfer station assets within Cuyahoga 

County for a multi-year period. We 

understand that the Broadview Heights 

Recycling Center (aka Transfer Station) 

owned by Norton Environmental and 

which is located along Interstate 77 

approximately five miles due south of 

the Harvard Road Transfer Station is for 

sale. If the defendants were allowed to 

purchase the Broadview Heights 

Transfer Station following the sale of 

the Harvard Road Transfer Station, 

without the sale of any commercial 

routes, the defendants would simply reroute its commercial waste to the 

Broadview Heights facility negating any 

attempt by the Court to insure 

competition within the Cleveland, Ohio 

market. 

The Board of Commissioners of the 

Cuyahoga County Solid Waste 

Management District appreciates your 

consideration of the above comments in 

the protection of the public interest. 

Sincerely, 

/s/ lllllllllllllllll

Patrick J. Holland, 

Executive Director 


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[FR Doc. E9–13549 Filed 6–15–09; 8:45 am] 

BILLING CODE C 

DEPARTMENT OF JUSTICE 

National Institute of Corrections 

Solicitation for a Cooperative 

Agreement—Large Jail Administration: 

Training Curriculum Development 

AGENCY: National Institute of 

Corrections, Department of Justice. 

ACTION: Solicitation for a Cooperative 

Agreement. 

SUMMARY: The National Institute of 

Corrections (NIC), Jails Division, is 

seeking applications for the 

development of curricula on the 

administration of large jails (jails with 

1,000 or more beds). The project will be 

for an eighteen-month period and will 

be carried out in conjunction with the 

NIC Jails Division. The awardee will 

work closely with NIC staff on all 

aspects of the project. To be considered, 

applicants must demonstrate, at a 

minimum, (1) in-depth knowledge of 

the purpose, functions, and operational 

complexities of local jails, (2) expertise 

on the key elements in jail 

administration (see ‘‘Supplementary 

Information’’), (3) expertise on the 

implications of jail size for 

implementing these elements, (4) 

experience in developing curriculum, 

based on adult learning principles, and 

(5) extensive experience in working 

with local jails on issues related to 

administration and operations. 

DATES: Applications must be received 

by 4 p.m. (EDT) on July 6, 2009. 

ADDRESSES: Mailed applications must be 

sent to: Director, National Institute of 

Corrections, 320 First Street, NW., Room 

5007, Washington, DC 20534. 

Applicants are encouraged to use 

Federal Express, UPS, or similar service 

to ensure delivery by the due date as 

mail at NIC is sometimes delayed due to 

security screening. 

Applicants who wish to hand-deliver 

their applications should bring them to 


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