[Federal Register: December 17, 2003 (Volume 68, Number 242)]
[Notices]               
[Page 70304-70307]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr17de03-99]                         


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DEPARTMENT OF JUSTICE

Antitrust Division

 
United States and New Jersey v. Waste Management, Inc. and Allied 
Waste Industries, Inc.; Public Comments and Plaintiff's Response

    Notice is hereby given pursuant to section 2(d) of the Antitrust 
Procedures and Penalties Act, 15 U.S.C. 16(d), that the Public Comments 
and Plaintiff's Response thereto have been filed with the United States 
District Court for the District of Columbia in United States and New 
Jersey v. Waste Management, Inc. and Allied Waste Industries, Inc., 
Civil No. 1:03CV01409 (GK).
    On June 27, 2003, the United States and the State of New Jersey 
filed a civil antitrust Complaint alleging that Waste Management's 
acquisition of certain voting securities and waste-hauling and disposal 
assets of Allied would lessen competition substantially in the 
provision of small container commercial waste collection services in 
the areas of Pitkin County, Colorado; Garfield County, Colorado; 
Augusta, Georgia; Myrtle Beach, South Carolina; Morris County, New 
Jersey; and Bergen and Passaic Counties, New Jersey, and in the 
provision of municipal solid waste disposal services in the Bergen and 
Passaic Counties, New Jersey and Tulsa and Muskogee, Oklahoma disposal 
areas, in violation of section 7 of the Clayton Act, 15 U.S.C. 18. The 
proposed Final Judgment, filed at the same time as the Complaint, 
requires, among other things, that defendant Waste Management (1) 
divest small container commercial waste collection assets in the areas 
of Pitkin County, Colorado; Garfield County, Colorado; Augusta, 
Georgia; Myrtle Beach, South Carolina; Morris County, New Jersey; and 
Bergen and Passaic Counties, New Jersey; (2) alter the contracts it 
uses with its existing and new small container commercial waste 
customers in the areas of Augusta, Georgia and Myrtle Beach, South 
Carolina; (3) divest transfer station facilities serving Bergen and 
Passaic Counties, New Jersey; and (4) sell throughput disposal rights 
at a facility serving Bergen and Passaic Counties, New Jersey.
    Public comment was invited within the statutory 60-day comment 
period. The two comments received, and the response thereto, are hereby 
published in the Federal Register and filed with the Court. Copies of 
these are available for inspection at the U.S. Department of Justice, 
Antitrust Division, Suite 215 North, 325 7th Street, NW., Washington, 
DC 20530 (telephone: 202-514-2481) and at the Clerk's Office, United 
States District Court for the District of Columbia, 333 Constitution 
Avenue, NW., Washington, DC 20001.

Dorothy B. Fountain,
Deputy Director of Operations, Antitrust Division.

United States District Court for the District of Columbia

    In the matter of: United States of America, and State of New 
Jersey, Plaintiffs, v. Waste Management, Inc., and Allied Waste 
Industries, Inc., Defendants.
    Case No: 1:03CV01409; Judge: Gladys Kessler, Deck Type: 
Antitrust.

Response of the United States to Public Comments on the Proposed Final 
Judgment

    Pursuant to the Antitrust Procedures and Penalties Act, 15 
U.S.C. 16(b) (``APPA'' or ``Tunney Act''), Plaintiffs United States 
of America (``United States'') hereby files comments received from 
members of the public concerning the proposed Final Judgment in this 
civil antitrust suit and the Response of the United States to those 
comments.

I. Background

    On January 29, 2003, Defendants Waste Management, Inc. (``Waste 
Management'') and Allied Waste Industries, Inc. (``Allied'') entered 
into stock and asset purchase agreements pursuant to which Waste 
Management would acquire certain voting securities and waste-hauling 
and disposal assets of Allied in a number of areas throughout the 
United States. The United States and the State of New Jersey (``New 
Jersey'') filed a civil antitrust Complaint on June 27, 2003, 
seeking to enjoin the proposed acquisition. The Complaint alleged 
that the likely effect of the acquisition would be to lessen 
competition substantially for waste collection and disposal services 
in several markets in violation of section 7 of the Clayton Act. 
This loss of competition would result in consumers paying higher 
prices and receiving fewer services for the collection and disposal 
of waste.
    At the same time the Complaint was filed, the parties also filed 
a Hold Separate Stipulation and Order and a proposed Final Judgment. 
Under the proposed Final Judgment, Waste Management is required 
within 90 days after the filing of the Complaint, or five (5) days 
after notice of the entry of the Final Judgment by the Court, 
whichever is later, to divest, as viable business operations, 
specified waste-hauling and disposal assets. The proposed Final 
Judgment also requires Defendants, within 90 days after approval by 
the New Jersey Department of Environmental Protection of Waste 
Management's request to acquire assets in New Jersey, to divest, as 
viable business operations, certain waste-hauling and disposal 
assets located in New Jersey and New York. In addition to the 
divestitures, the proposed Final Judgment also requires Waste 
Management to comply with certain conditions relating to its 
customer contracts in two identified areas. Under the terms of the 
Hold Separate Stipulation and Order, Waste Management is required to 
take certain steps to ensure that the assets to be divested will be 
preserved and held separate from its other assets and businesses 
pending their divestiture.
    The United States, New Jersey, and the Defendants have 
stipulated that the proposed Final Judgment may be entered after 
compliance with the APPA. In compliance with the APPA, the United 
States filed a Competitive Impact Statement (``CIS'') on July 22, 
2003. Waste Management and Allied filed statements pursuant to 15 
U.S.C. 16(g) on August 4, 2003. A summary of the terms of the 
proposed Final Judgment and CIS were published in the Washington 
Post, a newspaper of general circulation in the District of 
Columbia, for seven days during the period of August 9, 2003, 
through August 15, 2003. The Hold Separate Stipulation and Order, 
proposed Final Judgment, and CIS were published in the Federal 
Register on August 12, 2003, 68 FR 47930 (2003). The 60-day comment 
period commenced on August 15, 2003, and terminated on October 14, 
2003. During the 60-day comment period, the United States received 
two public comments (attached as Appendix A).

II. Response to Public Comments

A. Legal Standard Governing the Court's Public Interest Determination

    Upon the publication of the public comments and this Response, 
the United States will have fully complied with the Tunney Act. 
After receiving the motion of the United States for entry of the 
proposed Final Judgment, the Tunney Act directs the Court to 
determine whether entry of the proposed Final Judgment ``is in the 
public interest.'' 15 U.S.C. 16(e). In making that determination, 
the ``court's function is not to determine whether the resulting 
array of rights and liabilities is one that will best serve society, 
but only to confirm that the resulting settlement is within the 
reaches of the public interest.'' United States v. Western Elec. 
Co., 993 F.2d 1572, 1576 (D.C. Cir.), cert. denied, 510 U.S. 984 
(1993). The Court should evaluate the relief set forth in the 
proposed Final Judgment and should enter the Judgment if it falls 
within the government's ``rather broad discretion to settle with the 
defendant within the reaches of the public interest.'' United States 
v. Microsoft Corp., 56 F.3d 1448, 1461 (D.C. Cir. 1995); accord 
United States v. Associated Milk Producers, 534 F.2d 113, 117-18 
(8th Cir.), cert. denied, 429 U.S. 940 (1976). The Court should 
review the proposed Final Judgment ``in light of the violations 
charged in the complaint and * * * withhold approval only (a) if any 
of the terms appear ambiguous, (b) if the enforcement mechanism is 
inadequate, (c) if third parties will be positively injured, or (d) 
if the decree otherwise makes a `mockery of judicial power.' '' Mass 
Sch. of Law at Andover, Inc. v. United States, 118 F.3d 776, 783 
(D.C. Cir. 1997) (quoting Microsoft, 56 F. 3d at 1462). The Tunney 
Act does not empower the Court to reject the remedies in the 
proposed Final Judgment based on the belief that ``other remedies 
were preferable, '' Microsoft, 56 F.3d at 1460, nor does it give the 
Court authority to impose different terms on the parties. See, e.g., 
United States v.

[[Page 70305]]

American Tel. & Tel. Co., 552 F. Supp. 131, 153 n.95 (D.D.C. 1982), 
aff'd sub nom. Maryland v. United States, 460 U.S. 1001 (1983) 
(mem.); accord H.R. Rep. No. 93-1463, at 8 (1974).

B. Summary of Public Comments and the United States' Responses

    Two individuals expressed their views on the proposed Final 
Judgment. Copies of this response, without the Appendix, are being 
mailed to them. A summary of their comments and the responses of the 
United States are below.
    1. Peter Anderson
    Peter Anderson, writing on behalf of the Center for a 
Competitive Waste Industry, requests data discovered by the United 
States concerning local disposal markets, including the size of the 
municipal solid waste firms in each market, and the ownership and 
maximum daily throughput for transfer stations. Mr. Anderson also 
states that the CIS correctly notes the critical importance of free 
access to disposal capacity on non-discriminatory terms and notes 
that the proposed Final Judgment requires the partial divestiture of 
transfer and disposal assets in New Jersey and Oklahoma.
    The United States appreciates Mr. Anderson's comment on the 
proposed Final Judgment. However, the United States is unable to 
make public the data that it collected on local disposal markets. 
Disclosing such data would require that the United States reveal 
information that was received pursuant to a statute that limits its 
disclosure\1\ or, alternatively, produce sensitive information that 
the United States will not disclose unless required by law or 
necessary to further a legitimate public purpose. The United States 
believes, however, that some of the information requested by Mr. 
Anderson may be available through various public sources, including 
the New Jersey Department of Environmental Protection Web site.
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    \1\ See Hart-Scott-Rodino Antitrust Improvements Act of 1976, 15 
U.S.C. 18a(h); Antitrust Civil Process Act, 15 U.S.C. 1311 et seq.
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    Mr. Anderson is mistaken in stating that the decree requires 
Waste Management to divest transfer or disposal assets in Oklahoma. 
Rather, the Defendants agreed to exclude from the transaction the 
sale of Allied's waste-hauling and disposal assets located in the 
Tulsa and Muskogee, Oklahoma area and, as specified in section XI of 
the proposed Final Judgment, Waste Management further agreed to 
provide the United States with notice of any future acquisition of 
disposal assets in the Tulsa and Muskogee, Oklahoma area.
    2. Gregory Neppl
    Gregory Neppl filed a comment setting forth his understanding of 
the purpose and effect of Section XIII of the proposed Final 
Judgment relating to ``Revisions to Contracts.'' Mr. Neppl states 
that he understands proposed Final Judgment precludes Waste 
Management, effective June 27, 2003, from enforcing any contract 
term inconsistent with those set forth in section XIII.B. and 
affecting its commercial waste collection customers in the Augusta, 
Georgia and Myrtle Beach, South Carolina areas. Mr. Neppl further 
notes that he understands that Waste Management must also offer new 
contracts that conform with the terms set forth in the proposed 
Final Judgment to its new and existing customers subject to the 
deadlines set forth in Section XIII.
    The United States concurs with Mr. Neppl's interpretation of 
section XIII of the proposed Final Judgment as stated in his letter 
of October 9, 2003.

III. Conclusion

    The United States hereby files the comments of the members of 
the public together with the Response of the United States to the 
comments, pursuant to 15 U.S.C. 16(d). The Competitive Impact 
Statement and this Response to Comments demonstrate that the 
proposed Final Judgment serves the public interest. Accordingly, the 
United States will move this Court for entry of the proposed Final 
Judgment after the comments and the Response are published in the 
Federal Register pursuant to 15 U.S.C. 16(d).
    Dated this 9th day of December, 2003.

    Respectfully submitted,
Michael K. Hammaker, Esquire,
D.C. Bar No. 233684, United States Department of Justice, Antitrust 
Division, 1401 H Street, NW., Room 3000, Washington, DC 20530; (202) 
307-0938.

Certificate of Service

    I hereby certify that on this 9th day of November, 2003, 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 Waste Management and 
Allied Waste Industries, and by first class mail, postage prepaid, 
on the State of New Jersey at the addresses given below:

Counsel for Defendant Waste Management, Inc.,
    James R. Weiss, Esquire, Preston Gates Ellis & Rouvelas Meeds 
LLP, 1735 New York Avenue, NW., Suite 500, Washington, DC 20006; 
jimwe@prestongates.com; (202) 628-1700.
Counsel for Defendant Allied Waste Industries, Inc.,
    Tom D. Smith, Esquire, Jones Day, 51 Louisiana Avenue, NW., 
Washington, DC 20001-2113; tdsmith@jonesday.com; (202) 879-3971.
Counsel for Plaintiff State of New Jersey,
    Andrew L. Rossner, Esquire, Assistant Attorney General--Deputy 
Director, New Jersey Attorney General's Office, Division of Criminal 
Justice, 25 Market Street, Trenton, NJ 08625-0085; (609) 984-0028.

Stacy R. Procter, Esquire,
CA Bar No. 221078, United States Department of Justice, Antitrust 
Division, 1401 H Street, NW., Room 3000, Washington, DC 20530. 
Telephone: (202) 514-8666.

To: Hammaker, Michael
Subject: Re: Waste Management: 4/28/03 Sale of $1 Billion of Allied 
Waste Assets to Waste Management

    We have the Competitive Impact Statement for the Waste 
Management/Allied swap.
    The CIS correctly notes the critical importance to the 
maintenance of competition of free access to disposal capacity on 
non-discriminate terms, and goes onto to note the partial 
divestitures of transfer and disposal assets in New Jersey and 
Oklahoma.
    In order to comment intelligently on the proposed settlement, we 
would like to ask if DOJ would share its discovery data on local 
conditions in the market for disposal in those areas. Specifically, 
the ownership and maximum daily throughputs for transfer stations, 
and the ownership, maximum daily tonnages and remaining life and 
locations for landfills. Also, the names and, if possible, very 
general indices of the size/share (that does impinge on trade 
secrets) of the municipal solid waste firms in each market.
    Thank you.

Peter Anderson,
Center for a Competitive Waste Industry.
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[FR Doc. 03-31054 Filed 12-16-03; 8:45 am]

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