By Dan Christensen, FloridaBulldog.org
Florida Attorney General Pam Bondi’s Office is ducking questions about why she never alerted Broward cities and consumers about pricing and other protections secured for them in 2015 in exchange for not opposing Waste Management’s $525-million acquisition of Southern Waste Systems and Sun Recycling.
The protections were spelled out in a December 2015 letter listing a half-dozen “agreements or commitments” made by Waste Management and its companies at the conclusion of the state’s antitrust investigation, but were only made public May 30 by Florida Bulldog. Chief among them: a pledge that Broward municipalities would be allowed to renew their five-year single stream recycling contracts when they expired “on the same terms, conditions and prices as the initial term.”
Those contracts expire Tuesday, spelling both higher disposal costs and a practical end to popular recycling programs in parts of the county.
“We are hoping it will be a very, very brief period,” said Sunrise City Manager Richard Salamon, chair of the county’s Solid Waste Working Group. “We can’t just give up on recycling.”
News of the letter’s existence sent shock waves through the 17 cities with recycling contracts with Sun Bergeron, a joint venture of two upstart partners now at odds in court, Sun Recycling and Bergeron Environmental and Recycling. Those cities represent about half of Broward’s nearly two million residents.
For its part, Bergeron has told cities it wants to renew the existing municipal recycling agreements under the same terms and conditions. But Sun senior representative John Casagrande has said Sun Bergeron won’t renew under existing pricing “because such a renewal allegedly would be opposed by Waste Management,” according to a June 4 letter by Sunrise lawyer David Dee.
Mayors ask to meet with Bondi
Besides upending contract renewal negotiations, the letter prompted the mayors or attorneys for Sunrise, Coconut Creek, Margate and Weston to seek a meeting with Bondi or her staff to – as Weston Mayor Daniel Stermer put it – “discuss the current anticompetitive environment and whether there is anything that can be done by you to address the situation.” Weston, while not among the 17 Sun Bergeron cities, is poised to seek bids for solid waste disposal, collection and recycling services and is “very concerned that because of the transaction there will not be a competitive market available,” Stermer wrote.
A public records request for correspondence between the state and Waste Management was filed with the Attorney General’s Office by Miramar City Attorney Jamie Cole.
Meanwhile, at a court hearing last week, a Broward judge blocked Bergeron Recycling’s effort to depose Bondi’s top antitrust attorney, Lizabeth Brady, about the letter she wrote. Chief Judge Jack Tuter indicated, however, that he may allow Brady’s deposition to be taken at a future date – possibly with him refereeing the proceedings in person.
Outside the courtroom, Senior Assistant Attorney General Charles J.F. Schreiber Jr. was asked to comment on why his office did not inform anyone in Broward about the 2015 letter or its contents. He instead referred a reporter to Bondi spokesman Whitney Ray. Ray did not return phone messages requesting comment.
The Attorney General’s Office was more responsive to cities, explaining that closing letters and the agreements or commitments they recount don’t really mean much and that the office now has “no legitimate basis for pursing the matter.”
“The letter is not an agreement or an approval and merely recites certain statements made by the parties to the proposed acquisition regarding their intentions based upon existing market conditions at the time – in this case, 2015,” wrote Chief Deputy Attorney General Patricia A. Conners in a Friday letter copied to every Broward mayor.
“Their response was basically a defense of the industry. They basically parroted Waste Management’s argument,” said Salamon.
AG to asks questions
Still, while Conners offered no explanation as to why the attorney general kept secret its understanding with Waste Management, she said her office is willing to take a fresh look to see if there are “unlawful causes for Waste Management’s proposed rate hikes in Broward County.” She asked cities to make their waste disposal staff available “for interviews as soon as practical.”
“We also welcome any information or documentation you wish to send us for our review,” she wrote.
Whether cities have such documentation is doubtful. Until the recent public disclosure of the attorney general’s December 2015 letter they were mostly resigned to accepting a doubling of recycling rates demanded by Waste Management and Sun (now known as LGL Recycling).
Interested regulators, however, would appear to have another avenue to obtain such documentation. At Wednesday’s court hearing, Bergeron Environmental attorney Mitchell Berger all but dared Bondi’s office to subpoena him, telling the judge he has confidential Waste Management records detailing “serious omissions and misrepresentations” about the SWS/Sun acquisition that he isn’t allowed to show the attorney general.
Berger obtained the documents under the terms of a confidentiality agreement with Waste Management’s attorneys that his client agreed to in order to facilitate access to the Houston-based company’s records during the court’s pre-trial discovery process.
Court filings say Waste Management has produced in excess of 100,000 internal records in discovery since the case began in 2016 – nearly all of which have been filed under seal.
Time running out
With recycling contracts fast running out, Coral Springs recently inked a deal with Waste Management that includes a doubled fee – to $96-a-ton – that may serve as a template upon which other municipalities might piggyback.
The 17 cities with expiring Sun Bergeron contracts are Coconut Creek, Coral Springs, Deerfield Beach, Fort Lauderdale, Hillsboro Beach, Lauderdale-by-the-Sea, Lauderhill, Margate, Miramar, North Lauderdale, Oakland Park, Pembroke Park, Plantation, Sunrise, Tamarac, West Park and Wilton Manors.
Sunrise, which generates 5,000 tons of recyclables a year, has balked at piggybacking, citing certain unpalatable contract provisions regarding contamination of material collected for recycling that could drive the city’s costs even higher.
“It is intolerable contract language because it creates too much risk,” said City Manager Salamon.
So what will Sunrise do if the offending language cannot be negotiated away?
Recyclables that residents now set aside in separate bins will end up at the same place where its municipal solid waste and bulk trash will go as of Tuesday – the Wheelabrator trash-to-energy incinerator on State Road 7 in Fort Lauderdale. Tonnage that Wheelabrator does not have the capacity to handle will be dumped in a landfill.