CASELLA WASTE SYSTEMS INC ITEM 1A RISK FACTORS The following important factors, among others, could cause actual results to differ materially from those indicated by forward-looking statements made in this Annual Report on Form 10-K and presented elsewhere by management from time to time |
The Company’s increased leverage may restrict its future operations and impact its ability to make future acquisitions |
The Company has substantial indebtedness |
The payment of interest and principal due under this indebtedness has reduced, and may continue to reduce, funds available for other business purposes, including capital expenditures and acquisitions |
In addition, the aggregate amount of indebtedness has limited and may continue to limit the Company’s ability to incur additional indebtedness, and thereby may limit its acquisition program |
The Company’s leverage may further increase as the Company will be required to redeem its outstanding Series A redeemable preferred stock on August 11, 2007, if it is not otherwise repurchased by the Company prior to that time |
The aggregate redemption price is expected to be approximately dlra75dtta1 million |
The Company would need to incur more debt or raise equity to effect this redemption |
23 ______________________________________________________________________ The Company may not be successful in making acquisitions of solid waste assets, including developing additional disposal capacity, or in integrating acquired businesses or assets, which could limit the Company’s future growth |
The Company’s strategy envisions that a substantial part of the Company’s future growth will come from making acquisitions of traditional solid waste assets or operations and acquiring or developing additional disposal capacity |
These acquisitions may include “tuck-in” acquisitions within the Company’s existing markets, assets that are adjacent to or outside the Company’s existing markets, or larger, more strategic acquisitions |
In addition, from time to time the Company may acquire businesses that are complementary to the Company’s core business strategy |
The Company may not be able to identify suitable acquisition candidates |
If the Company identifies suitable acquisition candidates, the Company may be unable to negotiate successfully their acquisition at a price or on terms and conditions favorable to the Company |
Furthermore, the Company may be unable to obtain the necessary regulatory approval to complete potential acquisitions |
The Company’s ability to achieve the benefits it anticipates from acquisitions, including cost savings and operating efficiencies, depends in part on the Company’s ability to successfully integrate the operations of such acquired businesses with the Company’s operations |
The integration of acquired businesses and other assets may require significant management time and company resources that would otherwise be available for the ongoing management of the Company’s existing operations |
In addition, the process of acquiring, developing and permitting additional disposal capacity is lengthy, expensive and uncertain |
For example, the Company is currently involved in litigation with the Town of Bethlehem, New Hampshire relating to the expansion of a landfill owned by the Company’s wholly owned subsidiary, North Country Environmental Services, Inc |
Moreover, the disposal capacity at the Company’s existing landfills is limited by the remaining available volume at the Company’s landfills and annual, quarterly and/or daily disposal limits imposed by the various governmental authorities with jurisdiction over the Company’s landfills |
The Company typically reaches or approximates the Company’s daily, quarterly and annual maximum permitted disposal capacity at the majority of the Company’s landfills |
If the Company is unable to develop or acquire additional disposal capacity, the Company’s ability to achieve economies from the internalization of the Company’s waste stream will be limited and the Company may be required to increase the Company’s utilization of disposal facilities owned by third parties, which could reduce the Company’s revenues and/or the Company’s operating margins |
The Company’s ability to make acquisitions is dependent on the availability of adequate cash and the attractiveness of the Company’s stock price |
The Company anticipates that any future business acquisitions will be financed through cash from operations, borrowings under the Company’s senior secured credit facility, additional tax-exempt financing, the issuance of shares of the Company’s Class A common stock or subordinated notes and/or seller financing |
The Company may not have sufficient existing capital resources and may be unable to raise sufficient additional capital resources on terms satisfactory to the Company, if at all, in order to meet the Company’s capital requirements for such acquisitions |
The Company also believes that a significant factor in the Company’s ability to close acquisitions will be the attractiveness to the Company and to persons selling businesses to the Company of the Company’s Class A common stock as consideration for potential acquisition candidates |
This attractiveness may, in large part, be dependent upon the relative market price and capital appreciation prospects of the Company’s Class A common stock compared to the equity securities of the Company’s competitors |
The trading price of the Company’s Class A common stock on the NASDAQ National Market has limited the Company’s willingness to use the Company’s equity as consideration and the willingness of sellers to accept the Company’s shares and as a result has limited, and could continue to limit, the size and scope of the Company’s acquisition program |
24 ______________________________________________________________________ Environmental regulations and litigation could subject the Company to fines, penalties, judgments and limitations on the Company’s ability to expand |
The Company is subject to potential liability and restrictions under environmental laws, including those relating to transport, recycling, treatment, storage and disposal of wastes, discharges to air and water, and the remediation of contaminated soil, surface water and groundwater |
The waste management industry has been and will continue to be subject to regulation, including permitting and related financial assurance requirements, as well as to attempts to further regulate the industry through new legislation |
The Company’s waste-to-energy facility is subject to regulations limiting discharges of pollution into the air and water, and the Company’s solid waste operations are subject to a wide range of federal, state and, in some cases, local environmental, odor and noise and land use restrictions |
For example, the Company’s waste-to-energy facility in Biddeford, Maine is affected by zoning restrictions and air emissions limitations in its efforts to implement a new odor control system |
If the Company is not able to comply with the requirements that apply to a particular facility or if the Company operates without necessary approvals, the Company could be subject to civil, and possibly criminal, fines and penalties, and the Company may be required to spend substantial capital to bring an operation into compliance or to temporarily or permanently discontinue activities, and/or take corrective actions, possibly including removal of landfilled materials, regarding an operation that is not permitted under the law |
The Company may not have sufficient insurance coverage for the Company’s environmental liabilities |
Those costs or actions could be significant to the Company and impact the Company’s results of operations, as well as the Company’s available capital |
Environmental and land use laws also impact the Company’s ability to expand and, in the case of the Company’s solid waste operations, may dictate those geographic areas from which the Company must, or, from which the Company may not, accept waste |
Those laws and regulations may limit the overall size and daily waste volume that may be accepted by a solid waste operation |
If the Company is not able to expand or otherwise operate one or more of the Company’s facilities because of limits imposed under environmental laws, the Company may be required to increase the Company’s utilization of disposal facilities owned by third parties, which could reduce the Company’s revenues and/or operating margins |
The Company has historically grown and intends to continue to grow through acquisitions, and the Company has tried and will continue to try to evaluate and limit environmental risks and liabilities presented by businesses to be acquired prior to the acquisition |
It is possible that some liabilities, including ones that may exist only because of the past operations of an acquired business, may prove to be more difficult or costly to address than the Company anticipates |
It is also possible that government officials responsible for enforcing environmental laws may believe an issue is more serious than the Company expects, or that the Company will fail to identify or fully appreciate an existing liability before the Company becomes legally responsible to address it |
Some of the legal sanctions to which the Company could become subject could cause the Company to lose a needed permit, or prevent the Company from or delay the Company in obtaining or renewing permits to operate the Company’s facilities or harm the Company’s reputation |
The Company’s operating program depends on the Company’s ability to operate and expand the landfills and transfer stations the Company owns and leases and to develop new landfill and transfer sites |
Localities where the Company operates generally seek to regulate some or all landfill and transfer station operations, including siting and expansion of operations |
The laws adopted by municipalities in which the Company’s landfills and transfer stations are located may limit or prohibit the expansion of the landfill or transfer station as well as the amount of waste that the Company can accept at the landfill or transfer station on a daily, quarterly or annual basis and any effort to acquire or expand landfills and transfer stations typically involves a significant amount of time and expense |
For example, expansion at the Company’s North Country Environmental Services landfill, outside the original 51 acres, will be prohibited as a result of a recent decision by the New Hampshire Supreme Court unless the Company prevails in certain remanded issues under zoning laws or the Town revises its local ordinance prohibiting expansions |
The Company may not be successful in obtaining new landfill or transfer station sites or expanding the permitted capacity of any of the Company’s current landfills and transfer stations |
If the Company is unable to develop additional disposal capacity, the Company’s ability to achieve economies from the internalization of the Company’s wastestream will be limited and the Company will be required to utilize the disposal facilities of the Company’s competitors |
In addition to the costs of complying with environmental laws and regulations, the Company incurs costs defending against environmental litigation brought by governmental agencies and private parties |
The Company is, and also may be in the future, a defendant in lawsuits brought by parties alleging environmental damage, personal injury, and/or property damage |
25 ______________________________________________________________________ The Company’s operations would be adversely affected if the Company does not have access to sufficient capital |
The Company’s ability to remain competitive and sustain its operations depends in part on cash flow from operations and the Company’s access to capital |
The Company currently funds its cash needs primarily through cash from operations and borrowings under the Company’s senior secured credit facility |
However, the Company may require additional equity and/or debt financing for debt repayment and equity redemption obligations and to fund the Company’s growth and operations |
In addition, if the Company undertakes more acquisitions or further expands the Company’s operations, the Company’s capital requirements may increase |
The Company may not have access to the amount of capital that the Company requires from time to time, on favorable terms or at all |
The Company’s results of operations could continue to be affected by changing prices or market requirements for recyclable materials |
The Company’s results of operations have been and may continue to be affected by changing purchase or resale prices or market requirements for recyclable materials |
The Company’s recycling business involves the purchase and sale of recyclable materials, some of which are priced on a commodity basis |
The resale and purchase prices of, and market demand for, recyclable materials, particularly waste paper, plastic and ferrous and aluminum metals, can be volatile due to numerous factors beyond the Company’s control |
Although the Company seeks to limit the Company’s exposure to fluctuating commodity prices through the use of hedging agreements and long-term supply contracts with customers, these fluctuations have in the past contributed, and may continue to contribute, to significant variability in the Company’s period-to-period results of operations |
The Company’s business is geographically concentrated and is therefore subject to regional economic downturns |
The Company’s operations and customers are principally located in the eastern United States |
Therefore, the Company’s business, financial condition and results of operations are susceptible to regional economic downturns and other regional factors, including state regulations and budget constraints and severe weather conditions |
In addition, as the Company expands in the Company’s existing markets, opportunities for growth within these regions will become more limited and the geographic concentration of the Company’s business will increase |
Maine Energy may be required to make a payment in connection with the payoff of certain obligations and limited partner loans earlier than the Company had anticipated and which may exceed the amount of the liability the Company recorded in connection with the KTI acquisition |
Under the terms of waste handling agreements among the Biddeford-Saco Waste Handling Committee, the cities of Biddeford and Saco, Maine, and the Company’s subsidiary Maine Energy, Maine Energy will be required, following the date on which the bonds that financed Maine Energy and certain limited partner loans to Maine Energy are paid in full, to pay a residual cancellation payment to the respective municipalities party to those agreements equal to a certain percentage of the fair market value of the equity of the partners in Maine Energy |
In connection with the Company’s merger with KTI, the Company estimated the fair market value of Maine Energy as of the date the limited partner loans are anticipated to be paid in full, and recorded a liability equal to the applicable percentage of such amount |
The obligation has been estimated by management at dlra5dtta3 million |
Management believes the possibility of material loss in excess of this amount is remote |
The Company’s estimate of the fair market value of Maine Energy may not prove to be accurate, and in the event the Company has underestimated the value of Maine Energy, the Company could be required to recognize unanticipated charges, in which case the Company’s operating results could be harmed |
In connection with these waste handling agreements, the cities of Biddeford and Saco have lawsuits pending in the State of Maine seeking the residual cancellation payments and alleging, among other things, the Company’s breach of the waste handling agreement for the Company’s failure to pay the residual cancellation payments in connection with 26 ______________________________________________________________________ the KTI merger, failure to pay off limited partner loans in accordance with the terms of the agreement and processing amounts of waste above contractual limits without issuance of proper notice |
The complaint seeks damages for breach of contract and a court order requiring the Company to provide an accounting of all relevant transactions since May 3, 1996 |
The Company is currently engaged in settlement negotiations with the cities of Biddeford and Saco, however, at this stage it is impossible to predict whether a settlement will be reached |
If the plaintiffs are successful in their claims against the Company and damages are awarded, the Company’s operating income in the period in which such a claim is paid would be impacted |
The Company may not be able to effectively compete in the highly competitive solid waste services industry |
The solid waste services industry is highly competitive, has undergone a period of rapid consolidation and requires substantial labor and capital resources |
Some of the markets in which the Company competes or will likely compete are served by one or more of the large national or multinational solid waste companies, as well as numerous regional and local solid waste companies |
Intense competition exists not only to provide services to customers, but also to acquire other businesses within each market |
Some of the Company’s competitors have significantly greater financial and other resources than the Company |
From time to time, competitors may reduce the price of their services in an effort to expand market share or to win a competitively bid contract |
These practices may either require the Company to reduce the pricing of the Company’s services or result in the Company’s loss of business |
As is generally the case in the industry, some municipal contracts are subject to periodic competitive bidding |
The Company may not be the successful bidder to obtain or retain these contracts |
If the Company is unable to compete with larger and better capitalized companies, or to replace municipal contracts lost through the competitive bidding process with comparable contracts or other revenue sources within a reasonable time period the Company’s revenues would decrease and the Company’s operating results would be harmed |
In the Company’s solid waste disposal markets the Company also competes with operators of alternative disposal and recycling facilities and with counties, municipalities and solid waste districts that maintain their own waste collection, recycling and disposal operations |
These entities may have financial advantages because user fees or similar charges, tax revenues and tax-exempt financing may be more available to them than to the Company |
The Company’s GreenFiber insulation manufacturing joint venture with Louisiana-Pacific Corporation competes with other parties, principally national manufacturers of fiberglass insulation, which have substantially greater resources than GreenFiber does, which they could use for product development, marketing or other purposes to the Company’s detriment |
The Company’s results of operations and financial condition may be negatively affected if the Company inadequately accrues for capping, closure and post-closure costs |
The Company has material financial obligations relating to capping, closure and post-closure costs of the Company’s existing owned or operated landfills and will have material financial obligations with respect to any disposal facilities which the Company may own or operate in the future |
Once the permitted capacity of a particular landfill is reached and additional capacity is not authorized, the landfill must be closed and capped, and post-closure maintenance started |
The Company establishes accruals for the estimated costs associated with such capping, closure and post-closure obligations over the anticipated useful life of each landfill on a per ton basis |
In addition to the landfills the Company currently operates, the Company owns six unlined landfills and one lined landfill, which are not currently in operation |
The Company has provided and will in the future provide accruals for financial obligations relating to capping, closure and post-closure costs of the Company’s owned or operated landfills, generally for a term of 30 years after final closure of a landfill |
The Company’s financial obligations for capping, closure or post-closure costs could exceed the amount accrued and reserved or amounts otherwise receivable pursuant to trust funds established for this purpose |
Such a circumstance could result in significant unanticipated charges |
Fluctuations in fuel costs could affect the Company’s operating expenses and results |
The price and supply of fuel is unpredictable and fluctuates based on events beyond the Company’s control, including 27 ______________________________________________________________________ among others, geopolitical developments, supply and demand for oil and gas, actions by OPEC and other oil and gas producers, war and unrest in oil producing countries and regional production patterns |
Because fuel is needed to run the Company’s fleet of trucks, price escalations for fuel increase the Company’s operating expenses |
In fiscal year 2006, the Company used approximately 8dtta4 million gallons of diesel fuel in the Company’s solid waste operations |
Effective May 1, 2003, the Company implemented a fuel surcharge program, based on a fuel index, to recover fuel cost increases arising from price volatility |
This program was revised effective May 1, 2005 to cover oil and lubricants as well as fuel |
The surcharge has been passed on to all customers where their contracts permit |
The Company could be precluded from entering into contracts or obtaining permits if the Company is unable to obtain third party financial assurance to secure the Company’s contractual obligations |
Public solid waste collection, recycling and disposal contracts, obligations associated with landfill closure and the operation and closure of the Company’s waste-to-energy facility may require performance or surety bonds, letters of credit or other means of financial assurance to secure the Company’s contractual performance |
If the Company is unable to obtain the necessary financial assurance in sufficient amounts or at acceptable rates, the Company could be precluded from entering into additional municipal solid waste collection contracts or from obtaining or retaining landfill management contracts or operating permits |
Any future difficulty in obtaining insurance could also impair the Company’s ability to secure future contracts conditioned upon the contractor having adequate insurance coverage |
The Company may be required to write-off capitalized charges or intangible assets in the future, which could harm the Company’s earnings |
Any write-off of capitalized costs or intangible assets reduces the Company’s earnings and, consequently, could affect the market price of the Company’s Class A common stock |
In accordance with generally accepted accounting principles, the Company capitalizes certain expenditures and advances relating to the Company’s acquisitions, pending acquisitions, landfills and development projects |
From time to time in future periods, the Company may be required to incur a charge against earnings in an amount equal to any unamortized capitalized expenditures and advances, net of any portion thereof that the Company estimates will be recoverable, through sale or otherwise, relating to (1) any operation that is permanently shut down or has not generated or is not expected to generate sufficient cash flow, (2) any pending acquisition that is not consummated, (3) any landfill or development project that is not expected to be successfully completed, and (4) any goodwill or other intangible assets that are determined to be impaired |
The Company has incurred such charges in the past |
The Company’s revenues and the Company’s operating income experience seasonal fluctuations |
The Company’s transfer and disposal revenues have historically been lower during the months of November through March |
This seasonality reflects the lower volume of waste during the late fall, winter and early spring months primarily because: · the volume of waste relating to construction and demolition activities decreases substantially during the winter months in the north eastern United States; and · decreased tourism in Vermont, Maine and eastern New York during the winter months tends to lower the volume of waste generated by commercial and restaurant customers, which is partially offset by increased volume from the winter ski industry |
Since certain of our operating and fixed costs remain constant throughout the fiscal year, operating income is therefore impacted by a similar seasonality |
The Company’s recycling business experiences increased volumes of newspaper in November and December due to increased newspaper advertising and retail activity during the holiday season |
GreenFiber experiences lower sales from April through July due to lower retail activity |
28 ______________________________________________________________________ Efforts by labor unions to organize the Company’s employees could divert management attention and increase the Company’s operating expenses |
Labor unions regularly make attempts to organize the Company’s employees, and these efforts will likely continue in the future |
Certain groups of the Company’s employees have chosen to be represented by unions, and the Company has negotiated collective bargaining agreements with these groups |
The negotiation of collective bargaining agreements could divert management attention and result in increased operating expenses and lower net income |
If the Company is unable to negotiate acceptable collective bargaining agreements, the Company might have to wait through ‘‘cooling off’’ periods, which are often followed by union-initiated work stoppages, including strikes |
Depending on the type and duration of any labor disruptions, the Company’s revenues could decrease and the Company’s operating expenses could increase, which could adversely affect the Company’s financial condition, results of operations and cash flows |
As of May 31, 2006, approximately 4dtta6prca of the Company’s employees involved in collection, transfer, disposal, recycling, waste-to-energy or other operations were represented by unions |
The Company’s Class B common stock has ten votes per share and is held exclusively by John W Casella and Douglas R Casella |
The holders of the Company’s Class B common stock are entitled to ten votes per share and the holders of the Company’s Class A common stock are entitled to one vote per share |
At May 31, 2006, an aggregate of 988cmam200 shares of the Company’s Class B common stock, representing 9cmam882cmam000 votes, were outstanding, all of which were beneficially owned by John W Casella, the Company’s Chairman and Chief Executive Officer, or by his brother, Douglas R Casella, a member of the Company’s Board of Directors |
Based on the number of shares of common stock and Series A redeemable convertible preferred stock outstanding on May 31, 2006, the shares of the Company’s Class A common stock and Class B common stock beneficially owned by John W Casella and Douglas R Casella represent approximately 28dtta7prca of the aggregate voting power of the Company’s stockholders |
Consequently, John W Casella and Douglas R Casella are able to substantially influence all matters for stockholder consideration |