UNITED STATES
SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549


FORM 10-Q

x                              QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934

FOR THE QUARTERLY PERIOD ENDED SEPTEMBER 30, 2006 OR

o                                 TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934

FOR THE TRANSITION PERIOD FROM             TO

Commission File Number 0-16379


CLEAN HARBORS, INC.

(Exact name of registrant as specified in its charter)

Massachusetts

 

04-2997780

(State of Incorporation)

 

(IRS Employer Identification No.)

 

 

 

42 Longwater Drive, Norwell, MA

 

02061-9149

(Address of Principal Executive Offices)

 

(Zip Code)

 

(781) 792-5000

(Registrant’s Telephone Number, Including Area Code)


Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding twelve months (or for such shorter period that the registrant was required to file such reports) and (2) has been subject to such filing requirements for the past 90 days.   Yes  x   No  o

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, or a non-accelerated filer. See definition of accelerated filer and large accelerated filer in Rule 12b-2 of the Exchange Act. (Check one):

Large accelerated filer o

 

Accelerated filer x

 

Non-accelerated filer o

 

Indicate by check mark whether the registrant is a shell company (as defined by Rule 12b-2 of the Exchange Act).   Yes  o   No  x

Indicate the number of shares outstanding of each of the issuer’s classes of common stock, as of the latest practicable date.

Common Stock, $.01 par value

 

19,664,235

(Class)

 

(Outstanding at August 8, 2006)

 

 




CLEAN HARBORS, INC.

QUARTERLY REPORT ON FORM 10-Q

TABLE OF CONTENTS

PART I: FINANCIAL INFORMATION

 

Page No.

 

ITEM 1: Financial Statements

 

 

 

 

 

Consolidated Balance Sheets

 

 

3

 

 

Consolidated Statements of Operations

 

 

5

 

 

Consolidated Statements of Cash Flows

 

 

6

 

 

Consolidated Statements of Stockholders’ Equity

 

 

7

 

 

Notes to Consolidated Financial Statements

 

 

8

 

 

 

 

 

 

 

 

ITEM 2: Management’s Discussion and Analysis of Financial Condition and Results of Operations

 

 

55

 

 

 

 

 

 

 

 

ITEM 3: Quantitative and Qualitative Disclosures About Market Risk

 

 

74

 

 

 

 

 

 

 

 

ITEM 4: Controls and Procedures

 

 

75

 

 

 

 

 

 

 

 

PART II: OTHER INFORMATION

 

 

 

 

 

 

 

Items No. 1 through 6

 

 

76

 

 

Signatures

 

 

77

 

 

 

2




CLEAN HARBORS, INC. AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
ASSETS
(dollars in thousands)

 

 

September 30,
2006

 

December 31,
 2005

 

 

 

(unaudited)

 

 

 

Current assets:

 

 

 

 

 

Cash and cash equivalents

 

$

72,890

 

$

132,449

 

Restricted cash

 

 

3,469

 

Marketable securities

 

10,299

 

 

Accounts receivable, net of allowance for doubtful accounts of $1,864 and $2,419, respectively

 

169,515

 

147,659

 

Unbilled accounts receivable

 

16,828

 

7,049

 

Deferred costs

 

6,248

 

4,937

 

Prepaid expenses and other current assets

 

9,208

 

6,411

 

Supplies inventories

 

19,001

 

12,723

 

Deferred tax assets

 

5,777

 

219

 

Income taxes receivable

 

673

 

1,462

 

Properties held for sale

 

8,131

 

7,670

 

Total current assets

 

318,570

 

324,048

 

Property, plant and equipment:

 

 

 

 

 

Land

 

15,665

 

14,677

 

Asset retirement costs (non-landfill)

 

1,421

 

1,032

 

Landfill assets

 

12,265

 

7,599

 

Buildings and improvements

 

103,308

 

95,443

 

Vehicles

 

23,738

 

15,478

 

Equipment

 

243,324

 

199,373

 

Furniture and fixtures

 

1,384

 

2,152

 

Construction in progress

 

27,360

 

9,535

 

 

 

428,465

 

345,289

 

Less—accumulated depreciation and amortization

 

184,354

 

166,765

 

 

 

244,111

 

178,524

 

Other assets:

 

 

 

 

 

Deferred financing costs

 

7,602

 

9,508

 

Goodwill

 

19,032

 

19,032

 

Permits and other intangibles, net of accumulated amortization of $33,909 and $27,954, respectively

 

66,465

 

77,803

 

Investment in joint venture

 

2,103

 

 

Deferred tax assets

 

15,880

 

1,715

 

Other

 

3,403

 

3,734

 

 

 

114,485

 

111,792

 

Total assets

 

$

677,166

 

$

614,364

 

 

The accompanying notes are an integral part of these consolidated financial statements.

3




CLEAN HARBORS, INC. AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS (Continued)
LIABILITIES AND STOCKHOLDERS’ EQUITY
(dollars in thousands)

 

 

September 30,
2006

 

December 31,
2005

 

 

 

(unaudited)

 

 

 

Current liabilities:

 

 

 

 

 

Uncashed checks

 

$

4,797

 

$

7,982

 

Current portion of long-term debt

 

5,982

 

52,500

 

Current portion of capital lease obligations

 

1,602

 

1,893

 

Accounts payable

 

95,456

 

71,372

 

Accrued disposal costs

 

3,260

 

3,109

 

Deferred revenue

 

29,415

 

21,784

 

Other accrued expenses

 

51,008

 

49,779

 

Current portion of closure, post-closure and remedial liabilities

 

15,965

 

10,817

 

Income taxes payable

 

5,070

 

4,458

 

Total current liabilities

 

212,555

 

223,694

 

Other liabilities:

 

 

 

 

 

Closure and post-closure liabilities, less current portion of $4,727 and $2,894, respectively

 

20,846

 

20,728

 

Remedial liabilities, less current portion of $11,238 and $7,923, respectively

 

137,151

 

139,144

 

Long-term obligations, less current maturities

 

120,491

 

95,790

 

Capital lease obligations, less current portion

 

2,924

 

4,108

 

Other long-term liabilities

 

15,944

 

14,417

 

Accrued pension cost

 

748

 

825

 

Total other liabilities

 

298,104

 

275,012

 

 

 

 

 

 

 

Stockholders’ equity:

 

 

 

 

 

Preferred stock, $.01 par value:

 

 

 

 

 

Series B convertible preferred stock; authorized 154,416 shares; issued and outstanding 69,000 shares (liquidation preference of $3.5 million)

 

1

 

1

 

Common stock, $.01 par value:

 

 

 

 

 

Authorized 40,000,000 shares; issued and outstanding 19,650,105 and 19,352,878 shares, respectively

 

197

 

194

 

Additional paid-in capital

 

153,902

 

141,079

 

Accumulated other comprehensive income

 

11,542

 

9,745

 

Restricted stock unearned compensation

 

 

(1,044

)

Retained earnings (deficit)

 

865

 

(34,317

)

Total stockholders’ equity

 

166,507

 

115,658

 

Total liabilities and stockholders’ equity

 

$

677,166

 

$

614,364

 

 

The accompanying notes are an integral part of these consolidated financial statements.

4




CLEAN HARBORS, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF OPERATIONS
Unaudited
(in thousands except per share amounts)

 

 

Three Months Ended
September 30,

 

Nine Months Ended
September 30,

 

 

 

2006

 

2005

 

2006

 

2005

 

 

 

 

 

 

 

 

 

 

 

Revenues

 

$

213,903

 

$

178,580

 

$

597,960

 

$

517,456

 

Cost of revenues (exclusive of items shown separately below)

 

151,606

 

129,009

 

418,928

 

373,990

 

Selling, general and administrative expenses (including stock-based compensation costs of $869 and $2,460 for the quarter and year-to-date ending 2006, respectively)

 

26,880

 

27,464

 

90,487

 

77,133

 

Accretion of environmental liabilities

 

2,580

 

2,633

 

7,633

 

7,883

 

Depreciation and amortization

 

11,063

 

7,163

 

26,296

 

21,517

 

Income from operations

 

21,774

 

12,311

 

54,616

 

36,933

 

Other income (expense)

 

(111

)

(83

)

(273

)

427

 

Loss on early extinguishment of debt

 

 

 

(8,290

)

 

Interest (expense), net of interest income of $953 and $2,727 for the quarter and year-to-date ending 2006 and $266 and $752 for the quarter and year-to-date ending 2005, respectively

 

(3,254

)

(5,884

)

(9,303

)

(17,791

)

Income before provision for income taxes and equity interest in joint venture

 

18,409

 

6,344

 

36,750

 

19,569

 

Provision for (benefit from) income taxes

 

(2,585

)

887

 

1,579

 

1,900

 

Equity interest in joint venture

 

(11

)

 

(11

)

 

Net income

 

21,005

 

5,457

 

35,182

 

17,669

 

Dividends on Series B Preferred Stock

 

69

 

70

 

207

 

210

 

Net income attributable to common stockholders

 

$

20,936

 

$

5,387

 

$

34,975

 

$

17,459

 

 

 

 

 

 

 

 

 

 

 

Earnings per share:

 

 

 

 

 

 

 

 

 

Basic income attributable to common stockholders

 

$

1.07

 

$

0.35

 

$

1.79

 

$

1.16

 

Diluted income attributable to common stockholders

 

$

1.02

 

$

0.31

 

$

1.70

 

$

1.02

 

 

 

 

 

 

 

 

 

 

 

Weighted average common shares outstanding

 

19,587

 

15,416

 

19,488

 

15,081

 

Weighted average common shares outstanding plus potentially dilutive common shares

 

20,607

 

17,644

 

20,641

 

17,357

 

 

The accompanying notes are an integral part of these consolidated financial statements.

5




CLEAN HARBORS, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
Unaudited
(in thousands)

 

 

Nine Months
Ended September 30,

 

 

 

2006

 

2005

 

Cash flows from operating activities:

 

 

 

 

 

Net income

 

$

35,182

 

$

17,669

 

Adjustments to reconcile net income to net cash provided by operating activities:

 

 

 

 

 

Depreciation and amortization

 

26,296

 

21,517

 

Allowance for doubtful accounts

 

334

 

(19

)

Amortization of deferred financing costs

 

1,087

 

1,112

 

Accretion of environmental liabilities

 

7,633

 

7,883

 

Changes in environmental estimates

 

(9,839

)

(9,040

)

Amortization of debt discount

 

87

 

125

 

Deferred income taxes

 

(6,435

)

 

Stock-based compensation

 

2,460

 

88

 

Loss on sale of fixed assets and assets held for sale

 

64

 

271

 

Impairment of assets held for sale

 

209

 

 

Investment in joint venture

 

(11

)

 

Gain on insurance settlement

 

(184

)

 

Write-off of deferred financing costs and debt discount

 

2,383

 

 

Foreign currency gain on intercompany transactions

 

 

(370

)

Changes in assets and liabilities:

 

 

 

 

 

Accounts receivable

 

(4,061

)

(13,988

)

Unbilled accounts receivable

 

(6,334

)

(3,052

)

Deferred costs

 

(1,270

)

579

 

Prepaid expenses and other current assets

 

(1,305

)

6,242

 

Supplies inventories

 

(1,174

)

(1,416

)

Other assets

 

876

 

46

 

Accounts payable

 

7,310

 

(7,890

)

Environmental expenditures

 

(5,194

)

(5,873

)

Deferred revenue

 

3,957

 

(2,639

)

Accrued disposal costs

 

(110

)

90

 

Other accrued expenses

 

(3,058

)

(1,977

)

Income taxes payable, net

 

2,188

 

(1,204

)

Net cash provided by operating activities

 

51,091

 

8,154

 

Cash flows from investing activities:

 

 

 

 

 

Acquisition of Teris LLC

 

(52,097

)

 

Additions to property, plant and equipment

 

(30,331

)

(13,315

)

Cost to obtain or renew permits

 

(822

)

(1,298

)

Proceeds from sales of fixed assets and assets held for sale

 

1,190

 

397

 

Proceeds from sale of restricted investments

 

3,469

 

 

Proceeds from insurance claim

 

384

 

 

Sales of marketable securities

 

45,154

 

16,800

 

Purchase of available-for-sale securities

 

(55,453

)

 

Net cash (used in) provided by investing activities

 

(88,506

)

2,584

 

Cash flows from financing activities:

 

 

 

 

 

Change in uncashed checks

 

(3,245

)

2,054

 

Proceeds from exercise of stock options

 

2,124

 

4,409

 

Excess tax benefit of stock-based compensation

 

3,021

 

 

Proceeds from term loan to finance Acquisition

 

30,000

 

 

Deferred financing costs incurred

 

(968

)

(97

)

Proceeds from employee stock purchase plan

 

573

 

399

 

Dividend payments on preferred stock

 

(207

)

(210

)

Payments on capital leases

 

(1,648

)

(1,349

)

Principal payments on debt

 

(52,500

)

 

Net cash (used in) provided by financing activities

 

(22,850

)

5,206

 

(Decrease) increase in cash and cash equivalents

 

(60,265

)

15,944

 

Effect of exchange rate change on cash

 

706

 

116

 

Cash and cash equivalents, beginning of period

 

132,449

 

31,081

 

Cash and cash equivalents, end of period

 

$

72,890

 

$

47,141

 

 

 

 

 

 

 

Supplemental information:

 

 

 

 

 

Cash payments for interest and income taxes:

 

 

 

 

 

Interest paid

 

$

15,780

 

$

24,231

 

Income taxes paid

 

1,268

 

3,636

 

Non-cash investing and financing activities:

 

 

 

 

 

Property, plant and equipment accrued

 

$

2,686

 

$

1,845

 

New capital lease obligations

 

107

 

2,667

 

Acquisition related costs included in accounts payable

 

219

 

 

Liabilities assumed in connection with the Teris LLC acquisition

 

(30,310

)

 

 

The accompanying notes are an integral part of these consolidated financial statements.

 

6




CLEAN HARBORS, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF STOCKHOLDERS’ EQUITY
Unaudited
(in thousands)

 

 

Series B
Preferred Stock

 

Common Stock

 

 

 

 

 

Accumulated
Other

 

Restricted
Stock

 

Retained

 

 

 

 

 

Number
 of
Shares

 

$0.01
Par
Value

 

Number
of
Shares

 

$0.01
Par
Value

 

Additional
Paid-in
Capital

 

Comprehensive
Income
(Loss)

 

Comprehensive
Income
(Loss)

 

Unearned
Compen
sation

 

Earnings/
(Accumulated
Deficit)

 

Total
Stockholders’
Equity

 

Balance at December 31, 2005

 

69

 

$

1

 

19,353

 

$

194

 

$

141,079

 

 

 

$

9,745

 

$

(1,044

)

$

(34,317

)

$

115,658

 

Net income

 

 

 

 

 

 

$

35,182

 

 

 

35,182

 

35,182

 

Foreign currency translation

 

 

 

 

 

 

1,797

 

1,797

 

 

 

1,797

 

Comprehensive income

 

 

 

 

 

 

$

36,979

 

 

 

 

 

Stock issuance costs

 

 

 

 

 

(6

)

 

 

 

 

 

(6

)

Series B preferred stock dividends

 

 

 

 

 

(207

)

 

 

 

 

 

(207

)

Stock-based compensation

 

 

 

41

 

 

2,460

 

 

 

 

 

 

2,460

 

Adoption of FAS No. 123(R)

 

 

 

 

 

(1,044

)

 

 

 

1,044

 

 

 

Exercise of stock options

 

 

 

233

 

3

 

2,121

 

 

 

 

 

 

2,124

 

Tax benefit on exercise of stock options:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Current operations

 

 

 

 

 

3,021

 

 

 

 

 

 

3,021

 

Reversal of valuation allowance

 

 

 

 

 

5,905

 

 

 

 

 

 

5,905

 

Employee stock purchase plan

 

 

 

23

 

 

573

 

 

 

 

 

 

573

 

Balance at September 30, 2006

 

69

 

$

1

 

19,650

 

$

197

 

$

153,902

 

 

 

$

11,542

 

$

 

$

865

 

$

166,507

 

 

The accompanying notes are an integral part of these consolidated financial statements.

7




CLEAN HARBORS, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

(1) BASIS OF PRESENTATION

The accompanying consolidated interim financial statements include the accounts of Clean Harbors, Inc. and its wholly-owned subsidiaries (collectively, “Clean Harbors” or the “Company”) and have been prepared pursuant to the rules and regulations of the Securities and Exchange Commission and, in the opinion of management, include all adjustments which, except as described elsewhere herein, are of a normal recurring nature, necessary for a fair presentation of the financial position, results of operations, and cash flows for the periods presented. The results for interim periods are not necessarily indicative of results for the entire year. The financial statements presented herein should be read in connection with the financial statements included in the Company’s Annual Report on Form 10-K for the year ended December 31, 2005.

The preparation of financial statements in conformity with accounting principles generally accepted in the United States requires the Company’s management to make certain estimates and assumptions. These estimates and assumptions affect the reported amounts of assets and liabilities and disclosure of the contingent assets and liabilities at the date of the financial statements. These estimates and assumptions will also affect the reported amounts of certain revenues and expenses during the reporting period. Actual results could differ materially based on any changes in the estimates and assumptions that the Company uses in the preparation of its financial statements. Additionally, the estimates and assumptions used in determining landfill airspace amortization rates per cubic yard, capping, closure and post-closure liabilities as well as environmental remediation liabilities require significant engineering and accounting input. The Company reviews these estimates and assumptions on an ongoing basis. In many circumstances, the ultimate outcome of these estimates and assumptions may not be known for decades into the future. Actual results could differ materially from these estimates and assumptions due to changes in environmental-related regulations or future operational plans, and the inherent imprecision associated with estimating matters so far into the future. See “Management’s Discussion and Analysis” in this report.

Certain reclassifications have been made in the prior period’s segment reporting footnote No. 15 to conform to the presentation for the period ended September 30, 2006 related to re-aligning departments between segments.

(2) ACQUISITION

On August 18, 2006, Clean Harbors, Inc. (the “Company”) purchased from SITA U.S.A., Inc., a Delaware corporation (“Seller”), all of the membership interests in Teris LLC, a Delaware limited liability company (“Teris”). The results of Teris operations have been included in the consolidated financial statements since that date. The purchase was made in accordance with the purchase and sale agreement which the Company and Seller had entered into on May 3, 2006. The final purchase price is subject to post-closing adjustments based upon the amount by which Teris’ net working capital as of the closing date exceeded or was less than $10.3 million and the amount by which capital spending incurred year-to-date by Teris exceeded or was less than the budgeted spending. The Company currently estimates these adjustments will result in a $2.5 million reduction in the purchase price.   These adjustments will be finalized within 135 days after the closing date. In connection with such acquisition and the related financing described below (collectively, the “Acquisition”), the Company incurred transaction expenses for due diligence and legal of approximately $1.9 million, thus resulting in a total estimated purchase for Teris of approximately $52.1 million.

By acquiring all of the membership interests in Teris, the Company indirectly acquired ownership of two licensed hazardous waste management facilities which Teris owned as of the closing.  These facilities consist of an incineration facility located in El Dorado, Arkansas, which has an annual practical capacity of 26,400 drums and 1.8 million gallons of bulk liquids, and a transportation, storage and disposal facility located in Wilmington, California.

The primary reasons for the Acquisition of Teris were: (i) to strengthen the Company’s disposal capabilities and geographic reach, particularly in the Southeast region of the United States, and (ii) the Company’s belief that the Acquisition will result in cost savings by allowing the Company to treat hazardous waste internally.   The Company previously paid Teris to dispose of certain hazardous waste.

In order to finance the Acquisition and pay the related transaction expenses, the Company utilized $24.6 million of available cash and borrowed $30.0 million through a term loan issued under the Company’s existing credit agreement.  The term loan bears interest, at the Company’s option, at either the Eurodollar Rate (as defined in the credit agreement) plus 2.5%

8




 

per annum or the base rate plus 1.5% per annum.  The term loan will mature on December 1, 2010, and there will be no principal payments due prior to that date.

Under the purchase method of accounting, the total estimated purchase price is allocated to Teris’ net tangible assets  based on their estimated fair values as of the completion of the acquisition.  It was determined that no value existed for intangible assets. The purchase price and related allocation is preliminary and may be revised as a result of adjustments made to the purchase price, additional information regarding liabilities assumed and revisions of preliminary estimates of fair value made at the date of purchase. The preliminary calculation of the estimated purchase price and the allocation of the estimated purchase price allocation among the assets acquired and liabilities assumed is as follows:

Cash consideration

 

$

52,700

 

Estimated acquisition costs

 

1,873

 

Receivable due from the seller for estimated purchase price adjustments

 

(2,476

)

Total purchase price

 

$

52,097

 

 

 

 

 

Current assets

 

$

27,140

 

Property, plant & equipment

 

52,724

 

Other assets

 

451

 

Investment in joint venture

 

2,092

 

Current closure, post-closure and remedial liabilities

 

(2,963

)

Other current liabilities

 

(21,279

)

Closure, post-closure and remedial liabilities, long term

 

(6,068

)

Net assets acquired

 

$

52,097

 

 

A preliminary estimate of $14.2 million has been calculated as negative goodwill, which represent the excess of the fair value of the net assets acquired and liabilities assumed over the purchase price.   In accordance with SFAS No. 141, negative goodwill has been proportionally allocated to property, plant and equipment ($13.6 million) and the investment in joint venture ($0.6 million).

As of September 30, 2006, the Company had accrued expenses of $2.0 million related to Teris severance and relocation, $0.2 million in lease termination costs associated with the closure of five of Teris’ leased properties and $0.1 million accrued for contract termination costs. These costs were accounted for under Emerging Issues Task Force (“EITF”) No. 95.3, “Recognition of Liabilities in Connection with a Purchase Business Combination,” and were recognized as liabilities assumed in the acquisition. The Company is completing its integration plans which may result in changes to these liabilities.

9




 

The following unaudited pro forma summary presents information as if Teris had been acquired at the beginning of the periods presented with financing obtained as described above and assumes that there were no other changes in the Company’s operations. The pro forma information does not necessarily reflect the actual results that would have occurred had the Company and Teris been combined during the periods presented, nor is it necessarily indicative of the future results of operations of the combined companies.

 

 

For the
three-month
period ended

 

For the
nine-month
period ended

 

 

 

September 30,

 

September 30,

 

(dollars in thousands, except share data)

 

2006

 

2006

 

 

 

 

 

 

 

Pro forma revenues

 

$

224,795

 

$

657,113

 

Pro forma net income available to common stockholders

 

$

15,719

 

$

28,062

)

Pro forma basic earnings per share

 

$

0.80

 

$

1.44

)

Pro forma diluted earnings per share

 

$

0.77

 

$

1.37

)

 

(3) SIGNIFICANT ACCOUNTING POLICIES

The accompanying consolidated financial statements of the Company reflect the application of certain significant accounting policies as described below:

(a) Principles of Consolidation

The accompanying consolidated statements include the accounts of Clean Harbors, Inc. and its wholly-owned subsidiaries. All material intercompany accounts and transactions have been eliminated in consolidation.

(b) Revenue Recognition

The Company recognizes revenue when persuasive evidence of an arrangement exists, delivery has occurred or services have been rendered, the price is fixed or determinable, and collection is reasonably assured.

The Company provides a wide range of environmental services through two major segments: Technical Services and Site Services. Technical Services involve: (i) services for collection, transportation and logistics management; (ii) services for the categorizing, packaging and removal of laboratory chemicals (CleanPack®); and (iii) services related to the treatment and disposal of hazardous wastes. Site Services involve a wide range of services to maintain industrial facilities and process equipment, as well as clean up or contain actual or threatened releases of hazardous materials into the environment. Revenues for all services with the exception of services for the treatment and disposal of hazardous waste are recorded as services are rendered. Revenues for disposing of hazardous waste are recognized upon completion of wastewater treatment, landfill or incineration of the waste at a Company-owned site or when the waste is shipped to a third party for processing and disposal. Revenues from waste that is not yet completely processed and the related costs are deferred until services are completed. Revenue is recognized on contracts with retainage when services have been rendered and collectability is reasonably assured.

10




 

(c) Credit Concentration

Concentration of credit risks in accounts receivable is limited due to the large number of customers comprising the Company’s customer base throughout North America. The Company performs periodic credit evaluations of its customers. The Company establishes an allowance for uncollectible accounts based on the credit risk applicable to particular customers, historical trends and other relevant information.

(d) Income Taxes

The Company’s components of income tax expense are current and deferred. Current income tax expense approximates cash to be paid or refunded for taxes for the applicable period. Deferred tax assets and liabilities are determined based upon the difference between the financial statement and tax basis of assets and liabilities as measured by the enacted tax rates, which will be in effect when these differences reverse. Deferred tax expense or benefit is the result of changes between deferred tax assets and liabilities.

A valuation allowance is established when, based on an evaluation of objective verifiable evidence, it is more likely than not that some portion or all of deferred tax assets will not be realized.

(e) Earnings per Share (“EPS”)

Basic EPS is calculated by dividing income available to common stockholders by the weighted average number of common shares outstanding during the period. Diluted EPS gives effect to all potentially dilutive common shares that were outstanding during the period unless their inclusion would be anti-dilutive.

(f) Segment Information

The Company’s operations are managed in two segments: Technical Services and Site Services. The Company operates within the United States, Puerto Rico, Canada and Mexico and no individual customer accounts for more than 5% of revenues.

(g) Cash and Cash Equivalents

The Company considers all highly liquid instruments purchased with original maturities of less than three months to be cash equivalents.

The Company’s cash management program with its revolving credit lender allows maintenance of a zero balance in the U.S. bank accounts that are used to issue vendor and payroll checks. The checks are covered from availability under the revolving line of credit when the checks are presented for payment. The program can result in checks outstanding in excess of bank balances in the disbursement accounts. When checks are presented to the bank for payment, cash deposits in amounts sufficient to fund the checks are made from funds provided under the terms of the Company’s revolving credit facility. Uncashed checks are checks that have been sent to either vendors or employees but have not yet been presented for payment at the Company’s bank.

(h) Marketable Securities

As of September 30, 2006, the Company held $10.3 million in marketable securities, which consist primarily of readily marketable auction bond securities and which are held for working capital purposes. Accordingly, the Company has classified these investments as available-for-sale. Available-for-sale securities are carried at fair value, with the unrealized gains and losses, net of tax, reported as a component of stockholders’ equity. During the three- and nine-month periods ended September 30, 2006, the Company had no unrealized gain or loss on these securities. The Company determines the appropriate classification of its marketable securities at the time of purchase and reevaluates such classification as of each balance sheet date.

11




 

(i) Supplies Inventories

Parts and supplies inventories consist primarily of supplies and repair parts, which are stated at the lower of cost or market. The Company periodically reviews its inventories for obsolete or unsaleable items and adjusts its carrying value to reflect estimated realizable values.

(j) Property, Plant and Equipment

Property, plant and equipment are stated at cost and include amounts capitalized under capital lease obligations. Expenditures for major renewals and improvements which extend the life or usefulness of the asset are capitalized. Items of an ordinary repair or maintenance nature, as well as major maintenance activities at incinerators, are charged directly to operating expense as incurred. During the construction and development period of an asset, the costs incurred, including applicable interest costs, are classified as construction-in-progress. Once an asset has been completed and placed in service, it is transferred to the appropriate category and depreciation commences. In addition, the Company capitalizes applicable interest costs associated with partially-constructed assets, primarily included in landfill assets. Interest in the amount of $112 thousand was capitalized to fixed assets during the three-month period ended September 30, 2006 and $226 thousand during the nine-month period ended September 30, 2006. No interest was capitalized for the comparable periods of 2005. Depreciation and amortization expense was $7.6 million and $20.3 million for the three- and nine-month periods ended September 30, 2006, respectively, as compared to $5.8 million and $17.3 million for the comparable periods in 2005.

Depreciation and amortization of other property, plant and equipment is provided on a straight-line basis over their estimated useful lives, with the exception of landfill assets, which are depreciated on a units-of-consumption basis. Leasehold improvements are capitalized and amortized over the shorter of the life of the lease or the asset.

The Company depreciates and amortizes the cost of these assets, using the straight-line method as follows:

Asset Classification

 

Estimated
Useful
Life

 

Capitalized software

 

3 years

 

Buildings and building improvements

 

Shorter of remaining life or 40 years

 

Land improvements

 

5 years

 

Leasehold improvements

 

Shorter of lease term or 10 years

 

Vehicles

 

3-10 years

 

Equipment

 

3-8 years

 

Furniture and fixtures

 

5-8 years

 

 

Upon retirement or other disposition, the cost and related accumulated depreciation of the assets are removed from the accounts and the resulting gain or loss is reflected in other income (expense).

(k) Intangible Assets

Permits are amortized over periods ranging from 5 to 30 years. Permits relating to landfills are amortized on a consumption unit basis. All other permits are amortized on a straight-line basis. Permits consist of the value of permits acquired through acquisition and environmental cleanup costs that improve facilities, as compared with the condition of that property when originally acquired. Amortization expense was $3.5 million and $6.0 million for the three- and nine-month periods ended September 30, 2006, respectively, as compared to $1.4 million and $4.2 million for the comparable periods of 2005.

12




 

The customer profile database is amortized over five years.

(l) Operating Leases

Statement of Financial Accounting Standards (“SFAS”) No. 144, “Accounting for the Impairment or Disposal of Long-Lived Assets,” (“SFAS 144”) requires that an impairment in the carrying value of long-lived assets be recognized when the expected future undiscounted cash flows derived from the assets are less than its carrying value. For the three- and nine-month periods ended September 30, 2006, the Company recorded a $2.0 million impairment charge related to long-lived assets at the Plaquemine, LA facilitity There were no impairment charges during the comparable periods of 2005.

The Company leases rolling stock, equipment, real estate and office equipment under operating leases. Certain real estate leases contain rent holidays and rent escalation clauses. Most of the Company’s real estate lease agreements include renewal periods at the Company’s option. The Company recognizes rent holiday periods and scheduled rent increases on a straight-line basis over the lease term beginning with the date the Company takes possession of the leased space.

(m) Deferred Financing Costs

Deferred financing costs are amortized over the life of the related debt instrument. Amortization expense is included in interest expense in the statements of operations.

(n) Closure and Post-closure Liabilities

Closure and post-closure costs incurred are increased for inflation (2.17% and 2.16% for closure and post-closure liabilities incurred in the nine-month periods ended September 30, 2006 and 2005, respectively). The Company uses an inflation rate published by the U.S. Department of Labor Bureau of Labor Statistics that excludes the more volatile items of food and energy. Closure and post-closure costs are discounted at the Company’s credit-adjusted risk-free interest rate (9.25% and 10.25% for closure and post-closure liabilities incurred in the nine-month periods ended September 30, 2006 and 2005, respectively). For the asset retirement obligations incurred in the nine-month periods ended September 30, 2006 and 2005, the Company estimated its credit-adjusted risk-free interest rate by adjusting the then current yield based on market prices of its 11.25% Senior Secured Notes then outstanding by the difference between the yield of a U.S. Treasury Note of the same duration as the Senior Secured Notes and the yield on the 30-year U.S. Treasury Bond. Under SFAS No. 143, the cost of financial assurance for the closure and post-closure care periods cannot be accrued but rather is a period cost. Prior to the adoption of SFAS No. 143, the Company accrued the cost of financial assurance relating to both landfill and non-landfill closure and to both landfill and non-landfill post-closure care, as required, under SFAS No. 5, “Accounting for Contingencies.” Under SFAS No. 143, financial assurance is no longer included as a component of closure or post-closure costs. SFAS No. 143 requires the cost of financial assurance to be expensed as incurred, and SFAS No. 143 requires the cost of financial assurance to be considered in the determination of the credit-adjusted risk-free interest rate. Under SFAS No. 143, the cost of financial assurance is considered in the determination of the credit-adjusted risk-free interest rate used to discount the closure and post-closure obligations.

Landfill Accounting

Landfill Accounting—The Company utilizes the life cycle method of accounting for landfill costs and the units-of-consumption method to amortize landfill construction and asset retirement costs and record closure and post-closure obligations over the estimated useful life of a landfill. Under this method, the Company includes future estimated construction and asset retirement costs, as well as costs incurred to date, in the amortization base. In addition, the Company includes probable expansion airspace that has yet to be permitted in the calculation of the total remaining useful life of the landfill.

Landfill assets—Landfill assets include the costs of landfill site acquisition, permitting, preparation and improvement. These amounts are recorded at cost, which includes capitalized interest as applicable. Landfill assets, net of amortization, are combined with management’s estimate of the costs required to complete construction of the landfill to determine the amount to be amortized over the remaining estimated useful economic life of a site. Amortization of landfill assets is recorded on a units-of-consumption basis, such that the landfill assets should be completely amortized at the date the landfill ceases accepting waste. Changes in estimated costs to complete construction are applied prospectively to the amortization rate.

13




 

Amortization of cell construction costs and accrual of cell closure obligations—Landfills are typically comprised of a number of cells, which are constructed within a defined acreage (or footprint). The cells are typically discrete units, which require both separate construction and separate capping and closure procedures. Cell construction costs are the costs required to excavate and construct the landfill cell. These costs are typically amortized on a units-of-consumption basis, such that they are completely amortized when the specific cell ceases accepting waste. In some instances, the Company has landfills that are engineered and constructed as “progressive trenches.” In progressive trench landfills, a number of contiguous cells form a progressive trench. In those instances, the Company amortizes cell construction costs over the airspace within the entire trench, such that the cell construction costs will be fully amortized at the end of the trench useful life.

The design and construction of a landfill does not create a landfill asset retirement obligation. Rather, the asset retirement obligation for cell closure (the cost associated with capping each cell) is incurred in relatively small increments as waste is placed in the landfill. Therefore, the cost required to construct the cell cap is capitalized as an asset retirement cost and a liability of an equal amount is established, based on the discounted cash flow associated with each capping event, as airspace is consumed. Spending for cell capping is reflected as a change in liabilities within operating activities in the statement of cash flows.

Landfill final closure and post-closure liabilities—The Company has material financial commitments for the costs associated with requirements of the United States Environmental Protection Agency (the “EPA”) and the comparable regulatory agency in Canada for landfill final closure and post-closure activities. In the United States, the landfill final closure and post-closure requirements are established under the standards of the EPA, and are implemented and applied on a state-by-state basis. Estimates for the cost of these activities are developed by the Company’s engineers, accountants and external consultants, based on an evaluation of site-specific facts and circumstances, including the Company’s interpretation of current regulatory requirements and proposed regulatory changes. Such estimates may change in the future due to various circumstances including, but not limited to, permit modifications, changes in legislation or regulations, technological changes and results of environmental studies.

Final closure costs include the costs required to cap the final cell of the landfill (if not included in cell closure) and the costs required to dismantle certain structures for landfills and other landfill improvements. In addition, final closure costs include regulation-mandated groundwater monitoring, leachate management and other costs incurred in the closure process. Post-closure costs include substantially all costs that are required to be incurred subsequent to the closure of the landfill, including, among others, groundwater monitoring and leachate management. Regulatory post-closure periods are generally 30 years after landfill closure. Final closure and post-closure obligations are discounted. Final closure and post-closure obligations are accrued on a units-of-consumption basis, such that the present value of the final closure and post-closure obligations are fully accrued at the date the landfill discontinues accepting waste.

For landfills purchased, the Company assessed and recorded the present value of the estimated closure and post-closure liability based upon the estimated final closure and post-closure costs and the percentage of airspace consumed as of the purchase date. Thereafter, the difference between the liability recorded at the time of acquisition and the present value of total estimated final closure and post-closure costs to be incurred is accrued prospectively on a units-of-consumption basis over the estimated useful economic life of the landfill.

Landfill capacity—Landfill capacity, which is the basis for the amortization of landfill assets and for the accrual of final closure and post-closure obligations, represents total permitted airspace plus unpermitted airspace that management believes is probable of ultimately being permitted based on established criteria. The Company applies a comprehensive set of criteria for evaluating the probability of obtaining a permit for future expansion airspace at existing sites, which provides management a sufficient basis to evaluate the likelihood of success of unpermitted expansions. Those criteria are as follows:

·                  Personnel are actively working to obtain the permit or permit modifications (land use, state and federal) necessary for expansion of an existing landfill, and progress is being made on the project.

·                  The Company expects to submit the application within the next year and expects to receive all necessary approvals to accept waste within the next five years.

·                  At the time the expansion is included in the Company’s estimate of the landfill’s useful economic life, it is

14




 

probable that the required approvals will be received within the normal application and processing time periods for approvals in the jurisdiction in which the landfill is located.

·                  The owner of the landfill or the Company has a legal right to use or obtain land associated with the expansion plan.

·                  There are no significant known political, technical, legal, or business restrictions or issues that could impair the success of such expansion.

·                  A financial feasibility analysis has been completed and the results demonstrate that the expansion has a positive financial and operational impact such that management is committed to pursuing the expansion.

·                  Additional airspace and related additional costs, including permitting, final closure and post-closure costs, have been estimated based on the conceptual design of the proposed expansion.

Exceptions to the criteria set forth above may be approved through a landfill-specific approval process that includes approval from the Company’s Chief Financial Officer and review by the Audit Committee of the Board of Directors. As of September 30, 2006, there were four unpermitted expansions included in the Company’s landfill accounting model, which represented 36.9% of the Company’s remaining airspace at that date. Of these expansions, one represents an exception to the Company’s established criteria. In March 2004, the Chief Financial Officer approved and the Audit Committee of the Board of Directors reviewed the inclusion of 7.8 million cubic yards of unpermitted airspace in highly probable airspace because the Company determined that the airspace was highly probable even though the permit application was not submitted within the next year. All of the other criteria were met for the inclusion of this airspace in highly probable airspace. As of September 30, 2006, this airspace still represented an exception to the Company’s permit application criteria. Had the Company not included the 7.8 million cubic yards of unpermitted airspace in highly probable airspace, operating expense for the nine-month periods ended September 30, 2006 and 2005 would have been higher by $491 thousand and $426 thousand, respectively.

The following table presents the change in remaining highly probable airspace from December 31, 2005 through September 30, 2006 (in thousands):

 

Highly Probable
Airspace
(Cubic Yards)

 

Remaining capacity at December 31, 2005

 

29,001

 

Consumed during nine months ended September 30, 2006

 

(763

)

Remaining capacity at September 30, 2006

 

28,238

 

 

Non-Landfill Closure and Post-Closure

Non-landfill closure costs include costs required to dismantle and decontaminate certain structures and other costs incurred during the closure process. Post-closure costs, if required, include associated maintenance and monitoring costs and financial assurance costs as required by the closure permit. Post-closure periods are generally specified in terms of years in the closure permit, and are usually 30 years.

The Company records its non-landfill closure and post-closure liability by: (i) estimating the current cost of closing a non-landfill facility and the post-closure care of that facility, if required, based upon the closure plan that the Company is required to follow under its operating permit, or in the event the facility operates with a permit that does not contain a closure plan, based upon legally enforceable closure commitments made by the Company to various governmental agencies; (ii) using probability scenarios as to when in the future operations may cease; (iii) inflating the current cost of closing the non-landfill facility on a probability weighted basis using the inflation rate to the time of closing under each probability scenario; and (iv) discounting the future value of each closing scenario back to the present using the credit-adjusted risk-free interest rate. Non-landfill closure and post-closure obligations arise when the Company commences operations. Prior to the implementation of SFAS No. 143, these obligations were expensed in the period that a decision was made to close a facility.

15




 

(o) Remedial Liabilities

Remedial liabilities, including Superfund liabilities, include the costs of removal or containment of contaminated material, the treatment of potentially contaminated groundwater and maintenance and monitoring costs necessary to comply with regulatory requirements. SFAS No. 143 applies to asset retirement obligations that arise from normal operations. Almost all of the Company’s remedial liabilities were assumed as part of the acquisition in 2002 of the CSD assets from Safety-Kleen, and the Company believes that the remedial obligations did not arise from normal operations.  The Company acquired certain additional remedial liabilities as part of the acquisition in August 2006 of Teris LLC.

Discounting of Remedial Liabilities

Remedial liabilities are discounted only when the timing of the payments is estimable and the amounts are determinable. The Company’s experience has been that the timing of the payments is not usually estimable and therefore, generally, remedial liabilities are not discounted. However, under purchase accounting, acquired liabilities are recorded at fair value, which requires taking into consideration inflation and discount factors. Accordingly, as of the acquisition date, the Company recorded the remedial liabilities assumed as part of the acquisition of the Chemical Services Division (the “CSD”) of Safety-Kleen Corp. (“Safety-Kleen”) assets and Teris LLC at their fair value, which were calculated by inflating costs in current dollars using an estimate of future inflation rates as of the acquisition date until the expected time of payment, then discounting the payment to its present value using a risk-free discount rate as of the acquisition date. Subsequent to the acquisition, discounts were and will be applied to the environmental liabilities as follows:

·                  Remedial liabilities assumed relating to the acquisition of the CSD assets and Teris LLC are and will continue to be inflated using the inflation rate at the time of acquisition (2.4% and 2.17%, respectively) until the expected time of payment, then discounted at the risk-free interest rate at the time of each acquisition of 4.9%.

·                  Remedial liabilities incurred subsequent to the acquisitions and remedial liabilities of the Company that existed prior to the acquisitions have been and will continue to be recorded at the estimated current value of the liabilities, which is usually neither increased for inflation nor reduced for discounting.

Claims for Recovery

The Company records claims for recovery from third parties relating to remedial liabilities only when realization of the claim is probable. The gross remedial liability is recorded separately from the claim for recovery on the balance sheet. At September 30, 2006 and December 31, 2005, the Company had recorded no such claims.

(p) Other Comprehensive Income

At September 30, 2006, the components of other comprehensive income (loss) reflected in the Consolidated Statements of Stockholders’ Equity were as follows (in thousands):

 

Nine Months
Ended
September 30,

 

 

 

2006

 

2005

 

Cumulative translation adjustment of foreign currency statements

 

$

(1,797

)

$

(1,223

)

 

(q) Foreign Currency

Foreign subsidiary balances are translated according to the provisions of SFAS No. 52, “Foreign Currency Translation.” The functional currency of each foreign subsidiary is its respective local currency. Assets and liabilities are translated to U.S. dollars at the exchange rate in effect at the balance sheet date and revenue and expenses at the average exchange rate for the period. Gains and losses from the translation of the consolidated financial statements of the foreign subsidiaries into U.S. dollars are included in stockholders’ equity as a component of other comprehensive income. Gains and losses resulting from foreign currency transactions are recognized in the accompanying consolidated statements of operations. Recorded balances that are denominated in a currency other than the functional currency are adjusted to the

16




 

functional currency using the exchange rate at the balance sheet date.

(r) Letters of Credit

The Company utilizes letters of credit to provide collateral assurance to regulatory authorities that certain funds will be available for closure of Company facilities. In addition, the Company utilizes letters of credit to provide collateral for casualty insurance programs, to provide collateral for the vehicle lease line and to provide collateral for a transportation permit. As of September 30, 2006 and December 31, 2005, the Company had outstanding letters of credit amounting to $93.0 million and $88.7 million, respectively.

(s) Use of Estimates

The preparation of financial statements in conformity with accounting principles generally accepted in the United States of America requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities at the dates of the financial statements and the reported amounts of revenues and expenses during the reporting period. Actual results could differ from these estimates.

(t) Stock-based Compensation

On January 1, 2006, the Company adopted SFAS No. 123 (revised 2004), “Share-Based Payment.” SFAS No. 123(R) replaces SFAS No. 123, “Accounting for Stock-Based Compensation,” and supersedes Accounting Principles Board (“APB”) Opinion No. 25, “Accounting for Stock Issued to Employees.” SFAS No. 123(R) requires companies to recognize compensation cost relating to share-based payment transactions in their financial statements. That cost is measured based upon the fair value of the equity or liability instruments issued. The Company adopted SFAS No. 123(R) using the modified prospective method. Under this transition method, new awards are valued and accounted for prospectively upon adoption. Outstanding prior awards that were unvested as of January 1, 2006 are recognized as compensation cost over the remaining requisite service period. The results of operations of prior periods have not been restated. Accordingly, the Company will continue to provide pro forma financial information for periods prior to the date of adoption to illustrate the effect on net income and earning per share of applying the fair value recognition provisions of SFAS No. 123. See Note 14, “Stock-Based Compensation,” for further detail.

(u) Investment in Joint Venture

The Company acquired a 50% interest in Ensco Caribe, Inc. in connection with its acquisition of Teris LLC in August 2006 (see Note 2, “Acquisition”).  As the Company does not have effective management control, this investment is being accounted for based on the equity method of accounting.

(v) New Accounting Pronouncements

In September 2006, the FASB issued SFAS No. 157, Fair Value Measurements (“FAS 157”). FAS 157 defines fair value, establishes a market-based framework or hierarchy for measuring fair value, and expands disclosures about fair value measurements. FAS 157 is applicable whenever another accounting pronouncement requires or permits assets and liabilities to be measured at fair value. FAS 157 does not expand or require any new fair value measures, however the application of this statement may change current practice. The requirements of FAS 157 are effective for fiscal years beginning after November 15, 2007.  Management is evaluating the effect that adoption of FAS 157 will have on the Company’s consolidated financial position and results of operations

In September  2006,  the FASB issued SFAS No. 158, Employers'  Accounting  for Defined Benefit Pension and Other Post-retirement Plans (“FAS 158”).  This statement requires companies to recognize a net liability or asset and an offsetting  adjustment to accumulated  other  comprehensive  income to report the funded status of defined benefit pension and other  post-retirement  benefit plans.  FAS 158 requires prospective  application,  and the recognition and disclosure  requirements are effective  for  companies  with fiscal  years  ending  after  December 15, 2006.  Additionally,  FAS 158  requires  companies  to  measure  plan  assets and obligations at their year-end  balance sheet date. This requirement is effective for fiscal years ending after  December 15, 2008.  Management is evaluating the effect that adoption of

 

17




 

FAS 158 will have on the Company’s consolidated financial position and results of operations.

 

In September 2006, the Securities and Exchange Commission (“SEC”) issued Staff Accounting Bulletin No. 108, “Considering the Effects of Prior Year Misstatements when Quantifying Misstatements in Current Year Financial Statements” (“SAB 108”). This bulletin expresses the SEC’s views regarding the process of quantifying financial statement misstatements. The interpretations in this bulletin were issued to address diversity in practice in quantifying financial statement misstatements and the potential under current practice for the build-up of improper amounts on the balance sheet. SAB 108 is effective for fiscal years ending after November 15, 2006. Management is evaluating the adoption of SAB 108 and its impact on the Company’s consolidated financial statements.

In June 2006, the FASB issued FASB Interpretation No. 48 (“FIN 48”), “Accounting for Uncertainty in Income Taxes — an interpretation of FASB Statement No. 109.” FIN 48 clarifies the accounting for uncertainty in income taxes recognized in the financial statements by prescribing a recognition threshold and measurement attribute for the financial statement recognition and measurement of a tax position taken or expected to be taken in a tax return. FIN 48 also provides guidance on accounting for de-recognition, classification, interest and penalties, accounting in interim periods, disclosure and transition. FIN 48 is effective for fiscal years beginning after December 15, 2006. Management is currently evaluating the effect that adoption of this interpretation will have on the Company’s consolidated financial position, results of operations and cash flows.

 (4) MARKETABLE SECURITIES

As of September 30, 2006, the Company held $10.3 million in marketable securities, which consisted primarily of auction bond securities readily marketable and which were held for working capital purposes. Accordingly, the Company classified these investments as available-for-sale. Available-for-sale securities are carried at fair value, with the unrealized gains and losses, net of tax, reported as a component of stockholders’ equity. For the three- and nine-month periods ended September 30, 2006, the Company had no unrealized gain or loss on these securities. The Company determines the appropriate classification of its marketable securities at the time of purchase and reevaluates such classification as of each balance sheet date.

(5) PROPERTIES HELD FOR SALE

As part of its plan to integrate the activities of the CSD business into its operation, the Company determined that certain acquired properties were no longer needed for its operations. The Company decided to sell these acquired properties; accordingly, the acquired surplus properties were transferred to properties held for sale. In the allocation of the purchase price of the CSD acquisition, the Company valued properties held for sale at the current appraised market value less estimated selling costs. In addition, subsequent to the completion of the purchase accounting for the CSD acquisition, the Company identified several additional properties that were no longer needed for its operations. These properties were transferred to properties held for sale at the lower of their net book value or current appraised market value less estimated selling costs. Properties held for sale include only those properties that the Company believes can be sold within the next 12 months based on current market conditions and the asking price. The Company cannot provide assurance that such sales will be completed within that period or that the proceeds from properties held for sale will equal their carrying value.

The following table presents the changes in properties held for sale for the nine-month period ended September 30, 2006 (in thousands):

Balance at beginning of period

 

$

7,670

 

Transfers to properties held for sale

 

1,787

 

Assets sold

 

(1,125

)

Adjustments in estimated carrying value

 

(209

)

Currency translation

 

8

 

Balance at end of period

 

$

8,131

 

 

18




 

(6) FINANCING ARRANGEMENTS

The following table is a summary of the Company’s financing arrangements (in thousands):

 

 

September  30,  
2006

 

December 31,
2005

 

Revolving Facility with a financial institution, bearing interest at either the U.S. or Canadian prime rate (8.25% and 6.00%, respectively, at September 30, 2006), depending on the currency of the underlying loan, or the Eurodollar rate (5.32% at September 30, 2006) plus 1.50%, collateralized by accounts receivable

 

$

 

$

 

Term Loan with a financial institution, bearing interest at the U.S. prime rate (8.25% at September 30, 2006) plus 1.5%, or the Eurodollar rate (5.32% at September 30, 2006) plus 2.50%, collateralized by a first-priority lien (second priority as to accounts receivable) on substantially all of the Company’s assets within the United States (maturity date of December 1, 2010)

 

30,000

 

 

Senior Secured Notes, bearing interest at 11.25%, collateralized by a second-priority lien on substantially all of the Company’s assets within the United States except for accounts receivable (maturity date of July 15, 2012)

 

97,500

 

150,000

 

Less unamortized issue discount

 

1,027

 

1,710

 

Less obligations classified as current

 

5,982

 

52,500

 

Long-term obligations

 

$

120,491

 

$

95,790

 

 

On January 12, 2006, the Company redeemed $52.5 million principal amount of outstanding Senior Secured Notes and paid prepayment penalties and accrued interest through the redemption date.

The Company issued the Senior Secured Notes on June 30, 2004, and established the Revolving Facility and a $50.0 million synthetic letter of credit facility (the “Synthetic LC Facility”) on December 1, 2005, under an amended and restated loan and security agreement (the “Amended Credit Agreement”) which the Company then entered into with the lenders under the Company’s loan and security agreement dated June 30, 2004 (the “Original Credit Agreement”). The principal differences between the Amended Credit Agreement and the Original Credit Agreement are that: (i) the Revolving Facility was increased from $30.0 million under the Original Credit Agreement to $70.0 million under the Amended Credit Agreement; (ii) the maximum amount of the letters of credit which the Company may have issued as part of the Revolving Facility increased from $10.0 million under the Original Credit Agreement to $50.0 million under the Amended Credit Agreement (and further increased to $60.0 million in July 2006); (iii) the Synthetic LC Facility was decreased from $90.0 million under the Original Credit Agreement to  $50.0 million under the Amended Credit Agreement; (iv) a provision allowing the Company to borrow up to $60.0 million in term loans (on terms subsequently to be established) was added; and (v) the annual rate of the participation fee payable on $50.0 million which the LC Lenders have deposited for purposes of the Synthetic LC Facility was decreased from 5.35% under the Original Credit Agreement to 3.10% under the Amended Credit Agreement (and further reduced to 2.85% on January 12, 2006 as described below).  On August 18, 2006, in order to finance a portion of the purchase price for the Company’s acquisition of Teris LLC, the Company and the lenders under the Amended Credit Agreement entered into a Term Loan Supplement to the Amended Credit Agreement which provided for a $30.0 million term loan to the Company (the “Term Loan”) with a maturity date of December 1, 2010.

The principal terms of the Senior Secured Notes, the Revolving Facility, the Synthetic LC Facility and the Term Loan are as follows:

Senior Secured Notes. The Senior Secured Notes were issued under an Indenture dated June 30, 2004 (the “Indenture”). The Senior Secured Notes bear interest at 11.25% and mature on July 15, 2012. The $150.0 million original principal amount of the Senior Secured Notes was issued at a $2.0 million discount that resulted in an effective yield of 11.5%. Interest is payable semiannually in cash on each January 15 and July 15, commencing on January 15, 2005.

The Senior Secured Notes are secured by a second-priority lien on the assets of the Company and its U.S. subsidiaries that secure the Company’s reimbursement obligations under the Synthetic LC Facility on a first-priority basis (as described

 

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below); provided that the assets which secure the Senior Secured Notes do not include any capital stock, notes, instruments, other equity interests of any of the Company’s subsidiaries, accounts receivable, and certain other excluded collateral as provided in the Indenture. The Senior Secured Notes are jointly and severally guaranteed on a senior secured second-lien basis by substantially all of the Company’s existing and future U.S. subsidiaries. The Senior Secured Notes are not guaranteed by the Company’s foreign subsidiaries.

The Indenture provides for certain covenants, the most restrictive of which requires the Company, within 120 days after the close of each twelve-month period ending on June 30 of each year (beginning June 30, 2005 and ending June 30, 2011) to apply an amount equal to 50% of the period’s Excess Cash Flow (as defined below) to either prepay, repay, redeem or purchase its first-lien obligations under the Revolving Facility and Synthetic LC Facility or to make offers (“Excess Cash Flow Offers”) to repurchase all or part of the then outstanding Senior Secured Notes at an offering price equal to 104% of their principal amount plus accrued interest. “Excess Cash Flow” is defined in the Indenture as consolidated earnings before interest, taxes, depreciation and amortization (“EBITDA”) less interest expense, all taxes paid or accrued in the period, capital expenditures made in cash during the period, and all cash spent on environmental monitoring, remediation or relating to environmental liabilities of the Company.

Excess Cash Flow for the twelve months ended June 30, 2006 was $36.0 million. Accordingly, the Company offered on September 20, 2006 to repurchase up to $17.3 million principal amount of the Senior Secured Notes at a price equal to 104% of the principal amount thereof, plus accrued interest.  This offer was accepted by holders of $6.0 million principal amount of Notes, and the Company therefore repurchased such Notes on October 24, 2006 for a total price of $6.4 million (including $424 thousand of accrued interest).  No portion of the Company’s Excess Cash Flow earned through June 30, 2006 will be included in the amount of Excess Cash Flow earned in subsequent periods. However, the Indenture’s requirement to make Excess Cash Flow Offers in respect of Excess Cash Flow earned in subsequent twelve-month periods will remain in effect.

Revolving Facility. The Revolving Facility allows the Company to borrow up to $70.0 million in cash, based upon a formula of eligible accounts receivable. This total is separated into two lines of credit, namely: (i) a line for the Company and its U.S. subsidiaries equal to $70.0 million less the principal balance then outstanding under the line for the Company’s Canadian subsidiaries and (ii) a line for the Company’s Canadian subsidiaries equal to $5.3 million. The Revolving Facility also provides that Bank of America, N.A. will issue at the Company’s request up to $60.0 million of letters of credit, with the outstanding amount of such letters of credit reducing the maximum amount of borrowings available under the Revolving Facility. At September 30, 2006, the Company had no borrowings and $43.8 million of letters of credit outstanding under the Revolving Facility, and the Company had approximately $26.2 million available to borrow. Amounts outstanding under the Revolving Facility bear interest at an annual rate of either the U.S. or Canadian prime rate (depending on the currency of the underlying loan) or the Eurodollar rate plus 1.50%. The Company is required to pay monthly letter of credit and quarterly fronting fees at an annual rate of 1.5% and 0.3%, respectively, on the amount of letters of credit outstanding under the Revolving Facility and an annual administrative fee of $25 thousand. The Credit Agreement also requires the Company to pay an unused line fee of 0.125% per annum on the unused portion of the Revolving Facility. The term of the Revolving Facility will expire on December 1, 2010.

Synthetic LC Facility. The Synthetic LC Facility provides that Credit Suisse (the “LC Facility Issuing Bank”) will issue up to $50.0 million of letters of credit at the Company’s request. The Synthetic LC Facility requires that the LC Facility Lenders maintain a cash account (the “Credit-Linked Account”) to collateralize the Company’s outstanding letters of credit. Should any such letter of credit be drawn in the future and the Company fail to satisfy its reimbursement obligation, the LC Facility Issuing Bank would be entitled to draw upon the appropriate portion of the $50.0 million in cash which the LC Facility Lenders have deposited into the Credit-Linked Account. Acting through the LC Facility Agent, the LC Facility Lenders would then have the right to exercise their rights as first-priority lien holders (second-priority as to receivables) on substantially all of the assets of the Company and its U.S. subsidiaries. The Company has no right, title or interest in the Credit-Linked Account established under the Amended Credit Agreement for purposes of the Synthetic LC Facility. Under the Amended Credit Agreement, the Company was required to pay a quarterly participation fee at the annual rate of 3.10% on the $50.0 million facility. Following the redemption of $52.5 million of Senior Secured Notes on January 12, 2006, the annual rate of the quarterly participation fee was reduced to 2.85%. The Company is also required to pay a quarterly fronting fee at the annual rate of 0.30% of the average daily aggregate amount of letters of credit outstanding under the Synthetic LC Facility and an annual administrative fee of $65 thousand. At September 30, 2006, letters of credit outstanding under the Synthetic LC facility were $49.2 million. The term of the Synthetic LC Facility will expire on December 1, 2010.

 

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Term Loan. The $30.0 million Term Loan was issued on August 18, 2006 under the Amended Credit Agreement, as supplemented on that date by the Term Loan Supplement. The Term Loan will mature on December 1, 2010, which is the expiration date of the Revolving Facility and the Synthetic LC Facility. The Term Loan bears interest, at the Company’s option, at either the Eurodollar rate plus 2.5% or the U.S. prime rate plus 1.5%. The Term Loan is treated for most purposes under the Amended Credit Agreement as an outstanding obligation under the Synthetic LC Facility. Accordingly, the Term Loan Lenders are entitled to most of the same benefits as the LC Facility Lenders including, without limitation, the financial covenants described below. In the event of a default under the Term Loan, the Term Loan Lenders, acting through the LC Facility Agent, will have, along with the LC Facility Lenders, the right to exercise their rights as first-priority lien holders (second as to accounts receivable) on substantially all of the assets of the Company and its U.S. subsidiaries.

Under the Amended Credit Agreement, the Company is required to maintain a maximum Leverage Ratio (as defined below) of no more than 2.40 to 1.0 for the quarters ending September 30, 2006 and December 31, 2006. The maximum Leverage Ratio then reduces to no more than 2.35 to 1.0 for the quarters ending March 31, 2007 through December 31, 2007, and to no more than 2.30 to 1.0 for the quarters ending March 31, 2008 through December 31, 2008, and 2.25 to 1.0 for each succeeding quarter. The Leverage Ratio is defined as the ratio of the consolidated indebtedness of the Company to its Consolidated EBITDA (as defined in the Amended Credit Agreement) achieved for the latest four-quarter period. For the quarter ended September 30, 2006, the Leverage Ratio was 1.07 to 1.0.

The Company is also required under the Amended Credit Agreement to maintain a minimum Interest Coverage Ratio (as defined below) of not less than 2.80 to 1.0 for the quarter ended September 30, 2006. The minimum Interest Coverage Ratio then increases to not less than 2.85 to 1.0 for the quarters ending December 31, 2006 through December 31, 2007, and to not less than 3.00 to 1.0 for each succeeding quarter. The Interest Coverage Ratio is defined as the ratio of the Company’s Consolidated EBITDA to its consolidated interest expense for the latest four-quarter period. For the quarter ended September 30, 2006, the Interest Coverage Ratio was 7.44 to 1.0.

The Company is also required under the Amended Credit Agreement to maintain a fixed charge coverage ratio of not less than 1.0 to 1.0 for each four-quarter period if, at the end of such four-quarter period, the Company has greater than $5.0 million of loans outstanding under the Revolving Credit Facility. At September 30, 2006, the Company had no loans outstanding under the Revolving Credit Facility and, therefore, the Company was not then required to comply with the fixed charge ratio covenant.

 

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(7) LEGAL PROCEEDINGS

The Company’s waste management services are continuously regulated by federal, state, provincial and local laws enacted to regulate discharge of materials into the environment, remediation of contaminated soil and groundwater or otherwise protect the environment. This ongoing regulation results in the Company frequently becoming a party to judicial or administrative proceedings involving all levels of governmental authorities and other interested parties. The issues involved in such proceedings generally relate to applications for permits and licenses by the Company and conformity with legal requirements, alleged violations of existing permits and licenses or requirements to clean up contaminated sites. At September 30, 2006, the Company was involved in various proceedings, the principal of which are described below, relating primarily to activities at or shipments to and/or from the Company’s waste treatment, storage and disposal facilities.

Legal Proceedings Related to Acquisition of CSD Assets

Effective September 7, 2002 (the “Closing Date”), the Company purchased from Safety-Kleen Services, Inc. and certain of its domestic subsidiaries (collectively, the “Sellers”) substantially all of the assets of the Chemical Services Division (the “CSD”) of Safety-Kleen Corp. (“Safety-Kleen”). The Company purchased the CSD assets pursuant to a sale order (the “Sale Order”) issued by the Bankruptcy Court for the District of Delaware (the “Bankruptcy Court”) which had jurisdiction over the chapter 11 proceedings involving the Sellers, and the Company therefore took title to the CSD assets without assumption of any liability (including pending or threatened litigation) of the Sellers except as expressly provided in the Sale Order. However, under the Sale Order (which incorporated by reference certain provisions of the Acquisition Agreement between the Company and Safety-Kleen Services, Inc.), the Company became subject as of the Closing Date to certain legal proceedings which are now either pending or threatened involving the CSD assets for two reasons as described below. As of September 30, 2006, the Company had reserves of $26.1 million (substantially all of which the Company had established as part of the purchase price for the CSD assets) relating to the Company’s estimated potential liabilities in connection with such legal proceedings. The Company periodically adjusts the aggregate amount of such reserves when such potential liabilities are paid or otherwise discharged or additional relevant information becomes available. Substantially all of the Company’s legal proceedings liabilities are environmental liabilities and, as such, are included in the tables of changes to remedial liabilities disclosed as part of Note 9, “Remedial Liabilities.” During the first nine months of 2006, legal proceedings reserves included in environmental liabilities were decreased by $8.2 million, primarily because of certain recent developments described below under “Marine Shale Processors.”

The first reason for the Company becoming subject to certain legal proceedings which are now either pending or threatened in connection with the acquisition of the CSD assets is that, as part of the CSD assets, the Company acquired all of the outstanding capital stock of certain Canadian subsidiaries (the “CSD Canadian Subsidiaries”) formerly owned by the Sellers (which subsidiaries were not part of the Sellers’ bankruptcy proceedings), and the Company therefore became subject to the legal proceedings (which include the Ville Mercier Legal Proceedings described below) in which the Canadian Subsidiaries were then and are now involved. The second reason is that, as part of the purchase price for the CSD assets, the Company agreed with the Sellers that it would indemnify the Sellers against certain current and future liabilities of the Sellers under applicable federal and state environmental laws including, in particular, the Sellers’ share of certain cleanup costs payable to governmental entities under the Comprehensive Environmental Response, Compensation and Liability Act (“Superfund Act”) or analogous state Superfund laws. As described below, the Company and the Sellers are not in complete agreement at this time as to the scope of the Company’s indemnity obligations under the Sale Order and the Acquisition Agreement with respect to certain Superfund liabilities of the Sellers.

The principal legal proceedings which are now either pending or threatened related to the Company’s acquisition of the CSD assets are as follows. While, as described below, the Company has established reserves for certain of these matters, there can be no guarantee that any ultimate liability the Company may incur for any of these matters will not exceed (or be less than) the amount of the current reserves or that it will not incur other material expenditures.

Ville Mercier Legal Proceedings. One of the CSD Canadian Subsidiaries (the “Mercier Subsidiary”) owns and operates a hazardous waste incinerator in Ville Mercier, Quebec (the “Mercier Facility”). A property owned by the Mercier Subsidiary adjacent to the current Mercier Facility is now contaminated as a result of actions dating back to 1968, when the Quebec government issued to the unrelated company which then owned the Mercier Facility two permits to dump organic liquids into lagoons on the property. By 1972, groundwater contamination had been identified, and the Quebec government provided an alternate water supply to the municipality of Ville Mercier.

 

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In 1999, Ville Mercier and three neighboring municipalities filed separate legal proceedings against the Mercier Subsidiary and certain related companies together with certain former officers and directors, as well as against the Government of Quebec. The lawsuits assert that the defendants are jointly and severally responsible for the contamination of groundwater in the region, which the plaintiffs claim was caused by contamination from the former Ville Mercier lagoons and which they claim caused each municipality to incur additional costs to supply drinking water for their citizens since the 1970’s and early 1980’s. The four municipalities claim a total of $1.6 million (CDN) as damages for additional costs to obtain drinking water supplies and seek an injunctive order to obligate the defendants to remediate the groundwater in the region. The Quebec Government also sued the Mercier Subsidiary to recover approximately $17.4 million (CDN) of alleged past costs for constructing and operating a treatment system and providing alternative drinking water supplies. The Mercier Subsidiary continues to assert that it has no responsibility for the groundwater contamination in the region.

Because the continuation of such proceedings by the Mercier Subsidiary, which the Company now owns, would require the Company to incur legal and other costs and the risks inherent in any such litigation, the Company, as part of its integration plan for the CSD assets, decided to review options which will allow the Company to establish harmonious relations with the local communities, resolve the adversarial situation with the Provincial government and spare continued legal costs. Based upon the Company’s review of likely settlement possibilities, the Company anticipates that as part of any such settlement it will likely agree to assume at least partial responsibility for remediation of certain environmental contamination and certain prior costs. At September 30, 2006, the Company had accrued $11.6 million for remedial liabilities and associated legal costs relating to the Ville Mercier Legal Proceedings. There was no change in the gross amount of  this liability during the first nine months of 2006.

Indemnification of Certain CSD Superfund Liabilities. The Company’s agreement with the Sellers under the Acquisition Agreement and the Sale Order to indemnify the Sellers against certain cleanup costs payable to governmental entities under federal and state Superfund laws now relate primarily to: (i) two properties included in the CSD assets which are either now subject or proposed to become subject to Superfund proceedings; (ii) certain potential liabilities which the Sellers might incur in the future in connection with an incinerator formerly operated by Marine Shale Processors, Inc. to which the Sellers shipped hazardous wastes; and (iii) 35 active Superfund sites owned by third parties where the Sellers have been designated as Potentially Responsible Parties (“PRPs”). As described below, there are also five other Superfund sites owned by third parties where the Sellers have been named as PRPs or potential PRPs and for which the Sellers have sent demands for indemnity to the Company since the Closing Date. In the case of the two properties referenced above which were included in the CSD assets, the Company is potentially directly liable for cleanup costs under applicable environmental laws because of its ownership and operation of such properties since the Closing Date. In the case of Marine Shale Processors and the 35 other third party sites referenced above, the Company does not have direct liability for cleanup costs but may have an obligation to indemnify the Sellers, to the extent provided in the Acquisition Agreement and the Sale Order, against the Sellers’ share of such cleanup costs which are payable to governmental entities.

Federal and state Superfund laws generally impose strict, and in certain circumstances, joint and several liability for the costs of cleaning up Superfund sites not only upon the owners and operators of such sites, but also upon persons or entities which in the past have either generated or shipped hazardous wastes which are present on such sites. The Superfund laws also provide for liability for damages to natural resources caused by hazardous substances at such sites. Accordingly, the Superfund laws encourage PRPs to agree to share in specified percentages of the aggregate cleanup costs for Superfund sites by entering into consent decrees, settlement agreements or similar arrangements. Non-settling PRPs may be liable for any shortfalls in government cost recovery and may be liable to other PRPs for equitable contribution. Under the Superfund laws, a settling PRP’s financial liability could increase if the other settling PRPs were to become insolvent or if additional or more severe contamination were discovered at the relevant site. In estimating the amount of those Sellers’ liabilities at those Superfund sites where one or more of the Sellers has been designated as a PRP and as to which the Company believes that it has potential liability under the Acquisition Agreement and the Sale Order, the Company therefore reviewed any existing consent decrees, settlement agreements or similar arrangements with respect to those sites and the Sellers’ negotiated volumetric share of liability (where applicable), and also took into consideration the Company’s prior knowledge of the relevant sites and the Company’s general experience in dealing with the cleanup of Superfund sites.

Properties Included in CSD Assets. The CSD assets which the Company acquired include an active service center located at 2549 North New York Street in Wichita, Kansas (the “Wichita Property”). The Wichita Property is one of several properties located within the boundaries of a 1,400 acre state-designated Superfund site in an old industrial section of Wichita known as the North Industrial Corridor Site. Along with numerous other PRPs, the Sellers executed a consent decree relating

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to such site with the EPA, and the Company is continuing its ongoing remediation program for the Wichita Property in accordance with that consent decree. Also included within the CSD assets which the Company acquired are rights under an indemnification agreement between the Sellers and a prior owner of the Wichita Property, which the Company anticipates but cannot guarantee will be available to reimburse certain such cleanup costs.

The CSD assets also include a former hazardous waste incinerator and landfill in Baton Rouge, Louisiana (“BR Facility”) currently undergoing remediation pursuant to an order issued by the Louisiana Department of Environmental Quality. In December 2003, the Company received an information request from the federal EPA pursuant to the Superfund Act concerning the Devil’s Swamp Lake Site (“Devil’s Swamp”) in East Baton Rouge Parish, Louisiana. On March 8, 2004, the EPA proposed to list Devil’s Swamp on the National Priorities List for further investigations and possible remediation. Devil’s Swamp includes a lake located downstream of an outfall ditch where wastewaters and stormwaters have been discharged from the BR Facility, as well as extensive swamplands adjacent to it. Contaminants of concern cited by the EPA as a basis for listing the site include substances of the kind found in wastewaters discharged from the BR Facility in past operations. While the Company’s ongoing corrective actions at the BR Facility may be sufficient to address the EPA’s concerns, there can be no assurance that additional action will not be required and that the Company will not incur material costs. The Company cannot now estimate the Company’s potential liability for Devil’s Swamp; accordingly, the Company has accrued no liability for remediation of Devil’s Swamp beyond what was already accrued pertaining to the ongoing corrective actions and amounts sufficient to cover certain estimated legal fees and related expenses.

Marine Shale Processors. Beginning in the mid-1980s and continuing until July 1996, Marine Shale Processors, Inc., located in Amelia, Louisiana (“Marine Shale”), operated a kiln which incinerated waste producing a vitrified aggregate as a by-product. Marine Shale contended that its operation recycled waste into a useful product, i.e., vitrified aggregate, and therefore was exempt from regulation under the Resource Conservation Recovery Act (“RCRA”) and permitting requirements as a hazardous waste incinerator under applicable federal and state environmental laws. The EPA contended that Marine Shale was a “sham-recycler” subject to the regulation and permitting requirements as a hazardous waste incinerator under RCRA, that its vitrified aggregate by-product was a hazardous waste, and that Marine Shale’s continued operation without required permits was illegal. Litigation between the EPA and Marine Shale began in 1990 and continued until July 1996 when the U.S. Fifth Circuit Court of Appeals ordered Marine Shale to shutdown its operations. During the course of its operation, Marine Shale produced thousands of tons of aggregate, some of which was sold as fill material at various locations in the vicinity of Amelia, Louisiana, but most of which was stockpiled on the premises of the Marine Shale facility. Almost all of this aggregate has since been moved to a nearby site owned by an affiliate of Marine Shale, known as Recycling Park, Inc. (“RPI”). In accordance with a court order authorizing the movement of this material to this offsite location, all of the materials located at RPI comply with the land disposal restrictions of RCRA. Approximately 7,000 tons of aggregate remain on the Marine Shale site. Moreover, as a result of past operations, soil and groundwater contamination may exist on the Marine Shale facility and the RPI site.

Although the Sellers never held an equity interest in Marine Shale, the Sellers were among the largest customers of Marine Shale in terms of overall incineration revenue. Based on a plan to settle obligations that was established at the time of the Company’s acquisition of the CSD assets in 2002, the Company obtained more complete information as to the potential status of the Marine Shale facility and the RPI site as a Superfund site or sites, the potential costs associated with possible removal and disposal of some or all of the vitrified aggregate and closure and remediation of the Marine Shale facility and the RPI site, and the respective shares of other identified potential PRPs on a volumetric basis. Accordingly, the Company determined in the third quarter of 2003 that the remedial liabilities and associated legal costs were then probable and estimable and recorded liabilities for the Company’s estimate of the Sellers’ proportionate share of environmental cleanup costs potentially payable to governmental entities under federal and/or state Superfund laws. At June 30, 2006, the Company had accrued $13.7 million of reserves relating to potential cleanup costs for the Marine Shale facility and the RPI site.  In September 2006, following a public notice and comment period, the EPA and the Louisiana Department of Environmental Quality obtained final federal court approval of a settlement that addressed the remediation of the RPI site with one PRP agreeing to implement and complete the remedial measures required to remediate the RPI site to the satisfaction of these regulatory agencies.  The remedial measures require that PRP to consolidate, level, and install a man-made engineered containment cap on the RPI site, and to monitor the site, pursuant to a timetable and schedule specified in the consent decree, at the sole expense of that PRP.  That PRP also agreed to pay $200 thousand towards the eventual cleanup of the Marine Shale former incinerator site.  As a result of this settlement and change in circumstances, the Company reflected a change in estimate by recording a $10.3 million decrease in the reserves which the Company had

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established with respect to those potential liabilities in connection with the Company’s acquisition of the CSD assets. This reduction was recorded to selling, general and administrative expenses during the fiscal quarter ended September 30, 2006.   As at September 30, 2006, the amount of the Company’s remaining reserves relating to the Marine Shale facility and the RPI site was $3.4 million.

On December 24, 2003, the Sellers’ plan of reorganization became effective under chapter 11 of the Bankruptcy Code. If the EPA or the Louisiana Department of Environmental Quality (“LDEQ”) were in the future to designate the Marine Shale facility and/or (notwithstanding the settlement reached in 2006) the RPI site as a Superfund site or sites, the Sellers might assert that they are not responsible for potential cleanup costs associated with such site or sites, and the Company might assert that under the Sale Order the Company is not obligated to pay or reimburse cleanup and related costs associated with such site or sites. The Company cannot now provide assurances with respect to any such matters which, in the event the EPA or the LDEQ were in the future to designate the Marine Shale facility and/or the RPI site as a Superfund site or sites, would need to be resolved by future events, negotiations and, if required, legal proceedings.

Third Party Superfund Sites. Prior to the Closing Date, the Sellers had generated or shipped hazardous wastes, which are present on an aggregate of 35 sites owned by third parties, which have been designated as federal or state Superfund sites and at which the Sellers, along with other parties, had been designated as PRPs. Under the Acquisition Agreement and the Sale Order, the Company agreed with the Sellers that it would indemnify the Sellers against the Sellers’ share of the cleanup costs payable to governmental entities in connection with those 35 sites, which were listed in Exhibit A to the Sale Order (the “Listed Third Party Sites”). At 29 of the Listed Third Party Sites, the Sellers had addressed, prior to the Company’s acquisition of the CSD assets in September 2002, the Sellers’ cleanup obligations to the federal and state governments and to other PRPs by entering into consent decrees or other settlement agreements or by participating in ongoing settlement discussions or site studies and, in accordance therewith, the PRP group is generally performing or has agreed to perform the site remediation program with government oversight. With respect to one of those 29 Listed Third Party Sites, certain developments have occurred since the Company’s purchase of the CSD assets as described in the following two paragraphs. Of the remaining Listed Third Party Sites, the Company on behalf of the Sellers are contesting with the governmental entities and PRP groups involved liability at two sites, have settled the Sellers’ liability at two sites, and plan to fund participation by the Sellers as settling PRPs at two sites. In addition, the Company has confirmed that the Sellers were ultimately not named as PRPs at one site. With respect to the 35 Listed Third Party Sites, the Company had reserves of $5.2 million at September 30, 2006.

With respect to one of those 35 sites (the “Helen Kramer Landfill Site”), the Sellers had entered (prior to the Sellers commencing their bankruptcy proceeding in June 2000) into settlement agreements with certain members of the PRP group which agreed to perform the cleanup of that site in accordance with a consent decree with governmental entities, in return for which the Sellers received a conditional release from such governmental entities. Following the Sellers’ commencement of their bankruptcy proceeding, the Sellers failed to satisfy their payment obligations to those PRPs under those settlement agreements.

In November 2003, certain of those PRPs made a demand directly on the Company for the Sellers’ share of the cleanup costs incurred by the PRPs with respect to the Helen Kramer Landfill Site. However, at a hearing in the Bankruptcy Court on January 6, 2004 on a motion by those PRPs seeking an order that the Company was liable to such PRPs under the terms of the Sale Order, the Bankruptcy Court declined to hear the motion on the ground that those PRPs (which are not governmental entities) have no right to seek direct payment from the Company for any portion of the cleanup costs which they have incurred in connection with that site. The Company’s legal position is that when the Sellers’ plan of reorganization became effective in December 2003, the Sellers likely were discharged from their obligations to those PRPs for that site. The Sellers have never made an indemnity request upon the Company for any obligations relating to that site. The PRPs indicated their intention to pursue additional recourse against the Company, but the Company filed in February 2005 a complaint with the Bankruptcy Court seeking declaratory relief that the injunction in the Sale Order is operative against those PRPs’ efforts to proceed directly against the Company and seeking sanctions against those PRPs for violating that injunction. In April 2005, the Company’s general counsel advised the Company that its exposure to liability for the Sellers’ obligations with respect to the Helen Kramer Landfill Site was no longer “probable,” and the Company therefore reversed a $1.9 million reserve which it had established with respect to those potential liabilities in connection with its acquisition of the CSD assets. The reversal of the $1.9 million reserve was recorded to selling, general and administrative expenses. In October 2005, the Bankruptcy Court granted the PRPs’ motion to dismiss the count of the Company’s complaint seeking sanctions against them for

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contempt, but the remaining counts of the Company’s complaint seeking declaratory relief remain to be resolved. In November 2005, the PRPs filed a counterclaim for declaratory relief that the Company is liable to them for the Seller’s obligations to them. On March 22, 2006, the PRPs moved for summary judgment on all counts, but the Court declined to grant that motion on July 24, 2006, and requested that the parties confer about setting a status conference to establish a trial date.

By letters to the Company dated between September 2004 and May 2006, the Sellers identified, in addition to the 35 Listed Third Party Sites, five additional sites owned by third parties which the EPA or a state environmental agency has designated as a Superfund site or potential Superfund site and at which one or more of the Sellers have been named as a PRP or potential PRP. In those letters, the Sellers asserted that the Company has an obligation to indemnify the Sellers for their share of the potential cleanup costs associated with such five additional sites. The Company has responded to such letters from the Sellers by stating that, under the Sale Order, the Company has no obligation to reimburse the Sellers for any cleanup and related costs (if any) which the Sellers may incur in connection with such additional sites. The Company intends to assist the Sellers in providing information now in the Company’s possession with respect to such five additional sites and to participate in negotiations with the government agencies and PRP groups involved. In addition, at one of those five additional sites, the Company may have some liability independently of the Sellers’ involvement with that site, and the Company may also have certain defense and indemnity rights under contractual agreements for prior acquisitions relating to that site. Accordingly, the Company is now investigating that site further. However, the Company now believes that it has no liabilities with respect to the potential cleanup of those five additional sites that are both probable and estimable at this time, and the Company therefore has not established any reserves for any potential liabilities of the Sellers in connection therewith. It is expressly the Company’s legal position that it is not liable at any of the five sites for any and/or all of the Sellers’ liabilities. In any event, at one site the potential liability of the Seller(s) is de minimis and a settlement has already been offered to the Seller(s) to that effect, and at one site the Company believes that the Seller(s) shipped no wastes or substances into the site and therefore the Seller(s) have no liability. For the other three sites, the Company cannot estimate the amount of the Sellers’ liabilities, if any, at this time, and irrespective of whatever liability the Sellers may or may not have, the Company reaffirms its position that the Company does not have any liability for the Sellers at any of the five sites including these three particular sites.

Other Legal Proceedings Related to CSD Assets

Plaquemine, Louisiana Facility. In addition to the legal proceedings related to the acquisition of the CSD assets described above, subsequent to the acquisition in September 2002 various plaintiffs which are represented by the same law firm have filed four lawsuits based in part upon allegations relating to ownership and operation of a deep injection well facility near Plaquemine, Louisiana which Clean Harbors Plaquemine, LLC (“CH Plaquemine”), one of the Company’s subsidiaries, acquired as part of the CSD assets. The first such lawsuit was filed in December 2003 in the 18th Judicial District Court in Iberville Parish, Louisiana, against CH Plaquemine under the citizen suit provisions of the Louisiana Environmental Quality Act. The lawsuit alleges that the facility is in violation of state law by disposing of hazardous waste into an underground injection well that the plaintiffs allege is located within the banks or boundaries of a body of surface water within the jurisdiction of the State of Louisiana. The lawsuit also focuses on a “new area of concern” at the facility, which the plaintiffs allege is a source of contamination which will require environmental remediation and/or restoration. The lawsuit also alleges that CH Plaquemine’s former facility manager made false representations and failed to disclose material information to the regulators about the facility after CH Plaquemine acquired it in September 2002. The plaintiffs seek an order declaring the facility to be located within the banks or boundaries of a body of surface water under state law, payment of civil penalties of $27,500 per violation per day from and after November 17, 2003, and an additional penalty of $1.0 million for damages to the environment, plus interest. The plaintiffs also seek an order requiring the facility to remove all waste disposed of since September of 2002, and in general, to conduct an investigation into and remediate the alleged contamination at the facility, as well as damages for alleged personal injuries and property damage, natural resources damages, costs of litigation, and attorney’s fees. On January 14, 2005, the state district court judge granted the plaintiffs’ petition for a preliminary (or temporary) injunction restraining the subsidiary from disposing of hazardous waste in the injection well. On January 18, 2005 (the next day the court was again open for business) CH Plaquemine filed a motion seeking to stay the preliminary injunction, which the same judge granted. The legal effect of the stay order was to allow the facility to continue normal business operations and to continue injecting hazardous waste, pending an appeal. In accordance with the stay order that was granted in favor of the subsidiary, CH Plaquemine has appealed the court’s initial ruling granting the preliminary (or temporary) injunction to the Louisiana First Circuit Court of Appeal in Baton Rouge. In June 2006, this appellate court ruled in favor of CH Plaquemine, ruling that the trial court judge had committed reversible error in applying

26




the state law that was allegedly violated by the facility’s operations and also had committed reversible error in issuing the preliminary injunction. The injunction was reversed, and the  plaintiffs have filed an appeal of the Circuit Court’s decision to the Louisiana Supreme Court.

In February 2005, this same group of plaintiffs sent notice to the Louisiana Department of Environmental Quality that they intended to file a second citizen suit. In April 2005, the second citizen suit petition was filed naming Clean Harbors, Inc. (“CHI”), Clean Harbors Environmental Services, Inc. (“CHESI”), and an employee of CHESI as defendants. The second citizen suit alleges that CHI, CHESI and the CHESI employee are liable for conduct based upon claims that are substantially similar in nature to those filed against CH Plaquemine in the original citizen suit and also alleges that CHI and CHESI are liable for certain aspects of the operations of CH Plaquemine under the lawsuit’s so-called “Single Business Entity Doctrine.” This second lawsuit seeks civil penalties of $10,000 per day per violation from an unspecified date.

In June 2005, the same plaintiff’s lawyers who filed the two lawsuits described immediately above filed a petition to add CHI, CHESI, CH Plaquemine and the two (one former, one current) employee defendants, to a lawsuit commenced in 1996 against the former owner of the site. While the allegations of that suit are slightly different from the two lawsuits described above, CHI and CHESI are again named in the petition as defendants based largely on the so-called “Single Business Entity Doctrine.” This third lawsuit also names as defendants certain former owners and operators of the facility and the insurance company that currently provides environmental impairment liability insurance coverage for the facility, and seeks unspecified compensatory and punitive damages and attorney’s fees.

In April 2006, the same plaintiff’s lawyers who filed the three lawsuits described immediately above notified the Company of a lawsuit originally filed in June 2004 by Claude I. Duncan, on his own behalf and on behalf of the United States of America, against a number of defendants, including the Company, alleging violations of the Federal False Claims Act. The action is based almost entirely on the same environmental law violations concerning the Plaquemine facility which are alleged in the three lawsuits described above. In accordance with the False Claims Act, Mr. Duncan originally filed his lawsuit under seal in order to afford the federal government time to decide whether it wanted to intervene in the action. In April 2006, the federal government gave the plaintiffs notice of its intent not to intervene, at which time the court unsealed a portion of the records and made the action public.

The Company believes that all four of these lawsuits are without merit, and is vigorously defending against the claims made. The Company further believes that, since its acquisition by CH Plaquemine, the Plaquemine facility has been and now is in full compliance with its operating permits and all applicable state laws, and that any alleged contamination in the “new area of concern” complained of by the plaintiffs was and is already being addressed under the corrective action provisions of its RCRA operating permit. In addition, the Company believes that many of the plaintiffs’ claims relate to actions or omissions allegedly taken or caused prior to September 2002 by third parties that formerly owned and/or operated, or generated or shipped waste to, the Plaquemine facility for which the Company has no legal responsibility under the Sale Order.  Nevertheless, on June 9, 2006, the state district court ruled that CH Plaquemine was in violation of an ex-parte restraining order issued by the court in May 2004, and ordered the parties to submit a joint plan, or alternative plans, for cleanup of the CH Plaquemine facility no later than July 10, 2006. CH Plaquemine has appealed that ruling to the Louisiana First Circuit Court of Appeal in Baton Rouge. The Court of Appeal has not yet ruled on that appeal.

As of April 20, 2006, the Company had incurred legal expenses in connection with defending against the first three of these lawsuits that satisfied the $1.0 million deductible on the Company’s environmental impairment liability insurance applicable to the Plaquemine facility. Because the Company believes the claims against CH Plaquemine, CHI and CHESI in the four lawsuits are without merit and that the Company has adequate insurance to cover any future liabilities associated with such lawsuits, the Company does not now maintain any reserves associated with the four Plaquemine lawsuits. The Company has previously established and maintains a separate reserve for the ongoing corrective actions at the Plaquemine facility (which is included within the Company’s reserves for remedial liabilities for its properties described in Note 9), and has increased the amount of this separate reserve to cover the costs of additional sampling and analytical testing being conducted in the vicinity of the “new area of concern.”

On September 15, 2006, the same law firm involved in the other four Plaquemine lawsuits filed suit on behalf of Walter Allen against CH Plaquemine, CHI, CHESI and a local trucking company seeking injunctive relief restricting the weight limits of waste shipments over a local pontoon bridge that connects to the CH Plaquemine facility.  On October 18, 2006, the same state court judge who is presiding over the other Plaquemine related state court suits declined to grant the

27




plaintiff any emergency relief on the ground that the plaintiff had no standing, and the Company believes the plaintiff’s suit is completely without merit.

On October 17, 2006, CH Plaquemine ceased operations and filed a voluntary petition for relief under chapter 11 of the United States Bankruptcy Code in the U.S. Bankruptcy Court for the District of Massachusetts, Eastern division. The Company had previously made the decision to terminate operations at the CH Plaquemine facility due to continuing operating losses of the facility, and the Company believes that the filing of that chapter 11 petition by CH Plaquemine will have no adverse effect on the Company’s other operations. The chapter 11 filing had the immediate effect of automatically staying all litigation against CH Plaquemine by the plaintiffs in the aforementioned five lawsuits, although such automatic stay does not protect either CHI or CHESI from continued litigation should the plaintiffs elect to continue such proceedings.  However, the Company intends to file with the Bankruptcy Court, and seek ultimate confirmation of, a plan of reorganization for CH Plaquemine that will permit the Company to recapitalize CH Plaquemine sufficiently to ensure that all of the Plaquemine facility’s post-termination environmental and site cleanup obligations and other permit requirements, as determined by the Louisiana Department of Environment Quality, will be satisfied and all of CH Plaquemine’s trade creditors will be paid in full.  In return, the Company intends to seek from the Bankruptcy Court, as part of that plan of reorganization, a permanent injunction against any litigation against CHI, CHES or any of CHI’s other subsidiaries with respect to the Plaquemine facility.  On October 27, 2006, certain of the plaintiffs filed a motion with the Bankruptcy Court seeking, alternatively, to dismiss the chapter 11 petition of CH Plaquemine, for the Court to abstain its jurisdiction, or for relief from the automatic stay, all for the purpose of permitting the plaintiffs to continue their litigation in Louisiana.  CH Plaquemine intends to vigorously oppose that motion, and the matter has been scheduled for a non-evidentiary hearing before the Bankruptcy Court on November 29, 2006.

Deer Trail, Colorado Facility. On December 21, 2005, the Colorado Department of Public Health and Environment (“CDPHE”) granted to Clean Harbors Deer Trail, LLC (“CH Deer Trail”) a radioactive materials license (“RAD license”) to accept certain low level radioactive materials known as NORM/TENORM wastes for disposal at the CH Deer Trail facility in accordance with the license’s terms. On or about January 20, 2006, Adams County Colorado, the county where the CH Deer Trail facility is located, filed complaints in the Adams County District Court and the Denver County District Court against CDPHE seeking to vacate the CDPHE’s grant of the RAD license to CH Deer Trail. On or about February 8, 2006, the Colorado Attorney General representing CDPHE filed motions with both courts petitioning the courts to dismiss the County’s complaints on various procedural grounds. On April 5, 2006, attorneys for CH Deer Trail filed motions to intervene in both actions to protect the Company’s interest. Both the County and the State of Colorado agreed to CH Deer Trail’s motion to intervene.

On or about April 20, 2006, the Company was notified that it had been awarded a contract by the municipality of Canon City Water Treatment Plant to dispose of certain quantities of NORM/TENORM material at the CH Deer Trail facility in accordance with its RAD license. CH Deer Trail notified the State of Colorado that it had received the aforementioned contract and intended to proceed with the project and further requested confirmation that the RAD license issued by CDPHE was valid and in effect during the pendency of the two cases in the above referenced courts. By letter on April 20, 2006, CDPHE notified both the municipality of Canon City and CH Deer Trail that the license was valid and in effect. On April 21, 2006 the Colorado Attorney General notified the courts and the plaintiff county that Deer Trail would accept the Canon City NORM/TENORM material during the week of April 23, 2006. The plaintiff county objected and for the first time provided notice to the State of Colorado and CH Deer Trail that it had obtained a stay of the RAD license in the Adams County Court on January 20, 2006. No prior notice of such a stay had been served on the State of Colorado or CH Deer Trail. In response thereto, on April 27, 2006, the State of Colorado filed a motion with the Adams County District Court seeking a clarification of the order granting the automatic stay and seeking to narrow the order so as to allow the facility to accept NORM/TENORM materials in accordance with its RAD license.

During the pendency of this motion, CH Deer Trail, with the concurrence of its customer Canon City, Colorado, agreed to delay acceptance of Canon City’s NORM/TENORM materials until a hearing on the matter can be held at the Adams County District Court. No stay of the RAD license was granted by the Denver County District Court. On May 5, 2006, the Denver District Court held a hearing to rule on the motions by the State of Colorado and the Company to dismiss the complaint of the plaintiff county. The Court ruled in favor of the State and the Company and issued an order dismissing the plaintiff county’s complaint. On July 5, 2006, the Adams County District Court held a hearing on the plaintiff county’s appeal and dismissed the county’s complaint. The written order dismissing the complaint was executed on July 31, 2006 and it simultaneously vacates the stay that had previously been issued by that court.  Adams County has appealed both rulings.

28




 

On September 1, 2006 CH Deer Trail filed a complaint for declaratory relief in the Adams County District Court asking the court to declare that the facility’s Certificate of Designation (“CD”) defers all authority to the State regarding the materials that may be accepted, treated, and disposed of at the facility, specifically including those materials authorized by the state-issued Permit and License for the facility; and/or alternatively, declare that the acceptance of the licensed materials does not violate the facility’s CD.  CH Deer Trail also filed a companion motion for a preliminary injunction to enjoin the Board of County Commissioners from issuing an administrative order or initiating an administrative proceeding based on the faulty premise that the CD prohibits the acceptance, treatment and disposal of licensed and/or permitted materials.   On October 4, 2006, Adams County filed a motion with the Adams County District Court to dismiss the complaint and motion for preliminary injunction for lack of jurisdiction.  On  October 27, 2006 the Court heard oral arguments on the County’s motion and presently has the matter under advisement.

Legal Proceedings Not Related to CSD Assets

In addition to the legal proceedings relating to the CSD assets, the Company is also involved in certain legal proceedings related to environmental matters which have arisen for other reasons.

Superfund Sites Not Related to CSD Acquisition. The Company has been named as a PRP at 29 sites that are not related to the CSD acquisition. Fourteen of these sites involve two subsidiaries which the Company acquired from ChemWaste, a former subsidiary of Waste Management, Inc. As part of that acquisition, ChemWaste agreed to indemnify the Company with respect to any liability of those two subsidiaries for waste disposed of before the Company acquired them. Accordingly, Waste Management is paying all costs of defending those two subsidiaries in those 14 cases, including legal fees and settlement costs.

The Company’s subsidiary which owns the Bristol, Connecticut facility is involved in one of the 29 Superfund sites. As part of the acquisition of that facility, the seller and its now parent company, Cemex, S.A., agreed to indemnify the Company with respect to any liability for waste disposed of before the Company acquired the facility, which would include any liability arising from Superfund sites.

Eleven of the 29 Superfund sites involve subsidiaries acquired by the Company which had been designated as PRPs with respect to such sites prior to its acquisition of such subsidiaries. Some of these sites have been settled, and the Company believes its ultimate liability with respect to the remaining such sites will not be material to its result of operations, cash flow from operations or financial position.

As of September 30, 2006, the Company had reserves of $301 thousand for cleanup of Superfund sites not related to the CSD acquisition or the Teris acquisition described below at which either the Company or a predecessor has been named as a PRP. However, there can be no guarantee that the Company’s ultimate liabilities for these sites will not materially exceed this amount or that indemnities applicable to any of these sites will be available to pay all or a portion of related costs. Furthermore, in July 2006, the Company was informed of its involvement at a state Superfund site in Niagara Falls, New York where it may have incurred liability for past waste shipments. The Company has not yet accrued any amount in respect of this potential liability.

Legal Proceedings Related to the Teris Acquisition.   On August 18, 2006, the Company purchased all of the outstanding membership interests in Teris LLC, a Delaware limited liability company (“Teris”), and changed the name of Teris to “Clean Harbors El Dorado, LLC” (“CH El Dorado”). As a result of that purchase, CH El Dorado became a wholly-owned subsidiary of the Company. At the time of the acquisition, Teris was, and CH El Dorado now is, involved in certain legal proceedings arising from a fire on January 2, 2005, at the incineration facility owned and operated by Teris in El Dorado, Arkansas.

The fire destroyed a warehouse on the facility site but there were no personal injuries to any Teris personnel.  The decision was made early after the report of the fire to let it burn itself out.  Teris notified the appropriate regulatory bodies, including the Arkansas Department of Environmental Quality and the EPA, which sent personnel to the facility shortly after the fire was discovered.  Continuous air monitoring during the fire and extensive soil and water sampling after the fire was extinguished have revealed no migration of hazardous materials off the plant site.

29




As a precautionary measure, the El Dorado police ordered a number of nearby residents to be evacuated from their homes overnight.  Ultimately, certain of those residents filed three lawsuits in the Circuit Court of Union County, Arkansas against Teris claiming nuisance, property damage, personal injury, diminished value of property, and the need for future medical monitoring.  All three suits claimed the right to be certified as class actions.  Two of the suits also claimed violation of various federal environmental statutes.  The third suit specifically stated that it was not claiming that any federal statutes or regulations were violated.  The two suits claiming violation of federal law were removed to the U.S. District Court for the Western District of Arkansas.  Those suits were ultimately remanded back to the state court after the federal judge found that the plaintiffs had failed to provide notice of the alleged violations of federal law to the appropriate federal agencies and that there was no other basis for federal court jurisdiction because the amount of each individual plaintiff’s claim would not exceed $75 thousand.  Those lawsuits are now in state court awaiting the outcome of the appeal of class certification in the third suit.  The third suit was certified as a class action by the state court judge in July 2006.  That order has been appealed to the Arkansas Supreme Court.  Briefing time has not yet been scheduled but it is anticipated that the appeal of class certification will not be decided until late 2007 or early 2008.

CH El Dorado intends to defend the claims vigorously, and the Company believes that the resolution of the three lawsuits described above will not have an adverse affect on the Company’s financial affairs.  In addition to CH El Dorado’s defenses to the lawsuits, the Company will be entitled to rely upon an indemnification from the seller of the membership interests in Teris which is contained in the purchase agreement for those interests. Under that agreement, the seller agreed to indemnify (without any deductible amount) the Company against any damages which the Company might suffer as a result of the lawsuits to the extent that such damages are not fully covered by insurance which Teris maintained or reserves which Teris had established prior to the acquisition, and the seller’s parent (which is a company with substantial net worth) guaranteed that indemnification obligation of the seller to the Company.

EPA Enforcement Action

Kimball, Nebraska Facility. On April 2, 2003, Region VII of the U.S. Environmental Protection Agency (“EPA Region VII”) in Kansas City, Kansas, served a Complaint, Compliance Order and Notice of Opportunity for Hearing (“CCO”) on the Company’s subsidiary which operates an incineration facility in Kimball, Nebraska. The CCO stems from an inspection of the Kimball facility between April 8 and 10, 2002. Thereafter, EPA Region VII issued a Notice of Violation (“NOV”) for certain alleged violations of RCRA. The Company responded to the NOV by letter and contested the allegations. After extensive settlement negotiations, on February 23, 2004, the Company and EPA Region VII executed a Consent Agreement and Final Order that included a Supplemental Environmental Project (“SEP”). The Company will be required to perform and account for the SEP in accordance with the EPA’s SEP Policy. The SEP will involve cleaning out chemicals from high school laboratories, art departments and other campus locations, with all such work to be performed by the Company’s own trained field chemists. The SEP will also include the proper packaging, labeling, manifesting, transportation, and ultimately disposal, recycling or re-use of these chemicals at the hazardous waste treatment, storage and disposal facilities owned and operated by the Company’s subsidiaries, in lieu of the payment of any further civil penalties. The Company will have two years to complete the performance of the SEP, and any remaining amounts then still owed and outstanding will have to be paid in cash at that time, as calculated pursuant to a sliding scale formula that reduces the amount of cash that will be owed as more of the environmental services are rendered over the two-year period. At September 30, 2006, the Company had accrued $132 thousand for its SEP liability. The facility is nearing the end of the two-year time period allowed to perform this SEP, and it will likely pay a final nominal amount of the remaining specified civil penalties in order to comply with the terms and conditions of the Consent Agreement and Final Order.

State and Provincial Enforcement Actions

Ashtabula, Ohio Facility. In July 2006, the Ohio Environmental Protection Agency (“Ohio EPA”) issued proposed final findings and orders pertaining to alleged air pollution control violations at the Clean Harbors PPM, LLC facility in Ashtabula, Ohio. The Ohio EPA has issued a proposed civil penalty of $108 thousand for the emission of the VOCs which are alleged to be in violation of the Title V permit during the specific time period at issue. The Company, through its in-house counsel, has engaged in settlement negotiations with the Ohio EPA in an effort to resolve the matter. However, there can be no guarantee that the results of those negotiations will result in a settlement or a lower penalty than originally imposed. The Company has  accrued $80 thousand for any potential liability for this matter at September 30, 2006.

London, Ontario Facility. Clean Harbors Environmental Services, Inc., and one of the Company’s Canadian

30




subsidiaries, Clean Harbors Canada, Inc., received a summons from the Provincial Ministry of Labour alleging a number of regulatory offenses under the Ontario Occupational Health and Safety Act as a result of a fire in October 2003 at a Clean Harbors Canada, Inc., waste transfer facility in London, Ontario. A worker at the facility received serious injuries as a result of the fire. The matter is pending in the Ontario Court of Justice in London, Ontario. The initial appearance on this matter occurred on November 22, 2004, and in the spring of 2005 the Company filed a pre-trial motion to quash the charges based on the jurisdictional argument that the Provincial Ministry of Labour lacked jurisdiction to lay charges as the jurisdiction to do so rests with the Federal Government under the Canadian Labour Code.  On October 16, 2006, the Court ruled in favor of the Company’s motion and quashed all charges against the Company and its subsidiaries, effectively concluding the matter.

31




 

(8) CLOSURE AND POST-CLOSURE LIABILITIES

Reserves for closure and post-closure obligations are as follows (in thousands):

 

September  30,
2006

 

December 31,
2005

 

Landfill facilities:

 

 

 

 

 

Cell closure

 

$

17,447

 

$

16,507

 

Facility closure

 

656

 

672

 

Post-closure

 

892

 

889

 

 

 

18,995

 

18,068

 

Non-landfill retirement liability:

 

 

 

 

 

Facility closure

 

6,578

 

5,554

 

 

 

25,573

 

23,622

 

Less obligation classified as current

 

4,727

 

2,894

 

Long-term closure and post-closure liabilities

 

$

20,846

 

$

20,728

 

 

All of the landfill facilities included in the table above are active as of September 30, 2006.

Anticipated payments at September 30, 2006 (based on current estimated costs) and anticipated timing of necessary regulatory approvals to commence work on closure and post-closure activities for each of the next five years and thereafter are as follows (in thousands):

Periods ending December 31,

 

Anticipated
Payments

 

Remaining three months of 2006

 

$

407

 

2007

 

6,511

 

2008

 

2,868

 

2009

 

1,806

 

2010

 

8,551

 

Thereafter

 

202,198

 

Undiscounted closure and post-closure liabilities

 

222,341

 

Less: Reserves to be provided (including discount of $116.7 million) over remaining site lives

 

(196,768

)

Present value of closure and post-closure liabilities

 

$

25,573

 

 

The changes to closure and post-closure liabilities for the nine months ended September 30, 2006 were as follows (in thousands):

 

 

December 31,
2005

 

Acquisitions

 

New Asset
Retirement
Obligations

 

Accretion

 

Benefit
from
Changes in
Estimate
Recorded to
Statement
of
Operations

 

Other
Changes
in
Estimates
Recorded
to Balance
Sheet

 

Currency
Translation,
Reclassifications
and Other

 

Payments

 

September  30,
2006

 

Landfill retirement liability

 

$

18,068

 

$

 

$

1,194

 

$

1,896

 

$

(810

)

$

(531

)

$

41

 

$

(863

)

$

18,995

 

Non-landfill retirement liability

 

5,554

 

198

 

(13

)

585

 

453

 

186

 

10

 

(395

)

6,578

 

Total

 

$

23,622

 

$

198

 

$

1,181

 

$

2,481

 

$

(357

)

$

(345

)

$

51

 

$

(1,258

)

$

25,573

 

 

New asset retirement obligations incurred in 2006 are being discounted at the credit-adjusted risk-free rate of 9.25% and inflated at a rate of 2.17%.

32




 

(9) REMEDIAL LIABILITIES

Remedial liabilities are obligations to investigate, alleviate or eliminate the effects of a release (or threat of a release) of hazardous substances into the environment and may also include corrective action under RCRA or other applicable laws. The Company’s operating subsidiaries’ remediation obligations can be further characterized as Legal, Superfund, Long-term Maintenance and One-Time Projects. Legal liabilities are typically comprised of litigation matters that can involve certain aspects of environmental cleanup and can include third party claims for property damage or bodily injury allegedly arising from or caused by exposure to hazardous substances originating from Company activities or operations, or in certain cases, from the actions or inactions of other persons or companies. Superfund liabilities are typically claims alleging that the Company is a potentially responsible party and/or is potentially liable for environmental response, removal, remediation and cleanup costs at/or from either an owned or third party site. As described in Note 7, “Legal Proceedings,” Superfund liabilities also include certain Superfund liabilities to governmental entities for which the Company is potentially liable to reimburse the Sellers in connection with the Company’s 2002 acquisition of the CSD assets from Safety-Kleen Corp. Long-term Maintenance includes the costs of groundwater monitoring, treatment system operations, permit fees and facility maintenance for discontinued operations. One-Time Projects include the costs necessary to comply with regulatory requirements for the removal or treatment of contaminated materials.

SFAS No. 143 applies to asset retirement obligations that arise from ordinary business operations. The Company became subject to almost all of its remedial liabilities as part of the acquisition of the CSD assets, and the Company believes that the remedial obligations did not arise from normal operations. Remedial liabilities to which the Company became subject in connection with the acquisition of the CSD assets have been and will continue to be inflated using the inflation rate at the time of acquisition (2.4%) until the expected time of payment, then discounted at the risk-free interest rate at the time of acquisition (4.9%). The Company became subject to additional remedial liabilities as part of the acquisition in August 2006 of  Teris LLC. Remedial liabilities to which the Company became subject in connection with the acquisition of Teris LLC have been and will continue to be inflated using the inflation rate at the time of acquisition (2.17%) until the expected time of payment, then discounted at the risk-free interest rate at the time of acquisition (4.9%). Remedial liabilities incurred subsequent to the acquisitions and remedial liabilities that existed prior to the acquisitions have been and will continue to be recorded at the estimated current value of the liabilities, which is usually neither increased for inflation nor reduced for discounting.

The Company records environmental-related accruals for remedial obligations at both its landfill and non-landfill operations. See Note 2 to the financial statements in the Company’s Annual Report on Form 10-K for the year ended December 31, 2005 for further discussion of the Company’s methodology for estimating and recording these accruals.

Reserves for remedial obligations are as follows (in thousands):

 

 

September 30,
2006

 

December 31,
2005

 

Remedial liabilities for landfill sites

 

$

5,069

 

$

4,901

 

Remedial liabilities for discontinued facilities not now used in the active conduct of the Company’s business

 

91,063

 

92,023

 

Remedial liabilities (including Superfund) for non-landfill open sites

 

52,257

 

50,143

 

 

 

148,389

 

147,067

 

Less obligations classified as current

 

11,238

 

7,923

 

Long-term remedial liabilities

 

$

137,151

 

$

139,144

 

 

Anticipated payments at September 30, 2006 (based on current estimated costs) and anticipated timing of necessary regulatory approvals to commence work on remedial activities for each of the next five years and thereafter are as follows (in thousands):

33




 

Periods ending December 31,

 

Anticipated
Payments

 

Remaining three months of 2006

 

$

4,440

 

2007

 

10,006

 

2008

 

10,522

 

2009

 

12,501

 

2010

 

9,171

 

Thereafter

 

144,427

 

Undiscounted remedial liabilities

 

191,067

 

Less: Discount

 

(42,678

)

Present value of remedial liabilities

 

$

148,389

 

 

The anticipated payments for Long-term Maintenance range from $5.6 million to $7.2 million per year over the next five years. Spending on One-Time Projects for the next five years ranges from $2.3 million to $6.1 million per year with an average expected payment of $3.6 million per year. Legal and Superfund liabilities payments are expected to be between $0.6 million and $1.1 million per year for the next five years. These estimates are reviewed at least quarterly and adjusted as additional information becomes available.

The changes to remedial liabilities for the nine months ended September 30, 2006 were as follows (in thousands):

 

 

December 31,
2005

 

Acquisitions

 

Accretion

 

Benefit from
Changes in
Estimate
Recorded to
Statement of
Operations

 

Currency
Translation,
Reclassifications
and Other

 

Payments

 

September 30,
2006

 

Remedial liabilities for landfill sites

 

$

4,901

 

$

 

$

177

 

$

(25

)

$

101

 

$

(85

)

$

5,069

 

Remedial liabilities for discontinued sites not now used in the active conduct of the Company’s business

 

92,023

 

 

3,211

 

(1,812

)

21

 

(2,380

)

91,063

 

Remedial liabilities (including Superfund) for non-landfill operations

 

50,143

 

8,833

 

1,764

 

(7,645

)

633

 

(1,471

)

52,257

 

Total

 

$

147,067

 

$

8,833

 

$

5,152

 

$

(9,482

)

$

755

 

$

(3,936

)

$

148,389

 

 

The net $9.5 million benefit from changes in estimate recorded to Selling, General and Administrative expenses on the consolidated statement of operations was due to: (i) the settlement reached with the owner and primary potentially responsible party regarding Marine Shale Processors, Inc. resulting in the Company’s estimated portion of the remaining potential cleanup costs being lower than previously estimated (a decrease of $10.3 million, see “Marine Shale Processors” in Note 7, “Legal Proceedings”), and (ii) the tri-annual reevaluation of the remedial reserves whereby the cost build-ups and engineering calculations used as a basis for establishing the Company’s environmental reserves are revisited on a systematic basis.

The $8.8 million acquisition adjustment reflects the fair value of the remedial liabilities assumed from Teris LLC in August 2006.

34




 

(10) LOSS ON EARLY EXTINGUISHMENT OF DEBT

On January 12, 2006, the Company redeemed $52.5 million principal amount of outstanding Senior Secured Notes and paid prepayment penalties and accrued interest through the redemption date. In connection with such redemption, during the period ended September 30, 2006, the Company recorded a loss on early extinguishment of debt aggregating $8.3 million, consisting of $1.8 million unamortized financing costs, $0.6 million of unamortized discount on the Senior Secured Notes, and the $5.9 million prepayment penalty required by the Indenture in connection with such redemption.

(11) INCOME TAXES

The income tax expense for the first nine months of 2006 was based on the estimated effective tax rate for the year and reflected the reversal of a portion of the valuation allowance against federal and state deferred tax assets including net operating loss carryforwards. Of the $13.3 million of the valuation allowance reversed, $7.4 was recorded as a discrete benefit for income taxes on the Company’s consolidated statement of operations, and $5.9 million was attributable to stock option exercises, which was recorded as an increase in additional paid-in capital on the consolidated balance sheet as of September 30, 2006.  In connection with the reversal of a portion of the valuation allowance, the Company also recorded, in accordance with Financial Accounting Standard 109, Accounting For Income Taxes, $7.3 million of deferred tax assets associated with the 2002 CSD acquisition. Such amount was credited to the carrying value of the CSD non-current intangible assets, as there was no goodwill associated with such acquisition.  The Company has a remaining valuation allowance of approximately $8.0 million related to foreign tax credits and certain state net operating loss carryforwards. The Company now believes that it is not more likely than not that such amounts will be utilized.

The Company is subject to income taxes in both the U.S. and foreign jurisdictions and to examination by U.S. federal and state, as well as foreign tax authorities. While it is often difficult to predict the final outcome or timing of resolution of any particular tax matter, the Company believes that its tax reserves reflect the probable outcome of all known tax contingencies. The amount of recorded tax contingencies was $14.4 million at December 31, 2005 and was increased by $1.5 million to $15.9 million in the first nine months of 2006 as the result of additional statutory interest of $0.9 million and changes in foreign exchange of $0.6 million.

During 2006, the Company re-evaluated the 2004 restructuring of its Canadian operations.  In connection with this re-evaluation, the Company has identified certain additional tax contingencies.  Although such contingencies are not deemed probable, management estimates that it is reasonably possible that such tax contingencies could result in additional tax liabilities of approximately  $7.0 million exclusive of interest at September 30, 2006.

35




(12) EARNINGS PER SHARE

The following is a reconciliation of basic and diluted income per share computations (in thousands except for per share amounts):

 

 

Three Months Ended September 30, 2006

 

 

 

Income
(Numerator)

 

Shares
(Denominator)

 

Per 
Share

 

Net income

 

$

21,005

 

 

 

 

 

Dividends and accretion on Series B preferred stock

 

(69

)

 

 

 

 

Basic income attributable to common stockholders

 

$

20,936

 

19,587

 

$

1.07

 

 

 

 

 

 

 

 

 

Basic income attributable to common stockholders before effect of dilutive securities

 

$

20,936

 

19,587

 

$

1.07

 

Effect of dilutive securities

 

69

 

1,020

 

(0.05

)

Diluted income attributable to common stockholders

 

$

21,005

 

20,607

 

$

1.02

 

 

 

 

Three Months Ended September 30, 2005

 

 

 

Income
(Numerator)

 

Shares
(Denominator)

 

Per 
Share

 

Net income

 

$

5,457

 

 

 

 

 

Dividends and accretion on Series B preferred stock

 

(70

)

 

 

 

 

Basic income attributable to common stockholders

 

$

5,387

 

15,416

 

$

0.35

 

 

 

 

 

 

 

 

 

Basic income attributable to common stockholders before effect of dilutive securities

 

$

5,387

 

15,416

 

$

0.35

 

Effect of dilutive securities

 

70

 

2,228

 

 

 

Diluted income attributable to common stockholders

 

$

5,457

 

17,644

 

$

0.31

 

 

 

 

Nine Months Ended September 30, 2006

 

 

 

Income
(Numerator)

 

Shares
(Denominator)

 

Per 
Share

 

Net income

 

$

35,182

 

 

 

 

 

Dividends and accretion on Series B preferred stock

 

(207

)

 

 

 

 

Basic income attributable to common stockholders

 

$

34,975

 

19,488

 

$

1.79

 

 

 

 

 

 

 

 

 

Basic income attributable to common stockholders before effect of dilutive securities

 

$

34,975

 

19,488

 

$

1.79

 

Effect of dilutive securities

 

207

 

1,153

 

(0.09

)

Diluted income attributable to common stockholders

 

$

35,182

 

20,641

 

$

1.70

 

 

 

 

Nine Months Ended September 30, 2005

 

 

 

Income
(Numerator)

 

Shares
(Denominator)

 

Per 
Share

 

Net income

 

$

17,669

 

 

 

 

 

Dividends and accretion on Series B preferred stock

 

(210

)

 

 

 

 

Basic income attributable to common stockholders

 

$

17,459

 

15,081

 

$

1.16

 

 

 

 

 

 

 

 

 

Basic income attributable to common stockholders before effect of dilutive securities

 

$

17,459

 

15,081

 

$

1.16

 

Effect of dilutive securities

 

210

 

2,276

 

 

 

Diluted income attributable to common stockholders

 

$

17,669

 

17,357

 

$

1.02

 

 

36




 

For the three- and nine-month periods ended September 30, 2006, the dilutive effect of all outstanding warrants, options and Series B Preferred Stock is included in the above calculations. Because the performance criteria relating to 71 thousand outstanding performance stock awards had not been satisfied for the three-month and nine-month periods ended September 30, 2006, the dilutive effect of such 71 thousand shares is excluded from the above calculations.

For the three-month period ended September 30, 2005, the dilutive effect of all outstanding warrants, options and Series B Preferred Stock is included in the above calculation. Because the effects would be anti-dilutive for the period presented, the above computation of diluted earnings attributable to common shareholders exclude the effect of the assumed exercise of 21 thousand stock options for the nine-month period ended September 30, 2005.

(13) STOCKHOLDERS’ EQUITY

Dividends on the Company’s Series B Convertible Preferred Stock are payable on the 15th day of January, April, July, and October at the rate of $1.00 per share per quarter. Under the terms of the Series B Preferred Stock, the Company can elect to pay dividends in cash or in common stock with a market value equal to the amount of the dividends payable. All dividends due since October 15, 2004 were paid in cash.

(14) STOCK-BASED COMPENSATION

The adoption of SFAS No. 123(R) reduced the Company’s reported net income and earnings per share, since adopting SFAS No. 123(R) resulted in the Company recording compensation cost for employee stock options, awards of unvested shares vesting over time based on continued employment but without performance criteria (“restricted stock awards”), awards of unvested shares vesting over time based on continued employment but also with performance criteria (“performance stock awards”), awards of common stock for services previously rendered  (“common stock awards”), and compensatory employee share purchase plans. The Company elected not to modify its reporting of previously-granted stock-based awards. As a result of the changes in accounting under SFAS No. 123(R) and a desire to align the Company’s long-term incentive awards more closely to operating and market performance, the Compensation Committee of the Company’s Board of Directors approved a substantial change in the form of awards that it grants under the Company’s current equity incentive plan. Beginning in November 2005, stock option grants for key managers were replaced with restricted stock awards or performance stock awards. The Company accordingly has decreased, and expects to decrease in the future, the number of stock options granted below the number granted prior to November 2005.

Prior to its adoption of SFAS No. 123(R), the Company accounted for stock-based compensation in accordance with APB Opinion No. 25 which addressed the financial accounting and reporting standards for stock or other equity-based compensation arrangements. Under APB Opinion No. 25, the Company recognized compensation expense based on an award’s intrinsic value. For stock options, which were the primary form of stock-based awards granted prior to the Company’s adoption of SFAS No. 123(R), this meant that no compensation expense was recognized in connection with the grants, as the exercise price of the options was equal to the fair market value of the Company’s common stock on the date of grant and all other provisions were fixed. The Company provided disclosures based on the fair value as permitted by SFAS No. 123. Under the fair value method, compensation cost was measured at the grant date based on the fair value of the award and is recognized over the service period, which was usually the vesting period. Under SFAS No. 123, the Company accounted for forfeitures as they actually occurred. Upon adoption of SFAS No. 123(R), the Company eliminated the remaining unearned deferred compensation balance within stockholders’ equity.

37




 

The Company included $0.9 million and $2.5 million in total stock-based compensation expense to employees in its statements of operations for the three- and nine-month periods ended September 30, 2006, respectively, as a result of the adoption of SFAS No. 123(R). None of the compensation expense related to stock-based compensation arrangements was capitalized as part of inventory or fixed assets. Prior to the adoption of SFAS No. 123(R), the Company reported all tax benefits resulting from the exercise of non-qualified stock options as operating cash flows in its consolidated statements of cash flows. SFAS No. 123(R) requires any reduction in taxes payable resulting from tax deductions that exceed the recognized compensation (excess tax benefits) to be classified as financing cash flows in the statement of cash flows. The Company recorded $7.6 million and $8.9 million million of excess tax benefits from the three- and nine-month periods ended September 30, 2006, respectively (as explained in Note 11, “Income Taxes”).

The application of SFAS No. 123(R) had the following effect on reported amounts for the three- and nine-month periods ended September 30, 2006 relative to amounts that would have been reported using the intrinsic value method under previous accounting (in thousands, except per share amounts):

 

Three Months Ended September 30, 2006

 

 

 

Using Previous
Accounting

 

SFAS No. 123(R)
Adjustments

 

As Reported

 

Income from operations

 

$

22,642

 

$

(868

)

$

21,774

 

Income before income taxes

 

19,277

 

(868

)

18,409

 

Net income

 

21,738

 

(733

)

21,005

 

 

 

 

 

 

 

 

 

Basic income per share

 

1.11

 

(0.04

)

1.07

 

Diluted income per share

 

1.06

 

(0.04

)

1.02

 

 

 

Nine Months Ended September 30, 2006

 

 

 

Using Previous
Accounting

 

SFAS No. 123(R)
Adjustments

 

As Reported

 

Income from operations

 

$

57,076

 

$

(2,460

)

$

54,616

 

Income before income taxes

 

39,210

 

(2,460

)

36,750

 

Net income

 

37,261

 

(2,079

)

35,182

 

 

 

 

 

 

 

 

 

Basic income per share

 

1.91

 

(0.12

)

1.79

 

Diluted income per share

 

1.80

 

(0.10

)

1.70

 

 

The stock-based compensation expense related to the Company’s stock-based awards for the three- and nine-month periods ended September 30, 2006 was as follows (in thousands, except per share data):

 

Three Months Ended
September 30, 2006

 

Nine Months Ended
September 30, 2006

 

Sales, general and administrative

 

$

868

 

$

2,460

 

Related income tax benefits

 

(135

)

(381

)

Stock-based compensation, net of taxes

 

$

733

 

$

2,079

 

 

 

 

 

 

 

Net stock-based compensation expense, per common share:

 

 

 

 

 

Basic

 

$

0.04

 

$

0.12

 

Diluted

 

$

0.04

 

$

0.10

 

 

For purposes of determining the disclosures required by SFAS No. 123(R), the fair values of performance stock, restricted stock, stock options, and common stock granted under the Company’s stock-based compensation plan were estimated on the date of the grant at the fair value, net of expected forfeitures in the nine months ended September 30, 2006. The compensatory value of the shares subject to purchase under the Employee Stock Purchase Plan (“ESPP”) during the nine months ended September 30, 2006 were estimated at the beginning of the ESPP period using the Black-Scholes option-pricing model. During the three- and nine-month periods ended September 30, 2006, the Company granted no shares and 71,292 shares of performance stock awards, respectively. The Company granted 1,500 shares of restricted stock awards,

38




 

5,833 shares of stock option awards, and no common stock awards in the three-month period ended September 30, 2006. The following assumptions were used in calculating the grant date fair value of performance stock, restricted stock, stock options and common stock awards issued and compensatory ESPP shares purchased for the nine months ended September 30, 2006:

 

Nine Months
Ended
September 30,
2006

 

Performance Stock Awards:

 

 

 

Expected forfeiture rate—Executives/Directors

 

2.00

%

Expected forfeiture rate—Employees

 

5.00

%

 

 

 

 

Restricted Stock Awards (service based):

 

 

 

Expected forfeiture rate—Executives/Directors

 

2.00

%

Expected forfeiture rate—Employees

 

5.00

%

 

 

 

 

Stock Option Awards: (1)

 

 

 

Expected forfeiture rate—Executives/Directors

 

2.00

%

Expected forfeiture rate—Employees

 

5.00

%

Dividend yield

 

none

 

Expected volatility

 

84.29%-86.00

%

Risk-free interest rate

 

4.84%-5.15

%

Expected life (years)

 

3.5

 

 

 

 

 

ESPP: (2)

 

 

 

Risk-free interest rate

 

5.03

%

Expected dividend yield

 

0.00

%

Expected life of ESPP shares (years)

 

0.25

 

Expected volatility of underlying stock

 

26.00

%

Expected forfeitures as percentage of total ESPP shares

 

0.00

%


(1)           The risk-free rate for the stock options is the average yield rate of the 3- and 5-year term on the U.S. Treasury Constant Maturities at the inception of each quarterly stock option period. The dividend yield of zero is based on the fact that the Company has never paid cash dividends and has no present intention to pay cash dividends. The expected life of the stock options shares is 3.5 years based on the simplified method as described in Staff Accounting  Bulletin No. 107. Expected volatility is based on the historical volatility of the Company’s common stock over the period commensurate with the

39




 

expected life of the stock option shares. Under the true-up provisions of SFAS No. 123(R), additional expense will be recorded related to stock option awards if the actual forfeiture rate is lower than estimated and a recovery of prior expense will be recorded if the actual forfeiture rate is higher than estimated.

(2) The risk-free rate for the ESPP is the yield rate on three-month U.S. Treasury Constant Maturities at the inception of each quarterly ESPP period. The dividend yield of zero is based on the fact that the Company has never paid cash dividends and has no present intention to pay cash dividends. The expected life of the ESPP shares is 0.25 years since shares are purchased through the plan on a quarterly basis. Expected volatility is based on the historical volatility of the Company’s common stock over the period commensurate with the expected life of the ESPP shares. The expected forfeitures as a percentage of total ESPP shares are zero due to the short-term nature of the plan. Under the true-up provisions of SFAS No. 123(R), additional expense will be recorded related to performance stock awards if the actual forfeiture rate is lower than estimated and a recovery of prior expense will be recorded if the actual forfeiture rate is higher than estimated.

Compensation expense associated with restricted stock awards and performance stock awards is measured based on the grant-date fair value of the Company’s common stock and the probability of achieving performance goals where applicable, and is recognized on a straight-line basis over the required employment period, which is generally the vesting period. Compensation expense is only recognized for those awards that the Company expects to vest, which is estimated based upon an assessment of historical forfeitures.

The following table illustrates the effect on net income and earnings per share if the Company had applied the fair value recognition provisions of SFAS No. 123(R) to stock-based employee compensation in the prior-year period (in thousands except for per share amounts):

 

Three Months
Ended
September 30,
2005

 

Nine Months
Ended
September 30,
2005

 

Net income attributable to common stockholders

 

$

5,387

 

$

17,459

 

Add: Stock-based compensation expense included in reported net income, net of related tax effects

 

41

 

88

 

Deduct: Total stock-based employee compensation expense determined under fair value-based method for all awards net of related tax effects

 

(450

)

(1,292

)

Pro forma net income attributable to common stockholders

 

$

4,978

 

$

16,255

 

 

 

 

 

 

 

Earnings per share:

 

 

 

 

 

Basic as reported

 

$

0.35

 

$

1.16

 

Basic pro forma

 

0.32

 

1.07

 

 

 

 

 

 

 

Diluted as reported

 

0.31

 

1.02

 

Diluted pro forma

 

0.28

 

0.94

 

 

In 1992 the Company adopted an equity incentive plan (the “1992 Plan”), which provides for a variety of incentive awards, including stock options, and in 2000, the Company adopted a stock incentive plan (the “2000 Plan”), which provides for awards in the form of incentive stock options, non-qualified stock options, restricted stock awards and performance stock awards. In 2002, the Company amended the 2000 Plan to increase the awards that can be issued under the 2000 Plan from 0.8 million shares to 1.5 million shares and in 2005, the Company further amended the 2000 Plan to increase the awards that can be issued under the 2000 Plan to 2.0 million. As of September 30, 2006, the Company had the following types of stock-based compensation awards outstanding under these plans: stock options, restricted stock awards and performance stock awards. As of December 31, 2005, all awards under the 1992 and 2000 Plans were in the form of non-qualified stock options, except for an aggregate of 37,950 restricted stock awards which the Company made in November 2005. The stock options generally become exercisable up to five years from the date of grant, subject to certain employment requirements, and terminate ten years from the date of grant. The restricted stock awards granted in November 2005 vest over five years subject to continued employment. During the nine months ended September 30, 2006, the Company granted 71,292 shares of performance stock awards, 4,100 shares of restricted stock, 23,833 stock options and 3,000 shares of common stock.

As of September 30, 2006, the Company had reserved 706,906 shares of common stock available for grant under the 2000 Plan, exclusive of shares previously issued (either upon exercise of stock options or pursuant to restricted stock,

40




 

performance stock or common stock awards) or reserved for options previously granted under the 2000 Plan. The 1992 Plan expired on March 15, 2002, but there were outstanding on September 30, 2006 options for an aggregate of 105,565 shares which shall remain in effect until such options are either exercised or expire in accordance with their terms. In addition, on September 30, 2006, there were outstanding options for an aggregate of 1,000 shares under the Company’s 1987 Equity Incentive Plan which had expired in 1997.

Stock Option Awards

Consistent with the Company’s valuation method for the disclosure-only provisions of SFAS No. 123, the Company is using the Black-Scholes option pricing model to value the compensation expense associated with its stock option awards under SFAS No. 123(R). In addition, the Company estimates forfeitures when recognizing compensation expense, and will adjust its estimate of forfeitures over the requisite service period based on the extent to which actual forfeitures differ, or are expected to differ, from such estimates. Changes in estimated forfeitures will be recognized through a cumulative catch-up adjustment in the period of change and will also impact the amount of compensation expense to be recognized in future periods.

Activity under the Plans relating to stock options is summarized as follows:

Stock Options

 

Number of
Shares

 

Weighted Average
Exercise Price

 

Weighted Average
Remaining
Contractual Term

 

Aggregate
Intrinsic Value
as of 9/30/06
(in thousands)

 

Outstanding at January 1, 2005

 

1,635,768

 

8.28

 

 

 

 

 

Granted

 

21,000

 

19.02

 

 

 

 

 

Forfeited

 

(134,500

)

9.56

 

 

 

 

 

Exercised

 

(701,723

)

6.37

 

 

 

 

 

Outstanding at December 31, 2005

 

820,545

 

9.98

 

 

 

 

 

Granted

 

23,833

 

36.84

 

 

 

 

 

Forfeited

 

(27,500

)

12.98

 

 

 

 

 

Exercised

 

(232,890

)

9.11

 

 

 

 

 

Outstanding at September 30, 2006

 

583,988

 

$

11.28

 

5.33

 

$

18,845

 

Exercisable at September 30, 2006

 

249,505

 

$

8.81

 

4.05

 

$

8,669

 

 

The weighted-average grant date fair values of option grants for the nine months ended September 30, 2006 and 2005 were $22.55 and $12.48 respectively.

41




As of September 30, 2006, there was $2.1 million of total unrecognized compensation cost arising from non-vested compensation related to stock option awards under the Company’s stock incentive plans. This cost is expected to be recognized over a weighted-average period of 0.9 years.

Restricted Stock Awards

The following information relates to restricted stock awards that have been granted to employees under the Company’s stock incentive plans. The restricted stock awards are not transferable until vested and the restrictions lapse upon the achievement of continued employment over a specified time period.

The fair value of each restricted stock grant is based on the closing price of the Company’s stock on the date of grant and is amortized to expense over its vesting period. At September 30, 2006, there were 31,560 shares of restricted stock outstanding.

The following table summarizes information about restricted stock awards for the nine months ended September 30, 2006:

Restricted Stock (Non-vested Shares)

 

Number of
Shares

 

Weighted Average
Grant-Date
Fair Value

 

Unvested at December 31, 2005

 

37,950

 

$

28.98

 

Granted

 

4,100

 

35.57

 

Vested

 

(7,490

)

29.01

 

Expired

 

 

 

Forfeited

 

(3,000

)

28.98

 

Unvested at September 30, 2006

 

31,560

 

$

29.83

 

 

As of September 30, 2006, there was $0.9 million of total unrecognized compensation cost arising from non-vested

42




 

compensation related to restricted stock awards under the Company’s stock incentive plans. This cost is expected to be recognized over a weighted-average period of 4.0 years.

Performance Stock Awards

The following information relates to performance stock awards that have been granted to employees under the Company’s stock incentive plans. Generally, performance stock awards are subject to performance criteria such as predetermined revenue and earnings targets for a specified period of time. The vesting of the performance stock awards is based on achieving such targets and also includes continued service conditions.

The fair value of each performance stock award is based on the closing price of the Company’s stock on the date of grant and is amortized to expense over its vesting period, if performance measures are considered probable. At September 30, 2006, there were 70,189 performance shares outstanding.

The following table summarizes information about performance stock awards for the nine months ended September 30, 2006:

Performance Stock

 

Number of Shares

 

Weighted Average
Grant-Date
Fair Value

 

Unvested at January 1, 2006

 

 

 

Granted

 

71,292

 

$

31.73

 

Vested

 

 

 

Expired

 

 

 

Forfeited

 

(1,103

)

31.73

 

Unvested at September 30, 2006

 

70,189

 

$

31.73

 

 

As of September 30, 2006, there was $1.4 million of total unrecognized compensation cost arising from non-vested compensation related to performance stock awards under the Company’s stock incentive plans. This cost is expected to be recognized over a weighted-average period of 1.3 years.

In the three- and nine-month periods ended September 30, 2006, the Company issued an aggregate of 0 and 71,292 performance stock awards, respectively under its stock incentive plans.

Employee Stock Purchase Plan

In May of 1995, the Company’s stockholders approved an Employee Stock Purchase Plan (the “ESPP”), which is a qualified employee stock purchase plan under Section 423 of the Internal Revenue Code of 1986, as amended, through which employees of the Company are given the opportunity to purchase shares of common stock. Under the ESPP, a total of one million shares of common stock were originally reserved for offering to employees, in quarterly offerings of 50,000 shares each plus any shares not issued in any previous quarter, commencing on July 1, 1995 and on the first day of each quarter thereafter. In 2005, the Company’s stockholders approved an increase of 500,000 in the maximum number of shares, which can be issued under the ESPP. Employees who elect to participate in an offering may utilize up to 10% of their payroll for the purchase of common stock at 85% of the closing price of the stock on the first day of such quarterly offering or, if lower, 85% of the closing price on the last day of the offering. Due to the discount of 15% offered to employees for purchase of shares under the ESPP, the Company considers such plan as compensatory. The weighted average per share fair value of the purchase rights granted under the ESPP during the nine months ended September 30, 2006 was $6.81.

Common Stock Awards

In the nine -month period ended September 30, 2006, the Company issued 3,000 shares of common stock under the Company’s stock incentive plans which vested immediately. The accounting measurement date was determined to be April 26, 2006, the date that a mutual understanding was reached by both the employees and the Company.

43




(15) SEGMENT REPORTING

Performance of the segments is evaluated on several factors, of which the primary financial measure is operating income before interest, taxes, depreciation, amortization, restructuring, non-recurring severance charges, other non-recurring refinancing-related expenses, (gain) loss on disposal of assets held for sale, other (income) expense, and loss on refinancing (“Adjusted EBITDA Contribution”). Transactions between the segments are accounted for at the Company’s estimate of fair value based on similar transactions with outside customers.

The Company has two reportable segments: Technical Services and Site Services.

Technical Services include:

·                  treatment and disposal of industrial wastes, which includes physical treatment, resource recovery and fuels blending, incineration, landfills, wastewater treatment, lab chemical disposal and explosives management;

·                  collection, transportation and logistics management;

·                  categorization, specialized repackaging, treatment and disposal of laboratory chemicals and household hazardous wastes, which are referred to as CleanPack® services; and

·                  Apollo Onsite Services, which provide customized environmental programs at customer sites.

These services are provided through a network of service centers where a fleet of trucks, rail or other transport is dispatched to pick up customers’ waste either on a pre-determined schedule or on demand, and then to deliver waste to a permitted facility. From the service centers, chemists can also be dispatched to a customer location for the collection of chemical waste for disposal.

Site Services provide highly skilled experts utilizing specialty equipment and resources to perform services, such as industrial maintenance, surface remediation, groundwater restoration, site and facility decontamination, emergency response, site remediation, PCB disposal, oil disposal, analytical testing services, information management services and personnel training. The Company offers outsourcing services for customer environmental management programs as well, and provides analytical testing services, information management and personnel training services.

The Company markets these services through its sales organizations and, in many instances, services in one area of the business support or lead to work in other service lines. Expenses associated with the sales organizations are allocated based on direct revenues by segment.

The operations not managed through the Company’s two operating segments are presented herein as “Corporate Items.” Corporate Items revenues consist of two different operations where the revenues are insignificant. Corporate Items cost of revenues represents certain central services that are not allocated to the segments for internal reporting purposes. Corporate Items selling, general and administrative expenses include typical corporate items such as legal, accounting and other items of a general corporate nature that are not allocated to the Company’s two operating segments.

44




 

The following table reconciles third party revenues to direct revenues for the three and nine-month periods ended September 30, 2006 and 2005 (in thousands). The Company analyzes results of operations based on direct revenues because the Company believes that these revenues and related expenses best reflect the manner in which operations are managed.

 

For the Three Months Ended September 30, 2006

 

 

 

Technical
Services

 

Site
Services

 

Corporate
Items

 

Total

 

Third party revenues

 

$

137,269

 

$

75,714

 

$

920

 

$

213,903

 

Intersegment revenues

 

21,246

 

6,777

 

174

 

28,197

 

Gross revenues

 

158,515

 

82,491