           Steel Industry Compliance Extension Act of 1981

The Steel Industry Compliance Extension A ct o f 1981 (A ct) permits the Administrator of
  the Environm ental Protection Agency to accede to a steel company’s request for an
  extension o f otherwise applicable deadlines for compliance with the Clean A ir Act only
  if the A dm inistrator finds that the company has met its ongoing obligations under its
 existing consent decrees, or th at any violations are de minimis in nature.
While the term “de minimis” is not defined in the Act, the legislative history confirms
 that it was meant to have its ordinary meaning—that is, “negligible” or “insubstantial
 o r inconsequential.”

                                                                          November 9, 1981
     MEMORANDUM FOR THE ASSISTANT ATTORNEY
  G EN ERA L, LAND A ND NATURAL RESOURCES DIVISION

   This responds to your request for our views concerning the proper
construction of the term “de minimis” as used in the Steel Industry
Compliance Extension Act of 1981, Pub. L. No. 97-23, 95 Stat. 139 (to
be codified at 42 U.S.C. § 7413(e)) (Act), familiarly known as the Steel
Tripartite Amendment, Tripartite, and Steel Stretch-out. We have
found nothing in the statute or its legislative history to suggest that de
minimis was meant to have anything other than its usual meaning—that
is, negligible, insubstantial, or inconsequential. Anderson v. Mt. Clemens
Pottery Co., 328 U.S. 680, 692, 693 (1946). We therefore conclude that
the Act does not permit the Administrator of the Environmental Pro­
tection Agency (EPA) to enter into or modify a consent decree for the
purpose of extending compliance deadlines under the Clean Air Act, 42
U.S.C. § 7401 et seq. (Supp. IV 1980), unless the Administrator finds
that a company is in compliance with its existing consent decrees, or
any violations are of a de minimis nature, as defined; at the time the
company applies for an extension.
   In reaching this conclusion, we have carefully reviewed the legisla­
tive history of the Act, including the House and Senate reports,1 the




   1 H.R. Rep. No. 161, 97th Cong., 1st Sess. (1981), H.R. Rep. No. 121, 97th Cong., 1st Sess. (1981);
S. Rep. No. 133, 97th Cong., 1st Sess. (1981).

                                               326
hearings,2 and the floor debates.3 This material makes it clear that both
Congress and the members of the Steel Tripartite Committee (Commit­
tee) who drafted the Act intended that the EPA Administrator have
discretion to grant extensions only to those companies who had met
their ongoing obligations under a consent decree.
                                          I. Background

   The Clean Air Act Amendments of 1970, 42 U.S.C. § 1857 et seq.
(1976) (amending the Air Quality Act of 1967, Pub. L. No. 90-148, 81
Stat. 485 (codified at 42 U.S.C. § 1857-1871/) (1970)) (amended 1977),
developed lists of air pollutants, promulgated national ambient air qual­
ity standards, 42 U.S.C. § 1857c-4 (1970 ed.), and required each state to
develop a plan to implement the air quality standards. Id. at § 1857c-5.
The state, or, if it failed to act, the EPA, was authorized to prevent the
construction or modification of any new sources of pollution—such as
factories—from being built if the construction would prevent attain­
ment or maintenance of the national air quality standards. Id. at
§ 1875c-5(a) (2)(D), (4). The Clean Air Act Amendments of 1977, 42
U.S.C. § 7401 (Supp. IV 1980), extended the deadlines for meeting most
of the standards for pollutants to December 31, 1982. The EPA Admin­
istrator was charged with seeking injunctions and recovering civil pen­
alties against those who violate the Clean Air Act’s provisions. 42
U.S.C. §§7413, 7420 (Supp. IV 1980). Through this enforcement mech­
anism, the Administrator has brought actions and, in most instances,
obtained consent decrees. Mandatory investment schedules contained in
those decrees insure, through the mechanism of the threat of stipulated
damages, that the companies meet the 1982 final compliance deadline.4
   By 1979, when the EPA had reached consent decrees with most of
the major steel companies, H.R. Rep. No. 121, supra, at 4-8 (Table 1),
expenditures for pollution control had become a major drain on the
resources available to the steel industry for capital investment. In 1980,
for example, 19% of the steel industry’s annual capital expenditure was
for pollution control. This was far greater than that spent by compara­
ble heavy industries such as the electric utilities (9.2%) or the automo­

   2 Steel Tripartite Committee Proposal: Hearings on H.R. 1817. H.R. 2024. H.R. 2219. et al. Before the
Subcomm. on Health and the Environment o f the House Comm, on Energy and Commerce. 97th Cong.,
1st Sess. (1981) [hereafter cjted as Hearings on H.R. 1817\\ Steel Industry Compliance Extension Act o f
1981: Hearing on S. 63 Before the Senate Comm, on Environment and Public Works. 97th Cong., 1st
Sess. (1981) [hereafter cited as Hearing on S. 63]\ Report o f the Steel Tripartite Comm. Hearings Before
the Senate Comm, on Environment and Public Works. 96th C ong, 2d Sess (1980) [hereafter cited as
Tripartite Hearings).
   3 127 Cong Rec. H3747-52 (daily ed. June 26, 1981); id. at S6985-87 (daily ed. June 25, 1981); id. at
S6605 (daily ed. June 19, 1981); id. at S6090-93 (daily ed. June 11, 1981); id. at H2463-64 (daily ed.
May 28, 1981); id. at H2444-56 (daily ed. May 28, 1981).
   *See C. Stewart, Air Pollution, Human Health and Public Policy 35-48 (1979). See generally.
Environmental Law Institute, Air and W ater Pollution Control Law- 1980 (G. Wetstone, ed. 1980);
Hearing on S. 63. supra, at 62 (Report of the Steel Tripartite Advisory Committee Working Group on
Environmental Protection).

                                                  327
 tive industry (5.4%). Id. at 9 (Table 2). Not only was the percentage of
 capital invested higher, it was also more difficult for the steel industry
 to raise. Id. (Table 3). This, the steel companies argued, was due to
 pressure on the industry by the federal government not to raise prices,
 making it increasingly difficult to recapture costs, and because of the
 willingness of the federal government to sacrifice the domestic steel
 industry to foreign policy considerations by allowing “dumping” of
 foreign steel. Hearings on H.R. 1817, supra, at 48-9; Tripartite Hearings,
supra, at 101-02 (report prepared by the Congressional Research Serv­
ice).
    The Steel Tripartite Committee was formed to advise the President
on the steel industry’s problems and to suggest ways to revitalize the
industry. It was made up of representatives of the senior management
of the steel companies, the United Steelworkers of America Union, and
the federal government. The Committee’s working group on environ­
mental issues later added a fourth member, the Natural Resources
Defense Council (NRDC).5 These disparate groups brought to the
negotiating table concerns about the flagging health of the steel indus­
try, the protection of local economies threatened by plant closings, the
promotion of worker health and safety, and the public’s interest in
continued progress toward the goals of the Clean Air Act. Out of their
dynamic balancing of interests and resultant compromises came the
 1981 amendments embodied in the Act. In order “to provide the steel
industry with vitally needed capital for modernization, while maintain­
ing public health and environmental protection,” the Committee pro­
posed that steel companies be given 3 more years in which to meet the
requirements of the Clean Air Act. H.R. Rep. No. 121, supra, at 8-9.
The “trade-off’ for the extension of the deadline for compliance with
the Clean Air Act was that the companies obtaining the benefit of the
extension would invest in modernization efforts the capital resources
which would otherwise have gone into more immediate compliance
efforts.6 The compromise reflected by the Act was, therefore, to im­
prove the efficiency and productivity of the American steel industry at
the cost of some temporary setbacks in the achievement of the goals for
cleaner air contained in the Clean Air Act. However, to ensure that the
companies would not abandon progress toward pollution control, each
company applying for an extension would have to meet six carefully
crafted conditions. In order to consent to an extension of the schedule
for compliance, the EPA Administrator would have to find:

   5T he N R D C is a national environmental group which frequently plays an active role in the
legislative process. It was invited to jo in the working group by the Executive Office of the President
and the United Steelworkers of America Union.
   6 Since the new er equipment would contain the most modern technology, it was argued that it
would usually be cleaner than what it was replacing.

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           (A) That the extension is necessary to allow the com­
        pany to make capital investments designed to improve
        efficiency and productivity;
           (B) That funds equal to what would otherwise have
        been spent by December, 1982 on pollution control will
        be spent within two years on capital investments;
           (C) That the company will enter into a consent decree
        establishing a schedule for bringing all its stationary
        sources of pollution into compliance;
           (D) That the company will have enough money to
        comply with its consent decrees;
           (E) That the company is in compliance with existing
        federal consent decrees or that any violations are de ,
        minimis in nature; and
           (F) That any extensioin will not result in degradation of
        air quality during the extension.
See Act, § 113(e)(1) (A)-(F). Each of these requirements was included
in response to objections that the Act was special-interest legislation.
On each of the six, the company “bears the burden of proof.” H.R.
Rep. No. 121, supra, at 10.
  Section 113(e)(1)(E) is Congress’ response to critics who claimed the
Act would “give relief to those companies which have been avoiding
the law and penaliz[e] those who have complied.” Tripartite Hearings,
supra, at 27 (Follow-up Questions for EPA). As finally enacted,
§ 113(e)(1)(E) requires that
        the Administrator find[ ], on the basis of information sub­
        mitted by the applicant and other information available to
        [the Administrator] that the applicant is in compliance
        with existing Federal judicial decrees (if any) entered
        under section [113] of this Act applicable to its iron- and
        steel-producing operations or that any violations of such
        decrees are de minimus [sic] in nature.
Act, § 113(e)(1)(E). You have asked us to consider what kind of viola­
tions can be considered de minimis.
                 II. The Meaning of De Minimis Under the Act

   De minimis is not defined in the Act. It was suggested as the
standard by Ms. Frances Dubrowski, NRDC representative, during the
late stages of the Committee’s drafting of the Act.7 The suggestion was
made in response to the steel industry’s suggestion that the test be
“substantial compliance” with one’s consent decree.8 That the parties

   7 Telephone conversation with Mr. Stephen D. Ramsey, Chief, Environmental Enforcement Sec­
tion, Land and Natural Resources Division, United States Department of Justice, October 16, 1981.
   8 Id.

                                              329
intended a narrow definition is supported by the Senate report which
states:
        A de minimis violation of an emission limitation is a
        violation resulting from circumstances beyond the control
        of the source owner or employee which causes no meas­
        urable increase in emissions from a source.
S. Rep. No. 133, supra, at 4. “The intent of this provision is twofold: to
ensure that pollution control expenditures required to be made before
the grant of an extension under this act are not deferred and to ensure
that only those companies making a good faith effort to comply with
existing environmental obligations obtain the benefit of further deadline
extensions.” H.R. Rep. No. 121, supra, at 10.
   De minimis matters have traditionally been defined as “negligible,”
“trifles,” “insubstantial and insignificant.” Anderson v. Mt. Clemens Pot­
tery Co., 328 U.S. 680, 692, 693 (1946).9 The legislative history is scanty
on the issue, but what there is reflects this understanding. The Senate
report, for instance, defines de minimis violations of a consent decree as
those resulting in “no measurable increase in emissions from a source.”
S. Rep. No. 133, supra, at 4. A violation that “result[s] from circum­
stances beyond the control of the source owner” would bar even a
minor violation, if caused by the owner’s fault or neglect. Id. And a
violation that really causes “no measurable increase in emissions” must
be one so minor as to be truly insignificant. Id.
   Whether a particular violation is de minimis is a decision that must
initially be made by EPA, since the discretion belongs to the Adminis­
trator and it is his expertise which will inform your review and will
guide your judgment as to whether you (on behalf of the Attorney
General) will approve the modification of the decree. The EPA Imple­
mentation Manual describes the test to be used.
            In determining what are insignificant deviations, the
          agency should consider the extent of the delay, the nature
          of the violation, the good faith of the company, and the
          extent to which the delay impacts other provisions of the
          decree.
Manual, Ex. G., at 2. We assume this involves determinations of issues
such as whether a violation is temporary or, if easily curable, likely to
be cured because of the company’s good faith willingness or effort to
cure. However, “[w]here emissions limits are in issue, these cannot be
viewed as ‘de minimis’ unless they cause no significant increase in
emissions from a source.” Id. at 1.

    9 See also Industrial Union Depl v. American Petroleum Institute, 448 U.S. 607, 664 (1980) (Burger,
J , concurring) (“ insignificant,” "scant o r minimal risks” ); Hunter v. Madison Aye. Corp., 174 F.2d 164,
167 (6th Cir. 1949) ("inconsequential” ).

                                                 330
       III. The Role of § 113(e)(1)(E) and De Minimis Under the Act

   The Administrator should make every effort to give effect to Con­
gress’ desire to afford economic relief to the steel industry so that it can
devote capital resources to modernization. The Act, however, expressly
and unequivocally conditions the companies’ eligibility for an extension
of the time deadlines under the Clean Air Act on the Administrator’s
making of two crucial findings: no “degradation of air quality,”
(§ 113(e)(1)(F)), and no extensions unless a company is “in compliance
with existing Federal judicial decrees (if any) . . . [or] any violations of
such decrees are de minim[i]s in nature.” (§ 113(e)(1)(E)). If the Admin­
istrator cannot reasonably make such findings, the Act simply does not
allow an exercise of discretion that ignores the Act’s language in an
attempt to maximize the number of steel companies eligible for relief.
Compliance with the pollution control schedules contained in the con­
sent decrees is just as integral a part of the Act as the desire to allow
diversion of capital from air pollution equipment to improvements in
plant efficiency.
   Congress clearly contemplated, based in substantial part on the testi­
mony of representatives of the steel industry, that compliance with
existing decrees was a condition which was acceptable to the industry
and attainable by it. While the provision was being fully debated by the
committee that drafted the statute and the Congress that passed it, there
was no indication that the steel companies could not or would not
comply. In fact, on March 3, 1981, the EPA testified that most of the
steel companies would be in compliance with their respective consent
decrees by the end of the year.
        The steel industry used to have a fairly well-deserved
        reputation as a major polluter of air and water. However,
        that situation has now changed very much for the better.
        Where in July 1978 only 32 percent of air pollution
        sources in the steel industry were in compliance or on
        court-ordered compliance schedules, by the end of this
        year that number will be up to approximately 90 percent.
Hearings on S. 63, supra, at 6 (statement of Walter C. Barber, Jr.,
Acting Administrator, EPA); Hearings on H.R. 1817, supra, at 88 (85%)
(statement of Walter C. Barber, Jr.); Tripartite Hearings, supra, at 13
(84%) (statement of Michele B. Corash, General Counsel, EPA). Since
the steel companies’ representatives were present and made no objec­
tion to these figures,10 Congress must have assumed that this condition
could be met by most steel companies.

   10   The steel companies complained that because they were complying with their respective consent
decrees, they would have no money left for modernization under the Act. See n 13 infra.

                                              331
  The necessity of complying with outstanding consent decrees was
discussed during the floor debates 11 and the hearings.12 The steel
companies themselves expressly recognized that the failure to be in
compliance with their respective consent decrees would bar them from
relief under the Act and, therefore, that each day’s delay in enacting
the law reduced the value of the Act to them.
          If I might depart from the Chairman’s questions briefly,
       the point we most want to make here today is that this
       issue requires immediate legislative action. Those compa­
       nies who have existing consent decrees with the EPA are
       on a schedule of compliance which requires weekly and
       sometimes daily commitment of funds to meet the Decem­
       ber 31, 1982 deadline. Failure to meet these increments of
       progress places us in technical violation of the consent
       agreements. S. 63 states that an extension applicant must be
       in compliance with existing consent agreements. [Emphasis
       added.] If we are to have any funds to defer for modern­
       ization, we must have this amendment now.
Hearings on S. 63, supra, at 47 (statement of George A. Stinson, Chair­
man of National Steel Corp.) (March 3, 1981). A few weeks later, the
same speaker made the point again.
         The terms of the agreement, coupled with long leadtimes
         for construction, require us to commit the funds early in
         the agreement if we are to meet the 1982 completion
         dates. Some funds for engineering, for site clearance, and
         the like have already been, expended, and within a very
         few weeks we will have to make major capital commit­
         ments which in many cases will be impossible to defer
         further.
           These commitments are spelled out in the judicial
         decree with specific dates for action, and failure to meet
         those dates puts us in technical violation of the agreement.
         A ny violation o f the agreement would in turn make us ineli­
         gible under the provisions o f H.R. 1817 i f it becomes law.
            For these reasons, we and others need this amendment
         very soon if it is to have any benefit toward a rapid
         modernization of the industry. Passage of the amendment
         later this year under the reauthorization of the Clean Air
         Act would be of very little, if any, benefit to the industry.

   11 127 Cong. Rec ' H3750 (daily ed. June 26, 1981); id. at H2447 (daily ed. May 28, 1981).
   12 Tripartite Hearings, supra, at 18 (EPA ), 27 (EPA); Hearings on S. 63, supra, at 91 (NRDC);
Hearings on H .R. 1817, supra, at 132 (statement by Pres. Carter submitted by the White House for the
record).

                                                332
Hearings on H.R. 1817, supra, at 65 (emphasis added) (March 25,
1981).13 David M. Roderick, Chairman of the United States Steel
Corp., made the same point at the same hearings.
        The existence or prospects of the consent decrees, as I
        mentioned earlier, is what creates the urgent need for this
        legislation.............Our willingness to enter into these
        agreements has created binding obligations to make cap­
        ital commitments that I mentioned earlier. In order to
        comply with our consent decrees and make the milestone
        schedules which they contain, we must commit millions
        of dollars virtually every month. Once these funds are
        committed, they are no longer available to be considered
        for stretchout, and we lose the opportunities to use these
        funds in the interim for modernization.
Id. at 70.
  The Administrator’s flexibility in interpreting the Act is limited by
the fact that any modification to any consent decree issued pursuant to
the terms of the Act must be approved by the judge in whose court the
prior consent decree was approved. Act, § 113(e)(7)(B)(ii). Information
(unless confidential) used to make the decision and the decision itself
will be matters of public record. Id. § 113(e) (3), (7). The right of
private parties or states to intervene under § 304 of the Clean Air Act,
42 U.S.C. § 7604 (Supp. IV 1980) for violation of emission standards
remains available, § 113(e)(8); H.R. Rep. No. 121, supra, at 13, and
would no doubt be exercised if such litigants felt that there had been an
abuse of discretion by the Administrator in consenting to an extension
where the de minimis finding was not defensible. United States v.
Republic Steel Corp., 15 Env’t Rep. (BNA) 1463 (N.D. 111. 1980); Fed.
R. Civ. P. 24. Evaluation of whether a violation is de minimis, there­

   13 The steel companies were obliged to meet schedules in their consent decrees premised on a
complete cleanup by December 1982. The race to get the Act passed before all the money was
committed to compliance as mandated by consent decrees is illustrated in the following exchange
between Rep. Waxman and Mr Stinson, Chairman of National Steel Corp., and Mr. Roderick,
Chairman o f United States Steel Corp.
          Mr. Waxman. Mr. Roderick and Mr. Stinson, when is the latest possible date for
       passage of this legislation to be valuable to the industry?
          Mr. Stinson. Well, every additional day, Mr Chairman, poses a problem for us. It is
       quite difficult for me to say whether it is March 31 or April 30, but I could definitely
       say to you that if it were delayed into the late summer, it would be o f virtually no
       benefit to us.
          Mr. Roderick. . . [E]ach month of delay would mean basically about $15 million to
       $20 million that otherwise would be available for modernization would have to go to
       environmental commitments, and if by July we didn’t have even the EPA approval by
       that time, we would pretty well have run the gamut, we would have pretty well have
       had to commit on almost all the facilities in order to make the 1982 deadline. So I
       would say legislatively, Mr. Chairman, we would hope that it would be possible to
       have this legislation sometime no later than the end of April, allowing us time to make
       our presentations to the EPA and satisfy their requirements so that we would not have
       to commit, let’s say, after July.
Hearings on H.R. 1817. supra, at 90. The Act did not become law until July 17, 1981

                                           333
fore, is not a matter analogous to the exercise of prosecutorial discre­
tion—it is an administrative decision that will be reviewed by the
courts and critiqued by highly interested advocates. Unless supported
by a cogent rationale, a finding that a violation is de minimis is likely to
be rejected.
        IV. Arguments in Favor of a Broader Meaning of De Minimis

  We have evaluated several potential arguments that might be ad­
vanced to support a broader meaning of de minimis, but they appear to
be unsupported by the traditional meaning of the term or the Act’s
legislative history.
  A.      We have considered whether de minimis might be measured
against a particular company’s entire pollution control program or its
compliance rate with all of its consent decrees, rather than measured
against its operations at a particular plant. We do not believe that it
may. The Act was an attempt to balance the steel industry’s need for
extensions so that it could devote capital resources to modernization
against the continuing interest of the public in cleaner air. Exceptions
under the Act were to be carefully scrutinized to ensure that all the
conditions were met. “T he bill does not authorize the granting of
extensions on a blanket basis. Each request for an extension with re­
spect to a specific emission control requirement and facility is to be
considered individually.” S. Rep. No. 133, supra, at 1. The emphasis
appears to have been placed quite intentionally on individual stationary
sources. In fact, rather than a violation at one plant being viewed as de
minimis because of compliance at 99% of the company’s other plants,
the drafters apparently contemplated that a violation at one plant
would preclude the granting of an exception even for the 99% of that
company’s plants that are in compliance.
            The owner of a source which is in violation of an
         emission limitation after a compliance deadline in an exist­
         ing decree is not eligible for a compliance extension
         beyond 1982 for any source which would otherwise be
         eligible until the violating source is brought into compli­
         ance with the applicable emission limitation.
Id. at 4 (emphasis added).14 We therefore do not believe that determi­
nation of whether a violation is de minimis should be made in the
context of a company’s entire compliance program.

    14   This understanding is reflected in a recent letter from the United States Steel Corp. to the EPA.
“ [T]he A ct appears to contemplate th at the Administrator may make a finding related to only one of
the applicant's sources which leads to a decision that the applicant is ineligible under the Act, and that
the ineligibility then applies to all o f applicant's sources.” Letter from Ms. Dorothy H. Servis, Senior
Genera] A ttorney, Environmental and Real Estate, United States Steel Corp., to Mr. Michael Alushin,
D irector, Steel T ripartite Task Force, E PA at 2 (Oct. 23, 1981).

                                                 334
   Moreover, this interpretation of de minimis would lead to an incon­
sistent and unequal application of the de minimis standard. The same
violation would be a de minimis violation for a large company with
many plants but a substantial violation for a small company with only a
few plants. The larger the company, the more violations it could absorb
and still obtain an exception. This construction would be particularly
anomalous since the larger companies are also presumably generally
better able to generate the capital necessary to eliminate violations. We
therefore do not find support for the argument that whether a violation
is de minimis should be measured against the total company compliance
with the Clean Air Act or all of a particular company’s outstanding
decrees.16
   B. We have also considered whether the Administrator could avoid
the issue of whether or not a violation is de minimis by agreeing to
modifications of the existing consent decrees to remove the require­
ments that give rise to the violations. We believe that the Act does not
authorize such a procedure. Not only would this create a major loop­
hole that would permit the Administrator effectively to eliminate
§ 113(e)(1)(E) from the Act, but it would also contradict the Act’s
language and the repeated statements by all parties assuring Congress
that the steel companies knew they had to be in compliance and would
be in compliance with their consent decrees. Most importantly, it
would contradict the clearly expressed desire of Congress that only
companies that had made the effort and expended the funds necessary
to comply with their outstanding consent decrees were entitled to this
exception. “[EJxisting decrees may not be amended so as to make
companies eligible for extensions under this proposal.” H.R. Rep. No.
121, supra, at 10. Congress foresaw and precluded this argument.
   C. The same response must be made to the suggestion that the
Administrator commence contempt actions against the violators and
then settle the actions, collect outstanding stipulated penalties, and
substitute new compliance schedules. Substitution of new compliance
schedules would effectively amend existing consent decrees, contrary to
the letter and spirit of the House report. It would permit companies
that had failed to abide by their consent decrees access to the benefits
of the Act. Since we believe that Congress clearly intended that such

   16 A similar argument was rejected in an early case discussing de minimis, N L R B v. Cowell Portland
Cement Co., 108 F.2d 198 (9th Cir. 1939), in which the issue was whether a company was doing
enough interstate business to fall within the NLRB’s jurisdiction.
         The quantity of cement shipped out of state is not de minimis merely because it is but a
         small percentage of respondent's total sales Otherwise, we would have the anomaly of
         one plant under federal regulation because exporting its entire product of 14,000
         barrels while alongside it another competing plant was under state regulation because,
         though' shipping the same amount of 14,000 barrels, they constituted, say, but 4 percent
         of its product. Congress could not have intended that it would subject laboring men or
         employers to such a confusing and, in business competition, such a destructive anom­
         aly.
Id. at 201

                                                 335
companies be barred from an extension under the Act, we do not
believe the Administrator may interpret the Act to permit such substi­
tution of new compliance schedules.
   We believe that de minimis means what it has traditionally meant—an
insignificant or insubstantial matter. Where the violation of a consent
decree cannot reasonably be described as insignificant, we do not be­
lieve that the Administrator can properly authorize an extension under
the Act.
                              V. Conclusion

   We have not attempted to determine whether any particular com­
pany is or is not in violation of its consent decrees or, if the facts
support a finding that there is a violation, whether that violation is de
minimis. That would require a factual determination which we are not
qualified to make and must be made, subject to your approval, by the
Administrator. Each applicant, as noted earlier, has the burden of
establishing that it is in compliance with the consent decrees or that its
violations are de minimis.
   The normal meaning o f the term de minimis is entirely consistent
with the Act’s legislative history. Indeed, all of the legislative history
on the subject supports that conclusion and none of it supports a more
expansive definition. Since the EPA and the steel industry and Con­
gress all seemed to believe that nearly all of the steel companies would
be in compliance with their consent decrees, the Act did not contem­
plate any substantial deviations from the consent decrees. We have no
way of determining whether Congress would have voted for the Act at
all if the information had established that the companies were not then
substantially in compliance or capable of placing themselves into such a
status. We certainly cannot attribute to Congress an intent to allow the
EPA Administrator to ignore or deviate in any material way from one
of the integral components of the Act.
                                        T h e o d o r e B. O l s o n
                                      Assistant Attorney General
                                       Office o f Legal Counsel




                                   336
