Steel Industry Compliance Extension Act of 1981

The Steel Industry Compliance Extension A ct of 1981 (Act) permits the Administrator of 

the Environmental Protection Agency to accede to a steel company’s request for an 

extension of otherwise applicable deadlines for compliance with the Clean Air Act only 

if the Administrator finds that the company has met its ongoing obligations under its 

existing consent decrees, or that 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 

or inconsequential.”

November 9, 1981

MEMORANDUM FOR THE ASSISTANT ATTORNEY 

GENERAL, LAND AND 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 Protection 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 legislative 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).

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hearings,2 and the floor debates.3 This material makes it clear that both 

Congress and the members of the Steel Tripartite Committee (Committee) 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 quality 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 attainment 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 Administrator was charged with seeking injunctions and recovering civil penalties against those who violate the Clean Air Act’s provisions. 42 

U.S.C. §§7413, 7420 (Supp. IV 1980). Through this enforcement mechanism, 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 comparable heavy industries such as the electric utilities (9.2%) or the automo2 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 Water 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).

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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 Service).

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 environmental 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 industry, 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 maintaining public health and environmental protection,” the Committee proposed 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 improve 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:

5 The NRD C is a national environmental group which frequently plays an active role in the 

legislative process. It was invited to join the working group by the Executive Office of the President 

and the United Steelworkers of America Union.

6 Since the newer 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 company 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 submitted 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 violations 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 Section, Land and Natural Resources Division, United States Department of Justice, October 16, 1981.

8 Id.

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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 measurable 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 Pottery 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 circumstances 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 Administrator 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 Implementation 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”).

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

The Administrator should make every effort to give effect to Congress’ 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 Administrator 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 consent 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 testimony 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 objection 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.

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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 companies 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 December 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 modernization, we must have this amendment now.

Hearings on S. 63, supra, at 47 (statement of George A. Stinson, Chairman 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 commitments 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.

Any violation of the agreement would in turn make us ineligible under the provisions o f H.R. 1817 if 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).

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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 capital 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, there13 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 of 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

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fore, is not a matter analogous to the exercise of prosecutorial discretion—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 advanced 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. “The bill does not authorize the granting of 

extensions on a blanket basis. Each request for an extension with respect 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 existing 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 compliance with the applicable emission limitation.

Id. at 4 (emphasis added).14 We therefore do not believe that determination 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 Act appears to contemplate that 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 of applicant's sources.” Letter from Ms. Dorothy H. Servis, Senior 

Genera] Attorney, Environmental and Real Estate, United States Steel Corp., to Mr. Michael Alushin, 

Director, Steel Tripartite Task Force, EPA at 2 (Oct. 23, 1981).

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Moreover, this interpretation of de minimis would lead to an inconsistent 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 requirements that give rise to the violations. We believe that the Act does not 

authorize such a procedure. Not only would this create a major loophole 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 anomaly.

Id. at 201

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companies be barred from an extension under the Act, we do not 

believe the Administrator may interpret the Act to permit such substitution 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 believe that the Administrator can properly authorize an extension under 

the Act.

V. Conclusion

We have not attempted to determine whether any particular company 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 of 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 Congress all seemed to believe that nearly all of the steel companies would 

be in compliance with their consent decrees, the Act did not contemplate 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 so n

Assistant Attorney General

Office o f Legal Counsel

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