ELR Citation: ELR 20535
No(s). 87-6793 (E.D. Pa. Oct 31, 1989)

The court holds that the benzene Clean Air Act National Emission Standard for Hazardous Air Pollutants (NESHAP) applies to a bulk liquid storage terminal. While not a producer of benzene, the terminal receives benzene by ship or barge and transfers benzene by pipeline to storage tanks. When the benzene NESHAP was proposed by the Environmental Protection Agency (EPA), the terminal owner's trade association asked for clarification of whether the NESHAP applied to bulk storage terminals. During two of these contacts EPA representatives said the benzene NESHAP did not apply to bulk liquid terminals, but the majority of contacts and information provided by EPA indicated that the benzene NESHAP did apply to bulk liquid terminals. The court first holds that any ambiguity in the regulations that conflicts with EPA's interpretation should be decided in favor of the EPA. While the regulations seem to indicate that they apply to processing facilities but not to storage facilities, deference to EPA's interpretation is warranted due to the specialized knowledge involved and to effectuate the legislative intent of the Clean Air Act. The court further holds that deference to EPA's interpretation of the regulations is required since EPA's interpretation was not arbitrary and capricious. Defendants knew or should have known of EPA's intended application of the NESHAP benzene regulations prior to handling benzene at their terminal. Holding in favor of EPA's interpretation will create potential liability in defendants for damages from past noncompliance, providing a beneficial effect on the public health that outweighs any detrimental effect on defendants.

Counsel for Plaintiff
James G. Sheehan, Ass't U.S. Attorney
601 Market St., Rm. 3310, Philadelphia PA 19106
(215) 597-2556

Counsel for Defendants
Barry Klayman
Wolf, Block, Schorr & Solis-Cohen
Packard Bldg., 15th & Chestnut Sts., 12th Fl., Philadelphia PA 19102
(215) 977-2000