The opinion of the court was delivered by: VAN ANTWERPEN
FRANKLIN S. VAN ANTWERPEN, UNITED STATES DISTRICT JUDGE
This action was brought by the United States of America on behalf of the Administrator of the United States Environmental Protection Agency ("EPA") seeking injunctive relief and civil penalties against defendants Unitank Terminal Service, Unitank, Inc. and DRT Industries, Inc., for violations of the benzene regulations of the National Emission Standard for Hazardous Air Pollutants ("NESHAP"), 40 C.F.R. Part 61, Subparts A, J and V, promulgated under Sections 112 and 114 of the Clean Air Act, 42 U.S.C. §§ 7412 and 7414.
Before me are Defendants' Motion for Summary Judgment and the Motion of the United States for Partial Summary Judgment in their favor. For the reasons given below, I will deny the Defendants' Motion, grant the government's Motion and enter partial summary judgment, on the issue of the applicability of the NESHAP benzene regulations to defendants' Philadelphia Terminal, in favor of plaintiff United States of America and against defendants Unitank Terminal Service, Unitank, Inc., and DRT Industries, Inc.
Summary judgment under Fed.R.Civ.P. 56 may only be granted if there are no genuine issues of material fact and the moving party demonstrates that it is entitled to judgment as a matter of law. Summary judgment will not lie if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). Before summary judgment may be granted it must be clear what the truth is, and any doubt as to the existence of a genuine issue of material fact will be resolved against the movant. Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464, 7 L. Ed. 2d 458, 82 S. Ct. 486 (1962). At oral argument on October 5, 1989 all parties agreed that benzene is a dangerous carcinogen and that the stipulated facts before the court make the matter ripe for summary judgment.
Defendant Unitank Terminal Service ("Unitank") is a Pennsylvania general partnership which owns and operates a bulk liquid storage terminal at Allegheny and Delaware Avenues in the Port Richmond neighborhood of Philadelphia ("Terminal"). Unitank is owned jointly by defendants Unitank, Inc., a foreign corporation doing business in Pennsylvania and DRT Industries, Inc, a Delaware Corporation doing business in Pennsylvania.
The Terminal in on a thirty acre site and contains nearly one hundred storage tanks ranging in size from 30,000 gallons to 100,000 barrels. The total capacity of the Terminal, which has been in existence since 1955, is approximately 50 million gallons. It is serviced by ship, truck and rail.
Unitank handles a wide range of liquid commodities at the Terminal, ranging from foodstuffs to hazardous chemicals. Unitank does not manufacture any products, it merely provides services in the nature of a warehouseman to its customers.
Beginning on February 1, 1986, Unitank began transferring and storing 100% liquid benzene at the Terminal. The benzene is received by ship or barge, transferred by pipeline to storage tanks, and later transferred by pipeline to outbound carriers: ship, barge, truck or rail.
At any one time since February 1, 1986 only three or fewer storage tanks at the Terminal have been used for benzene. Overall, a total of five tanks have been used at one time or another.
Nevertheless, the benzene throughput is substantial. For example, according to Attachment 3 to plaintiff's Motion, the actual benzene throughput for 1986 was 7,878,676 gallons.
According to Exhibit 16 to the joint Stipulations of Fact, the estimated throughput for 1987 would be 18 million gallons. Since this volume is moved into and out of the Terminal at separate times, the volume moved through the pipeline system is double the stated amount.
Each year since February 1, 1986, including this year, the Terminal has transferred and stored more than 1000 megagrams of 100% liquid benzene. In fact, each transfer operation exceeds 1000 megagrams.
Although defendants did not fully comply with the NESHAP benzene regulations prior to 1987, they did have certain procedures in place. Under these procedures whenever benzene was transferred at the Terminal, a supervisor or his designee walked the pipeline to visually inspect it for leaks. Any leaks were reported at once. Leaks which were detected were repaired as soon as practicable, usually within a few hours after detection. Unitank maintains records of these transfers, inspections and repairs.
Prior to an EPA inspection on April 17, 1987 the Terminal was not in full compliance with the NESHAP benzene regulations. Since then practices have been changed so that the Terminal is either in full compliance or nearly so.
Section 112(b) of the Clean Air Act, 42 U.C.S. § 7412(b), requires the EPA Administrator to publish a list of hazardous air pollutants and to prescribe emission standards for each pollutant on the list. Those standards are known as the National Emission Standards for Hazardous Air Pollutants or NESHAP. See 40 C.F.R. Part 61.
Section 112 (c) of the Clean Air Act, 42 U.S.C. § 7412(c), provides that no hazardous air pollutant to which an emission standard applies may be emitted from any stationary source in violation of that standard.
Section 112(e)(1) of the Clean Air Act, 42 U.S.C. § 7412(e)(1), provides that if, in the judgment of the EPA Administrator, it is not feasible to prescribe or enforce an emission standard for control of a hazardous air pollutant, the EPA Administrator may instead promulgate a "design, equipment, work practice or operational standard, or a combination thereof, which in his judgment is adequate to protect the public health from such pollutant."
Section 112(e)(5) of the Clean Air Act, 42 U.S.C. § 7412(e)(5), provides that any such "design, equipment, work practice or operational standard, or any combination thereof" shall be treated as an emission standard for purposes of the provisions of the Clean Air Act.
Pursuant to § 112(b) of the Clean Air Act, 42 U.S.C. § 7412(b), the EPA Administrator has designated benzene as a hazardous air pollutant. 42 C.F.R. § 61.01 (1988), 42 Fed. Reg. 29332 (June 8, 1977).
On January 5, 1981, the EPA Administrator published a proposed rule and notice of public hearing for a national emission standard for benzene fugitive emissions. 46 Fed Reg. 1165 et seq. (Jan. 5, 1981) (Exhibit 2 to Defendants' Motion). The notice stated that the proposed standard would limit benzene emissions from new and existing fugitive emission sources "in the petroleum refining and chemical manufacturing industries." 46 Fed. Reg. at 1165.
The notice of proposed rulemaking described the proposed standard as follows:
On June 6, 1984, the EPA Administrator promulgated the NESHAP benzene regulations as a "Final Rule" under the heading "National Emission Standards for Hazardous Air Pollutants; Benzene Equipment Leaks (Fugitive Emission Sources)" 49 Fed. Reg. 23498 et seq. (June 6, 1984) (Exhibit 7 to Defendants' Motion). The publication added Subparts J and V to part 61 of 40 C.F.R. The publication in the Federal Register contains an extensive explanatory section known as a preamble. The portion of the publication relevant to the issue of the applicability of the NESHAP benzene regulations to public storage facilities is as follows, beginning with the preamble:
"SUMMARY The Environmental Protection Agency (EPA) listed benzene as a hazardous air pollutant under Section 112 of the Clean Air Act on June 8, 1977 (42 FR 29332). A standard was subsequently proposed for benzene fugitive emission sources (46 FR 1165, January 5, 1981). This Federal Register notice responds to comments on and promulgates the standards for benzene fugitive emission sources.
EFFECTIVE DATE: June 6, 1984. Under Section 307(b)(1) of the Clean Air Act, judicial review of national emission standards for hazardous air pollutants (NESHAP) is available only by filing a petition for review in the United States Court of Appeals for the District of Columbia circuit within 60 days of today's publication of these rules. Under section 307(b)(2) of the Clean Air Act, the requirements that are the subject of today's notice may not be challenged later in civil or criminal proceedings brought by EPA to enforce these requirements. . . .
"The standard applies to certain new and existing equipment in benzene service (i.e., equipment containing materials with a benzene concentration of 10 percent or more by weight) except those located in process units that produce benzene or benzene mixtures at coke by-product plants or at plant sites that are designed to produce or use benzene in quantities of 1,000 megagrams per year (Mg/yr) or less. Equipment covered by the standard include new and existing valves, pumps, compressors, pressure relief devices, sampling connection systems, open-ended valves or lines, pipeline flanges, product accumulator vessels and closed vent systems and control devices used to comply with the standard. The standard includes work practices and other requirements as provided by section 112(e) of the Clean Air Act and discussed in the preamble to the proposed rule (46 FR 1177).
Permission to use any alternative means of emission limitation will be granted after a notice is published in the Federal Register and an opportunity for a public hearing."
"Summary of Impacts of the Standard
The standard applies to certain equipment in benzene service. This equipment is used in the production of benzene and other chemicals and products, such as maleic anhydride, ethanol, and pharmaceuticals. The standard will affect equipment located in more than 200 ...