UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT PUGET SOUNDKEEPER No. 21-35881 ALLIANCE, D.C. No. Plaintiff-Appellant, 3:17-cv-05016- BHS v. PORT OF TACOMA; SSA OPINION TERMINALS LLC; SSA TERMINALS (TACOMA), LLC,

Defendants-Appellees, and APM TERMINALS TACOMA LLC; DON ESTERBROOK,

Defendants.

PUGET SOUNDKEEPER No. 21-35899 ALLIANCE, D.C. No. Plaintiff-Appellee, 3:17-cv-05016- BHS v. 2 PUGET SOUNDKEEPER ALLIANCE V. PORT OF TACOMA

PORT OF TACOMA,

Defendant-Appellant, and SSA TERMINALS LLC; SSA TERMINALS (TACOMA), LLC; APM TERMINALS TACOMA LLC; DON ESTERBROOK,

Defendants.

PUGET SOUNDKEEPER No. 22-35061 ALLIANCE, D.C. No. Plaintiff-Appellee, 3:17-cv-05016- v. BHS SSA TERMINALS LLC; SSA TERMINALS (TACOMA), LLC,

Defendants-Appellants, and PORT OF TACOMA; APM TERMINALS TACOMA LLC; DON ESTERBROOK,

Defendants. PUGET SOUNDKEEPER ALLIANCE V. PORT OF TACOMA 3

Appeal from the United States District Court for the Western District of Washington Benjamin H. Settle, District Judge, Presiding

Argued and Submitted December 7, 2022 Submission Withdrawn August 18, 2023 Resubmitted June 10, 2024 Seattle, Washington

Filed June 10, 2024 Before: Diarmuid F. O’Scannlain, M. Margaret McKeown, and Eric D. Miller, Circuit Judges.

Opinion by Judge Miller; Special Concurrence by Judge O’Scannlain

SUMMARY*

Environmental Law

The panel reversed in part and vacated in part the district court’s partial summary judgment in favor of the Port of Tacoma and SSA Terminals, LLC, and affiliated companies, in a citizen suit brought under the Clean Water Act by Puget Soundkeeper Alliance. The Port and SSA operate the West Sitcum Terminal, a marine cargo terminal. “The Wharf” is a portion of the * This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. 4 PUGET SOUNDKEEPER ALLIANCE V. PORT OF TACOMA

Terminal where five large cranes load and unload container ships. When rain falls on the Terminal, stormwater runs into Puget Sound, carrying with it metals and other pollutants. In 2010, 2015, and 2020, the Washington State Department of Ecology issued editions of the Industrial Stormwater General Permit (ISGP), a National Pollutant Discharge Elimination System (NPDES) permit, pursuant to its authority under the Clean Water Act. The Clean Water Act prohibits “the discharge of any pollutant by any person” into the waters of the United States without an NPDES permit, but only certain categories of stormwater discharges require a permit. One such category is stormwater discharges “associated with industrial activity.” The Environmental Protection Agency’s regulations define that category to include discharges from transportation facilities, further defined as facilities that house vehicle maintenance shops, equipment cleaning operations, or airport deicing operations. Because such activities do not occur at the Wharf, discharges from there do not require NPDES permits. The district court concluded that the ISGPs did not extend coverage to the Wharf. Reversing in part, the panel held that the plain text of the 2010 and 2015 ISGPs required that a transportation facility conducting industrial activities implement stormwater controls across the entire facility. Because the Terminal was a facility conducting