The EPA Power Plan, 79 Fed. Reg. 34,830 (June 18, 2014), or any outgrowth of that proposal; and b. Any regulations or other action regarding electric utility generating units under the authority of Clean Air Act Section 111(d), 42 U.S.C. § 7411(d). Case 4:15-cv-00369-CVE-FHM Document 31 Filed in USDC ND/OK on 07/20/15 Page 4 of 6 3) This Order shall become effective immediately and shall continue in ef- fect until the United States Court of Appeals for the Tenth Circuit’s mandate issues in this matter.

As discussed in Plaintiff’s Motion for Partial Summary Judgment,7 the Act imposes its requirements on “any physical change” that would result in an emissions increase. 42 U.S.C. § 7411(a)(4) (emphasis added). The sweeping scope of this definition is consistent with Congress’ express purpose of protecting human health and welfare.

42 U.S.C. §§ 7475(a) (making the requirements applicable upon “construction”), 7479(2)(C) (defining “construction” to include “modification”), 7502(c)(5) (requiring that the nonattainment program apply to “construction and operation of new or modified major stationary sources” (emphasis added)). And Congress created no threshold for how significant the modification needs to be. Rather, it defined a “modification”— which triggers the requirements of Parts C and D—as “any physical change in, or change in the method of operation of, a stationary source…” 42 U.S.C. §§ 7411(a)(4) (emphasis added); see also 42 U.S.C. §§ 7479(2)(C) (adopting the statutory definition from § 7411(a)), 7501(4) (same). The phrase “physical change” includes, of course, “equipment replacements.”

The PSD program applies to new and “modified” sources. The PSD program borrows the definition of “modification” from the NSPS program: “any physical change in, or change in the method of operation of, a stationary source which increases the amount of any air pollutant emitted by such source or which results in the emission of any air pollutant not previously emitted.” See 42 U.S.C. §§ 7411(a)(4), 7479(2)(C). The statute does not further define the terms within the definition of modification, including the crucial term “increases.”

Gordon, 575 F.3d at 1060 (describing “conflict preemption”). The “reasonableness” determination Plaintiffs ask this Court to make would interfere with EPA’s ability to set nationwide emissions standards, see 42 U.S.C. § 7411(b)(1)(A), and frustrate Congress’s objective of increasing fossil fuel extraction, see, e.g., 42 U.S.C. §§ 13401, 13411, 13412, 13415, 15903, 15904, 15909, 15910. Third, Plaintiffs’ claims are preempted because they implicate “uniquely federal interests” “committed by the Consti- tution and laws of the United States to federal control.”

Althoughcriteria air pollutants can also be harmful to human health, they are distinguishable from TACs and are regulated separately. For instance, while criteria pollutants are regulated by numeroussections throughout Title I of the Clean Air Act, the regulation ofTACs occurs solely under section 112 of the Act. Compare 42 U.S.C. §§ 7407 — 7411 & 7501 — 7515 with 42 U.S.C. § 7411. The most relevant difference betweencriteria pollutants and TACs for purposesofthis case is the manner in which human health impacts are accounted for.

“Modification” is further defined by the statute. See 42 U.S.C. § 7411(a)(4). The PSD permitting requirement is a one-time obligation that arises at the time of construction, and the statute does not impose ongoing PSD obligations with respect to the operation of a facility.7 Nat’l Parks & Conservation Ass’n v. TVA, 502 F.3d 1316, 1322–23 (11th Cir. 2007) (“Nat’l Parks (11th Cir.)”) (“[V]iolations of the preconstruction permitting requirements occur at the time of construction, not on a continuing basis.”)

Here, the First Circuit examined EPA’s use of the actual-to-potential emissions test Case 1:09-cv-00019-MSK-MEH Document 193 Filed 02/01/13 USDC Colorado Page 9 of 21 10 to determine that the proposed change at the facility in question resulted in a significant net increase in emissions: The statute applies its PSD requirements to the Company’s proposed modification of its kilns only if the modification will “increase [ ] the amount of any air pollutant emitted.” 42 U.S.C. §§ 7411(a)(4), 7479(2)(C). In deciding whether or not the kiln conversion would result in such an increase, EPA calculated the actual historical amount of pollutants that Kilns 3 and 6 emitted in the past (which, under the regulations, equals the average emissions over the past two years, see 40 C.F.R. § 52.

“Modification,” in turn, is defined as “any physical change in or change in the method of operation of, a stationary source which increases the amount of any air pollutant emitted by such source or which results in the emission of any air pollutant not previously emitted.” 42 U.S.C. § 7411(a)(4). 3 All references to 40 C.F.R. § 52.

Nothing in the Clean Air Act requires prior EPA approval of independent state regulations. See 42 U.S.C. §§ 7411, 7416. Nor is there any requirement that the EPA act first before the States can enact their own air emissions regulations, as Plaintiffs erroneously imply.