According to the Defendants, those agencies must now be afforded deference and that “duality” with regard to federal and state common law claims has been ended. See Doc. No. 13 at 4–5 (citing Am. Elec. Power Co., Inc. v. Connecticut, ––– U.S. ––––, 131 S.Ct. 2527, 180 L.Ed.2d 435 (2011); Native Vill. of Kivalina v. ExxonMobil Corp., 696 F.3d 849 (9th Cir.2012); N. Carolina, ex rel. Cooper v. Tennessee Valley Auth., 615 F.3d 291 (4th Cir.2010)cert. dismissed,––– U.S. ––––, 132 S.Ct. 46, 180 L.Ed.2d 914 (2011); United States v. EME Homer City Generation L.P., 823 F.Supp.2d 274 (W.D.Pa.2011)). Much like Defendant, Plaintiffs' surreply endeavors to distinguish the authority on which it relies.

"Title V permits do not generally impose any new emission limits, but are intended to incorporate into a single document all of the Clean Air Act requirements applicable to a particular facility" and to provide for monitoring and other compliance measures. United States v. EME Homer City Generation L.P., __ F. Supp. 2d ___, Case No. 2: 11-cv-19, 2011 WL 4859993 at *8 (W.D. Pa., Oct. 12, 2011); 42 U.S.C. §§ 7661c(a), (b).

Finally, it should be noted that the purpose of an injunction is to prevent future violations and as a result, before an injunction may properly issue, the court must find that there exists some cognizable danger of recurrent violation. United States v. EME Homer City Generation L.P., 823 F. Supp.2d 274, 290 (W.D. Pa. 2011)(citing United States v. W.T. Grant Co., 345 U.S. 629, 633, 73 S. Ct. 894, 97 L. Ed. 1303 (1953)). Where the illegal conduct has ceased, the party seeking the injunction bears the burden of proving that there exists some cognizable danger of recurrent violation, something more than the mere possibility which serves to keep the case alive.

See id. at *6 (no statutory right to intervene where proposed intervenors sought "to prosecute opacity and monitoring violations of the CAA that differ from the United States' allegations of unpermitted modifications"); United States v. Gateway Energy & Coke Co., LLC, 2014 WL 5797647, at *4 (S.D. Ill. Nov. 7, 2014) (finding no statutory right to intervene where the proposed intervenors' "claims clearly differ from the allegations asserted in this lawsuit. To allow the proposed intervenors to intervene based on allegations that differ from those of the United States would essentially gut the [CAA's] citizen-suit provision."); see also United States v. EME Homer City Generation L.P., 823 F. Supp. 2d 274, 278 (W.D. Pa. 2011), aff'd, 727 F.3d 274 (3d Cir. 2013) (noting intervenor-plaintiffs had asserted "similar violations" and "essentially the same federal Clean Air Act claims set forth by the [original plaintiff]"). Fleshman does not seek to enforce the same standards, limitations, or orders as the United States.

LG & E and PPL urge this Court to follow the Fourth Circuit and recognize the “considerable potential mischief” in permitting state common-law actions. Id.; see Native Village of Kivalina v. ExxonMobil Corp., 696 F.3d 849 (9th Cir.2012) (CAA displaced a federal common-law claim for public nuisance); Comer v. Murphy Oil USA, Inc., 839 F.Supp.2d 849, 865 (S.D.Miss.2012) (CAA preempted state-law nuisance, trespass, and negligence claims); United States v. EME Homer City Generation L.P., 823 F.Supp.2d 274, 296–97 (W.D.Penn.2011) (CAA preempted state common-law public nuisance claims).

Other courts have reached the opposite conclusion and found that state common law tort claims are preempted by the CAA. See North Carolina ex rel. Cooper v. Tenn. Valley Auth., 615 F.3d 291, 298 (4th Cir.2010); Comer v. Murphy Oil USA, 839 F.Supp.2d 849, 865 (S.D.Miss.2012), aff'd on other grounds,718 F.3d 460 (5th Cir.2013); United States v. EME Homer City Generation L.P., 823 F.Supp.2d 274, 296–97 (W.D.Penn.2011).

"The majority rule is that a failure to obtain a PSD permit is a one-time violation and is not a continuing violation." United States v. EME Homer City Generation, L.P., 823 F. Supp. 2d 274, 286-87 (W.D. Pa. 2011) (collecting cases); Sierra Club v. Otter Tail Power Co., 615 F.3d 1008, 1014 (8th Cir. 2010) (holding that PSD requirements "are conditions of construction, not operation" and, therefore, that operating a facility without complying with preconstruction requirements is not itself a violation of the PSD program); Tennessee Valley Authority, 502 F.3d at 1322-23 ("violations of preconstruction permitting requirements occur at the time of construction, not on a continuing basis"). Furthermore, courts have logically concluded "that the last possible moment at which a preconstruction violation occurs is 'when the actual construction is commenced, and not at some later point in time.'"

United States District JudgeUnited States v. EME Homer City Generation L.P., 823 F. Supp.2d 274, 282 (W.D. Pa. 2011) (citations omitted).

”I am also aware that the recent decision in United States v. EME Homer City Generation, L.P., 823 F.Supp.2d 274 (W.D.Pa.2011), which held that PSD violations are not ongoing, is presently on appeal before the United States Court of Appeals for the Third Circuit. That appeal may impact my September 30, 2009 holding as it pertains to the GenOn defendants because their liability for certain claims may hinge on whether the PSD provisions create ongoing obligations.

Apart from Satterfield and Niagara Mohawk, discussed above, a number of other district courts have examined similar questions, looking closely at the relevant regulatory regime for guidance. See, e.g., United States v. Missouri, 2012 WL 262655, *7–8 (E.D.Mo. Jan. 27, 2012) (failure to obtain preconstruction permit under Missouri SIP constituted a singular violation); United States v. Westvaco Corp., 144 F.Supp.2d 439, 443–44 (D.Md.2001) (same under Maryland's SIP); United States v. EME Homer City Generation L.P., 823 F.Supp.2d 274, 286 (W.D.Pa.2011) (same directly interpreting CAA PSD provisions); United States v. Midwest Generation, LLC, 694 F.Supp.2d 999, 1008–9 (N.D.Ill.2010) (same); United States v. Cinergy Corp., 397 F.Supp.2d 1025, 1030 (S.D.Ind.2005) (same applying permitting requirements for major sources in non-attainment areas); United States v. Murphy Oil, USA, Inc., 143 F.Supp.2d 1054, 1083 (W.D.Wisc.2001) (same applying Wisconsin regulations); United States v. Louisiana–Pacific Corp., 682 F.Supp. 1122, 1130 (D.Colo.1987) (finding that EPA's PSD regulation providing no major stationary source “shall begin actual construction without a permit” “makes it clear that the violation occurs when the actual construction is commenced, and not at some later point in time”); United States v. Campbell Soup Co., 1997 WL 258894, *1–2 (E.D.Cal. Mar. 11, 1997) (rejecting argument that violation of Sacramento Metropolitan Air Quality Management District Rule requiring permit before “building, erecting, altering or replacing” certain t