SAN FRANCISCO -- A federal judge has ruled that the U.S. Environmental Protection Agency must respond to an environmental group's petition against an air emissions permit for PG&E's power plant in Antioch.

In a U.S. District Court suit filed in March, Wild Equity Institute said the EPA's lack of response meant it could not testify that permitting the PG&E's Gateway Generating Station puts the endangered Lange's Metalmark butterfly at risk.

The EPA must either deny or support the petition by Oct. 17, Judge James Donato said in a July 2 case management conference. Wild Equity can pursue summary judgment if the agency doesn't make a decision.

An endangered Lange’s Metalmark butterfly rests on the stem of a plant at the Antioch Dunes National Wildlife Refuge on Aug. 26, 2009, in Antioch.
An endangered Lange's Metalmark butterfly rests on the stem of a plant at the Antioch Dunes National Wildlife Refuge on Aug. 26, 2009, in Antioch. (Aric Crabb/Staff Archives)

"We're pleased that the judge made this decision. We've been trying for a year to get them to acknowledge our concerns, and they've been ignoring us," said Laura Horton, staff attorney for Wild Equity.

EPA spokeswoman Suzanne Skadowski said the agency's schedule is the same as the courts and that it will come to a decision by the October date.

Wild Equity argues the permit, approved by the Bay Area Air Quality Management District last fall, does not include authorization from the Fish and Wildlife Service for "incidental take" of species and allows added levels of air pollution.

If the EPA objects to the permit, PG&E may be required to improve pollution controls or mitigate air pollution impacts for Gateway, Horton said.


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PG&E spokeswoman Tamar Sarkissian said it is not a party to the lawsuit and would have to refer comment on it to the EPA.

She reiterated that Gateway, which started operating in early 2009, is state-of-the-art and emits extremely low levels of nitrogen oxides and in full compliance with its clean air permit limits.

It also entered a voluntary agreement to preserve 12 acres of dune habitat on its property for the butterfly and plant species, has created a vegetation management plan and holds twice-a-year weed control days there.

PG&E also donates sand to create and bolster dunes, Sarkissian said.

The Antioch Shoreline refuge is the only place in the world where the bright reddish-orange Lange's Metalmark is found. The butterfly's estimated numbers have dropped from more than 25,000 early in the 20th century to 78 last fall.

Contact Paul Burgarino at 925-779-7164. Follow him at Twitter.com/paulburgarino.