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Mr. Bradford J. Dozier - 5 - MAY $ 4 2019 <br /> Petitioner Has Not Satisfied the Requirements for a Waiver of the UST Permitting Requirements <br /> for Fund Claim No. 18513. <br /> Pursuant to section 25299.57, subdivision (d)(4)(E), the State Water Board must apply the <br /> applicable statutes or regulations in effect on the date of the filing of the claim, August 31, 2005, <br /> to determine whether Petitioner is eligible for a permit waiver. <br /> At the time that Petitioner filed a claim, August 31, 2005, section 25299.57, subdivision (d)(3)(B) <br /> read, in part: <br /> All claimants who file their claim on or after January 1, 1994, and all claimants <br /> who filed their claim prior to that date but are not eligible for a waiver of the <br /> permit requirement pursuant to board regulations in effect on the date of the filing <br /> of the claim, and who did not obtain or apply for any permit required by <br /> subdivision (a) of Section 25284 by January 1, 1990, shall be subject to <br /> subparagraph (A) regardless of the reason or reasons that the permit was not <br /> obtained or applied for. However, on and after January 1, 1994, the board may <br /> waive the provisions of subparagraph (A) as a condition for payment from the <br /> fund if the board finds all of the following: <br /> (i) The claimant was unaware of the permit requirement prior to <br /> January 1, 1990, and there was no intent to intentionally avoid the <br /> permit requirement or the fees associated with the permit . . . . <br /> In October 2004, the State Water Board issued an order interpreting section 25299.57, <br /> subdivision (d)(3), as in effect on August 31, 2005. (in the Matter of the Petition of Murray <br /> Kelsoe WQ 2004-0015-UST (Kelsoe Order).) In the Kelsoe Order, the State Water Board found <br /> that Mr. Kelsoe had not complied with permitting requirements because the USTs at issue had <br /> not been properly permitted at all times, beginning from when the local agency began issuing <br /> UST permits pursuant to section 25284, subdivision (a). The State Water Board also held that <br /> waivers of the permit requirement, authorized under section 25299.57, subdivision (d)(3)(B), <br /> may only be used to excuse permit non-compliance that occurred before January 1, 1990. <br /> Mr. Kelsoe filed a petition for writ of mandate in Alameda County Superior Court(Superior <br /> Court) challenging the Kelsoe Order. After his petition for writ of mandate was denied by the <br /> Superior Court, Mr. Kelsoe filed an appeal with the First District Court of Appeal (Court of <br /> Appeal). The Court of Appeal ruled that the State Water Board should have determined <br /> whether Mr. Kelsoe was entitled to a permit waiver under section 25299.57, <br /> subdivision(d)(3)(B). (Kelsoe v. State Water Resources Control Board(2007) 153 Cal.AppAth <br /> 569, 581.) The Court of Appeal limited the applicability of its ruling in the Kelsoe matter to fact <br /> patterns similar to Kelsoe (i.e., claimants whose violations began before 1990 and continued <br /> beyond January 1, 1990, but who later paid thousands of dollars into the Fund over a period of <br /> substantial compliance). (Id. at p. 581, fn. 8.) The Court of Appeal reversed the trial court <br /> California Environmental Protection Agency <br /> 5 Recycled Paper <br />