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Mr. Bradford J. Dozier - 6 - MAY ` 2010 decision and remanded the matter for the limited purpose of determining whether Mr. Kelsoe satisfies the requirements for a waiver of the permit requirements.6 (ld. at p. 581.) In the FDD issued to Petitioner in October 2009, the Division stated that the Petitioner had to meet the requirements of section 25299.57, subdivision (d)(3)(B), as effective on August 31, 2005, and as interpreted by the Kelsoe Order in order to obtain.a permit waiver. The Division determined that Petitioner was not eligible for a waiver of the permit requirement because the waiver does not excuse permit non-compliance that occurs after January 1, 1990, except in limited circumstances not applicable to Petitioner. You assert that the Kelsoe Order should not be the controlling authority where factual circumstances and applicable statutes and regulations differ. The permit waiver statutes and regulations that applied to Mr. Kelsoe's claim in the Kelsoe Order are the same statutes and regulations that govern whether Petitioner is eligible for a permit waiver. The Kelsoe Order is a precedential order interpreting the requirements of former section 25299.57, subdivision (d)(3)(B), including the requirements for determining whether a waiver of permit requirements under this subdivision may be used to excuse permit non-compliance after January 1, 1990. Petitioner is seeking a waiver under former section 25299.57, subdivision (d)(3)(B)to excuse permit non-compliance after January 1, 1990. Therefore, the Kelsoe Order applies to this claim. The Kelsoe Order is not precedential to the extent that the Court of Appeal's opinion supersedes it. (See general State Water Board Order WR 96-1 at p. 17, fn. 11.) However, the Court of Appeal's opinion stressed that it was limited to the particular facts of the case. (Kelsoe v. California State Water Resources Control Bd. supra, at p. 581, fn. 8.) Where the circumstances that led the Court of Appeal to conclude that the State Water Board should consider a waiver are not present—circumstances that involved a claimant who corrected the permitting violation and paid thousands of dollars in fees for a later period when the claimant was in substantial compliance with permit requirements —the Kelsoe Order has not been invalidated or superseded, and its legal conclusions are still precedential. In the petition, you state "It appears as if the FDD erroneously found that [Petitioner's] failure to remove the tank within a year of receiving notification from the SJEHD of the possibility of an UST on its property precludes [Petitioner] from obtaining a permit waiver." The one year"time requirement" is relevant to whether Petitioner meets the permit requirements of section 25299.57, subdivision (d)(4)(B). It is not a factor in determining whether Petitioner meets the requirements for a waiver of the permit requirements under former section 25299.57, subdivision (d)(3)(B). You assert that Petitioner is eligible for a waiver of the permit requirement because it meets the requirements specified in subdivisions (d)(3)(B)(i), (d)(3)(B)(ii), and (d)(3)(B)(iii) of section 25299.57, as in effect on August 31, 2005.7 A waiver of the permit requirements under 6 Following the Court of Appeal's decision,the Superior Court directed the State Water Board to partially vacate its Kelsoe Order for the limited purpose of determining whether Mr. Kelsoe satisfied the requirements for a permit waiver. The Superior Court directed that this determination be made in a manner consistent with the holding of the Court of Appeal. In all other respects,the Superior Court denied Mr. Kelsoe's petition for writ of mandate. 7 You also state that a waiver of the permit requirement could be found if the claimant demonstrates that"obtaining or applying for a permit was beyond the claimant's reasonable control,or that under the circumstances of the California Environmental Protection Agency �,j Recycled Paper