Permit Appeals

All documents pertaining to a Permit Appeal should be submitted to the Board of Environmental Safety at the following address:

Department of Toxic Substances Control
Board of Environmental Safety
P.O. Box 806
1001 “I” Street, 25th Floor
Sacramento, CA 95812-0806
Email: Appeals@bes.dtsc.ca.gov

Documents will be deemed filed on the date the e-mail was sent or on the U.S. Postal Service postmark date. If a document must be delivered in person or via courier, please use the following address:

Board of Environmental Safety
1001 “I” Street, 25th Floor
Sacramento, CA, 95814

Hand delivered documents will be date stamped and filed on the date received.

• An appeal must be filed using Standard Appeal Form BES 2301 within 30 days after DTSC has issued a final permit decision.
• An appeal of a decision to approve or deny a temporary authorization is filed using Special Appeal Form BES 2302 within 30 days after DTSC has approved or denied a request for a temporary authorization.
• The 30-day period begins with the service of notice of DTSC’s action, unless the notice specifies a later date. If there is no appeal filed within the 30 days, the permit decision becomes final.

No. There is no fee required to file an appeal with the Board of Environmental Safety.

A person may appeal a decision by DTSC to issue, approve, modify, or deny a hazardous waste facility permit, including the renewal of a hazardous waste facility permit. A decision to approve or deny a temporary authorization may also be appealed. A decision to approve or deny a class 1 modification cannot be appealed. Appeals are limited to decisions by the DTSC Permitting Division made pursuant to the Hazardous Waste Control Law (Health and Safety Code § 25000 et seq.) and Title 22 Regulations. DTSC decisions made pursuant to the California Environmental Quality Act (CEQA) and other laws are not subject to appeal.

• Most permit decisions are made after DTSC has responded to comments submitted during a public review period. Only a person who filed comments on the draft permit (or modification) or participated in the public hearing on the draft permit (or modification) may petition for review of the permit (or modification) decision. Persons who commented on the draft permit may appeal:
  • Issues raised by anyone on the draft permit during the public comment period, including the public hearing;
  • Issues not reasonably ascertainable during the draft permit public comment period, including the public hearing.
• A person who did not file comments on the draft permit or participated in the public hearing, may file a petition for review, but only with regards to changes from the draft permit to the final permit. If this limitation applies to you and you wish to file an appeal that is not limited to changes from the draft permit to the final permit, then you must request a waiver of this limitation from the Board of Environmental Safety by checking the box on page 2 of the Standard Appeal Form BES 2301.
• Temporary authorizations may be granted without public review. Therefore, any person may petition for review of a temporary authorization decision.

In addition to filing a notice of appeal using Standard Appeal Form BES 2301, a person opposing a decision to grant, issue, modify or deny a permit for a hazardous waste facility must file a petition with the Board no later than 60 days after notice of the final permit decision. An appeal petition must contain all of the following:

• A written Statement of Reasons supporting the petition for review.
• A demonstration that any issues raised in the petition for review were either:
  • raised during the public comment period; or
  • pertain to changes from the draft to the final permit.
• A demonstration that the decision in question is based on either:
  • a finding of fact or conclusion of law that is clearly erroneous; or
  • an exercise of discretion or an important policy consideration that the Board should review; or
  • a significant procedural error, including but not limited to a failure to proceed in a manner that is required by law or regulation.

Failure to include in writing the above elements are grounds for denying the petition for review. The Board examines the petition for review to determine if these prerequisites have been met and decides at a public meeting if the petition falls within the Board’s purview.

A petitioner who participated during the public comment period must show that the issue being appealed was raised during the public comment period or was not reasonably ascertainable at that time. Otherwise, a petitioner must either show that the issue involves changes from the draft permit to the final permit or request a waiver of this requirement from the Board.

The appeal issues must arise from DTSC’s permit. The Board of Environmental Safety does not have the authority to review permits granted by other agencies or operations that are not regulated by DTSC. Issues pertaining to compliance with the California Environmental Quality Act (CEQA) are not subject to appeal to the Board but are instead reviewed in court proceedings pursuant to the litigation procedures pursuant to that Act (Public Resources Code section 21000 et seq.,). 

The Statement of Reasons should be specific as to the issues being appealed, the reasons for the appeal and the information supporting the reasons. Vague and nonspecific allegations are insufficient to meet the requirements for granting review. For example, general allegations objecting to the existence of the facility or general allegations that the facility is a hazard would be insufficient.

A petition is not required to appeal a decision to grant or deny a temporary authorization using Special Appeal Form BES 2302. Instead, please submit a brief statement (not to exceed 3 pages) explaining why the appeal should be granted.

• • Instructions for filing appeal documents, including the petition for review are described in the Standing Order 23-01.

After receiving both the notice of appeal using Standard Appeal Form BES 2301 and a petition for review, the Board will schedule a public meeting to decide whether to accept any of the issues that have been raised in the petition for review. It is the Board’s practice to hold the public meeting within 60 days of receipt of a petition. 

The actual time it takes to process an appeal varies with the complexity of the appeal and the number of issues that are raised and accepted for review. The date of the public hearing will be set in the initial order that is issued when the Board decides whether to accept any of the issues raised in the petition for review. The hearing is typically scheduled for a meeting date that is approximately 6 months after the initial order is issued. The status of the appeals process will be available on the Pending Permit Appeals page.

After the petition is filed, the Board makes a preliminary determination to either accept or dismiss the issues raised in the petition for review, which is set forth in a written initial order. In that initial order, the Board will list the issues that have been accepted for review, identify the parts of the petition (if any) that have been dismissed, consolidate the appeal with other related appeals (if necessary), set forth a briefing schedule, and schedule a public hearing to decide the appeal. Accepting the issues raised in the petition means that the Statement of Reasons meets the minimum standards necessary for the Board to consider the issue on its merits; it does not mean that the Board will necessarily accept the arguments advanced by the petitioner.

The Board must send a written notice of denial to the person or persons who requested the review. The Board will also notify the permit applicant of the Board’s decision. The Board’s decision becomes final on the day the order is mailed.

• DTSC must give public notice that the petition has been granted in accordance with the procedures described in California Code of Regulations, title 22, section 66271.9. The initial order sets forth a briefing schedule, i.e., a time period that allows the parties to file arguments on the specific issues that have been granted review. The briefing schedule establishes a date or dates when arguments must be filed with the Board. The initial order also identifies the date of the public hearing on the petition. The public notice states that any interested person may request permission to file an amicus brief (i.e., a written argument) with the Board. The Board will post these public notices on its website.
• The Board considers the arguments submitted during the briefing period and reaches a decision on the merits at a public hearing. Persons who have filed briefs with the Board may receive additional time for presentations at the public hearing. Persons who have filed briefs with the Board may receive additional time for presentations at the public hearing.
• Instruction on filing petitions and briefs are provided in Standing Order 23-01.
• The requirements for submitting slides for presentation at the public hearing are provided in Paragraph 1 of Standing Order 23-02.

• If an appeal is filed on a permit for a new facility, the entire permit is stayed, i.e., it will not go into effect until the Board completes the appeal process.
• If the appeal is for an existing facility or activity, or a new activity within an existing facility, only the contested permit conditions and the conditions that cannot be implemented separately from the contested conditions are stayed until the Board completes the appeal process.
• The uncontested permit conditions will become effective 30 days after DTSC issues the permit. The contested conditions of the permit will become effective immediately after the Board issues its final determination through the permit appeal proceedings.

To appeal further, a petition for judicial review must be filed with the court within 90 days of the date that notice of the Board’s final decision is served. (Health and Safety Code Section 25186.1, subd. (b)(2).). The Board’s final decision takes effect on the date the final order is mailed unless it is stayed by a court.

The Board will post permit appeal documents on the Pending Appeals page including notices, petitions for review, Administrative Record, appeal arguments and final decisions.

The permit appeals subcommittee focuses on in-depth analysis to formulate recommendations for complex and policy-oriented matters raised in appeals, while the Board Chair and Vice Chair handle the administrative aspects of the appeal process and make decisions on specific requests and other routine matters that arise during the Board’s ordinary handling of an appeal.

Specifically, the Permit Appeals Subcommittee:

• Works with staff to better understanding nuanced issues raised in appeals, performing deeper analysis and research of the more difficult issued raised in complex appeals.
• Makes recommendations to the full Board regarding the resolution of difficult or complex questions, including those with policy implications.

By contrast, the Board Chair and Vice Chair have a separate role related to the administration of permit appeals:

• Directing staff in the orderly administration of the appeal process, including handling motions and decisions related to day-to-day operations.
• Making decisions on minor administrative matters that require quick turnaround and a more superficial level of oversight. This includes granting or denying specific requests, scheduling hearings, and similar routine tasks.