be raised for the first time in the request for an evidentiary hearing. These objections are those denominated as la, lb, 1c, 1d, lf, li, 1v, 2a, 3h, and 3k.

PRSOC states that there is good cause to excuse any failure to submit comments because "it was totally unexpected that the Regional Administrator, being given notice by petitioner and the EQB that the WQC was subject to reconsideration, would act contrary to the law by issuing an NPDES permit without the issuance of a final WQC." Petition at 24. We find that this does not establish good cause.

Good cause, as that term is used in 40 C.F.R. § 124.76, includes:

[T]he case where the party seeking to raise the new
issues or introduce new information shows that it
could not reasonably have ascertained the issues or
made the information available within the time re-
quired by § 124.15; or that it could not have reason-
ably anticipated the relevance or materiality of the
information sought to be introduced.

PRSOC was well aware that Region II was proceeding with issuance of a permit based on the July 24, 1990 WQC, notwithstanding PRSOC's view of the law. It submitted two comment letters on this point. In the second letter it requested, belatedly, an extension of time to submit technical comments, which request was denied. It could hardly be concluded that the technical issues could not have been reasonably ascertained or their relevance or materiality reasonably anticipated. PRSOC's failure to provide its technical objections along with its legal argument cannot be excused under the rubric of good cause.

Therefore, there are no technical objections that were properly preserved for review that do not go to requirements of the permit mandated by the WQC. As such, the denial of the evidentiary hearing request on this basis was proper.

III. CONCLUSION

For all the reasons previously discussed, we find that the Regional Administrator did not err in denying the request for an evidentiary hearing. Accordingly, the petition for review is denied.

So ordered.

IN THE MATTER OF HARDIN COUNTY, OH

RCRA (3008) Appeal No. 92-1

REMAND ORDER

Decided November 6, 1992

Syllabus

U.S. EPA Region V appeals from an order dismissing a complaint charging Hardin County, Ohio with disposing of hazardous waste without a permit or interim status, and seeking a $45,000 penalty in addition to closure of the facility. Region V alleges that Hardin County received sludges produced between 1983 and 1987 that are hazardous waste by virtue of the "mixture rule" contained in 40 C.F.R. § 261.3. While this case was pending before the presiding officer, the mixture rule was invalidated in Shell Oil v. EPA, 950 F.2d 741 (D.C. Cir. 1991). The presiding officer dismissed the complaint, rejecting Region V's argument that Shell Oil invalidated the mixture rule prospectively only. Region V appealed, asking the Board to accept its interpretation of Shell Oil, and vacate the dismissal of the complaint.

Held: The complaint against Hardin County alleges violations that occurred both before and after Ohio lost its interim authorization. The record is silent as to the specific dates of the violations, and therefore it is not clear whether the Ohio or federal mixture rule applies to the conduct at issue. These matters must be established before reaching any decision on the applicability of Shell Oil to the complaint. Accordingly, a remand is warranted for the presiding officer to determine the date of the alleged violations and the applicable law.

Before Environmental Appeals Judges Nancy B. Firestone, Ronald L. McCallum and Edward E. Reich.

Opinion of the Board by Judge McCallum:

On June 13, 1989, U.S. EPA Region V filed a complaint alleging that Hardin County illegally disposed of hazardous waste without a permit or interim status under the Resource Conservation and Recovery Act (RCRA), as amended, 42 U.S.C. §§ 6901 et seq. The illegal disposal allegedly took place at Hardin County's landfill in Kenton, Ohio, where it received certain sludges from Occidental Chemical Corporation. Region V contends that these sludges, which were produced between 1983 and 1987, are hazardous waste by virtue

of the "mixture rule" contained in 40 C.F.R. § 261.3.1 The mixture rule is part of the regulatory definition of hazardous waste, and includes as hazardous waste all wastes that are "a mixture of solid waste and one or more hazardous wastes listed in Subpart D * * *” 40 C.F.R. § 261.3. The complaint seeks a penalty of $45,000 for Hardin County's failure to obtain a permit or interim status prior to accepting hazardous wastes for disposal, and also seeks closure of the facility in accordance with State and federal requirements.

After a full hearing and briefing in this matter, but before an initial decision was issued, the D.C. Circuit Court of Appeals invalidated the mixture rule in Shell Oil Co. v. EPA, 950 F.2d 741 (D.C. Cir. 1991).2 The Court vacated and remanded the rule on the ground that the Agency failed to follow public notice and comment procedures when promulgating the rule as required by the Administrative Procedure Act (APA), 5 U.S.C. §553(b). The Court, however, also invited EPA to reissue the rule on an interim basis without notice and comment under the "good cause" exemption provided in the APA, 5 U.S.C. §553(b)(3)(B), “[i]n light of the dangers that may be posed by a discontinuity in the regulation of hazardous wastes ***." 950 F.2d at 752.

Based on the Court's stated concern about "discontinuity" in the regulatory program, EPA filed a motion with the Court of Appeals, requesting it to clarify the decision, stating that the opinion does not specify whether the holding setting aside the rule applies only prospectively, as EPA believes, or whether it applies retroactively. Upon consideration, the Court denied this motion.

After the decision in Shell Oil, the presiding officer in this case ordered the parties to show cause why the complaint against Hardin County should not be dismissed in light of the invalidation of the mixture rule by Shell Oil. Region V responded, arguing that Shell Oil invalidated the mixture rule prospectively only, that is, only from

'The alleged hazardous waste disposed of is sludge from Occidental Chemical Corp. (OCC). The sludge was created when a November 1983 spill of 11,000 lbs. of phenol, and a 1984 spill of 2,000 lbs. of spent acetone solvent, worked their way to OCC's surface impoundments. The complaint also alleges that hazardous waste sludge was created by OCC's discharge of formaldehyde each year from 1983 to 1987, but the presiding officer concluded that these spills came within the de minimis exception to the mixture rule, and thus were not hazardous waste.

2 In Shell Oil, the D.C. Circuit Court of Appeals also invalidated the "derivedfrom rule." That rule defines as hazardous waste a "solid waste generated from the treatment, storage, or disposal of a hazardous waste ***." 40 C.F.R. §261.3. This provision is not at issue in this case.

the date of Shell Oil forward, thus allowing pending enforcement actions instituted prior to Shell Oil to proceed.

On July 10, 1992, the presiding officer rejected this argument and dismissed the complaint on the ground that Shell Oil invalidated the mixture rule retroactively. The presiding officer relied in part on U.S. v. Goodner Brothers Aircraft, Inc., 966 F.2d 380 (8th Cir. 1992), in which the Eighth Circuit Court of Appeals rejected EPA's argument that Shell Oil invalidated the mixture rule prospectively only, and set aside a criminal conviction based on the mixture rule. The presiding officer concluded that the claims in the complaint are premised on an invalid rule, and therefore the claims against Hardin County are unenforceable. This appeal followed, and the Board heard argument on September 30, 1992.

On appeal, Region V again makes the same arguments EPA made in its Shell Oil post-decision motion and in Goodner Brothers. Region V asks this Board to determine whether Shell Oil invalidated the mixture rule retroactively or prospectively only. We need not address this issue at this time, however, because the relevant counts of the complaint may be governed in their entirety by the Ohio mixture rule and not the federal mixture rule at issue in Shell Oil. Because the record is silent as to the facts necessary to determine conclusively whether the Ohio mixture rule and not the federal mixture rule controls the outcome of this case, a remand for further proceedings is warranted.

Under RCRA § 3006, EPA may authorize any State to administer and enforce a hazardous waste program. To obtain EPA authorization, the state program must be equivalent to the federal program and consistent with the hazardous waste programs applicable in other States. RCRA § 3006(b). In addition, the State must provide adequate enforcement. Id. An authorized State can "carry out such program in lieu of the Federal program under [RCRA] in such State." Id. In such a State, the state hazardous waste regulations operate in lieu of the federal regulations.3 In contrast, in an unauthorized State, the state regulations do not operate in lieu of the federal regulations, and hazardous waste treatment, storage and disposal facilities must comply with the federal regulations (in addition to any applicable state or local regulations).

3 The federal regulations, by their terms, do not apply in an authorized State. See 40 C.F.R. §§ 264.1(f) and 265.1(c)(4); 45 Fed. Reg. 33,176 (May 19, 1980).