When fairness and a balance of the equities so dictate, a default order will be set aside. In the Matter of Midwest Bank & Trust Co., Inc., RCRA (3008) Appeal No. 90-4, at 6 (Oct. 23, 1991). As a general principle, default orders are not favored and doubts are usually resolved in favor of the defaulting party. See 10 Wright, Miller & Kane, Federal Practice and Procedure 2d, § 2681, at 402403 (1983). When making such a determination, the Environmental Appeals Board will consider the totality of the circumstances presented. See Midwest Bank & Trust, at 6–7. It should be noted that Respondent failed to file a reply opposing the Motion for Default Order.7 If no reply is filed to a motion within the designated period, the parties may be deemed to have waived any objection to the granting of such motion. 40 CFR §22.16(c). Other than its rather belated contention that it was not the party intended to be served with process and that it did not commit the violations alleged in the Complaint, Respondent offers no explanation for its failure to reply to the Motion for Default Order. Respondent offers no additional reason why it should not be deemed to have waived its objections to the granting of the Motion. In its appeal of the Default Order, Respondent denies it is the owner of the facility which was inspected by EPA on or about November 3, 1989. It denies it manufactured, imported, processed or otherwise used any chemical or chemical category subject to Section 313 of EPCRA during 1987 and 1988. It denies it was a facility with ten full-time employees during 1987 and 1988. It denies it was a facility falling within Codes 20 through 39 of the Standard Industrial Classification Code during 1987 and 1988. It maintains the "Thermal Reduction Company" which operated at the very same address during 1987 and 1988 ceased to do business prior to service of the complaint on "Thermal Reduction Company, Inc." While making these assertions, Respondent also acknowledges in an ambiguously phrased statement that it does share some form of legal relationship with "Thermal Reduction Company." It states that in the 1990 transaction wherein it changed its name from N & P Corporation to "Thermal Reduction Company, Inc.," it acquired certain assets and certain employees of the "Thermal Reduction Company." "8 It also states that as a result of this transaction, it has "A party may be found to be in default for failure to file a timely answer to the complaint only after a motion is made and such party is afforded an opportunity to reply. 40 CFR § 22.17(a). 8 See page 3, paragraph 4, of the Notice of Appeal. authority to "compel [(Thermal Reduction Company'] to accept service of the complaint." 9 It is not necessary for us to decide whether Respondent could have successfully defended against the Complaint had it chosen to do so. All the assertions it now makes should have been made in an answer to the Complaint. No answer was filed. All the assertions could have been included in a reply to the Motion for Default Order. No reply was filed. We decline to accept these assertions, raised for the first time on appeal, as a basis for overturning a properly issued Default Order. Viewing all of the circumstances of this case together, we find Respondent has failed to make a sufficient equitable argument to warrant setting aside the Default Order. The Default Order of the Regional Administrator of Region II is therefore affirmed. Respondent shall pay a total civil penalty of $34,000.00. In accordance with 40 CFR § 22.31(b), payment must be made within 60 days after receipt of this Order by sending a certified or cashier's check, payable to the Treasurer, United States of America, to: U.S. EPA-Region II So ordered. 9 Id. IN THE MATTER OF MIAMI-DADE WATER AND SEWER AUTHORITY DEPARTMENT NPDES Appeal No. 91-14 ORDER DENYING REVIEW IN PART AND REMANDING IN PART Decided July 27, 1992 Syllabus Miami-Dade Water and Sewer Authority Department seeks review of the denial of an evidentiary hearing request on certain issues relating to the renewal of an NPDES permit by U.S. EPA Region IV for Miami-Dade's North District Wastewater Treatment Facility. The Facility discharges to the Atlantic Ocean 11,000 feet offshore. Miami-Dade's evidentiary hearing request raised issues relating to the toxicity testing requirements, which were included in the permit to ensure compliance with Florida's numeric whole effluent toxicity standard for open ocean discharges at Rule 174.244(3)(c), F.A.C. The Regional Administrator denied the evidentiary hearing request in its entirety on the ground that none of the issues raised by Miami-Dade were factual issues. In its petition for review, Miami-Dade also raises as a legal issue for the Environmental Appeals Board to decide whether the permit must include the biomonitoring protocol implementing the Florida regulations contained in Rule 17-4.244(3)(c), F.A.C. to assure compliance with Clean Water Act §301(bX1XC), 33 U.S.C. § 1311(bX1XC). Held: The following issues raised in Miami-Dade's evidentiary hearing request are factual ones that should be heard at an evidentiary hearing: (1) whether MiamiDade's effluent is causing, has a reasonable potential for causing, or contributes to a violation of Florida's toxicity standard for open ocean discharges at Rule 174.244(3)(c), F.A.C.; (2) whether the test species specified in the permit will accurately predict how indigenous species would fare when exposed to Miami-Dade's effluent at 30% full strength for 96 hours. Assuming Miami-Dade's effluent has a reasonable potential for causing or contributing to a violation of Florida's toxicity standard for ocean discharges, the Region is required under the Clean Water Act and implementing regulations to include a permit limitation to ensure compliance with that standard. With respect to the other issues raised in Miami-Dade's petition, review is denied. Before Environmental Appeals Judges Ronald L. McCallum and Edward E. Reich. Opinion of the Board by Judge Reich: Miami-Dade Water and Sewer Authority Department seeks review of the denial of an evidentiary hearing request on certain issues relating to the renewal of an NPDES permit by U.S. EPA Region IV for Miami-Dade's North District Wastewater Treatment Facility (the "Facility"). The Facility discharges to the Atlantic Ocean 11,000 feet offshore.1 Miami-Dade sought an evidentiary hearing on various issues related to the toxicity testing requirements in the permit, which were included in the permit to ensure compliance with Florida's numeric whole effluent toxicity standard for open ocean discharges. Rule 17-4.244(3)(c), F.A.C. In its petition for review, MiamiDade also raises a legal issue for this Board to decide, as follows: whether the permit must include the biomonitoring protocol implementing the Florida regulations contained in Rule 17–4.244(3)(c), F.A.C. to assure compliance with Clean Water Act § 301(b)(1)(C), 33 U.S.C. § 1311(b)(1)(C). At the request of the Agency's Chief Judicial Officer, the Region filed a response to the petition for review, and in response to that submission, Miami-Dade filed a reply brief.2 For the reasons set forth below, we are remanding the following two issues to the Region for an evidentiary hearing: (1) whether MiamiDade's effluent is causing or contributing to or has a reasonable potential to cause or contribute to a violation of Florida's toxicity standard for open ocean discharges at Rule 17-4.244(3)(c), F.A.C.; (2) whether the test species specified in the permit will accurately predict how indigenous species would fare when exposed to MiamiDade's effluent at 30% full strength for 96 hours. We also conclude that, if the Administrative Law Judge determines that Miami-Dade's effluent causes or contributes to or has a reasonable potential to cause or contribute to a violation of Florida's toxicity standard, the 1A Temporary Operating Permit issued by the Florida Department of Environmental Regulation describes the Facility as follows: A 90 MGD (interim operational capacity) pure oxygen activated Region's Response to Comments, Appendix 9. 2 At that time, the Agency's Judicial Officers held delegated authority to decide NPDES permit appeals. Subsequently, effective on March 1, 1992, the position of Judicial Officer was abolished, and all cases pending before the Judicial Officers, including this case, were transferred to the Environmental Appeals Board. See 57 Fed. Reg. 5321 (Feb. 13, 1992). Region is required under CWA §301(b)(1)(C) to include a permit limitation that will ensure compliance with that standard. With respect to the other issues raised in Miami-Dade's petition, review is denied. I. BACKGROUND On October 15, 1986, Miami-Dade filed an NPDES permit renewal application with Region IV. On May 21, 1987, the Region sent out public notice of a draft permit, and on June 2, 1987, MiamiDade filed its comments on the draft permit. In its comments, MiamiDade complained that a statement in the draft permit-"The discharge of toxic pollutants in toxic amounts is prohibited."—was vague. Miami-Dade urged the Region to replace the vague statement with a recently enacted Florida numeric whole effluent toxicity standard, Rule 17-4.244(3)(c), F.A.C., which provides, in part, as follows: For open ocean discharges, the effluent when diluted On June 22, 1987, the Region sent out public notice of a revised draft permit, along with a revised fact sheet. The permit had been revised to include the toxicity testing conditions at issue here. Those conditions were included in the permit to ensure compliance with the numeric whole effluent toxicity standard quoted above. On June 25, 1987, Miami-Dade filed its comments on the revised draft. Even though it had urged inclusion of the Florida toxicity standard quoted above, Miami-Dade challenged among other things the inclusion of toxicity testing requirements in the permit. In its comments on the revised draft permit, Miami-Dade stated: "Due to limited response time, a reply detailing our specific concerns will follow at a later date." Miami-Dade, however, did not file a more detailed reply. On August 10, 1987, the Final Permit was issued along with an Amendment to the Revised Fact Sheet and a Response to Comments. The Amendment to the Revised Fact Sheet states that: State certification was requested for the original |