Full opinion text
Opinion for the Court filed PER CURIAM. TABLE OF CONTENTS Page I. Ripeness.165 II. The NEPA-Related Regulations.167 A. Permit Conditions Unrelated to Effluents — Ripeness.168 B. Permit Conditions Unrelated to Effluents — Merits .168 C. Effluent-Related Permit Conditions.170 D. Admissibility of Evidence in Permit Proceedings.171 III. State Program Requirements .172 A. Penalties and Participation — Ripeness.173 B. Penalties and Participation — Merits.173 1. Regulatory uniformity and state autonomy.174 2. Public participation.175 3. Maximum penalties.178 C. EPA Veto Authority — Ripeness.181 D. EPA Veto Authority — Merits.182 IV. Toxicity Limitations .189 A. Statutory Authority.189 B. Technical Feasibility.189 C. Intrusion on State Authority .190 D. Procedural Claims.190 V. Non-Adversary Panel Procedures.191 A. The Merits of the Procedures .192 1. Oral testimony and cross examination.192 2. The panels’ composition .193 B. Defects in the Mode of Adoption.194 VI.The Antibacksliding Controversy.195 A. The NSPS Issue.196 B. Attack on the BPJ Regulation — Ripeness.196 C. Attack on the BPJ Regulation — Merits.197 D. Application of the New WQA Rules.204 VII. Net/Gross Limits.204 VIII. Upset Defense.205 A. Ripeness.205 B. Merits.206 IX. APA Continuance.211 A. Ripeness.211 B. Merits.212 1. Consistency with Clean Water Act scheme.213 2. Consistency with section 558(c) .214 PER CURIAM: These consolidated cases arise out of the Environmental Protection Agency’s issuance of regulations implementing the National Pollution Discharge Elimination System (NPDES) permit program, established under the Clean Water Act, 33 U.S. C. §§ 1251 et seq. (1982). The events leading up to these challenges are set forth fully in our prior opinion, which disposed of several issues. See NRDC v. EPA, 822 F.2d 104 (D.C.Cir.1987). This opinion addresses the remaining challenges, mounted by both environmental and industry petitioners. Although numerous issues are raised, they fall into eight general areas or categories. The first set of challenges involves regulations promulgated by EPA in furtherance of its obligations under the National Environmental Policy Act (“NEPA”), 42 U.S.C. §§ 4321 et seq. (1982). Also challenged are regulations that (2) establish the rules for transfer of authority over the NPDES permitting program to the states and supervision of the state programs; (3) permit the establishment of permit limits in terms of “toxicity”; (4) permit the use of non-adversary panel procedures (“NAPP” or “NAP procedures”) for the issuance of initial permits and variances; (5) prohibit “backsliding” from permit limits when subsequent guidelines have become more lax; and (6) define permit limits in “gross” terms, giving credit for pollutants in intake waters only in certain limited circumstances. Industry challenges EPA’s refusal to provide an “upset defense” for noncompliance with water-quality-based permit limits; that is, a defense based on a showing that noncompliance was due to factors beyond the permittee’s control. Finally, NRDC challenges on several fronts EPA’s regulation providing for continuances of out-of-date permits pending renewal by the agency. For the reasons that follow, we deny the petitions for review on all issues, save for those pertaining to the permit conditions unrelated to effluent limits and the upset defense. I. Ripeness In its initial brief and argument before this court, the agency questioned the ripeness of several of the challenges to its NPDES regulations. Because of doubt as to the ripeness of other issues as well, and in the interests of consistency, we asked for briefing on ripeness with respect to all. We note that we may find a want of ripeness even where the agency raises no such defense. This is clearly so where the issue is so unripe that the petitioner is in substance asking for an advisory opinion, in violation of the case-or-controversy requirement of Article III. See Muskrat v. United States, 219 U.S. 346, 31 S.Ct. 250, 55 L.Ed. 246 (1911); Golden v. Zwickler, 394 U.S. 103, 89 S.Ct. 956, 22 L.Ed.2d 113 (1969); see also Regional Rail Reorganization Act Cases, 419 U.S. 102, 138, 95 S.Ct. 335, 356, 42 L.Ed.2d 320 (1974) (noting Article III component of ripeness); cf. Gene R. Nichol, Jr., Ripeness and the Constitution, 54 U.Chi.L.Rev. 153 (1987) (generally arguing against constitutionalization of ripeness law but noting the advisory opinion element). Even in the absence of any impingement on Article III, the fact that ripeness rests in part on concerns of judicial economy suggests a need for independent judicial scrutiny, as occurs under the doctrine of exhaustion. See ASARCO, Inc. v. EPA, 578 F.2d 319, 320-21 n. 1 (D.C.Cir.1978) (weighing “the interests of judicial efficiency” as a factor in exhaustion analysis). Ripeness of course goes to when an issue may be raised. The Supreme Court has succinctly identified the functions of the doctrine in Abbott Laboratories v. Gardner, 387 U.S. 136, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967), stating that its basic rationale is [1] to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also [2] to protect agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties. Id. at 148-49, 87 S.Ct. at 1515. From those two purposes the Court derived a two-part test (its parts nowadays usually referred to as “prongs,” making it one of the many pronghorned creatures in the modern legal bestiary), consisting of “[1] the fitness of the issues for judicial decision and [2] the hardship to the parties of withholding court consideration.” Id. at 149, 87 S.Ct. at 1515. As this court has put it, for a claim to be ripe, “the interests of the court and agency in postponing review until the question arises in some more concrete and final form [must be] outweighed by the interests of those who seek relief from the challenged action’s ‘immediate and practical impact’ upon them.” Continental Air Lines, Inc. v. CAB, 522 F.2d 107, 125 (D.C.Cir.1974). The hardship element has considerably evolved in this circuit. As formulated in Toilet Goods Association, Inc. v. Gardner, 387 U.S. 158, 87 S.Ct. 1520, 18 L.Ed.2d 697 (1967), decided the same day as Abbott Laboratories, the test was satisfied only if the challenged administrative action would have a “direct and immediate effect” on the “primary conduct” of the petitioner. Id. at 164, 87 S.Ct. at 1524-25; accord Office of Communication of United Church of Christ, 826 F.2d 101, 109 (D.C. Cir.1987). The paradigmatic hardship situation is where a petitioner is put to the choice between incurring substantial costs to comply with allegedly unlawful agency regulations and risking serious penalties for non-compliance. Abbott Laboratories, 387 U.S. at 152, 87 S.Ct. at 1517. A petitioner cannot show hardship by positing a speculative or hypothetical future harm. Tennessee Gas Pipeline Co. v. FERC, 736 F.2d 747, 750 (D.C.Cir.1984). Further, neither the possibility that the petitioner may have to make capital budgeting decisions under a cloud of uncertainty, Diamond Shamrock Corp. v. Costle, 580 F.2d 670, 673 n. 1 (D.C.Cir.1978), nor the fact that it may incur future expense in challenging the regulations in a later permit or enforcement proceeding, Arkansas Power & Light v. ICC, 725 F.2d 716, 726 (D.C.Cir.1984), will qualify as hardship. In Eagle-Picher Industries, Inc. v. EPA, 759 F.2d 905, (D.C.Cir.1985), this court adjusted the hardship analysis to reflect the possibility that institutional concerns might militate in favor of early review despite the absence of conventional hardship. In that case the court was asked to rule upon the legality of the “Hazardous Ranking System” adopted by the EPA pursuant to the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (“CERCLA”), 42 U.S.C. §§ 9601 et seq. Apart from the issues raised being pure ones of law and the agency’s position being final and fully crystalized, we noted special circumstances favoring early review. First, CERCLA’s statutory review provision, 42 U.S.C. § 9613(a), required parties to challenge newly promulgated regulations within 90 days and barred such challenges at the enforcement stage. We read the review provision to bespeak a congressional desire that the courts “provide prompt, uniform ‘preenforcement’ review of CERCLA regulations ... in order to avoid needless delays in the implementation of an important national program.” 759 F.2d at 916. Second, the agency urged the court not to postpone review. It sought an early and final resolution of legal attacks on decisions that formed the keystone of a complex regulatory program. Id. at 916-17. Third, there was no “compelling” judicial interest in deferring review. Id. at 917. Accordingly the court concluded that “mechanical application” of the hardship element of Abbott Laboratories “could work mischief in such a situation,” causing postponement of review even where all the institutional interests sought to be served by the doctrine, and an express congressional determination, militated in favor of early review. Here as in Eagle-Picker the congressional provision for judicial review, 33 U.S.C. § 1369(b), evinces a strong will that it occur at the time of promulgation. It provides a 90-day deadline and bars a party from making at the time of enforcement claims that it could have brought at the time of promulgation. We cannot, however, apply Eagle-Picker across the board to the welter of claims raised here. They are not by any means all so purely legal as to be clearly fit for review; the agency in some instances asserts that its institutional interests favor deferred review; and in some cases there is real doubt whether the issue will ever have material significance. Accordingly, where there are institutional benefits for court or agency in deferring review, we must consider the hardship to the challenging parties from delay, and. proceed to the merits only when the latter outweighs the former. II. The NEPA-Related Regulations As is well known, the National Environmental Policy Act (“NEPA”), 42 U.S.C. §§ 4321 et seq., requires environmental impact statements (“EISs”) for “major Federal actions” affecting the environment, and normally authorizes the relevant agency to make some adjustment in its conduct as a result of what it learns from the necessary inquiry. 42 U.S.C. § 4332; NRDC v. Berklund, 609 F.2d 553, 558 (D.C.Cir.1979). In the area of water quality regulation, § 511(c) of the CWA, 33 U.S.C. § 1371(c), structures and limits the role of NEPA. It makes clear that the provision of federal financial assistance for the construction of publicly owned treatment works and the issuance of discharge permits to new sources are the only actions taken by the Administrator under the CWA that will trigger a NEPA duty. Section 511(c)(2) of the Act further limits NEPA’s effect. Subsection (B) states that NEPA does not authorize any federal permitting authority “to impose, as a condition precedent to the issuance of any license or permit, any effluent limitation other than any such limitation established pursuant to [the Act].” 33 U.S.C. § 1371(c)(2)(B). The interaction of the CWA and NEPA has led EPA to adopt regulations in three separate areas, all challenged by parties to this suit. First, it took the view that it could, on the basis of NEPA, subject permits to conditions not related to water quality. Industry asserts that it may never do so, and we find this pure legal issue ripe. To the extent, however, that industry attacks the agency’s general predictions of when it may do so, we find the challenge unripe. Second, the agency’s regulations abjure any authority under NEPA to impose conditions relating to water quality. Because the impact of this position depends entirely on nuances of the agency’s interpretation of the CWA, we find it unripe. Finally, the regulations set up a general framework for limiting evidence in permit proceedings on the basis of prior EPA proceedings relating to the same source. Environmentalists object to the restriction. Because the significance of these rules turns on their application, we find the claim unripe. We address the matters in that order. A. Permit Conditions Unrelated to Effluents — Ripeness Industry challenges 40 C.F.R. §§ 122.29(c)(3), 122.44(d)(9) and 122.49(g), on the grounds that they unlawfully assert a power to impose such conditions. One may question whether they literally do so. Their assertions of power are oddly qualified. 40 C.F.R. § 122.29(c)(3) provides that: [t]he Regional Administrator, to the extent allowed by law, shall issue, condition ... or deny the new source NPDES permit following a complete evaluation of any significant beneficial and adverse effects of the proposed action and a review of the recommendations contained in the EIS or finding of no significant impact. (emphasis added). See also 40 C.F.R. § 122.44(d)(9) (providing that new source NPDES permits shall “[incorporate ... appropriate requirements, conditions, or limitations ... to the extent allowed by [NEPA] and section 511 of the CWA ”) (emphasis added); 40 C.F.R. § 122.49(g) (calling for consideration of EIS-related permit conditions as provided in § 122.29(c)). It would be sheer casuistry, however, to read the qualification as completely undoing the assertion of power. First, it would make the regulation meaningless or self-contradictory. Second, the agency in its preamble alludes to its prior imposition of such conditions and flatly asserts its intention to do so again. 49 Fed.Reg. 38,034/2. Third, the agency’s supplemental brief, while denying ripeness, explains that the regulations “reflect[ ] EPA’s definitive position that it possesses authority to impose [such] conditions_” Supplemental Submission of EPA on Ripeness at 12. Given the purely legal character of the claim and the apparent certainty that it will arise in the future, we think the institutional concerns underlying ripeness militate in favor of immediate resolution. To the extent, however, that industry merely attacks the agency’s hints in the preamble as to when it may impose such conditions, see, e.g., Joint Industry Petitioners’ Brief on Ripeness at 12, the challenge is completely fact-dependent and therefore unripe. B. Permit Conditions Unrelated to Effluents — Merits We thus proceed to the merits of Industry’s challenge. As the issue is one of statutory interpretations, our analytical framework is provided by Chevron U.S.A., Inc. v. NRDC, 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), and its progeny. To restate briefly these now-familiar principles: On a pure question of statutory construction, we attempt to discern congressional intent, using “traditional tools of statutory construction.” INS v. Cardoza-Fonseca, 480 U.S. 421, 107 S.Ct. 1207, 1221, 94 L.Ed.2d 434 (1987). If Congress’ intent is clear, “then that interpretation must be given effect, and the regulations at issue must be fully consistent with it.” NLRB v. United Food & Commercial Workers Union, — U.S. -, 108 S.Ct. 413, 98 L.Ed.2d 429 (1987). But where “the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute.” Chevron, 467 U.S. at 843, 104 S.Ct. at 2782. See generally Continental Airlines, Inc. v. Dep’t of Transportation, 843 F.2d 1444 (D.C.Cir.1988); Rettig v. Pension Benefit Guaranty Corp., 744 F.2d 133 (D.C.Cir.1984). For the reasons that follow, we conclude that neither the Clean Water Act nor NEPA authorizes EPA’s imposition of non-water quality permit conditions. Accordingly, the challenged regulations, 40 C.F.R. §§ 122.29(c)(3), 122.44(d)(9), 122.49(g), cannot stand. In arguing that it is empowered to impose permit conditions unrelated to effluents, EPA relies primarily on NEPA itself. As noted above, section 511(c)(1) of the CWA provides that EPA’s issuance of new source permits shall be considered a “major Federal action” for NEPA purposes and therefore subjects to NEPA review. 33 U.S.C. § 1371(c)(1). EPA contends that as part of this review, NEPA authorizes the agency to make decisions based on environmental factors not expressly identified in the agency’s underlying statute. With this general proposition, we fully agree. Where we part company with EPA is in the nature of the decision NEPA authorizes the agency to make. As EPA sees it, NEPA provides the agency with “supplemental authority.” This authority, it is said, permits EPA not only to consider additional environmental factors, but to act on these factors by imposing any condition necessary to account for the environmental effects of the entire new facility. EPA Brief at 24, 26, 30. This, we believe, misapprehends the nature and import of NEPA. True enough, NEPA instructs the agency to consider all environmental effects of any “major Federal action” and to incorporate this information into its final decision. 42 U.S.C. § 4332. NEPA does not, however, expand the range of final decisions an agency is authorized to make. As we reiterated in our earlier decision (in holding that EPA lacked authority to ban construction of new sources pending permit issuance), NEPA does not expand an agency’s substantive powers. NRDC v. EPA, 822 F.2d 104, 129 (D.C.Cir.1987). Any action taken by a federal agency must fall within the agency’s appropriate province under its organic statute(s). See, e.g., id.; Park County Resource Council, Inc. v. Dep’t of Agric., 817 F.2d 609, 620 (10th Cir.1987); Winnebago Tribe v. Ray, 621 F.2d 269, 272-73 (8th Cir.), cert. denied, 449 U.S. 836, 101 S.Ct. 110, 66 L.Ed.2d 43 (1980); Gage v. United States Atomic Energy Comm’n, 479 F.2d 1214, 1220 n. 19 (D.C.Cir.1973). Here, the “major Federal action” subject to NEPA review is identified in section 511(c)(1): the issuance of a permit to discharge pollutants. 33 U.S.C. § 1371(c)(1). In fulfillment of its NEPA-mandated duty, EPA is to consider all “direct, indirect, and cumulative” environmental effects of the discharge of pollutants by the potential permittee. See 40 C.F.R. §§ 1508.7-.8, 1508.18 (1987). Having done so, EPA can properly take only those actions authorized by the CWA—allowing, prohibiting, or conditioning the pollutant discharge. 33 U.S.C. § 1342; see also NRDC v. EPA, 822 F.2d at 129 (“EPA’s jurisdiction [under the CWA] is limited to regulating the discharge of pollu-tants_”). And, contrary to EPA’s assumption, the CWA does not empower the agency to regulate point sources themselves; rather, EPA’s jurisdiction under the operative statute is limited to regulating the discharge of pollutants. Thus, just as EPA lacks authority to ban construction of new sources pending permit issuance, so the agency is powerless to impose permit conditions unrelated to the discharge itself. See NRDC v. EPA, 822 F.2d at 126-31. This is not to say that EPA lacks authority to take action in the wake of its NEPA-mandated review. To the contrary, it can deny a new-source permit on NEPAfelated grounds or impose NEPA-inspired conditions on discharges that the agency determines to allow. Indeed, Industry does not contest this authority. See Joint Industry Petitioners’ Brief on Common Issues at 47 n. 1; Joint Industry Petitioners’ Reply Brief at 32-33 & n. 1. EPA may not, however, under the guise of carrying out its responsibilities under NEPA transmogrify its obligation to regulate discharges into a mandate to regulate the plants or facilities themselves. To do so would unjustifiably expand the agency’s authority beyond its proper perimeters. See e.g., Board of Governors v. Dimension Financial Corp., 474 U.S. 361, 374, 106 S.Ct. 681, 689, 88 L.Ed.2d 69 (1986); Schwabacher v. United States, 334 U.S. 182, 209-10, 68 S.Ct. 958, 972, 92 L.Ed. 1305 (1948) (Frankfurter, J., dissenting); American Mining Congress v. EPA, 824 F.2d 1177, 1186-87 (D.C.Cir.1987). ■ Perhaps mindful of NEPA’s procedural nature, EPA also seeks succor in the CWA itself. In particular, the agency relies on section 306(b)(1)(B), which provides: “In establishing or reviewing Federal standards of performance for new sources under this section, the Administrator shall take into consideration the cost of achieving such effluent reduction, and any non-water quality environmental impact and energy requirements.” 33 U.S.C. § 1316(b)(1)(B). To comply with this provision, EPA claims, the agency “routinely considers the effect of the regulations imposing effluent discharge limitations on air pollution, solid waste generation, water scarcity and energy consumption.” EPA Brief at 33. EPA’s authority under NEPA to consider the environmental effects of the entire facility, it is said, is fully consistent with this express mandate under CWA to consider the non-water quality impacts of the discharge. Id. at 34. The response to EPA’s argument is found in the language of section 306(b)(1)(B) itself. To be sure, the statute instructs EPA to consider non-water quality related environmental factors in connection with new sources. This consideration, however, obtains only in connection with the establishment of national new source standards, not in the issuance of individual permits. Indeed, this provision says nothing about the issuance of individual permits, much less authorizes the imposition of conditions relating to the entire facility. And even if the provision had anything to do with the issuance of particular permits (which it does not), requiring the Administrator to consider certain factors is a far cry from authorizing the imposition of any condition the Administrator finds desirable in particular permits. For the foregoing reasons, we conclude that the statutory provisions relied upon by EPA as authorizing the challenged regulations do not supply the requisite authority. That being so, the challenged regulations cannot stand. C. Effluent-Related Permit Conditions. In 40 C.F.R. §§ 122.29(c)(3) and 122.-44(d)(9), the agency appeared to exclude effluent limitations from the category of permit conditions that might be adjusted in individual NPDES permits as a consequence of an EIS. The environmental petitioners contend that this position illegally renounces EPA’s authority to impose effluent limitations more stringent than those expressed in the national standards when necessary to satisfy NEPA’s policy goal of mitigating environmental damage. Both EPA and the environmentalists at points appear to frame the issue as the purely legal one of whether EPA is among the agencies covered by § 511(c)(2)(B)’s restrictions on NEPA-conditioning of effluent limitations. Those agencies are identified in § 511(c)(2)(A) as including “any Federal agency authorized to license or permit any activity which may result in the discharge of a pollutant” into navigable waters. 33 U.S.C. § 1371(c)(2)(A). Both sides recognize that Congress adopted § 511 at least in part in response to this court’s decision in Calvert Cliffs Coordinating Committee, Inc. v. AEC, 449 F.2d 1109 (D.C.Cir.1971), which held that NEPA required the Atomic Energy Commission to reconsider the water quality impacts of projects already subject to CWA review. NRDC Brief at 74. The environmentalists suggest that § 511 was intended only to preclude federal agencies other than the EPA from reconsidering de novo the water quality impacts of projects already subject to review under the Act; the agency discerns broader purposes, including that of preventing even EPA from disrupting the comprehensive scheme set forth in the CWA with essentially ad hoc NEPA intrusions. EPA Brief at 54; see also Industry Inter-venor Brief at 25-26. If the issue were as self-contained as this summary suggests it would be fit for review. But the agency acknowledges that under § 302(a) of the CWA, 33 U.S.C. § 1312(a), it must supplement its national technology-based effluent limits with ones derived directly from concerns for local stream quality. EPA Brief at 52-53. Under § 302(a), the Administrator must impose these more stringent limits when necessary to “assure public water supplies, agricultural and industrial uses, and the protection and propagation of a balanced population of shellfish, fish and wildlife, and allow recreational activities in and on the water.” 33 U.S.C. § 1312(a). Moreover, the agency has made clear that it will consider NEPA-generated information when making its § 302(a) determinations. 49 Fed.Reg. at 38,033/3. All this leaves us frankly unsure just what NEPA-related factors (if any) the agency is purporting to ignore. Cfi Industry Intervenor Brief at 29. The upshot of all this is to suggest strong institutional reasons against immediate review. (1) The ultimate legal issue will turn on the agency’s as-yet uncrystallized position on the relation between its § 302(a) duties and § 511(c)(2)(B). (2) The harm foreseen by the environmentalists may never come to pass. (3) Our ability to resolve whatever legal issues may arise will be greatly enhanced by their appearing in the context of a concrete factual situation. We conclude that the issues are not fit for review. ACLU v. FCC, 823 F.2d 1554, 1577 (D.C.Cir.1987) (“[FJitness for review is not satisfied when ‘judicial appraisal ... is likely to stand on a much surer footing in the context of a specific application of this [regulation] than could be the case in the framework of this generalized challenge made here,’ ” quoting Toilet Goods Association, 387 U.S. at 164, 87 S.Ct. at 1524-25). D. Admissibility of Evidence in Permit Proceedings. 40 C.F.R. § 124.85(e) directs the presiding officer in a permit hearing to exclude new evidence (and disallow cross-examination) as to specific types of environmental effects, where these effects “were considered or could have been considered” in a previous permit hearing under specific statutes and the applicant received the type of permit in question. But the regulation authorizes the officer to receive without cross-examination relevant portions of the record from such prior proceedings, and it in no way restricts the type of evidence that a party may submit for consideration during the informal comment period that precedes the permit hearing. EPA Brief at 56. EPA’s purpose is to eliminate duplication of effort and “to avoid turning NPDES hearings into ‘a forum for reexamination of decisions under statutes to which NEPA does not apply.’ ” EPA Brief at 58-59 (quoting from 49 Fed.Reg. at 38,033/1). NRDC concedes that the “EPA’s goal of streamlining hearings is legitimate,” NRDC Reply Brief at 32, but claims that the agency’s regulations prevent admission of relevant evidence and cross-examination, thus violating the APA, CWA, NEPA and due process. The interpretive discretion that the rule affords the presiding officer, and the uncertain character of its impact on any real proceeding, persuade us that the issue is unripe. The phrase “which were considered or could have been considered” is far from self-defining. Construed expansively (ie., in such a manner as to increase the preclusive effect), the evidentiary restrictions might have the effects feared. Construed cautiously, they would be altogether benign. Given this uncertainty, there is no issue fit for review. It is not our task to render opinions on a series of hypotheticals. See Toilet Goods Ass’n v. Gardner, 387 U.S. 158, 163-64, 87 S.Ct. 1520, 1524, 18 L.Ed.2d 697 (1967); Air New Zealand, Ltd. v. CAB, 726 F.2d 832, 837 (D.C.Cir.1984). Review is no more appropriate here than it would be for some general evidentiary rule barring repetition. The unfitness of the issue for review of course means that ripeness doctrine’s concern for the proper use of the courts militates against review. So do the other institutional values, and there is no offsetting hardship. The agency has, and here asserts, EPA Brief on Ripeness at 15, an interest in working out the functional meaning of its regulations free from premature judicial interference. Abbott Laboratories, 387 U.S. at 148-49, 87 S.Ct. at 1515. The only hardship suggested by petitioners — the existence of the regulations since 1984 — is patently inadequate. They assert no effect whatever on primary conduct. In the event that a presiding officer unlawfully excludes evidence under the regulation, and such exclusion harms petitioner by influencing the outcome of the hearing, they have a remedy. 40 C.F.R. § 124.85(d)(3) provides that a party wishing to challenge an exclusion can make an offer of proof for the record. This will preserve the dispute for appeal and allow a court to judge the validity of the regulations as applied in a concrete factual situation. See Toilet Goods Ass’n v. Gardner, 387 U.S. at 164-65, 87 S.Ct. at 1524-25. III. State ProgRam Requirements Because of Congress’s desire to “recognize, preserve, and protect the primary responsibilities and rights of States to prevent, reduce, and to eliminate pollution,” 33 U.S.C. § 1251(b), the CWA provides for state assumption of the NPDES permit program. Id. § 1342(b). It specifies some prerequisites to states’ assuming permitting responsibilities, id., authorizes the Administrator to supplement them, id. §§ 1361(a), 1314(i)(2), and requires him to approve a state’s application once satisfied that these standards have been met, id. § 1342(b). Through this mechanism the agency has thus far transferred its permitting authority to 39 of 50 states. EPA Brief on Ripeness at 12 n. 9. Environmentalist and industry petitioners attack different aspects of EPA’s rules for transfer of authority and for supervision of the state programs. We find all these attacks ripe. A. Penalties and Participation — Ripeness. Environmental petitioners challenge two regulations clarifying the prerequisites for transfer of EPA’s authority. Citizens for a Better Environment (“CBE”) contests the agency’s standards for state allowance of public participation, set forth in 40 C.F.R. § 123.27(d). It contends that 33 U.S.C. § 1251(e) requires states to provide for citizen suits and intervention rights just as the CWA does at the federal level. See 33 U.S.C. § 1365. NRDC complains that the agency’s regulations for what a state must provide by way of penalties provision, 40 C.F.R. § 123.27, is illegal because it fails to require the states to set maximum penalties as high as those provided in the CWA itself. 33 U.S.C. § 1319, as amended. We believe these challenges to be ripe. Both are pure issues of law: if the challengers’ legal position be correct, the regulations are invalid. The agency position is final and the regulations’ vulnerability to these attacks is not materially dependent upon further interpretations. The agency urges prompt resolution of both disputes. Although the issues are not as key as those involved in Eagle-Picher, continued uncertainty as to each will cast a shadow over the agency’s approvals of state applications for permitting authority. Thus delay would inconvenience both the agency and state authorities. Although we can discern no hardship to the petitioners from postponing review, the clear tilt of institutional factors in favor of ripeness permits us to dispense with that requirement. B. Penalties and Participation — Merits. A unique federal-state division of responsibilities is at the structural core of the Act. This is made crystal clear by the congressional declaration of the policy and goals pervading the Act: It is the policy of the Congress to recognize, preserve, and protect the primary responsibilities and rights of States to prevent, reduce, and eliminate pollution, to plan the development and use [ ] of land and water resources, and to consult with the Administrator in the exercise of his authority under this chapter. Accordingly, the NPDES provides for state assumption of the permit program, and Congress repeatedly articulated its expectation that the states would play a major role in administering it. The Act specifies prerequisites for state assumption of the program, empowers the Administrator to further refine these standards, and commands the Administrator to approve the state permit system once he determines that the statutory requirements and administrative guidelines are met. 1. Regulatory Uniformity and State Autonomy. Petitioners challenge two regulations implementing the Act’s provisions on state assumption of the permit program. Citizens for a Better Environment (CBE) attacks the standards for minimum public participation at the state level. NRDC complains of the absence of state authority to impose a given maximum penalty. Both protests rest on the assumption that congressional emphasis on uniformity was directed to procedural as well as substantive standards, and that as a result federal requirements respecting public participation and penalties must be mirrored on the state level. Uniformity is indeed a recurrent theme in the Act, a direct manifestation of concern that the permit program be standardized to avoid the “industrial equivalent of forum shopping” and the creation of “pollution havens” by migration of dischar-gers to areas having lower pollution standards. The desired uniformity, however, is spoken of almost exclusively in relation to effluent limitations. Moreover, Congress' quest for homogeneity is in tension with its independent emphasis on state autonomy, which is repeated throughout the legislative history of the Act, is enshrined in the Act as the basic policy to “recognize, preserve, and protect the primary responsibilities and rights of States,” and is the very foundation of the permit program. Congress made even clearer its intent that the act be administered in such a manner that the abilities of the States to control their own permit programs will be developed and strengthened. [Members of Congress] look for and expect State and local interest, initiative, and personnel to provide a much more effective program than that which would result from control in the regional offices of the Environmental Protection Agency. In fashioning its guidelines on both participation and penalties, EPA endeavored to reconcile the competing objectives of regulatory uniformity and state autonomy by establishing a floor for citizen participation and state enforcement authority, while ensuring that states have the maximum possible independence. We are fully mindful of the rule that an agency is entitled to special deference when it harmonizes competing policies; “ ‘[i]f this choice represents a reasonable accommodation of conflicting policies that were committed to the agency’s care by the statute, we should not disturb it unless it appears from the statute or its legislative history that the accommodation is not one that Congress would have sanctioned.’ ” The regulations at issue are classic examples of such administrative balancing, and we find that they fall well within the permissible bounds of the agency’s discretion. 2. Public Participation. CBE assails on two grounds EPA’s regulations specifying the minimum level of public participation that states must afford. CBE first claims that the regulations are inadequate because they do not include all of the protections built into the federal permit program. Alternatively, it contends that they fail to provide any meaningful right. The requirement of public participation in efforts to control water pollution is established in the congressional declaration of policy and goals of the Act: Public participation in the development, revision, and enforcement of any regulation, standard, effluent limitation, plan, or program established by the Administrator or any State under this chapter shall be provided for, encouraged, and assisted by the Administrator and the States. The Administrator, in cooperation with the States, shall develop and publish regulations specifying minimum guidelines for public participation in such processes. The statutory text does not, however, elaborate on the extent of public participation contemplated by Congress. The legislative history of the Act repeatedly echoes the desire “that its provisions be administered and enforced in a fishbowl-like atmosphere.” CBE asserts that in Section 1365, which governs citizen suits, Congress spelled out the elements of the public participation envisioned. This contention is based on the characterization in the legislative history of that section as a “provision ... that would provide citizen participation in the enforcement of control requirements and regulations.” We find no indication, however, that these statements, made in the context of committee reports on Section 1365, were intended as definitional cross-references to Section 1251(e). As CBE insists, Congress considered the citizen suit provision to be of dual importance, serving both as a method of prodding the agency, and as a backup means of enforcing the Act. On the other hand, Congress also expressed reservations about potential abuses of citizen suits, and expressly noted its concern “with protecting local government, industry, and individuals from harassing law suits while still keeping the courts open to responsible parties concerned with environmental protection.” Nowhere in either the Act or its legislative history is there any express statement that the provisions of Section 1365 extend to states, nor do we find persuasive any equivocal intimation in that direction. It would have been very easy for Congress to say so if that was what it had in mind; instead, even intervention as of right was restricted to litigation in federal courts. It is difficult for us to believe that if Congress wanted the states simply to copy the federal minimum public participation requirements, it would limit the elaborate regulatory system to definition of federal-level public participation, and leave the specifications of the minimum acceptable state-level public participation for an exercise of the Administrator’s rulemaking authority. CBE invokes In re Permanent Surface Mining Regulation, which we affirmed en banc, requiring citizen suit authority in state programs governing coal surface mining. Not only does that decision rest on both statutory language and legislative history plainly contemplating state-level citizen suits, but it also affirms the agency’s interpretation of the statute. CBE would also bootstrap a prescription for state-level citizen suits from the statutory mandate that “[t]he permit program of the Administrator ... shall be subject to the same terms, conditions, and requirements as apply to a State program ... under subsection [1342(b) ].” As the Seventh Circuit has noted, however, this provision on its face applies in only one direction: the federal program must meet specific requirements set out in subsection (b), such as a five-year fixed permit term and incorporation of effluent limitations. Furthermore, the section cross-references only “terms, conditions, and requirements ... under subsection (b).” Subsection (b) already applies to states, rendering CBE’s argument empty, and refers only generally to public participation without any requirement of citizen suits. Finally, we note that EPA maintains that “[njothing in the Act or its legislative history indicates that Congress intended that states be required to provide identical rights to those Congress specified for citizens in Federal court.” Because we have found that “Congress has not directly addressed the precise question at issue,” and determined that “the agency’s answer is based on a permissible construction of the statute,” we defer to EPA’s reading. We therefore hold that state-level citizen suits are not commanded by the Act, and find no impropriety in the Administrator’s failure to require state programs to afford them. CBE asks that, should we decide that state public participation specifications need not match the federal requirements, we hold that the present regulations are incapable of producing meaningful public involvement. We decline this invitation. The pertinent regulations read: Any state administering a program shall provide for public participation in the State enforcement process by providing either: (1) Authority which allows intervention as of right in any civil or administrative action ... by any citizen having an interest which is or may be adversely affected; or (2) Assurance that the State agency or enforcement authority will: (i) Investigate and provide written responses to all citizen complaints ...; (ii) Not oppose intervention by any citizen when permissive intervention may be authorized by statute, rule, or regulation; and (iii)Publish notice of and provide at least 30 days for public comment on any proposed settlement of a State enforcement action. Implementation of either of these options suffices, but it must be adequate enough to meet the “minimum guidelines for public participation.” Congress contemplated that these regulations would do more than pay lip service to public participation; instead, “[t]he public must have a genuine opportunity to speak on the issue of protection of its waters” on federal, state, and local levels. “[CJitizen groups,” it was said, “are not to be treated as nuisances or troublemakers but rather as welcome participants in the vindication of environmental interests.” We might be somewhat more hospitable to CBE’s claim, especially with regard to the second option, were it not for two statements by EPA in interpreting the regulations. First, in promulgating the regulations and again in its brief before this court, the agency indicated that the first option—provision of intervention as of right—called for state intervention rights similar to those accorded by the federal rules. Although, given the Act’s confinement of mandatory intervention as of right to federal courts, we would not insist upon such a provision, its existence does undercut CBE’s argument. More importantly, however, EPA asserted at oral argument that the second option, to the extent that it is based on a state’s agreement not to oppose permissive intervention, will not be available in states that do not provide some means of intervention. This interpretation is critical to our decision to uphold the agency. Were the second option open where permissive intervention is impossible, public participation would be limited to that flowing from the state’s agreement to respond to citizen complaints and to entertain citizen comments on proposed settlements of state enforcement actions — rights dismissed by the Seventh Circuit as “no more than a legalistic articulation of a common courtesy and hardly ... satisfaction of the EPA’s statutory duty to issue regulations promoting public participation in state enforcement.” With this caveat, however, we conclude that the regulations, as interpreted, provide meaningful and adequate opportunity for public participation consistent with the statutory mandate. The regulations reasonably accommodate conflicting statutory prescriptions by “establishpng] requirements which ensure the benefits of public participation, while intruding less into the States’ management of their judicial and administrative systems.” We accordingly reject CBE’s challenge. 3. Maximum Penalties. Section 1319, as amended by the Water Quality Act of 1987, specifies the penalties assessable on the federal level. A negligent violation is punishable by a penalty of “not less than $2,500 nor more than $25,000 per day of violation” for a first offense, and “not more than $50,000 per day” for any subse-. quently occurring. A knowing violation invites a fine of “not less than $5,000 nor more than $50,000 per day of violation” for a first offense, and “not more than $100,-000” for additional offenses. A violator who knowingly places another person in imminent danger of death or serious bodily injury is subject to a fine of “not more than $250,000” if the violator is an individual and “not more than $1,000,000” if an organization. Falsification of reports, or monitoring devices or methods calls for a fine of “not more than $10,000” for a first offense, and “not more than $20,000 per day of violation” for recurring offenses. Civil penalties for permit violations are “not to exceed $25,000 per day for each violation.” States are required to have “adequate authority” “[t]o abate violations of the permit or the permit program, including civil and criminal penalties and other ways and means of enforcement.” The Administrator was charged with the responsibility of fashioning guidelines defining the minimum enforcement provisions deemed adequate. Pursuant to this mandate, the Administrator promulgated the regulations here in question, which require state authority [t]o assess or sue to recover in court civil penalties and to seek criminal remedies, including fines, as follows: (i) Civil penalties ... shall be assessable in at least the amount of $5,000 a day for each violation. (ii) Criminal fines [for permit or filing violations] ... shall be assessable in at least the amount of $10,000 a day for each violation. (iii) Criminal fines [for falsification of reports or monitoring] ... shall be recoverable in at least the amount of $5,000 for each instance of violation. Petitioner NRDC contends that these regulations are invalid because they do not compel the states to provide authority to levy the maximum penalties assessable in federal enforcement programs. Throughout its consideration of the Act, Congress reiterated the important role penalties play in enforcement of water pollution standards, and emphasized the need for substantial penalties, for example: [Sanctions under existing law have not been sufficient to encourage compliance _ Therefore, the Committee proposes to increase significantly the penalties .... [I]f the timetables established throughout the Act are to be met, the threat of sanction must be real, and enforcement provisions must be swift and direct. In this articulation of congressional purpose, coupled with the congressional expectation that states would bear the primary enforcement burdens of the Act, NRDC would find a mandate for state ability and willingness to assess the federally required maximum penalties. NRDC also relies on Section 1370, which provides that states “may not adopt or enforce any effluent limitation, or other limitation, effluent standard, prohibition, pretreatment standard, or standard of performance which is less stringent than the effluent limitation, or other limitation, effluent standard, prohibition, pretreatment standard, or standard of performance under this chapter.” NRDC asserts that this means that states also may not adopt penalty provisions less stringent than those that the Act prescribes for federal enforcement. We note, however, that this section refers, not to enforcement powers, but only to effluent limitations and similar standards. The Water Quality Act of 1987 contained a provision amending Section 1319 that weighs heavily against NRDC’s contentions. The section laying out increased maximum civil penalties states: INCREASED PENALTIES NOT REQUIRED UNDER STATE PROGRAMS. —The Federal Water Pollution Control Act shall not be construed as requiring a State to have a civil penalty for violations described in section 309(d) of such Act which has the same monetary amount as the civil penalty established by such section, as amended by paragraph (1). Nothing in this paragraph shall affect the Administrator’s authority to establish or adjudge by regulation a minimum acceptable State civil penalty. NRDC concedes that this section relieves state programs from any obligation to match the maximum federal civil penalties set forth in the Water Quality Act. But, NRDC says, the quoted language should be read as a narrow exception applicable only to the federal penalties to which it expressly refers, with the result that state programs must adopt the federal civil penalties in force prior to the passage of the Water Quality Act and, more clearly than ever, must incorporate the maximum federal criminal penalties into their programs. EPA’s reply is that the new provision should be understood as simply a confirmation of the broad authority the Administrator already enjoyed in crafting state program requirements. We accept EPA’s position. This challenge by NRDC exposes the same logical infirmity flawing the attack leveled by CBE. It presumes an unexpressed congressional intent that state requirements must mirror the federal ones, a presumption inconsistent with the elements of the statutory scheme limiting operation of the provisions to enforcement efforts at the national level and explicitly empowering the Administrator to set the prerequisites for state plans. Nothing in the Act or its legislative history supports a reduction of the Administrator’s discretion to activity purely ministerial, as approval of NRDC’s thesis would do, and the Administrator’s conclusion to the contrary is eminently reasonable. The Water Quality Act amendments to Section 1319 support this reasoning. The provision concerning federal civil penalties states specifically that “[n]othing in this paragraph shall affect the administrator’s authority to establish or adjust by regulation a minimum acceptable State civil penalty.” This language is indicative of the understanding that Congress was not enlarging the Administrator’s authority for a narrowly defined purpose, as NRDC argues, but was confirming his existing authority. Surely the provision quoted is conclusive with respect to the treatment of federal civil penalties, and holding that federal civil penalties antedating the Water Quality Act must be included in state programs would run afoul of this clear intent. Similarly, NRDC’s contention that federal máximums for criminal violations must be incorporated into state programs must also be discarded here. NRDC maintains that congressional silence with respect to the applicability of federal criminal penalties to state programs, when contrasted with the treatment accorded civil penalties, should be read as a mandate for their adoption. We cannot agree. Absent any stronger indication to the contrary, it is patently unwise to assume that Congress intended sharply to limit the preexisting discretion of the Administrator in this area. Criminal penalties, even more than civil penalties, are traditionally under the control of the individual states. It is much more reasonable to assume that the Administrator would have far broader discretion to respect state autonomy in the criminal sector than in the civil area, and that Congress did not intend to divest the Administrator of this authority by its silence. The rationale EPA offers for its disinclination to adopt the statutory maxima also buttresses this conclusion. The proposed regulations would have required the states to exert enforcement authority virtually identical with the federal, including the same levels of minimum and maximum fines. In final structure, however, the regulations, changed largely in response to state comments, reflect the balancing of uniformity and state autonomy contemplated by the Act: The Agency has determined that it is necessary to set specific minimum levels of fines and penalties which States must have the authority to recover in order to ensure effective State enforcement programs. Without such minimum levels, EPA would often be forced to take its own enforcement action in approved States because the State action imposed inadequate penalties. Such EPA action, while available as a backup, is not intended to be relied upon as the prime enforcement mechanism in approved States. Accordingly, the Agency has set minimum levels of fines and penalties. However, it has reduced the levels below those available to EPA based on the large volumes of comments from states requesting such relief. We will not disturb this “reasonable accommodation of manifestly competing interests,” and consequently we uphold the agency’s penalty regulations. C. EPA Veto Authority — Ripeness. Congress provided that even when the EPA vested a state with permitting authority, it should retain a measure of control. One such control — not at issue here — is the power to withdraw approval of the state’s program. 33 U.S.C. § 1342(c)(3). Because of the administrative burden on EPA and the increased state-federal friction, the remedy is so drastic that EPA cannot be expected to use it except in egregious cases. Accordingly, Congress complemented it with a finer-tuned instrument: the power to require a state to submit a proposed permit for preissuance review and to veto the permit if the Administrator finds it to be “outside the guidelines and requirements of [the Clean Water Act].” 33 U.S. C. § 1342(d)(1). The agency promulgated 40 C.F.R. § 123.44(c) to identify the types of permit defects that should justify exercise of the veto power. Two of the six types are challenged by industry. A permit would be subject to veto if (5) Any provisions of the proposed permit relating to the maintenance of records, reporting, monitoring, sampling, or the provision of any other information by the permittee are inadequate, in the judgment of the Regional Administrator, to assure compliance with permit conditions, including effluent standards and limitations required by CWA, by the guidelines and regulations issued under CWA, or by the proposed permit; or, (6) In the case of any proposed permit with respect to which applicable effluent limitations ... have not yet been promulgated by the agency, the proposed permit, in the judgment of the Regional Administrator, fails to carry out the provisions of CWA or of any regulations issued under CWA.... Id. §§ 123.44(c)(5) and (6). Industry asserts that § 402(d)(1) of the Act, 33 U.S.C. § 1342(d)(1), allows the Administrator to object to a state-issued permit only if the state has failed to abide by a formally promulgated effluent limitation regulation or has, in some other manner, ignored an explicit requirement of the Clean Water Act itself. It characterizes §§ 123.44(d)(5) and (6) as authorizing essentially ad hoc agency interference whenever a Regional Administrator believes, for example, that a state agency has erred in identifying “best practicable control technology” (“BPT”) where the CWA requires that standard. 33 U.S.C. § 1311(b)(1)(A). Unless the relevant BPT were established in a formal federal guideline, id. at § 1311(b)(1), industry believes that the state agency’s deviation from EPA’s reading of the statute could not be “outside ... the requirements” of the CWA. Industry also asserts a procedural flaw — namely, that EPA failed to adequately answer its critiques of the agency’s regulatory proposals. We find these challenges ripe. The primary dispute between the parties is purely one of law: the scope of § 402(d)(1)’s reference to “requirements” of the CWA. The agency’s position has crystalized. Each exercise of the veto power will entail discretion, which often militates against immediate review. See Air New Zealand, Ltd. v. CAB, 726 F.2d at 837. But there appears no prospect whatever that such exercises of discretion might eliminate the legal issue or even seriously alter its character. Contrast, for example, the rules aimed at preventing use of dupli-cative evidence, pp. 171-72, swpra. The issues are thus thoroughly fit for review. The institutional interests also point to immediate review. The agency favors that course, as resolution of the issue will guide states’ efforts to frame their permits so as to avoid EPA veto. EPA Brief on Ripeness at 19. As the agency has in fact used its veto authority in the manner that the petitioners find objectionable, see e.g., Ford Motor Co. v. EPA, 567 F.2d 661 (6th Cir.1977); State of Washington v. EPA, 573 F.2d 583 (9th Cir.1978), it is improbable that our treatment of the issue would waste judicial resources. Finally, petitioners can point to some likelihood of hardship. At least if we assume that EPA will generally incline to greater severity than state agencies, the breadth of the terms for veto exercise is likely to be reflected in harsher permit conditions. Years ago the Supreme Court noted the obvious point that “[i]t is common experience that men conform their conduct to regulation by governmental authority,” Columbia Broadcasting System, Inc. v. United States, 316 U.S. 407, 418, 62 S.Ct. 1194, 1201, 86 L.Ed. 1563 (1942), and we have little doubt that the same is true of state decisionmakers with federal officials hovering over them and offering “suggestions.” Moreover, a permittee receiving a very demanding permit would have a hard time establishing that its severity derived from state fear of the federal veto. D. EPA Veto Authority — Merits. Whether the CWA authorizes EPA’s veto authority regulations is a question of statutory interpretation, to be resolved under Chevron principles. See supra p. 168 (Permit Conditions Unrelated to Effluents— Merits). Applying those principles to the issue at hand, we conclude that Congress’ intent in § 402(d)(1) of the Act, 33 U.S.C. § 1342(d)(1), is not clear; because the agency’s interpretation of the statute is reasonable, we uphold the challenged regulations. 1 (a) Initially, we consider Industry’s challenge to 40 C.F.R. § 123.44(c)(6) (subsection 6). That regulation provides that the Regional Administrator may veto a proposed permit if, in the absence of formally promulgated effluent limitations, the proposed permit fails in the Administrator’s judgment to comport with the Act or regulations promulgated thereunder. In Industry’s view, this state-veto regulation is inconsistent with both the terms and the spirit of the Act. Congress intended, Industry maintains, for the States to serve as the primary permitting authorities, and for federal oversight of state issuance of permits to be minimal. By allowing Regional Administrators to reject a state-issued permit on the basis of ad hoc judgments that the permit does not comport with desirable effluent limitations, subsection 6 is, as Industry sees it, fundamentally at odds with the Congressionally crafted structure governing the respective roles of EPA and state authorities. In Industry’s view, the sole basis for rejecting a proposed permit by virtue of improper effluent limits is if those limits are set pursuant to formally promulgated effluent limitations guidelines under section 1314(b). That section requires EPA to promulgate, pursuant to formal notice-and-comment rulemaking, guidelines (initially by October 18, 1972, and if necessary annually thereafter) to be used in setting ef fluent limits in particular permits. The standards to be achieved (by different successive dates) are based variously on “best practicable control technology” (BPT), “best available technology” (BAT), and “best conventional control technology” (BCT). See 33 U.S.C. § 1311(b). Industry argues that these § 1314(b) guidelines are the “guidelines and requirements” referred to in § 1342(d). The agency may not, in Industry’s view, reject permits based on noncompliance with effluent guidelines unless those limitations are set pursuant to § 131b. Industry contends, first, that until EPA has formally promulgated these guidelines, the States are not required to adhere to the vague technology-based standards set forth in the statute. It argues that the language of § 1311(b), which mandates the achievement of increasingly stringent technology-based standards as defined by the Administrator under the procedure laid out in § 1314(b), see, e.g., § 1311(b)(2)(A) (calling for achievement of BAT “as determined in accordance with regulations issued by the Administrator pursuant to section 1314(b)(2)”); § 1311(b)(1)(A) (requiring achievement of BPT “as defined by the Administrator pursuant to section 1314(b)”);