Full opinion text
MEMORANDUM OPINION AND ORDER HAIGHT, District Judge: Plaintiff New England Petroleum Corporation (“NEPCO”) commenced this action against defendants Federal Energy Administration and its Administrator Frank G. Zarb (collectively “FEA”) to review four initial FEA orders, and three FEA final orders affirming the initial orders on administrative appeal. The orders under review relate to the FEA’s granting in part, and denial in part, of exceptions relief requested by NEPCO within the context of the Old Oil Entitlements Program. 39 F.R. 42246, December 4, 1974; 10 C.F.R. § 211.-■67. NEPCO’s second amended complaint, filed on September 27, 1976, specifies twelve separate claims for relief arising out of the FEA orders. NEPCO prays for a declaratory judgment under 28 U.S.C. § 2201, and further necessary or proper relief under 28 U.S.C. § 2202. Jurisdiction is predicated upon the Federal Energy Administration Act of 1974, 15 U.S.C. § 761 et seq., and in particular 15 U.S.C. § 766 and § 767; upon the Emergency Petroleum Allocation Act, 15 U.S.C. § 751 et seq.; and upon the provisions of 28 U.S.C. § 1331. Venue is had in this Court under 28 U.S.C. § 1391(e)(4), NEPCO’s principal place of business being New York, New York. This Court granted the motion of Exxon Corporation (“Exxon”) pursuant to Rule 24, F.R.Civ.P., to intervene as an additional party defendant. 71 F.R.D. 454 (S.D.N.Y. 1976). The case now comes before the Court on cross motions for summary judgment pursuant to Rule 56. NEPCO contends that it is entitled as a matter of law to greater exceptions relief than that granted by FEA. FEA defends the partial relief granted and the denial to NEPCO of further entitlements. Exxon, as an alternative basis for dismissal of NEPCO’s complaint, contends that FEA lacked statutory authority to grant NEPCO any relief. That contention provoked FEA to urge, following submission of Exxon’s motion papers, that the Court strip Exxon of its status as intervenor, a sanction which NEPCO endorses. Since October, 1977, the action has been defended by the Department of Energy, the statutory successor to the FEA (see fn. 100 infra). The following continues references to the FEA. The Court grants the motions for summary judgment of NEPCO and the FEA in part, denies them in part, and remands the case to the Department of Energy. Exxon’s motion for summary judgment dismissing the complaint is denied. I. FACTUAL BACKGROUND A. The Old Oil Entitlements Program The genesis of the Old Oil Entitlements Program was referred to in this Court’s prior opinion, 71 F.R.D. at 456-457, and has been more authoritatively considered by the Temporary Emergency Court of Appeals (“T.E.C.A.”) in Pasco, Inc. v. FEA, 525 F.2d 1391 (Em.App.1975), Cities Service Co. v. FEA, 529 F.2d 1016 (Em.App.1975), cert. den., 426 U.S. 947, 96 S.Ct. 3166, 49 L.Ed.2d 1184, and Delta Refining Co. v. FEA, 559 F.2d 1190 (Em.App.1977). In Delta Refining Co. the T.E.C.A., quoting in turn the FEA’s definition of the program, describes the source from which the present litigation springs: “In January 1974, pursuant to authority granted it by the Emergency Petroleum Allocation Act of 1973, 15 U.S.C. § 751 et seq., the Federal Energy Office (FEO) issued comprehensive regulations to control the allocation and price of crude oil (10 C.F.R. §§ 210-211 (1974)). These regulations instituted a ‘two-tiered’ system whereby a low price was imposed on ‘old’ crude oil but ‘new’ crude oil (newly discovered oil and oil produced above 1972 production levels from the same property) was exempted from controls. “In December 1974, to ameliorate the competitive disadvantages among refiners caused by the two-tiered pricing system and by unequal access by refiners to price-controlled ‘old’ oil, FEO’s successor, the Federal Energy Administration (FEA), promulgated the Old Oil Entitlements Program. (39 F.R. 42246, December 4, 1974.) As the FEA defines its program: ‘The Entitlements Program is designed to remedy the economic distortion created by an unequal distribution of low cost, price controlled old crude oil among domestic refiners, and is implemented by the issuance each month of entitlements to each domestic refiner on the basis of each refiner’s volume of crude oil runs to stills. An entitlement is defined as the right of a refiner owning the entitlement to include one barrel of old oil in its adjusted crude oil receipts in a particular month. (10 C.F.R. 211.63.) Under the program, a refiner is issued a sufficient number of entitlements to assure it an old oil supply ratio equal to the adjusted national old oil supply ratio. ‘A refiner which has old oil receipts m excess of its entitlements in a particular month is required to purchase a number of entitlements equal to that excess amount. Similarly, a refiner with a number of old oil receipts which is less than the number of its entitlements in a particular month is required to sell those excess entitlements. The price at which entitlements must be sold is fixed each month by the FEA.’ ” '559 F.2d at 1191. B. Impact of the Old Oil Entitlements Program Upon the United States East Coast Market As noted, the purpose of the Old Oil Entitlements Program was “to ameliorate the competitive disadvantages among refiners caused by the two-tiered pricing system and by unequal access by refiners to price-controlled ‘old’ oil”, Delta Refining Co., supra. However, in one marketing area of the nation, the operation of entitlements program and an earlier FEA program caused substantial and unwanted market distortions. That area was the East Coast. As the petroleum industry has developed over the years, the East Coast residual fuel oil market has been supplied for the most part by Caribbean refineries dependent upon foreign crude oil. It appears to be common ground that at the pertinent times, Caribbean imports accounted for 80-90 percent of total sales in that market; and that five companies predominated in the market. Those companies, with their respective market percentage shares during the first nine months of 1974, were: Exxon, XX.XX percent; Asiatic Petroleum Corp., XX.XX percent; Amerada Hess, XX.XX percent; NEPCO, XX.XX percent; and Texaco, Inc. X.XX percent. Amerada Hess owns a refinery in the U. S. Virgin Islands. This is significant because, in consequence, Amerada Hess qualified as a domestic refiner under FEA programs. None of the four competing companies so qualified. NEPCO did not because the Caribbean refinery in which it has a proprietary interest is located at Free-port, the Bahamas. As a domestic refiner, Amerada Hess participated to its benefit in the Old Oil Entitlements Program. It also benefited from participation as a “refiner buyer” in a previously established FEA device, the Mandatory Crude Oil Sales (“Buy/Sell”) Program, 10 C.F.R. § 211.65, under which certain domestic, “independent” refiners were entitled to purchase quantities of price-controlled old oil from other domestic, major integrated refiners. Hess became a purchaser of “old oil” under this program when the program was amended on June 1, 1974; previously Hess had been a net seller. The effect of Amerada Hess’ exclusive participation in these programs was to give that company a pronounced advantage over its four rivals in the East Coast market. Such participation served to offset Hess’ high foreign crude oil costs. Its competitors in the East Coast residual fuel oil market — Exxon, Asiatic Petrolum, NEPCO, and Texaco — had no such offsets available to them. As the administrative record makes clear, there was widespread industry dissatisfaction with the advantage bestowed upon Amerada Hess by operation of the FEA programs. However, NEPCO took the position that it was uniquely and adversely' affected by the operation of those programs in the East Coast market. That was because NEPCO, and NEPCO alone, imported residual fuel oil from a Caribbean refinery, but enjoyed neither a crude oil supply of its own — in contrast to Exxon, Asiatic Petroleum, and Texaco — nor access to price-controlled old oil under the FEA programs — in contrast to Amerada Hess. This perceived state of affairs prompted NEPCO in February of 1975, to apply to the FEA for exceptions relief. NEPCO sought, in short, to participate itself in the entitlements program. The opinions and orders the FEA issued in response to that initial request and its successors form the subject matter of this action. They are considered in detail supra. It is sufficient for these introductory purposes to state that, at hearings held by the FEA to consider NEPCO’s requests, others involved in the industry were critical of the Amerada Hess advantage, but opposed to NEPCO’s requested relief. At times during the hearings it was difficult to tell which irritated a particular spokesman more: Amerada Hess’ participation in the FEA programs, or NEPCO’s efforts to be relieved from the consequences of Hess’ participation by participation of its own. Throughout the NEPCO opinions and orders the FEA manifested awareness and concern in respect of the East Coast residual fuel oil market. That concern led, in April of 1976, to an amendment of the Old Oil Entitlements Program, so as to (1) reduce by 50 percent the entitlements earned by Hess and other domestic refiners on their residual fuel oil sold in the East Coast market; and (2) grant 30 percent entitlement benefits with respect to residual fuel oil imports into the East Coast markets, other than imports from the U. S. Virgin Islands and Puerto Rico. 41 Fed.Reg. 13899-14000 (April 1, 1976). The effect of these amendments was limited to the East Coast market, since the FEA was specifically addressing the “competitive imbalance in the East Coast residual fuel oil market” caused by the participation of Amerada Hess in the entitlements program, 41 Fed. Reg. 13899 (April 1, 1976), and “this is the only area of the country experiencing substantial market distortions caused by the operation of the entitlements program.” Id. at 14000. Enactment of these amendments “obviated further need to issue individual exceptions relief to NEPCO”, and as will appear, NEPCO has made no claim for such relief subsequent to March of 1976. Against this factual background, the Court considers the several NEPCO requests and their disposition by FEA. H. THE NEPCO REQUESTS AND THE FEA RULINGS While each NEPCO request and responsive FEA ruling is considered separately supra, it may prove useful to summarize them here. Essentially there were five applications. Following the FEA’s terminology, they will be referred to throughout as NEPCO I, NEPCO II, NEPCO III, NEPCO IV, and NEPCO V. NEPCO I In its initial application, filed on February 27, 1975, NEPCO described the then existing East Coast market conditions, with particular reference to the advantage enjoyed by Amerada Hess as the result of participation in the FEA Buy/Sell and Old Oil Entitlements programs, and the economic impact of that advantage upon NEP-CO. NEPCO submitted financial statements purporting to show that whereas in 1973 it had a profit before taxes on a consolidated basis of $XX.X million, in 1974 “NEPCO suffered a financial disaster with losses on a consolidated basis of $XX.X million.” That poor result in 1974 and “continuing severe losses” in 1975 were ascribed by NEPCO to “the interplay of a number of factors, prominent among them the discriminatory impact of the Crude Oil Buy/Sell Program and the Old Oil Entitlements Program. NEPCO stated that “it cannot continue as a viable competitor without relief from FEA . . ” Specifically, FEA was asked to characterize NEPCO as a refiner-buyer in the Buy/Sell Program as of June 1,1974, and as a domestic refiner, at least for its share of its Bahamas refinery output for United States destinations, in the Entitlements Program from November 1, 1974. Such relief, if granted, would of course have been both retroactive and prospective. The FEA requested and obtained further data from NEPCO, as well as comments from other concerned companies such as Asiatic Petroleum and Exxon. On May 2, 1975 the FEA filed its decision and order. The decision rejected NEPCO’s requested relief, but granted limited relief. Specifically, NEPCO was granted an exception to the provisions of 10 C.F.R. § 211.67 (governing the entitlements program and pursuant to which NEPCO was not entitled to participate in it), to the extent that NEPCO was permitted to earn entitlements on residual fuel imports up to a maximum of 3,000,000 barrels per month, adjusted for supplemental import fees. This exception relief was limited in time to the period May 1,1975, to July 31, 1975; in other words, NEPCO could claim entitlements for the months of May, June and July, 1975. NEPCO was directed to submit further financial and related data to FEA on or before July 10, 1975. The order further provided that, “on the basis of that submission and the principles set forth in this Decision and Order”, NEPCO could if it chose request an extension of the exception relief beyond July, 1975. Thus was the seed sown for what became NEPCO II. NEPCO filed an administrative appeal, pursuant to 10 C.F.R. Part 205, Subpart H, from the FEA’s denial of the full relief requested in its application. The appeal decision and order, denied NEPCO’s appeal in all respects. That order was certified a “final order of the Federal Energy Administration of which an aggrieved party may seek judicial review.” NEPCO sought no judicial review of NEPCO I, either at that time or in these proceedings. Nevertheless, NEPCO I is of central significance to the case at bar because the FEA’s rationale, underlying NEP-CO I, runs like a leitmotif throughout its subsequent decisions, shaping and explaining them. It is necessary therefore to consider that rationale in some depth. The FEA concluded in NEPCO I that, on the basis of as yet unaudited 1974 figures, NEPCO had demonstrated that “a serious hardship exists with respect to NEPCO which warrants exception relief.” As NEPCO had contended, the FEA found that the benefits enjoyed by Amerada Hess in the FEA programs contributed directly to NEPCO’s distress. The decision observes: “Although Hess did enjoy a cost advantage over NEPCO prior to the promulgátion of the Entitlements Program since Hess was permitted to purchase substantial quantities of crude oil under the FEA’s Buy-Sell Program from major oil companies at their weighted average cost of crude oil plus thirty cents per barrel and certain adjustments, that advantage has been substantially increased as a result of the Entitlements Program. The competitive advantage which Hess enjoys has also been stabilized as a result of the Entitlement Program which generally equalized the price of crude oil which domestic refiners utilize at a price below the world market price. “Based on the submissions which NEPCO has made in support of its exception request, it is apparent that the firm’s ability to remain a viable independent competitor will be substantially endangered in the absence of exception relief. NEP-CO has been in existence for the past twenty-eight years and during that period of time has developed its business enterprise to the point where it has become a strong, major competitor in the residual fuel oil market. For the three year period of 1971 to 1973 NEPCO has steadily increased its sales of residual fuel oil and achieved a net operating profit. This situation however changed dramatically subsequent to the promulgation of the FEA Old Oil Entitlements Program. As a direct result of the advantage which its major competitor received through benefits provided under the FEA regulations, NEPCO expects that it will sustain a significant loss in market share in 1975 and further expects to incur a $XX million operating loss during 1975. The financial data which NEPCO submitted to the FEA certainly supports the firm’s contention that it will not be able to continue to maintain its business operations in residual fuel oil if it continues to sell products at a price which is substantially below the price which it pays for purchasing the raw material alone. An indefinite continuation of the present market environment which is in substantial part a result of the FEA Old Oil Entitlements Program will therefore likely result in the dissolution of NEPCO’s residual fuel oil activities and its elimination from its previous historic position as a strong competitor in that market.” Rec. 1736. In the FEA’s view, “the loss of NEPCO as a competitive force in the residual fuel oil market would certainly tend to frustrate” Congressional policy objectives that the FEA and its regulations “to the maximum extent practicable”, preserve a competitive petroleum industry, including the competitive inability of independent marketers. The FEA had particularly in mind the statements of purpose which appear in Section 4(b)(1) of the Energy Petroleum Allocation Act of 1973, 15 U.S.C. § 753(b)(1), and Section 18(a) of the Federal Energy Administration Act of 1974, 15 U.S.C. § 777(a). These two statutes, which are the root sources of the agency, its programs, and this litigation, will be referred to throughout as the “EPA Act” and “FEA Act” respectively. While prepared on the basis of NEPCO’s threatened dissolution to extend some exceptions relief, the FEA declined to award the full relief requested. The agency reasoned that the granting of such relief would place NEPCO on a par with domestic refiners under the Buy/Sell and Entitlements Programs, a status which the FEA regarded as contrary to Congressional intent and therefore inappropriate for a company whose refinery was “located in a foreign country”, namely the Bahamas. It was NEPCO’s status as a domestic marketer of refined petroleum products that moved the FEA to grant a “certain degree of special protection” under the statutes. The FEA reasoned thus: “However, NEPCO has not made a convincing showing that the relief which it seeks is either necessary or appropriate. The specific relief requested by NEPCO, if granted, would permit it to receive virtually the same benefits that domestic refiners enjoy as a result of certain FEA programs. In providing that the regulations promulgated by the FEA ‘shall apply to all crude oil, residual fuel oil, and refined petroleum products produced in or imported into the United States ’ (EPAA, Section 4(a); emphasis added), and in defining the United States to mean ‘the States, the District of Columbia, Puerto Rico, and the territories and possessions of the United States’ (EPAA, Section 3(7)), the Congress clearly did not intend that refineries located outside of the United States receive the same benefits under FEA programs as domestic refineries. It is therefore not appropriate that the NEPCO refinery which is located in a foreign country be treated as if it were located in the United States as that term is defined in the EPAA. “However, as a domestic marketer of refined petroleum products NEPCO is entitled to a certain degree of special protection under the EPAA and FEAA with respect to those marketing activities. In view of the showing which NEPCO has made that it is incurring a serious hardship and in view of the competitive position which it occupies with respect to residual fuel oil it is therefore appropriate that NEPCO be granted exception relief which will mitigate the adverse affect to NEPCO which accrues as a result of the benefits which its principal competitor receives under the Entitlements Program. Appropriate relief to achieve this objective can be best implemented by permitting NEPCO to earn entitlements on its residual fuel oil imports up to a maximum of 3,000,000 barrels a month, adjusted for supplemental import fees.” Rec. 1738. This relief, limited in quantity by the 3,000,000 barrel maximum, the FEA also limited in time to three months. That limitation reflected the agency’s recognition of the particular market problem involved, and its intent to study it further. The agency stated: “In approving exception relief in this case the FEA recognizes that the current market situation in residual fuel oil in the eastern United States is volatile and that further study is warranted with respect to the impact on the entire competitive situation as a result of the benefits which Amerada Hess presently enjoys. That study will be initiated immediately. Consequently, the exception relief which has been approved for NEPCO is limited in duration to no more than three months. Moreover, the relief provided is subject to change on the basis of other general regulatory action which the FEA may take.” Rec. 1738. The FEA denied NEPCO retroactive relief because, in its view, NEPCO had not proceeded in timely fashion to seek relief; and it had “made no showing that retroactive exception relief is essential in order to preserve its continued viable operations in the residual fuel oil market,” Rec. 1739. NEPCO prosecuted an administrative appeal, which particularly addressed the denial of retroactive relief, and the subtraction of the supplemental import fee differential in the formula for relief. NEPCO nowhere criticized the “serious hardship or gross inequity” standard contained in the regulations, 15 C.F.R. § 205.50, in respect of exception relief. The administrative appeal decision and order, dated August 7, 1975, affirmed the initial order. The appeal decision reiterated the distinction between NEPCO as foreign refiner (and thus disentitled to parity with domestic refiners) and domestic marketer (thus entitled to “a certain degree of special protection”). The appeal decision’s discussion of the limited relief awarded NEPCO is significant because it restates and clarifies the rationale underlying the agency’s response to NEPCO’s situation: “NEPCO’s final argument addresses certain alleged deficiencies in the formula for computing the value of entitlements issued pursuant to the May 2,1975 Order. NEPCO’s argument in this regard is premised on the assumption that the reason for subtracting the difference between the supplemental import fee on crude oil and the supplemental import fee on residual fuel oil in the formula is designed to put NEPCO in a position roughly similar to that of Hess up to 3,000,000 barrels of residual fuel oil per month. However, NEPCO’s assumption is without foundation. The exception relief is intended to confer a temporary benefit on NEPCO in order to preserve the continued viability of the firm during the period when the entire competitive market situation involved is under review by the FEA. The formula is designed to correct for the built-in benefit which accrues to a hypothetical domestic refiner importing crude oil over a domestic marketer of imported residual fuel oil as a result of the Entitlements Program. The formula is not designed to place NEPCO on a parity with Hess, for that would clearly contravene the intent of the Congress and the FEA of affording benefits to domestic refiners." Rec. 1816-1817 (emphasis added). The NEPCO I initial and appeal decisions, from which NEPCO sought no judicial review, set the stage upon which the succeeding acts of the drama were played. NEPCO II Pursuant to leave expressed in NEPCO I, the company applied on July 10, 1975 for a continuation of the exceptions relief granted by that earlier order. The FEA received updated and audited material (for 1974) concerning NEPCO’s financial condition. A public hearing was held at which representatives from NEPCO and a number of third parties appeared. In its decision issued August 7, 1975, the FEA denied NEPCO an extension of exceptions relief, on the basis that “NEPCO’s operating position has improved to the point where the firm’s continued activities in the residual fuel oil market are not dependent on its receiving entitlement exception relief during the month of August.” Reiterating the rationale of NEPCO I, the FEA stated in NEPCO II: “It is however, important to note that the exception relief which was afforded to NEPCO on May 2 was not designed to eliminate the general operating losses which NEPCO has been experiencing for some time nor to permit NEPCO to attain a favorable competitive position. Rather, the exception relief previously approved was based on the showing that NEPCO could not continue to sustain the type of heavy operating losses in residual fuel oil sales which resulted from the competitive benefits which Hess received under FEA regulatory programs.” Rec. 2661. The FEA denied relief for August. NEP-CO was granted leave to apply, on or before August 23, 1975, for relief in September. The administrative appeal decision affirmed this order, together with the initial order in NEPCO III, which will be first considered. NEPCO III On August 22, 1975 NEPCO applied for exceptions relief, according to the NEPCO I formula, during the month of September. The FEA denied the application, in a decision and order dated September 17, 1975, reasoning that NEPCO’s operating posture was not “markedly different” from that described in NEPCO II, and that NEPCO had not demonstrated that “the firm’s continued activities in the residual fuel oil market are dependent upon the approval of exception relief for the month of September.” The administrative appeals decisions, both dated November 10, 1975, affirmed these orders. In the appeals decision addressing the August 7 order, the PEA toqk the opportunity of restating its rationale for relief underlying NEPCO I: “NEPCO asserts that once the FEA determined in the May 2 Decision [NEPCO I] that the firm should be granted exception relief in order to mitigate the hardship which accrues to it as a result of the benefits which Hess receives under the Entitlements Program, exception relief should be extended for additional periods until such time as NEPCO is no longer incurring any operating losses. The firm therefore contends that even though its financial and operating position appears to have improved since the firm submitted the original 1975 financial projections which formed the basis for the relief approved in the May 2 Order, further exception relief was warranted for the months of August and September because NEPCO is continuing to experience operating losses. “However, it is apparent that in its present Appeals, NEPCO is relying on an erroneous reading of the basis for the FEA’s May 2 Decision to grant exception relief to the firm for a limited period of three months. In NEPCO I, the FEA determined that although the firm was not ordinarily eligible to receive any benefits under the Entitlements Program, an indefinite continuation of the market environment which existed at the time and which was in part a result of the Entitlements Program would jeopardize the continuation of the firm’s residual fuel oil activities and result in NEPCO’s elimination from its historic position as a strong competitor in that market. The Decision also noted that since the market situation was in a state of flux the exception relief granted to the firm would have to be reconsidered at the conclusion of the three month period ending July 31, 1975. See NEPCO I, supra at p. 83,430. Contrary to the assertion which NEPCO makes in its present Appeals, the only reasonable inference to be drawn from the May 2 Order is that exception relief would be extended only upon a further showing by the firm that its continued viability as an ongoing business entity remained in serious jeopardy as a consequence of the FEA Regulatory Programs.” Rec. 2704 (emphasis added). NEPCO IV On October 9, 1975 NEPCO applied for an extension of the NEPCO I relief for an additional period of time “commencing with entitlements to be issued and sold in October 1975 with respect to August 1975 imports of residual fuel oil.” The FEA, in its decision and order of November 17,1975, extended exception relief for the month of November only. The agency keyed this decision to a showing, based upon financial statements as of September 30, that NEP-CO’s financial position “is considerably worse than it was when the firm filed its July 10 and August 22 exception applications”, and that cash flow problems brought about “a strong possibility . . . that NEPCO will be forced to terminate its activities in the residual fuel oil market in the absence of exception relief.” That showing was sufficient to trigger the NEPCO I philosophy of survival, while the nation’s energy policies and programs received the continuing attention of the President and the Congress. Thus the FEA concluded in NEPCO IV: “Exception relief should therefore be granted to NEPCO which will permit the firm to continue to operate as a viable, competitive force in the residual fuel oil market while the nation’s energy policies are under consideration. This result can best be accomplished by temporarily extending the exception relief which was granted to NEPCO on May 2, 1975 for the month of November. Once this nation’s energy policies and programs are established on a long-term basis, a full re-evaluation of NEPCO’s position will be necessary in the event that NEPCO seeks further exception relief.” Rec. 2933. NEPCO prosecuted an administrative appeal, contending that NEPCO I-formula relief should have been granted for October and December of 1975 and January of 1976, in addition to November, 1975. The appeals decision, dated February 17, 1976, rejected that contention and affirmed the relief limited to November. The agency’s rationale was restated: “It should be emphasized that NEPCO is not ordinarily eligible to receive any benefits at all under the Entitlements Program, and the exception relief which was afforded to the firm on May 2 and again on November 17 was not designed to eliminate the general operating losses which NEPCO has been experiencing nor to permit NEPCO to attain a favorable competitive position. See NEPCO II, supra. Instead, the FEA’s approval of exception relief in those two instances was premised on the determination that although the firm would not ordinarily receive entitlement benefits, it was necessary to accord NEPCO exceptional treatment on a temporary basis to preserve its viability during a period of uncertainty with respect to the competitive market situation and the future of the FEA regulatory programs. Relief was therefore granted to NEPCO in the May 2 Order to preserve the firm’s viability while the FEA studied the entire competitive market situation with respect to residual fuel oil imported from Caribbean refineries, and in the November 17 Order while the President and the Congress reviewed the nation’s energy policies and programs.” Rec. 2979. NEPCO V On December 3,1975 NEPCO applied for an extension of exception relief commencing with December, 1975; and (in a suggested departure from the NEPCO I formula) with entitlements to be measured by the actual number of barrels of residual fuel oil sold by NEPCO in the United States in a given month, rather than limited to 3,000,-000 barrels per month. Numerous third parties forwarded written comments to the FEA, or appeared at another public hearing. The agency’s decision and order of February 12,1976, reviewing NEPCO’s condition in the light of the familiar NEPCO I rationale, extended exceptions relief for February and March, 1976, retaining the 3,000,000 barrel per month limitation. The FEA referred to its pending consideration of “the serious problems which exist in the East Coast residual fuel oil market.” As noted supra, that consideration culminated in April, 1976 amendments to the Entitlements Program which put an end to the problem. The administrative appeal affirmed the initial order. sk * at * ^ 5k These, then, were NEPCO’s applications to the FEA, the agency’s responses, and the reasons for those responses. We turn now to the claims for relief NEPCO addresses to this Court. III. NEPCO’S CLAIMS FOR RELIEF IN THIS LITIGATION This discussion correlates the five NEP-CO orders with the claims for relief set forth in the second amended complaint. NEPCO I NEPCO has not sought judicial review of NEPCO I. NEPCO II NEPCO contends that the FEA’s decisive finding, that NEPCO’s financial condition had improved to the point where it no longer depended on exception relief for continued activities, is not supported by substantial evidence in the record (First Claim for Relief). NEPCO contends that the order is arbitrary and capricious because, in accordance with regulations, 10 C.F.R. § 205.50, the FEA imposed more stringent requirements for the granting of relief (a showing of “serious hardship or gross inequity”) than those contemplated by the FEA Act, 15 U.S.C. § 766(i) (a showing of “special hardship, inequity, or unfair distribution of burdens” (Second Claim for Relief). NEPCO contends that insofar as the FEA rendered its order on the basis of third-party data not made available to NEPCO for purposes of rebuttal, and further failed to state the extent to which such data influenced NEPCO II, the order is based on findings not supported by substantial evidence (Fifth Claim for Relief). NEPCO contends that the order is arbitrary and capricious, and not supported by substantial evidence, in that the FEA limited its consideration of NEPCO’s need for relief to a period of one month (Seventh Claim for Relief). NEPCO III NEPCO makes the same contentions in respect of NEPCO III (Third, Fourth, Sixth and Eighth Claims for Relief) that it put forward in respect of NEPCO II (First, Second, Fifth and Seventh Claims respectively). NEPCO IV NEPCO contends that insofar as NEPCO IV failed to grant relief for October, 1975, it is arbitrary and capricious and based on findings not supported by substantial evidence (Ninth Claim for Relief), vices which are equally present in the failure to grant relief for December, 1975 and January, 1976 (Tenth Claim for Relief). NEPCO V NEPCO contends that insofar as NEPCO V limited the relief granted to 3,000,000 barrels per month and failed to grant relief for December, 1975 and January, 1976, it is arbitrary and capricious and based on findings not supported by substantial evidence (Eleventh Claim for Relief). NEPCO’s Twelfth Claim for Relief, not confined to any particular FEA order, alleges generally that the exceptions regulations, 10 C.F.R. § 205.50, are arbitrary, capricious and violative of the FEA Act, 15 U.S.C. § 766(i)(l)(D), in respect of the requisite showing to obtain exception relief. This is the theory specifically pleaded against the orders in NEPCO II (Second Claim for Relief) and NEPCO III (Fourth Claim for Relief). In consequence of these contentions, the second amended complaint prays for judgment (1) declaring NEPCO II, NEPCO III, NEPCO IV and NEPCO V void to the extent that they did not grant full relief requested by NEPCO; (2) ordering the exception relief granted in NEPCO I be reinstated “in an amount at least equal to $5.3 million per month” for August, September, October and December, 1975 and January 1976; (3) remanding all challenged orders to the FEA for appropriate additional relief; and (4) declaring 10 C.F.R. § 205.50 void and without legal effect. Against this factual background, we turn to the merits of the cross motions. IV. THE CONTENTION BY EXXON THAT THE FEA LACKED AUTHORITY TO GRANT NEPCO ANY RELIEF As detailed under Point II supra, the FEA granted NEPCO some exceptions relief, albeit less than NEPCO requested. In this litigation NEPCO seeks to recover that additional relief the FEA denied. The FEA, in its cross motion for summary judgment, argues that its grant of partial relief to NEPCO constituted a proper exercise of statutory and regulatory authority. Hence, the FEA concludes, NEPCO’s claim for additional relief must be denied. Exxon, intervening in the litigation by Court order, 71 F.R.D. 454 (S.D.N.Y.1976), urges in its cross motion a wholly different basis for denial of NEPCO’s claim: the FEA’s asserted lack of statutory authority to grant NEPCO any exceptions relief. As an exercise in logic, it follows that if FEA had no authority to give NEPCO anything, it cannot lawfully give NEPCO more. The FEA and NEPCO, drawn into an unfamiliar alliance by Exxon’s argument, raise the threshold question of whether Exxon as intervenor is even entitled to make the argument. That question must be resolved first. A. The Right of Exxon to Urge the FEA's Lack of Authority. The FEA contends that the Court cannot entertain Exxon’s argument of lack of authority because Exxon’s intervention status precludes the issue; alternatively, because Exxon waived the issue by failing to plead it; alternatively, because Exxon failed to preserve the issue by administrative appeal. NEPCO endorses these contentions, and adds that it would be prejudiced “if Exxon is allowed to delay this action by litigating its belated subsidiary issue.” The FEA and NEPCO ask that Exxon be stripped of its status as intervenor. I find these arguments unpersuasive, individually and in the aggregate. The FEA and NEPCO argue, in effect, that Exxon misled the parties and the Court in its motion to intervene by failing to state its theory expressly. Had Exxon done so, the FEA speculates, “the Court’s analysis of Exxon’s intervention . would have been different.” The speculation is baseless. The Court, in granting Exxon leave to intervene, was aware that “before the FEA Exxon unsuccessfully urged the denial of all relief to NEPCO”, 71 F.R.D. at 459; hence the logical inference that the FEA might not adequately represent Exxon’s views in the litigation, a touchstone for intervention as of right under Rule 24(a), F.R.Civ.P. Exxon’s assertion before the Court of its primary contention before the FEA should come as a surprise to no one; and nothing in the Court’s opinion permitting intervention, or the proceedings prior to that opinion, foreclose the contention. On the contrary: further relief to NEPCO will cost Exxon money; Exxon wishes to assert a basis for denial of that relief which the FEA, as original party defendant, refuses to assert, and is, indeed, outraged by; the requisites of intervention under Rule 24(a) are clearly present. There is no merit to the suggestion that Exxon waived the issue by failing to plead affirmatively the FEA’s lack of authority under Rule 8(c), F.R.Civ.P. Assuming without deciding that the defense is in effect that of “illegality” or “other matter constituting an avoidance or affirmative defense”, so as to require affirmative pleading under the rule, Exxon properly invokes Rule 15(a), which permits amendment of pleadings by leave of court; “and leave shall be freely given when justice so requires.” I grant leave in the case at bar. No prejudice results to either NEPCO or the FEA. As noted, Exxon’s contention was not new, and hence not surprising. The argument is one of statutory construction, and stands or falls upon undisputed facts; no prolongation of an evidentiary hearing results from its consideration. At oral argument on the cross motions counsel for the parties were granted leave to file whatever additional briefs they desired on the issue; the FEA and NEPCO have done so. NEPCO argues, in aid of unseating Exxon as an intervenor, that Exxon should not be “allowed to delay this action by litigating its belated subsidiary issue.” No prejudicial delay appears; as noted, the question of the FEA’s authority to grant relief is one of law, determined by this Court as such, and ripe for appellate review if Exxon wishes to pursue it. Involvement with a third party pressing unwanted issues is a risk NEPCO accepted when it commenced litigation directly involving property rights of such a third party. Finally, there is no merit to the FEA’s argument that Exxon is foreclosed from raising the legal authority issue by the absence of an administrative appeal under 10 C.F.R. § 205.58. The bar of failure to exhaust administrative remedies might be arguable if Exxon sought to undo the partial relief granted by the FEA to NEPCO; but Exxon presses no such claim for relief in its pleadings, and expressly renounced such an intent at argument and in its brief. The fact of the matter is that Exxon, although disapproving, was apparently content to abide by the partial relief granted NEPCO. NEPCO having lodged a judicial challenge to the partial nature of the relief, Exxon seeks to raise the FEA’s asserted lack of authority, not to recover the awards with which it was content to live, but solely to block further awards. The doctrine of exhaustion of administrative remedies does not apply in these circumstances. “Any person aggrieved by an order issued by the FEA under this subpart may file an appeal with the FEA Office of Exceptions and Appeals or with the appropriate Regional Office in accordance with Subpart H of this part. The appeal must be filed within 30 days of service of the order from which the appeal is taken. There has not been an exhaustion of administrative remedies until an appeal has been filed pursuant to Subpart H of this part and the appellate proceeding is completed by the issuance of an order granting or denying the appeal.” For these reasons the Court will consider Exxon’s argument of lack of FEA authority on its merits. B. The Authority of the FEA to Grant NEPCO Exceptions Relief. Exxon’s contention, in essence, is that in granting NEPCO partial relief, the FEA entirely misconceived and departed from its proper statutory function. The argument must be recognized for what it is, despite the absence of a demand for affirmative relief. The Court is asked to deny to the FEA, in legal principle if not present practical effect, the power to grant NEPCO any relief. I must approach that argument with caution, in view of the Temporary Emergency Court of Appeals’ statement in Marathon Oil Co. v. FEA, 547 F.2d 1140, 1145 (Em.App.1976) that: “ . . . to deny to the agency the power in question would be inconsistent with the broad discretion and flexibility we have consistently recognized in the agency’s mandated attainment of the objectives of the EPAA.” Marathon upheld the FEA’s power to regulate credit terms, in the absence of a specific grant of statutory authority. The case at bar considers a different power: that of the FEA to preserve the economic viability of a domestic marketer by granting exceptions relief within the context of the Entitlements Program. However, those concepts of “broad discretion and flexibility” recognized in Marathon and earlier T.E. C.A. cases, 547 F.2d at 1145 n. 14, apply here, and leave Exxon with a considerable burden of persuasion. The question, so far as the briefs of counsel and the Court’s research reveal, is one of first impression. The FEA justifies its authority by “a plain meaning interpretation” of Section 7(i)(l)(D) of the FEA Act, 15 U.S.C. § 766(i)(l)(D), which at the pertinent times provided: “Any officer or agency authorized to issue the rules, regulations, or orders described in paragraph (A) shall provide for the making of such adjustments, consistent with the other purposes of this chapter, as may be necessary to prevent special hardship, inequity, or unfair distribution of burdens and shall, by rule, establish procedures which are available to any person for the purpose of seeking an interpretation, modification, rescission of, exception to, or exemption from, such rules, regulations, and orders. If such person is aggrieved or adversely affected by the denial of a request for such action under the preceding sentence, he may request a review of such denial by the officer or agency and may obtain judicial review in accordance with paragraph (2) of this subsection when such denial becomes final. The officer or agency shall, by rule, establish appropriate procedures, including a hearing where deemed advisable by the officer or agency, for considering such requests for action under this paragraph.” The agency responded to this Congressional mandate by promulgating 10 C.F.R. Part 205, Subpart D, of which § 205.50(a)(1) provides: “This subpart establishes the procedures for applying for an exception from a regulation, ruling or generally applicable requirement based on an assertion of serious hardship or gross inequity and for the consideration of such application by the FEA, except that applications for an exception from a regulation, ruling, or generally applicable requirement under Part 213 shall be based on the provisions of paragraph (a)(2) of this section.” The FEA regards the proposition as uncomplicated and straightforward. The agency set up the Entitlements Program to implement Congressional objectives. Amerada Hess participated in that program. Hess’ participation caused disastrous economic consequences to NEPCO as a domestic marketer of residual fuel oil, to the extent that the latter’s existence in that capacity was threatened. The FEA regarded the demise of an independent domestic marketer as inconsistent with Congressional objectives. Section 7 of the FEA Act mandated provision for “the making of such adjustments, consistent with the other purposes of this chapter, as may be necessary to prevent special hardship, inequity, or unfair distribution of burdens . . . ” NEPCO having demonstrated “serious hardship or gross inequity” under 10 C.F.R. § 205.50(a)(1), relief properly followed. In its administrative appeal from NEPCO IV Exxon argued, as it does here, that the FEA lacked statutory authority to grant NEPCO entitlement exceptions relief, the effect of which “merely exacerbates the problem” presented by the Hess advantage in the East Coast market. Rejecting that argument, the FEA said oh appeal: “The assertion that the problem which NEPCO faces is part of a larger problem involving the entire East Coast residual fuel oil market is certainly correct. In fact the FEA has specifically addressed that larger problem through a rulemaking proceeding to amend the Entitlement Program regulations. See 41 Fed.Reg. 7125 (February 12, 1976). However the FEA cannot avoid making a decision on individual applications for exception relief in which a clear case is made that FEA regulatory requirements are resulting in a serious hardship to the firm applying for relief, solely because the problem presented has larger policy implications. Under Section 7(i)(l)(D) of the Federal Energy Administration Act as implemented by the provisions of 10 CFR, Part 205, Subpart D, of the FEA procedural regulations, the FEA is directed to grant exceptions from generally applicable regulatory requirements in cases where an applicant demonstrates that relief is necessary to alleviate or prevent serious hardship, gross inequity or unfair distribution of burdens. The approval of exception relief in the November 17 Order was based on the determination that NEPCO had made a convincing showing that it had already and would continue to experience a serious financial hardship as a result of FEA regulatory requirements. Neither Exxon or Mobil has provided any material which contradicts the basis for that determination or in any way indicates that it was erroneous.” Rec. 3012. The FEA, in short, perceives a causal connection between its program and economic hardship to NEPCO, and concludes that the program’s exceptions machinery may appropriately be used to address the hardship. Counsel to the department of Energy summed it up at the argument: MR. HEISS: “. . . Well, the entitlements program in part at least created a burden on NEPCO. What could be a more appropriate mechanism or machinery by which the harm can be cured?” Tr. 82-83. Exxon contends that the exceptions mechanism is entirely inappropriate for NEPCO. Exxon’s basic argument is that the FEA in effect granted NEPCO “subsidy relief” which neither the EPA Act nor the FEA Act sanction. In Exxon’s view of the statutory and regulatory scheme, exception relief “may be granted only to relieve a firm of the direct burden of FEA regulation”; within the Entitlements Program context, exception relief is authorized “only to relieve the burden of an obligation to purchase entitlements . ,” Since NEPCO, not a domestic refiner, was under no such obligation, it follows that it is not eligible for exceptions relief. The Court concludes that Exxon’s perceptions of the statutory objectives, and the obligations of the FEA derived therefrom, are unacceptably narrow. I decline to hold that the FEA lacked the authority to redress this particular economic hardship brought about by its programs. I hold instead that application of Entitlements Program exceptions relief to NEPCO was consistent with both the intent and the structure of the governing statutes. Initially, I do not share Exxon’s perception of the NEPCO relief as “subsidy relief”. That concept, which permeates Exxon’s brief, is pejorative in nature: NEPCO’s marketing competitors, the argument runs, are unjustly compelled to make transfers from their own treasuries to that of a commercial rival. Cast in those bald terms, the concept seems wrong, even un-American: one should sink or swim unaided in a competitive, free enterprise system. The provisions for exceptions relief, however, cannot be separated from the conditions and statutes giving rise to them. The concept must be considered in the light of the reasons for its creation. The EPA Act and FEA Act constitute unusual peacetime legislative controls over industry. The Allocation Act, we are reminded, “was enacted by Congress to authorize the President to deal with the present or threatened severe economic hardships caused by shortages of imported and domestically produced crude oil, all of which constituted a ‘national energy crisis’ and a threat to the public health, safety, and welfare.” Pasco, Inc. v. FEA, 525 F.2d 1391, 1394 (Em.App.1975). Implementation of the Congressional purposes under emergency conditions was quickly perceived as “exceedingly complicated undertakings”, Condor Operating Company v. Sawhill, 514 F.2d 351, 359 (Em. App.1975), cert. den., 421 U.S. 976, 95 S.Ct. 1975, 44 L.Ed.2d 467; the FEA’s broad mandate left it with a “gargantuan task”, Pasco, supra, at 1394, which had to be swiftly accomplished. It is quite clear that all economic consequences of this rapidly constructed, complicated, innovative machinery could not be foreseen at the time of its fashioning. Precisely for that reason, Congress mandated broad and flexible exceptions relief. The case at bar demonstrates the wisdom of the mandate. Nobody foresaw the particular impact of the Entitlements Program upon the East Coast residual fuel oil market. That impact arose out of the unique status of Amerada Hess as a Caribbean-supplied but nonetheless “domestic” refiner. If we are to speak in terms of a “subsidy”, we should begin there: the participation of Hess in the program bestowed upon that company unanticipated economic advantages over its market competitors, unwelcome to all of them, potentially ruinous to NEPCO. The adverse effect upon NEPCO stemmed from the combination of Hess’s ability to participate in the program and NEPCO’s inability to do so, under the existing statutory and regulatory scheme. NEPCO’s situation could be relieved by limited participation in the Entitlements Program. It would, of course, be necessary to adjust, modify or grant an exception to the rules and regulations to permit such relief. The FEA determined that relieving NEPCO would further the purposes of the statutes. § 7(i)(l)(D) of the FEA Act requires the agency issuing “the rules, regulations or orders” which implement the statute to provide for the making of such “adjustments ” as may be necessary “to prevent special hardship, inequity or unfair distribution of burdens”; the agency is further required to establish procedures for seeking “modification” or “exception to” such rules, regulations and orders. The Court agrees with the FEA that the relief it granted to NEPCO was sanctioned by the plain meaning of the statute. Exxon would limit “exception relief” under the entitlements program to companies bearing the burden of obligation» to purchase entitlements. Relying as do all three parties in their briefs on dictionary definitions, Exxon equates an “exception” to an “exclusion” or being “taken out” of a program otherwise applicable; since NEPCO was not in the program, it cannot be excepted from it. The argument has surface appeal, if one focuses a narrow vision upon the word “exception”; an astigmatism which the FEA itself encourages by referring in its regulations only to “an exception from a regulation, ruling or generally applicable requirement . . . ” However, § 7(i)(l)(D) of the FEA Act uses a variety of broad words, such as “adjustments”, “modification”, “reeision” and “exemption”, in addition to “exception”. Furthermore, the T.E.C.A. in Delta Refining Co., supra, said of § 7(i)(1)(D) that: “. . .a careful reading of that section indicates clearly that it is a double-barreled mandate from the Congress to the administering agency to carry out two separate and distinct functions: (1) ‘provide for the making of such adjustments ... to prevent special hardship or unfair distribution of burdens’ and (2) ‘shall, by rule, establish procedures which are available to any person for the purpose of seeking an interpretation, modification, recision of, exception to, or exemption from, such rules, regulations, and orders.’ ” 559 F.2d at 1196 (emphasis added). In this Court’s view, the partial relief granted by the FEA to NEPCO may properly be regarded as an “adjustment” necessitated by “special hardship or unfair distribution of burdens.” That the entitlements program impacted adversely upon NEPCO as a domestic marketer cannot be gainsaid. No reasonable basis is suggested for limiting the FEA’s statutory ability to adjust hardships to one class of regulatory victims (domestic refiners), leaving another (domestic marketers) without remedy. On the contrary, the cases cited by Exxon speak in broader terms than Exxon’s argument would suggest. Pasco, supra, describes the purpose of the entitlements program as insuring that “all refiners and marketers shared equally in the benefits of price-controlled crude oil and the burdens of uncontrolled crude oil . . .” 525 F.2d at 1395 (emphasis added). Cities Service Co., supra, defines the program at 529 F.2d 1021: “The basic purpose of the Entitlements Program was to spread the benefit of access to old price-controlled oil and the burden of dependence on uncontrolled oil among all sectors of the petroleum industry, all regions of the country, and among all consumers of petroleum products, while retaining the incentives for increased production and anti-inflationary measures which the two-tier price system provided.” (emphasis added). The FEA granted partial relief to NEP-CO out of concern for the latter’s viability as a domestic marketer. Congressional concern for independent domestic marketers, among other sectors of the industry, is expressed throughout the statutory scheme. In sum, I am not persuaded that the FEA, extending partial relief to NEPCO, so misconceived its responsibilities that it violated the statutes. I reach precisely the contrary conclusion on the basis of the plain statutory language; and any lingering misgivings are surely assuaged by the “special attention” to the rule of deference courts must pay to this implementing agency’s interpretation of a new and complex statute. Powerine Oil Co. v. FEA, 536 F.2d 378, 385-386 (Em.App.1976); Delta Refining Co., supra, at 1194. I have considered Exxon’s other arguments and find them to be without merit. The Court rejects the contention that the FEA lacked authority to grant NEPCO any relief. V. NEPCO’S CLAIMS FOR ADDITIONAL RELIEF NEPCO’s broad attack upon the relief granted by FEA contends that the agency’s regulatory standards for exceptions relief are inconsistent with and violative of the statute; that the standards actually applied by FEA to NEPCO also violated the statute; that the FEA deprived NEPCO of administrative due process; and that the partial relief awarded was inadequate, arbitrary and capricious, and not supported by substantial evidence. We consider those arguments in order. A. The Validity of the Regulatory Standards for Granting Relief. The FEA Act, as noted, requires that the FEA provide for the making of such adjustments: “. . .as may be necessary to prevent special hardship, inequity or unfair distribution of burdens.” 15 U.S.C. § 766(i)(l)(D). Responding to that direction, the FEA set up exceptions procedures based on: “. . . an assertion of serious hardship or gross inequity . . . ” 10 C.F.R. § 205.50. NEPCO perceives a disparity in these standards, with the FEA’s language imposing an impermissibly onerous burden upon the applicant for relief. There is said to be a shift in focus from the statute’s relative concept of hardship to the regulation’s absolute concept; NEPCO finds support for its analysis in the Random House Dictionary of the English Language (1973). Government counsel rely upon their dictionary, Webster’s Third New International (1968), for the proposition that the agency’s standard is less onerous than that of the statute, not more. Just as beauty lies in the eye of the beholder, so the meaning of words may lie in the mouth of the advocate. Language has infinite subtleties and nuances. The present advocates’ battle of dictionaries led the Court to Roget’s Thesaurus-, in his introduction to the pocket edition (1946) I. A. Richards writes: “Words are astonishingly like people. They have characters, they almost have personalities — are honest, useful, obliging or treacherous, vain, stubborn . They shift, as people do, their conduct with their company.” (emphasis added). In the case at bar, NEPCO contends that the FEA’s words (“serious hardship or gross inequity”) depart from and distort the words used by Congress (“special hardship, inequity or unfair distribution of burdens”) to such a degree that the agency action cannot stand. No court has previously considered such a contention. While the FEA says the T.E. C.A. has referred to the “serious hardship or gross inequity” standard “with approval on several occasions,” citing Pasco, supra, Powerine Oil Co., supra, and Grown Central Petroleum v. FEA, 542 F.2d 69 (Em.App. 1976), none of these cases involved the present challenge to the standard, and so they cannot be said to reject NEPCO’s argument or support that of the FEA. There is no legislative history focusing particularly upon these words. It is apparent, however, that the FEA was endowed with broad discretion in fashioning exception relief. Congress mandated such relief in principle, but left its practical implementation to the executive arm. Thus the T.E.C.A. said in Powerine Oil, supra, at 384: “The determination of criteria for making adjustments or granting exception relief was left by Congress to the President, and by him to the agency administering the Act. Congress specified no tests or standards to be followed in such cases; rather, the agency was to provide an avenue for application for relief and, upon a denial of relief, the availability of administrative appellate review.” NEPCO must argue that, despite the tabula rasa discretion Congress granted the FEA in respect of “the determination of criteria for making adjustments or granting exception relief”, the agency so misconstrued the statute as to promulgate an invalid regulation in § 205.50. NEPCO bears a heavy burden of persuasion, in view of the settled rule that the agency’s regulation must be upheld “if it had any rational basis to support it.” Basin, Inc. v. FEA, 552 F.2d 931, 934 (Em.App.1977). Construing the statutory mandate for exceptions relief, the FEA fashioned the regulation in question. The agency’s construction of the statute it is charged to administer “is entitled to deference by the courts”, Basin at 934; judicial review of the appropriateness of regulations is limited. In Condor Operating Co., su