Full opinion text
OPINION MURRAY M. SCHWARTZ, District Judge. These actions were brought by several major oil companies to set aside a decision by the Department of Energy (“DOE”) awarding $63.8 million in exception relief to the 341 Tract Unit of the Citronelle Field (“Citronelle” or “the Unit”), an oil producer. The award of relief was designed to alleviate the inequity of Citronelle’s being denied the benefits of a DOE regulatory program and to induce Citronelle to initiate a major crude oil recovery project, using tertiary enhanced recovery techniques. A substantial amount of this $63.8 million came from the plaintiffs through their participation in another DOE regulatory program. Plaintiffs attack the DOE decision awarding relief as being outside the agency’s authority and not supported by substantial evidence. Both sides have moved for summary judgment, since the only relevant facts are found in the administrative record, which exceeds 13,000 pages. These motions require the Court to consider the interaction of the several federal statutes that regulated oil producers. For the reasons set forth below, plaintiffs’ motion will be granted in part, and this matter will be returned to the agency for further proceedings. I. Regulatory Background — Price Controls A. Entitlements Program To understand the energy regulatory programs that are relevant to this proceeding, a review of the history of oil price and allocation controls is necessary. The price of crude oil was regulated by DOE and its predecessors from August 19, 1973, until January 28, 1981. See generally 10 C.F.R. Parts 210-12 (1980) (repealed 1981). The price regulation system separated crude oil into three distinct categories — “old” oil, “new” oil, and “exempt” oil. In general, if the volume of oil drawn from a producing property was less than or equal to the volume produced in the base year of 1972, the oil was considered “old” oil and subject to the “lower tier” maximum price. If the property produced more than it did in 1972, the excess was deemed “new” oil and could be sold at the higher but still controlled “upper tier” price. Foreign oil and certain types of domestic oil, such as newly discovered oil or oil produced by stripper wells, were exempt from price controls and could be sold at market prices. See 10 C.F.R. § 212, Subpart D (1980); Union Oil Co. of California v. DOE, 688 F.2d 797, 800 (Temp.Emer.Ct.App.1982), cert. denied, 459 U.S. 1202, 103 S.Ct. 1186, 75 L.Ed.2d 433 (1983). This pricing system created inequities and economic distortions because some refiners, and some areas of the country, had greater access to inexpensive old oil than other refiners, who had to rely on more expensive types of oil. To remedy this problem, the Old Oil Entitlements Program was created. See generally Cities Service Co. v. FEA, 529 F.2d 1016 (Temp.Emer.Ct. App.1975) (describing Entitlements Program in detail), cert. denied, 426 U.S. 947, 96 S.Ct. 3166, 49 L.Ed.2d 1184 (1976). The purpose of the Entitlements Program was to spread equally the benefit of access to price-controlled crude oil while retaining price controls and production incentives. Under this program, each refiner had an “entitlement” each month to a certain number of barrels of old oil, the number being based on the refiner’s proportionate share of old oil. In general, if a refiner bought more old oil than it had entitlements for, the refiner would have to buy entitlements from a refiner who had not received as much old oil as it was entitled to in that month. To facilitate this transfer of money, DOE published lists of entitlements obligations each month, and refiners would buy or sell entitlements according to the list. B. Marginal Property Rule Although the Entitlements Program helped to spread the benefit of access to price-controlled oil, it did little to encourage production from existing wells. In 1976, Congress attempted to correct this problem by passing the Energy Conservation and Production Act, Pub.L. No. 94-385, 90 Stat. 1125 (“ECPA”), which gave DOE additional pricing flexibility to provide incentives to increase the production of domestic crude 011. See 44 Fed.Reg. 22,010, 22,010 (April 12, 1979). DOE used this authority to promulgate the so-called “marginal property rule” on April 12,1979. This rule authorized producers, as of June, 1979, to sell, at upper tier prices, crude oil taken from “marginal properties,” which were properties producing a low volume of oil from deep wells at high cost. Id. at 22,013-4. In July, 1980, the marginal property rule was amended, effective June, 1979, to allow larger volumes of oil taken from deeper wells to be sold at upper-tier prices. 45 Fed.Reg. 47,406 (July 14, 1980). C. Tertiary Incentive Program In addition to authorizing the marginal property rule, the ECPA also directed DOE to amend its regulations to “provide additional price incentives for bona fide tertiary enhanced recovery techniques.” 15 U.S.C. § 757(j)(l)(A). “Tertiary enhanced recovery techniques are higher cost production methods which maximize oil production from a depleting field,” and “typically include the injection of carbon dioxide, steam, or other substances in order to increase pressures in the oil reservoir and thereby promote additional production.” Union Oil Co. of California v. DOE, 688 F.2d at 800 & n. 3. DOE responded to this directive in 1978 by amending its price regulations to exempt from price controls the increased production of domestic crude oil resulting from a qualified enhanced recovery project. 43 Fed.Reg. 33,678 (Aug. 1, 1978). Starting September 1, 1978, a new category of crude oil, “tertiary incremental crude oil,” was exempt from price controls and could be sold at market prices. Union Oil, 688 F.2d at 800. This program — the “tertiary incremental program” — gave producers some incentive to undertake tertiary projects because it gave them greater revenues once oil had been recovered by the use of tertiary techniques. DOE soon realized, however, that this production incentive was inadequate to induce many producers to start tertiary projects, because tertiary projects typically involved “substantial pre-production expenses and a high risk of failure.” 44 Fed.Reg. 18,677, 18,677 (March 29, 1979). DOE therefore designed the Tertiary Incentive Program “to provide ‘front-end’ money to producers engaged in the initiation or expansion of tertiary enhanced crude oil recovery projects.” Id. Each “property” could receive up to $20 million in front-end money, although a tertiary recovery project could receive more than $20 million in benefits if the project encompassed more than one property. The mechanism used to provide front-end money for producers undertaking tertiary projects was described by the Temporary Emergency Court of Appeals in Union Oil Co. of California v. DOE, supra: Effective January 1, 1980, the Tertiary Incentive Program permitted a producer to recoup up to 75% of the “allowed expenses” it had “incurred” and “paid” in connection with a “qualified tertiary enhanced recovery project.” 10 C.F.R. § 212.78(c). Producers were permitted to self-certify their projects as “qualified” and their expenses as “incurred” and “paid,” subject to possible DOE audit. 10 C.F.R. § 212.78(d). Allowed expenses which had been incurred, paid, and reported could be recouped by selling otherwise price-controlled crude oil at uncontrolled market prices. 44 Fed.Reg. 51148, 51149 (Aug. 30, 1979). No limitations were imposed on prepaying tertiary expenses, so a producer could currently recoup prepaid expenses even though the tertiary enhanced recovery project might not be begun for a period of months or even years. 45 Fed.Reg. 40106, 40107 (Aug. 15, 1980). 688 F.2d at 800-01. To make these “front-end” revenues readily available, DOE allowed producers to sell any of their price-controlled crude oil — including oil not produced by the property where the tertiary project was located — at uncontrolled prices. “For example, a producer with a qualified tertiary project in Alabama could recertify crude oil which it produced in Texas and would otherwise have sold at price-controlled levels. In other words, the right to sell tertiary incentive crude oil at market prices accrued to a particular producer, rather than to the production from a specific property.” Three Forty One (341) Tract Unit of the Citronelle Field, 10 DOE ¶ 81,027, at 82,638 (1983) (hereinafter “Final Decision”). In addition, there were two alternative means by which producers that did not produce enough price-controlled crude oil could acquire front-end money: a producer could purchase an interest in the price-controlled crude oil of another producer and recertify it at market price, see DOE Interpretations 1980-22 and 1980-23, 45 Fed.Reg. 61,563-65 (Sept. 16, 1980); or the producer could sell a temporary interest in its tertiary project to a producer that had access to price-controlled crude. DOE Interpretation 1981- 3, 46 Fed.Reg. 27,281 (May 18, 1981). D. Exceptions Relief When Congress granted DOE the authority to promulgate this body of regulations, it also gave DOE the authority to make exceptions to any of its regulations. Section 504 of the DOE Act provides: The Secretary ... shall provide for the making of such adjustments to any rule, regulation or order ... issued under [various federal energy acts], consistent with the other purposes of the relevant Act, as may be necessary to prevent special hardship, inequity, or unfair distribution of burdens ____ 42 U.S.C. § 7194(a). This section gave DOE broad powers to correct problems caused by its vast regulatory scheme and equalize the benefits and burdens of its regulations. Although this power involves a large measure of discretion, see Bonnaffons v. DOE, 646 F.2d 548, 552 (Temp. Emer.Ct.App.1981), DOE is required to award appropriate exception relief if an applicant shows that it meets the statutory criteria of “special hardship, inequity, or unfair distribution of burdens.” Final Decision, 10 DOE at 82,647; Husky Oil Co. v. DOE, 582 F.2d 644, 652-53 (Temp.Emer.Ct. App.1978). E. Decontrol The statutory basis for the President’s discretionary authority to maintain this scheme of price and allocation controls was scheduled to expire on September 30, 1981, under the terms of the EPAA. See 15 U.S.C. § 760g. On January 28,1981, President Reagan ordered price controls on crude oil and refined petroleum products lifted and ordered DOE to “promptly take such action as is necessary to revoke the price and allocation regulations made unnecessary by this Order.” Executive Order No. 12,287, 46 Fed.Reg. 9909 (Jan. 30, 1981). DOE subsequently ruled that producers could only recover tertiary incentive expenses incurred, paid, and reported prior to March 31, 1981. 46 Fed.Reg. 12,945, 12,947 (Feb. 19, 1981). With the end of price controls, the tertiary incentive program was essentially abolished as of April 1, 1981. See 46 Fed.Reg. 20,508, 20,509 (April 3, 1981); Union Oil Co. of California v. DOE, 688 F.2d at 803. II. Factual Background A. The Citronelle Unit The Citronelle Field was discovered in 1955 at a depth in excess of 10,000 feet and was estimated to contain 319 million barrels of oil. OHA Administrative Record (“R.”) 6., Through the use of primary and secondary recovery techniques, the Field produced approximately 5,000,000 barrels of oil annually from 1957 until 1972, when production began steadily declining. R. 18. By the end of 1978, the year before Citronelle’s exception application was filed, the Field had produced approximately 110 million barrels of crude oil, but annual production had fallen to 2,400,000 barrels. R. 6, 18. This oil was drawn from depths of 10,700 to 11,500 feet using waterflood recovery techniques, and, as a result, operating costs for the Field were relatively high. R. 19. The ownership of the Field is unusual. The 341 Tract Unit of the Citronelle Field is made up of 341 contiguous forty-aere tracts located in Mobile County, Albama. R. 11. The Unit is a legal entity created by working interest owners through a “Unitization Agreement” to provide for the management and operation of the 341 tracts. R. 10-11. There are currently over 850 working interest owners and 1,500 royalty interest owners. Final Decision, 10 DOE at 82,637. The working interest owners have also entered into a Unit Operating Agreement, which contains detailed guidelines for the operation of the Unit. R. 10. The Unitization Agreement combines the individual rights of the owners in order to carry out unitized operations, but it does not transfer title to the tract or its mineral interests. R. 77. Under the Agreement, the oil produced by the entire Unit is allocated to each owner according to a tract participation formula, which assigns to each owner a Tract Percentage of Participation. R. 79-82. Each owner is entitled to sell his percentage share of the crude oil produced. R. 80. Similarly, Unit expenses are apportioned to the working interest owners according to their Percentage of Participation. R. 223. In general, royalty interest owners are not responsible for operating expenses, R. 93, although certain royalty owners must pay a pro rata share of tertiary recovery costs. R. 343-44. The actual operations of the Unit are conducted pursuant to the Unit Operating Agreement. R. 204. The Operating Agreement vests control of Unit operations in an Operators’ Committee, and makes each working interest owner an “operator” with a seat on the Committee. R. 206. The Operators’ Committee, pursuant to the Operating Agreement, employs a Unit Manager to conduct the ongoing operations of the Unit. R. 212. The Unit Manager is governed by the terms of the Unitization and Operating Agreements and by the supervision of the Operators’ Committee. R. 83. All significant decisions as to the operation of the Unit, including authorization of expenditures and new projects, must be made by vote of the Operators’ Committee. R. 96. The vote of each operator has a weight equal to his Percentage of Participation in the Unit. R. 207. The affirmative vote of seventy-five percent of the voting interest is required in order to approve any decision. Id. Such decisions may be made during a meeting of the Operators’ Committee or, if an insufficient percentage of voting interests is represented at a meeting, by poll vote. R. 208. B. Citronelle’s Application for Exception Relief On August 8, 1979, the Citronelle Unit Manager, on behalf of the working interest owners, applied to DOE for exception relief pursuant to 42 U.S.C. § 7194(a). R. 1, 4. Citronelle stated in its application that it wanted to initiate a tertiary enhanced recovery project which could yield 30 to 60 million barrels of crude oil, but that it could not pay for the substantial costs of starting a tertiary project. R. 4. It estimated that the project would “require the expenditure of about $60 million before effectiveness of the [tertiary] technique [could] be determined.” R. 5. To finance the project, Citronelle requested immediate relief from price controls, retroactive to June 1, 1979, to enable it to sell its lower-tier crude oil at market prices. R. 5-6, 1505. The application estimated that the requested relief would give the Unit approximately $25 million over the remaining 27 months of price •controls. R. 46. Citronelle proposed placing the revenues resulting from the requested relief in escrow and spending them only on a tertiary project. R. 5. Citronelle admitted in its application that its exception request was “unprecedented” because “[i]t is not predicated on the type of hardship or inequity showing that has heretofore formed the basis for relief in producer exception requests.” R. 57. The Unit alleged that the relief sought was justified because it would result in the production of a great amount of oil and thereby promote national energy policies of encouraging domestic production and reducing dependence on foreign producers. R. 4-5, 29-31. The Unit stated that it could not finance the project itself because the Unitization and Operating Agreements do not permit the Unit to borrow money or otherwise raise capital. R. 12-13. The Unit contended as of August 8, 1979, that existing programs to encourage production, such as the then-applicable marginal property rule and the tertiary incentive program, were either inapplicable or inadequate to fund this project. R. 31-35. These circumstances allegedly resulted in a “gross inequity” justifying relief because failure to grant relief would result in the frustration of a national energy objective and prevent development of a major oil field. R. 41-42. C. Regulatory Changes At the same time that its application for exception relief was pending, Citronelle was lobbying agency rulemakers to amend the marginal property rule. The rule in effect when the application was filed allowed lower tier oil to be sold at upper tier prices if, inter alia, the oil came from below 8,000 feet and the average daily production of the marginal property was less than 35 barrels. See 44 Fed.Reg. 22,010, 22,013-14 (April 12, 1979). Citronelle contended that this limitation was inequitable because its wells produced less than 40 barrels per day from depths in excess of 10,000 feet. See R. 32. Citronelle’s initial request of DOE to amend the rule was unsuccessful. See R. 1177-79. It then brought an action on July 29, 1979, against DOE which attacked the failure of the rule to include properties producing less than 40 barrels per day at depths in excess of 10,000 feet. Weathers v. DOE, No. TY-39-301-CA (E.D.Tex.); see R. 3229-36. A temporary restraining order was entered on August 24, 1979, which permitted the Unit to take advantage of the marginal property rule, but required the Unit to deposit the incremental revenues in escrow, pending DOE action. R. 3229-31. . On July 14,1980, DOE amended the marginal property rule essentially in the manner that Citronelle desired. See 45 Fed. Reg. 47,406 (July 14, 1980). The amendment was made retroactive to June, 1979, the effective date of the original marginal property rule. Id. at 47,406. This amendment enabled Citronelle to receive the full benefits of the marginal property rule, which totalled approximately $28.6 million in 1979 and 1980. R. 6018. D. DOE Decisions on Citronelle’s Application On October 8, 1980, the Office of Hearings and Appeals (“OHA”) issued a Proposed Decision and Order granting, in part, Citronelle’s request for exception relief. R. 1505. The Proposed Decision first recognized that several events had occurred since the initial application which affected Citronelle’s financial position. First, the marginal property rule had been amended with a financial benefit to the Unit of $26.6 million, net of severance taxes and base royalty payments. Proposed Decision at 5, R. 1509. Second, Citronelle had certified three tertiary recovery projects for the Unit, which would enable Citronelle to recoup up to $60 million in tertiary incentive revenues. Id. The result of these two events was that “the crude oil sales revenues available to Citronelle for its tertiary recovery program, absent any exception relief, ha[d] increased substantially.” Proposed Decision at 6, R. 1510. Even with these increased revenues, however, OHA found that exception relief was warranted, primarily because a “combination of events ... precluded Citronelle’s beginning the tertiary project at a time when it could take full advantage of the January 1, 1980 effective date of the provisions of 10 C.F.R. § 212.78(a)(2) [the tertiary incentive program].” Proposed Decision at 7, R. 1511. If the marginal property revenues had been available to Citronelle starting in June, 1979, when the marginal property rule went into effect for other producers, the Unit could have accumulated enough capital to start a tertiary recovery project by January 1, 1980, .and take full advantage of the tertiary incentive program. Proposed Decision at 8, R. 1512. In fact, soon after the marginal property rule was amended in Citronelle’s favor, OHA found, “the firm began tertiary operations.” Id. The net effect was that “Citronelle was effectively denied access to the incentive provisions of § 212.78 between January 1, 1980 and approximately September 1,1980.” Id. This “combination of events ... produced a gross inequity which warrants exception relief.” Id. OHA tailored the relief to the gross inequity it had found: “[W]e will grant an exception ... to permit Citronelle to certify production as tertiary incentive crude oil [at market prices] effective January 1, 1980, the date upon which producers were generally permitted to begin making such certifications under the tertiary incentive program.” Id. This relief would yield Citronelle $22.5 million in revenues. Id. OHA then considered the remainder of Citronelle's exception request: to recertify at market prices all price-controlled crude oil produced and sold by the Unit between June 1,1979, and December 31,1979, which would net Citronelle $15.9 million in revenues. OHA found that this additional relief was not warranted because Citronelle was going to receive approximately $49.1 million in revenues by September 30, 1981, that it could not have anticipated when it filed its application for exception relief: $26.6 million in marginal property revenues and $22.5 million in exception relief through the tertiary incentive program. Although Citronelle had asserted that it needed $74.1 million to commence a tertiary project, OHA found that the Unit only anticipated spending $46 million by the end of 1981, and additional relief was therefore unnecessary and unwarranted. Proposed Decision at 9, R. 1513. Based on these findings, OHA proposed granting in part Citronelle’s application for exception relief. The Proposed Order allowed Citronelle to certify oil sold during the period from January 1, 1980, until September 30, 1981, as “tertiary incentive crude oil” at market prices. Proposed Decision and Order at 11, R. 1515. Those revenues were required to be applied to allowable expenses of the Unit’s tertiary recovery project. Id. Citronelle was dissatisfied with this decision and filed a Notice of Objection to the Proposed Decision and Order on October 10, 1980. R. 1522. On October 31, 1980, the Unit moved for immediate issuance of an interim decision and order. R. 1532. This motion asked OHA to make immediately effective, in modified form, the exception relief recommended in the Proposed Decision and Order by issuing an Interim Decision and Order. R. 1533. An immediate interim decision was needed because the Unit, for tax reasons, had to decide before the end of the year whether to proceed with the project and, consequently, whether to distribute to the owners the marginal property revenues, which could otherwise be used for the tertiary project. R. 1534-36. In support of its request to modify the Proposed Decision and Order, the Unit contended that “the funds available to it for use in the tertiary project are far less than the $49.1 million indicated in the Proposed Decision and Order” because it “does not take into account the substantial Windfall Profit Tax and income tax liabilities that have accrued against those funds as a direct and unavoidable consequence of the time that has passed during which the Unit was denied access to the incentive tertiary program.” R. 1540. The actual amount available to the Unit, according to its motion, was between $31.1 and $36.6 million, which was far less than the $49.1 million estimated in the Proposed Decision or than the $60 million needed for the project. R. 1535. Citronelle therefore requested that OHA expand the proposed relief in order to remedy more fully the gross inequity found in the Proposed Decision and give the Unit enough funds to undertake the project. R. 1549. In response to Citronelle’s motion, OHA issued an Interim Decision and Order on December 15,1980. The 341 Tract Unit of Citronelle Field, 7 DOE ¶ 82,523 (1980) (hereinafter “Interim Decision”), R. 1830. OHA rejected the Unit’s request to expand the relief granted in the Proposed Decision and Order, stating: “We are unable to conclude at this stage in the proceeding that the full amount of exception relief requested by the Citronelle Unit is necessary or appropriate at this'time.” 7 DOE at 85,-057. OHA did find, however, that public interest considerations warranted granting Citronelle’s request for interim relief. Id. The interim relief approved, to take effect immediately, was essentially the same relief suggested in the Proposed Decision, with two minor modifications. Id. OHA recognized, however, that “the exception relief [granted to Citronelle] does not provide the full measure of financing that the Citronelle Unit claims is necessary to undertake the project.” 7 DOE at 85,-058 (footnote omitted). To remedy this deficiency, OHA proposed, sua sponte, an alternate form of relief for the Unit. The proposed relief would “allow the Citronelle Unit to fund the project by raising through recertification of the price-controlled crude oil produced from the unit $60 million in net revenues,” without limit on date of prior production, “provided that the necessary [ownership] interest agree to undertake the proposed project.” Id. This relief was conditioned on the Unit’s agreement to waive access to the tertiary incentive program and repay any tertiary incentive revenues they had received through the program. In addition, Citronelle was required to agree to repay the $60 million to DOE if the enhanced recovery project is successful. Id. at 85,058-59. The $60 million in revenues was also required to be placed in a special interest-bearing escrow account, and DOE retained the power to approve expenditures. Id. at 85,062. The justification for the alternate relief, OHA found, was that Citronelle was unable to obtain enough capital from either internal or external sources to finance the tertiary project. Id. at 85,058. Without financing, the Unit working interest operators would not consent to undertaking the project. Id. The alternate relief, in the amount required to fund the initial stages of the project, would induce the working interest owners to approve the project. The initiation of the project, in turn, would “achieve the ... objectives of the tertiary recovery program” and significantly enhance the production of domestic crude oil. Id. at 85,058-59. The costs of financing this project would be borne by domestic refiners through the Entitlements Program and, ultimately, by consumers. Id. The Unit was given ten working days to decide which of the two forms of relief it wanted. Id. at 85,059. On December 29, 1980, Citronelle notified OHA by letter that it elected the alternate relief and consented to the conditions placed on the award of relief. R. 1865. On December 31, 1980, OHA issued a second Interim Decision that acknowledged Citronelle’s choice and ordered the alternate relief described in the December 15 Interim Decision. The 341 Tract Unit of the Citronelle Field, 7 DOE 1181,140 (1980). Citronelle immediately recertified at market prices price-controlled crude oil it had produced and sold from February, 1977, to February, 1980. R. 1894,1905. This recertification required Gulf Oil Corporation, which purchased 98% of the Unit’s crude oil production, Interim Decision, 7 DOE at 85,058, to pay $63.8 million to Citronelle. R. 1893-94,1905. Under the terms of the Interim Order, Citronelle deposited these revenues in an escrow account. Gulf’s entitlements obligation changed by $63.8 million so that it received the $63.8 million through sale of entitlements. The result of this recertification and change in Gulf’s entitlements was that the $63.8 million cost was shared by all participants in the Entitlements Program, including plaintiffs and Gulf. See R. 1893-94; Interim Decision, 7 DOE at 85,058; 46 Fed.Reg. 10,191, 10,195 (Feb. 2, 1981). At the same time, major refiners, including many of the plaintiffs, were served with copies of the Interim Decision and Order and offered an opportunity to comment. R. 1880. They filed notices of ob-. jections and were granted an OHA hearing on the matter. The presiding OHA Hearing Officer told the parties that the December 31 Interim Order was to be considered a modification of the October 8 Proposed Decision and Order, and that they would have an opportunity to file statements of objection and other appropriate motions. R. 2857-58. On March 2, 1981, Exxon and others filed their Statement of Objections to the Interim Decision and moved for discovery and an evidentiary hearing. R. 3314, 3487. On June 12, 1981, OHA granted Exxon’s Motion for Discovery in part and scheduled an evidentiary hearing to receive testimony on two issues: “(a) the efforts and ability of the Citronelle Unit to obtain the consent of the working interest owners to agree to implement the tertiary recovery project in the absence of exception relief; and (b) the ability of the Citronelle Unit to obtain financing for the tertiary recovery project in the absence of exception relief.” Exxon Co., U.S.A., 8 DOE ¶ 82,589, at 85,357 (1981). These two issues were identified as “two essential material factual issues that remain in dispute” because they were critical ingredients of the approval of exception relief. Id. at 85,356. OHA held the requested evidentiary hearing on September 9 and 10, 1981. R. 10,368-10,806. In addition to testimony elicited at the hearing, each side submitted documentary evidence and post-hearing briefs, and each side presented oral argument at a November 19, 1981, hearing. R. 11,565-11,653. Although the record was essentially complete by November, 1981, OHA did not issue its Final Decision and Order until January 31, 1983. Three Forty One (341) Tract Unit of the Citronelle Field, 10 DOE ¶ 81,027 (1983). OHA stated that it had reviewed the entire record to determine if the relief granted in the December 15 and 31, 1980, Interim Decisions was appropriate. Final Decision, 10 DOE at 82,644. OHA analyzed the evidence presented in connection with the evidentiary hearing and found that the Unit would not have implemented the tertiary project unless it received exception relief. 10 DOE at 82,660, 82,666. OHA also found that Citronelle could not obtain sufficient financing to induce the working interest owners to undertake the project. Id. OHA concluded that Citronelle had met its “burden of demonstrating that it experienced a gross inequity as a result of its inability to obtain benefits under the Tertiary Incentive Program.” 10 DOE at 82,-644; see 10 DOE at 82,666. Accordingly, OHA found that the' exception relief granted to Citronelle in the Interim Decisions was “fully warranted in order to provide the appropriate incentives to enable the Citronelle Unit to undertake the enhanced crude oil recovery project on the Citronelle Field.” 10 DOE at 82,671. The accompanying Order reaffirmed, with some additions, the December 31, 1980, Interim Order. E. This Lawsuit This action was initiated before OHA issued the Final Decision. On January 22, 1981, Exxon Corporation and other major oil companies instituted an action (“the Exxon suit”) against the Department of Energy and others to challenge the December 31, 1980, Interim Decision and Order granting Citronelle’s request for exception relief. Citronelle immediately applied to intervene as a defendant to defend the relief it received. On January 30, 1981, the parties stipulated to stay the action pending the issuance of a final decision by DOE. Dkt. 10. As part of that stipulation, the parties in the Exxon suit agreed to establish a special interest-bearing escrow account separate and apart from the escrow account established to fund Citronelle’s tertiary recovery project. Citronelle agreed to deposit into the special escrow account an amount equal to plaintiffs’ additional entitlement obligations arising from the December 31, 1980, Interim Decision. On March 10, 1981, plaintiffs Texaco, Inc., Atlantic Richfield Company, and Chevron, USA, Inc. filed an essentially identical suit (“the Texaco suit”) against the Department of Energy to contest the December 31, 1980, Interim Decision and Order. After a request for a temporary restraining order was denied, the parties in the Texaco suit agreed to stay the action until the Final Decision issued. The Texaco parties, however, did not establish a special escrow account for this litigation. After the Final Decision was issued, the parties in the Exxon action filed cross motions for summary judgment and extensive supporting materials. The parties in the Texaco action also filed cross motions for summary judgment and adopted the arguments made in the briefs in the Exxon action. After lengthy oral argument and additional briefing, those motions are ready for decision. III. Analysis A. Standard of Review The standard of judicial review of DOE decisions is set forth in section 211(d)(1) of the Economic Stabilization Act of 1970. It provides: [N]o order of [DOE] shall be enjoined or set aside, in whole or in part, unless a final judgment determines that such order is in excess of the agency’s authority, or is based upon findings which are not supported by substantial evidence. 12 U.S.C. § 1904 note. As interpreted by the Temporary Emergency Court of Appeals in light of administrative law principles, this standard requires that a district court give “great deference” to agency action on requests for exception relief. See, e.g., City of Long Beach v. DOE, 754 F.2d 379 at 386 (Temp.Emer.Ct.App.1985); Powerine Oil Co. v. FEA, 536 F.2d 378, 386 (Temp.Emer.Ct.App.1976); Pasco, Inc. v. FEA, 525 F.2d 1391, 1404 (Temp.Emer.Ct. App.1975); Husky Oil Co. v. DOE, 582 F.2d 644, 653 (Temp.Emer.Ct.App.1978); Bonnaffons v. DOE, 646 F.2d 548, 550, 552 (Temp.Emer.Ct.App.1981). The reason for this deference is that “Administrative decisions based upon analysis of the data and information submitted on applications for exception relief require the application of administrative expertise.” Pasco, Inc. v. FEA, 525 F.2d at 1404; see also City of Long Beach v. DOE, supra, at 386. This principle also requires this Court to “show ‘great deference to the interpretation given [a] statute by the officers or agency charged with its administration;’ and ‘when the construction of an administrative regulation rather than a statute is in issue, deference is even more clearly in order.’ ” Union Oil Co. of California v. DOE, 688 F.2d 797, 807 (Temp. Emer.Ct.App.1982) (quoting Udall v. Tallman, 380 U.S. 1, 16, 85 S.Ct. 792, 801, 13 L.Ed.2d 616 (1965)), cert. denied, 459 U.S. 1202, 103 S.Ct. 1186, 75 L.Ed.2d 433 (1983); see also City of Long Beach v. DOE, supra, 385, 386; General Crude Oil Co. v. DOE, 585 F.2d 508, 515 (Temp.Emer.Ct. App.1978), cert. denied, 440 U.S. 912, 99 S.Ct. 1226, 59 L.Ed.2d 461 (1979); Husky Oil Co. v. DOE, 582 F.2d at 653. This deference to agency interpretations of statutes and regulations is not without limits, for a court cannot defer to an interpretation which is plainly erroneous or inconsistent with the statutes or regulations. See Koch Refining Co. v. DOE, 658 F.2d 799, 802-03 (Temp.Emer.Ct.App.1981); Tenneco Oil Co. v. FEA, 613 F.2d 298, 302 (Temp.Emer.Ct. App.1979). To overcome the deference given to DOE decisions, plaintiff has the burden of proof, Powerine Oil, 536 F.2d at 387, and must make a “clear showing” that the decision exceeds the agency's authority or is based on findings not supported by substantial evidence. Bonnaffons v. DOE, 492 F.Supp. 1276, 1281 (D.D.C.1980), aff'd, 646 F.2d 548 (Temp.Emer.Ct.App.1981); see New England Petroleum Corp. v. FEA, 455 F.Supp. 1280, 1296 (S.D.N.Y.1978). It is indicative of the difficulty of making this showing that no court has overturned an agency grant of exception relief as being in excess of its authority. B. OHA’s Authority Plaintiffs argue that the Final Decision and Order was beyond OHA’s authority to award exception relief, as defined by statutes and regulations. OHA found that Citronelle suffered a “gross inequity” because anomalous circumstances prevented Citronelle from receiving the regulatory benefits of the Tertiary Incentive Program. Final Decision, 10 DOE at 82,650. Without effective access to tertiary incentive revenues, OHA also found, Citronelle “would be unlikely to undertake [a] tertiary project with the result that important national energy objectives would be frustrated.” 10 DOE at 82,651. Plaintiffs allege that each of these conclusions is erroneous and that the award of exception relief is therefore beyond DOE’s authority. The power to make adjustments to regulations in order to prevent “special hardship, inequity or unfair distribution of burdens” has existed ever since price controls were first enacted. See Economic Stabilization Act of 1970, § 203, 12 U.S.C. § 1904 note; 15 U.S.C. § 766(b); 42 U.S.C. § 7194. After establishing the three statutory criteria, Congress left it to the agency’s discretion to define them further. For example, in 1976, Congress directed the Federal Energy Administration (“FEA”), DOE’s predecessor, to “establish criteria and guidelines by which ... special hardship, inequity, or unfair distribution of burdens shall be evaluated.” ECPA, § 104, 15 U.S.C. § 766(b). The Senate Conference Report makes clear that the purpose of the guidelines was to “assist applicants in making presentations to the agency” and not to limit the flexibility of the agency in awarding exception relief. It is not the intention of the conferees ... that these provisions require the FEA to anticipate all situations in which relief may be appropriate in the future, since the exceptions process is designed in substantial measure to resolve factual situations which could not have been and were not contemplated at the time the general statutory or regulatory programs were adopted. S.Conf.Rep. No. 1119, 94th Cong., 2d Sess. 60, reprinted in 1976 U.S.Code Cong. & Ad.News 2005, 2027, 2037. In response to this directive, the FEA promulgated the Exceptions and Appeals Guidelines on November 18, 1976. See 7 Energy Mgmt. (CCH) ¶ 80,003-80,046. Although the exceptions power has been largely self-defined, Congress did make its dissatisfaction known when the agency was interpreting its authority too narrowly. When Congress established the Department of Energy in 1977, it granted DOE the same power to grant exception relief as had been exercised by the FEA. Compare 42 U.S.C. § 7194 (exception relief power of DOE) with 15 U.S.C. § 766 (exception relief power of FEA). Congress emphasized, however, that it was dissatisfied with the FEA’s narrow interpretation of its power to make adjustments. The criteria for adjustments included in both the House and Senate bills are identical to those included within the original Federal Energy Administration Act of 1974. Their reenactment, however, should not be taken as a validation of FEA’s narrow application of the standards____ [T]he standards specified by Congress [must] be fully and accurately applied, with each criterion given its separate and intended meaning. The Managers want to emphasize that adjustments should be granted, consistent with the other purposes of the relevant Acts, whenever an applicant meets any one of the three grounds for relief, and that relief ... should be of the degree and duration necessary to alleviate the special hardship, inequity, or unfair distribution of burdens. H.R.Conf.Rep. No. 539, 95th Cong., 1st Sess. 84-85, reprinted in 1977 U.S.Code Cong. & Ad.News 854, 925, 955-56. This review of the legislative history of DOE’s authority to grant exception relief demonstrates that Congress intended DOE to have broad powers, within the confines of the statutory language, in order to enable DOE to respond to changing circumstances and effectuate the purposes of federal energy statutes. Federal courts ruling on appeals from exception relief decisions have generally upheld DOE exceptions decisions and have only reversed the agency when it failed to award complete relief to an applicant that met the statutory standards. See, e.g., Twin City Barge & Towing Corp. v. Schlesinger, 603 F.2d 197, 208-10 (Temp.Emer.Ct.App.1979); Husky Oil Co. v. DOE, 582 F.2d 644, 653 (Temp. Emer.Ct.App.1978); New England Petroleum Corp. v. FEA, 455 F.Supp. 1280 (S.D. N.Y.1978); Amoco Oil Co. v. DOE, 490 F.Supp. 1016 (D.D.C.1980). In Bonnaffons v. DOE, 492 F.Supp. 1276 (D.D.C.1980), aff'd, 646 F.2d 548 (Temp. Emer.Ct.App.1981), for example, Shell Oil Company attacked an OHA decision ordering Shell, pursuant to a grant of exception relief, to supply gasoline to a Puerto Rican distributor and purchase gasoline from Puerto Rican refiners. The District Court found that “Congress has repeatedly recognized that an exceptions process, by its very nature designed to resolve unforeseen or unforeseeable factual situations in a complex, technical and highly volatile field, must remain open ended. Although the agency has promulgated regulations and guidelines to assist in the review of exception applications, even the general language of these administrative aids is not meant to anticipate all possible forms of appropriate relief.” 492 F.Supp. at 1280 (footnotes omitted). Judge Gesell found it “insignificant” that the agency lacked express authority to order Shell to purchase gasoline, because the order was consistent with statutory goals and not prohibited by any statute or regulation. 492 F.Supp. at 1281. He concluded: “The fact that the precise form of relief granted was unusual and perhaps unprecedented does not carry it beyond the legitimate scope of agency authority.” 492 F.Supp. at 1282 (footnote omitted). On appeal, the Temporary Emergency Court of Appeals upheld the lower court’s broad definition of the agency’s powers to award exception relief, including the power to act without express authority, even though the court recognized that the agency’s authority in this situation was “problematic.” 646 F.2d at 552. The primary criteria for the exercise of OHA’s exceptions power, other than these court decisions and the statutory standards, are the Exceptions and Appeals Guidelines. 7 Energy Mgmt. (CCH) ¶ 80,-003-80,046. The Guidelines “provide a summary of the standards which [DOE] has consistently applied to its consideration of the wide range of exception applications which it has received.” 7 Energy Mgmt. (CCH) ¶ 80,004. Although they contain only “broad, general standards,” id., and are not to be exceptions power, other than these court decisions and the statutory standards, are the Exceptions and Appeals Guidelines. 7 Energy Mgmt. (CCH) H 80,-003-80,046. The Guidelines “provide a summary of the standards which [DOE] has consistently applied to its consideration of the wide range of exception applications which it has received.” 7 Energy Mgmt. (CCH) H 80,004. Although they contain only “broad, general standards,” id., and are not to be applied literally, see Husky Oil Co. v. DOE, 582 F.2d at 651, the Guidelines do clarify the statutory standards which applicants for exception relief must satisfy. The Guidelines specify two situations in which OHA will find that a “gross inequity” exists. First, OHA will find gross inequity “where the application of a specific regulatory provision to a particular factual setting significantly frustrates the realization of a major national energy objective.” 7 Energy Mgmt. 1180,006. This standard requires OHA to “weigh competing policy objectives and seek to reconcile them by determining the optimal balance in the particular case.” Id. Second, “[t]he FEA has also approved exception relief on grounds of gross inequity where a person is adversely affected in a significant manner as a result of the application of a regulatory provision whose purpose has been seriously distorted by anomalous circumstances.” Id. An applicant need only satisfy one of these two standards in order to show that a gross inequity exists. See id.; Twin City Barge & Towing Corp. v. Schlesinger, 603 F.2d at 201. Plaintiffs allege that OHA’s finding that these standards were satisfied was erroneous. First, plaintiffs allege that important national energy objectives were not frustrated by the application of the tertiary incentive program (“TIP”) regulations to Citronelle’s circumstances. They stress the TIP had certain limited objectives and that the exception relief awarded to Citronelle was inconsistent with those objectives. According to plaintiffs, the TIP was intended to give producers a limited amount of “front-end” money to evaluate the feasibility of a tertiary project. Plaintiffs argue that DOE chose not to eliminate all risks inherent in a tertiary project and not to make eligibility for relief in the program depend upon the financial circumstances of the producer. Moreover, plaintiffs state, DOE limited the amount of available TIP revenues to $20 million per property in order to limit the scope of the TIP. Plaintiffs’ argument misconstrues the most significant purposes of the TIP. Congress identified tertiary projects as deserving “high priority,” but did not design an incentive program itself, because it recognized that “any statutory classification is likely to be either so narrowly stated as to exclude important emerging technologies or so broadly stated as to create a loophole of undiscernible proportions.” S.Conf.Rep. No. 1119, 94th Cong., 2d Sess. 71, reprinted in 1976 U.S.Code Cong. & Ad.News 2027, 2047. Accordingly, Congress gave DOE “greater flexibility to provide for such incentives,” id., through the following directive: “[DOE] shall promulgate such amendments to [price regulations] as shall ... provide additional price incentives for bona fide tertiary enhanced recovery techniques.” 15 U.S.C. § 757(j)(l). In promulgating the TIP, DOE was required to effectuate this directive. The regulatory limitations identified by plaintiffs were merely the means that DOE chose to achieve the statutory end, and not the end itself. Even assuming that the grant of exception relief to Citronelle was inconsistent with the limitations imposed by the TIP regulations, it was within OHA’s authority to prevent the frustration of a major national energy objective — promoting tertiary projects to increase domestic crude oil production — at the expense of those regulatory limits. Plaintiffs’ argument also overlooks the intended function of the regulatory limitations of the TIP. The intent of the rule-makers was explained when the final regulations were promulgated: This incentive is intended to provide producers with the financing necessary to evaluate the feasibility of utilizing [tertiary] techniques in situations that involve a high investment risk. In the event of a favorable evaluation, we believe a producer should be able to secure the financing necessary to enable it to continue the project. Accordingly, we have decided that a limit of twenty million dollars should be placed on the total amount of recoupable allowed expenses with respect to a particular property. 44 Fed.Reg. 51,148, 51,150 (Aug. 30, 1979) (footnote omitted). The twenty million dollar cap was chosen because DOE believed that that amount was sufficient to enable producers to evaluate the feasibility of a tertiary project and convince investors that it was a prudent investment. See 44 Fed. Reg. 18,677, 18,679 (March 29, 1979). By giving producers enough front-end money, DOE subsidized producers through the high-risk early phases of a tertiary project, when investors presumably found it uneconomic to invest in tertiary projects. This description of the functions of the tertiary incentive program regulations demonstrates that the relief awarded to Citronelle was in fact consistent with the functions and goals of the TIP. As is explained at greater length below, OHA found that Citronelle could not undertake the tertiary project without exception relief, because neither internal nor external sources of financing were available to pay for the initial, high-risk phases of the project. The award of exception relief was intended to cover the initial costs of the project, up to the point where the effectiveness of tertiary techniques could be determined, and not to cover the entire cost of the project. See Final Decision 10 DOE at 82,640, 82,666; see also R. 10,830 (Citronelle estimate that project would cost $133 million, not including project operation and maintenance costs). In addition, the regulatory requirement that producers prepay expenditures instead of receiving front-end money directly was not violated by DOE’s establishment of an escrow account for Citronelle. The use of an escrow account for tertiary project expenditures is not intrinsically different than the manner in which larger producers used TIP revenues: “Many energy companies were also in a position to make use of the ‘in-house’ expenditures and prepayment provisions of the Tertiary Incentive Program and thereby receive and keep funds that can earn interest for a number of years before being expended.” Final Decision, 10 DOE at 82,640. In this respect, the escrow account put Citronelle on equal footing with larger companies. Thus, the grant of exception relief is consistent with the general limitations of the TIP and is not, as plaintiffs argue, a new regulatory program created for the exclusive benefit of the Cirtonelle Unit. More importantly, the award of relief was consistent with the primary purpose of the TIP: to encourage the development of tertiary recovery projects and thereby increase domestic production of crude oil. It is not the province of this Court to second-guess DOE in its balancing of federal energy objectives and determination to advance one at the possible expense of others. See Bonnaffons v. DOE, 646 F.2d at 552-54; New England Petroleum Corp. v. FEA, 455 F.Supp. at 1298-99. DOE acted within its authority in determining that Citronelle’s failure to receive TIP benefits and failure to undertake a tertiary project would frustrate a major national energy objective. Having made this finding, DOE had the authority to grant Citronelle exception relief. Plaintiffs also make the separate but related argument that OHA could not award Citronelle more than $20 million in exception relief because that amount was the maximum Citronelle could receive from the TIP. Plaintiffs allege an applicant for exception relief cannot receive more in relief than the amount it would have realized if it had fully participated in the program from which an exception was sought. In support of their argument, plaintiffs cite Energy Cooperative, Inc., 10 DOE ¶ 81,017 (1983). In Energy Cooperative, the applicant sought relief under the Crude Oil Buy/Sell and Entitlements Programs, both of which were designed, at least in part, to give refiners equitable access to crude oil. See 10 DOE at 82,585-86. DOE found that the award of relief “must therefore be equal to the financial benefit which ECI would have realized if it had possessed access to price-controlled crude oil in the same proportion as the average refiner in the United States.” Id. at 82,598. This statement, upon which plaintiffs rely, means that an award of relief should be matched to the primary goals of the program and should remedy the inequity by placing the applicant in the same position as similar entities. The award of relief to Citronelle was consistent with these principles. As was discussed in more detail above, Citronelle’s award of relief was consistent with the goals of the TIP, just as ECI’s award was required to be consistent with the goals of the Entitlements Program. The $20 million limit was not a primary purpose of the program, and DOE can make an exception to such a limit to promote more important goals. Moreover, OHA found that other oil producers in Citronelle’s situation could have become eligible for more than $20 million in relief: The Tertiary Incentive Program could readily be utilized by firms that had a controlling interest in a number of contiguous properties. Such companies were then able to initiate tertiary projects on a field-wide basis. Therefore, these firms could multiply $20 million in regulatory benefits by the number of properties involved in the field-wide tertiary project. A number of tertiary projects sponsored by the larger companies were eligible to receive substantially in excess of $20 million. Final Decision, 10 DOE at 82,643; see also 10 DOE at 82,640-41. There is evidence in the record that other producers certified multiple tertiary projects on the same field and thus became eligible to receive more than $20 million in TIP benefits. See, e.g., R. 13,042 (Amoco certified four projects on one field); R. 13,048 (Texaco certified three projects on one field). Although Citronelle applied to have three separate projects certified, OHA apparently treated Citronelle as one property. See Proposed Decision, R. 1509 & n. 3; R. 1454; R. 13,022-23. Nonetheless, it is evident from the passage quoted above and the similar one quoted in the margin that OHA believed a larger oil company developing a similar field could qualify for more than $20 million in benefits for the same tertiary project. Thus, the award of more than $20 million in exception relief is consistent with the principle that applicants can be put in the same position as similarly-situated entities. See Twin City Barge & Towing Corp. v. Schlesinger, 603 F.2d 197, 202 (Temp.Emer.Ct.App.1979). Plaintiffs also allege that DOE incorrectly found that a gross inequity existed because of the “anomalous and unique situation that occurred which prevented the Citronelle Unit from participating in the Tertiary Incentive Program.” Final Decision, 10 DOE at 82,648. Plaintiffs make three attacks on this finding: 1) Citronelle’s circumstances cannot be considered anomalous, primarily because the Unit informed the TIP rulemakers of their circumstances and the rulemakers did not make allowances in the rule for their circumstances; 2) Citronelle was not barred from participating in the TIP because they did receive some benefits from the program; 3) even if they were barred from the program, the TIP regulations did not cause the inequity. Each of these contentions will be examined in turn. First, there is sufficient evidence in the record to support OHA’s conclusion that Citronelle’s situation was anomalous or unusual. Citronelle is unusual among oil producers in its ownership structure, with control of the Unit vested in approximately 850 working interest owners, and less than 15% of the ownership interest controlled by major oil companies. R. 4, 12. As a result of this ownership structure, as defined by the Unitization Agreement and the Unit Operating Agreement, R. 62-98, 199-235, the Unit has difficulty undertaking such ordinary business activities as raising capital internally, retaining revenues, and obtaining loans. See R. 12-13. The proposed tertiary project itself is unusual because of the magnitude of the initial investment required and the large amount of oil that would be produced if the project is successful. R. 1511. Finally, Citronelle was denied the benefits of the marginal property rule, apparently wrongfully, which prevented Citronelle from using marginal property revenues to start a tertiary project. See R. 1512. DOE properly found this combination of circumstances and events to be anomalous enough to warrant exception relief. See R. 1512; Interim Decision, 7 DOE at 85,056; Final Decision, 10 DOE at 82,639, 82,648. Plaintiffs do not argue at length against this finding. Instead, they aver that because Citronelle informed DOE of its unusual facts during the TIP rulemaking proceeding, and DOE declined to modify the rule in favor of Citronelle, “those same facts cannot later be said to have been unanticipated and cannot later form the basis for a finding of anomalous circumstances.” Plaintiffs’ Reply Br. at 10. This Court need not consider this argument, however, because plaintiffs did not raise it before OHA. It is not the province of a reviewing court to consider arguments which an administrative agency never had reason to consider. City of Long Beach v. DOE, 754 F.2d 379 at 391 (Temp. Emer.Ct.App.1985); Tenneco Oil Co. v. DOE, 475 F.Supp. 299, 307 (D.Del.1979); Unemployment Compensation Commission v. Aragon, 329 U.S. 143, 155, 67 S.Ct. 245, 251, 91 L.Ed. 136 (1946). Plaintiffs’ second contention is that Citronelle was not barred from participating in the TIP, because Citronelle could, like any other producer, obtain access to the benefits of the TIP. In fact, plaintiffs note, Citronelle did qualify for approximately $1.1 million in TIP benefits. See R. 3700, 12,250. This fact, however, has little meaning by itself. DOE found that the regulatory incentives of the TIP were not well structured for providing incentives to Citronelle. Final Decision, 10 DOE at 82,-640. The problem addressed by the grant of exception relief was that the TIP did not give Citronelle adequate incentives to undertake its tertiary project, and thus failed to achieve the purpose intended by Congress. The fact that Citronelle received a small incentive does not mean that the TIP gave it adequate incentives. Plaintiffs’ more general assertion is that Citronelle could participate in the same manner as other producers. DOE properly found, however, that Citronelle was not similar to other producers, and that those dissimilarities prevented the Unit from making full use of the TIP. Final Decision, 10 DOE at 82,640. The typical tertiary project was controlled by an energy company, which had the financial resources to raise front-end capital, spread its risks among several projects, and prepay expenses to a subsidiary company. Id. In addition, a typical producer had adequate access to other price-controlled crude oil from unrelated properties so that it could always recertify enough price-controlled oil as tertiary incentive oil to fund its tertiary expenses. Id. Citronelle’s ownership structure prevented it from raising capital, R. 12-13, and it did not own a subsidiary to which it could prepay expenses. Moreover, Citronelle lacked access to other price-controlled crude oil and could not spread the risk by investing in other tertiary projects. These differences limited Citronelle’s ability to undertake a tertiary project when the TIP began. Without these differences, Citronelle would have been able to obtain access to a greater amount of TIP benefits, and would have had the financial incentive to undertake a tertiary project. Thus, in practical terms, Citronelle did not have equal access to TIP benefits. Plaintiffs’ third argument is that because Citronelle’s difficulties were not caused by any DOE regulation, exception relief is not warranted. In support of their argument, plaintiffs refer to the general principle, established by prior DOE decisions and the Guidelines, that exception relief is only warranted if the applicant shows that the inequity it suffers is caused by a DOE regulatory requirement. See Wallace & Wallace Chemical & Oil Corp., 2 FEA 11 80,655; Exceptions and Appeals Guidelines, 7 Energy Mgmt. (CCH) 1180,-006. Plaintiffs’ argument has superficial appeal, because no specific or identifiable regulation caused the inequity suffered by Citronelle. DOE has recognized, however, that the principle of causality, originally conceived for DOE programs that impose regulatory burdens, has a different meaning for DOE programs designed to provide participants with affirmative regulatory benefits. See Dow Chemical U.S.A., 8 DOE ¶ 81, 01 (1981); Union Oil Co. of California, 9 DOE ¶ 81,008; New England Petroleum Corp. v. FEA, 455 F.Supp. 1280, 1297-99 (S.D.N.Y.1978); Final Deci sion, 10 DOE at 82,650-51. The failure of an applicant to receive a generally available regulatory benefit may result in the fru