United States v. Exxon Corp.

773 F.2d 1240

• Court: Temporary Emergency Court of Appeals
• Decided: July 1, 1985
• Docket: Nos. DC-91 to DC-100
• Status: Published

Opinions

WESLEY E. BROWN, Judge.

I. STATEMENT OF THE CASE

These appeals arise from an action filed in the District of Columbia by the United States against the defendant-appellant, Exxon Corporation, pursuant to the provisions of Sections 208(b), 209, of the Economic Stabilization Act of 1970, 12 U.S.C.A. Section 1904 note.¹ (Hereafter, ESA)

The United States sought civil penalties and restitution from Exxon for overcharges which occurred in an unitized field known as the “Hawkins Field Unit,” (HFU) located near Tyler, Texas. It was claimed that the overcharges resulted from miscalculations of “old” and “new” oil within HFU from January, 1975, until the end of price controls in January, 1981.

Upon cross motions for summary judgment, the District Court found that Exxon had violated the two-tier oil price regulations set out in 10 CFR Sections 212.73, 212.74 (1975). United States v. Exxon Corp., 561 F.Supp. 816 (D.D.C.1983).²

Although Exxon did not own all of the production in HFU, the Court found that it, as Operator, had caused, and was responsible' for, the violations, and that it was therefore liable, in restitution, for all of the overcharges arising from the violations, an amount exceeding $895 million during the period in question. With interest, the judgment entered in this action exceeds $1.6 billion.³ Under the District Court’s findings, the sum ultimately paid in restitution will be distributed to the separate States and Territories, in accordance with guidelines established by Congress in Section 155 of Pub.L. 97-377, .96 Stat. 1830 (1982), sometimes referred to as the “Warner Amendment.”

II. THE PARTIES AND CONTENTIONS ON APPEAL

Eleven separate appeals were filed in this Court, but the United States has' dismissed its cross-appeal of the denial of civil penalties, and that issue is no longer in controversy at this stage of the proceedings.

The principal contenders appear in Case No. DC-93, in which Exxon appeals the grant of summary judgment to the United States. The multiple issues which have been raised in this appeal will be discussed at length, but for present purposes it may be said that the questions here are directed principally to liability and the proper interpretation of the applicable regulatory framework. In particular, of course, is Exxon’s objection to the finding of liability by summary judgment, without an eviden-tiary hearing. Exxon likewise disputes the extent of its liability, and the legality of ordering payment into the United States Treasury for distribution to the States and Territories.

Exxon ■ also raises the question of this Court’s jurisdiction, in view of the recent decision of the Supreme Court in Immigration and Naturalization Service v. Chadha, et al., 462 U.S. 919, 103 S.Ct. 2764, 77 L.Ed.2d, 317 (1983). It is suggested that its liability, if any, will be “significantly reduced, if not eliminated altogether” by the Chadha ruling.

The remaining eases are appeals filed by various “Intervenor Appellants,” who were permitted to intervene by the District Court, after judgment was filed, for the purpose of. setting forth their various claims to a share in restitution, and their claims, against the judgment. None of these appellants supports the claim of appellant Exxon on the issue of liability. They appeal only from that portion of the judgment which requires that all of the restitution funds be disbursed to the States without any attempt to first identify and compensate various purchasers of petroleum products who were the alleged victims of Exxon’s violations.

The various Intervenor Appellants are: Case No. DC-91—

National Oil Jobbers Council and the Jobbers’ Group;

Case No. DC-92—

U.S. Oil & Refining Co., and Gladieux Refinery, Inc., appearing as “Old Oil Entitlements Program” participants;

Case No. DC-94—

Intervenors, referred to as “Indicated Refiners,” also participants in the Entitlements Program;

Case No. DC-95—

Intervenors, referred to as “Gasoline Retailers” who claim to have been directly injured by Exxon violations;

Case No. DC-96—

Tosco Corporation, Intervenor, a participant in the Entitlements Program, and also a direct purchaser of crude oil from Exxon;

Case No. DC-97—

Philadelphia Electric Company, representing a class of purchasers, and consumers of petroleum products;

Case No. DC-98—

The Air Transport Association of America, representing the air transportation industry as a consumer of petroleum products;

Case No. DC-99—

Geraldine Sweeney, an automobile owner, RJG Cab, Inc., and National Freight, Inc., commercial transportation companies, all end users of refined petroleum products;

Case No. DC-100—

Intervenors Marathon Petroleum Company, Mobil Oil Corp., and Murphy Oil Corp., also participants in the Entitlements Program.

In addition to the Intervenor Appellants, the appeals include a group of Intervenor Appellees, these being the various States of the United States. These Intervenors support the remedy ordered by the District Court, whereby the monies paid in by Exxon will be distributed among the States and Territories.

Other groups and organizations, appearing as Amici Curiae, present additional questions which touch upon the direct issues raised on appeal. In this respect, the owners of working interests in HFU, who have heretofore entered into “global settlements” with the Department of Energy on other occasions, contend that they may be adversely affected by a precedent established in these cases. The Navajo Nation asserts its rights as an end consumer of refined petroleum products, and complains also that as a sovereign political entity, it is entitled to share equally with the States and Territories in any distribution of the judgment in this case. The Chamber of Commerce of the United States objects to “retroactive law-making” by the district court. The American Petroleum Institute objects to distribution of the judgment to “unidentified consumers” without any effort being made to reimburse members of the petroleum industry who sustained damage from the Exxon violations. R. Lacy Inc., an interest owner in the Hawkins Field, is concerned with the question of contribution and indemnity, should Exxon’s liability for all overcharges in the Unit be affirmed. The “Low Income People Together,” et al., appear on behalf of some thirteen community organizations across the country which represent senior citizens, tenant organizations, etc. Such groups would be among the ultimate beneficiaries of any distribution of funds to the States pursuant to guidelines set out in Section 155 of Public Law 97-377. Total Petroleum, an Intervenor in In re The Department of Energy Stripper Well Exemption Litigation, M.D.L. No. 378, now pending in the District of Kansas, appears to urge that it was error to fashion a restitution remedy without consideration for the rights of direct purchasers of petroleum products. Total Petroleum claims that the remedy and judgment in this action will have important consequences for the parties involved in the Stripper-Well litigation.

III. REGULATORY FRAMEWORK

The controversy between Exxon and the Government⁴ concerns the manner in which accountings were made in determining the identity and quantity of “new oil” removed from HFU. The overcharges which accrued here are attributable to the fact that Exxon, in making this determination, calculated upon a “lease by lease” basis, rather than upon a unit-wide comparison of field production.

The regulatory history of the Economic Stabilization Act of 1970, 12 U.S.C. Section 1904, Note, (ESA) and the subsequent passage of the Emergency Petroleum Allocation Act of 1973, 15 U.S.C. Sections 751 et seq., (EPAA) has been many times reviewed by this Court, most recently in Exxon Corp. v. United States Dept. of Energy, 744 F.2d 98 (TECA 1984), cert. den., — U.S. -, 105 S.Ct. 576, 83 L.Ed.2d 515 (1984). It is sufficient to state that the purpose of petroleum price regulation was to ensure fair allocation of petroleum resources at equitable prices and to encourage the search for new energy resources.

Basic to the regulation of petroleum prices was a “two-tier” pricing structure, whereby monthly oil production which was less than, or equal to a corresponding 1972 level of production from a “property” was to be sold as “old” oil at a posted price, while production in excess of the 1972 level could be sold as “new” oil, at prices substantially higher. May 15, 1973, 10 C.F.R. Sections 212.73(b), and 212.74(b). The “based production control level,” or “BPCL” by which “old” and “new” oil production was to be determined was basically defined, with respect to months ending pri- or to February 1, 1976, as “the total number of barrels of domestic crude oil produced and sold from that property the same month of 1972;” 10 C.F.R. Section 212.72.

Since all computations of old and new oil were to be made on the basis of production levels from a “property”, it was necessary to determine the boundaries of each “property.” The term “property” was broadly defined as “the right which arises from a lease or fee interest to produce domestic crude petroleum.” See 10 C.F.R. Section 212.72, January, 1974. In February, 1976, the property definition was slightly restructured, without substantive change, to read “the right to produce domestic crude oil which arises from a lease or from a fee interest.” Effective September 1,1976, the definition of property was changed so that separate reservoirs subject to a single right to produce could thereafter be treated as separate properties. R. 37,606. See Department of Energy v. Louisiana, 690 F.2d 180 (TECA 1982), cert. den., 460 U.S. 1069, 103 S.Ct. 1522, 75 L.Ed.2d 946; Pennzoil Co. v. United States Dept. of Energy, 680 F.2d 156, 162, note 9. (TECA 1982), cert. dismissed, 459 U.S. 1190, 103 S.Ct. 841, 74 L.Ed.2d 1032 (1983).

Questions arose in the case of properties which were not unitized in 1972. This was the situation of Hawkins Field, which did not become formally unitized until January 1,1975. On five separate occasions in 1974 and 1975, the General Counsel of the Federal Energy office issued interpretations to the effect that unitized multi-lease units were single properties. These interpretations were later published in May, 1977. See Pennzoil, supra.

This same interpretation was issued as a general guideline for the industry in August, 1975, in the form of Ruling 1975-15. With respect to properties unitized after 1972, the Ruling provided that:

“... the need for comparison of like quantities requires the producer in computing the BPCL to measure and total the individual 1972 monthly production levels for each of the leases that now comprise the unit. Accordingly, for example, where a unit consists of several leases that were unitized in 1973, the property consists of the unit, and the BPCL is the total 1972 monthly production from all of the several leases that now comprise the unit.”

A few months later, and in December, 1975, Congress enacted the Energy Policy and Conservation Act (“EPCA”), which allowed the agency to permit price increases, without current increases in production, when the agency found that such price increases would give incentives for “enhanced recovery techniques.” 15 U.S.C. Section 757(b)(2)(A); DOE v. Louisiana, supra, 690 F.2d at 185.

The agency then proposed a new regulation, and after considering comments, adopted 10 C.F.R. Section 212.75, which applied only to “operators of 'enhanced recovery’ units formed on or after” February 1, 1976:

“(a) Rule. A producer shall, as of the date of implementation of enhanced recovery operations on a unit or as of the date production patterns with respect to individual leases within a unit are substantially altered (which ever date occurs first) establish a unit base production control level for the unit.

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“ ‘Unit base production control level’ means the total number of barrels of old crude oil (1) produced and sold from all properties that constitute the unit plus (2) the total number of barrels of crude oil produced from all stripper well leases that constitute the unit during the 12 month period immediately preceding the establishment of a unit base production control level for the unit, such total divided by 365, multiplied by the number of days in that particular month.

“ ‘Unit’ means the right to produce crude oil that arises from a unitization agreement approved by the applicable state or municipal regulatory authority____”

The term “enhanced recovery” was defined by Section 212.75 as

“... any method, previously approved by applicable state or municipal regulatory authority ... of recovering crude oil in which part of the energy employed to move the crude through the reservoir is applied from extraneous sources by the injection of liquids or gases into the reservoir.”

In addition to adopting Section 212.75, discussed above, the old Section 212.72 was amended to allow operators of all other properties the option of calculating a new BPCL equal to 1975 old oil production. This had the effect of lowering the BPCL at properties where production had declined.

In the preamble to Section 212.75, the agency also announced that Ruling 1975-15 would be rescinded ab initio insofar as it required producers of unitized properties to treat the unit as a single property upon unitization. The producers were given permission to delay implementing a unit BPCL until there “has been a significant alteration in pre-unitized producing patterns of the individual leases.” The preamble further noted that:

“If a significant alteration of producing patterns does not occur until the actual implementation of enhanced recovery operations, the unit operator may continue to determine quantities of upper tier crude oil ... on a lease-by-lease basis. Once enhanced recovery operations begin, the producer will be required to calculate a unitized BPCL, as set forth in new 10 CFR 212.75 ... and to treat the unit as a distinct property.” (Emphasis supplied.)

In August, 1976, after the agency received comments on the definition of the term “significant alteration in producing patterns” as used in Section 212.75, the term was formally defined as follows:

“ ‘Significant alteration in producing patterns’ means the occurrence of either (1) the application of extraneous energy sources by the injection of liquids or gases into the reservoir, or (2) the increase of production allowables for any property that constitutes the unitized property.” 10 C.F.R. Section 212.75(b).

In January, 1977, the agency issued Ruling 1977-2, stating that the definition of “significant alteration” contained in Section 212.75 would be considered as a “guidance in audits and compliance cases” involving pre-existing units subject to Section 212.72. At that time it was announced that those operating units subject to Section 212.72 would be permitted “to justify the establishment of the date of ‘significant alteration’ on ‘reasonable bases’ other than injection or an increase in production allow-ables.” ⁵

To summarize these regulations then, it may be stated that

a) the agency interpreted 10 C.F.R. Section 212.72 to require a producer to calculate a single aggregated BPCL for multi-lease units, as of the date of unitization. Ruling 1975-15 so required;

b) In February, 1976, the agency changed this requirement, and allowed Operators of units already formed to delay implementation of a unit BPCL until the date on which producing patterns were “substantially altered;”

c) In addition, and in February, 1976, the agency adopted 10 C.F.R. Section 212.75 which applied only to operators of enhanced recovery units formed on or after February 1, 1976. This provided prospective incentives for oil producers to enhance long-run production through future unitiza-tions;

d) In January, 1977, by Ruling 1977-2, the agency determined that the definition of “significant alteration in producing patterns,” first published in September, 1976, would be used as “guidance” in determining whether a significant alteration occurred in pre-existing units.

IV. THE HAWKINS FIELD

The record on appeal in this case consists of over 39,000 pages in 47 volumes. Included in this record are over 500 exhibits, consisting of more than 6,000 pages, which were presented to the District Court in support of the cross motions for summary judgment. Many of these exhibits are from Exxon files — inter-office memos, copies of correspondence, reservoir studies, oil production ledgers and schedules, and computer print-outs. In addition, the District Court had records and orders of the Texas Railroad Commission, which regulated the Hawkins Field, and the parties’ statements of uncontested material facts.

From this evidence, the District Court made findings of fact concerning the history of the Hawkins Field, and Exxon’s application of pricing regulations to the production from that field. These findings may be summarized as follows:

A. Development of the Unit.

Oil was discovered in the 10,000 acre field near Tyler, Texas in 1940. By the late 1940’s, more than 200 individuals and companies produced oil on more than 300 leases in the field. In 1969 Exxon (through its predecessor, Humble Oil and Refining Company), owned two-thirds of the field’s production.

Under state law, the Texas Railroad Commission regulated the number of oil wells within the field, as well as the number of barrels of oil each well could produce. These were termed “production al-lowables.”

' The Hawkins Field was what is termed a “MER field” in Texas. In such fields the Texas Commission assigned an aggregate allowable for the entire field, which was called the maximum efficient rate of production, or “MER”. This was a limit on the number of barrels which could be pumped daily from the field as a whole. The advantage of the “MER” designation was that whenever a lease operator could not produce its allowable, the Commission distributed pro rata, any unused allowable from one lease to every producing well in the field.

By mid-1960 the natural reservoir pressure in the field declined, allowing invasion of water and loss of oil into the field’s original gas cap. The interest owners, led by Exxon, determined that this trend could be reversed, and the life of the field prolonged, by means of an enhanced recovery project. This would require the construction of a plant to produce inert gas, which would then be injected underground in order to increase the reservoir pressure.

Before the recovery project could proceed, it was necessary that the field be unitized in order that the costs of the gas plant could be spread among the owners, and also because the injection of gas would cause crude oil to flow underground across lease lines. As noted by the District Court, when a field becomes unitized it most likely results in the shutting in of wells within certain leaseholds, and the increase of production at others, because enhanced recovery operations cause oil to flow underground across lease lines. In such circumstances, payments to unit participants are not based upon actual production from a particular well, but upon an imputed percentage of the unit’s total production. United States v. Exxon Corp., supra, 561 F.Supp., fn. 6, p. 820.

In 1969 Exxon actively began to promote unitization, meetings were had with 300 other working interest owners in the field, and negotiations went on with more than 2,200 royalty interest owners. At this time, Exxon secured permission from the Commission for an interim conservation project, whereby up to 20 million cubic feet of natural gas per day could be injected into the field for the purpose of increasing production. In November, 1974, and in anticipation of unitization, the Commission increased the Hawkins Field MER from 87,-000 barrels per day to 112,000 barrels per day.

In late 1974 the Unit Agreement was finally executed and approved by the state Commission. Under its terms, Exxon was named Unit Operator, costs of the proposed gas plant were to be shared, and production was divided according to a formula based upon estimates of the recoverable reserves under each tract.

At the time the Unit Agreement was approved the state Commission provided Exxon with a “unit production allowable,” to be effective on January 1, 1975. Under prior Commission orders, the production allowable of an individual shut-in well could be transferred only pro rata among all other wells at the Hawkins Field. The new “unit allowable”, which was equal to the then existing MER of approximately 112,-000 barrels per day, allowed Exxon to transfer production among wells within the unit, at will.

The natural gas injections which were initially permitted by the state Commission in 1969, continued beyond the effective date of unitization, and through the years, until the inert gas plant was completed and put into operation in March, 1977.

B. Exxon’s Pricing Policies.

The trial court found; that when oil price control regulations were initiated in 1973, Exxon already operated several multi-lease units, some of which, like Hawkins Field, were formed after 1972, the base year designated for calculation of the BPCL; that Exxon applied an aggregated, unit, BPCL at other units it operated in Texas, California, Alabama and Florida; that Exxon departed from this practice at Hawkins Field following a determination it made in 1974 that an 80% reduction in the amount of new, released and stripper oil which could be claimed would follow if calculations were made upon a unit basis.

Exxon contends that the trial court’s finding that “Exxon departed from its prior practice” at Hawkins Field was erroneous and based upon a “one-sided view of disputed evidence,” inasmuch as “Exxon’s pri- or practice was to review its general guidelines, the many oral and written modifications thereto, and then to examine each situation carefully and independently— which was the same practice employed at the HFU.”

Exxon’s argument is without merit. Exxon’s own records establish that in the fall of 1973, following initial price regulation, Exxon issued instructions to treat several multi-lease units which it operated as single properties, with a single, unit BPCL. These instructions included units formed after 1972, the base year designated in the regulations for the calculation of the BPCL. In accordance with this practice, Exxon applied an aggregated, unit BPCL at units it operated in Texas, California, Alabama and Florida. These units included the Friendswood Unit, unitized on September 1,1973. As an interest owner, and as a purchaser of crude oil, Exxon received notification from many other companies that units were to be treated as single properties, each with a single, aggregated BPCL. Nevertheless, when Hawkins Field was formally unitized on January 1, 1975, Exxon thereafter did in fact apply individual lease-by-lease BPCL calculations.

When Ruling 1975-15 was issued in August, 1975, making explicit the regulations’ requirement that a unit BPCL be calculated and applied to every unit, as of the date of unitization, Exxon, along with other industry critics requested modification or clarification of the Ruling. When the February, 1976 amendments to the oil price regulations were under consideration, Exxon suggested that the provision for lease-by-lease calculation of exempt oil should be extended for two years after formation of the unit, or until injection began in an enhanced recovery project. Exxon also urged that the same rules be applied to units formed before February 1, 1976. As noted, however, the February, 1976 amendments adopted by the agency applied only some of the new incentives to pre-existing units, and provided that the new Section 212.75 would only apply prospectively.

Following a meeting in mid-February, 1976, with agency representatives, Exxon decided that until the meaning of the new regulations was “clarified,” it would be proper to continue its lease-by-lease calculations at the Hawkins Field, and it so advised the other interest owners.

The agency solicited comments in April, 1976, as to how best to determine when there was “a significant alteration” in producing patterns. Exxon suggested that the term be defined as “the initiation of the major injection or other programs contemplated by the unit, provided however that the date will be no longer than two years from the formation of the unit.” The agency in August, 1976, published the definition of “significant alteration in producing patterns” as being either the injection of liquids or gases into the reservoir or the increase of production allowables for any property constituting the unit. Exxon then determined that the regulations did require the calculation of an aggregated, unit BPCL for the Hawkins Field Unit, but it did so only as of September 1, 1976, and then under the more generous provisions of Section 212.75. Exxon continued this manner of calculation until the repeal of the oil price regulations in January, 1981.

In reviewing the production data from the Hawkins Field, the Trial Court concisely illustrated the effect of Exxon’s pricing policies which we described above:

“From January 1975 through August 1976 production at the Hawkins Field remained relatively stable at about 112,-000 barrels per day____ Thereafter, despite the implementation of the inert gas enhanced recovery project in March 1977, production began to decline, to about 90,-000 barrels per day in July 1977, and finally dropping to about 45,000 barrels per day in January 1981 at the same time oil prices were decontrolled____ Despite the steady decline in production, an increasing percentage of oil was accounted for by Exxon as upper-tier, higher-priced oil, until beginning June 1, 1979 almost all of the then 62,000 barrels per day was classified as new oil.” 561 F.Supp. at 825. (Emphasis supplied.)

V. CONCLUSIONS OF THE TRIAL COURT

In sustaining the Government’s motion for summary judgment the trial court made a series of determinations applicable to our consideration of these appeals.

1. Section 212.72, the unit property regulation, was procedurally valid. 561 F.Supp. at 826-829. That issue has not been raised on appeal.

2. Under Pennzoil, supra, a unitized field must be considered a single property for purposes of computing a unit BPCL.

3. The rescission of Ruling 1975-15, which had required that a BPCL be established upon unitization, was not a mere “relaxation in enforcement policy,” as claimed by the government. The agency’s Ruling in'February, 1976 “amounted to a completely new, although less strict, interpretation of the property definition found in Section 212.72.” 561 F.Supp. at 835.

4. The agency’s determination in 1976 to allow unit operators subject to 10 C.F.R. Section 212.72 to postpone adoption of a unit BPCL until the occurrence of a “significant alteration in producing patterns,” was reasonable. The definition of this term, as being either “the application of extraneous energy sources by the injection of liquids or gases into the reservoir,” or, “the increase of production allowables for any property that constitutes the unitized property,” was consistent with the intent of Congress that the administration of price controls be workable and effective.

5. A “significant alteration in producing patterns” occurred at Hawkins Field on January 1, 1975, the date of unitization, because Exxon then transferred production allowables among contingent leases, thus significantly altering producing patterns within the field. In addition, Exxon was also injecting gas on that date. 561 F.Supp. at 843. Under these circumstances, Exxon’s obligation to calculate a unit BPCL then accrued.

6. Exxon failed to establish a reasonable alternative basis to justify a finding of significant alteration in producing patterns in the field on a date other than January 1, 1975. A date based upon evidence of the field’s “underground drive mechanism” would not be a reasonable alternative basis because it would not be a workable system for enforcing the pricing program.

7. Exxon’s estoppel defense is without merit because the undisputed facts in the case establish that its reliance, if any, on unauthorized, informal statements of agency employees, was not reasonable. Furthermore, even if there was reasonable reliance, the government pursued “important national policy objectives” in its pricing regulations, and these objectives should not be frustrated by allowing Exxon “unjustly to reap huge profits from its dubious exploration of the limits of regulatory tolerance.” 561 F.Supp. at 848.

8. Since Exxon caused all of the overcharges in the field by its pricing, injection and production decisions, it is liable for full restitution of all the overcharges, with interest.

9. Civil penalties would not be imposed because Exxon did not attempt to conceal its pricing practices.

10. Since it would be “impossible” to identify the ultimate victims of Exxon’s overcharges, due to the “pervasive system of price controls” in the petroleum industry, the Trial Court adopted a remedy used by Congress in a similar situation, and ordered Exxon to remit all overcharges to an escrow account in the United States Treasury to be held in trust by the Treasury, for future disbursement to the States for the ultimate purpose of funding specific energy conservation programs, in accordance with procedures set out in Section 155 of Pub.L. No. 97-377, 96 Stat. 1830, 1919 (1982). In so doing, the trial court also stated: (561 F.Supp. at 856).

“In formulating its order, the court in no way relies on Section 155 as an express statutory grant of authority to this court, but acts instead in the exercise of its broad equitable powers to order restitution.”

VI. ISSUES ON APPEAL

Exxon’s contentions in this appeal may be summarized in the following manner:

A. The District Court violated established summary judgment principles in granting judgment to the Government because it improperly resolved factual disputes, ignored relevant evidence, viewed all evidentiary inferences in favor of the DOE, and improperly assumed to be true facts outside the record.

B. The District Court erred in summarily determining Exxon’s liability because:

1. The history of the unit property rule establishes that Hawkins Field Unit was not subject to the definition of “significant alteration in producing patterns” set out in 10 CFR Section 212.75;

2. The restrictive definition of “significant alteration in producing patterns” can not be given retroactive effect;

3. Retroactive application of only selected portions of 10 CFR Section 212.75 is arbitrary and capricious;

4. When a “significant alteration in producing patterns” occurred at the Hawkins Field Unit was an issue for resolution at trial;

5. Ruling 1977-2 expressly provides that Exxon be afforded an opportunity to establish a reasonable alternative “significant alteration” date for the HFU.

C. The District Court erred in summarily determining questions of remedy in favor of the DOE because:

1. Monetary awards to uninjured state governments are not restitution;

2. Monetary awards to uninjured state governments improperly expose Exxon to multiple liability;

3. The District Court assessed liability on the basis of unpleaded and unproved refiner allocation violations;

4. The amount of the judgment is grossly overstated;

5. Exxon’s liability must be reduced, if not eliminated, in view of the unconstitutional one-house veto provisions in the EPAA and the EPCA.

D. The District Court erred in requiring Exxon to pay on behalf of other interest owners alleged overcharges received by them, because the evidence did not establish that Exxon can be reimbursed for such payments;

E. The District Court erred, as a court of equity, in requiring restitution of the full amount of the alleged overcharges and prejudgment interest because:

1. Restitution is an equitable remedy that implicates questions of fairness;

2. A balancing of equities requires an evidentiary hearing;

3. Restitution of the full amount of the alleged overcharges is inequitable;

4. Awarding prejudgment interest is inequitable.

The Government’s contentions in this appeal may be summarized in this manner:

A. The District Court correctly held that a single BPCL had to be adopted at the Hawkins Field in January 1975 when it was unitized and a significant alteration in producing patterns occurred, because:

1. This Court has previously determined that Section 212.72 required establishment of a single BPCL upon unitization;

2. The District Court properly applied the less stringent Ruling 1977-2, permitting a unit operator to delay establishment of a single BPCL until occurrence of a significant alteration;

3. The District Court properly granted summary judgment upon the basis of Exxon’s own undisputed data, because:

a. Under the definition of significant alteration used as guidance, a significant alteration occurred on January 1, 1975; and

b. The District Court correctly held that Exxon failed to justify the date of the significant alteration on any other reasonable basis.

B. The District Court properly concluded that Exxon, the Operator who caused the overcharges, is liable for all overcharges with interest, because

1. Exxon is liable for all overcharges at the Unit under Sauder v. DOE, 648 F.2d 1341 (TECA 1981);

2. Exxon is entitled to no reduction as a result of consent orders between DOE and other companies; and

3. The District Court did not abuse its discretion by awarding interest on the overcharges at the rates provided.

C. The District Court properly concluded that payment of Exxon’s overcharges to the states is a lawful and appropriate remedy to effectuate restitution in this case, because

1. The District Court correctly concluded that the overcharges were so widely distributed through the operation of price controls that individual harm could not be calculated with reasonable certainty; and

2. The District Court reasonably exercised its broad discretion to fashion a remedy — payment to the states — which achieves the central purpose of restitution under the EPAA.

VII. THE CHADHA ISSUE

Before proceeding to the question of the nature and extent of Exxon’s liability in this case, we first address questions which have been presented by the recent decision of the Supreme Court in Immigration and Naturalization Service v. Chadha, supra, 462 U.S. 919, 103 S.Ct. 2764, 77 L.Ed.2d 317 (1983).

Judgment was entered in this action on June 7, 1983. The day before Exxon filed its notice of appeal with this Court, it moved for “reconsideration” of the trial court’s decision on the ground that, in view of Chadha, the entire EPAA should be retroactively declared void because of an allegedly unconstitutional provision in Section 4(g)(2) of the Act which allowed either House of Congress to veto executive actions.

The District Court denied the motion (a) because it was tardy since it involved an issue which was available, but not raised, prior to judgment; (b) because notice of appeal had been filed and the trial court was divested of jurisdiction; and (c) because Exxon lacked standing to challenge the statutory provisions because it could prove no injury due to the existence of the veto provision. It was also pointed out that the District Court was without power to determine such constitutional issues, jurisdiction being vested instead with the Temporary Emergency Court of Appeals.⁶

On appeal, Exxon claims that the Cha-dha issue remains viable, that it has standing to complain because its injury is obvious, that the veto provisions in question are not severable, and therefore the Act, and all regulations issued pursuant to the Act are void, in to to. In addition, it is claimed that the subject matter jurisdiction of both the trial court and this appellate court is placed in question by the Chadha precedent.

It is the position of the Government that the Chadha issue is not before the Court because, under appellate rules, the question was not timely raised.

The history of the veto provisions which appear within the Economic Stabilization Act of 1970, as well as Section 551, Section 552 of the Energy Policy and Conservation Act, P.L. 94r163, (EPCA), 42 U.S.C. 6201, Note, and the effect of those provisions in terms of the Chadha decision, have recently been examined at length by this Court in Exxon Corp. v. United States Dept. of Energy, supra, 744 F.2d 98 (TECA 1984), cert. den., — U.S.-, 105 S.Ct. 576, 83 L.Ed.2d 515, which involved certification of constitutional questions raised by Chadha.

Similar questions have not, of course, been certified under Section 211(c) in these appeals, but because some question has been raised by Exxon concerning this Court’s jurisdiction, this panel of the Court will briefly address Exxon’s arguments.

In April, another panel of this Court determined that the Gulf Oil Corporation had standing to challenge the subject matter jurisdiction of this Court by contending that the statutes granting jurisdiction contained unconstitutional legislative veto provisions. Gulf Oil Corp. v. Dyke, 734 F.2d 797 (TECA 1984), cert. den., — U.S.-, 105 S.Ct. 173, 83 L.Ed.2d 108. In Exxon, we adopted that holding and in addition ruled that the Chadha decision would not be applied retroactively to invalidate all or any part of the EPAA, the EPCA, or the Regulations fashioned to implement those Acts. We further held that even if the rule of Chadha should be found to be retroactive, the veto provisions were severable, as found in Gulf Oil Corporation, supra. We further ruled that the Regulations were not unlawfully tainted by the presence of the one-House veto, or rendered invalid because the veto power had been exercised on two occasions in July, 1975.

We need not repeat what was said in Exxon, supra, with respect to the Chadha issue. This Court has determined that Chadha may not be used by the oil industry to escape the responsibilities owed to the nation and its people as represented by the law and regulations implemented by the DOE and interpreted by this Court.

We find that we have jurisdiction and that Chadha has no effect on any of the issues presented in these appeals.

VIII. THE LIABILITY ISSUE

Exxon contends that the District Court violated well established summary judgment principles in granting judgment to the Government, in that the trial court improperly resolved factual disputes, ignored relevant evidence, improperly resolved all evi-dentiary inferences in favor of the Government and improperly assumed to be true facts outside the record.⁷

A. The Pennzoil Decision. Our discussion of the trial court’s findings and Exxon’s contentions regarding liability must begin with a consideration of this Court’s decision in Pennzoil Co. v. United States Dept. of Energy, supra, 680 F.2d 156.⁸

The Pennzoil litigation was initiated by the company upon a claim that Ruling 1975-15 was invalidly promulgated, as an announcement of a new rule not previously inherent in, or justified by, prior regulations. In affirming summary judgment in favor of the government upon this claim, we determined that Ruling 1975-15 was a correct interpretation of 10 C.F.R. Section 212.72, requiring the establishment of an aggregated BPCL upon formation of a unit:

“Ruling 1975-15 is an interpretative ruling, not a legislative change, and simply made explicit what was implicit in the property definition from the beginning.” (680 F.2d at 176)

This Court further held that Ruling 1975-15 was not unlawful “retroactive” legislation, for it did not represent a departure from well established practice, let alone an “abrupt departure” (Note 35, p. 176, 680 F.2d). We found that there was no basis for applying estoppel against the Government because of alleged confusing, misleading and contradictory information or Rulings supplied by agency officials. We refused to do so “on the facts here presented in favor of sophisticated oil field operators exploring the possibility of dubious regulatory leeway without even requesting an official interpretation.” (680 F.2d at 177).

The Pennzoil case was remanded to the District Court for trial of the Government counterclaim for enforcement of Ruling 1975-15. The case was settled upon Pennzoil’s agreement to pay $14.75 million to the United States Treasury. See Cities Service Co. v. Department of Energy, 715 F.2d 572 (TECA 1983), affirming Pennzoil Co. v. DOE, 4 Energy Mgmt. (CCH) Paragraph 26,415 (D.Del.1983).

B. Unit Property Rule. Exxon first claims that the regulatory history of the “unit property rule” establishes that HFU is not subject to the definition of “significant alteration in producing patterns” set out in 10 C.F.R. Section 212.75. In this respect, Exxon argues that the history of the regulation reveals prolonged agency indecision, the subsequent partial rescission of Ruling 1975-15, and the failure to explain or define the term “significant alteration in production patterns” until September 1, 1976 when the term was finally defined as part of an amendment to 10 C.F.R. Section 212.75. Exxon claims that since the Section 212.75 definition does not apply to units formed before September 1, 1976, the term “significant alteration in producing patterns” is only a general concept, when applied to those units, subject to an evidentiary determination upon a case-by-case basis.

According to Exxon, “(t)his result, of course, poses no conflict with this Court’s decision in Pennzoil ... (because) Pennzoil upheld Ruling 1975-15 but also expressly declined to consider the legal effect of the Ruling’s ... partial recission ab ini-tio ____ What we are concerned with here, however, and what was not decided in Pennzoil, is when must a multiple lease unit convert from lease-by-lease accounting to unit-wide accounting.” (Brief for Exxon, n. 283, p. 56).

In its insistence that the Pennzoil decision resolved only the question of whether HFU constituted a single “property”, and not the question of “when” the Unit BPCL was to be calculated for that property, Exxon continues to present arguments which were decided adversely to its position in that decision.

The issue posed by, and resolved in, Eennzoil was whether an “aggregation of (Pennzoil’s 1972 lease) BPCL’s (was required) upon formation of a post-1972 multiple-property, enhanced recovery unit.” 680 F.2d at 159 (Emphasis supplied).

In Pennzoil, we recognized the fact that in February, 1976 the agency rescinded Ruling 1975-15, insofar as it required producers to treat the unit as a single property, before such time as there was “a significant alteration in pre-unitized producing patterns of the individual leases____” Finding that this rescission did not “throw into question the validity” of Ruling 1975-15, as to previous production from unitized leases, we stated (fn. 13, 680 F.2d at 164):

“There is not now before us any issue concerning the application of this subsequent rule-making and we refrain from expressing any opinion concerning it other than that it does not militate against our disposition of the issues presented to us on this appeal.” (Emphasis supplied).

Under our decisions in Pennzoil, supra, and its predecessor, Grigsby v. Department of Energy, 585 F.2d 1069 (TECA 1978), cert. den., 460 U.S. 1086, 103 S.Ct. 1780, 76 L.Ed.2d 350, it is clear that Section 212.72 unembellished by any agency interpretations, required the adoption of a single BPCL, upon unitization. See also Francis Oil and Gas, Inc. v. Exxon Corp., 687 F.2d 484, at 488 (TECA 1982), cert. denied, 459 U.S. 1010, 103 S.Ct. 365, 74 L.Ed.2d 400 (1982).

Under these circumstances, we find that Exxon’s claim that Pennzoil does not control the question of “when” a unit must convert to unit wide accounting is without merit. Apart from Ruling 1975-15, Section 212.72 required the establishment of a single BPCL upon unitization of the Hawkins Field.

C. Partial Rescission of Ruling 1975-15: The Significant Alteration Test.

As previously noted, in January, 1976, the agency, in response to the newly enacted EPCA, began proceedings leading to adoption of the new regulation, 10 C.F.R. Section 212.75, designed to provide new production incentives, prospectively. At the same time, and in February, 1976, the agency determined that a “limited part” of Ruling 1975-15, insofar as it required a producer to compute a single unit BPCL upon unitization, should be rescinded ab initio. The balance of Ruling 1975-15 was “affirmed in all other respects,” see Pennzoil, 680 F.2d at 164, n. 13. It should also be remembered that the agency continued to point out that once a significant alteration in producing patterns had occurred at a unit, lease-by-lease accounting procedures would no longer be justified.

Ruling 1975-15 was rescinded only “insofar as it requires producers of unitized properties to total all the BPCL’s of the participating leases and to treat the unit as a single property, before such time as there has been a significant alteration in pre-unitized producing patterns of the individual leases." Id. (Emphasis supplied). Throughout the administrative proceedings leading to eventual adoption of a precise definition of “significant alteration in producing patterns” in August, 1976, it is clear that attention was centered upon the fact that lease-by-lease accounting was not permissible after some alteration in production methods precluded any “meaningful comparison” of current and base period production, since “the bulk of the actual production thereafter may be concentrated from only a few producing wells on fewer than all of the several leases____” 41 Fed.Reg. at 4937. The agency noted that a significant alteration normally occurs when “enhanced recovery operations are begun, or ... production from certain leases is reduced or discontinued in preparation for enhanced recovery operations.” Id. “Enhanced recovery techniques,” include the “inject(ion) (of) fluids or gases (which) may have originated in the reservoir ... as long as they are injected by an extraneous energy source.” 41 Fed.Reg. at 4938. In soliciting comments on a method of determining the point at which a significant alteration occurs, in April, 1976, the agency pointed out that:

“it is ... clear that due to the eventual alteration of lease-by-lease producing patterns, production from the unit must at some point be treated as the aggregate of production from all the participating leases, in order to obtain a meaningful comparison of production levels.” 41 Fed.Reg. at 16181, (Emphasis supplied).

The formal definition of “significant alteration”, which was finally selected by the agency in August, 1976, was, as previously noted, “the increase of production allow-ables for any property that constitutes the unitized property,” or “the application of extraneous energy sources by the injection of liquids or gases into the reservoir.” 10 C.F.R. Section 212.75(b). (Emphasis supplied.)

In the District Court, the Government contended that the partial rescission of Ruling 1975-15 was only “a relaxation of enforcement policy,” with the “significant alteration” test serving only as a guidance in compliance audits. Exxon claimed that the “significant alteration” test constituted an entirely new regulation, which would not be applicable to the Hawkins Field Unit until September 1, 1976, the effective date of the formal definition of the term.

In ruling on the issue, the District Court ultimately determined that the significant alteration test “amounted to a completely new, although less strict, interpretation of the property definition in Section 212.72.” United States v. Exxon Corp., supra, 561 F.Supp. at 835.

The District Court particularly noted, and was puzzled by, Exxon’s insistence that the new test could not be “retroactively” applied before September 1, 1976: (561 F.Supp., fn. 39, p. 843).

“Exxon’s barrage of attacks on the agency’s amendments to the regulations in February and September 1976 — decrying their retroactive application, their discriminatory effect, and the rigor of their standard — is puzzling. If the court were to uphold Exxon’s challenges, at most the court could invalidate all or part of Section 212.75 and the significant alterations test as applied to pre-existing units. But that would not leave a vacuum. Instead, there would remain to apply to the Hawkins Field Unit only Section 212.-72, unembellished by either Ruling 1975-15 (rescinded ab initio) or by the significant alterations test. But the TECA has held in the Pennzoil case that implicit in the property regulation itself is the unit property rule, the requirement that a unit BPCL be calculated as of the date of unitization____ Consequently, if Exxon’s attacks were to succeed, it would still find itself in the position it is trying to escape. Exxon apparently seeks the best of all possible worlds. It would like the court to uphold the rescission of Ruling 1975-15 and to rewrite the rule which replaced it to suit Exxon’s practices at the Hawkins Field, in effect leaving it free of any rule at all. The 1976 amendments to the oil price regulations cannot reasonably be read that way.” (Emphasis supplied).

In an attempt to avoid the inconsistency in its argument which was noted by the trial court, Exxon has shifted ground in this appeal, and now relies upon what it perceives to be a “generalized significant alteration test ” dependent upon a case by case evidentiary analysis.

In contending that the trial court erroneously determined the issue by summary judgment, Exxon first claims that this Court is somehow bound by its 1981 comment in Exxon Corp. v. United States, supra, found at fn. 3, 655 F.2d at 1114, to the effect that the question of when a significant alteration occurred in producing patterns at Hawkins Field was “the key factual question to be litigated at trial.” This statement, of course, was obiter dictum, made without reference to the circumstances surrounding the partial rescission of Ruling 1975-15 or the enactment of 10 C.F.R. Section 212.75, and certainly without benefit of the record put before the trial court in .1983. Furthermore, we clearly noted that the four issues mentioned in this footnote were not before the Court in the 1981 appeal.⁹

In claiming that the trial court erroneously “rewrote” the generalized concept of determining whether or not there had been a significant alteration in the Hawkins Field, by its action in adding the “exceptionally restrictive” definition which was not adopted until September 1, 1976, Exxon presents several arguments against “retroactive” application of these tests.

In the first instance, Exxon recites much of the same type of “regulatory history” raised in the Pennzoil case with reference to claimed “agency indecision” and inconsistent positions which may have been taken by various agency officials from time to time. While Exxon has not specifically pressed its claim of “estoppel” on this appeal, it appears to rely upon some evidence which it claims indicates that the agency “officially determined” that lease-by-lease accounting at Hawkins Field after January 1, 1975, was not in violation of the regulations.¹⁰ In this respect, an “Audit Review Report,” dated May 27, 1976, indicates that since the agency had rescinded “that part of Ruling 1975-15 which specifically stated that units were to be treated as one property,” a “potential violation amount has not been calculated and Hawkins Field has been eliminated from our report as a potential violation.” However, once the audit of Exxon had been completed, a Notice of Probable Violation was issued on January 10, 1978, focused upon “Exxon’s activities as operator of the Hawkins Field Unit ... during the period September 1, 1973, through December 31, 1976____”

The preliminary report of field auditors can not be raised as an official, binding and final agency position upon the question of what constitutes a “significant alteration in producing patterns,” or a determination of when such alteration occurred at Hawkins Field. See Johnson Oil Co., Inc. v. U.S. Dept. of Energy, 690 F.2d 191, 202 (TECA 1982), holding that a proposed remedial order following audit was not an official agency position, and United States v. Fitch Oil Co., 676 F.2d 673, 677 (TECA 1982), ruling that audit policies intended to govern internal agency procedures are not binding on the Department of Energy.

D. Ruling 1977-2: Application of Section 212.75 to Hawkins Field.

As noted, in January, 1977, the agency determined in Ruling 1977-2 that the definition of “significant alteration” found in Section 212.75 would be used as “guidance” in audits and compliance cases involving units which were formed before February, 1976, which were otherwise subject to the provisions of Section 212.72.

After reviewing the Record, and the administrative history of the Ruling, we determine that the District Court properly applied Ruling 1977-2 in allowing Exxon, as Unit Operator, to delay establishing a single BPCL until a significant alteration occurred at Hawkins Field.¹¹ We further find that the trial court properly determined that question according to the definition of significant alteration found in Section 212.75.¹²

The purpose of Ruling 1977-2 was to clear up certain “technical issues” which had arisen in connection with the agency’s implementation of the new crude oil pricing policies set out in the EPCA, and to clarify the August 20, 1976 Notice regarding price regulations applicable to crude oil. These clarifications, of course, were designed to improve the incentives offered under the two tier pricing system. 42 Fed.Reg. at 4409.

The agency summarized separate treatments to be afforded three different types of Units, according to the date upon which each became unitized, and/or when significantly altered producing patterns occurred on the property.

The comments of the District Court upon the purposes and effect of Ruling 1977-2 succinctly sum up its provisions, 561 F.Supp., fn. 33, at pp. 837-838:

“Although Ruling 1977-2 is not a model of clarity, three categories, of units may be distilled from it. The first category consisted of all units formed before February 1, 1976, and at which enhanced recovery operations or a significant alteration in producing patterns occurred before September 1, 1976____ (At these units) a unit BPCL had to be established as of the date the significant alteration in producing patterns occurred. Only Section 212.72 applied to these units____

“The second category consisted of all units, whenever formed, at which a significant alteration in producing patterns occurred only after August 31, 1976. At units in this second category, as well, a unit BPCL had to be established as of the date the significant alteration in producing patterns occurred, but such units enjoyed all the benefits of Section 212.-75....

“The third category consisted of units formed between February 1, 1976 and August 31, 1976 and at which either enhanced recovery operations began, or a significant alteration in producing patterns occurred, prior to September 1, 1976. The agency defined ‘enhanced recovery’ in February 1976 to include gas or liquid injection operations. 41 Fed. Reg. at 4941. The definition of significant alteration in producing patterns, which came only as of September 1, 1976, swallowed up the concept of enhanced recovery, because the new definition included ‘the application of extraneous energy sources by the injection of liquids or gases into the reservoir.’ ... The agency recognized, however, that producing patterns might be altered before gas injection, and so added as an alternative definition of significant alteration ‘the increase of production allowables for any property that constitutes the unitized property.’ ____

“Because operators of units in this third category, formed after February 1, 1976, knew the definition of enhanced recovery when their units were formed, whereas ‘significant alteration’ was defined only in September, the agency chose to apply the two concepts differently. Operators of units at which enhanced recovery operations began before September 1, 1976 were required to establish a unit BPCL as of the date such operations began ... But operators of units at which no enhanced recovery operations began, but where a significant alteration in producing patterns occurred, before September 1, 1976, were allowed to wait until September 1, 1976 to establish a unit BPCL....

“As a practical matter this meant that if an operator began gas or liquid injection — which would constitute both enhanced recovery and a significant alteration — the operator had to establish a unit BPCL as of that date. If there occurred only a shift in production allowables— which would constitute a significant alteration but not enhanced recovery — the operator could wait until September 1, 1976 to establish a unit BPCL.” (Emphasis supplied.)

Ruling 1977-2 provided that as to the third category of units, once a unit BPCL was established, “the provisions of Section 212.75 then in effect are applicable____” 42 Fed.Reg. at 4415. As noted by the trial court, “such units were not allowed any measure of imputed new oil, but they were allowed to use the special unit BPCL rule and the provisions for imputed stripper well oil.” 561 F.Supp., fn. 33 at p. 838.

Exxon claims that 10 CFR Section 212.75 may not be retroactively applied because standards for retroactivity have not been met. It claims that retroactive application of only “selected portions” of Section 212.-75 is arbitrary and capricious because this creates discriminatory treatment of unitized fields, and irrationally treats “similarly situated” parties in a dissimilar manner. Finally Exxon argues that if the “significant alteration” portion of Section 212.75 is to be applied retroactively, then the beneficial portions of Section 212.75 must also be given retroactive effect.

After fully reviewing the record, we determine that the District Court correctly applied Section 212.75 in holding that a single BPCL must be adopted at the Hawkins Field in January, 1975, when it was unitized, because a significant alteration in producing patterns occurred at that time.

In the first instance, we reiterate the fact that this Court has previously determined that Section 212.72 in and of itself, required that a single BPCL be established upon unitization.

Secondly, and as found by the trial court, the agency, in rescinding the strict unit-property rule established by Ruling 1975-15, established “a completely new, although less strict, interpretation of the property definition in Section 212.72.” 561 F.Supp. at 816.

Finally, and as the trial court found, Exxon suffered no prejudice or inquiry from substitution of the Section 212.75 test for the requirement of Ruling 1975-15 that a unit BPCL be established as of the legally effective date of the unitization agreement. Application of Section 212.75 as “guidance” to the question of significant alteration would not be more restrictive than the new February, 1976 announcement which allowed a producer to postpone unit accounting until production patterns had been significantly altered, which occurred generally upon implementation of “enhanced recovery techniques,” or earlier, upon the closing-in of wells and transfer of production to other leases in preparation for enhanced recovery operations. Certainly Exxon can not claim prejudice through reliance upon any “general test” contained in the 1976 announcement, for its decision to unitize and to account upon a lease-by-lease basis was made in 1974, with full knowledge that Section 212.72, unaided by Ruling 1975-15, required unit wide accounting upon unitization.¹³

Exxon next asserts that it will sustain prejudice if the Section 212.75 significant alteration test is applied retroactively because the Hawkins Field would never have been unitized if the participants had known that unitwide accounting would be required upon unitization, since many participants would lose “new oil” which they were legitimately getting prior to unitization, under lease by lease accounting. Such after-the-fact speculation is not persuasive.

The record establishes that Exxon was well aware that Section 212.72 required adoption of unit-wide accounting upon uni-tization, and that this requirement was a problem to Exxon in its effort to convince all participants to join the unit. At the same time, Exxon clearly feared that all “new oil” would be lost because the increased MER (Maximum Efficient Rate) for the field, which had been raised by the Texas Railroad Commission, in prospect of the unitization, would be reduced to its former level if Exxon’s plan for unitization fell through.¹⁴ This threat had been raised by “a number of smaller, edge operators in the field” who believed that the field MER of 112,000 barrels per day was too high. A State Hearing Examiner believed that the 1974 producing rate in the field was damaging the reservoir. In May, 1974, Exxon was concerned that the Texas Commission might reduce the MER rate of 112,000 barrels per day to 87,000. In a presentation to management in July, 1974, Exxon employees emphasized “the critical need for operation flexibility,” with “substantial changes from current producing practices” so that the Hawkins Field allowable would be produced from “the more capable” wells. The possibility of a reduction in the MER for the field by 25,000 barrels per day was specifically feared if unit approval was delayed past January 1, 1975. 'Since Exxon owned 76% of the working interest, 19,000 barrels of this loss would fall on Exxon’s interest in the field. An Exxon budget summary in November, 1974,¹⁵ “assumed” that the Hawkins Field allowable would be cut from 112,000 to 87,000 B/D on July 1, 1975, if the field was not unitized because “(p)olitical pressure from other operators would force the Texas Railroad Commission to reduce the field rate.”

Under these circumstances, there was no prejudice to Exxon which would prohibit retroactive application of the significant alteration tests of Section 212.75 as guidance in a determination of the question at Hawkins Field.

We further find that Exxon is not entitled to the beneficial “special incentives” of Section 212.75, which, by its terms applies only to certain classes of units, not including HFU. Exxon claims that it was arbitrary to discriminate between those units formed before February 1976, and those formed between February and September 1976.¹⁶

The District Court recognized the disparity in treatment with these comments: (561 F.Supp. fn. 35 at p. 839):

“The agency articulated no reasons for acting so generously towards such units when its stated purpose was only to encourage prospective unitization____ One might speculate that because such units had not yet undergone a significant alteration in producing patterns, they faced a greater risk of dissolution than did units where significant and perhaps irreversible alteration had already occurred. The agency may have wished to provide particular incentivés for the maintenance of such units by holding out the prospect of greater rewards. But whatever the agency’s reasons, the issue of the reasonableness of extending the benefits of Section 212.75 to some units formed before February 1976 is not before the court. Even if it were, the court could at most strike down that small portion of Section 212.75 as an unjustifiable windfall to preexisting units. That decision would not affect the validity of the agency’s decision to provide incentives for the creation of new units while denying those incentives to pre-existing units like the Hawkins Field Unit. (Emphasis supplied).

Regardless of the generous treatment given to some newly formed units, the trial court determined that the agency need not give the benefits of Section 212.75 to those pre-existing units subject to the provisions of Section 212.72, since by refusing to extend greater benefits, “the agency performed precisely the delicate weighing of competing statutory objectives with which Congress had entrusted it and to which judicial deference is due.” 561 F.Supp. at 839-840. We agree with the court’s conclusion, found at 838-839 of 561 F.Supp.:

“Working within the narrow constraints imposed by Congress, the FEA reasonably balanced the competing aims of increased production and price control by extending the most favorable incentives to new units. Indeed, the FEA could not have treated all units alike, whenever formed. Had the FEA allowed all units, including the Hawkins Field, to benefit from the favorable provisions of Section 212.75, it would have violated the EPCA directive that no old oil be reclassified as higher-price oil unless it would not have otherwise been produced. The owners of the properties____such as the Hawkins Field Unit made their economic decision to unitize and to pursue enhanced recovery efforts long before February 1976. Any further inducement to them would have produced no additional oil that they had not already decided was worth producing. They could not be encouraged to do what they had already done____”

It clearly appears that HFU, a pre-Febru-ary 1976 unit which was subject to Section 212.72, was not “similarly situated” to units created later in response to new incentives for enhanced recovery operations. There was no arbitrary discrimination between two types of units which would entitle Exxon to claim any sort of prejudice from its treatment under Section 212.75.¹⁷

E. The “Significant Alteration” at Hawkins Field.

Following a review of the record, we find that the trial court correctly held, as a matter of law, that a significant alteration in producing patterns occurred at Hawkins Field in January, 1975, and that Exxon was required to establish a unit BPCL at that time.

On the cross-motions for summary judgment, the Government filed its statement of material facts as to which there was no dispute, and Exxon filed its statement of “genuine issues,” to be litigated at trial. The Government’s statement was based upon Exxon’s admissions and answers to interrogatories, transcripts and documents connected with Texas Railroad Commission proceedings, Exxon’s own undisputed production, allowable and injection data from the Hawkins Field, and other contemporary documents relating to planning, production, and pricing for the unit.

Exxon, in its statement of issues to be litigated at trial, did not, and does not, on this appeal contest these facts. Instead, the argument is made that since the agency intended that the Section' 212.75 definition of substantial alteration be used only as “guidance,” in flexible case by case determinations, an evidentiary hearing was required to determine the alteration question at Hawkins Field. In this respect, it is Exxon’s claim that the deposition testimony of thirteen petroleum engineers refutes any conclusion that gas injection and realignment of production at the unit amounted to significant change in production methods at Hawkins Field. In Exxon’s opinion, such testimony would establish that operations in January 1975 “were just a continuation of the temporary ‘holding action’ ” that began at the Hawkins Field in 1969 to combat the waste of crude oil. According to Exxon, producing patterns in the field could not have been significantly altered until the inert gas plant began operations in March, 1977.¹⁸

1. The Assignment of a Unit Allowable. One of the definitions of “significant alteration” used as guidance by the trial court in determining the status of Hawkins Field under Ruling 1977-2 and Section 212.-75, was the question of when there occurred at Hawkins Field an “increase of production allowables for any property that constitutes the unitized property.”

Upon the basis of uncontradicted evidence, the trial court found that the state designated unit allowable assigned to the field in January 1975 was a significant alteration in producing patterns within the contemplation of Section 212.75. As explained by the trial court at p. 843, 561 F.Supp.: red pro rata among all the other wells in the field. In its order approving the unitization of the Hawkins Field, the (Commission) granted the field a unit allowable and in doing so relinquished to Exxon the control of allocating production among the properties comprising the unit____ The unit allowable permitted Exxon to transfer production from lease to lease at will, without regard to prior limits on production at any lease, provided total unit production did not exceed the unit allowable. In effect, therefore the (Commission) accorded Exxon as of January 1, 1975 an increase in production allowables for any property within the Hawkins Field Unit to which Exxon chose to transfer production, and thereby triggered a significant alteration in producing patterns as of January 1,1975.” ¹⁹

“Prior to unitization the Texas Railroad Commission ... limited the number of barrels of oil ... each well within the Hawkins Field could produce. When a producer-shut in an unproductive well ... that well’s allowables were transfer-

The evidence established that Exxon immediately used the unit allowable in January 1975 by raising production above prior allowables by nearly 320,000 barrels at 65 leases, while production declined in an equal amount at 137 other leases. As found by the trial court — “(b)y shifting production within the unit at will, with only an eye to the unit allowable limit, Exxon effectively ‘transferred) production allowables among participating leases.’ ” 561 F.Supp. at 844. This, of necessity, resulted in substantial increases in “new” oil, without any actual increase in total production from the field. Prior to unitization, it was not possible for an Operator to increase production • by transferring allowables from one particular lease to another, because if one well became incapable of producing its allowable, any shortfall was assigned by the state Commission to all capable wells in the field, pro rata. PX 5 at Rule 15.

Exxon does not dispute the evidence establishing this transfer of production among leases.²⁰ Instead, it claims that in an MER field, such as Hawkins, the “increase in allowables” portion of the “significant alteration” definition, should be construed to mean an increase in the unit allowable. From this proposition, Exxon then argues that since the unit allowable was the same as the pre-unitization MER for the entire field, there was no “increase in allowables.”

The definition of what constitutes a “significant alteration in producing patterns” is to be applied as guidance to “all unitized properties” required to establish a unit BPCL prior to February 1, 1976. There is no exception made for units formed at MER fields, or for Exxon’s particular circumstances. The preamble to the significant alteration definition of Section 212.75 includes the following language:

“The (significant alteration in producing patterns) exception provides that notwithstanding the requirement to adopt a unitized BPCL as of the effective date of unitization, determinations of upper and lower tier crude oil volumes may continue to be made separately for properties that comprise the unit ... only for as long as (1) injection has not begun, and (2) there has been no transfer of production allowables among participating leases.” 41 Fed.Reg. at 36182, Reg. APX p. 278. (Emphasis supplied).

In Wiggins Bros., Inc. v. Department of Energy, 667 F.2d 77, 88, (TECA 1981) cert. denied, 456 U.S. 905, 102 S.Ct. 1749, 72 L.Ed.2d 161 (1982), we noted that the District Court was not free to disregard the intention of the agency which was expressed in a preamble to Ruling 1974-29. We there stated:

“It is well settled by decisions of this Court that the preamble to a regulation of DOE and its predecessors should be considered in construing the regulation and determining the meaning of the regulation ____

# * * * * T

Further, there is no support for the view that, under federal rules of construction of statutes and legislative regulations, definitions in a preamble may be ignored. The rule is contrary to this view.”

Exxon’s rewriting of Section 212.75 would eliminate the phrase “any property that constitutes” from that section, and require the Court to find that a significant alteration occurs only when there is an “increase in production allowables for ... the unitized property.” ²¹ Such construction would ignore the clear language of Section 212.75 itself, as well as the manifest intent of the agency as expressed in the preamble to the amendment of Section 212.75, 41 Fed.Reg. 36,182.

The District Court correctly looked to agency intent, as expressed by the language of the regulation and its preamble, for the appropriate explanation of the term “increase of production allowables for any property that constitutes the unitized property.” This term clearly includes a “transfer of production allowables among participating leases.” Exxon did in fact so transfer production allowables in January 1975.²²

2. Gas Injection at Hawkins Field. The second definition of “significant alteration” provided by Section 212.75, and used as guidance by the trial court in determining the status of Hawkins Field, concerns the injection of gas in and after January, 1975. The trial court found that:

“... after unitization Exxon continued— and increased — the injections of natural gas it had begun in 1970. Even if Exxon had only continued to inject natural gas at the rate it had done so before unitization — or even some lesser rate — it would have engaged in ‘the application of extraneous energy sources by the injection of liquids or gases into the reservoir’ — itself a significant alteration in producing patterns ____ But Exxon in fact substantially increased gas injection after unitization.” 561 F.Supp. at 844.

While the Railroad Commission had initially authorized injection of gas at an average of 20 million cubic feet per day in 1969 as a part of Exxon’s “interim plan” in preparing for unitization, this limit was removed by the Commission upon unitization. The trial court summed up the uncontested data from Exxon files, in this manner:

“... Exxon injected 28.2 mcf per day in January 1975 — 40 percent more than a year earlier. PX 177. Indeed, Exxon increased injections thereafter until by the fall of 1975 it was injecting more than twice as much gas as a year before .... Over all, in the first ten months of 1975 Exxon injected an average of 36.5 mcf per day — almost an eighty percent increase over the same period in 1974 ... Comparing totals for the years 1972 through 1975 reveals the same clear jump after unitization. Although between 1972 and 1975 increases averaged only 5 percent annually, total gas injections at the Hawkins Field in 1975 leaped 82 percent, ... with the 1975 total more than double the amount for 1972....” 561 F.Supp. at pp. 844-845.²³

In response to this uncontroverted evidence, Exxon first claims that the 1975 injection program was merely a “continuation of the interim project,” and therefore there was no significant alteration in producing patterns. The evidence cited above is to the contrary.

Exxon next claims that the district court erred in making post-unitization comparisons because pre-unitization gas injection in the eastern part of Hawkins Field was omitted. The record discloses that in 1974 Texaco and Amoco were the only operators injecting gas in the eastern portion of Hawkins Field. This injection was not to maintain pressure in the gas cap, but was for the purpose of regulating proportions of gas to oil in some wells. Even if the small amount of gas injected in the eastern field is added to Exxon’s injections in the western segment, the undisputed evidence is that post-unitization injection continued a dramatic climb above 1974 rates.

Exxon next claims that the gas injected at Hawkins Field was not from an “extraneous” energy source.²⁴ According to Exxon, the definition of “extraneous” means “gas not produced from the subject reservoir.” Since the gas injected at Hawkins was “entirely from the field reservoir,” Exxon insists that there could be no substantial alteration in production patterns at the Hawkins Unit.

The District Court correctly rejected this argument, citing the preamble to the February 1976 amendments, in which it was explained that the term “extraneous” included gas recycled from the reservoir. 561 F.Supp. at 844, fn. 43. That preamble provided, in pertinent part, that

“In response to the proposed definition, many comments expressed concern that the language ‘from extraneous sources’ might preclude some types of enhanced recovery projects that recycle reservoir gas____ The fact that the injected fluids or gases may have originated in the reservoir is irrelevant as long as they are injected by an extraneous energy source.” 41 Fed.Reg. at 4938, R. 37585. (Emphasis supplied).

As previously noted, the definition contained in this preamble has controlling weight. See Wiggins Bros., Inc. v. DOE, supra, 667 F.2d 77.

Exxon further argues that the explanation of “extraneous energy source” is somehow inapplicable, since it was intended to apply only to “enhanced recovery projects,” where the injected gas would “move crude oil through the reservoir.” In this respect, Exxon claims that “the continuation of the interim program at the HFU in 1975 was not an enhanced recovery project.” Exxon brief, p. 72. Such a claim at this stage of the proceedings is startling, and without merit. In its “Statement of Material Facts,” Exxon asserted that “The Hawkins Field Unit Agreement, ... as approved by the TRRC, authorized the establishment and operation of the unit facilities necessary for enhanced recovery operations in the Hawkins Field.” Various Government exhibits establish that Exxon admitted that gas injection at the Hawkins Field Unit was an enhanced recovery operation.²⁵

Since the undisputed evidence established that gas’injection occurred in January 1975, the trial court correctly found that a significant alteration in producing patterns at HFU occurred at that time.

F. The “Reasonable Alternative Basis” of Ruling 1977-2.

After having determined that a significant alteration in producing patterns occurred at HFU in January, 1975, under both the test of an “increase in production allowables,” and/or by gas injection at the field, the trial court further determined that Exxon had failed to justify another date upon some other “reasonable basis,” as allowed by Ruling 1977-2.²⁶

Exxon argued that “the only truly significant alteration that occurred in the producing patterns of the Field after unitization was the permanent arrest of gas cap shrinkage and the conversion of the reservoir drive mechanism to gas drive/gravity drainage.” The trial court approached the issue from this position, and determined that any alternative date which depended on lengthy testimony by expert petroleum engineers as to underground drive mechanisms was not within the intent of Congress since compliance with pricing regulations should be based upon simple objective data, readily observable by agency auditors.²⁷ The Court further held that since substantial shifts in production had occurred prior to any change in underground drive mechanisms, lease-by-lease accounting thereafter would have allowed Exxon to effectively avoid price controls:

“... the agency’s decision to define significant alteration in producing patterns in terms of easily observable events is -consistent with the intent of Congress that administration of price controls be workable and effective. The FEA with its limited resources could not afford to satisfy Exxon’s desire that the agency send droves of petroleum engineers to the Hawkins Field to conduct elaborate tests to examine the field’s underground drive mechanism. That is precisely the ‘quagmire’ that the agency had to avoid____” 561 F.Supp. at 841.

sk * * sk sk *

“To allow lease by lease accounting to continue after such shifts would have enabled unit operators to circumvent oil price controls. To require the agency to adopt a subjective test based on complex geological phenomena would have plunged the agency into an administrative quagmire which would have had the same result. The agency definition of significant alteration was a reasonable effort by the agency to fulfill its ‘duty to reasonably inhibit gerrymandering of boundaries undertaken to avoid price controls.’ Pennzoil Co. v. DOE, supra, 680 F.2d at 169. Accordingly it must be upheld.” 561 F.Supp. 843.

On this appeal, Exxon now claims that March, 1977,²⁸ the month gas plant began operation, is a reasonable alternative date, although its own records show that it calculated a unit BPCL in September, 1976 upon its own finding that a significant alteration had already occurred.

We reject this argument for two reasons. First, and of most importance, any meaningful comparison of production levels between “old” and “new” oil on a lease-by-lease basis became impossible once production across lease lines began in January, 1975. Any date based upon completion of and operation of the gas plant in 1977 would not be a reasonable alternative date for determining the question of when a significant alteration in producing patterns occurred at Hawkins Field.

This Court has previously recognized that:

“The realignment of the pattern of production would have played havoc with the federal pricing system had FEA permitted lease by lease property designations to continue in force after a unitization. It would have resulted in the recognition of artificially high quantities of new oil from some of the participating leases while other leases would be producing less or not at all. It would have permitted an operator to gerrymander production patterns by shifting producing wells from one lease to another.” Department of Energy v. State of Louisiana, 690 F.2d 180 at 190 (TECA 1982), cert. den., 460 U.S. 1069, 103 S.Ct. 1522, 75 L.Ed.2d 946 (1983).

See also, Pennzoil, supra, 680 F.2d at 169; Grigsby, supra, 585 F.2d at 1083.

We will not reiterate the evidence recited by the trial court concerning the shutting in of wells, and transfer of production from one lease to another following unitization of Hawkins Field. Exxon personnel, in a report dated June, 1975, attributed the increased volumes of “new oil” directly to unitization. This conclusion was repeated in various Exxon documents.

The Court is satisfied that given the extent and nature of the changes in Exxon production methods once unitization had been accomplished, it became impossible to make any meaningful comparison of “new oil” production on a lease-by-lease basis, long before the commencement of inert gas injection in March 1977. Therefore, no reasonable basis exists for making that occurrence an alternative date for computation of a BPCL at Hawkins Field.

In addition, we fully agree with the trial court’s conclusion that any resort to the testimony of expert petroleum engineers for the purpose of determining a reasonable alternative date for a significant alteration in production methods at Hawkins Field would be unworkable, and therefore, not a reasonable basis for determination of the question. Such a method of ascertaining the question would be completely impossible to “audit.” We believe that the “key event,” as found by the trial court, was the “realignment of producing patterns” among the various leases.

The determination of when the significant alteration occurred at Hawkins Field was correctly determined by the trial court, as a matter of law.

IX. THE EXTENT OF EXXON LIABILITY

•The District Court, relying upon our decision in Sauder v. Department of Energy, supra, 648 F.2d 1341, determined, on the basis of undisputed testimony, and Exxon’s own documents, that since Exxon caused the overcharges, it is fully liable for all of them.

In this appeal, Exxon contends that the principle of operator liability set out in Sauder does not apply. In addition, Exxon advances other arguments for the proposition that in any event it should be relieved of certain portions of the overcharges and interest.

We first review the Sauder case.

A. The Sauder Rationale: Operator ■ Liability.

In Sauder, the Operator owned 34 percent and 41 percent interests in two properties where exempt stripper well oil was wrongfully claimed. We held that he was liable for all overcharges attributable to the two leases, even though other interest owners had in fact received the majority of the profits.²⁹ We held that:

“Of all the working interest owners, (Sauder’s) is by far the largest single holding. He is the sole operator of the leases and has been the animating force behind the continued production at the Bradfield Pool____ It can fairly be said that it was he who caused the overcharges.

In these circumstances, we think that it is within the authority and discretion of the agency to hold the owner-operator of a lease liable for the full amount of the overcharge. To require the agency to seek refunds from each individual property owner would place a heavy burden on the agency, limiting its ability to repair infractions of its pricing rules. Shifting the burden to one in Sauder’s position of responsibility aids the task of enforcement without working unfairness.” (648 F.2d at 1347-48)

In applying Sander to the Hawkins Field situation, the trial court summed up Exxon’s situation in this manner:

“... Disputing its role as the animating force at the Hawkins Field, Exxon argues that under the terms of the Unit Agreement each Hawkins Field interest owner takes its share of production in kind and independently determines the price at which to sell the oil. Exxon’s description of itself as just another interest owner is disingenuous. Exxon was the prime mover and animating force behind the formation and operation of the Hawkins Field Unit and, under the rule of Sander ... Exxon may be held responsible for all overcharges at the field.” 561 F.Supp. at 849.

The trial court emphasized that:

“The factual basis for holding Exxon responsible for the full amount of the overcharges at the Hawkins Field is even stronger than in Sander. Throughout the relevant period Exxon’s working interest at Hawkins ranged between 76 and 80 percent; its share of unit production, when including royalty interest owners, was about two-thirds____ Exxon was the animating force behind formation of the Hawkins Field Unit, having begun to promote it as early as 1969____ Exxon sought and received permission in 1969 to inject natural gas into the field, which it began the following year____ As operator, Exxon chose the wells to shut-in, the wells where production was to go up or down, where to inject gas, and how much____ Most important, Exxon decided how the unit would account for upper and lower tier oil, first in 1974, before the field was legally unitized ... later after Ruling 1975-15 was issued, ... and finally when it switched to a unit BPCL under Section 212.75 in September 1976. ... Accordingly, Exxon may ‘fairly be said (to have) caused the overcharges.’ Sander v. DOE....” 561 F.Supp. at 849-850.

The undisputed evidence, so ably summarized by the trial court, supports the conclusion that Exxon is responsible for all of the overcharges under the rationale of Sander. To require the Government to gather evidence and to bring multiple actions against more than 200 working interest owners, and 2200 royalty interest owners at Hawkins Field would “plunge the agency into an ‘administrative quagmire’ which would effectively block enforcement of oil price controls at the Hawkins Field.” 561 F.Supp. at 850.

In this appeal Exxon now takes the position that it cannot be liable for various portions of the liability because it was acting merely as the agent of other interest owners, and the trial court failed to determine first that Exxon would be entitled to contribution or indemnification from all other owners who benefited from the overcharges.

While Exxon did not raise the “agency” issue as such in the summary judgment proceedings, and the issue was not specifically discussed by the trial court at 561 F.Supp., Exxon has always resisted the suggestion that it is liable as unit operator for the sales of other interest owners in the Hawkins Field. When Exxon earlier disclaimed its liability as an operator by means of a motion to have this case dismissed for lack of indispensable parties, contending that the rights of other interest owners were at issue and might be adversely affected because they would be liable for contribution and indemnification should Exxon be found liable, the trial court fully examined the nature of Exxon’s liability as operator under the Sauder ruling, and discussed the question of Exxon’s right to contribution or indemnification from other owners in the field. United States v. Exxon Corp., supra, 94 F.R.D. 252, 257-258, (1981):

“As long as the principal owner-operator caused the overcharges, Sauder allows complete recovery from that party, regardless of whether it is actually in possession of the monies received pursuant to the overcharges.

“Similarly, under Rule 19(a)(2)(i), the court’s analysis of Sauder means that the interests of other unit owners in this case will not, as a practical matter, be impeded. The court’s ultimate disposition of the case will find Exxon liable for those overcharges which Exxon has caused; the decision will not rule upon the actions of other interest owners and, therefore, could not be employed as precedent to hold them liable in the future. That Exxon may attempt to seek indemnification or contribution from the other interest owners for part of the overcharges the court determines Exxon has been responsible for does not alter the court’s conclusion.

“Such a suit by Exxon would turn upon the specific reimbursement agreements entered into by the parties, agreements not at all at issue in the instant case. Furthermore, if the disposition of this case has any effect upon a subsequent reimbursement suit by Exxon, it may be to assist (emphasis of the court) the other interest owners. A finding by the court that Exxon could be found solely (emphasis of the court) responsible for all overcharges could arguably aid other interest owners in defending against a suit for contribution or indemnification.” (Except as noted, emphasis supplied).

The above decision was not appealed by Exxon. It has now been found that Exxon caused the overcharges. The trial court did note that Exxon “is not without recourse against the other interest owners, and so imposing full responsibility on Exxon will aid in enforcement of price controls without unfairness to Exxon.” 561 F.Supp. 850. With regard to this observation, it was noted that Exxon had twice warned other interest owners that recom-putations of payments might become necessary because of its interpretation of pricing regulations,³⁰ and Exxon itself believed that any potential losses because of overpayment could be recovered.³¹

This notation by the trial court was not an attempt to determine the nature or extent of Exxon’s right to contribution or indemnity, if any, and it certainly was not an adjudication of the rights or liabilities of absent interest owners, not parties to the litigation.³²

The trial court only observed that “(s)hould Exxon turn to the other Hawkins Field interest owners for contribution or indemnification Exxon, like Sauder, could attempt to deduct the other interest owners’ share of the overcharges from future royalty payments.” 561 F.Supp. at 850. (Emphasis supplied). This it not to say that Exxon’s attempt would be successful, or that the government must prove that it would be successful, prior to a finding that a right to restitution has been established. The Section 209 action now before us is not the vehicle for determination of Exxon’s rights against, or obligations to third parties. To find otherwise would only serve to embroil the agency in collateral matters, and “hinder, disrupt, and render torpid the statutory scheme for expedited enforcement of pricing controls.” Dyke v. Gulf Oil Corp., 601 F.2d 557 at 567, (TECA 1979), Gulf Oil Corp. v. Dyke, 734 F.2d 797, (TECA 1984), cert. den., — U.S.-, 105 S.Ct. 173, 83 L.Ed.2d 108.

For all of the reasons discussed above, we find that the trial court correctly determined that Exxon is solely liable for overcharges which it caused at the Hawkins Field Unit, and that this liability is not dependent upon a finding that Exxon is entitled to contribution for such overcharges from other interest owners in the field.

B. The Amount of the Overcharges. .

The trial court found that the calculation of Exxon’s overcharges became a straightforward accounting matter and found that the DOE calculations “accorded Exxon the benefit of every favorable modification of the applicable regulations, even if not claimed by Exxon.” There was no challenge to the mathematical accuracy of the government’s calculation, and the trial court accordingly accepted the figure of $895,501,163.85 as the correct total of all overcharges. 561 F.Supp. at 857.

In this appeal, Exxon contends that the amount of its liability, as described in the judgment, is “grossly overstated” for a number of reasons.

1. The Texaco Production. Exxon claims that’it has no liability for the share of Hawkins Field production “owned, taken in kind, and refined or sold by Texaco, Inc.” The amount of the overcharges attributable to the Texaco- share is said to be $53,329,574, before interest.

The trial court correctly disposed of this contention upon the basis of our ruling in Sauder. 561 F.Supp. at 850, fn. 52. In Sauder we relied upon Tenneco Oil Company v. Federal Power Commission, 442 F.2d 489 (5 Cir.1971) in which the Court found that Tenneco was liable for all excess charges for natural gas, including payments made to its co-owners or its predecessor. We disposed of Sauder’s argument that a restitution order may not require a refund of money not actually received in this manner:

“Sauder argues that the common law concept of restitution does not encompass the restoration of benefits unjustly received by third parties, and that the agency and the court have undertaken to read a damage remedy into the statute.

We disagree____we now hold that it is within the agency’s authority to order an owner-operator in a situation such as Sauder’s to make restitution of the total overcharges.” 648 F.2d at 1348, 1349.

It is entirely clear that in the case of the Texaco production, uncontested facts established that Exxon did “cause” the overcharges attributable to the Texaco interest in Hawkins Field. During the first four months of 1975, Texaco calculated the amounts of “new” and “old” oil, using a unit BPCL. Because Exxon was pricing other oil from the field upon a lease basis, it was paying larger royalties than Texaco for “new oil.” As a result, some royalty owners threatened to sue Texaco. This caused Texaco to adopt Exxon’s method of calculation, and to allow Exxon to determine the breakdown for Texaco’s production share for the remaining period of price controls.

Exxon’s claim that it is entitled to a reduction in its liability on account of the Texaco production is without merit.

2. The Interpleader Action: Overcharges October, 1980 — January, 1981. Exxon complains that it can not be held liable for overcharge amounts “that were never paid or received” by anyone. In this respect, Exxon claims that during the period from October, 1980, until the end of price controls on January 28, 1981, it suspended payments to those Hawkins Field interest owners from whom it purchased crude oil of all amounts in excess of a price derived from unit-wide accounting, as opposed to lease-by-lease accounting, so that during this period, Exxon paid only the price for crude oil that was permitted by the regulations under the agency’s theory, and as permitted by the trial court.

With its Answer to the complaint filed by the Government in this litigation, Exxon filed a petition and counterclaim for inter-pleader and declaratory relief, tendering into Court “amounts equal to the disputed amounts resulting from all purchases of Unit crude oil by Exxon” pending a determination of the rights of all claimants to the disputed funds. It was noted that the owners of the crude oil were claiming that they were entitled to the full amount of the prices they had been receiving, including the portion that the DOE claimed to be overcharges. It was further noted that certain of these interest owners had sued Exxon in Texas, seeking a declaration that they were entitled to receive the full amount of the prices they had been receiving. Exxon Corp. v. United States, supra, 655 F.2d 1112 (the Jarvis Christian College litigation in Texas).

In connection with this Interpleader, bonds totaling $20 million were filed to secure the suspended payments pending resolution of the controversy.

In its Reply to the Proposed Judgment, Exxon claimed that the sums bonded into Court pursuant to the Interpleader action either should not be included in the overcharge amount set out in the judgment, or should be applied in partial satisfaction of the judgment. The amount of this credit or reduction in the judgment sum is said to be $18,039,585, the total of such suspended payments.

The Government responded in this manner:

“Exxon’s argument ... that because it established a $20 million bond when it filed a questionable interpleader action, it should have its liability reduced, is difficult to fathom. In any event, Exxon’s argument is premised upon the company’s blatantly incorrect contention that, because the firm suspended certain payments to those HFU interest owners from whom it purchased crude oil during the period of October 1980 through January 27,1981 ‘no overcharges were caused during the period covered by the inter-pleader action.’ ... Exxon ignores the fact that, although the company suspended certain payments to the interest owners, Exxon reported the higher illegal price to the Department’s Entitlements Program as its cost of acquiring this oil ... Hence, Exxon benefited substantially from the higher illegal price which it set and these suspended amounts constitute overcharges____”

The operation of the “Entitlements Program,” 10 C.F.R. Section 211.67, and its effect upon sales and certification of old and new oil in the Hawkins Field, was ably described by the trial court, 561 F.Supp. at 852:

“... Exxon’s portrayal of itself as victim ignores the workings of the mandatory Entitlements Program which, together with price controls on refiners, resellers and retailers, allowed Exxon to spread the cost of its Hawkins Field overcharges across the land. The purpose of the Entitlements Program was to permit all refiners to share the financial benefits of the limited available quantity of relatively inexpensive price-controlled crude oil. Under the Entitlements Program, the FEA each month allotted to each refiner a certain number of entitlements, equal to that refiner’s deemed share of the old oil refined nationwide during that month. If a refiner was in fact able to obtain and refine a proportionately large amount of low-priced old oil, greater than its allotted entitlements, that refiner would have to buy entitlements from those less fortunate refiners which refined a proportionately small amount of low-priced oil. The price of an entitlement was roughly the difference between the price of controlled and uncontrolled oil. The effect of the entitlements transfers, therefore, was to equalize the average weighted crude oil costs of all refiners.

“As a result of Exxon’s misclassification, less old oil was reported to the Entitlements Program. DOE therefore issued fewer entitlements to each refiner, and each refiner had to purchase more, or sell fewer, entitlements than it would have if Exxon had properly classified the Hawkins Field oil. Exxon, by improperly classifying. old oil as new oil at the Hawkins Field, thereby increased the average cost of crude oil of all refiners. At the same time, although Exxon as refiner appeared initially to bear the burden of the overcharges of Exxon as producer, in fact Exxon was able to keep the ill-gotten gains by improving its entitlements position. It was able to buy fewer or sell more, entitlements than it had a right to.”

Following our review of the record, and in consideration of the workings of the Entitlements Program, as described by the trial court, we agree with the Government’s assertion that the fact that Exxon may have suspended payment of “overcharges” attributable to shares of production which it purchased from other interest owners during the period of October, 1980 to January, 1981, does not mean that there were no overcharges during that period. According to Exxon, the- money was still due to be paid, and “Exxon reported (and was reimbursed on the basis of) the higher (illegal) price when Exxon reported that oil to the Entitlements Program.” Plaintiff-Appellee Brief, p. 93, fn. 118.³³ It is clear that in this manner, overcharges attributable to Exxon’s purchase of production from other interest owners although never paid to other owners during this time period, were spread throughout the industry by the operation of the Entitlements Program.

At the request of Exxon, it was excused from responding to any motions filed concerning its petition and counterclaim in In-terpleader, pending further order of the Court Order, August 20, 1981. A further order was entered by the trial court on November 18, 1981 holding in abeyance all further proceedings in the interpleader action.

The Government points out that Exxon can dismiss its interpleader action at any time, and recover its bond. Exxon has not paid into court any money pursuant to this interpleader, and certainly at this time there is no cash interpleader fund available to be applied as a credit on the judgment entered in this action. Exxon is not entitled to any reduction in the amount of the judgment on account of its suspension of payments to other interest owners.

Exxon also contends that the judgment entered below improperly includes the production of some interest owners who were not parties to the Hawkins Field Unit Agreement. Our review of the record discloses that this new argument, presented by a footnote to the Exxon brief, was not properly raised or preserved for our review on appeal.

3. Consent Orders. Exxon claims that it is entitled to a reduction of its liability at least in the approximate amount of $70 million because it can not be held liable for overcharges attributable to the interests of others in Hawkins Field who have previously entered into consent orders with the Department of Energy.

The consent orders in question were entered into with such companies as Mobil, Standard Oil of Indiana, Sun Company, Houston Oil and Minerals Corporation, Lyons Petroleum, American Petrofina, and Conoco.

These so-called “global settlements,” such as the one entered into with Standard Oil, whose subsidiary, Amoco Production Company held an interest in Hawkins Field, contained provisions to the effect that the agency released “completely all administrative and judicial claims, demands, liabilities, causes of action or other proceedings that (DOE) has asserted or may be able to assert against Standard arising, before or after the date hereof, out of any federal petroleum price or allocation requirement,” for the period covered by the consent Order. (3/6/73-12/31/79)

Exxon contends that the settlements have the effect of releasing any claims that the agency might have had against other interest owners at Hawkins Field, and that the settlements also “cured” any violations which such companies may have made in pricing “new oil” at the field. According to Exxon, such releases bar the agency’s “effort to impose derivative liability” upon Exxon as the operator, and “purported agent” of the released companies. Exxon’s theory of “vicarious liability” is stated in this manner:

“The only legal basis upon which Exxon could be held liable for the alleged overcharges attributable to these interest owners’ shares of HFU production is that Exxon supposedly acted on behalf of these interest owners in the disposition of their shares of HFU production: i.e., the apparent vicarious liability that stems from the DOE’s theory of operator liability. However, because these purported ‘principals’ have obtained releases from the DOE settling any claims that might be asserted against them, there is no basis for holding their purported ‘agent’ (Exxon) liable.” (Exxon Reply to Proposed Judgment).

As an alternative argument, Exxon contends that the settlements, with parties who are jointly liable with Exxon, reduce the Government’s “potential recovery from (a) non-settling defendant ...,” in this case —Exxon.

It appears that the issue of consent orders was first raised by Exxon in a memorandum in support of its motion to dismiss for lack of indispensable parties filed in August, 1980. In urging that any judgment in the action could not avoid prejudice to absent parties, Exxon pointed out that the court did not “have before it the affirmative defenses of the absent interest owners.” In this regard Exxon, referring to consent orders with Standard and Mobil Oil Companies, claimed that “the DOE seeks to recover from Exxon monies previously received by those interest owners and made an integral part of their settlement agreements with the agency.” It was also argued that “(o)ther interest owners may have additional affirmative defenses, such as claims of estoppel and limitations, which cannot be presented in their absence.”

In ruling on the motion to dismiss, the trial court, noting our order permitting the Jarvis plaintiffs, as well as “all other interest owners” to intervene in the District of Columbia, if they wished to do so,³⁴ found that the other interest owners would not be prejudiced by not being joined, and further found that Rule 19(b), Fed.R.Civ.Proc., did not require dismissal of the Government’s action, even if the parties should be joined under Rule 19(a). United States v. Exxon, Corp., supra, 94 F.R.D. at 259.³⁵

Our examination of the Consent Orders contained in the Record reveals that Exxon was not a party to any of the settlements, it did not pay any sum of money to the Government for release of any Exxon liability under these settlements, none of the consent orders mentions Exxon, or the Hawkins Field Unit, and, although some of the consent orders identify certain litigation terminated by the settlements, none mentions this litigation which was pending in the District of Columbia at the time the consent orders were executed. In the settlements, the Government agreed not to bring suit “against” the settling parties, and in the Conoco agreement “only civil claims by DOE against Conoco” were settled, while the Sun consent order only required the DOE to terminate actions “against Sun.” None of the consent orders could, or did they, purport to release Sun, Conoco, etc., from suits by private parties for damages under Section 210 of the ESA, or for their liability to other parties, if any, for contribution, indemnification, unjust enrichment, or for other relief. Cf. City of Long Beach v. Department of Energy, 754 F.2d 379 (TECA 1985).

Any rights under the consent orders accrued solely to the settling parties and not to Exxon. None of the settling parties sought to intervene in this action to assert those rights against the Government, and we do not find that Exxon has ever been given authority as agent to do so on their behalf.

It is readily apparent that Exxon’s concern about settlements which may have been made by companies who are not parties to this litigation is in fact a concern about whether or not it will be successful in any future attempt to seek contribution or indemnity from those parties on account of any payment Exxon might make upon the judgment here. As we have previously pointed out, Exxon’s liability is not a vicarious one, based upon ordinary notions of “agency.” It has been found that Exxon was the “animating force” responsible for violating the crude oil pricing regulations, and this liability is not dependent upon finding of “joint liability” on the part of third parties who are not defendants in this action, or upon proof of Exxon’s right to contribution or indemnity from those third parties.³⁶

Under these circumstances, we conclude that Exxon’s claim that it is entitled to some adjustment in liability on account of consent orders and settlements made between the Government and others not parties to this case is without merit.

C. Prejudgment Interest.

In the exercise of its equitable powers, the trial court determined that restitution by Exxon of overcharges should be made, with interest from the date of overcharge, in order to deprive Exxon of “all enrichment obtained at the (victims’) expense,” such enrichment necessarily including “the benefits Exxon obtained by having the use over the years of the money illegally obtained.” 561 F.Supp. at 858.

The Government proposed several alternative rates, such as the prime rate, the schedule of interest rates which had been applied by the DOE in administrative actions since February, 1980, or a rate based upon Exxon’s annual average rate of return, after tax, for capital employed in domestic production from 1975-1981, which was 23.7%.

The Court adopted and applied the schedule used by the Federal Energy Regulatory Commission in administrative enforcement actions, which fluctuated at three month intervals from 9% to 20.31%, and which had, since October, 1979, been based on average prime rate values as determined by the Federal Reserve. Such rates were imposed upon a finding that these would have been the rates imposed had the overcharges been assessed by Remedial Order, following administrative review, and because these rates had a reasonable relation to the value of the overcharges caused by Exxon. 561 F.Supp. at 858, 864.

For the first time in this appeal, Exxon, relying upon Eastern Air Lines, Inc. v. Atlantic Richfield Co., 712 F.2d 1402, (TECA 1983) cert. den., — U.S.-, 104 S.Ct. 278, 78 L.Ed.2d 258 (1983) claims that assessment of any prejudgment interest in this ease is error.³⁷ In Eastern Air Lines, a private action for damages under Section 210 of the ESA, the trial court denied a claim for prejudgment interest when the amount of damages claimed to be due was uncertain. Affirming this ruling, we found that “(a)t all times during this litigation it was evident that the amount claimed by Eastern was the subject of great uncertainty, and it would be inequitable and unjust to make such an award in this case.” 712 F.2d at 1410.³⁸

More recently we found it to be error to award prejudgment interest in a private action under Section 210, when the ultimate amount of overcharges was “subject to great uncertainty.” Gulf Oil Corp. v. Dyke, 734 F.2d 797, 806, supra, (TECA 1984) cert. den., — U.S. -, 105 S.Ct. 173, 83 L.Ed.2d 108. See also, Zahir v. Shell Oil Co., 718 F.2d 1567, (TECA 1983) another private action involving disputes between a gas supplier, franchisee and dealer in possession of gas station franchise, where the damage claim was “not for a liquidated or readily liquidatable sum.” We there found that the trial court did not abuse its discretion in declining to award prejudgment interest. 718 F.2d at 1573.

Eastern Air Lines, etc. are clearly distinguishable in that they involved private actions for damages, and not claims for restitution brought by the Government under Section 209 of the ESA. Indeed, in Eastern Air Lines we relied upon Belcher v. Birmingham Trust National Bank, 488 F.2d 474, 478 (5 Cir.1973) which applied state law, for our conclusion that “prejudgment interest is not available where the amount of damages claimed to be due is uncertain.” 712 F.2d at 1410. Belcher involved a claim by an appraisal company for services rendered in valuing a corporation’s assets. In granting a fee, the trial court included prejudgment interest as part of the award. The Fifth Circuit determined that interest was improperly included because of the applicable state rule in Alabama that interest is not allowed on unliquidated demands.

We need not concern ourselves with any discussion of varying circumstances which may surround the award of damages under state law or under Section 210 of the Act. In Sauder, the Remedial Order at issue ordered Sauder to refund “overcharges in the total amount of $342,589.00 plus interest accrued on unrefunded overcharges” at certain specified rates. In overruling Sau-der’s complaint that he should not be liable for interest, the trial court ruled that such payment was appropriate:³⁹

“Section 209 of the ESA ... gives the Court power to grant an injunction against Sauder. The statute goes on:

‘In addition to such injunctive relief, the court may also order restitution of moneys received in violation of any such order or regulation.’

“The statute does not provide for the payment of interest on the moneys received. On the other hand, ... courts have imposed interest in situations involving agency orders without express statutory permission.

******

“The same reasoning applies here. Sauder has had the use of the money which was overcharged to Mobil, and Mobil has been deprived of that use. Therefore, to make Mobil whole, interest on the $342,589 was properly ordered by FEA. The Court will order Sauder to make refunds to Mobil plus interest, in the percentages ordered by the agency.”

In affirming the trial court in Sauder, we did not separately discuss the issue of prejudgment interest, but our approval of the interest award is inherent in our ruling there regarding the equitable powers of the court and agency “to set things right”:

“Equitable pricing is one of the important objectives of the Emergency Petroleum Allocations Act, ‘and this objective cannot be bogged down in an administrative quagmire.’ ... Congress has explicitly given the courts ‘equitable power ... to set things right and order restitution,’ in instances of overcharging ... The district court’s order enforcing the agency’s decision is fully consistent with this grant of authority.” 648 F.2d at 1348. (citations omitted).

In discussing the scope of Section 209 of the ESA, we further observed that:

“... even if the statute is construed strictly, it appears that the agency’s action is within its grant of authority. ‘In equity, restitution is usually thought of as a remedy by which defendant is made to disgorge illgotten gains or to restore the status quo, or to accomplish both objectives.’

******

“Here the agency seeks only ‘to restore the status quo’ and ‘to set things right.’ It does not seek to recover Mobil’s damages, which- may or may not be the amount of the overcharges, but asks Sauder to make restitution of the precise amount of the overcharges paid to all property owners plus interest.

“Nor do we believe that Congress intended to limit the agency’s and courts’ power to restore overcharges. The legislative history indicates that the explicit reference to restitution in Section 209 was to settle any doubt that ‘there was an inherent equitable power in the court to set things right and order restitu-tion____’ There is no indication, however, that the section thereby attempts to limit the power of the courts or the agency to restitution or to a particularly strict interpretation of restitution. ‘Unless a statute in so many words, or by a necessary and inescapable inference, restricts the court’s jurisdiction in equity the full scope of that jurisdiction is to be recognized and applied____’” (648 F.2d at 1348).

(Emphasis of the court; citations omitted).

Exxon further suggests that it was improper to award interest of any kind in this instance, inasmuch as the judgment here should be considered in the nature of a penalty, upon which interest may not be allowed. This argument is based upon Exxon’s specious argument that since the trial court did not trace injury to specific victims, there were no “victims” and hence there could be no order of restitution. From this, Exxon claims that an award to state governments, which were not themselves “victims” of overcharges, was in fact an imposition of a penalty and not an award of restitution.

As previously noted, the trial court determined that civil penalties would not be imposed upon Exxon. The Government has not pursued that remedy on appeal. As will be noted in our discussion, infra, the court found the ultimate victims of Exxon overcharges to be the consumers of this nation, and its order distributing the recovery of overcharges employs the state governments merely as conduits for such distribution.

We conclude that the award of prejudgment interest under the circumstances of this case was clearly within the discretion of the trial court. We further conclude that the award of such interest, at the rates selected by the trial court in Appendix II to its opinion, 561 F.Supp. at 864, was not an abuse of such discretion, and there was no error.⁴⁰

D. Equitable Considerations.

Exxon has presented, as a separate issue, its contention that that trial court, as a court of equity, erred in requiring restitution of the full amount of the overcharges with interest. In particular, Exxon complains that the court could not determine what was “equitable” without conducting an evidentiary hearing and thereafter “balancing the equities” under the facts presented at such hearing.

The essence of this claim is Exxon’s contention that the trial court ignored its own conclusions that the Exxon unitization program was “undertaken for bona fide business reasons” which had begun “long before any regulations on crude oil prices existed,” and that Exxon “accurately represented its conduct to the agency,” and at times received from the agency informal and puzzling replies to Exxon’s inquiries. Exxon further points to alleged “confusion” in interpretation of the regulations, its right to certain amounts of “new oil” which it lost because of unitization under the court’s interpretation of the regulations, and its reiterated complaint that it was inequitable to' refuse to extend the benefits of Section 212.75, when the “burdens” of that section were applied retroactively.

The trial court’s findings regarding the retroactive impact of Section 212.75 have been fully discussed and determined, supra.

Exxon’s arguments concerning the bona fides of its business conduct were resolved in its favor by the trial court in determining that the imposition of civil penalties in this case would be inappropriate, and such findings were before the court in making its order of restitution. In arriving at its decision on penalties, the court pointed out that this did not excuse Exxon’s behavior:

“Exxon pushed the agency at every turn and probed each nuance in the regulations to interpret them to Exxon’s advantage, sometimes ignoring their unequivocal dictates.” 561 F.Supp. at 858.

Exxon’s reference to “confusing regulations” and agency indecision, is simply a recasting of its unsuccessful claim in the trial court that the Government was es-topped from challenging the legality of lease-by-lease accounting. The argument made here on “equitable grounds” is no more persuasive, and we adopt the findings of the trial court on that issue, as set out at 561 F.Supp. at 845-848.⁴¹

Finally, Exxon again raises the issue of prejudgment interest by asserting that it is inappropriate “where a party’s actions were not ‘willful’,” and were not intentionally wrong. For the reasons heretofore discussed, such argument is without merit.

X. THE REMEDY

Having determined the nature and extent of Exxon’s liability, the district court was required to fashion an appropriate remedy in restitution commensurate with the extent of that liability. In so doing, the court first determined that, because of the nature of the Entitlements Program, and the price control regulations, the effect of Exxon’s wrong had been spread throughout the distribution chain, to the ultimate consumers, so that it was impossible to trace the overcharges to specific victims, or to calculate precise damages sustained by such persons. Under these circumstances, the district court concluded that the overcharges should be distributed to those victims by channeling the funds received in restitution through the states, for the purpose of funding energy programs designed to benefit all citizens. In so doing, the Court used as guidance certain principles adopted by Congress in the Warner Amendment, Section 155, Pub.L. No. 97-377, 96 Stat. 1830 (1982), directing the disbursement of unclaimed petroleum violation escrow funds:

“... Section 155 clearly bespeaks the intent of Congress that violators of the petroleum price regulations should be made to disgorge their illgotten gains even in situations, like the case before the court, where the victims of the petroleum overcharges cannot be identified. The colossal scale of Exxon’s wrongdoing, and the workings of pervasive regulations to spread the burden of that wrongdoing impossibly far and wide, must not deter this court from fashioning an appropriate equitable remedy. The purpose of the domestic petroleum price regulations was to keep oil prices down, to relieve consumers of some of the burden of towering oil costs. The five energy conservation programs identified in Section 155 operate across the nation to reduce that same burden, either by reducing overall consumption through conservation or by direct financial assistance to those most in need. Although one might speculate as to alternative remedies, this court respects the wisdom of the solution chosen by Congress and shall adopt it as the most appropriate equitable remedy in the circumstances of this case.” (561 F.Supp. at 857)⁴²

In this appeal, Exxon contends that the award to uninjured state governments is not “restitution,” that such award improperly exposes Exxon to multiple liability, and that the district court assessed liability upon erroneous assumptions concerning the workings of the Entitlements Program, and Exxon’s “unproved refiner allocation violations,” without granting Exxon any discovery or opportunity to defend charges of refiner violations. The point to these challenges of the remedy adopted by the trial court appears to be that Exxon considers that it should retain or have a share in the overcharge funds because it was a “first purchaser” of production from the field, or because it, as a refiner, was a participant in the Entitlements Program, or because it would be appropriate' to leave the overcharges in Exxon’s hands because it is impossible to identify the ultimate victims.

A. Primary Jurisdiction.

Some suggestion has been made that since the Department of Energy has significant expertise in assessing the implications and impact of its various regulations upon the petroleum industry, the question of ascertaining the victims of the overcharges in this case should be first referred to the agency for determination under the doctrine of primary jurisdiction. United States v. Western P.R. Co., 352 U.S. 59, 77 S.Ct. 161, 1 L.Ed.2d 126 (1956), and see In re Dept. of Energy Stripper Well Exemption Lit, 578 F.Supp. 586, 595-596 (D.Kan.1983).⁴³

It should be remembered that this appeal involves an action for restitution, brought by the agency under the provisions of Section 209 of the Act — it does not involve proceedings to enforce a Remedial Order issued by the agency through administrative proceedings. When an agency chooses to file suit and is the plaintiff before the Court, the doctrine of primary jurisdiction does not apply. It has been pointed out that “deference to an agency’s primary jurisdiction makes little sense in the context of an enforcement proceeding initiated by the agency.” United States v. Alcon Laboratories, 636 F.2d 876, 888 (1 Cir.1981), cert. den., 451 U.S. 1017, 101 S.Ct. 3005, 69 L.Ed.2d 388.

The litigation began as an administrative proceeding, “and might have continued in that forum had the defendant not filed an action for declaratory relief” in Texas. United States v. Exxon Corp., supra, 470 F.Supp. 674. Instead, the DOE withdrew its Notice of Probable Violation and began this action under Section 209. We previously ruled that the Department had dual enforcement authority, and that it need not exhaust its administrative authority before proceeding directly in court to enforce its remedy for restitution. Exxon Corp. v. United States, supra, 616 F.2d 526.

While a referral to the OHA might be appropriately ordered by a trial court in the exercise of its discretion under some circumstances,⁴⁴ we do not find that the Exxon litigation should be referred as a matter of law under any doctrine of primary jurisdiction. In our view, administrative proceedings would be “unnecessary, unnecessarily expensive, and likely to have a preordained outcome,” fostering further needless delay. United States v. Elrod, 627 F.2d 813, 818 (7 Cir.1980).

B. Intervenors.

The appellant intervenors, described above, have presented competing claims as to why each should receive a share of the refunds because of the manner in which each bore the burden of the overcharges.

The refiner intervenors claim that any burden was automatically shifted from first purchaser-refiners to all of the over 200 participants in the Entitlements Program by 10 C.F.R. Section 211.67. They claim the overcharges should be distributed among all refiners. The jobbers and independent gasoline dealers claim that the refiners passed through overcharges to them, and they are entitled to share in the refund. Certain groups of consumers, such as the airline industry, utilities, freight lines and motor vehicle owners claim that they bore the burden of the overcharges, and they suggest a remedy whereby such groups can be individually compensated by shares in the refund.

These intervenors complain that they were not allowed to appear as parties to present evidence on their various claims for refund, and so they were wrongfully denied their “day in court”. .Only two groups, the Indicated Refiners and the Gasoline Retailers sought to intervene prior to the decision of the trial court.⁴⁵

After judgment was entered in the trial court, we filed our opinion in Cities Service Co. v. Department of Energy, supra, 715 F.2d 572, determining that Cities Service had no right to intervene in a DOE eriforcement action against Pennzoil for violation of price controls on crude oil. At issue was a DOE counterclaim against Pennzoil, filed under Section 209 of the ESA, which was settled by Pennzoil’s agreement to pay $14,750,000 to the United States Treasury. In so doing, we discussed the significant difference between Section 209 and Cities’ private right of action under Section 210 of the Act:

“While sections 209 and 210 have a common purpose—the enforcement of DOE’s regulations—they vindicate different rights. ‘Actions by the United States under ESA Section 209 are taken to enforce public, not private, rights.’ Citronelle-Mobile Gathering, Inc. v. Edwards, 669 F.2d 717, 722____ By contrast, the action authorized by section 210 ‘is intended to be brought by private persons against other private persons.’ ____ We have previously warned against ‘(t)he commingling of private and agency enforcement devices for which Congress has made separate provisions ____’ Dyke v. Gulf Oil Corp., 601 F.2d 557, 567 ... The outcome of the instant case, an agency enforcement action brought by DOE, will in no way affect Cities’ private right to sue Pennzoil directly for damages ... Under these circumstances, the district court correctly concluded that Cities has no interest that would be impaired by disposition of this action.” (715 F.2d at 573-574)

Exxon attempts to distinguish Cities Service upon the ground that the overcharging firm (Pennzoil) had “voluntarily” entered into a consent order with the DOE, thereby taking the risk that it might also have to pay damages to third parties under Section 210 of the Act.

Exxon’s claim of possible exposure to “double liability” is without persuasion. Any private action under Section 210 would be governed by state statutes of limitations. See Gulf Oil Corp. v. Dyke, supra, 734 F.2d 797, 808, and City of Long Beach v. D.O.E., supra, 754 F.2d 379. Exxon claimed that the two year statute of limitations for the State of Texas would apply to any private action under Section 210.

In any event, any Section 210 liability award against Exxon can be adjusted, if necessary, to take into account the restitution award here. See Bulzan v. Atlantic Richfield Co., 620 F.2d 278, 283-284 (TECA 1980), and see Dyke v. Gulf Oil Corp., supra, 601 F.2d at 566 (1979).⁴⁶

We adhere to our prior rulings in Dyke and Cities Service to the effect that public and private rights of action are separate and distinct, and not to be mingled in one proceeding. To do otherwise would hopelessly disrupt orderly proceedings in this type of action, and, as pointed out in Dyke, “the timing and scope of enforcement would become subject to the vagaries of private litigation____ Any wholesale commingling of discrete administrative and judicial responsibilities in public and private actions likely would hinder, disrupt, and render torpid the statutory scheme for expedited enforcement.” 601 F.2d at 567.

Consumer Intervenors, presently without standing to institute private actions against Exxon under Section 210, agree that the overcharges were “passed down” to end consumers. They urge that a separate escrow fund be set up for their benefit before distribution to the states, or, alternatively, they suggest that the ascertainment of the victims of the overcharges be referred to the OHA, as discussed previously.⁴⁷ While such procedure would be one method of distributing the overcharges, it is not the only method. For the reasons hereinafter discussed, we determine that the course chosen by the trial court was appropriate under all of the circumstances here.⁴⁸

C. The Consumer as Ultimate Victim.

In its attack upon the remedy devised below, Exxon (and some Intervenor appellants) take the position that the trial court was required to trace, or attempt to trace, the overcharges from first purchaser, to refiner, through various monthly accountings required by the Entitlements Program, and its “banking” system, and then to determine the nature and extent of any passthrough of increased costs through the distribution system, such as might be authorized by 10 CFR Sections 212.83(c)-(d) (refiners) and 212.93(a) (resellers and retailers). It is appellants’ position that such inquiry is required by our decision in Citronelle-Mobile Gathering, Inc. v. Edwards, 669 F.2d 717 (TECA 1982), cert. den., 459 U.S. 877, 103 S.Ct. 172, 74 L.Ed.2d 141 (1982).

In Citronelle, the Government sought restitution under the provisions of Section 209 for overcharges involved in four sales of domestic crude oil which had been improperly treated as export oil, exempt from price regulation. The District Court, finding that it could not “envision a formula which could make a meaningful distribution to the millions of consumers from Florida to Massachusetts who purchased power or goods ... ”, ordered that restitution should be made to the United States Treasury. Citronelle-Mobile Gathering, Inc. v. O’Leary, 499 F.Supp. 871 at 886, (S.D.Ala.1980).

On appeal we fully recognized the broad equitable powers of the District Court nr fashioning equitable remedies, but found that the order requiring payment of the overcharges to the United States Treasury was improper because it was not in accordance with the Section 209 objective of making victims whole, insofar as possible. The case was remanded for the purpose of fashioning some plan for-disbursement of restitution funds, in accordance with the requirement that the Government must at least try to ascertain those persons who had been overcharged. Citronelle, 669 F.2d at 723.⁴⁹

In our view, the District Court’s judgment and order in this action are fully in accord with our ruling in Citronelle, where we specifically noted that:

“The District Court, sitting as a Court of Equity, unless otherwise provided by statutes here in contemplation, had ‘all the inherent equitable powers of the District Court ... available for the proper and complete exercise of that jurisdiction’; ... and has the power, ‘to do equity and mould each decree to the necessities of the particular case’; further, ‘It may act so as to adjust and reconcile competing claims ... so as to accord full justice to all the real parties in inter-est____’ The authority inherent in the equity powers guarantees complete rather than truncated justice.” 669 F.2d at 722. (Citations omitted.)

Here, the District Court appropriately determined that any attempt to trace the overcharges would be doomed to failure because of the pervasive influence of the Entitlements Program and other regulations which had the effect of passing on and diffusing the HFU overcharges through the distribution system. As pointed out by the trial court, this was a factor not present in the Citronelle litigation.⁵⁰ We have previously reviewed the consequences of the Entitlements Program. In Union Oil Co. of Cal. v. U.S. Dept. of Energy, 688 F.2d 797, 802 (TECA 1982), cert. den., 459 U.S. 1202, 103 S.Ct. 1186, 75 L.Ed.2d 433 (1983), we noted that:

“Certifications of price-controlled crude oil as exempt crude oil ... reduced the total amount of crude oil production subject to price controls each month and therefore increased the total cost of the available crude oil supply. As a result, the benefits of price-controlled crude oil which were distributed among all refiners by the Entitlements Program were reduced. Thus, to the extent that crude oil producers sold otherwise price-controlled crude oil as uncontrolled crude oil ... the higher cost of such uncontrolled crude oil was distributed among all domestic refiners through the operation of the Entitlements Program.

Once the overcharges were disbursed throughout the refining industry, the regulatory system was designed to insure that money spent or received by the refiners as the result of their purchases or sales of entitlements would be passed along to the ultimate consumers. Thus, all refiners were permitted to pass through increased costs to their customers. 10 C.F.R. Section 212.83. 561 F.Supp. at 853. The EPAA specifically provided for “a dollar-for-dollar passthrough of net increases in the cost of crude oil ... at all levels of distribution from the producer through the retail level.” 15 U.S.C. Section 753(b)(2)(A). The refiners were also permitted to “bank” costs which were not passed through in the sales of products for one month, and to include these banked costs in calculating prices for later months. Calculation of these “banked costs” was subject to variable and complex formulas. 10 C.F.R. Section 212.-83(e).

Additional regulations permitted the resellers and retailers, in turn, to pass on their increased costs to the ultimate consumer. 10 C.F.R. Sections 212.91 et seq.

This Court long ago recognized that the Entitlements Program was intended 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____” Cities Service Co. v. F.E.A., 529 F.2d 1016, 1021 (TECA 1975), cert. denied, 426 U.S. 947, 96 S.Ct. 3166, 49 L.Ed.2d 1184 (1976). (Emphasis supplied).

We agree with the trial court’s conclusion that any attempt to trace increased costs attributable to the HFU overcharges would require a full scale audit of the entire petroleum industry, and that any effort to do so would "be futile. As the Government suggests, the first step in any such audit would require recalculating over seventy monthly entitlement lists issued during the period of the overcharges, taking into account such variables as the volumes of new and old oil produced during each month, the average acquisition costs, and the values of each entitlement. In determining the precise impact of the overcharges on any particular refiner, it would then be necessary to consider the impact of exception relief which may have been granted by the agency over the term of the Entitlements Program. The difficulty of any such accounting is particularly clear in view of the fact that the DOE has not yet completed or issued a final January 1981 “Entitlements List,” designed to settle accounts between the refiners following expiration of price controls. 10 C.F.R. Section 211.69 (1983). See Navajo Refining Company v. United States Department of Energy, No. 83-1492-M, D.C. New Mexico, Memorandum and Order of March 30, 1984.⁵¹ See also, Consumers Power Company v. Department of Energy, 742 F.2d 1468 (TECA 1984), where we recently determined a right to participate in the Entitlements Program.

Even if the HFU overcharges could be traced to individual refiners, it would then be necessary to trace their effect on product resellers, retailers and consumers, through the provisions of passthrough regulations. That this task would be futile is illustrated' by the difficulty of applying only one aspect of the regulations, that is, the calculation of “banked costs.” Exxon itself admitted that it was unable to supply information on its own costs because:

“... adjustments to the cost bank figures cannot be made until all outstanding questions concerning the proper interpretation of the Mandatory Petroleum Price regulations have been resolved. As a result, a final determination of the actual cost bank figures can only be made after all pending administrative and court proceedings have been concluded.

5}C S¡* * *

Because this question involves the basic fabric of the entire passthrough program and could involve millions of documents in possession of Exxon, the DOE and other companies, it cannot be answered with specificity.” (Answer to Plaintiff’s Interrog. 11(b), 19(e)", R. 1592, 1602).

The fact that banked costs might exist as to any particular refiner does not mean of course that increased costs were not passed on through the distribution system. To determine this would require an investigation into the state of mind of each refiner in setting prices for individual petroleum products each month. Such a task would be impossible, and several of the inter-venors have so conceded. See Gladieux Brief, p. 9, “No such finding could possibly be made without an extremely time-consuming factual inquiry, one which is almost certainly beyond the capacity of any court or administrative agency;” Marathon Brief, p. 17, “(P)roving passthrough of overcharges would depend entirely on uncertain economic assumptions and impossibly complex measurements.”

The refiners’ suggestion that refunds be made payable to themselves as “first purchasers” would result in inequities, inconsistent with the fundamental purpose of restitution under Section 209. As the trial court pointed out, prior to decontrol, if a court ordered restitution to a first purchaser, then that refund would eventually be passed along the distribution line to an ultimate consumer of petroleum products. However, in view of the 1981 decontrol of oil prices, “there has existed no ready method of ensuring that overcharges will be refunded to their ultimate victims, the consumer.” Under the situation here, the Court found that “(t)o order a refund to the first purchaser would simply result in a windfall gain for that purchaser — ironically, in this ease, Exxon itself — who would be under no obligation to pass the refund along.” 561 F.Supp. at 854.⁵²

There was no need for the District Court in this action to attempt the impossible task of attempting to ascertain the damage sustained by individual consumers of petroleum products. In this respect, it should be noted that this action for restitution under Section 209 differs in significant degree from a private action of damages under Section 210. As noted in Citronelle-Mo-bile, supra, 669 F.2d 717 at 722:

“The central purpose of restitution is to determine the amount by which the wrongdoer has been unjustly enriched and then to make him disgorge that amount. No proof is required that the plaintiff was damaged, much less the amount of any damage.” (Emphasis supplied).

The form of relief chosen by the trial court in this action by which the restitution funds will be channeled through the states for use in the enumerated energy programs designed to benefit the consuming public bears a reasonable relationship to the injury sustained by the consumer public as a consequence of Exxon’s violation of federal energy pricing regulations. The judgment in this action requires Exxon to pay the overcharges and interest into an interest bearing Treasury escrow account, to be held in trust by the Treasury. Following the conclusion of all appeals in this case, the Fiscal Assistant Secretary of the Treasury is required to disburse the money, with additional accrued interest to the states, with instructions as to use of the funds which are consistent with the trial court’s Memorandum. The judgment further orders that the states and other jurisdictions “shall use all funds so disbursed in a manner consistent with” the trial court’s order. The states will be required to report annually to the Court and to the DOE the manner in which the funds have been used, until all have been expended.

We believe this form of disbursement to be equitable, and fair, and a reasonable method of compensating the consuming public for the HFU overcharges. It accomplishes the intent of Congress that violators of the price regulations be required to disgorge their gains, even in situations where it may not be possible to identify and compensate each individual victim. While other remedies might have been adopted by the trial court,⁵³ the remedy chosen avoids further administrative delay and confusion, with additional costs, it prevents the frustration of congressional objectives in securing prompt enforcement of what has been denominated as “emergency” price regulations, and it is a reasonable means to protect the public interest.

The District Court unquestionably possessed broad equitable powers to remedy the wrong caused through Exxon’s violation of price regulations at the Hawkins Field Unit. Under all of the circumstances presented in the record, we conclude that the trial court did not abuse that discretion in fashioning its remedy.

The Judgment of the District Court is AFFIRMED in all respects.

1 . Section 208 of the Act, paragraph (a) provides for a $5,000 criminal fine for violations, while paragraph (b) provides for a civil penalty of not more than $2,500 for each violation.

Section 209 states that the Attorney General may bring an action for temporary and permanent injunction to restrain violations. In addition, the Court is authorized to:

“... issue mandatory injunctions commanding any person to comply with any such order or regulation. In addition to such injunctive relief, the court may also order restitution of moneys received in violation of any such order or regulation.”

2 . Prior to this appeal Exxon moved to dismiss the case for lack of subject matter jurisdiction. The District Court denied that motion. United States v. Exxon Corp., 470 F.Supp. 674 (D.D.C.1979). This Court affirmed on the basis of the District Court’s opinion. Exxon Corp. v. United States, 616 F.2d 526 (TECA 1980).

In August, 1980, Exxon moved to dismiss the case for lack of indispensable interest owner parties. This motion was denied. United States v. Exxon Corp., 94 F.R.D. 252 (D.D.C.1981).

In January, 1981, the District Court, upon motion of the DOE, enjoined Exxon from litigating any legal issue presented in this case in connection with its defense in a case pending in Texas, styled Jarvis Christian College v. Exxon Corp., No. TY-80-43A-CA (E.D.Tex., filed November, 1980).

In Exxon Corp. v. United States, 655 F.2d 1112 (TECA 1981) we determined that all pricing and regulatory issues should be heard in the District of Columbia action, and all proceedings in the Jarvis action were stayed pending final determination in that District.

3 . The judgment required Exxon to remit to the Treasury Department the sum of $1,635,604,-638.10, representing $895,501,163.85 in overcharges, and $740,103,474.25 in interest in overcharges, and $740,103,474.25 in interest, accumulated through March 31, 1983, plus $469,035.40 per day in interest, for each day of April, May, and June, 1983, to date of judgment (June 7, 1983), with interest thereafter to be computed in accordance with 28 U.S.C. Section 1961.

4 . For simplicity’s sake, the Department of Energy (DOE), and the predecessor administrative organizations which have been charged with the duty of enforcing price regulations from time to time — the Cost of Living Council (CLC), the Federal Energy Administration (FEA), and the Federal Energy Office (FEO), are generally referred to hereafter as "the agency,” and sometimes as “the government.” For further explanation, see Pennzoil Co. v. United States Dept. of Energy, 680 F.2d 156, at 161, and Footnotes 6, 7, (TECA 1982), cert. dismissed, 459 U.S. 1190, 103 S.Ct. 841, 74 L.Ed.2d 1032 (1983) (hereafter “Pennzoil".)

5 . Paragraph IV(A)(3) of Ruling 1977-2 applied to all unitized properties required to establish a unit BPCL prior to February 1, 1976 and unitized properties required to establish a unit BPCL prior to September 1, 1976. Determinations of the status of oil produced from units formed prior to the date on which unit BPCL regulations were adopted (February 1, 1976 for enhanced recovery units and September 1, 1976 for all units) were subject to the provisions of Ruling 1975-15, as modified on February 1, 1976. Therefore:

"... all such units formed during or after 1972 were required to calculate a BPCL by aggregating the BPCL's of all the participating properties at such time as significant changes in the units producing patterns occurred (and with respect to enhanced recovery unitized properties beginning February 1, 1976, as of the date of implementation of enhanced recovery operations).

The Ruling then provided:

"Although a regulatory definition of ‘significant alteration in producing patterns' was not provided until September 1, 1976, that definition will be considered as guidance in audits and compliance cases in determining whether a significant alteration has occurred with respect to such units. FEA will, however, on a case-by-case basis, permit unit operators to justify the establishment of the date of significant alteration in producing patterns in such units on reasonable bases other than those specified by the present definition."

6 . Section 211(c) of the Economic Stabilization Act of 1970, 12 U.S.C.A. Section 1904, note, provides that when a District Court determines that a substantial constitutional issue exists, it shall certify that question to the Temporary Emergency Court of Appeals.

7 . Fed.R.Civ.P. 56(c) provides that summary judgment can be granted only if "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law.”

8 . Exxon appeared as amicus curiae in Pennzoil.

9 . In the 1981 appeal we noted that there were four basic issues to be determined: 1) whether or not the Hawkins Field Unit is a single property or separate leases under 10 CFR Section 212.72 of the regulations; 2) assuming that the Hawkins Field Unit is a single property, then when did a significant alteration in producing patterns occur, thus establishing a unit base control level for pricing purposes under 10 CFR Section 212.72; 3)' whether Exxon can be held liable for all overcharges in the field; and 4) whether the overcharges should be paid to the United States Treasury. In passing we stated that the question of when a significant alteration occurred was “the key factual question to be litigated at trial,” and that the other issues presented disputed legal questions.

10 . In the trial court Exxon claimed that the decision to unitize Hawkins Field, and the decision to maintain lease-by-lease accounting, were made in reasonable reliance "on repeated agency assurances to Exxon and others that such practices were allowable under the regulations.”

The trial court found that the estoppel defense failed because "the undisputed facts in this case demonstrate that Exxon’s reliance, if any, on unauthorized informal statements by agency employees, was not reasonable.” 561 F.Supp. at 845.

11 . "A unit base production control level must in general be established as of the effective date of unitization, and the producer must treat the unit as a single property. Section 212.75 provides an exception to this requirement where ... 2) the unitized property has not sustained a significant alteration in producing patterns ...” 42 Fed.Reg. at p. 4414.

12 . "Section 212.75, adopted on February 1, 1976, is applicable only to enhanced recovery unitized properties which established a unit BPCL on or after February 1, 1976.” Since Section 212.75 did not contain a definition of "significant alteration” until September 1, 1976, enhanced recovery units formed during that time period were permitted to continue lease-by-lease accounting until such time as enhanced recovery operations had begun. As to these units, the definition adopted in the August 20 Notice was not applicable until September 1, 1976, even though the alteration occurred prior to September 1, 1976. 42 Fed. Reg. at p. 4415.

13 . As noted, unit accounting had been adopted by Exxon for other Units.

PX 56, an Exxon Memo dated 2/7/74 concerned pricing policy for the Hawkins Unit:

"... it is recommended that Exxon should begin calculating exempted unit oil on a lease basis rather than on a total field basis. These changes would prevent an 80 percent reduction in new and released oil when Hawkins is unitized____"

PX 77, an Exxon Memo dated 8/8/74, noted that unit accounting was established in two other fields, unitized on September 1, 1973, the date that two-tier pricing went into effect, and on March 1, 1974. However, in the Hawkins Field, Exxon:

"... proposed that the calculation of new and released oil be on the basis that each pre-uni-tization accounting lease is a separate 'property' for FEA purposes. A calculation based on the total unit would result in less new and released oil than if the field had not been unitized____”

In drawing a distinction between the two other units (using unit accounting), this memo noted: “Hawkins unitization differs from Jay and Webster in that a large number of royalty owners have not signed up for the unit.”

At that time over 75% of the 327 unit tracts in Hawkins Field had less than 100% royalty approval.

14 . PX 54 discusses the MER aspect in this manner:

"One of our biggest problems in the unitization was that the entire project has been conducted on a highly accelerated basis, because Exxon has so much at stake____ As part of an interim pressure maintenance program Exxon got the Railroad Commission to increase the field allowance by 25,000 barrels a day. While this has increased the Company’s current income considerably, the increased production is causing edge tracts in the field to deplete faster. The owners of these tracts have been threatening to ask the Railroad Commission to remove the increased allowable. Exxon has succeeded in holding this off by showing its good faith effort to get the unitization under way as soon as possible ... the unit has to be made effective within two years or all the past effort will be lost.”

15 . The summary noted that Exxon’s working interest in the Unit was 79.52% until about the second quarter of 1977 when it would drop to 75.97%. PX 92. Exxon owned about 77.8% of the field allowable.

16 . The District Court rejected Exxon’s claim to retroactive benefits of Section 212.75. 561 F.Supp., at 837, n. 33. Exxon does not now claim on appeal that it is entitled to an amount of "new” and "stripper well” oil from Hawkins Field beginning in September, 1976, on account of the provisions of Section 212.75.

17 . The trial court noted that even if extending benefits to a few units formed before February 1976 could be said to be "unfair,” the most it could do was to strike down a small portion of Section 212.75 as "an unjustifiable windfall to pre-existing units.” On appeal, Exxon claims that the solution to such "unfairness” would be to extend the benefits to Exxon, and not to take them away from other units. Such argument is without merit. This court will not rewrite the regulations to fit Exxon’s situation. It was not similarly situated to the units which were given favorable treatment.

18 . Exxon, of course, has previously determined that unit-wide accounting was required at Hawkins Field as of September 1, 1976.

19 . The Order of the Texas Railroad Commission, dated November 26, 1974, approving the unitization agreement for Hawkins Field, provided in pertinent part that:

“It is further ordered that the proration units as established for the individual wells, within the unitized area, prior to the approval of the subject Unitization Agreement, are hereby adopted, approved and continued in effect for allowable allocation purposes for such wells, unless the unit Operator elects to revise such proration units.”

When Exxon petitioned the Commission to approve the unitization, it requested a single unit production allowable for “operating flexibility” so that allowables could be transferred among tracts of Exxon's choice. PX 86.

20 . The District Court found that by Exxon’s own measurements, "almost 20 percent of 1975 production had shifted across lease lines, almost two and one-half times as much as had shifted in either 1974 or 1973.” 561 F.Supp. at 844, n. 42. Despite Exxon’s claim in this appeal that this finding was incorrect, the record supports the finding. See PX 200 at 2.

In January, 1975 the M.A. Kay Estate lease produced 47,531 more barrels than it had been allowed to produce on the average in any month during 1974. This was a 33.3% increase in production in that one lease. All of these barrels were treated as "new oil” under Exxon’s lease-by-lease accounting. See Appendices B-l, D, "Charts and Graphs.”

It is clear that such shifts of production across lease lines were the result of unitization.

21 . The definition of "significant alteration in producing patterns" set out in the amendment to Section 212.75, effective September 1, 1976, provided in pertinent part that the term meant:

(2) the increase of production allow-ables for any property that constitutes the unitized property.” (Emphasis supplied.) 41 Fed. Reg. at 36184.

22 . This was contemporaneously understood by an Exxon employee upon review of the August 1976 regulations. His conclusion was that the language conlained in the preamble would be of no benefit to Hawkins Field "because of the transfer of allowable provisions" so that Hawkins would be required to begin unit calculations on February 1, 1975 with a consequence being "about a $70MM retroactive exposure for Exxon.” PX 230 at 4.

23 . These figures come from data submitted by Exxon to the Texas Commission on December 18, 1975.

24 . As previously noted, one of the alternative tests for "significant alteration” in the September 1976 definition, used as guidance here, was "the application of extraneous energy sources by the injection of liquids or gases into the reservoir.” 10 C.F.R. Section 212.75(b).

25 . PX 68, PX 94, PX 103, PX 109, etc.

26 . In extensive briefing, Exxon claims that the trial court refused to allow it to justify an alternative date for “significant alteration of producing patterns" at Hawkins Field.

The defense was not raised in Exxon's Answer or Amended Answer, but it was raised as an “issue” to be litigated in its "Statement of Genuine Issues” to be litigated at trial.

While the trial court noted that the question was not before it, the issue was in fact considered and determined adversely to Exxon.

27 . Exxon contended that no significant alteration occurred at Hawkins Field "until the injection of inert gas stabilized reservoir pressure and altered the reservoir’s underground drive mechanisms, sometime in 1979." 561 F.Supp. at 840. (Emphasis supplied.)

28 . Exxon continues to shift ground, and refine its arguments in this appeal. As previously noted, the alternative date presented to the trial court was “sometime in 1979.”

29 . In Sauder the total overcharges amounted to $342,589, plus interest. Sauder claimed that he was liable only for $133,000, his share of the total.

30 . PX 145, an Exxon letter to interest owners in October, 1975, warned that these interest owners might be required "to refund excess amounts received for oil heretofore classified as ‘new crude oil’ which the FEA may rule does not qualify for exempt pricing.”

PX 246, an Exxon letter to interest owners in January, 1978, sent after a Notice of Probable Violation was filed by the DOE, warned that if a remedial order was issued "it will probably be necessary for Exxon, pending the outcome of the controversy” to reduce payments on future production and take action "with respect to alleged past overpayments as may be necessary

31 . Exxon’s decision to proceed with lease-by- ■ lease accounting was based in part upon its belief that it could cut its losses in this manner:

(PX 172 at 2.)

"Potential losses via overpayments of working and royalty interest owners are minimal since most of these are financially responsible parties, and all payments are backed by reserves.”

32 . Our opinion in Exxon Corp. v. United States, supra, 655 F.2d 1112, reviews in detail the progress of Hawkins Field litigation through the District of Columbia and the state and federal courts in Texas.

In January, 1978, a Notice of Probable Violation in Hawkins Field was issued, and Exxon and several royalty owners filed suit in the Northern District of Texas seeking declaratory relief on the same issues raised in the Notice. In June, 1978, the DOE withdrew its NOPV, and elected to proceed in this action for civil penalties and restitution under Sections 208, 209 of the ESA. Exxon’s declaratory judgment action was transferred to the District of Columbia, whereupon it was dismissed by Exxon and its co-plaintiffs.

In August, 1980, Exxon moved to dismiss the D.C. action for lack of indispensable parties. The trial court held that motion in abeyance, pending the TECA decision in Sauder. In October, 1980, Exxon notified HFU royalty owners it would begin to withhold 40-45% of the payments due under purchase agreements to meet possible overcharge liability in the D.C. case. Exxon then filed its Counterclaim in Interpleader in the D.C. Case (discussed, infra).

Some royalty owners (known as the “Jarvis plaintiffs”) then filed suit against Exxon in Texas state court for conversion and breach of contract. Exxon removed the case to the E.D. of Texas in November, 1980, and filed a counterclaim, joinder and third party action against the DOE, raising the same issues as those involved in the D.C. action.

Following further maneuvering by the parties, all cases were brought before the TECA for the purpose of resolving the "procedural maze”. In the exercise of our supervisory powers, we ordered that litigation proceed first in the District of Columbia on the pricing and regulation issues.

We determined that the Jarvis plaintiffs were not indispensable parties to the D.C. litigation, but we further held that if these plaintiffs desired "an .earlier determination” of their claims, they would be permitted to intervene in the D.C. action, and move for summary judgment. Exxon Corp. v. United States, supra, 655 F.2d at 1118.

None of the Jarvis plaintiffs intervened in the D.C. litigation to press their claims. (Brief for United States at p. 81).

33 . Thomas Reeves, an accounting supervisor in Exxon's "Supply Controllers” Department, was ^responsible for certification of crude oil available for disposition through Exxon Pipeline Company, including production purchased by Exxon from others for processing at an Exxon refinery. He testified that “the higher values" would have been reported under the Entitlements Program.

34 . Our Order in Exxon Corp. v. United States, supra, 655 F.2d 1112, at 1118, provided:

“(3) All plaintiffs in the action in the Texas court and all other interest owners in the HFU involved in these actions shall be permitted to intervene in the District of Columbia action if they wish to do so.” (Emphasis supplied.)

35 . Rule 19. Joinder of Persons Needed for Just Adjudication.

(a) Persons to be Joined if Feasible.

A person ... whose joinder will not deprive the court of jurisdiction over the subject matter of the action shall be joined as a party in the action if (1) in his absence complete relief cannot be accorded among those already parties, or (2) he claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impede his ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of his claimed interest. * * *

(b) Determination by Court Whenever Join-der not Feasible.

If a person as described in subdivision (a)(1)-(2) hereof cannot be made a party, the court shall determine whether in equity and good conscience the action should proceed among the parties before it, or should be dismissed, the absent person being thus regarded as indispensable. The factors to be considered by the court include: first to what extent a judgment rendered in the person’s absence might be prejudicial to him or those already parties; second, the extent to which, by protective provisions in the judgment, by the shaping of relief, or other measures, the prejudice can be lessened or avoided; third, whether a judgment rendered in the person’s absence will be adequate; fourth, whether the plaintiff .will have an adequate remedy if the action is dismissed for nonjoinder.

36 . Sun Co. and Conoco have filed two suits in the District of Delaware seeking enforcement of consent orders which they entered into with the Department of Energy. Sun Co., Inc. v. United States, No. 83-204; Conoco, Inc. v. United States Dept, of Energy, No. 83-438. The Court has considered copies of preliminary orders entered in those cases which have been furnished by counsel, and determines that issues pertaining to Exxon’s right of contribution, if any, from third parties are not now a subject of consideration by this Court.

37 . Eastern Air Lines was decided by us in June, 1983, after judgment was entered in this action.

38 . Considerable difficulty was had in establishing base prices, and in determining the meaning of certain prices listed on computer printouts. See fn. 11, p. 1407, 712 F.2d.

39 . Sauder v. DOE, 4 Energy Mgmt. (CCH) Para. 26,157, at p. 27,397 (D.C.Kan.1979).

40 . Exxon contends that for the period from January 1, 1975 through August 26, 1982, interest should be computed as simple interest in accordance with rates established by the IRS in assessing delinquent tax accounts at the following rates:

Period Rate

January 1, 1975 through June 30, 1975 6%

July 1, 1975 through January 31, 1976 9%

February 1, 1976 through January 31, 1978 7%

February 1, 1978 through January 31, 1980 6%

February 1, 1980 through January 31, 1982 12%

February 1, 1982 through August 27, 1982 20%

On the prejudgment interest issue, we adopt the able reasoning of the trial court set out at pp. 857-858, 561 F.Supp.

41 . The estoppel claim, to which the trial court devoted so much attention, was not raised as a separate issue on this appeal. The Government pointed out that this defense "has been dropped.” U.S. Brief, p. 4, fn. 1.

In its inimical style, Exxon has responded that "... (c)ontrary to the DOE’s assertion, Exxon has neither ‘dropped’ its estoppel defense nor failed to press its statute of limitations defense ____ As Exxon previously explained, in the event of a reversal and remand because of the improper resolution of factual issues, Exxon intends to assert the legal arguments to which such contested facts relate.” -

42 . The five energy programs to benefit from ■ restitution funds paid over to the states include weatherization of buildings, implementation of state energy conservation programs, reduction of energy consumption in schools and hospitals, promotion of conservation by small businesses and individuals, and assisting the poor with home utility bills. See opinion of the District Court, 561 F.Supp. at 856, fn. 58.

43 . The agency has set up special procedures for distribution of refunds recovered through Remedial Orders and Consent Orders processed through its administrative procedures. These procedures, sometimes referred to as "Subpart V proceedings,” are instituted by petition in the Office of Hearings and Appeals. The OHA may decline to consider applications for refunds that are "too small to warrant individual consideration,” in view of “direct administrative costs" that may be involved. 10 C.F.R. Sections 205. 280 et seq.

In the Stripper Well Litigation, which was referred to the OHA in September, 1983, no final report has been made by the agency.

44 . We understand that in the Stripper-Well Mul-ti-District litigation a number of cases involved Remedial Orders requiring modification or further administrative adjustment. The DOE there took the position that it would be appropriate to have all of the cases remanded for the purpose of tracing overcharges. The District Court retained jurisdiction, specifically noting that it, and not the DOE would decide where the funds go. 578 F.Supp. at 596.

45 . In December, 1982 and February, 1983 at the request of DOE and Exxon, the trial court stayed the requests to intervene pending resolution of the liability issue. Following entry of the Memorandum decision, intervention was granted solely for the purpose of arguing on appeal the question of distribution of the refund.

46 . Consumers Power and Hudson Refining Company voluntarily dismissed their appeals as Intervenor appellants in this case, and filed a class action suit in the District of Indiana under Section 210(a) of the ESA on behalf of all domestic refiners of crude oil that participated in the "Old Oil Entitlements Program,” excluding sixteen large refiners that produced in excess of 100,000 barrels per day of crude oil, etc., Consumers Power Company, et al. v. Exxon Corporation, No. H83-0610, N.D. Indiana, filed 10/3/83. It is claimed that Exxon overcharges were borne by plaintiffs to the injury of a class numbering 300, in an amount exceeding $240 million.

47 . RJG Cab, Inc., and Geraldine Sweeney, Inter-venor-Appellants here, representing consumer interests, have filed a class action in the Eastern District of Pennsylvania, for declaratory judgment finding distributions under the "Warner Amendment” unconstitutional, and without effect. This action concerns administrative Consent Orders and settlement agreements entered into by the DOE in lieu of judicial actions brought under Section 209 of the ESA where settlement proceeds were paid into an escrow fund, then distributed in part to the states under the Warner Amendment. RJG Cab, Inc., et al. v. Donald Hodel, et al., No. 83-3265, Eastern District of Pennsylvania, 1983.

The Pennsylvania action does not, of course, involve a judicial exercise of discretion by a court ordering restitution under Section 209.

48 . The Court appreciates the efforts of counsel for all Intervenor appellants, as well as that of counsel for the Intervenor appellee states. All briefs and arguments were most helpful to the court in reaching its decision.

49 . To date, no plan has been devised by the District Court in Citronelle.

50 . There were only four shipments of oil in Citronelle. All occurred prior to implementation of the Entitlements Program.

51 . In Navajo Refining, more than three years after Navajo Had paid $4 million into the program, Navajo had not received any restitution to which the DOE had determined it was entitled. The FERC had denied reimbursement, “stating only that it was 'sure’ DOE would implement relief to Navajo consistent with its responsibilities to wind up the Entitlements Program.” p. 6, Slip Op.

After publication of the list, the DOE contemplates a series of “Post-clean-up claims and obligations” procedures whereby the OHA, the FERC, or a court may determine final claims payable under the Entitlements Program. 10 C.F.R. Section 211.69(h).

52 . In DOE, et at. v. Ray L. Hunt, et at., No. 5-101, 5-102, an appeal pending before this court, a Remedial Order of 1977 required a refund to be made to the first purchaser. Due to decontrol and "changed circumstances,” the DOE sought a partial remand of the Remedial Order in order to determine whether this refund provision should be modified. The DOE appeals an order requiring payment to the first purchaser.

53 . In United States v. Robert B. Sutton, et al, No. 82-C-1069-B, (N.D.Okla.) involving a claim for restitution under Section 209 of the ESA, the District Court directed payment be made to the states for use in certain energy programs described in the Warner Amendment. Sutton is now pending on appeal in this Court.