specially concurring:
Although I concur in the result reached in the majority opinion, there are several *312issues which I believe warrant further discussion.
A brief summary of the facts relevant to this concurrence follows.
In April 1985, the Department of Energy (DOE) (defendants/appellees) initiated an administrative enforcement proceeding against Cities Service Oil and Gas Corporation (Cities Service), alleging that Cities Service violated DOE regulations and overcharged customers $250 million. The Office of Hearings and Appeals (OHA) published a notice of the enforcement action against Cities Service in the Federal Register.
Shortly after the notice appeared, the Philadelphia Electric Company (PECO) for itself and three other parties filed a timely request to participate in the enforcement proceeding against Cities Service. PECO’s request to participate stated that PECO was “an electric utility acting on behalf of electric utilities burning oil to generate electricity.” In another section of the request, PECO sought participation on behalf of “all electric utilities burning oil to generate electricity.” The OHA granted PECO’s request, allowing PECO “to represent each of the four parties and participate in the ... case.”
After the OHA granted PECO the right to participate in the Cities Service proceeding, PECO filed pleadings arguing that the theoretical analysis in the Proposed Remedial Order (PRO) was wrong and that the OHA underestimated Cities Service’s violation. The OHA rejected PECO’s arguments.
In October 1986, PECO moved to withdraw from participation in the enforcement proceeding against Cities Service because it was a party to a settlement agreement with Cities Service in In Re the Department of Energy Stripper Well Exemption Litigation, M.D.L. 378, 653 F.Supp. 108 (D.Kan.1986), aff'd. 855 F.2d 865 (TECA 1988). PECO sought permission to withdraw from the Cities Service proceeding
as [an] individual part[y] and as representative of the utility ... class of end users on whose behalf ... [PECO] sought participation ..., [noting that] approval of such withdrawal should in no way prejudice the right of the other members of the classes which [PECO] sought to represent, or others; particularly other end users, who may have relied on the participation of PECO.
The OHA dismissed PECO from the proceeding, but did not mention PECO’s possi: ble class representation or PECO’s request that its withdrawal not prejudice the other utilities.
In March 1987, Plaintiffs/Appellants Consolidated Edison, et al. (“the Utilities”) filed a “Request ... for Limited Participation” in the Cities Service enforcement proceeding. None of the Utilities were in the group of four utilities that PECO previously represented. The Utilities wanted to submit a memorandum to the OHA and participate in oral arguments, urging the same theory that PECO originally advanced. The Utilities claimed their theory would support a remedial order and that the OHA’s analysis in the PRO might not support such an order. They also asserted that the OHA’s proposed order underestimated Cities Service’s liability by $50 million.
The OHA rejected the Utilities’ request to participate on two grounds: (1) the Utilities failed to seek participation at an earlier date; and (2) the Utilities sought to raise an issue that was precluded by prior interim decisions. The Utilities responded by arguing that (1) their application was timely because they were simply continuing PECO’s participation; and (2) the prior OHA decision was in error. After the OHA refused to reconsider the Utilities’ request, the Utilities submitted an appeal, seeking an order (1) requiring the OHA to allow the Utilities to participate and (2) enjoining the OHA from making a final decision until the Utilities were allowed to participate.
The district court affirmed the OHA’s denial of the Utilities’ request for participation, holding that the Utilities had no legal right to rely upon PECO’s former representation and that the Utilities failed to comply with the regulations requiring timely requests to participate.
*313I agree with the majority opinion that the Utilities’ request to participate was untimely; however, I do not think the court’s inquiry can end with this finding. The Code of Federal Regulations provides that “[a]ny ... person whose interest may be affected by the [enforcement] proceeding may file a request to participate in the proceedings ... within 20 days after publication of the notice.” 10 C.F.R. § 205.194(b) (1987). The Utilities filed their request to participate more than a year after the publication of the notice of the enforcement action against Cities Service. The Utilities present several arguments as to why their late filing should not defeat their right to participate in the proceeding.
Intervention as a matter of right
The Utilities urge that they have a right to intervene in the enforcement proceedings regardless of the date of their request to participate. A recent opinion of this court squarely addressed this issue in the context of a request to participate under Federal Rule of Civil Procedure 24. In Getty Oil Co. v. Department of Energy, 865 F.2d 270 (TECA 1988), several companies sought to intervene in the district court review of a DOE decision ordering Getty to pay restitution for crude oil overcharges. The companies claimed that the amount of restitutionary funds set aside for private claimants was insufficient and that their claims should cover all the overcharges that they sustained. None of the companies seeking intervention had been involved in the earlier administrative proceedings.
In holding that the companies did not have a right to intervene in the district court proceeding, the Getty Oil court stated that:
The proceeding in which applicants have attempted to intervene is the court’s review of DOE’s restitutionary plan. The statutory basis for the DOE administrative proceeding ... is section 209 of the Economic Stabilization Act ..., which established the government’s enforcement authority to vindicate public interests and authorizes actions to enjoin practices that violate its regulations....
This court has consistently held that governmental enforcement actions brought under section 209 of the ESA are separate and distinct from the actions of private entities brought pursuant to section 210, and are not to be mingled in one proceeding, [citations omitted]. Since private would-be intervenors are afforded a statutory remedy under section 210 to recover over-charges, they may not intervene in DOE’s enforcement proceeding....
A private party’s ‘right’ to some benefit as a consequence of the overall restitution of petroleum overcharges does not confer a legal right to intervene in a DOE action seeking enforcement of public rights.
Getty Oil, 865 F.2d at 275-76. The rationale and holding in Getty Oil apply to the Utilities' claim in the instant case.
Right to intervene as representative of the class that PECO formerly represented
The Utilities claim that PECO represented a class of which the Utilities were members and that the Utilities, therefore, had a right to continue to participate even after PECO withdrew from participation. The Utilities were not able to point to any provision in the governing statute which provides for class representation in enforcement proceedings. See 10 C.F.R. Part 205, Subpart O. Similarly, the Utilities did not cite a single case where there has been class representation in an enforcement proceeding.
The Utilities rely on PECO’s request to participate, which stated that PECO was “an electric utility acting on behalf of electric utilities burning oil to generate electricity.” The Utilities also cite to another section of PECO’s request, where PECO sought participation on behalf of “all electric utilities burning oil to generate electricity.” Although this language may suggest that PECO wanted to represent a class of utility end users, PECO never formally sought class representation.
*314Even if PECO requested class representation, the OHA never certified a class of which PECO was the representative. The OHA’s letter informing PECO of its right to participate stated that it was “appropriate for [PECO] to represent each of the four parties and participate in the ... case.” The OHA permitted PECQ to represent only four parties, none of which is a party to the instant litigation.
Good cause exception to late filing.
There is a good cause exception to the requirement that requests to participate be filed within twenty days of the notice. The Code of Federal Regulation states that “[a] person requesting to participate after the [twenty day] period must show good cause for failure to file a request within the prescribed time period.” 10 C.F.R. § 205.194(e) (1987).
The Utilities claim that they fall within the “good cause” exception because PECO was urging the position the Utilities would have taken, and any participation by the Utilities during the period PECO was participating would have been duplicative. The Utilities contend that there was no reason for them to participate until after PECO withdrew. This argument is merit-less. In New York Petroleum Corp. v. Ashland Oil, Co., 757 F.2d 288, 292 (TECA 1985), this court held that
[w]hen a party decides to forego taking action in a lawsuit in the expectation that another party will protect its interest, it does so at its peril_ [The party seeking intervention] cannot now escape its consequences, since it is far too late for them to change it without further burdening the other parties and delaying the resolution of what has already been an extremely protracted affair.
Right to participate by virtue of the settlement agreement in In Re Stripper Well.
The Utilities urge that they have a right to participate because of the Stripper Well Settlement Agreement. The Utilities claim that because they will receive restitution-ary payments pursuant to the Stripper Well settlement, they have an interest in the proceeding. In particular, they claim they have an interest in the OHA applying the proper analysis and in correctly assessing the amount Cities Service overcharged. The Utilities suggest that until the settlement in Stripper Well entitled them to restitutionary payments, they did not have a sufficient interest in the proceeding and were justified in not requesting intervention at an earlier date.
Again, this court’s decision in Getty Oil takes any steam out of the Utilities’ argument. The parties seeking intervention in Getty Oil contended that the settlement agreement in Stripper Well “created a legal interest sufficient to support intervention.” 865 F.2d at 276. The court held that
a private nonparty’s interest in some ultimate restitutionary benefit under a remedial plan does not confer a legal right to intervene in the public enforcement action of the Economic Stabilization Act. Nor does a nonparty’s right as a potential claimant for restitution under an Agreement created under the ESA rise to the level of a right to intervention.
Id. In fact, the Stripper Well Agreement specifically states that it “confers no ... enforcement right upon any non-Party.” Id.
In conclusion, in addition to the majority’s holding that the Utilities request to participate was untimely, I would also hold that (1) the Utilities do not have an absolute right to intervene; (2) the Utilities were not members of a class of fuel end users of which PECO was the representative; (3) the Utilities do not fall within the good cause exception for late filing; and (4) any interest the Utilities have in the Stripper Well settlement agreement is not sufficient to overcome their untimely request to participate.