The Department of Energy opened the way to massive, proliferating frauds in the repricing of crude oil by failing repeatedly to enforce a 1973 law, the General Accounting Office has charged in a draft report obtained by The Washington Post.
DOE and its predecessor agencies, the report says, have consistently dragged their feet in sending cases of apparent criminal conduct to the Justice Department, even to the point of making prosecutions impossible in several instances.
The Energy Department thus far has sent Justice nine cases in which middlemen known as crude-oil resellers allegedly escalated prices by setting up dummy corporations purporting to "buy" oil from one another. But in eight of these so-called "daisy chain" cases, the draft says, DOE had indications of criminal activity for "one to three years" before referring the cases for possible prosecution.
In one of the eight cases, the five-year statute of limitations ran out last Jan. 31; in another; it will expire next Friday.
The GAO document goes beyond allegations made by a House Commerce subcommittee staff, which said last December that many of the middlemen had become "overnight DOE millionaires," grossing "nearly $2 billion" in illegal overcharges since the passage of the Emergency Petroleum Allocation Act of 1973.
The technique allegedly favored by the middlemen is the use of dummy corporations to convert "old" oil to "new" oil, which has commanded a premium of as much as $8 more per barrel. All told, DOE has estimated, their combined overcharges in a single day have ranged as high as $2.6 million.
Copies of the draft have circulated for several days in DOE, but a spokesman said it will not comment until a final version is issued by the GAO, which is the investigating arm of Congress.
At the request of Sen. John A. Durkin (D-N.H.), the GAO investigated enforcement by DOE and its predecessors of the 1973 law, which Congress passed to prevent gouging triggered by the steep increases in the price of crude suddenly demanded by foreign producers.
Specifically, the law sought to block profiteering between the wellhead and the refinery by assuring that the extra net cost of producing domestic crude oil would be passed through the supply chain dollar-for-dollar.
But a strong incentive to cheat was built into the structure when Congress, seeking to spur additional drilling, allowed substantially higher prices for "new" oil from wells drilled after Jan. 2, 1973, than for "old" oil from wells drilled before then.
Congress also permitted a premium for so-called "stripper" oil from marginal wells, thus creating a three-tier price system for domestic crude.
In the GAO draft, a principal focus of criticism of DOE arose from its persistent refusal to recognize that Congress gave the Justice Department responsibility for determining whether suspect conduct actually is a crime, for supervising criminal investigations, and for deciding whether to prosecute.
Under long-standing Justice Department policy with government-wide application, any agency having "reason to suppose" that it has learned of criminal acts has the "duty" to report them to the department.
But DOE instead causes lengthy and even fatal delays by going "too far in its investigations" before referring apparent criminal activities to the department, the GAO's investigators say. In the four years 1974 through 1977, DOE and its predecessors didn't refer a single criminal case to Justice.
In July 1977, an internal task force found that DOE had little or no capacity for activities normally left to the Justice Department, such as making criminal investigations and determining whether violations of its regulations were willful.
Yet, in what the draft report terms "a major misdirection of effort," DOE plans to have 38 percent of its enforcement staff conducting criminal investigations by the end of fiscal year 1980.
As far back as December 1974, the GAO and other critics warned DOE that it was neglecting what the draft calls its "primary responsibility-the audit of crude oil sales."
As a result, the report said, DOE assigned only one auditor, part-time, to each of 33 audits, including three in which "the auditor spent no time on the assignment even though the audit was classified as having been started." Only 11 audits are complete, while 21 are open and 11 are planned.
Meanwhile, the report says, DOE continued to divert "valuable staff resources" to expand its investigative role. Now that the Justice Department has special energy investigative units of its own, the draft says, "DOE's continued involvement in criminal investigations should only be at the request and under the supervision of Justice."
Although the DOE-Justice relationship reportedly has improved recently, it will be explored May 21 in a joint hearing by a House Energy subcommittee and the House Judiciary subcommittee on crime.
Known crude-oil resellers numbered about a dozen five years ago, but by last September there were 592. Most, the staff of the House Subcommittee on Energy and Power said last December, started "with little more than an office and a telephone. Some . . . are now integrated oil companies."
Illustrating DOE foot-dragging, the report details a case in which producer "Z" sold all of its old crude at $5.25 a barrell to reseller "X", which then sold it for $10.50 to reseller "Y", which sold it for $11.50 to refiner "W". All of the sales were only on paper. The oil "never passed through the hands of the resellers," which were owned or managed by the same persons who controlled the producing company and the refinery, the report says.
DOE auditors reported the possibility of a conspiracy in the case 3 1/2 years ago and the referral to Justice, not made until last November, should have been made soon thereafter, the report says. But DOE, in another kind of daisy chain, kept the case shuttling back and forth between its Office of General Counsel and a regional headquarters, mainly in pursuit of evidence of willfulness. Already, the statute of limitations has run on some of the alleged violations.
The GAO draft doesn't name the parties involved. But the Energy subcommittee staff, describing the same episode, identified Sidney Clark III, a Shawnee, Okla., lawyer who is president of South Pott, a crude producer, and who started the DaVinci Co., a reseller; Summit Gas Co. of Houston, a larger reseller owned mainly by Marvin K. Davis of Denver, and, in DOE, Avrom Landesman, now acting deputy special counsel.