Lupo Charged With Dumping Brine into Mahoning River SOURCE: WKBN TV
Ben Lupo, the owner of D&L Energy and Hardrock Excavating who admitted to investigators he ordered chemically-laced brine water dumped into a storm sewer that empties into the Mahoning River, has been charged with the state’s first crimes relating to illegal dumping by the shale drilling industry.
Lupo was brought into the U.S. District Court in Youngstown in handcuffs and street clothes for his initial appearance on a single charge of illegal discharge into U.S. waters. He entered no plea at the hearing and waived a preliminary hearing, sending the case to a federal grand jury in Cleveland to review more charges.
The charge carries a penalty of three years in federal prison and a $50,000 per-day fine for each day the violation occurs. Lupo told investigators in his admission that the first brine dump was in September, meaning Lupo could face as much as $1.5 million in fines.
Lupo’s attorney, Joe Gardner, said he expects more charges to be filed after the case is reviewed by the grand jury.
Lupo was released on a $50,000 unsecured bond.
Lupo turned himself in after he was served with arrest warrants for ordering an estimated 240,000 gallons of water, oil and brine that made its way into the watershed.
“We’re here at the banks of Mahoning River to emphasize what we all know: clean and fresh water is one of Ohio’s greatest and most important assets,” said U.S. Northern District Attorney Steven Dettelbach said. “It helps drive our economy, our recreation and our overall quality of life.”
Ohio Attorney General Mike DeWine said he will file a lawsuit against D&L that would seek $2,500 to $20,000 per day the violation occurred. He said the suit would be filed in a few days when the criminal investigation is finished.
The Ohio Department of Natural Resources revoked the permits last week for D&L Energy and Hardrock for dumping an estimated 240,000 gallons of water, oil and brine into a storm sewer that emptied into the watershed.
The criminal affidavit said one of Lupo’s employees told investigators another employee was directed by Lupo to dump waste into the storm sewer at least 20 times and that Lupo directed him to dump waste about six times.
It’s believed to be the first criminal charges in Ohio relating to violations from businesses involved in horizontal drilling for natural gas and oil in the Marcellus and Utica shales.
Officials all said horizontal drilling are an important part of the state’s economic future, but issued strong warnings to companies that violate procedures designed to protect the environment.
“This Utica Shale can be a major boom for this area,” Mahoning County Prosecutor Paul Gains said. “This miscreant who dumped this illegal waster into our waterways should be prosecuted to the fullest extent of the law.”
Officials said Lupo admitted to making dumping brine and water into the storm sewer on six different occasions. The company was caught Jan. 31 by ODNR investigators who were sent a second anonymous tip about dumping at the companies’ 2716 Salt Springs Road property.
Investigators Thursday praised the tipster and said that person was the reason they were able to bring federal charges against Lupo in less than three weeks.
ODNR’s Division of Oil and Gas Chief Rick Simmers said they are still gathering haulers logs to determine which site the waste was transported from. Simmers said any drilling company whose waste was eventually dumped by Hardrock could face regulatory and civil actions.
“They have an obligation to make sure that any waste generated or transported is properly stored and disposed,” Simmers said.
During the EPA and ODNR investigations, officials found Lupo repeatedly used one of his companies, Mohawk Disposal, to haul brine and other drilling waste products that Lupo ordered dumped into the Mahoning River despite the company having no license to transport brine.
Investigators noted at least three Ohio law violations by using the non-licensed company to transport the oilfield waste.
Dettelbach said oil was found in the Mahoning River, and a 252-page EPA report obtained Thursday by WKBN.COM said fracking mud and water that contained the chemicals benzene and toluene, both flammable and volatile chemicals. The U.S. Food and Drug Administration limits benzene in drinking water to 5 parts-per-billion because it could cause cancer and other health problems, though it’s usually inhaled through cigarette smoke, according to the EPA.
The EPA has no information on Toluene’s effect if ingested. Studies mostly show central-nervous system problems if inhaled.
WKBN.COM has made public records requests for the test results of exactly what chemicals were dumped into the river. A U.S. EPA report on Feb. 6 said 42 cubic yards of oiled debris was collected.
The EPA is still working to clean the river and storm sewer and officials said it would likely take through next week to complete.
ODNR permanently revoked D&L permits for all six of the company’s injection wells in the state, including two in Trumbull County, three in Mahoning County and one in Ashtabula County, and denied applications for three more that were planned for Trumbull and Mahoning counties.
He was ordered to immediately cease all operations at their injection wells and any temporary storage operations at their business. They had two active injection wells, one in Warren Township and one in New Lyme in Ashtabula County.
ODNR also revoked Hardrock Excavating’s brine hauler permit, which allowed it to transport brine from drilling rigs to its facility.
D&L said they will review the allegations and may appeal ODNR’s rulings. Hardrock officials appealed ODNR's allegations and had an informal show-cause hearing with ODNR officials in Uniontown.
Federal criminal law allows investigators to seek the harshest penalties for brine or any other kind of chemical dumping into public waterways.
State law says those convicted of violating state dumping laws can be sent to jail for up to six months and fined $10,000 on a first offense and each subsequent offense brings a two-year prison term and a $20,000 fine. DeWine on Thursday called for a stricter criminal penalties against illegal dumping.
Youngstown Mayor Charles Sammarone said if state and federal investigators had decided against filing criminal charges, he would have instructed city prosecutors to file charges.
“They have much stronger laws then the state as far as criminal prosecution,” DeWine said. “It makes eminent sense for this action to be brought by the federal government. It’s time Ohio Law caught up with the federal law.”
Anti-fracking activists have spoken out against D&L, the company the EPA said caused Youngstown’s first four earthquakes in history in 2011, including one with a 4.0 magnitude, by their injection-well practices.
Lupo, according to a search of business records, currently owns or is an agent to 20 active businesses, five cancelled businesses and five that were declared dead.
All current businesses address is 2761 Salt Springs Road, including D&L and Hardrock Excavating.
Several of Lupo’s businesses are centered around the oil and gas industry, including Black Gold Oilfield Services, LLC., crated in 2005 for “oil and gas well services,” filings say.
Officials said all oil and gas industry businesses of Lupo’s were shut down.
“This charge should serve as a warning to anyone that places their personal interests ahead of the public safety,” said ODNR Director Jim Zehringer. “ODNR will continue to aggressively pursue and seek prosecution of any business or individual that blatantly disregards the laws we have in place to protect Ohio’s communities and natural resources.”