Lupo claims he dumped gas and oil waste to save Valley jobs
CLEVELAND, Ohio - The U.S. Attorney is asking a federal judge to sentence the former owner of a Youngstown oilfield service company to three years in prison for ordering two former employees to discharge brine and oilfield waste into a tributary of the Mahoning River.
The recommendation for the maximum sentence is included in a memorandum prepared by prosecutors for the sentencing of Ben Lupo, which is scheduled for next week.
But the sentencing memorandum filed by the defense claims that Lupo dumped the waste to keep his employees working, and the oil and gas industry in business. The memo says that Lupo should receive no more than probation or house arrest.
Prosecutors say that when Lupo owned Hardrock Excavating, he instructed two employees to discharge brine and oilfield waste into a sewer on Salt Springs Road. The waste ultimately made its way in to a tributary of the Mahoning River, which led to a massive cleanup effort.
It's estimated that dumping of the brine and drilling mud could have occurred at least 20 times between November of 2012 and the end of January 2013.
Lupo has already agreed to pay more than $3-million dollars in clean-up costs. However, Special Assistant U.S. Attorney Brad Beeson is also asking that Lupo, who pleaded guilty to violating the U.S. Clean Water Act, be fined $250,000.
Another sentencing memorandum filed on Lupo’s behalf, is a 32 page document depicting the 64-year-old Poland resident as a hard working father who suffers from several medical conditions with no criminal history.
Under the heading of “Facts” in the document, the memo asserts that approximately two years ago, there were public concerns that the fracking process caused earthquakes in the Youngstown area. The director of the ODNR requested that Lupo shut down D&L’s Youngstown injection well because of the public concerns.
Lupo’s attorney says that although his client was not legally obligated to do so, he voluntarily shut down D&L’s injection wells. Lupo claims that with no injection or disposal wells available to dispose of the water produced by the fracking process, D&L began storing the water in “frac” tanks located on D&L’s property. The water in the frac tanks was subsequently transported to distant disposal wells.
Lupo claims that the tanks began filling up and there was no place to dispose of the water from the production wells. According to the memorandum, D&L was running out of room to store the water, leaving Lupo facing a difficult decision: shut down D&L’s operations or discharge the fluid from the fracking tanks down the storm sewer. Lupo allowed the discharge of the contents of the tanks into the storm sewer.
According to the memo:
"By discharging the water, Ben could keep the production wells running and keep his workforce employed. If there was nowhere to put the water from the production wells, the production would come to a halt, Ben’s employees would be laid off, and those workers who depended on D&L for employment would be laid off."
Lupo’s attorney plans to call witnesses to testify before sentence is passed. A court document lists the defense witnesses as Boardman physician, Dr. Thomas Detesco, and Massachusetts Forensic Chemist, Stephen D. Emsbo-Mattingly.
Emsbo-Mattingly is expected to testify about several items, including a claim that the hazardous substances (benzene and toluene) found in the Mahoning River did not come from an unlawful discharge from D&L property, but instead from some other source such as smoke, soot and vehicular emissions.
Dr. Detesco is expected to give testimony about Lupo’s medical history including uncontrolled type 2 diabetes, progressive chronic kidney disease, severe neuropathy of the upper and lower extremities and many other ailments. Lupo’s doctor states that during the time of the waste dumping incident he was suffering from a significantly reduced mental capacity.
The prosecution notified the court that it intends to call Kurt Kollar of the Ohio Environmental Protection Agency to testify as an expert witness at the sentencing. Kollar was the EPA’s On Site Coordinator during the cleanup of the Hardrock waste.
Kollar will testify about his observations of the cleanup at the Hardrock facility. Beeson says his testimony will include a review photographs taken during the cleanup process
Lupo is scheduled to be sentenced at 10:00 a.m. next Tuesday in U.S. District Court in Cleveland.
