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D&L owner charged, workers claim ordered to lie

Published: Fri, February 15, 2013 @ 12:01 a.m.

SEE ALSO: Activist blasts Mahoning leaders for water sale to CNX Gas

By JAMISON COCKLIN | jcocklin@vindy.com


Like the Mahoning River, the future of Ben W. Lupo, embattled owner of D&L Energy and Hardrock Excavating, is a bit more murky.

Download as PDF:
Final Analytical Report for Ohio EPA-NEDO

Analytical report prepared by TestAmerical Laboratories, Inc. for Ohio EPA-NEDO regarding suspected water contamination by D&L Energy Group.

Download as PDF:
D&L Sample Results Statement

Statement from ODNR and Ohio EPA: Sample results from D&L Oil Field Waste Brine Dumping into tributary and Mahoning River

Download as PDF:
US vs. Ben Lupo - Criminal Complaint

United States District Court for the Northern District of Ohio: Criminal Complaint, Case No. 4:13M 6006. United States of America v. Ben Lupo.

Flanked by high-ranking state and federal officials, U.S. Attorney Steven M. Dettelbach announced that Lupo has been charged with one count of violating the U.S. Clean Water Act.

State and federal regulators, along with Ohio Attorney General Mike DeWine, gathered along the banks of the Mahoning River, where over the years millions have been spent to clean up the waterway, to tell a crowd of reporters, residents and activists that Lupo’s actions would not be tolerated. He eventually also will face civil charges brought by the state, DeWine said.

In a whirlwind of activity Thursday, new details emerged about an incident Jan. 31, when regulators discovered that Lupo had instructed an employee of Hardrock Excavating to dump thousands of gallons of oil, brine water and drilling mud down a storm drain at the company’s 2761 Salt Springs Road headquarters. The waste discharged into a nearby creek and then seeped into the Mahoning River.

In response to the early findings of a criminal investigation, an affidavit was filed in support of the federal charge, leading to an arrest warrant and Lupo’s decision to turn himself in early Thursday.

He posted $50,000 in unsecured bond, pleaded not guilty and waived his right to a preliminary hearing, instead allowing Magistrate Judge George J. Limbert of U.S. District Court in Youngstown to turn him over to a federal grand jury, where he could face as many as 20 counts of illegal dumping and other charges.

“This charge should serve as a warning to anyone that places their personal interests ahead of the public’s safety,” said Jim Zehringer, Ohio Department of Natural Resources director.

“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.”

Court documents make clear the uphill battle Lupo likely will face in coming months.

According to the affidavit, based on sworn statements from David J. Barlow, a special agent with the U.S. Environmental Protection Agency’s Criminal Investigation Division, one of Lupo’s employees said Lupo had instructed similar waste dumps on 20 separate occasions.

Upon further questioning from Barlow, the employee said Lupo instructed those dumps be made after dark and “only after no one else was present at the facility.”

The revelation is troubling, considering that regulators revealed there are 58 temporary storage tanks at 2761 Salt Springs Road, each capable of holding 20,000 gallons of drilling waste.

After receiving an anonymous tip on Jan. 31, ODNR inspectors arrived to discover a hose connected to one of those tanks discharging into a storm drain.

When the Ohio EPA was called the next day to examine the contents of those tanks, a “very dark, oil-like” substance, similar in appearance to motor oil, could be seen. OEPA officials detected puddles of oil throughout the length of the nearby tributary and “oil and oil sheen were visible in the Mahoning River” farther downstream, according to the affidavit.

Court documents show Lupo’s insistence that his employees lie to investigators if asked how regularly the dumping incidents occurred — instructing them to say the violations had happened only four to six times before.

Test results taken from samples, obtained by The Vindicator, show that several hazardous pollutants were detected in the drilling waste that spilled into the creek and river.

Among them were benzene and toluene. Benzene is a flammable, colorless liquid that is a natural part of crude oil, gasoline and cigarette smoke. According to the American Cancer Society, studies have demonstrated the substance causes cancer.

Toluene is water-insoluble and often found in paint thinners. Its low solubility makes it difficult for the body to expunge by sweat or bodily fluid.

If convicted of the current charge, Dettelbach said Lupo faces up to three years imprisonment and a $250,000 fine.

However, facing a grand jury means more charges could be considered for Lupo, as the jury usually meets in secret to hear arguments from a prosecutor. In that case, jurors could take into account the investigator’s findings that he instructed dumping on 20 occasions, meaning he could be indicted on separate counts.

DeWine said federal charges were filed because the U.S. Department of Justice has the ability to charge violators under stronger federal laws. Still, he added that civil charges will be pursued.

“It is our intention to take civil action as well. We have illegal storage, illegal transportation and illegal disposal,”

DeWine said. “The potential fine under state law for each one of these separate violations per day is between $2,500 and $20,000. This action will be filed by the attorney general’s office on behalf of the state.”

A separate effort is under way to shore up the state’s laws on permitting oil and gas operators and tightening regulatory oversight of the industry.

Under state law, brine shipments are tracked with daily logs that are sent to ODNR. Asked if it was possible that Lupo was accepting more brine shipments than he could store, Richard J. Simmers, chief of ODNR’s Division of Oil and Gas Resources Management, said it was “entirely possible.” Haulers are paid by each shipment, raising the question of whether Lupo was accepting waste, dumping it and getting paid to take more.

Simmers said regulators are working to examine the brine-hauling records of Hardrock Excavating to determine whether Lupo was profiting in any way by making repeated dumps.

State Sen. Joe Shiavoni of Boardman, D-33rd, in cooperation with the Ohio Attorney General’s Office, the John Kasich administration and other Republican lawmakers, is working to draft legislation to increase the penalties for first-time violators and make it nearly impossible for operators to receive permits if they knowingly break the law.

Though regulators can now issue violations, there is no law that bars transgressors from receiving future permits after incidents occur.

Both Schiavoni and state Rep. Robert Hagan of Youngstown, D-58th, hailed Lupo’s swift prosecution, saying it sent the right message of balance between protecting the environment and pursuing economic development through the state’s emerging oil and gas industry.

U.S. Rep. Tim Ryan of Niles, D-13th, added: “I am supportive of the federal prosecutor’s involvement, and if the alleged violations occurred, then there must be justice. We cannot allow our environment to suffer because of unlawful and immoral actions, and we must show any would-be polluters that any infractions will be prosecuted to the fullest extent of the law.”

Asked if state and federal officials were weighing any of Lupo’s other environmental infractions, stretching back to the 1970s, Dettelbach said no. But DeWine said Gov. John Kasich has requested that those infractions be examined closely.

At this point, Dettelbach added, Lupo’s other companies — about 20 of them — are not subject to this investigation. He offered few details but said those operations could eventually get a second look if investigators deem it necessary.

Furthermore, where the drilling waste was coming from still remains unclear, as regulators continue to examine records. Officials on Thursday could say only that the waste was coming from “active drilling sites in Pennsylvania and Ohio.”

Last week, in an unprecedented move, all of D&L Energy’s permits were revoked, idling its injection wells. At the same time, regulators revoked Hardrock Excavating’s permit to haul brine water.


1Attis(1134 comments)posted 3 years, 5 months ago

Nothing but a photo op for local/state politicos and a media-hungry federal bureaucrat giving the false impression that something is being done to protect the environment and prosecute criminals like this environmental terrorist. He's still not in jail and likely never will be; the river is still polluted and likely will continue to be; fracking/drilling/dumping/injecting continues unabated; and it's business as usual. Why even have a press conference? Don't you all have publicly funded job to do?

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2RTS1416(117 comments)posted 3 years, 5 months ago

Cambrige, how can this be true??????? Charged with violating the clean water act????? You and Al Gore have been telling everyone that the entire gas industry had been exempted from clean air and water regulations? Go find a newspaper in California to spread your nonsense and leave us alone, idiot.

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3BIGDRILL(36 comments)posted 3 years, 5 months ago

This incident portrays the lack of a disposal facility. D&L injection wells were shut down after the quake. Surface disposal after treatment is an option that has many hurdles. Let the State of Ohio seek solutions and not just posture for the news media. The economic future of Ohio depends on it.

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4redeye1(5669 comments)posted 3 years, 5 months ago

Can anyone answer the question , Why was he only charged with one account of the Clean water act. He has admitted to dumping numerous times since last year.

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5RTS1416(117 comments)posted 3 years, 5 months ago

A conviction will surely come, however, even being charged with being in violation of the act shows that they are not, nor have ever been "exempted" from it. There are plenty of companies out there that are preforming the disposal of these materials in a responsible manner. Get rid of this loser and let's drill.

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6Freeatlast(1991 comments)posted 3 years, 5 months ago

Do not worry the Big rat in Columbiana
Will get off free again

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7walter_sobchak(2724 comments)posted 3 years, 5 months ago

Yesterday's photos of this press conference didn't show Buckwheat Bob but I knew better! There was a camera there and he had to make it! Anyway, how could Lupo possibly be charged with a violation of the US Clean Water Act when I have read that Darth Vader, former head of Halliburton, had this entire drilling and fracking industry exempted from it? Maybe Buckwheat can get back to us on this.

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8JoeFromHubbard(1810 comments)posted 3 years, 5 months ago

What a media circus this has become.

Some of the fracophobics don't believe that Mr. Lupo will be punished enough while others are just glad that he was charged with something.

What recently may have found its way into the Mahoning River from Mr. Lupo's facility is infinitesimal compared to what the steel mills put into it for decades and we all have survived quite well, thank you.

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9Chette78(1 comment)posted 3 years, 5 months ago

As an employee of an envrionmental company and fromer resident for 30years. I see first hand what most people are trying to do to not interupt the fragile ecosystem of the Mahoning Valley. I am appalled and Outraged as every person from Youngstown should be.They made people from Youngstown look stupid for allowing this to happen more than 6X. My family is there peoples children live in that community and drink that water and want to enjoy the river that most of us could not do growing up because of the Mills. Youngstown is rebuilding slowly but surely from Brownfields to Parks and I for one think this man took advantage of our community!. SHAME SHAME! I hope they throw the book at Mr. Lupo for dumping in to the Mahoning River. It took an extreme amount of time for numerous amount of people to try to rebuild what damage has been done from the Mills...Again I am angry! I cant say enough!!!! Its criminal for what he did and he should be punished! He pretty much took peoples hard work and threw it in the river...

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10BIGDRILL(36 comments)posted 3 years, 5 months ago

I believe that Patriot in Warren is running at full capacity and under contract. The dust still hasn't settled from the state shutting them down.

Research shows that Lupo was under a huge debt load from his investing in injection wells that have been shut down. Not to condone what he did but desperate men do desperate things.

Youngstown's oilfield water treatment plant Virgin Oil and Water went up in a ball of fire due to a chain smoking employee lighting up. Just by their nature oilfield liquids are very flamable. They never recovered from the catastrophe and are out of business.

Investing in anything is risky and more so with anything connected to the oilfields. To keep investment money flowing to the area companies that serve the drillers must be vibrant enough to do the job. The State of Ohio owes it to their taxpayers to find ways to keep the interest in investing.

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11cambridge(4149 comments)posted 3 years, 5 months ago

rts....Every time one of you shills claim you have been using the same process for fifty years without causing any pollution I'm going to call BS and ask why fracking is exempt from clean water and air regulations.

As far as you not wanting me posting on Vindy, I was born and raised in the valley, have family and friends there, I visit often and when I was a kid I had a paper route and delivered the Vindicator. On the other hand you just showed up, so you keep shilling and I'll keep calling BS.

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12RTS1416(117 comments)posted 3 years, 5 months ago

Cambridge. I'm valley born and raised. Born at St Elizabeth, Dad hauled steel out of the mills for George Halden. I care for my elderly mother and I also am raising my children here not just coming back to visit like you. If you took time to read the article before you posted you would see that Mr. Lupo has been charged with a violation of the clean water act. How can the industry be exempt from this act but be charged for violating it? The only beef I have with you and your posts is that you are instilling fear into people with statements that are obviously untrue.

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13cambridge(4149 comments)posted 3 years, 5 months ago

rts....The industry you defend has caused pollution from one end of this country to the other while claiming they have a pollution free history for fifty years.

Fracking is exempt from clean water and clean air regulations and the reason they are exempt is because the chemicals they add to the area's clean water they take pollutes. You need fluid and pressure that will force the gas to the surface, fine then use water and pressure. But that isn't good enough because you want to limit corrosion for your pipe so the hell with air and water, lets protect the pipe.

You want me to stop posting on the vindy then have the vindy shoot one of their videos showing you drinking a big glass of fracking fluids at every new drilling site and I'll never post on this subject again.

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14Owlguin(50 comments)posted 3 years, 5 months ago

1. This guy needs to be put away for a long time and he needs to pay financially for being so greedy, ignoring the law and instructing workers to break the law. This is like a movie from 1970.
2. Fracking is obvously a very dirty way to obtain energy. While YTown sits on top of a 150 year supply of natural gas, the real "industry" should be in research to get that energy out of the ground in a more environmentally friendly manner.

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15RTS1416(117 comments)posted 3 years, 5 months ago

Cambridge you are hopeless, whatever color the sky is in your world today I hope it is your favorite.

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16JoeFromHubbard(1810 comments)posted 3 years, 5 months ago

As suspected, it didn't take long for this thread to turn ugly.

The makers and shakers versus the quakers and takers.

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17Silence_Dogood(1677 comments)posted 3 years, 5 months ago

From the onset let me state that I am all for the gas industry operating in Ohio. Any homegrown fuel source will help this Nation gain it's independence from foreign sources. With that said, I find it hard to overlook some disturbing facts.
First the chemicals that have been reported to be in this spill contains cancer causing agents along with potentially explosive chemicals. Correct me if I am wrong but I was under the impression that every worker in America had the right to review the chemicals MSDS data sheets that they were required to work with. This gives the worker the ability to properly protect themselves from the chemicals that they work with. Were Lupo's employees properly informed as to the chemical's that they were working with? This leads us to the conversation about Patriot, are Patriot's employees properly informed as to the chemicals that they are exposed to. And the follow on question would be are the employee's of the Warren Waste Water Treatment plant informed about the water stream that they have to work with on a daily basis.
I would hope that the Vindy staff would take this information about the worker's unknowing exposure to potentially dangerous chemicals and really look in depth on the subject. This subject really is the wild card when it comes to the subject of fracking fluids, workers rights to know what the heck they are working with.

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18republicanRick(1736 comments)posted 3 years, 5 months ago

Cambridge, what is your college degree in? You are hopelessly ignorant of any scientific thinking, and, your false accusations from your apartment in San Francisco do nothing to improve life here.

You ran away to be a waiter in The City. Please involve yourself in fixing California and quit spreading falsehoods about life here.

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19DwightK(1537 comments)posted 3 years, 5 months ago

Silence_Dogood, Google "Halliburton Loophole". In 2005 Bush and Cheney made sure the Clean Water Act and the Safe Water Drinking Act excluded chemicals used in fracking:

Paragraph (1) of section 1421(d) of the Safe Drinking Water Act (42 U.S.C. 300h(d)) is amended to read as follows:
‘‘(1) UNDERGROUND INJECTION.—The term ‘underground injection’—
‘‘(A) means the subsurface emplacement of fluids by well injection; and
‘‘(i) the underground injection of natural gas for purposes of storage; and
‘‘(ii) the underground injection of fluids or propping agents (other than diesel fuels) pursuant to hydraulic fracturing operations related to oil, gas, or geothermal production activities.’’

The term "pollutant"...DOES NOT MEAN (A) "sewage from vessels" within the meaning of section 312 of this Act; or (B) water, gas, or other material which is injected into a well to facilitate production of oil or gas,

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20RustOnMyBelt(172 comments)posted 3 years, 5 months ago

When the Governor took office he instructed/comanded all regulatory offices to be more "business friendly" . Mr. Lupo was merely doing what was best for his own bottom line by trimming a few costs here and there. The landowners who made out on leases didn't have to think twice before signing.Their bottom line was whatever they would be paid per acre.Its all about maximizing profits for everyone so why all the surprise?Its just "business".

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21cambridge(4149 comments)posted 3 years, 5 months ago

Silence....You are correct about a persons right to view MSDS data sheets. I spent my life in construction as a union steamfitter working in industrial facilities, oil refineries, power plants, pipe lines, silicon valley and bio-pharmaceutical production facilities. I have been in dozens of facility evacuations due to the release of one kind of gas or another and members of my local have lost their lives and countless have been burned and seriously injured.

Everyone of those example's contains more dangerous chemicals than I even want to think about. In that life time of working in those facilities with thousands of other construction workers I don't know of even one person that knows one person that ever asked to see a MSDS data sheet. It's not because we are not concerned for our safety or the environment, it's because if you ask even one time the word will be out and you will make the first layoff on every job you are dispatched. You keep your head down and your mouth shut or you don't work.

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22HSG(186 comments)posted 3 years, 5 months ago

Responsible "disposal" of this fluid means putting it into a big tank and hoping it doesn't leak.

The complicated technology to extract natural gas from underground shale exists. But cleaning the water used in that process doesn't? This, according to previous posters has been going on for over 50 years?

Green energy sounds better all the time.

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23DSquared(1788 comments)posted 3 years, 5 months ago

I knew the truth would finally come out that it is Bush and Cheney's fault! I wonder why St Barack and his apostles didn't fix this? He was touting this new industry as a way off of evil fossil fuels in his speech this week. How could he have missed this? Something must be wrong!

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24grayghost(2 comments)posted 3 years, 5 months ago

BIGDRILL, Lupo was doing illegal stuff WAY before he invested in injection wells. He has been flouting safety regulations for a long time.

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25JoeFromHubbard(1810 comments)posted 3 years, 5 months ago

@ toycannon:

Yes, great minds are like sewers,
They all run in the same channel.

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26Metz10987(145 comments)posted 3 years, 5 months ago

They may have charged him with it but let's see if it sticks. If they are exempt from it fully he will get off. It may not include intentiional dumping however so that may be why they were able to charge him.

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27BIGDRILL(36 comments)posted 3 years, 5 months ago

Illegal stuff?

State Rep. Sean O’Brien, sitting in the audience at Warren G. Harding High School on Jan. 12, heard remarks from officials of GM Lordstown that made him pick up his phone and write a text message to Scott Nally, director of the Ohio Environmental Protection Agency.

General Motors officials had just said that proposed limits on the amount of total dissolved solids the company could release into the Mahoning River would force GM to spend $8 million to build additional treatment facilities and $1 million annually to run them.

“I texted the director at the hearing,” said O’Brien, a Democrat from Brookfield whose district, the 65th, is in Trumbull County. “I said, ‘We need to talk.’ Then I arranged a phone conference.”

A couple of weeks after the hearing, O’Brien was on the phone with Nally, along with two representatives from General Motors’ corporate offices in Michigan and a representative from the Delphi Corp.

Both companies were concerned about the economic impact of the requirements, O’Brien said.

Company officials told the director about the types of systems that would be required to bring their discharges up to the proposed level.

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28grayghost(2 comments)posted 3 years, 5 months ago

BIGDRILL, I don't see Ben Lupo's name in the article regarding GM. Do you?
Lupo was dumping contaminates over in PA as far back as 2005. The EPA ought to go back and take soil samples.

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29handymandave(578 comments)posted 3 years, 5 months ago


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