By Peter H. Milliken
Saying it is owed more than $1 million for its cleanup of the Jan. 31 spill of drilling waste down a storm drain and into a Mahoning River tributary, the environmental services company Sunpro Inc. of North Canton is suing D&L Energy Inc. and its president, Nicholas C. Paparodis, for a sum in excess of that amount.
Benedict Lupo of Poland is one of the D&L owners. He, however, is not named in the action.
Sunpro filed the civil breach-of-contract lawsuit this month in Mahoning County Common Pleas Court, and sought and received a temporary restraining order from Judge John M. Durkin, which bars D&L from selling or disposing of a North Lima disposal well or any other assets.
A hearing on whether to issue a preliminary injunction that would continue the terms of the temporary order is scheduled for 9:30 a.m. Friday before Magistrate Dominic DeLaurentis.
“The project was a massive and urgent undertaking, which was important to public safety,” the lawsuit said, adding that D&L retained Sunpro for the cleanup, which the U.S. and Ohio environmental protection agencies supervised.
“Plaintiff Sunpro quickly responded, sending large crews to feverishly respond to the situation,” staffing the cleanup every day in February, sometimes around the clock, the complaint added. So far, D&L has paid Sunpro only $175,000 for its work, the suit says.
Lupo, 62, is charged criminally with violating the federal Clean Water Act because he allegedly ordered discharge of the oil field waste. Also charged with that felony criminal offense is Michael P. Guesman, 34, of Cortland, who allegedly dumped the waste, and Hardrock Excavating LLC, another of Lupo’s companies.
All three defendants have pleaded innocent to the criminal charge.
On Tuesday, Lupo’s defense lawyer in the criminal case, Joseph W. Gardner, asked U.S. District Court Judge Donald C. Nugent in Cleveland to declare the criminal matter a complex case and to postpone the jury trial set to begin April 22.
However, after a 20-minute initial pretrial conference Wednesday, Judge Nugent said he will consider Gardner’s motion to postpone the trial during a 9:30 a.m. April 15 pretrial conference. The pretrial evidence exchange between the prosecution and defense, known as discovery, is ongoing, the judge noted.
Although federal prosecutors have supplied the defense with Lupo’s statement to authorities and an analytical report, Gardner said the government “seized a large amount of documents from the place of business of the defendant” and the defense isn’t sure exactly what the government seized.
“Because of the volume and nature of the information and because the government is still gathering information, this counsel would be ineffective in mounting a defense to the government’s charges without the complete data and time to review the data,” Gardner said in his motion to postpone the trial and declare the case complex.
According to the civil lawsuit, Paparodis told Sunpro that D&L would sell its 51-percent interest in the North Lima well for about $1.8 million and pay Sunpro in full from those proceeds.
An unnamed lawyer for D&L has said D&L will file for Chapter 11 bankruptcy, the lawsuit says, adding that Sunpro believes D&L intends to sell the well before making the bankruptcy filing, “which would place the sale outside the review of the bankruptcy trustee.”
On Feb. 6, the Ohio Department of Natural Resources revoked Hardrock’s brine-hauling permit and ordered D&L to cease all injection-well operations statewide and storage operations at Lupo’s Salt Springs Road headquarters, where the spill occurred.
Paparodis told Sunpro he must raise more than $500,000 to defend Lupo in the criminal case, the lawsuit says.
Paparodis could not be reached for comment.
David Bertsch of Akron, one of the lawyers representing Lupo in civil litigation, said he was “not in a position to answer” whether D&L would file for Chapter 11 bankruptcy.
Bertsch said he did not know the specific dollar figures for Sunpro’s cleanup, but he said he believes Sunpro’s bill “was a moving target as the cleanup was going on,” due to unforeseen circumstances encountered during the cleanup. “The original estimate was far less than what the claim was for,” when the cleanup was completed, Bertsch said.
In yet another legal matter, a hearing will be at 9:15 a.m. Monday before visiting Judge Thomas J. Pokorny of Mahoning County Common Pleas Court in a civil lawsuit by Susan A. Faith and 15 other plaintiffs against Lupo and three of his companies, which is set for a jury trial to begin July 29.
Faith, who is D&L’s former president, seeks to remove Lupo as acting manager of Gasearch LLC, a gas-marketing company, saying Lupo can’t successfully market this product under the cloud of the criminal charge against him.
When that civil lawsuit was filed, Faith owned 49 percent of Gasearch and Lupo, 2 percent.