Tuesday’s sentencing hearing for Ben Lupo for the illegal discharges of oil-field waste into a Mahoning River tributary in Youngstown could feature a lengthy battle of expert witnesses.
Three witnesses have been proposed to testify in the 10 a.m. hearing before U.S. District Court Judge Donald C. Nugent pronounces sentence on Lupo, 64, of Springfield Township, after Lupo’s guilty plea to violating the federal Clean Water Act.
Brad J. Beeson, the assistant U.S. attorney prosecuting the case, has said in a court filing that he expects to call to the witness stand Kurt Kollar, the Ohio Environmental Protection Agency’s on-scene coordinator, who oversaw the $3.1 million cleanup after the discharges.
Kollar was at the Salt Springs Road discharge site almost daily for more than a month after the final spill of brine, drilling mud and drill cuttings Jan. 31, 2013, and documented the cleanup in written reports and photographs.
Kollar has been an OEPA on-scene emergency response coordinator for 22 years.
Lupo’s lawyers say they plan to call two witnesses: Dr. Thomas N. Detesco of Boardman, Lupo’s primary care physician; and Stephen D. Emsbo-Mattingly, a Rockland, Mass., forensic chemist.
In a court filing, the defense lawyers said they believe 90 minutes each for the physician and the chemist will be sufficient for their examination and cross-examination.
Mattingly’s fee for consultation and testimony is $200 an hour, according to a court document.
With more than 20 years of environmental chemistry experience, Mattingly is the author or co-author of more than 100 professional publications.
Beeson wants Lupo to be sentenced to the maximum — three years in prison and a $250,000 fine — to deter others from similar conduct.
But Lupo’s lawyers say probation or house arrest is appropriate because “incarceration will be a death sentence” for Lupo, a diabetic kidney transplant and knee-replacement recipient, who undergoes kidney dialysis five times a week.
Beeson said the maximum sentence is justified by the repeated, unpermitted discharges of pollutants, Lupo’s supervisory role and the high cleanup cost.
“Oil was observed flowing from the creek into the Mahoning River towards the end of the over-one-month cleanup,” Beeson reported.
But Lupo’s lawyers countered that there’s no evidence the Mahoning River, or any places downstream, were harmed by the illegal discharges from storage tanks into a storm drain, and they said nobody was hurt by the spills.
Two employees of Lupo’s Hardrock Excavating LLC — Mark A. Goff, 46, of Newton Falls, and Michael P. Guesman, 35, of Cortland — who pleaded guilty to violating the Clean Water Act, got three years’ probation after saying they repeatedly dumped the waste at Lupo’s direction.
Lupo is represented by Attys. Joseph W. Gardner of Canfield and Roger M. Synenberg and Clare C. Christie, both of Cleveland.