Records detail ODNR’s response to D&L dumping

By Tom McParland


Records provided to the Sierra Club as a part of its court settlement with the Ohio Department of Natural Resources provide a more detailed picture of last year’s investigation into the reported illegal dumping of drilling wastewater in Youngstown.

According to the documents, an ODNR employee received an anonymous text message on Jan. 26, 2013, claiming that drilling fluids were being dumped into a storm drain at the D&L Energy and Hardrock Excavating site on Salt Springs Road.

Rick Simmers, the chief of ODNR’s division of oil and gas resources management, got word of the report around 1 p.m. Jan. 31.

The Uniontown field office was notified of the purported violation 10 minutes later, and an investigation plan took shape soon thereafter, according to the records.

Stephen Ochs, an underground injection control inspector, and John Fleming, the Mahoning County inspector, arrived together at the D&L site at 7:45 p.m. Jan. 31, where they found a hose running from the back of a 500 barrel “frac tank” to a storm drain. After taking samples from the drain and photographing the scene, the two inspectors reported their findings to Bob Worstall, deputy chief of ODNR’s oil and gas division.

Shortly after 8 p.m. that night, Ben Lupo, the site’s owner, left a voicemail on Ochs’ phone in which he took responsibility.

Lupo, correspondences showed, maintained early in the investigation that the liquid being drained from the tanks was fresh water rinse that was left over after cleaning the storage tanks.

The initial investigators contacted other officials the following day.

On Feb. 1, Fleming talked to the Ohio Environmental Protection Agency and the Youngstown Public Works Department. He emailed the photos from his investigation, and both agencies said they would investigate, documents show.

OEPA, deriving authority from the Clean Water Act, headed the investigation pertaining to the affected waterways, and was at the scene Feb. 1. The agency notified the National Response Center, consistent with protocol when a spill enters a waterway.

OEPA worked with a private contractor to clean up and contain the spill, which had contaminated the D&L storm sewer, and a stream that flowed into the Mahoning River.

Lupo was indicted by a federal grand jury in February 2013 on charges of violating the U.S. Clean Water Act. He pleaded not guilty to the charge, and the case is pending.

The Sierra Club had been trying to access the records since March.

The environmental group finally received the documents — mostly email correspondances, investigator statements and memos — after it reached a settlement agreement with ODNR in a public-records case.

Benjamin Wickizer, a conservation program coordinator, said the Sierra Club was satisfied with the time line for ODNR’s response that was established in the documents.

But he still expressed concern that Lupo still received permits from the state, despite numerous infractions.

A Vindicator investigation in 2012 showed that D&L, under Lupo’s leadership, had a history at least 120 violations at 32 injection and extraction wells in Ohio and Pennsylvania.

“It should never have gotten to this point because he never should have been issued permits,” he said.

In addition to turning over records, ODNR paid $2,500 in lawyers fees and penalties.

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