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Citizens Blow Whistle on Illegal Frack Dumping into Mahoning River
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EPA investigating Youngstown drilling-waste dumping

By Bob Downing Published: February 5, 2013

The Ohio Environmental Protection Agency is conducting a criminal investigation into how drilling wastes got into a storm sewer in Youngstown and drained into the Mahoning River. The agency is "very concerned" by the discovery of dumping — possibly illegal — discovered late last week, EPA spokesman Chris Abbruzzese said in a statement the agency released Monday.

The problem was discovered near 2761 Salt Springs Road at the D&L Energy Group. Since Thursday, state responders have directed the containment and cleanup of the discharged wastes from a storm drain, a tributary and the Mahoning River, Abbruzzese said.

Containment booms, absorbent pads, vacuum trucks and other equipment are in place and work continues to clean out the storm drain and remove any remaining product from the tributary, he said.

It was unclear how much waste might have been dumped into the storm sewer that then fouled the river, the EPA said. The Youngstown Vindicator reported that at least 20,000 gallons of suspected fracking waste was involved.

Abbruzzese said the investigation, done in cooperation with the Ohio Department of Natural Resources, was in its preliminary stages. The two state agencies will "pursue flagrant violations of the laws of Ohio to the fullest extent possible," he said.

D&L Energy is the company that owns and operates the injection well west of Youngstown that was blamed for a dozen earthquakes in 2011 in the Youngstown area.
D&L was not involved in the alleged illegal dumping and that other companies operating on the site are responsible, company spokesman Vince Bevacqua told the Youngstown Vindicator.

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State revokes operating permits for two companies tied to Youngstown brine dumping

By Bob Downing
Beacon Journal staff writer

The state of Ohio is permanently revoking the operating permits of two Youngstown companies in connection with the illegal dumping of drilling wastes into a storm sewer that drains into the Mahoning River.  The revocation orders by the Ohio Department of Natural Resources were served late Wednesday to Hardrock Excavating and D&L Energy Group, both located at 2761 Salt Springs Road in Youngstown and both owned by Ben Lupo, who faces criminal and civil charges from the state.

D&L Energy is the company that operated the injection well that triggered more than a dozen small earthquakes through late 2011 in the Youngstown area. The well was used to dispose of drilling waste.  Under the ODNR’s orders, D&L Energy must cease all injection-well operations in the state of Ohio. Permits for its six injection wells have been revoked by the state. They include operating injection wells in Trumbull and Ashtabula counties and three under construction: two in Mahoning County and one in Trumbull County. The sixth well in Youngstown exists on paper.

The state’s order does not affect the 9,200-foot-deep Youngstown injection well that is widely blamed for the earthquakes. That well may be switched to a new corporate owner, officials said.  Applications from the company for three new injection wells have been denied.  In addition, D&L Energy will immediately cease all temporary storage operations at the Salt Springs Road site.

ODNR also revoked the brine hauling permit of Hardrock Excavating. The hauling permit had allowed the company to transport oil field wastes from drilling rigs to the Youngstown site.  The companies and Lupo were reviewing the state action and may issue a statement later today, said spokesman Vince Bevacqua.  The state’s criminal investigation against Lupo, also identified as the CEO of both firms, and the companies is continuing.

ODNR has officially asked the Ohio attorney general to initiate civil proceedings against those responsible for the intentional dumping.  “ODNR treats all allegations of wrongdoing involving oil field waste very seriously and will continue to aggressively investigate each of these cases to ensure violators are held accountable,” said ODNR Director James Zehringer in a statement.

Lupo was linked to the illegal discharge of drilling wastes to the storm sewer off Salt Springs Road in Youngstown on Jan. 31. Officials have placed the amount of waste that was dumped at between 40,000 and 50,000 gallons, according to the Youngstown Vindicator.  He reportedly ordered company employees to dump the oil, brine and drilling muds, an action that was witnessed by state inspectors.

The state had learned of the planned dumping via an anonymous telephone call to ODNR. The Ohio Environmental Protection Agency reported that Lupo admitted responsibility for the dumping.

At that time, he was identified as owner of Hardrock Excavating and a spokesman for D&L Energy had denied any corporate involvement in the dumping.

The EPA has been supervising the cleanup of the storm sewer, an unnamed tributary and the Mahoning River.  EPA Director Scott Nally said: “We are working as fast as possible to complete this cleanup because a warming trend into the weekend could make the work more challenging as things thaw.”

The Ohio EPA regulates any pollutants that enter state waters. Both state and federal laws prohibit the placement of industrial wastes where they can cause water pollution.

Under state law, violators face a misdemeanor penalty of up to one year in prison and a $25,000 fine.Under federal law, a knowing discharge constitutes a felony with a maximum penalty of three years in prison and fine of $50,000 per day. A knowing violation occurs when an individual or corporation knowingly discharges pollutants into navigable waters.

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Documents: CEO Lupo directed illegal dump of brine

Published: Wed, February 6, 2013 @ 12:01 a.m.

Documents released by state regulators Tuesday show that Ben W. Lupo, a partner in several companies that share an address at Salt Springs Road, directed employees there to dump up to 20,000 gallons of wastewater down a storm drain. The revelation comes five days after the incident, which occurred at Hard Rock Excavating’s headquarters, where a large storage tank, capable of holding up to 20,000 gallons of waste — including oil and brine — was being cleaned by an employee of the company.

According to business records filed with the Ohio Secretary of State’s Office, D&L Energy is listed as the owner of the company. Lupo, D&L’s chief executive, is listed on those records as Hard Rock’s only authorized representative. He also is affiliated with several other companies that share an address at 2761 Salt Springs Road where the dumping incident occurred.  Both the Ohio Department of Natural Resources and the Ohio Environmental Protection Agency received an anonymous tip late Thursday and were on the scene within three hours. They were able to obtain photographic evidence of the dumping taking place, a source inside ODNR told state Sen. Joe Schiavoni of Boardman, D-33rd.

Emergency response teams from the OEPA, U.S. EPA and ODNR managed to collect samples of the dumped substance that are being analyzed. Workers continue to mitigate the effects of the spill, where the drain entered a Mahoning River tributary behind the Toys “R” Us Distribution Center on Geoffrey Trail just off Salt Springs Road and leaked an unknown amount of oil and brine into the river.  However, the regulatory agencies have been reluctant to release further details as they plan to proceed with a criminal investigation, said Chris Abbruzzese, deputy director of communications for the OEPA.  The secrecy of the matter prompted an outcry from some of Youngstown’s elected officials and members of the public who took to social media throughout the day Tuesday demanding more answers.

A public-records request from both The Vindicator and state Rep. Bob Hagan of Youngstown, D-60th, led the OEPA to release a Notice of Violation and a preliminary incident report late Tuesday.  “Brine residue material was intentionally discharged to storm sewer by company employee under direction of Ben Lupo, owner,” the violation, which was signed by Lupo, read. “Release impacted the Mahoning River and a tributary, company failed to report in accordance.”  The OEPA incident report also confirmed that ODNR inspectors witnessed the dumping around 7:30 p.m. and Lupo contacted the agency’s inspectors to accept full responsibility, but when he did so remains unclear.  Abbruzzese said that although the Notice of Violation is not an admission of guilt, it is an acknowledgement of Hard Rock’s role in the incident. The document states clearly that “by signing below the party acknowledges receipt of the Notice of Violation but does not admit the fact of or liability for the violation described.”

Hagan visited the site Tuesday, expressing his anger at the situation and the potential danger to the water supply, which officials at the Meander Reservoir, Youngstown’s water source, said was completely unaffected as the city does not draw its water from the tributary or the Mahoning River. “I don’t understand why the governor was briefed, and he’s not telling elected officials about it,” Hagan said. “It’s my district, and we should have been advised immediately. We have no idea what kind of chemicals were lost or what exactly leaked into the ground or water.”  Despite its ownership and Lupo’s affiliation with Hard Rock, D&L continues to deny its involvement.

In an email, company spokesman Vince Bevacqua wrote, “This was an action of Hard Rock Excavating, not D&L Energy — a separate company. I do not work for Hard Rock and cannot comment on that company’s actions at this time.” Bevacqua refused to make Lupo available for an interview, and attempts to reach him and other officials at the company by phone failed Tuesday.  Schiavoni said he understood regulators’ approach in responding to the incident and getting the facts straight before releasing more details, but made it clear that as the investigation continues, state officials will need to take a hard line if any wrongdoing is proved.  “The bottom line is, as a state we have to hammer these guys to set a precedent that this will not be tolerated in the state of Ohio,” Schiavoni said. “Unfortunately, we’ll have to make an example of whoever is found to be responsible — it will have to be severe.”

A Vindicator investigation in 2012 revealed that D&L has a history of at least 120 violations at 32 injection and extraction wells across Ohio and Pennsylvania stemming from citations levied by environmental regulators for failing to display a permit or contaminating water and soil.  Under Ohio law, any company or individual found responsible for intentionally dumping brine is subject to either a fine of $10,000, six months in prison, or both, for a first offense. Repeat offenders are subject to a fine of $20,000, two years in prison, or both. Nathan Johnson, an attorney for the Ohio Buckeye Forest Council, said an operator that intentionally dumped brine into a storm drain could conceivably face charges from the federal government for violation of the Clean Water Act.  Abbruzzese said that the facts of the criminal investigation would determine whether state or federal agencies have the power to pursue charges.

Last week’s incident comes a little more than a year after an injection well operated by D&L was linked to a series of earthquakes in the area. That well, and four others in a seven-mile radius of it, are under indefinite suspension.  For Hagan, the spill is good reason to force the oil and gas industry to specifically reveal the chemicals they use in the fracking process, which state law currently does not require.  “This is one of the issues I fought on when Senate Bill 315 was being drafted because of this misinformation, this lack of ideas on the chemical content,” he said. “We have to stop letting this industry run roughshod just for the sake of jobs and economic development. First it was earthquakes, and now it’s dumping waste into the Mahoning River. What’s next?”

Vindicator reporter Susan Tebben contributed to this story

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Public outcry continues over Hard Rock's dumping in Youngstown

By David Skolnick, Jamison Cocklin
Thursday, February 7, 2013

Backlash over Hard Rock Excavating’s decision to dump thousands of gallons of fracking waste into a storm drain continued Wednesday with sharp criticism of both state law and the oil and gas industry.  Environmental groups, elected officials, the public and even the industry itself decried last Thursday’s incident when inspectors with the Ohio Department of Natural Resources were dispatched to Hard Rock’s headquarters at 2761 Salt Springs Road only to witness an employee cleaning out what is now described as a tanker truck filled with brine and oil.  Stoking the outrage were documents released late Tuesday by the Ohio Environmental Protection Agency that show Ben W. Lupo, a partner in several companies headquartered at the site, and owner of both D&L Energy and Hard Rock, instructed an employee to dump the wastewater down the drain, which eventually emptied into the Mahoning River.

Youngstown Fire Chief John J. O’Neill Jr. said he spoke Wednesday with Kurt Kollar, the on-scene coordinator for OEPA’s Division of Emergency and Remedial Response, who told him 40,000 to 50,000 gallons were dumped into a storm sewer that empties into the Mahoning River.  “They plan on filing state and federal charges against the appropriate parties,” O’Neill said Kollar told him. “That’s why they’re being sketchy” with details.  About 90 percent of the cleanup was done by Wednesday, O’Neill said.  Initial reports estimated the amount of fracking waste to be about 20,000 gallons. But O’Neill said Kollar told him it was 40,000 to 50,000.

Chris Abbruzzese, deputy director for communications at the OEPA, said his organization is awaiting the test results from samples taken at the spill site over the weekend. Once regulators confirm what was leaked into the ground and the river, he said a decision would be made to retain the evidence for its criminal investigation, inform public officials or both. Abbruzzese said the primary concern at the moment is continuing with cleanup efforts, as snowmelt could exacerbate the effects of the spill. More trucks were on site to help in those efforts while the agency “throws all the resources it has into the investigation.”  He said periodic updates would be made available to the public as the investigation continues.

State Rep. Bob Hagan of Youngstown, D-58th, announced Wednesday that he’s calling for a special prosecutor to investigate the incident independently of the criminal investigation being undertaken by the ODNR and OEPA.  “I want a prosecutor that’s going to get results,” Hagan said.  Hagan added that he has talked with Mahoning County Prosecutor Paul Gains to gauge his interest in pursuing a case against the suspect parties, which legislative aides told him was possible. He also will introduce legislation early next week that requires regulators and emergency responders to notify elected officials of spills immediately.

City council members expressed outrage and anger toward Lupo and his companies over the intentional dumping of fracking waste.  “It’s pretty disturbing when someone willfully and knowingly breaks the law and instructs his employees to do so,” said Councilman Mike Ray, D-4th, who lives about a mile from the brine dump site. “It’s even more outrageous to do this when it affects people’s health. Even more troubling is it’s criminal activity done in plain sight.”  Ray said he saw cleanup crews on the Salt Springs Road location Saturday, but thought it was construction activity related to V&M Star’s expansion project.  With D&L having at least 120 violations at 32 injection and extraction wells in Ohio and Pennsylvania, according to a 2012 Vindicator investigation, Councilwoman Janet Tarpley, D-6th, said, “I’d like to know why they’re still in business. It’s time for them to be shut down. There’s no need for further discussion.”

Councilman Paul Drennen, D-5th, called Lupo’s actions “despicable. They should prosecute him and make an example of him.”  “It’s a travesty that they attempted to get away with illegal dumping,” added Councilman T.J. Rodgers, D-2nd. Lupo “should be banned from doing business in this area and the state. He’s shown he’s not capable of running his business in an appropriate manner.”  Councilwoman Annie Gillam, D-1st, said state agencies “need to deal with [Lupo] in a very serious manner. We want drilling to be done safely in the city. What is wrong with this person to be so blatant and to put [wastewater] down the sewer?”  Councilman Nate Pinkard, D-3rd, said, “These are blatant violations. Someone should be charged criminally. Antics like this give the [gas and oil drilling] industry a black eye.”  Councilman John R. Swierz, D-7th, said, “It’s a shame that someone like that has so much disregard for the law.”

Meanwhile, activists who oppose fracking said the dumping incident gives greater weight to their cause. Terry Esarco said the transgression “shows the treachery that occurs in the oil and gas industry, and gives even more reason to reveal the chemicals that are being used in the fracking process.”  Environment Ohio, a statewide citizen’s advocacy group, chastised the dumping and called state laws that allow oil and gas companies to withhold what chemicals are used in the process both inadequate and favorable to the industry rather than public well-being.  “Disclosure is just the tip of the iceberg,” said Julian Boggs, the organization’s state policy advocate. “It’s a problem that state lawmakers have not put forth any sort of plan to handle the billions of barrels of fracking waste that will eventually enter the state as a byproduct of this boom. Dumping it down injection wells is the best of a bunch of bad options.”

Thomas Stewart, executive vice president of the Ohio Oil and Gas Association, disagreed with Boggs, noting that Ohio’s laws regulating the industry are among some of the strongest in the nation. He expressed dismay at Hard Rock’s decision to dump the wastewater down a storm drain.  “If these allegations are proved to be true, we’re deeply disappointed at the damages that this wreaks on our industry,” Stewart said. “We hope the OEPA and ODNR, and whoever else gets involved, will prosecute to the fullest extent of the law and make it as painful as it can be.” He added that neither his organization, nor the industry as a whole, condones dumping waste “anywhere it doesn’t belong. It’s not that hard to comply with the law, I can’t imagine what [Hard Rock] was thinking and what they thought they could get away with.”

Hagan also said state Rep. Mike Foley of Cleveland, D-14th, who sits on the state finance committee, plans to include an amendment in the governor’s budget proposal calling for a severance tax to help pay for additional oil and gas inspectors.  U.S. Rep. Tim Ryan of Niles, D-13th, said he was pleased by the response of state regulators.  “I am furious that [thousands of] gallons of wastewater was dumped into a storm drain on Salt Springs Road,” Ryan said. “The natural-gas industry could be a huge boon to our economy, but only if everyone is adhering to the Ohio rules and regulations. Anyone who purposely puts Ohio’s environment in harm’s way should be prosecuted to the full extent of the law.”

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Breaking: EPA Says Lupo Dumped at Least 6 Times

Monday, February 11, 2013
By Dan O'Brien

YOUNGSTOWN, Ohio – D&L Energy owner and president Ben Lupo admitted to the Ohio Environmental Protection Agency that he directed his employees to illegally discharge drilling wastewater on at least six different occasions since September, an OEPA official said Monday.

It means that potentially hundreds of thousands of gallons of contaminated waste could have been dumped into a storm drain and carried into the Mahoning River, Kurt Kollar, on scene coordinator for the OEPA, told reporters during a news conference in Mayor Chuck Sammarone's office.

"He [Lupo] has said that it has occurred on several occasions," Kollar said. "He stated on the record, at least six times since September 2012."

In its report dated Feb. 5, the U.S. Environmental Protection Agency states, "The storm sewer outfalls to a small creek that flows for approximately 200 yards then into the Mahoning River. Oil was observed flowing from the storm sewer outfall, in the creek, and in the Mahoning River." CLICK HERE to download reports.

The Ohio Department of Natural Resources was tipped off by an anonymous source Jan. 31, and its investigators subsequently witnessed workers from Hardrock Excavating, a company owned by Lupo,  illegally discharging drilling wastewater and mud into a storm drain.

Lupo's D&L Energy and Hardrock Excavating were effectively shutdown Feb. 7 by ODNR, which revoked all of the companies' permits to operate (READ STORY).

Initial reports said 20,000 gallons were discharged into the sewer; then the number became 40,000 gallons.

Kollar said that inspectors have found that sediments of the creek leading into the Mahoning River are "heavily inundated with layers of oil, supporting the fact that this isn't a one-time offense."

A state and federal criminal investigation is under way, Kollar said.

The U.S. EPA said Feb. 5 that agency officials "oversaw the deployment of containment and absorbent boom and pads in the Mahoning River and the creek, the inspection and flushing of the storm sewer system between the discharge and the Mahoning River, the mopping up of oil with absorbents, and the construction of two underflow dams."

In its Feb. 5 report, the agency also reported the "oil is confined and stabilized in the creek leading to the Mahoning River."

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Ohio gas driller indicted, accused of dumping fracking waste into river

By James F. McCarty, February 28, 2013.

A federal grand jury returned an indictment against the owner of an oil and gas drilling company on Thursday, charging him with violating the Clean Water Act by dumping more than 20,000 gallons of fracking waste into a river in Youngstown.
In addition to the charges against Benedict Lupo, 62, of Poland, Ohio, the grand jury also returned Clean Water Act indictments against Lupo’s company, Hardrock Excavating, and an employee of the company, Michael Guesman, 34, of Cortland.
Guesman previously told federal agents that on Jan. 31 he dumped a toxic stew of drilling mud containing salt-water, crude oil and several hazardous pollutants, including benzene and toluene, into a storm drain that emptied into a tributary of the Mahoning River, according to a court document. The employee said he was acting on Lupo’s orders.

Fracking, a slang term for hydraulic fracturing, involves injecting millions of gallons of chemical-laced water to crack open rock formations holding gas deposits deep under the Earth’s surface. Ohio allows for disposing of fracking waste in state-permitted injection wells.
In the Lupo case, court documents state, an anonymous tipster alerted authorities from the Ohio Department of Natural Resources that the improper dumping of fracking waste was occurring, and state agents observed the crime as it was being committed, court documents said. Guesman also said Lupo ordered him to lie if questioned about the dumping, and to tell law enforcement officers he had only emptied the 20,000-gallon waste tanks six times, when in fact he said he had done it more than 20 times, documents state.

Lupo specified that the dumping should only occur at night and after all of the other employees had left the facility, according to court documents.  About 58 mobile storage tanks are kept at the Hardrock facility, and each tank holds 20,000 gallons. Lupo owns about 20 companies, all contained under the umbrella company D&L Energy, located in Youngstown.  Lupo admitted giving the orders, but denied telling his employees to lie or that he had dumped fracking waste on more than six occasions between Nov. 1, 2012 and Jan. 31, 2013, according to a sworn statement by an agent with the U.S. Environmental Protection Agency.

Lupo and Guesman face a maximum sentence of three years in prison and a fine of $50,000 per day of violation, or $250,000, whichever is larger. The company could be fined $50,000 per day of violation, or $500,000, whichever is larger.

“Clean, fresh water is our greatest resource in Northern Ohio,” said U.S. Attorney Steven Dettelbach. “We will aggressively investigate and prosecute cases in which people pollute Ohio’s streams, rivers and lakes.” Ohio Attorney General Mike DeWine said the state may also become involved in the dumping case. A preliminary investigation found evidence of illegal storage and transportation of fracking waste, which could result in civil fines of $2,500 to $25,000 per day, he said. Also, steps have been taken to revoke all operating permits granted to Lupo’s companies currently drilling at six fracking sites, he said.

“We will continue to assist in the federal prosecution of this case but we will also pursue with the Ohio Department of Natural Resources any other violations of Ohio’s environmental protection laws,” DeWine said. “This case is a reminder that we should look at making state law equal to federal law when it comes to protecting the waters of Ohio.”

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