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CLEVELAND, Ohio -- A change of plea hearing has been scheduled Monday morning, Jan. 24, in a Cleveland federal court for Ben W. Lupo. The jury trial for Lupo and his company, Hardrock Excavating LLC, on a charge of violating the Clean Water Act, was scheduled to commence on April 8 in a federal court in Youngstown. It is not clear what the "plea deal" will include -- whether Lupo will even plead guilty to the federal charge, which he originally pleaded not guilty to last year.
Lupo faces as much as three years in prison and a $250,000 fine. The 62-year-old Lupo and his companies have been involved with disposal of lethal hydraulic fracturing (commonly called "fracking") discharge materials since the 1970s and federal, state and local officials fear this isn't an isolated case but an ongoing environmental nightmare.
Some estimate Lupo has been responsible for as much as a quarter of a million gallons of fracking waste improperly and illegally discharged into the Mahoning River, which feeds into the Ohio River. Further charges may be added, depending on investigative discoveries into Lupo's operations.
On January 31, 2013, an employee of Hardrock Excavating, one of 20 companies Lupo operates, was discovered dumping thousands of gallons of oil, liquid brine, and drilling mud down a storm drain at Hardrock Excavating on Salt Springs Road in Youngstown. According to reports, Lupo made sure this worker, Michael P. Guesman, waited until the plant was closed and nobody was inside the building before this discharge occurred. Environmental investigators acted with stealth, invading the premises that night. After agents discovered this toxic dump while it was being committed, samples taken from the polluted water identified toluene and benzene in the tainted water.
The sentencing for Guesman, 34, of Cortland, Ohio, who pleaded guilty to a charge of violating the U.S. Clean Water Act on August 29, 2013, is slated to be held the morning of March 20. A U.S. attorney has agreed to recommend favorable consideration for Guesman due to his "substantial assistance" to the prosecution and due to his acceptance of responsibility for breaking the U.S. Clean Water Act.
Meantime, Lupo, a resident of one of the most affluent suburbs of the Mahoning Valley -- Poland, Ohio -- and this company he owns -- Hardrock Excavating -- originally pleaded not guilty, but this may change with Monday's plea hearing in Cleveland federal court. Lupo's legal team did not release anything to the press Tuesday, March 18, when the change of plea hearing was set.
However, Lupo's employee Guesman wrote in a plea agreement that he dumped brine and drilling mud down a storm drain from 20,000-gallon storage tanks on Salt Springs Road in Youngstown at Lupo's command at least 24 times since Dec. 12, 2012. The release of these hazardous compounds on the last day of January 2013 seeped into a tributary of the Mahoning River and then flowed into the river. The 113-mile Mahoning River meanders easterly into the Beaver River in western Pennsylvania and continues along a southerly flow into the Ohio River. At a macro-level, the Mississippi River and the Gulf of Mexico are also affected as part of this watershed. Thus far, the massive cleanup of this unnamed tributary of the Mahoning River cost more than $1 million and specialized contractors had to be used.
Between 20,000 to 50,000 gallons were poured into the drain on Jan. 31, 2013, according to investigators' estimates. Environmental agents said the creek into which the storm-sewer drain poured appeared heavy laden with sludge after this dump occurred and the Mahoning River exhibited an oily sheen on its surface.
Companies that dispose of hydraulic fracturing waste are paid by volume. The legal and proper way of getting rid of this matter is to pump it deep into the earth with an injection well. Fracking-discharge liquids and sludges result from the natural gas-drilling process. Fracking is a complementary industry to natural-gas drilling. Because of the lethal nature of the chemicals involved, many environmental experts go as far as to warn of the dangers posed by getting rid of this waste legally -- or, pumping it deep into the earth. The exact makeup of some compounds involved with fracking-discharge material is unknown, ecological and environmental reports suggest.
Lupo allegedly took on much more of these contaminated deliveries than he could properly and legally dispose of and state investigators found a sobering and startling sight at the plant in early 2013 -- almost 60 containers, which hold 20,000 gallons of liquid each, were found at Lupo's headquarters at an industrial park at 2761 Salt Springs Road in Youngstown. Although Lupo ordered his workers that if they were caught that they should only admit to four to six such dumps, government officials are fearful this might be much worse example involving egregious serial pollution.
On Thursday, February 14, 2013, Lupo was arrested but posted a $50,000 unsecured bond and was released from jail. Local, state and federal officials gathered the same day on the banks of the Mahoning River to disclose pertinent issues involved. Among those in attendance were U.S. Attorney Steven M. Dettelbach, Ohio Attorney General Mike DeWine, then Youngstown Mayor Charles Sammarone, Mahoning County Prosecutor Paul J. Gains, and Ohio Rep. Robert Hagan.
Hagan has long been critical of other Mahoning Valley political and economic leaders' seeming blind devotion to natural-gas harvesting and its sister industry, the hydraulic-fracturing trade. There has been a plethora of landowners jumping on the bandwagon for these sister industries. Most Mahoning Valley government officials have given the virtual go-ahead to natural gas exploration and fracking. In fact, under a water-service agreement, the Mahoning Valley Sanitary District (MVSD) has a contract for water to be pumped to a site in Jackson Township (Mahoning County) for another company, CNX Gas Co., for a walloping 500,000 gallons of water per day. CNX Gas is using the water for the hydraulic fracturing of this site for a natural gas well on Blott Road.
Environmental activists are opposed to this water transfer, which they say will affect the Meander Reservoir watershed, which supplies water to Youngstown and much of Mahoning County. Many landowners in adjoining Trumbull, Mahoning and Columbiana counties, however, see big dollar signs by signing mineral rights' contracts with natural gas companies.
At a meeting of the Mahoning County Commissioners on February 14, 2013, Lynn Anderson of Youngstown, who attended the meeting with a group of other environmentally-conscious local citizens, told commissioners, "We do not need MVSD water sold to frackers. I believe there are environmental issues." Anderson's plea was quickly dismissed by Mahoning County Commissioner Carol Rimedio-Righetti, who answered, "I believe there are no environmental issues." Ironically, Rimedio-Righetti's comment came on the same day as Lupo's permit revocation and his criminal arrest. Meantime, Hagan was very vocal in condemning Lupo's ordered dumping of contaminated fracking waste into the river. He insisted that Lupo face severe criminal and civil consequences. Hagan even called for an independent special prosecutor to investigate this matter. "I want to assure that we get a prosecutor that will get results," he said.
This brazen criminal act has created fury from Youngstown officials, too. "It's very disturbing to find someone willfully and knowingly who breaks the law and even instructs his employees to do the same," said Youngstown fourth-ward council-person Michael Ray last winter. Ray only lives about a mile from the site where the dumping took place.
"It's a travesty that (Lupo) tried to get away with this illegal dumping," said T.J. Rodgers, Youngstown second-ward council-person, shortly after the dumping took place.
Even U.S. Senator Rob Portman, a Republican who accepted nearly $350,000 in campaign contributions from the oil-and-gas industry during his time in the federal legislature, condemned this criminal activity, saying, "If these reports are true, they are outrageous and violators should be subjected to the furthest extent of the law."
"We don't want people dumping fracking fluid in a storm sewer," said Ohio Governor John Kasich at an annual conference of the Ohio Newspaper Association in Columbus on January 13, 2013. "We have to have tough regulations, good regulations, the best in the country, probably -- so in case there are mistakes the public knows we're on top of things."
A Democratic U.S. Congressman who represents the Mahoning Valley, Tim Ryan, said this incident infuriated him. Ryan admitted that although the natural gas industry could be good for the economic development of his district, this can only be the case if "Everyone is adhering to the state's rules and regulations.... Anyone who purposely puts Ohio's environment in harm's way should be prosecuted to the furthest extent of the law."
On February 14, 2013, the state revoked all operating permits for Lupo's D& L Energy and Hardrock Excavating. This expeditious annulment of Lupo's licensing was unprecidented in Ohio. But Lupo's environmental infractions seem te be incorrigible, with D & L alone having at least 120 infractions at more than 30 extraction and injection wells in Ohio and Pennsylvania, according to reports by the Mahoning Valley's major daily newspaper, The Vindicator .