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Ohio Utica Shale

Official statement on charges being filed in Youngstown

By Bob Downing Published: February 14, 2013

Man Charged With Violating The Clean Water Act By Discharging Oilfield Waste Into Mahoning River Tributary

(YOUNGSTOWN, Ohio) -- Ohio Attorney General Mike DeWine joined Steven M. Dettelbach, the United States Attorney for the Northern District of Ohio, to announce that a Poland, Ohio, man appeared in federal court today after his arrest for violating the Clean Water Act.

Ben Lupo, 62, is accused of directing an employee to illegally discharge brine and oil-based drilling mud into a stormwater drain which flowed into an unnamed tributary of the Mahoning River and ultimately into the Mahoning River near Youngstown.

Ohio Attorney General DeWine said: “Ohio’s waters must be protected, for the health and safety of its citizens and the state’s wildlife. We will not only assist with the federal water pollution prosecution in this case, we will also be working closely with the Ohio Department of Natural Resources to fully address all of the other violations through civil or criminal enforcement.”

The conduct took place on Jan. 31, 2013, according to an affidavit filed in U.S. District Court.

“Those of us from Northeast Ohio know the legacy of dumping industrial waste into our waterways,” Dettelbach said. “Whether our water flows south to the Ohio River or north to the Great Lakes, protecting and preserving clean and safe water remains a major priority of the my office and the Department of Justice.”

ODNR Director Jim Zehringer said: “This charge should serve as a warning to anyone that places their personal interests ahead of the public’s safety. ODNR will continue to aggressively pursue and seek prosecution of any business or individual that blatantly disregards the laws we have in place to protect Ohio’s communities and natural resources.”

“Knowingly polluting the waters of our state is a violation of the Clean Water Act and we will pursue criminal prosecution of these illegal actions to make sure we are able to protect the health and safety of the public,” Ohio EPA Director Scott Nally said. “Ohio EPA and our state partners will not tolerate the flagrant violation of Ohio’s environmental laws and companies who violate these laws are jeopardizing their ability to conduct business in the state and will be held accountable.”

“As the nation increases its use of natural gas, exploration companies must ensure that the waste water resulting from the drilling process is treated and disposed of safely and legally,” said Randall Ashe, Special Agent in Charge of EPA’s criminal enforcement program in Ohio. “The defendant is alleged to have knowingly and repeatedly directed the discharge of stored brine and oil-based drilling mud into a stormwater drain which ultimately flowed into the Mahoning River. This case demonstrates that if companies and their senior managers try to save money by circumventing environmental laws, they will be vigorously prosecuted.”

Attorney General DeWine added that he believes Ohio's laws covering such cases should be strengthened further. "We should look at bringing state law to the level of federal law to give the state more options in prosecuting these kinds of acts," said Attorney General DeWine.

According to an affidavit filed in federal court:

Hardrock Excavating LLC is owned by Lupo and located at 2761 Salt Springs Road in Youngstown. The company provides services to the oil and gas industry in Ohio and Pennsylvania, including the storage of brine and oil-based drilling mud. There are approximately 58 mobile storage tanks at the facility and each holds approximately 20,000 gallons.

The Ohio Department of Natural Resources received a tip from an anonymous person who stated that on the night of Jan. 31, 2013, someone would be illegally discharging wastewater from the Hardrock facility.

Ohio DNR inspectors arrived and found a hose, connected to a storage tank, discharging wastewater into a stormwater drain at the facility. Inspectors took a sample of the wastewater, which was black in color.

Ohio EPA personnel arrived at the facility on Feb. 1 and found that the unnamed tributary had puddles of oil throughout its length, from where the stormwater drained to the Mahoning River, approximately one mile away. Oil and an oily sheen were also visible in the Mahoning River.

That day, an EPA representative spoke with Lupo about the discharge into the storm drain. Lupo admitted he directed a Hardrock employee to discharge the contents of the storage drain into the stormwater drain, and further admitted that he directed discharge from a storage tank a total of six times, according to the affidavit.

Lupo later told EPA and DNR personnel that he directed a Hardrock employee to drain storage tanks at Hardrock into the nearby stormwater drain six times over the previous six months, and that Lupo was the one who “gave the word” for the storage tanks to be discharged, according to the affidavit.

On Feb. 12, a Hardrock employee stated that the discharges began in November 2012 at the direction of Lupo and that the employee was aware of at least 20 discharges into the stormwater drain. The employee further stated that Lupo directed the employee, if questioned by authorities, to state that the discharges were limited to a total of four to six times, according to the affidavit.

This case is being prosecuted following an investigation by the Ohio EPA, Ohio Department of Natural Resources, U.S. EPA, the Ohio Bureau of Criminal Investigation, the Youngstown Department of Public Works and the Youngstown Fire Department.

The statutory maximum for violating the Clean Water Act is three years in prison, a $250,000 fine and one year of supervised release.

If convicted, the defendant’s sentence will be determined by the court after review of factors unique to this case, including the defendant’s prior criminal record (if any), the defendant’s role in the offenses and the characteristics of the violations. In all cases, the sentences will not exceed the statutory maximum and in most cases they will be less than the maximum.

A charge is not evidence of guilt. A defendant is entitled to a fair trial in which it will be the government’s burden to prove guilt beyond a reasonable doubt.

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