Updated: Thursday, 14 Feb 2013, 12:50 PM EST
Published : Thursday, 14 Feb 2013, 12:30 PM EST
YOUNGSTOWN, Ohio (WKBN) - Ben Lupo, the owner of D&L Energy and Hardrock Excavating who admitted to investigators he ordered chemically-laced brine water dumped into a storm sewer that empties into the Mahoning River, has been charged with the state’s first crimes relating to illegal dumping by the shale drilling industry.
Lupo was brought into the U.S. District Court in Youngstown in handcuffs and street clothes for his initial appearance on a single charge of illegal dumping. He entered no plea at the hearing and waived a preliminary hearing, sending the case to a federal grand jury in Cleveland to review more charges that could be filed against Lupo, including violating the Clean Water Act.
Lupo’s attorney, Joe Gardner, said he expects more charges to be filed after the case is reviewed by the grand jury.
He was released on a $50,000 unsecured bond.
Lupo turned himself in after he was served with arrest warrants for ordering an estimated 240,000 gallons of water, oil and brine that made its way into the watershed.
The Ohio Department of Natural Resources revoked the permits last week for D&L Energy and Hardrock for dumping an estimated 240,000 gallons of water, oil and brine into a storm sewer that emptied into the watershed.
It’s believed to be the first criminal charges in Ohio relating to violations from businesses involved in horizontal drilling for natural gas and oil in the Marcellus and Utica shales.
Officials said Lupo admitted to making dumping brine and water into the storm sewer on six different occasions. The company was caught Jan. 31 by ODNR investigators who were sent a second anonymous tip about dumping at the companies’ 2716 Salt Springs Road property.
Investigators said water that was dumped was used to clean out the 20-30 brine storage tanks that hold 22,000 gallons.
If Lupo is charged with violating the Clean Water Act, he would face three years in federal prison on each charge and a $50,000 per-day fine for each day the violation occurs. Lupo told investigators in his admission that the first brine dump was in September, meaning Lupo could face as much as $1.5 million in fines.
The Ohio Attorney General is looking into possible civil penalties.
During the EPA and ODNR investigations, officials found Lupo repeatedly used one of his companies, Mohawk Disposal, to haul brine and other drilling waste products that Lupo ordered dumped into the Mahoning River despite the company having no license to transport brine.
Investigators noted at least three Ohio law violations by using the non-licensed company to transport the oilfield waste.
WKBN.COM has made public records requests for the test results of exactly what chemicals were dumped into the river, which have not been finalized. A U.S. EPA report on Feb. 6 said 29 yards of oily solids, and 20,000 gallons of oil and water were found by investigators. Later, the EPA reported they found 42 cubic yards of oiled debris collected for disposal in the report.
The EPA is still working to clean the river and storm sewer.
ODNR permanently revoked D&L permits for all six of the company’s injection wells in the state, including two in Trumbull County, three in Mahoning County and one in Ashtabula County, and denied applications for three more that were planned for Trumbull and Mahoning counties.
He was ordered to immediately cease all operations at their injection wells and any temporary storage operations at their business. They had two active injection wells, one in Warren Township and one in New Lyme in Ashtabula County.
ODNR also revoked Hardrock Excavating’s brine hauler permit, which allowed it to transport brine from drilling rigs to its facility.
D&L said they will review the allegations and may appeal ODNR’s rulings. They have 30 days to appeal.
Federal criminal law allows investigators to seek the harshest penalties for brine or any other kind of chemical dumping into public waterways.
State law says those convicted of violating state dumping laws can be sent to jail for up to six months and fined $10,000 on a first offense and each subsequent offense brings a two-year prison term and a $20,000 fine.
Youngstown Mayor Charles Sammarone said if state and federal investigators had decided against filing criminal charges, he would have instructed city prosecutors to file charges.
Anti-fracking activists have spoken out against D&L, the company the EPA said caused Youngstown’s first four earthquakes in history in 2011 by their injection-well practices, including one with a 4.0 magnitude.
Lupo, according to a search of business records, currently owns or is an agent to 20 active businesses, five cancelled businesses and five that were declared dead.
All current businesses address is 2761 Salt Springs Road, including D&L and Hardrock Excavating.
Several of Lupo’s businesses are centered around the oil and gas industry, including Black Gold Oilfield Services, LLC., crated in 2005 for “oil and gas well services,” filings say.