Lupo case called an exception

YOUNGSTOWN – With growth in the northeast Ohio oil and gas industry just starting to take off, industry and business leaders are hoping swift prosecution of environmental regulation violators will head off opponents wanting to seize these examples.

“The shale industry is so important to our state and eastern Ohio, it just makes it even more important that we go after these particular actors,” said Linda Woggon, executive vice president of governmental affairs at the Ohio Chamber of Commerce.

Woggon was reacting to federal charges filed last week against Ben Lupo, owner of Hardrock Excavating, D&L Energy and several other Youngstown-based companies on charges that he violated the federal Clean Water Act by ordering his employees to discharge hundreds of thousands of gallons of oilfield waste into a storm drain Jan. 31.

While Lupo, 62, of Poland, is facing just one count of the federal violation, documents released Thursday indicate he may have directed his employees to dump the waste into the drain at least 20 times since November.

Ohio Environmental Protection Agency officials reported finding oil and an oil sheen visible in the Mahoning River downstream of the discharge area one day after it was reported, according to a sworn affidavit released Thursday.

The affidavit also indicates that Lupo had told an Ohio EPA official he had directed the discharge on six occasions. However, during interviews Feb. 7 and 12, two unnamed Hardrock Excavating employees first said they were aware of four discharges directed by Lupo. But on further questioning, the second employee admitted that the discharge of wastewater stored at the facility into the stormwater drain occurred at least 20 times.

The second unnamed employee told investigators that Lupo had told them if they were questioned by authorities, they should ”state that the discharges were limited to a total of four or six times.”

The first employee had told investigators Lupo had instructed them to “discharge the wastewater only after no one else was present at the facility and after dark,” the affidavit states.

If convicted, Lupo could be sentenced to three years in prison and a $250,000 fine.

”There needs to be a really aggressive approach that our government is responding,” Woggon said.

Rob Eshenbaugh, legislative analyst for the national industry trade organization, the American Petroleum Institute, said he believes violators are a very small minority of the oil and gas industry, and he believes the high percentage of oil and gas companies, including those represented by his agency, operate in compliance with government regulations.

Eshenbaugh pointed out that Lupo and his companies had not been members of the American Petroleum Institute, and therefore did not promise to comply with the group’s “very high standards” which members pledge to uphold.

Both Woggon and Eshenbaugh noted that often opponents of the drilling industry will seize issues like this to promote anti-fracking agendas.

“In any industry there are businesses that tend to cut corners and we are no different than any other industry in that way,” Eshenbaugh said. ”Especially in this particular instance, the regulators that were involved acted very swiftly and were able to clean it up very quickly.”

He commended the Ohio Department of Natural Resources and the Ohio EPA for that quick response.

Rhonda Reda, executive director of the industry group Ohio Oil and Gas Energy Education Program, this week also applauded the prompt response by environmental officials.

”The simple fact is this: There is no room in Ohio’s oil and natural gas industry for operators whose deliberate actions have placed our environment at risk,” she said, noting that the industry holds itself to the ”highest standards as good stewards of the community, and good stewards of the environment.”

State Rep. Robert Hagan, D-Youngstown, who has been vocal about the pollution since the day the complaint came to light, said the fight continues to remain vigilant against environmental concerns.

“The reckless disregard for public health and integrity of the environment displayed by Mr. Lupo is proof that we all need to remain vigilant against those who violate the law,” Hagan said. “When a serial polluter poisons the Mahoning River, he’s poisoning us. I’m pleased that he will be brought to justice.”

Ohio Attorney General Mike DeWine noted Thursday that the oil and gas industry is providing a great opportunity for Ohio, but it also provides a challenge to police and ensure that companies follow the rules in extracting the minerals and in disposing of the waste generated in the process, DeWine said.

Dan Alfaro, spokesman for Energy in Depth said the rapid response “demonstrates the effectiveness of Ohio’s regulatory system. Once the anonymous tip was received, the Ohio Department of Natural Resources’ response was immediate, as was the subsequent action taken by the agencies involved in the investigation.”