When Youngstown businessman Ben Lupo allegedly directed his employee to dump oilfield waste into the Mahoning River watershed, it wasn't the first time his company was accused of polluting area waterways.
At least 16 times since 2000, the Pennsylvania Department of Environmental Protection issued violations on production wells Lupo's company operates in the commonwealth stemming from discharge of pollutants into waterways.
Those 16 instances were among 149 total violations issued on production wells operated by Lupo's company, D&L Energy, in the western Pennsylvania counties of Crawford, Jefferson and Mercer counties since 2000. The information was released following a Tribune Chronicle public record request.
BCI investigators Wednesday search the D&L property with the Ohio EPA. Owner Ben Lupo, 62, of Poland, is accused of ordering the dumping of untreated oilfield waste into a storm sewer.
Tribune Chronicle / Brenda J. Linert
Lupo, 62, of Poland, is under federal indictment for one count of violating the Clean Water Act after investigators say he admitted to ordering his employee, Michael Guesman, 34, of Cortland, to dump untreated oilfield waste stored on D&L Energy's Salt Springs Road property into a storm sewer which ultimately drained into the Mahoning River.
While the dumping is alleged to have occurred several times between November and January, Lupo and Guesman each face just one count of the federal crime stemming from a Jan. 31 dumping incident witnessed by Ohio Department of Natural Resources investigators.
Soon after the incident state officials revoked oilfield waste disposal and hauling permits on two of Lupo's companies, D&L Energy and Hardrock Excavating.
Violations for discharging pollutants into Pennsylvania waterways
Violations issued on production wells operated by D&L Energy in Pennsylvania
Violations issued in Ohio
Sources: Ohio Dept. of Natural Resources, Pennsylvania Dept. of Environmental Protection
However, Lupo's permits for D&L Energy to operate oil and natural gas production wells remain intact, and ODNR officials say, at least for now, they have no just cause to revoke licenses of the dozens of production wells he operates in eastern Ohio. Agency spokeswoman Bethany McCorkle said, however, the agency is considering proposing legislation to allow a more rigid permit approval process.
''Nothing that came up in the investigation is tied to a production well,'' McCorkle said Friday. ''Legally we don't have a way to tie them together.''
A separate public record request for production well violations in Ohio indicated D&L Energy was cited 34 times since 2002 for violations ranging from improper signage at the well site to inadequate pipeline strength and "well operation causing pollution and contamination."
Those violations are in addition to multiple other violations issued on injection wells, or waste disposal wells, operated by the company over the years.
Messages left seeking comment for D&L officials last week were not returned.
McCorkle said despite the knowledge that there were problems with D&L wells in both Ohio and neighboring states, ODNR is bound by law to allow operations if the operator corrects the infraction.
''The way the law is written, if there is a violation, they are temporarily shut down until they come into compliance,'' McCorkle said. ''Some of these violations are clerical. Some could be oilfield spills.''
Until Jan. 31, McCorkle said, there had been no record of a deliberate act.
''This was the first time there was a deliberate and intentional act that we know of,'' she said.
State Rep. Robert Hagan, D-Youngstown, who has been vocal about protecting the environment from problems arising from the oil and gas industry, last week lashed out at ODNR for allowing Lupo's companies to continue to operate in light of past violations. He called the relationship between the industry and the state agency "cozy."
''As reassuring as the indictment against Mr. Lupo may be to some, the question must still be raised of how this individual was allowed to continue operating oil and gas related ventures after multiple citations," Hagan said. "The fact that Mr. Lupo was able to continue operating after repeated environmental violations is beyond puzzling. It's downright terrifying," Hagan said.
Jane Spies of Youngstown, a co-founder of the FrackFree America National Coalition expressed similar concern.
''The information was out there about the violations, but it really wasn't addressed. It could have been prevented if the state had been more proactive," she said. "My stance is we need to stop fracking, and this is one reason why. Do you really know who is doing what? That is concerning.''
McCorkle said despite the incident, Ohio still operates with the most stringent oil and gas industry regulations in the country.
She said the Division of Oil and Gas Resources Management does share information with neighboring states like Pennsylvania, but under Ohio law, if an operator's application is complete, the division must grant the permit.
That means the company must be registered with ODNR, be properly insured and bonded, and cannot be in "material and substantial violation."
In Ohio, material and substantial violation includes things like failing to obtain a drilling permit; failing to plug an abandoned well; failure to restore disturbed land surface; and failure to submit reports or fees as required.
A violation issued in 2004 on a D&L Energy well in Milton Township because "well operation causing pollution and contamination," for instance, was not considered a substantial violation. According to documents released by ODNR, that well was leaking brine from the heat tube. Similarly a violation issued in 2003 on a Brookfield Township D&L well that ''was insufficiently equipped to prevent the escape of oil and gas" was not considered a substantial violation.
In light of the Jan. 31 dumping incident, however, McCorkle said the agency now is taking a critical look at proposing new legislation that would allow them to consider background information and previous violations prior to approving and issuing a permit.
Department of Environmental Protection spokesman Kevin Sunday said neighboring Pennsylvania last year likewise adopted new guidelines giving them the ability to suspend, revoke or deny permits for repeat offenders. He said when the agency sees repeat violations, they often will enter enforcement agreements with operators.
"Just like every other industry, it's not regulated until there's a need for it. This was obviously blatant and intentional. We have to ask what can we do to make sure that going forward we can prevent that,'' McCorkle said. "It was unacceptable, and it just makes sense."