A Youngstown injection well operator whose former officer faces federal charges of illegally dumping fracking wastewater into a storm sewer is asking a state panel to overturn an order revoking its permit.
Ohio Public Radio's Karen Kasler reports.
Both sides agree the act that Ben Lupo is accused of is a bad deed. Michael Cyphert is the attorney for Lupo’s company, D&L Energy of Mahoning County.
“Ben Lupo’s a bad person. He intentionally directed someone to put brine down a sewer. He shouldn’t have done that. He shouldn’t have done that. But are those actions to be imputed to D&L Energy simply because he’s an officer of the company or was an officer at the time?”
Cyphert claims that Lupo runs several companies, including Hardrock Excavating, which does brine transport, storage and disposal and D&L Energy, which develops and drills injection wells and Cyphert says isn’t in the brine business. Cyphert says Lupo ordered an employee of Hardrock Excavating, not D&L Energy, to dump the brine – an act he describes as “reprehensible”.
“We don’t know why he did it. Perhaps we will not know until his trial on the federal level and he is able to put forth any defenses that he has and a jury of his peers may decide whether he’s actually guilty or not.”
Cyphert says D&L didn’t benefit from the act but Hardrock might have, since it would have saved that company money on brine storage. And he also argued that the Ohio Department of Natural Resources’ oil and gas division chief Rick Simmers didn’t have the authority to revoke D&L’s injection well operating permit over what he called “a silly, stupid, intentional act” done by an officer of another company.
“If the chief wishes to issue an order against those who are responsible, it’s certainly within his prerogative to do so. But don’t punish D&L Energy for something it didn’t do.”
Brian Ball is the attorney for the state, and said D&L Energy entered into contracts with companies that were not registered and not maintaining compliance with state law – and therefore the company violated the terms of its own permit. And he says there were three companies working together on this operation – and Lupo was in charge of all of them.
“I know the witnesses that the state will present will show that in many times they knew they were talking to Ben because he was the heart and soul and the commonality between the consortium of companies located at this address – companies that were often at least in the three considered – Mohawk, Hardrock and D&L Energy – conspiring and causing unlawful activity with systematic routine practice.”
And Ball says it’s clear why Lupo made the choice he did – Ball says Lupo’s company was paid to handle fracking wastewater, and so he ordered the dumping of that fluid into the storm sewer to make money.
“Some of it wasn’t going to go in the ground. Some of it was going to go on the ground. And routinely at night with his direction. And that is strictly the business they were in.”
Bottom line, says Ball, is that the chief of the oil and gas division is allowed to issue orders to enforce the terms and conditions of permits. And Ball says as the head of all three companies is responsible for the actions of any one of them.
“While Mr. Lupo’s acts present personal liability for him. Liability for violations of Chapter 1509 is strict, joint and several. Therefore, as persons, D&L Energy, Hardrock and Mohawk are also all liable.”
Testimony continues in the hearing – a decision on D&L Energy’s continued operations could happen this week.