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Benedict Lupo owned Hardrock Excavating, where prosecutors say he ordered employees to dump fracking waste that ended into the Mahoning River.

(The Plain Dealer)

Benedict Lupo

CLEVELAND, Ohio – The owner of a Youngstown oil-and-gas-drilling company was sentenced Tuesday to 28 months in prison for ordering employees to dump tens of thousands of gallons of fracking waste into a tributary of the Mahoning River.

U.S. District Judge Donald Nugent also fined Benedict Lupo, 64, of suburban Poland $25,000. Nugent rejected defense attorney Roger Synenberg's request for home detention and a harsh fine.

Synenberg said Lupo is frail and extremely ill, as he requires dialysis treatments daily and suffers from chronic pain and diabetes.

"If he goes to jail, it's the death penalty for him,'' Synenberg said.

But Nugent cited the fact that Lupo ordered two employees to dump the waste and lie about it. The employees tried to talk Lupo out of it, but he refused. He also pointed out a prosecutor's pictures that detailed six weeks of clean-up in an oil-soaked creek.

"All you have to do is look at those photographs to see the damage that was done,'' Nugent said.

In March, Lupo pleaded guilty to the unpermitted discharge of pollutants under the U.S. Clean Water Act. His company, Hardrock Excavating LLC, stored, treated and disposed waste liquids generated by oil and gas drilling.

As the stored waste liquids piled up at his company in the fall of 2012 and into 2013, Lupo ordered employees to purge waste tanks into a storm-water drain that flowed to tributary.

Two employees dumped waste 33 times. In some instances, they drained only a portion of a tank; most times, however, they dumped all of it, said Brad Beeson, an assistant U.S. attorney.

On Jan. 31, 2013, state authorities, acting on a tip, caught one of Lupo's employees dumping the waste. Beeson, in court records, said the impact of the dumping was devastating. Officials found the creek "void of life,'' the prosecutor said.

"Even the most pollution-tolerant organisms, such as nymphs and cadis flies, were not present,'' Beeson wrote in court documents. "The creek was essentially dead.''

In a statement to Nugent, Lupo apologized to residents of the Mahoning Valley, as well as his family.

"My actions were irresponsible,'' the statement said.

When Nugent asked if he had anything else to say, Lupo spoke softly.

"If this was 20 years ago, this probably never would have happened,'' he said, citing his health.

In addition to his failing health, his attorneys also cited the stress of what they called a corporate divorce of Lupo's business.

Lupo's sentencing ends a case that brought convictions to the two employees ordered to dump the waste.

In March, Nugent sentenced Michael Guesman of Cortland to probation for three years. In July, Nugent gave Mark Goff of Newton Falls a similar sentence. Guesman and Goff pleaded guilty to the same Clean Water Act charges as Lupo.

Guesman told authorities that Lupo ordered him to run a hose from the 20,000-gallon storage tanks to a nearby storm-water drain and dump the polluted wastewater.

The wastewater was a byproduct of Lupo's hydraulic fracturing operations — commonly known as "fracking" — consisting of saltwater brine and a slurry of toxic oil-based drilling mud, containing benzene, toluene and other hazardous pollutants.

Guesman said he was afraid of losing his job if he failed to comply with Lupo's orders. Guesman dumped the polluted water into the drain 24 times between Nov. 1, 2012, and Jan. 31, 2013, according to court records.

Guesman said Lupo ordered him to perform the secret dumping under cover of darkness and after all of the other employees had left the facility. Guesman said Lupo ordered him to lie if questioned about the dumping and to tell law enforcement officers he had emptied the waste tanks only six times.

Goff said Lupo told him to empty tanks of waste into a nearby stormwater drain in October 2012. Lupo told Goff to do it after no one else was at the business and only after dark. The charges said Goff emptied tanks of the liquid on nine different nights.

"Clean air and fresh water is the birthright of every man, woman and child in this state," said U.S. Attorney Steven Dettelbach. "Intentionally breaking environmental laws is not the cost of doing business, it's going to cost business owners their freedom."

Plain Dealer news researcher Jo Ellen Corrigan contributed to this story.