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Hardrock plans to change plea in dumping case

Thursday, May 28, 2015

By Peter H. Milliken


Hardrock Excavating LLC, the final defendant in the dumping of oil-field waste into a Mahoning River tributary in 2012 and 2013, is scheduled to change its plea in federal court in Cleveland today.

The company is charged with violating the Clean Water Act, for which it could be fined up to $500,000.

The change of plea by the company, of which Ben Lupo is a part owner, is scheduled for 9 a.m. before U.S. District Court Judge Donald C. Nugent. The company had earlier pleaded innocent.

The judge has granted a request by Hardrock’s lawyer, James M. Kersey of Cleveland, to waive a pre-sentence report and sentence the company immediately.

Prosecutors from the U.S. Attorney’s Office did not object to that request when he discussed it with them, Kersey told the judge.

Kersey’s request does not say whether the company will plead guilty or no contest, nor does it say what sentence the defense believes is appropriate.

Mike Tobin, a spokesman for the U.S. Attorney’s office, said his office could not comment on whether the company will plead guilty or no contest and what sentence the prosecution is recommending to the judge.

Brad Beeson, the assistant U.S. attorney prosecuting the case, said, however, restitution won’t be an issue because the environmental cleanup was completed and paid for by D&L Energy Inc., another company operated by Lupo.

After pleading guilty to violating the Clean Water Act, Lupo, 64, of Springfield Township, was fined $25,000 and sentenced to 28 months in prison for ordering the illegal dumping.

He is at the Federal Medical Center Devens in Ayer, Mass., from which he is scheduled to be released Oct. 11, 2016.

The oily mess, which was dumped down a Youngstown storm drain and into a Mahoning River tributary, necessitated a $3.1 million cleanup that lasted more than a month.

A series of 31 secret nighttime discharges from Lupo’s Salt Springs Road waste storage tanks began Nov. 1, 2012, and ended Jan. 31, 2013, when Ohio Department of Natural Resources agents, acting on an anonymous tip, saw an illegal discharge of brine, drilling mud and drill cuttings in progress.

Two Hardrock employees, Mark A. Goff, 46, of Newton Falls, and Michael P. Guesman, 35, of Cortland, who pleaded guilty to violating the Clean Water Act, each got three years’ probation after saying they repeatedly dumped the waste at Lupo’s direction.

Without objection from the U.S. attorney or the probation office, Judge Nugent granted Guesman’s request for early termination of his probation last month.