Lenape Resources, Inc. is the operating arm of Lenape Energy, Inc. Along with its sister companies Lenape Drilling, Inc. and Lenape Gathering Corp, Lenape Resources is involved in the exploration, development, gathering and marketing of oil and natural gas resources in the Appalachian basin with a primary focus in the states of New York and Pennsylvania.
Lenape has been disposing of drilling wastewater in Caledonia NY, 27 miles southwest of Rochester, NY on a permit which expired in 2007 but was administratively continued.
See: Public Notice No. 2010- 25 Permit No. NYU119702 Date: August 3, 2010
The EPA oversees the Underground Injection Control Program. Under the Eleventh amendment to the U.S. Constitution, if the state violates a Federal law, then the courts have jurisdiction, but if it's a purely state matter, they don't. How did Lenape manage to go three years without a permit to dispose of it's fracking waste water?
According to the website, Endangered Environmental Laws, "...over time, courts have transformed [the Eleventh Amendment] into a sweeping doctrine of state “sovereign immunity,” unmoored from the Constitution’s text, and in recent years, a conservative bloc of the Supreme Court has further expanded states’ immunity from private lawsuits. In the environmental context, this has led to near-total immunity of state agencies from citizen suits under the federal coal-mining statute; to similar challenges (so far unsuccessful) to citizen litigation under the Clean Air Act and the Endangered Species Act; and to dismissal of state employees’ whistleblower complaints under the Solid Waste Disposal Act and other laws."
See: Babcock, H. “Effect of the United States Supreme Court's Eleventh Amendment Jurisprudence on Clean Water Act Citizen Suits: Muddied Waters, The.” Oregon Law Review 83 (2004): 47.
"The states are permitted to act unjustly only because the highest court in the land has, by its own will, moved the middle ground and narrowed the nation's power.
With rare exception, many people, including Indian tribes, federal employees, patent holders, the elderly, and the disabled, find themselves unable to vindicate rights granted by federal laws in any court when the defendant is a state or a state agency."
Violations are prosecuted only after a dramatic event such as an explosion leading to workers' deaths. Even when the dumping of toxic waste is prosecuted, the sentences' regulatory effect is minimal. Environmental felons absorb these costs of doing business.
However, the Justice Department sees it differently. According to John C. Cruden, Acting Assistant Attorney General for the Justice Department’s Environment and Natural Resources Division, "The Safe Water Drinking Act and the regulations overseeing oil and gas related injection wells are designed to ensure safe sources of drinking water. Violations of these laws will be investigated and prosecuted to the fullest extent of the law." Mr. Cruden was Chief Legislative Counsel, U.S. Army (1988-1991).
John Morgan and Michael Evans (PDF) (1 pg, 32K)
United States District Judge Sean J. McLaughlin imposed the sentences on John Morgan, age 54, of Sheffield, Pennsylvania, and Michael Evans, age 66, of La Quinta, California. Mr. Morgan received a sentence of three years probation, a $4,000 fine, eight months home detention and eighty hours community service. Mr. Evans received a sentence of three years probation, a $5,000 fine, ten months home detention and one hundred hours community service.