MAMAKATING – In a tactical switch, the Basha Kill Area Association (BKAA) has decided to drop its lawsuit against Yukiguni Maitake (YM), the international mushroom-growing company that intends to build a plant on McDonald Road in Mamakating. While critics of the BKAA will point to this decision as yet another defeat for the organization, the reason for the withdrawal is really in anticipation of what was likely to be a dismissal of the case on technical grounds, according to Alex Smith, attorney for the BKAA.

"It was obviously going to be a procedural fight," Smith said in regard to the suit.

At issue is whether the BKAA has what is known as "standing" in the suit, a legal principle that requires individuals and organizations to show that they would suffer direct harm as a result of the issue under litigation. The attorneys for YM were apparently gearing up for a technical argument, rather than one in which the merits of the case would be argued, prompting the BKAA to shift tactics.

Instead, the BKAA will now focus its attention on ensuring that the New York State Department of Environmental Conservation (DEC) and the Delaware River Basin Commission — the two agencies that will monitor YM's water usage — will hold YM to the highest possible standards with regard to the various permits the company will need to obtain in order to operate. Ironically, it's entirely possible that the YM project could end up back before the Town of Mamakating planning board if the DEC feels that YM's plans for water extraction and discharge do not meet government standards.

The BKAA notes that the lawsuit was not an attempt to stop outright the construction of the plant. The organization appears to be resigned to the fact that something is going to be built whether it likes it or not. The suit was really an attempt to extract more information from YM, as the BKAA feels that YM has not been as forthcoming as it should regarding the dramatic changes the site plan has undergone in recent years.

Dr. Katherine Bienkafner, a geoscientist hired by the BKAA to examine YM's water usage plans, and who also happens to be a member of the planning board for the Town of Plattekill, feels that it is quite possible that the company will have to go back to the drawing board, given that her research appears to contradict YM's findings. Bienkafner says that the pumping and percolation tests done by YM were done in the winter, when the fact that the ground was frozen could have significantly skewed the results.

"I don't believe their calculations are accurate," Bienkafner said.

Bienkefner's calculations also indicate that the catch basin on the YM site needs be about three times as large as the one proposed, if this basin is to absorb the approximately 300,000 gallons of water the company intends to discharge each day. If the area were to be hit with a once-per-century rainstorm — an event that could become more likely, given global warming trends — the catch-basin system would be totally overwhelmed, causing it to overflow into the Basha Kill.

J.G. "Spider" Barbour, who is an ecological consultant and wetlands scientist hired by the BKAA, also feels that the catch basin is inadequate.

"[YM] didn't present any supporting evidence that this thing will work," Barbour said.

Barbour says that, if the catch basin were to overflow, it could end up having a profound impact on local flora and fauna, specifically that the discharge — which would be of a higher temperature than ground water — could end up tricking animals and plants into thinking that spring has arrived early. The discharge, after it cools, could also then refreeze in areas outside the catch basin. This pattern of freezing and thawing could have a significant long-term impact on the ecological health of the area, Barbour contends.

Paula Medley, president of the BKAA, feels that the professionals hired by the organization, two of whom are essentially single-person operations, provided an unvarnished view of the project.

Medley's point with regard to a battle between competing sets of professionals — one group hired by the town, and the other hired by the BKAA — reemphasizes the concerns the BKAA expressed during the beginning stages of the project, that the two groups (BKAA and Mamakating planning board) should have put their heads together and agreed on a single set of consultants whose findings would have been less politically charged. The current situation set up an adversarial relationship between the developer and the BKAA. It didn't need to be this way, Medley feels. The developer behind the project known as 'Seven Peaks,' for example, has been much more forthcoming when it comes to keeping community concerns in mind.

Now the BKAA will turn to the DEC to ensure that the organization's concerns receive a full hearing. According to Medley, it is entirely possible that the DEC will need to hold its own public hearing on the YM catch basin — a forum where it will be much more likely that the BKAA's concerns will be addressed. The Delaware River Basin Commission — a body of representatives from New York, New Jersey, Delaware, and Pennsylvania, as well as the Army Corps of Engineers — also must sign off on the YM project, and could end up holding its own public hearing. The agency has meetings scheduled in May and June, at which time the YM permits could come up for review.

COMMENTS about this article (38)