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Onondaga County Resource Recovery Agency - Decision, December 21, 1995

Decision, December 21, 1995

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION
50 Wolf Road
Albany, New York 12233-1010 In the Matter

- of -

The Application for a permit to construct a solid waste management facility pursuant to
Environmental Conservation Law Article 27, Title 7
(Solid Waste Management and Resource Recovery Facilities), Article 17, Titles 7 and 8
(Water Pollution Control Permits and Certificates, and State Pollutant Discharge Elimination System)
and Title 6 of the Official Compilation of Codes, Rules and Regulations of
the State of New York Part 360 (Solid Waste Management Facilities), and Chapter X, Article 3 (State Pollutant Discharge Elimination System)

- by -

ONONDAGA COUNTY RESOURCE RECOVERY AGENCY

DECISION OF THE COMMISSIONER

December 21, 1995

Decision of the Commissioner

The following constitutes the final decision of the Commissioner in this matter. Upon consideration of the hearing record, attached Hearing Report and Recommended Decision by Administrative Law Judge Kevin J. Casutto, the parties' comments on and exceptions to his Report, appeals taken from his rulings, and the within findings made pursuant to the State Environmental Quality Review Act ("SEQRA"), I am remanding the application of the Onondaga County Resource Recovery Agency ("OCRRA" or the "Applicant") in this matter to Department Staff for issuance of a permit for the construction and operation of the proposed facility. ALJ Casutto's Report is adopted to the extent that it is not inconsistent with this Decision.

Background

OCRRA proposes to construct and operate a 52 acre landfill and leachate storage facility in the Town of Van Buren in Onondaga County. The facility, which is anticipated to be used over a 25 year period, is designed to receive approximately 500 tons per day of incinerator ash and by-pass waste, as well as residues from the processing of construction and demolition waste, recycling, and yard waste composting. The ash and by-pass waste will come from Applicant's separately permitted resource recovery facility in Onondaga County. Pursuant to Article 27, Title 7 of the Environmental Conservation Law ("ECL") and Part 360 of the Department's regulations, OCRRA applied to the Department for a solid waste management permit for the facility. Following review of the application, Regional Staff of the Department tentatively determined that the permit should be issued, subject to various conditions. Staff prepared a draft permit, which Applicant finds acceptable. Applicant was the lead agency under SEQRA, and its facility permit application to DEC included the FEIS for the project.

Public notice of OCRRA's application to DEC was duly published. DEC convened a public legislative hearing on August 31, 1994. An issues conference followed the next day. ALJ Casutto presided. ALJ Casutto's issues ruling on October 3, 1994 concluded that one adjudicable issue had been raised: Whether the prohibition against issuance of a permit for a new solid waste management facility on certain agricultural lands applies to this project. The prohibition is found at 6 NYCRR 360-1.14(c)(1) of the Part 360 regulations in effect on October 8, 1993, when the Department Staff approved the siting component of OCRRA's application. Accordingly, this decision determines the applicability of the prohibition of section 360-1.14(c)(1) as in effect prior to the 1993 amendments to Part 360, effective October 9, 1993. See transition rule at 6 NYCRR 360-1.7(a)(3)(vii) effective October 9, 1993. The agricultural prohibition is carried forward in the amended rules at section 360-1.7(a)(2). The wording of the agricultural prohibition rule, insofar as relevant to this decision, was not altered by the 1993 amendments. He rejected other proposed issues for adjudication. He granted party status to the Town of Van Buren (the "Town"), and denied party status to People United for a Rural Environment ("PURE").

ALJ Casutto's Issues Ruling was appealed to the Commissioner who, on December 30, 1994, affirmed the ALJ's determination that the agricultural prohibition was an issue for adjudication. However, the Commissioner granted full party status to PURE. See Commissioner's Interim Decision of December 30, 1994 in this matter at pp. 3-4. The Commissioner's December 30th ruling noted that there were interpretive and factual uncertainties that required resolution concerning the agricultural prohibition, and therefore directed the ALJ to first resolve issues concerning how the agricultural prohibition rule should be interpreted, and then to identify and resolve the factual issues. The ALJ followed that direction.

Interpretive and Undisputed Issues

The agricultural prohibition in Section 360-1.14(c)(1) of the applicable regulations provides in relevant part:

"The department shall not issue any permit to construct or to operate a new solid waste management facility ... if the land upon which that facility ... is to be located... is proposed to be taken through the exercise of eminent domain, consists predominantly of agricultural soil group 1 or 2 (Land Classification System as certified by the New York State Commissioner of Agriculture and Markets), and is within an agricultural district formed pursuant to the Agriculture and Markets Law" (emphasis added).

This provision must be interpreted in the context of the facts of this case. The parties agree that the proposed 52 acre landfill facility would be placed on a 487 acre site which the Applicant will need to acquire. Of the total 487 acre site area, approximately 412 acres are located in an agricultural district. Within that 412 acres lies the Peck farm, of over 100 acres, the owner of which reportedly refuses to sell voluntarily and which OCRRA would need to acquire by eminent domain if it is to construct the landfill on the proposed site. Therefore at least two of the three elements of the agricultural prohibition rule are applicable: Land on which the landfill is to be located is (1) proposed to be taken through eminent domain, and (2) within an agricultural district. The remaining element is whether the land on which the facility will be located "consists predominantly of soil group 1 or 2 (Land Classification System as Certified by the Commissioner of Agriculture and Markets)." If it does, the facility would be prohibited at the proposed site.

The Land Classification System is established by the Department of Agriculture and Markets, and incorporates soil productivity and capability, primarily for use in determining agricultural value per acre for realty tax purposes. (See 1 NYCRR 370.2(m)). This system provides that mineral soils are to be listed according to their soil productivity index and placed within one of ten soil groups. Soil groups 1 and 2 have the highest productivity index and soil group 10 has the lowest. (1 NYCRR 370.8). This system is used to rank "soil map units" (See 1 NYCRR 370.6). "Soil map units" are specific kinds of soils designated on a "soil map" (1 NYCRR 370.2(s)). A "soil map" is defined in the Agriculture and Markets' rules as a map on file with the county soil and water conservation district office showing the distribution of soil mapping units in the county (1 NYCRR 370.2(r)). The Soil Survey of Onondaga County, New York, published in 1977 by the United States Department of Agriculture in cooperation with Cornell University Agricultural Experiment Station (Exhibit 4) is an atlas of soil maps that delineate soil map units at the proposed landfill site. The Survey is used to place the mapped soils into the soil groups specified in the Land Classification System.

In the absence of precedent, the ALJ first determined how DEC's agricultural prohibition rule should be interpreted. For example, should the predominance of soil groups 1 and/or 2 apply to the entire 487 acre site? Only to the 412 acre portion within the agricultural district? Within only the Peck farm acreage that apparently must be condemned? Following discussions with the parties and related motions, the ALJ determined - and the parties do not dispute - that the soil predominance test is properly applied to that portion of the site that lies within the agricultural district. That is, the predominance test applies to the 412 acre portion of the overall site. (See ALJ's letter ruling dated April 13, 1995). I concur.

Also, the ALJ concluded - and the parties do not dispute - that for the land (i.e., the 412 acres) to "consist predominantly agricultural soil group 1 or 2", at least 50% of the land must consist of soils classified as soil groups 1, 2 or a combination of both 1 and 2. I concur. This is consistent with existing technical guidance of the Department on landfill siting. (See Technical Assistance Guidance Document, Solid Waste Management Facility Siting, Division of Solid Waste, NYSDEC, April 1990, at p. 25).

Additionally, the record shows (Exhibits 5, 7, and 24), and implicit in the ALJ's Report and undisputed is, the fact that there are no group 1 soils on the site, but there are group 2 soils.

Issues in Dispute

By May 1995, the ALJ and the parties had refined the disputed issues to two: First, whether soils classified as being within soil groups 1 and 2 do or do not overlie 50% or more of that area of the site that lies within the agricultural district, based on interpretation of the County Soil Survey Map. Second, whether the interpretation of the County soil map is reliable for purposes of making the determination in this case. As framed by the ALJ, the issues were:

  1. In interpreting the Onondaga County Soil Map, what is the percentage of group 1 and 2 soils comprising that portion of the facility within the Agricultural District; and
  2. Is the percentage of group 1 and 2 soils, as indicated on the Map, within the Map's margin of error (if any), such that a predominance determination based solely upon the Map is not capable of being made in this instance.

Percentage of group 2 soils on the portion of the site within the agricultural district

Testimony by qualified experts on behalf of Applicant and Staff show that between 38% and 44% of the soils in the 412 acre portion of the site within the agricultural district are classified as soil group 2. None are group 1. These percentages were based on the maps in the County Soil Survey atlas (Exhibit 4). The areas on the map identified as containing soils classified as group 2 were measured, and the above percentages were derived based on the total 412 acre area. Based on these percentages, I find that the Applicant has made a prima facie showing that the soils at the site do not consist predominantly of soils group 1 and 2 of the Agriculture and Markets Department's Land Classification System.

Whether the County Soil Survey is determinative for purposes of making a determination under 360-1.14(c)(1)

The ALJ concluded in his May 17, 1995 issues ruling, and confirmed in his report, that DEC's agricultural prohibition rule (360-1.14(c)(1)) is intended to be based upon the Department of Agriculture and Markets' Land Classification System as set forth in 1 NYCRR Part 370. Further, he concluded that the County Soil Survey Maps are an integral part of that system and are to be determinative of the soil groups on the relevant lands without resorting to other evidence. I concur in that conclusion.

However, because the Town and intervenor strenuously raised questions whether the County Soil Survey should be used and whether it is reliable, and because this was a matter of first impression before the Department, the ALJ on May 24 allowed the second issue above quoted to be raised. That is, he allowed the Town and PURE to offer evidence as to whether the percentage of group 1 and 2 soils as shown by the map was within the map's margin of error (if any) such that a determination of predominance is not capable of being made in this case.

The notion of "margin of error" and reliability of the County maps had two components: Error associated with production of the maps, and error associated with interpreting the maps. The ALJ's report indicates that his May 24, 1995 ruling (which revised his May 17 ruling) intended only that evidence would be received on potential error associated with interpretation of the map. However, at the hearing he also received evidence offered by the Town and PURE in an effort to show error associated with production of the maps--although he later concluded that such evidence was irrelevant.

The ALJ's term "margin of error" was based on the proposition that the proportion of group 2 soils could be so close to 50% that the reliability of the interpretive tools used to measure the areas of group 2 soils might be questioned. However, the evidence as received did not support this point. The ALJ's report details the Town's evidence as to error associated with interpretation of the map and finds such error to be de mini mis (Report, pp. 15-19). These conclusions are supported by the record.

The ALJ also allowed the Town and PURE to create a record on the production of the soil maps by offering evidence designed to show that the maps as produced are unreliable for the purpose at hand. Extensive testimony was received on this question. The ALJ analyzed this evidence in his report, noting six alleged "error factors" cited by the Town and PURE (Report, pp. 19-22). I conclude, upon review of the ALJ's report, briefs of the parties, and the testimony and exhibits, that the record does not support the Town's and PURE's claims that the County Soil Survey map lacks the reliability needed to make a predominance determination under 360-1.14(c)(1). The evidence shows that the County Soil maps, drawn by the United States Department of Agriculture, Soil Conservation Service, were prepared with a high degree of care. While the Town and PURE argue strenuously that the County map has a "margin of error" of as much as 15% to 25%, these arguments are conjectural. At best, the 15% to 25% error argument amounts to a dispute over transitional gradations between differing soils, or "inclusions" of differing soil units within a mapped unit. See ALJ's Report at p. 7, finding 20; and at p. 12, paragraph 12. See also Tr. 963-965. However, judgments over inclusions, made by the map's professional preparers, are not "error" as the ALJ found (Report pp. 20-21), and for all that appears, variations of this nature would tend to cancel each other out (Tr. 1115-1117). The evidence does not support a conclusion that the maps should be discarded as a basis for making a determination of predominance under 360-1.14(c)(1).

The Town appeals the ALJ's May 17, 1995 determination that the soil map is determinative. The Town argues that a separate survey of the site should be required. It argues that a separate "order 1" survey would be more reliable and would more faithfully implement the policy of the agricultural prohibition. An order 1 survey is an on-site investigation/survey. However, I conclude that the DEC agricultural prohibition rule as written expressly provides that the Land Classification System is to be used to determine predominance; the County soil maps are an integral part of that system. The maps have been shown in this proceeding to be competently prepared. They are also public documents relied upon by the Department of Agriculture and Markets for tax purposes. They are fully adequate to serve DEC's purpose under 360-1.14(c)(1) as well. To require a separate on-ground survey in each new landfill case would not only be redundant and wasteful, it would rewrite 360-1.14(a)(c). The purpose of DEC's agricultural prohibition rule is adequately and fully served by reliance upon the County Soil Survey map without reference to extrinsic evidence.

Based on the findings and discussion above, I also deny the Town's appeal of the ALJ's ruling denying the Town's motion to reopen the record.

Conclusion

Accordingly, the agricultural prohibition of 360-1.14(c)(1) and its successor (360-1.7(a)(2)) does not apply under the facts, and the siting of the proposed facility at the site is not prohibited.

SEQRA Findings and Certification

This decision, the ALJ's Hearing Report, the record of the hearing and the complete application, including the Final Environmental Impact Statement (FEIS), to which consideration has been given, provide an adequate basis to make the following findings pursuant to the State Environmental Quality Review Act (SEQRA), ECL, Article 8:

  1. The requirements of 6 NYCRR Part 617 have been met;
  2. Consistent with the social, economic and other essential considerations from among the reasonable alternatives thereto, the action approved is one which minimizes or avoids adverse environmental effects to the maximum extent practicable; including the effects disclosed in the environmental impact statement; and
  3. Consistent with social, economic and other essential considerations, to the maximum extent practicable, adverse environmental effects revealed in the environmental impact statement process will be minimized or avoided by incorporating as conditions to the decision those mitigative measures which were identified as practicable.

For the New York State Department
of Environmental Conservation

_____________/s/_____________
By: Michael D. Zagata, Commissioner

Dated: Albany, New York
December 21, 1995

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION
50 Wolf Road
Albany, New York 12233-1550

In the Matter

- of -

Application for a permit to construct a solid waste management facility pursuant to
Environmental Conservation Law Article 27, Title 7
(Solid Waste Management and Resource Recovery Facilities), Article 17, Titles 7 and 8
(Water Pollution Control Permits and Certificates, and State Pollutant Discharge Elimination System)
and Title 6 of the Official Compilation of Codes, Rules and Regulations
of the State of New York Part 360 (Solid Waste Management Facilities),
and Chapter X, Article 3 (State Pollutant Discharge Elimination System,

- by -

ONONDAGA COUNTY RESOURCE RECOVERY AGENCY

DEC NO.

7-3156-00047/00003-0

HEARING REPORT

and

RECOMMENDED DECISION

- by -

____________/s/____________
Kevin J. Casutto
Administrative Law Judge

Summary

This report addresses applicability of the agricultural permitting prohibition of 6 NYCRR Part 360, to the proposed landfill site. 6 NYCRR 360-1.14(c)(1) prohibits the Department from issuing a permit to construct or to operate a new solid waste management facility if the land upon which that facility is proposed to be located was or is proposed to be taken through the exercise of eminent domain, consists predominately of agricultural soil group 1 or 2 (Land Classification System as certified by the New York State Commissioner of Agriculture and Markets), and is within an agricultural district formed pursuant to the Agriculture and Markets Law.

The report concludes that 1 NYCRR Part 370, incorporated by reference into 6 NYCRR 360-1.14(c)(1), creates a complete land classification system that is intended to be applied without resort to other evidence. Further, in applying the Land Classification System to determine the predominance of agricultural soils pursuant to 6 NYCRR 360-1.7(a)(2)(i), the Onondaga County Soil Survey maps in effect at the time the permit application was deemed complete is determinative of the soil groups comprising the lands upon which the facility is proposed to be sited.

The report concludes that Applicant has shown by a preponderance of the evidence that the portion of Site 31 within Agricultural District No. 6 is not predominately soil group 2, and therefore, the 6 NYCRR 360-1.7(a)(2)(i) agricultural permitting prohibition does not preclude permitting this project.

Further, the report concludes that even if the Commissioner finds that asserted error factors going to production of the Soil Survey should be considered in assessing reliability of the predominance determination, the Commissioner should, nonetheless, conclude that Applicant has shown by a preponderance of the evidence that the portion of Site 31 within Agricultural District No. 6 is not predominately soil group 2, and therefore, the 6 NYCRR 360-1.7(a)(2)(i) agricultural permitting prohibition does not preclude permitting this project.

The report recommends that the Commissioner approve the permit application and remand to Staff to issue the permit.

Proceedings

Onondaga County Resource Recovery Agency ("Applicant") has applied to the New York State Department of Environmental Conservation ("the Department" or "DEC") for a Solid Waste Management Facility ("SWMF") permit pursuant to Environmental Conservation Law ("ECL") Article 27, Title 7 and Title 6, Part 360 of the Official Compilation of Codes, Rules and Regulations of the State of New York ("6 NYCRR"). Applicant proposes to construct and operate a 52 acre landfill and leachate storage facility located on a 487 acre site known as Site 31, located on North Brickyard Road in the Town of Van Buren, County of Onondaga, New York. The facility is designed for a 25-year capacity of approximately 500 tons per day of incinerator ash and bypass waste, and residues from construction and demolition waste processing, recycling and yard waste composting. The ash residue and bypass waste will be received from a permitted 990 tons per day resource recovery facility located on Rock Cut Road in the Town of Onondaga, County of Onondaga, New York.

Regional Staff, after review of the application, made a tentative determination to grant a permit for the project as proposed, and Staff prepared a draft permit which was available for public review since July 8, 1994. However, on August 31, 1994, Staff revised permit condition 47 regarding monitoring well spacing. Applicant has accepted the revised permit.

Pursuant to Article 70 of the Environmental Conservation Law of the State of New York ("ECL") and Part 624 of Title 6 of the Official Compilation of Code, Rules and Regulations of the State of New York ("6 NYCRR"), on August 31, 1994, a legislative hearing was held before Administrative Law Judge ("ALJ") Kevin J. Casutto, at the Baker High School, 29 East Oneida Street, Baldwinsville, New York, with sessions convened at 2:00 p.m. and 7:00 p.m. An issues conference was held on September 1, 1994, at 10:00 a.m., at the Donald S. Ray Middle School, 7650 Van Buren Road, Baldwinsville, New York.

Throughout these proceedings, Onondaga County Resource Recovery Agency ("OCRRA", or "Applicant") appeared by Grossman, Kinney, Dwyer and Harrigan, P.C., James F. Dwyer, Esq., of counsel, 5720 Commons Park, East Syracuse, New York 13057. Department Staff ("Staff") appeared by William Gallagher, Esq. Assistant Regional Attorney, New York State Department of Environmental Conservation, Region 7, 615 Erie Boulevard West, Syracuse, New York 13204-2400. The Town of Van Buren ("the Town") was represented by the law firm of Davoli, McMahon and Kublick, P.C., 500 South Salina Street, Syracuse, New York 13202, Jan S. Kublick, Esq. of counsel. People United for a Rural Environment ("PURE") appeared by James E. Ruddock, Associate Professor of Architectural Technology, Onondaga Community College Syracuse, New York 13215.

By an Issues Ruling dated October 3, 1994, the ALJ held that one issue proposed by the Town required adjudication. That issue concerned applicability of the agricultural prohibition (6 NYCRR 360-1.14(c)(1) 56 NYCRR Part 360, effective December 31, 1988 through October 8, 1993. Compare, current 6 NYCRR Part 360, effective October 9, 1993; 6 NYCRR 360-1.7(2)(a)(i). ), to the project. The Ruling granted party status to the Town on this one issue, and denied other petitions for party status. The parties filed timely appeals, and by Interim Decision dated December 30, 1994, the Commissioner affirmed the issue for adjudication. However, the Commissioner ordered that given the uncertainty about interpretation of 6 NYCRR 360-1.14(c)(1), the matter should be remanded to the ALJ to first hear argument and make rulings on the interpretation of regulation and then to take evidence on the fact questions that are identified. Further, because PURE had asserted at the issues conference that 6 NYCRR 360-1.14(c)(1) should apply to the site, and not just to those lands contemplated to be taken by condemnation, the Commissioner granted full party status to PURE.

Following motion practice on remand from the Commissioner's Interim Decision, by Ruling dated April 13, 1995, the issue for adjudication was identified as more than the land to be condemned, but limited to that portion of the site within Agricultural District No. 6. Following further motion practice, an administrative permit hearing was held before ALJ Kevin J. Casutto, on June 6, 1995, at the Warners Fire Department, Warners, New York. The hearing was continued at that location on June 7, 1995, and thereafter was continued at the Syracuse Fairgrounds Holiday Inn, Farrell Road, Baldwinsville, New York on June 20, 21, 26, 27 and 29, 1995, and August 9, 1995.

Applicant presented testimony of Mark Monmonier, Ph.D., Professor of Geography, Syracuse University, Frederick L. Guilbert, Soil Scientist and owner of Consulting Soil Scientist and Paul M. Fisher, Senior Managing Engineer, William F. Consulich Associates, P.C.

Staff presented testimony of Thomas E. Annal, Environmental Engineer 1, NYSDEC Region 7.

PURE presented testimony of James E. Ruddock, Registered Architect, Associate Professor, Architectural Technology, Onondaga Community College and Erwin Rice, Soil Scientist.

The Town presented testimony of Roger J. Case, Soil Scientist and President of Diversified Soil Services, Ltd. and Matthew Cuevas, Principal Engineering Technician, Clough, Harbor and Associates.

Closing briefs and replies were received by October 17, 1995. With its Reply Brief, however, the Town also filed a Motion to Reopen the Record. Pursuant to 6 NYCRR 624.6(c), the record closed with receipt of responsive filings on the motion, on October 23, 1995. By letter dated October 25, 1995, the Town filed additional argument in support of its motion, which filing was rejected pursuant to 6 NYCRR 624.6(c)(3).

With its final brief, filed on September 25, 1995, the Town filed a notice of appeal pursuant to 6 NYCRR 624.8(d) seeking to vacate the May 17, 1995, Ruling insofar as it held that a county's soil survey is solely determinative on the issue of predominance of soil groups 1 and 2, and that what is actually present on the site is irrelevant to the Department's consideration of the 6 NYCRR 360-1.7(a)(2)(i) permitting prohibition. Further, both the Town and PURE requested that the Commissioner exercise his discretion to direct that the hearing report in this matter be circulated as a recommended decision, pursuant to 6 NYCRR 624.13 (a)(2)(ii).

Additionally, with its final brief, Applicant renewed a motion to the ALJ, previously denied, seeking to strike the issue of whether the percentage of Group 1 and 2 soils, as indicated on the Soil Survey map, is within the map's margin of error, if any, such that a reliable predominance determination cannot be made in this instance. Applicant asserts that this issue represents a higher standard of proof which has not been established by statute or regulation as required by 6 NYCRR 624.9(c). Applicant states that in the event the motion is denied, Applicant appeals that Ruling to the Commissioner pursuant to 6 NYCRR 624.8(d)(1).

By letter dated October 3, 1995, Assistant Commissioner for Hearings G.S. Peter Bergen granted the request for circulation of a recommended decision, and directed the parties to essentially renew their appeals in the context of comments on the recommended decision.

At issue is applicability of the agricultural permitting prohibition of 6 NYCRR Part 360, to the proposed landfill site. This is a case of first impression, as this issue has never before been presented to the Commissioner.

6 NYCRR 360-1.14(c)(1) prohibits the Department from issuing a permit to construct or to operate a new solid waste management facility if the land upon which that facility is proposed to be located is proposed to be taken through the exercise of eminent domain, consists predominately of agricultural soil group 1 or 2 (Land Classification System as certified by the New York State Commissioner of Agriculture and Markets), and is within an agricultural district formed pursuant to the Agriculture and Markets Law. The parties do not dispute that most of the proposed site is within Agricultural District No. 6, and one parcel comprising approximately 25% of the site is proposed to be taken through the exercise of eminent domain.

Applicant's Position

Applicant asserts that the portion of the site within the agricultural district is 39.2% group 1 and 2 agricultural soils. However, Applicant also computed a more conservative calculation (i.e., maximizing the percentage of Group 2 soils), and concluded that the portion of the site at issue is no greater than 43.45% Group 1 and 2 soils. Therefore, Applicant concludes, the portion of the site within Agricultural District No. 6 is not predominately comprised of group 1 and 2 agricultural soils.

Staff's Position

Staff also asserts that the portion of the site within the agricultural district is not predominately comprised of group 1 and 2 agricultural soil. However, Staff asserts that the portion of the site within Agricultural District No. 6 is 44.01% group 1 and 2 agricultural soils.

PURE'S Position

PURE asserts that the Onondaga County Soil Survey (the "Survey") maps used to make the determination have a margin of error that renders the Soil Survey incapable of providing a reliable determination in this instance. Specifically, PURE asserts that the thickness of lines delineating soil groups on the Survey accounts for 29 acres of land, at the scale of the Survey. PURE did not provide its own calculation based on the County Soil Survey. PURE seeks an intensive site survey, which it asserts will reveal a predominance of agricultural soils.

The Town's Position

The Town of Van Buren asserts that the Onondaga County Soil Survey maps used to make the determination have a margin of error that renders the Soil Survey incapable of providing a reliable determination in this instance. Further, the Town asserts that the Onondaga County Soil Survey is not part of the Agriculture & Markets Law, Land Classification System; and therefore, a site survey should be required in this instance to more accurately determine the proportion of agricultural soil present on the portion of the site within the agricultural district.

The Town provided expert testimony to show that soil surveys generally are not highly reliable, and that site-specific investigation will result in changes in identified soil types.

The Town did not provide its own calculation based on the County Soil Survey. The Town seeks an intensive site survey, which it asserts will reveal a predominance of agricultural soils.

Findings of Fact

  1. Jurisdiction and authority to initiate this administrative proceeding is based upon Environmental Conservation Law ("ECL") Articles 70 and 27, and 6 NYCRR Parts 360 and 624.
  2. Agriculture and Markets ("Ag & Mkts") Law 305 addresses assessment of lands used in agricultural production within an agricultural district.
  3. 1 NYCRR Part 370 sets forth the Department of Agriculture and Market's Land Classification System.
  4. 6 NYCRR 360-1.14(c)(1) requires that:

    "The department shall not issue any permit to construct or to operate a new solid waste management facility or a lateral expansion of an existing one if the land upon which that facility or lateral expansion is proposed to be located, was, or is proposed to be, taken through the exercise of eminent domain, consists predominately of agricultural soil group 1 or 2 (Land Classification System as certified by the New York State Commissioner of Agriculture and Markets), and is within an agricultural district formed pursuant to the Agriculture and Markets Law. This paragraph does not apply to land application and composting facilities."

  5. 6 NYCRR 360-1.7(a)(2)(i) requires a proportional determination - - i.e., area of soil group 1 and 2 lands to total area within agricultural district, the determining factor being predominance of group 1 and 2 soils (more than 50%).
  6. Onondaga County Resource Recovery Agency ("Applicant") has applied to the New York State Department of Environmental Conservation ("the Department" or "DEC") for a Solid Waste Management Facility ("SWMF") permit pursuant to Environmental Conservation Law ("ECL") Article 27, Title 7 and Part 360 of Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York ("6 NYCRR").
  7. Applicant proposes to construct and operate a 52 acre landfill and leachate storage facility located on a site known as Site 31 (the "site") located on North Brickyard Road in the Town of Van Buren, County of Onondaga, New York.
  8. The site is a total of 487.6 acres. The portion of the site within Agricultural District No. 6 is 412.9 acres.
  9. The Agriculture Land Classification system is a crop production rating system utilizing total digestible nutrients as a measure of production.
  10. The Land Classification System identifies ten broad soil productivity groups. soil group 1 is the most productive; soil group 10 is the least productive. The Land Classification System describes numerous series of soil types within these ten soil groups.
  11. The purpose of the Ag & Mkts Land Classification System is to evaluate and group the soils of New York on the basis of their productivity and capability. The primary use of the Land Classification System is for taxation and property value assessments. Ag & Mkts Law 305, 1 NYCRR 370.
  12. The Onondaga County Soil Survey was published in January, 1977. Production of the survey began in the late 1930's.
  13. In producing the Onondaga County Soil Survey, the original aerial photographs were taken at a scale of 1 inch: 15,840 feet. The scale was reduced to 1 inch: 20,000 feet in the published Onondaga County Soil Survey.
  14. Ideally, aerial photography will be performed with the camera lens axis perpendicular to the ground. Tilt is an angular deviation between that ideal perpendicular axis and the actual lens axis of the camera. Assuming tilt is a factor in an aerial photograph, the effect of the distortion increases with the distance from the axis.
  15. Rectification is a process of removing this tilt distortion from an aerial photograph.
  16. In the production of the Onondaga County Soil Survey, the aerial photographs were unrectified.
  17. U.S. Geological Service aerial photography is normally produced with an overlapping photographic pattern, resulting in 30% side-to-side overlap and 60% forward overlap. A similar methodology was applied in producing the 1938 aerial photography upon which the Onondaga County Soil Survey is based.
  18. In addition to the original set of aerial photography produced in the late 1930's or early 1940's, a set of aerial photography produced in 1966 was also used in preparation of the Soil Survey.
  19. Two field investigators mapped the portion of the Onondaga County Soil Survey depicting the site.
  20. In the County Soil Survey, "inclusions" are similar or dissimilar soil units that may be considered part of another larger soil group, as limited by the Survey. Those areas that do not exactly fit the named taxonomic unit are "inclusions" of similar soils or dissimilar soils, depending on how similar and dissimilar they are.
  21. A disclaimer set forth in the inside cover of the Onondaga County Soil Survey states to

    "Soil maps in this survey may be copied without permission, but any enlargement of these maps could cause misunderstanding of the detail of mapping and result in erroneous interpretations. Enlarged maps do not show small areas of contrasting soils that could have been shown at a larger mapping scale."

  22. Applicant and Staff each had a Professional Engineer licensed in the State of New York perform the computations of ratio of group 2 soils to total soils within the agricultural district on the site.
  23. The site is shown on four atlas sheets of the Survey (aerial photography map sheets 14, 15, 20 and 21).
  24. Survey sheets 14, 15, 20 and 21 were joined to form a composite soil survey map, because portions of the site appear at the corners of the four sheets. In joining the sheets, where misalignment occurred in a Group 2 area, that area was expanded to align the sheets, thereby resulting in an increased representation of Group 2 soils on the composite map.
  25. In order to establish a projection of the site within the agricultural district, Applicant and Staff took one map projection (the composite soil survey map) and superimposed it on to a site survey prepared by the Lozier firm. In performing this function, it was necessary to modify the scale of one map (the composite soil survey map) to be consistent with the scale of the other (the Lozier site survey).
  26. Neither the Town nor PURE performed a calculation of percentage of Group 1 and 2 soils identified by the County Soil Survey.
  27. Applicant used three methods of calculating the ratio of Group 2 soils to total soils on the site, making a total of fifteen trials.
  28. The average percentage of Group 2 soils calculated by Applicant in the nine "grid method" trials was 39.2% Group 2 soils on the site within the agricultural district.
  29. The average percentage of Group 2 soils calculated by Applicant in the three "Auto CAD method" trials was 43.45% Group 2 soils on the site within the agricultural district.
  30. The average percentage of Group 2 soils calculated by Applicant in the three "planimeter method" trials was 43.31% Group 2 soils on the site within the agricultural district.
  31. Staff used two methods of calculating the ratio of Group 2 soils to total soils within the agricultural district on the site, each using an Auto CAD computer digitization system, making a total of five trials.
  32. The average percentage of Group 2 soils calculated by Staff in the five "Auto CAD method" trials was 44.01% Group 2 soils on the site within the agricultural district.
  33. The thickness of lines delineating soil mapping unit (polygon) boundaries on the Soil Survey Sheet maps is approximately 1/100th of an inch.
  34. At the scale of the Soil Survey, 1 inch: 20,000 feet, the thickness of such linear delineations represents 16 2/3 feet.
  35. The delineations of Group 2 polygons on the Composite Soil Survey Sheet map, within the agricultural district on the site, is approximately 76,000 feet in length.
  36. An area 76,000 feet long by 16 2/3 feet wide represents approximately 29 acres - - or approximately 5% of the area within the agricultural district on the site, as depicted on the Composite Soil Survey Sheet map.

Conclusions of Law

  1. The Town's motion to reopen is denied. Staff has correctly asserted that the new map is irrelevant, because it is the County Soil Survey maps that are determinative. The value of the new map is substantially outweighed by a potential for unfair prejudice, confusion of the issues and undue delay. 6 NYCRR 624.9(a)(2).
  2. 1 NYCRR Part 370 creates a complete land classification system that is intended to be applied without resort to other evidence. In applying the Land Classification System to determination of the issue set for adjudication, evidence outside the Land Classification System is not relevant. Under 6 NYCRR 360-1.7(a)(2)(i), the Onondaga County Soil Survey map in effect at the time the application for the permit was deemed complete is determinative of the soil groups comprising the lands upon which the facility is proposed to be sited.
  3. The Town and PURE identified several factors that they assert contribute to margin of error in production of the soil survey maps. In applying 6 NYCRR 360-1.7(a)(2)(i), these factors are deemed not relevant, as a matter of law.
  4. Applicant's motion for reconsideration, seeking to strike the issue of whether the percentage of Group 1 and 2 soils, as indicated on the Soil Survey map, within the map's margin of error, if any, is such that a predominance determination is not capable of being made in this instance, is denied. This issue is relevant and appropriate for adjudication because if a reliable predominance determination is not capable of being made in this instance, then Applicant has failed to show by a preponderance of the evidence, based upon the Soil Survey maps, that the portion of the site within the agricultural district is not comprised predominately Group 1 and 2 soils.
  5. The siting issue raised by PURE and the Town is not solely a SEQRA issue. Instead, the issue is whether a permitting standard of 6 NYCRR Part 360 prohibits permitting a facility at the proposed site. 6 NYCRR 360-1.7(a)(2)(i). Therefore, Applicant's argument that siting has already been subjected to the "hard look" standard of SEQRA (6 NYCRR 617.4[g]), and that this standard meets the "preponderance of the evidence" requirement of 6 NYCRR 624.9(c), and is dispositive in the present matter, is rejected.
  6. Since maps are representations of reality, with any kind of mapping there is error. However, the issue of error must be related to what is attempting to be portrayed by the cartographic display.
  7. Any error attributable to thickness of lines delineating areas on the map is de mini mis as applied to the predominance determination, because any variation attributable to thickness of lines delineating areas on the map would apply equally to areas of the site mapped as soil groups 1 and 2, as to areas mapped as other soil groups, and because the Soil Survey sheets are being used for the purpose for which they were intended - - i.e., determining soil productivity as a measure of crop production and capability.
  8. Any potential error in entering information into the computer "Auto CAD" software system is de mini mis, because this function was performed by licensed Professional Engineers who credibly testified regarding the procedures and care used in performing this function. Moreover, both Applicant and Staff performed numerous trials, thereby further reducing the possibility of error resulting from the digitization process.
  9. Any error resulting from the joining of Survey sheets 14, 15, 20 and 21 to form the composite soil survey map would have increased the percentage calculation of Group 2 soils.
  10. Any error attributable to changes in the scale of mapping is de mini mis as applied to the proportional analysis required in rendering a determination of predominance, because any variation attributable to changes in scale would apply equally to areas of the site mapped as soil groups 1 and 2, as to areas mapped as other soil groups.
  11. Any error attributable to changes in the scale of mapping is de mini mis as applied to the predominance determination, because any variation attributable to changes in scale would apply equally to areas of the site mapped as soil groups 1 and 2, as to areas mapped as other soil groups.
  12. Since inclusions are intentional groupings of similar or dissimilar soil units, inclusions are not an error factor in the Soil Survey. Instead, the Land Classification System contemplates that, even with inclusions, the soil mapping units or "polygons" identified in the Soil Survey maps are appropriate to the purpose of determining soil productivity.
  13. Applicant has shown, by a preponderance of the evidence, that the portion of Site 31 within Agricultural District No. 6 is not predominately soil group 2.

Discussion

The Town's Motion to Reopen the Record

By motion dated October 17, 1995, the Town seeks to reopen the hearing record for receipt of a new map of the property owned by Leroy Peck. That property, approximately 103 acres, is part of the 487+ acre proposed site, and is within Agricultural District No. 6. The Peck property is the parcel which Applicant proposes to obtain by exercise of eminent domain. During the hearing, the Town's consulting Soil Scientist Roger Case testified about his on-site investigation of that property, and concluded that there was substantially more Group 2 soil on the Peck property than is identified in the County Soil Survey. On cross-examination, Applicant moved the map into evidence, and then demonstrated that the Peck property boundary on the map used by Case was not correct.

The Town states that subsequent to the hearing, in September, 1995, Case revisited the Peck property with a corrected survey and mapped the soils using two-foot elevation intervals (the "new map"). The new map shows an increase of less than 4 acres of Group 2 soils on the +/-103 acre site. The Town seeks to enter into the record this new map of the Peck property.

Both Applicant and Staff oppose the motion to reopen. PURE has not responded to the motion. Applicant states that the motion should be denied pursuant to 6 NYCRR 624.9(a)(2), which states:

"Although relevant, evidence may be excluded if its value as proof is substantially outweighed by a potential for unfair prejudice, confusion of the issues, undue delay, waste of time or needless presentation of repetitious or duplicative evidence."

One test applied to evaluate whether untimely evidence may be admitted is whether it was previously available. Both Applicant and Staff assert that the information is not new and was previously available. They assert that the Town had an opportunity to enter such a map into evidence in its direct case, but failed to do so. Applicant further asserts that it is unconscionable for the Town to seek admissibility of the new map at this late date in the proceeding.

Staff notes that even if the new map were to be considered, it is of dubious value, showing less than 4% increase in Group 2 soils as compared to the prior map. Staff asserts such variation is not remarkable because of the difference in intensity of the new Case soil survey, as compared to the intensity of the County Soil Survey. Nonetheless, under the Land Classification System, the intensity of the County Soil Survey is deemed appropriate to determining agricultural productivity. Staff correctly concludes that the County Soil Survey maps are applicable and were properly analyzed in this case. In any event, even if the new map were considered, a change of less than 4%, even if applied to the whole site, would still result in less than 50% agricultural soils. Therefore, it would not change the predominance determination ached by Applicant and Staff.

Additionally, this evidence was not part of the Town's direct case. The initial map used by the Town's witness Case was moved into evidence by Applicant, not the Town; and then primarily to cross-examine Case regarding the incorrect boundary indicated therein. Further, Staff has correctly asserted that the new map is irrelevant because it is the County Soil Survey maps that are determinative. When considered in view of the lengthy record on mapping and mapping accuracy, any benefit gained through the introduction of the new map into evidence is substantially outweighed by the potential for unfair prejudice arising from confusion of the issues and undue delay. 6 NYCRR 624.9(a)(2).

Accordingly, in evaluating the Town's Motion to Reopen in light of 6 NYCRR 624.9(a)(2) and arguments presented by the parties, I conclude that the motion must be denied.

Applicant's Motion For Reconsideration of ALJ Ruling

Although there is no recognized margin of error associated with the Onondaga County Soil Survey, PURE and the Town have asserted that the margin of error is such that the map is not capable of providing a reliable determination of predominance of agricultural soils in this instance. PURE has asserted a margin of error of between 10% and 12%.

As noted above, at hearing, Applicant moved to strike the issue of whether the percentage of Group 1 and 2 soils, as indicated on the Soil Survey map, is within the map's margin of error, if any, such that a predominance determination cannot be made in this instance. Applicant asserts that this issue represents a higher standard of proof which has not been established by statute or regulation, as required by 6 NYCRR 624.9(c). That motion was denied.

Applicant correctly cites the standard of proof as preponderance of the evidence. However, the issue identified for adjudication does not hold Applicant to a higher standard of proof because, if a reliable soil group predominance determination cannot be made in this instance, then Applicant has failed to show by a preponderance of the evidence, based upon the Soil Survey maps, that the portion of the site within the agricultural district is not comprised predominately Group 1 and 2 soils. Applicant's motion for reconsideration of this evidentiary Ruling is denied.

SEQRA Issues Preclusion

Applicant also asserts that siting has already been subjected to the "hard look" 66 NYCRR 617.6(g)(2)(iii) requires the lead agency to "thoroughly analyze the identified relevant areas of environmental concern", what has been referred to in the case law as taking a "hard look" at the environmental issues. standard of SEQRA environmental review (6 NYCRR 617.4[g]); that this standard meets the "preponderance of the evidence" requirement of 6 NYCRR 624.9(c); and therefore, the SEQRA review should be dispositive in the present matter. However, this issue was not addressed in the EIS.

Pursuant to 6 NYCRR 624.4(c)(6)(ii)(b), when the SEQRA lead agency is not the Department, and a DEIS is required, no issue based solely on SEQRA compliance and not otherwise subject to the Department's jurisdiction will be considered for adjudication (except under circumstances identified therein). However, the siting issue raised by PURE and the Town is not solely a SEQRA issue. Instead, the issue is whether to a permitting standard of 6 NYCRR Part 360 prohibits permitting a facility at the proposed site. 6 NYCRR 360-1.7(a)(2)(i). Therefore, Applicant's argument must be rejected.

Scope of the Issue For Adjudication

Error is unintentional deviation from what is correct or true. The American Heritage College Dictionary [Third Edition], 1993.. Applicant's cartographic expert, Dr. Monmonier, has acknowledged that since maps are representations of reality, with any kind of mapping there is error. However, Monmonier asserts that the issue of error must be considered in relation to what is being portrayed by the cartographic display.

Within the concept of margin of error, there are two categories of margin of error that could be considered. One is a potential margin of error that went into production of the soil survey maps (Exhibit 4). The other category of margin of error is error in interpreting those maps, as applied to the OCRRA landfill site. PURE's filing of May 19, 1995, identified a purported error in the latter category. Consistent with the April 13, 1995, Ruling, it is only this latter category that was placed into contention for adjudicatory hearing - - i.e., margin of error in interpreting the maps. Nonetheless, the Town and PURE were also allowed to create a record on margin of error that went into production of the soil survey maps, so that a complete record for review would be available to the Commissioner.

- The Land Classification System

The Ag & Mkts Law Land Classification System (the "System") is a crop production rating system utilizing total digestible nutrients as a measure of crop production. Total digestible nutrients was selected as a crop production function to permit a direct comparison of the quantity of corn and hay crops commonly grown within a rotation in New York.

The purpose of the System is to evaluate and group the soils of New York on the basis of their productivity and capability. Ag & Mkts Law 305, 1 NYCRR 370. The primary use of the System is for property taxation assessments. The System identifies ten broad soil productivity groups. Soil group 1 is the most productive; soil group 10 is the least productive. The System describes numerous series of soil types within these ten soil groups. The county soil surveys of the various counties of the state are determinative of soil productivity for the purpose intended by the System - - i.e., as a measure of the land's potential for crop production.

The Town and PURE have argued that a more intensive field study would provide a more accurate determination than is possible with the County Soil Survey. However, the county soil surveys, as part of the System, are the means of making that determination under the System. The System implicitly represents a policy determination that soil surveys at the scale of the state's various county soil surveys are appropriate and reliable for determinations of agricultural productivity.

- The Predominance Calculations

6 NYCRR 360-1.7(a)(2)(i) incorporates the System by reference to determine whether lands within the agricultural district of a site are predominately soil groups 1 and 2. Therefore, under 6 NYCRR 360-1.7(a)(2)(i), the county soil surveys of the various counties of the state in effect at the time a solid waste management facility permit application is deemed complete by the Department, is determinative of the soil groups comprising the lands upon which the facility is proposed to be sited.

The site at issue here is a total of 487.6 acres; and the portion of the site within Agricultural District No. 6 is 412.9 acres. Applicant and Staff each interpreted the Onondaga County Soil Survey maps using the System to determine whether there is a predominance of Group 1 and 2 soils comprising the portion of the site within the agricultural district. A complete description of Applicant's interpretation is contained in Exhibits 5 and 7. A summary of Staff's interpretation is contained in Exhibits 23 and 24.

Briefly, the site is shown on four atlas sheets of the Survey (aerial photography map sheets 14, 15, 20 and 21). These sheets were removed from the atlas and joined together to form a single composite sheet containing the entire landfill site. Soil areas (polygons) of Group 2 soils were colored (the Survey identifies no Group 1 soils on the site). Applicant used three methods to compute proportional area to determine the percentage of Group 2 soils within the agricultural district on the site. In the first method, a grid overlay was used to compute proportional area (the "grid" method). A sheet of graph paper was placed over the composite soil map and proportional area was calculated by counting the squares on the graph paper. Nine trials were made with this first method of calculation: three trials on the composite soil map at its original scale; three trials on a 2X photo-enlargement of the composite map; and three trials on a computer digitized map prepared by Applicant's consulting engineers, William F. Cosulich Associates, P.C. ("WFC"). The average percentage of Group 2 soils calculated by the nine trials was 39.2% Group 2 soils.

Applicant used two other methods to compute proportional area: using digitized information and a computerized Auto CAD program; and using the planimeter method. These two methods of calculation were intended to present a conservative calculation (i.e., maximizing the percentage of Group 1 and 2 soils). Three trials were computed with each method of calculation. The two methods of calculation, a total of six trials, produced average results of 43.45% (Auto CAD) and 43.31% (Planimeter) Group 2 soils on the site within the agricultural district.

Staff computed percentages of Group 2 soils within the agricultural district using two methods, each using an Auto CAD computer digitization system. Staff performed two trials for its first method and three trials for its second method. The two methods of calculation, a total of five trials, produced average results of 44.01% Group 2 soils on the site within the agricultural district.

Neither the Town nor PURE performed a calculation of percentage of Group 1 and 2 soils identified by the County Soil Survey. Instead, the Town and PURE sought to show that the calculations performed by Applicant and Staff are not reliable.

Asserted Error Factors in Interpretation of the Soil Survey Maps

The Town identified the following error factors in interpretation of the soil survey maps:

1) Potential Error Attributable to Delineation of Soil Mapping Unit Polygons

PURE asserts that the thickness of the lines delineating soil mapping unit (polygon) boundaries is approximately 1/100th of an inch. At the scale of the Soil Survey, 1 inch: 20,000 feet, PURE calculates that the thickness of such delineations represents 16 2/3 feet. PURE further calculates approximately 76,000 feet of lines delineating the Group 2 soil groups within the agricultural district on the site. PURE calculates that an area 76,000 feet long by 16 2/3 feet wide, representing approximately 29 acres - - or approximately 5% of the total area at issue, is covered by lines on the map. PURE asserts that this limitation in the scale of mapping is compounded by the process of delineating each polygon, and results in significant error.

Applicant and Staff have asserted that since 6 NYCRR 360-1.7(a)(2)(i) requires a proportional determination - - i.e., predominance, more than 50% - - any variation attributable to thickness of lines delineating areas on the map would apply equally to areas of the site mapped as soil groups 1 and 2, as to areas mapped as other soil groups.

Additionally, it became apparent from the testimony of the soil scientists that soil mapping is, in part, an art that requires exercise of professional judgment. This is also supported by Dr. Monmonier's opinion that effective classification and selection often depend on a mixture of informed intuition and a good working definition. There was no showing in this case that judgment applied by the field investigators responsible for mapping the site was less than generally accepted in the profession.

Further, the Soil Survey, as part of the System, contemplates use of Soil Survey Sheet maps. As discussed above, maps are representations of reality that must be viewed in light of the purpose for which they are intended. Here, the Soil Survey sheets are being used for the purpose for which they were intended - - i.e., determining soil productivity as a measure of crop production and capability.

In sum, I agree with the analysis provided by Applicant and Staff. Any error attributable to thickness of lines delineating areas on the map is de mini mis as applied to the predominance determination.

2) Potential Error In Entering Information Into the Computer "Auto CAD" Software System.

The Town and PURE assert that digitizing the soil polygons is a manual process, subject to the operator's skill and accuracy. Both Applicant and Staff had a licensed professional engineer enter the information. Each engineer testified that he took extreme care in digitizing the polygons. Further, both Applicant and Staff performed a number of trials, thereby further reducing the possibility of error resulting from the digitization process. Therefore, I find that any error introduced by this process is de mini mis.

3) Potential Error In Matching the Four Survey Sheets to Form the Soil Survey Composite Map.

The Town asserts that an additional error factor was introduced into the computation of predominance by the process of joining survey sheets 14, 15, 20 and 21 to form a composite Soil Survey map (the "composite map"). Joining the four sheets was necessary because portions of the site appear at the corners of the four sheets. Both Applicant's and Staff's witnesses provided credible testimony that painstaking effort went into aligning the four sheets, and that where misalignment occurred in a Group 2 area, that area was expanded to properly align the sheets. I accept this as credible testimony. Any error resulting from the joining of the four survey sheets to form the composite map would have increased the percentage calculation of Group 2 soils.

4) Potential Error in Superimposing the Soil Survey Composite Map Onto the Lozier Site Survey

Applicant and Staff essentially took one map projection, which was the County Soil Survey composite map, and superimposed it on an existing site survey, the "Lozier" survey. At that point, Applicant established a projection of the site within the agricultural district. In performing this function, it was necessary to modify the scale of the composite soil survey map to be consistent with the scale of the Lozier site survey. The Town and PURE assert that modifying the scale of a map may result in error.

In fact, PURE cites a disclaimer on the inside cover of the Soil Survey that states, "[s]oil maps in this survey may be copied without permission, but any enlargement of these maps could cause misunderstanding of the detail of mapping and result in erroneous interpretations. Enlarged maps do not show small areas of contrasting soils that could have been shown at a larger mapping scale."

In support of its position that modifying the scale of a map may result in significant error, the Town has cited a passage from a book entitled How to Lie With Maps, written by Applicant's witness, Dr. Monmonier:

"That crisp definitive lines on soils maps mark inherently fuzzy boundaries is unfortunate. More appalling, though, is the uncritical use in computerized geographic information systems of soil boundaries plotted on unrectified aerial photos subject to the relief displacement area described in Figure 3-6.

By quoting a public figure out of context, extracting soils data from a photo map invites mis-interpretation. When placed in the data base with more precise information, these data readily acquire an aura of accuracy." How to Lie With Maps, Dr. Mark Monmonier, University of Chicago Press (1991), p. 38.

Dr. Monmonier stated that these paragraphs were taken out of context. He quoted the paragraph immediately preceding those cited by the Town, which provides the context for the passage cited by the Town:

"Effective classification and selection often depend on a mixture of informed intuition and a good working definition. This is particularly true for geologic maps and soils maps, commonly prepared by several field scientists working in widely separated places (emphasis added)." How to Lie With Maps, supra.

Applicant and Staff have correctly asserted that since 6 NYCRR 360-1.7(a)(2)(i) requires a proportional determination - - i.e., predominance, more than 50% - - any variation attributable to changes in scale, would apply equally to areas of the site mapped as soil groups 1 and 2, as to areas mapped as other soil groups. Any error attributable to changes in the scale of mapping is de mini mis as applied to the proportional analysis required in rendering a determination of predominance.

5) Potential Error in Digitizing and Entering the County Soil Survey Composite Map Into the Computer.

The Town asserts that Applicant and Staff each digitized the Soil Survey composite map. The Town claims the resulting calculations, based upon the digitized information, have an aura of being a much more accurate calculation than it actually is, because the computer software can generate numbers to the thousandth of an acre. The Town asserts that although the computer program is capable of such a calculation, the calculation is accurate only with respect to the digitized information. The Town asserts that such accuracy cannot be imputed to interpretation of the actual Soil Survey Map.

While this may be correct, the Town's witness, Matthew Cuevas, testified that such calculations would be accurate to the nearest tenth of an acre. Even if the Auto CAD calculations are accurate only to the nearest acre, the result of the Auto CAD trials performed by Applicant and Staff would not change substantially. Therefore,

I find that any error introduced by this factor is de mini mis.

6) Potential Error in that the Original County Soil Survey Sheets Were Mapped at a Reference Scale of 1 inch: 20,000 feet and the Basic Unit of Soil Groupings Was Four Acres. PURE asserts that the margin of error inherent in the original collection of data and the small scale delineation of information on the soil survey maps at a scale of 1 inch: 20,000 feet, renders the maps unreliable as applied in this case.

PURE further asserts that since the soil survey maps were enlarged by Applicant and Staff in their process of interpreting the maps, the enlargement introduces another error factor into the result. PURE points to the disclaimer set forth in the inside cover of the Onondaga County Soil Survey, which states:

"Soil maps in this survey may be copied without permission, but any enlargement of these maps could cause misunderstanding of the detail of mapping and result in erroneous interpretations. Enlarged maps do not show small areas of contrasting soils that could have been shown at a larger mapping scale."

PURE also asserts that error is caused by the width of the lines delineating soil mapping units on the composite soil map. PURE asserts that due to the scale of the soil survey, i.e., 1 inch: 20,000 feet, this error factor in interpretation of the composite soil survey map is in excess of 15 percent.

Additionally, the Town's witness, Rice, testified that the original photographs were taken at a scale of 1 inch: 15,840 feet, and the scale was reduced to the 1 inch: 20,000 feet scale of the Onondaga County Soil Survey. However, Rice also testified that he was not responsible for preparing the final atlas sheets, and therefore could not testify as to their production.

Applicant and Staff have asserted that since 6 NYCRR 360-1.7(a)(2)(i) requires a proportional determination - - i.e., predominance, more than 50% - - any variation attributable to changes in scale, would apply equally to areas of the site mapped as soil groups 1 and 2, as to areas mapped as other soil groups. I agree with this analysis and conclude that any error attributable to changes in the scale of mapping is de mini mis as applied to the predominance determination.

II. Asserted Error Factors in Production of the Soil Survey Maps

The standard of review for the adjudication was set forth in a Ruling dated May 17, 1995, which held that the issue identified for adjudication was predominance of group 1 and 2 soils on that portion of the facility within the Agricultural District. The Ruling also held that the Department is prohibited from issuing a SWMF permit if the site is predominately Group 1 and 2 agricultural soils; the Department of Agriculture and Markets Land Classification System [1 NYCRR Part 370] creates a complete land classification system that is intended to be applied without resort to other evidence; that in applying the System to determination of the issue set for adjudication, evidence outside the System is not relevant; that under 6 NYCRR 360-1.7(a)(2)(i), the Onondaga County Soil Survey map in effect at the time the application for the permit was deemed complete is determinative of the soil groups comprising the lands upon which the facility is proposed to be sited; and therefore, at hearing, only evidence related to interpretation of the Onondaga County Soil Survey map, as an element of the System, is relevant evidence.

In scheduling the adjudicatory hearing session, by memorandum dated May 24, 1995, I summarized the issue for adjudication: In interpreting the Onondaga County Soil Map, what is the percentage of group 1 and 2 soils comprising that portion of the facility within the Agricultural District; and: Is the percentage of group 1 and 2 soils, as indicated on the Soil Survey Maps, within the Survey's margin of error (if any), such that a predominance determination based solely upon the Survey Maps is not capable of being made in this instance.

This summary of the issue for adjudication modified the May 17, 1995, Ruling only insofar as it represented the notion, first expressed by PURE subsequent to the May 17, 1995, Ruling, that a reliable predominance determination based solely upon the Survey Maps cannot be made in this instance. In the event it could be shown by a preponderance of the evidence that a reliable determination based solely upon the Survey cannot be made in this instance, then other evidence would have to be considered, including, possibly, the intensive site survey that both the Town and PURE seek.

At hearing, the Town and PURE sought to introduce evidence of error that went into preparation of the soil survey maps, as well as evidence of error in interpreting the maps. The Town and PURE assert that error in the physical production of the survey maps is included within any error made in interpreting the maps. Since applicability of the agricultural prohibition is a novel issue, in the exercise of discretion, the Town and PURE were allowed to create a record in support of their position. Those error factors are discussed below:

1) Inclusions

Inclusions are similar or dissimilar soil units that may be considered part of another larger soil group, as limited in the County Soil Survey. The Town and PURE assert that inclusions should be considered as contributing to a margin of error of the four Soil Survey Maps, Nos. 14, 15, 20, and 21. The System allows for the identification of the typical soil. By necessity, soils must be included in the soil mapping units on the maps, depicting areas on the landscape. Those areas that do not exactly fit the named taxonomic unit are "inclusions" of similar soils or dissimilar soils, depending on how similar and dissimilar they are. As noted above, error is unintentional deviation from what is correct or true. Since inclusions are intentional groupings of similar or dissimilar soil units, inclusions are not an error factor in the Soil Survey. Instead, the System contemplates that even with inclusions, the soil mapping units or "polygons" identified in the Soil Survey maps appropriately determine soil productivity. Consequently, this is not an error factor, but a feature of the System.

2) Unrectified Base Aerial Photography

Ideally, aerial photography will be performed with the camera lens axis perpendicular to the ground. Tilt is an angular deviation between that ideal perpendicular axis and the actual lens axis of the camera. Assuming tilt is a factor in an aerial photograph, the effect of the distortion increases with the distance from the axis. Rectification is a process of removing this tilt distortion from an aerial photograph. In the production of the Onondaga County Soil Survey, the aerial photographs were unrectified. This could introduce an error factor with respect to the base maps that ultimately produced the Soil Survey.

However, Dr. Monmonier stated that the USGS does not accept aerial photographs with a tilt of more than three degrees. He also stated that the USGS photographic series is normally produced with an overlapping photographic pattern, resulting in 30% side-to-side overlap and 60% forward overlap. This redundant coverage is intended to minimize the effect of potential distortions, including potential tilt distortion, in the resulting photo mosaic. PURE's witness, Erwin Rice, a co-author of the Onondaga County Soil Survey, confirmed that a similar methodology was applied in producing the 1938 aerial photography upon which the survey is based.

3) Several Field Investigators Mapped This Soil Survey

The Town and PURE assert that because more than one investigator performed the original mapping, it was not done in precisely the same manner by each investigator. In support of this, Town witness Rice testified that he mapped most of the area of the site, except for a portion along the southern edge of the site, which was mapped by another field investigator. The Town asserts the difference in mapping between investigators represents another error factor in the mapping process.

I do not find this factor sufficiently compelling to reject the work already performed. Presumed differences in professional judgment between investigators do not necessarily amount to error in the mapping process. Moreover, the Town has not shown that either investigator involved in the mapping performed in a manner that was unacceptable by then-existing professional standards, or was otherwise faulty.

4) Length of Time That Elapsed From Beginning to Completion of the County Soil Survey

Here, the Town asserts that any time a mapping project is not timely completed, this information becomes "stale" and of questionable utility. The Town asserts that the fact that the original project and data collection was started in the early 1930's, but the Onondaga County Soil Survey was not published until January, 1977, contributes to error. The Town asserts that the County Soil Survey mapping process, having spanned almost four decades, likely required a succession of people handling the information, which implicitly adds to error. The Town further asserts that subsequent project participants don't always share the full set of goals, ideas and intent that the original persons had.

The Town did not present any facts to support its contention and its argument is speculative. Neither the Town nor PURE cited any particular goals, ideas or intent that changed over the course of the project. Nor did the Town identify any specific error factors that were attributable to the length of time involved in producing the Survey.

5) Cartographic Interpretation

The Town asserts that it is the interpretation of the cartographer to make a uniform product that was published in the Soil Conservation series. Therefore, the Town asserts that another level of error factor was introduced into the Soil Survey because it is one or more steps further removed from the original field data. This is also speculative. The Town failed to cite any specific error factors that were attributable to cartographer interpretation of field data.

6) Use of Two Sets of Aerial Photographs

Town witness Rice testified that in addition to the original set of aerial photography (taken in the late 1930's or early 1940's), a set of aerial photography produced in 1966 was also used in preparation of the Soil Survey. His recollection is that mylar overlays based upon the original aerial photography were placed onto the 1966 photography.

The Town has not shown how use of the 1966 aerial photography resulted in introduction of any specific error factor into the Soil Survey. Therefore, this issue is not factually based, is speculative, and must be rejected.

Recommendations

  1. The Commissioner should conclude that 1 NYCRR Part 370 creates a complete land classification system that 6 NYCRR 360-1.7(a)(2)(i) intends to be applied without resort to other evidence. Further, that in applying the Land Classification System to determination of predominance of agricultural soils pursuant to 6 NYCRR 360-1.7(a)(2)(i), the Onondaga County Soil Survey maps in effect at the time the permit application was deemed complete is determinative of the soil groups comprising the lands upon which the facility is proposed to be sited.
  2. The Commissioner should conclude that Applicant has shown by a preponderance of the evidence that the portion of Site 31 within Agricultural District No. 6 is not predominately soil group 2, and therefore, the 6 NYCRR 360-1.7(a)(2)(i) agricultural permitting prohibition does not preclude permitting this project.
  3. Even if the Commissioner finds that asserted error factors going to production of the Soil Survey should be considered in assessing reliability of the predominance determination, the Commissioner should, nonetheless, conclude that Applicant has shown by a preponderance of the evidence that the portion of Site 31 within Agricultural District No. 6 is not predominately soil group 2, and therefore, the 6 NYCRR 360-1.7(a)(2)(i) agricultural permitting prohibition does not preclude permitting this project.
  4. The application should be remanded to Staff for issuance of the permit.

Comments on Recommended Decision

Pursuant to 6 NYCRR 624.13, on October 3, 1995, Assistant Commissioner for Hearings G.S. Peter Bergen ordered circulation of this Hearing Report as a Recommended Decision and set a schedule for comments on this Recommended Decision. Therefore, upon circulation of this Hearing Report/Recommended Decision, consistent with the schedule set by the Assistant Commissioner, the parties may comment to the Commissioner by November 15, 1995. Included in those comments, pursuant to direction of Assistant Commissioner Bergen, the parties may renew appeals presented in their closing briefs. Replies to comments, not to exceed 10 pages, must be received by November 27, 1995. Three copies of all filings must be sent to Assistant Commissioner for Hearings G.S. Peter Bergen. Additionally, one copy must be filed with the ALJ, and one copy must be sent to each party to the proceeding.

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