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Onondaga County Resource Recovery Agency - Ruling, May 17, 1995

Ruling, May 17, 1995

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

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,
(Onondaga County)

Applicant

PRE-HEARING
EVIDENTIARY
RULING

The parties have requested a pre-hearing evidentiary ruling on whether the current Onondaga County soils map is determinative in applying the agricultural siting prohibition set forth in 6 NYCRR 360-1.7(a)(2)(i), or whether evidence beyond the map consisting of field data regarding the on-site soils is relevant. This issue has not been raised previously in a permit hearing under 6 NYCRR Part 360.

The agricultural siting prohibition applies if the land upon which the facility is to be located, ". . . 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 Agriculture and Markets Law." 6 NYCRR 360-1.7(a)(2)(i).

Applicant and Staff assert that soil types should be determined solely with reference to the Agricultural Land Classification System as certified by the Commissioner of Agriculture and Markets in December of 1993. Further, they assert that the 1977 United States Soil Conservation Service maps adopted by Onondaga County as the Onondaga County Soil Survey Maps, are an integral part of the Agricultural Land Classification System. United States Soil Conservation Service maps are employed by virtually all counties in the United States, and in New York State, may be amended through a process set forth in Agriculture and Markets regulations, 1 NYCRR 370 (Land Classification System).

Staff further asserts that the Onondaga County map was properly analyzed and utilized during the preliminary siting process; that it has not been subsequently revised; and that it should be solely determinative of the soil groups on site. Field data pointing to a different result from that obtained from employing the County map would not be relevant to a determination under the Land Classification System, of which the soil map is an integral part. 6 NYCRR 360-1.7(a)(2)(i) incorporates by reference the Land Classification System. Any revision in the County map subsequent to the siting process would be irrelevant.

The Town, however, asserts that the Agriculture & Markets Law does not contain reference to soil maps as part of the land classification system, and that in the Part 370 regulations, mention of soil maps is only peripheral to the system. The Town asserts the best evidence of soil types is established by field data, and such evidence should be deemed relevant at hearing. It has conducted a field survey of a portion of the site referred to as the Peck property, and has submitted a revised map of the Peck property indicating a greater acreage of soil types 1 and 2 than that indicated on the Onondaga County Soil Survey map - - 42.7 acres vs. 32 acres. However, Applicant challenges the accuracy of the Town's field data. If the Applicant is correct, the actual acreage of soil types 1 and 2 on the Peck property is closer to 38 acres.

The Town argues in the alternative that if the County soil map is deemed determinative of 6 NYCRR 360-1.7(a)(2)(i), then resolution of the agricultural prohibition issue must await a determination by the Commissioner of Agriculture and Markets on a map amendment process commenced May 4, 1995, by the owner of the Peck property. 1 NYCRR 370.11. 1 NYCRR 370.11 sets forth the procedure by which an owner of land in agricultural production may petition for the review of any land classification designation for any soil map unit.

The agricultural siting prohibition, 6 NYCRR 360-1.7(a)(2)(i), establishes the Department of Agriculture and Markets' Land Classification System as determinative of whether the land upon which a facility is proposed to be sited consists predominantly of soil groups 1 and 2. The Land Classification System ranks land according to its value for the production of crops. The purpose of this system is to establish agricultural value assessments for real property taxation. 1 NYCRR 370.10; Agriculture & Markets Law 305 and 306. . A review of 1 NYCRR Part 370 shows that county soil maps are an integral part of the Land Classification System. "Soil map" is defined as a map on file with the county soil and water conservation district office, showing the distribution of soil mapping units in relation to the prominent physical and cultural features of the earth's surface. 1 NYCRR 370.2(r). The maps are comprised of soil map units based on data developed by the National Cooperative Soil Survey. The master list of soil groups for the State is established in cooperation with the USDA Soil Conservation Service, Cornell Cooperative Extension, using the productivity index set forth in 370.6. 1 NYCRR 370.4.

Therefore, I conclude that 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. Therefore, at hearing, only evidence related to interpretation of the Onondaga County Soil Survey map, as an element of the Land Classification System, is relevant evidence. Outcome of the map amendment process commenced on May 4, 1995 by the Peck property owner is irrelevant to the issue of determination of soil groupings on-site.

Lastly, Applicant has suggested that if the maps are deemed determinative, it is not necessary to go forward with the adjudicatory hearing because no dispute exists regarding interpretation of the Onondaga County Soil Survey map. Applicant asserts the soil map shows that, under the Land Classification System, the facility soils within the agricultural district are not predominately soil groups 1 and 2. The Town and PURE are directed to provide written notice by noon, May 19, 1995, whether they intend to challenge Applicant's interpretation of the Onondaga County Soil Survey map. If so, then the adjudicatory hearing will proceed as scheduled, on May 23, 1995 at 10:00 a.m., at the Warners Fire Department fire hall, Newport Road, Warners, New York, and will continue if necessary on May 24, 1995. Applicant has the burden of proof and will present its case first, followed by Staff, the Town and Pure.

________________________
Kevin J. Casutto
Administrative Law Judge

May 17, 1994
Albany, New York

TO: Service List

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