N.Y. Comp. Codes R. & Regs. tit. 6 § 360.13

Current through Register Vol. 46, No. 17, April 24, 2024

Section 360.13 - Special requirements for predetermined beneficial use of fill material

(a) Applicability.

(1) This section applies to the use of excavated material as fill under a pre-determined beneficial use, including fill distributed for reuse from facilities subject to regulation under Subpart 361-5 of this Title;

(2) Excavated material that does not meet the requirements of this section must be managed at a facility authorized to receive the excavated material or used pursuant to a case-specific beneficial use determination in accordance with section 360.12(d) of this Part.

(3) This section does not apply to excavated material sent to facilities subject to regulation under Subpart 361-5 of this Title.

(b) Waste cessation. Excavated material ceases to be solid waste in accordance with the following:

(1) Fill Type 1

(i) Fill Type 1 generated outside of the New York City Metropolitan Area Waste Impact Zone - once a determination has been made that the material is Fill Type 1;

(ii) Fill Type 1 generated within Nassau, Suffolk, Westchester and Putnam Counties - once the material is delivered to the site of reuse.

(iii) Fill Type 1 cannot be generated within the City of New York.

(2) Fill Type 2 and Fill Type 3

(i) Fill Type 2 and Fill Type 3 generated outside of the New York City Metropolitan Area Waste Impact Zone - once a determination has been made that the material is Fill Type 2 or Fill Type 3.

(ii) Fill Type 2 and Fill Type 3 generated within the New York City Metropolitan Area Waste Impact Zone - once the material is delivered to the site of reuse.

(3) Fill Type 4 and Fill Type 5 - once the material is delivered to the site of reuse.

(c) Notification requirements.

(1) Notification in the City of New York. For Fill Type 2, Fill Type 3, Fill Type 4 and Fill Type 5 generated within the City of New York, the department must be notified at least five days before the first load greater than 10 cubic yards is planned to be transported from the site of excavation directly to a site of reuse. Notifications must be made on forms acceptable to the department and must include any information required by the department, including analytical data required by this section. The department reserves the right to inspect any site of excavation or site of reuse of fill.

(2) Notification of fill placement. For Fill Type 4 and Fill Type 5 generated outside the City of New York, the department must be notified at least five days before the first load greater than 10 cubic yards is planned to be transported directly from the site of excavation to the site of reuse. Notification must be made on forms acceptable to the department and must include any information required by the department, including the analytical data required by this section. The department reserves the right to inspect any site receiving fill.

(d) Testing requirements for excavated material as fill. Excavated material that is not otherwise excluded or exempt from regulation under this section must be sampled and analyzed pursuant to subdivision (e) of this section if:

(1) the excavated material originates from a location within the City of New York unless the quantity of excavated material does not exceed 10 cubic yards from one site and the 10 cubic yards or less of material does not exhibit historical evidence of contamination based on site use, reported spill events, or visual and other indicators (odors, etc.) of chemical or physical contamination; or

(2) the excavated material originates from a location outside the City of New York and either one of the following occur:

(i) there is historical evidence of contamination based on site use, reported spill events, or visual and other indicators (odors, etc.) of chemical or physical contamination discovered prior to excavation; or

(ii) visual indication of chemical or physical contamination is discovered during excavation.

(e) Sampling and analysis requirements for excavated material as fill.

(1) Sample method and frequency. Samples must be representative of the fill. The sampling program must be designed and implemented by or under the direction of a qualified environmental professional (QEP), using Table 1 below as a minimum sampling frequency. Written documentation of the sampling program with certification from the QEP that samples were representative of the fill must be retained for three years after the sampling occurs and must be provided to the department upon request. TABLE 1: Minimum Analysis Frequency for Fill

Fill Quantity (cubic yards)	Minimum Number of Analyses for Volatile Organic Compounds, if Required	Minimum Number of Analyses for all other parameters
0-300	2	1
301-1000	4	2
1001-10,000	6	3
10,001+	Two for every additional 10,000 cubic yards or fraction thereof	One per every additional 10,000 cubic yards or fraction thereof

(2) Analytical parameters. Fill samples must be analyzed for:

(i) the Metals, PCBs/Pesticides, and Semivolatile organic compounds listed in section 375-6.8(b) of this Title;

(ii) asbestos, if suspect asbestos-containing material is observed as determined by the New York State Department of Labor or a New York State Department of Labor certified inspector. If sampling is required, at least two samples must be collected from each suspect asbestos-containing excavated material to be used;

(iii) volume of physical contaminants, if present, based on visual observation; and

(iv) volatile organic compounds listed in section 375-6.8(b) of this Title, if their presence is possible based on site events such as an historic petroleum spill, odors, photoionization detector meter or other field instrument readings.

(3) Laboratory and analytical requirements. Laboratory analyses must be performed by a laboratory currently certified by the New York State Department of Health's Environmental Laboratory Approval Program (ELAP).

(f) Acceptable fill uses.

Fill can be beneficially used in accordance with table 2 below.

TABLE 2: Fill Beneficial Use

Fill Type	Fill End Use	Physical Criteria	Maximum Concentration Levels
Fill Type 1 (F1)	Any end use.	Only soil, sand, gravel, or rock which is generated outside of New York City with no evidence of historical contamination based on site use, reported spill events, or visual or other indication (odors, etc.) of chemical or physical contamination; no non-soil constituents. Must not produce objectionable petroleum or other odors.	No testing required.
Fill Type 2 (F2)	Any setting where the fill meets the engineering criteria for use, except: agricultural land used for raising livestock or producing animal products for human consumption. Fill Type 2 may also be used in the same manner as Fill Type 3, Fill Type 4 and Fill Type 5.	Only soil, sand, gravel or rock; no non-soil constituents. Must not produce objectionable petroleum or other odors.	Lower level between Protection of Public Health-Residential Land Use and Protection of Groundwater Soil Cleanup Objectives in section 375-6.8(b) of this Title.
Fill Type 3 (F3)	Any setting where the fill meets the engineering criteria, for use, except : 1. Undeveloped land; and 2. Agricultural crop on land used for raising livestock or producing animal products for human consumption. If used on residential property, material must be under impermeable surface or under a minimum three inches of Fill Type 1, Fill Type 2 or commercial soil. Fill Type 3 may also be used in the same manner as Fill Type 4 and Fill Type 5.	Only soil, sand, gravel, and de minimis amounts of brick, concrete or asphalt; no other non-soil constituents. Must not produce objectionable petroleum or other odors.	Lower level between Protection of Public Health-Residential Land Use and Protection of Groundwater Soil Cleanup Objectives in section 375-6.8(b) of this Title.
Fill Type 4 (F4)	Engineered use for embankments or subgrade: A) in transportation corridors, or B) on sites where in-situ materials contain higher levels of contaminants than Fill	No volume limit for granular, compactible non-soil constituents.1	Same levels as Fill Type 2, except that polycyclic aromatic hydrocarbons must not exceed 3 mg/kg (dry weight) total benzo(a) pyrene (BAP) equivalent.2
	Type 4 or Fill Type 5 criteria. Must be placed above the seasonal highwater table. May also be used in the same manner as Fill Type 5, except in locations where using Fill Type 5 is prohibited in accordance with paragraph 360.13(g)(2).		No greater than one percent by weight for any single suspect asbestos-containing material.
			In Nassau or Suffolk County, Individual polycyclic aromatic hydrocarbons must not exceed Protection of Groundwater Soil Cleanup Objectives in the table in section 375-6.8(b) of this Title. (BAP equivalent does not apply.)
Fill Type 5 (F5)	Engineered use under foundations and pavements above the seasonal highwater table.3	No volume limit for granular, compactible non-soil constituents.1	Same levels as Fill Type 2, except metals must not exceed Protection of Public Health-Commercial Soil Cleanup Objectives in the table in section 375-6.8(b) of this Title; and BAP equivalent must not exceed 3 mg/kg (dry weight).2 No greater than one percent by weight for any single suspect asbestos-containing material.

Footnotes

¹ Granular, compactible non-soil constituents exclude plastic, gypsum wallboard, wood, paper, or other material that may readily degrade or produce odors.

² Benzo(a)pyrene (BAP) equivalent is calculated using the following formula: BAP Equivalent = 1 x conc. Benzo(a)pyrene + 0.1 x [conc. Benz(a)anthracene + conc. Benzo(b)fluoranthene + conc. Benzo(k)fluoranthene + conc. Dibenz(a,h)anthracene + conc. Indeno(1,2,3-c,d)pyrene] + 0.01 x conc. Chrysene (All concentrations in mg/kg or ppm, dry weight.)

³ If foundation or pavement is not installed within 365 days of fill placement, then the fill placement will constitute a prohibited disposal.

(g) Other fill use criteria.

(1) Placement of Fill Type 4 is prohibited within the following counties, with the exception that Fill Type 4 can be reused as described in this section within the same county in which it was generated: Putnam, Westchester, Nassau and Suffolk.

(2) Placement of Fill Type 5 is prohibited in the following counties: Putnam, Westchester, Nassau and Suffolk.

(3) Use of Fill Type 4 or Fill Type 5 can only occur at a project that is authorized by an approved local building permit or other municipal authorization, if required. The material must be used within 30 days of arriving at the project site.

(4) Payment. A person must not receive payment or other form of consideration for allowing beneficial use of Fill Type 3, Fill Type 4 or Fill Type 5 on land under that person"s control.

(5) Recordkeeping. The generator, processor, and receiver of fill subject to sampling under this section must retain records of fill quantities, with analytical data, for a minimum of three years after the fill is removed or received, as applicable. These records must be made available to the department upon request.

N.Y. Comp. Codes R. & Regs. Tit. 6 § 360.13

Adopted New York State Register September 20, 2017/Volume XXXIX, Issue 38, eff. 11/4/2017

Amended New York State Register June 7, 2023/Volume XLV, Issue 23, eff. 7/22/2023

Amended New York State Register June 21, 2023/Volume XLV, Issue 25, eff. 7/23/2023