Changes to Excavated Material Regulations and Impacts on Fill Type

Regulations for the management of Excavated Material have recently been revised under New York State Part 360 regulations. All soil, rock, and other material excavated during construction or maintenance activities is defined as Excavated Material. Excavated Material is considered a regulated waste material requiring proper disposal unless it is used in accordance with an appropriate Fill Type as determined by a qualified environmental professional.  Fill is categorized into five different types based on the location where the Excavated Material is generated, and its physical characteristics and applicable contaminants, as presented below:

Fill Type 1 (F1)

• Physical Criteria: Only soil, sand, gravel, or rock is generated outside of New York City with no evidence of historical contamination, and does not produce objectionable petroleum, or other odors.
• End Use: Any end-use.
• Maximum Concentration Levels: No testing is required.
• Waste Exemption: This material is no longer considered waste once a determination has been made that the material is Fill Type 1. Fill Type 1 determinations cannot be made for Excavated Material generated within the City of New York. If generated within Nassau, Suffolk, Westchester, or Putnam Counties, the material ceases to be a waste once delivered to the site of reuse.

Fill Type 2 (F2)

• Physical Criteria: Only soil, sand, gravel, or rock (no non-soil constituents) that does not produce objectionable petroleum or other odors.
• End Use: Any setting where the fill meets the engineering criteria for use, except on undeveloped or agricultural land.
• Maximum Concentration Levels: Lower level between Protection of Public Health-Residential Land Use and Protection of Groundwater Soil Cleanup Objectives (see 6 NYCRR Part 375-6.8(b)).
• Waste Exemption: This material is no longer considered waste once a determination has been made that the material is Fill Type 2. If generated within the New York City Metropolitan Area Waste Impact Zone, the material ceases to be waste once delivered to the site of reuse.

Fill Type 3 (F3)

• Physical Criteria: Only soil, sand, gravel, and de minimus amounts of brick, concrete, or asphalt (no other non-soil constituents) that do not produce objectionable petroleum or other odors.
• End Use: Any setting under Fill Type 2. If used on residential property, the material must be under an impermeable surface or a minimum of three inches of Fill Type 1, Fill Type 2, or commercial soil.
• Maximum Concentration Levels: Lower level between Protection of Public Health-Residential Land Use and Protection of Groundwater Soil Cleanup Objectives (see 6 NYCRR Part 375-6.8(b)).
• Waste Exemption: This material is no longer considered waste once a determination has been made that the material is Fill Type 3. If generated within the New York City Metropolitan Area Waste Impact Zone, the material ceases to be waste once delivered to the site of reuse.

Fill Type 4 (F4)

• Physical Criteria: Granular, compactible non-soil constituents (excluding plastic, gypsum wallboard, wood, paper, or other material that may readily degrade or produce odors).
• End Use: Engineered use in embankments or subgrade within transportation corridors, or on sites where in-situ materials contain higher levels of contaminants than Fill Type 4 or Fill Type 5 criteria; however, it must be placed above the seasonal high water table. Placement is prohibited in Putnam, Westchester, Nassau, and Suffolk counties unless reused within the same county in which it was generated.
• Maximum Concentration Levels: Same levels as Fill Type 2 and 3, except polycyclic aromatic hydrocarbons must not exceed 3 mg/kg (dry weight) total benzo(a)pyrene (BAP) equivalent, nor contain greater than one percent by weight for any single suspect asbestos-containing material (ACM). If generated in Nassau or Suffolk County, the BAP equivalent does not apply, and individual polycyclic aromatic hydrocarbons must not exceed Fill Type 2 and 3 criteria.
• Waste Exemption: This material is no longer considered a waste once a determination of Fill Type 4 is made, and the material is delivered to the site of reuse.

Fill Type 5 (F5)

• Physical Criteria: Granular, compactible non-soil constituents (excluding plastic, gypsum wallboard, wood, paper, or other material that may readily degrade or produce odors).
• End Use: Engineered use under foundations and pavements above the seasonal high water table.
• Maximum Concentration Levels: Same levels as Fill Type 2 and 3, except that metals must not exceed Protection of Public Health-Commercial Soil Cleanup Objectives, and the BAP equivalent must not exceed 3 mg/kg (dry weight), nor contain greater than one percent by weight for any single suspect ACM. Placement is prohibited in Putnam, Westchester, Nassau, and Suffolk counties.
• Waste Exemption: This material is no longer considered a waste once a determination of Fill Type 5 is made, and the material is delivered to the site of reuse.

NYSDEC Notifications
In New York City, generation of Fill Types 2, 3, 4, and 5 require Department notification at least 5 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. Outside of New York City, only Fill Types 4 and 5 require notification to be provided to the Department. Local authorities having jurisdiction may require approval beyond determinations provided by a qualified environmental professional.

Additional Information
Excavated Material Regulations are covered in 6 NYCRR Part 360.  Linked here is the revised Part 360-366 and 369 texts for more detailed information regarding Excavated Material and Fill: Full Text of Part 360-366, 369.  If you have any questions about Excavated Material and reuse options, please reach out to B&L Environmental Project Engineer Josh Thomas, P.E.