1. (1) fill material sent to facilities subject to regulation under Subpart 361-5 of this Title; and

2. (2) fill material generated outside of New York City with no evidence of historical impacts such as reported spill events, or visual or other indication (odors, etc.) of chemical or physical contamination as identified in section 360.12(c)(1)(ii) of this Part.

   (b) Waste cessation.

   Fill material ceases to be solid waste in accordance with the following:

3. (1) restricted-use fill and limited-use fill - once delivered to the site of reuse;
4. (2) general fill generated outside of the City of New York – once a determination that it is general fill has been made;

5. (3) general fill generated within the City of New York - once delivered to the site of reuse.

   (c) Exemption for on-site reuse of fill material.

   Fill material used as backfill for the excavation from which the fill material was taken, or as fill in areas of similar physical characteristics on the project property is exempt from regulation under this Part. If fill material exhibits historical or visual evidence of contamination (including odors), and will be used in an area with public access, the relocated fill material must be covered with a minimum of 12 inches of soil or fill material that meets the criteria for general fill, as defined in this Part. This provision does not apply to sites which are subject to a department-approved or undertaken program pursuant to Part 375 of this Title.

   (d) Testing requirements for fill material.

   Fill material that is not otherwise excluded or exempt from regulation under this section must sampled and analyzed pursuant to subdivision (e) of this section if:

6. (1) the fill material originates from a location within the City of New York unless the quantity of fill material does not exceed 10 cubic yards from one site and the 10 cubic yards or less of material does not contain historical evidence of impacts such as reported spill events, or visual or other indication (odors, etc.) of chemical or physical contamination;

7. (2) the fill material originates from a location outside the City of New York if:

   1. (i) there is historical evidence of impacts such as reported spill events, or visual or other indication (odors, etc.) of chemical or physical contamination;
   2. (ii) the fill material originates from a site with industrial land use as defined in section 375-1.8(g)(2)(iv) of this Title; or

   3. (iii) if, during excavation, visual indication of chemical or physical contamination is discovered.

      (e) Sampling and analysis requirements for fill material.

8. (1) Sample method and frequency. Samples must be representative of the fill material. The sampling program must be designed and implemented by or under the direction of a qualified environmental professional (QEP), using the table below as a minimum sampling frequency. Written documentation of the sampling program with certification from the QEP that samples were representative of the fill material 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 Material

   Fill Material 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

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

   1. (i) the Metals, PCBs/Pesticides, and Semivolatile organic compounds listed in section 375-6.8(b) of this Title;
   2. (ii) asbestos if demolition of structures has occurred on the site;
   3. (iii) volume of physical contaminants, if present, based on visual observation; and
   4. (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.

10. (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 material uses.

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

    TABLE 2: Fill Material Beneficial Use

    Fill Material Type	Fill Material End Use	Physical Criteria	Maximum Concentration Levels
    General Fill	Any setting where the fill material meets the engineering criteria, for use, except: 1. Undeveloped land; and 2. Agricultural crop land. General Fill may also be used in the same manner as Restricted-Use Fill and Limited-Use Fill.	Only soil, sand, gravel or rock; no non-soil constituents.	Lower of Protection of Public Health-Residential Land Use and Protection of Groundwater in section 375-6.8(b) of this Title.
    Restricted-Use Fill1	Engineered use for embankments or subgrade in transportation corridors, or on sites where in-situ materials exceed Restricted-Use Fill or Limited-Use Fill criteria. Must be placed above the seasonal high water table. May also be used in the same manner as Limited-Use Fill.	Up to 40 percent by volume inert, non-putrescible non-soil constituents.2	General Fill criteria except that up to 3 mg/kg (dry weight) total benzo(a)pyrene (BAP) equivalent.3 No detectable asbestos. In Nassau or Suffolk County – BAP equivalent does not apply. Polycyclic aromatic hydrocarbons must not exceed Protection of Groundwater Soil Cleanup Objectives in section 375-6.8(b) of this Title.
    Limited-Use Fill1	Engineered use under foundations and pavements above the seasonal high water table.4 Placement in Nassau and Suffolk Counties is prohibited.	No volume limit for inert, non-putrescible non-soil constituents.2	General Fill criteria, except up to Protection of Public Health-Commercial SCOs for metals; up to 3 mg/kg (dry weight) benzo(a)pyrene equivalent is allowed.3 No detectable asbestos.

    (g) Other fill material use criteria.

11. (1) Payment. A person must not receive payment or other form of consideration for allowing beneficial use of restricted-use fill or limited-use fill material on land under that person’s control.
12. (2) Notification in the City of New York. The department must be notified at least five days in advance of transfers of general fill, restricted-use fill and limited-use fill material generated in, imported to, or relocated within the City of New York in amounts greater than 10 cubic yards. Notifications must be made on forms or in a manner acceptable to the department and must include any analytical data required by this section. The department reserves the right to inspect any site of generation or placement of fill material.
13. (3) Notification of fill material placement. For restricted-use fill and limited-use fill material, the department must be notified at least 5 days before delivery of greater than 10 cubic yards of fill material. Notification must be made on forms or in a manner acceptable to the department and must include any analytical data required by this section. The department reserves the right to inspect any site receiving fill material.
14. (4) Recordkeeping. The generator, processor, and receiver of fill material subject to sampling under this section must retain records of fill material quantities, with analytical data, for a minimum of three years after the fill material is removed or received, as applicable. These records must be made available to the department upon request.

15. (5) Transport.

    1. (i) Transport of fill material that originates in the City of New York is subject to the requirements of Part 364 of this Title.
    2. (ii) Transport of limited-use fill and restricted-use fill generated outside of New York City, is subject to the requirements of Part 364 of this Title.
    3. (iii) Limited-use fill and restricted-use fill generated outside of Nassau and Suffolk counties is prohibited from being transported to any destination within Nassau or Suffolk County.
16. (6) Fill material not used in accordance with this section is a solid waste and must be managed at a facility authorized to receive it, or used pursuant to a case-specific beneficial use determination in accordance with section 360.12(d) of this Part.

(a) Applicability.

This section applies to the direct use of fill material under a pre-determined beneficial use. This section does not apply to: