REGULATORY FLEXIBILITY SCREENING ASSESSMENT 

FOR THE FINAL RULE: 

IDENTIFICATION OF NON-HAZARDOUS SECONDARY MATERIALS THAT ARE 

SOLID WASTE

February 2011 
1 

This document discusses the Regulatory Flexibility Screening Analysis developed in 

support of the final rule entitled, Identification of Non-Hazardous Secondary Materials That Are 

Solid Waste (the NHSM Rule). The Regulatory Flexibility Act (RFA) as amended by the Small 

Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 USC 601 et seq., generally 

requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and 

comment rulemaking requirements under the Administrative Procedure Act or any other statute. 

This analysis must be completed unless the agency certifies that the rule will not have a 

significant economic impact on a substantial number of small entities. As described in further 

detail below, the US Environmental Protection Agency (EPA) assessed the potential small entity 

impacts using a screening analysis. Based upon this analysis, EPA has determined that the 

NHSM rule will not have a significant economic impact on a substantial number of small 

entities. 

For purposes of assessing the impacts of this rule on small entities, small entity is defined 

as: (1) a small business as defined by the Small Business Administration’s (SBA) regulations at 

13 CFR 121.201; (2) a small governmental jurisdiction that is a government of a city, county, 

town, school district or special district with a population of less than 50,000; and (3) a small 

organization that is any not-for-profit enterprise which is independently owned and operated and 

is not dominant in its field. 

As discussed in the preamble to the final rule, EPA is promulgating the NHSM Rule as 

part of a four-rule package that also includes the area source Boilers Rule, the major source 

Boilers Rule, and the CISWI Rule.1

 The three affiliated rules establish national emission 

standards under the Clean Air Act (CAA) for affected sources. Relatedly, the NHSM Rule 

identifies which non-hazardous secondary materials used as fuels or ingredients in combustion 

units are solid wastes under the Resource Conservation and Recovery Act (RCRA).2 The 

meaning of “solid waste” as defined under RCRA determines whether a combustion unit is 

required to meet the emissions standards for solid waste incineration units issued under section 

129 of the Clean Air Act (CAA) or the emissions standards for commercial, industrial, and 

institutional boilers issued under section 112 of the CAA. 

Thus, the NHSM Rule does not affect any combustion units directly. The rule provides a 

basis, rather, for determining whether non-hazardous secondary materials burned in a 

combustion unit are, or are not, solid wastes, and thus would be regulated under Section 129 or 

Section 112 of the CAA. Further, the NHSM rule, itself, does not include any emission 

standards and does not require changes in the management or use of secondary materials. 

                                                            1

 Specifically, the other three rulemakings include: National Emission Standards for Hazardous Air 

Pollutants for Area Sources: Industrial, Commercial, and Institutional Boilers; National Emission Standards for 

Hazardous Air Pollutants for Industrial/Commercial/Institutional Boilers and Process Heaters; and Standards of 

Performance for New Stationary Sources and Emission Guidelines for Existing Sources: Commercial and Industrial 

Solid Waste Incineration (CISWI) Units. 

2

 A “secondary material” is any material that is not the primary product of a manufacturing or commercial 

process, and can include post-consumer material, off-specification commercial chemical products or manufacturing 

chemical intermediates, post-industrial material, and scrap. 
2 

Consideration of this regulatory context is critical to the proper assessment of the four 

rules’ respective economic impacts. The value of any regulatory action is traditionally measured 

by the net change in social welfare that it generates. In this instance, it is the promulgation of the 

air rules that engenders societal costs and benefits. Because the NHSM Rule does not directly 

cause behavioral change at combustion units, the rule alone cannot directly invoke any costs or 

benefits.3 EPA therefore attributes the regulatory impacts associated with the four-rule package 

entirely to the air rules, including costs to the regulated community and corresponding benefits to 

human health and the environment.4

 

EPA extends this line of reasoning to its screening level assessment of the NHSM Rule’s 

impacts on small entities. Consistent with the discussion above, no small entities are directly 

regulated by the rule. As such, potential impacts to small entities in affected sectors are 

addressed in the regulatory flexibility analyses prepared in support of the air rules. 

Finally, we note that the NHSM Rule establishes a non-waste determination petition 

process for non-hazardous secondary materials. Although small entities choosing to submit a 

petition would incur costs to compile supporting materials for their petitions, the approach for 

this process would provide small entities with flexibility to minimize their information collection 

burdens under the rule. That is, they would have the flexibility to develop their own 

individualized approaches for determining whether the materials that they burn meet the 

established non-waste criteria. In addition, because the petition process is voluntary, small 

entities would not be required to submit any paperwork to EPA or state agencies. 

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 Excluding a limited administrative burden related to rule familiarization and the costs concerning the 

submission of a voluntary petition for a non-waste determination. 

4

 We note that, in the development of the regulatory impact analyses prepared for the air rules, EPA worked 

to ensure that the methodologies and data applied in these assessments captured appropriate RCRA-related costs 

(e.g., secondary material diversions). In addition, these assessments were designed to adhere to EPA and Office of 

Management and Budget guidelines and procedures.