REGULATORY FLEXIBILITY SCREENING ASSESSMENT

FOR THE FINAL RULE:

IDENTIFICATION OF NON-HAZARDOU S SECONDARY MATERIALS THAT ARE

SOLID WASTE

February 20111 This document discusses the Regulatory Flex ibility Screening Analysis developed in support of the final rule entitled, Identification of Non-Hazardous Seconda ry Materials That Are Solid Waste (the NHSM Rule). The Regulatory Fl exibility 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 flexibi lity analysis of any rule subject to notice and comment rulemaking requirements under the Administ rative Procedure Act or any other statute. This analysis must be completed unless the ag ency 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 Ag ency (EPA) assessed the potential small entity impacts using a screening analys is. 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 ru le 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 jurisdic tion 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 include s 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 ingr edients in combustion
units are solid wastes under the Resour ce 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 st andards 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 combus tion 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, a nd thus would be regulat ed under Section 129 or
Section 112 of the CAA. Furt her, the NHSM rule, itself, does not include any emission standards and does not require ch anges in the management or us e of secondary materials.

1 Specifically, the other three rulemakings include : National Emission Standards for Hazardous Air
Pollutants for Area Sources: Industri al, Commercial, and Institutional Boilers; National Emission Standards for
Hazardous Air Pollutants for Industri al/Commercial/Institutional Boilers and Process Heaters; and Standards of Performance for New Stationary Sources and Emission Guid elines 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 ma nufacturing or commercial process, and can include post-consumer material, off-sp ecification commercial chemical products or manufacturing chemical intermediates, post-industrial material, and scrap.2 Consideration of this regulatory context is cr itical 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 generate s. In this instance, it is the promulgation of the air rules that engenders societal costs and bene fits. 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 im pacts associated with the four-rule package entirely to the air rule s, including costs to the regulated co mmunity and corresponding benefits to
human health and the environment. 4

EPA extends this line of reasoning to its sc reening 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 anal yses prepared in suppor t of the air rules.

Finally, we note that the NHSM Rule esta blishes 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 ma terials for their petitions, the approach for this process would provide small entities with flexibility to mini mize their information collection
burdens under the rule. That is, they would have the flex ibility to develop their own individualized approaches for determining wh ether the materials that they burn meet the established non-waste criteria. In addition, be cause the petition process is voluntary, small entities would not be required to submit a ny paperwork to EPA or state agencies.

3 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 additi on, these assessments were designed to adhere to EPA and Office of Management and Budget guid elines and procedures.