In the last few years, EPA has increasingly employed the questionable technique of "contingent management" to regulate wastes under the federal Resource Conservation and Recovery Act (RCRA) in order to limit the costs and avoid the stigma of hazardous waste classification. Through the technique of contingent management, EPA has exempted materials from classification as hazardous waste on the condition that the materials are managed in the particular manner specified in the regulation. The ultimate bootstrap, contingent management allows EPA to regulate non-hazardous wastes over which it has no statutory jurisdiction. Perhaps more troubling, contingent management allows EPA to avoid the specific statutory scheme adopted by Congress for the regulation of hazardous wastes.
Jeffrey M. Gaba,
Regulation By Bootstrap: Contingent Management of Hazardous Wastes Under the Resource Conservation and Recovery Act,
Yale J. on Reg.
Available at: http://digitalcommons.law.yale.edu/yjreg/vol18/iss1/3