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.
Although one case appears to endorse the use of contingent management, the most significant issues raised by this technique have not been addressed. The legality of the contingent management technique is far from clear. Among other things, EPA is relying on the factors of cost and stigma that may not properly be considered in classifying wastes as hazardous, and EPA is avoiding specific statutory requirements that would otherwise apply to hazardous wastes. Furthermore, the rationale used by EPA to justify contingent management is essentially boundless; EPA could potentially eliminate the statutory requirements of RCRA by regulating any otherwise hazardous waste through contingent management. EPA is, in effect, asserting discretion to regulate such wastes in any manner it deems appropriate. This is a position rejected by Congress when it amended RCRA in 1984 to constrain EPA's discretion. Given these concerns, courts should closely scrutinize EPA's use of contingent management and not defer to EPA's construction of its authority under RCRA.
After discussing the rationale and weaknesses of contingent management, this Article concludes with recommendations for a more rational and consistent means of classifying and regulating hazardous waste.
Yale Journal on Regulation
Jeffrey M. Gaba, Regulation by Bootstrap: Contingent Management of Hazardous Wastes under the Resource Conservation and Recovery Act, 18 Yale J. on Reg. 85 (2001)