Decision Date: July 21, 1998

Panel: Toby Vigod

Keywords: Waste Management Act – ss. 33(2), 3(5)(c), 1, 31(5); Cemetery and Funeral Services Act – ss. 16, 93; statutory interpretation; “Crematorium Guidelines for Application of a Certificate of Operation;” particulate emissions

This was an appeal against the decision of the Regional Waste Manager (the “RWM”) to issue a Pollution Prevention Order against First Memorial. The Appellant argued that the RWM lacked jurisdiction to issue the Order, or any order that could affect the disposition of human remains by facilities licensed to operate under the Cemetery and Funeral Services Act. In addition, the Appellant argued that it is exempt, according to section 395) of the Waste Management Act (“WMA”). This was a preliminary decision, only, on the issue of whether or not the Manager had the jurisdiction to make the Order.

The Board found that the WMA and the Cemetery and Funeral Services Act could be read together. The Board found that when a crematorium is not operating in compliance with a permit or regulation under the Cemetery and Funeral Services Act, then the exemption for crematoria in section 3(5) of the WMA ceases to apply. Once that has occurred, the RWM has the jurisdiction to issue a Pollution Prevention Order to the operators of the crematorium. The Board found that the one exception to the exemption is section 31 of the WMA, which specifically allows for the issuance of a Pollution Abatement Order, regardless of the exemption under section 3(5) of the WMA. The Board found that that was not the section under consideration here. The Board concluded that the RWM has the jurisdiction to issue a Pollution Prevention Order with regard to an activity regulated under the Cemetery and Funeral Services Act. The Board ordered that an interim stay of the Order be extended until there was a decision on the merits of the appeal.