APPEAL NO. 98-WAS-03(a)

In the matter of an appeal to the Environmental Appeal Board under section 44 of the Waste Management Act, R.S.B.C., 1996, c. 482.

BETWEEN:	Service Corporation International (Canada) Limited on behalf of First Memorial Services (1993) Ltd.		APPELLANTS
AND:	Regional Waste Manager		RESPONDENT
AND:	The Adeline Residents Association		THIRD PARTY
BEFORE:	A Panel of the Environmental Appeal Board
	Toby Vigod	Chair

DATE OF HEARING: Conducted by way of written submissions concluding on April 6, 1998

APPEARING:	For the Appellant:	David H. Searle Q.C., Counsel
	For the Respondent:	Dennis A. Doyle, Counsel
	For the Third Party:	Waldemar Braul, Counsel

PRELIMINARY ISSUE OF JURISDICTION

APPEAL

This is an appeal against the February 5, 1998 decision of D.F. Brown, Regional Waste Manager, to issue a Pollution Prevention Order against First Memorial Services (1993) Ltd. ("First Memorial"). The Order required First Memorial to investigate, report and take any measures necessary to prevent pollution from its crematorium.

First Memorial seeks to have the Order vacated for lack of jurisdiction. It argues that the Regional Waste Manager was without jurisdiction to make the Order affecting the operation of its crematorium. In the alternative, it seeks to have the Order vacated on the grounds that the Regional Waste Manager erred in finding reasonable grounds that the operation of First Memorial’s crematorium is likely to release a substance that will cause pollution of the environment. In the further alternative, First Memorial seeks an extension of time to comply with the Order.

By letter dated March 9, 1998, the Board decided that the question of the Regional Waste Manager’s jurisdiction to issue the Order should be resolved as a preliminary matter. If the Board finds that the Regional Waste Manager had jurisdiction to issue the Order, a hearing will be scheduled on the merits of the appeal.

In that same letter, the Board granted the Adeline Residents Association full party status in the appeal, concluding that it had a sufficient interest in the matter as neighbours of the facility.

It should also be noted that in the March 9, 1998 letter, the Board granted an interim stay of the Order pending a decision on the Regional Waste Manager’s jurisdiction.

The jurisdiction of the Environmental Appeal Board ("the Board") to hear this appeal is found in section 44 of the Waste Management Act and section 11 of the Environment Management Act.

BACKGROUND

First Memorial owns a funeral home facility in Saanich, British Columbia. On July 15, 1996, it applied to the Registrar of Cemetery and Funeral Services for a Certificate of Operation to expand the existing facility by establishing a crematorium on the site.

On December 16, 1996, the District of Saanich issued a development permit and a building permit, authorizing the development to proceed. Renovations began in February 1997 with the installation of an Ener-Tek Model 1 E43-ET gas fired cremator. After testing, a Certificate of Operation was issued on September 15, 1997, by the Registrar of Cemetery and Funeral Services, pursuant to provisions of the Cemetery and Funeral Services Act.

On February 5, 1998, the Regional Waste Manager issued a Pollution Prevention Order to First Memorial. The Order was issued after neighbours of the crematorium had observed and videotaped what is described as "excessive smoke" emanating from the facility.

In the Order, the Regional Waste Manager states that "smoke may be considered a health hazard." Therefore, he states: "I am satisfied on reasonable grounds that the operation of the crematory is being performed in a manner that is likely to release a substance that will cause pollution of the environment." Pursuant to section 33(2) of the Waste Management Act, he ordered First Memorial to do the following:

• Engage a professional engineer, licensed in British Columbia, qualified to undertake investigations, tests, surveys or other action necessary to carry out an assessment of the crematory, its operation, and its impact on the environment. A report of those undertakings, signed by the professional engineer, had to be submitted by March 15, 1998.
• Acquire, construct or alter any works or undertake any measures that were reasonably necessary to prevent pollution. The necessary works had to be completed by April 30, 1998, and a report that detailed changes made to the system, an operating plan for the system, and test results obtained after modifications to the system, had to be signed by the professional engineer and submitted by May 15, 1998.

On March 3, 1998, Service Corporation International (Canada) Limited, owner of First Memorial, filed an appeal with the Board on behalf of First Memorial. As stated above, one of its grounds of appeal is that the Regional Waste Manager lacked jurisdiction to issue the Order. First Memorial argues that by operation of section 3(5)(c) of the Waste Management Act, the Regional Waste Manager was without jurisdiction to make 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.

ISSUES

Whether section 3(5)(c) of the Waste Management Act operates to exempt crematoria licensed to operate under the Cemetery and Funeral Services Act from the provisions of the Waste Management Act such that the Regional Waste Manager was without jurisdiction to issue the Pollution Prevention Order.

RELEVANT LEGISLATION

Sections 3(2), 3(3), and 3(4) of the Waste Management Act set out general prohibitions against the introduction of waste into the environment. They provide as follows:

3(2) Subject to subsection (5), a person must not, in the course of conducting an industry, trade or business, introduce or cause or allow waste to be introduced into the environment.

(3) Subject to subsection (5), a person must not introduce or cause or allow to be introduced into the environment, waste produced by any prescribed activity or operation.

(4) Subject to subsection (5), a person must not introduce waste into the environment in such a manner or quantity as to cause pollution.

Section 1 of the Act defines "waste" to include

(a) air contaminants,
(b)litter,
(c) effluent,
(d) refuse,
(e)biomedical waste,
(f) special wastes, and
(g)any other substance designated by the Lieutenant Governor in Council.

The Appellant initially argued that human remains are not "waste" within the meaning of the Waste Management Act and therefore the Regional Waste Manager was without jurisdiction to issue the Order. The Board notes, however, that the subject Order is not attempting to regulate the disposition of human remains. The Order addresses a by-product of the disposal, i.e., air contaminants, which are clearly waste as defined in the Waste Management Act. Therefore, the arguments made in relation to the jurisdictional issue will focus on whether a Pollution Prevention Order can be issued in relation to air contaminants from the crematorium.

Section 3(5) sets out exceptions to the general prohibitions in sections 3(2)-(4). There are a wide variety of activities that are exempt from the general prohibitions. Subsection 3(5) states: (5) Nothing in this section or in a regulation made under subsection (3) prohibits any of the following:

(a)the disposition of waste in compliance with a valid and subsisting permit, approval, order or regulation, or with a waste management plan approved by the minister;
(b) the discharge into the air of an air contaminant from an incinerator operated under authority, licence or permit of a municipality;
(c) the disposition of human remains in crematoria in compliance with the Cemetery and Funeral Services Act
(d) the discharge of air contaminants authorized by a bylaw made under section 24(3)(d);,
(e) the burning of leaves, foliage, weeds, crops or stubble for domestic or agricultural purposes or in compliance with the Weed Control Act;
(f) the use of pesticides or biocides for agricultural, domestic or forestry purposes in compliance with the Pesticide Control Act, the Pest Control Products Act (Canada) and any other Act and regulation governing their use;
(g) burning if

(i) the burning is for land clearing, land grading or tilling,
(ii) the volume of material burned does not exceed in the aggregate 10 m3 per hectare per month,
(iii) the duration of any burning is less than 24 hours,
(iv) the land on which the burning takes place is a part of or contiguous with the land from which the material originates, and
(v) no material other than dry wood, paper, cardboard or diesel fuel oil is used as fuel to start, assist or enhance the burning, without the specific permission of a manager;

(h) fires set or controlled by a person acting under an order of a district manager, as defined under the Forest Act, or a local assistant, as defined under the Fire Services Act, if the district manager or local assistant

(i) orders the fire for training purposes, or
(ii) determines that a fire hazard exists and orders its removal by burning;

(i) emissions from steam powered or internal combustion engines in compliance, if applicable, with the Motor Vehicle Act and regulations;
(j) emission into the air of soil particles or grit in the course of agriculture or horticulture;
(k) the disposal of waste by a person other than a municipali

(i) by means of a system of waste disposal lawfully operated by a municipality or other public authority, and
(ii) in compliance with the rules and regulations that apply to that system;
(l) emission of an air contaminant from combustion of wood or fossil fuels used solely for the purpose of comfort heating of domestic, institutional or commercial buildings;
(m) emission of an air contaminant from food preparation in

(i) residential premises, or
(ii)retail food outlets.

Cemetery and Funeral Services Act." The Regional Waste Manager issued the Pollution Prevention Order under section 33 of the Waste Management Act. The relevant portions read as follows:

33 (2) If a manager is satisfied on reasonable grounds that an activity or operation has been or is being performed by a person in a manner that is likely to release a substance that will cause pollution of the environment, the manager may order a person referred to in subsection (3), at that person’s expense, to do any of the following:

(a) provide to the manager information the manager requests relating to the activity, operation or substance;
(b) undertake investigations, tests, surveys or any other action the manager considers necessary to prevent the pollution and report the results to the manager;
(c) acquire, construct or carry out any works or measures that are reasonably necessary to prevent the pollution;
(d) adjust, repair or alter any works to the extent reasonably necessary to prevent the pollution.

(5) The powers of a manager under this section may not be exercised in relation to any part of an activity or operation that is in compliance with the regulations or a permit, approval, order, waste management plan or operational certificate or an authorization made under the regulations.

For comparison purposes, the parties also refer to section 31. This section is similar to section 33 in that it also confers upon the manager the power to issue orders; however, section 31 deals with Pollution Abatement Orders, not Pollution Prevention Orders. In contrast to section 33, section 31 expressly overrides the exemptions set out in section 3(5). Section 31 states that

31 (5) The powers given by this section may be exercised even though the introduction of the substance into the environment is not prohibited under section 3 and despite

(a) the terms of any permit or approval; and
(b) the abandonment of any permit or approval, under section 16. [emphasis added]

Two sections of the Cemetery and Funeral Services Act are also relevant to this jurisdictional issue – section 16 and section 93. Section 16 outlines the obligations on the Registrar of Cemetery and Funeral Services with respect to the issuance of Certificates of Operation. It states that

16 (1) The registrar must not issue a certificate of operation for a crematorium until
(b) a professional engineer appointed by the registrar at the expense of the applicant for the certificate of operation certifies that the crematorium
(i) is completed on the approved site and built in accordance with the plans as approved;
(ii) is properly equipped with appliances suitable for the cremation of human remains; and
(iii) complies with any other prescribed standards.

Section 93 states

93 The Lieutenant Governor in Council may make regulations with respect to the following:
...


(b) the establishment of standards that govern the design of and emissions from crematoria and the appliances used for the cremation of human remains;

According to the parties, no such regulations have yet been enacted.

DISCUSSION and Analysis Whether section 3(5)(c) of the Waste Management Act operates to exempt crematoria licensed to operate under the Cemetery and Funeral Services Act from the provisions of the Waste Management Act such that the Regional Waste Manager was without jurisdiction to issue the Pollution Prevention Order.

The Appellant submits that it is the Cemetery and Funeral Services Act, not the Waste Management Act that regulates air emissions from crematoria. It points to sections 16(1)(b) and 93 of the Cemetery and Funeral Services Act in support of this argument. Section 16(1)(b) of that Act explicitly imposes a positive obligation on the Registrar with respect to the issuance of Certificates of Operation for crematoria by requiring the Registrar to ensure that a crematorium complies with any prescribed standards (i.e. regulations).

Section 93 authorizes Cabinet to make regulations with respect to the establishment of standards for emissions from crematoria. Although no regulations have yet been enacted, the Appellant argues that the legislative intent is clear - emissions from crematoria are intended to fall under the Cemetery and Funeral Services Act - not the Waste Management Act.

The Appellant submits that section 3(5)(c) of the Waste Management Act makes this clear. Section 3(5) of that Act specifically exempts the operation of the crematorium from the prohibitions in sections 3(2), (3) and (4) of the Waste Management Act – i.e., the prohibitions against introducing waste into the environment. The Appellant argues that this means that none of the other provisions of the Waste Management Act apply to crematoria unless expressly stated to apply – as in the case of section 31 (Pollution Abatement Orders), where the Legislature has authorized issuance of these orders where pollution is occurring, despite the fact that the activity is otherwise exempt.

The Respondent argues that the exemption for crematoria in section 3(5)(c) relates only to section 3 of the Waste Management Act. It submits that the Order in question was not made under section 3, but rather under section 33. Therefore the exemption provisions of section 3(5)(c) have no application. The Respondent submits that a statute is to be interpreted in its grammatical and ordinary sense and that where the words of a statute are in themselves precise and unambiguous, those words should be read in their ordinary and natural sense. The Respondent argues that the words themselves in this case are very explicit.

The Third Party agrees with the Respondent’s submission as it applies to the limited application of the section 3(5)(c) exemption. The Third Party also submits that when the Legislature enacted section 33 in 1993, it turned its mind to exemptions, and those exemptions are set out explicitly in section 33(5). The Third Party submits that none of these exemptions refer to crematoria.

The Appellant disagrees. It contends that if the sections are interpreted discretely, the section 3(5) exemptions would be unnecessary. This is because a manager would be able to circumvent the exemptions set out in section 3(5) by simply issuing an order under section 33. The Appellant argues that, had the Legislature intended to provide an official under the Waste Management Act with the jurisdiction to issue a Pollution Prevention Order under section 33, notwithstanding the section 3(5) exemptions, the Legislature would have stated so explicitly in section 33, as was done in section 31(5).

The Appellant states that persons who are subject to environmental regulation, and whose operations may be adversely affected by regulatory interference, ought to be able to discern clearly from the legislation that they may be subject to such regulation and interference.

The Respondent and Third Party note that there are no air emission standards established for crematoria under section 93 of the Cemetery and Funeral Services Act, and section 16(1)(b) does not give the Registrar the authority to impose environmental requirements on crematoria after the Certificate of Operation is issued. Therefore, the Third Party argues that, to fill the regulatory gap, it should be presumed that the Legislature intended that the environmental regulation of crematoria would be derived primarily from other truly environmental statutes, such as the Waste Management Act.

The Appellant submits that there is no gap in the legislation that would warrant an interpretation expanding the Regional Waste Manager’s jurisdiction to cover operations under the Cemetery and Funeral Services Act. It asserts that the absence of a regulation does not mean that there are no standards applied by the Registrar in respect of air emissions. In support of this, the Appellant submits a copy of the "Crematorium Guidelines for Application of a Certificate of Operation" which were applied by the Professional Engineer hired by the Registrar to review First Memorial’s application for a Certificate of Operation. The Board notes that these guidelines include technical requirements for carbon dioxide, carbon monoxide, oxygen, nitrogen, water and particulate emissions.

The Appellant further submits that the evidence of the Registrar, Ms. Freeman, and of the Professional Engineer whom she consulted, Mr. Mills, is that Ms. Freeman investigated and considered the Appellant’s proposed facility from the perspective of air emissions prior to her issuance of the Certificate of Operation.

The Board has reviewed all of these submissions and has concluded that the Waste Management Act and the Cemetery and Funeral Services Act can be read together. Section 3(5) of the Waste Management Act generally exempts crematoria from the provisions of the Waste Management Act provided that the crematoria are operating "in compliance with the Cemetery and Funeral Services Act." Section 33(5) of the Waste Management Act similarly exempts any regulated activity from the pollution prevention order provisions of the Act when that activity "is in compliance with the regulations or a permit." When a crematorium is not operating in compliance with a permit or regulation under the Cemetery and Funeral Services Act, the section 3(5) exemption ceases to apply. Once that has occurred, the Regional Waste Manager has the jurisdiction to issue a Pollution Prevention Order to the operators of the crematorium.

The one exception to these exemptions is section 31 of the Waste Management Act, which specifically allows for the issuance of a pollution abatement order regardless of an exemption under section 3(5) of the Waste Management Act. However, that section is not the one under consideration here.

The Board has, therefore, concluded that the Regional Waste Manager does have the jurisdiction to issue a Pollution Prevention Order with regard to an activity regulated under the Cemetery and Funeral Services Act.

DECISION

The Board has considered the preliminary question of jurisdiction and has concluded that the air emissions being released from the Appellant’s crematorium may be the subject of a Pollution Prevention Order under the Waste Management Act. The Board, accordingly, orders that a hearing now be conducted to determine whether the Pollution Prevention Order was properly issued.

As the interim stay was only in effect until this jurisdictional question was decided, the Board also orders that the interim stay be extended until there is a decision on the merits of this appeal.

Toby Vigod, Chair
Environmental Appeal Board

July 21, 1998