Legislative Alerts

New Regulation for Funeral Service in Colorado

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For the first time since 1982, funeral service in Colorado is being regulated at the state level, sort of. As of January 1, 2010 all funeral homes and crematories must register with the Department of Regulatory Agencies, DORA. Not to be confused with licensure, registration means you must simply stand up and be counted, and of course pay the fee of $544 per funeral home, or $633 per crematory. Figuring out what you have to pay is about as simple as figuring out all the ways the Denver Broncos could have made it in the play-offs this year.

1. If there are multiple Funeral Home businesses at one address, only one application per address is required.

2. Funeral Homes that offer cremation services but contract out the cremation services only need to register as a Funeral Home.

3. If you offer Funeral Goods and Services at a location (i.e., office, home, vehicle) and the services are provided elsewhere or contracted out, you must register as a Funeral Home.

4. If you offer and provide both Funeral and Crematory services at one address, separate applications will be required for the Funeral Home business(es) and Crematory business(es).

So what will the financial windfall bring funeral service? Not primary inspections of the registered funeral homes, but rather they cover the entire cost of the program which include all of the administrative, registration, legal, as well as enforcement costs.

What does it mean to the consumer? The funeral director must provide contact information on the funeral contract to the consumer should they wish to file a formal complaint with the state through DORA. There are also several pages of updated law on cremation, which in theory if followed should prevent a Colorado crematory operator from ever being on national news for cremating the wrong body. On the books, those changes are arguably good.

It’s too soon to say whether or not these laws will be effective in protecting the public from unscrupulous funeral directors, bad apples are everywhere in every profession regardless of the laws. Two main questions will need to be answered to determine if this is a successful program:

1. Are consumers being protected?

2. Will oversights by the state be appropriate and effective?

So right now we’ll put these new laws in the cautiously optimistic category, and see if something is better than nothing. For more information from the Office of Funeral Home and Crematory Registration visit http://www.dora.state.co.us/funeralhome-crematory/index.htm.

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Legislative Updates - By State

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A series of updates on recent legislative action, around the country:

Colorado
Information on HB09-1058 “Abandoned Military Remains Disposition” and HB09-1054 “UI Award Military Death Surviving Spouse” can be found on our “Grief & Loss in the Military” page by clicking here. Both bills passed and were signed into law. Download a PDF copy of this law here.

HB09-1287 “
Colorado Probate Code” has been updated and become law. Here are some the topics it addresses: inflation adjustment, intestate (dying without a will) succession, gestational agreements (surrogates or sperm donors), revises electives shares of a spouse, and allows a will to have been notarized instead of the currently required signatures of two witnesses. Download a PDF copy of this law here.

HB0-1198 "Uniform Power of Attorney Act" as drafted by the national conference of commissioners on uniform state law and repeals the "Uniform Statutory Form Power of Attorney Act". This is a long bill, 74 pages, and the Colorado Bar Association won’t have their summaries of it available for 3 weeks. We will bring you the summary in our next newsletter as this topic is of extreme importance to those serving as a POA for a loved one, as well as end of life professionals. Download a PDF copy of this law here.


HB09-1202 “Mortuary Science Registration” is waiting to be signed by Governor Ritter on June 4, 2009. Here are the highlights: Requires funeral establishments and crematories to be registered and a person in charge be named to as a contact person for the Department of Regulatory Agencies. It prohibits a person from calling themselves a mortuary science practitioner without having a mortuary science degree, passing the national board examination, and 2,000 hours of experience in the field; a funeral director requires 2,000 hours of experience and 50 funerals or graveside services directed; an embalmer requires 4,000 hours of experience and the embalming of at least 50 dead human bodies; a cremationist requires 500 hours of experience and the cremation of 100 dead human bodies. This is title protection only; there is no registration or licensure of these individuals. The Colorado Funeral Service Board will continue their voluntary certification program as usual. (www.cofda.org) Download a PDF copy of this law here.

The consumer protection portion of the bill allows for standards of practice regarding embalming, transportation, and cremation. This bill is a supplement to, not a replacement of the current Mortuary Science Code, CRS 12-54-101 through 109.

Montana
HB386 “Right of Disposition Act” becomes law October 1, 2009. It allows a consumer to put their final wishes in writing with the funeral home and they must be carried out by the next of kin. The bill includes a priority of disposition rights (spouse, children, parents, siblings) and a resolution if there is conflict between the parties about the disposition. Download a PDF copy of this law here.

Oregon
SB796 regarding death care was introduced on May 8th, has passed the Senate, and is now in the House. The Oregon State Legislature does not have a set end date, but usually runs about 6 months.

In part this bill requires death care consultants to be licensed by State Mortuary and Cemetery Board. It requires facilities for final disposition of human remains, other than cemeteries and crematoriums, to obtain a certificate of authority from the board. It modifies procedures by which a licensed funeral practitioner disposes of an unclaimed body of a deceased person, including procedures by which funeral practitioner transfers body to certain institutions for educational or research purposes. In addition, it imposes requirements relating to burials on private lands. Finally, it expands the definition of the word “cemetery” to include scattering gardens and cenotaphs.
Download a PDF copy of this law here.


Utah
HB265 “Postmortem Procedures Amendments” became law in May and makes a provision for anyone in the State of Utah to take possession of a deceased body, file a death certificate, and commence with final disposition if a funeral director is not retained. Colorado death certificates have a signature line for, “Signature of Funeral Director of person acting as such.” Perhaps Utah death certificates will need to be amended as well. Download a PDF copy of this law here.



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HB09-1202

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With primary sponsorship by Representative Nancy Todd (D), the CFDA (Colorado Funeral Directors Association) has once again introduced a bill that would make changes to funeral service oversight in Colorado. What’s different this year? This year the bill was written with the collaboration of the CFDA, DORA (Department of Regulatory Agencies), SCI (Service Corporation International), and the new bill sponsor, Rep. Todd. With all interested parties in agreement this year, the bill is moving quickly through the House and has had no formal opposition to this point from either chamber.

HB09-1202 would in effect allow DORA to enforce the laws outlined in already existing statutes titled The Mortuary Science Code CR 12-54-101 – 109. For example, the 24 Hour Rule states that a body must be refrigerated, cremated, embalmed, or buried within 24 hours of death. HB09-1202 would provide the enforcement of that rule through DORA.

Two new rules that would be created within the bill state that Funeral Homes and Crematories must disclose to families that they can file a formal complaint against the facility with DORA; and requires that Crematories have a system in place to ensure the identity of the deceased throughout the cremation process and ultimate return of the cremated remains to the family.

How will this be funded? The fiscal note (which is currently being amended) would collect an initial $500 facility registration fee of all funeral homes and crematories in the state with an annual renewal fee of $300. A “Director in Charge” would be named for each facility as a contact person for DORA.

If passed, this bill would track the number of funeral homes and crematories existing in Colorado, provide enforcement of current laws which does not currently exist, and provide a State Agency for families with a grievance to file a formal complaint. It does not require licensure or registration of funeral service individuals, but does provide Title Protection regarding who can call themselves a Funeral Director, Embalmer, Cremationist, etc.
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No Licensure for Colorado Funeral Directors

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House Bill 08-1123, regarding licensure and registration for funeral directors died in the Colorado Senate this legislative session.

For 7 years the Colorado Funeral Directors Association with varied levels of support and assistance from funeral home owners and industry leaders has introduced a bill on registration and/or licensure of funeral service personnel. Although Colorado has a lot of laws regarding funeral service; burial, cremation, embalming, and standards of practice, what we haven’t had since 1982 is licensure or registration of those people responsible for knowing and carrying out the laws.

It is important to note the bills introduced through the years had a licensure component simply for those who had chosen (or would choose in the future) to voluntarily go to mortuary school and pass their National Board Exam; all others in the industry would simply have registered with the State.

So, after 7 years of trying to bring individual accountability why did the bills continue to fail year after year? Here are some of the arguments I heard from the lawmakers themselves through the years. These are all quotes I heard with my own ears; some of them are accurate statements, others are just plain silly.

• “There was licensure in Noble, Georgia and that didn’t stop crematory operators from breaking the law.”

• “Colorado has not made national news with any horror stories on our funeral industry.”

• “The funeral bill would raise the cost of funerals for consumers.”

• “I don’t want to allow the industry to be taken from no regulation to licensure in one year.”

• “Funeral directors in rural Colorado won’t be able to take vacations.”

• “We already have pre-need and insurance laws in Colorado.”

• “We already have Federal OSHA standards to regulate the embalming room, and the Federal Trade Commission, FTC Rule to regulate pricing.”

• “The Mortuary Science Code was updated in 2004, that’s good enough.”

• “This bill would over-regulate an industry that has done a fine job regulating itself since 1982.”

• “There aren’t enough consumer complaints.”

• “This bill would restrict competition in the industry.”

Having entered the funeral business in 1988, six years after the funeral licensing laws expired; I have never worked with a license in Colorado. After I graduated from Mortuary School in 1991, I earned my voluntary Mortuary Science Practitioner (MSP) certification through the Colorado Funeral Service Board by passing my National Board Exam and serving a voluntary one year internship under a registered MSP.

At the end of the day the passage of this bill wouldn’t have done anything for me personally other than perhaps provided an additional layer of respect by my peers outside of Colorado. Despite not having a license, I have contributed to the funeral industry on a national level in a variety of ways.

At the end of day the passage of this bill would have formalized a place for consumers to register their complaints with the State, however they can still file law-suits, contact the media, and tell all of their friends, “Don’t use ABC Funeral Home.”

At the end of day, the graduates of the Mortuary Science Program at Arapahoe Community College in Colorado can still pursue a license in 49 other states.

I am privileged to have worked for 20 years with some of the most professional people I know, the funeral directors and embalmers in Colorado.
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How a Bill Becomes a Law in Colorado

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Regarding HB 1123, I have received several emails, and have had numerous conversations with end of life professionals on how a bill actually becomes law in Colorado. Right now the bill is stuck waiting for the second reading on the House floor. Here’s how it got that far:


1. The bill was read by the House Clerk on the floor of the House of Representatives.

2. The Speaker of the House assigned the bill to the House Business Labor and Affairs Committee, which voted in favor the bill moving it the next step.

3. Since HB 1123 has a fiscal note attached the House Appropriations Committee had to review the bill. The first vote ended in a tie, but the second vote passed the bill.

4. Now the bill is waiting for the next step, which is second reading on the House floor. The entire House can debate and still make amendments to the bill. During second reading the vote is a voice vote, that means when asked, “All in favor”, or “All opposed” which ever group has a louder voice either keeps the bill moving forward toward third reading, or kills the bill on second reading.

5. If the bill goes to third reading, that is when an official recorded vote is taken, and the bill either dies in the House, or passes and moves to the Senate.


The bill has been postponed every day for over a week now. What’s happening is that as the Legislature prepares to begin debate on the Long Bill, the number of other bills is really piling up, in other words, there’s a log jam at the Capitol. The Long Bill is the bill that deals with the budget and takes a large amount of time for the legislatures to debate and pass, therefore most bill sponsors want to get their bill heard before the Long Bill begins. That creates a huge back-up.

This morning it was announced on the floor of the House that all of the second reading of the bills would indeed be read through tomorrow (Wednesday, March 26, 2008) and I quote, “if it takes until Thursday to get it done.” The Representatives were instructed to bring snacks and dinner would be ordered if necessary to get through the large stack of bills before them.

Click here to get a copy of the State’s official PDF of how a bill becomes law (which is pictured above). Picking up with number 5 above, if the bill passes the House, then it will be moved to the Senate, at which time it will be read, assigned a committee, and a very similar process begins again, only in the Senate. If the bill passes the House and the Senate then it becomes law, provided that the Governor signs it immediately.

However, if the Governor doesn’t sign it within 30 during days during regular session, or within 10 days after the session recesses the bill will not become law, and the whole process must start over.

The Governor can also veto a bill if it hasn’t met the 2/3 passing majority in both the House and Senate, which is what happened to the funeral licensure bill 2 years ago.
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HB1123 Ends in Tie Vote for the House Appropriations Committee

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On Friday, February 29, 2008 HB1123 ended in a tie vote for the house appropriations committee. There are 13 committee members, 12 were present.

All present Republicans voted against the bill last Friday.

The missing Republican Representative, Jim Kerr, will vote on the bill when it is heard again on Friday, March 7, 2008.

It is feared that at this point in time the bill does not have the bipartisan support needed to pass.

The House Appropriations Committee members are:

• Buescher (D), Chairman

• Pommer (D), Vice-Chairwoman

• Butcher (D),

• Ferrandino (D),

• Judd (D),

• Kerr J. (R),

• Massey (R),

• McGihon (D),

• McNulty (R),

• Riesberg (D),

• Vaad (R),

• Weissmann (D),

• White (R).


Click here to read the updated fiscal impact note as re-evaluated and submitted by DORA on February 26, 2008.

Note that Table 1 on page shows the Funeral Home and Crematory Establishment fee every two years would be set at $700; MSP Licensure at $50 annually; and Funeral Directors, Cremationists, Embalmers, and Interns Registration at $25 annually.
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House Committee Votes to Pass the Bill

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On February 4, 2008 the House Business Affairs and Labor Committee voted 7 to 4 to pass HB 08-1123 and send it to the House Appropriations Committee with a favorable recommendation.

What happens next:

• The House Appropriations Committee will vote soon (date to be determined) after reviewing the fiscal impact of the bill. There is no testimony on the bill at that time as it is evaluated not on merit, but from a financial impact.

• If the House Appropriations Committee passes the bill then it goes to the floor of House for a final reading and where all of the Representatives will be given the opportunity to vote in favor of or opposition of the bill.

• If the bill passes the House then it moves to the Senate. There Senator Johnson will introduce it on the Senate floor, it gets assigned a Senate Committee, and the process begins again only in the Senate.

• If the bill passes on the Senate floor then it is considered as having passed both chambers and unless the Governor vetoes the bill, then it becomes law on July 1, 2008.


As in common in politics several amendments have been made to the bill. This is not the final version, but to download the current working version, Click Here.
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House Business Affairs and Labor Committee Testimony

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On January 31, 2008 the House Business Affairs and Labor Committee heard testimony on HB08-1123. However, they did not vote on the bill at that time. Here’s the status of the bill:

After the initial bill was introduced, there were two major amendments which needed to be added to the bill. A major player in the Colorado Funeral Service Industry submitted a multiple page amendment to the bill that would specifically address the issue of cremation including definitions, authorization to cremate, and cremation procedures. It was not submitted in time for the State bill writer to evaluate and include the amendments into the bill. The second amendments came by way of DORA, the Department of Regulatory Agencies. A representative from DORA took a position yesterday that they could not support the bill as written. Remember that DORA recommended a registration system, not licensure, which is what HB08-2133 recommends. There were also several pieces of technical language which DORA needed added to the bill before they would consider supporting it.

The State bill writer will add the appropriate amendments to the bill over the weekend, the amended bill will be delivered immediately to the committee members, and on Monday, February 3, 2008 at 1:30 P.M., the House Business Affairs and Labor Committee will review the final version of the bill and vote to pass or kill the bill.

Several people from the funeral industry testified in favor of the bill on January 31st . One piece of testimony given by Representative Stafford provided a staggering statistic. She stated that in 1982 when licensure of funeral service was sunsetted there were 175 registered funeral directors/embalmers. Currently the Colorado Office of Vital Records has 1,216 people registered as funeral directors able to sign death certificates.

Click here to read the fiscal impact statement on HB08-1123.
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Offer Your Testimony on House Bill 08-1123

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The House Business Affairs and Labor Committee is scheduled to hear testimony on House Bill 08-1123 on January 31, 2008 at 1:30 PM at the Capitol in Room 0107 (that’s in the basement). A full PDF copy of the bill is available for you by clicking here.

There are four bills scheduled to be heard that day, HB 08-1123 is currently first on the docket, although that can change. It’s always a good idea to bring a book or something you can work on while waiting to testify. Anyone can come and listen to testimony, but if you want to testify here is the process.

You will need to sign the registration sheet inside the room where the testimony will be heard. You will need to include your name, who you represent, and if you are in favor of or in opposition of the bill. Don’t worry about remembering all of this; the sign in sheet will prompt you on these questions.

When addressing the committee, begin by saying, “Madam Chair and Members of the Committee, my name is ___________, and I represent _(you don’t have to represent anyone, just include the information if you are)_. I am here today in support of House Bill 1123 because _____________________________.” The expectation is not that you will come across as a professional speaker, but will be sincere and respectful in what you are saying. Here are a few tips to help you prepare.


Bring your passion with you that day!
The legislators respond well to people who are passionate about their cause.

Be positive.
Don’t talk down or insult anyone else who has already testified, this is not a debate. Being negative and angry will also alienate them from your cause as they will just tune out what you are saying.

Don’t repeat what others have already said.
If you are the third of fourth person to testify and someone has already said what you wanted to say, they will be more responsive toward you if you politely say that your position has already been stated, and you have nothing new to add. Remember their day can consist of hearing the same thing over and over again from different people; be respectful of everyone’s time.

Know the bill.
Reference the bill whenever possible to back up what you support and why you support it.

Use facts.
All testimony becomes part of a permanent record and may be used in future research. Make certain that you know what you are saying is factually true, don’t include things that you may have heard, or think may be going on.

Be Prepared.
Giving public testimony before a legislative committee can an exciting and rewarding experience, if you are prepared.
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House Bill 08-1123 is Introduced

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House Bill 08-2113 has been introduced by House Representative Debbie Stafford. Sponsorship from Senate comes by way of Senator Larry Johnson. A full PDF copy of the bill is available for you by clicking here. End of Life Insights will keep you informed as the bill moves forward. Below is the information that we have so far.

The bill has been assigned to the House Business Affairs and Labor Committee. The members of that committee are listed below.

Representative Marshall is the Chairman of the committee, and Representative Rice is the Vice-Chair. The bill must make it past this first committee before it can go forward. Please consider contacting these Representatives to offer your position of the bill.


Rep. David Balmer, 39th Dist., Arapahoe Co., david.balmer.house@state.co.us, 303-866-2935

Rep. Morgan Carroll, 36th Dist., Arapahoe Co., morgancarroll@webaccess.net, 303-866-2942

Rep. Mark Ferrandino, 2nd Dist., Denver, mferrandino@yahoo.com, 303-866-2911

Rep. Cheri Jahn, 24th Dist., Jefferson Co., cheri.jahn.house@state.co.us, 303-866-5522

Rep. Larry Liston, 16th Dist, El Paso Co., larry.liston.house@state.co.us, 303-866-2965

Rep. Rosemary Marshall, 8th Dist., Denver, rosemary.marshall.house@state.co.us, 303-866-2959

Rep. Victor Mitchell, 45th Dist., Douglas/Teller Co.’s, victor.mitchell.house@state.co.us, 303-866-2948

Rep. Joe Rice, 38th Dist., Arapahoe/Jefferson Co.’s, joe.rice.house@state.co.us, 303-866-2953

Rep. John Soper, 24th Dist., Adams Co., john.soper.house@state.co.us, 303-866-2931

Rep. Amy Stephens, 20th Dist., El Paso Co., amy.stephens.house@state.co.us, 303-866-2924


Please keep in mind that the Legislators rarely read their own email, their staff usually weeds through the inbox and makes notes as to the numbers of people in support or opposition of a bill. It is not necessary to write a lengthy letter of support, just simply include your name, where you are from, who you are with, and and then tell them your position on House Bill HB08-1123.

The subject line of your email should read “HB08-1123”.
Your greeting could read, “Dear Representatives of the House Business Affairs and Labor Committee”...

You can also call each Representative and leave a message with your name, where you are from, who you are with, and that you support HB08-1123 and then tell them your position on the bill.
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The Crematory Mercury Emissions Debate Reached the LA Times

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The continuing woes of the crematory mercury emissions issue have reached the Los Angeles Times.

The December 26th article cites several states including Maine, Minnesota, Colorado, and their battles against government wishes to pull teeth, literally, and install half a million dollar scrubbers.

Why does this issue keep growing? It is in short, because cremation rates keep growing. As cited in the LA Times, “According to the Cremation Assn. of North America, a 2005 survey found 46% of Americans planned to choose cremation, compared with 31% in 1990. Its use varies widely by region: In Nevada and Hawaii, two-thirds of bodies were cremated in 2005; in a number of Southern states, a tenth were.”

This was a balanced article, however, one thing always missing from this topic is that although the cremation rates keep growing every single year, the number of dentists using amalgam fillings has been decreasing every single year since the 1970’s. Therefore, this issue has a shelf life of about 30 years, at that time the vast majority of people with mercury in their mouths will have died causing the issue to continually decrease until it becomes a non-issue. In the meantime people will still be accidentally breaking light bulbs releasing as much mercury in their homes as is released in a single cremation. The federal EPA notes that both crematories and broken light bulbs make up less that 1% of the mercury emission in the United States.
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Colorado Department of Regulatory Agencies Releases Their Sunrise Review on Funeral Service Practitioners

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On December 6, 2007 the State of Colorado Department of Regulatory Agencies (DORA) released their Sunrise Review on Funeral Service Practitioners.

• What did they find? The State cited several documentable incidents of harm to the public. In addition they wrote that, “In Colorado, approximately 18 percent of funeral service practitioners voluntarily achieve the required education and other requirements for certification by the CFSB.”(Colorado Funeral Service Board, www.cofda.org)

• What did they recommend? “Implement a registration program that requires a Funeral Director at each funeral establishment to register with the Division of Registrations. Require funeral service establishments to provide a disclosure statement informing consumers who to contact in the event they desire to file a formal complaint.”

• What does this mean? This is a clear victory for the consumer in Colorado, and a step in the right direction for Funeral Service Professionals. After over 20 years of no regulation, the State has finally admitted, in writing, that there is a need for consumer protection.

• What’s next? The bill’s sponsor, Representative Debbie Stafford, and a legislative committee of the Colorado Funeral Directors Association will meet to determine if the recommendations of DORA will be followed in the writing of a proposed bill; or if they will ignore the recommendation and introduce a bill which would require licensure of Funeral Service Practitioners, which is a level above what DORA recommended. End of Life Insights will keep you informed as the bill is introduced and the legislation moves forward.

You can read the complete DORA report here.
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Fuzzy Math from the Colorado Department of Health and Environment

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The Colorado Department of Public Health and Environment (CDPHE) recently released: “Pollution Prevention Crematoria Project Final Report.” It’s a 39 page report worth reading in it’s entirely, if for no other reason to see if you too can spot all of the absurdities.

The CDPHE identified the crematoriums in the State of Colorado as a source of mercury pollution in the air. The culprit? Amalgam fillings that were widely used in dentistry . As the baby-boomers are dying their teeth are being cremated with them causing the release of the toxins to go into the air in Colorado, and blow into Kansas. The solution? A steering committee of funeral service professionals in Colorado would begin the task of working with the State to determine solutions to the problem. I was on the committee with many well respected funeral directors and funeral home owners in Colorado. The final player who needs to be introduced is Tetra Tech, they are the outside environmental firm the State hired for this project.

The State claims that 110 pounds of mercury are released per year from all of the Colorado crematoriums combined. Why that’s false; In a 2003 report prepared by ERG, Inc. for the U.S. Environmental Protection Agency (EPA), the amount of mercury emitted by all known crematories in the U.S. and Canada was 333 lbs./year. How could the State of Colorado possibly emit one-third of the entire mercury emissions in all of the United States and Canada? The total number of deaths annually in Colorado is still under 30,000 as compared to Florida for example, at over 260,000 deaths annually.

The data provided by Tetra Tech and the State compared apples to oranges. The amount of research done and references cited in European countries are woven throughout the report, Great Britain, Norway, etc.. The truth is there has only been 1 (one) known study in the United States of crematory mercury emissions. Why only one you ask? After the analysis of the Woodlawn Cemetery crematory in New York, the U.S. EPA got the information they needed; all of the crematories in the United States make up less than 1% of the total mercury emissions in the country. Have there been alarming data collected, one can be certain the U.S. EPA would have looked for financial resources to fund further studies.

There are several conclusions to be made based upon the State’s published report and this topic in general:

• The limited information is inconsistent and possibly inaccurate on the topic of mercury emissions from crematoria.

• If in the future the U.S. EPA moves forward with any formal regulation the National Funeral Directors Association will represent the funeral industry as the stakeholders at the national level.

• No state in the country has yet to set precedence on this issue.

• In an email dated December 5, 2005, Mary Johnson, Environmental Engineer, U.S. EPA wrote, “At this time, EPA has no plans underway to regulate human or animal crematories.”

• A discussion with Jack Springer, President of the Cremation Association of North America stated that the scrubbers/washers to remove the mercury from the crematories in Europe have been paid for by the taxpayers, and not private business. As the cost of the scrubbers begin at $100,000 and go up, the regulation of that would no doubt put many crematoriums in the United States out of business.
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