Maryland Attorney General Opinion 108OAG121

Gen. 121]                                                         121

                             HEALTH

BOARD OF MORTICIANS – HEALTH OCCUPATIONS –
   CREMATION – WHETHER THE BOARD OF MORTICIANS AND
   OFFICE OF CEMETERY OVERSIGHT HAVE AUTHORITY
   UNDER EXISTING LAW TO LICENSE ALKALINE
   HYDROLYSIS AS A TYPE OF CREMATION TO DISPOSE OF
   HUMAN REMAINS

                        December 21, 2023
The Honorable Anne R. Kaiser
The Maryland House of Delegates

     State law requires two funerary agencies—the Board of
Morticians and Funeral Directors (“Board of Morticians”) and the
Office of Cemetery Oversight (“Cemetery Office”)—to regulate
and license facilities in which human bodies are disposed of by
cremation. You have asked whether the existing statutory authority
of these agencies over cremation services also grants them the
authority to regulate and license the use of an alternative
technology called alkaline hydrolysis to dispose of human bodies.
      For the reasons that follow, we conclude that the disposal of
a human body by alkaline hydrolysis is generally illegal in
Maryland and that the funerary agencies therefore do not have
authority to regulate, license, or otherwise permit the use of this
technology. The Health-General Article prohibits the disposal of
human bodies except by certain enumerated methods. Alkaline
hydrolysis is not one of the enumerated methods. And while the
funerary agencies have a statutory responsibility to regulate
“cremation,” their governing statutes define “cremation” in a way
that excludes alkaline hydrolysis.1




  1
     We received two sets of comments on this opinion request, both in
support of the legality of alkaline hydrolysis under current State law.
Letter from Chris Palmer, Vice President, Funeral Consumers Alliance
of Maryland and Environs, et al., to Patrick B. Hughes, Chief Counsel
for Opinions & Advice (Dec. 1, 2023) (“FCAME Comments”); Letter
from Adrian R. Gardner, Co-Founder, Green Legacy Brands LLC, to
Patrick B. Hughes, Chief Counsel for Opinions & Advice (Dec. 1, 2023)
(“Green Legacy Comments”). We thank the commenters for their views,
which we have considered carefully.
122                                                 [108 Op. Att’y
                                I
                           Background

      Alkaline hydrolysis, sometimes called “liquid cremation” or
“aquamation,” reduces a dead body to bone fragments by
dissolving it in a solution of water and alkaline chemicals. See
Cremation Ass’n of N. Am., Alkaline Hydrolysis,
https://www.cremationassociation.org/page/alkalinehydrolysis (last
visited Dec. 19, 2023) (“CANA Alkaline Hydrolysis Page”); Philip
R. Olson, Flush and Bone: Funeralizing Alkaline Hydrolysis in the
United States, 39 Sci., Tech., & Human Values 666, 667-68 (2014).
The body is placed into an airtight chamber with this liquid
solution. To speed up the process by which the chemicals dissolve
the body, pressure and heat—in the range of 200 to 300 degrees
Fahrenheit—are typically applied to the contents of the chamber.
CANA Alkaline Hydrolysis Page; H. Leon Thacker, Alkaline
Hydrolysis 1, in Nat’l Agric. Biosecurity Ctr. Consortium, Carcass
Disposal: A Comprehensive Review (2004).

      The process takes anywhere from three to sixteen hours,
depending on the amount of heat and pressure used. CANA
Alkaline Hydrolysis Page; Olson, supra, at 668, 686. The
dissolution process yields a substantial amount of liquid that is
commonly referred to in technical literature as a “sterile effluent”
and that is typically discharged into wastewater systems. Olson,
supra, at 667-68; Thacker, supra, at 1; CANA Alkaline Hydrolysis
Page. The bone fragments that remain after the process is complete
are pulverized with a device called a cremulator and returned to the
next of kin in an urn. Kent Hansen, Choosing to Be Flushed Away,
5 Est. Plan. & Community Prop. L.J. 145, 150 (2012); CANA
Alkaline Hydrolysis Page. Alkaline hydrolysis is often described
as an “environmentally friendly” method of disposing of human
remains. CANA Alkaline Hydrolysis Page. It does not emit
pollutants into the air, and it uses less energy and produces less
carbon than burial or traditional cremation. Id.; cf. Olson, supra,
at 678-79 (analyzing the environmental and public health impacts
of alkaline hydrolysis).

      By contrast, in the traditional cremation process—sometimes
called “flame-based” cremation—the body is incinerated.
Cremation Ass’n of N. Am., Cremation Process,
https://www.cremationassociation.org/page/CremationProcess (last
visited Dec. 19, 2023) (“CANA Cremation Process Page”)
(“Flame-based cremation uses flame and heat to reduce the human
remains to bone fragments, or cremated remains.”). This
traditional process uses temperatures of between 1400 to 1800
Gen. 121]                                                          123
degrees Fahrenheit. Id. (putting the temperature at “between 1400
and 1600 degrees”); Natalie Banta Lynner, Death in a Pandemic,

, 185 (2023) (putting it at 1800 degrees).
Unlike alkaline hydrolysis, traditional cremation produces air
emissions because it converts the body’s fat and tissues into gases
rather than liquids. CANA Cremation Process Page (“The process
of [flame-based] cremation is essentially the conversion of a solid
to a gas.”); Lynner, supra, at 185.2 As with alkaline hydrolysis,
traditional cremation results in bone fragments that are pulverized
and then placed in an urn. CANA Cremation Process Page.

      Traditional cremation for human remains has long been in
widespread commercial use and has grown in popularity in recent
decades. See Revised Fiscal & Policy Note, H.B. 995, 2010 Leg.,
Reg. Sess. at 4. Alkaline hydrolysis, on the other hand, is still an
emerging technology in the funeral industry. As far as we know,
no facility of any type in Maryland currently uses it for human
remains. In the United States, the process was first used by the
funeral industry only in 2011—in Ohio and Florida—although it
had previously been used on farms (for animal remains) and at
some universities and hospitals (for human bodies donated to
science). CANA Alkaline Hydrolysis Page. Today, nationwide,
the process is offered by about thirty funeral services providers in
fifteen states, according to the Cremation Association of North
America (“Cremation Association”). Id.

      The General Assembly, so far as we are aware, has never
considered legislation to explicitly address the legal status of
alkaline hydrolysis in Maryland. The Legislature has, in recent
years, considered bills about other emerging methods for breaking
down a human body. One unenacted bill would have legalized
“natural organic reduction,” a method that involves the “controlled,
accelerated conversion of human remains to soil.” See H.B. 1060,
2023 Leg., Reg. Sess. (Senate First Reader). Another unenacted
bill would have explicitly authorized State agencies to license and

  2
    Because of these air emissions, traditional crematories require not
only the approval of one of the funerary agencies (the Board of
Morticians or the Cemetery Office), but also that of the Maryland
Department of the Environment. See Kor-Ko Ltd. v. Maryland Dep’t of
Envir., 

 (2017). Although alkaline hydrolysis does not
produce air emissions, the wastewater discharges it causes would
similarly require the approval of federal, State, or local environmental
regulators (depending on the type of discharge) if the technology were
otherwise legal. See generally Maryland Dep’t of Envir., Wastewater
Permits Program, https://mde.maryland.gov/programs/water/wwp/pages/
index.aspx (last visited Dec. 19, 2023).
124                                                    [108 Op. Att’y
regulate “cold cremation,” which is the “process of reducing
human remains to fragments through deep freezing.” See H.B. 872,
2012 Leg., Reg. Sess. (First Reader). But the only legislative
proposal we have found that mentions alkaline hydrolysis is an
unenacted bill from the 2023 session that would have required a
group of State agencies to study certain funeral practices, including
alkaline hydrolysis and natural organic reduction. H.B. 869, 2023
Leg., Reg. Sess. (Senate Third Reader).

                                 II
                               Analysis

      Your question implicates various State statutes governing the
disposition of human bodies. In interpreting these statutes, we seek
to determine the intent of the General Assembly by examining the
plain meaning of the statutory text in proper context, along with
relevant legislative history and other indicators of legislative intent.
See, e.g., 108 Opinions of the Attorney General 108, 111 (2023);
108 Opinions of the Attorney General 81, 92 (2023). For several
reasons, our statutory analysis leads us to conclude that, under
current law, alkaline hydrolysis is generally illegal in Maryland and
that the Board of Morticians and the Cemetery Office therefore do
not have authority to license it.3

     To begin, a section of the Health-General Article prohibits the
disposal of a human body except through certain specified means,
and those means do not include alkaline hydrolysis. Md. Code
Ann., Health-Gen. (“HG”) § 5-514. That section provides as
follows:

           (a) An individual may not bury or dispose
           of a body except:
           (1) In a family burial plot or other area
           allowed by a local ordinance;
           (2) In a crematory;
           (3) In a cemetery;
           (4) By donating the body to medical
           science; or


  3
     In a March 2023 advice letter to you, the unit of our Office that
represents the General Assembly reached the opposite conclusion.
Having had occasion to thoroughly reconsider the issue in response to
your request for an official opinion, we disagree with the conclusion in
that letter and decline to follow it here.
Gen. 121]                                                           125
            (5) By removing the body to another state
            for final disposition in accordance with the
            laws of the other state.
            (b) An individual who violates this section
            is guilty of a misdemeanor and on conviction
            is subject to imprisonment not exceeding 1
            year or a fine not exceeding $5,000 or both.
Id.

      Although disposal “in a crematory” is listed as one of the
permissible means of disposal, the term is defined under the statute
in a way that excludes alkaline hydrolysis. More specifically, a
“crematory” is defined as “a building in which cremations are
performed,” HG § 5-508(d), and cremation, in turn, is defined as
“the disposition of a dead human body by means of incineration,”
id. § 5-508(c) (emphasis added). In summary, then, § 5-514 makes
it a misdemeanor for any individual to dispose of a human body
except in one of five enumerated ways that include cremation by
incineration but not alkaline hydrolysis, which does not use
incineration.    See Incinerate, Merriam-Webster Dictionary,
https://www.merriam-webster.com/dictionary/incinerate           (last
visited Dec. 19, 2023) (“to cause to burn to ashes”). Alkaline
hydrolysis is therefore illegal under § 5-514.4

      One might argue that this provision governs only the location
of a body’s disposition, not the process used to dispose of the body.
Under this argument, alkaline hydrolysis would be legal so long as
it occurs inside a building in which cremations by incineration also
occur (or, by the same reasoning, on the grounds of a cemetery or
family burial plot). See HG § 5-514(a).


  4
    We note that § 5-514 does not purport to govern the disposition of a
body beyond the point that it is donated to medical science. Because
your question concerns the regulatory authority of the Board of
Morticians and the Cemetery Office, and because these agencies
generally do not regulate institutions of medical science, we have no
occasion here to consider whether such institutions may dispose of
bodies with alkaline hydrolysis in Maryland. See 

 (t), (u) (defining the practice of funeral direction and
mortuary science to include the act of making final disposition of a
human body, but only for compensation), § 7-102(b)(2)(iii) (exempting
any crematory at “a licensed medical facility or educational institution”
from the jurisdiction of the Board of Morticians); 

(b)(3) (same exemption for the jurisdiction of the Cemetery
Office).
126                                                    [108 Op. Att’y
      That interpretation, however, would not be consistent with the
broader statutory scheme. The Health-General Article treats
cremation as a way to accomplish the “disposition of a dead human
body.” HG § 5-508(c); id. § 5-508(b) (referring to cremation as a
method of “final disposition”). Given this language, we think it
clear that when § 5-514 makes it a crime to “bury or dispose of a
body” by unenumerated means, it refers to the processes by which
a body may be broken down as well as the locations where a body
may be left. See Lockett v. Blue Ocean Bristol, LLC, 

 (2016) (“When a word susceptible of more than one meaning
is repeated in the same statute or sections of a statute, it is presumed
that it is used in the same sense.” (quoting Whack v. State, 

 (1995) (alteration omitted))). Means of disposal that are
not enumerated in § 5-514 would thus require legislation to become
legal. Cf. H.B. 1060, 2023 Leg., Reg. Sess. (Senate First Reader)
(unenacted legislation that, in order to legalize natural organic
reduction, would have added it to the definition of cremation that
applies to HG § 5-514).

      More generally, reading § 5-514 to govern only the location
of a body’s disposition would produce unusual consequences.
First, this reading would tether the use of emerging funerary
practices to the use of traditional practices in a way that the General
Assembly probably did not intend. Specifically, the statute would
prohibit funeral services providers from using emerging or
experimental methods to dispose of bodies unless they employed
such methods in a building where they also happen to incinerate
bodies or on the site of cemetery. Put differently, a provider
wishing to offer alkaline hydrolysis would have to offer a
traditional method of disposition in the same location. Second,
pursuant to this reading, wrongdoers could dump bodies illicitly (a
practice that, as discussed next, the General Assembly clearly
sought to outlaw) without running afoul of the statute, so long as
they did so at cemeteries or crematories. We find these
consequences of the location-based reading illogical. See Smith v.
State, 

 (2012) (“In every case, a statute must be
given ‘a reasonable interpretation, not one that is absurd, illogical,
or incompatible with common sense.’” (quoting Robinson v.
Baltimore Police Dep’t, 

 (2011)). We think instead
that § 5-514 makes cremation by incineration a legal method of
disposition but does not extend that treatment to alkaline hydrolysis
or other emerging processes by which a body may be broken down.

     The legislative history of this provision does not alter our
view of its plain meaning. The General Assembly enacted it only
recently, in 2015, apparently in response to an incident in which a
Gen. 121]                                                          127
body was dumped on the side of the road in Washington County.
2015 Md. Laws, ch. 419; Hearing on H.B. 431 Before the House
Health & Gov’t Operations Comm., 2015 Leg., Reg. Sess. (Feb.
24, 2015) (written testimony of victim’s family). That incident laid
bare to the General Assembly that Maryland law did not contain
any general prohibition of the improper disposal of a body. See
Revised Fiscal & Policy Note, H.B. 431, 2015 Leg., Reg. Sess. at
1-2. It is true that the acute concern that appears to have motivated
the legislation—the need to outlaw body dumping—is not directly
related to alternative methods of cremation. Nonetheless, the law
that the General Assembly enacted does not narrowly outlaw body
dumping. Instead, by its plain language, it writes a broader
limitation into State law: It states that there are only five legal ways
to “bury or dispose of” a body in Maryland. HG § 5-514(a). In
light of that plain language—which reaches beyond the acute
legislative concern with body dumping but is by no means
inconsistent with it—unenumerated methods of disposition,
including alkaline hydrolysis, are prohibited. See State v. Bey, 

 (2017) (in interpreting a statute, courts consider the
statutory text in the context of “the purpose, aim, or policy of the
Legislature” but generally do not “add [or] delete language so as to
reflect an intent not evidenced in the plain and unambiguous
language of the statute” (quoting State v. Johnson, 

 (2010))).

     It is also true that the definition of “cremation” that applies to
HG § 5-514 and equates the term with incineration was originally
enacted in legislation with a different primary purpose.
Specifically, the General Assembly enacted the definition in 1994
in an act that created procedures for private cremation decisions.
1994 Md. Laws, ch. 517. Among other things, the legislation
established a priority order of family members and other
individuals with authority to choose cremation for the deceased.
Id. As such, when the General Assembly crafted the “incineration”
definition, it did so as part of an effort to resolve “differences and
disputes” over cremation decisions—not in an effort to prohibit
other forms of disposition. See id. (Preamble).

     Nonetheless, the 1994 legislation made the definition
applicable to an entire subtitle: Subtitle 5 of Title 5 of the Health
General Article. Id. That subtitle already included other types of
requirements about cremation. See, e.g., id. (making conforming
amendments to HG § 5-502, which already prohibited the
cremation of an unidentified body); HG § 5-503 (added in 1982
and providing that a “person may not cremate a body until at least
12 hours after death”); id. § 5-504 (added in 1982 and providing
128                                                     [108 Op. Att’y
that a “person may not transport a body to a crematory without
using a cot and pouch or receptacle”). Subsequently, the General
Assembly enacted still other types of rules about cremation into the
same subtitle without amending the “incineration” definition. See
2012 Md. Laws, ch. 500 (imposing storage and transportation
requirements on crematories and funeral establishments). As a
result, the definition applies generally to a range of rules about
cremation and crematories—not only to the rules enacted in 1994
about decision-making. Most importantly for our purposes, when
the Legislature enacted the prohibition on unenumerated methods
of disposition in 2015 and added it to Subtitle 5 as § 5-514, it used
a defined term (“crematory”) and did not amend the definition (that
a crematory is a place where cremations by “means of incineration”
are performed). 2015 Md. Laws, ch. 419; HG § 5-508(c)-(d). We
must presume that the General Assembly understood and intended
that this definition would apply to § 5-514 and would exempt only
cremation by incineration from the statute’s prohibition. See State
v. Neiswanger Mgmt. Servs., LLC, 

 (2018) (“We
presume the Legislature was aware of its own laws.”).

     We recognize that, outside of the Health-General Article,
Maryland law also contains a different—and arguably broader—
definition of “cremation.” That definition appears in the provisions
of the Health Occupations Article and the Business Regulation
Article that require the Board of Morticians and the Cemetery
Office to regulate crematories. Md. Code Ann., Health Occ.
(“HO”) §§ 7-101(h), 7-205(c); Md. Code Ann., Bus. Reg. (“BR”)
§§ 5-101(e), 5-204(a)(2).5 These occupational statutes state that
cremation “means the process of reducing human remains to bone
fragments through intense heat and evaporation, including any
mechanical or thermal process.” HO § 7-101(h); BR § 5-101(e).

     It is admittedly odd that the occupational statutes and the
Health-General Article define cremation differently, especially
given that the definitions have overlapping implications in that they
both apply to statutes that govern the safe and fair operation of
crematories. Compare HO § 7-205(c) (requiring the Board of
Morticians to create “a process for regulating crematories” and to
ensure that crematories are operated in conformity with “public
health and safety”) and BR § 5-204(a)(2) (same requirements for
the Cemetery Office), with HG § 5-503 (12-hour time restriction
  5
     Each agency regulates those crematories in which its licensees—
morticians and funeral directors in the case of the Board, cemeterians in
the case of the Cemetery Office—hold primary ownership, while the
Cemetery Office also regulates independent crematories. BR § 5-
102(b)(2); HO § 7-102(b)(2)(ii).
Gen. 121]                                                          129
for cremation), and HG § 5-505 (“[A] person may not require that
a cremation be performed with a casket.”). The General Assembly
enacted the definition in the occupational statutes in 2010, sixteen
years after it enacted the Health-General definition. 2010 Md.
Laws, ch. 450; 1994 Md. Laws, ch. 517. It seems likely that the
General Assembly based the 2010 definition on a model provision
that the International Cemetery, Cremation & Funeral Association
(“ICCFA”), a trade group, published in 1998. See ICCFA, Glossary
of Terms, https://iccfa.com/blog/glossary-of-terms/ (last visited
Dec. 19, 2023) (“ICCFA Glossary”).6 Though not an exact match,
this model definition contains two of the same key phrases—
“reducing human remains to bone fragments through intense heat
and evaporation” and “mechanical and thermal process”—as the
definition that the General Assembly enacted in 2010. Compare
id., with HO § 7-101(h), and BR § 5-101(e).7 Thus, as far as we
can tell, the General Assembly appears to have deviated from the
Health-General definition in 2010 in order to follow a model
definition that did not exist when the Health-General definition was
enacted. We are not absolutely certain of this explanation,
however, because the legislative history of the 2010 law does not
mention the source of the definition it enacted nor otherwise
address why the General Assembly chose to deviate from the
Health-General definition without amending it.

      In any event, this peculiarity does not affect the answer to your
question. Although the definition in the occupational statutes does
not explicitly equate cremation with “incineration,” it still excludes
alkaline hydrolysis. Under the newer definition, cremation must
employ both “intense heat and evaporation” to “reduc[e] human
remains to bone fragments.” HO § 7-101(h); BR § 5-101(e). Unlike
traditional flame-based cremation, alkaline hydrolysis does not
employ evaporation for this purpose. It does not, in other words,
convert anything in the body to gas or vapor when reducing it to bone
fragments. See Evaporation, Merriam-Webster’s Dictionary, https://
  6
     In full, the ICCFA definition of cremation reads as follows: “The
irreversible process of reducing human remains to bone fragments
through intense heat and evaporation, in a specifically designed furnace
or retort, which may include any other mechanical or thermal process
whereby the bone fragments are pulverized, or otherwise further reduced
in size or quantity. Cremation is a process and is not a method of final
disposition.” Id. The Glossary in which this definition appears forms
part of the ICCFA’s “model guidelines for state laws and regulations.”
ICCFA, Model Guidelines, https://iccfa.com/model-guidelines/; see
Hansen, supra, at 168.
   7
     The laws of at least two other states follow the ICCFA definition
closely. See 

-3H; 

-17A-2(20).
130                                                  [108 Op. Att’y
www.merriam-webster.com/dictionary/evaporation (last visited Dec.
19, 2023) (“change from a liquid to a vapor”); CANA Cremation
Process Page (explaining that in flame-based cremation, “[t]issue,
organs, body fat, and casket or other container materials burn off
as gases”). Instead, alkaline hydrolysis does the opposite; it
converts most of the body into a liquid, producing a “sterile
effluent” that must be handled as wastewater and leaving a remnant
of bones as the only remaining solid material. Olson, supra, at 667.
The technology produces no air emissions. Thacker, supra, at 1.

      To be sure, we claim no scientific expertise, and we would
typically hesitate to base a statutory interpretation on a point of
science. In this instance, however, we think it clear that alkaline
hydrolysis does not, in fact, employ evaporation to break down the
body to bone fragments. The technology works by dissolving
human remains into a liquid, not by converting remains into gas or
vapor. CANA Alkaline Hydrolysis Page (“Just like flame
cremation, [in alkaline hydrolysis] fat and tissues are converted to
basic organic compounds. In flame cremation these harmless
compounds, mainly carbon dioxide and water vapor, are released
into the air. In alkaline hydrolysis, the harmless compounds
formed include salts and amino acids, and are released with the
water.”). Indeed, the only argument we have encountered about
the use of evaporation in alkaline hydrolysis concerns the treatment
of the remaining bone fragments after the body has been dissolved,
not the dissolution process itself. The argument is that, after the
alkaline hydrolysis process has reduced the body to bone
fragments, the fragments are typically dried before being
pulverized. This drying of the fragments, it is contended, involves
evaporation. FCAME Comments at 4; Green Legacy Comments
at 5. We assume this contention is correct. Even so, the incidental
use of evaporation at this stage to remove the “sterile effluent” from
the bone fragments does not bring alkaline hydrolysis within the
definition of the occupational statutes because, by this point, the
body has already been reduced to bone fragments. See HO § 7-
101(h); BR § 5-101(e). In other words, any evaporation that occurs
in the drying of the bone fragments after the rest of the body has
been dissolved into liquid does not form part of the process by
which alkaline hydrolysis “reduc[es] human remains to bone
fragments.” HO § 7-101(h); BR § 5-101(e). That is important
because the statutory definition specifically requires that
evaporation be used to “reduc[e] [the] remains to bone fragments,”
not just at any point in the process. Id.

    We also have questions about whether alkaline hydrolysis
may be said to employ “intense heat” within the meaning of this
Gen. 121]                                                         131
definition. As explained above, the procedure for traditional
cremation reaches temperatures of between 1400 and 1800 degrees
Fahrenheit, whereas alkaline hydrolysis generally reaches
temperatures of only 200 to 300 degrees Fahrenheit. See Part I,
supra. We are not sure that a specialized mechanical process that
employs only the level of heat of a standard household appliance
can be described as using “intense heat,” especially given that the
phrase manifestly covers the much higher temperatures of
traditional cremation. See, e.g., Rowe v. Maryland Comm’n on
Civil Rights, 

 (2023) (statutory terms must be read
in context). Ultimately, however, we need not reach a firm
conclusion on that point. Because alkaline hydrolysis does not
employ evaporation to reduce the body to bone fragments, it does
not meet the definition of “cremation” in the occupational statutes
for that reason alone. See HO § 7-101(h); BR § 5-101(e).

      Granted, the definition in the occupational statutes also
contains the broad phrase “including any mechanical or thermal
process.” HO § 7-101(h); BR § 5-101(e). This phrase, appended
to the end of the definition, apparently has led some commentators
to assume that alkaline hydrolysis is legal in Maryland. See, e.g.,
CANA Alkaline Hydrolysis Page (categorizing Maryland as a state
that has legalized the technology but lacks practitioners); Olson,
supra, at 667 (same); Kantele Franko, States Consider: Is It Legal
to Dissolve Bodies?, NBC News (June 2, 2011),
https://www.nbcnews.com/id/wbna43257762 (stating that the 2010
legislation would allow alkaline hydrolysis). After all, alkaline
hydrolysis is a “mechanical process” in the sense that it uses a
machine, see Mechanical, Merriam-Webster’s Dictionary,
https://www.merriam-webster.com/dictionary/mechanical             (last
visited Dec. 19, 2023) (“of or relating to machinery . . . or tools”),
and potentially a “thermal” process as well, in the sense that it uses
some heat, see Thermal, Merriam-Webster’s Dictionary,
https://www.merriam-webster.com/dictionary/thermal (last visited
Dec. 19, 2023) (“of, relating to, or caused by heat”). In addition,
as already explained, the General Assembly chose to incorporate a
definition with this broad phrase into the occupational statutes
instead of using the pre-existing “incineration” definition from the
Health-General Article. See 2010 Md. Laws, ch. 450. This
somewhat mysterious choice may have caused confusion about the
legal status of alkaline hydrolysis in Maryland by creating the
impression that the General Assembly intended the broad
“including” phrase in the new definition to encompass some
alternative practices.
132                                                    [108 Op. Att’y
      Yet we think it clear, as a matter of statutory interpretation,
that this broad “including” phrase cannot be read to bring alkaline
hydrolysis or any other process that does not employ evaporation
to reduce the body to bone fragments within the sweep of the
definition. Put simply, the “including” clause should not be
interpreted to negate the definition’s evaporation requirement. See
State v. Krikstan, 

 (2023) (“We avoid statutory
interpretations that render language meaningless, surplusage,
superfluous or nugatory.” (internal quotation marks omitted)).
State legislative resources expand upon this point. The definition
in the occupational statutes is what is known as a composite
definition because it contains a “means” clause followed by an
“includes” or “including” clause. Department of Legislative
Services, Maryland Style Manual for Statutory Law 35 (2018)
(“DLS Manual”);8 see also Md. Code Ann., Gen. Provis. (“GP”)
§ 1-110 (treating “includes” and “including” as synonymous
terms). Under the General Assembly’s practices, the “includes”
clause in this type of definition does not expand or overwrite the
“means” clause but instead merely illustrates its meaning. DLS
Manual at 35; see also GP § 1-110 (“‘Includes’ or ‘including’
means includes or including by way of illustration and not by way
of limitation.” (emphasis added)).

     As such, rather than read the phrase “including any
mechanical or thermal process” to mean that a process may satisfy
the definition even if it does not use “intense heat and evaporation,”
we must read it to mean that any “mechanical or thermal process”
used as part of cremation is included within the scope of the
definition so long as the overall process uses intense heat and
evaporation to reduce the body to bone fragments. This means, for
example, that the use of a cremulator to pulverize bone fragments
remaining after the traditional, flame-based incineration of a body
fits within the definition, because the overall process employs
“intense heat and evaporation” to break down the body. HO § 7-
101(h); BR § 5-101(e); see also ICCFA Glossary (clarifying that
cremation “may include any other mechanical or thermal process
whereby the bone fragments are pulverized” (emphasis added)).9

  8
     The DLS Manual is a useful resource for understanding the General
Assembly’s drafting practices. See, e.g., Elsberry v. Stanley Martin
Cos., 

 (2022) (relying on the manual in interpreting a
statute). The Manual is available at https://dls.maryland.gov/pubs/prod/
LegisBillDrafting/MarylandStyleManualforStatutoryLaw2018.pdf.
   9
     The General Assembly’s objective in including the phrase “any
mechanical or thermal process” in this definition, and the ICCFA trade
Gen. 121]                                                            133
But alkaline hydrolysis does not fit within the definition because it
does not employ evaporation (and likely cannot be considered to
employ intense heat) for this purpose.
      The legislative history of the definition in the occupational
statutes supports our reading of its plain language. The 1998
ICCFA model law on which this definition appears to be based was
written thirteen years before alkaline hydrolysis went into use by
the funeral industry anywhere in the country, see CANA Alkaline
Hydrolysis Page, and for that historical reason presumably was not
crafted to sweep in alkaline hydrolysis, see Hansen, supra, at 168
(citing the ICCFA definition as an example of a definition that
excludes alkaline hydrolysis). And while we may not know with
absolute certainty that the General Assembly based its own
“intense heat and evaporation” definition on the ICCFA definition,
we do know something else—the definition that the General
Assembly ultimately enacted in 2010 appeared in nearly identical
form in legislative proposals stretching back to 2001. E.g., H.B.
906, 2001 Leg., Reg. Sess. (First Reader); S.B. 143, 2002 Leg.,
Reg. Sess. (First Reader); S.B. 484, 2003 Leg., Reg. Sess. (First
Reader). So, as with the ICCFA definition, it appears that the
General Assembly did not craft the definition for the specific
purpose of encompassing alkaline hydrolysis. In 2001, alkaline
hydrolysis for human remains was not in use by the funeral industry
anywhere in the country and would not be for another ten years.
CANA Alkaline Hydrolysis Page.

      By contrast, we find it instructive to consider a definition of
cremation that clearly does cover alkaline hydrolysis. In 2010,
another trade group—the Cremation Association—updated the
definition of cremation in its own model law for the specific
purpose of bringing “processes like alkaline hydrolysis” within its
scope. CANA Alkaline Hydrolysis Page; see FCAME Comments
at 4 (discussing this update); Green Legacy Comments at 6 (same).
Before this update, the Association’s definition of cremation
resembled the definition in Maryland’s occupational statutes in an
important sense—it specified that cremation worked “through heat

group’s objective in including a similar phrase in its model definition,
may have been to clarify that agency regulatory authority extends to the
pulverization of the bone fragments and is not limited to the incineration
process itself. See HO §§ 7-101(h), 7-205(c); BR §§ 5-101(e), 5-
204(a)(2) (requiring the Board of Morticians and the Cemetery Office to
regulate cremation). Because the definition in the Health-General
Article does not govern the scope of the funerary agencies’ regulatory
authority, it would make some sense that the phrase appears only in the
definition in the occupational statutes.
134                                                      [108 Op. Att’y
and evaporation.” Cremation Ass’n of N. Am., Model Cremation
Law and Explanation 2 (2003) (“2003 CANA Model Law”).10
Tellingly, the Association dropped this phrase when crafting a
definition to encompass alkaline hydrolysis. It opted instead to
define cremation as follows: “The mechanical and/or thermal or
other dissolution process that reduces human remains to bone
fragments. Cremation includes the processing and usually includes
the pulverization of the bone fragments.” Cremation Ass’n of N.
Am., Model Cremation Law and Explanation 3 (2017). This broad
definition leaves no doubt that it covers alternatives to incineration,
not least because of its intentional omission of any reference to heat
and evaporation. See id.; Kan. Op. Att’y Gen. No. 2019-9, 

 at *2 (Nov. 26, 2019) (interpreting this definition,
which Kansas enacted, to cover processes that separate “flesh from
bone by the destruction of the flesh”). We think the history of this
model definition reinforces the point that a definition intended to
encompass alkaline hydrolysis would not logically require that
cremation employ “intense heat and evaporation.” HO § 7-101(h);
BR § 5-101(e).
  10
        This earlier version of the Cremation Association’s model
definition plainly focused on incineration. 2003 CANA Model Law, at
2 (“The technical process, using direct flame and heat, that reduces
human remains to bone fragments. The reduction takes place through
heat and evaporation. Cremation includes the processing and usually
includes the pulverization of the bone fragments.”) (emphasis added);
see also Cremation Ass’n of N. Am., Model Cremation Law and
Explanation (1999) (containing same definition of cremation as the 2003
version). The legislative history for the 2001 and 2002 Maryland bills
suggests that they sought to follow the provisions of the Cremation
Association’s model law from this era. Hearing on H.B. 906 Before the
House Economic Matters Comm., 2001 Leg., Reg. Sess. (Mar. 7, 2001)
(written testimony of the Cemetery Office) (“The Bill’s content is
reflective of the recommendations made by the Cremation Association .
. . in its proposed model state cremation regulation.”); Hearing on S.B.
143 Before the Senate Finance Comm., 2002 Leg., Reg. Sess. (Feb. 7,
2002) (written testimony of Del. Cadden) (“As recommended by [the
Cremation Association], enactment of this legislation would provide for
uniform statutory provisions that would render protection to the public .
. . .”). The definition of cremation that the bills contained, however, is
not a close match for the Cremation Association language from that era,
but instead mirrors parts of the ICCFA language. See supra notes 6 & 7
and accompanying text (quoting the ICCFA language and comparing it
to the occupational statutes). In any event, neither model that the General
Assembly may have followed—the pre-2010 Cremation Association
definition or the ICCFA definition—accommodated alkaline hydrolysis.
See Hansen, supra, at 168 (noting that the ICCFA definition excludes
alkaline hydrolysis); 2003 CANA Model Law, at 2 (requiring “direct
flame and heat”).
Gen. 121]                                                         135
      More broadly, the legislative history of the Maryland bills
containing the “intense heat and evaporation” definition, including
the successful 2010 legislation, also does not evince any legislative
interest in non-traditional forms of cremation. Instead, the
historical materials reveal a keen focus on traditional cremation,
which had not previously been subject to significant regulation or
oversight. See Revised Fiscal & Policy Note, H.B. 995, 2010 Leg.,
Reg. Sess. at 3-4 (noting that in Maryland, as of the bill’s
introduction, cremation was “growing in popularity” but
“minimally regulated”). To safeguard the public welfare, the
General Assembly made the regulation of traditional crematories
the explicit responsibility of the Board of Morticians and the
Cemetery Office. Id. at 1; see Hearing on S.B. 143 Before the
Senate Finance Comm., 2002 Leg., Reg. Sess. (Feb. 7, 2002)
(written testimony of CEO of Eternal Justice, a nonprofit)
(describing abuses committed by an unregulated crematory in
Georgia); Bill File on H.B. 906, 2001 Leg., Reg. Sess. (containing
a newspaper article describing similar abuses at a crematory in
California). Alkaline hydrolysis and other emerging techniques did
not appear to factor into the legislative intent one way or the other.

      To be clear, the conclusion that alkaline hydrolysis is not a
form of cremation within the meaning of the occupational statutes
is not particularly meaningful on its own. It simply means that the
funerary agencies are not required to regulate the practice, see HO
§ 7-205(c) (mandating that the Board of Morticians regulate
crematories); BR § 5-204 (same for the Cemetery Office), but it
says nothing about whether they may regulate it as part of their
broader authority to enforce laws governing the disposition of
human bodies, see, e.g., HO § 7-301(a) (providing that “an
individual shall be licensed by the Board before the individual may
practice mortuary science in this State”), nor whether their
licensees may employ the technology under currently existing laws
and regulations. Instead, it is HG § 5-514 that answers the latter
two questions in the negative by prohibiting the use of alkaline
hydrolysis on human remains in Maryland.11

                               III
                            Conclusion

     Alkaline hydrolysis is considered by many to be an
environmentally friendly alternative to traditional funeral
practices, and it is legal in some other states. We express no view
  11
     We do not decide here whether, in the absence of HG § 5-514, the
Board of Morticians or the Cemetery Office could choose to authorize
the practice.
136                                                [108 Op. Att’y
on whether the practice should be authorized as a matter of policy.
But, as Maryland law currently stands, we do not think that the
Board of Morticians and the Cemetery Office have the power to
authorize, license, or regulate this technology. The disposal of a
human body by alkaline hydrolysis is generally illegal under § 5-
514 of the Health-General Article and does not fall within the
agencies’ responsibility for regulating cremation under the Health
Occupations and Business Regulation Articles.

                               Anthony G. Brown
                               Attorney General of Maryland

                               Ben Harrington
                               Assistant Attorney General

Patrick B. Hughes
Chief Counsel, Opinions and Advice