Open burning is the act of setting fire to unwanted paper, garbage, debris, trees, branches or lawn for disposal where the smoke and emissions are released directly into the open air. For rural areas without trash removal service, burning brush and garbage seems like the most practical way of destroying these discarded materials. However, open burning can create a fire hazard especially in dry summer conditions where a wildfire can start. Open burning releases pollution into the air that can obscure vision, deposit soot and ash on nearby structures, and injure people with compromised lung health. As a result, state and local laws regarding open burning are very restrictive and violators can be fined or imprisoned. All Michigan property owners should be aware of these rules before setting fire to anything.
OPEN BURNING OF GRASS CLIPPINGS OR LEAVES
The state laws governing open burning are governed by the Natural Resources and Environmental Protection Act.
“The open burning of grass clippings or leaves is prohibited in any municipality (e.g. city, township or village) having a population of 7,500 or more, unless specifically authorized by local ordinance…”. MCL 324.11522(1). If a city, township or village with a population of 7,500 or more does adopt an ordinance permitting the manner that grass clippings or leaves can be burned, this ordinance must be reported to the Michigan Department of Natural Resources within 30 days of enactment. Id.
There are civil and criminal penalties for violating the state law prohibition on burning grass clippings and leaves.
- CIVIL PENALTY: “The department or a health officer may request that the attorney general bring an action in the name of the people of the state, or a municipality or county may bring an action [in the circuit court] based on facts arising within its boundaries, for any appropriate relief, including injunctive relief, for a violation of [these rules].” MCL 324.11546(1). The court can issue a civil fine up to $10,000.00 for each day of violation. MCL 324.11546(2)(a). For a second or subsequent violation, the court can issue a civil fine up to $25,000.00 for each day of violation. MCL 324.11546(2)(b). If any damage or destruction is caused, “[t]he court may order a person who violates [these rules] to restore, or to pay to the state an amount equal to the cost of restoring, the natural resources of this state affected by the violation to their original condition before the violation, and to pay to the state the costs of surveillance and enforcement incurred by the state as a result of the violation.” MCL 324.11546(3).
- CRIMINAL PENALTY: The county prosecutor or the attorney general can prosecute violations in the district court where the burning occurred. “A person who violates [this rule]… is guilty of a misdemeanor punishable by a fine of not more than $1,000.00 for each violation and costs of prosecution and, if in default of payment of fine and costs, imprisonment for not more than 6 months.” MCL 324.11549(1). “Each day upon which a violation… occurs is a separate offense.” MCL 324.11549(3).
For municipalities with a population less than 7,500, there is no state law prohibition banning the open burning of grass clippings or leave. However, nothing prohibits a city, township or village from passing a local ordinance that locally bans open burning of these items. Depending on the ordinance, the penalty can range from a civil infraction punishable by a fine only to a misdemeanor offense punishable by a fine up to $500.00 or up to 90 days in jail, or both.
OPEN BURNING OF HOUSEHOLD TRASH
“[A] person shall not conduct open burning of household waste that contains plastic, rubber, foam, chemically treated wood, textiles, electronics, chemicals, or hazardous materials.” MCL 324.11522(3). This does not prohibit the open burning of household waste not on this list such as paper or food waste. If an individual engaged in open burning of prohibited household waste materials in violation of this rule, the individual is responsible for a state civil infraction subject to the following.
- “For a first offense within a 3-year period, a warning by the judge or magistrate.” MCL 324.11522(4)(a).
- “For a second offense within a 3-year period, a civil fine of not more than $75.00.” MCL 324.11522(4)(b).
- “For a third offense within a 3-year period, a civil fine of not more than $150.00.” MCL 324.11522(4)(c).
- “For a fourth or subsequent offense within a 3-year period, a civil fine of not more than $300.00.” MCL 324.11522(4)(d).
The Department of Natural Resources cannot promulgate or enforce statewide rules that extend the prohibition of open burning of household waste to materials not already prohibited under this law. MCL 324.11522(5). However, nothing prohibits municipalities from passing their own ordinances that completely bans the open burning of any household waste in their own borders. MCL 324.11522(7).
BURNING OF BUILDINGS AND BUILDING MATERIALS
Generally, structures that are to be demolished by intentional burning are subject to state and federal air quality and solid waste regulations. Michigan regulations only allow the intentional burning of buildings for fire department fire suppression training. Any other intentional burning of a building (even your own) can make the offender subject to felony arson criminal charges.
Likewise, air quality and solid waste regulations prohibit opening burning of construction and demolition waste because chemically treated lumber or paint contains hazardous compounds that can be released into the air and cause a public health crisis. Offenders can be subject to the same penalties as those who burn grass clippings or leaves without legal authorization, and possibly subject to federal civil and criminal penalties as well.
LEGAL EXCEPTIONS TO OPEN BURNING PROHIBITIONS
According to state regulatory rules, “[a] person shall not cause or permit open burning of refuse, garbage, or any other waste materials, except for the burning of any of the following:”
- “Waste disposal material from and at 1- or 2-family dwellings that does not contain plastic, rubber, foam, chemically treated wood, textiles, electronics, chemicals, or hazardous materials, if the burning does not violate any other department [of natural resources] rules.” Admin. Code R. 336.1310(1)(a).
- “Structures and other materials used exclusively for fire prevention training.” Admin. Code R. 336.1310(1)(b).
- “Trees, logs, brush, and stumps in accordance with applicable state and local regulations if the burning is not conducted [within a priority area listed by the Department of Natural Resources], nor closer than 1400 feet to an incorporated city or village limit and if the burning does not violate any other department [of natural resources] rules.” Admin. Code R. 336.1310(1)(c).
- “Beekeeping equipment and products, including frames, hive bodies, hive covers, combs, wax, and honey, if burned for bee disease control.” Admin. Code R. 336.1310(1)(d).
- “Logs, brush, charcoal, and similar materials that are used in preparing food or for recreation.” Admin. Code R. 336.1310(1)(e).
Again, these exceptions “do not authorize open burning if prohibited by local law or regulation.” Mich. Admin. Code R. 336.1310(2).
Also, these state laws do not prohibit a person from conducting open burning of wooden fruit or vegetable storage bins constructed from untreated lumber if all of the following requirements are met:
- “The burning is conducted for disease or pest control.” MCL 324.11522(6)(a); Mich. Admin. Code R. 336.1310(1)(f)(i).
- The burning is not conducted within a priority area listed by the Department of Natural Resources, or “[i]n a city or village”, or “[w]ithin 1,400 feet outside the boundary of a city or village.” MCL 324.11522(6)(b); Mich. Admin. Code R. 336.1310(1)(f)(ii).
Nothing prohibits municipalities from passing their own ordinances that completely bans the open burning of wooden fruit or vegetable storage bins constructed from untreated lumber in their own borders. MCL 324.11522(7); Mich. Admin. Code R. 336.1310(2).
However, “[a] congressionally chartered patriotic organization that disposes of an unserviceable flag of the United States by burning that flag is not subject to regulation or penalty for violating a state law or local ordinance pertaining to open burning of materials or substances.” MCL 324.11522(8). If done according to state law, the disposal of an unserviceable flag by burning is not subject to restriction by city, township or village ordinance.
IF YOU ARE CHARGED WITH VIOLATIONS OF OPEN BURNING LAWS, OUR SKILLED LAWYERS CAN HELP
As with most things, an ounce of prevention is worth several pounds of litigation. Before you consider open burning in your area, you need to check with your local government to ensure that your proposed fire, even if allowed under state law, is not prohibited by a city, township or village ordinance. If you are accused of a violation, you have the absolute right to obtain a lawyer that will enforce your rights, represent you in court and hold the government to their burden of proving your guilt beyond a reasonable doubt. Remember, a misdemeanor violation can be punished by jail time, so you do not want to take these issues lightly. Get the best defense in your corner from the very beginning.
If you have further questions or need legal representation, then do not hesitate to contact the experienced attorneys at Kershaw, Vititoe & Jedinak PLC for assistance today.