Foster Swift Municipal Law News
May 27, 2015
Since properly managed yard waste can be recycled into a useful product – compost – the State of Michigan, in 1995, banned yard waste from disposal in landfills. Current law requires yard waste to be disposed of at recycling and composting sites. As you might imagine, composting yard waste does not emit a pleasant odor and, more often than not, becomes a significant nuisance in the community - particularly when composting occurs at large scale commercial composting facilities. Therefore, it is important for community leaders to familiarize themselves with the laws regulating commercial composting facilities and any ordinances in place to combat these types of nuisance issues.
The Michigan Department of Environmental Quality (MDEQ) is the state department charged with regulating facilities that manage yard waste (leaves, grass clippings, vegetable or other garden debris, shrubbery, or brush and tree trimmings less than 4 feet in length and 2 inches in diameter). The law (MCL 324.11521) requires yard waste be managed in one of the following ways:
- Composted on the property from where it came. For example, if a community does not offer curbside yard waste collection service, property owners must self-manage through mulching, composting or burning on their property.
- Temporarily accumulated under specific conditions at a site before moving to another location.
- Composted at a farm registered with the Department of Agriculture under specific conditions. These conditions, which will be discussed more fully below, include proper management and limitations on the amount of yard waste allowed to be composted per acre.
- Composted at a composting facility registered with the MDEQ. The most up-to-date list of MDEQ Registered Composting Facilities can be found on the MDEQ website. It should be noted that the MDEQ only requires the facility register with MDEQ and comply with state regulations. The MDEQ does not review local ordinances to ensure the location is appropriate for the use.
- Composted and used under specific conditions at a licensed solid waste landfill.
- Composted at a processing plant meeting Part 115 (regulations dealing with solid waste management) requirements.
- Composted at a site that has not more than 200 cubic yards of yard clippings if no nuisance is created.
- Decomposed in a controlled manner using a closed container to create and maintain anaerobic conditions (e.g. anaerobic digester).
- Disposed of at a landfill if diseased or infested or the material is an invasive plant collected through an eradication or control program and inappropriate to compost.
In light of these regulations, communities may wish to regulate the placement of commercial composting facilities by way of properly adopted zoning ordinances. When considering zoning regulations, it is advisable that communities consult with their legal counsel because, even with properly adopted zoning ordinances, communities may find themselves in a precarious position.
For example, some commercial composting operators attempt to argue that “composting” is “farming,” and permitted on land zoned for farming. An extension of that argument has been that the use is protected under the Right to Farm Act, Public Act 93 of 1981. Although that argument has not been successful in the past, it continues to be a common argument, which must be addressed. Communities are generally fearful when this argument is made because if a community initiates a nuisance action against a farm that is protected under the Right to Farm Act, and “the defendant farm or farm operation prevails, the farm or farm operation may recover from the plaintiff the actual amount of costs and expenses determined by the court to have been reasonably incurred by the farm or farm operation in connection with the defense of the action, together with reasonable and actual attorney fees.” MCL 286.473b.
Although composting yard waste is permitted on a farm, those operations are limited by state law. Specifically, MCL 324.11521(3) provides:
A person may compost yard clippings on a farm if composting does not otherwise result in a violation of this act and is done in accordance with generally accepted agricultural and management practices under the Michigan right to farm act, 1981 PA 93, MCL 286.471 to 286.474, and if 1 or more of the following apply:
- Only yard clippings generated on the farm are composted.
- There are not more than 5,000 cubic yards of yard clippings on the farm.
- If there are more than 5,000 cubic yards of yard clippings on the farm at any time, all of the following requirements are met:
- The farm operation accepts yard clippings generated at a location other than the farm only to assist in management of waste material generated by the farm operation.
- The farm operation does not accept yard clippings generated at a location other than the farm for monetary or other valuable consideration.
- The owner or operator of the farm registers with the Department of Agriculture on a form provided by the Department of Agriculture and certifies that the farm operation meets and will continue to meet the requirements of subparagraphs (1) and (2).
Composting is a complex topic for municipalities. You should consult with your legal counsel to ensure adequate protections are in place. We are happy to assist with any composting issues or questions you may have.
Over the years, there have been a number of unsuccessful attempts, by way of proposed legislation, to lift that ban but those efforts have been met with much opposition. The arguments on both sides (opponents and proponents) include economic and environmental considerations.