AG Nessel’s lawsuit against Allegan County CAFO

By Carrie La Seur, FLOW Legal Director

It’s getting warm this spring down in Allegan County. In late February 2024, attorneys in the Michigan Attorney General’s office brought an enforcement lawsuit against J&D Brenner Farms, an Allegan County dairy operation and successful scofflaw until this year. EGLE has been trying since 2016 to get Deb Brenner to apply for a wastewater discharge permit for her livestock confinement. An eight year grace period seems pretty generous, but all good things must end.

Brenner, who doesn’t seem to have incorporated but calls the place J&D Brenner Farms, keeps an estimated 650 dairy cows. Michigan’s regulations for Confined Animal Feeding Operations (usually referred to as CAFOs) distinguish between “Large CAFOs” – for dairy operations, stabling or confining more than 700 mature dairy cows – and “Medium CAFOs” – 200 to 699 mature dairy cows. Different regulations apply, unless you just don’t bother to file a permit application at all. Then you get a series of increasingly firm letters from EGLE, followed by – wait for it – an unpleasant one from the Attorney General.

The problem is, of course, that those 650 Brenner cows produce 6-9 million gallons of waste annually. It’s not just manure (although it’s a lot of manure, equivalent to 1% of the sewage produced each day by metro Detroit), it’s also every other kind of waste that a dairy operation produces. Under the permit definition, “manure” means what you think it means, plus anything someone throws in with it for disposal. This might include growth hormones, antibiotics, milkhouse cleaning chemicals, chemicals added to manure storage lagoons, birthing fluids and blood from calving, silage leachate, contaminated storm and wash water, copper sulfate used to keep cows’ hooves healthy, even diesel fuel tossed in to keep down bugs and algae. A fairly toxic stew.

All this muck has to go somewhere. Anyone who’s explored the upper Midwest in spring knows where. The big dump of CAFO waste is already underway this year, pouring vast amounts onto fields as an inexpensive fertilizer. The law requires careful measurement of how much fertilizer a given field needs, but unlike commercial fertilizer, which is more expensive all the time, CAFO waste has to be disposed of to free up space in lagoons for more of the same. Up to a point, it’s fertilizer. But all too often, it’s waste disposal, and the more the better.

To understand how Brenner got away with ignoring the law for so long, let’s look at another central Michigan large livestock operation in nearby Ionia County. Van Elst Brothers CAFO in Lake Odessa reports 4,995 hogs, qualifying it as a Large CAFO. They produce 2 million gallons of liquid waste a year. They don’t have a discharge permit either, but that doesn’t matter, because the Van Elsts have a quasi-magical status called a No Potential to Discharge Determination.

There are three basic requirements for No Potential to Discharge for a Large CAFO:

1. The CAFO can’t have any reported discharges of CAFO waste to surface waters in the last five years, from the confinement site or the application fields. As a side note, this isn’t great motivation for self-reporting of spills that require emergency response.
2. It must be “verified” as observing best practices under the Michigan agriculture environmental assurance program – a black box verification by the state ag agency, without public disclosure or any renewal process, so that once you’re in, you’re in forever.
3. In practice, EGLE only grants No Potential to Discharge status to Large CAFOs that “manifest” all their waste, meaning that they “sell, give away, or otherwise transfer” it to a third party (sometimes very closely connected, but legally separate) for field application. This way, the CAFO operators can figuratively (and, we hope, literally) wash their hands of their waste.

Which brings us to the fascinating topic of Manifested Manure. Technically, Large CAFO operators are supposed to have the person who trucks away their waste fill out a 4-page form promising that they’ll be pious and law-abiding after driving away with a load of CAFO waste no one will ever follow up on. It’s the ultimate honor system.

The CAFO operator keeps the form, like a medieval Roman Catholic dispensation absolving them of any guilt for eventual water pollution, and the waste hauler makes the problem go away. The location of the “manifested” fields never makes it into EGLE’s database. The hauler has no reporting obligations. No inspector will call. Imagine if nuclear waste was handled this way. We’d all glow in the dark.

If only Deb Brenner had taken EGLE’s suggestion, back in August 2016, to apply for a No Potential to Discharge request by October 1, 2016, all this embarrassment could have been avoided. If she’d simply transferred all her CAFO waste to, for example, Brenner Excavating up the road for disposal, and cleaned up the site enough to pass an inspection, she’d be sitting pretty today rather than hiring lawyers. The Van Elst Fact Sheet and Basis for Decision Memo is a thin 3-pager, not a high bar at all. And we haven’t begun to talk about the many permitted CAFOs with long rap sheets of violations that seem to pass under the enforcement radar.

Let’s be clear: FLOW applauds the AG or EGLE for undertaking a well justified enforcement action. We’re proud that Michigan is doing better than its neighbors at controlling CAFO pollution. But when Michigan still estimates that roughly half its surface waters are contaminated by E. coli bacteria, fish kills from CAFO waste are a regular occurrence, and many fish are unsafe to eat, the public deserves better than regulatory loopholes big enough for a fleet of manure spreaders to parade through.