Consumers Energy Company (Consumers), respondent in this proceeding, hereby moves for a more full and complete farm inspection and/or testing demonstration to be conducted by the Attorney General (AG), and further moves for an order compelling that the Attorney General arrange to permit testing by Consumers Energy at one or more farms, or, in the alternative, Consumers moves to strike certain testimony and exhibits, saying in support of its motion:

1. On March 31, 2000 Consumers filed a motion to strike the testimony and exhibits of the Attorney General (AG) on the ground that the AG had violated prior orders of the presiding Administrative Law Judge (ALJ) to invite Consumers Energy and other parties, to any testing that is done when the AG was gathering evidence for this action. This motion was argued at a session of this hearing held on April 20, 2000.

2. On the basis of various statements and commitments made by the Attorney General, at that hearing, Consumers did not pursue its motion to strike the AG’s filing. Consumers did so on the basis of representations made on the record by the AG, and recognizing that the commitments of the AG made the motion moot or potentially moot, an observation also made by the ALJ. These commitments included a commitment to "re-test" at various farms. The AG’s counsel stated:

It was Consumers understanding based upon a reasonable interpretation of the AG’s statements, that this re-testing at Michigan farms would include, at a minimum, some level of testing at these farms. It also should be noted that the word "farms" (plural) was used by the AG, implying that the AG would simply re-test to gather the data in a duplicate or substantially duplicate form to what was filed ("retest every single one of these Michigan farms"). Had it been otherwise, Consumers would not have withdrawn its motion as moot. The ALJ also recognized that the AG’s commitment had made the motion moot, but on the implicit assumption that the commitment would be met.

3. The AG did in fact schedule visits to certain farms (but not "every single one" of the farms previously tested by her witnesses) to take place between July 12 –14, 2000. It soon became clear, however, that, aside from the incompleteness of the list of farms, what the AG intended to do was different from what was in the above-stated commitment. At the first inspection, the Arlyn Walt firm (held on the afternoon of July 12), the AG’s witnesses did set up or partially set up some of their equipment, but notably, they refused to perform any actual testing. Company counsel repeatedly asked that they "turn on their equipment" and they refused. Initially, they took the position that they would not turn on their meters unless Consumers first brought out its equipment and set it up for testing. Consumers pointed out that the purpose of the visit was not to view Consumers’ testing, which was already observed by all of parties the prior year at several farm inspections requested by the Commission Staff, but rather to view the AG testing. Moreover, the schedule and notice provided was such that it would have taken several hours to set up all of Consumers testing equipment. Consumers eventually did perform a part of its test protocol, but that also did not resolve the impasse. The AG personnel had been at this farm since some time earlier in the morning of July 12 (and apparently held a press conference), and thus appeared to have had plenty of time to set up their own equipment. Consumers was not invited to this set up process.

After it became apparent that the AG people would refuse to do any testing unless Consumers simultaneously tested using the same type of instruments, Consumers even offered and one of the AG’s representatives agreed that the parties could return the next morning, and that Consumers would have adequate time to set up and both parties would test. Consumers would perform its complete protocol which did involve some of the type of instruments the AG was using. Consumers had not planned to perform its complete protocol at this farm, and desired instead to perform it at other farms such as the TenBrink farm, but in the interest of advancing the matter decided to perform the complete protocol at the Walt farm. Although Consumers regarded the AG’s attempt to impose conditions on the process as unreasonable and unjustified, Consumers was interested in attempting to expedite this process and get on with a reasonable exchange of information. So Consumers offered to test simultaneously using the protocol which Consumers had sent to the Attorney General several weeks earlier. See affidavit of Richard Thompson attached hereto.

However, when Consumers showed up promptly at 8:00 AM the following morning, the farmer (Mr Walt) indicated that the testing had been cancelled. Mr Walt also indicated that Mr Martin May, the AG’s paralegal, also had not been informed of the decision to call it off (which Mr Walt described as having happened late the prior evening) and hence Mr May had shown up for the morning testing only to learn that his associates had cancelled it. Consumers then asked Mr Walt if he had any objection to Consumers performing further tests, and he indicated he had none, providing Mr Stetzer was present at the time. However, as noted, Mr Stetzer failed to show up at the Walt farm on July 13 as had been previously arranged. Consumers counsel was advised by cell phone by his secretary at approximately 9:00 AM, one hour after the arranged start time for the Walt farm testing, that a call had been received from the AG office advising that the Walt farm testing would not occur and that the AG intended to go forward with another farm previously scheduled for that date. Consumers had brought all of its consultants to the Walt farm to conduct and witness tests.

4. The upshot of the above events is that once again, Consumers is the only party to actually turn on a meter and perform testing at the Walt farm in the presence of other parties to this action. While refusing to test in the presence of Consumers, Mr Stetzer apparently did perform testing on the morning of July 12 before Consumers arrived, according to information and belief of Mr Mol. Consumers has not been informed of the nature of those tests. Moreover, even aside from what Consumers agreed to do in an effort to move forward, Consumers believes that it was inappropriate for the AG to attempt to condition her conducting of tests upon Consumers agreeing to test at the same time using the same equipment, particularly when Consumers does not even agree that the AG’s test methodologies are appropriate. Consumers has never refused to perform any tests using its own protocols, and has repeatedly performed tests in the presence of the AG and others using those protocols, including at the Walt farm on July 12. The purpose of these visits was to carry out a commitment made by the AG on the record, which would not have been necessary had the AG met the requirements of the ALJ previously to invite Consumers and other parties to her original testing at farms. It is clear that the AG did not meet her commitment. The unwillingness of the AG to perform testing in the presence of Consumers speaks volumes about the validity of the AG’s test procedures.

5. On the second day of these farm visits, three farms were visited. On each occasion Mr Stetzer and Graham were not present. No test equipment was present. Mr Mol and one of Mr Stetzer’s employees attempted to describe what had been done and showed the general locations of prior tests, but there was no test equipment so the event was in the nature of a verbal description of past events. Thus, it was not possible to determine the precise length of leads or set ups, although general set-ups were described verbally. Further, the description of Mr Mol cannot be evidence in this case, unless Mr Mol intends to be a witness. Thus, even the limited value of this process is questionable, because the witness was not present to vouch for what had happened. (If, for example, Mr Stetzer appears on the stand and denies something said at the time by others, of what evidentiary value could the farm visit have been?)

6. Consumers also requested at each of these three farms, and was denied, the opportunity to perform some testing of its own. For example, at the Ramthun farm Consumers requested an opportunity to take some measurements at the kitchen sink (since part of the AG’s proffered evidence in this case was taken at the sink). The farmer denied access. Mr Mol informed Consumers that the farmer objected to Consumers testing because Mr Stetzer was not present. Consumers also requested an opportunity to test at the Tenbrink farm, visited the afternoon of July 13, and at the Vandenberg farm on July 14. Mr Stetzer was present at the Vandenberg farm, but Consumers was denied an opportunity to conduct tests and Mr Stetzer refused to conduct any tests of his own.

7. Although Consumers recognizes that the AG has not "retained" Mr Stetzer, or claims not to have, and that Mr Stetzer is free to do as he pleases, nevertheless, the AG has chosen to rely upon Mr Stetzer for a major part of her case. As noted above, the AG claims that Mr Stetzer "has nothing to hide." If that is so, presumably Mr Stetzer would be willing to conduct actual tests in the presence of Consumers’ consultants, something that is yet to happen. Further, the retesting commitment of the AG has yet to be met.

On the last day of the scheduled "retests," the AG had scheduled visits to farms on opposite sides of the state. Consumers, in order to staff this effort, sent some consultants to be present at the farms on the evening before, only to learn later that evening that the AG had decided to rearrange the schedule, and as a result, some Consumers consultants had to drive back and forth (a distance of over 200 miles one way). Further, the AG generally refused to firmly state in advance whether the AG was actually willing to perform testing, or whether Consumers would be permitted to test. As a result, it was difficult if not impossible for Consumers to avoid the expense of having its consultants at each of the farms. If the AG did decide to permit testing, Consumers would later face some type of waiver argument and thus had to have its consultants present even though no testing was permitted. The whole process was very expensive for Consumers and of limited value because no testing was performed.

8. Consumers notes that in various other ways, unfortunately, its efforts to gather information at these farm inspections were impeded. At the Walt farm and the others, Consumers was denied the right to use video taping, even though the news media was present and permitted to have video tapes running. Further, Consumers consultants were not allowed to use digital cameras, which resulted in a delay while cameras were changed out. Various other parties present had digital cameras and were permitted to use them. Contrary to the AG’s assertions, video taping is a necessary and helpful medium to use in these circumstances, and the absence of videos makes it more difficult for a party to demonstrate points in the hearing. The farmer in each case "objected" to Consumers using video tapes; however, these "objections" give the appearance of being contrived. Consumers has never before encountered farmers objecting to video taping tests, even in cases where the farmer has sued Consumers.

Further, at the Walt farm, instead of using the occasion for the purpose of gathering data and exchange of information, someone had chosen to make the farm visit into a media event in which a number of persons having no connection to this farm were invited, which resulted in a number of hostile encounters with the Consumers personnel who were merely trying to do their job and observe what was going on. At the insistence of Dr Graham, each of the Consumers personnel present were required to have a personal escort throughout the visit, which further contributed to the atmosphere of hostility. It was Consumers understanding that the purpose of these visits was to gather information, which each side could argue as they see fit.

9. Consumers believes that the above-described events do not constitute a bona fide effort on the part of the AG to meet the commitments made on the record during the April prehearing conference. Although Consumers recognizes that the ALJ has previously decided that he cannot expressly order a farmer to permit Consumers or even the Attorney General to open up his farm for inspection, nevertheless, it appears based upon what occurred during the week of July 10 that the few dairy farmers involved in this case are perfectly willing to have Mr Stetzer test at their farms, and even do not object to having Consumers test so long as Mr Stetzer is present. In these circumstances, it is evident that the AG’s witness Stetzer has the actual ability to obtain access to these farms and conduct testing.

WHEREFORE, Consumers requests relief in the following alternative forms:

1. That the ALJ "request" that the AG actually meet its commitment, and retest at the Michigan farms in the presence of Consumers.

2. That the ALJ "request" that the AG utilize its influence to obtain cooperation of his witnesses, and that the farmers (who appear to be willing to permit testing by Consumers) be encouraged to cooperate in permitting testing by both the AG consultants and Consumers.

3. That barring the above, the ALJ strike the testimony of Mr Stetzer and Mr Graham in this proceeding, as well as other exhibits and documents which rely upon testing of Mr Stetzer and Mr Graham, such as Hillman exhibits 2 and 3.

7/28/2000

Respectfully submitted,

______________________________

James E Brunner

Attorney for Respondent Consumers Energy Company