ANR v. Davis dba Davis Contracting Service ( 2015 )

STATE OF VERMONT
SUPERIOR COURT ENVIRONMENTAL DIVISION
Vermont Unit Docket No. 20-2-14 Vtec
Agency of Natural Resources,
Petitioner
v. DECISION ON THE MERITS
Ken Davis, d/b/a Davis Contracting Service
Respondent
This matter arises out of the alleged failure of Respondent Ken Davis, d/b/a Davis
Contracting Service, (Respondent) to follow Acceptable Management Practices (AMPs) in
connection with Respondent’s logging activities on property in Montgomery, Vermont. In a
February 12, 2014 Administrative Order (AO), the Vermont Agency of Natural Resources (ANR)
alleges violations of the Vermont water pollution control law, 10 V.S.A. § 1259(a), as a result of
Respondent’s logging activities. The AO sets out factual allegations describing Respondent’s
failure to follow AMPs resulting in discharges into waters of the State without a permit. While
the AO states that Respondent has since come into compliance and is following all AMPs, ANR
seeks administrative penalties for the violations. On February 18, 2014, Respondent requested
a hearing with this Court.
Respondent filed a pre-trial “Motion to Dismiss for Lack of Prima Facie Case,” which the
Court characterized as a motion to dismiss for failure to state a claim upon which relief can be
granted, as governed by Vermont Rule of Civil Procedure 12(b)(6). Civil Rule 12(b) does not
apply to this Court’s review of administrative orders. V.R.E.C.P. 4(a)(3). We gave Respondent
some leeway as a self-represented litigant, and considered the merits of his motion under the
Court’s authority to issue orders for the disposition of legal issues prior to the de novo hearing.
V.R.E.C.P. 4(d)(4)(C). In our July 9, 2014 Entry Order we concluded that ANR has alleged
sufficient facts to create an issue for trial as to whether Respondent was in violation of the
AMPs and whether failure to follow the AMPs resulted in discharges to State waters without a
permit. We also noted that Respondent’s motion to dismiss rests primarily on an issue he
raises in defense: that the discharges were caused by Hurricane Irene and not Respondent’s
failure to follow the AMPs. We therefore DENIED Respondent’s motion to dismiss because
Respondent failed to establish sufficient legal grounds for dismissal of this administrative
enforcement order.
The Court conducted a multiday merits hearing at the Vermont Superior Court, Costello
courthouse in Burlington, Vermont on December 11, 12, and 23, 2014 and January 6, 2015.
Appearing at the trial were John Zaikowski, Esq. representing the Agency of Natural Resources
and Mr. Davis representing himself.
Based upon the evidence presented at trial, the Court renders the following Findings of
Fact and Conclusions of Law.
Findings of Fact
1. Nutting Farm, LLC is the owner of property located at 4159 Vermont Route 16 in
Montgomery, Vermont (the Property). The Property is part of the family homestead of
Joshua Davidson and is approximately 600 acres.
2. Nutting Farm, LLC retained forester Bruce Butler to serve as the private consulting
forester to manage the forestry issues of the Property.
3. Nutting Farm, LLC retained logger Ken Davis, d/b/a Davis Contracting Service to cut pulp
and timber at the Property.
4. Ken Davis has worked in the logging industry in Vermont for over 40 years.
5. Ken Davis’ record of compliance does not include any prior violations.
6. Surface water from the northern portion of the Property drains to the Pacific Brook.
7. Surface water from the southern portion of the Property drains to the Trout River.
8. County forester Nancy Patch completed a site visit and inspection to the Property in
August 2011. Although she observed some AMP non-compliance issues, she did not
observe any related discharges to waters of the state.
9. The AMPs are established in a booklet, admitted at trial as Exhibit 69, titled “Acceptable
Management Practices for Maintaining Water Quality on Logging Jobs in Vermont.” See
Code of Vt. Rules 12 020 010, available at http://www.lexisnexis.com/hottopics/
codeofvtrules (describing purpose of AMP booklet and noting that the AMPs “have the
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force of law”). The Court refers to the AMPs by the number they are given in the AMP
booklet.
10. Essex regional AMP forester Matthew Leonard received an anonymous complaint on
August 25, 2011 regarding an alleged discharge to the Pacific Brook along Nutting Road.
The complaint also noted that there was an active logging operation near the
headwaters of Pacific Brook at the end of Nutting Road.
11. Forester Leonard performed a site visit to the Property on September 7, 2011 with
forester Butler.
12. On the western side of the Property, a truck road runs in a northerly-southerly direction
(Western Truck Road) leading to a landing (West Landing). From this landing a skid trail
runs further south along the west side of the Property (Western Skid Trail).
13. Surface water from the area of the Western Truck Road, West Landing, and Western
Skid Trail drain to the Trout River.
14. During the September 7, 2011 site visit, at two locations along the Western Truck Road,
there were no culverts or other structures at stream crossings (AMP 9). Further south
on the Western Truck Road and the Western Skid Trail, there were multiple crossings
lacking drainages on the approaches to the crossings (AMP 6) and lacking erosion
controls (check dams) in ditches (AMP 7).
15. Within a side skid trail running off of the Western Skid Trail, Forester Leonard observed
ruts carrying surface water without water diversions such as broad based dips (AMP 6).
This surface water traveled to and beyond the West Landing.
16. Sediment was discharged into surface water in the areas of the Western Truck Road,
West Landing, and Western Skid Trail, which are the headwaters of the Trout River.
17. Respondent did not have a permit for these discharges.
18. A second large landing is located near the northwest corner of the property (North
Landing). A skid trail exits/enters the east end of the North Landing and travels
generally parallel to the northern boundary of the Property (North Skid Trail).
19. Surface water within the area around the North Landing and North Skid Trail drains to
the Pacific Brook.
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20. Two culverts were installed along the North Skid Trial prior to forester Leonard’s
September 7, 2011 site visit. These culvert installations were non-compliant with AMPs
4, 6, 7 and 11 as follows: the ditches along the skid trail approaching the water crossings
terminated directly into the streams rather than being diverted (AMP 4); there were no
broad-based dips or water bars approaching the culverts (AMPs 6 and 11); and there
were no hay bale erosion check dams or diversions preventing water from entering the
streams (AMP 7).
21. The backfill used for culvert installation was sandy material susceptible to erosion.
Significant erosion and loss of backfill material was observed on September 7, 2011.
22. Respondent did not have a permit for a discharge to the Pacific Brook.
23. During the September site visit and compliance inspection, the State provided
recommended AMP improvements and suggested remedial measures.
24. Forester Leonard performed a follow-up site visit to the Property on October 28, 2011
and observed that a majority of the recommended AMP improvements were
implemented.
25. Forester Leonard received a second complaint of discharges at the lower stretches of
the Pacific Brook on March 19, 2012.
26. Forester Leonard performed an additional site visit to the Property with forester Butler
on March 23, 2012.
27. A second skid trail exits/enters the east end of the North Landing and travels generally
in a southwesterly direction toward the southeast corner of the Property (Central Skid
Trail).
28. During forester Leonard’s March site visit, significant slash was within a defined stream
channel in the northwestern end of the Central Skid Trail (AMP 8).
29. Also toward the northwestern end of the Central Skid Trail, the required protective strip
of wooded area was not left in place, but rather trees were harvested right up to the
stream bank (AMP 14). Additionally, harvesting equipment was located immediately
adjacent to the stream (AMP 14).
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30. Further southeast on the Central Skid Trail, there were areas lacking both broad-based
dips in the area where the trail approached a stream (AMP 11) and hay bale erosion
check dams or water diversions preventing sediment from entering a stream (AMP 7).
31. At approximately the mid-point of the Central Skid Trail, the trail runs immediately
adjacent to a stream without a protective strip in non-compliance with AMP 14. This
area also lacked broad-based dips in non-compliance with AMP 6. This area had
considerable bank erosion and sediment within the stream which is part of the
headwaters of the Pacific Brook.
32. Continuing further southeast on the Central Skid Trail, a stretch of a stream was used as
a skid trail (AMP 10), logging equipment was used within a protective strip (AMP 14),
slash was within the stream channel (AMP 8), a permanent stream was crossed without
a culvert or other structure (AMP 9), and there was a lack of broad-based dips in the
areas where the trail crossed a stream (AMP 11).
33. Sediment was within the streams and surface water in these areas of the Central Skid
Trail.
34. Respondent had no permits for these discharges.
35. County forester Nancy Patch also completed site visits and inspection to the Property in
March 2012. Forester Patch observed several AMP non-compliance issues resulting in
mud flowing down logging roads and mud accumulating in seeps and streams. Forester
Patch also observed a culvert which was washed out. Finally, forester Parch observed a
skid road located in the middle of a stream (AMP 10).
36. In early March 2012, Respondent’s ongoing logging activities were abruptly halted due
to a quick spring thaw with temperatures considerably above freezing.
37. At this time, Respondent ordered his crew to stay off the Property to avoid further
ground disturbance to minimize the potential for significant discharges.
38. Sediment and mud flowing into the waters of the state result in impacts of siltation
which smothers and kills live stream habitat.
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39. The 2011 and 2012 discharges resulted in impacts to water quality, including
sedimentation which degraded aquatic habitat and altered the natural hydrology of the
surface water flow.
40. The State performed follow-up site visits in May, June, and August 2012. As of August
22, 2012, all compliance issues had been remedied.
41. Mr. Davis and his employees were courteous during ANR’s investigations. All remedial
work was performed in a sound manner.
42. Forester Patch logged 40 hours for inspection and reports relating to the Property and 4
hours for testimony in court. Her hourly rate is $25/hour resulting in total labor costs of
$1,100.
43. Forester Leonard logged 76 hours in completing site visits and inspections, telephone
correspondence and participating in trial. His hourly rate is $25.77/hour resulting in
total labor costs of $1,958.52.
44. Environmental enforcement officer Ted Cantwell investigated the alleged violations.
This included property records research, participation in site visits and inspections,
report writing, and trial time for a total of 77 hours. His hourly rate is $31.83/hour,
resulting in total labor costs of $2,450.91.
Conclusions of Law
I. Violations
The Acceptable Management Practices (AMPs) were adopted as rules to Vermont’s
Water Quality Statutes on August 15, 1987 as methods for the control and dispersal of water
collecting on logging roads, skid trails, and log landings and are intended to minimize erosion
and reduce sediment and temperature changes in streams. The AMPs must be implemented by
landowners or their contracted loggers before, during, and after logging activities. A permit is
required to discharge any waste, substance, or material into the waters of the state. 10 V.S.A.
§1259(a). Individual permits are not required, however, for discharges caused by logging
operations if AMPs are in place. Code of Vt. Rules 12 020 010, available at
http://www.lexisnexis.com/hottopics/codeofvtrules. Thus, to find a violation in this matter,
there must be a failure to follow the AMPs and an unpermitted discharge.
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Respondent raises concerns relating to a lack of evidentiary connection between the
Property and the complaints regarding the off-site condition of the Pacific Brook and Trout
River. Specifically, Respondent argued that ANR could not prove that the complaints were not
a result of some other discharge unrelated to the Property. While we understand Respondent’s
concern, it is unnecessary for ANR to establish this connection. We focus on the evidence of
compliance or lack of compliance with the AMPs on the Property and whether or not there was
a related unpermitted discharge on the Property to waters of the state. It is not necessary to
trace a discharge to the water of the state on the Property all the way to either the Pacific
Brook or Trout River. To be clear, at trial ANR acknowledged that it was not intending to prove
a discharge off-site. Rather, the complaints of off-site discharges were the reason why ANR
inspected the logging activities.
A. Western Truck Road, West Landing, and Western Skid Trail
As set out in the above findings of fact, ANR provided credible evidence of several AMP
non-compliance issues in September 2011 along the Western Truck Road, West Landing, and
Western Skid Trail. These included the failure to install culverts or other structures where the
road crosses a stream (AMP 9), the failure to install an appropriate number of water bars or
broad-based dips along the road and skid trail (AMP 6), and the lack of check dams (hay bales)
at outlets of water bars entering streams and other surface waters (AMP 7). ANR introduced
evidence through testimony and photographs of resulting discharges to the headwater of the
Trout River through intermittent streams and seeps stemming from these areas where AMPs
were not complied with. These Intermittent streams and seeps generally flow southwesterly to
the Trout River and are thus waters of the state.
Respondent offered testimony to rebut the ANR’s evidence which explained how the
flow of water was diverted in some areas into filter strips, and therefore, did not result in a
discharge. ANR countered with additional testimony that the flow of water in the area where
filter strips were used was too long of a run prior to diversion, with too much velocity, and that
the vegetated filter strip was not sufficient to comply with the AMPs. On the totality of the
evidence, we conclude that Respondent failed to comply with required AMPs along the
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Western Truck Road, West Landing, and Western Skid Trail resulting in a discharge to waters of
the state without a permit.
B. Northern Skid Trail
ANR also provided credible evidence of AMP non-compliance issues in September 2011
along the Northern Skid Trail, including ditches that terminated directly into the streams rather
than being diverted (AMP 4), the lack broad-based dips or water bars approaching culverts
(AMPs 6 and 11), and a lack of hay bale erosion check dams or diversions preventing water
from entering the streams (AMP 7). Furthermore, evidence of significant erosion and loss of
sandy material susceptible to erosion was introduced. These discharges were to the
headwaters of the Pacific Brook without a discharge permit. We therefore conclude that the
AMP non-compliance issues and related discharges in the area of the Northern Skid Trail to the
headwater of the Pacific Brook were violations of 10 V.S.A. § 1259(a).
C. Central Skid Trail
Furthermore, because it is illegal to discharge any waste into the waters of the state, the
significant amount of slash within the defined stream channel near the northwestern end of the
Central Skid Trail is also a “discharge.” 10 V.S.A. § 1259(a) and AMP 8. This is a violation
regardless of whether the slash causes erosion or sedimentation. Respondent and his
witnesses testified that this slash was cut and dropped under snow cover conditions. AMP
practices allow the temporary “brushing-in” of streams during frozen winter conditions
provided the slash is removed from the stream channel before spring runoff. The slash was not
removed prior to spring runoff. Thus, we conclude that this activity was a violation of 10 V.S.A.
§ 1259(a).
Respondent testified at trail that he should not be held liable for discharges in August
2011 because Hurricane Irene was the cause of the discharges. We disagree. If Respondent
was compliant will all AMPs in August 2011 when Hurricane Irene came through the logging
operation and the discharges took place, Respondent would not be found in violation. As
stated above, to find a violation, there must be a failure to follow the AMPs and an unpermitted
discharge. Although compliance with the AMPs does not guarantee that a discharge will not
occur, the AMPs are intended to minimize erosion and reduce sediment and temperature
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changes in streams to the extent possible. Thus, logging operations can insulate themselves
from being held in violation by complying with AMPs regardless of potential discharges to
waters of the State. Code of Vt. Rules 12 020 010 (“[A] logger or landowner is liable to legal
action only when a discharge takes place and either no permit has been obtained or the AMP's
have not been followed. Thus, the AMP's are not only basic to sound forestry; they also legally
protect the logger or landowner during and after timber harvesting.”).
As observed in March 2012, along the northwestern end of the Central Skid Trail, the
required protective strip of a wooded area was not left in place, but rather trees were
harvested right up to the stream bank resulting in non-compliance with AMP 14. Additionally,
harvesting equipment was located immediately adjacent to the stream. To the southeast along
the Central Skid Trail, there were areas lacking broad-based dips in the area where the trail
approached a stream (AMP 11) or hay bale erosion check dams or water diversions preventing
sediment from entering a stream (AMP7). While the stream in this area is part of the
headwaters of the Pacific Brook, the State did not persuade the Court of a nexus between a lack
of compliance with AMPs and a discharge in these areas. Although ANR did introduce
photographs from these areas showing sediment in the stream, there was no demonstrated
connection between the sediment and the failure to follow the AMP. Without this connection,
we cannot conclude that a violation of 10 V.S.A. § 1259(a) has occurred in this area.
Also observed in March of 2012, further southeast at approximately the mid-point of
the Central Skid Trail, the skid trail was established running immediately adjacent to a stream
without a protective strip in non-compliance with AMP 14 and this area lacked broad-based
dips in non-compliance with AMP 6. The State provided credible evidence that this area had
considerable bank erosion and sediment within the stream which is part of the headwaters of
the Pacific Brook. We therefore conclude that the non-compliance with AMPs and the
discharge of sediment to surface waters was a violation of 10 V.S.A. § 1259(a) in this area of the
Central Skid Trail.
Continuing further southeast on the Central Skid Trail, a stretch of a stream was
observed in March 2012 to be used as a skid trail in non-compliance with AMP 10. Additionally,
logging equipment was used within a protective strip in non-compliance with AMP 14, slash
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was deposited within the stream channel in non-compliance with AMP 8, a permanent stream
was crossed without a culvert or other structure in non-compliance with AMP 9, and there was
a lack of broad-based dips in the areas where the skid trail crossed streams in non-compliance
with AMP 11. The State introduced credible evidence of sediments in these areas to have been
discharged to the headwaters of the Pacific Brook. We conclude that the lack of compliance
with AMPs and resulting discharges to the headwaters in the southeastern portion of the
Central Skid Trail without permits were violations.
Respondent and his witnesses testified and provided documentary evidence that in
March 2012, Respondent had ongoing logging activities being conducted pursuant to winter
conditions.1 Respondent abruptly halted his logging activities in March 2012 due to a quick
spring thaw and temperatures considerably above freezing. Respondent testified that he
ordered his crew to stay off the Property to avoid further ground disturbance increasing the
potential for significant discharges. At trial, Respondent argued that he should not be held
responsible for an unexpected and drastic warm up in temperatures and the resulting need for
additional measures to fully comply with AMPs. We disagree. While a logging operation may
log during winter conditions with fewer AMP measures, operators due so at their own risk
because it is a certainty that the seasons will change and warm conditions will arrive requiring
the additional AMP measures to protect against erosion and reduce sediment and temperature
changes in streams. Thus, logging operations must ensure that appropriate AMPs are always in
place.
II. Penalty Assessment
When this Court determines that an environmental violation alleged by ANR in an
administrative order has occurred, we are required to “determine anew the amount of a
penalty” that should be assessed against the respondent who sought to challenge the ANR
order. 10 V.S.A. § 8012(b)(1), (4). We therefore review the evidence before the Court and
determine an appropriate penalty assessment, pursuant to the eight subsections of 10 V.S.A.
§ 8010(b)(1)–(8).
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AMPs can be modified to account for winter and summer conditions. Generally, winter logging conditions may
require less erosion and sediment controls. One example is “brushing-in” a streambed for crossing rather than
installation of a culvert. (See Exhibit 68 at 26).
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Subsection (1): Subsection (1) requires consideration of “the degree of actual or
potential impact on public health, safety, welfare and the environment resulting from the
violation.” Id. Respondents’ violations of 10 V.S.A. § 1259(a) had potential adverse impacts on
public health, safety, welfare, and the environment, given the number of violations during the
two time periods and the amount of material discharged to waters of the State. We impose a
penalty of $ 5,000.00. We conclude that such a penalty is warranted and we decline to impose
a more significant penalty under this subsection, since details of actual significant impacts on
public health, safety, welfare, and the environment were not demonstrated by the evidence
presented at trial.
Subsection (2): Subsection (2) requires consideration of “the presence of mitigating
circumstances, including unreasonable delay by the secretary in seeking enforcement.” Id. The
evidence presented of mitigating factors favoring Respondent includes Respondent fully
remediating the logging operation in a prompt fashion. Furthermore, Mr. Davis and his
employees were courteous during ANR’s investigations and all remedial work was performed in
a sound manner.
There is no evidence disfavoring the timeliness of ANR’s action. We therefore assess a
credit to benefit Mr. Davis for his prompt and complete remediation of $1,000.00.
Subsection (3): Subsection (3) requires consideration of “whether the respondent knew
or had reason to know the violation existed.” Id. The credible evidence shows that Respondent
did not have actual knowledge of the violations of 10 V.S.A. § 1259(a) in advance of ANR’s
inspections nor any evidence of Respondent having an affirmative intent to avoid compliance
with AMPs. There is some evidence that Respondent had reason to know of violations in March
2012 as ongoing logging activities were abruptly halted due to a quick spring thaw and
considerably above freezing temperatures. Respondent testified that he ordered his crew to
stay off the Property to avoid further ground disturbance increasing the potential for significant
discharges. Based upon this evidence, we decline to assess any additional penalty pursuant this
subsection as we feel that Respondent exercised his best judgment under the circumstances.
Subsection (4): Subsection (4) requires consideration of “the respondent’s record of
compliance.” Id. The record presented does not show that Respondent had previously violated
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ANR’s regulations. Given the Respondent’s number of years working in the logging industry
and his clean record of compliance, we decline to assess any additional penalty pursuant this
subsection.
Subsection (5): This subsection has been repealed.
Subsection (6): Subsection (6) requires consideration of “the deterrent effect of the
penalty.” Id. In reviewing the importance of establishing a penalty that will have a deterrent
effect upon Respondent, we note that Respondent testified to his respect for Vermont’s
streams and rivers and desire to reduce potential adverse impacts on public health, safety,
welfare, and the environment from his logging operations. We therefore see no need to
impose an additional penalty and hope and expect that the penalty in Subsection (1) will be
deterrent for Respondent to avoid future violations.
Subsection (7): Subsection (7) requires that we consider “the state’s actual cost of
enforcement.” Id. The value of the time that all ANR officials committed to responding to
Respondent’s violations, including prosecution of this matter, totals $5,509.43. We direct
Respondent to reimburse these costs as an additional penalty for his violations.
Subsection (8): Subsection (8) requires consideration of “the length of time the
violation has existed.” Id. At the time of trial, the credible evidence showed that Respondent
took appropriate and prompt measures to remedy his violations. We therefore impose no
additional penalty.
ANR provided evidence on the likely cost avoided by not fully complying with the AMPs
in the fall of 2011 and spring of 2012. We understand that Respondent ultimately and fully
remedied the compliance issues, and thus, incurred a similar cost of that which was originally
avoided. We therefore do not impose any amount of additional penalty relating to cost
avoidance.
Conclusion
For the reasons stated above, we conclude that Respondent Ken Davis failed to follow
AMPs which resulted in discharges of material to waters of the State without a permit. For the
above violations, Ken Davis shall be liable for a total penalty in these proceedings of $9,509.43.
Rights of Appeal (10 V.S.A. § 8012(c)(4)–(c)(5))
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This Decision and the accompanying Judgment Order will become final if no appeal is
requested within 10 days of the date this Decision is received. All parties to this proceeding
have a right to appeal this Decision and Judgment Order. The procedures for requesting an
appeal are found in the Vermont Rules of Appellate Procedure (V.R.A.P.) subject to superseding
provisions in Vermont Rule for Environmental Court Proceedings (V.R.E.C.P.) 4(d)(6). Within 10
days of the receipt of this Order, any party seeking to file an appeal must file the notice of
appeal with the Clerk of the Environmental Division of the Vermont Superior Court, together
with the applicable filing fee. Questions may be addressed to the Clerk of the Vermont
Supreme Court, 111 State Street, Montpelier, VT 05609-0801, (802) 828-3276. An appeal to the
Supreme Court operates as a stay of payment of a penalty, but does not stay any other aspect
of an order issued by this Court. 10 V.S.A. § 8013(d). A party may petition the Supreme Court
for a stay under the provisions of the Vermont Rules of Civil Procedure (V.R.C.P.) 62 and
V.R.A.P. 8.
A Judgment Order accompanies this Decision. This concludes the current proceedings
before this Court.
Electronically signed on May 01, 2015 at 11:57 AM pursuant to V.R.E.F. 7(d).
_________________________________________
Thomas G. Walsh, Judge
Superior Court, Environmental Division
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