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Sixty-Day Prior Notice Of Intent Sent 27 Feb 2006 |
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IS CONTAINMENT PROTECTIVE OF HUMAN HEALTH AND THE ENVIRONMENT? WHY IS BLUFF EROSION SUCH A THREAT? WHAT IS THE CURRENT LEGAL STATUS OF THE CLEANUP? WHO IS STEVEN POLLACK AND HOW CAN YOU HELP?
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The
President Honorable Donald H. Rumsfeld Office
of the Assistant Secretary of the Army Assistant
Secretary of the Navy Administrator Regional
Administrator Director The
Honorable Alberto Gonzales Lisa
Madigan February 27, 2006
RE: CERCLA
Sixty Day Prior Notice of Citizen Intent to Sue Dear
Mr. President, Secretary Rumsfeld, Attorney General Gonzales, and
Illinois Attorney General Madigan: Please accept this letter
and the attached material as a formal notice of my intent to bring suit
under 42 U.S.C. Section 9659 for violations of the Comprehensive
Environmental Response Compensation and Liability Act ("CERCLA")
at By way of summary, the
Army has failed to comply with the public participation requirements
mandated by CERCLA by conducting its final remedial activities at
Landfill 7 without providing public notice, a public meeting and an
opportunity for public comment prior to selecting and implementing the
final remedy. The multi-year
delay in providing an opportunity for mandated public participation is
also an ongoing violation of Administrative Procedures Act because it
constitutes unlawful, unreasonable delay on the part of the Army.
5 U.S.C. Section 706(1). In addition, certain critical aspects of
the Army's conduct in relationship to Landfill 7 and
The Army is illegally
avoiding its obligations to provide public participation as part of
developing a record of its final remedy selection.
At the same time, both the Army and Navy are acting as if
remedial activities at Landfill 7 are final and operating properly and
successfully, but avoiding the certification and consultation
requirements mandated by Section 9620.
Under these circumstances, at the conclusion of the 60 day
period, if these substantial violations of CERCLA are not remedied or
otherwise subject to U.S. EPA enforcement action, it is my intention to
seek declaratory and injunctive relief in My
interest in this matter is because the remediation of Landfill 7 is
directly tied to the health, safety and welfare of me, my family and my
community. Consequently, I
have spent many years preparing for the public hearing and comment
period that must precede the final remedy selection for Landfill 7, but
which has never taken place and is not presently scheduled.
I am a lifelong resident of Additionally, the children
of the Town of Fort Sheridan attend Legal Basis of this Notice of Intent to Sue The legal basis for this Notice of Intent to Sue is found in 42 U.S.C 9659 (a)(1) and (2), which states in relevant part: any person may commence a civil action on his own behalf (1) Against any person (including the US and any other governmental instrumentality or agency, as permitted by the 11th amendment) who is alleged to be in violation of any standard, regulation, condition, requirement, or order which has become effective pursuant to this chapter; or (2) Against the President or any other officer of the US (including the EPA Administrator…) where there is alleged a failure of the President or of such other officer to perform any act or duty under this chapter… which is not discretionary with the President or such other officer. Consistent with the
requirements contained in 42 U.S.C. 9659 (d) and (e), this letter
provides 60 days notice prior to commencing a civil suit in Administrator for the U.S.
EPA Region 5, the Administrator of the Illinois EPA, the Attorney
General of the Under 42 U.S.C. 9617(a), before
adoption or implementation of any plan for remedial action to be
undertaken by the President, by a State, or by any other person,
including remedial actions under section 9620, the President or State
"…shall take the following actions: (1) Publish a notice and brief analysis
of the proposed plan and make such plan available to the public. (ii) Provide a reasonable opportunity
for submission of written and oral comments and an opportunity for a
public meeting at or near the facility at issue regarding the proposed
plan… The final remedial action plan must include a response to each of the significant comments, criticisms, and new data submitted in written or oral presentations, as well as a discussion of any significant changes and the reasons for such changes. Under Section 9620 of CERCLA, "[e]ach department agency, and instrumentality of the United States (including the executive, legislative, and judicial branches of government) shall be subject to, and comply with, this chapter in the same manner and to the same extent, both procedurally and substantively, as any nongovernmental entity…" None of the public
participation activities mandated under Section 9617(a) have taken place
in relationship to Landfill 7 at The failure to provide public participation before selecting and implementing a final remedy is further highlighted by the Army's conduct in the present case. In fact, the Army and now the Navy are engaging in property transactions that should only occur after a final remedy is selected, implemented and is determined by U.S. EPA to be operating properly and successfully. Moreover, in conducting these transactions, the Army has consistently avoided the independent certification and consultation requirements mandated by section 9620 of CERCLA, triggered by the transfer and/or lease of land. Simply, the Army is not only avoiding public review, it is also avoiding CERCLA-mandated review by U.S. EPA of its remedial activities. Please be advised that Steven Pollack, who is not represented by legal counsel, intends to sue Donald Rumsfeld as Secretary of Defense, Francis Harvey as Secretary of the Department of the Army and Donald Winter as Secretary of the Department of the Navy under the citizen suit authority granted by 42 U.S.C. § 9659 for the failures of the Department of the Army and Department of the Navy to abide by the requirements of CERCLA §120; 42 U.S.C § 9620 at Fort Sheridan . Sincerely, Steven Pollack The following material is provided along with the attached letter in accordance with the provisions of 40 C.F.R. § 374 to give: sufficient information to allow the
recipient to identify the specific standard, regulation, condition,
requirement, or order (including any provision of an agreement under
section 120 of the Act, relating to Federal facilities) which has
allegedly been violated; the activity or failure to act alleged to
constitute a violation; the name and address of the site and facility
alleged to be in violation, if known; the person or persons responsible
for the alleged violation; the date or dates of the violation; and the
full name, address, and telephone number of the person giving notice. COUNT 1 Under 42 U.S.C. 9617(a), before
adoption or implementation of any plan for remedial action to be
undertaken by the President, by a State, or by any other person,
including remedial actions under section 9620, the President or State
"…shall take the following actions: (1) Publish a notice and brief analysis
of the proposed plan and make such plan available to the public. (ii) Provide a reasonable opportunity
for submission of written and oral comments and an opportunity for a
public meeting at or near the facility at issue regarding the proposed
plan… The final remedial action plan must include a response to each of the significant comments, criticisms, and new data submitted in written or oral presentations, as well as a discussion of any significant changes and the reasons for such changes.
Under Section 9620 of CERCLA, "[e]ach department agency, and instrumentality of the United States (including the executive, legislative, and judicial branches of government) shall be subject to, and comply with, this chapter in the same manner and to the same extent, both procedurally and substantively, as any nongovernmental entity…" None of the public
participation activities mandated under Section 9617(a) have taken place
in relationship to Landfill 7 at The failure to provide public participation before selecting and implementing a final remedy is further highlighted by the Army's conduct in the present case. In fact, the Army and now the Navy are engaging in property transactions that should only occur after a final remedy is selected, implemented and is determined by U.S. EPA to be operating properly and successfully. Moreover, in conducting these transactions, the Army has consistently avoided the independent certification and consultation requirements mandated by section 9620 of CERCLA, triggered by the transfer and/or lease of land. Simply, the Army is not only avoiding public review, it is also avoiding CERCLA-mandated review by U.S. EPA of its remedial activities. COUNT 2 The 1993 transfer by deed
of 185 acres, including Landfill 7, from the Army to the Navy is a
continuing violation of 42 U.S.C. § 9620 because no final remedial
action under CERCLA has been selected or implemented and no warranty has
been obtained from US EPA certifying that a final remedial action is
Operating Properly and Successfully.
The transfer of 185
acres is defective without this prerequisite warranty certification and
should therefore be held void. Contaminated federal
property may not be transferred to anyone, including another government
department or instrumentality, unless the final remedy is selected,
implemented, and demonstrated to the US EPA to be operating properly and
successfully.
42 U.S.C. 9620(h)(3)(A)
provides “…in the case of any real property owned by the United
States on which any hazardous substance was…known to have been
released, or disposed of, each deed entered into for the transfer of
such property by the United States to any other person or entity shall
contain--“ (ii) a
covenant warranting that- (I)
all remedial action
necessary to protect human health and the environment with respect to
any such substance remaining on the property has been taken before the
date of such transfer… 42 U.S.C 9620(h)(3)(B) defines the
covenant requirements as: For purposes of
subparagraph (A)(ii)(I) and (C)(iii), all remedial action described in
such subparagraph has been taken if the construction and installation of
an approved remedial design has been completed, and the remedy has been
demonstrated to the Administrator to be operating properly and
successfully. The US EPA clearly states
that the requirement for an OPS demonstration applies equally to
transfers between government agencies or instrumentalities:
“Determining what constitutes a
"transfer" of real property is important for implementing the
requirements of section 120(h). EPA referred to the FPMR at 41 CFR
101-47.203-2 in order to make sure that federal agencies realized that
the proposed regulations applied to transfers of property between
agencies. EPA believes that, since the statute consistently uses the
word "any" as in "whenever any department, agency, or
instrumentality enters into any contract for the sale or transfer of
property owned by the United States * * * each deed shall contain
covenants * * * " it appears clear that the statute and today's
rules must apply to federally owned real property sales and transfers
between agencies of the United States, between the United States and
private parties, and between the United States and state and local
governments.”.[1]
THERE CAN
BE NO DEMONSTRATION OF OPS BECAUSE THE CURRENT LANDFILL CAP IS NOT THE
FINAL REMEDIAL ACTION The transfer document for the 1993 transfer between the Army and Navy declares a transfer between military departments: “The subject property was mandated for closure pursuant to the “Defense Authorization Amendment and Base Closure and Realignment Act,” Title II, Public Law 100-526, October 24, 1988, hereinafter referred to as the BRAC Act. The Department of the Navy requested transfer of the subject land and facilities as provided by the BRAC Act, Section 204(b)(3) which authorizes the transfer of real property between military departments and other instrumentalities within the Department of Defense, with priority given to such department or instrumentality that agrees to pay fair market value.” [2] This transfer of
contaminated federal property triggered the requirement to include a
covenant in the deed warranting the proper and successful operation of a
final remedial action. No remedial action has been proposed for Landfill
7, no OPS demonstration has been made, and no covenant warranty was ever
placed in the deed. The185 acres transferred,
by deed, from the Army to the Navy in 1993 contains Landfill 7.
[3]
This landfill was created when the Army used it a dispose of
radioactive materials associated with the Nike anti-aircraft missile
program for which the base served as a regional maintenance facility,
untreated infectious medical waste, veterinary waste, sewage treatment
plant sludge, solvents, paint thinner and paint stripper, waste oil, out
of date chemicals and medicines of all types, and pesticides.[4]
Landfill 7 is considered by the US EPA to be a “Superfund
National Priorities List (NPL)-caliber” landfill.[5] The CERCLA process of
investigating the landfill, assessing the risks and studying the
feasibility of possible final remedial actions began in 1989.
The Army, with concurrence by the US EPA and Illinois EPA
approved an interim action in 1995 to place a cap on the landfill to
resolve the immediate dangers posed.
1.2
“The proposal to cap Landfills 6 and 7 as an interim
measure was explained at the public meetings as necessitated by the
escape of vinyl chloride gas. Specifically,
we were advised that the
risk factor for this gas is such that interim action must be taken at
this time. Surprisingly,
however, the Navy has left it to the individual discretion of the
residents proximate to Landfills 6 and 7 as to whether they wish to
relocate. There seems to be
a significant inconsistency between the Army’s rush to judgment to
install a cap and the Navy’s determination with respect to the
relocation of the adjacent residents.” Response: “Implementation of an interim remedial
action at Landfills 6 and 7 is necessary to address unacceptable
releases from the landfill to the environment and to comply with state
and federal environmental regulations.
Releases of landfill gas and leachate require action. The
landfill covers are in poor condition and allow excessive infiltration
of surface water resulting in leachate generation.
The landfill gas sampling and risk evaluations conducted indicate
no immediate risks for the military residents based on existing
conditions and a maximum period of 5 years living adjacent to the
landfills. Navy personnel
currently allocated to the adjacent housing live in these units no more
than 5 years. The Navy is
relocating residents in preparation for construction, not due to
short-term risks.”[6] The Army has still not proposed that the interim removal action already implemented should also constitute the final remedial action. The Army may still consider excavation of the landfill a viable remedy because it has not, as lead agency, taken a final position on the remedial alternatives in the form of a proposed Record of Decision. Without the Army proposing a final remedial action the US EPA cannot perform an OPS determination because the statute first requires that all remedial action already be taken. If, however, the Army considers the interim remedy to be the final remedy then it has done so in violation of the public participation requirements outlined above. The requirement for a covenant warranting the proper and successful operation of a final remedy under 42 U.S.C. § 9620(h)(3) is an important safeguard to human health and the environment in the case of an early transfer of contaminated federal property. Without an OPS demonstration there is no guarantee that the interim action will be protective against vinyl chloride gas once again releasing onto the adjacent property through the ambient air. As of August 2005 there had been no OPS demonstration requested of, or made by, US EPA. Such a request would be moot, however, because the Army has not yet proposed a final remedial action for Landfill 7. Therefore the 1993 transfer by deed of contaminated federal property was, and continues to be, unlawful. We seek an injunction to the continued ownership by the Navy and planning for redevelopment. Count 3 The December 22, 2005 transfer by deed of 35 acres adjacent to Landfill 7 from the Navy to the joint public/private venture (PPV) between the Navy and Forest City Military Communities LLC is a violation of 42 U.S.C. § 9620 because no final remedial action under CERCLA has been selected or implemented and no warranty has been obtained from US EPA certifying that a final remedial action is Operating Properly and Successfully. The transfer of 35 acres is defective without this prerequisite warranty certification and should therefore be held void. Contaminated federal
property may not be transferred to anyone, including another government
department or instrumentality, unless the final remedy is selected,
implemented, and demonstrated to the US EPA to be operating properly and
successfully.
(ii) a
covenant warranting that- (II)
all remedial action
necessary to protect human health and the environment with respect to
any such substance remaining on the property has been taken before the
date of such transfer… 42 U.S.C 9620(h)(3)(B) defines the
covenant requirements as: For purposes of
subparagraph (A)(ii)(I) and (C)(iii), all remedial action described in
such subparagraph has been taken if the construction and installation of
an approved remedial design has been completed, and the remedy has been
demonstrated to the Administrator to be operating properly and
successfully. The US EPA clearly states
that the requirement for an OPS demonstration applies equally to
transfers between government agencies or instrumentalities:
“Determining what constitutes a
"transfer" of real property is important for implementing the
requirements of section 120(h). EPA referred to the FPMR at 41 CFR
101-47.203-2 in order to make sure that federal agencies realized that
the proposed regulations applied to transfers of property between
agencies. EPA believes that, since the statute consistently uses the
word "any" as in "whenever any department, agency, or
instrumentality enters into any contract for the sale or transfer of
property owned by the United States * * * each deed shall contain
covenants * * * " it appears clear that the statute and today's
rules must apply to federally owned real property sales and transfers
between agencies of the United States, between the United States and
private parties, and between the United States and state and local
governments.”.[7]
THERE CAN
BE NO DEMONSTRATION OF OPS BECAUSE THE CURRENT LANDFILL CAP IS NOT THE
FINAL REMEDIAL ACTION In December of 2005 the
Navy transferred by deed 35 acres to Midwest Family Housing LLC, a
public private venture between the Navy and Forest City Military
Communities LLC,
under authority of Military Housing Privatization Initiative.[8]
This transfer of contaminated federal property triggered the
requirement to include a covenant in the deed warranting the proper and
successful operation of a final remedial action. No final remedial
action has been proposed for the vinyl chloride gas emitted by Landfill
7 onto the transferred property, no OPS demonstration has been made, and
no covenant warranty was ever placed in the deed. Remedial action under
CERCLA refers to the final remedy for a site which is chosen for overall
protection of human health and the environment, permanence, and long
term effectiveness. Removal
actions, in contrast, are short term remedies
implemented to address dangerous situations that cannot wait for
the lengthy remedial process to be completed.
The 35 acres transferred,
by deed, from the Navy to Midwest Family Housing LLC sits adjacent to
Landfill 7. This
landfill was created when the Army used it a dispose of radioactive
materials associated with the Nike anti-aircraft missile program for
which the base served as a regional maintenance facility, untreated
infectious medical waste, veterinary waste, sewage treatment plant
sludge, solvents, paint thinner and paint stripper, waste oil, out of
date chemicals and medicines of all types, and pesticides.[9]
Landfill 7 is considered by the US EPA to be a “Superfund
National Priorities List (NPL)-caliber” landfill.[10] The CERCLA process of
investigating the landfill, assessing the risks and studying the
feasibility of possible final remedial actions began in 1989.
The Army, with concurrence by the US EPA and Illinois EPA
approved an interim plan in 1995 to place a cap on the landfill to
resolve the immediate dangers posed.
The current cap on
Landfill 7 was therefore created as a short term removal action to
address releases of contaminants into 1.3
“The proposal to cap Landfills 6 and 7 as an interim
measure was explained at the public meetings as necessitated by the
escape of vinyl chloride gas. Specifically,
we were advised that the
risk factor for this gas is such that interim action must be taken at
this time. Surprisingly,
however, the Navy has left it to the individual discretion of the
residents proximate to Landfills 6 and 7 as to whether they wish to
relocate. There seems to be
a significant inconsistency between the Army’s rush to judgment to
install a cap and the Navy’s determination with respect to the
relocation of the adjacent residents.” Response: “Implementation of an interim remedial
action at Landfills 6 and 7 is necessary to address unacceptable
releases from the landfill to the environment and to comply with state
and federal environmental regulations.
Releases of landfill gas and leachate require action. The
landfill covers are in poor condition and allow excessive infiltration
of surface water resulting in leachate generation.
The landfill gas sampling and risk evaluations conducted indicate
no immediate risks for the military residents based on existing
conditions and a maximum period of 5 years living adjacent to the
landfills. Navy personnel
currently allocated to the adjacent housing live in these units no more
than 5 years. The Navy is
relocating residents in preparation for construction, not due to
short-term risks.”[11] The release of vinyl
chloride gas into the ambient air falls under the definition of
contamination in 42 U.S.C. 9620(h)(3)(A); “…in the case of any real
property owned by the United States on which any hazardous substance
was…known to have been released…” Even
though Landfill 7 is not part of this transfer does not change the fact
that the release of vinyl chloride gas onto this adjacent and contiguous
land brings these 35 acres into the realm of contaminated federal
property under 42 U.S.C. 9620(h)(3)(A).
In fact, this transfer marks the first time in the history of The transfer of this 35 acres by deed to the PPV and the lease of the other Navy property north of Landfill 7 to the PPV can only be construed as an attempt by the Navy to avoid triggering the requirements under 9620(h)(3) to obtain a covenant from US EPA that a final remedial action for Landfill 7 is operating properly and successfully. Congress created this requirement to avoid redevelopment of contaminated federal property prior to obtaining an OPS determination by US EPA. This shrewd tactic by the Navy of divesting everything adjacent and contiguous to the contaminated property eviscerates the intent of congress. If the court allows the transfer of land contiguous to contaminated hotspots without warranty, even when those hotspots released hazardous waste onto the transferring property, then no covenant would ever be sought. Without the covenant warranting the proper and successful operation of the remedy at the hotspot then the previously contaminated transferring property is at the mercy of a potentially flawed remedial action. In the present case, the disingenuousness of the claim that Landfill 7 is not being transferred by deed along with the 35 acres is shown because the Army has on several occasions promoted using the landfill as open parkland in support of the housing redevelopment. The Army has presented this idea in re-use plans and by seeking to have the Park District of Highland Park operate the property as open space. It is hard to imagine 185 acres of housing without open space and parks. So notwithstanding the argument that Landfill 7 is not being transferred by deed, it is being transferred by use in support of the 35 acres being transferred by deed. Finally, the very next paragraph, 9620(h)(4) is a requirement that federal facilities identify uncontaminated property prior to realignment (A) “…shall identify the real property on which no hazardous substances…were known to have been released…. Such identification shall be based on an investigation of the real property to determine or discover the obviousness of the presence or likely presence of a release or threatened release of any hazardous substance…on the real property. The identification shall consist, at a minimum, of a review of each of the following sources of information concerning the current and previous uses of the real property:” (iv) A visual inspection of the real
property and any buildings, structures, equipment, pipe, pipeline, or
other improvements on the real property, and a visual inspection of
properties immediately adjacent to the real property. (v) A physical inspection of property
adjacent to the real property, to the extent permitted by owners or
operators of such property. (vi) Reasonably obtainable Federal, State,
and local government records of each adjacent facility where there has
been a release of any hazardous substance or any petroleum product or
its derivatives, including aviation fuel and motor oil, and which is
likely to cause or contribute to a release or threatened release of any
hazardous substance or any petroleum product or its derivatives,
including aviation fuel and motor oil, on the real property. The
35 acres cannot be considered uncontaminated property because the
definition of contaminated property includes the release of hazardous
substances from adjacent property. Landfill
7 did release vinyl chloride gas, which is hazardous, onto the 35 acres
now being transferred. Even
though Landfill 7 has undergone an interim action to prevent further
release, the contamination
of the 35 acres creates an obligation for the Navy to seek a covenant
from US EPA that all final remedial action is operating properly and
successfully and to place this covenant into the deed.
The Army has still not proposed that the interim removal remedy already implemented should also constitute the final remedial action. The Army could still consider excavation of the landfill a viable remedy because it has not taken a final agency position on the issue. The requirement for a covenant warranting the proper and successful operation of a final remedy under 42 U.S.C. § 9620(h)(3) is an important safeguard to human health and the environment in the case of an early transfer of contaminated federal property. But for an OPS demonstration there is no guarantee that vinyl chloride gas will not once again release onto the adjacent property through the ambient air. As of August 2005 there had been no OPS demonstration requested of, or made by, US EPA. Such a request would be moot, however, because the Army has not yet proposed a final remedial action for Landfill 7. Therefore the 2005 transfer by deed of contaminated federal property was, and continues to be, unlawful. We seek an injunction to the continued ownership by the PPV and planning for redevelopment. Count 4 The Navy has entered into a public private venture with Forest City Military Communities LLC. This new venture is called Midwest Family Housing LLC. The PPV has obtained a 55 year ground lease from the Navy in order to redevelop family housing that will in turn be leased to Navy personnel at the nearby Great Lakes Naval Base. This redevelopment will be on the land contiguous and adjacent to the north of Landfill 7. The PPV has also obtained ownership, by deed, to the 35 acres of property contiguous and adjacent to the south of Landfill 7. The PPV obtained this property to sell at market and use the proceeds for the redevelopment of family housing on the ground leased property. Because the Navy is a party to the PPV, the lease of property, albeit from itself, requires consultation with US EPA. 42 U.S.C. 9620(h)(3)(B) states: “In the case of a lease entered into after September 30, 1995, with respect to real property located at an installation approved for closure or realignment under a base closure law, the agency leasing the property, in consultation with the Administrator, shall determine before leasing the property that the property is suitable for lease, that the uses contemplated for the lease are consistent with protection of human health and the environment, and that there are adequate assurances that the United States will take all remedial action referred to in subparagraph (A)(ii) that has not been taken on the date of the lease.” In fact, the plain meaning of this statute could apply to the Navy as both lessor and lessee because the language supports both interpretations. As of November, the Navy had not consulted with US EPA on this lease. Because this consultation is a prerequisite to the creation of a lease, the lease between the Navy and the PPV should be held void. Sincerely, Steven Pollack [1]
Final [2]
Transfer and Acceptance of Military Real Property, Transfer of a
Portion of [3]
Transfer and Acceptance of Military Real Property, Transfer of a
Portion of [4]
[5]
[6]
Responses to Comments, Interim Action – [7]
Final [8] The National Defense Authorization Act for FY 1996, Public Law 104-106 110 Stat 186 Section 2801 [9]
[10]
[11]
Responses to Comments, Interim Action –
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If you want to know what you can do, stand up and being counted! Let your legislators know your feelings. You don't have to be a resident of Highland Park or Lake Forest to be concerned about this landfill. Lake Michigan is a critical national fresh water resource. Send your congressman an e-mail! Send your senator an e-mail! Send Governor Blagojevich e-mail! Send the president an e-mail! by Steven Pollack You can become a part of the good fight by helping cover the cost of advocacy in this matter. While not tax deductible, 100% of your donation will go towards either litigation expenses or the cost of publicizing this issue. Please e-mail me to let me know your views! This website launched 5/30/97
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