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Christie BPU Slated To Approve Another Pinelands Pipeline Tomorrow

March 17th, 2016 No comments

Christie’s Climate Defying Fossil Policy Must Be Stopped

[UPDATE – 3/18/16 – Game on! Protesters being dragged out of BPU meeting by police

Protesters being dragged out of BPU meeting by police -Photo by David Giambussso (Twitter) (3/18/16)

Protesters being dragged out of BPU meeting by police -Photo by David Giambussso (Twitter) (3/18/16)

 

As the planet’s temperature just reached a “terrifying milestone” and scientific evidence mounts on the role of methane (natural gas) in warming, tomorrow the Christie Board of Public Utilities (BPU) is expected to rubber stamp approval of yet another major natural gas pipeline fossil fuel infrastructure project.

The NJ Natural Gas Co.’s “Southern Reliability Link” through the Pinelands is on BPU’s agenda – BPU will approve the pipeline AND preempt local control – extinguishing democratic rights – yet no public comment is allowed during the BPU’s hearing tomorrow:

  1. Docket No. GO15040403 – In the Matter of the Petition of New Jersey Natural Gas Company for a Determination Concerning the Southern Reliability Link Pursuant to N.J.S.A. 40:55D-19 and N.J.S.A. 48:9-25.4.

It is simply insane to be approving more fossil infrastructure given the climate crisis, which demands a dramatic shift in energy infrastructure investments to renewable energy.

Scientists warn that we must leave over 80% of known fossil fuel reserves (coal, oil, & gas) in the ground to avoid exceeding climate tipping points and catastrophic warming that would threaten industrial civilization.

In addition to climate insanity, this pipeline would violate the Pinelands Comprehensive Management Plan and is based on fraud – the NJNG pipeline planners manufactured a false military need for the project to circumvent Pinelands CMP restrictions.

The Pinelands Preservation Alliance BPU petition absolutely demolished NJNG’s alleged “resilience” justification for the need of the project:

“The undisputed facts unequivocally show that NJNG is not seeking to install its pipeline for “reliability” in case of another natural disaster such as Hurricane Sandy or the Polar Vortex of 2014; it’s simply seeking to increase its profit margin. How do we know this? By simply looking at the numerous contradictions put forth by NJNG. (facts not presented here, full PPA brief provided upon request)

PPA also uncovered emails between NJNG and military officials that  reveal the fraud. PPA’s argued:

“NJNG has portrayed the pipeline as an essential source of natural gas for JB MDL. However, the attempt to construct the pipeline through the Lakehurst section of the JB was nothing more than an afterthought prompted by a more streamlined approach for approval by the Pinelands Commission. This is evident from email exchanges between a representative of NJNG and representatives from the JB. An email to a JB official from NJNG reads as follows:

Subject: Proposed Pipeline route thru the Joint Base McGuire-Dix-Lakehurst.

We met with the Pinelands Commission last week for an initial review [of] our pipeline proposal. They agreed with us that the southern route would be the best option but there were still issues with a section along Route 70 where we need to past [sic] through a section of Forest Preservation area that would make the approval process more cumbersome. They suggested that we approach you to see if we could reroute the line through your base and come out the back end of our project. They believe that this new route along with a letter from the base that the presence of the pipeline would be a positive attribute to future base activities could streamline the process. (emphasis added)

The facts show that there is no need for or demand on Joint Base for the NJNG pipeline.

Despite knowing of this NJNG fraud and despite huge public opposition, once again, Pinelands Executive Director Wittenberg went behind the back of the Commission and supported the NJNG pipeline.

The day before last Friday’s Commission meeting, without the knowledge or approval of the Commission (personal communication) or publicly disclosed during her monthly management report,  – just as she deceptively did for the South Jersey Gas pipeline – Wittenberg promoted Gov. Christie’s fossil agenda and wrote BPU in support of the pipeline (Burlington County Times):

In a letter sent Thursday from commission Executive Director Nancy Wittenberg to the BPU, she said that the staff reviewed the discovery documents, transcripts and legal briefs submitted by Chesterfield and the Pinelands Preservation Alliance to the BPU, and that their opinion of the project “remains unchanged.”

“The only new issue raised as part of the BPU process pertained to whether the proposed project was associated with the function of Joint Base McGuire-Dix-Lakehurst,” Wittenberg said in the letter. “The application record for the proposed project aptly supports the joint base’s need for the proposed project. Thus, the application has demonstrated that the proposed gas main is a permitted use in a military and federal installation area.”

We hope that BPU will hear from the public tomorrow – we’ll keep you posted.

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Gov. Christie Cans Pinelands Commission Chairman

January 29th, 2016 No comments

Replacement of Chairman Lohbauer with Republican Hack Is The Latest Retribution

Another Attack on Pines

The Pinelands Commission appointments are becoming an extended montage from Goodfellas – you don’t know who is going to get hit next. ~~~ Doug O’Malley, Environment NJ

I went to the Pinelands Commission’s meeting this morning expecting to listen to a staff briefing on climate change.

Mark Lohbauer, former Chairman, Pinelands Commission

Mark Lohbauer, former Chairman, Pinelands Commission

Instead, I got blind-sided by Chairman Lohbauer’s announcement that Gov. Christie’s Office called him last night and told him he was being replaced by Commissioner Earlen (he is Burlington County’s representative – read Burlington County Times story and this for a flavor of county issues with Mr. Earlen’s County Freeholder appointment. *And the Asbury Park Press story and the Philadelphia Inquirer story.]

Lohbauer had the integrity to defy the Gov. and vote to oppose the South Jersey Gas pipeline – leadership that I’m certain influenced NO votes from other Commissioners – and the independence to buck the Governor on a host of other issues. He even had the temerity to write an Op-Ed – twice! -proudly defending his pipeline NO vote and upholding the integrity of the CMP (see this and this).

Earlen voted in favor of the pipeline and has played a passive role at the Commission, rarely making any public comment. His background is in construction and development, so bright red flags are raised, even without the obvious Gov. Christie reprisals. Take a look at his employer’s website, where Earlen serves as Vice President for Real Estate, Environmental and Public Affairs – is this compatible with the mission of the Pinelands Commission?

silvi

Lohbauer always provided plenty of opportunity to allow the public to speak and he treated people with respect and listened to their concerns – this is the opposite set of values than the arrogant authoritarians who populate the Christie administration.

Perhaps Lohbauer’s support for addressing climate change was the last straw that sealed his fate. Or it could have been his remarks that were critical of Christie’s pawn ED Wittenberg or the Gov. Conditional Veto of the soccer fields bill.

Add Lohbauer to Christie’s long and growing hit list of Pinelands Commissioners Jackson, and Commissioner Ficcaglia and Commissioner Lloyd. (that doesn’t count similar Christie attacks on those who have integrity and independence, including Highlands Council Director Swan – and Legal Counsel Tom Borden, who resigned in protest).

It’s not even technically official yet – Earlen was not yet sworn in – but its been posted prominently on the Commission’s website (ED Wittenberg probably wrote it herself in glee).

Mudder fuckers

To make matters worse, instead of a briefing on climate change – which I warned was being derailed behind the scenes by Executive Director Wittenberg – the Commission was besieged by the off road motorized recreational community, commonly derogatorily referred to as the “mudders”.

For a brief look at that destruction, from the website Pine Barens Under Siege: (additional photos forthcoming):

pins under seige

Substantively, the “mudders” don’t have a leg to stand on scientifically or politically – not many people would support monster trucks doing donuts in sensitive vernal meadows, wetlands and stream channels.

But bureaucratic incompetence and arrogance by the Pinelands preservation advocates has surrendered the reasonable policy high ground.

The Christie DEP gave the mudder faction 2 strong legs to stand on by totally mismanaging the DEP’s Motorized Access Plan (MAP) to restrict off road access and close certain roads.

Making similar mistakes, Pinelands conservationists – by working covertly behind the scenes with DEP in developing the MAP before it was publicly vetted in DEP’s flawed “Stakeholder” process – gave the mudders a rope to hang DEP and themselves with.

Those mistakes have not only forced DEP to retreat and discredited the MAP initiative, they have generated a huge backlash and empowered mudders and a supporting group of more responsible motorized allies.

The DEP retreat has emboldened the mudders and made a growing problem even worse.

COAH – Huge Affordable Housing Conflicts With CMP

After the Christie attack and onslaught of the mudders, we were then treated to a briefing on how affordable housing litigation could overwhelm the Pinelands with far more housing units and density than allowed under the Comprehesive Management Plan and approved local zoning scheme.

Staff presented a crude analysis of COAH obligations under various analyses now before the courts and how those numbers on affordable housing obligations would impact certain Pinelands Towns under CMP requirements.

Despite appeals from Commissioner Lloyd and public commenters – including myself who recommended filing a amicus -,the Commission seemed very reluctant to get out in front of the COAH freight-train. The best they could even imagine was to try to write a letter to someone laying out their concerns about threats to the CMP.

Hello! Don’t just stand there, DO SOMETHING!

Not Much Work Getting Done – Other Than Rubber Stamping Pipelines

On top of all that bad news, staff presented the current status of implementing all the recommendations of the Plan Review Report

 The takeaway message of that staff briefing is that the Commission has done virtually nothing to advance the recommendations, and Gov. Christie must approve any CMP amendments anyway so there’s not much use in trying. The refrain:

Next Steps: Resubmit proposal to Governor’s office.

Perhaps the Pinelands lawyers can tell me where the law says that all CMP amendment rule proposals must be submitted to and approved by the Governor’s Office before NJ Register proposal – just where is that requirement in the Pinelands Act or the Administrative Procedures Act?

My understanding is that the Gov. has power to veto the minutes – that is very different than a power to approve rules before they are released for public view or proposed in the NJ Register.

I was particularly disgusted with the runaway from the commitment to adopt CMP amendments to implement the ecologically based water allocation restrictions known as the Kirkwood-Cohansey project.

It was perhaps the worst day in Pinelands history – the only thing that can put some brakes on this runaway train is either litigation, direct action protests, or the federal government.

Each of these issues require an individual post, which I hope to get to in the coming days.

I just had to vent at this point. And, just to turn your stomach further, take one more look at the new Chairman of the Pinelands Commission’s career thang:

silvi2

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Pinelands Executive Director Defends Gov. Christie and Again Sandbags the Commission on Soccer Controversy

January 18th, 2016 No comments

I began writing this as a post on the resolution of the Pinelands soccer fields land use dispute, the DEP Motorized Access Plan (MAP), and the kickoff of the Pinelands Commission’s 2016 as a year in preview, but it got way too long.

So I am breaking it up into 3 separate posts, starting now with the least significant issue about soccer fields. Next I will do the DEP MAP and last the 2016 year in preview.

I did not follow the soccer controversy. My initial take on it was that it was being used as a diversion to deflect focus and criticism from Executive Director Wittenberg’s approval of another Certificate of Filing for the NJ Natural Gas pipeline.

While the soccer fields dispute may seem a minor issue, it highlights, at best poor communication, or more likely a continuing pattern of unilateral acts of insubordination and sabotage by Executive Director Wittenberg.

Once again, Wittenberg is following the direction of Governor Christie and not the Pinelands Commission.

This time, unlike the South Jersey Gas pipeline controversy, the Commission’s policy position was unanimous, was made clear publicly, and was communicated to Wittenberg, so the defiance has no justification in any ambiguity or a divided Commission.

So, what’s up with this?

During Friday January 15, 2016 Commission meeting, Chairman Lohbauer summarized the Commission’s position in strong opposition to the soccer fields legislation, to Gov. Christie’s Conditional Veto of the bill passed by the Legislature, and to the Legislature’s concurrence with the Gov.’s CV: (verbatim quotes):

Staff worked hard to put together a strong position as to why the bill should not be passed.

The Commissioners joined unanimously in taking a stand against the passage of that bill. We communicated that to Trenton.

When the bill was passed, the Governor’s Office did conditionally veto it. …..

So once again, we lobbied to encourage the Legislature NOT to pass the Conditional veto  ….I’m sad to say that it did pass. (watch, at time 34:00) (emphases mine)

[To reiterate and make clear: Lohbauer opposed 3 discrete things that occurred in discrete timeframes: 1) the proposed legislation; 2) the Gov.’s conditional veto; and 3) the legislature’s concurrence with the Gv. CV.]

But just 4 days prior to Chairman Lohbauer’s explanation and during a critical period, Executive Director Wittenberg took the OPPOSITE position in the press, in support of the Governor and the CV .

Worse, Wittenberg stated this position BEFORE the legislature had concurred with the Governor’s CV, thereby sending a green light from the Commission that contradicted the Commission’s publicly stated position:

“Pinelands Commission Executive Director Nancy Wittenberg said the governor has narrowed the focus of the bill even tighter than its original, with only field sports added to the list of allowable low-intensity recreational activities.

“We are pleased the governor heard our concerns and is limiting this as tightly as he has,” said Wittenberg. “We can live with this.” ~~~ see Press of Atlantic City story

WTF? Who does Wittenberg work for?

Earlier in her career, Wittenberg was a lobbyist for the NJ Builders Association, so she knows exactly how the Trenton game is played.

Why does the Commission continue to get hoodwinked?

What does it take to get fired?

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Christie BPU “Thoroughly” Approves South Jersey Gas Pinelands Pipeline

December 16th, 2015 No comments

BPU issues “thorough” but dishonest approval

‘The only evidence [before BPU] is testimony of witnesses of the company.”

A Postscript to Paris

As expected, today BPU issued what may be the final approval for the South Jersey Gas Pinelands pipeline.

Here’s all you need to know about what went down this morning in Trenton – there were some surprises and flat out shocking developments:

1. Notoriety

In his introductory remarks, BPU President Mroz characterized 2 years of strong public opposition to the pipeline, from thousands of people, including a letter from 4 former Governor’s and a 7-7 deadlocked vote by the Pinelands Commission, as “a great amount of notoriety”.

I guess that makes his vote in favor of the pipeline “notorious”.

2. Ethics

In response to public comments suggesting that BPU President Mroz had a conflict of interest as a result of his former role with the NJ Energy Coalition, the State Ethics Commission reviewed the matter and determined that Mroz has no conflict and may participate in the matter.

Guess it’s like those ads for the Lottery – when it comes to ethics: “Anything can happen in Jersey”

3. Democracy Fail

In a remarkably blunt remark, BPU staff confirmed a critical point, flat out stating that public opposition played essentially no role in the BPU’s decision: and this is a verbatim quote:

‘The only evidence [before BPU] is testimony of witnesses of the company.”

Got that?

BPU conducts “quasi-judicial proceedings” – just a fancy legal term for “trial – like”.

You all know what this means, having read about or seen criminal cases on TeeVe where the cops illegally obtained evidence (e.g. no search warrant), which was thrown out by the Judge, allowing the guilty criminal to go free.

4. PPA Ignored

The Pinelands Preservation Alliance (PPA) was granted participant status in the evidentiary hearing before BPU. PPA submitted legal and technical documents in opposition to the pipeline.

South Jersey Gas lawyers objected to the PPA participation and argued it was not “evidence” but merely “public comment”.

Obviously, left unstated was that BPU agreed and basically knocked out PPA’s participation as legal evidence the BPU must consider.

Like the Judge disqualifying the illegally obtained evidence against the criminal.

But this time, BPU and SJG got to walk.

5. Wittenberg strikes again

BPU relied not only on the Certificate of Filing by Pinelands staff.

The Certificate was backed up by a more recent August 2015 letter – or letters, it was unclear if there were two – from ED Wittenberg, reiterating that the pipeline was consistent with the CMP.

Wittenberg wrote that that after she reviewed all the testimony from the BPU hearings, that the project was consistent.

The BPU staff went out of their way to be clear that they relied on the Wittenberg letter(s) regarding the CMP and Pinelands issues.

This appears to be an obvious attempt to insulate BPU’s approval from any legal challenge on the grounds of conflicts with the Pinelands Protection Act on the issue of the relationship between the Pinelands Act and the Municipal land Use Law.

It will also be used to defeat any arguments that BPU somehow usurped the role of the Pinelands Commission regarding determination of consistency with the CMP – BPU can argue Nancy did it.

Wittenberg plays dirty and has done everything possible to promote this pipeline.

6. BPU relied on Christie DEP – not Pinelands Commission – for environmental review

BPU noted that they “had early meetings with the company (SJG)” to review the alternative pipeline routes and relied on the DEP – not the Pinelands Commission – to review and approve the company’s selection of the pipeline route, based on environmental considerations.

BPU’s role in review and selection of the route was limited to safety and cost.

7. Mroz is intellectually dishonest – “thoroughly” cherry picks the evidence and ignores key climate concerns

After the vote approving the project, BPU President Mroz took the unusual step to read a lengthy prepared statement about his rationale for voting in favor of the project.

I won’t go into the details, all of which have been mentioned before, but will simply observe that Mroz cherry picked his “evidence” and his “public comment” and that he complete ignored the issue of climate change, social costs of carbon, and significant risks of stranded assets borne by ratepayers.

That all folks – my sense, but this was not made clear, is that the pipeline has all of the approvals necessary to begin construction (aside from perhaps minor construction permits, like road opening, etc).

BPU gives RC Cape May (BL England owner) and South Jersey Gas a big Christmas present.

Send lawyers, guns and money – the shit has hit the fan.

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Christie BPU Slated To Issue Key Approval For Pinelands Pipeline Tomorrow

December 15th, 2015 No comments

South Jersey Gas petition would preempt local land use reviews

Local preemption would vest sole review over Pines pipeline with BPU

Legislators asked to intervene, conduct oversight, or veto BPU decision

At the last minute, in the wake of the Paris climate accord and a week before Christmas, the Christie Board of Public Utilities (BPU) put the South Jersey Gas Pinelands pipeline on the Agenda for tomorrow’s BPU public hearing:

  1. Docket No. GO13111049 – In the Matter of the Petition of South Jersey Gas Company for a Determination Pursuant to the Provisions of N.J.S.A. 40:55D-19.

Should BPU grant SJG’s petition, two things would happen:

1) local governments would be preempted from any reviews under local planning and zoning laws; and

2) the pro-gas BPU, who has already issued 3 Orders approving various aspects of the SJG pipeline, would be the agency to review the pipeline for compliance with the Pinelands Comprehensive Management Plan (CMP).

Repeat: BPU, not the independent, legislatively authorized, and technically qualified Pinelands Commission, would review, determine compliance, and vote to approve or deny the SJG Pinelands pipeline under the CMP.

This is LEGALLY ABSURD.

To make matters even worse, there is no opportunity for the public to comment at tomorrow’s BPU meeting.

So, as a last ditch effort to derail this monstrous decision by BPU, I appealed to Senator Lesniak, who has opposed the pipeline and Senate Environment Committee Chairman Bob Smith.

I’ve requested a legal opinion by the Office of Legislative Services (OLS) regarding the scope of their Constitutional power to veto Executive Branch decisions and to hold legislative oversight hearings of BPU’s decision.

The BPU’s decision to preempt local MLUL powers has statewide implications and the preemption in the context of there Pinelands Act is a major prededential decision virtually certain to face legal challenge.

Dear Senators Smith and Lesniak:

As you know, the NJ Constitution’s  Article V, section IV, paragraph 6 power applies to executive branch rule making (text below).

Has OLS considered the application of this Legislative power to actions by the Board of Public Utilities (BPU)? Could BPU decisions be construed as “rules” within the meaning of this Article?

Tomorrow, the BPU is scheduled to consider a petition, filed by South Jersey Gas for a Determination Pursuant to the Provisions of N.J.S.A. 40:55D-19 – preemption of municipal land use review powers under the MLUL.

This is the Pinelands pipeline – because the Pinelands Commission issued a “Certificate of Filing”, should BPU approve this petition by SJG then BPU would have dispositive final approval powers over the pipeline, subject ONLY to the STAFF review by the Pinelands Commission, not the vote of the full Commission.

Is the BPU’s determination in this matter subject to Legislative oversight?

Is the BPU’s determination in this matter subject to Legislative veto pursuant to  Article V, section IV, paragraph 6 powers?

We urge your immediate attention to this matter,

Respectfully,

Bill Wolfe

6.   No rule or regulation made by any department, officer, agency or authority of this state, except such as relates to the organization or internal management of the State government or a part thereof, shall take effect until it is filed either with the Secretary of State or in such other manner as may be provided by law.  The Legislature shall provide for the prompt publication of such rules and regulations.  The Legislature may review any rule or regulation to determine if the rule or regulation is consistent with the intent of the Legislature as expressed in the language of the statute which the rule or regulation is intended to implement.  Upon a finding that an existing or proposed rule or regulation is not consistent with legislative intent, the Legislature shall transmit this finding in the form of a concurrent resolution to the Governor and the head of the Executive Branch agency which promulgated, or plans to promulgate, the rule or regulation.  The agency shall have 30 days to amend or withdraw the existing or proposed rule or regulation.  If the agency does not amend or withdraw the existing or proposed rule or regulation, the Legislature may invalidate that rule or regulation, in whole or in part, or may prohibit that proposed rule or regulation, in whole or in part, from taking effect by a vote of a majority of the authorized membership of each House in favor of a concurrent resolution providing for invalidation or prohibition, as the case may be, of the rule or regulation.  This vote shall not take place until at least 20 calendar days after the placing on the desks of the members of each House of the Legislature in open meeting of the transcript of a public hearing held by either House on the invalidation or prohibition of the rule or regulation.

[Update – close of business, 5 pm:

I sent the Lesniak/Smith letter to PPA, Sierra Club, Environment NJ, and Food and Water Watch this morning asking for support.

Didn’t get the respect of a reply, except from Lena of FWW.

I think they all just are afraid to be associated with my name – the Yes Men stunt was probably the last straw.

Cowards.

But noted that PPA did send out an alert to their members, but with no mention of any effort to lobby legislators.

We have argued that the BPU cannot waive the duly-adopted and certified municipal land use provisions which are authorized and required by the National Parks and Recreation Act of 1979, the New Jersey Pinelands Protection Act, and the Pinelands Comprehensive Management Plan (CMP).  Because the ordinances in question are required by Pinelands regulations, they are not subject to waiver via the Municipal Land Use Law.  Where there is a conflict, the Pinelands CMP requirements override the Municipal Law Use Law.

 

[Update #2 – both Sierra Club and PPA have effusively and publicly praised Senator Lesniak for his opposition to the pipeline, so why wouldn’t they publicly call on him now for support?

PPA:

Even worse than the hastily called Judiciary Committee meeting is the fact that Senate President Sweeney chose to replace a committee member, Senator Lesniak (who was vacationing), with Senator Van Drew. Senator Lesniak has been an outspoken advocate against the pipeline and the nomination of Robert Barr. Senator Van Drew, as mentioned above, is an outspoken supporter of the pipeline. Senator Lesniak tried to return in time for the vote but by then he had already be replace by Senator Van Drew and it was Senator Van Drew’s vote that passed Barr out of the Judiciary Committee.

Sierra Club:

“This is not just about the pipeline, that’s just one issue, but the future of the Pinelands in South Jersey,” added Jeff Tittel, Director of the New Jersey Sierra Club, who said he’d received a letter from Lesniak saying he supports Jackson’s work on the commission and continues to support him.

More from Sierra Club, who suggested a “purge”:

Sen. Raymond Lesniak, D-Union, an opponent of the pipeline, was absent from the Tuesday vote. Sweeney replaced him with project proponent Sen. Jeff Van Drew, D-Cape May.

Sweeney said the change was routine.

“Lesniak had told us he wasn’t coming so we substituted for him. If he really wanted to come, he could have been there, but it wouldn’t have changed the outcome,’’ Sweeney said.

Jeff Tittel, state director of the Sierra Club, said Barr taking the place of Robert Jackson, who was not reappointed after opposing the pipeline, demonstrated that “the governor is trying to get rid of all the commissioners who opposed the pipeline and this is part of that purge.’’

They even generated a favorable Star Ledger editorial praising Lesniak:

How did Barr clear the hurdle this time? Sweeney got curiously lucky that Sen. Raymond Lesniak (D-Union) happened to be late for the vote, so his spot on the committee was filled by Sen. Jeff Van Drew (D-Cape May).

Unlike Lesniak, Van Drew supports the pipeline, which will run 22 miles — mostly through the forest and on the shoulder of Route 49 – and feed natural gas to the B.L. England power plant in upper Cape May County.

Lesniak has gotten a lot of mileage out of his Pinelands pipeline opposition – he should be called on and deliver help when crunch times like BPU’s vote come along.

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