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Staten Island Rapid Transit - Order, November 27, 1995

Order, November 27, 1995


In the Matter of Alleged Violations

of Article 24 of the New York State
Environmental Conservation Law and
Part 663 of Title 6 of the Codes, Rules and
Regulations of the State of New York



DEC No. R2-0106-94-06





  1. Pursuant to a Complaint dated May 25, 1995, an enforcement hearing was held before Administrative Law Judge Susan F. Weber on July 6, 1995. The record closed on September 25, 1995.
  2. Upon a review of the attached Hearing Report, I accept its Findings of Fact, Conclusions and Recommendations.

NOW, THEREFORE, having considered this matter, it is ORDERED that:

  1. The Respondent is assessed a civil penalty in the amount of SIXTY THOUSAND DOLLARS ($60,000), payable within thirty (30) days of the date of this ORDER.
  2. Within forty-five (45) days of the date of service of this Order, Respondent shall provide DEC Staff with a design plan for remediation in accord with this Order and the Hearing Report. Respondent and Staff shall develop a schedule for remediation. Within 30 days of DEC staff's approval of the design plan, Respondent shall undertake the remediation.
  3. All communications between Respondent and DEC concerning this Order shall be made to the Department's Region 2 Director, One Hunter's Point Plaza, 47-40 21st Street, Long Island City, New York 11101.
  4. The provisions, terms and conditions of this Order shall bind the Respondent, its officers, directors, agents, servants, employees, successors and assigns, and all persons, firms, and corporations acting for or on behalf of the Respondents.

For the New York State Department
of Environmental Conservation

By: Michael D. Zagata, Commissioner

DATED: Albany, New York
November 27, 1995

(Certified Mail)

TO: Lawrence C. Jenkins, Esq.
Assistant General Counsel
Staten Island Rapid Transit
Operating Authority
Law Department
130 Livingston Street
Brooklyn, New York 11201

(First Class Mail)

Murali Balachandran, Esq.
Assistant Regional Attorney
Region 2, NYSDEC
47-40 21st Street
Long Island City, New York 11101

Albany, New York 12233-1550

In the Matter

- of -

In the Matter of Alleged Violations of Article 24 of the New York
State Environmental Conservation Law and Part 663 of Title 6 of
the Codes, Rules, and Regulations of the State of New York



DEC No. R2-0106-94-06


- by -
Susan F. Weber
Administrative Law Judge


Region 2 Staff of the Department of Environmental Conservation ("the Department") has brought an administrative proceeding against the Staten Island Rapid Transit Operating Authority (hereinafter "SIRTOA" or Respondent), by service of a Notice of Hearing and Complaint dated May 25, 1995, for allegedly erecting fencing in freshwater wetlands without a permit from the Department, in violation of Article 24 of the Environmental Conservation Law and regulations pertaining thereto. SIRTOA interposed an Answer with Affirmative Defenses dated May 25, 1995. The report concludes that the Respondent violated Environmental Conservation Law 24-0701 and 6 NYCRR Part 663. The report recommends that the Commissioner order Respondent to reposition the fence to eliminate specific harm and to remediate as necessary, under direction of and according to a schedule developed with Staff. The report recommends that a $30,000 civil penalty be imposed in light of the wilful nature of the violations and resulting harm to the wetlands' functions and values, and that an additional penalty of $30,000 be imposed because Respondent continued fencing after two notifications that its actions violated the law.


These proceedings commenced when the Department served a Notice of Hearing and Complaint dated February 2, 1995. Subsequent settlement efforts, including a pre-hearing conference, did not resolve the allegations. Staff referred the matter to the Office of Hearings by letter dated May 30, 1995, together with copies of the Notice of Hearing and Complaint, Respondent's Answer, and a Statement of Readiness. The matter was assigned to Administrative Law Judge ("ALJ") Susan F. Weber.

A hearing was held in the Region 2 DEC office at Hunter's Point, Long Island City, on July 6, 1995. The Staff was represented by Acting General Counsel Frank Bifera, Murali Balachandran, Esq., of counsel. SIRTOA was represented by Assistant General Counsel Lawrence C. Jenkins. Staff presented testimony by Environmental Conservation Officer Beverly Whalen, Region 2 Principal Fish & Wildlife Biologist Joseph Pane, DEC Conservation Biologist Trainee Stephen Scheimen, and Assistant Regional Attorney Steven Goverman. SIRTOA presented the testimony of its employee Associate Transit Management Analyst Thomas Abdallah and former employee Dinkar Pujara, and of its expert consultant, Richard E. Marx, of Louis Berger & Associates, Inc.

Department Staff and SIRTOA submitted written closing arguments and replies following the hearing. The record closed September 26, 1995, upon receipt of the reply briefs.


The Department alleges that SIRTOA constructed a 10-foot high security fence running easterly from the Richmond Valley Station to the Prince's Bay Station, commencing in the spring of 1994, without the required freshwater wetland permit under ECL Article 24 and 6 NYCRR Part 663. The fencing extends through mapped Class I freshwater wetlands AR-10 and AR-27. The Respondent continued the fence construction after being issued a Notice of Violation May 4, 1994, and after receiving a November 1, 1994, cease and desist letter from Department counsel. As a consequence of this unpermitted fencing and related construction activity, SIRTOA has significantly and substantially affected the wetlands' functions and benefits. SIRTOA sought and obtained a permit for an earlier portion of this fencing, running westerly from the Richmond Valley Station, in 1992.

The Staff contends that, because the fencing is installed on lands not previously improved or used for transportation purposes, and because the fencing impacts approximately 6.9 acres or 7,450 linear feet of regulated wetlands and adjacent area -- a substantial addition to lands previously being used for transportation purposes -- contained in Public Authorities Law 1266-c(11), cited by Respondent, is not applicable.

Staff seeks civil penalties of $30,000 for conducting activities in freshwater wetlands without a permit and $30,000 for continuing such activities after notification that a permit was required for them. Also sought is remediation of disturbed areas, either by removal of all fencing illegally installed and restoration of disturbed areas, or, in the alternative, remediation of specific harm and potential risk to wetland functions as set forth on Exhibit 11 (attached to the Complaint as Ex.1) and annexed hereto.


SIRTOA admits constructing the fencing project through Class I wetlands AR-10 and AR-27 and adjacent areas without first seeking or obtaining an Article 24 freshwater wetlands permit. SIRTOA asserts two affirmative defenses: (1) that it is exempt from permitting requirements by virtue of PAL 1266-c(11); and (2) SIRTOA asserts that Assistant Regional Attorney Steven Goverman, in conversation with counsel for SIRTOA after the Notice of Violation ("NOV") had been issued, told SIRTOA that the NOV would be rescinded based upon the PAL exemption.

Finally, Respondent alleges that the fencing project has caused no harm to the wetlands' function and values.


  1. Commencing in the Spring of 1994, SIRTOA constructed a chain link fence on either side of the SIRTOA "right-of-way" from the Richmond Valley Station easterly through the Pleasant Plains Station to the Prince's Bay Station. The design was for approximately 16,000 linear feet of fencing. The fencing project runs through two Class I mapped freshwater wetlands (AR-27 and AR-10, for approximately 1800 linear feet) and adjacent areas (for approximately 5650 linear feet), which meander through the undulating terrain. The fence is ten feet in height, supported by steel posts at eight foot intervals. The fencing extends on both sides of the tracks, one foot inside the boundary on each side of SIRTOA's property or right-of-way. An area twenty feet wide was cleared along each reach of fencing, disturbing a total of 6.9 acres of regulated lands. Fencing is interrupted at the stations and at roadways. The approximate cost of the project was $1.8 million.
  2. Post footings are four foot deep excavations filled with rubble and capped with concrete, rather than poured concrete, a more stable technique. Post footings so constituted are more readily subject to erosion and scouring, leading to post failure. SIRTOA installed fence posts directly into the stream bed and in unstable embankments with footings exposed.
  3. The purpose of the fence is to keep persons away from the tracks to prevent vandalism and injury, and to keep abutting property owners from encroaching onto Transit Authority property.
  4. SIRTOA installed the fencing across flowing streams which serve as part of the stormwater discharge system for this area of Staten Island, which has no storm sewers.
  5. Where the stream is lower than the surrounding terrain, creating a gap between the bottom of the fence and the water surface, the fencing is "double-hung" or augmented to reach within a few inches of the water level.
  6. The fence was installed one foot inside each boundary of SIRTOA's property or right-of-way without regard for the distance of the fence from the track.
  7. Land approximately nine feet in width outside SIRTOA's property line or right-of-way was clearcut of vegetation to install the fence, including areas of regulated freshwater wetland and adjacent area. No evidence was presented concerning consent of the owner of such property to SIRTOA's activity on such land.
  8. Prior to fence installation, the areas of SIRTOA right-of-way and adjacent property affected by fence construction had been unimproved, undisturbed and unused, and were heavily vegetated.
  9. The fencing project disturbs 6.9 acres of previously undisturbed, unimproved regulated freshwater wetlands and adjacent area, which constitutes a substantial addition to Respondent's property previously used for transportation purposes.
  10. The fencing project as built crosses streams and two Class I regulated freshwater wetlands and has resulted in clear-cutting of vegetation approximately ten feet on either side of each reach of fencing.
  11. In addition to providing habitat, open space, and erosion and sediment control, AR-27 and AR-10 freshwater wetlands serve as the storm water control system for the part of Staten Island draining into them. The streams and their tributaries and branches convey stormwater into the tidal drainage system and Raritan Bay, preventing substantial flooding of nearby thickly developed areas. These are older neighborhoods without a city storm sewer system. AR-27 serves to control stormwater runoff to prevent flooding in an urban area of older homes built before present-day minimum final grade requirements.
  12. SIRTOA has neither applied for nor been issued a permit for the fencing project under Article 24 of the Environmental Conservation Law.
  13. SIRTOA continued the fencing project after the Department of Environmental Conservation issued a Notice of Violation on May 4, 1994, and after Assistant Regional Attorney Balachandran wrote SIRTOA a "cease and desist" letter November 1, 1994.
  14. As installed, the fencing creates a risk of blockage of streams and tributaries which form the stormwater discharge and drainage system for this area of Staten Island. This impairs the functions and benefits of the wetlands system and causes a potential of flooding developed areas.
  15. Clearcut areas have substantially revegetated without evidence of persistent harm from clearcutting.
  16. In 1992, SIRTOA obtained an Article 24 permit for a similar fencing project running westerly from the Richmond Valley Station. That permit authorized clear-cutting of no more than two feet on either side of the fence during installation, required that fencing be no more than twenty feet from the tracks in certain areas, and prohibited fencing across streams and fence post installation in stream beds, so as to assure that stream flow would be maintained. The permit provided for DEC oversight of fencing installation.
  17. In constructing the fence, SIRTOA gave no consideration to the wetlands' functions. Even if SIRTOA believed, as it claims, that it was exempt from the requirement to obtain a permit, it should have installed the fencing in accordance with the terms of the prior DEC wetlands permit. Instead, it unaccountably ignored them. This must be seen as wilful and intentional.


Environmental Conservation Law Article 24, the Freshwater Wetlands Act, contains the regulatory program for freshwater wetland resources in the State of New York.

Section 24-0105 Statement of Findings, is a detailed listing of the benefits derived from healthy freshwater wetlands ecosystems, including their functional benefits for flood and stormwater control, erosion and sedimentation control, natural pollution treatment, wildlife habitat and aesthetic and open space resources.

Title 7 of Article 24 contains the regulatory system under which the Department protects the vital wetlands resources through a permit program. Subdivision 2 of Section 24-0701 sets forth the activities to be regulated through the permit program.

6 NYCRR Part 663 contains the regulations applicable to the freshwater wetlands permit program and the procedural requirements for conducting specific activities in wetlands.

Title 23 of Article 71 sets forth the penalties applicable for violations of the Freshwater Wetlands Act and regulations. Section 71-2303 authorizes a civil penalty not to exceed $3000 for each violation of law, rule, regulation, permit or order.

Public Authorities Law 1266-c(11) provides:

No project to be constructed upon real property theretofore used for a transportation purpose, or on an insubstantial addition to such property contiguous thereto, which will not change in a material respect the general character of such prior transportation use, nor any acts or activities in connection with such project, shall be subject to the provisions of article eight, nineteen, twenty-four or twenty-five of the environmental conservation law, or to any local law or ordinance adopted pursuant to any such article. Nor shall any transit project or any acts or activities in connection therewith taken by any person or entity, public or private, pursuant to this section be subject to the provisions or article eight of the environmental conservation law if such project, acts or activities require the preparation of a statement under or pursuant to any federal law or regulation as to the environmental impact thereof.


Undisputed evidence in the record establishes that the regulated areas where SIRTOA installed fencing had been heavily vegetated, unimproved and undisturbed prior to the fencing project. SIRTOA did not dispute or introduce contradictory evidence concerning the fencing installation or the characteristics and functions of the freshwater wetlands through which the fencing was installed. It did not dispute that it had performed these activities without a permit. Its position is that it was exempt from environmental regulation under PAL 1266-c(11), and that no harm was caused by the fencing installation. Therefore, because the exemption's applicability is largely determinative of the case, it and the estoppel affirmative defense will be addressed at the outset.

I. Affirmative Defenses and Analysis

PAL 1266-c(11)

PAL 1266-c(11) was enacted in 1981 as part of Chapter 314 of the Laws of 1981, a legislative package designed to revitalize the Metropolitan Transportation Authority ("MTA"), including a major capital program to finance improvements to the MTA, its affiliates and subsidiaries. It "responds to the present transportation emergency, and recognizes the critical importance of permitting the MTA and its affiliates to implement and advance their capital programs expeditiously. The bill also modifies certain time-consuming environmental quality and land transfer review procedures and public bidding requirements." (Governor Carey's Approval Memorandum, June 29, 1981.) The statute requires the MTA to submit a five-year plan for capitol improvements to a review board comprising State Legislative and Executive branch representatives, and the mayor of New York City. The 1266-c(11) exemption appears to be a minor part of a major effort to finance new transportation infrastructure construction for highways and rails some fifteen years ago.

Respondent urges that the exemption should be read broadly, to exempt from environmental review projects on two types of property: any property currently owned/controlled by SIRTOA, which SIRTOA argues is a priori used for transportation purposes because SIRTOA owns it; and insubstantial additions to property currently owned by SIRTOA -- property being acquired by SIRTOA -- contiguous to its property, which will not change the general character of the prior transportation use. SIRTOA asserts that, because the fencing is located on property already owned/controlled by SIRTOA, rather than upon additional property acquired by the authority, the fencing project is exempt under the first prong; the second prong is inapplicable. TR.p. 241 and 242.

Such an expansive reading would render the exemption complete and total for all those lands currently owned by a transportation authority, regardless of the actual prior or current utilization of those lands. Had the Legislature intended the exemption to be so extensive, it would have said so directly. It could have made such an intention clear by explicitly exempting from environmental review those projects constructed on property owned by a transportation authority, or on insubstantial newly acquired parcels. Instead, the exemption states that it applies to projects constructed on lands theretofore used for a transportation purpose, or insubstantial additions thereto.

The issue hinges on the meaning of property "theretofore used for a transportation purpose." My reading of this phrase is that means authority property previously utilized or employed for a transportation purpose. It also applies to projects on property not previously utilized or employed for such purpose, whether or not such property is newly acquired, so long as the property to be used a) is an insubstantial addition to property used for transportation purposes and b) is contiguous to property used for transportation purposes. In either case, the exemption applies only to projects that will not materially change the character of the prior transportation use of such property. Since no such change is involved, we need not concern ourselves with this part of the exemption.

This interpretation is supported by and is consistent with the Appellate Division decision in Martin v. Koppelman, 510 NYS2d 881 (AD 2d Dept. 1987) and Justice Bradley's decision in Beauford v. Kiley, N.Y.L.J. May 31, 1988, p.24, col.1 (Sup.Ct.N.Y. Co.) In Martin, a similar exemption from the State Environmental Quality Review Act ("SEQRA", ECL Article 8) in PAL 1266(11) was asserted for a Long Island Railroad project to modify existing stations to accommodate electrified trains, including expansion of parking lots at the five stations involved. The Court held that the PAL 1266(11) exemption applied to the modification of the railway from diesel fuel to electricity because this modification did not constitute a change in general character of the prior transportation use. It also found the exemption applicable to two of the parking lot expansions because the expansions took place "upon either property previously used for transportation purposes or an insubstantial addition to such property...". There was no discussion about how this conclusion was reached, and no information as to whether either property had been newly acquired.

However, the Court found that the exemption did not exempt three of the parking lot expansions from SEQRA because the additional property "can hardly be considered insubstantial." Even though SEQRA would not apply if the exemption were applicable to the projects, the Court looked to SEQRA to determine whether the additions were "insubstantial", and found that SEQRA's ten acre threshold for a Type I action, i.e., an action likely to produce significant environmental impact (see, ECL 8-0109[2]), prevented three of the parking lot expansions (of 16.9, 10.6, and 15.95 acres) from being exempt from SEQRA. The Court stated that the SEQRA lead agency was responsible for determining whether the project would have a significant environmental impact. It appears from the decision that these three lots were to be constructed upon newly acquired lands, but the Court did not rely upon this fact for its decision. What was important was that the lands had not previously been used for a transportation purpose.

In Beauford, the Court found that the exemption applied because the Transit Authority project merely replaced the old bus depot with a new depot. The Court reasoned that the project would "require no land in addition to that previously utilized for the [old] depot, and indeed may use only part of the site used by the earlier depot" and was therefore exempt. However, the Court stated that if the MTA were to engage in a rumored residential development on lands either above or adjacent to the new depot, the exemption would not apply to the residential development or to the depot. That project would constitute a change of use of the property.

In both Martin and Beauford, the determining factor was not, as SIRTOA argues, whether the land belonged to the Authority. The cases turned on the actual use to which the land had previously been put, or the size of the additional land. To qualify as being used for a transportation purpose and thereby to render the project exempt under PAL 1266-c(11), the lands at issue would have to have been already improved in some fashion consistent with a transportation purpose, or be constructed upon an insubstantial addition to lands so improved and used. SIRTOA offered no evidence to establish that the lands upon which the fencing project took place had been previously used for a transportation purpose. No evidence was offered that the fence replaced existing fencing, for example, or that the lands upon which the fence was installed -- that area one foot inside the SIRTOA property boundary and the twenty-foot clear-cut strip -- had previously been used for any transportation purpose, as defined by the courts in Martin and Beauford. The Department's witnesses, on the other hand, testified that the land had been open, unimproved and heavily vegetated functioning wetland.

In my view, a fair reading of PAL 1266-c(11) is that, if the fence were placed on or proximate to the track bed or to other transportation equipment installed as a fixture upon the land, the project would be exempt. Such a reading gives effect to the policies underlying both the Freshwater Wetlands Act and 1266-c(11), as discussed below.

However, that is not the case here. The undisputed testimony of SIRTOA's design manager establishes that SIRTOA designed and installed the fencing one foot inside SIRTOA's property line, without regard for the distance between the fence and the track bed. This resulted in fencing generally parallel to the track bed, except where the property line zig-zagged. The designers were instructed to stay parallel to the property line, regardless of the location of the track. TR.p.147 and 148.

SIRTOA offered no evidence as to the width of its property in the wetlands, the distance between the fence and the track, the applicable or customary width of a railroad corridor, or the standard distance between the track and security fencing. Such a standard might provide guidance on the width of property it would be appropriate to deem dedicated to a transportation purpose. It is the Respondent's burden to establish the width of the railroad's corridor -- the amount of property devoted to a transportation use under the exemption. In the absence of such evidence, because neither the track bed nor any other improvements to the land indicating a transportation use are visible in any of the photographs of this project in evidence, with the exception of photos 11 and 12, I conclude that the fencing is at some distance from the track bed on land not currently used for a transportation purpose.

The instant project is a substantial addition to property previously used for transportation purposes within the meaning of PAL 1266-c(11). (See VI. Calculation of Area Affected, supra.) By Respondent's testimony, the fencing project was designed to extend about 16,000 linear feet on both sides of the tracks from Richmond Valley to Prince's Bay Station. The credible evidence establishes that the fencing included clearing or otherwise disturbing approximately 6.9 acres of regulated Class I wetlands or adjacent area, which had not been cleared, fenced, improved, or otherwise disturbed or used for any purpose prior to the SIRTOA fencing.

Finally in this regard, vegetative clearcutting extended approximately nine feet outside SIRTOA's property onto neighboring land Evidence established that the fence was constructed one foot inside SIRTOA's boundary, and that ten feet on either side of the fence was clearcut of vegetation to install the fence. This leads to the conclusion that SIRTOA clearcut nine feet of wetlands and adjacent area it did not own for each reach of fence. The exemption applies only to authority property. over which SIRTOA had no authority and where the PAL exemption, by its explicit terms, could not apply. This constitutes nearly half the wetland and adjacent area SIRTOA clearcut to install the fence.

The purpose of the permitting process is to assure that, when activities are performed in wetlands, the values and benefits, functions and resources of these areas are preserved. In enacting the PAL exemption, the Legislature was responding to a 1981 transportation crisis with a major new construction initiative involving, according to the Governor's Approval Memorandum, bonding in excess of $3 billion to finance it. Even so, the Legislature was cognizant of the importance of ECL Articles 24 and 25 and wetlands protection, as well as the need to expedite transportation projects, since it limited the PAL exemption to projects on lands already in use for transportation purposes, and on insubstantial additions to such lands contiguous thereto. In interpreting the exemption, courts have upheld environmental impact review for transportation projects on lands not previously improved, but not for projects on lands previously utilized for transportation purposes or improved with structures. Such lands presumably have little wetlands values left to protect, or environmental review had taken place before initial development. Therefore, the exemption for projects constructed upon them makes sense.

In this regard, it is instructive that the last sentence of 1266-c(11) exempts a qualifying project from SEQRA review if the project had been the subject of an environmental impact statement under federal law or regulation. This assures that transportation projects receive adequate environmental review, but eliminates duplicative and burdensome environmental requirements.

In my view, the legislative purposes of both ECL Article 24 and PAL 1266-c(11) are best served by a more narrow reading of the exemption, especially in light of the relatively minor transportation purpose of this project compared to the overall purpose of Chapter 314 of the Laws of 1981, and the relatively major importance of the wetland systems adversely effected by it.


SIRTOA's Answer asserts as an affirmative defense that Assistant Regional Attorney Steven Goverman, in conversation with counsel for SIRTOA after the Notice of Violation had been issued, told SIRTOA that the Notice of Violation would be rescinded based upon the PAL exemption. SIRTOA had the burden of proof regarding this affirmative defense but did not present any evidence concerning it. Called as a witness by the Department, Goverman testified that he recalled a brief discussion with a representative of the Authority in the spring of 1994 but could not recall any specifics of the conversation. He was not cross-examined, and SIRTOA presented no evidence to substantiate the allegations in the Answer. Had Mr. Goverman promised to rescind the Notice of Violation, it is difficult to believe that two attorneys dealing with alleged violations of law would not confirm in writing any agreement resolving those violations. SIRTOA has not met its burden on this affirmative defense. In any event, it is settled that estoppel is not available against the State.

II. The Violation: Impairment of Wetlands' Functions and Values

The Department presented undisputed testimony that the following regulated activities were undertaken by SIRTOA for which a permit should have been obtained: clear-cutting vegetation from land 663.4(23); installation of fencing (modifying or expanding existing structures) 663.4(14); excavation and filling to install fence posts 663.4(20); and casting aside and leaving construction debris in wetlands 663.4(38). DEC witness Mr. Pane testified that the extensive vegetation clearcutting he observed -- ten feet wide on either side of the fencing for a total of twenty feet -- was sufficiently extensive so as to qualify as road building, requiring a permit under 663.4(28). TR.p.49-51. Photographs in the record (Ex. 5-1 through 5-13, and 5-17 and 5-18 Photos 14, 15 and 16 (Exhibit 5-14, 5-15, and 5-16) depict fencing west of the Richmond Valley Station which was covered by the 1992 permit. The three alleged Article 24 violations depicted have not been charged as violations of the 1992 permit and therefore will not be considered in this proceeding.), taken at places located on a maps (Ex. 6A through F), evidence twenty-one separate and specific actions undertaken by SIRTOA which required a permit under Article 24 of the Environmental Conservation Law and regulations (6 NYCRR Part 663).

Substantial risk of harm to the hydrological functions of wetlands AR-10 and AR-27 is alleged because of three types of activities: installing fencing across flowing streams, installing fence posts in stream beds, and improperly installing fence posts in embankments with footings exposed. The Department seeks specific restoration, as described in Exhibit 11 The restoration sought consists of moving footings from stream beds and restoring the stream beds; removing fencing from across streams or, in the alternative, increasing the clearance between the fencing and water surface; moving fencing closer to the SIRTOA track bed; removing fencing from wetlands; moving footings to more stable sites; and replanting or reseeding areas where vegetation was clearcut., a list containing items which relate to the photographs, Exhibit 5 in evidence. Staff identified specific places as follows: fence posts were installed using loose stone fill capped by concrete rather than using concrete alone, a less stable method of installation. TR.p.59. Posts so installed in stream beds and on the edges of embankments (see, Ex. 5-1, -2, -3, -6, -7, -8, -14, -17, -18, and 5-D) would be especially unstable due to the action of stormwater and runoff. TR.p.62. Failure of these posts would result in the fencing falling into streams where debris would collect and cause flooding. The footings in stream beds could cause instability for the mud stream bottom around the footings, as well as for the footings themselves. In addition, the stream bed footings may trap debris and sediment, impeding water flows. TR.p.49-54, 63 and 64.

The fencing was installed across streams with the mesh reaching close to the water surface (see, Ex. 5-3, -7, -8, -13, and -17). The mesh could act as a damming structure to collect any debris coming through the stream system, causing flooding. Mr. Pane testified that, in December 1994 when his photos were taken, the water level was low, and that he has seen much higher water in those tributaries and streams. TR.p.53-55, 60 and 61, 104 and 105.

The Respondent's witnesses supported the Department's case that the fencing should not have been constructed so as to run through stream beds and wetlands, nor should it have been necessary to clearcut more than two and one-half feet on either side of the fence. SIRTOA witness Mr. Pujara, currently employed by the New York City Transit Authority, who was SIRTOA's administrative manager and design supervisor of the prior fence project, testified that it was a "common-sense practice" to put fence posts on dry land rather than in stream beds. TR.p.164. Accordingly, he concurs with staff's analysis from an engineering perspective.

SIRTOA's argument in its brief concerning federal regulation of fill and bridge pilings under the Federal Clean Water Act is irrelevant to this case. The ECL and regulations are applicable; and 6 NYCRR 663.2(z) defines as "regulated activity" "...placing any other obstructions whether or not changing the ebb and flow of water;...or any other activity which substantially impairs any of the several functions or benefits of wetlands which are set forth in Section 24-0105 of the Act."

SIRTOA's expert witness Richard Marx, whose photographs (Exhibit 15) taken some six months later depicted the same areas as Exhibit 5, testified in substance that most areas where vegetation had been clear-cut up to 10 feet wide on either side of the fencing had substantially revegetated naturally; that he saw no evidence of filling except for the fence posts themselves; that little debris had collected in the fencing placed across streams; that little or no scouring had occurred where fence posts had been placed in stream beds; and that the fencing "appeared stable" even where the post foundations had been placed at the edge of embankments and were exposed. TR.p.183-190. Mr. Marx gave the opinion that the individual and cumulative impacts to the wetlands were insubstantial, given the amount of revegetation he observed. TR.p. 189.

However, Mr. Marx did not testify concerning the future stability of the fencing, nor was he aware that the wetlands functions as part of New York City's stormwater control system. TR.p. 221. Mr. Marx's photographs showed some build-up of debris in the fences crossing streams (TR.p.194-195), as well as some sedimentation already occurring near fence posts installed in the stream beds. TR.p.189. Mr. Marx testified that modification of the wire mesh and proper maintenance of the fencing across streams would be necessary to assure that debris did not accumulate in the fencing and impair wetlands function of drainage and stormwater and flood control. TR.p.196, 219. He testified that the fence could have been designed and installed in such a way as to encroach and impact less upon the wetland. TR.p.201. His testimony did not outweigh the Department Staff's evidence that fencing across streams impairs the hydrological function of the wetland.

In light of the near-drought conditions in existence in the State between installation and Mr. Marx's June visit, it is likely that water flow had been unusually low and, consequently, little debris would have accumulated in the mesh fencing. It is not appropriate to conclude from this short and unrepresentative period that the fencing as installed has not or will not harm the indisputably important drainage function this wetland system performs for Staten Island. Marx's own testimony and report stress the necessity for modifications to the fence mesh and regular maintenance to assure that debris is removed, if the fencing were to remain across the stream beds.

The record establishes that fencing installed across the beds of streams creates a risk of flooding and substantially impairs the hydrological function of both Class I wetlands. There is a legitimate public safety interest in security fencing, and bypassing stream beds In this regard it is noted that the fence is interrupted at stations and roadways, so it may be assumed that interruption for flowing water would not unduly compromise its security function. will create openings through which persons may pass into the right-of-way. However, if fencing were to remain across the streams, periodic inspection and maintenance would be required to assure prompt removal of any build-up of debris before it can create a dam and cause flooding. There can be no adequate assurance concerning proper maintenance, and the Department asserts that no maintenance commitment is viable because of the public sector budgetary process alluded to by Mr. Abdallah. Fencing which impairs the ability of the system to convey storm water to Raritan Bay also creates a risk to public health, safety and property from flooding.

While the stormwater drainage functions of these wetlands are significantly impaired by SIRTOA's fencing, two remediation options present themselves: (1) that the fencing be removed from streambeds, at least, before the system is inundated in the spring, and (2) that the fencing remain in place across streams and that SIRTOA institute a regularly scheduled fence maintenance program. However, testimony by SIRTOA's witnesses strongly suggests that SIRTOA cannot sufficiently guarantee such a program due to budgetary constraints. In addition, other considerations support the first option, as discussed next.

While Respondent argued generally that footings placed in streams would not compromise the fence's stability because nearby posts could hold the fence upright should the footings in the stream be scoured away, this unsubstantiated opinion does not overcome the fact that other footings on embankments are exposed to erosion and are therefore unstable as well. Mr. Marx's testimony regarding the stability of the fence posts with exposed footings and those placed in stream beds is less persuasive and less relevant than that of Department Staff. Mr. Marx's familiarity with this wetlands system and its water flows is limited to one morning's visit, in comparison with Department Staff's experience gained through extensive work in classifying and regulating these wetlands. In addition, Mr. Marx's testimony regarding current apparent stability did not refute Staff's testimony that the fence would become unstable over time as a result of erosion and scouring.

Lastly, clearcutting of trees and vegetation are regulated activities and may reduce the wetland's ability to absorb water and serve as habitat. They may also cause soil erosion. See, 663.4. Although SIRTOA wilfully violated the regulations by unnecessarily clearcutting vegetation from a swath of twenty feet for each reach of fencing (including approximately nine feet of adjacent lands), when a swath of only five feet had been necessary and apparently achievable for the previous fencing project, Respondent's evidence that clearcut areas have substantially revegetated is undisputed. This does not mean that clearcutting did not violate the law or that the wetlands were not harmed thereby.

VI. Calculation of Area Affected

The determination of the amount of previously undisturbed lands which were developed by the fencing project without a permit is relevant to the second prong of the PAL exemption.

To calculate the extent of regulated wetlands disturbed by the fencing project, Department Staff walked the terrain to ascertain where the fence ran through wetlands or adjacent areas and determined that a ten-foot swath had been cleared on either side of each length of fencing. Using a scaled tax map, Staff calculated that 1300 linear feet of wetland and 3200 linear feet of adjacent area were affected in Wetland AR-27; 500 linear feet of wetland and 2450 feet of adjacent area were affected in Wetland AR-10. Dividing the total by 43,560 feet per acre, Staff established that the fencing project disturbed a total of 1.7 acres of regulated freshwater wetland and 5.2 acres of regulated adjacent area. TR.p. 110-113.

The only evidence presented by Respondent on this issue was the testimony of Mr. Pujara, who said that he never viewed the fence project as built, but was aware from the photographs in evidence that a greater width had been cleared than was depicted on the designs -- including some clearing on private lands adjacent to the right-of-way -- and that the fencing had been constructed through mapped wetlands, contrary to the design plans. Mr. Pujara had calculated from the design plans that, out of the 8000 linear feet of the project as designed, probably 2000 linear feet of fence ran through regulated wetlands. This amount of fencing, 25% of the $1.8 million project, Mr. Pujara testified, was "probably significant." TR.p. 171. While Mr. Pujara disagreed with Staff's calculation of 5650 linear feet of fence through regulated adjacent area and 1800 feet through regulated wetland, he acknowledged that he based his impression upon the design plans which, he stated, for the most part avoided fencing through wetlands and across streams. TR.p.150-164. No as built drawings and only two pages of design plans were submitted into evidence by Respondent.

Staff's calculations, based as they are upon actual field data and tax maps, are substantially more credible than the indirect design plan estimates offered by SIRTOA.

V. Respondent's Environmental Review

Respondent's position appeared to be that, even though they were allegedly exempt from permitting because of the PAL transit authority exemption, they performed their own environment review which was analogous to the Department's permitting process. However, evidence presented by Respondent establishes that its environmental review was limited to determining that regulated wetlands would be traversed by the project and obtaining an opinion from legal counsel that SIRTOA's capital projects were exempt from regulation under Public Authorities Law 1266-c(11). Witness Abdallah, Respondent's environmental analyst for this project, said, "We consider our right-of-way our right-of-way. We consider the property adjacent to our right-of-way as the property adjacent to our right-of-way, so the scope of work indicated that the fence would run along our right-of-way adjacent to wetlands ..." TR.p. 134.

Respondent performed no assessment of the project's impacts nor made any revisions to the project's design or scope of work based upon environmental considerations. TR.p. 119-145. No contact was made with the Department concerning the fencing project. TR.p.131. The Authority's outside wetlands consultant was never called in. TR.p.126. Rather, after receiving the exemption opinion, Mr. Abdallah merely notified the project's engineering manager that no wetlands permit was required. TR.p. 136. Thereafter, the fence was installed without regard for the disruption the fence would cause to stormwater flows, the risk of flooding created if water could not pass through the stream system, the stability or lack thereof of the stream banks and resulting erosion and sedimentation, or wildlife habitat disturbance.

VI. The 1992 DEC-Approved Wetland Permit

While SIRTOA admits obtaining a DEC wetland permit in 1992 for fencing along the right-of-way on the north side of the tracks running through the AR-27 Class I wetland west of Richmond Valley Station, and Respondent's staff who reviewed this project knew it, SIRTOA asserts that obtaining the permit in 1992 was purely voluntary on its part and does not constitute a waiver of the PAL exemption. It is not necessary to reach the question of waiver because I conclude as a matter of law that the PAL exemption is inapplicable here.

The 1992 DEC permit file in evidence indicates that considerable discussion took place between DEC staff and SIRTOA personnel concerning the placement of the fencing so as not to interfere with wildlife access. DEC required placement of that fence in already disturbed areas and as close to the tracks as possible (approximately 20 feet from the tracks) to minimize disturbance of undeveloped wetlands. Fencing was not to be placed in regulated wetlands and in stream corridors (as Mr. Pujara testified this fencing project had also been designed to avoid). As part of that project, SIRTOA agreed to remove fill improperly placed in culvert areas, thus resolving prior freshwater wetlands violations. One or more field conferences were held and design plans revised to reflect protective measures Staff imposed. SIRTOA was required to notify the Department of its intent to commence work, presumably so that the work could be inspected for compliance. At that time, SIRTOA asserted a PAL 1266 exemption from permitting fees, but not an exemption from permitting. This evidence establishes that SIRTOA was familiar with the permitting process and regulatory requirements for fencing in Class I wetlands, at the least.

No evidence was presented that any of the 1992 permit conditions were burdensome or interfered with the purpose or installation of the fencing project. The file reflects no contemporaneous objection to the permit conditions. This prior project, as permitted, apparently accomplished the Authority's goal of providing security to Respondent's operations.

The gravamen of Respondent's reasoning for not applying for the wetlands permit, as expressed by witness Abdallah, was that applying for the DEC permit took too long. Mr. Abdallah testified that time is of the essence on all SIRTOA capital projects "because you don't know which way the political wind will blow as far as capitol projects, so in this case, a security issue was with the fence (sic) and we wanted to proceed as quickly as possible." TR.p. 123. While safety is important and there was further testimony regarding the need to keep people away from the SIRTOA tracks, neither Mr. Abdallah nor Mr. Pujara was able to relate any specific safety incident on the Authority's line.

Exhibit 12 reveals that one and one-half years actually elapsed between initial application for the DEC permit and permit issuance, during which time the application was declared incomplete twice because SIRTOA had not provided detailed plans showing the relationship of the project to the wetlands boundaries, identified equipment to be used, or specified where the fencing would be placed. This apparently led to confusion about whether the permit needed would be a tidal or freshwater wetlands permit, further delaying review. In addition, there were two site visits with Staff.

DEC Staff could not properly evaluate the application without the appropriate design and engineering details. It is also clear that once the proper information was presented, DEC promptly performed its evaluation and issued the permit. The permit as issued protected the values and functions of the wetlands, and apparently satisfied the needs of SIRTOA. Mr. Pane testified that, had the instant fencing project been proposed as the 1992 project had been permitted and constructed, the application would have taken less time to process since SIRTOA would have learned what information was required for a complete application. TR.p. 95.

VII. Penalties

In addition to remediation, the Department Staff's complaint seeks $30,000 for the Article 24 violations and $30,000 for continuing construction after notice of the violations had been received. Staff's post-hearing submission argues that ECL 71-2303 authorizes a fine not to exceed $3000 for each violation of law, rule, regulation or permit, and that evidence was presented establishing twenty-two separate acts, each of which constitutes a violation of Part 663 regulations. Consequently, Staff urges that each of the twenty-two separate acts constitutes a violation punishable by a fine not to exceed $3000.

Staff has structured its case around its settlement negotiations with Respondent, embodied in Exhibit 11, and Respondent has not offered another interpretation. Each separate act referred to above is in fact a separate harm inflicted on the wetland for which Staff seeks remediation. The regulated wetlands and adjacent area meander through this part of Staten Island; the SIRTOA fence project cuts through sections of these meandering wetlands. Not every fence post placed in regulated wetlands is cited there; only those which are unstable or were installed in streambeds, for example, are cited. Exhibit 11 lists four places where footings were installed in streambeds (in some cases there were as many as five footings in each streambed), and one place where exposed footings were installed in an embankment. Because SIRTOA had to make a choice whether or not to install posts in an unstable embankment or stream bed, and because only those post installations which pose a risk to hydrological functions are listed, I conclude that each fence post installation listed on Exhibit 11, installed in violation of Part 663, is a separate and distinct violation. However, I conclude that fencing per se, clear-cutting to install the fence, and casting aside construction debris and vegetation as depicted in photographic evidence in the record, are each more properly counted only once for the entire project, rather than each time the activity was listed or shown. In doing so, I note that it is possible to determine that each section of illegal fencing and clearcutting could be viewed as a separate violation because each such act, by itself, would require a permit.

Leaving aside the three violations depicted in Exhibits 5-14, 5-15 and 5-16 (see footnote 1), undisputed evidence in the record establishes that SIRTOA engaged in the acts set forth on Exhibit 11 which violate Article 24 and 6 NYCRR 663.4. As discussed above, it is appropriate to conclude that SIRTOA committed seven separate violations of 663.4(20) for specific fence post installations impairing hydrological functions; one violation of 663.4(14) for fence installation without a permit; one violation of 663.4(23) for clear-cutting vegetation; one violation of 663.4(38) for casting aside construction and vegetation debris in a regulated area; for a total of ten separate violations of Article 24 and 6 NYCRR Part 663.

ECL Section 71-2303 authorizes a penalty not to exceed $3000 for each violation, for a total statutory penalty of $30,000.

The Department's goal in enforcing the ECL and regulations is to achieve compliance. Once a violation has occurred, the goal of enforcement is to punish the violator and deter potential violations in the future Department of Environmental Conservation Enforcement Directive Number II, Civil Penalty Policy, June 20, 1990, page 1.. The Legislature establishes penalty parameters in Article 71 of the ECL; The Department issued its Enforcement Directive, the Civil Penalty Policy, dated June 20, 1990, as a guide in assessing penalties. The policy identifies the statutory maximum as the starting point for penalty calculations, and sets forth factors to be considered when determining the appropriate civil penalty, divided into two components: the economic benefit component and the gravity component. Economic benefit is the violator's financial advantage gained over its competitors or others through its non-compliance. The gravity component allows aggravating and mitigating factors to be considered, such as the violator's culpability, its degree of cooperation, the importance of the violation to the overall regulatory scheme, the potential or actual harm caused by the violator, and the violator's ability to pay.

No program-specific penalty policy document has been offered by Staff. The Respondent was aware of the Civil Penalty Policy (TR.p., but did not address the penalty issue other than to argue that the wetlands were not harmed by the Respondent's acts.

Regarding the benefit component, I conclude from the evidence presented at hearing that SIRTOA did not reap an economic benefit from these violations. Proper fence installation avoiding regulated wetlands and flowing water would have resulted in less fencing installed and presumably a lower cost project. TR.p.167 Since SIRTOA is a public authority rather than a profit making venture, competitive advantage through non-compliance is not relevant. Staff suggests that SIRTOA saved the cost of an environmental consultant's services, but apparently the 1992 fencing project was performed by SIRTOA's in-house design staff, with substantial input from DEC technical staff; no outside consultant is mentioned. SIRTOA's motivation seems to be to avoid the permit process for its own convenience. Therefore, the economic benefit component is a neutral factor in this case.

The next step is to consider the preliminary gravity component factors pursuant to the Civil Penalty Policy to arrive at the gravity component. These are the harm or potential harm and the relative importance of the type of violation to the regulatory scheme.

The harm/damage factor -- the potential and actual harm to the environment -- is substantial in light of the significance of these two Class I freshwater wetlands as environmental resources and their hydrologically critical role as part of the stormwater drainage system for this developed area of Staten Island. The record supports the conclusion that AR-10 and AR-27 are Class I wetlands in large part because of their hydrological function TR.p.88, which Respondent has significantly impaired. Lack of proof of persistent environmental harm from vegetation clearcutting should not benefit the Respondent.

The permitting process is central to the statutory and regulatory scheme embodied in the Freshwater Wetlands Act. The value of wetlands recognized by the Legislature in enacting the Act cannot be protected if an entity does not subject itself to regulation. Failure to obtain a permit for activities requiring one is no mere "paperwork violation." The Department Staff cannot determine whether or how the functions of the wetlands would be impaired by a project, and assure that adverse impacts are mitigated, unless it is able to review the project. The Department is not able to fulfill its statutory obligation to regulate activities in wetlands if entities do not subject themselves to the regulatory process. Thus, the Respondent's avoidance of a DEC permit review process and subsequent violative acts are particularly egregious in the context of the overall statutory scheme.

Consideration of policy's Preliminary Penalty Factors leads to the conclusion that the full penalty available should be assessed.

The policy also sets forth penalty adjustment factors to be considered. These aggravating and mitigating factors militate against the Respondent. Regarding culpability, the 1992 DEC wetland permit is relevant to establish that SIRTOA knew or should have known that the fence installation violated Article 24 and Part 663. Further, assuming for the purpose of argument that SIRTOA in good faith believed it was exempt under PAL 1266-c(11), SIRTOA knew from the 1992 permitting how to install fencing in an environmentally acceptable manner. Consequently, it must be deemed that SIRTOA acted with knowledge that it violated the construction standards which would have been imposed through DEC permitting. In addition, SIRTOA did not explain why it failed to follow its own design plans, page C-5 of which (Exhibit 13A) calls for the fencing to stop short of the wetlands depicted. Failure to assure that its own plans were followed is not only a poor business practice, it evidences wilful disregard for the harm improper fence placement and construction would cause.

Finally, SIRTOA's review of this project speaks eloquently of SIRTOA's disregard for the functions and benefits of these statutorily protected Class I wetlands. Regardless of any potential exemption, it was SIRTOA's design and environmental staff's job to review capital projects for environmental impacts requiring mitigation. TR. p.117. Even allowing for casualness toward wildlife habitat, pollution control and open space values, creating a flood hazard through improper placement of fencing, at least, is an impact which should have given Respondent cause for concern.

As far as the ability to pay is concerned, this phase of the fencing project cost approximately $1.8 million (TR. p.119), according to Respondent's witness Abdallah. No other information was presented relevant to Respondent's ability to pay a penalty. The $30,000 penalty would clearly be affordable in light of the Respondent's ability to pay for this $1.8 million phase of the fence project, and in light of the money to be saved by constructing future phases of the fence project in compliance with the Part 663.

Although SIRTOA did not obtain any economic benefit from its violative acts, in light of the gravity of the flood risk created, I conclude that the full monetary penalty available is justified. The flagrant and wilful nature of these violations, as well as SIRTOA's irresponsible attitude toward the importance of these wetlands to the surrounding community, leads to the conclusion that the full available penalty is needed as a deterrent. In this recommendation, I am further influenced by the fact that the Respondent is a quasi-governmental entity with purported environmental analysts on staff, and as such should be held to as high a standard of environmental responsibility as would a private entity. This is especially so when to follow the appropriate construction practices would result in a more stable and less costly public works project.

Aggravating Circumstances

Department Staff seeks an additional fine of $30,000 based upon SIRTOA's continuation of fencing after being served on May 4, 1994, with a Notice of Violation (Exhibit 3A) and after receiving the November 1, 1994 letter (Exhibit 16) from DEC Assistant Regional Attorney to SIRTOA's Counsel directing SIRTOA to cease and desist all fencing activities. A review of the November 1, 1994 letter makes it clear that Respondent and Staff were engaged in a legal dispute about the applicability of the PAL 1266 exemption, Mr. Jenkins arguing that it applied because the fencing project was on SIRTOA's land and Mr. Balachandran arguing that it applied only if the land was actually being used for a transportation purpose. SIRTOA had a choice; it did not have to continue fencing and risk violating the law. It could have applied to the Department for a Declaratory Ruling under 6 NYCRR Part 619, or sought a court determination of its rights under PAL 1266, pursuant to CPLR Article 78. Rather, SIRTOA decided to continue fencing, which DEC Staff and counsel had determined violated the law. SIRTOA's actions showed flagrant disregard for the Environmental Conservation Law and for the environmental agency's interpretation of that law. Relevant to this discussion is the fact that many ECL penalty provisions authorize per diem penalties. Violations of tidal wetlands law and regulations, for example, may be punished by per diem penalties of $10,000 for each continuing violation, even without prior notice to the violator. (See, 71-2503(1)(a)) I find that the additional penalty DEC Staff seeks based upon SIRTOA's continuing actions after notice is justified.


  1. The SIRTOA fence project involves numerous separate violations of Article 24 and Part 663, committed by SIRTOA or its agents performing the activities charged in the complaint without a permit. SIRTOA committed seven separate violations of 663.4(20) for specific fence post installations impairing hydrological functions; one violation of 663.4(14) for fence installation without a permit; one violation of 663.4(23) for clear-cutting vegetation; one violation of 663.4(38) for casting aside construction and vegetation debris in a regulated area; for a total of ten separate violations of Article 24 and 6 NYCRR Part 663.
  2. The exemption provided in PAL 1266-c(11) is not applicable to the SIRTOA fence project at issue in this case. Case law cited by both parties requires that the statutory exemption be read to apply only to projects on lands already used for transportation purposes -- that is, lands upon which improvements have been constructed to further transportation initiatives -- and to those projects which are "on insubstantial addition[s] to such property" -- to currently improved and used Authority property --, contiguous thereto.


Fencing and Footings in Streambeds

I recommend that the Commissioner require the expeditious removal of all fencing from across streams and all footings from streambeds, and the restoration of streambeds at the following locations: south side between Woodvale and Manee Avenues, south side west of Manee Avenue, south side east and west of South Goff Avenue, south side east and west of Richmond Valley Road, north side northwest of Richmond Valley Road.

Fencing in Wetlands

Where Staff have identified exposed footings or footings installed in eroding embankments, I recommend that the Commissioner order the fencing moved to a more stable location, and that only 2 to 3 feet be cleared on either side of each reach of fencing for such relocations. Exposed footings which are not located on stream banks or in stream beds should be covered with soil, regraded and stabilized with appropriate plantings. The areas where fencing should be relocated are set forth on Ex. 1 to the Complaint, Ex.11 in evidence. I do not recommend that the Commissioner require the removal of all fencing which was illegally installed within the Class I wetlands because the wetlands have substantially revegetated and to move the fence may create additional damage.


I recommend that the Commissioner deny the Department's request for general revegetation because there is undisputed credible evidence that the clearcut areas are now substantially revegetated. However, where footings are moved as recommended above, embankments should be reseeded or replanted as needed to stabilize them.


I recommend that the Commissioner impose a penalty in the amount of $30,000 for the violations and an additional $30,000 for continuing to violate the law after the May 4, 1994 Notice of Violation and the November 1, 1994 cease and desist letter.

General Requirements

To assure that the remediation is performed in a manner to afford protection to the wetlands, I recommend that the Commissioner require SIRTOA to submit detailed remediation work plans, in conformance with this Report, to Department Staff within forty-five days of service of the Order in this matter. Department Staff must give prior approval for the redesign and installation; the work must be performed forthwith, according to a schedule established by, and on notice, to Department Staff.

APPENDIX: Exhibit 11

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