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Weekly Update Volume 40, Issue 27

09/27/2010

LITIGATION 

CWA, PRE-ENFORCEMENT REVIEW:

The Ninth Circuit affirmed the dismissal of landowners' lawsuit challenging an EPA compliance order requiring them to remove fill material from their property and to restore the parcel to its original condition. The order alleged that the parcel is a wetland subject to the CWA and that the landowners violated the CWA by filling in their property without first obtaining a permit. The landowners filed suit challenging the order even though EPA never filed an enforcement action in federal court. Although the CWA does not expressly provide for pre-enforcement judicial review of compliance orders, it is "fairly discernable" from the language and structure of the CWA that Congress intended to preclude pre-enforcement judicial review of administrative compliance orders issued by EPA. The lower court, therefore, properly dismissed the case for lack of subject matter jurisdiction. The court also rejected the landowners' claim that preclusion of pre-enforcement review violates their due process rights. Because penalties for noncompliance with a compliance order can be assessed only after EPA proves, in district court, that the defendants violated the CWA in the manner alleged in the compliance order, there is no sharp disconnect between the process given a citizen and the likely penalty that can be imposed under the CWA.Sackett v. United States Environmental Protection Agency, No. 08-35854, 40 ELR 20255 (9th Cir. Sept. 17, 2010).

CERCLA, ARRANGER LIABILITY:

The Fifth Circuit held that a construction company that, during an excavation, failed to investigate what it hit in a pipeline corridor and rectify any damage, is not liable as an arranger under CERCLA or the Texas Solid Waste Disposal Act. The excavation work took place in 1979, but the owner of the pipeline didn't learn of the damage until 2002 when a methanol leak was discovered. The owner sued the construction company to recover its cleanup costs, and both the jury and the district court found that the release at the site would not have occurred but for the 1979 damage to the pipeline. Nevertheless, the company is not liable as an arranger because it did not plan or take any intentional steps to release methanol from the pipeline. The company did not even know that it had struck a pipeline; it only knew that it had struck something with a backhoe. The court rejected the owner's argument that the company's conscious disregard of its duty to investigate is tantamount to intentionally taking steps to dispose of methanol.Celanese Corp. v. Martin K. Eby Construction Co., No. 09-20487, 40 ELR 20252 (5th Cir. Sept. 20, 2010).

CERCLA, REMOVAL ACTIONS, ACCESS:

A district court granted EPA's motion for immediate access to contaminated property to conduct a removal action. The property owner denied access and argued that EPA's request is unreasonable because the property owner is conducting its own remedial actions at the site. But nothing in CERCLA requires EPA to wait for a property owner to conduct remedial action of its own design, at its own pace. Here, EPA's access to the site is authorized under CERCLA §104(e)(3), it requested access to the property from an authorized person, and the Agency has demonstrated a "reasonable basis to believe there may be a release or a threat of a release of a hazardous substance." In addition, EPA's request for access is not arbitrary or capricious, as the Agency made its request for access based on a plethora of information regarding an environmental threat at the property. EPA's motion for immediate access was therefore granted.United States v. Tucard, No. 10-11185-JLT, 40 ELR 20256 (D. Mass. Sept. 15, 2010) (Tauro, J.)

CAA, PSD REQUIREMENTS, STATUTE OF LIMITATIONS:

A district court held that an environmental group's claims against an electric company for violating PSD requirements before making major modifications to one of its plants are time barred, but it stayed final entry of the judgment pending the ruling of the Seventh Circuit in a similar case. PSD obligations are not ongoing. Rather, violations of the CAA's PSD requirements are discrete infractions governed by the five-year limitations period. If the company did violate the CAA by failing to obtain a PSD permit, apply best available control technology limits, or conduct a source impact analysis, any such violation was by law a one-time infraction that accrued at the time of construction or modification of the plant. Because each of the major modifications was commenced more than five years before the initiation of the instant lawsuit, the group's claims for civil remedies are barred by the applicable limitations period. In addition, the concurrent remedy doctrine bars the group's equitable claims brought on the same facts. And the group's allegations that the company violated the CAA's Title V program constitutes an impermissible collateral attack on the company's facially valid Title V permit. The court, therefore, granted summary judgment in favor of the company. However, it stayed entry of final judgment pending the ruling of the Seventh Circuit inUnited States v. Cinergy Corp., 397 F. Supp. 2d 1025 (S.D. Ind. 2005),appeal docketed, Nos. 09-3344 et al. (7th Cir. Sept. 21, 2009), as that appeal addresses the application of the statute of limitations to the plaintiff's claims that the defendant violated the PSD requirements of the CAA.Sierra Club v. Duke Energy Indiana, Inc., No. 1:08-cv-437-SEB-TAB, 40 ELR 20257 (S.D. Ind. Sept. 20, 2010) (Barker, J.).

STANDING, PROCEDURAL INJURY, INFORMATIONAL INJURY:

The Ninth Circuit dismissed environmental groups' claims against the U.S. Forest Service challenging revisions it made to regulations implementing the Forest Service Decisionmaking and Appeals Reform Act (ARA). The revisions limit the scope and availability of notice, comment, and appeals procedures for land and resource management plans. The lower court granted the groups declaratory and injunctive relief. But in light of intervening U.S. Supreme Court case law, the claims are nonjusticiable. InSummers v. Earth Island Institute, 129 S. Ct. 1142 (2009), the Court held that the deprivation of procedural rights, alone, is insufficient to create Article III standing. A concrete and particular project must be connected to the procedural loss. Although one of the groups' members alleged recreational and aesthetic injuries, the lack of any linkage between the project and the claimed injuries undermines the effort to establish standing. The court also rejected the groups' claims that they had standing for informational injuries. The ARA grants the public a right to process and to participation. Even though these rights necessarily involve the dissemination of information, they are not thereby tantamount to a right to information per se.Wilderness Society, Inc. v. Rey, No. 06-35565, 40 ELR 20254 (9th Cir. Sept. 22, 2010).

MOTION TO INTERVENE, TIMELINESS:

The Tenth Circuit affirmed a lower court decision denying a Native American tribe's motion to intervene in a dispute between Oklahoma and a poultry company regarding the company's alleged disposal of poultry waste in the Illinois River watershed. The state sought monetary and injunctive relief. More than three years into the litigation, the company moved to dismiss the state's monetary claims on the ground that the tribe was a required party that had not been joined. The state argued that the tribe was not a required party but nevertheless negotiated an agreement in which the tribe purportedly assigned the state its interests in the litigation. The lower court ruled that the agreement was invalid and granted the company's motion to dismiss, restricting the case to the state's claims for injunctive and other equitable relief. Nineteen days before trial, the tribe moved to intervene so that it could proceed on claims against the company for injunctive and monetary relief. The lower court properly denied the motion as untimely. Although the tribe filed its motion after learning that the state could not adequately represent its interests in the litigation, the tribe had delayed too long. From the outset of the litigation, the tribe had no reason to believe that the state would represent its interests in monetary relief.Oklahoma v. Tyson Foods, Inc., No. 09-5134, 40 ELR 20253 (10th Cir. Sept. 21, 2010).

Copyright© 2010, Environmental Law Institute, Washington, D.C. All rights reserved.

THE FEDERAL AGENCIES

Note: Citations below are to theFederal Register(FR).

AIR:

  • EPA amended the reporting requirements for facilities and suppliers subject to the Mandatory Reporting of Greenhouse Gases Rule.75 FR 57669(9/22/10).
  • EPA announced the availability of and requested comment on a draft report entitledPolicy Assessment for the Review of the Secondary National Ambient Air Quality Standards for Oxides of Nitrogen and Oxides of Sulfur: Second External Review Draft.75 FR 57463(9/21/10).
  • SIP Approvals:Alabama (attainment of the 2006 24-hour fine particulate matter NAAQS for the Birmingham, Alabama, nonattainment area)75 FR 57186(9/20/10); (definition of volatile organic compounds (VOCs))75 FR 57390(9/21/10). California (VOC emissions)75 FR 57862(9/23/10). Michigan (attainment of the 1997 eight-hour ozone NAAQS for the Allegan County nonattainment area and related actions)75 FR 58312(9/24/10).
  • SIP Proposals:Alabama (definition of VOCs; see above for direct final rule)75 FR 57412(9/21/10). Connecticut (2002 base-year emission inventories and reduction plans for tri-state Connecticut, Massachusetts, and Rhode Island nonattainment area)75 FR 57221(9/20/10).

ENERGY:

  • EPA and the National Highway Traffic Safety Administration proposed new fuel economy labeling requirements beginning with model year 2012 cars and trucks.75 FR 58078(9/23/10).

HAZARDOUS & SOLID WASTE:

  • EPA approved Rhode Island's revision to its zinc fertilizer rule.75 FR 57188(9/20/10).
  • EPA approved revisions to Nebraska's hazardous waste management program.75 FR 58328(9/24/10).
  • EPA granted a petition submitted by Eastman Chemical Company-Texas Operations to delist certain solid wastes generated by its Longview, Texas, facility from the list of hazardous wastes.75 FR 58315(9/24/10).
  • EPA proposed to grant a petition submitted by Eastman Chemical Company-Texas Operations to delist certain solid wastes generated by its Longview, Texas, facility from the list of hazardous wastes; see above for direct final rule.75 FR 58346(9/24/10).
  • EPA entered into a proposed administrative settlement under CERCLA that requires the settling party to pay $3,586.20 in U.S. response costs incurred at the R&H Oil/Tropicana Superfund site in San Antonio, Texas.75 FR 57463(9/21/10).
  • EPA entered into a proposed administrative settlement under CERCLA that requires the settling parties to pay $3,000 in U.S. response costs incurred at the Gilberts/Kedzie Superfund site in the village of Gilberts, Illinois, as well as additional payments when the site is sold.75 FR 57272(9/20/10).

TOXIC SUBSTANCES:

  • EPA promulgated significant new use rules under TSCA for 25 chemical substances that were the subject of premanufacture notices.75 FR 57169(9/20/10).

WATER:

  • EPA announced the release of the 2010 Causal Analysis/Diagnosis Decision Information System for the assessment of biologically impaired U.S. water bodies.75 FR 58374(9/24/10).
  • EPA proposed changes to analysis and sampling test procedures in CWA wastewater regulations.75 FR 58024(9/23/10).

WILDLIFE:

  • FWS announced its 90-day finding on a petition to reclassify the U.S. breeding population of the wood stork from endangered to threatened under the ESA; the Agency found that reclassification may be warranted and initiated a status review.75 FR 57426(9/21/10).

DOJ NOTICES OF SETTLEMENT:

  • United States v. Tronox Pigments (Savannah), Inc., No. 408-259 (S.D. Ga. Aug. 26, 2010). A settling CAA, CERCLA, and CWA defendant must pay a $4.2 million civil penalty as an allowed claim, must apply for an amended Title V permit, must continue to perform a RCRA investigation and cleanup under state supervision, and must complete excavation of a ditch system at its Savannah facility.75 FR 57816(9/22/10).
  • United States v. Hercules Inc., No. 10-412 (W.D. Va. Sept. 16, 2010). Settling CERCLA defendants must pay $1.9 million in U.S. response costs incurred at the Kim-Stan Landfill Superfund site near Selma, Virginia.75 FR 57817(9/22/10).

Copyright© 2010, Environmental Law Institute, Washington, D.C. All rights reserved.

THE CONGRESS

Note: Citations below are to theCongressional Record(Cong. Rec.).

Committee Action

  • S. 1252 (NOAA)was reported by the Committee on Commerce, Science, and Transportation. S. Rep. No. 111-296, 156 Cong. Rec. S7205 (daily ed. Sept. 20, 2010). The bill would amend the Oceans and Human Health Act to expand the interagency oceans and human health research program to include coasts and the Great Lakes and to direct the President, through the National Science and Technology Council, to deliver information, products, and services to reduce public health risks, including those related to climate change, and enhance health benefits from the ocean.
  • S. 3119 (appropriations)was reported by the Committee on Environment and Public Works. S. Rep. No. 111-298, 156 Cong. Rec. S7205 (daily ed. Sept. 20, 2010). The bill would extend through FY2015 the authorization of appropriations to the EPA Administrator for the implementation of the Management Conference of the Long Island Sound Study.
  • H.R. 2336 (energy efficiency)was reported by the Committee on Financial Services. H. Rep. No. 111-619, 156 Cong. Rec. H6878 (daily ed. Sept. 22, 2010). The bill would encourage energy efficiency and conservation and development of renewable energy sources for housing, commercial structures, and other buildings, and create sustainable communities.

Bills Introduced

  • S. 3807 (Baucus, D-Mont.) (aviation fuels) would amend title 10, U.S. Code, to authorize long-term contracts for the purchase of liquid synthetic or biomass-derived aviation or aviation blend fuels for the Department of Defense. 156 Cong. Rec. S7205 (daily ed. Sept. 20, 2010). The bill was referred to the Committee on Armed Services.
  • S. 3809 (Gillibrand, D-N.Y.) (conservation)would amend the Food Security Act of 1985 to require the Secretary of Agriculture to carry out a conservation program under which the Secretary shall make payments to assist owners and operators of muck soil land to conserve and improve the soil, water, and wildlife resources of the land. 156 Cong. Rec. S7276 (daily ed. Sept. 21, 2010). The bill was referred to the Committee on Agriculture, Nutrition, and Forestry.
  • S. 3812 (Vitter, R-La.) (fisheries)would prohibit trade in billfish. 156 Cong. Rec. S7276 (daily ed. Sept. 21, 2010). The bill was referred to the Committee on Commerce, Science, and Transportation.
  • S. 3813 (Bingaman, D-N.M.) (renewable electricity) would amend the Public Utility Regulatory Policies Act of 1978 to establish a federal renewable electricity standard. 156 Cong. Rec. S7276 (daily ed. Sept. 21, 2010).
  • S. 3815 (Reid, D-Nev.) (electric vehicles)would promote the use of natural gas and electric vehicles. 156 Cong. Rec. S7276 (daily ed. Sept. 21, 2010).
  • S. 3822 (Bingaman, D-N.M.) (federal land)would adjust the boundary of the Carson National Forest, New Mexico. 156 Cong. Rec. S7352 (daily ed. Sept. 22, 2010). The bill was referred to the Committee on Energy and Natural Resources.
  • S. 3824 (Feinstein, D-Cal.) (pipelines)would amend title 49, U.S. Code, to provide for enhanced safety and environmental protection in pipeline transportation and to provide for enhanced reliability in the transportation of U.S. energy products by pipeline. 156 Cong. Rec. S7352 (daily ed. Sept. 22, 2010). The bill was referred to the Committee on Commerce, Science, and Transportation.
  • S. 3825 (Risch, R-Idaho)(ESA)would amend the ESA to remove certain portions of the distinct population segment of the Rocky Mountain gray wolf from the list of threatened species or the list of endangered species published under the Act. 156 Cong. Rec. S7352 (daily ed. Sept. 22, 2010). The bill was referred to the Committee on Environment and Public Works.
  • H.R. 6160 (Dahlkemper, D-Pa.) (rare earth materials)would develop a rare earth materials program and amend the National Materials and Minerals Policy, Research and Development Act of 1980. 156 Cong. Rec. H6878 (daily ed. Sept. 22, 2010). The bill was referred to the Committee on Science and Technology.
  • H.R. 6161 (Conyers, D-Mich.) (National Parks)would enact title 54, U.S. Code, "National Park System," as positive law. 156 Cong. Rec. H6878 (daily ed. Sept. 22, 2010). The bill was referred to the Committee on the Judiciary.
  • H.R. 6180 (D-N.Y.) (soil conservation)would amend the conservation provisions of the Food Security Act of 1985 to promote the conservation and improvement of the soil, water, and wildlife resources of lands containing muck soils. 156 Cong. Rec. H6879 (daily ed. Sept. 22, 2010). The bill was referred to the Committee on Agriculture.
  • H.R. 6182 (Kratovil, D-Md.) (water pollution; smart growth) would amend the Federal Water Pollution Control Act to authorize the Administrator of EPA to make additional capitalization grants to the water pollution control revolving funds of states that adopt smart growth principles. 156 Cong. Rec. H6879 (daily ed. Sept. 22, 2010). The bill was referred to the Committee on Transportation and Infrastructure.
  • H.R. 6194 (Polis, D-Colo.) (National Environmental Education Act)would amend the National Environmental Education Act to update, streamline, and modernize that Act. 156 Cong. Rec. H6988 (daily ed. Sept. 23, 2010). The bill was referred to the Committee on Education and Labor.
  • H.R. 6206 (Heinrich, D-N.M.) (federal land)would reinstate funds to the Federal Land Disposal Account. 156 Cong. Rec. H6989 (daily ed. Sept. 23, 2010). The bill was referred to the Committee on Natural Resources.
  • H.R. 6209 (Lujan, D-N.M.) (federal land)would adjust the boundary of the Carson National Forest, New Mexico. 156 Cong. Rec. H6989 (daily ed. Sept. 23, 2010). The bill was referred to the Committee on Natural Resources.
  • H.R. 6217 (Walz, D-Minn.) (levees)would amend the Water Resources Development Act of 2000 with respect to levee certifications. 156 Cong. Rec. H6989 (daily ed. Sept. 23, 2010). The bill was referred to the Committee on Transportation and Infrastructure.

Copyright© 2010, Environmental Law Institute, Washington, D.C. All rights reserved.

IN THE STATES

Note: The entries below cover state developments since the last issue of Update. The entries are arranged by state, and within each section, entries are further subdivided by subject matter area. To access material previously reported in 2010, visit our list ofCumulative State Developments. For state material reported prior to 2010, visit theELR Archives.

The states below have updates this week:

ArizonaCaliforniaConnecticutFloridaIndianaNevadaNew YorkRhode IslandWyoming

ARIZONA

Energy:

  • The Corporation Commission proposed to amend Ariz. Rev. Stat. §14-2-25, Gas Utility Energy Utility Energy Efficiency Standards. Changes would require utilities, by 2020, to achieve cumulative annual energy savings equal to at least six percent of the affected utility’s retail gas energy sales for calendar year 2019. The deadline for written comments is October 18, 2010, and there will be a public hearing on October 28. Final approval is expected in December 2010. Seehttp://www.azsos.gov/public_services/Register/2010/38/docket.pdf(pp. 1847-48).

CALIFORNIA

Toxic Substances:

  • The Department of Toxic Substances Control proposed to add a new chapter 53, Safer Consumer Products Alternatives, to Cal. Code Regs. tit. 22, div. 4.5. The chapter would identify and prioritize those chemicals or chemical ingredients in consumer products that may be considered a chemical of concern and establish a process for evaluating chemicals of concern in consumer products, and their potential alternatives, to determine how best to limit exposure or to reduce the level of hazard posed by priority chemicals. The written comment period ends November 1, 2010. Seehttp://www.oal.ca.gov/res/docs/pdf/notice/38z-2010.pdf(pp. 1501-18).

CONNECTICUT

Air:

  • The Department of Environmental Protection proposed to revise Conn. Gen. Stat. §22a-174 to incorporate the new EPA greenhouse gas tailoring rule. The deadline for written comments is October 18, 2010. Seehttp://www.ct.gov/dep/cwp/view.asp?A=2586&Q=465750.

FLORIDA

Air:

Water:

  • The Department of Environmental Protection proposed to amend Fla. Admin. Code r. 62-302.540 to provide a new numeric phosphorus criterion for the Everglades Protection Area that is consistent with the Federal Water Pollution Control Act. The comment period closes October 8, 2010. Seehttps://www.flrules.org/Gateway/View_notice.asp?id=9136932.

INDIANA

Hazardous & Solid Waste:

  • The Solid Waste Management Board added 329 Ind. Admin. Code 3.1-6-9, exempting from regulation under 329 Ind. Admin. Code 3.1 wastewater treatment sludge from electroplating operations that was generated by Rumpke of Indiana, LLC, and placed in a corrective action management unit constructed adjacent to Medora Sanitary Landfill, Medora, Indiana. The rule takes effect October 22, 2010. Seehttp://www.in.gov/legislative/iac/20100922-IR-329090206FRA.xml.pdf.

Water:

NEVADA

Energy:

NEW YORK

Energy:

  • The State Energy Research and Development Authority adopted amendments to N.Y. Comp. Codes R. & Regs. tit. 21, §508, adding a new Green Residential Buildings Program. The program provides tax incentives for the building of residences that achieve certain environmental goals, including energy efficiency and greenhouse gas emissions reduction. The rule took effect on September 22, 2010. Seehttp://www.dos.state.ny.us/info/register/2010/sep22/pdfs/rules.pdf(pp. 18-20).

RHODE ISLAND

Water:

WYOMING

Air:

Copyright© 2010, Environmental Law Institute, Washington, D.C. All rights reserved.

INTERNATIONAL

UK OPENS WORLD'S LARGEST WIND FARM; STILL LAGGING ON 2020 GOALS

The world's largest wind farm was launched last week to a mix of support and skepticism. Though the 300 megawatt addition to the UK's grid allowed wind energy to provide a record ten percent of all power being used in Britain, progress on renewable energy goals remains unclear. Goals set eight years ago by the Labour party to generate at least ten percent of electricity from green sources appear to have been met, when wind energy generation is combined with that of new biomass plants and old hydropower facilities. In addition, wind power hit a milestone earlier this month, before the launch of the new farm, when existing farms provided five percent of the almost 810 gigawatts used. According to a wind energy trade journal, the British market for small wind turbines will grow an estimated 181 percent in 2010, as turbines gain certification for UK financial incentives. However, percentage targets have been easier to meet as a recession-induced decrease in demand means lower usage overall, and UK lags behind much of Europe in renewable power. A spokesman for the Department of Energy and Climate Change reminded the coalition government that the UK is still behind on legally binding EU goals of 15 percent renewable power by 2020, with the third lowest proportion of power coming from renewable sources of 27 member states. In addition, wind power faces staunch opposition from critics in the UK Independence party, who call claims of success a "tissue of lies." Wave energy developer Aquamarine Power released a report last week on potential strategies for the coalition government to expand and capitalize on renewable sources, comparing the nascent market to that of Denmark in the 1980s. For the story on the new farm, seehttp://www.guardian.co.uk/environment/2010/sep/19/renewable-energy-10-per-cent-targetandhttp://www.bloomberg.com/news/2010-09-23/offshore-farm-pushes-u-k-wind-power-past-5-gigawatts-correct-.html. For the story on comparisons to Danish renewable power, seehttp://www.energyefficiencynews.com/i/3377/. For the story on small wind turbine growth, seehttp://www.windtech-international.com/news/14-newsflash/3636-certification-for-small-wind-turbines-in-the-uk/.

RAJENDRA PACHAURI MUST QUIT, SAYS FORMER UK ENVIRONMENT MINISTER

Former British environment minister Tim Yeo has joined the body of voices calling on the Intergovernmental Panel on Climate Change chief Rajendra Pachauri to quit, telling BBC Radio 4 that the panel needed someone whose "academic and intellectual credentials are unquestioned." Pachauri has said repeatedly that he won't quit unless specifically asked to do so by the full panel in October in Korea, but a number of critics, including Greenpeace, have said that replacing Pachauri would restore faith in the panel. Pachauri has been accused of financial conflicts of interest in business dealings with carbon trade companies. While he was cleared of any wrongdoing, an error in a 2007 report saying that the Himalayan glaciers would melt by 2035 drew harsh criticism. A UN Climate Change panel report recently recommended that no chairman should serve longer than six years, and should be vetted for potential conflict of interest before starting a term. For the full story, seehttp://www.telegraph.co.uk/earth/environment/climatechange/8019691/Pressure-mounting-for-Rajendra-Pachauri-to-resign-as-IPCC-head.html.

OSPAR FAILS TO BAN OFFSHORE DRILLING, SETS UP FISHING FREE ZONES

At a meeting of parties to the Convention for the Protection of the Marine Environment of the North-East Atlantic (OSPAR) in the Norwegian city of Bergen on Friday, oil-producing European nations rejected a proposed ban on deep sea offshore drilling designed to avoid a disaster similar to the Deepwater Horizon spill. According to the AFP, Britain, Denmark, and Norway quickly rejected the proposal, and a spokesman for Norway's environment ministry said the nations would wait until the results of a report ordered on the Deepwater Horizon spill were presented to President Obama in January. Greenpeace activists have occupied Chevron-operated drills off the coast of Scotland for several days to push for a ban. During the Bergen meeting, OSPAR did pass an initiative to set up fishing free zones in remote parts of the Atlantic Ocean. For the full story on the failed offshore drilling ban, seehttp://www.google.com/hostednews/afp/article/ALeqM5gjNsyBw4t_p20IBlaPHtxoIx7mXA. For the story on OSPAR and fishing, seehttp://www.reuters.com/article/idUSTRE68M3R220100924.

Copyright© 2010, Environmental Law Institute, Washington, D.C. All rights reserved.

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