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Worldwide CHINFO Conference 2009 – Worldwide CHINFO Conference 2009 – Environmental Law for the PAOEnvironmental Law for the PAO
Environmental Law and Planning Environmental Law and Planning for the Public Affairs Professionalfor the Public Affairs ProfessionalEnvironmental Law and Planning Environmental Law and Planning for the Public Affairs Professionalfor the Public Affairs Professional
Worldwide CHINFO Conference 2009 – Worldwide CHINFO Conference 2009 – Environmental Law for the PAOEnvironmental Law for the PAO
Pam Ellen Hudson, Esq.
Asst. Counsel (Environment) Civil Engineer Corps Officers School (CECOS)
pam.hudson@navy.mil
Register for classes at:
https://www.netc.navy.mil/centers/csfe/cecos
Worldwide CHINFO Conference 2009 – Worldwide CHINFO Conference 2009 – Environmental Law for the PAOEnvironmental Law for the PAO
Objectives!
Understand why NEPA was enacted ( in order to empower public affairs personnel to foster transparency on environmental issues)
Learn the goals of NEPA and what happens if the DoN does not comply (so you can promote partnerships “beyond the fenceline”)
Understand the overarching NEPA and EO 12114 Framework (so you can engage the workforce on environmental stewardship matters)
Worldwide CHINFO Conference 2009 – Worldwide CHINFO Conference 2009 – Environmental Law for the PAOEnvironmental Law for the PAO
Environmental Public Affairs Support
A bottlenose dolphin leaps out of the water while training near USS Gunston Hall (LSD 44) in the Arabian Gulf during Operation Iraqi Freedom. It is wearing an acoustic tracking device on its fin.
Some days it’s a really cool job!!!
Worldwide CHINFO Conference 2009 – Worldwide CHINFO Conference 2009 – Environmental Law for the PAOEnvironmental Law for the PAO
Public Affairs Environmental Support
A 40 ton sei whale, being necropsied by the Virginia Marine Science Museum's stranding team (Feb ’03) at the Little Creek Naval Amphibious Base
Officer’s beach.
Some days it’s not!!!
Worldwide CHINFO Conference 2009 – Worldwide CHINFO Conference 2009 – Environmental Law for the PAOEnvironmental Law for the PAO
Why is subject important?Why is subject important?
Why do we care?Why do we care?
What is the role of the What is the role of the Environmental Attorney?Environmental Attorney?
Worldwide CHINFO Conference 2009 – Worldwide CHINFO Conference 2009 – Environmental Law for the PAOEnvironmental Law for the PAO
How do we even have How do we even have environmental laws??environmental laws??
The Constitution?Life – Liberty – the Pursuit of
Happiness?
If it’s not in the constitution, how can we have environmental laws?
Worldwide CHINFO Conference 2009 – Worldwide CHINFO Conference 2009 – Environmental Law for the PAOEnvironmental Law for the PAO
Political Activism: The 60’s
Worldwide CHINFO Conference 2009 – Worldwide CHINFO Conference 2009 – Environmental Law for the PAOEnvironmental Law for the PAO
Worldwide CHINFO Conference 2009 – Worldwide CHINFO Conference 2009 – Environmental Law for the PAOEnvironmental Law for the PAO
A Silent Spring
"The sedge is wither'd from
the lake, And no birds sing.“ - John Keats
"La Belle Dame sans Merci"
Worldwide CHINFO Conference 2009 – Worldwide CHINFO Conference 2009 – Environmental Law for the PAOEnvironmental Law for the PAO
Uncle Sam Reacts
U.S. Environmental Laws
NEPA (1969) CAA (1970) CWA (1972) ESA (1973) MMPA (1972) CZMA (1972)
U.S. EPA formed 1970
Worldwide CHINFO Conference 2009 – Worldwide CHINFO Conference 2009 – Environmental Law for the PAOEnvironmental Law for the PAO
Federal Environmental Legislation
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1910 1920 1930 1940 1950 1960 1970 1980 1990 2000 2010 2020
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1929 MBTA 1973 ESA 1988 FCRPA 1995 CZMRA1935 HSA 1974 SDWA 1988 FLPMA 1996 LDPFA1936 FWCA 1974 SA 1988 MWTA 1996 MCRBMA1938 FDCA 1974 AHPA 1988 FHSA 1996 WRDA1947 FIFRA 1975 HMTA 1988 LCCA 1996 SPA1954 WPFPA 1975 FIFRA 1988 TSCA 1996 FQPA1956 CAA 1976 TSCA 1988 UMTRAAA 1996 SDWA1960 FHSA 1976 FLPMA 1988 WSRA 1996 NMSPA1962 CAA 1976 WRDA 1988 NWPA 1997 SAIA1964 FWPRA 1976 RCRA 1988 FEAPRA 1998 MBTRA1964 WA 1977 SMCRA 1988 AIA 1998 NWRSVCPEA1965 SWDA 1977 CWA 1988 FEMIA 1999 WRDA1965 LWCFA 1978 AIRFA 1988 ODBA 2000 ECWA1966 NHPA 1978 FIFRA 1988 SPA 2000 WRDA1966 NWRSAA 1978 UMTRCA 1989 WRDA 2000 CBRRA1967 CAA 1979 ARPA 1990 NAWCA 2000 ESA1968 WSRA 1980 UORA 1990 OPA 2000 NMSPA1968 SA 1980 CERCLA 1990 APA 2000 NMBCA1968 EPA 1980 FWCA(2) 1990 CAAA 2000 BEACHA1969 NEPA 1980 APA 1990 WRDA 2000 FWPINWFSCA1970 RRA 1982 NWPA 1990 HMTUSA1970 WQIA 1982 SA 1990 PPA1971 OHSA 1984 HSWAA 1990 NEEA1972 PWSA 1986 SARA 1990 NAGPRA1972 FWPCA 1986 EPCRA 1991 FIFRA1972 FIFRA 1986 RGIAQA 1992 NHPA1972 MMPA 1986 WRDA 1992 WRDA1972 MPRSA 1986 SA 1992 FFCA1972 NCA 1987 WQA 1992 CERFA1972 CZMA 1987 FIFRA 1994 CAAA
Worldwide CHINFO Conference 2009 – Worldwide CHINFO Conference 2009 – Environmental Law for the PAOEnvironmental Law for the PAO
Federal Agencies Have Significant Federal Agencies Have Significant Environmental ResponsibilitiesEnvironmental Responsibilities
Worldwide CHINFO Conference 2009 – Worldwide CHINFO Conference 2009 – Environmental Law for the PAOEnvironmental Law for the PAO
The National Environmental Policy Act (NEPA) 42 U.S.C. Secs. 4321-4347 Known as NEPA, almost 40 years in existence National Charter for protection of the Nation’s environment
and living resources Establishes a national environmental policy to promote wise
use and planning for environment by Federal Agencies Provides statutory basis for review of Federal decisions that
impact the environment Created Council on Environmental Quality (CEQ); CEQ
Regulations found at 40 CFR Sec 1500 Procedural Law-Follow the correct process
Worldwide CHINFO Conference 2009 – Worldwide CHINFO Conference 2009 – Environmental Law for the PAOEnvironmental Law for the PAO
The National Environmental Policy Act (NEPA)
US Army – 32 CFR 651 (AR 200-2) US ACE – 33 CDR 230; see also 33 CFR 325 US Air Force – 32 C.F.R. 989 and 64 F.R. 38127 USCG – COMDTINST M16475.1D US Navy – 32 CFR 775 (SECNAVINST 5060.6A) USMC – 32 CFR 775 (SECNAVINST 5090.6A) NASA – 14 CFR 1216 and 53 F.R. 9759 US DOJ – 28 CFR 61 (and appropriate Appendices)http://www.nepa.gov/nepa/regs/agency/agencies.cfm
Worldwide CHINFO Conference 2009 – Worldwide CHINFO Conference 2009 – Environmental Law for the PAOEnvironmental Law for the PAO
NEPA’s Twin ObjectivesTwin Objectives: Environmental Environmental Impact AnalysisImpact Analysis and Public ParticipationPublic Participation Full disclosure, analysis and consideration of
environmental information as a criteria within Federal agency decision makingPreventing environmental damage
Agencies must inform the public of potential impacts and alternatives and involve the public in decision makingEnsuring agency has taken environmental factors of concern
to public into account
This is to lead to better governmental decision-making within our Republic
Worldwide CHINFO Conference 2009 – Worldwide CHINFO Conference 2009 – Environmental Law for the PAOEnvironmental Law for the PAO
The National purposeNational purpose of planning for environmental protection is achieved by:
Requiring the Federal agency to…“..utilize a systematic, interdisciplinary a systematic, interdisciplinary approachapproach to ensure the integrated use of the natural and social sciences, and the environmental design arts in planning and in planning and decision makingdecision making, where Federal actions may have an impact on the environment.” NEPA § 102
Worldwide CHINFO Conference 2009 – Worldwide CHINFO Conference 2009 – Environmental Law for the PAOEnvironmental Law for the PAO
NEPA as an “Umbrella” for Other Laws & Regs Federal Aviation Act of 1958 Federal Aviation Regulation (Parts 71, 73, and 91) FAA Handbook Parts 7400.2C and 7110.65
Federal Water Pollution Control Act of 1948 Clean Water Act of 1977 Executive Order 11988 (Floodplain Management) Safe Drinking Water Act of 1974
Resources Conservation & Recovery Act of 1976 Solid Waste Disposal Act & Amendments of 1980 Comprehensive Environmental Response,
Compensation, and Liability Act (CERCLA) of 1980, and SARA of 1986
Endangered Species Act of 1973 Fish and Wildlife Conservation Act Migratory Bird Treaty Act of 1972 Executive Order 11990 (Protection of Wetlands) Bald Eagle Protection Act
Clean Air Act Executive Order 12088 (Pollution Control
Standards)
National Historic Preservation Act of 1966 Protection of Historic and Cultural Properties Native American Graves Protection and
Repatriation Act (NAGPRA) Archaeological Resources Protection Act of 1979 Executive Order 13007 American Indian Religious Freedom Act Executive Order 11593
Executive Order 12898 (Environmental Justice)
Airspace
Materials
Water Resources
Biological Resources
Cultural Resources
Air Quality
Environmental
Justice
Worldwide CHINFO Conference 2009 – Worldwide CHINFO Conference 2009 – Environmental Law for the PAOEnvironmental Law for the PAO
Overlapping Requirements
ESA Biological Opinion (BO)
Law Agency ProductAgency Timeline
NMFS (Marine) USFWS (Terrestrial)
135 days (min)
Drivers
MMPA Letter of Authorization (LOA)
NMFS 14 mos. (min)
CZMA Consistency Determination
90 days State Coastal Authority
Concurrent with NEPA Process
“may affect” protected species or critical habitat
likely to result in marine mammal takes
likely to be coastal effects
Worldwide CHINFO Conference 2009 – Worldwide CHINFO Conference 2009 – Environmental Law for the PAOEnvironmental Law for the PAO
When does NEPA apply? Whenever agencies propose to take “major Federal “major Federal
actions significantly affecting the quality of the human actions significantly affecting the quality of the human environment”:environment”: Major Federal actions: policies, plans, programs and projects Significantly: context and intensity Affecting: will or may have an effect The human environment: the natural and physical
environment This has led to a system of tiered levels of analysis to
determine the significance of impacts by the action on the environment
Worldwide CHINFO Conference 2009 – Worldwide CHINFO Conference 2009 – Environmental Law for the PAOEnvironmental Law for the PAO
The NEPA Analysis TriggerTrigger
Whenever agencies propose to take an action with the potential to affect the natural and physical environment
In other words, Federal actions that can be new or ongoing with the potential to effect national environmental resources
Worldwide CHINFO Conference 2009 – Worldwide CHINFO Conference 2009 – Environmental Law for the PAOEnvironmental Law for the PAO
Levels Of NEPA Analysis and ProcessLevels Of NEPA Analysis and Process
The requirement to conduct impacts analysis has led to a three-tiered system of documentation and analysis, each with its own required level of analysis, degree of public participation and type of decision making document ultimately used.
They are:Categorical Exclusion (CATEX, CE); Environmental Assessment (EA); and,Environmental Impact Statement (EIS).
Worldwide CHINFO Conference 2009 – Worldwide CHINFO Conference 2009 – Environmental Law for the PAOEnvironmental Law for the PAO
Categorical Exclusion (CATEX)Categorical Exclusion (CATEX) Each Agency promulgates own list of CATEXs through
rule-making This is related to the Agency mission and routine types of
actions These categories of action do not have significant effects
on the environment, either individually or cumulatively Document in a 1-2 page memo signed at the local CO
level The use of a CATEX excludes the action from further
environmental analysis Where action falls within CATEX but “extraordinary
circumstance exists”, CATEX cannot be used
Worldwide CHINFO Conference 2009 – Worldwide CHINFO Conference 2009 – Environmental Law for the PAOEnvironmental Law for the PAO
CATEX cannot be used where “Extraordinary Circumstance” exists Affects public health or safety Where Resource Agency determines may have potential
for significant impacts on: wetlands, endangered or protected species, cultural resources, protected resources, or hazardous waste sites
Uncertain risks, scientific controversy Establishes a precedent for future actions May violate a local, State or Federal environmental law or
requirement Additional warnings in each Agency’s regulations
Worldwide CHINFO Conference 2009 – Worldwide CHINFO Conference 2009 – Environmental Law for the PAOEnvironmental Law for the PAO
Environmental Assessment (EA)Environmental Assessment (EA) Used when agency does not know beforehand whether or not
the proposed action will significantly affect the environment Analysis discusses:
Proposed action, purpose and need, alternatives, affected environment and anticipated impacts; Consultation with Resource Agencies
Result is Finding Of No Significant Impact (FONSI) or decision to prepare EIS
May mitigate level of impacts down to FONSI Public participation is at the discretion of the decision-maker
and advice from team preparing the document Signed out at the Flag/SES level
Worldwide CHINFO Conference 2009 – Worldwide CHINFO Conference 2009 – Environmental Law for the PAOEnvironmental Law for the PAO
Environmental Impact Statement (EIS)Environmental Impact Statement (EIS)
The EIS is prepared where the Federal action has the potential for significant environmental impacts
Comprehensive analysis includes: Impacts (direct, indirect and cumulative), Actions (connected, cumulative and similar) Reasonable alternatives
Worldwide CHINFO Conference 2009 – Worldwide CHINFO Conference 2009 – Environmental Law for the PAOEnvironmental Law for the PAO
Reasonable Alternatives AnalysisReasonable Alternatives Analysis
Shows the comparison between all ways to conduct the action to fulfill purpose and need
Analysis developed from affected environment: area where impact will be located-all ecology, natural resources, protected resources, historic and cultural resources, media
Analysis from environmental consequences: scientific and analytic comparison of all impacts from range of alternatives
Worldwide CHINFO Conference 2009 – Worldwide CHINFO Conference 2009 – Environmental Law for the PAOEnvironmental Law for the PAO
Also Included in Document:
Purpose and need of proposed action Results from consults with other Federal
Agencies where they have jurisdiction by law or special expertise over a resource or issue
Special coordination with Cooperating Agency Coordination with interested parties, public, state
and local governments, Indian tribes Executive summary, technical data for
appendices
Worldwide CHINFO Conference 2009 – Worldwide CHINFO Conference 2009 – Environmental Law for the PAOEnvironmental Law for the PAO
Environmental Impact Statement Requires Environmental Impact Statement Requires Public ParticipationPublic Participation
Start with Notice of Intent SCOPING - early and open process to determine scope of
issues to be addressed and to identify the significant issues related to a proposed action As part of process, Agency:
Invites affected Federal, State and local agencies, affected Indian Tribes, and other interested parties to participate
Following DEIS publication, re-invite comments at formal public hearing
Record of Decision signed out by Secretariat is published in Federal Register
Worldwide CHINFO Conference 2009 – Worldwide CHINFO Conference 2009 – Environmental Law for the PAOEnvironmental Law for the PAO
The Record of Decision (ROD) Following FEIS, ROD is designed to ensure that Agency
decision-makers explain the decision to the Nation Concise public document that states the decision and
identifies all alternatives including environmentally preferable alternative
Reveals whether all practicable means to avoid or minimize environmental harm have been adopted, and if not, why not
Adopts and summarizes a monitoring and enforcement program for any mitigation measures
Worldwide CHINFO Conference 2009 – Worldwide CHINFO Conference 2009 – Environmental Law for the PAOEnvironmental Law for the PAO
Proposed Action
Categorical Exclusion
Environmental Assessment
OverviewOverview
of theof the
NEPANEPA
ProcessProcess
Notice of Intent Draft EIS Final EIS
Scoping Process Public Comment
- Significant Impact Revealed
- Inability to mitigate impacts
- Extraordinary Circumstance
- No CATEX exist
No
Yes CATEX available
No
Yes
Finding of No Significant
Impact (FONSI)
Record/Memo to File
FONSI prepare and proceed
Record of Decision (ROD) prepare and proceed
Worldwide CHINFO Conference 2009 – Worldwide CHINFO Conference 2009 – Environmental Law for the PAOEnvironmental Law for the PAO
Collaborative Approach to NEPA CEQ Handbook Collaboration in NEPA (October 2007) Only works when there is sufficient decision space - room for
parties to mold the solution that meets their needs Why?
Brings in more transparency to the processBroader agreement (the "buy in")Reduces conflictsExpediting the NEPA process
Different Approaches (for example, in the area of alternatives)Public workshops to discuss draft alternatives and how they can
be improved.Working with advisory committees or other existing stakeholder
groups to identify and refine alternatives, or ID effects, etc.
Worldwide CHINFO Conference 2009 – Worldwide CHINFO Conference 2009 – Environmental Law for the PAOEnvironmental Law for the PAO
Tiering and Programmatic DocumentsTiering and Programmatic Documents
Stepped approach to analysis by using other documents to develop current analysis
Incorporates previous findings by reference Allows action proponent and decision maker to
complete the analysis at varying stages of action development
Programmatic documents also encouraged
Worldwide CHINFO Conference 2009 – Worldwide CHINFO Conference 2009 – Environmental Law for the PAOEnvironmental Law for the PAO
Agency Discretion: Informed Decision-Agency Discretion: Informed Decision-makingmaking
The Agency may chose, using its informed discretion, what level of NEPA review is required
The Agency may select whichever alternative it prefers, where it understands and is informed consequences of the action
The Agency may select an alternative other than the least damaging alternative where the decision maker has considered the environmental effects of the action-”Hard Look” standard
Worldwide CHINFO Conference 2009 – Worldwide CHINFO Conference 2009 – Environmental Law for the PAOEnvironmental Law for the PAO
Inter-Agency ConsultationInter-Agency Consultation
Other agency’s may be responsible for reviewing or sharing in the preparation of NEPA documents and procedures: Cooperating agency’s- “special jurisdiction” and where
law details must consult: ESA, NHPA, MMPA, CAA Conformity Review
Appropriate State and local agencies authorized to develop and enforce environmental standards
Indian tribes Any other agency requesting EPA reviews EIS and rates analysis
Worldwide CHINFO Conference 2009 – Worldwide CHINFO Conference 2009 – Environmental Law for the PAOEnvironmental Law for the PAO
Challenging Agency ActionChallenging Agency Action
Challenges brought under the Administrative Procedure Act Administrative Record Standing Standard of review: arbitrary and capricious, an abuse of
discretion, or otherwise contrary to law Injunctive relief; attorney fees
Basis of challenge usually inadequacy of environmental analysis, unreasonable or no rationale for decision, failure to follow procedures
Worldwide CHINFO Conference 2009 – Worldwide CHINFO Conference 2009 – Environmental Law for the PAOEnvironmental Law for the PAO
Consequences
InjunctionPenaltiesPoliticsPublic relations
Worldwide CHINFO Conference 2009 – Worldwide CHINFO Conference 2009 – Environmental Law for the PAOEnvironmental Law for the PAO
A Lot Of Water
Worldwide CHINFO Conference 2009 – Worldwide CHINFO Conference 2009 – Environmental Law for the PAOEnvironmental Law for the PAO
Readiness Costs
Low Frequency Active Sonar: 6 year delay; $10 million Scientific Research Project. Deployed already by Russia and France.
JOHN PAUL JONES Ship Shock: Coordinated with regulators, sued by activists. Settlement delayed test 30 days. $3 million dollars cost. Final location more populated.
CHURCHILL Ship Shock: $1.6 million cost for EIS.
TAP – Range Documents $98 million for environmental planning & compliance documentation
Worldwide CHINFO Conference 2009 – Worldwide CHINFO Conference 2009 – Environmental Law for the PAOEnvironmental Law for the PAO
Denial - The initial stage This can't be happening
Anger Why is this happening to me?
It's not fair Bargaining
I promise to be a better person (Navy) if ...
Depression I'm so sad, I don’t care anymore
Acceptance It's going to be OK – I’m ready
for whatever comes
Stages of GriefKübler-Kübler-Ross ModelRoss Model
Dr. Elizabeth Kübler-Ross
On Death and Dying (1969)
Worldwide CHINFO Conference 2009 – Worldwide CHINFO Conference 2009 – Environmental Law for the PAOEnvironmental Law for the PAO
Additional “At Sea” Planning and Policy Additional “At Sea” Planning and Policy Documents – Navy and Marine CorpsDocuments – Navy and Marine Corps
28 Dec 00 “At Sea Policy”
OPNAVINST 5090.1C (Ch. 5); MCO P5090.2B
23 Dec 04 CNO (N45) Supplemental Environmental Planning Policy
March 2006 CNO (N45) MFA Sonar Effects Analysis Interim Policy
April 2007 CNO (N45) Update to MFA Sonar Effects
Navy/NOAA Ltr Agreement (2005)
Worldwide CHINFO Conference 2009 – Worldwide CHINFO Conference 2009 – Environmental Law for the PAOEnvironmental Law for the PAO
Environmental Planning Outside US Environmental Planning Outside US TerritoryTerritory
NEPA itself does not apply abroad-12nm inward to shoreline
Executive Order 12114, Environmental Effects Abroad, governs environmental planning abroad “NEPA-like analysis” for actions that significantly
harm the environment outside the U.S. Impacts Analysis only: No required public
involvement and no Judicial Review Series of analytic documents to prepare
depending upon where the impact exists
Worldwide CHINFO Conference 2009 – Worldwide CHINFO Conference 2009 – Environmental Law for the PAOEnvironmental Law for the PAO
Where Does E.O. 12114 Apply?Where Does E.O. 12114 Apply?
The global commons The environment of a
foreign nation that is not participating or otherwise involved in the action
The environment of a foreign nation by use of toxic or radioactive substances
Those resources of global importance
Worldwide CHINFO Conference 2009 – Worldwide CHINFO Conference 2009 – Environmental Law for the PAOEnvironmental Law for the PAO
Applicability At Sea
US Territorial Waters12 NM
US EEZ200 NM
Global Commons
Foreign Nation EEZ200 NM
Foreign Territorial Waters 12 NM
NEPA
EO 12114
ESA & MMPA
CZMA
Uni
ted
Sta
tes
For
eign
Nat
ion
Worldwide CHINFO Conference 2009 – Worldwide CHINFO Conference 2009 – Environmental Law for the PAOEnvironmental Law for the PAO
Mandate of E.O. 12114 and Appendix E Mandate of E.O. 12114 and Appendix E (OPNAVINST 5090.1C)(OPNAVINST 5090.1C)
A Command proposing a major Navy action that has the potential to significantly harm the environment outside the United States, shall, before they go forward with an action or eliminate a reasonable alternative, complete a:
Overseas Environmental Impact Statement (OEIS) Overseas Environmental Assessment (OEA) Environmental Review (ER) Environmental Study (ES)
Worldwide CHINFO Conference 2009 – Worldwide CHINFO Conference 2009 – Environmental Law for the PAOEnvironmental Law for the PAO
Selecting the Proper DocumentSelecting the Proper Document
Selection is based upon where the impact will occur Global Commons or US 12nm seaward to EEZ?
OEA (potential), OEIS (will harm) Environment of a non-participating/non-involved foreign
nation? Environment of a foreign nation where action involves toxics/radioactives? Natural or ecological resources of global importance? ER if unilateral ES if bilateral or multilateral
Most Navy EAs and EISs are hybrid documents: EIS/OEIS and EA/OEA
Worldwide CHINFO Conference 2009 – Worldwide CHINFO Conference 2009 – Environmental Law for the PAOEnvironmental Law for the PAO
Take Aways
This is a complex issue We’re exposed to liability The Navy is NOW trying to lead
environmental compliance Liaise with the environmental attorneys
now! Strategic Environmental Communication
is of paramount importance
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