ML20133G387
| ML20133G387 | |
| Person / Time | |
|---|---|
| Site: | Claiborne |
| Issue date: | 01/10/1997 |
| From: | Walker N CITIZENS AGAINST NUCLEAR TRASH, SIERRA CLUB LEGAL DEFENSE FUND, INC. |
| To: | NRC COMMISSION (OCM) |
| References | |
| CON-#197-18134 91-641-02-ML, 91-641-2-ML, LBP-96-25, ML, NUDOCS 9701160025 | |
| Download: ML20133G387 (13) | |
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NUCLEAR REGULATORY COMMISSION p i3 gg3~l t
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BEFORE THE COMMISSION M
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Docket No. 70-3070-ML Y
In the Matter of
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ASLBP No. 91-641-02-ML LOUISIANA ENERGY SERVICES, L.P.
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(Special Nuclear
.. -(Claiborne Enrichment Center)
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Materials License)
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January 10,1997 4
ANSWER OF INTERVENOR. CITIZENS AGAINST NUCLEAR TRASH.
IN OPPOSITION TO APPLICANT'S PETITION FOR REVIEW OF LBP-96-25
- 1. INTRODUCTION Pursuant to 10 C.F.R. 6 2.786(b)(3), Intervenor, Citizens Against Nuclear Trash (" CANT"),
opposes the petition for review of LBP-96-25 (hereinafter " Petition") filed by Applicant, Louisiana Energy Services, L.P. ("LES") on December 19,1996. In LBP-96-25, the Licensing Board held that:
1) pursuant to NRC regulations, LES is not financially qualified to construct the Claiborne Enrichment Center (" CEC");
2) the Staff's assessment of the need for the CEC is inadequate; and, 3) the Staff's assessment of the no-action alternative and analysis of the costs and benefits of the CEC are inadequate.
1 Contrary to LES's suggestion, the fact that the Board disagrees with the Staff does not, by itself, constitute sufficient grounds for the Commission to take review. Petition at i note 3. In the i
rulemaking cited by LES,56 Fed. Reg. 29, 403, 29, 405, (June 27,1991), the Commission merely speculated that disagreement between the Board and Staff "might likely" warrant Commission review.
i However, the Commission specifically refused to establish mandatory review of cases in which the Licensing Board disagrees with the Staff, noting that it would " create the appearance that the Staffis a party more equal than others." It is well-established under NRC case law that the Staff's positions and evidence must be evaluated "in light of the same principles which apply to the presentations of the other parties." Consolidated Edison Co. of New York. Inc. (Indian Point, Units 1,2 and 3),
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1 The petition must be rejected because it fails to meet the Commission's standard in 10 C.F.R. 6 2786(b)(4) for taking review.
IL ARGUMENT A.
The Board's Financial Qualifications Ruling Raises No Substantial Question of Law, Policy, or Discretion.
Contrary to LES's contention, the Licensing Board's ruling that LES is not financially qualified
'Taises no substantial questions of law, policy, or discretion. The Board appropriately rejected LES's interpretation of the financial qualifications rules, under which a newly created, virtually assetless
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applicant with no commitments for any funding - only an expressed intention to try to get funding j
someday - would be financially qualified.
4 The Board's decision is a classic and even standard model of statutory interpretation, in which LES failed to demonstrate any error. Applying well established rules of statutory construction in its very thorough findings,2 the Licensing Board correctly found that, "[p]ursuant to the general i
interpretational rule that statutory or regulatory provisions that relate to the same subject matter should i
be construed in pari materia," the more specific financial qualifications language in Part 50 should be ALAB-304, 3 NRC 1, 6, citmg Vermont Yankee Nuclear Power Coro. (Vermont Yankee Nuclear Power Station), ALAB-138,6 AEC 520,532 (1973). As discussed in CANT's Answer In Opposition To The NRC Staff's Petition for Review (January 10, 1997), the Staff has failed to show that the disagreement between the Staff and the Licensing Board has any legal, policy, or discretionary significance.
Oddly, LES suggests that the thoroughness of the Board's discussion of this issue in and of 2
itself somehow " indicates that a substantial question of law and policy is raised which requires the Commission's consideration." Petition at 3 n. 5. On the contrary, it is cursory, ambiguous decisions that are shown to clearly contravene regulatory and policy regimes that give rise to substantial questions which require the Commission's review. LES has eatirely failed to demonstrate any such substantial questions which would warrant such review.
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used to construe the more general financial qualifications language in Part 70. LBP-96-25, slip op, at 129.
The Board also found that the history of the Part 70 and Part 50 rulemakings supports a parallel construction of the two rules. Significantly, in 1967, the Commission's then-director of Regulations i
1 informed Congress that the Commission applied " essentially the same" financial qualifications criteria to Part 70 licensees as Part 50 licensees, and " expected to continue" this practice "in the future."
LBP-96-25, slip op. at 139-40, citing Licensing and Regulation of Nuclear Reactors: Hearings before the Joint Committee on Atomic Energy,90th Cong.1st Sess. 349, Appendix 12 (1967). As the Board observed, although the Part 50 and Part 70 regulations have " diverged somewhat since 1967," their
" essence" with respect to construction financing and licensing "has not significantly changed" over time. LBP-96-25, slip op. at 147. Thus, the " twinned" history of the regulations (IL), taken together with the Commission's unequivocal representations to Congress in 1967, fully support the Board's holding that the criteria for satisfaction of Part 70's financial qualifications requirements are essentially the same as those for Part 50.3 LES baldly asserts, without offering any reasons or evidence whatsoever, that the Board somehow misinterpreted the Commission's 1967 statement. Petition at 3 n. 5. LES's claim must be rejected at unsupported. 10 C.F.R. I 2.786(a) (2)(ii); General Public Utilities Nuclear Corooration (Three Mile Island Nuclear Station, Unit 2), ALAB-926, 31 NRC 1, 9 (1990) ("[w]e generally do not Having clearly established 25 years earlier that satisfaction of financial qualifications 3
requirements for Part 70 license applicants would bejudged against the same criteria as for Part 50 applicants, the Commission had no need to further address the point when it issued a notice of the regulations that would apply to the licensing of the CEC. Thus, there is no merit whatsoever to LES's argument that the Part 50 financial qualifications standards cannot be applied because the Commission's May 21, 1991 Order regarding standards for uranium enrichment facilities did not mention them. Petition at 3.
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consider matters that are not adequately briefed.") This complete absence of any explanation or supporting evidence is fatal.
Also frivolous is LES's argument that the Board's decision implicates an important purpose of i
the Atomic Energy Act "to encourage widespread participation in the development and utilization of atomic energy for peaceful purposes to the maximum extent consistent with public health and safety l
and to encourage free competition in private enterprise." Petition at 3. In fact, the Board's decision is fully compatible with the purposes of the Act; denying a license to an entity that is not' financially qualified to safely construct a nuclear facility is entirely consistent with the Act's concerns for public health and safety.
Equally without merit is LES's peculiar assertion that a licensing decision that ignores
" commercial realities" contravenes the Act's policy of encouraging free competition. The " commercial reality" that LES invokes is the supposed fact that "the financial community will not commit funds for i
this type of project while awaiting a license." Petition at 3. This " commercial reality" is nothing l
. more than a self-serving fiction created by LES. The financial community funds or commits to fund
. projects that make good economic sense -- something that the LES project sorely lacks given market conditions, among other things. (Ssg LBP-96-25, slip op. at n. 33 for the Board's discussion of how market conditions and "other significant risk factors impacting the viability of the project" would likely preclude LES from obtaining the necessary funding.) Actual funding may be contingent upon obtaining all necessary licenses and satisfying other regulatory prerequisites, but if the economics of a project make sense, and the project proponents are financially viable entities, obtaining commitments I
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for funding is clearly possible. See generally, testimony of David E. Osterberg, Tr. at 781-SE'784, 795, 797-800, 826. LES does not have a single such commitment
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LES's final argument that the " policy implications" of the Board's decision will have a chilling effect on future Part 70 ventures is pure folly. The only such future ventures that will be " chilled" by the Board's decision are ventures by virtually assetless companies who have secured no financing or commitmeats for financing for their project - precisely the types of projects which should be chilled.
In short, there is no basis whatsoever for LES's suggestion that the Board's decision on financial qualifications has somehow departed from the established policy and regulatory regime, or is at odds with the case-specific Order that identified the regulatory requirements governing this proceeding.- In fact, it is LES's proffered interpretation of the financial qualifications rules that would constitute a " radical departure" from NRC practices.
LBP-96-25, slip op. at 151-52 n.18.
l Accordingly, review by the Commission is not warranted.
4 B.
The Licensing Board Correctly Held That The Staff's Treatment Of The Need For The Facility Is Inadequate.
4 LES makes various attacks on the Board's well-reasoned conclusion that LES has failed to demonstrate a need for the CEC. None of LES's arguments meet the Commission's high standard for granting review; in order to show that a factual finding is " clearly erroneous, LES must demonstrate I
that the finding is "not even ' plausible in light of the record viewed in its entirety.'"4 Kenneth G.
j Pierce, CLI-95-6, 41 NRC 381, 382 (1995), quoting Anderson v. Bessemer City, 470 U.S. 564, 1
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Similarly, LES's scanty description of the alleged factual disputes with the Board, (see Petition at 7 n.13) falls far short of demonstrating that the Board's conclusions were implausible in light of the entire record. It is also notable that none of these arguments is supported by any citation to the record whatsoever. Accordingly, these assertions must be summarily rejected because they are unsupported by any record citations demonstrating that LES presented specific evidence that was ignored by the Board. 10 C.F.R. Q2.786(a)(2((ii); General Public Utilities Nuclear Corooration, supIa, 31 NRC at 9.
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573-76 (1985).
LES asserts that the Board incorrectly focused exclusively on price competition in assessing the need for the facility, and ignored the alleged importance that "U.S. utilities attach to the presence of an alternate domestic supplier of enrichment services." Petition at 6. In fact, however, the Board did consider - and did soundly reject -- the contention that the presence of an alternate domestic supplier is important for purposes of security, diversity, and reliability of supply.
For example, the Board specifically found that, "[o]n the basis of the record before us," the market for enriched uranium is " international [not domestic] and fiercely competitive." LBP-96-25, slip op. at 70 (emphasis added). Further, the Board unequivocally rejected the " notion that domestic utilities would rather not deal with foreign producers" since the record evidence indicates that domestic utilities currently deal with foreign producers and will continue to do so in the future to an even greater extent. LBP-96-25, slip op. at 90. As the Board pointed out, the testimony of LES's own witness supports this finding. LBP-96-25, slip op. at 68,90. The Board additionally rejected "on the record before us" LES's argument concerning the need for " security of supply," noting that the interruptions in foreign sources of enrichment services posited by LES would still not result in demand levels exceeding supply. LBP-96-25, slip op. at 55. Rather than demonstrating clear error, LES's argument amounts to nothing more than an unsupported disagreement with the Board's well-reasoned conclusion.
LES further argues that the entry of a new competitor (LES) into "the marketplace [which would] thus increase competition" is the primary need or benefit of the CEC -- not price competition, as the Board held.
Petition at 8.
This argument is curious, given the fact that LES's own Environmental Report asserts that price competition is the primary benefit of the proposed CEC:
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The fundamental case for the CEC is that it can and will compete on economic grounds, allowing U.S. electric utilities a competitive source of supply so that they can in turn achieve the lowest cost reliable suoplv of electricity to their rate cayers.
LES's Environmental Report at A-3, quoted in LBP-96-25, slip op. at 40_ (emphasis added). In fact, i
in the context of uranium enrichment facilities -- which all produce precisely the same product - it is difficult to see how the entry of a new competitor can " increase competition" except by creating C
price competition.
Accordingly, the Board reasonably concluded that " price competition is the quintessence of economic competition" and thus is the primary feature of the benefit ofincreased competition. LBP-92-25, slip op. at 83. LES offers no evidence to show that this conclusion is "not even plausible,"
Kenneth G. Pierce, supra, 41 NRC at 382, and in fact LES's own position in the Environmental Report supports this finding.
Finally, LES argues that the Commission should review the Board's reliance on CANT's witness on the issue of need. Having failed to make a proper challenge to the credentials of CANT's Witness, David Osterberg,5 whom the Board found was " qualified by knowledge, experience, training, and education to testify as an expert" on the issue of need (LBP-96-25, slip op, at 23, 26),
LES now asks the Commission to review whether the Board gave undue weight to his testimony. LES Petition at 7 note 12. Nowhere, however, does LES state exactly which views it disputes,' or give See LBP-96-25, slip op, at 23-26 for the Board's discussion of LES's failure to make such a 5
challenge.
' Notably, the Board found that there was little discrepancy between many of the factual claims made by CANT's and LES's witnesses. "[LES's and CANT's] respective estimates and forecasts are not widely divergent and there is not significant disagreement that current and future supply exceeds requiremeuts." LBP-96-25, slip op. at 54. "[T]he estimates or forecasts... relied upon by the Applicant or those... relied upon by the Intervenor are not unreasonable. IL 7
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j any record citations to evidence demonstrating that Mr. Osterberg's views are implausible or clearly J
erroneous.
Thus, LES's belated challenge must be rejected as unsupported.
10 C.F.R. i l
l 2.786(a)(2)(ii); General Public Utilities Nuclear Corooration, EuKa, 31 NRC at 9. In any event, LES i
must do more than assert a different point of view than the Board's. LES must establish the j
implausibility of the Board's findings. Kenneth G. Pierce. Ep.Ia,41 NRC at 382.
1 C.
The Licensing Board Correctly Held That The Staff's Treatment Of The No Action Alternative And Its Cost-Benefit Analysis Is Inadequate.
l Although the no-action section of the FEIS devotes four paragraphs to the alleged negative i
t impacts of the no-action alternative, it contains only one sentence regarding the benefits to be gained l
by avoiding the adverse environmental impacts of the CEC: "With this alternative, the impacts, both t
positive and negative, discussed in this chapter would be eliminated." FEIS, i 4.4. LES contends
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that the Board erred in finding this sentence insufficient to satisfy NEPA. Petition at 3. According 1
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to LES, it is legally sufficient for the no-action discussion simply to state that adverse environmental l
impacts identified elsewhere in the FEIS would be avoided. I1 This argument is entirely without 1
l merit and therefore unworthy of Commission review.
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i As the Board observes, the discussion of alternatives is the " linchpin of the EIS process."
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LBP-96-25, slip op. at 93 note 8. Thus,10 C.F.R. I 51.60 requires the discussion of alternatives to i
be "sufficiently complete to aid the Commission in developing and exploring" appropriate alternatives j
to the proposed action." In addition, to "the extent practicable," the environmental impacts of the i
1 proposal and the alternatives "should be presented in comparative form." 11 On its face, the i-no-action section of the FEIS is so incomplete and lopsided as to be utterly inadequate to satisfy NRC i
regulations or the NEPA " rule of reason." Citizens Against Burlington. Inc. v. Busev,938 F.2d 190, 2
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195 (D.C. Cir), cert. denied, 502 U.S. 994 (1991).7 Although the no-action section discusses every conceivable negative impact of cancelling the project and even manufactures some adverse impacts,'
it fails to identify a single specific avoided adverse impact. As the Board correctly concludes, without any discussion of the benefits of inaction, "the effect of the no build alternative cannot properly be compared to the proposed project."' LBP-96-25, slip op. at 101-102. Indeed, by presenting details on the alleged foregone benefits of the project, without discussing any of the avoided impacts in more than a passing reference, the very structure and format of the no-action discussion slants the i
7 While Citizens Against Burlington and other cases cited by LES at page 5 note 10 generally hold that an EIS must be taken as a whole, none of them countenance the kind of incomplete, one-sided and misleading discussion of an alternative that is presented in the no-action discussion of the FEIS for the CEC.
For instance, although 61% of the site was already clear-cut in 1990 and 94% of the site was timbered in the past ten years, the FEIS speculates at length about the negative impacts of re-commencing logging and " heavy timbering" on the site. Sgg LBP-96-25, at 101 n. 9.
Moreover, LES fails to justify Commission review of the Board's reasonable and well-supported holding that the nc-action alternative "cannot be dismissed as nothing more than a j
simple reversal of the costs and benefits of the project." E at 102, note 10. LES offers no argument to counter the Board's conclusion that if domestic utilities use blended-down highly-enriched uranium j
("HEU") instead of purchasing from the CEC, inaction on the proposed CEC license could have the beneficial effect of significantly decreasing or eliminating new U.S. production of depleted uranium tails. E at 100. Nor do any of the cases cited by LES at page 5 note 10 hold that as a matter of law, environmental impacts of the no action alternative are the simple converse of the impacts of the proposed action. Each decision is limited to its own facts. Sgg Citizens Against Burlington. Inc. v.
Busey, 938 F.2d 190,194 (D.C. Cir), ggII. denied, 502 U.S. 994 (1991) (airport expansion); Duke Power Co. (Catawba Nuclear Station, Units 1 and 2), LBP-74-22,7 AEC 659, 672 (1974) (nuclear i
power plant construction); Farmland Preservation Assoc. v. Goldschmidt,611 F.2d 233,239 (8th Cir.
1979) (highway construction). Here, in contrast, denial of the LES license application could allow other competitive and more environmentally benign technologies to flourish: a major benefit of inaction that the FEIS completely ignores.
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decisionmaking process in favor of the proposed action.' Thus, the Board's decision to reject the FEIS is fully consistent with 10 C.F.R. 6 51.60, governing case law, and the NEPA " rule of reason."
III. CONCLUSION As shown above, the Licensing Board's thorough, in-depth analysis of each of the matters at issue implicates no relevant policy or regulatory regimes, and does not contravene the case-specific
.Ordersetting forth the regulatory requirements applicable to this proceeding or any other precedents.
Because there exists no legal error or substantial question with respect to any of the considerations in 10 C.F.R. f 2.786(b)(4), LES's petition must be denied.
Respectfully submitted, SIERRA CLUB LEGAL DEFENSE FUND, INC.
400 Magazine Street, Suite 401 New Orleans, Louisiana 70130 Telephone: (504) 522-1394 By:
0 15 Nathalie M. Walker Diane Curran Harmon, Curran, and Spielberg 2001 "S" Street N.W., Suite 430 Washington, D.C. 20009 (202) 328-3500 Attorneys for Intervenor, Citizens Against Nuclear Trash
' In addition, as the Board correctly concluded, the no-action discussion relies improperly on secondary impacts related to jobs and taxes. LBP-96-25, slip op. at 106. LES's challenge to the Board's ruling must be disallowed, as LES never made this argument below. 10 C.F.R. I 2.786 (b)(5). In any event, LES cites no case compelling reversal of 30 years of precedents in which the NRC has consistently ruled that such considerations are inappropriate.
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4 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
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Docket No. 70-3070-ML In the Matter of
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ASLBP No. 91-641-02-ML LOUISIANA ENERGY SERVICES, L.P.
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(Special Nuclear
-(Claiborne Enrichment Center)
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Materials License)
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January 10,1997 CERTIFICATE OF SERVICE i
I hereby certify that copies of " Answer of Intervenor, Citizens Against Nuclear Trash, in Opposition to Applicant's Petition for Review of LBP-96-25" have been served on this 10th day of January,1997, as follows:
J Administrative Judge By first class mail Thomas S. Moore, Chairman 1 copy Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Administrative Judge By first class mail Richard F. Cole 1 copy Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Administrative Judge By first class mail Frederick J. Shon 1 copy Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Washington, D.C. 20555
,L Secretary of the Commission By first class mail
)
U.S. Nuclear Regulatory Commission original plus 2 copies Washington, D.C. 20555 Attention: Chief, Docketing and Service Section Office of Commission Appellate.
By first class mail 1
Adjudication
'1 copy U.S. Nuclear Regulatory Commission
. Washington, D.C. 20555 Eugene Holler, Esq.
By first class mail Office of the General Counsel Icopy i
U.S. Nuclear Regulatory Commission Washington, D.C. 20555 1
l Joseph DiStefano By first class mail Quinn, Racusin & Gazzola 1 copy i
1401 H Street, N.W.
Suite 510 Washington, D.C. 20005 4
5 j
Robert G. Morgan - WC26B By first class mail l
Licensing Manager 1 copy Duke Engineering & Services, Inc.
400 South Tryon Street l
Charlotte, NC 28201-1004 j
Marcus A. Rowden By first class mail Fried, Frank, Harris, Shriver 1 copy
& Jacobsen 1101 Pennsylvania Avenue, N.W.
I Suite 900 South l
Washington, D.C. 20004 3
I Diane Curran By first class mail i
Harmon Curran & Spielberg 1 copy 2001 S St NW Suite 430 Washington, DC 20009 1
1 i
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Ronald Wascom, Deputy Asst. Sec.
By first class mail Imuisiana Dept. of Enytl. Quality 1 copy Office of Air Quality & Radiation Protection P.O. Box 82135 Baton Rouge, LA 70884-2135 J. Michael McGarry, III By first class mail Winston & Strawn 1 copy 1400.L Street, N.W.
Washington, D.C. 20005 Adjudicatory File By first class mail
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Atomic Safety & Licensing Board Panel Icopy U.S. Nuclear Regulatory Commission
' Washington, D.C. 20555 I
Respectfully submitted SIERRA CLUB LEGAL DEFENSE FUND, INC.
400 Magazine Street, Suite 401 New Orleans, Louisiana 70130 Telephone: (504) 522-1394 By:
8.
.kl4 bb Nathalie M. Walker Diane Curran Harmon, Curran, and Spielberg 2001 "S" Street N.W., Suite 430 Washington, D.C. 20009 (202) 328-3500 Attorneys for Intervenor, Citizens Against Nuclear Trash 3
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