Environmental Justice | Coal-mining in the borderlands
BMG cyanide calavera. Art | Amy Woods. Photo | Devon Peña |
It’s the
water, stupid!
THE CRIME OF COAL MINING EAGLE PASS
Devon G.
Peña | Seattle, WA | November 21, 2014
One does not have to travel to the Global South to
witness the social, cultural, and ecological ravages of industrial mining. We
can see plenty of damage in our own country. Colorado has a gold mining legacy gloriously
celebrated in movies, books, and museums across the state. This is a mythical enterprise
and promotes romanticized nostalgia and a warped ideology of rugged frontiersmen
bravely beating back Indian savages to conquer the wilderness in search of a God-given
right to make fortunes while doing their part for Manifest Destiny and the
settler colony.
In the real material world, Colorado’s mining legacy is
encapsulated by one fact: There are more than 1,300 miles of mountain streams
and rivers badly contaminated by acid-mine drainage from more than 23,000 abandoned
mine sites scattered across the high country (see U.S. Geological Survey and Klucas 2004: 33). Many stretches of apparently pristine rivers are so acidic that fish
cannot survive without damage to organs and tissue. Black bulbous tumors on
trout are not a pretty sight.
The case of the Summitville Mine in southern
Colorado’s San Juan Mountains, rising far above the San Luis Valley, further illustrates
the extent of the damage caused by large-scale industrial mining. The
Summitville Mine was an open-pit cyanide leach gold mine and had a typically short
productive life of five years (1986 to 1991). It has left behind a mess worth many
lifetimes of maladies and suffering for downstream ecosystems and communities.
By the mid 1990s, the mountain creeks and rivers
downstream from Summitville could no longer support aquatic life. Along a 17-mile stretch of the Alamosa River –
a Rio Grande headwaters tributary – cyanide, heavy metals including copper,
cadmium, manganese, zinc, lead, nickel, aluminum, and iron, and acidified water
leached, leaked, and streamed away from the mine site to contaminate the river.
The Alamosa is for all practical purposes a biologically dead watercourse along
the downstream stretch of the river below the mine.
Predictably, Summitville has been designated as a Superfund site since 1994 and taxpayers are bearing the cost –
in excess of $170 million as of 2004 – for efforts by the Environmental
Protection Agency (EPA) and the State of Colorado to stabilize the site by
controlling the acid-mine drainage threat through what is essentially a
desperate containment project; forget ecological restoration; and for sure
forget all that nonsense about making the land better than it was before
mining. The mining industry, along with powerful chemical corporations have resisted the re-instatement of the Superfund tax on polluters which was in effect beginning in 1980 until it expired in 1995; see the audacious position of the chemical industry against re-instatement of polluter taxes in American Chemistry.
Reclamation or ecological restoration are simply not possible within the limits of current technologies
or the politics borne of the capitalist thirst for a definitive and expanding return
on investments. This abuse is possible only because our environmental
protection regulatory apparatus, which really functions as a development damage
permit system, currently discounts all of the environmental, social, and
cultural damage left in the wake of the pathological privilege the apparatus
grants to those able to invest in destructive maldevelopment so they can line their
pockets with the profits of gold or coal.
The Summitville reclamation plan, like the majority
of mined-land reclamation projects, is a verifiable failure. Water incessantly
searches for and eventually finds a way to escape containment because contaminants
will always find a way to move with fluids
through and above the ground. This is pure physics; engineering fantasies be
damned. This is also the typical pattern for the mining industry and I have not
even addressed the atrocious ecological and social havoc associated with mountaintop removal and surface open strip mines for coal in regions like Appalachia, or
Eagle Pass.
This is a scientific fact: Modern technologies for
industrial-scale mining are a 3-D affair. They are unavoidably Dirty, Dangerous, and Destructive. Moreover, the
damages endure for generations after closure and the feigned efforts at mined
land reclamation. Mining causes irreversible
damage to landscape ecology, watershed quality, wildlife habitat, public health,
and economic and cultural life of affected local communities. Surface open-pit
strip mines are forms of industrial extraction on steroids. Gouging the earth on ever larger and deeper scales
is the industry’s code norm: The industrial mining of the tar sands in occupied Athabasca lands in
Alberta is the epitome of this scale of destruction.
BMG Rito Seco Mine after reclamation. Photo | Devon Peña |
Our own struggle against the Battle Mountain Gold (BMG) strip mine in San Luis, Colorado is also
illustrative. This strip mine and cyanide leach vat operation was active for less
than six years but was located in the middle of a critical tributary of our watershed,
the Rito Seco which feeds the oldest water rights in the state that are
stewarded by multi-generational Chicana/o acequia farmers.
During its short-lived operations (1990-1996 of actual gold extraction), in
order to access the ore-bearing rock, the Rito Seco mine managers had to first remove 3 to 5
tons of so-called “overburden waste”. In our case, this was a Piñon-Juniper and
Ponderosa pine forest landscape serving as habitat and foraging range for elk,
mule deer, coyote, porcupine, and much more. The microscopic ore deposits were trapped
in deep Precambrian basement rock, well below the hillside ‘P-J’ woodlands and
arroyo habitat.
For local people, there was no other way to see this
other than as a violent act of radical earth removal. An analogy used by locals
is that modern large-scale mining is like the extractive industry equivalent of
extreme sports: This is a Monster Truck Demolition Derby, as Praxedis Ortega,
Jr. once quipped, with plenty of wreckage and debris left behind but less of
the frenzied spectacle, despite the fact that the mine manager once seriously declared
it would be our top “tourist attraction”.
Environmental justice on the border
| The Dos Repúblicas Mine
The US-Mexico border is contested space and especially
so given the growing militarization of border enforcement and control as part
of the rise of a post 9/11 state of exception. Border frontline communities
have been the terrain for environmental justice struggles a long time. From
Brownsville-Matamoros to San Diego-Tijuana, Mexican-origin people and activists
have toiled over a long list of environmental and public health grievances.
Most of these problems are related to the environmental impact of industrial
activities like mining, smelting, assembling, manufacturing, trade-related
infrastructure, and industrial agribusinesses with an excessive, nay addictive,
reliance on transgenic crops coupled to pesticides, herbicides, and chemical
fertilizers. This is to say nothing of the unparalleled ecological disturbance
posed by the border fence itself, or wall and moat in some places, and an
electronic frontier “zone of exception” that extends well into the interior of
the USA and has become a militarized space where suspect “illegals” are
deprived of due process and equal protection.
In my 1997 book, The Terror of the Machine, I characterized the border as a two thousand mile-long
Love Canal. One reason was because the border at the time already hosted multiple
versions of the Alamosa River, i.e., biologically dead watercourses. Conditions
have worsened in part because of the “investor-state” neo-regulatory regimes
established under the NAFTA framework and despite the investments made to
address bi-national environmental issues on the border like contamination from
untreated sewage, discharges from maquiladoras, and agricultural run-off. The
current debate over fast-track status for the Trans-Pacific Partnership (TPP)
is the latest assault on environmental and economic justice for the 99%. These
investor-state treaties create conditions that drive all the parties toward the
lowest common denominator in terms of environmental protection and social
justice goals.
Or, consider another example, that of the Buenavista
copper mine in the state of Sonora at the infamous Cananea operation that has
long been a center of militant working-class struggle against state and
capitalist violence. On August
6, 2014, the Buenavista operators spilled 10 million gallons of acid-laden
wastewater into two sensitive rivers near the Sonora-Arizona border. The massive
spill led the federal government to shut down 88 schools affecting more than
5000 children due to the contamination threat that was extended by the reaction
of sulfuric acid with both air and water. This incident affected 800,000
residents who depend on the Bacanuchi and Sonora rivers for their drinking
water in an infamous desert region marked by aridity (see the BBC report of
August 19, 2014).
Sulfuric acid in river water at Cananea. Photo | Hector Guerrero/AFP/Getty |
The Río Bravo (Río Grande) is not as degraded as the
New, Bacanuchi, or Sonora rivers but it has enough damage and potential
worsening threats to qualify it for a high ranking among the most threatened rivers in the
U.S. Coal mining in the Rio Grande
watershed, like that unfolding in the area of Piedras Negras-Eagle Pass will attenuate
these problems and do little to improve the ecology of the river and its vital
tributary riparian ecosystems.
The lack of sewage treatment plants, unregulated
agricultural run-off (pesticides and herbicides among other toxic wastes), discharges
and illegal dumping of hazardous wastes from maquiladora factories are among
the principal sources of ecological damage to the Río Bravo. Development
projects are also a major problem and the construction of the Tortilla Curtain
– the border control fence and wall – is only the latest affront to the ecology
of the border, disrupting the movement of people and wildlife and violating indigenous ties and access to ancestral
and ceremonial landscapes.
A repeat of the tragedy of industrial mining is now unfolding
on the Texas-Mexico border in Eagle Pass, Texas (Maverick County). The Railroad Commission of Texas (RCT) and the
Texas Commission on Environmental Quality (TCEQ) have granted Dos Repúblicas
Coal Partnership, a Mexican transnational corporation, the state permits it
needs to reopen, expand, and operate an open-surface strip mine that will be
allowed to discharge coal-mining wastewater into Elm Creek, a tributary of the
Rio Grande River.
In correspondence with sources directly involved in
the case, I have learned that the City of Eagle Pass, Maverick County, Maverick
County Hospital District, Maverick County Environmental and Public Health
Association, and an individual by the name of George Baxter are appealing the TRC
granting of the coal-mining permit. This group first appealed the decision to
State District Court in Travis County, Texas (Austin) because the RCT is a
state agency and all state agency decisions are appealable only in Travis
County. A Democrat Party affiliated
state district judge denied the appeal and affirmed the RCT approval of the
coal-mining permit.
The local entities are now appealing the permit in the
Texas Third Court of Appeals in Austin. With the November 4th state election – given
the crime of disenfranchisement made possible by the gerrymandering of Austin
and Travis County to rob the people of equal representation – this strategically
placed court just became an all-Republican Party affair, which does not bode
well for the community.
Both the local community-based appellants and Dos Repúblicas
Coal Partnership have filed briefs and are waiting for the court to set a date
for oral arguments. After oral arguments,
it should take anywhere from one to six months for a decision. Regardless of who prevails before the Third
Court of Appeals, there will likely be an appeal to the Texas Supreme Court in
Austin, Texas, which is an all-Republican judicial bench as well.
Dos Repúblicas Coal Partnership is a Texas general
partnership comprised of two Texas limited liability corporations owned by
Minera del Norte, S.A. de C.V. (MINOSA), which is itself a wholly owned Mexican
subsidiary of Grupo Acerero del Norte, S.A. de C.V. (GAN) and Altos Hornos de
Mexico, S.A. de C.V. (AHMSA). I should note that AHMSA was once a paraestatal (state-owned company) with a
strong mineworkers’ union that was destroyed as part of the neoliberal
privatization reforms initiated by President Salinas de Gortari in 1991.
The agency responsible for granting the coalmine
operating permit is the Railroad Commission of Texas while the TCEQ handles the
water discharge and air pollution permits, which were granted on April 9, 2013. My sources note that when TCEQ
granted approval of the water and air quality discharge permits, Dos Repúblicas
had originally applied for a 2,700-acre operation. They have since expanded the
operation to 6,700 acres, requiring the company to request and apply for an
expansion of its TCEQ water discharge permit from 2,700 acres to 6,700. A public hearing on the application to amend
the water discharge permit is expected in Eagle Pass or Austin sometime in January
2015.
The central concerns of the community revolved around
unspecified quantities of heavy metals and known carcinogens including arsenic that
would be released into a tributary which empties immediately into the Rio
Grande, just upstream of the public water supply intake pumps for the waterworks
utilities serving Eagle Pass and Piedras Negras, Coahuila, México. The list of hazardous heavy metals is a
familiar one: Arsenic, aluminum, ammonia, antimony, barium, beryllium, cadmium,
chromium, copper, cyanide, fecal coliform, fluoride, grease, iron, lead,
manganese, mercury, nickel, nitrogen, nitrate nitrogen, oil, organic nitrogen,
phosphorous, residual chlorine, selenium, silver, zinc. This is A to Z
toxicity.
These binational communities both take water for all
residential, commercial, and agricultural uses primarily from the Río Grande. The location at which the City of Eagle Pass
has its intake pumps on the Río Grande is situated immediately downstream from
where the proposed strip mine would directly empty its toxic waste into the
river’s current. This would directly
affect the health of the twin cities’ residents adversely diminishing the
quality and safety of their primary source of water. Given drought conditions,
there are no other realistic options for a pubic water supply in this region.
The extended binational region contains a considerable population numbering
more than a quarter million people living on both sides of the international
border and the mine represents a downstream contamination threat to even larger
urban centers like Laredo-Nuevo Laredo.
Throughout the history of this permit, there has been
well-organized community opposition. According to periodic reports in the Eagle Pass Business Journal, which has
followed the case through steady, detailed and insightful investigative
reporting, the public engagement and political solidarity achieved in this
struggle has cut across all race, class, and national origin lines. At a TCEQ
hearing convened in Eagle Pass on January 25, 2011, some 300 young and older members
of the community attended. Every person
and organization given time to testify at the hearing expressed unanimous
opposition to the project and requested that the Dos Repúblicas permit be
denied.
The preliminary approval of the permit in April 2013 by
the TCEQ occurred despite solid opposition by citizens at the public hearings.
An important handful of local public entities have continuously contested both
the Railroad Commission and TCEQ permits. These include The City of Eagle Pass,
Maverick County, Maverick County Hospital District, and a non-profit
environmental group called Maverick County Environmental and Public Health
Association. There are also a few individual landowners who are members of the
non-profit group, notably George Baxter, a retired U.S. Veteran and U.S. Border
Patrolman who has made it a personal crusade to fight the coal mine together
with the citizens of Maverick County.
Earlier in the political struggle other local
organizations were also vocal in their opposition: The Eagle Pass Water Works
and Sewer System, Eagle Pass Independent School District, and the Eagle Pass
Housing Authority approved resolutions in opposition and spoke out at the
January 25, 2011 TCEQ public hearing. The school district’s superintendent had
been particularly poignant in protesting the permit “because of the environment
and health effects the coal mine would have on school children…[whose] welfare
and safety…comes first.”
Over time, these forces appear to have been co-opted
and silenced. The silencing of the
school district and superintendent is especially troublesome given direct
cumulative threats posed to school-aged children. The Kickapoo Traditional
Tribe of Texas was also anti-mining in 2011 but then withdrew from active legal
opposition (Eagle Pass Business Journal
report of May 4, 2012).
These are important facts because mining corporations always sow division and
manipulate existing fractures and fissures within community social class and
race-ethnic compositions.
Environmental justice studies verify how this pattern
predictably appears as the dominant counter-narrative to the ideals of equity
in protection and democracy in decision-making. People are led to believe that
this is a choice between jobs and poverty or lack of economic development. Tax
benefits are often added to the mix of claims designed to undermine opposition,
especially in low-income communities rendered vulnerable to this sort of
political theater.
The only local entities that continue legal and
political challenges to Dos Repúblicas are the Maverick County Commissioners,
The City of Eagle Pass, Maverick County Hospital District, and Maverick County
Environmental and Public Health Association. This further illustrates the
inequitable distribution of local capacity for legal counsel in Texas, as there
are fewer local entities with the financial resources required for sustained
lawyerly counsel in a classic illustration of the conditions that characterize
environmental injustice as a form of organizational inequity. There can simply
be no substantive due process or equal protection in environmental review and
risk assessment processes conducted by state or federal agencies without legal
and expert counseling for all and especially the most marginalized and
vulnerable communities that already bear the brunt of the nation’s
environmental burdens and risks.
The opposition of local elected and appointed
officials in Maverick County is based on recognition of the threats posed by
the renewal of coalmining to the municipal water supply, the region’s
struggling agricultural sector, and wildlife. Negative impacts will long
outlive the operational life of the strip mine; there will be decades of
consequences and some effects will be permanent, including impairment of soil
and water quality and chronic cumulative effects on human health and wildlife
that the TCEQ has not even considered since it has allowed the review to be based
on data from the 1990s as tweaked by lawyers and experts from the corporation.
I note that the scoping and data collecting occurred before Texas adopted
the environmental justice standards of Executive Order 12898. The entire permit
review process needs to start from scratch and abide by the state and federal
agencies’ legal commitment to environmental justice regulations for public
participation and cumulative risk analysis.
Newly sulfuric Presa El Molinito, Sonora. River. Photo | Noticiero Televisa |
It’s the water, stupid!
From an environmental justice and public health
perspective, the protection of the water supply is the central issue in this
case. Open surface strip mines leave permanent scars, disrupt watershed
hydrology and increase pollution loads, thereby damaging wildlife habitat and
movement corridors, and producing a toxic legacy of hazardous wastes that pose
a wide range of related environmental risks to humans and wildlife in
surrounding impacted areas.
As noted earlier, the twin-cities of Eagle
Pass-Piedras Negras rely on the Río Bravo/Grande for residential, commercial,
and agricultural water supplies. The point discharge permit location is controversial
because it is simply ill advised. As noted above, the intake pumps for the
municipal water supply is on the Río Grande immediately downstream from the site
the coalmine operators plan to use to discharge toxic waste directly and
untreated into the river. The location of the point discharge permit for Dos
Repúblicas optimizes health risks for the twin cities’ residents by adding
contaminants to a river system that is already stressed and overloaded with
toxic wastes from industry, agriculture, sewage discharges, and illegally
dumped solid waste.
If the State of Texas cared about enforcing
environmental justice standards, public health, and long-term economic prosperity,
then it should invest in doing its part to restore water quality and habitat on
the river instead of adding significantly to its pollution overload with this
ill-conceived coalmine. The approval of this permit allows for an activity that
will promote disparate impacts on a vulnerable community in violation of
Executive Order 12898, which the TCEQ itself declares must be followed since
the agency receives federal dollars for environmental equity programs. Dare I
say that public and private investments in ecological restoration projects
along the river and its tributaries would generate greater positive economic
outcomes and secure a more viable and resilient future prosperity for local
residents and businesses?
Environmental justice or
environmental crimes?
The TCEQ website includes a page dedicated to the
explication of the agency’s professed commitment to the principles of
environmental justice, which it tries to reframe as environmental “equity”. The
term “equity” is a telling leftover from the legacy of policies promoted by the
Bush II administration (2000-2008) and represent a “watering-down” of the
tougher ethics and rulemaking associated with the original use of the term
“justice”. The original meaning implies that regulatory authorities have an
obligation to develop an understanding of how disparate impacts and
disproportionate risks are ultimately socio-political constructs associated
with the continuing legacy of racial and class privileges that shape the
distribution of environmental rights and wrongs. The TCEQ is clearly tone deaf
when it comes to an understanding of this basic premise of environmental
justice.
An amazing contradiction is revealed at the agency’s
own website. The TCEQ opens by defining the goals of its so-called
Environmental Equity Program. It outlines four goals with text that makes promises
but is woefully short in specific action items. The professed goals are to:
(1) Help citizens and neighborhood groups participate in
regulatory processes;
(2) Serve as the agency contact to address allegations of
environmental injustice;
(3) Serve as a link for communications between the
community, industries, and the government;
(4) Thoroughly consider all citizens’ concerns and handle
them fairly.
While promising to abide by environmental justice
principles, the agency fails to provide any detailed rules and procedures for
implementing such policy and instead simply directs site visitors to “raise
environmental equity (also known as environmental justice) concerns with TCEQ
staff at the following address and phone and fax numbers”. Nicely done; and
good luck for a caller seeking a person to answer a call; I’ve tried four times
and have never ended up with a live person. Fax!?
The problem here is that the principle of optimum citizen participation is much more expansive
and subject to systematic community outreach and self-organization than the
TCEQ appears willing to recognize. Citizen participation, according to EJ
principles, must involve more than having an office someone can call to report
injustices. The principles of EJ require citizen involvement in all phases of the EIS and permitting studies
– from issue scoping through the various stages of risk assessment, characterization,
communication, and management. The TCEQ has failed on these counts.
What does a citizen do when an agency itself is guilty
of injustices? One option the EJ movement once had was to use Title VI of the
Civil Rights Act of 1964: A complaint could be filed on the part of citizens
alleging violations of due process and equal protection by the TCEQ. Such a
complaint could have been brought before the EPA and Department of Justice
(DOJ) but this has been rendered much more difficult under a 2001 Supreme Court
ruling (Sandoval v. Alexander) that unwisely limited private citizen rights of
action against misbehaving agencies. It may be time for the opposition to
pursue pressure on the EPA and DOJ to file such a civil rights complaint
against TCEQ in an agency-to-agency process informed by the CEQ (council on
Environmental Quality) and the NEJAC (National Environmental Justice Advisory
Committee).
This permit has a twisted history with enormous
legal, scientific, and environmental justice implications. For example, the
courts should be compelled to consider how the original permit review, which was
started in 1991 and resulted in the granting of a permit in 1993, was revoked
in 1998 for nonuse. When the latest cycle of permitting started in 2011, all
the environmental impact studies from the 1990s were seriously outdated;
Clinton’s Executive Order 12898 dates to February 1994 and this has altered the
entire practice and methodology of risk analysis and environmental impact
statements (EISs).
Instead of complying with the new rules for
environmental justice cumulative risk
analysis, the company has tried to cleanup (edit) the old studies with
their new experts. This is a clear
violation of due process and equal protection and the TCEQ is acting as chief
enabler, contravening its own stated goals. (See the EPA pages on cumulative risk and environmental justice for the current regulatory standards and norms.)
While the citizens and elected officials of Eagle
Pass continue their court appeals to challenge the permits, the area is already
being subjected to another coalmine, an illegal one at that. The Tajo (trans. open strip mine) del Norte
(a.k.a. Tajo Siglo XXI and Tajo Zacatoza) is on the Mexican side of the border
and is operating within a few hundred yards of the river and water supply. Presumably,
Mexican journalists have not been reporting on this illegal mine because they
are routinely threatened. One unproven allegation is that Los Zetas drug cartel
is using mining activities in Coahuila as a front for money laundering.
Humberto Moreira, the former Governor of Coahuila, confirmed this in an
interview with the famous Mexican journalist, Joaquín López-Dóriga.
Mining operations at Tajo Norte. Photo | zocalo.com |
The Tajo Norte open surface coalmine is located a
half-mile from water treatment plants so that the river is already being
contaminated by discharges. The Mexican federal government never approved this
mine; indeed, it was never a party to a permit review, however weak and
perfunctory those are in Mexico today, after NAFTA and neoliberal reforms.
However, the State of Coahuila pre-emptively approved the mine without regulatory authority by creating
a state agency to regulate mining. The State did this despite the fact that the
Mexican Executive and federal regulatory agencies never conceded this authority
and there is no constitutional or legislative basis for such preemption of the
authority by states. Regardless, the illegal coalmine continues to operate.
The Dos Repúblicas mine is owned and operated by
Grupo Acerero del Norte (GAN) which has ties to Ernesto Ancira, a San
Antonio-based Hispanic auto dealer. The Anciras, in turn, have close ties to George
W. Bush. As it turns out, HBR (a.k.a. Halliburton, Brown and Root) got the
construction contract for Dos Repúblicas so the connections to the Bush-Cheney
crowd are quite clear.
These ties have undoubtedly shaped decision-making
within the Republican dominated TCEQ, RCT, and courts. Dos Repúblicas is clearly
a project of GAN, which is itself a conglomerate based in Monclova, Coahuila,
México. This transnational corporation owns AHMSA and over 100 Mexican subsidiaries.
Previous reports in the Eagle Pass
Business Journal and LareDos have
identified Alonso Ancira Elizondo and Xavier Autrey Maza as key players. Ancira Elizondo had established ties to the
former Mexican PRI president, Carlos Salinas de Gortari (1988-94), and in the
US is connected to the Republican Party through the auspices of the former
president George W. Bush and his family.
These interlocking relationships are typical among
the 1% power elite and they embody the ability for the rich and connected to
exert their political force in institutional spheres like our legislative
bodies and the judiciary. They bring the specific cultural logic of neoliberal
capitalism to the public sphere to impose a fundamentalist belief system based
on decision-making that is beholden or subsumed to the basic value that “greed
is good” and the “market will take care of everything” including environmental
protection and social inequalities. Texas environmental law and policy is by
nature on the border a bi-national affair but the coal mine struggle in Eagle Pass reveals how this is mostly an operational practice of capitalist elites through trans-border networks that transect a zone created by the spaces of economic exception where the rule of law is suspended in the service of the commodity form.
The environmental justice movement must compel public
policy-making to give equal weight to environmental and public health values in
the scientific assessment of cumulative risk. Only then we will be able to turn
the tables on the dominant capitalist interests that keep extracting wealth
from the earth while leaving the mess behind for displaced and vulnerable local
communities to contend with. That is not environmental justice; it is an
environmental crime.
The resistance of the people of Eagle Pass to coal mining is part of the climate justice movement. Photo | ran.org |
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