National Environmental Laws Management Second Amendment Bill [B13-2012] changes, Industrial waste Management Plan of Department of Environmental Affairs

Water and Sanitation

25 February 2013
Chairperson: Mr J De Lange (ANC)
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Meeting Summary

The Department of Environmental Affairs (DEA) was provided with a new draft of the National Environmental Laws Management Second Amendment Bill (NEMLA), in which the changes had been marked in yellow. The Chairperson commented that the Committee’s request for the tabling of a full implementation plan with timeframes had not been included as a formal resolution. A definition had been moved to clause 30A, as this was the only clause in which reference was made to it, and section 24 O was being amended to fall in line with its relevant definition, now referring to “adopted”. There were changes to clause 3, the insertion of a new Section 16A in Act 107 of 1998, where the wording was being clarified by a reference to “submission, evaluation, adoption of and compliance”. The DEA then said that it felt a new section 23A was needed for comprehensive environmental management, which tried to allow the Minister to endorse certain activities, without having to insist upon a full EIA. Self-regulation applied in some instances, with the example of responsible 4x4 use cited, and whilst the Committee had no problem with the principle of allowing tools to be developed, it did want the wording to specify that any plans must be brought to the Minister for adoption and approval. The DEA was therefore asked to ensure that the new section set this out in terms. In relation to section 24 of Act 107 of 1998, the Committee had asked for minimal changes to be made that would streamline the process. The previous clause 4 was now renumbered as clause 5, and there were amendments to sections 24(2)(c) and a new (e) to allow for references to “with or without conditions” and for the MEC to adopt, in concurrence with the Minister. These two clauses referred, respectively to geographic and activities-based events, and the example of how they might apply to industrial development zones was given. The Committee approved of the principle, as it would help to cut through the red tape, whilst still ensuring protection. There was discussion on suitable wording for the new 24(2A), which allowed for prohibition of certain activities, where DEA might not yet be aware of the full implications – fracking being one example. At the last meeting, the Committee had asked the DEA to restate exclusions under section 24C, but the DEA had identified that whilst provincial authorities remained the competent authority for most coastal sites, the Minister must remain the competent authority for Isimangaliso, which was a World Heritage Site protected by an international environment instrument. The Committee suggested changes to the wording to make it read better. The Committee also thought that its concerns about Cabinet being able to declare a national priority was still too wide. In subsection (5), DEA must still make reference to copies of documents provided to the MEC, and it was not yet happy with the wording of subsection (7). The changes to section 24F were accepted. The Committee was not happy with the wording of 24G and wanted clarity on what the Minister could do, suggesting also that the Minister should have the power to issue directives that would lead to the applications being approved. It must be made quite clear, in the Objects Clause, that the bringing of an application should not affect the power to prosecute, and the Committee’s viewpoint that it was unacceptable to delay or refuse prosecutions should be clearly conveyed. There were no comments on the amendments to section 24M. Under the new section 30A, the Chairperson sought further additions in (7)(a) and (b), and also in section 34H. The Committee suggested that perhaps section 47 should revert to two separate clauses. Finally, the committee discussed the options for the Bill coming into effect.

The DEA commenced its presentation on the integrated Industrial Waste Management Plan (the Plan) but the Chairperson almost immediately interjected that he was not happy with the Plan, and still differed in principle with the DEA as to whether the Minister had the necessary authority to set a levy, and was not happy that National Treasury ha apparently approved this on the basis that it was not regarded as a tax but a user charge. Furthermore, he did not agree that REDISA should be able to charge this of other citizens. The constitutionality of the Plan was questioned, and the Chairperson asked if there were any conditions over how the money collected must be used. There was not sufficient time to continue the presentation, but he specifically requested the presence of senior National Treasury officials when the Plan was next brought to the Committee, and a summary of court judgments on the topic.  

Meeting report

National Environmental Laws Management Second Amendment Bill: Proposals for changes
The Chairperson noted that Members had been given a copy of the National Environmental Laws Management Second Amendment Bill (NEMLA or the Bill), but it contained clause by clause amendments. He seemed to recall that a resolution had been passed at a previous meeting calling upon the Department of Environmental Affairs (DEA or the Department) to comment on the practicalities of including or leaving out certain matters.

Ms Linda Garlipp, Chief Director: Law Reform and Appeals, Department of Environmental Affairs, replied that the Department had been asked to effect some amendments to the clauses, and those were now set out. The Department had also been questioned on the medium term implementation plan. The enabling provisions were not yet in effect, and the Chairperson had then requested that within six months the DEA should table a full implementation plan, with time frames, linked to the enabling provisions and priorities.

The Chairperson noted that he would have expected her to drive that as a specific resolution, and note it. He conceded that although he should have noted it specifically, he had not done so because he was not perfect, but quipped that he was informed that the Department was perfect and therefore Ms Garlipp should have noted it specifically, so that there was something clear from which the Department and Committee would work.

The Chairperson told Members that the document now before them was a new draft with more changes. He asked the DEA to take the Committee through the amendments, starting at the beginning of the Bill. He noted that the words marked with yellow highlights had been changed.

Ms Garlipp interjected that there was one exception, and that was because the DEA did not know whether the new section 23A would be approved, so it had not been officially added in as yet.

The Chairperson noted that the Committee would discuss this later.

Definitions
The Chairperson noted that the Committee had earlier asked for the move of a definition to the one clause where the word appeared.

Ms Garlipp said that it actually involved two definitions and because both were linked and only related to one clause of the Bill, they should both have been moved. She noted the move, to the new clause 30A, on page 22 of the attached document.

The Chairperson agreed that this was far better.

Ms Garlipp explained that when the DEA had moved the definition relating to environmental management instructions, the DEA realised that the clause required the Minister to prescribe, by regulation, a procedure, and that guidelines were to be adopted and published. The DEA had now amended section 24 0 of Act 107 of 1998, for greater clarity.

Amendment of section 24 O of Act 107 of 1998, as inserted by section 8 of Act 62 of 2008
At the request of the Chairperson, Ms McCourt took the Committee through the changed wording. The word “adopted” had been used elsewhere in the Bill, and therefore the wording here was also to be standardised. The words “adopted in the prescribed manner by the Minister or MEC, in concurrence with the Minister” were added in.

The Chairperson summarised that instead of the word “adopted” being used in the definitions, the procedures had actually been changed in the section. Although he had not checked the consistency throughout the bill, the last wording had referred to documents of the Director General. What the DEA had done seemed to make sense.

Clauses 1 and 2
The Chairperson read through the content of these clauses, noting those unchanged.

Clause 3: Insertion of section 16A in Act 107 of 1998
The Chairperson said that he had a note on this and asked the DEA to explain.

Ms Garlipp read out that the previous wording was “The Minister must prescribe the process for the submission, scrutiny, adoption of and compliance” but this was now changed to refer to “submission, evaluation, adoption of and compliance”. The word “assessment” was not used because this was defined as having a very specific meaning, related to Chapter 5, that related to the process of collecting, organising and analysing, interpreting and communicating information that was relevant to decision making.

The Chairperson said that “scrutiny” was left out, but did say that “evaluation” seemed better than “scrutiny”. 

Possible new section 23A: Comprehensive Environmental Management
The Chairperson asked DEA now to speak to section 23A.

Mr Alfred Wills, Deputy Director General, DEA reminding the Committee that in its last meeting Members had been worried about the gaps in the larger system, and the integration of environmental considerations across sectors and various regulations. This new suggestion tried to enable the Minister to endorse activities as part of the mainstreaming process.

The Chairperson asked if DEA would first want to have guidelines as to how the Minister would do this.

Mr Wills agreed. The previous text that the Committee had discussed with the Director General had referred to “provide guidance” but had been changed to “provide guidelines for the development of instruments which integrate environmental considerations into decision-making”.  

The Chairperson questioned the “provide guidelines” wording. As he understood it, the Department already had a whole lot of tools, including the Environmental Impact Assessments (EIA) or other instruments that could be used in specific cases where there was no need for a full EIA.  There would be a need for another tool, but Ms McCourt had pointed out that DEA still needed to work on this. However, there were apparently other pieces of legislation that, for instance, regulated the use of 4 x 4s in certain places, and it had been mentioned that self-regulation also applied.

Ms McCourt confirmed that indeed that was so.

The Chairperson said that this was then problematic. The Committee did not want to deny the opportunity for self-regulation but had to ensure that it worked in the correct manner. As he understood it, this clause would allow the Minister to say that in a certain situation, this sector was to follow guidelines to set up a plan. The plan would be adopted by the Minister as an alternative to the other tools mentioned. It was a way of “developing tools in practice”. Whilst he had no problem with that principle, there was nothing specifically saying that the plans must be brought to the Minister for adoption, and a clear link must be outlined.

Mr Wills said he understood the concern, but the DEA had tried to address that by referring to “endorse or approve the instruments in paragraph (a).

The Chairperson suggested that (b) be amplified to say that when such an instrument had been drafted, it must be submitted to the Minister, and the Minister could endorse or approve it. This would create a clear link. He thought that this was a good and innovative way of not stifling development, but instead creating organic solutions to environmental issues without over bureaucratising, and allowing for a form of empowerment of interest groups.

Amendment of section 24 of Act 107 of 1998, as substituted by section 2 of Act 62 of 2008
Ms McCourt reminded the Committee that the Chairperson had asked the DEA to make only the minimum changes that would enable a streamlined process. The words “with or without conditions” were mentioned. DEA had now expanded the clause dealing with identification for authorisation as well as the exclusion provisions.

She continued that what was now numbered as clause 5 was previously clause 4.

Subparagraph (b) had been changed, and referred, like the previous changes, to adoption by the “Minister or the MEC, in concurrence with the Minister” in relation to geographic areas.

Subparagraph (c) also related to the geographical areas, but DEA had widened the provision so that it could be used also by other environmental management instruments with a spatial element, to inform the assessment. The words “with or without conditions” allowed the operation to be prescribed, after exclusion from the process.

The Chairperson interjected that the previously-amended heading no longer appeared.

Ms McCourt agreed, noting that the heading had been the same as the chapter heading. The revised section 24 did not deal with every aspect of integrated environmental management. For this reason the new section 23A was added. The heading for this section would now no longer change from how it was already stated in the Act.

The Chairperson asked for clarity where the new subparagraphs (b) to (e) were to be added.

Ms McCourt replied that these fell under the old section 24(2). Subparagraphs (a) and (d) remained, that (b) and (c) were amended, and (e) was a new addition. were to be added to There was an [A] Subsection 2 so the (a) would remain the same. The reference to “with or without conditions” could be found in (c).

The Chairperson noted that (e) should also read “with or without conditions”, after the word “excluded”.

Ms McCourt clarified that essentially (e) and (c) achieved similar things, but (c) was geographical-area based, and (e) was activities-based.

The Chairperson added that “activities” might include unwanted mining.

Ms McCourt explained further that if a specific environmental management plan was associated with an activity, this clause would specify how the impacts of the activity must be handled. If the plan did this, then the person doing the activity would not need to go through the whole process of assessing and reporting on the impacts again.

The Chairperson then asked that DEA give an example.

Ms McCourt cited the example of Mr X wanting to develop an Industrial Development Zone (IDZ). Mr X would have to do an impact strategic environmental assessment process around the whole IDZ area. When the area was developed, individual activities may trigger environmental issues. However, if Mr X complied with the conditions that DEA had set for management of the whole area, there would be no need to start the process again for each of the individual activities, and do several EIAs, as they fell within the same context.

The Chairperson said that this would certainly help the DEA in instances where there would clearly not be any environmental problem. Ms McCourt had noted that this clause would also deal with cumulative impact rather than dealing with individual activity, on a piecemeal basis. However, the assessment process would have been done already, and the objectives of the EIA would have been met. This would reduce the red tape.

The Chairperson said that the more he read on EIAs, the more he realised their importance, but cautioned that over-regulating must be avoided. The DEA had to find a good balance between protecting the environment, but not blocking development. He agreed with the flexible approach within an IDZ, where DEA had already looked at the area and knew what activities would be established, and had given the overall authorisation. He confirmed to the Committee that (e) dealt with activities ad (c) with the geographical areas. This amendment was in line with others made.

Ms B Ferguson (COPE) pointed out a typographical error.

Ms McCourt noted the use of “Ministers” instead of “Minister”, and also added that she would correct the reference to “with or without conditions” in (c), and insert a reference also to section 24(2)(e) in the heading to clause 5(a).

Amendment of section 24(2A)
Ms McCourt then moved on to section 24(2A). This had not been highlighted in yellow, but the Chairperson suggested that concerns around the impacts must be addressed here. The DEA therefore wanted to add, in 24(2A)(2)(a) the words “risk averse sustainable development”.

The Chairperson understood the reason , but questioned whether the linking to “sustainable development” would not narrow what the DEA was trying to achieve.

Ms Garlipp replied that the alternative would be to add these words to the preceding line.

The Chairperson said that it could remain at the end. Conservation of resources and sustainable development was one concept

Mr Wills suggested that another way of dealing with that issue would be to refer to the principle of proportionality in section 2.

The Chairperson commented that all the amendment would do was to prohibit the competent authorities from authorising something in a particular area. He gave the example of a marine reserve where DEA would say clearly that it did not want certain activities to be authorised. The Minister could then, under that clause, prohibit them and say that the DEA was given authority in that reserve.

The last part of the clause specified when that could be done. He noted that the words “necessary in order to ensure protection of the environment, conservation of resources or sustainable development” were very broad.

He continued that DEA sometimes would not know the consequences as yet – for example, where a new type of mining had started up. It could not necessarily specify what had to be protected against, but DEA could state that because of the potential risk, it may protect on an interim basis until it knew what was happening. Fracking was another example; there had been much speculation, but the likely consequences had not been scientifically verified. DEA needed to find the appropriate wording, not necessarily attached to “sustainable development”, although the Committee had no problem with it in principle. 

Mr Wills noted that DEA had taken that point into consideration. He outlined that the wording was “Subject to paragraphs (e) and (f),  the Minister, in accordance with the principles outlined in section 24(7)(a), may, by notice in the Gazette…” He also noted the requirement that “a risk-averse and a cautious approach is applied and takes into account the limits….” .

The Chairperson interrupted to say that if DEA put the amended wording at the beginning of the sentence, then it would apply in a more restricted way. The words had to be inserted at the end, to read: “or when it is necessary to take a risk averse and cautious approach as outlined in section...”.

Mr Wills said he could do this.

The Chairperson noted that this principle was already in the Act. It was really protecting the Department in the case when it was not yet fully sure of the consequences, but wanted to be able to prohibit while the checks were ongoing.

Ms Garlipp noted that the DEA changed “may” to “shall” in the clause prohibiting further applications.

The Chairperson said that the changes to subsection (5)(c)(i) had been discussed earlier.

Ms Garlipp said that this had been linked to subsection (2)(d) and separated out for easier reading.

The Chairperson reminded DEA that the Committee had asked that “contemplate” should be removed from subsection (2)(d).

Ms McCourt responded that the sentence should actually only refer to subsections (2)(a) and (b). No activities were contemplated in (2)(d).

The Chairperson asked for clarity whether DEA was amending, or replacing the references.

Ms Garlipp replied that DEA was completely replacing the clause.

The Chairperson said that the square brackets should be removed.

The Chairperson noted the need to change the numbering for the subclauses.

Ms McCourt agreed that it would be a sector, a combination or a part of all the different things that could be identified or specified.

Amendment of section 24C of Act 107 of 1998, as substituted by section 3 of Act 62 of 2008
Ms McCourt said these amendments were made pursuant to the last meeting with the Committee, when the DEA was asked to reinstate all the exclusions. One unintended consequence had been picked up. This would apply only to Isimangaliso coastal area, which was protected by an international environmental instrument. Isimangaliso formed part of the core of the World Heritage Site, and therefore the national authority was the competent authority for environmental authorisation in Isimangaliso. If the DEA included the exclusion presently listed in (i), it would actually mean that the province would be the competent authority for any coastal activity in Isimangaliso, whereas it was the national authority that, by default, would have the power because this was stated under an international environmental instrument. For all other areas, there was no problem.

The Chairperson said that Isimangaliso could be specifically excluded, but asked what would then happen to the rest of the coast.

Ms McCourt replied that this would  not apply to the rest of the coast. The Minister must be identified as the competent authority if the activity took place within an area protected by an international environmental instrument. The wording allowed provinces to be the competent authority for any other areas “ falling within the seashore or within 150 metres seawards from the high-water mark”, that were not covered by an international environmental instrument. The exclusions listed in (i) to (vii) only applied to areas that were protected by an international environmental instrument (effectively Isimangaliso).  She reminded the Committee that the Western Cape Provincial Government had raised the point that if these exclusions were not listed, the entire Cape floral region would fall under the national department.

The Chairperson understood the reasoning but said the clause did not read well. Maybe there should be a specific reference to Ismangaliso.

Ms McCourt said that there were other World Heritage Sites, and the clause would even apply to the buffer zones of such sites as they were still protected by an international environmental instrument.

The Chairperson took it that then the other clauses would regulate any other shoreline. Perhaps “excluding a conservancy” should be added. Alternatively the phrase “protected by an international environmental instrument” should move to the end.

Ms McCourt said that the phrase “protected by an international environmental instrument” was already in (b).

The Chairperson said that this was not necessarily the right place, which was why there was a problem with (i).

Ms McCourt put this into context. The Minister should be identified as the competent authority over World Heritage Sites.

The Chairperson knew that, but maintained that it still did not read well unless there was reference specifically to a  conservancy, or a protected natural environment, protected by an international environmental instrument.

Ms McCourt asked if DEA should repeat the content of the heading to (b) again at the end.

The Chairperson replied that this would not be a repetition. The words would be specifically applied to the exclusion and excluded from the heading. The words “other than” might be better than “excluding”. He said the Department was free to challenge him on this, but he thought he was right. He reiterated his suggestion : that after “excluding” and the list, a phrase must be added to specify protected by an international instrument.

Ms McCourt said that she would make the changes.

Mr Wills wanted to clarity if the amendment must come in at the beginning or end of the clause.

The Chairperson replied that it was to be at the end, so that it applied only to the exclusions (ii)(iii) (iv) and (vii). The clause was trying to say that a conservancy that fell in a protected area could be managed by the province, even if it was protected by an international instrument.

Ms Garlipp said that the Minister would be the competent authority if the matter “has been declared a national priority by means of a Cabinet decision, and that has been published in the Gazette for notification”.

The Chairperson thought this wording did not correctly capture the Committee’s request. The concern of the Committee was that Cabinet was given a “blank cheque” to declare anything as a national priority. This would give the Minister too much power. There were no criteria. Another way to deal with this was to take out the authority of the Minister, and create a separate sub-clause, starting with “notwithstanding”.

Ms McCourt set out the changes to subsection (4). There were timeframes, and so the section would now start with the words “Pursuant to”.

The whole of subsection (5) had been amended to read: “The applicant must notify the MEC in writing of its intention to exercise the option in subsection (4), 30 days prior the exercising of such option”.

The Chairperson reminded DEA that he had also asked for a reference to “including all copies of the documents that were provided to the MEC” to be added.

The Chairperson thought that subsection (7) had to be redrafted, at (c). (a) was currently standalone, as it did  not specify from whom the status was to be established. Since the DEA was effectively taking away a power, it must be frugal with wording.

Ms Ferguson asked if the Committee wanted timeframes in clause 6, to the new section 24C(7)(c).

The Chairperson replied that the time frames were already there, from the Constitution.

Amendment of section 24F of Act 107 of 1998, as inserted by section 3 of Act 8 of 2004 and amended by section 5 of Act 62 of 2008
Ms McCourt noted the change to the heading of section 24F, referring to “Prohibitions”, and this section now listed activities that were not to commence. She also drew Members’ attention to the addition of references to the subsections of section 24(2A).

Section 24G of the National Environmental Management Act, 1998
The Chairperson was not happy and wanted clarity on limitations the Department was imposing on the Minister in relation to subclause (9)(4). He thought that more flexibility should be allowed. It was too limiting only to refer to issue, defer and refuse to issue.

The Chairperson also wanted two separate additions to sub clause (2). Where there was reference to issuing, degradation must be mentioned. Where there was proof of harm, there must be a reference t power to take further steps. If the Minister refused or deferred, the power should be added to give a directive that may assist in reaching the stage where the Minister would be able to issue.

The Chairperson also wanted two additions to the resolution, that had been split up in subclause (4). Firstly, he noted the public comments that when a section 24G application had been brought to the DEA, the prosecuting authority and the police authority could be of the view that they should not proceed further with investigations or prosecutions. The Committee found this unacceptable; this would undermine the intention of the legislation. For this reason subsection (4) must clearly state that the bringing of an application would not derogate from any investigations. of such matters, and the Committee had found that such sentiments to be completely unacceptable as it would undermine the intentions of that legislation therefore they had added subsection (4) to indicate very clearly that the bringing of such applications does not in any way derogate from that. The Committee expressed the firm opinion that the police and the prosecuting authority should be informed that the investigations or prosecutions should be vigorously pursued. The second point was that clause 23A must be included. He also wanted a full explanation of these points in the Objects clause and the Resolution to be fully set out in the subsection.

Amendment of section 24M of Act 107 of 1998, as inserted by section 8 of Act 62 of 2008
Ms Garlipp drew attention to the amendments as requested by the Committee.

The Chairperson agreed that this now read better.

Ms Garlipp noted that, in subsection (d), the word “project” was replaced with “activity”.

Insertion of section 30A in Act 107 of 1998
The Chairperson wanted other additions to both subsections 7(a) and 7(b). He also noted that that amendment was completely redrafted.

Amendment of section 34H of Act 107 of 1998, as amended by Act 14 of 2009
The Chairperson wanted still further amendments, rather than referring to jurisdiction alone.

Amendment of section 24F of Act 107 of 1998, as inserted by section 3 of Act 8 of 2004 and amended by section 5 of Act 62 of 2008
The Chairperson thought DEA would add a clause, in respect of the offences, that the environmental inspectors could have powers to order that operations cease when there was a risk of possible environmental damage.

Ms McCourt said that this was blank because it was more properly in section 28.

Amendment of section 47 of Act 107 of 1998, as amended by section 5 of Act 8 of 2004 and section 11 of Act 62 of 2008.
The Chairperson suggested that maybe this amendment should be changed again to two separate  clauses, instead of one. Tabling must be done to the NA and NCOP.

Amendment of section 44 of Act 107 of 1998, as amended by Act 56 of 2002
Ms Garlipp said that no changes were made and the clause read still “ (1A) Any regulation made under subsection (1) must be made after consultation with all Cabinet members whose areas of responsibility will be affected."

Short title and commencement
The Chairperson noted that two things could occur in relation to the commencement. If the DEA had some reason why the Act should not come into operation immediately, it must give reasons to the Committee. Otherwise, if the amendments were passed, then DEA should not need more than 30 days from date of publication by the Presidency to put matters into operation. Presently, the Act would come into operation 30 days from the date of its publication in the Gazette.

Industrial Waste Management Plan, including tyres, REDISA and other waste streams: Department of Environmental Affairs briefing
Ms Nolwazi Cobbinah, Chief Director, Hazardous Waste Management and Licensing, DEA, read out verbatim from the attached presentation.

She noted that this presentation outlined the progress on the integrated Industrial Waste Management Plan (IIWMP).

When she started to move on to the Redisa waste management plan, the Chairperson interjected to enquire whether it was correct that a Minister of a department could set a levy, rather than National Treasury. He wondered where the authority to do this was derived.

Ms Cobbinah said the DEA had spoken to NT, who expressed the view that the DEA did need permission as this was effectively a tax. However, the DEA held a different view and explained that this was in fact not a tax, but a user charge, and that it was provided for in the regulations. NT was apparently then satisfied on the point.

The Chairperson interjected to ask if DEA had that in writing.

Ms Cobbinah said she did not.

The Chairperson said that he felt the was nothing legal about any of the IIWMP. He had, from the outset, not been of the same mind as the DEA on the constitutionality of the whole plan, and reminded the DEA that there had been considerable coverage of this by the media.

The discussions between the Chairperson and DEA officials became somewhat heated, as they debated the legality of requiring everyone who was importing tyres to belong to the one plan, and the NT’s approach towards that particular plan.

The Chairperson wanted to know whether there were conditions around governance, whether there were conditions over how the Redisa Plan would use the money from levies that DEA was allowing it to charge.

He insisted that when DEA reported back on the public hearings on the waste management plans, senior officials from National Treasury must also be present. The Committee must get clarity on how the Minister of Environmental Affairs came to set a levy for these plans. He also asked for an indication of what court judgments had been handed down about the waste management plans. The Committee’s main concern was the consequence of the levy that DEA intended to allow one group to charge another.

The Chairperson noted that in view of the shortage of time, the rest of the presentation must be deferred.

The meeting was adjourned.  

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