Air pollution by big industries in Durban South: South Durban Community Alliance & groundwork

Environment, Forestry and Fisheries

09 December 2021
Chairperson: Ms F Muthambi (ANC)
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Meeting Summary

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In a virtual meeting, the Portfolio Committee was briefed by non-governmental organisations and community representatives on ongoing issues related to industrial pollution in and around Durban. A consistent theme of the submissions was that communities were not kept informed of the results of investigations into the environmental incidents, nor were they sufficiently involved in decisions that affected them directly.

GroundWork reported that Thor Chemicals, a United Kingdom (UK)-owned company that had operated in the country from the 1970s, had finally begun cleaning up thousands of tons of toxic mercury-rich waste at Cato Ridge, in accordance with the instructions of the Davis Commission in 1995. However, ex-workers and members of the community were uneasy, and wanted the clean-up operation to be put on hold until ex-workers suffering from mercury poisoning were compensated and a plan to deal with the pollution of the surroundings and compensate community members was presented.

Committee Members sought clarity on the background of Thor’s operations in South Africa and the history of ex-workers' compensation claims. While sympathising strongly with the ex-workers’ plight, they indicated that they would have to approach the Compensation Commission, which was part of the Department of Employment and Labour (DEL). They instructed the Department of Forestry, Fisheries and the Environment to work with the DEL to deal with the issue. Members also discussed the legislative environment which dealt with occupational health and safety and hazardous waste disposal.

The South Durban Community Environmental Alliance drew attention to ongoing industrial accidents in and around Durban. Incidents happened all the time, not just during the kind of unrest that had occurred in July. For example, there had been a massive fire at the ageing Engen refinery in South Durban. The communities affected by these incidents were often kept in the dark about the incidents and excluded from decision-making bodies.

A representative of the Blackburn community in Durban North discussed the ongoing effects of the destruction of the United Phosphorus Limited (UPL) warehouse in Cornubia in July. Residents were suffering from a wide range of symptoms and knock-on effects. Children, particularly, seemed to be having serious health problems, and terrible smells were coming from the river. People were sick and getting angry, and they might misbehave. The police would be sent to respond to issues, but they would not address the underlying problems.

The Committee was taken aback at the picture painted by the community representative. It created an entirely different impression of the aftermath of the UPL incident than the one they had received from the Department’s presentation. Members accused the Department of misleading the Committee, and demanded that it explain the difference between its presentation and the community’s account of the situation. They questioned whether it had engaged properly with the community, and instructed it to engage more fully.

Dolphin Coast Air Pollution reported that 5 000 tons of waste from the UPL warehouse, containing toxic chemicals such as arsenic, atrazine and bromoxynil, had been dumped at a landfill near Kwadukuza. Landfills should not be allowed to be built in Kwazulu-Natal because its high rainfall raised the risk of leachate. There was a need for air quality monitoring stations to be built in the region.

Members of the Committee asked the Department to comment on the licensing of landfill sites. They asked for a briefing on the regulatory and technical aspects of hazardous waste landfills, and called for the landfill mentioned in the presentation to be thoroughly investigated, after which the Committee could make an informed and educated decision.


 

Meeting report

The Chairperson welcomed the non-governmental organisations (NGOs), and acknowledged the integral role they played in civil society. She looked forward to their engagement with the Portfolio Committee on the Climate Change Bill in 2022. She invited GroundWork to make the first presentation.

GroundWork, ex-workers and community on Thor Chemicals' toxic waste

Mr Musa Chamane, Waste Campaign Manager, GroundWork, said GroundWork was concerned about the fate of the ex-workers of Thor Chemicals, a United Kingdom (UK)-owned company that had operated in Cato Ridge starting in the 1970s, who had been exposed to high levels of mercury in the course of their work. The Davis Commission of Inquiry, appointed in 1995, had recommended that Thor bear the cost of cleaning up the toxic waste left at the site. This had finally begun in April 2020, which was a welcome development, but ex-workers and Cato Ridge community members were still ill at ease. He invited them to explain why.

Mr Rogers Thuthuka Khanyile, an ex-Thor Chemicals worker, provided an overview of the dangerous working conditions at Thor when he worked there in the 1990s handling mercury sludge. His main concern was that only 41 of the 104 workers at the plant had received any compensation for injuries they had incurred. The ex-workers had been seeking help from the government since 2004, but promises to help had not been honoured, and they were dismayed to learn that the recently-started clean-up operation did not consider the compensation of ex-workers. The government had let them down. The clean-up operation should not continue until ex-worker compensation had been considered.

Mr Vincent Khuleka Mkhize, representing the community at Cato Ridge, said that nearby communities had been exposed to chemicals that had leaked into the nearby Mngcweni stream. The ongoing clean-up operation did not include a clear plan to deal with chemicals in the surrounding environment. The community had a constitutional right to a clean living environment, and it was calling on the government to halt the clean-up operation until it included a plan to deal with the pollution of the surroundings and compensate community members who had been affected.

Discussion

Ms C Phillips (DA) asked how long Thor had operated in South Africa, and what its core business had been.

Mr D Bryant (DA) sympathised with the plight of the presenters, but asked for greater clarity on what exactly GroundWork was requesting and what it wanted to see more of from government.

Ms S Mbatha (ANC) confirmed that the Constitution granted the right to a clean environment, and that during a visit to the region she had smelt mercury in the air and seen community members who had been affected by it. She said that toxic waste was regulated by the Occupational Health and Safety (OHS) Act, and asked Mr Khanyile whether the provisions of the Act, such as the presence of an occupational health and safety clinic with qualified doctors and nurses, had been observed at Thor. She said the workers would need to follow the necessary procedures and seek compensation from the Compensation Commissioner. Employers were required to do medical pre-reports, further examinations every six months and a final examination by an occupational health and safety specialist. Records of these examinations would be needed for the Compensation Commissioner to assist.

The OHS Act stipulated that an employer must protect employees, visitors and nearby communities from any hazards emanating from its working environment, and it was evident that Thor had failed to do all of these things. There was still no legislation dealing specifically with hazardous waste, and it was only recently that legislation on electronic waste had started to be developed. It was unbelievable that mercury had been allowed to be dumped in South Africa, and she was concerned that it might have leached into the groundwater.

Mr N Paulsen (EFF) appreciated GroundWork’s efforts in support of the affected groups. Not a year went by without news of a massive environmental disaster in Kwazulu-Natal (KZN). How many people had suffered from mercury poisoning? The country needed legislation to protect the people from toxic waste, but ultimately government was not doing its job. He asked what GroundWork had done to hold government responsible for its failures.

Mr P Modise (ANC) echoed the sentiments of Mr Paulsen. Someone should be charged with dereliction of duty. He asked whether Thor Chemicals still existed, whether its operations were unchanged, and how many people it employed. The situation demanded urgency. He asked the presenters what responses they had received from the incumbent and previous Ministers and departments. How many people had been affected by mercury from the Thor plant, and had it been scientifically established that the various health symptoms were due to mercury exposure?

Like Mr Bryant he sympathised with the desire for justice and redress, but wanted further clarity on what the presenters expected from the Portfolio Committee. He thought that the question of compensation fell under the jurisdiction of the Department of Employment and Labour (DEL), and asked what response, if any, they had received from that Department. Had they approached other committees, or the provincial or local government? What response, if any, had been received?

The Chairperson recalled that the Department of Forestry, Fisheries and the Environment (DFFE) had said that the companies responsible for problems such as toxic mine drainage and coal mine dump fires could not be traced and held accountable. Would the same thing happen in the case of Thor Chemicals? Would the fact that it had demerged and renamed itself "Guernica Chemicals," allow it to avoid responsibility? Who had issued a hazardous chemical licence to Thor without establishing its processing capabilities? Did the government have any files on Thor? Why were protocols such as environmental impact assessments (EIAs) not incentivising industries handling hazardous materials to move their operations away from urban areas? It was heartbreaking to hear the plight of communities, and the Department, as custodian of legislation, must respond.

Responses

Mr Chamane replied that Thor Chemicals had operated in South Africa since the 1970s, when environmental legislation had been much weaker here than in the UK. It had claimed to be recovering mercury from waste, but GroundWork interpreted its real intention as dumping. GroundWork wanted the site to be cleaned, but it was concerned that the community was not being informed about how it was being done, and it also wanted to see the ex-workers compensated. He confirmed that doctors had been involved in the attempts to secure compensation, but the case had been passed on to various lawyers and the documents had been lost. Tests on ex-workers conducted in 2020 had shown high mercury levels, however. There had been 104 workers at Thor, of whom almost half had since died. DFFE had done a bit, especially after a fire at the site in 2019, and had promised to raise the issue of compensation, but workers believed that the site clean-up was being prioritised over their health. Letters sent to the Portfolio Committee on labour had been misunderstood, and that Committee had refused to hear their case.

Mr Khanyile confirmed that there had been 104 workers at Thor, and that various Ministers had been approached. Minister Creecy had redirected the query to the Minister of Labour, who had requested the medical records that had been taken from the lawyers by the Compensation Commission. He pointed out that most of the workers were casually employed, so there would probably not be any records.

Mr Rico Euripidou, Environmental Health Campaigner, GroundWork, said that GroundWork wanted the Committee to assist the workers to obtain compensation, establish ongoing monitoring of the Thor Chemicals site and surroundings, and for the community to be involved in the restoration of the site.

Mr Mkhize insisted that the clean-up should be put on hold until it included the issues of compensation for ex-workers and cleaning the surrounding community. There was a risk that Thor would disappear as soon as it had cleaned the site itself. Industries dealing with hazardous substances must be closely monitored.

Ms Vanessa Bendeman, Acting Deputy Director-General: Regulatory Compliance and Sector Monitoring, DFFE, said that the Department was concerned about the issues raised. However it had to operate within its mandate. She asked Mr Grant Walters, Director: Enforcement – Environmental Impact & Pollution, DFFE, to discuss what the Department had done.

Mr Walters said that the clean-up had begun in April 2020, and 1 686 tons of waste had been removed so far. It was being taken to a facility in Switzerland. The removal process was complex and was governed by strict laws and conventions, so access to some areas was restricted and the process was slow. He said there was no risk of leaching from the high-risk materials, and there was a very low risk of leaching from the lower-risk materials, but acknowledged that the material had been sitting there since 2000.

Thor’s core business had been manufacturing a mercury paint additive -- since banned -- and operating a trade-back system through which they obtained mercury-rich waste from other companies. It had divested from South Africa in the early 2000s, but still operated in the UK. The incumbent Minister had initiated claims against a subsidiary of Thor operating in South Africa, and as it stood the subsidiary was funding the clean-up.

There were extensive safety protocols in place at the site and the Department was taking no chances. However, there had been no respectable environmental laws in the 1970s when Thor had started its South African operations, and the National Environmental Management Act (NEMA) had been passed in only 1998. He confirmed that there were comprehensive files on the company. The Department was monitoring the site almost daily and it was appointing consultants to assess the risk that would remain once the site was cleaned. Site security was a serious challenge, however. Incursions occurred daily. Crime syndicates involved in illicit mining were suspected. This would make it difficult to allow community members to enter and inspect the site themselves.

Ms Mishelle Govender, Chief Director: Hazardous Waste Management & Licensing, DFFE, stressed that the waste was being exported. She added that the site would be holistically remediated after the clean-up was complete, at the expense of Thor or its subsidiary.

Ms Bendeman confirmed that the compensation of ex-workers needed to be directed to the DEL, and said that the DFFE had done, and continued to do, everything in its power to contain any leakage from the site and limit further exposure of the community.

Further discussion

Ms Mbatha acknowledged what the Department had achieved, even though it had come very late, but believed it could do more to communicate with the community about the clean-up. Even though the site was hazardous, the community needed to be made aware of what was happening. Were the hazardous material containers being dealt with as well? She still felt that the DFFE could push Thor on the compensation issue, and wondered whether a joint meeting with the DEL could be arranged. The matter could not simply be passed on to another Department. A trust should be established to administer funds to compensate the ex-workers.

The Chairperson agreed that the DFFE needed to take charge. Government should not operate in silos.

Ms Bendeman agreed. She undertook to discuss the matter with the Minister and Director-General, and requested support from the Portfolio Committee to escalate the matter.

South Durban Community Environmental Alliance (SDCEA)

Mr Bongani Mthembu, Air Quality & Youth Development Officer, SDCEA, said he had sent numerous letters to the Committee since 2014, but had not received replies.

The Chairperson denied receiving any letters from Mr Mthembu. She cautioned him not to make blanket accusations, and to proceed with his presentation.

Mr Mthembu acknowledged the Chairperson’s instruction. He said that there had been numerous environmental incidents, such as explosions and fires, in the South Durban area, but the Alliance’s requests for information were always denied. At the Engen refinery alone, there had been several explosions over the years, most recently in December 2020.

Mr Desmond D’Sa, Office Co-ordinator, SDCEA, reported that there had been another fire that day. Incidents happened all the time, not just during the kind of unrest that had occurred in July. Durban was a dumping ground for hazardous chemicals. He believed that a lack of cooperation within government was the problem. Meanwhile, the Department was engaging with United Phosphorus Limited (UPL) through its joint operational command, but there was no feedback to the community. Proper processes needed to be set up so that information was shared and solutions could be found. A stakeholder forum needed to be established. Engen had lied to the Portfolio Committee when it had claimed that it was committed to working with the community. They had failed to release information that they were legally obliged to release. Chemical companies must be summoned to the Committee, and an imbizo to discuss weaknesses in environmental legislation must be convened. The promised stakeholder committee had not been established, even after a year.

Mr Kwanele Msizazwe, Durban North Blackburn Village community representative, discussed the ongoing effects of the destruction of the UPL warehouse in Cornubia. There was no intensive clean-up taking place, and residents of Blackburn, less than a kilometre away, were suffering from a wide range of symptoms and knock-on effects such as a loss of employment and opportunities to catch fish from the river. Children, particularly, seemed to be having serious health problems and terrible smells were coming from the river. The community shared information with the authorities, but they were not kept informed. Someone had taken samples from vegetables grown nearby, but the community had not heard what the results of the tests were and were unsure about whether they could eat them. Government appeared to be undermining and disrespecting people living in informal settlements. The problems were getting out of hand -- people were sick and getting angry and they might misbehave, he warned. The police would be sent to respond to issues, but they would not address the underlying problems.

Discussion

The Chairperson remarked that there was dissonance between the Department’s presentation on the UPL incident and what the community was saying directly. The community seemed to have been sidelined and neglected.

Mr Bryant thanked the presenters, and said that the Committee valued strong voices from communities. He agreed that the DFFE needed to play a more active role in the environmental approval process. It could not be left to other departments, with the DFFE becoming involved only after an environmental incident had occurred. He also agreed that Engen should be summoned back to the portfolio Committee, particularly to address the issue of the stakeholder forum. He was also dismayed that the City of eThekwini did not seem to be playing its role in either the UPL or Engen incidents. Questions of compensation should, however, be directed to the DEL.

Mr Paulsen said that the hardship that people were enduring at the hands of rampant capitalism was unbelievable. The City should have used proper foam fire extinguishers, which would have prevented much of the wider environmental damage from the UPL incident, so it was just as much to blame. Had national, provincial or municipal government responded to the health needs of the communities affected by the Engen and UPL incidents? What was being done to help?

Ms Mbatha agreed with the Chairperson that the DFFE report had been shown by the community representatives to be inadequate.

DFFE's response

Mr Walters recalled that the Department had drawn attention to UPL’s preliminary compliance profile when it presented to the Committee, which had revealed that there was a dire need for the Department to assist in governing the chemical industry in Kwazulu-Natal. The Department had also undertaken to do a nationwide compliance audit on the entire agro-chemical industry. This would be done in early 2022. There was a regularly-updated public depository of information on environmental incidents. The Department had also said that the Member of the Executive Committee (MEC) had set up an interim multi-stakeholder forum (MSF) in October, which had been tasked with establishing terms of reference for how stakeholders would like to see things pan out. The MSF, which included Mr Msizazwe and Mr Euripidou among many others, had delivered a report earlier in the day. He said that a semi-permanent clinic, with trained specialist doctors and nurses, would be established in Umdloti. There had been some delays, and communication could have been better, but it would be open by the 18 December 2021 and it would be open to the entire community.

He recalled the results of the Department’s research, which had shown that although some particulate matter (PM2.5) from pesticides had been released into the atmosphere over Blackburn while the fire was burning, the majority of contaminants had been released into the water. That said, it would take as long as 20 years for the remediation of the environment to be complete. He also recalled that UPL had made use of appeal provisions in the NEMA to challenge the Department’s directives. The MEC had decided on the appeal in favour of the Department the day before. This decision should be in the depository. He said that the Engen incident had been lodged with the provincial government, and it was busy dealing with it. He stressed that the Department took these incidents extremely seriously.

Ms Bendeman observed that there was legislation that created concurrent competencies among local and provincial governments. This might be one of the reasons the community struggled to get information and ended up being sent from pillar to post. The Department took note of the concerns raised and undertook to reach out to provincial and local governments to ensure information reached affected communities.

Further discussion

Ms Mbatha said that the Department of Health (DoH) had claimed that UPL had not been granted a hazardous substances licence, but according to the DFFE’s report on the incident, it did have a licence. She also had doubts about the authenticity of the material safety data sheet, a key requirement of the OHS Act, because the Department had delayed its release.

She reported that nearby sugar cane farmers were proceeding as normal. What had happened to the sugar cane and the labourers? A report by amaBhungane had indicated the presence of high concentrations of arsenic, but the Department’s report had not addressed this. The community was within its rights to demand better communication. She stressed that facilities with appropriate specialised medical professionals must be used, and communities must be educated on how to protect themselves. She insisted that permits to handle hazardous waste should not be granted to companies operating near to urban areas.

The Portfolio Committee must work together with other Committees to resolve the issues. It could not continue to rely on information provided by the companies responsible for the incidents and it should therefore visit Cato Ridge and revisit the communities affected by the Engen and UPL incidents in person.

Mr Modise condemned the Department for its lack of interaction with the affected communities. It had presented lies, fallacies and grandstanding. How long would it take to get a complete and comprehensive report on the UPL incident? When was the last time the Department had gone to the site, and what had they found then? He did not care about capital or those who were interested only in making money, as it was the people who had voted. The Committee should remember that it represented the people, and that they had approached the Committee as a last resort. The Department must come clean.

Ms Bendeman denied that the Department was misleading the Committee, and requested the opportunity to brief the Committee on stakeholder relations around the Engen and UPL incidents.

The Chairperson asked if the Department had engaged with any of the non-governmental organisations (NGOs) and community representatives who had presented at the meeting. Who were the community representatives in the stakeholders forum? Had the Department used consultants to investigate the UPL and Engen incidents? The Department and the community representatives could not both be right -- one of them must be misrepresenting the facts. What did the community representatives have to gain from misrepresentation? The Department was just presenting the perspective of itself and the consultants it had employed. Why had the Department provided the community with no feedback?

Ms Bendeman said that Mr Msizazwe, Mr Mthembu and Mr Euripidou were all part of the stakeholders' forum. She agreed that it was important to be clear that community engagement was done with people who really did represent the community in question. She undertook to look into whether and how communities were updated after consultation. She said that the Department had not used consultants.

Mr Walters said that he had been present in person when the MEC had launched the multi-stakeholder forum in October, and confirmed the presence of the three members mentioned by Ms Bendeman. He also confirmed that he was in possession of the report of that forum, which would establish the terms of reference for ongoing community engagement, and he offered to share the report with the Committee. He also recalled that the Department had provided information on the MEC’s engagement with the communities in its report.

Mr D’Sa said that the multi-stakeholder forum included only representatives of government and UPL. Community representatives and NGOs were not part of any decision-making process, nor were they able to obtain information. Then there was a stakeholder committee on its own, which represented the community and NGOs to serve as a conduit, but this had not yet got off the ground.

The Chairperson asked Mr Walters to confirm the composition of the multi-stakeholder forum.

Mr Walters explained that there was a joint operations committee that was composed of a number of governmental authorities. Governmental specialist teams had been actively engaging with specialist teams from UPL for some time. UPL had tried to use the appeal provisions of the NEMA, but the Department had forced them to continue with containment measures and engage with the community. The stakeholder group was an interim committee tasked with finalising the terms of reference for community engagement. He confirmed the commitment he had made in October 2021 to engage meaningfully engage with the community. Officials were on the ground monitoring the situation every single day.

Ms T Mchunu (ANC) was not convinced by the explanation. The Committee should meet with the Blackburn community, and the Department should play its role. The multi-stakeholder forum must include all stakeholders.

The Chairperson instructed Mr Walters to engage with Mr Chabane, Mr D’Sa and Mr Msizazwe, and report back to the Committee.

Mr Walters replied that he would meet with them the next day.

Dolphin Coast Air Pollution

Mr Paolo del Fabbro, Dolphin Coast Air Pollution, representing the Kwadukuza community, said that complaints about odours coming from the Dolphin Coast Landfill Management (DCLM) landfill had been filed for years, but nothing had been done. The DCLM landfill was in breach of its licence. On two separate occasions, readings had shown that the levels of benzene in the air were 12 times the limit set by the national ambient air quality standard. Yet there were no air quality monitoring stations in the area.

Almost 5 000 tons of waste from the UPL warehouse, containing toxic chemicals such as arsenic, atrazine and bromoxynil, had been dumped at the DCLM landfill. Landfill fires were inevitable, and a fire at the DCLM landfill would be a disaster. Landfills should not be allowed to be built in Kwazulu-Natal because its high rainfall raised the risk of leachate. The solution was that polluters in the area, starting with the DCLM landfill, should to be forced to install air quality monitoring stations, and licences for landfills in Kwazulu-Natal, and the DCLM in particular, should not be renewed.

Mr Mthembu said that there was no transparency in the process of identifying landfill sites. He insisted that communities must be represented on the biannual committee that monitored landfill sites, and information should be publicly available. There was a lack of oversight of Class A sites.

Discussion

Mr Modise observed that the Department was best placed to respond to many of the issues raised. The iLembe district municipality had things to explain. The Committee, meanwhile, was failing the people and it must recommend that the DCLM landfill be closed and if it was not, then the Minister must explain why it remained open.

He recalled that the Committee had raised the issue of UPL’s licence during its oversight visit. Had there been any consequences? It could not be that no action was taken while the environment was polluted and people were suffering from illnesses. Had the Department implemented the resolutions of the Portfolio Committee? The Committee needed a comprehensive report from the Department on its progress in dealing with polluters such as UPL and Engen. Kwazulu-Natal seemed to have become a centre of problems, and there seemed to be no progress. The Department must do its work or the Minister must be removed.

Ms Mbatha commented that the Department had to refer to the South African National Standard (SANS) 10234 when classifying landfill sites. There were very few Class A landfill sites in South Africa -- sites that were designed to accept hazardous waste. If a Class A site was operating without a licence, the Minister must account for it, but this did not seem likely because of the strictness of the regulations. The Department should brief the Committee on the regulatory and technical aspects of hazardous waste landfills, and the DCLM site must be thoroughly investigated, after which the Committee could make an informed and educated decision.

Responses

Mr Del Fabbro clarified that the DCLM site was not unlicensed. It was a licensed Class A landfill. The problem was that it should not have been granted a licence in the first place, because the site was unsuitable due to high rainfall. The legislation was not strong enough. It was failing communities. Last year, the DCLM had received a mere R20 000 fine for dumping leachate into a nearby river. It was an insult to the community.

Ms Govender confirmed that the DCLM site was licensed and had been in existence for a number of years. It had initially been a general waste site, but had been converted to a Class A site in 2012/13. The Department was not deaf to the concerns of the community, and the community was actively involved in the monitoring committee. The Department had instructed the DCLM site to cover leachate dams to reduce odours and to pre-treat leachate before releasing it. It was aware of odour complaints in the area, and was engaging with the iLembe Municipality on the installation of air quality monitoring stations. However, an air-shed study needed to be done first in order to determine the best locations. This study was expected to be complete within the next three to five months.

She conceded that Kwazulu-Natal was a high rainfall area, but from a practical point of view it was necessary to have Class A sites in the country as long as hazardous waste was being generated. The alternative was that it would end up in rivers and oceans. Therefore it might not be realistic to recommend that the DCLM site be closed. The Department was developing mechanisms similar to extended producer responsibility (EPR) to make the generators of hazardous waste responsible for its safe disposal. Already, some waste streams, such as electronic waste and garden refuse, were not permitted on any landfills. She would welcome the opportunity to explain the licensing conditions for landfills.

Conclusion

The Chairperson called on everyone present to keep looking for solutions. She thanked all the presenters for taking the time to share with the Committee. She thanked the Committee Members and staff for their work throughout the year.

The meeting was adjourned.
 

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