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United States Court of Appeals District of Columbia Circuit Case Status

The court date for Nevada's Yucca Mountain lawsuits has been indefinitely postponed due to the complex nature of the cases. The U.S. Court of Appeals in Washington, D.C. has moved the consolidated cases to its 'complex' calendar, meaning the State of Nevada will have several hours to argue its case instead of the standard 15 minutes. The suits, previously scheduled for an October 3rd court date, now will not be heard until either late 2003 or sometime in 2004. Oral arguments for the combined cases will be heard by a 3-member judicial panel in the D.C. Court of Appeals. The procedure will be open to the public; for more information visit


Yucca Mountain was designated as the site for the nation's nuclear waste storage facility by President George W. Bush in February 2002. Nevada Governor Kenny Guinn vetoed the President's decision, but Congress overturned Guinn's veto in late spring/early summer 2002. The State of Nevada has subsequently shifted its battle against the nuclear waste repository to the courts.

Over the past two years, the State of Nevada has filed major lawsuits against the Department of Energy (DOE), the President of the United States, the Environmental Protection Agency (EPA), and the Nuclear Regulatory Commission (NRC). The lawsuits ask the courts to declare President Bush's designation of Yucca Mountain invalid because the DOE, EPA, and NRC violated the law throughout the Yucca Mountain site recommendation and approval process. They also request the courts to put a halt to construction of the repository pending final outcomes of the cases.

Antonio Rossman, AttorneyAll lawsuits were filed in the District of Columbia Court of Appeals. In addition to the Nevada Attorney General's office, the State of Nevada has hired two different law firms to represent them in court: the law office of Antonio Rossmann, San Francisco, CA; and Egan & Associates, PLLC, McLean, VA.

Attorney Joseph EganIn November 2002, the D.C. Court of Appeals agreed to hear the major Yucca Mountain lawsuits together. The cases will still remain separate, but will be argued during the same week in front of the same judicial panel. This will allow the 3-judge panel to get the full picture, hearing all of Nevada's major cases in a relatively short period of time, rather than splitting up the suits between panels or having the cases spread out over months.

Once the judges have heard all the arguments, they will most likely take several months to make a decision. Their decision could be multifaceted and could include the remanding or striking of actions. For example, the judges could order the DOE to re-do parts of the Yucca Mountain Environmental Impact Statement.

Both sides are expected to appeal to the Supreme Court.


The Recommendation Lawsuit is a consolidation of the EIS (Environmental Impact Statement) and Guidelines lawsuits.


The EIS lawsuit was filed by the State of Nevada on June 6, 2002, against Secretary of Energy Spencer Abraham and President George W. Bush. The suit challenges the DOE's Final Environmental Impact Statement (FEIS) on the Yucca Mountain repository.

The State of Nevada contends the FEIS violates the National Environmental Policy Act (NEPA) and the Nuclear Waste Policy Act (NWPA). The suit also challenges Abraham and Bush's decisions to recommend Yucca Mountain based on the FEIS.

Nevada cites multiple deficiencies of the DOE's Final Environmental Impact Statement. Among other things, the FEIS:
  • fails to disclose that the Yucca Mountain site would not be a geologic repository as defined in NWPA;
  • fails to address comments made by Nevada officials in response to the 1999 Draft Environmental Impact Statement;
  • fails to address critical impacts and possible sabotage scenarios;
  • fails to address Yucca alternatives, including a PECO no action alternative, and
  • fails to include vital transportation information.
For example, the State says the FEIS is premature because it does not include transportation routes for the spent fuel. Moreover, the report analyzes impacts from transporting waste from only 77 sites in 37 states. In reality, there are 131 sites in 39 states, as Energy Secretary Abraham confirmed in his recommendation to the President and later testified in Congress.

The lawsuit also points out that the FEIS fails to disclose whether the Yucca repository will be high-temperature or low-temperature. This is a pivotal decision that will determine the entire structure and physical layout of the repository.

The suit also alleges that Energy Secretary Abraham deliberately withheld the FEIS from Nevada and the public. Abraham released the FEIS with his recommendation to the President, violating NEPA regulations by not providing a mandatory 30-day public review period.

The lawsuit concludes that the Final Environmental Impact Statement is full of crucial information gaps, ignores public concerns, and does not adequately predict the impacts of a Yucca Mountain high-level waste repository. Nevada also challenges President Bush's approval of the site based on the faulty FEIS.


Another lawsuit Nevada has filed against the Department of Energy concerns DOE guidelines about Yucca Mountain geologic suitability.

When the Nuclear Waste Policy Act (NWPA) was originally written in 1982, both Congress and DOE agreed that deep geologic isolation was the required form of containment for the nation's high-level nuclear waste. Nuclear waste remains highly radioactive for hundreds of thousands of years, and no known form of man-made barrier or container is capable of serving as a reliable and safe permanent waste container for that long. Consequently, NWPA expressly mandated that geologic considerations be the "primary criteria" for the selection of the repository site.

DOE's guidelines for selection of the site originally reflected this mandate. In the Yucca Mountain Mission Plan, DOE stated its intent to "place primary importance on the capabilities of the natural system for waste isolation." However, in 1999, the DOE "rewrote" its guidelines to rely primarily on engineered waste packages, not on geologic disposal.

The lawsuit, filed on December 17, 2001, contends that after several years of study, the DOE discovered Yucca Mountain was not geologically suitable due to water infiltration, seismic activity, and volcanism. However, instead of notifying Congress and the Secretary of Energy that Yucca Mountain was unsuitable, the DOE merely changed the rules by rewriting their guidelines.

Nuclear industry lobbyists even tried to convince Congress to change the law by altering NWPA's geologic suitability guidelines. They were unsuccessful.


The Department of Energy is not the only agency being sued by Nevada, however. Nevada filed a lawsuit against the Environmental Protection Agency (EPA) on June 27, 2001.

The EPA was responsible for setting the health and safety standards for residents living near the Yucca Mountain site. Energy Secretary Abraham calls these standards 'safe' and extremely 'stringent'. However, the State of Nevada contends the EPA's standards do not adequately limit radiation exposure. The standards would allow DOE to use 18 kilometers (11 miles) of the Amargosa aquifer for dilution and dispersion of radiation from the repository.

Nevada also claims the EPA did not take into account future growth rates and other changes while predicting future impacts on Nevadans living near the site. Notably, in the 2000 census, Nevada was shown to be the fastest growing state in the nation.

The lawsuit contends that by failing to set adequate health and safety standards for Yucca Mountain, the EPA violated the Nuclear Waste Policy Act and other laws.


In conjunction with Clark County and the city of Las Vegas, the State of Nevada has additionally filed a lawsuit against the Nuclear Regulatory Commission (NRC). The NRC is responsible for granting licenses to DOE for construction and operation of Yucca Mountain. This case says the NRC acted illegally in revising regulations that govern the criteria to be used for licensing the Yucca Mountain repository.

Among other things, the State contends that the NRC:
  • fails to require DOE to show that Yucca Mountain is a geologic repository with a multiple-barrier system (i.e., human-engineered and geologic)
  • fails to find compliance with EPA standards
  • illegally relaxed their standards for proof of repository safety.
The State of Nevada concludes that these actions are in violation of NWPA, NEPA, and Atomic Energy Act (AEA).


Nevada filed its most recent lawsuit, a constitutional challenge against the federal government, on January 9, 2003. The lawsuit argues that by forcing the State to house nuclear waste against its will, the federal government is violating the State of Nevada's sovereign rights. In March, the federal court in D.C. decided the case will be heard with the others.


In a separate issue unrelated to the major Yucca Mountain lawsuits, the Energy Department (DOE) has filed suit against the State of Nevada over water rights at Yucca Mountain. DOE wants to pump 430 acre-feet of water from the Fortymile Canyon-Jackass Flat Groundwater Basin in Nye County to the Yucca Mountain site each year for construction and operation of the repository.

The State had issued DOE temporary permits in the 1990s while the Department was studying the site. Once the site was officially approved, DOE asked for a permanent permit. But former Nevada State Engineer Mike Turnipseed denied it on the grounds that the Nevada Legislature had determined it was unlawful to store nuclear waste at Yucca Mountain. The 9th Circuit Court of Appeals reversed this ruling and ordered further hearings on the subject.

However, current State Engineer Hugh Ricci refused to extend the temporary water permits to the government. DOE filed suit in a federal court, asking for immediate right to the water and arguing that federal law preempted state law.

In March 2003, U.S. District Judge Roger Hunt rejected DOE's arguments and denied the Department an immediate water permit. Hunt also delayed the lawsuit from going further, pending outcome of Nevada's Yucca Mountain lawsuits. However, the judge reversed Ricci's ruling, saying that the state engineer's office needed to hold more hearings on the subject before permanently denying DOE the water permit.

Accordingly, the state engineer's office held hearings August 20-22, 2003 in Carson City. Both sides presented their cases. Engineer Ricci may take several months to make a decision.

In the meantime, the state engineer's office has reached a new agreement with the DOE over temporary water rights.


With all of these lawsuits, Nevada hopes to defeat, or at the very least, stall the Yucca Mountain project indefinitely. But what chance does Nevada really have in the courts?

Seal of the State of NevadaGovernor Kenny Guinn has described it as a David versus Goliath fight, pointing out that the federal government and the nuclear energy industry are formidable opponents with deep financial pockets. "These people are just unbelievable," Guinn told the Las Vegas Sun, referring to the nuclear energy industry. "They don't have a budget and they've hired the best law firm they can."

To help finance Nevada's anti-Yucca battle, Guinn has established the Nevada Protection Fund. The Fund so far totals over $6 million: the 2001 Nevada Legislature appropriated $4 million, and the rest was donated by Nevada cities, counties, and individuals. The funds are being used to hire lawyers and lobbyists and to pay for opposition to the Yucca repository program in states likely to be negatively affected by waste transportation routes.


If you would like to contribute to the Nevada Protection Fund, visit Governor Guinn's Nevada Protection Fund at the State of Nevada Agency for Nuclear Projects, or send donations to:

Nevada Protection Fund
1802 N. Carson St.
Suite 252
Carson City, NV 89701
(make checks payable to "Nevada Protection Fund")

Nevada Protection Fund news articles
       Press Articles 2001-2002

Download Lawsuits in PDF format:

Combined Case Nos. 01-1516, 02-1036, 02-1077, 02-1179, 02-1196: State of Nevada et al. v. United States Dept. of Energy et al. (Opening Brief – the "Recommendations" Case) (244KB)

Case No. 03-1009: State of Nevada et al. v. United States of America et al. (Concerning the overruling of Nevada's sovereign authority) (433KB)

Case No. 02-1116: State of Nevada, Clark County, and the City of Las Vegas v. U.S. Nuclear Regulatory Commission (The "NRC Case")(615KB)

Case No. 01-1259: State of Nevada v. United States Environmental Protection Agency (The "EPA Case")(42KB)

For more case-related documents and information:
Nuclear Waste Project Office
Office of the Nevada State Attorney General

Lawsuits in the Press:

March 17, 2004    State sues DOE for loss of Yucca oversight funds CARSON CITY -- Nevada filed suit today in a federal court, charging the Energy Department has shortchanged the state $4 million this fiscal year to oversee the development of a high-level nuclear waste dump at Yucca Mountain – Las Vegas Sun

March 11, 2004 – Lawsuit claims workers at nuke dump in Nevada hurt by toxic dust LAS VEGAS - A former tunnel worker at the nation's nuclear waste dump in the Nevada desert filed suit Thursday against Energy Department contractors, claiming the companies deliberately exposed employees to toxic dust at the Yucca Mountain project – By KEN RITTER AP
Read the Complaint (PDF File 1.07 MEG)

February 26, 2004 – State threatens to sue Energy Department over funds WASHINGTON -- Nevada has threatened to sue the Energy Department if it does not allocate an additional $4 million for the state's work on the Yucca Mountain project.   Because of recent problems in receiving federal money as required by law, the state sent the department a detailed budget and a plan it wants to follow to avoid future conflict.   If the department does not respond by March 15, the state assumes it will not give the state the money it is entitled and "will promptly seek a judicial remedy," Bob Loux, executive director of the Nevada Agency for Nuclear Projects wrote in a letter to the department MondayLas Vegas Sun

February 06, 2004 – Lawmakers welcome anti-nuke help – Legislator from Minnesota opposes waste transportTwo Nevada legislators and an anti-nuclear activist hailed a Minnesota state lawmaker's promise Thursday to fight shipping radioactive waste through Minneapolis Las Vegas Sun

January 26, 2004, YUCCA MOUNTAIN: Nuclear waste lawsuits growUtilities want Energy Department to pay for missing deadline for repository– WASHINGTON -- The Energy Department is facing a new wave of lawsuits that could cost taxpayers billions of dollars because DOE missed a 1998 deadline to have a nuclear waste repository up and running in Nevada – STEPHENS WASHINGTON BUREAU

January 15, 2004 – No knockout on Yucca Nevada's hopes for definitive legal victory fade – WASHINGTON -- Nevada officials said this morning they believe a federal appeals court will allow the Energy Department to pursue a license to build the Yucca Mountain nuclear waste repository – Las Vegas Sun

January 15, 2004 – FEDERAL COURT HEARING: Yucca foes gain hope WASHINGTON -- Federal judges weighing Nevada challenges to the Yucca Mountain Project reacted with skepticism Wednesday to some of the state's key arguments, but suggested they might look favorably on other claims that could slow the proposed repository – Stephens Washington Bureau

January 13, 2004 – Nevada set to make final Yucca stand WASHINGTON -- Nevada's 20-year fight against Yucca Mountain will come down to three hours of arguments before the U.S. Court of Appeals in Washington on Wednesday.   The state's legal team will argue that three federal agencies and Congress moved a proposed nuclear waste repository at Yucca forward while violating a variety of federal laws and the U.S. Constitution. Lawyers for the agencies say there were no violations – Las Vegas Sun

January 12, 2004 – Yucca case to be heard Wednesday The federal government says entombing the nation’s nuclear waste beneath an ancient volcanic ridge in the Nevada desert will be safe.  Nevada says it’s a disaster in the making, and the state shouldn’t have to bear the burden of being the nation’s nuclear waste dump – AP

January 02, 2004– Critical year for Yucca Court challenges considered pivotal in long battle over nuclear dumpsite   WASHINGTON -- After a 21-year struggle, Nevada may finally know by the end of 2004 whether it can stop the nation's nuclear waste from being stored at Yucca Mountain – Las Vegas Sun

December 19, 2003 – State officials prepare for big Yucca hearing – WASHINGTON -- Nevada officials want three federal agencies to justify actions they feel violated federal nuclear waste law, overruled scientific evidence and unconstitutionally pitted 49 states against one, all in the name of building a nuclear waste storage site at Yucca Mountain – Las Vegas Sun

December 15, 2003 – Yucca case returning to U.S. District Court WASHINGTON -- The Justice Department does not plan on asking the U.S. Court of Appeals to rehear a conflict-of-interest case brought against the Energy Department over a Yucca Mountain project contract – Las Vegas Sun

December 08, 2003 Nevada keeps on the attack in its nuclear war with feds   LAS VEGAS — Outvoted in the political arena, Nevada will ask a federal appeals court next month to block the U.S. government from burying the nation's deadliest nuclear waste in the desert state – By Martin Kasindorf, USA TODAY

November 15, 2003 – NUCLEAR WASTE: Lawmakers target law firm – WASHINGTON -- Nevada's lawmakers on Friday continued their pursuit of a law firm accused of a conflict of interest while working on the Yucca Mountain Project – Las Vegas Review Journal   ( More Coverage Las Vegas Sun  )

November 13, 2003 – Yucca water rights denied - DOE expected to challenge engineer State Engineer Hugh Ricci has denied the Energy Department permanent rights to 140 million gallons per year of groundwater that the agency sought to build and operate the planned Yucca Mountain nuclear waste repository.   The denial is expected to be challenged by DOE attorneys because the water is vital to proceeding with the project. That challenge, however, won't come until other Yucca Mountain issues raised by Nevada are decided by a federal appeals court in Washington, D.C. – Las Vegas Review Journal ( More Coverage - Nevada Appeal )

  November 7, 2003 – State of Nevada – Ruling – Nevada Water Engineer on DOE's Application for Permanent Water Rights for the Yucca Mountain Project
(pdf graphic file 453KB)

October 28, 2003 – Conflict could further delay Yucca work WASHINGTON -- An appeals court ruling today could delay the Energy Department's plan to open a high-level nuclear waste dump at Yucca Mountain because of conflict of interest charges leveled at the law firm that worked on the department's permit application – Las Vegas Sun

September 20, 2003 – Yucca Mountain lawsuits rescheduled WASHINGTON – A federal court has set Jan. 14 as the new date for oral arguments in lawsuits challenging the Yucca Mountain Project, a Nevada official said Friday.   The cases will be argued before three judges representing the U.S. Court of Appeals for the District of Columbia Circuit: David S. Tatel, who was appointed by President Clinton; Karen Henderson, seated by the first President George Bush, and Harry Edwards, an appointee of President Carter.  It is not yet clear how much time the judges will allocate to each of the four major lawsuits from the state, Clark County and the city of Las Vegas, according to Bob Loux, head of the state's Agency for Nuclear Projects –By STEVE TETREAULT STEPHENS WASHINGTON BUREAU

August 20, 2003 – Hearings open on nuke waste water – CARSON CITY – The state attorney general's office said today allowing underground water to be used in the development and operation of a high-level nuclear dump at Yucca Mountain will "drastically undermine future beneficial uses of water" in Nevada. –By Cy Ryan, Las Vegas Sun   (More coverage –AP)

August 16, 2003 – Trial for state's Yucca lawsuits postponed WASHINGTON – A federal appeals court has ordered an indefinite delay in the trial of a group of four Nevada lawsuits seeking to block the licensing of a nuclear waste repository at Yucca Mountain.  Opening arguments, which had been scheduled for Oct. 3, were postponed Thursday by the U.S. Circuit Court of Appeals in Washington. Linda Jones, the courts operations manager, said she hoped the trial would be rescheduled before the end of the year, but she wasn't sure – Stephens Washington Bureau

August 14, 2003 – Denial of water for nuke dump urged – Hearing slated next week in Carson City – Allowing the Energy Department to tap groundwater in Nye County for the planned Yucca Mountain nuclear waste repository is not in the public's interest and any such requests should be denied, Nevada attorneys said in a brief filed Wednesday with the state engineer – Las Vegas Review Journal

August 13, 2003 – Virginia law firm to represent state in fight over Yucca Contract that pays up to $4 million during the next year to try to stop waste dump OK'd – CARSON CITY – A Virginia law firm will continue Nevada's legal fight against construction of a high-level nuclear waste dump at Yucca Mountain, the Board of Examiners decided Tuesday.  The firm of Egan, Fitzpatrick & Malsch of McLean, Va., will be paid up to $4 million over the next year to present Nevada's case for why the Yucca Mountain Project should be stopped, said Bob Loux, executive director of the state's Nuclear Waste Project Office – By SEAN WHALEY REVIEW-JOURNAL CAPITAL BUREAU

August 13, 2003 – Firm fighting Yucca adds Utah as clientState opposes Goshute spent fuel complex – WASHINGTON – The law firm Nevada hired to challenge the Yucca Mountain Project has signed on also to fight nuclear waste storage proposed within Utah.  Egan, Fitzpatrick and Malsch of McLean, Va., has added the state of Utah as a client. The firm expects to focus on a key segment of the state's case against a private spent fuel complex planned for the Goshute Indian reservation 75 miles southwest of Salt Lake City.  Law firm chairman Joe Egan said the firm will report on possible health and safety outcomes if a military aircraft from nearby Hill Air Force Base were to crash at the site – By STEVE TETREAULT STEPHENS WASHINGTON BUREAU

June 03, 2003 -- Yucca lawyers to get edited material -- Homeland Security Act cited as reason -- Lawyers preparing to fight the Yucca Mountain project will have to settle for an edited set of documents from the Energy Department, a result of the federal Homeland Security Act -- Las Vegas Sun.

May 06, 2003 -- State argues nuclear waste plan violates Constitution -- WASHINGTON -- Nevada is pursuing a legal case that argues the government's effort to single out the state for nuclear waste disposal was unconstitutional.  Rather than adhere to limits on federal authority, the Bush administration and Congress applied "raw political power" and usurped Nevada's sovereignty when Yucca Mountain was designated for nuclear waste burial through a resolution passed last year, the state contends - Las Vegas Review Journal

February 10, 2003 -- Nevada lawmakers hear outline on Yucca suits -- Robert Loux, administrator of the state Office of Nuclear Projects, told the Assembly Ways and Means Committee four cases will be up in federal court in September, and he expects a ruling in either late December or early January 2004.  The state asked the U.S. Court of Appeals in Washington, D.C., to hear all four cases together, a request that was granted. Loux said he’s confident the state’s challenges will be upheld -- Reno Gazette Journal

January 27, 2003 -- Nevada puts five Yucca Mountain claims in one case against NRC -- LAS VEGAS (AP) - Nevada sought to bolster its case against the Nuclear Regulatory Commission on Monday by adding elements of its other lawsuits against the federal government's plan to store the nation's nuclear waste at Yucca Mountain. ( More Coverage - Las Vegas Review Journal )

January 09, 2003 -- Nevada to file Yucca challenge -- State charges federal government with infringing on its sovereignty -- WASHINGTON -- Nevada plans to file a long-anticipated lawsuit today charging the federal government with violating state rights under the U.S. Constitution in singling out Yucca Mountain for a nuclear waste repository -- Las Vegas Review Journal
Lawsuit Editorial -- Reno Gazette Journal
Lawsuit Editorial -- Las Vegas Review Journal

January 2, 2003 -- Martin G. Malsch Joins Egan & Associates -- Veteran nuclear regulatory attorney Martin G. Malsch, a former Acting General Counsel and Deputy General Counsel of the Nuclear Regulatory Commission and its first Inspector General, joins McLean, Virginia-based Egan & Associates, PLLC as a partner effective January 1, 2003. The firm will be renamed Egan Fitzpatrick & Malsch upon his admission to the Virginia Bar -- State of Nevada

December 03, 2002 -- NUCLEAR WASTE: State files challenge to Yucca -- Legal brief says DOE acted improperly in selecting site -- President Bush and Energy Secretary Spencer Abraham used flawed and incomplete information this year to recommend Yucca Mountain for entombing the nation's spent nuclear fuel, leaving many questions unanswered about terrorism, public safety and the repository's design, according to court papers Nevada filed Monday in Washington, D.C. -- Las Vegas Review Journal  ( Editorial - Yucca assurances aren’t reassuring -- Reno Gazette Journal )  ( More Coverage - New York Times)

November 09, 2002 -- Federal court to hear three major Yucca Mountain suits together -- At the request of lawyers for the state of Nevada, a federal appeals court has agreed to hear three major Yucca Mountain lawsuits together.  At the same time Thursday, the court agreed to have the same three-judge panel consider all three suits challenging federal plans to build a nuclear waste dump at Yucca Mountain, 100 miles northwest of Las Vegas.  Oral arguments on the cases are scheduled for September 2003 before the U.S. Court of Appeals for the District of Columbia -- Associated Press

September 06, 2002 -- State approves contract to continue Yucca legal fight -- $4 million pact retains Virginia law firm -- CARSON CITY -- The Board of Examiners on Thursday approved a $4 million contract with a Washington, D.C., legal firm to continue Nevada's fight against construction of a high-level nuclear waste dump at Yucca Mountain.  The contract with Egan & Associates of Virginia runs from Oct. 1 to Sept. 30, 2003, and was approved by Gov. Kenny Guinn, Attorney General Frankie Sue Del Papa and Secretary of State Dean Heller despite concerns over the state's financial health - Las Vegas Review Journal

Sept. 04, 2002 -- Groups File Reply Brief in Case Against EPA’s Yucca Mountain Standards, Seek Stronger Radiation Protection Rule WASHINGTON, D.C. – Seven environmental and public interest organizations suing the federal government over its weakening of groundwater standards for the Yucca Mountain nuclear waste dump have asked the court to require the government to strengthen a rule regarding how to measure contamination from the dump. The request, contained in a reply brief filed jointly with the state of Nevada late Tuesday to the United States Court of Appeals for the D.C. Circuit, is part of a legal challenge to the Environmental Protection Agency’s (EPA’s) radiation standards for the proposed storage of nuclear waste at the site.

September 03, 2002 -- -- State to sign new contract for lawyers to fight nuke dump -- CARSON CITY -- State officials are ready to sign a new $4 million contract for high-priced private attorneys who will lead the fight against a nuclear dumpsite at Yucca Mountain.  The state Board of Examiners will be asked Thursday to approve the contract with Egan & Associates, a McLean, Va., law firm that specializes in nuclear issues.

Lawsuits in the Press Archives
      Press Articles from 2002 and 2001

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