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Coosa Riverkeeper, Inc. v. Oxford Water Works

United States District Court, N.D. Alabama, Southern Division

June 16, 2017

COOSA RIVERKEEPER, INC., Plaintiff,
v.
OXFORD WATER WORKS AND SEWER BOARD, Defendants.

          MEMORANDUM OPINION

          JOHN E. OTT CHIEF UNITED STATES MAGISTRATE JUDGE.

         In this action, plaintiff Coosa Riverkeeper, Inc. (“Riverkeeper”) alleges defendant Oxford Water Works and Seward Board (“Oxford”) is in violation of the Clean Water Act (“CWA”) on account of illegal discharges from the Oxford Tull C. Allen Wastewater Treatment Plant (“the Oxford Plant”) into the Choccolocco Creek. (Doc. 1 (“Complaint”)). See 33 U.S.C. §§ 1251-1376. Oxford has moved to dismiss the complaint for lack of jurisdiction and for failure to state a claim. See Fed. R. Civ. P. 12(b)(1) and (12)(b)(6). (Docs. 6 & 7). Riverkeeper has moved to strike one of Oxford's arguments in its reply brief. (Doc. 22). Riverkeeper has also moved to file an amended complaint (doc. 26) and Oxford has moved for a protective order (doc. 18). Upon consideration, the court finds the motion to dismiss is due to be granted in part and denied in part, the motion to strike is due to be denied, the motion amend the complaint is due to be granted, and the motion for a protective order is moot.

         I. BACKGROUND

         Congress enacted the Clean Water Act (“CWA”) “to restore and maintain the chemical, physical, and biological integrity of the Nation's waters.” 33 U.S.C. § 1251. The CWA “establishe[s] a National Pollution Discharge Elimination System [“NPDES”] . . . that is designed to prevent harmful discharges into the Nation's waters.” Nat'l Ass'n of Home Builders v. Defenders of Wildlife, 551 U.S. 644, 650 (2007). “Generally speaking, the NPDES requires dischargers to obtain permits that place limits on the type and quantity of pollutants that can be released into the Nation's waters.” S. Fla. Water Mgmt. Dist. v. Miccosukee Tribe of Indians, 541 U.S. 95, 102 (2004). The NPDES permit “defines, and facilitates compliance with, and enforcement of, a preponderance of a discharger's obligations under the [Act].” EPA v. California ex rel. State Water Res. Control Bd., 426 U.S. 200, 205 (1976). “The Environmental Protection Agency (‘EPA') initially administers the NPDES permitting system for each State, but a State may apply for a transfer of permitting authority to state officials. If authority is transferred, then state officials . . . have the primary responsibility for reviewing and approving NPDES discharge permits, albeit with continuing EPA oversight.” Nat'l Ass'n of Home Builders, 551 U.S. at 650 (citations omitted). The State of Alabama is authorized to administer the NPDES permit system in Alabama and does so through the Alabama Department of Environmental Management (“ADEM”).

         A citizen may bring a civil suit to enforce the provisions of the CWA. 33 U.S.C. § 1365, et seq. The Act provides for a 60-day notice period prior to the institution of a citizen suit to give the violator an opportunity to bring itself into compliance with the CWA. See Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 174-75 (2000) (“... [C]itizens lack statutory standing under § 505(a) to sue for violations that have ceased by the time the complaint is filed.”). The CWA “also bars a citizen from suing if the [Environmental Protection Agency] or State has already commenced, and is ‘diligently prosecuting, ' an enforcement action.” Id. (quoting 33 U.S.C. § 1365(b)(1)(B)).

         Riverkeeper alleges in this action that the Oxford Plant has continuously violated the CWA since 1992. It further asserts that the plant has been subject to multiple violation notices, enforcement actions, and administrative orders. (Complaint at ¶ 1). Despite this history, Riverkeeper alleges, the Oxford Plant continues to violate its NPDES permit. (Id. at ¶ 2). Riverkeeper states that it “repeatedly warned ... ADEM of the high levels of E. coli[1] and chlorine coming from the plant's discharge pipe into the Choccolocco Creek.” (Doc. 13 at 4 (footnote omitted)).

         Riverkeeper sent a 60-day notice to the Oxford Plant, Oxford officials, and State authorities on August 3, 2016, informing them of Riverkeeper's intention to file a citizen's suit to address the multitude of violations at the plant, including unpermitted E. coli, chlorine, and formaldehyde discharges. (Complaint at ¶ 3 and Ex. 1 (Doc. 1 at 24-49)). The State of Alabama brought a civil enforcement action in state court against Oxford on September 30, 2016. (Id. at Ex. 2 & Attachment A (Doc. 1 at 50-70)).

         Riverkeeper filed the present suit on October 24, 2016, alleging in three counts that Oxford has violated the CWA. Specifically, Riverkeeper alleges (1) Oxford discharged E. coli and chlorine in violation of its permit discharge limitations; (2) Oxford failed to properly report its daily violations of its permit; and (3) the Oxford plant is discharging formaldehyde without a permit. (Complaint at 15-20). The claims all concern Oxford's NPDES Permit No. AL0058408 that was issued to the Oxford Waterworks and Sewer Board in 1989. It was reissued by ADEM on August 28, 2013, and expires on August 31, 2018. (Complaint at ¶ 34). Riverkeeper's claims concern wastewater releases from Outfall 0011, a discharge pipe to Choccolocco Creek, which is authorized under Oxford's NPDES permit. (Id. at ¶ 32). Riverkeeper seeks (1) a declaration by this court that Oxford violated the CWA; (2) injunctive relief, compliance verification, outside sampling, modification of the NPDES permit to require sampling, and limits on formaldehyde; (3) an order ensuring enforcement of pretreatment standards for formaldehyde; (4) civil penalties; and (5) attorney's fees. (Id. at 20-21).

         Riverkeeper filed a motion to intervene in the state court action on October 3, 2016. (Doc. 7-1 at 2). That motion has been granted. (See Court Exh. 1 at doc. 35).[2] The “Complaint in Intervention” includes the following claims: (1) self-reported discharge violations (Count I); (2) monitoring violations (Count II); (3) unpermitted discharges (Count III); (4) reporting violations (Count IV); (5) improper sampling procedures (Count V); and (6) maintenance and operation of the plant violations (Count VI). (Id. at 8-28).

         Oxford has moved to dismiss this case premised on three grounds. First, because the State of Alabama is “diligently prosecuting” a state court action for violations of its NDPES permit, Oxford argues this lawsuit is barred under 33 U.S.C. § 1365(b)(1)(B).[3] (Doc. 7 at 2). Second, Oxford argues this court lacks jurisdiction over the case because Riverkeeper's formaldehyde claim concerns past discharges and Riverkeeper cannot show that such discharges are likely to recur in the future. (Id.) Third, Oxford argues that Riverkeeper's formaldehyde claims are barred as a matter of law by the “long-standing ‘permit shield'” defense. (Id.) The court conducted a hearing on the motion to dismiss, and the parties have submitted post-hearing briefs. (Docs. 31 & 33).

         II. MOTION TO DISMISS STANDARD

         The standard of review on a motion to dismiss is typically straight-forward. This case is an exception. Because certain of Oxford's challenges in the motion concern to subject-matter jurisdiction and are presented under Rule 12(b)(1) of the Federal Rules of Civil Procedure, the standard of review may vary.

When presented with a facial attack on the complaint, the court determines whether the complaint has sufficiently alleged subject-matter jurisdiction. Sinaltrainal [v. Coca-Cola Co.], 578 F.3d [1252, ] 1260 [(11th Cir. 2009)]. The court proceeds as if it were evaluating a Rule 12(b)(6) motion; that is, it views the complaint in the light most favorable to the plaintiff and accepts all well-pled facts alleged in the complaint as true. Id.
On the other hand, a factual attack questions “the existence of subject matter jurisdiction in fact, irrespective of the pleadings, and matters outside the pleadings, such as testimony and affidavits, are considered.” Id. (citing Lawrence v. Dunbar, 919 F.2d 1525, 1529 (11th Cir. 1990)). When a court is confronted with a factual attack, the standard of review is considerably different:
[T]he trial court may proceed as it never could under 12(b)(6) or Fed.R.Civ.P. 56. Because at issue in a factual 12(b)(1) motion is the trial court's jurisdiction-it's very power to hear the case-there is substantial authority that the trial court is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case. In short, no presumptive truthfulness attaches to plaintiff's allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims.
Lawrence, 919 F.2d at 1529 (citing Williamson v. Tucker, 645 F.2d 404, 412 (5th Cir.), cert. denied, 454 U.S. 897, 102 S.Ct. 396, 70 L.Ed.2d 212 (1981)).

Black Warrior Riverkeeper, Inc. v. Shannon, LLC, 2:13-CV-00763-RDP, 2014 WL 1246473, *3 (N.D. Ala. Mar. 24, 2014) (J. Proctor).

         Oxford initially moves to dismiss Riverkeeper's claims for lack of subject-matter jurisdiction premised on the allegation that ADEM is currently “diligently prosecuting” an enforcement action concerning Riverkeeper's claims. The first question is whether the “diligent prosecution” bar in the CWA (33 U.S.C. § 1365(b)(1)(B)) is a jurisdictional mandate. If it is jurisdictional, the review standards of Federal Rule of Civil Procedure 12(b)(1) are applicable. If it is not jurisdictional, this aspect of the motion is to be reviewed pursuant to Federal Rule of Civil Procedure 12(b)(6). La. Envtl. Action Network v. City of Baton Rouge, 677 F.3d 737, 745 (5th Cir. 2012).

         To the extent that Oxford challenges the court's subject-matter jurisdiction over the formaldehyde claims because they are “wholly past” and because of the applicability of the “permit shield defense” (id. at 18-21), the foregoing standards apply.

         A. Diligent Prosecution under § 1365(b)(1)(B)

         Whether the diligent prosecution bar is jurisdictional has not been decided by the Eleventh Circuit Court of Appeals. The Fifth Circuit Court of Appeals has extensively considered the matter and concluded that the bar is not jurisdictional. La. Envtl. Action Network, 677 F.3d at 749. After wading through significant Supreme Court precedent, the Fifth Circuit determined the bar is not jurisdictional because “Congress has not clearly mandated that the CWA's ‘diligent prosecution' provision is jurisdictional.” Id. at 747. The court stated:

The language of § 1365(b)(1)(B) does not “clearly state[ ]” that the “diligent prosecution” bar is jurisdictional. Arbaugh [v. Y&H Corp.], 546 U.S. [500, ] 515, 126 S.Ct. 1235');">126 S.Ct. 1235 [(2006)]. This provision “does not speak in jurisdictional terms or refer in any way to the jurisdiction of the district courts.” Zipes v. Trans World Airlines, Inc., 455 U.S. 385');">455 U.S. 385, 394, 102 S.Ct. 1127');">102 S.Ct. 1127, 71 L.Ed.2d 234 (1982). Although it is true that § 1365(b)(1)(B) is phrased in mandatory language, the Supreme Court has “rejected the notion that ‘all mandatory prescriptions, however emphatic, are ... properly typed jurisdictional.'” Henderson [v. Shinseki], [562 U.S. 428');">562 U.S. 428, 439, ] 131 S.Ct. at 1205 [(2011)] (alteration in original) (citation omitted). Thus, the language of § 1365(b)(1)(B) does not provide a clear indication that Congress intended the provision to be jurisdictional.
The placement of the “diligent prosecution” provision within the CWA also does not indicate that Congress “wanted [the] provision to be treated as having jurisdictional attributes.” Id. at 1205. Congress placed § 1365(b)(1)(B) in the “Notice” section of the CWA citizen suit provision. See Id. (“[T]he title of a statute or section can aid in resolving an ambiguity in the legislation's text.”) (alteration in original) (citation and internal quotation marks omitted). The “Notice” section also includes the requirement that a citizen provide notice of the alleged violation to the alleged violator, the State, and the EPA sixty-days prior to filing a citizen suit. See 33 U.S.C. § 1365(b)(1)(A). The sixty-day notice provision is a typical “claim-processing rule.” See Henderson, 131 S.Ct. at 1203; Zipes [v. Trans World Airlines, Inc.], 455 U.S. [385, ] 398, 102 S.Ct. 1127');">102 S.Ct. 1127 [(1982)] (holding that Title VII's requirement that claimants timely file a discrimination charge with the EEOC before filing an action in federal court is nonjurisdictional). The placement of the “diligent prosecution” bar in the “Notice” section, alongside a typical claim-processing rule, suggests that Congress intended the “diligent prosecution” bar to be a claim-processing rule. See Henderson, 131 S.Ct. at 1205 (finding that the placement of a provision in a subchapter entitled “Procedure” indicated that “Congress regarded the 120-day limit as a claim-processing rule”).
Furthermore, the “diligent prosecution” provision is “located in a provision ‘separate' from those granting federal courts subject-matter jurisdiction over ... [the] claims.” Reed Elsevier, Inc. [v. Muchnick], [559 U.S. 154');">559 U.S. 154, ] 130 S.Ct. at 1245-46 [(2010)] (citation omitted). The district courts have subject matter jurisdiction over CWA citizen suits pursuant to the general federal question jurisdiction statute, 28 U.S.C. § 1331, [ ] and the CWA's jurisdictional provision, 33 U.S.C. § 1365(a).[ ] Neither of these provisions specifies any threshold requirement for subject matter jurisdiction, let alone ties its jurisdictional grant to the issue of diligent prosecution. See Arbaugh, 546 U.S. at 515, 126 S.Ct. 1235');">126 S.Ct. 1235 (“But neither § 1331, nor Title VII's jurisdictional provision, 42 U.S.C. § 2000e-5(f)(3) ... specifies any threshold ingredient akin to 28 U.S.C. § 1332's monetary floor.”); see also Reed Elsevier, Inc., 130 S.Ct. at 1246 (“[N]either § 1331, ... nor § 1338(a), which is specific to copyright claims, conditions its jurisdictional grant on whether copyright holders have registered their works before suing for infringement.”). Instead, the “diligent prosecution” bar is located in a separate provision of the CWA that does not pertain or refer to jurisdiction. See Arbaugh, 546 U.S. at 515-16, 126 S.Ct. 1235');">126 S.Ct. 1235 (holding that Title VII's employee-numerosity requirement is nonjurisdictional because it is located in a provision separate from those granting courts subject matter jurisdiction and the provision does not speak in jurisdictional terms); see also Reed Elsevier, Inc., 130 S.Ct. at 1245-46 (holding that the Copyright Act's registration requirement is not jurisdictional primarily because it is located in a provision separate from those granting the courts subject matter jurisdiction and the provision does not “clearly state[ ]” that the requirement is jurisdictional). Thus, § 1365(b)(1)(B)'s location in a provision separate from the jurisdiction-granting provisions indicates that Congress did not intend the provision to be jurisdictional.
The “historical treatment” factor also does not indicate that the provision ranks as jurisdictional. Reed Elsevier, Inc., 130 S.Ct. at 1246. No Supreme Court cases have determined that the “diligent prosecution” provision of the CWA, or any similar provision in other environmental statutes, is jurisdictional. “There is thus no ‘long line of [Supreme] Court [ ] decisions left undisturbed by Congress' on which to rely.” Gonzalez, 132 S.Ct. at 648 n. 3 (citation omitted); see Henderson, 131 S.Ct. at 1203 (“When a long line of [Supreme] Court[ ] decisions left undisturbed by Congress has treated a similar requirement as jurisdictional, we will presume that Congress intended to follow that course.”) (citations and internal quotation marks omitted).
Based on the foregoing analysis, we conclude that Congress has not provided a clear statement that the “diligent prosecution” bar is jurisdictional. Absent such a clear statement from Congress, we hold that the “diligent prosecution” bar is a nonjurisdictional limitation on citizen suits. See Arbaugh, 546 U.S. at 516, 126 S.Ct. 1235 (“[W]hen Congress does not rank a statutory limitation on coverage as jurisdictional, courts should treat the restriction as nonjurisdictional in character.”).

Id. at 748-49 (footnotes omitted). The Fifth Circuit also found support for its decision in

the Seventh Circuit's recent decision in Adkins v. VIM Recycling, Inc., 644 F.3d 483 (7th Cir. 2011). There, the court held that the “diligent prosecution” provision of the Resource Conservation and Recovery Act (“RCRA”)-which is virtually identical to the “diligent prosecution” provision of the CWA[ ]-is not jurisdictional. Id. at 492. Applying the guiding principles of the recent Supreme Court cases, the Seventh Circuit concluded that, because “RCRA's limits on citizen suits appear in separate provisions that do not ‘speak in jurisdictional terms, ' ” the RCRA “diligent prosecution” bar is a nonjurisdictional claim-processing rule. Id. (citations omitted).

Id. at 749 (footnote omitted).

         This court finds the reasoning of the Fifth Circuit in La. Envtl. Action Network to be persuasive. See also Black Warrior Riverkeeper, Inc. v. Southeastern Cheese Corp., 2017 WL 359194 (S.D. Ala. Jan. 24, 2017) (J. DuBose) (following the reasoning of La. Envtl. Action Network and similar cases). Accordingly, this court concludes that because the language of § 1365(b)(1)(B) does not provide clear indication that Congress intended the provision to be jurisdictional, it will evaluate Oxford's “diligent prosecution” defense under Rule 12(b)(6).[4]

         B. Rule 12(b)(6)

         On a motion to dismiss premised on a failure to state a claim under Rule 12(b)(6), the court assumes the factual allegations in the complaint are true and gives the plaintiff the benefit of all reasonable factual inferences. Hazewood v. Foundation Financial Group, LLC, 551 F.3d 1223, 1224 (11th Cir. 2008) (per curiam). Rule 12(b)(6) is read in light of Federal Rule of Civil Procedure 8(a)(2), which requires that a complaint provide only “a short and plain statement of the claim showing that the pleader is entitled to relief, ” in order to “give the defendant fair notice of what the… claim is and the grounds upon which it rests.” See Conley v. Gibson, 355 U.S. 41, 47 (1957). However, “a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusion.... Factual allegations must be enough to raise a right to relief above the speculative level....” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Thus, a “complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face, '” that is, its “factual content… allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citations omitted).

         III. ANALYSIS OF THE MERITS

         A. Diligent Prosecution

         Oxford argues that Riverkeeper's claims are barred by the State of Alabama's diligent prosecution of it (Oxford) in state court. See 33 U.S.C. § 1365(b)(1)(B). As noted above, section 1365(b) provides, in relevant part, that “(b) no [citizen suit under § 1365(a)(1)] may be commenced …. (B) if [a state or federal authority] has commenced and is diligently prosecuting a civil or criminal action in a court … to require compliance with the standard, limitation, or order.” Id. (emphasis added). While not jurisdictional, the diligent prosecution bar is a “mandatory, not optional, condition precedent for suit.” Hallstrom v. Tillamook Cnty., 493 U.S. 20, 26 (1989).

The plaintiff in a citizens suit bears the burden of proving the state agency's prosecution was not diligent. Friends of the Earth, Inc. v. Laidlaw Envtl. Serv. (TOC), 890 F.Supp. 470, 486-87 (D.S.C. 1995). The burden is heavy, because the enforcement agency's diligence is presumed. Id. at 487. “[T]he state [enforcement] agency must be given great deference to proceed in a manner it considers in the best interests of all parties involved.” Arkansas Wildlife v. ICI Americas, Inc., 842 F.Supp. 1140, 1147 (E.D. Ark. 1993), aff'd, 29 F.3d 376 (8th Cir. 1994), cert. denied, 513 U.S. 1147, 115 S.Ct. 1094, 130 L.Ed.2d 1062 (1995). The CWA's thrust is to “provide society with a remedy against polluters in the interest of protecting the environment.” Connecticut Coastal [Fisherman's Ass'n v. Remington Arms Co., Inc.], 777 F.Supp. [173, ] 184 [(D. Conn. 1991)] (emphasis in original).

Williams Pipe Line Co. v. Bayer Corp., 964 F.Supp. 1300, 1324 (S.D. Iowa 1997); see also Karr v. Hefner, 475 F.3d 1192, 1198 (10th Cir. 2007) (stating that “[c]itizen-plaintiffs must meet a high standard to demonstrate that it has failed to prosecute a violation diligently”).

         A two-prong test exists to determine whether a state agency is “diligently prosecuting” an action. Ohio Valley Envrtl. Coal., Inc. v. Maple Coal Co., 808 F.Supp.2d 868, 883 (S.D. W.Va. 2011); Conn. Fund for Env't v. Contract Plating Co., 631 F.Supp. 1291, 1293 (D. Conn. 1986). First, the court must determine whether the agency aims to ensure compliance with the same standard, order, or limitation as the citizen suit. Citizens suits are barred only if they aim to ensure compliance with the same standard, limitation, or order of the CWA for which the State has brought a civil enforcement action. Conn. Fund for Env't, 631 F.Supp. at 1293; Cal. Sportfishing Protection Alliance v. Chico Scrap Metal, Inc., 728 F.3d 868, 874 (9th Cir. 2013); see also Frillage v. Village of Anna, 924 F.Supp. 821 (S.D. Ohio 1996) (noting that the State must aim to require compliance with the same standards regarding each claim of the plaintiff); but see Karr, 475 F.3d 1192 (holding that the EPA had addressed each of the three types of alleged CWA violations and in some respects accomplished more than the plaintiffs sought). It is insufficient that a State seeks to require compliance with a similar State or Federal statute; the issue is whether the state action “is capable of requiring compliance with the [CWA] and is in good faith calculated to do so.” See Cal. Sportfishing, 728 F.3d at 875. Additionally, the diligent prosecution bar does not apply “if the agency suit and citizen suit seek to enforce different standards and limitations of the same NPDES permit.” Yadkin Riverkeeper, Inc. v. Duke Energy Carolinas, LLC, 141 F.Supp.3d 428, 440 (M.D. N.C. 2015). The court also stated:

The comparison need not reveal identical claims for the actions to cover the same standards and limitations. Citizen suits seeking to enforce the same standards and limitations as an agency suit have been barred even when they alleged violations occurring at more locations and at different times than those alleged in the agency suit.

Id. In making that decision, “the court may rely primarily on a comparison of the pleadings filed in the two actions.” Id. (quoting Conn. Fund, 631 F.Supp. At 1293).

         Second, if the answer to the first prong is in the affirmative, the court must determine whether the prior pending action was being “diligently prosecuted” by the state at the time that the citizens' suit was filed. Conn. Fund, 631 F.Supp. at 1293; Yadkin, 141 F.Supp.3d at 441.

“A CWA enforcement prosecution will ordinarily be considered ‘diligent' if the judicial action ‘is capable of requiring compliance with the Act and is in good faith calculated to do so.' ” Piney Run, 523 F.3d at 459 (quoting Friends of Milwaukee's Rivers v. Milwaukee Metro. Sewerage Dist., 382 F.3d 743, 760 (7th Cir. 2004)). “[D]iligence is presumed.” Id. To overcome this presumption, the citizen-plaintiff can demonstrate “a pattern of conduct in [the state's] prosecution of the defendant that could be considered dilatory, collusive or otherwise in bad faith.” Connecticut Fund, 631 F.Supp. at 1293. It is insufficient to merely show “that the agency's prosecution strategy is less aggressive than [the citizen-plaintiff] would like, ” Piney Run, 523 F.3d at 459, as the diligent prosecution bar “does not require government prosecution to be far-reaching or zealous, ” id. (quoting Karr, 475 F.3d at 1197). The standard for citizen-plaintiffs to overcome the presumption of diligence is high. Id. (quoting Karr, 475 F.3d at 1198). The deference courts owe to the agency prosecution, however, is not unlimited. Ohio Valley Envtl. Coal., Inc. v. Maple Coal Co., 808 F.Supp.2d 868, 884 (S.D.W.Va. 2011). “[A] diligent prosecution analysis requires more than mere acceptance at face value of the potentially self-serving statements of a state agency and the violator.” Id. (alteration in original) (quoting Friends of Milwaukee's Rivers, 382 F.3d at 760). It requires that the agency “try, diligently, ” to achieve compliance. Id. (quoting Friends of Milwaukee's Rivers, 382 F.3d at 759).

Id., 141 F.Supp.3d at 441.

         1. Seeking to ...


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