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Tuesday, July 31, 2012

Federal Programs Related to Indoor Pollution by Chemicals


Linda-Jo Schierow
Specialist in Environmental Policy

David M. Bearden
Specialist in Environmental Policy

“Toxic” drywall, formaldehyde emissions, mold, asbestos, lead-based paint, radon, PCBs in caulk, and many other indoor pollution problems have concerned federal policy makers and regulators during the last 30 years. Some problems have been resolved, others remain of concern, and new indoor pollution problems continually emerge. This report describes common indoor pollutants and health effects that have been linked to indoor pollution, federal statutes that have been used to address indoor pollution, key issues, and some general policy options for Congress.

Indoor pollutants are chemicals that are potentially harmful to people and found in the habitable portions of buildings, including homes, schools, offices, factories, and other public gathering places. Some indoor pollutants, like lead or ozone, are also outdoor pollutants. Others, like formaldehyde or asbestos, are primarily indoor pollutants. Indoor pollutants may be natural (for example, carbon monoxide or radon) or synthetic (polychlorinated biphenyls [PCBs]), and may originate indoors or outdoors. They may be deliberately produced, naturally occurring, or inadvertent byproducts of human activities. For example, they may arise indoors as uncontrolled emissions from building materials, paints, or furnishings, from evaporation following the use of cleaning supplies or pesticides, or as a combustion byproduct as a result of heating or cooking. Some pollution that originates outdoors infiltrates through porous basements (e.g., radon) or is inadvertently brought into indoor spaces, perhaps through heating or air conditioning systems or in contaminated drinking water. Often pollutants accumulate indoors as a result of deliberate improvements to increase energy efficiency, for example by reducing building permeability to air.

The health risks posed by indoor pollutants have concerned scientists for many years. Because people spend a high percentage of their time indoors, and concentrations of pollutants often are higher in indoor air than outdoor air, the risks due to exposure can be higher than many other environmental risks. Moreover, a 2011 report by the Institute of Medicine warns that many indoor environmental quality problems might get worse if adaptations to climate change are made without better information and programs aimed at pollution prevention.

No federal agency has broad authority concerning pollution indoors. Nonetheless, numerous federal agencies have some authority to control particular indoor pollutants or sources of pollution or the quality of indoor environments in a particular class of structures. For example, the U.S. Environmental Protection Agency (EPA) has authority under the Toxic Substances Control Act (TSCA) to study and issue safety guidelines for radon and lead-based paint hazards. The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) authorizes EPA also to respond to releases of hazardous substances into the outdoor environment which may migrate indoors. The Consumer Product Safety Commission (CPSC) has authority to set emission limits for, and to restrict uses of, certain chemicals in consumer products. The Department of Housing and Urban Development (HUD) and the General Services Administration (GSA) regulate some indoor pollutants in federal buildings. These and other agencies have conducted research to examine the risks of various indoor pollutants.

Concerns about coordination of federal efforts to address indoor pollution have been expressed by the general public, the U.S. Government Accountability Office (GAO), and the U.S. Congress. But any federal response to indoor pollution is complicated by the need to coordinate with local and state governments as well to address potentially overlapping jurisdictions and resources. Options for Congress range from maintenance or improvement of the status quo to reduction or expansion of federal involvement in research, information dissemination, or regulation.


Date of Report: July 23, 2012
Number of Pages: 42
Order Number: R42620
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Monday, July 30, 2012

Climate Change and Existing Law: A Survey of Legal Issues Past, Present, and Future


Robert Meltz Legislative Attorney

This report surveys existing law for legal issues that have arisen, or may arise in the future, on account of climate change and government responses thereto.

At the threshold of many climate-change-related lawsuits are two barriers—whether the plaintiff has standing to sue and whether the claim being made presents a political question. Both barriers have forced courts to apply amorphous standards in a new and complex context.

Efforts to mitigate climate change—that is, reduce greenhouse gas (GHG) emissions—have spawned a host of legal issues. The Supreme Court resolved a big one in 2007—the Clean Air Act (CAA), it said, does authorize EPA to regulate GHG emissions. Quite recently, a host of issues raised by EPA’s efforts to carry out that authority were resolved in the agency’s favor by the D.C. Circuit. Another issue is whether EPA’s “endangerment finding” for GHG emissions from new motor vehicles will compel EPA to move against GHG emissions under other CAA authorities. Still other mitigation issues are (1) the role of the Endangered Species Act in addressing climate change; (2) how climate change must be considered under the National Environmental Policy Act; (3) liability and other questions raised by carbon capture and sequestration; (4) constitutional constraints on land use regulation and state actions against climate change; and (5) whether the public trust doctrine applies to the atmosphere.

Liability for harms allegedly caused by climate change has raised another crop of legal issues. The Supreme Court decision that the CAA bars federal judges from imposing their own limits on GHG emissions from power plants has led observers to ask: Can plaintiffs alleging climate change harms still seek monetary damages, and are state law claims still allowed? The one ruling so far says no to both. Questions of insurance policy coverage are also likely to be litigated. Finally, the applicability of international law principles to climate change has yet to be resolved.

Water shortages thought to be induced by climate change likely will lead to litigation over the nature of water rights. Shortages have already prompted several lawsuits over whether cutbacks in water delivered from federal projects effect Fifth Amendment takings or breaches of contract.

Sea level rise and extreme precipitation linked to climate change raise questions as to (1) the effect of sea level rise on the beachfront owner’s property line; (2) whether public beach access easements migrate with the landward movement of beaches; (3) design and operation of federal levees; and (4) government failure to take preventive measures against climate change harms.

Other adaptation responses to climate change raising legal issues, often property rights related, are beach armoring (seawalls, bulkheads, etc.), beach renourishment, and “retreat” measures. Retreat measures seek to move existing development away from areas likely to be affected by floods and sea level rise, and to discourage new development there.

Natural disasters to which climate change contributes may prompt questions as to whether response actions taken in an emergency are subject to relaxed requirements and, similarly, as to the rebuilding of structures destroyed by such disasters just as they were before.

Finally, immigration and refugee law appear not to cover persons forced to relocate because of climate change impacts such as drought or sea level rise.


Date of Report: July 2, 2012
Number of Pages: 33
Order Number: R42613
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Oil Sands and the Keystone XL Pipeline: Background and Selected Environmental Issues


Jonathan L. Ramseur, Coordinator
Specialist in Environmental Policy

Richard K. Lattanzio
Analyst in Environmental Policy

Linda Luther
Analyst in Environmental Policy

Paul W. Parfomak
Specialist in Energy and Infrastructure Policy

Nicole T. Carter
Specialist in Natural Resources Policy

If constructed, the Keystone XL pipeline would transport crude oil (e.g., synthetic crude oil or diluted bitumen) derived from oil sands in Alberta, Canada to destinations in the United States. Because the pipeline crosses an international border, it requires a Presidential Permit that is issued by the Department of State (DOS). The permit decision rests on a “national interest” determination, a term not defined in the authorizing Executive Orders. DOS states that it has “significant discretion” in the factors it examines in this determination. Key events related to the Presidential Permit include:

  • September 19, 2008: TransCanada submitted an application for a Presidential Permit for its Keystone XL pipeline. 
  • November 10, 2011: DOS announced it needed additional information concerning alternative pipeline routes through the Nebraska Sandhills. 
  • January 18, 2012: In response to a legislative mandate in P.L. 112-78, DOS, with the President’s consent, announced its denial of the Keystone XL permit. 
  • May 4, 2012: TransCanada submitted a revised permit application to DOS. 
Although some groups have opposed previous oil pipeline permits, opposition to the Keystone XL proposal has generated substantially more interest among environmental stakeholders. Pipeline opponents are not a monolithic group: some raise concerns about potential local impacts, such as oil spills or extraction impacts in Canada; some argue the pipeline would have national energy and climate change policy implications.

A number of key studies indicate that oil sands crude has a higher greenhouse gas (GHG) emissions intensity than many other forms of crude oil. The primary reason for the higher intensity: oil sands are heavy oils with a high viscosity, requiring more energy- and resourceintensive activities to extract. However, analytical results vary due to different modeling assumptions. Moreover, industry stakeholders point out that many analyses indicate that GHG emissions from oil sands crude oil are comparable to other heavy crudes, some of which are produced and/or consumed in the United States.

Because of oil sands’ increased emissions intensity, further oil sands development runs counter to some stakeholders’ energy and climate change policy objectives. These objectives may vary based on differing views concerning the severity of climate change risk and/or the need for significant mitigation efforts. Opponents worry that oil sands crude oil will account for a greater percentage of U.S. oil consumption over time, making GHG emissions reduction more difficult. On the other hand, neither issuance of a Presidential Permit nor increased oil sands development would preclude the implementation of energy/climate policies that would support less carbon intensive fuels or energy efficiency improvements.

A primary local/regional environmental concern of any oil pipeline is the risk of a spill. Environmental groups have argued that both the pipeline’s operating parameters and the material being transported imposes an increased risk of spill. Industry stakeholders have been critical of these assertions. To examine the concerns, Congress included provisions in P.L. 112-90 requiring a review of current oil pipeline regulations and a risk analysis of oil sands crude.


Date of Report: July 16, 2012
Number of Pages: 54
Order Number: R42611
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Friday, July 27, 2012

Air Quality Issues and Animal Agriculture: A Primer


Claudia Copeland
Specialist in Resources and Environmental Policy

From an environmental quality standpoint, much of the public and policy interest in animal agriculture has focused on impacts on water resources, because animal waste, if not properly managed, can harm water quality through surface runoff, direct discharges, spills, and leaching into soil and groundwater. A more recent issue is the contribution of air emissions from animal feeding operations (AFOs), enterprises where animals are raised in confinement. This report provides background on the latter issue.

AFOs can affect air quality through emissions of gases such as ammonia and hydrogen sulfide, particulate matter, volatile organic compounds, hazardous air pollutants, and odor. These pollutants and compounds have a number of environmental and human health effects.

Agricultural operations have been treated differently from other businesses under numerous federal and state laws. Some environmental laws specifically exempt agriculture from regulatory provisions, and some are designed so that farms are not subject to most, if not all, of the regulatory impact. The primary regulatory focus on environmental impacts has occurred under the Clean Water Act. In addition, AFOs that emit large quantities of air pollutants may be subject to Clean Air Act regulation. Some livestock operations also may be regulated under the release reporting requirements of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) and the Emergency Planning and Community Right-to-Know Act (EPCRA). Questions about the applicability of these laws to livestock and poultry operations have been controversial and have drawn congressional attention. Legislation in the 112th Congress would exclude “manure” from the definition of hazardous substance under CERCLA and remove reporting liability under CERCLA and EPCRA (H.R. 2997 and S. 1729). Agriculture’s role as both a source of and a “sink” for greenhouse gases also has been of interest in connection with addressing the global challenge of climate change.

Enforcement of environmental laws requires accurate measurement of emissions to determine whether regulated pollutants are emitted in quantities that exceed specified thresholds. Two reports by the National Research Council evaluated the current state of the science and approaches for estimating AFO air emissions to guide future management and regulatory efforts. In an effort to collect scientifically credible data on air emissions, in January 2005 the Environmental Protection Agency (EPA) announced a plan negotiated with segments of the animal agriculture industry. Called the Air Compliance Agreement, it is intended to produce air quality monitoring data on AFO emissions, while at the same time protect participants through a “safe harbor” from liability under certain provisions of federal environmental laws. Issues related to this agreement, which has been controversial among environmental advocates, state and local air quality officials, and some industry groups, are discussed separately in CRS Report RL32947, Air Quality Issues and Animal Agriculture: EPA’s Air Compliance Agreement.

The 112th Congress has shown considerable interest in many of the issues discussed in this report and, more broadly, in the impact of federal regulation on the agriculture sector.



Date of Report: July 20, 2012
Number of Pages: 35
Order Number: RL32948
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Air Quality Issues and Animal Agriculture: EPA’s Air Compliance Agreement


Claudia Copeland
Specialist in Resources and Environmental Policy

From an environmental quality standpoint, much of the interest in animal agriculture has focused on impacts on water resources, because animal waste, if not properly managed, can harm water quality through surface runoff, direct discharges, spills, and leaching into soil and groundwater. A more recent issue is the contribution of emissions from animal feeding operations (AFO), enterprises where animals are raised in confinement, to air pollution. AFOs can affect air quality through emissions of gases such as ammonia and hydrogen sulfide, particulate matter, volatile organic compounds, hazardous air pollutants, and odor. These pollutants and compounds have a number of environmental and human health effects.

Agricultural operations that emit large quantities of air pollutants may be subject to Clean Air Act (CAA) regulation and permits. Further, some livestock operations also may be regulated under the release reporting requirements of the Comprehensive Environmental Response, Compensation, and Liability Act (Superfund, or CERCLA) and the Emergency Planning and Community Right-to-Know Act (EPCRA). Questions about the applicability of these laws to livestock and poultry operations have been controversial and have drawn congressional attention.

Enforcement of these federal environmental laws requires accurate measurement of emissions to determine whether regulated pollutants are emitted in quantities that exceed specified thresholds. Yet experts believe that existing data provide a poor basis for regulating and managing air emissions from AFOs. In an effort to collect scientifically credible data, in 2005 the Environmental Protection Agency (EPA) announced a plan that had been negotiated with segments of the animal agriculture industry. Called the Air Compliance Agreement, it is intended to produce air quality monitoring data on AFO emissions during a two-year study, while at the same time protecting participants through a “safe harbor” from liability under certain provisions of federal environmental laws. Many producer groups supported the agreement as essential to gathering valid data that are needed for decision making. However, critics, including environmentalists and state and local air quality officials, said that the agreement would grant all participating producers a sweeping liability shield for violations of environmental laws, yet because fewer than 30 farms would be monitored, it was too limited in scope to yield scientifically credible estimates of AFO emissions. Some industry groups had their own questions and reservations. In August 2006, EPA approved agreements with 2,568 AFOs, representing nearly 14,000 farms. Monitoring of 25 farms in nine states occurred from mid-2007 to the end of 2009. In January 2011, EPA released the data from the individual monitored sites and began developing improved emissions estimating methodologies (EEMs) based on the data. Draft EEMs for some animal sectors were released for review and public comment in February 2012 and have been widely critiqued, including by EPA’s science advisers.

Separately from the monitoring study, in December 2008, EPA issued a rule to exempt animal waste emissions to the air from most CERCLA and EPCRA reporting requirements. Legal challenges to the rule followed. In October 2010, a federal court approved the government’s request to remand the rule to EPA for reconsideration and possible modification.

This report reviews key issues associated with the Air Compliance Agreement. Background information on air emissions from poultry and livestock operations, relevant federal environmental laws and regulations, congressional interest, state activities, and research needs are discussed in CRS Report RL32948, Air Quality Issues and Animal Agriculture: A Primer, by Claudia Copeland.



Date of Report: July 20, 2012
Number of Pages: 18
Order Number: RL32947
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Wednesday, July 25, 2012

Hydraulic Fracturing and Safe Drinking Water Act Issues


Mary Tiemann
Specialist in Environmental Policy

Adam Vann
Legislative Attorney

Hydraulic fracturing is a technique developed initially to stimulate oil production from wells in declining oil reservoirs. With technological advances, hydraulic fracturing is now widely used to initiate oil and gas production in unconventional (low-permeability) oil and gas formations that were previously inaccessible. This process now is used in more than 90% of new oil and gas wells. Hydraulic fracturing is done after a well is drilled and involves injecting large volumes of water, sand (or other propping agent), and specialized chemicals under enough pressure to fracture the formations holding the oil or gas. The sand or other proppant holds the fractures open to allow the oil or gas to flow freely out of the formation and into a production well.

Its application, along with horizontal drilling, for production of natural gas (methane) from tight gas sands, unconventional shale formations, and coal beds, has resulted in the marked expansion of estimated U.S. natural gas reserves in recent years. Similarly, hydraulic fracturing is enabling the development of tight oil resources, such as the Bakken and Eagle Ford formations. However, the rapidly increasing and geographically expanding use of fracturing, has raised concerns over its potential impacts on groundwater and drinking water supplies, and has led to calls for greater state and/or federal oversight of this activity.

Historically, the Environmental Protection Agency (EPA) had not regulated the underground injection of fluids for hydraulic fracturing of oil or gas production wells. In 1997, the U.S. Court of Appeals for the 11th Circuit ruled that fracturing for coalbed methane (CBM) production in Alabama constituted underground injection and must be regulated under the Safe Drinking Water Act (SDWA). This ruling led EPA to study the risk that hydraulic fracturing for CBM production might pose to drinking water sources. In 2004, EPA reported that the risk was small, except where diesel was used, and that national regulation was not needed. However, to address regulatory uncertainty the ruling created, the Energy Policy Act of 2005 (EPAct 2005) revised the SDWA term “underground injection” to explicitly exclude the injection of fluids and propping agents (except diesel fuel) used for hydraulic fracturing purposes. Consequently, EPA currently lacks authority under the SDWA to regulate hydraulic fracturing, except where diesel fuel is used. (In May, EPA issued draft permitting guidance for use of diesel during fracturing.) As the use of this process has grown, some in Congress would like to revisit this statutory exclusion.

Several relevant bills are pending. H.R. 1084 and S. 587 would repeal the exemption for hydraulic fracturing operations established in EPAct 2005, and amend the term “underground injection” to include explicitly the injection of fluids used in hydraulic fracturing operations, thus authorizing EPA to regulate this process under the SDWA. The bills also would require disclosure of the chemicals used in the fracturing process. S. 2248 and H.R. 4322 would specify that a state has sole authority to regulate hydraulic fracturing on federal lands within state boundaries. EPA’s FY2010 appropriations act urged the agency to study the relationship between hydraulic fracturing and drinking water quality. Interim and final reports are expected in 2012 and 2014, respectively. Meanwhile, numerous states are reviewing or have revised their oil and gas rules to address the increased use of high-volume hydraulic fracturing.

This report reviews past and proposed treatment of hydraulic fracturing under the SDWA, the principal federal statute for regulating the underground injection of fluids to protect groundwater sources of drinking water. It reviews current SDWA provisions for regulating underground injection activities, and discusses some possible implications of, and issues associated with, enactment of legislation authorizing EPA to regulate hydraulic fracturing under this statute.


Date of Report: July 12, 2012
Number of Pages: 42
Order Number: R41760
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Water Quality Issues in the 112th Congress: Oversight and Implementation


Claudia Copeland
Specialist in Resources and Environmental Policy

Much progress has been made in achieving the ambitious goals that Congress established nearly 40 years ago in the Clean Water Act (CWA) to restore and maintain the chemical, physical, and biological integrity of the nation’s waters. However, long-standing problems persist, and new problems have emerged. Water quality problems are diverse, ranging from pollution runoff from farms and ranches, city streets, and other diffuse or “nonpoint” sources, to toxic substances discharged from factories and sewage treatment plants.

There is little agreement among stakeholders about what solutions are needed and whether new legislation is required to address the nation’s remaining water pollution problems. For some time, efforts to comprehensively amend the CWA have stalled as interests have debated whether and exactly how to change the law. Congress has instead focused legislative attention on enacting narrow bills to extend or modify selected CWA programs, but not any comprehensive proposals.

For several years, the most prominent legislative water quality issue has concerned financial assistance for municipal wastewater treatment projects. House and Senate committees have approved bills on several occasions, but, for various reasons, no legislation has been enacted. At issue has been the role of the federal government in assisting states and cities in meeting needs to rebuild, repair, and upgrade wastewater treatment plants, especially in light of capital costs that are projected to be as much as $390 billion. In the 111th Congress, the House passed H.R. 1262 to reauthorize the CWA’s State Revolving Fund (SRF) program to finance wastewater infrastructure, and a companion bill, S. 1005, was approved by the Senate Environment and Public Works Committee. No legislation was enacted, and reauthorization legislation has been introduced again in the 112th Congress (H.R. 3145).

Programs that regulate activities in wetlands also have been of interest, especially CWA Section 404, which has been criticized by landowners for intruding on private land-use decisions and imposing excessive economic burdens. Environmentalists view this regulatory program as essential for maintaining the health of wetland ecosystems, and they are concerned about court rulings that have narrowed regulatory protection of wetlands and about related administrative actions. Many stakeholders desire clarification of the act’s regulatory jurisdiction, but they differ on what solutions are appropriate. In the 111th Congress, the Senate Environment and Public Works Committee approved a bill that sought to clarify but not expand the CWA’s geographic scope (S. 787). Because some stakeholders believe that the bills would expand federal jurisdiction—not simply clarify it—the bills were controversial, and no legislation was enacted. In contrast to approaches reflected in earlier proposals, bills in the 112th Congress would narrow the scope of the act’s jurisdiction (S. 2122/H.R. 4304).

These issues have drawn interest in the 112th Congress, as well. In addition, a number of other CWA issues have been the subject of congressional oversight and legislation, with some legislators highly critical of recent regulatory initiatives and others more supportive of EPA’s actions. Among the topics of interest are environmental and economic impacts of Chesapeake Bay restoration efforts, federal promulgation of water quality standards in Florida, regulation of surface coal mining activities in Appalachia, and other CWA regulatory actions. Congressional interest in several of these issues has been reflected in debate over policy provisions of legislation providing appropriations for EPA in FY2012 (P.L. 112-74) and FY2013 (H.R. 6091).


Date of Report: July 12, 2012
Number of Pages: 27
Order Number: R41594
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Friday, July 13, 2012

Federal Pollution Control Laws: How Are They Enforced?


Robert Esworthy
Specialist in Environmental Policy

As a result of enforcement actions and settlements for noncompliance with federal pollution control requirements, the U.S. Environmental Protection Agency (EPA) reported that, for FY2011, regulated entities committed to invest an estimated $19.0 billion for judicially mandated pollution controls and cleanup, and for implementing mutually agreed upon (supplemental) environmentally beneficial projects. EPA estimates that these efforts achieved commitments to reduce, treat, or eliminate 1.8 billion pounds of pollutants in the environment, primarily from air and water. EPA also assessed more than $152.0 million in civil penalties (administrative and judicial) and $35.0 million in criminal fines and restitution during FY2011. Nevertheless, noncompliance with federal pollution control laws remains a continuing concern. The overall effectiveness of the enforcement organizational framework, the balance between state autonomy and federal oversight, and the adequacy of funding are long-standing congressional concerns.

This report provides an overview of the statutory framework, key players, infrastructure, resources, tools, and operations associated with enforcement and compliance of the major pollution control laws and regulations administered by EPA. It also outlines the roles of federal (including regional offices) and state regulators, as well as the regulated community. Understanding the many facets of how all federal pollution control laws are enforced, and the responsible parties involved, can be challenging. Enforcement of the considerable body of these laws involves a complex framework and organizational setting.

The array of enforcement/compliance tools employed to achieve and maintain compliance includes monitoring, investigation, administrative and judicial (civil and criminal) actions and penalties, and compliance assistance and incentive approaches. Most compliance violations are resolved administratively by the states and EPA. EPA concluded 1,735 final administrative penalty orders in FY2010. Civil judicial actions, which may be filed by states or EPA, are the next most frequent enforcement action. EPA may refer civil cases to the U.S. Department of Justice (DOJ), referring 222 civil cases in FY2011. The U.S. Attorney General’s Office and DOJ’s Environmental Crimes Section, or the State Attorneys General, in coordination with EPA criminal investigators and general counsel, may prosecute criminal violations against individuals or entities who knowingly disregard environmental laws or are criminally negligent.

Federal appropriations for environmental enforcement and compliance activities have remained relatively constant in recent fiscal years. Some contend that overall funding for enforcement activities has not kept pace with inflation or with the increasingly complex federal pollution control requirements. Congress appropriated $583.4 million for enforcement activities for FY2012 a decrease below the $593.5 million enacted for FY2011, and the $596.7 million enacted for FY2010, but an increase above the $568.9 million enacted for FY2009 and $553.5 million for FY2008. The President’s FY2013 budget request included $615.9 million for EPA enforcement activities. To date, Congress has not completed action on the FY2013 appropriations for EPA.



Date of Report: July 7, 2012
Number of Pages: 53
Order Number: RL34384
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