Author Archive

BUPA fined £3m for Legionnaires’ death

BUPA Care Homes (BNH) Ltd has been fined after an elderly resident of the Hutton Village Nursing Home, which the company operates, died after contracting Legionnaires’ disease.

Three months after moving into the care home in March 2015, Kenneth Ibbetson, 86, contracted a serious waterborne form of pneumonia and died in the hospital shortly after.

The investigation carried out by the Health and Safety Executive (HSE) following the incident revealed that the health care provider failed to implement the necessary measures required to manage their cold and hot water system. It was also found that persons responsible for overseeing legionella controls in the facility had not been appropriately trained to the required standard.

Speaking after the hearing, Vicky Fletcher, HSE principal inspector said on the subject:

“It is heart-breaking to think Kenneth contracted Legionnaires’ a matter of weeks after moving into the Hutton Village Care Home. His Family have been left devastated by his sudden death.

“Mr Ibbetson and other residents have been exposed to the risk of contracting Legionnaires’ disease because adequate controls were not in place. The risk is more acute in care home settings because residents are more susceptible to their underlying health conditions. We would expect those who have a duty of care to understand this and have the necessary controls in place to manage the risk.”

BUPA Care Homes (BNH) Ltd pleaded guilty to breaching their general duties under the Health and Safety at Work etc Act 1974. The company has been fined £3 million and ordered to pay £151,482 in costs.

For more information on control and management of the risk of Legionnaires’ disease:

  • INDG458 – Legionnaires’ disease – a brief guide for dutyholders;
  • L8 – the control of legionella bacteria in water systems approved code of practice; and
  • INDG376 – Essential information for providers of residential accommodation.
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CHIP finally fully revoked

Appropriately, for National Fish and Chip day, the Chemicals (Hazard Information and Packaging for Supply) Regulations, or CHIP Regulations, have been fully revoked on 1 June 2018.

Weren’t they already revoked?

Essentially, the CHIP Regulations have pretty much been revoked for some time because of the introduction of Regulation (EC) 1272/2008, on the classification, labelling and packaging of substances and mixtures (CLP Regulation).

However, the following provisions were still in force:

  • advertisements for dangerous preparations, until 1 June 2017;
  • retention of data for dangerous preparations, until 1 June 2018.

The final part that was hanging around was the need to keep data on dangerous preparations for three years after the time of last supply.

This included keeping records on the classification, packaging and labelling under the CHIP Regulations until 1 June 2018. Even if the product was classified and labelled in accordance with the CLP Regulation, it was also required under CHIP until 1 June 2015.

What do I do now?

All your requirements for the classification, labelling and packaging of substances are now fully covered under the CLP Regulation, which adopts the United Nations’ Globally Harmonised System on the classification and labelling of chemicals (GHS) across all European Union countries, including the UK.

For more information, see the:

  • Regulation (EC) 1272/2008, on the classification, labelling and packaging of substances and mixtures;
  • Chemicals (Hazard Information and Packaging for Supply) Regulations SI 2009/716;
  • Biocidal Products and Chemicals (Appointment of Authorities and Enforcement) Regulations SI 2013/1506;
  • Chemicals (Hazard Information and Packaging for Supply) Regulations (Northern Ireland) SR 2009/238;
  • Biocidal Products and Chemicals (Appointment of Authorities and Enforcement) Regulations (Northern Ireland) SR 2013/206.
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Principal contractor and principal designer fined following multiple failures at care home project

The principal contractor (Coast & Country Construction) and principal designer (Paul Humphries Architects) of an extension project at Manor Lodge Residential Home in Exmouth, Devon, have been fined a total of £170,000 following failures on site.

Exeter Magistrates’ Court heard that the companies had a total disregard for health and safety and site management during the project, which consequently risked the lives of 80 care home residents.

The project, which was undertaken in 2016, involved the construction of a large timber extension on the care home. On 1 March 2016, Health and Safety Executive (HSE) inspectors visited the site and found:

  • workers were at risk of falls from height, slips and trips;
  • workers were subject to risk from wood dust exposure;
  • the construction of the timber extension created a risk of fire spread that could have injured or killed the vulnerable residents in the care home;
  • work at the site was not properly planned, supervised, or undertaken in a safe manner.

As the principal contractor, it was Coast & Country Construction’s duty to control how the work was carried out and to ensure that it would be completed safely. The principal designer Paul Humphries Architects had failed to consider the risk of fire spreading in its role.

The Court found Coast & Country Construction guilty of breaches under the Health and Safety and Work etc. Act 1974, and issued a £150,000 fine. 

Paul Humphries Architects pleaded guilty to breaches of the Construction (Design and Management) Regulations SI 2015/51 and were fined £20,000. 

HSE inspector, Nicole Buchanan, commented: ”Those in control of work have a responsibility to devise safe methods of working and to provide the necessary information, instruction and training to their workers in the safe system of working.”

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No injury but £566,670 fine for contractor who struck overhead power lines

Northampton Crown Court fined a contractor £566,670 after a tipper truck driven by an employee struck overhead power lines.

The contractor, Mick George, runs a company that supplies earth moving, demolition, skip hire and waste management services to the construction industry. His employee was working on a construction site emptying a load of soil from a tipper truck when they drove forward and the raised dump bed touched the 33kV overhead power lines. Thankfully the driver was unhurt following the incident and the vehicle itself sustained minor damage.

During the hearing, the Court heard that Mick George, the contractor, had identified that there was a risk present from work near overhead cables and knew that warning goalposts to provide a visible warning to workers were required. However, due to delays in the work commencing only one such marker had been installed.

The Health and Safety Executive (HSE) argued that a more rigorous risk assessment should have been undertaken and the system of work in place for the task was inadequate.

An HSE Inspector commented: ”Every year in the UK, two people are killed and many more are injured when mechanical plant and machinery comes into contact or close proximity to overhead power lines. This was a very serious incident and it is fortunate nobody was injured as a result.  A suitable and sufficient assessment would have identified the need to contact the distribution network operator, Western Power, to request the overhead power lines were diverted underground prior to the commencement of construction. If this was not reasonably practicable, Mick George should have erected goalposts either side of the overhead power lines to warn drivers.”

Mick George pleaded guilty to breaches of the Construction (Design and Management) Regulations SI 2015/51 that require the provision of suitable warning notices where there is a risk to construction work from overhead electric power cables.

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Hackitt review calls for new regulatory framework

The Independent Review of Building Regulations and Fire Safety conducted by Dame Judith Hackitt has called for a new regulatory framework in order to improve safety in high-rise residential tower blocks.

This review was commissioned by the Government following the Grenfell Tower tragedy in 2017 that killed 71 residents.

Dame Hackitt’s review concluded that a lack of clarity on roles and responsibilities and inadequate regulatory oversight and enforcement has led to a “race to the bottom” in building safety practices. She has proposed that a new regulatory framework, one comparable to that in the Construction (Design and Management) Regulations SI 2015/51, is needed.

Regulatory Framework

The proposed revised regulatory framework is a simple model based on ownership of risk which assigns clear responsibilities to clients, designers and contractors in the construction and maintenance of high-risk residential buildings (high-rise tower blocks of ten or more storeys).

There were also calls in the report for the Government to create a new joint competent authority to oversee the management of safety risks within high-risk residential buildings. This joint competent authority would be made up of local authority building standards, fire and rescue authorities, and the Health and Safety Executive. Such a joint authority would allow existing regulators to work together and share their collective knowledge and expertise.

Responsibilities that would fall under the remit of the joint competent authority would include ensuring dutyholders reduce or mitigate building safety risks during the design, construction, occupation and maintenance phases of a project.

It was also proposed that senior dutyholders should inform the joint competent authority, on a no blame basis, of incidents and near misses as part of a mandatory occurrence reporting system. This is aimed at ensuring the identification of deliberate corner-cutting during construction and occupation of such buildings, and addressing issues before they endanger safety.

Dame Hackitt commented: “This is a systemic problem. The current system is far too complex, it lacks clarity as to who is responsible for what. Simply adding more prescription or making amendments to the current system, such as restricting or prohibiting certain practices, will not address the root causes. The recommendations in this report will lead to a clearer, simpler but more robust approach to the building and ongoing management of high-rise residential buildings.”

Other recommendations for the new regulatory framework include:

  • a set of rigorous dutyholder roles and responsibilities to ensure a stronger focus on building safety during the design, construction and refurbishment phases – these would broadly align with the Construction (Design and Management) Regulations SI 2015/51;
  • incentives for the creation of reliably safe buildings from the outset and more serious penalties that align with the Health and Safety at Work etc. Act 1974 for those who “game the system”;
  • a clear and identifiable dutyholder responsible for building safety of the entire high risk residential buildings;
  • a requirement on dutyholders to present safety cases to the joint competent authority at regular intervals during the occupation phase to check that building safety risks are being managed so far as is reasonably practicable;
  • a more effective testing regime with clearer labelling and product traceability;
  • a digital record for new high risk residential buildings from initial design intent through to construction and including any changes throughout occupation. 

Building Standards

In relation to a reform of building standards, the review stated: “It is important that regulatory oversight of these buildings is done in a manner which is completely independent of clients, designers and contractors and that enforcement can and does take place where that is necessary. The ability for dutyholders to choose their own regulator must stop and regulators must be able to enforce as regulators.”

There were also calls to rename the Local Authority Building Control to the Local Authority Building Standards. This body should then be given additional powers to issue enforcement notices where dutyholders have carried out work that fails to comply with the Buildings Regulations.

In line with the interim report recommendations, the Government is currently working with the Building Regulations Advisory Committee to redraft the Approved Document B, which accompanies the Building Regulations.

Cladding

 
The report has attracted much criticism fromMPs and campaign groups for its failure to recommend a ban on combustible cladding on high-rise buildings.

There were recommendations on the testing regime for cladding however, with recommendations for the establishment and certification of more test houses, which should produce an annual report including details of tests carried out and the number of passes and failures reported.

It also called for the development of a simpler, streamlined set of standards relating to the testing of products used in high rise residential buildings.

However the review did not recommend a ban on the controversial desktop studies which allow untested materials to be used without carrying out tests where the materials are set on fire.

Government response

There is currently a Government consultation on restricting or banning the use of assessments in lieu of tests as a way of measuring the fire performance of external cladding systems.

Furthermore following the failure of the review to call for a ban on combustible cladding, Prime Minister Theresa May said the that the Government would be willing to ban the use of flammable cladding. She commented: “We are minded to go further by banning combustible materials in cladding on high-rise buildings. We are meeting our legal duty to consult on these proposals, and we will not delay any necessary action.”

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Fire ongoing at former Sunderland waste site

A fire which started on 14 May at a scrapyard and waste site previously operated by a waste management firm, Alex Smiles, in Deptford, Sunderland, is still ongoing.

Tyne and Wear Fire and Rescue Service were made aware of the incident just before 6 pm on Monday, and it is expected that the fire will continue to burn until Sunday.

Nine crews from various areas in Sunderland and across the region were deployed, and two aerial ladder platforms and a high volume pump were used. In total, 58 firefighters and 3 officers attended the scene.

The Environment Agency was also present on-site, who commented: “Our officers are on-site working with partners to assess any potential environmental damage including impacts to air and water quality. Our incident room is open and we will continue to monitor the situation closely.

“The site was abandoned last year after the operator went into liquidation. Polluters are responsible for clearing waste and we are working with partners to find a solution as soon as possible.”

Local councillors have already started to question why the site has not been cleared since the collapse of Alex Smiles. Lib Dem leader, Councillor Niall Hodson commented: “A Freedom of Information request from the Liberal Democrats revealed the safety risks to the public of this neglected site over two years ago – and the response from the Environment Agency specifically pointed to the risk of fire.    

“I’m not convinced we’ve seen sufficient action from the council or the Environment Agency to get the site cleared, and frankly it’s disgraceful given the number of years that have elapsed with this neglected and dangerous waste dump in the city centre. We need some answers urgently about how this was able to happen.”

And Lib Dem leader Coun Niall Hodson added: “A Freedom of Information request from the Liberal Democrats revealed the safety risks to the public of this neglected site over two years ago – and the response from the Environment Agency specifically pointed to t

Read more at: https://www.sunderlandecho.com/news/council-chiefs-say-clearing-alex-smiles-site-would-have-cost-millions-as-they-hit-back-at-blaze-criticism-1-9165705

And Lib Dem leader Coun Niall Hodson added: “A Freedom of Information request from the Liberal Democrats revealed the safety risks to the public of this neglected site over two years ago – and the response from the Environment Agency specifically pointed to the risk of fire. “I’m not convinced we’ve seen sufficient action from the council or the Environment Agency to get the site cleared, and frankly it’s disgraceful given the number of years that have elapsed with this neglected and dangerous waste dump in the city centre. We need some answers urgently about how this was able to happen.”

Read more at: https://www.sunderlandecho.com/news/council-chiefs-say-clearing-alex-smiles-site-would-have-cost-millions-as-they-hit-back-at-blaze-criticism-1-9165705

And Lib Dem leader Coun Niall Hodson added: “A Freedom of Information request from the Liberal Democrats revealed the safety risks to the public of this neglected site over two years ago – and the response from the Environment Agency specifically pointed to the risk of fire. “I’m not convinced we’ve seen sufficient action from the council or the Environment Agency to get the site cleared, and frankly it’s disgraceful given the number of years that have elapsed with this neglected and dangerous waste dump in the city centre. We need some answers urgently about how this was able to happen.”

Read more at: https://www.sunderlandecho.com/news/council-chiefs-say-clearing-alex-smiles-site-would-have-cost-millions-as-they-hit-back-at-blaze-criticism-1-9165705

And Lib Dem leader Coun Niall Hodson added: “A Freedom of Information request from the Liberal Democrats revealed the safety risks to the public of this neglected site over two years ago – and the response from the Environment Agency specifically pointed to the risk of fire. “I’m not convinced we’ve seen sufficient action from the council or the Environment Agency to get the site cleared, and frankly it’s disgraceful given the number of years that have elapsed with this neglected and dangerous waste dump in the city centre. We need some answers urgently about how this was able to happen.”

Read more at: https://www.sunderlandecho.com/news/council-chiefs-say-clearing-alex-smiles-site-would-have-cost-millions-as-they-hit-back-at-blaze-criticism-1-9165705

And Lib Dem leader Coun Niall Hodson added: “A Freedom of Information request from the Liberal Democrats revealed the safety risks to the public of this neglected site over two years ago – and the response from the Environment Agency specifically pointed to the risk of fire. “I’m not convinced we’ve seen sufficient action from the council or the Environment Agency to get the site cleared, and frankly it’s disgraceful given the number of years that have elapsed with this neglected and dangerous waste dump in the city centre. We need some answers urgently about how this was able to happen.”

Read more at: https://www.sunderlandecho.com/news/council-chiefs-say-clearing-alex-smiles-site-would-have-cost-millions-as-they-hit-back-at-blaze-criticism-1-9165705

However, Deputy Council Leader Councillor Michael Mordey hit back at their comments: “The Alex Smiles site was abandoned when the business went into administration, leaving behind thousands of tonnes of waste that would cost millions of pounds to remove.”

“Despite having no quick or easy means to intervene in these circumstances, the council and the Environment Agency have been working together on a plan to bring the site back into use. Responsibility for the site does not sit with Sunderland City Council, it sits with the former owners’ pension fund.  

“The City Council and the Environment Agency have been working hard to find a creative solution to the problem left behind by the site owners when their business failed. It is worth bearing in mind the massive financial burden on public finances this has created and also the failings within the legal system which has meant that no one can be held accountable for what is quite frankly shocking behaviour.

“The responsibility for this lies absolutely with the people who created the problem and it is wrong for anyone – including opposition councillors – to try and suggest that either the Council or the Environment Agency are to blame.”

But Deputy Council Leader Coun Michael Mordey hit back at their comments: “The Alex Smiles site was abandoned when the business went into administration, leaving behind thousands of tonnes of waste that would cost millions of pounds to remove,”

Read more at: https://www.sunderlandecho.com/news/council-chiefs-say-clearing-alex-smiles-site-would-have-cost-millions-as-they-hit-back-at-blaze-criticism-1-9165705

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Tesco fined for Greenford store incident

Supermarket giant Tesco has been fined £1.6 million for health and safety failures in its Tesco Metro store on Greenford Road, which resulted in a delivery driver reversing into a loading bay and injuring a member of the public.

Following a successful prosecution by Ealing Council, the investigation revealed that drivers often reversed unassisted into the store, with the staff failing to notice that it went against their internal procedures.

Isleworth Crown Court heard that in August 2014, the driver in question was reversing unassisted when the vehicle ran into the pedestrian. The manoeuvre trapped the self-employed tradesman between the loading bay and the vehicle, and he sustained serious and life-changing injuries as the result of the impact.

A prolonged and detailed investigation by the council’s health and safety team established that Tesco failed to manage the risks of vehicles and pedestrians both using the car park of the premises, which is open to the public at all times. The organisation also failed to notice that drivers were often reversing on-site unassisted, which was contrary to its internal procedures.

The investigation has led to improvements being made to the layout of the car park, including an installation of barriers preventing access by private vehicles and pedestrians when delivery trucks are manoeuvring on-site.

Councillor Julian Bell, Leader of the Council said: “This is a great result for the Council. I am very pleased that the court has recognised the seriousness of these offences and imposed a fine reflecting this.

“We will always prioritise the safety of local people and this investigation has secured changes to the layout of the car park in question which will hopefully reduce the chances of another tragic incident such as this occurring.

“Our health and safety team will not hesitate to take action against any organisation – large or small – who fails to comply with their obligations to protect their employees and others affected by their activities.”

Tesco pleaded guilty to breaching two offences. The judge fined the supermarket £800,000 for each offence and ordered it to pay £50,000 in costs. 

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Court of appeal cuts “excessive” fatality fine

Wolverhampton truck dealership, ATE Truck and Trailer Sales, has had a “manifestly excessive” fine of £475,000 over the fatality of a non-employee working at its yard reduced to £200,000 by the Court of Appeal.

The company was fined in April last year when a self-employed scrap dealer, William Price, was killed while dismantling a trailer on a section of ATE’s yard that he informally rented from the firm. They admitted failing to provide a risk assessment under the Health and Safety at Work etc. Act 1974 for similar work carried out by its own workers at the site which was judged to have weakened the safety protection available to Price.  

However, it had denied a charge covering its responsibilities to those other than workers.

The Court of Appeal ruled that the original trial judge had erred when he decided that ATE’s failings in respect of a non-employee were of “high culpability” and a high likelihood of harm. The three Appeal Court judges recalculated the fine under the sentencing guidelines on the basis of low culpability, arriving at a fine of £200,000.

Price had been associated with ATE for around 20 years, dismantling trucks and trailers and then selling them for scrap. He provided his own equipment and his own forklift truck, and performed his work using his own method, with no involvement from ATE staff. At the time of the accident in February 2013, Price was dismantling around one truck a day. He was crushed between the roof and the side of a trailer and died from catastrophic head injuries.

The Court heard that Price’s method involved balancing the superstructure of the trucks on the tines of a forklift, before cutting the supports that held it to the truck’s base.

At the same time on the same site, ATE employees were carrying out similar work in another section of the yard. Their method, however, involved supporting the frames with a crane that took the weight once the frames were cut free.

The Health and Safety Executive (HSE) had argued that, although the second method was safer than Price’s, ATE’s failure to provide written risk assessments for its employees had an impact on Price’s accident. Before the original trial, ATE’s legal team and the prosecutors acting for the HSE had agreed that although the absence of a risk assessment for its own employees had a bearing on the case, ATE held “low culpability” for the accident.

Judge Berlin however, opted to put ATE’s failings in respect of the written risk assessment in the “high culpability” category.

In the appeal, Lord Justice Gross downgraded the firm’s culpability to low, and with a harm category of two (medium), selected a category range of £14,000 to £100,000. The fact that the case involved a fatality, and the need to calculate the fine to “make an economic impact”, then raised the issue to harm category 1. The Appeal Court also took into account ATE’s co-operation with the investigation, as well as their good safety record, with over £100,000 spent on health and safety since 2012. An overall “appropriate” fine of £200,000 was decided.

Pinsent Masons, who represented ATE at the appeal commented: “We had always considered that on the facts of this case, the fine originally imposed was manifestly excessive and that the original approach taken in trying to apply the definitive guideline for sentencing health and safety offences had been flawed. This case also has wider application for the way such cases are dealt with, in particular reinforcing that the courts should have careful regard for any agreed position between the parties as there had been in this case”.

For more information, see the:

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Consultation on new building safety rules

Housing secretary Sajid Javid has published a Consultation on proposals that aim to strengthen fire testing for cladding systems on residential buildings.

The Consultation follows the Independent Review of Building Regulations and Fire Safety by Dame Judith Hackitt, which was called for after the fire last June at Grenfell Tower on the Lancaster Estate in West London.

The interim report, which was published in December 2017, states that current Regulations and guidance are “too complex and unclear”, which can “lead to confusion and misinterpretation in their application to high-rise and complex buildings”.

Additionally, “the clarity of roles and responsibilities is poor” and even where “there are requirements for key activities to take place across design, construction and maintenance, it is not always clear who has responsibility for making it happen”.

The Government said this Consultation will look into restricting or banning the use of “desktop studies” as a way of assessing the fire performance of external cladding systems. If such studies are deemed appropriate, the proposed changes include improving the transparency of assessments and enabling proper scrutiny of results. Changes also include making sure that only properly accredited bodies can carry out studies.

Javid said: “We have listened carefully to Dame Judith Hackitt and we are taking action to strengthen Building Regulations guidance, which could mean that the use of “desktop studies” are either significantly restricted or banned altogether.

“This demonstrates the tough measures we are prepared to take to make sure that cladding tests are as robust as possible and people are safe in their homes.”

Responding to this Consultation

The Consultation will close on 25 May 2018.

The preferred way to respond is by completing the online survey at:

https://www.surveymonkey.co.uk/r/S9V7BMQ

Alternatively, written responses can be submitted via email to:

buildingregsteam@communities.gsi.gov.uk

Or by post to:

Assessment in Lieu of Test Consultation
Building Safety and Energy Performance Division
Ministry of Housing, Communities and Local Government
2nd Floor SW, Fry Building
2 Marsham Street
London
SW1P 4DF

For more information, see the:

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HSENI consults on its new Corporate Plan 2018-2023

The Health and Safety Executive for Northern Ireland (HSENI) has launched a Consultation on a new draft Corporate Plan for the 2018-2023 period.

Mission statement

The Plan sets out the HSENI’s mission “to work with others to reduce serious work-related injury and ill health”, and will focus on:

  • preventing the most serious workplace health and safety issues in high risk industries and activities;
  • sensible and proportionate risk management;
  • effective regulation;
  • supporting businesses and the economy.

Shift in focus

For a number of years, the HSENI has been shifting its activity and focus on occupational health issues.

Given the potential short and long term costs to workers and the economy from ill-health at work, the Plan represents a step change in activity in this important area which is devastating many lives and costing the Northern Ireland economy over £238m every year.

When launching the Consultation, the HSENI Chief Executive Keith Morrison said: “Improving health and safety standards is about all of us working together – the HSENI, employers, employees and other partners – to reduce work-related serious injury and ill health. We very much see this document as a shared Corporate Plan and shared targets for industry and HSENI to aspire to.

“The underpinning approach to our strategy is collaboration and partnership. We strongly believe that managing health and safety well has many positive business benefits, and over the course of this Plan we intend to support businesses in improving health and safety standards and outcomes.”

Key outcomes

Over the 2018-2023 period in which the Plan will remain in place, the HSENI hope to reduce, per annum on average:

  • serious and fatal accidents by 10% to no more than 49 (50);
  • major accidents by 10% to no more than 353 (350);
  • over 3 day accidents by 5% to no more than 1701 (1700).

Although these targets are challenging, and are part dependent on the health and safety performance of others, they represent a shared vision between the HSENI, Northern Ireland employers and employees.

In addition, the Plan focuses on a sector based approach, and specifies the challenges and priorities in key industry areas.

The Consultation runs for 12 weeks until 2 July 2018.

For more information, see the:

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