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June 26, 2000


The opinion of the court was delivered by: Pooler, District Judge.[fn*] [fn*] Rosemary S. Pooler, United States Court of Appeals Judge for the Second Circuit sitting by designation as a United States District Court Judge for the Northern District of New York.


Introduction .............................................................. 333

Procedural Background ..................................................... 334

Findings of Fact .......................................................... 334

I. Layout of the Site and History of Its Ownership ................ 334 II. Subsurface Conditions .......................................... 335 III. History of Solvent Loss During Norton's Stewardship ............ 336
A. Norton's Solvent Usage ...................................... 336 B. Solvent Related Complaints and Responses .................... 336 IV. Nashua's Purchase of the Plant ................................. 338 V. Norton's Solvent Usage After the Sale .......................... 339 VI. Nashua's Tenure ................................................ 339 A. Solvent Usage ............................................... 339 B. Nashua's Leaks and Spills ................................... 340 VII. The Investigative Process ...................................... 341 A. The B-1 Boring .............................................. 341 B. EPA Notification ............................................ 341 C. The Limited Cooperative Investigation ....................... 342 D. The Dunn-Rust Investigation ................................. 342 VIII. Causation ...................................................... 345 A. Nashua's Contributions to Site Contamination ................ 345 B. Norton's Contribution to Site Contamination ................. 346 1. The Bear-Tex Premises .................................... 346 2. The 1960s Leaks .......................................... 346

Application of the Law to the Facts ....................................... 350

I. CERCLA ......................................................... 350 A. Section 107 Claims .......................................... 350 B. Section 113(f)(1) Claims .................................... 351 II. RCRA Claims .................................................... 355 A. Propriety of a RCRA Claim ................................... 356 B. Imminent Danger ............................................. 356 C. Cost Recovery Under RCRA .................................... 357 D. Injunctive Relief ........................................... 358 E. Attorney's Fees ............................................. 359

Conclusions of Law ........................................................ 359

Appendix I — P-245: Sample Locations and Areas of Potential Releases ..... I
Appendix II — P-246: Ground Water Analytical Results ..................... II
Appendix III — P-247: Sewer Analytical Results ........................... III
Appendix IV — P-248: Soil and Soil Gas Analytical Results ................ IV
Appendix V — P-250: Map of the Site and its Neighbors .................... V
Appendix VI — Frequently Used Abbreviations ....................... VI



Plaintiff Nashua Corporation ("Nashua") owns and operates a pressure-sensitive tape manufacturing facility in Watervliet, New York. From the 1930s until 1974, defendant Norton Company ("Norton") owned and operated the tape-manufacturing facility. In the mid 1960s, Norton's underground solvent transfer lines leaked, causing massive toluene and tolusol contamination. After discovering the spill, Norton replaced the underground lines and made clean-up efforts. However, pollution from solvents of the type Norton used persists in the soil and groundwater under the Nashua plant. Nashua claims that the pollution results directly from Norton's leaking pipelines and its later sloppy housekeeping in a portion of the property it leased back from Nashua after the sale (the "Bear-Tex Premises"). Norton argues that (1) the current contamination could not have resulted from its releases; (2) various spills and emissions during Nashua's ownership of the Plant caused the pollution; and (3) even assuming Norton caused some or all of the contamination, it is not liable for Nashua's response costs because they are unreasonable and do not comply with governing law. After weighing the evidence submitted at trial and considering the parties' post-trial submissions, I conclude — for reasons discussed in detail below — that Norton must bear 90% of Nashua's response and clean-up costs.


On August 31, 1989, the United States Environmental Protection Agency ("EPA") issued notice letters to both Nashua and Norton regarding their potential liability under the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. § 9601 et. seq. ("CERCLA"). P-23.*fn1 After initial cooperative investigation and negotiation, Nashua and Norton disagreed on the appropriate division of clean-up costs, causing Nashua to file this lawsuit on December 14, 1990. Nashua sought recovery pursuant to CERCLA and made a New York common law nuisance claim. See Dkt. No. 1.

In April, 1994, this court (McCurn, J) granted partial summary judgment rejecting Norton's claim that Nashua assumed liability for all the claims asserted in its complaint when it purchased the Site. See Nashua Corp. v. Norton Co., 1994 WL 144251 (N.D.N.Y. Apr.18, 1994). In February 1995, Nashua amended its complaint to add a citizen suit claim under the Resource Conservation and Recovery Act, 42 U.S.C. § 6901 et. seq. ("RCRA"). See Dkt. No. 108. On June 19, 1995, with trial scheduled to start on September 12, 1995, Norton moved for partial summary judgment dismissing Nashua's claim for diminished property value based on nuisance. I directed the parties to proceed to trial on the liability issues and informed them that I would issue a decision on the permissibility of diminished value damages prior to any diminished value damages phase. The CERCLA/RCRA phase of the trial took place October 10 through October 25, 1995; December 5 through December 6, 1995; December 8, 1995, through December 15, 1995; February 12 through February 14, 1996; March 4 through March 6, 1996; and May 21 through May 22, 1996. On April 15, 1997, I issued a memorandum-decision and order dismissing Nashua's private nuisance claims as they related to spills at the Nashua Plant but allowing Nashua to proceed on public nuisance claims and private nuisance claims stemming from alleged polluting activities by Norton at the Bear-Tex Premises adjacent to the Nashua operation. See Nashua Corp. v. Norton Co., 1997 WL 204904 (N.D.N.Y. Apr.15, 1997). The parties made their final post-trial submissions on August 5, 1997.

My findings of fact, analysis, and conclusions of law follow. Many of the findings of fact are based on stipulation or largely uncontroverted evidence. Where a serious credibility dispute exists, I will discuss my reasons for crediting the evidence offered by one party over that offered by the other either immediately or in my discussion of the expert opinions.


I. Layout of the Site and History of Its Ownership

Two tank farms are situated to the north of Building 61 and near the north property line. St. A-14, P-245, Appendix I. Tank Farm No. 1, the eastern of the two, consists of four 20,000 gallon storage tanks and two 10,000 gallon storage tanks. St. B-15; P-245, Appendix I. Tank Farm No. 2 has two 20,000 gallon storage tanks. P-245, Appendix I. A quonset hut ("Quonset Hut No. 2") is located to the west of Tank Farm No. 1 near the north property boundary. Id. Other locations that figure in determining responsibility for contamination at the Site today are the filter room at the eastern edge of the Nashua plant, the solvent recovery room slightly to the southeast of the filter room, and certain roof vents in Building 58. Id.

The twenty-two acre Nashua Site is bounded by Norton Company to the west and residential areas to the east and south. P-235. The northern boundary is marked by a New York Central Railroad track. P-235; St. A-6. Another residential neighborhood known as Maplewood and consisting of Alden, Craig, and Archibald Streets and Lansing Avenue from south to north, Route 32 to the east, and a railroad track to the west lies to the north of the railroad track. P-235; P-250, Appendix V.

II. Subsurface Conditions

The land underlying the Nashua Plant is heterogeneous and contains rubble, sand, gravel, and finely pored materials such as silt and clay. Pockets of finely pored materials can be found within larger deposits of sand and gravel. TT at 2695, 2976; P-198. I base these conclusions on a trial exhibit, P-249, created by Nashua that depicts a geological crosssection of the lands at the north of the site underlying Quonset Hut No. 2 and the two tank farms as well as on trial testimony. TT at 1935-36; P-249. Nashua's expert geologist created trial exhibit P-249 after examining boring logs that described soil types at the many locations where Nashua's consulting firm drilled into the soil for various purposes. Where no actual borings had been made, the geologist estimated soil type based on the nearest borings and general principles. Groundwater saturates much of the subsurface environment. P-198 at 7. The zone of saturation, known as the water table, is found at varying depths below the surface. Id. The water table fluctuates vertically in response to seasonal cycles and storms. Id. In addition, water flow direction varies over time. Although the ground water flows predominantly to the north and northeast, it includes, at least at times, a south or southwesterly component.*fn2

Several storm sewers run under the plant, converge, and ultimately flow eastward into a municipal storm sewer. Id. These sewers include leaking clay pipe and corrugated metal pipe. Id. Two main west-east sewers cross the former location of the underground solvent lines. P-246, Appendix II. There are also sanitary sewers underneath the Site

III. History of Solvent Loss During Norton's Stewardship

A. Norton's Solvent Usage

Each of the six tanks in Tank Farm No.1, which were installed by Norton in the mid-1950s, had a connection to an underground line that transferred solvent from the tanks to various manufacturing facilities within the plant. St. B-17, 22, 24; P-3, ¶ 79. Both Norton and Nashua — at various times — stored the solvents toluene and tolusol in the 20,000 gallon tanks and methyl ethyl ketone ("MEK") in the 10,000 gallon tanks. St. B-20-21. Tolusol is a combination of toluene and heptane. St. G-88. Norton used each of these solvents in its tape manufacturing process. St. B-20-B-26. A seventh pipeline led from a solvent recovery operation to Tank Farm No. 1. St. B-23. In 1961 or 1962, Norton installed a solvent recovery operation. St. D-47. Prior to that time, Norton emitted all of the solvent in vapor phase to the air. Hoyt Dep. Tr. at 10. In addition, Norton discharged decanter water from the solvent recovery lines to the storm sewer. Muller Dep. Tr. at 61, 176.

Former Norton employees, who became Nashua employees in 1974, testified concerning the volume of Norton's purchases of solvent. Arthur LaBreque had responsibility for either the requisition or procurement of solvents for Norton during the following periods of time: November 1969 to December 1972 and December 1973 to March 1974. TT at 231-235. He estimated that Norton purchased three to four tank trucks a week of solvent between November 1969 and late 1972 and that each truck load contained between 6500 and 6800 gallons of solvent. TT at 283-85. James Susko worked in quality control at Norton from the mid 1950s until 1972 or 1973. Susko Dep. Tr. at 5-8. He testified that Norton used toluene and tolusol as solvents and that Norton purchased between two and three tank loads of solvent a week. Id. at 20-21. Assuming conservatively that Norton purchased an average of two and a half tank loads of solvent a week during the late 1960s and that each load contained 6650 gallons of solvent, Norton's average annual solvent consumption approximated 865,000 gallons.

B. Solvent Related Complaints and Responses

Beginning in the mid 1960s, Town of Colonie*fn3 employee Thomas Burke responded to odor complaints in the Maplewood neighborhood north of the Site. Burke noted "a strong chemical odor in the manholes along Alden St.," the street closest to the Site and a weaker form of the same odor in Alden St. residences. TT at 133,136. When Burke actually entered manholes in the sewers, the odors quickly made him dizzy. TT at 145. He also smelled a weaker chemical odor in the manhole on Craig St., to the north of Alden and stronger odors in the 3rd Avenue and 27th St. area to the east of the Site. TT at 145-47. Burke continued to respond to complaints in the Alden St. neighborhood until 1975. TT at 143.

Early in 1967, Norton received a complaint from Mutual Coal Co., located to the east of the Site, of a strong odor of solvent in its wash room. P-21; TT at 130; P-235. In response, Norton tested the decanter condensate water in its solvent recovery system and found that it contained 1% alcohol and an undetermined amount of toluene. P-21 at 4. In November 1968, The Town of Colonie Fire Department and Albany County Health Department responded to complaints of solvent fumes in sanitary and storm sewers along Alden St. P-18, P-19; P-94. Using an explosion meter to determine solvent concentration in manholes in both sewer systems, workers consistently found solvent fumes at explosive levels as far north as Alden St. P-19; P-94. During Norton's own investigation, employees witnessed solvent leaking into a sanitary system manhole at Alden St. P-19. Norton confirmed the presence of toluene and tolusol in water from the sewers. P-18.

At some time prior to February 6, 1969, Norton conducted a "material balance study . . . to determine if the amount of solvent received and recovered was the same as that which was used." Id. "Within the accuracy of the metering devices . . . there was no evidence of solvent loss." Id. However, in November, 1969, at the request of Norton's accounting department, Arthur LaBreque investigated a $60,000 variance between solvent purchased by Norton from July 1968 to July 1969 and verifiable inventory. TT at 286-89. LaBreque found that Norton consistently lost about a tanker truck load of solvent a week. Id. Again using a figure of 6,650 gallons for a tanker truck load, the annual loss would have been almost 346,000 gallons.

At first Norton Personnel assumed that the escaped solvent came from the solvent recovery system decanter and installed a heat exchanger and water tower to flash the solvent out of the decanter effluent before it entered the sewer system. P-19. On January 15, 1969, Wilbur E. Kidder, Norton's industrial relations manager, wrote to Town of Colonie Chief Fire Inspector Howard C. Wilson to advise him of these steps but conceded that "there are still some puzzling factors such as the presence of toluene in the lines clear up in Craig Street, upstream from any drains in our plant." P-15. Kidder assured Wilson that Norton would pressure test its underground solvent lines. Id. On January 22, 1969, Kidder advised Wilbur that the pressure tests revealed "that one of our tolusol lines was leaking." P-16. In a subsequent internal memo dated February 6, 1969, R.L. Muller of the Engineering Department advised that three of the lines were porous and would not hold pressure. P-18 at 2. Muller requested approval to replace all the solvent lines "in order to prevent a reoccurrence of this hazardous condition which could have resulted in legal action by The Town of Colonie or the Albany County Department of Health, or in a sewer explosion if the vapor were ignited." Id. He further noted: "After the completion of this project, there will be no underground solvent lines in the plant which will preclude the possibility of future sewer contamination from this source. The piping will all be over the roof where by a visual inspection even the slightest leak can be detected and repaired." Id. Norton sealed off the underground solvent transfer pipelines, abandoned them in place, and installed overhead lines. St. E-69.

In late summer 1969 — after the underground pipelines had been removed — solvent fumes ignited, blowing off storm sewer manhole covers inside and outside the northeast corner of Building 61 (at the northeast corner of the Nashua Plant). LaValley Dep. Tr. at 27-28; Mulheren Dep. Tr. at 174-75; Hoyt Dep. Tr. at 127; P-19. Norton excavated a section of the pipe inside Building 61 and found several inches of solvent floating on the water table under the building. P-19. Workers dug a test pit, dropped a hose into it, and pumped the liquid, a mixture of solvent and water, continuously until the pit was empty. St. E-79. Initially, workers repeated this process daily, and the amount of solvent in the pit decreased over time. St. E-81-82. This pit remained open from September 1969 to December 1970. P-19. When the workers stopped seeing any solvent at all, they let the pit stand for a week or so and then closed it. Muller Dep. Tr. at 99. About 3200 gallons of solvent, which Norton identified as tolusol, were recovered. P-19.

During the pumping process, Muller observed "that whenever there was an accidental spill of solvent at the tank farm, a corresponding increase in the thickness of the solvent layer would take place inside Bldg. 61 within 24 hours." P-19. To control this problem, Norton constructed a sealed concrete dyke around the storage tank farm and set up a procedure for pumping out the dyke when a spill occurred. Id.

Norton also excavated two other test pits — one to the west and one to the east of Tank Farm No. 1 — and excavated them to the water table. St. E-70. Employees found solvent floating on the water only in the east test pit. St. E-71-73. The company left the east test pit open for two to three months and pumped water and solvent from it. St. E-74-75.

In 1971, The Albany County Sewer District ("ACSD") and Town of Colonie began to construct new sewer lines in the Maplewood neighborhood along Alden Street and Route 32. St. F-85, P-235; TT at 85. C.T. Male Associates, Inc. ("C.T.Male") was the engineer of record. TT. at 86. A subcontractor drilled a bore pit at a jog in the sewer underneath the railroad tracks, almost directly north of Tank Farm No. 2, and northwest of the former solvent recovery lines and Tank Farm No. 1. P-235, TT at 88. In the course of this excavation, the workers noted an odd odor in the bore pit. TT at 93. Soil excavated from the pit had the same odor. TT at 98. When the excavation was completed and workers attempted to cut a hole in some sheathing, sparks from an acetylene torch caused a fire on the water. TT at 93. The substance causing the odor and the fire also caused employees who inhaled it for substantial periods of time to become lightheaded. TT at 95-96. CT Male's supervising engineer, Thomas Vroman, observed a substance floating on the top of the water. TT at 97.

On Monday, November 22, 1971, men working in the sewer found the bodies of two other workers in the bore pit. TT at 92. Autopsies established that the two men, who had been missing since Friday, November 18, 1971, had toluene in their blood, brains, and lungs. P-49; P-50. The autopsies did not reveal any other toxic substance. Id.

The contractors returned to the job site shortly after discovering the bodies and continued to encounter solvent in the groundwater east of the boring pit, north of the railroad track and just south of Alden Street. TT at 102-105. Fire investigators found that toluene in manholes in the interceptor was at an explosive level. P-57; P-58. When the contractors attempted to weld a pipe to be used to carry a sewer pipe across Route 32 at Alden Street, the sewer ditch again caught fire. TT at 104-05. Some attempts were made to remove solvent from the sewer ditch, but the record does not indicate their effectiveness. TT at 105-06; P-65-66. All that is known is that by January 3, 1972, two hundred gallons of toluene had been collected. P-94.

IV. Nashua's Purchase of the Plant

Nashua purchased the pressure-sensitive tape manufacturing division from Norton on February 24, 1974. St. A-7. Norton did not disclose the leaks from the solvent recovery line or the resulting contamination and deaths at the time of the sale. TT at 571-75, 603.*fn4 Nevertheless, Norton argues that Nashua should have known about the leaks because (1) Nashua, which already used solvents in some of its other operations and thus knew of their dangerous propensities, had access to all of Norton's business records prior to sale; (2) Nashua hired most of Norton's employees; and (3) Nashua employees conducted a physical inspection of the premises to assess safety and environmental issues, TT at 608; Potter Dep. Tr. at 68; D-120. In addition, the evidence establishes that Nashua knew that some solvent was escaping into the air because solvent recovery systems at the time were only about 85% to 90% efficient and certain emissions were not picked up in the solvent recovery system. Potter Dep. Tr. at 65-66. I conclude that although Nashua should have been and probably was aware that solvents likely contaminated the Site to some extent, no credible evidence supports the conclusion that Nashua either should have known or did know about the massive leaks in the 1960s.

V. Norton's Solvent Usage After the Sale

Norton leased Building 61 for its Bear-Tex Operation, in which it continued to use solvents including methyl isobutyl ketone ("MIBK"), xylene, and toluene and tolusol in small amounts. O'Brien Dep. Tr. of 7/22/94 at 162-64; P-27; P-38; TT at 875-76, 2090. Norton dumped certain of these solvents including MIBK in the Bear-Tex sump pit. TT at 868-69. MIBK and toluene were found in the sanitary sewer effluent downstream from the Beartex sump pit. P-195 at 3. Norton also spilled solvents on pavement outside Building 61. P-27; O'Brien Dep. Tr. of 8/12/94 at 113. Norton replaced this area of pavement in September 1989 because of the deterioration caused by the spills. O'Brien Dep Tr. of 8/12/94 at 108-13. Soil samples in the area replaced contained MIBK. P-198 at 18, TT at 2090, 2144.

VI. Nashua's Tenure

A. Solvent Usage

The parties agree that Nashua initially used both toluene and tolusol in its tape manufacturing process but disagree as to when Nashua stopped using tolusol. St. G-87, 89. Norton contends that Nashua used tolusol or hepsol, another solvent that contains both heptane and toluene, until at least 1989. Norton FOF 60. Norton relies on (1) Nashua's 1982 and 1984 certificates to operate an air contamination source, which list heptane as a contaminant, D-17, D-23, D-24, D-25, D-26; (2) Nashua's waste data sheet dated February 20, 1986, which lists toluene and heptane as constituents of adhesive waste, D-22; (3) an industrial chemical survey from September 1984 listing toluene and tolusol as hazardous waste, D-68; (4) a hazardous materials report from December 1984 listing toluene and tolusol, D-69; and (5) Nashua's interrogatory responses 65 and 66 concerning stack and fugitive emissions, P-203. Defendant also relies on Louis Ethier's testimony that, to the best of his recollection, Nashua bought a heptane blend until at least 1989, Ethier Dep. Tr. at 27-29,*fn5 and deposition testimony from Ralph Hoyt that Nashua used tolusol in 1984, Hoyt. Dep. Tr. at 121. At another point, however, Hoyt testified that Nashua used tolusol for only three or four years after it began operations in 1974. TT at 53. Some of the cited documents do not support Norton's position. For instance, the reference to tolusol vapors in D68 is limited to the period from 1961 to December 31, 1981. D-68 at 4. And, the cited interrogatory responses refer to toluene only. However, in 1984, Nashua did report that it had 7500 gallons of tolusol on the premises. D-69 at 2. Moreover, Nashua requested permission from DEC to operate an air contamination source in 1982 and 1984 and listed heptane as a contaminant. D-17, D-23, D-24, D-25, D-26.

Nashua claims that its use of heptane ended in late 1981 or early 1982. Nashua FOF 59. It relies in part on requisition sheets that show no purchases of heptane, tolusol, hepsol and RMT 825 and 825A (forms of hepsol) after 1981. P-112, P-112A, P-117A. In addition, Nashua's technical director during the late 1970's and 1980's, Paul Sartoris, testified that Nashua stopped using heptane for economic reasons around 1980. TT at 412-414. Arthur LaBrecque, who ordered Nashua's raw materials, testified that Nashua last purchased tolusol in February 1981 and last purchased Hepsol in August 1981. TT at 232, 273-276. Finally, Rick Lawton, who became Nashua's manager of regulatory affairs in 1989, explained that when he renewed Nashua's permits in 1990, he found they were inaccurate in that they listed pollutants including heptane that Nashua no longer emitted. TT at 855-56. He therefore corrected the DEC printout and sent it back. TT at 856.

The more credible documentary and almost all the testimonial evidence supports Nashua's claim that it stopped purchasing and using tolusol and heptane in the very early 1980s although it continued to store tolusol thereafter. The witness who testified to Nashua usage after 1981 contradicted himself, and the witness who testified to purchases after 1981 was contradicted both by the documentary evidence and by the other witnesses. Although the permitting applications constitute some evidence that Nashua used heptane and/or tolusol after 1981, they are outweighed by the other evidence of record and were explained, at least in part, by Lawton's testimony.

B. Nashua's Leaks and Spills

The evidence established several leaks and spills during Nashua's operation of the Site. In 1983, a mechanical failure in the decanting area caused approximately 700 gallons of toluene to discharge to the sewer line leading to the Albany County Sewage Treatment plant. Moore Dep. Tr. at 21. Another such incident two or three years later resulted in a discharge of between 900 and 1288 gallons of toluene into the sewer system. Id.; Compare D-81 with D-234. After the second problem, Nashua agreed to corrective measures and to routine inspections by the sewer district.

In 1985, toluene being transferred from one tank to another in Tank Farm No. 1 overflowed. TT at 1528. A machinist notified plant managers including James Susko, and they immediately shut the pump down. Id. Susko went to the scene and observed solvent sliding down the outside of the tank and into the concrete bermed area. Id Within the next hour, Nashua pumped about 350 gallons of water and solvent from the bermed area. TT at 1528, 1534. Susko testified that he did not observe solvent on the ground or any place other than inside the berm and that the overflow pipe was too small to enable the solvent to escape the berm. Susko Dep. Tr. at 79-80, 198. Other spills from the tank farm also flowed into the concrete basin beneath the tanks. Ethier Dep. Tr. at 61. On examination in 1992, the concrete basin was pock marked and cracked, contained epoxy patches that had delaminated, and had standing water and solvent in it. TT at 1072-86, 1125; D-136-38. However the record does not indicate how deep the cracks were, and the presence of standing water suggests that the basin did not leak.

In April 1986, a backflush solvent release in the filter room inside the plant caused approximately 450 to 700 gallons of solvent (90% toluene and 10% solids), to drain onto the six-inch concrete floor of the filter room. Moore Dep. Tr. at 46-47, D-232. Most of the spilled material evaporated, but Nashua conceded that "it is possible that a small quantity of material leaked into a storm sewer drain and found its way to the Hudson River." D-232. However "[a] water sample . . . taken at the storm sewer discharge point and in-house testing found no toluene contamination." D-232. Some of the toluene drained onto an asphalt area outside the filter room. Moore Dep. Tr. at 98-99. Nashua removed the contaminated asphalt. Id. at 112.

Malfunctions in the solvent recovery system during Nashua's ownership sometimes pumped solvent to the roof of the Solvent Recovery Room. Ethier Dep. Tr. at 72-76. Solvents reaching the roof ordinarily were bermed with Speedy-Dry, an absorbent, and left to evaporate, but on one occasion about 15-20 gallons escaped to an adjacent alley. Id. at 74-75. Nashua employees put Speedy Dry on this spill and left it to evaporate. Id. at 75-76. In addition, certain portions of the floor in the recovery room deteriorated from solvent that ...

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