As the foremost experts on the effects of chemicals, biological substances, and more, toxicologists are key contributors to health regulation and laws. Law Professor and lawyer Claudia Polsky, University of California Berkeley, discusses how science can influence environmental health law, as well as environmental justice, with co-hosts Anne Chappelle and David Faulkner and reveals legal gaps in protecting public health.
About the Guest
Claudia Polsky, JD, MAS, is a Clinical Professor of Law and the founding Director of the Environmental Law Clinic.
Before launching the Clinic, Ms. Polsky spent 18 years as a public sector and public interest environmental litigator: 14 as a Deputy Attorney General in the Environment Section of the California Department of Justice and four at Earthjustice and Public Citizen Litigation Group. She has litigated cases in trial and appellate courts, including the US Supreme Court; testified before Congress and the California legislature; and drafted and successfully defended environmental regulations.
Ms. Polsky also served as Deputy Director for Pollution Prevention and Green Technology at California’s Department of Toxic Substances Control. There, she managed a program that addressed an area of ongoing professional focus: reducing exposure to toxic chemicals throughout the supply chain, from workers to consumers and communities impacted by toxic waste. The Environmental Law Clinic handles many toxics-reduction matters, ranging from pesticide exposure cases to the regulation of hazardous ingredients in consumer products. It also addresses other issues of environmental health and environmental justice, including climate justice and access to safe drinking water for all.
Ms. Polsky’s past environmental advocacy work has encompassed negotiating conservation easements for The Nature Conservancy; protecting threatened Pacific salmon populations through dam removal; obtaining an injunction to save 50 million national forest acres from logging and roadbuilding; and serving as a volunteer park ranger in Yosemite, Grand Canyon, and Great Smoky Mountains National Parks.
[00:00:00] Adverse Reactions “Decompose” Theme Music
[00:00:05] David Faulkner: Hello and welcome to Adverse Reactions.
[00:00:08] Anne Chappelle: This season, our theme is intersections, where we see toxicology intersect with another science.
[00:00:15] David Faulkner: Well, a lot of other sciences.
No person is an island, and no discipline has all the answers. But when scientific fields collide, some really interesting things happen. I’m David Faulkner,
[00:00:27] Anne Chappelle: and I’m Anne Chapelle.
[00:00:28] David Faulkner: Welcome to Adverse Reactions Season 3: Intersections.
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[00:00:39] David Faulkner: Thanks for joining us for today’s episode, “The Intersection of Toxicology, Environmental Health Law, and Justice.
[00:00:45] Claudia Polsky: We have a system where, you know, a chronically underfunded set of public agencies don’t have the capacity to do their own testing and evaluation. And then, we have a presumption that has no scientific basis that chemicals are innocent until proven guilty, which is not the presumption we have about people in our criminal law.
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[00:01:12] Anne Chappelle: Welcome, Claudia Polsky, to Adverse Reactions.
[00:01:15] Claudia Polsky: Thank you so much. It’s a pleasure to be here.
[00:01:17] Anne Chappelle: Can you tell us a little bit about what you do?
[00:01:20] Claudia Polsky: I’m a Clinical Professor of Law at UC Berkeley School of Law, and I’m also the Founding Director of its Environmental Law Clinic, which is now seven years old. And what I do is help law students and some public policy students learn how to transition from classroom learners to people who will have real responsibility for helping clients, with advocacy projects, maybe litigation against a polluter, or legislative advocacy to improve our very outdated environmental laws or policy advocacy to help agencies better deliver public health.
[00:02:02] David Faulkner: The clinical part of your title—“clinical law professor” —I do find that very interesting because it seems like a lot of the work that you do really is to do with health outcomes.
[00:02:12] Claudia Polsky: Absolutely. Our clinic focuses on environmental health and environmental justice. There are a number of environmental law clinics affiliated with law schools around the country that are general clinics. If someone comes with a public lands issue or they want a conservation easement to protect a rare species or they want a factory next to them to stop polluting, they sort take all comers.
Our clinic chose to focus on these two areas because I saw them as areas with insufficient lawyering capacity—out in the nonprofit world in particular. So, it was really a gap analysis. This is where we can make a big difference because there aren’t many players. And also because my personal passion is around environmental health, which I would define as the realm of involuntary exposure to toxic chemicals, ionizing and non-ionizing radiation, pollution in all forms. This is a place where the law is not particularly powerful. The law is ironically better at protecting salmon than protecting people, and it’s a place that I think legal advocates can make a very big difference to reform the system and sometimes to work within it where we do have laws that just aren’t being adequately enforced.
[00:03:28] Anne Chappelle: That’s because salmon are delicious. You know, let’s protect the things we eat and find delicious.
[00:03:35] David Faulkner: It surprises me that salmon are better protected. So, what exactly does that mean?
[00:03:40] Claudia Polsky: It means that if there’s a species that’s declining, there’s a very specific deadline by which an agency has to respond to, say, a citizen request to list it as threatened or endangered under the Endangered Species Act. If, for example, people are being harmed by drinking toxic contaminants in their drinking water, say PFAS or heavy metals, and a citizen petitions EPA, and says, “You really ought to do something about this chemical.” Under the Toxic Substances Control Act or any one of a variety of other health protection laws, the agency doesn’t really have any timeframe within which it has to respond.
For example, we recently petitioned the federal government to list certain PFAS as hazardous waste at the end of their life, which would have a lot of very salutary consequences. It would increase liability for polluters. It would require cradle-to-grave tracking of PFAS, which we know are being trucked around the country for disposal, who knows where. In some cases, they’re even being imported internationally, but EPA can essentially sit on that request for as long as it wants. That’s an example of an asymmetry, even in the timeframe by which you get an answer.
And then, you know, you can follow it all the way through. Once a salmon is listed as threatened or endangered, then, all of a sudden, there’s a prohibition on so-called take of that species, meaning that you can’t kill the species directly, like the way a dam might kill salmon, and you can’t damage its habitat so much that you’re effectively compromising reproduction. Once EPA decides to issue a test order to get more information about a particular suspected toxic chemical, there’s no analogous provision that says, “Here are all the things you have to do immediately to prevent human exposure because you might be compromising human lifespan or human health.” So, there are just a lot of places where our regulatory system is tremendously weak.
[00:05:45] David Faulkner: Something that I have long been fascinated with—and you’ve sort of talked around this a little bit—is the … I guess it feels like the word tension is appropriate between legal structures and the evolving science and understanding of risk assessment and exposure assessment. It’s not surprising if our understanding of how these things work from a scientific standpoint changes year to year, but for a stable society and some kind of consistency and fairness, you do want the law to be more or less the same in a lot of ways—or at least fairly applied equally across the board. Could you talk a little bit about some of the challenges of merging these two very, in some ways philosophically, quite different disciplines?
[00:06:29] Claudia Polsky: I love that question.
You’re right to point out that what we think of as a bedrock feature of law, or at least a very desirable one, is its relative stability, and yet, science is, of course, dynamic. I really see this playing out in the area of toxics exposure very vividly and let me give you examples.
California has a law that many people, even beyond its borders, are familiar with: Proposition 65 that requires businesses to warn consumers before exposing them to a certain level of risk from carcinogens or reproductive toxicants. This is seen as a very protective law. It’s essentially a right-to-know law in most cases. It’s not a prohibition on marketing these chemicals, but it’s seen as very protective, very expansive; industry is constantly saying, “Even overreaching.” However, from my point of view, it’s a very under-inclusive law because it recognizes so few modes of action as to toxic harms. It doesn’t look at whether a chemical causes endocrine disruption. It doesn’t look at whether a chemical is neurotoxic. It doesn’t look at a whole range of things.
I actually think most of our laws are much too stable in failing to acknowledge that there are so many other biological pathways of harm, and we’re uncovering evermore. I think if we understood that science was going to change, that it was desirable for regulatory schemes to evolve along with scientific understanding, we would encourage innovators to think much more carefully and prudently and in a much more precautionary fashion about how to minimize risk.
So, what forms would that take concretely? Well, they would do an awful lot more pre-market testing because maybe endocrine disruption isn’t regulated today, but you can foresee it’s gonna be regulated tomorrow—you better find out if your product has that attribute. And you might foresee that these things, if they prove to be harmful to human health, could do a lot of harm because our immune system hasn’t evolved to recognize them. So, I think this sort of sense that the law’s gonna be stable, that you can count on it, encourage some very risky behavior by companies that unleash chemicals onto the world.
[00:08:52] David Faulkner: I think those are all really, really good points. One thing I’d like to discuss a bit, though, is Proposition 65 here in California is an interesting example because I do think that there is a degree to which, because there’s so many warnings all over everything, it can be a bit desensitizing. You see warnings on Starbucks. Does it make sense to put a warning there when it’s probably not actually going to be a meaningful exposure?
[00:09:18] Claudia Polsky: I think we’d have to do a whole other podcast about Prop 65. I’m actually part of an interdisciplinary research group that’s been working on Prop 65 issues for five years now. So, we’re publishing a whole sequence of papers, but there is one that I wrote with an MD/MPH in our research group that’s about an unfortunate feature of Prop 65 to which you’re alluding, which is that the public facing experience of Prop 65 is with all these warnings that really do desensitize us—that encourage people to make a mockery of the law because there’s so many things, particularly in the area of food consumption, people have consumed for ages that their lived experience suggests are probably fine, and then, they’re seeing all these warnings. So, how do they evaluate that against, say, a warning for, you know, methylene chloride–containing home products? There are a lot of problems with that.
What our study actually found is that the real power of Prop 65 is the way it operates up the supply chain. That its manufacturers’, distributors’, retailers’ interest in avoiding the duty to warn that causes them to reformulate—that prevent manufacturers from putting certain constituents in their products in the first place if they want shelf space in the box store and so forth. So, we actually found the law is quite powerful, and it’s a tricky policy problem: how you would get people to undertake those behaviors if you didn’t have this threat that they have to announce to the whole world that there’s something nasty in their product. That’s complicated.
One thing I do really like about Prop 65, though, even while I acknowledge that it makes it hard for formulators, is that it is very science based in the sense that things get put on the Prop 65 list because of what they do to organisms. And it’s not a cost-benefit analysis, right? It’s really just a hazard-based list, and then, the warnings itself are not triggered by the mere presence of a chemical in something. They are risk based. There’s so many things we’ve learned from what does and doesn’t work about that law that would ideally inform better laws.
The place I’m really interested in is way up the supply chain and really before anything even gets to market because we have a system where manufacturers can bring things to market with almost no data about their environmental fate and transport, their human health effects, their effects on other organisms, and so forth. We have a system where, you know, a chronically underfunded set of public agencies don’t have the capacity to do their own testing and evaluation. And then, we have a presumption that has no scientific basis that chemicals are innocent until proven guilty, which is not the presumption we have about people in our criminal law. But with chemicals, we essentially put them out there, and then, we have a lot of post-market schemes to try to pull them back if they seem to be causing harm. That’s pretty crazy. It’s well behind Europe, and it just defies common sense.
We also have in so many laws—whether it’s the laws that govern air pollution emissions from a smelter or the laws that relate to new chemicals coming to market versus chemicals that have long been on the market—we have these so-called grandfathering provisions. And we need a new lexicon because grandfathering is a term that has some pretty terrible slavery origins, but this is how it’s talked about in environmental law. This grandfathering of old facilities, grandfathering of pallets of old chemistries. And so, it means that there’s actually a disincentive to innovate because there’ll be really tight scrutiny on the new thing, but everything that was already there gets a free pass. That’s just biologically crazy. We should be constantly evaluating what’s already there and ratcheting up the safety standards. There have been some movements there, for example, the Food Quality Protection Act has required reconsideration of all of these pesticides that have long been on the market. And then, when the Toxic Substances Control Act was recently revised by Congress, a provision was added that requires EPA to go back through these literally tens of thousands of chemicals that were just grandfathered in with almost no data and no regulatory review in 1976.
But when you look at what I’ll call the regulatory throughput, it’s gonna take EPA well past this geologic era to get through that backlog. It’s not a feasible proposition, and this brings me to an even bigger area where I think toxicologists and law reformers could really collaborate productively, which is there is this complete mismatch between the pace at which scientific evaluation—epitomized by risk assessment after risk assessment, animal experiment after animal experiment—the pace at which that precedes and sort of the scale of health impact we see and challenge we face in reducing that impact. When I read things about how some particular rodent bioassay is gonna take two years and this many millions of dollars, and I’m thinking about 60,000 chemicals, this is not a workable system. And I realize there’s a lot of innovation around rapid throughput testing, and then, there is obviously a lot more computational modeling, but we need to have a much richer conversation about how you deal with just the stark fact that the systems we’ve designed can never catch up to how much problem we have to solve.
[00:15:06] Anne Chappelle: I’ve spent 25 years, most of it in the industrial chemical industry. There have been times that I’ve been shocked about, “You mean the EPA only requires a PK value and a melting and boiling point?” That’s pretty incredible.
In my experience, we’ve had some pretty serious talks with our product development people to say, “You know, we can’t do that,” or “Have you thought about doing it a different way?” Or, when I sat on the BPA panel, we had a lot of pressure to remove BPA, and we were stuck because the only kinds of studies that the FDA would accept were the regulated OECD guideline studies where you couldn’t vary, you couldn’t really go after some of these other points.
And we’ve had discussions within various groups on how do you improve the way that these new assessment modalities get influenced or perceived by regulatory agencies? Like, how much do you actually have to verify something before EPA says, “You know what? That conclusion makes sense.” And I do wonder how much of it is an underfunded EPA because EPA, frankly, has put a lot of pressure back on industry to do the data themselves, do the interpretations themselves: “Bring it to us cuz we don’t have the resources. We don’t have the manpower to really address this.” I don’t know if throwing a lot of money at EPA would fix everything because often, they’re thought of as the enforcement officer, not as a partner to help you get a safer product to market.
[00:16:49] Claudia Polsky: Here I want to bring in a third point on the triangle. You’ve been talking about industry and the regulators, and now, I am gonna take it down to place-based exposures and talk about affected communities. But we could also talk about it in terms of say, occupationally-affected communities—doesn’t have to be place based. But one of my real frustrations—and this is where our environmental health work really intersects with our environmental justice work—is regulators’ systemic discounting across issue spaces of what the community knows about its own health. Communities know what they’re talking about when they talk about their environmental health.
And we are in litigation against a facility in East Oakland, which is, you know, a poor community of color, where community members have been complaining of truly noxious odors for years and years—hundreds of complaints. And yet, the local air district will not write them down as valid complaints unless it sends someone out to verify that there is, in fact, a noxious odor. These people know that their backyards don’t normally smell like formaldehyde and, you know, the other industrial chemicals that they’re smelling, and these are busy people with jobs and children and so forth, who are not looking for a spare-time hobby of reporting to the air district. And yet, the air district, through some combination of insufficient funding, personnel, and motivation, takes forever to send anyone out—if they send them out at all. By then, the winds switch direction. They say, “Oh, you know, I don’t smell anything,” and it doesn’t go into the complaint database. And so, there’s this massive undercounting of people who are adversely affected by environmental exposures.
And one thing we really need is better mechanisms for what’s coming to be called citizen science but really, community observations, community knowledge about their own wellbeing over time to feed into the system and to put it in a legal frame. We talk so much about, you know, burdens of proof—who has to produce evidence of something, burdens of persuasion, presumptions—and we need to really switch from a presumption that people who are not highly credentialed have no expertise as to environmental health to a presumption that they do. And so, I would really love to see more formalized, legally codified ways for a community’s own experience to feed into the regulatory process.
[00:19:23] Anne Chappelle: One of the things that I’d like to switch gears towards is cosmetics.
[00:19:28] David Faulkner: Hmm-mmm.
[00:19:29] Anne Chappelle: And that’s also an area of toxicology that we don’t always think of because, again, you think, “Oh, you’re just putting it on your skin.” You know, “I’ve got mascara. Is it really harmful?”
[00:19:39] Claudia Polsky: This is an issue I’ve worked on for probably going on 20 years now. I got interested when California was passing a first-in-the-nation law to require public disclosure of, again, carcinogens, mutagens, reproductive toxicants in cosmetics—not all the other things in cosmetics that may harm you. As this law was coming online, I was in very close conversation with the California Department of Public Health, and I said, “You know, we really need to make sure that we bring a strong enforcement action when someone violates this law because this may well be ignored. It’s new; it’s not highly visible.” I said, “Why don’t you tell me when you see that there’s a major manufacturer that does not appear to be reporting ingredients to you that you really know are in these products because you’ve chemically de-formulated, or it’s just implausible that they’re not using any of these things everybody else is using.”
Sometime after the law went into effect, I got a call from a toxicologist at Department of Public Health who said, “OK, we’ve got it.” There is a hair-straightening product called Brazilian blowout that seems to be causing tremendous occupational illness among salon workers, and it smells like formaldehyde. People have all these acute symptoms consistent with exposures to high levels of formaldehyde—they’re wheezing, they’re coughing, they’re having asthma attacks, their eyes are burning, their mucus membranes are irritated. Some of them are actually now doing these hair-straightening treatments out of doors, and some of the customers are also complaining that they’re sick for days after getting these.
To make a multi-year story short, I was, at the time at the California Attorney General’s office in the environmental enforcement section, ended up bringing a lawsuit against Brazilian blowout for not having disclosed that formaldehyde was indeed in its product. As this thing made its way through the court system, along with various class-action lawsuits brought by salon workers who had purchased this expensive product they no longer wanted to use, this ended up triggering the first cosmetics safety hearing in Congress in 30 years. What it brought to light, which I already knew, was that cosmetics were hands down the least regulated consumer product sector in America. There are about two pages of US code devoted to cosmetics regulation, and that title was last updated in 1938. This is unbelievably antiquated, even compared to, you know, 1970s laws we’re talking about that govern toxic exposures.
And I recently had lunch with a green technology innovator, someone who did very impressive things with respect to energy-efficient windows. He said to me, “I have a child who’s really interested in this issue of safe cosmetics.” It’s actually something that’s getting a lot of conversational attention among young adults, college-aged students, even high schoolers, interested in safer cosmetics as they become more aware of harms from conventional products. He said, “You know, my daughter would love to work on this issue. You know, what do we need to do?” And we just talked about how much blank space there is for innovation. We really do need bench-scale chemists working on this.
[00:22:55] Anne Chappelle: So, what do you do? People listening to this who are toxicologists and regulatory people, what do you do?
[00:23:01] Claudia Polsky: Something that scientists can really do has to do with the abstracts and the conclusions of their papers because the most common way to end a peer-reviewed science paper is essentially to say more research needs to be done. And I get that the world of research runs mostly on soft money, and people wanna keep funding their lab. And people do have a genuine intellectual curiosity in their subspecialty area to get ever more granular with what they know, right? To rule out confounders, to ask new questions, all that. However, that kind of statement gets tremendously weaponized in political space because you can have really the most fundamentally damning article from which industry can pull something out and say, “The foremost researcher on phthalates, the foremost researcher on endocrine-disrupting chemicals, the foremost researcher on BPA says, ‘We need more research.’” You know, it’s totally indeterminate. Every rare once in a while, there’s a paper that says something like, “We need more research to determine X, Y, Z, but we know enough to know that we should do this thing. We can take action as to these things. There is a no-regrets path that involves this kind of regulation or this kind of action or this kind of investment in moving away from these toxic chemistries.”
And so, my call would really be for every scientist who works in this applied area of environmental health–oriented toxicology to think every time they’re putting something out in public space about how to be clear when they personally think we know enough to make something safer. You can still get more money. You know, there’s always value in figuring out if you’re making the best intervention and advancing scientific knowledge for its own sake. I’m a big fan of pure science. You never know what’s gonna come out of just that really in-depth research. But understand, there is a policy consequence to putting that information out there, and either you can delay things for 20 years by being equivocal or you can advance them for 20 years by being willing to say, “We know some things. Certainly, we know as much as we ever know going into political space about what a good intervention might look like.”
[00:25:17] David Faulkner: We’ve talked about lawyers and toxicologists. Thinking about ordinary citizens, it seems like there’s a lot of potential, too, for just everyday people to say to legislators, to people in positions of government, “These are things that we care about. These are important issues. You know, we want safe products. We want safe places to live. We want someone who has the ability to do so to intervene on our behalf.” Because otherwise, it takes forever, and it just doesn’t happen.
And I think that there are a lot of examples in markets where companies have said, “Ah, it’s impossible; we can’t do that. It would just be too prohibitively expensive. It can’t be done.” And then, a piece of legislation comes along and suddenly, “Oh, that actually was feasible. It turns out we could have done that. We just didn’t for a variety of reasons.” The average person may have a sense that this is just how it is. Part of the communication is to inform people, “Things can be better than they are, but we have to ask for that.”
[00:26:18] Claudia Polsky: I love how you put that.
It’s unfortunate that mostly consumers feel the only thing they can do is perhaps shop a little greener, vote with your dollars. And in that way, people are sending a market signal.
What I would urge people to do is just take one more step. Buy a greener product, and then, write a postcard to the conventional product company and tell them why you switched. That becomes a really powerful tool in the hands of an internal changemaker at that company: “It’s not that I’m this rebel and who wants to bring down your business operation. I’m showing you; your customers are ready for this new thing.” That can be very powerful.
And I have heard so many stories of it was a single individual saying, “I’m worried that there’s BPA in these register receipts because I’m just handling one with my groceries, but I see that there’s a clerk at the cashier who’s handling these all day long. That’s a very bioavailable form of BPA. Why are we regulating it in sippy cups before we are regulating it in this occupational exposure setting? Can’t we change that in this store? Can’t we have paperless receipts? Can’t we do something else?”
And so, I would just urge consumers, insofar as the personal is political, to shop a little greener and then to do one other thing. Tell your other neighbor why you made the change. Write the postcard. Ask the question. Because it’s surprising how often if you whisper in the right ear, you can make something happen.
[00:27:37] Anne Chappelle: We always ask a couple of questions just to kinda lighten it up a little bit at the end.
[00:27:41] David Faulkner: What would you be doing if you were not doing what you are currently doing? What is the alternate-universe Claudia Polsky doing?
[00:27:48] Claudia Polsky: I could easily have been a synthetic chemist if I had gone to school in this time. When I was going through high school and college in the 80s, first of all, I just encountered a tremendous amount of sexism in the chemistry and geophysical sciences realm where I was most interested, I was not pretty interested in biology, and I also didn’t really see any way that chemistry, which was a science I most enjoyed, intersected with any of the social issues I cared about. Chemistry didn’t seem to be about solving social problems. So, this whole world of green chemistry is very exciting to me, and it’s thrilling to me to see how many women there are at Cal in chemistry and engineering. I used to do guest lectures and start by talking about some issues of gender and science, and then, it just became irrelevant because often the class was majority female. So, that’s something I might have done.
I think if I were to do something new now, I couldn’t really bear to go back and take organic chemistry, so I would probably be working in prison literacy or alternative sentencing or something related to criminal justice system reform.
[00:28:58] David Faulkner: Last season’s theme was “Hidden Toxicology,” and of my favorite questions from that season was, what hidden talents do you have?
[00:29:06] Claudia Polsky: Something I would never put on a resume—and is only infrequently implicated—is that because I was a competitive fencer for many years, I am tremendously good at swatting flies, and my mother used to pay me five cents a fly in the summertime to eradicate them in our home through mechanical means.
[00:29:28] David Faulkner: “Eradication through mechanical means.” I love that as a euphemism for swatting flies. That’s amazing.
[00:29:36] Anne Chappelle: That is a fantastic way to help close our interview. Claudia, you have given us so much to think about, and I really like this intersection of tox and the law. It’s been a pleasure.
[00:29:47] Claudia Polsky: Likewise, I appreciate the opportunity.
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[00:29:53] Anne Chappelle: So, that was cool.
[00:29:54] David Faulkner: This was so much fun. I know we could keep talking for hours, but alas, there are only so many hours in the day.
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[00:30:06] Anne Chappelle: Thank you, all, for joining us for this episode of Adverse Reactions, presented by the Society of Toxicology.
[00:30:13] David Faulkner: And thank you to Dave Leve at Ma3stro Studios,
[00:30:16] Anne Chappelle: that’s Ma3stro with a three, not an E,
[00:30:19] David Faulkner: who created and produced all the music for Adverse Reactions, including the theme song, "Decompose."
[00:30:25] Anne Chappelle: The viewpoints and information presented in Adverse Reactions represent those of the participating individuals. Although the Society of Toxicology holds the copyright to this production, it has,
[00:30:36] David Faulkner: definitely,
[00:30:38] Anne Chappelle: not vetted or reviewed the information presented herein,
[00:30:42] David Faulkner: nor does presenting and distributing this podcast represent any proposal or endorsement of any position by the Society.
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[00:31:00] Anne Chappelle: I’m Anne Chappelle,
[00:31:01] David Faulkner: and I’m David Faulkner.
[00:31:02] Anne Chappelle: This podcast was approved by Anne’s mom.
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[00:31:10] End of Episode