STATE OF
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BEFORE THE
INDIANA DEPARTMENT OF |
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COUNTY OF
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ENVIRONMENTAL
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COMMISSIONER
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ENVIRONMENTAL MANAGEMENT, |
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Complainant, |
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Case No. 2017-24700-H |
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LAL Acquisition, Inc., |
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Respondent. |
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AGREED ORDER
Complainant and Respondent desire to
settle and compromise this action without hearing or adjudication of any issue
of fact or law, and consent to the entry of the following Findings of Fact and
Order. Pursuant to IC 13-30-3-3, entry
into the terms of this Agreed Order does not constitute an admission of any
violation contained herein. Respondent’s
entry into this Agreed Order shall not constitute a waiver of any defense,
legal or equitable, which Respondent may have in any future administrative or
judicial proceeding, except a proceeding to enforce this order.
I.
FINDINGS OF FACT
1.
Complainant is the Commissioner (“Complainant”)
of the Indiana Department of Environmental Management (“IDEM”), a department of
the State of Indiana created by Indiana Code (“IC”) 13-13-1-1.
2.
Respondent is LAL Acquisition, Inc. (“Respondent”),
which owns/operates the facility with United States Environmental Protection
Agency (“EPA”) ID No. IND 006 419 022 located at 9501 South Center Road, in Muncie,
Delaware County, Indiana (“Site”).
3.
IDEM has jurisdiction over the parties and the
subject matter of this action.
4.
Pursuant to IC 13-30-3-3, IDEM issued a Notice
of Violation (“NOV”) to:
Mr. Todd E.
Hunt, President and Registered Agent |
LAL
Acquisition, Inc. |
9501 South
Center Road |
Muncie, IN
47302-9443 |
5.
Respondent notified EPA of Small Quantity Hazardous
Waste Generator (SQG) activities.
6.
Respondent specializes in designing,
engineering, and customizing aerial lifts.
7.
329 Indiana Administrative Code (“IAC”) 3.1
incorporates certain federal hazardous waste management requirements found in
40 Code of Federal Regulations (“CFR”) Parts 260 through 270 and Part 273,
including those identified below.
8.
During an investigation including an inspection
conducted on April 28, 2017 by a representative of IDEM, the following
violations were found:
a. Pursuant to 40 CFR 262.11, a person who
generates a solid waste must determine if that waste is hazardous.
As noted during the inspection,
Respondent did not make hazardous waste determinations on the wash water
generated from cleaning metal parts prior to painting and the solvent
contaminated wipes, which both are solid wastes generated by Respondent.
Since a waste determination had not been
previously conducted on the wash water, IDEM requested a waste determination in
a letter dated May 15, 2017. Based on
Respondent’s submittal dated June 14, 2017, the wash water was found to be
non-hazardous.
Respondent did not make a proper waste
determination for the solvent-contaminated wipes (F003, F005, D001). The
solvent-contaminated wipes were being air dried and disposed of as a solid
waste. Drying solvent-contaminated wipes
is considered treatment of hazardous waste.
These solvent- contaminated wipes may be managed accordance with the
exclusion found at 40 CFR 261.4(b)(18), provided the
required conditions are met; or, the wipes must be managed as a hazardous
waste.
b.
Pursuant to 40 CFR 262.34(a)(4) referencing 40
CFR 265.31, facilities must be maintained and operated to minimize the
possibility of a fire, explosion, or any unplanned sudden or non-sudden release
of hazardous waste or hazardous waste constituents to air, soil, or surface
water which could threaten human health or the environment.
As noted during the inspection,
Respondent failed to properly manage the solvent-contaminated wipes (F003,
F005, D001) to minimize a release to the environment. The solvent-containing wipes were allowed to
be air dried prior to disposal.
c.
Pursuant to 40 CFR 262.34(c)(1)(ii), a
generator may accumulate as much as 55 gallons of hazardous waste in containers
at or near the point of generation without a permit and without complying with
40 CFR 262.34(a), provided that the containers are marked with either the words
"Hazardous Waste" or with other words describing the contents.
As noted during the inspection,
Respondent accumulated hazardous waste (F003, F005, D001) in containers at or
near the point of generation, outside the paint room without a permit and did
not properly mark satellite accumulation containers with either the words
“Hazardous Waste” or with other words describing the contents.
d.
Pursuant to 40 CFR 262.34(d)(2) referencing 40
CFR 265.173(a), a container holding hazardous waste must always be closed
during storage, except when it is necessary to add or remove waste.
As noted during the inspection,
Respondent did not store a container of hazardous waste closed. Specifically, one (1) fifty-five (55) gallon
drum of solvent-contaminated wipes (F003, F005, D001)
was stored open outside the paint room.
The container was closed during the inspection.
e.
Pursuant to 40 CFR 262.34(c)(2),
a generator who accumulates either hazardous waste or acutely hazardous waste
listed in §261.31 or §261.33(e) in excess amounts listed in paragraph (c)(1) of
this section at or near the point of generation must, with respect to that
amount of excess waste, comply within three days with paragraph (a) of this
section or other applicable provisions of this chapter. During the three day period the generator must
continue to comply with paragraphs (c)(1)(i) and (ii) of this section. The generator must mark the container holding
the excess amount accumulation of hazardous waste with the date the excess
amount began accumulating.
As noted during the inspection,
Respondent accumulated an excess of fifty-five (55) gallons of hazardous waste
(F003, F005, D001) at the liquid paint booth satellite location. The excess accumulated amount was not marked
with the date the excess began accumulating or marked or labeled with the words
“Hazardous Waste” or with other words that identify the contents of the
containers. The excess amount had been
accumulating for approximately 2 days at the time of the inspection.
f.
Pursuant to 40 CFR 262.34(d)(5)(ii), the
generator must post the following information next to the telephone: (1) the
name and phone number of the emergency coordinator; (2) location of fire
extinguishers and spill control material and if present, fire alarm; (3) the
telephone number of the fire department, unless the facility has a direct
alarm.
As noted during the inspection,
Respondent failed to post the required information.
g.
Pursuant to 262.34(d)(5)(iii),
the generator must ensure all the employees are thoroughly familiar with proper
waste handling and emergency procedures, relevant to their responsibilities
during normal facility operations and emergencies.
Respondent’s employees have had some
training; however, based on the violations found at the time of the inspection,
the training provided was inadequate.
h.
Pursuant to 329 IAC 13-4-3(d), generators must
label all used oil containers and aboveground tanks with the words “Used Oil.”
As noted during the inspection,
Respondent did not label one (1) fifty-five (55) gallon container with the
words “Used Oil.”
i.
Pursuant to IC 13-30-2-1(1), no person shall
discharge, emit, cause, allow, or threaten to discharge, emit, cause, or allow
any contaminant or waste, including any noxious odor, either alone or in
combination with contaminants from other sources, into the environment in any
form that causes or would cause pollution that violates or would violate 329
IAC 10-4-2, a rule adopted by the board under the environmental management
laws.
As noted during the inspection,
Respondent discharged, emitted, caused, allowed, or threatened to discharge,
emit, cause or allow the following contaminants or waste into the environment:
a.
Solvent-contaminated wipes (F003, F005, D001) were being air dried and disposed of as solid waste. Air drying solvent-contaminated wipes allows
hazardous constituents to be emitted into the air. Drying solvent-contaminated wipes is
considered treatment; treatment cannot be conducted without a permit.
b.
Blue powder coat paint was observed on the
vents, exterior walls of the building, surrounding equipment, and the ground. It was allowed to drain to a storm water drain
just to the east of the paint booth. The storm drain discharges to No Name
Creek.
c.
Wash water was observed draining from the paint
prep room to the outside storm drain to the north of the building. The storm
drain discharges to No Name Creek.
d.
Overspray was also observed coming from vents
in the liquid paint booth and was observed on the vent on the south side of the
compressor room.
j.
Pursuant to 329 IAC 10-4-2, no person shall
cause or allow the storage, containment, processing, or disposal of solid waste
in a manner which creates a threat to human health or the environment,
including the creating of a fire hazard, vector attraction, air or water
pollution, or other contamination.
As noted during the inspection,
Respondent caused and/or allowed solid waste to be stored, contained, processed
or disposed at the Site in a manner which creates a threat to human health or
the environment in the following areas;
a.
Solvent-contaminated wipes (F003, F005, D001) were being air dried and disposed of as solid
waste. Air drying solvent-contaminated
wipes allows hazardous constituents to be emitted into the air. Drying solvent contaminated wipes is
considered treatment; treatment cannot be conducted without a permit;
b.
Blue powder coat paint was observed on the vents,
exterior walls of the building, surrounding equipment, and the ground. It was allowed to drain to a storm water
drain just to the east of the paint booth. The storm drain discharges to No
Name Creek;
c.
Wash water was observed draining from the paint
prep room to the outside storm drain to the north of the building. The storm
drain discharges to No Name Creek;
d.
Overspray was also observed coming from vents
in the liquid paint booth and was observed on the vent on the south side of the
compressor room.
k.
Pursuant to 40 CFR 270.1(c), a permit is
required for the treatment, storage and disposal of any hazardous waste as
identified or listed in 40 CFR Part 261.
As
noted during the inspection, Respondent treated hazardous waste identified or
listed in 40 CFR Part 261 without a permit.
Specifically, solvent-contaminated wipes (F003, F005, D001)
were being air dried and disposed of as solid waste. Drying solvent contaminated wipes is
considered treatment; treatment cannot be conducted without a permit.
l. Pursuant to IC 13-30-2-1(10), a person
may not commence or engage in the operation of a hazardous waste facility
without having first obtained a permit from the department.
As
noted during the inspection, Respondent operated a hazardous waste facility
without having first obtained a permit from the department. Specifically,
solvent-contaminated wipes (F003, F005, D001) were being
air dried and disposed of as solid waste.
Drying solvent contaminated wipes is considered treatment; treatment
cannot be conducted without a permit.
m. Pursuant to 329 IAC 3.1-1-10, every
hazardous waste generator, transporter, or owner or operator of a hazardous
waste facility shall notify the commissioner of its hazardous waste activity on
the approved forms.
As
noted during the inspection, Respondent failed to notify the Commissioner of
hazardous waste treatment activities. Specifically,
solvent-contaminated wipes (F003, F005, D001) were
being air dried and disposed of as solid waste.
Drying solvent contaminated wipes is considered treatment; treatment
cannot be conducted without a permit.
9.
Respondent submitted a preliminary response
dated February 15, 2018 to the Notice of Violation and Proposed Agreed Order
dated January 5, 2018. These actions
will be field verified.
10. In recognition of the settlement reached,
Respondent waives any right to administrative and judicial review of this
Agreed Order.
II. ORDER
1.
This Agreed Order shall be effective
(“Effective Date”) when it is approved by Complainant or Complainant’s
delegate, and has been received by Respondent.
This Agreed Order shall have no force or effect until the Effective Date.
2.
Respondent shall comply with the statutes,
rules, and/or permit conditions listed in the findings above.
3.
Upon the Effective Date, Respondent shall comply
with 40 CFR 262.34(a)(4) referencing 40 CFR
265.31. Specifically, Respondent shall cease
air drying the solvent-contaminated wipes (F003, F005, D001) prior to disposal.
4.
Upon the Effective Date, Respondent shall
comply with 40 CFR 262.11. Specifically,
within thirty (30) days of the Effective Date, Respondent shall submit to IDEM
how the solvent-contaminated wipes (F003, F005, D001) will be managed in the
future. Respondent may manage the
solvent-contaminated wipes (F003, F005, D001) as a
hazardous waste in accordance to the applicable regulations. They also may be managed in accordance with
the exclusion found at 40 CFR 261.4(b)(18) unless they
exhibit a characteristic of toxicity, corrosivity, or reactivity due to
contaminants other than solvents.
5.
Upon the Effective Date, Respondent shall
comply with 40 CFR 262.34(c)(1) and (2). Specifically, Respondent shall ensure
satellite hazardous waste containers are marked with either the words
“Hazardous Waste” or with other words describing the contents. Respondent shall also ensure the container
holding the excess of hazardous waste is marked with the date the excess
started to accumulate.
6.
Upon the Effective Date, Respondent shall
comply with 40 CFR 262.34(d)(2) referencing 40 CFR
265.173(a). Specifically, Respondent
shall ensure containers of hazardous waste are stored closed during storage,
except when it is necessary to add or remove waste.
7.
Within thirty (30) days of the Effective Date,
Respondent shall submit to IDEM employee training documentation. This shall include a description of the
training and the employees who received the training to ensure they are
thoroughly familiar with the proper waste handling and emergency procedures,
relevant to their responsibilities during normal facility operations and
emergencies.
8.
Upon the Effective Date, Respondent shall
ensure all used oil containers and aboveground tanks are labeled with the words
‘Used Oil”.
9.
Within thirty (30) days of the Effective Date,
Respondent shall submit conduct the following:
a.
Submit to IDEM the steps that will be
implemented to prevent powder coat paint from exiting the building from the
vents onto the exterior walls of the building, surrounding equipment and onto
the ground. The blue powder coat paint
outside on the ground shall be cleaned up six (6) inches beyond visible
contamination. The concrete area with
blue powder coat paint shall be mechanically cleaned by scraping, sweeping, or
other method, to remove all physical contamination. The generated waste shall be characterized
and disposed of properly. Submit to IDEM
the disposal documentation.
b.
Cease discharging wash waters from the paint
prep room to the outside storm drain to the north of the building without first
obtaining the applicable industrial wastewater permit from IDEM. Submit to IDEM how the wash waters will be
managed and disposed in the future.
c.
Submit to IDEM the steps that will be
implemented to prevent paint overspray in the vents in the paint liquid room
and from the vents in the compressor room.
10.
All submittals required by this Agreed Order,
unless Respondent is notified otherwise in writing by IDEM, shall be sent to:
Christina Halloran, Enforcement Case
Manager |
Office of Land Quality |
Indiana Department of Environmental
Management |
100 North Senate Avenue |
Indianapolis, IN 46204-2251 |
11.
Respondent is assessed and agrees to pay a
civil penalty of Twenty Three Thousand and Four Hundred Dollars ($23,400). Within sixty (60) days of the Effective Date,
Respondent shall pay a portion of this penalty in the amount of Four Thousand
Six Hundred and Eighty Dollars ($4,680) to the Environmental Management Special
Fund. In lieu of payment of the
remaining civil penalty, Respondent shall make a cash payment to the Indiana
Finance Authority ("IFA") to fund a Supplemental Environmental
Project ("SEP") of activities related to brownfield development at a
brownfield site ("Brownfield Site") in Muncie, Indiana. Respondent will make a payment in the amount
of Eighteen Thousand Seven Hundred and Twenty Dollars ($18,720) to fund SEP
activities at the Brownfield Site.
Respondent shall make such payment to the IFA within ninety (90) days of
the Effective Date. Payment to the IFA
satisfies Respondent's obligation to undertake a SEP to offset a portion of the
civil penalty assessed in this matter. Implementation of this SEP will benefit the
community by rejuvenating neighborhoods, increasing the tax base, mitigating
threats to human health and the environment, and/or reducing blight. In the event that the civil penalty is not
paid within sixty (60) days of the Effective Date, Respondent shall pay
interest on the unpaid balance at the rate established by IC 24-4.6-1-101. The interest shall continue to accrue until
the civil penalty is paid in full.
The Brownfield Site at which some or all
of the SEP proceeds will be spent will be determined by the Brownfields Program
for a site located in Muncie, Indiana. The designation of this Brownfield
Site to receive the SEP proceeds is agreed upon by the Complainant, Respondent,
and the IFA. The IFA will account for
the SEP payment and the Brownfields Program will oversee the work undertaken at
the Brownfield Site funded by the SEP proceeds. If SEP proceeds remain
following a determination by the Brownfields Program that no additional SEP proceeds
are needed at the Brownfield Site, the Brownfields Program will select another
site or sites in Muncie at which work will be funded with the balance of the
SEP proceeds. The IFA will notify IDEM's
Enforcement Case Manager when SEP-funded activities at the Brownfield Site (and
any other site at which activities may be funded with SEP proceeds) are
complete.
In the event that Respondent does not
make its SEP payment within ninety (90) days of the Effective Date, the full
amount of the civil penalty as stated in this paragraph, plus interest
established by IC 24-4.6-1-101 on the remaining amount, less the portion of the
civil penalty Respondent has already paid, will be due within fifteen (15) days
from Respondent's receipt of IDEM's notice to pay. Interest at the rate established by IC
24-4.6-1-101, shall be calculated on the amount due from the date which is sixty
(60) days after the Effective Date of this Agreed Order until the full civil
penalty is paid.
Payment of the SEP is payable by check
to the "Indiana Finance Authority."
The text "SEP- Muncie" and the Case Numbers of this action
shall be included in the memo line of the check. The check shall be mailed to:
Meredith Gramelspacher |
Indiana Brownfields Program - SEP |
100 N. Senate Avenue |
Room 1275 |
Indianapolis, Indiana 46204 |
12.
In the event the terms and conditions of the
following paragraphs are violated, Complainant may assess and Respondent shall
pay a stipulated penalty in the following amount:
Paragraph |
Penalty |
4 |
100/week |
7 |
100/week |
9 |
500/week |
13.
Stipulated penalties shall be due and payable
no later than the 30th day after Respondent receives written notice
that Complainant has determined a stipulated penalty is due; the 30th
day being the “Due Date”. Complainant
may notify Respondent at any time that a stipulated penalty is due. Failure to notify Respondent in writing in a
timely manner of stipulated penalty assessment shall not waive Complainant’s
right to collect such stipulated penalty or preclude Complainant from seeking
additional relief against Respondent for violation of this Agreed Order. Neither assessment nor payment of stipulated
penalties shall preclude Complainant from seeking additional relief against
Respondent for a violation of this Agreed Order; such additional relief includes
any remedies or sanctions available pursuant to Indiana law, including, but not
limited to, civil penalties pursuant to IC 13-30-4.
14.
Civil and stipulated penalties are payable by
check to the “Environmental Management Special Fund.” Checks shall include the Case Number of this
action and shall be mailed to:
Indiana Department of Environmental
Management |
Office of Legal Counsel |
IGCN, Room N1307 |
100 North Senate Avenue |
Indianapolis, IN 46204 |
15.
In the event that the monies due to IDEM
pursuant to this Agreed Order are not paid on or before their Due Date,
Respondent shall pay interest on the unpaid balance at the rate established by
IC 24-4.6-1. The interest shall be
computed as having accrued from the Due Date until the date that Respondent
pays any unpaid balance. Such interest
shall be payable to the Environmental Management Special Fund, and shall be
payable to IDEM in the manner specified in Paragraph 14, above.
16.
This Agreed Order shall apply to and be binding
upon Respondent and its successors and assigns.
Respondent’s signatories to this Agreed Order certify that they are
fully authorized to execute this Agreed Order and legally bind the party they
represent. No change in ownership, corporate,
or partnership status of Respondent shall in any way alter its status or
responsibilities under this Agreed Order.
17.
In the event that any terms of this Agreed
Order are found to be invalid, the remaining terms shall remain in full force
and effect and shall be construed and enforced as if this Agreed Order did not
contain the invalid terms.
18.
Respondent shall provide a copy of this Agreed
Order, if in force, to any subsequent owners or successors before ownership
rights are transferred. Respondent shall
ensure that all contractors, firms and other persons performing work under this
Agreed Order comply with the terms of this Agreed Order.
19.
This Agreed Order is not
and shall not be interpreted to be a permit or a modification of an existing
permit. This Agreed Order, and IDEM’s
review or approval of any submittal made by Respondent pursuant to this Agreed
Order, shall not in any way relieve Respondent of its obligation to comply with
the requirements of its applicable permits or any applicable Federal or State
law or regulation.
20.
Complainant does not, by
its approval of this Agreed Order, warrant or aver in any manner that
Respondent’s compliance with any aspect of this Agreed Order will result in
compliance with the provisions of any permit, order, or any applicable Federal
or State law or regulation.
Additionally, IDEM or anyone acting on its behalf shall not be held
liable for any costs or penalties Respondent may incur as a result of
Respondent’s efforts to comply with this Agreed Order.
21.
Nothing in this Agreed
Order shall prevent or limit IDEM’s rights to obtain penalties or injunctive
relief under any applicable Federal or State law or regulation, except that
IDEM may not, and hereby waives its right to, seek additional civil penalties
for the same violations specified in the NOV.
22.
This Agreed Order shall remain in effect until
IDEM issues a Resolution of Case letter to Respondent.
TECHNICAL RECOMMENDATION: |
RESPONDENT: |
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Department of
Environmental Management |
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By:
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By: _________________________ |
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Nancy
Johnston, Section Chief |
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Enforcement
Section |
Printed:
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Office of
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Title:
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Date: __________________ |
Date:
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COUNSEL FOR INDIANA
FINANCE |
COUNSEL FOR RESPONDENT: |
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AUTHORITY: |
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By:__________________________ |
By:
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Director & General
Counsel |
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Date:_________________________ |
Date:
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COUNSEL &/ORAUTHORIZED |
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REPRESENTATIVE: |
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For the City of Muncie |
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By:_________________________ |
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Date:________________________ |
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APPROVED AND
ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL |
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MANAGEMENT
THIS |
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DAY
OF |
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20__. |
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For the
Commissioner: |
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_Signed
02/07/2019 By: |
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Peggy Dorsey, Assistant Commissioner |
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Office of
Land Quality |
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