HOUSE BILL 91

56th legislature - STATE OF NEW MEXICO - first session, 2023

INTRODUCED BY

Joanne J. Ferrary and Tara L. Lujan and

Antoinette Sedillo Lopez

 

 

 

 

AN ACT

RELATING TO NATURAL RESOURCES; AUTHORIZING THE NATURAL RESOURCES TRUSTEE TO BRING SUIT FOR DAMAGES CAUSED BY RELEASE OF AN INJURIOUS SUBSTANCE PURSUANT TO THE NATURAL RESOURCES TRUSTEE ACT; PROVIDING FOR THE ADOPTION OF RULES FOR THE ASSESSMENT AND COLLECTION OF FINES RELATED TO THE RELEASE OF PETROLEUM-BASED INJURIOUS SUBSTANCES; PROVIDING LIMITATIONS; AMENDING THE NATURAL RESOURCES TRUSTEE FUND; PROVIDING THAT THE NATURAL RESOURCES TRUSTEE MAY JOIN A CIVIL ACTION PURSUANT TO THE WATER QUALITY ACT, THE AIR QUALITY CONTROL ACT AND THE HAZARDOUS WASTE ACT; AMENDING AND ENACTING SECTIONS OF THE NMSA 1978; MAKING AN APPROPRIATION.

 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

     SECTION 1. Section 74-2-12 NMSA 1978 (being Laws 1992, Chapter 20, Section 14, as amended) is amended to read:

     "74-2-12. ENFORCEMENT--COMPLIANCE ORDERS--FIELD CITATIONS.--

          A. When, on the basis of any information, the secretary or the director determines that a person has violated or is violating a requirement or prohibition of the Air Quality Control Act, a regulation promulgated pursuant to that act or a condition of a permit issued under that act, the secretary or the director may:

                (1) issue a compliance order within one year after the violation becomes known by the department or the local agency stating with reasonable specificity the nature of the violation and requiring compliance immediately or within a specified time period or assessing a civil penalty for a past or current violation, or both; or

                (2) commence a civil action in district court for appropriate relief, including a temporary or permanent injunction.

          B. An order issued pursuant to Subsection A of this section may include a suspension or revocation of the permit or portion thereof issued by the secretary or the director that is alleged to have been violated. Any penalty assessed in the order shall not exceed fifteen thousand dollars ($15,000) per day of noncompliance for each violation.

          C. An order issued pursuant to Subsection A of this section shall become final unless, no later than thirty days after the order is served, the person named therein submits a written request to the secretary or the director for a public hearing. Upon such request, the secretary or the director shall promptly conduct a public hearing. The secretary or the director shall appoint an independent hearing officer to preside over the public hearing. The hearing officer shall make and preserve a complete record of the proceedings and forward the hearing officer's recommendation based thereon to the secretary or the director, who shall make the final decision.

          D. The environmental improvement board or the local board may implement a field citation program through regulations establishing appropriate minor violations for which field citations assessing civil penalties not to exceed one thousand dollars ($1,000) per day of violation may be issued by officers or employees of the department or the local agency as designated by the secretary or the director.

          E. A person to whom a field citation is issued pursuant to Subsection D of this section may, within a reasonable time as prescribed by regulation by the environmental improvement board or the local board, elect to pay the penalty assessment or to request a hearing by the issuing agency on the field citation. If a request for hearing is not made within the time specified in the regulation, the penalty assessment in the field citation shall be final.

          F. Payment of a civil penalty required by a field citation issued pursuant to Subsection D of this section shall not be a defense to further enforcement by the department or the local agency to correct a violation or to assess the maximum statutory penalty pursuant to other authorities in the Air Quality Control Act if the violation continues.

          G. In determining the amount of a penalty to be assessed pursuant to this section, the secretary, the director or the person issuing a field citation shall take into account the seriousness of the violation, any good-faith efforts to comply with the applicable requirements and other relevant factors.

          H. In connection with a proceeding under this section, the secretary or the director may issue subpoenas for the attendance and testimony of witnesses and the production of relevant papers, books and documents and may adopt rules for discovery procedures.

          I. If a person fails to comply with an administrative order, the secretary or director may initiate an action to suspend or revoke the permit, or portion thereof, alleged to have been violated or to commence a civil action in district court to enforce the order, or to suspend or revoke the permit, or both.

          J. If a person fails to pay an assessment of a civil penalty, the secretary or director may commence a civil action in district court to collect the civil penalties assessed in the order.

          K. Penalties collected pursuant to this section shall be deposited in the:

                (1) municipal or county general fund, as applicable, if the administrative order or field citation was directed to a source located within a local authority; or

                (2) state general fund if the administrative order or field citation was directed to any other source.

          L. The natural resources trustee may join a civil action for the release of an air contaminant pursuant to the Natural Resources Trustee Act."

     SECTION 2. Section 74-4-10 NMSA 1978 (being Laws 1981 (1st S.S.), Chapter 8, Section 9, as amended) is amended to read:

     "74-4-10. ENFORCEMENT--COMPLIANCE ORDERS--CIVIL PENALTIES.--

          A. Whenever on the basis of any information the secretary determines that any person has violated, is violating or threatens to violate any requirement of the Hazardous Waste Act, any rule adopted and promulgated pursuant to that act or any condition of a permit issued pursuant to that act, the secretary may:

                (1) issue a compliance order stating with reasonable specificity the nature of the violation or threatened violation and requiring compliance immediately or within a specified time period or assessing a civil penalty for any past or current violation, or both; or

                (2) commence a civil action in district court for appropriate relief, including a temporary or permanent injunction.

          B. Any order issued pursuant to Subsection A of this section may include a suspension or revocation of any permit issued by the secretary. Any penalty assessed in the order shall not exceed ten thousand dollars ($10,000) per day of noncompliance for each violation. In assessing the penalty, the secretary shall take into account the seriousness of the violation and any good-faith efforts to comply with the applicable requirements. For violations related to storage tanks, "per violation" means per tank.

          C. If a violator fails to take corrective actions within the time specified in a compliance order, the secretary may:

                (1) assess a civil penalty of not more than twenty-five thousand dollars ($25,000) for each day of continued noncompliance with the order; and

                (2) suspend or revoke any permit issued to the violator pursuant to the Hazardous Waste Act.

          D. Whenever on the basis of any information the secretary determines that the immediate termination of a research, development and demonstration permit is necessary to protect human health or the environment, the secretary may order an immediate termination of all research, development and demonstration operations permitted pursuant to the Hazardous Waste Act at the facility.

          E. Whenever on the basis of any information the secretary determines that there is or has been a release of hazardous waste into the environment from a facility authorized to operate under Section 74-4-9 NMSA 1978, the secretary may issue an order requiring corrective action, including corrective action beyond a facility's boundaries or other response measure as [he] the secretary deems necessary to protect human health or the environment or may commence an action in district court in the district in which the facility is located for appropriate relief, including a temporary or permanent injunction.

          F. Any order issued under Subsection E of this section may include a suspension or revocation of authorization to operate under Section 74-4-9 NMSA 1978 and shall state with reasonable specificity the nature of the required corrective action or other response measure and shall specify a time for compliance. If any person named in an order fails to comply with the order, the secretary may assess, and the person shall be liable to the state for, a civil penalty in an amount not to exceed ten thousand dollars ($10,000) for each day of noncompliance with the order.

          G. Any order issued pursuant to this section, any other enforcement proceeding initiated pursuant to this section or any claim for personal or property injury arising from any conduct for which evidence of financial responsibility must be provided may be issued to or taken against the insurer or guarantor of an owner or operator of a treatment, storage or disposal facility or storage tank if:

                (1) the owner or operator is in bankruptcy, reorganization or arrangement pursuant to the federal Bankruptcy Code; or

                (2) jurisdiction in any state or federal court cannot with reasonable diligence be obtained over an owner or operator likely to be solvent at the time of judgment.

          H. Any order issued pursuant to this section shall become final unless, no later than thirty days after the order is served, the person named in the order submits a written request to the secretary for a public hearing. Upon such request, the secretary shall promptly conduct a public hearing. The secretary shall appoint an independent hearing officer to preside over the public hearing. The hearing officer shall make and preserve a complete record of the proceedings and forward [his] a recommendation based on the record to the secretary, who shall make the final decision.

          I. In connection with any proceeding under this section, the secretary may issue subpoenas for the attendance and testimony of witnesses and the production of relevant papers, books and documents and may promulgate rules for discovery procedures.

          J. Penalties collected pursuant to an administrative order shall be deposited in the state treasury to be credited to the hazardous waste emergency fund.

          K. The natural resources trustee may join a civil action for the release of a hazardous waste pursuant to the Natural Resources Trustee Act."

     SECTION 3. Section 74-6-10 NMSA 1978 (being Laws 1967, Chapter 190, Section 9, as amended) is amended to read:

     "74-6-10. PENALTIES ENFORCEMENT--COMPLIANCE ORDERS--PENALTIES--ASSURANCE OF DISCONTINUANCE.--

          A. Whenever, on the basis of any information, a constituent agency determines that a person violated or is violating a requirement, regulation or water quality standard adopted pursuant to the Water Quality Act or a condition of a permit issued pursuant to that act, the constituent agency may:

                (1) issue a compliance order requiring compliance immediately or within a specified time period or issue a compliance order assessing a civil penalty, or both; or

                (2) commence a civil action in district court for appropriate relief, including injunctive relief.

          B. A compliance order issued pursuant to Paragraph (1) of Subsection A of this section may include a suspension or termination of the permit allegedly violated.

          C. A compliance order shall state with reasonable specificity the nature of the violation. Any penalty assessed in the compliance order shall not exceed:

                (1) fifteen thousand dollars ($15,000) per day of noncompliance with the provisions in Section 74-6-5 NMSA 1978, including a regulation adopted or a permit issued pursuant to that section; or

                (2) ten thousand dollars ($10,000) per day for each violation of a provision of the Water Quality Act other than the provisions in Section 74-6-5 NMSA 1978 or of a regulation or water quality standard adopted pursuant to the Water Quality Act.

          D. In assessing a penalty authorized by this section, the constituent agency shall take into account the seriousness of the violation, any good faith efforts to comply with the applicable requirements and other relevant factors.

          E. For purposes of this section, a single operational event that leads to simultaneous violations of more than one standard shall be treated as a single violation.

          F. If a person fails to take corrective actions within the time specified in a compliance order, the constituent agency may:

                (1) assess a civil penalty of not more than twenty-five thousand dollars ($25,000) for each day of continued noncompliance with the compliance order; and

                (2) suspend or terminate the permit violated by the person.

          G. [Any] A compliance order issued by a constituent agency pursuant to this section shall become final unless, no later than thirty days after the compliance order is served, [any] a person named in the compliance order submits a written request to the commission for a public hearing. The commission shall conduct a public hearing within ninety days after receipt of a request.

          H. The commission may appoint an independent hearing officer to preside over [any] a public hearing held pursuant to Subsection [F] G of this section. The hearing officer shall:

                (1) make and preserve a complete record of the proceedings; and

                (2) forward to the commission a report that includes recommendations if recommendations are requested by the commission.

          I. The commission shall consider the findings of the independent hearing officer, and based on the evidence presented at the hearing, the commission shall make a final decision regarding the compliance order.

          J. In connection with any proceeding [under] provided for in this section, the commission may:

                (1) adopt rules for discovery procedures; and

                (2) issue subpoenas for the attendance and testimony of witnesses and for relevant papers, books and documents.

          K. Penalties collected pursuant to this section shall be deposited in the general fund.

          L. As an additional means of enforcing the Water Quality Act or any regulation or standard of the commission, the commission may accept an assurance of discontinuance of any act or practice deemed in violation of the Water Quality Act, or any regulation or standard adopted pursuant to that act, from any person engaging in, or who has engaged in, such act or practice, signed and acknowledged by the [chairman] chair of the commission and the party affected. Any such assurance shall specify a time limit during which the discontinuance is to be accomplished.

          M. The natural resources trustee may join a civil action for the release of a water contaminant pursuant to the Natural Resources Trustee Act."

     SECTION 4. A new section of the Natural Resources Trustee Act is enacted to read:

     "[NEW MATERIAL] LEGISLATIVE FINDINGS.--The legislature finds that:

          A. the people of the state, including future generations, have the right to a clean and healthy environment, including pure water, clean air, healthy ecosystems and a stable climate and to the preservation of the natural, cultural, scenic and healthful qualities of the environment;

          B. the natural resources of the state are assets held in trust for the benefit of the people of the state, including future generations;

          C. the protection and preservation of natural resources promote the well-being of the people of this state, including future generations; and

          D. the release of injurious substances into the environment constitutes a threat to natural resources and the well-being of the people of this state."

     SECTION 5. A new section of the Natural Resources Trustee Act is enacted to read:

     "[NEW MATERIAL] DEFINITIONS.--As used in the Natural Resources Trustee Act:

          A. "assessment costs" means the costs of restoration and the costs of collecting, compiling and analyzing information, statistics or data to determine damages for injuries to natural resources;

          B. "facility" means:

                (1) a building, structure, installation, equipment, pipe or pipeline, including a pipe into a sewer or publicly owned treatment works, well, pit, pond, lagoon, impoundment, ditch, landfill, storage container, motor vehicle, rolling stock or aircraft; or

                (2) a site or area where an injurious substance has been deposited, stored, disposed of, placed or otherwise come to be located;

          C. "injurious substance" includes:

                (1) an air contaminant substance, including any particulate matter, fly ash, dust, fumes, gas, mist, smoke, vapor, microorganisms, radioactive material, any combination thereof or any decay or reaction product thereof;

                (2) a hazardous waste substance, including any solid waste or combination of solid wastes that because of their quantity, concentration or physical, chemical or infectious characteristics may:

                     (a) cause or significantly contribute to an increase in mortality or an increase in serious irreversible or incapacitating reversible illness; or

                     (b) pose a substantial present or potential hazard to human health or the environment when improperly treated, stored, transported, disposed of or otherwise managed;

                (3) a substance listed by the federal environmental protection agency in:

                     (a) 40 C.F.R., Part 261, Subpart D;

                     (b) 40 C.F.R., Part 261, Appendix VIII; or

                     (c) 40 C.F.R., Part 264, Appendix IX;

                (4) a solid waste or combination of solid wastes that:

                     (a) exceeds the toxicity characteristics listed by the federal environmental protection agency in Table 1 of 40 C.F.R. 261.24; or

                     (b) because of quantity, concentration or physical, chemical or infectious characteristics may: 1) cause or significantly contribute to an increase in mortality or an increase in serious irreversible or incapacitating reversible illness; or 2) pose a substantial present or potential hazard to human health or the environment when improperly treated, stored, transported, disposed of or otherwise managed;

                (5) a water contaminant substance, including any substance that could alter, if discharged or spilled, the physical, chemical, biological or radiological qualities of water, but does not include a source, special nuclear or byproduct material as defined by the federal Atomic Energy Act of 1954;

                (6) a petroleum product, including gasoline, crude oil, fuel oil, diesel oil or fuel, lubricating oil, oil sludge or refuse, or a petroleum-related product or waste fraction of the product or waste that is liquid at standard conditions of temperature and pressure;

                (7) per- and polyfluoroalkyl substances, including their salts and structural isomers; and

                (8) any other substance that, based on its toxicity, persistence and degradability in nature; its potential for accumulation in tissue; and other related factors such as flammability, corrosiveness or other injurious characteristic, is injurious to natural resources;

          D. "natural resources" includes land; minerals; soils; sediments; geologic resources; air; surface waters; ground waters; drinking water supplies; aquifers; perennial, seasonal and ephemeral drainage; arroyos; watersheds; biota; fish; wildlife; supporting habitats; and vegetation; and

          E. "restoration" means the actions necessary to return an injured natural resource to baseline condition as measured in terms of the injured natural resource's physical, chemical or biological properties and the services it previously provided."

     SECTION 6. Section 75-7-2 NMSA 1978 (being Laws 1993, Chapter 292, Section 2, as amended) is amended to read:

     "75-7-2. NATURAL RESOURCES TRUSTEE--OFFICE OF NATURAL RESOURCES TRUSTEE.--

          A. The "natural resources trustee" is created. The trustee is appointed by and serves at the pleasure of the governor pursuant to the provisions of:

                (1) the Natural Resources Trustee Act and other applicable state law; and

                (2) the federal Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended by the federal Superfund Amendments and Reauthorization Act of 1986, the Federal Water Pollution Control Act and any other applicable federal law.

          B. The natural resources trustee shall act on behalf of the public as trustee of natural resources within the state or belonging to, managed by, controlled by or appertaining to the state, including protecting and representing the state's interest under applicable state and federal laws regarding injury to, destruction of or loss of natural resources in the state.

          [B.] C. The "office of natural resources trustee" is created. The office shall be administratively attached to the department of environment. The administrative head of the office of natural resources trustee is the natural resources trustee. [For purposes of this subsection, the term "administratively attached" means the same as specified in Section 9-1-7 NMSA 1978.]"

     SECTION 7. Section 75-7-3 NMSA 1978 (being Laws 1993, Chapter 292, Section 3, as amended) is amended to read:

     "75-7-3. NATURAL RESOURCES TRUSTEE POWERS AND DUTIES.--

          A. The natural resources trustee shall take all actions necessary to carry out the responsibilities of the natural resources trustee as provided in the federal Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended by the Superfund Amendments and Reauthorization Act of 1986, the Federal Water Pollution Control Act and any other applicable federal law, including the responsibility to:

                (1) act on behalf of the public to protect New Mexico's natural resources by recovering damages for injury to, destruction of or loss of those resources, including for past releases with a continuing and present injury to natural resources;

                (2) investigate injury to, destruction of or loss of natural resources;

                (3) determine the amount and cause of injury to, destruction of or loss of natural resources;

                (4) determine the liability of any person for injury to, destruction of or loss of natural resources;

                (5) adopt and enforce rules for the assessment and collection of fines for natural resources damages resulting from the release of petroleum-based injurious substances;

                [(5)] (6) assess and collect damages for injury to, destruction of or loss of natural resources, including bringing legal actions and collecting the costs of assessing and collecting the damages; and

                [(6)] (7) expend money for the purposes set forth in the Natural Resources Trustee Act.

          B. The natural resources trustee may, in accordance with the State Rules Act, adopt and enforce rules for the assessment and collection of fines for natural resources damages resulting from the release of petroleum-based injurious substances. A person who is or may be affected by a rule adopted pursuant to this section may file direct appeal to the New Mexico court of appeals in the manner provided by law.

          [B.] C. The natural resources trustee may:

                (1) hire staff, in accordance with the Personnel Act, to carry out the provisions of the Natural Resources Trustee Act;

                (2) contract with economists, consultants and other experts; and

                (3) accept gifts and grants to carry out the provisions of the Natural Resources Trustee Act. Gifts and grants accepted by the natural resources trustee shall be deposited in the natural resources trustee fund.

          [C.] D. The attorney general shall provide legal counsel and representation to the natural resources trustee and the office of [the] natural resources trustee."

     SECTION 8. Section 75-7-4 NMSA 1978 (being Laws 1993, Chapter 292, Section 4) is amended to read:

     "75-7-4. NATURAL RESOURCES DAMAGE--LIABILITY--AWARDS FOR DAMAGES.--[Awards for damage to natural resources in the state shall consist of those amounts calculated in accordance with federal law, including:

          A. The cost of restoration, replacement or acquisition of equivalent resources, plus compensation for the loss of use or enjoyment of the natural resources; and

          B. Compensation for the state's expenses in investigating, assessing and collecting damages and enforcing the state's rights.]

          A. The natural resources trustee may bring a suit on behalf of the state for damages caused by a release of an injurious substance pursuant to the provisions of the Natural Resources Trustee Act.

          B. Before initiating a suit under this section, the natural resources trustee shall make reasonable efforts to conduct a cooperative assessment of the nature and extent of the damages and of methods to achieve resolution of the natural resources trustee's claim in cooperation with the responsible party and, upon initiating suit, shall certify that, in the natural resources trustee's judgment, the efforts have not succeeded in resolving the claim.

          C. Venue for a claim brought under this section shall be in the district court for Santa Fe county or in the district court for a county in which damages were sustained.

          D. Except as provided in Subsection F of this section, with respect to a facility from which there is an intentional or unintentional release of an injurious substance into the environment, including a release within the facility, the following persons shall be jointly and severally liable for all damages resulting from the release:

                (1) the owner or operator of the facility at the time of the release;

                (2) a person who previously owned or operated the facility during a time in which the injurious substance was released, placed, disposed of or treated;

                (3) a person who by agreement or otherwise arranged for release, placement, disposal or treatment of the injurious substance at the facility or arranged with a transporter for transport of the injurious substance to or from the facility whether or not the injurious substance was owned or possessed by the person; and

                (4) a person who accepted the injurious substance for transport to a disposal or treatment facility or site selected by that person.

          E. Damages owed to the state under this section include:

                (1) damages for injury to natural resources, including the destruction or loss of natural resources;

                (2) interim losses incurred after the release and before the completion of restoration;

                (3) residual losses remaining after completion of restoration of the natural resources; and

                (4) the reasonable costs of assessing the injury resulting from the release and implementing restoration activities.

          F. Damages owed to the state under this section may be recovered regardless of prospective or ongoing remediation efforts; provided that the expected results of the remediation are sufficiently understood to enable the calculation of damages."

     SECTION 9. A new section of the Natural Resources Trustee Act is enacted to read:

     "[NEW MATERIAL] LIMITATION ON ACTIONS.--A claim for damages under the Natural Resources Trustee Act shall be brought no later than five years after the date that the natural resources trustee became aware of the nature and extent of the injury."

     SECTION 10. Section 75-7-5 NMSA 1978 (being Laws 1993, Chapter 292, Section 5, as amended) is amended to read:

     "75-7-5. NATURAL RESOURCES TRUSTEE FUND.--

          A. The "natural resources trustee fund" is created in the state treasury. Money appropriated to the fund or accruing to it through gifts, grants, fees, penalties, bequests or any other source shall be delivered to the state treasurer and deposited in the fund. Money recovered for the state by or on behalf of the natural resources trustee shall be deposited in the natural resources trustee fund. The fund shall be administered by the natural resources trustee as a separate account and may consist of subaccounts that the natural resources trustee deems necessary to carry out the purposes of the fund. Disbursements from the fund shall be made upon warrants drawn by the secretary of finance and administration pursuant to vouchers signed by the natural resources trustee or the trustee's designated representative. Money in the fund shall not revert to the general fund at the end of a fiscal year.

          B. Pursuant to the following criteria, money in the natural resources trustee fund shall be used to carry out the provisions of the Natural Resources Trustee Act by restoring, replacing or acquiring natural resources [in an area where natural resources have been injured, destroyed or lost, provided that money deposited in the fund because of injury to, destruction of or loss of natural resources in an area shall be disbursed to restore, replace or acquire natural resources in that same area]:

                (1) if an expenditure from the fund is necessary to comply with a court order or court-approved settlement or to match federal funds, then, pursuant to Sections 6-3-23 through 6-3-25 NMSA 1978, the natural resources trustee may request a budget increase and, if approved, the amount of the expenditure is appropriated;

                (2) [if money is received for reimbursement of assessment costs, then the natural resources trustee may expend money for injury assessment, and money is appropriated in that amount for that purpose; and] money received for past or future assessment costs shall be placed in an assessment costs subaccount and is appropriated for that purpose;

                (3) money deposited in the fund from injury to, destruction of or loss of natural resources in an area shall only be expended to restore, replace or acquire natural resources in that same area; provided that the natural resources trustee may undertake a restoration action outside the area where the natural resources were injured, destroyed or lost if, in the natural resources trustee's judgment, action within the area would be infeasible or ineffective;

                (4) money deposited in the fund from injury, destruction of or loss of natural resources in an area shall only be expended to restore, replace or acquire natural resources; and

                [(3)] (5) any other expenditures from the fund shall be made only pursuant to appropriation by the legislature.

          C. In addition to expenditures made pursuant to Subsection B of this section, money shall be appropriated annually by the legislature from the general fund for the purpose of providing for necessary personnel and other costs of the natural resources trustee, the attorney general and the office of natural resources trustee in carrying out the provisions of the Natural Resources Trustee Act, including the cost of investigation, assessment, collection or enforcement.

          [D. For purposes of this section, "assessment

costs" means the costs of restoration and the costs of collecting, compiling and analyzing information, statistics or data to determine damages for injuries to natural resources pursuant to the Natural Resources Trustee Act.

          E.] D. Money in the natural resources trustee fund

shall be invested as other state funds are invested, and interest and earnings from the fund shall not revert to the general fund but shall be credited to the natural resources trustee fund."

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