STATE
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BEFORE
THE INDIANA DEPARTMENT
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OF ENVIRONMENTAL
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COMMISSIONER
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OF ENVIRONMENTAL
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Complainant, |
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Case No. 2005-14474-H |
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JACK GULLEY d/b/a |
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GULLEY’S AUTO SALVAGE, |
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Respondent |
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AGREED
ORDER
The Complainant and the 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.
I. FINDINGS OF FACT
1.
Complainant is the Commissioner (“Complainant”) of the
Indiana Department of Environmental Management, a department of the State of
2.
Respondent is Jack Gulley d/b/a Gulley’s Auto Salvage
("Respondent"), which owns and/or operates the company located at RR
#1, Box 226, in Francisco, Gibson County, Indiana (“Site”).
3.
The Indiana Department of Environmental Management (“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
via Certified Mail to:
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Jack Gulley d/b/a |
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Gulley’s Auto Salvage |
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RR #1, Box 226 |
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5.
Respondent owns and/or operates an auto salvage yard and had
about 300 vehicles on site at the time of the inspection and was storing over
1,000 waste tires on-site.
6.
An inspection on April 29, 2004 was conducted at the Site by
a representative of IDEM’s Office of Land Quality (“OLQ”). The following violations were in existence or
observed at the time of this inspection:
a.
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. Respondent allowed waste
tires, a solid waste, to be stored, and allowed automotive fluids, oil, fuel
and waste tires, to be disposed at the Site in a manner which creates a threat
to human health or the environment.
Contamination and open dumping was observed throughout the site, but the
heaviest of the soil staining was observed toward the center of the property
near the crusher.
b.
Pursuant to 329 IAC 10-4-3, open dumping and open dumps, as
those terms are defined in IC 13-11-2-146 and IC 13-11-2-147, are
prohibited. Respondent allowed waste
tires, automotive fluids, oil, fuel, and non-ferrous automotive scrap, solid
wastes, to be open dumped at the Site. Open
dumping was observed throughout the site, but the heaviest of the soil staining
was observed toward the center of the property near the crusher.
c.
Pursuant to IC 13-30-2-1(3), no person shall deposit any
contaminants upon the land in a place or manner that creates or would create a
pollution hazard that violates or would violate 329 IAC 10-4-2 and 329 IAC
10-4-3. Respondent deposited waste
tires, automotive fluids, oil, and fuel, contaminants, at the Site in violation
of 329 IAC 10-4-2 and 329 IAC 10-4-3. Contamination
and open dumping was observed throughout the site, but the heaviest of the soil
staining was observed toward the center of the property near the crusher.
d.
Pursuant to IC 13-30-2-1(4), no person shall deposit or
cause or allow the deposit of contaminants or solid waste upon the land, except
through the use of sanitary landfills, incineration, composting, garbage
grinding, or another method acceptable to the solid waste management board. Respondent caused and/or allowed waste tires,
automotive fluids, oil, and fuel, contaminants or solid waste, to be deposited
at the Site in a method unacceptable to the solid waste management board. Contamination and open dumping was observed
throughout the site, but the heaviest of the soil staining was observed toward
the center of the property near the crusher.
e.
Pursuant to IC 13-30-2-1(5), no person shall dump or cause
or allow the open dumping of garbage or any other solid waste in violation of
329 IAC 10-4-2 and 329 IAC 10-4-3. Respondent
caused and/or allowed waste tires, automotive fluid, oil, fuel, and non-ferrous
automotive scrap, solid wastes, to be open dumped at the Site. Open dumping was observed throughout the
site, but the heaviest of the soil staining was observed toward the center of
the property near the crusher.
f.
Pursuant to IC 13-30-2-1(1), no person shall 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 violation of 329 IAC 10-4-2 and 329 IAC 10-4-3. Respondent allowed waste tires and waste
automotive fluid, oil, and fuel, to be released into the environment. Contamination was observed throughout the
site, but the heaviest of the soil staining was observed toward the center of the
property near the crusher.
g.
Pursuant to 327 IAC 15, a person who has a point source
discharge of storm water associated with industrial activity and meets the
general and applicability requirements of 327 IAC 15-2-2(a)(1), 15-2-3, and
15-6-2, must comply with, among other things, the requirements of 327 IAC
15-2-5, 15-6-5, 15-6-7, 15-6-7.3, and 15-6-7.5.
Point source discharges of storm water associated with industrial
activity have occurred at the Site, and Respondent’s industrial activity meets
the general and applicability requirements of 327 IAC 15-2-2(a)(1), 15-2-3, and
15-6-2, but Respondent had not complied with the requirements of 327 IAC
15-6-7, 15-6-7.3, and 15-6-7.5
h.
Pursuant to 327 IAC 15-6-2(a)(5)(E), the requirements of
this rule apply to all facilities involved in the recycling of materials,
including metal scrap yards, battery reclaimers, salvage yards, and automobile
junkyards, including those classified under the following SIC codes:
(i)
5015 (motor vehicle parts, used), and
(ii)
5093 (scrap and waste materials).
Respondent failed to comply with the requirements of
327 IAC 15-6, including, but not limited to, the following:
(a)
Failure to develop, implement, update, and maintain a Storm
Water Pollution Prevention Plan as required by 327 IAC 15-6-7.
(b)
Failure to monitor as required by 327 IAC 15-6-7.3.
(c)
Failure to submit an annual report to the commissioner as
required by 327 IAC 15-6-7.5.
7.
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 the Complainant or his delegate, and has
been received by the Respondent. This
Agreed Order shall have no force or effect until the Effective Date.
2.
Within thirty (30) days of the Effective Date of this Agreed
Order, Respondent shall comply with IC 13-30-2-1(3). Specifically, Respondent shall remove all
tires from the Site and dispose of them at a permitted solid waste management
facility.
3.
Within forty-five (45) days of the Effective Date of this
Agreed Order, Respondent shall submit written documentation that the tires
removed from the Site have been taken to a permitted solid waste management
facility.
4.
Within thirty (30) days of the Effective Date of this Agreed
Order, Respondent shall comply with IC 13-30-2-1(5). Specifically, Respondent shall remove all automotive
scrap and garbage from the site and dispose of it properly.
5.
Upon the Effective Date of this Agreed Order, Respondent
shall comply with IC 13-30-2-1(1).
Specifically, Respondent shall take immediate steps to capture any
potential release of fluids during auto crushing activities and immediately
cease allowing the release of contaminants into the environment.
6.
Within thirty (30) days of the Effective Date of this Agreed
Order, Respondent shall submit to IDEM a site assessment plan. The purpose of the site assessment plan shall
be to conduct sampling and analysis in order to assess potential soil and
ground water contamination described in Findings of Fact Nos. 6a, 6b, 6c, 6d,
6e, and 6f (the center of the property, near the crusher) and, if necessary,
the nature and extent of contamination.
The site assessment plan shall be based upon the principles outlined
within IDEM’s Risk Integrated System of Closure (RISC) Technical Resource
Guidance Document (“TRGD”), dated February 15, 2001, which can be accessed at http://www/IN/gov/idem/land/risc. In addition, the site assessment plan shall:
a.
Describe and evaluate all areas of potential contamination
in and around the area of concern.
b.
Specify the method of determining the number and location of
samples to be taken to yield a representative assessment of the area of
concern. This method shall be:
1.
random sampling, pursuant to Section 3.4 of Chapter 3 of the
TRGD; or
2.
directed sampling, pursuant to Section 3.4 of Chapter 3 of
the TRGD; and
3.
developed to provide locations and methods of any ground
water samples pursuant to Section 3.4 of Chapter 3 of the TRGD.
c.
Specify how the soil samples will be obtained and handled in
order to minimize loss of volatile constituents. Respondent may composite samples of
non-volatiles (i.e., metals and semi-volatiles), but shall not composite
samples of volatiles, pursuant to Section 3.4 of Chapter 3 of the TRGD.
d.
Specify how the ground water samples will be obtained and describe
the sampling procedures.
e.
Clearly define all sampling and analytical protocols
designed to identify hazardous waste or its constituents, pursuant to 40 CFR
Part 261, including 40 CFR Part 261 Appendices I, II, III, and VIII. The site assessment plan shall include the
method of sample collection, pursuant to “Test Methods for Evaluating Solid
Waste, Physical/Chemical Methods,” EPA Publication SW-846. This includes, but is not limited to, sample
collection containers, preservatives, and holding times. Specify the analytical methods to be used and
the method’s Estimated Quantitation Limits (EQLs).
f.
Specify that chain-of-custody of the samples shall be
maintained and Quality Assurance and Quality Control (“QA/QC”) procedures shall
be followed, pursuant to Appendix 2 of the TRGD.
g.
Include within the site assessment plan a supplemental
contingent plan for determining the nature and extent of:
1.
soil contamination, as specified in Chapter 4 of the TRGD,
in the event that sampling and analysis indicates soil contamination to exist
above default residential levels as specified in Table A, Appendix I, of the
TRGD; and
2.
ground water contamination in the event that sampling and
analysis indicates hazardous waste or its constituents are detected in the
ground water as specified in Chapter 4 of the TRGD.
h.
Include within the site assessment plan time frames for its
implementation.
i.
Be approved by IDEM prior to its implementation.
7.
Within fifteen (15) days of receiving notice from IDEM of
approval of the site assessment plan, Respondent shall implement it as approved
and in accordance with the time frames contained therein.
8.
Within fifteen (15) days of obtaining the analytical
results, Respondent shall submit said results, including chain-of-custody
information, and QA/QC records, pursuant to Appendix 2 of the TRGD, to IDEM.
9.
If soil or ground water contamination is identified,
Respondent shall submit within sixty (60) days subsequent to the completion of
the analyses, a remediation workplan to IDEM for the purpose of remediating all
soil and /or ground water contamination.
The remediation workplan shall:
a.
In accordance with Chapter 6 of the TRGD, remediate each
contaminated area to closure. Closure
levels shall be one of the following:
1.
default residential levels, pursuant to Table A, Appendix I,
in the TRGD; or
2.
commercial/industrial default values (if appropriate to the
facility), pursuant to Table A, Appendix I, in the TRGD. Ground water shall meet residential default
values at the property boundary or control;
or
3.
closure levels for soil can also be established using the
non-default procedures presented in Chapter 7 of the RISC Technical
Guide. The alternate cleanup level
proposal must document that the constituents left in soil will not adversely
impact any other environmental medium (ground water, surface water, or
atmosphere) and that direct contact through dermal exposure, inhalation, or
ingestion will not result in threats to human health or the environment; or
4.
background levels for metals, pursuant to Section 1.6 of
Chapter 1 of the TRGD, and/or the analytical method’s estimated quantitation
limits (“EQLs”) for organics.
b.
Include a soil and/or a ground water sampling and analysis
plan to be performed after the cleanup has been performed which verifies that
all contamination has been removed.
c.
Include within the remediation workplan time frames for its
implementation.
10.
Within fifteen (15) days of approval by IDEM of the remediation
workplan, Respondent shall implement the plan as approved and in accordance
with the time frames contained therein.
11.
Within thirty (30) days of completion of the remedial action
conducted pursuant to the remediation workplan, Respondent shall submit to IDEM
certification by an independent registered professional engineer that the
remedial action has been completed as outlined in the approved remediation
workplan.
12.
Within thirty (30) days of the Effective Date of this Agreed
Order, Respondent shall comply with IC 13-30-2-1(3), (4) and (5). Specifically, Respondent shall clean up all
releases throughout the facility evident by soil staining with the exception of
the area near the crusher being addressed by order paragraphs 6 thru 11, by
excavating the soil six inches beyond visible contamination.
13.
Within forty-five (45) days of the Effective Date of this
Agreed Order, Respondent shall submit to IDEM documentation that releases in
the above areas have been cleaned up.
14.
Within thirty (30) days of the Effective Date of this Agreed
Order, Respondent shall comply with 327 IAC 15-2-5(a) and submit an NOI letter,
which complies with all of the requirements of 327 IAC 15-3 and 327 IAC 15-6-5,
to IDEM.
15.
In the event that IDEM determines that the NOI letter
submitted by Respondent is deficient or otherwise unacceptable, Respondent
shall revise and resubmit the NOI to IDEM in accordance with IDEM’s
notice.
16.
Within ninety (90) days of the Effective Date of this Agreed
Order, Respondent shall conduct monitoring as required by 327 IAC 15-6-7.3.
17.
Within thirty (30) days after laboratory analyses conducted
pursuant to Order paragraph 16 have been completed, Respondent shall submit
sampling data results to IDEM for review.
Respondent shall also, in accordance with 327 IAC 15-6-7(b)(9), include
the sampling data results in the Storm Water Pollution Prevention Plan required
by Order paragraph 18.
18.
Within one hundred and eighty (180) days of the Effective
Date of this Agreed Order, Respondent shall comply with 327 IAC 15-6-7. Specifically, Respondent shall develop and
submit to IDEM for approval a Storm Water Pollution Prevention Plan.
19.
Within ten (10) days of notice of IDEM’s approval of the
Storm Water Pollution Prevention Plan, Respondent shall implement the plan as
approved.
20.
In the event IDEM determines that any plan submitted by
Respondent is deficient or otherwise unacceptable, Respondent shall revise and
resubmit the plan to IDEM in accordance with IDEM's notice. After three (3) submissions of such plan by
Respondent, IDEM may modify and approve any such plan and Respondent must
implement the plan as modified by IDEM.
The approved plan shall be incorporated into this Agreed Order and shall
be deemed an enforceable part thereof.
21.
Within three hundred and ninety-five (395) days of the
Effective Date of this Agreed Order, Respondent shall submit an Annual Report
in accordance with 327 IAC 15-6-7.5
22.
All submittals required by this Agreed Order, unless
notified otherwise in writing, shall be sent to:
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Deirdre Wyatt, Enforcement Case Manager |
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Indiana Department of Environmental Management |
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Office of Enforcement Mail Code 60-02 |
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23.
In the event the terms and conditions of the following
paragraphs are violated, the Complainant may assess and the Respondent shall
pay a stipulated penalty in the following amount:
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Violation |
Penalty |
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Failure to comply with Order paragraph 2 |
$250 per week |
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Failure to comply with Order paragraph 3 |
$250 per week |
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Failure to comply with Order paragraph 4 |
$250 per week |
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Failure to comply with Order paragraph 6 |
$250 per week |
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Failure to comply with Order paragraph 7 |
$250 per week |
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Failure to comply with Order paragraph 8 |
$250 per week |
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Failure to comply with Order paragraph 9 |
$250 per week |
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Failure to comply with Order paragraph 10 |
$250 per week |
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Failure to comply with Order paragraph 11 |
$250 per week |
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Failure to comply with Order paragraph 12 |
$250 per week |
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Failure to comply with Order paragraph 13 |
$250 per week |
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Failure to comply with Order paragraph 14 |
$250 per week |
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Failure to comply with Order paragraph 15 |
$250 per week |
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Failure to comply with Order paragraph 16 |
$250 per week |
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Failure to comply with Order paragraph 17 |
$250 per week |
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Failure to comply with Order paragraph 18 |
$250 per week |
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Failure to comply with Order paragraph 19 |
$250 per week |
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Failure to comply with Order paragraph 20 |
$250 per week |
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Failure to comply with Order paragraph 21 |
$250 per week |
24.
Stipulated penalties shall be due and payable within thirty
(30) days after Respondent receives written notice that the Complainant has
determined a stipulated penalty is due.
Assessment and payment of stipulated penalties shall not preclude the
Complainant from seeking any additional relief against the Respondent for
violation of the Agreed Order. In lieu
of any of the stipulated penalties given above, the Complainant may seek any
other remedies or sanctions available by virtue of Respondent’s violation of
this Agreed Order or Indiana law, including, but not limited to, civil penalties
pursuant to IC 13-30-4.
25.
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:
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Indiana Department of Environmental Management |
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Cashier’s Office Mail Code 50-10C |
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26.
This Agreed Order shall apply to and be binding upon the
Respondent, its successors and assigns. The Respondent's signatories to this
Agreed Order certify that they are fully authorized to execute this document
and legally bind the parties they represent.
No change in ownership, corporate, or partnership status of the
Respondent shall in any way alter its status or responsibilities under this
Agreed Order.
27.
In the event that any terms of the 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 the Agreed Order did not contain the invalid
terms.
28.
Notwithstanding any other provision of this Agreed Order,
the Complainant reserves, and this Agreed Order is without prejudice to, the
right to institute proceedings in this action or in a new action for injunctive
relief, costs, civil penalty and/or remediation of environmental contamination
that is either discovered after the entry into the Agreed Order or that has not
been adequately remedied despite compliance by Respondent with the terms of
this Agreed Order.
29.
The 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.
30.
This Agreed Order shall remain in effect until IDEM issues a
Resolution of Case letter to Respondent.
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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 L. Johnston, Chief |
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Office of Enforcement |
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Printed:
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Title:
_ ___________________ |
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Date:
________________________ |
Date:
____________________ |
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COUNSEL
FOR COMPLAINANT: |
COUNSEL
FOR RESPONDENT: |
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Department
of Environmental Management |
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By:
______________ __________ |
By:
__________________________ |
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Office of Legal Counsel |
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Date:
_______________________ |
Date:
________________________ |
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APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF
ENVIRONMENTAL |
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MANAGEMENT THIS |
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OF |
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For The Commissioner: |
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Adopted 4/12/06 |
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Matthew T. Klein |
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Assistant Commissioner |
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of Compliance and
Enforcement |
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