Final Rule Rescinds States' Authority to Set Vehicle Mileage and GHG Standards

September 23, 2019
The DOT’s National Highway Traffic Safety Administration (NHTSA) and the EPA took an initial step towards finalizing the proposed Safer, Affordable, Fuel-Efficient (SAFE) Vehicles Rule by issuing a final action entitled the “One National Program Rule,” which will enable the federal government to provide nationwide uniform fuel economy and greenhouse gas emission standards for automobiles and light duty trucks.
A top priority for President Trump, when finalized, the proposed SAFE Vehicles Rule standards would establish attainable fuel economy and GHG vehicle emissions standards that will help ensure that more Americans have access to what the Administration characterizes as safer, more affordable, and cleaner vehicles that meet their families’ needs. The SAFE rule’s standards are projected to save billions of dollars and strengthen the U.S. domestic manufacturing base by adding millions of higher emission cars with lower fuel economy. The Administration claims that the presumably heavier cars will save thousands of lives and prevent tens of thousands of Americans from being hospitalized by car crashes.
“Today’s action meets President Trump’s commitment to establish uniform fuel economy standards for vehicles across the United States, ensuring that no State has the authority to opt out of the Nation’s rules, and no State has the right to impose its policies on the rest of the country,” said Secretary of Transportation Elaine L. Chao.
“Today, we are delivering on a critical element of President Trump’s commitment to address and fix the current fuel economy and greenhouse gas emissions standards,” said EPA Administrator Andrew Wheeler. “One national standard provides much-needed regulatory certainty for the automotive industry and sets the stage for the Trump Administration’s final SAFE rule that will save lives and promote economic growth by reducing the price of new vehicles to help more Americans purchase newer, cleaner, and safer cars and trucks.”
This action finalizes critical parts of the SAFE Vehicles Rule that was first proposed on Aug. 2, 2018. This action makes it clear that federal law preempts state and local tailpipe greenhouse gas (GHG) emissions standards as well as zero emission vehicle (ZEV) mandates. Specifically, in this action, NHTSA is affirming that its statutory authority to set nationally applicable fuel economy standards under the express preemption provisions of the Energy Policy and Conservation Act dictates that such state and local programs are preempted. For its part, EPA is withdrawing the Clean Air Act preemption waiver it granted to the State of California in January 2013 as it relates to California’s GHG and ZEV programs. California’s ability to enforce its Low Emission Vehicle program and other clean air standards to address harmful smog-forming vehicle emissions is not affected by the action.
This action will help ensure that there will be one, and only one, set of national fuel economy and greenhouse gas emission standards for vehicles. The agencies continue to work together to finalize the remaining portions of the SAFE Vehicles Rule, to address proposed revisions to the federal fuel economy and GHG vehicle emissions standards.
In the One National Program Rule, NHTSA and EPA have made the following determinations:
  • Pursuant to Congress’s mandate in the Energy Policy and Conservation Act, only the federal government may set fuel economy standards, and state and local governments may not establish their own separate fuel economy standards. This includes state laws that substantially affect fuel economy standards (such as tailpipe GHG emissions standards and ZEV mandates).
  • EPA is withdrawing the 2013 Clean Air Act waiver that authorized California to pursue its own tailpipe greenhouse gas emission standard (fuel economy standard) and ZEV mandate. As a result, these two programs are also prohibited by the Clean Air Act.
Brian Frosh, Maryland’s Attorney General said, “once again, the Trump Administration has come down on the side of polluters instead of the American people,” said Attorney General Frosh. “California has led the nation in advancing clean air strategies and in addressing our climate crisis. Maryland has adopted California’s vehicle emission standards, and our air and water are cleaner for it. This latest action puts oil company profits first and puts the health of our people and our environment last. We will fight this destructive policy.” Luke Tonachel, the NRDC Director for clean fuels said, “even the automakers have called on the president to work with the states on a negotiated outcome that continues to make progress on curtailing tailpipe pollution. The administration should drop this wrongheaded idea and work with state leaders, not against them.” US Senator Tom Casper said, “fortunately, automakers now have the opportunity to circumvent this reckless and willfully ignorant move. Ford, Honda, Volkswagen and BMW – which account for about 30% of U.S. auto sales – have already demonstrated tremendous courage and worked with California to forge a responsible alternative path. These automakers know that we do not have to choose between environmental stewardship and economic progress; that no automaker has to choose between doing what is good for our planet, and what will do well for their business.
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Hexion Cited for EPCRA Violations
EPA's Northwest regional office has reached a settlement with Hexion Inc., a Springfield, Oregon, specialty chemical company, for allegations that the company failed to comply with federal chemical reporting requirements designed to inform and protect nearby communities.
Hexion formulates and sells a broad range of specialty adhesives, coatings, and composites for business and industry and is headquartered in Columbus, Ohio.
According to Ed Kowalski, Director of EPA’s Enforcement and Compliance Assurance Division in Seattle, Hexion’s Springfield facility has failed to fully comply with its Toxics Release Inventory (TRI) reporting obligations.
“This facility failed to comply with reporting requirements for a number of years,” said EPA’s Kowalski. “TRI provides information to the public on toxic chemicals in the community, who rely on the accuracy of data submitted. By investing in new pollution control equipment, Hexion expects to see measurable emission reductions.”
Under the terms of the settlement, Hexion has agreed to pay a $60,000 penalty to settle EPA allegations that the company violated section 313 of the Emergency Planning and Community Right-to-Know Act (EPCRA), also known as TRI. Specifically, Hexion did not report its on-site waste treatment and on-site energy recovery of the toxic chemicals formaldehyde, phenol, and methanol, as well as the on-site recycling of methanol.
Hexion also is undertaking a Supplemental Environmental Project, worth an estimated $135,000, as part of the settlement. By installing additional pollution reduction equipment, Hexion expects to reduce plant emissions of formaldehyde, methanol, and phenol. The settlement resolves EPA allegations spanning 2013 to 2017.
Under this section of EPCRA, facilities that manufacture, process, or otherwise use listed chemicals over a certain threshold level are required to annually report their total releases of those chemicals, as well as their energy recovery from treatment, recycling, and disposal of the chemicals. Accurate, timely TRI reporting protects communities by making facility neighbors aware of toxic chemicals in the area.
Multistate Lawsuit Challenges Administrations' Attempt to Preempt California’s Authority to Maintain Longstanding Clean Car Standards
A coalition of attorneys general from California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maine, Maryland, Nevada, New Jersey, New Mexico, New York, North Carolina, Oregon, Rhode Island, Vermont, Washington, Wisconsin, Massachusetts, Pennsylvania, Virginia, Michigan, the District of Columbia, as well as the cities of New York and Los Angeles filed a lawsuit against the National Highway Traffic Safety Administration (NHTSA) to challenge the Trump Administrations unlawful regulation designed to preempt California’s greenhouse gas emissions and Zero-Emission Vehicle (ZEV) standards. These standards authorized in 2013 by a waiver from the EPA and followed in part or whole by 13 other states, and the District of Columbia are a key part of state efforts to protect public health and the environment. In the lawsuit, the coalition asserts that this Preemption Rule is unlawful and should be vacated.
“Reversing course in the country’s efforts to reduce air pollution from passenger vehicles is unlawful, irresponsible, and endangers the health of our children and our environment,” said Maryland Attorney General Frosh. “Wiping out these commonsense standards undermines successful efforts made by states, including Maryland, to combat greenhouse gas emissions.”
Under the federal Clean Air Act, California may apply for a waiver from EPA to set its own vehicle emissions standards that are at least as protective as the federal government’s standards, and EPA must approve the waiver, unless it makes certain findings. Over the past 50 years, the EPA has granted 100 waivers to California. As a result of California’s vehicle emissions program, the state and others who have adopted the standards have reduced emissions by hundreds of thousands of tons annually, encouraged the development of emission controls technologies, and paved the way for stronger federal standards.
In January 2012, California adopted its comprehensive Advanced Clean Cars Program for cars and light duty trucks in model years 2017 through 2025. The program combines the control of smog-causing pollutants and greenhouse gas emissions into a single coordinated package. The program improves air quality and curbs greenhouse gases while saving drivers money at the pump and reducing oil consumption. On its own, the California program would reduce carbon dioxide emissions in the state by approximately 14.4 million metric tons a year by 2025 and 25.2 million metric tons a year by 2030. When accounting for emissions savings from other states that have adopted California’s standards, these emission reductions nearly triple.
Through its Preemption Regulation, NHTSA is attempting to declare the California greenhouse gas and ZEV standards preempted under the Energy Policy and Conservation Act (EPCA), based on arguments repeatedly rejected by multiple courts. In doing so, NHTSA oversteps the authority granted to it by Congress and ignores Congresss careful and repeated preservation of California’s authority.
In the lawsuit, the attorneys general ask the court to strike down the regulation as unlawful on the basis that NHTSA:
  • Purports to exercise authority that Congress has not granted the agency: namely, to decree what EPCA does or does not preempt;
  • Imagines an inherent conflict between two sets of rules, California’s GHG and ZEV standards and NHTSAs fuel economy standards, that have co-existed for years;
  • Willfully misreads EPCA as preempting state emission standards it explicitly directed NHTSA to account for, and as implicitly repealing portions of the Clean Air Act;
  • Ignores the authority and intent of Congress, which has repeatedly reaffirmed and embraced California’s authority over the last four decades;
  • Flouts the National Environmental Policy Act by failing to assess or analyze the damage that the agency’s Preemption Rule will inflict on the environment and public health;
  • Acts arbitrarily and capriciously by failing to explain about-faces from its previous positions or its reasons for acting;
  • Fails to respect states authority to protect public health and welfare; and,
  • Disregards the role these standards play in helping California and other states meet National Ambient Air Quality Standards.
Forrest Sewer Service Caught Illegally Dumping to POTW
On July 24, 2019, Forrest Sewer Pump Service, Inc., (FSPS) pleaded guilty to violating the Clean Water Act by illegally discharging pollutants into unauthorized manholes and pump stations (33 U.S.C. §§ 1317(d), 1319(c)(2)). Sentencing is scheduled for October 24, 2019. FSPS has been a Virginia licensed wastewater hauler and provider of sewer pumping services and grease hauling for more than 20 years. The company cleaned, pumped, jetted lines (i.e., used high-pressure water to clean sewer blockages), and maintained sewer lines, pump stations, and grease traps for numerous private clients and public institutions throughout the Virginia Beach, Hampton Roads, and Norfolk, Virginia, areas.
On several instances between 2014 and 2016, FSPS employees discharged pollutants into the publicly owned treatment works at points that were not authorized by the Hampton Roads Sewer District, and in violation of its industrial user wastewater discharge permit. The company took advantage of its unfettered access to the undesignated sewer locations to illegally discharge these pollutants and avoid dumping fees. Surveillance cameras operated by the U.S. Environmental Protection Agency and Virginia State Police show company employees illegally dumping pollutants on several occasions. This case was investigated by the U.S. Environmental Protection Agency Criminal Investigation Division.
Developer Agrees to $153,000 Stormwater Settlement
California’s Central Valley Regional Water Quality Control Board has reached a $153,460 settlement with a Rocklin developer for allowing sediment and stormwater to run unchecked into a nearby ravine last winter.
The violations of the operator’s stormwater permit occurred at the Granite Bluff construction site between November 2018 and January 2019. The contractor, DLC Rocklin, enrolled in a stormwater construction permit program but failed to install necessary barriers. This allowed water and sediment to flow into nearby ravines, including a tributary of Secret Ravine, an important regional salmon habitat.
“The owner of this project made a decision to continue work through the winter but did not take the required steps to ensure that sediment-laden stormwater did not leave the site.” said Andrew Altevogt, assistant executive officer for the Central Valley Water Board. “This project was in an environmentally senstive area and our expectation was that permit holders follow the rules. That did not happen in this case.”
DLC Rocklin had enrolled the project in the statewide General Permit for Stormwater Discharges Associated with Construction and Land Disturbing Activities but failed to protect the site during rain events. Regional Water Board staff inspected the project several times from November 2018 and January 2019 and found the project lacked the kind of erosion controls required in the permit., Board staff also observed DLC Rocklin’s contractor pumping turbid stormwater to a tributary of Secret Ravine, potentially causing life-threatening conditions for spawning salmon.
The settlement was reached using a streamlined process that allowed DLC Rocklin to quickly resolve the violations. By early March, DLC Rocklin installed a stormwater treatment system at the site to prevent additional turbid discharges.
The owners of any construction site greater than 1 acre in size must enroll in the General Permit for Storm Water Discharges Associated with Construction and Land Disturbance Activities. Among other items, this permit requires the owner to hire a “stormwater professional” to design and install erosion and sediment controls to prevent discharges of sediment-laden stormwater.
Discharges of sediment can cloud the receiving water, which reduces the amount of sunlight reaching aquatic plants. These discharges can also clog fish gills, smother aquatic habitat and spawning areas, and transport other materials such as nutrients, metals, and oil and grease which can negatively impact aquatic life and habitat.
Hyundai Cited for Illegally Importing Non-Compliant Engines
Under a settlement with the U.S. Department of Justice and the EPA, Hyundai Construction Equipment Americas Inc. (HCEA) and Hyundai Heavy Industries Co. Ltd (HHI) (collectively known as Hyundai) has agreed to pay a $47 million civil penalty for violating Title II of the Clean Air Act. The settlement resolves allegations that Hyundai sold heavy construction vehicles with diesel engines that were not certified to applicable emission standards.
From 2012 to 2015, Hyundai pre-purchased, or stockpiled engines that met outdated emissions standards and then illegally imported, marketed and sold heavy construction equipment with these engines installed, in violation of the Clean Air Act. Additionally, Hyundai imported, marketed and sold units of equipment in quantities that exceeded their exemption allowance limit under the Transition Program for Equipment Manufacturers (TPEM) program regulations. Defendants allegedly introduced into United States commerce at least 2,269 illegal diesel nonroad vehicles. Under the terms of the settlement, Hyundai has agreed to pay a $47 million civil penalty to resolve their Clean Air Act violations.
“Hyundai put profits above the public’s health and the requirements of the law,” said Jeffrey Bossert Clark, Assistant Attorney General of the Justice Department’s Environment and Natural Resources Division. “We will not tolerate such schemes that skirt the Clean Air Act, designed by Congress to improve air quality.”
“EPA is holding Hyundai accountable for importing and selling diesel engines and heavy-duty construction vehicles that did not meet Clean Air Act emission standards,” said Susan P. Bodine, EPA Assistant Administrator for the Office of Enforcement and Compliance Assurance. “By ignoring regulatory requirements, Hyundai not only gained a market advantage over their competitors, but they also introduced higher polluting vehicles into the United States, undermining the protection of human health and the environment.”
In 2015, the EPA received a whistleblower tip reporting illegal importation of nonroad diesel equipment that did not meet applicable emission standards. Based upon the information received from the whistleblower, the EPA initiated both criminal and civil investigations. In the criminal proceeding, the court imposed a sentence of, among other things, a $1,950,000 criminal fine.
Hyundai’s illegal nonroad diesel vehicles were not certified as meeting applicable pollutant emission standards, including for nitrogen oxides (NOx) and particulate matter (PM). NOx is a reactive gas that contributes to the formation of PM and ozone. PM is a form of air pollution composed of microscopic solids and liquids suspended in air. Ozone is a highly reactive gas that is formed in the atmosphere, in part, from emissions of NOx. Exposure to ozone and PM is linked to a number of health effects as well as premature death. Children, older adults, people who are active outdoors (including outdoor workers), and people with heart or lung disease are particularly at risk for health effects related to ozone or PM exposure.
Former Garden Plain Water Operator Pleads Guilty to Making False Report
The former operator of the water system in Garden Plain, Kan., pleaded guilty to falsifying a report on the quality of the city’s drinking water, U.S. Attorney Stephen McAllister said Arthur Wolfe, 64, Norwich, Kan., pleaded guilty to one count of a making a false statement in a report to the Kansas Department of Health and Environment that is required by the Environmental Protection Agency. Wolfe certified a bacteriological report in falsely represented water samples taken at the water treatment plant as samples taken at other locations.
Sentencing is set for Dec. 2. He faces a penalty of up to a year in federal prison and a fine up to $100,000. McAllister commended the Environmental Protection Agency and Assistant U.S. Attorney Alan Metzger for their work on the case.
Nine Companies Cited for Environmental Violations in Oregon
The Oregon Department of Environmental Quality issued nine penalties totaling $100,704 in August for various environmental violations.
Fines ranged from $1,050 to $41,399. Alleged violations included failure to provide proper documentation for underground storage tanks, inadequate soil and erosion controls during construction and operating a gasoline dispensing facility without an air quality permit.
DEQ issued civil penalties against the following organizations:
  • 9 Wood, Inc., $9,300, Springfield (hazardous waste)
  • B & K Auto Salvage, Inc., $9,258, La Grande (hazardous waste)
  • Colvin Oil I, Inc., $3,525, Portland (underground storage tanks)
  • Carco Industries, Inc., $6,300, Brookings (underground storage tanks)
  • Gresham Oil, LLC, $1,050, Gresham (air quality)
  • HY-MT Rock, LLC, $18,765, Canyonville (stormwater)
  • Lester & Alice Henion Trust, $2,550, Lebanon (air quality)
  • Lombard 2001, LLC, $1,748, Portland (underground storage tanks)
  • Proffutt Limited Partnership, $41,399, Boardman (water quality source control)
  • Vision International Petroleum, Inc., $10,334, Portland (underground storage tanks)
Home Depot to Phase Out PFAS Products
In partnership with its suppliers, The Home Depot is working diligently to offer products that are innovative and safer for the environment. The Home Depot is committed to minimizing the environmental impact of the products on its store shelves and has led the industry in creating chemical standards to do just that.
To build upon the strategy, The Home Depot will be phasing out Perfluoroalkyl and Polyfluoroalkyl Substances (PFAS) December 31, 2019 in the U.S. and Canada in carpets and rugs.
“Excluding PFAS from the carpets and rugs we sell is another example of our shared commitment to building a better future for our customers and the planet,” said Ron Jarvis, vice president of environmental innovation.
The Home Depot first published its chemical strategy in 2017 and since then, has reduced many chemicals like formaldehyde and triclosan’s in everyday product categories. The company has also made important strides including:
Paint – All interior and exterior paint sold in our U.S. stores is low or no VOC (Volatile Organic Compounds)
  • Flooring – Removed vinyl flooring products containing ortho-phthalates from product assortment
  • Insulation - All fiberglass insulation carries a 100% GREENGUARD Gold certification
  • Cleaning – Cleaning products within the company’s Eco Options program obtained certifications from independent third-party testers such as EPA’s Safer Choice and Cradle to Cradle
  • Gardening - All stores carry local, organic vegetables and herbs
To learn more about The Home Depot’s Chemical Strategy, click here.
Army Corps of Engineers Employee Found Guilty of Working for Environmental Consultant
On July 12, 2019, a former Army Corps of Engineers (ACOE) employee pleaded guilty to making false statements to law enforcement agents (18 U.S.C. § 1001(a)(2)). Sentencing is scheduled for September 19, 2019.
Biologist Tracey J. Sellers worked as a civilian employee for the ACOE’s Jacksonville District. Part of Seller’s responsibilities included planning and coordinating environmental requirements related to Corps projects and reviewing products from environmental consulting companies.
Federal ethics laws and regulations prohibit federal employees from engaging in outside employment that conflicts with employees’ official duties. Between 2014 and February 2019, while employed with the Corps, Sellers worked with a consulting company despite being part of a team that oversaw that company’s work for the Corps in relation to large dredging projects in South Florida.
Unbeknownst to her colleagues and Corps management, Sellers accepted offers of part-time employment from the consulting company. In November 2014, October 2018, and January 2019, the consulting company offered Sellers part-time work on three different projects. She accepted the offers and worked on their projects. In a February 2019 interview, Sellers misled federal agents about her outside involvement with the consulting company.
This case was investigated by the Defense Criminal Investigative Service, National Oceanic and Atmospheric Administration, the EPA Criminal Investigation Division, and the U.S. Army Criminal Investigation Division, with assistance from the Army Corps of Engineers.
Paint Manufacturer Convicted for Selling Banned Paint
On July 12, 2019, a court sentenced Flexabar president Richard Guglielmo, Jr., and CEO Andrew Guglielmo, to each pay $20,000 fines and complete three-year terms’ of probation to include 12 months’ home detention. Technical Director Hamdi Latif was sentenced to complete a one-year term of probation and 12 months of home confinement. Latif also will pay a $10,000 fine. The defendants previously pleaded guilty to conspiring to violate the Federal Insecticide, Fungicide, and Rodenticide Act for selling paint containing an illegal pesticide (18 U.S.C. § 371).
For close to 20 years, the defendants engaged in a scheme to produce and sell paints containing the pesticide tributyltin (TBT) for unapproved uses and then continued to sell them after regulators banned all uses for TBT. Flexabar focused primarily on the fishing industry in marketing TBT antifoulants. Fishermen use the paint on crab traps and lobster pots in the Chesapeake Bay and along the Atlantic coast. The investigation established Flexabar's persistent effort to both avoid labeling its TBT paints with the prohibitions required by the EPA’s Office of Pesticide Programs, and to mislead authorities as to the uses for which the company was marketing these products.
Biofuel Company Fined for Falsifying Wastewater Monitoring Data, and Illegal Discharges
On July 8, 2019, a court sentenced American Biodiesel, Inc., to pay a $401,000 fine, and complete a three-year term of probation, to include an environmental compliance plan. The company also must grant 24-hour access to authorities for unannounced inspections on the premises. The court further ordered the company to pay $256,206 in restitution to be divided between the City of Stockton and the Port of Stockton, California.
American Biodiesel d/b/a/Community Fuels, manufactured biodiesel fuel. Between March 2009 and December 2016, Christopher Young directed the plant’s operations. Young instructed employees to tamper with pH and other monitoring devices enabling the facility to violate its permit by discharging hundreds of thousands of gallons of untreated wastewater into the local sewer system. Between 2014 and 2016, assistant operator Jeremiah Young (Christopher’s brother) also participated in the scheme.
Regulators permitted Community Fuels to discharge wastewater meeting certain parameters (including pH and methanol concentration total flow levels) to the local publicly owned treatment works (POTW). The company led local authorities to believe that it transferred unpermitted wastewater off-site to an appropriate wastewater disposal facility. In reality, they dispersed the wastewater on the facility grounds via landscaping sprinklers, as well making illegal discharges to the POTW, after tampering with monitoring devices.
Christopher and Jeremiah Young await trial, charged with conspiracy and Clean Water Act violations. Prosecutors further charged Christopher Young with making false statements and witness tampering (18 U.S.C. §§ 371, 1001(a)(2), 1512(b)(3); 33 U.S.C. §§ 1319 (c)(2)(A), (c)(4)). The company pleaded guilty to conspiracy and tampering with monitoring equipment.
This case was investigated by the EPA Criminal Investigation Division, the City of Stockton Municipal Utilities Department, the San Joaquin County Environmental Health Department, the Port of Stockton, and the California Department of Toxic Substances Control.
Parts Cleaning Technology Owner and Employees Guilty of Illegally Storing Hazardous Waste
On July 8, 2019, a court sentenced Parts Cleaning Technology of North Carolina (PCT), a business engaged in the collection and transportation of hazardous waste, to pay a $75,000 fine and complete a two-year term of probation plus pay $945,064 in restitution to owners of the property for clean-up costs.
The company and four individuals illegally stored more than 10,000 gallons of liquid hazardous waste and five tons of solid hazardous waste. PCT pleaded guilty to violating the Resource Conservation and Recovery Act (RCRA) (42 U.S.C. §§ 6928(d)(2)(A), (d)(2(B)).
Vincent Peters, Timothy Connelly, and Jason Ridenour worked for PCT. From approximately 2011 through 2014, the defendants stored hazardous waste in unpermitted trailers on PCT’s property, as a result of not paying the disposal companies. Company owner David Crandall failed to pay the disposal bills, causing the employees to illegally store the waste. PCT abandoned the waste following its eviction from the property in July 2014.
Peters, Connelly, and Ridenour all pleaded guilty to being accessories after-the-fact to RCRA violations. A court sentenced each of them to complete two-year terms’ of probation (to include 12 months’ home detention) and perform 100 hours of community service. Connelly will pay a $5,000 fine, Ridenour $3,000, and Peters $2,000. A court ordered Crandell to pay a $60,000 fine, complete a two-year term of probation (to include nine months’ home confinement), and perform 50 hours of community service. Crandell also pleaded guilty to being an accessory-after-the-fact.
This case was investigated by the EPA Criminal Investigation Division, the North Carolina State Bureau of Investigation, and the North Carolina Department of Environmental Quality.
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