HomeMy WebLinkAboutCOUNCIL - AGENDA ITEM - 03/16/2010 - SECOND READING OF ORDINANCE NO. 019, 2010, AMENDIN DATE: March 16, 2010 '
STAFF: Carol Webb 1 WK41011i
Second Reading of Ordinance No. 019, 2010, Amending Chapter 26 of the City Code Relating to Right of Entry and
Nuisance Abatement and Article VII of Chapter 26 Relating to Stormwater Quality and Enforcement.
EXECUTIVE SUMMARY
This Ordinance, unanimously adopted on First Reading on March 2, 2010, allows authorized City employees to
investigate and abate imminent hazards to the City's Utilities systems and to recover costs of abatement from
responsible parties. The Ordinance also includes amendments that are specific to Article VII of Chapter 26 related
to stormwater to impose more stringent limitations than those required by CDPHE related to stormwater discharges,
to allow stop work orders to be issued on construction sites for stormwater violations of the City Code, and to address
proper maintenance and operation of private stormwater quality facilities.
STAFF RECOMMENDATION
Staff recommends adoption of the Ordinance on Second Reading.
ATTACHMENTS
1. Copy of First Reading Agenda Item Summary-March 2, 2010
(w/o attachments)
ATTACHMENT
DATE: March 2, 2010 '
STAFF: Carol Webb • • •
me
First Reading of Ordinance No. 019, 2010, Amending Chapter 26 of the City Code Relating to Right of Entry and
Nuisance Abatement and Article VII of Chapter 26 Relating to Stormwater Quality and Enforcement.
EXECUTIVE SUMMARY �-- z� r.----I T-\ ,7
Staff has identified changes to the City Code that are necessary to reflec4 ecent changes to permits and policies
issued by the Colorado DepartmenIOof Pu61ic\Healt�andl Environment,l(CDPHE) and to improve enforcement
mechanisms related to stormwater quality%The Ordinance will allow authorized City employees to investigate and
abate imminent hazards to the City's Utilities systems and to recover costs of abatement from responsible parties.
The Ordinance also includes amendments that are specific to Article VII of Chapter 26 related to stormwaterto impose
more stringent limitations than those required by CDPHE related to stormwater discharges, to allow stop work orders
to be issued on construction sites for stormwater violations of the City Code, and to address proper maintenance and
operation of private stormwater quality facilities.
BACKGROUND/ DISCUSSION
/�� �� i�� �\ /�
In 2003, the City of Fort Collins was issued a Municipa� Sepa` ramie Storrn�Sewer System (MS4) permit in order to
discharge stormwater associated with its MS4. `This federally-mandated program is administered by CDPHE. The
City is currently in its second permit term -2 W` 01 3. u u
The MS4 permit requires regulatory mechanisms and enforcement procedures prohibiting the discharge of pollutants
and contaminated water into the City's public stormwater facilities. The City currently has a number of enforcement
mechanisms in place, but needs to improve and strengthen its enforcement to comply with the current MS4 permit
and recent permits and policies issued by CDPHE. The proposed Code changes reflect these improvements and
provide the following:
1. A legally compliant grant of authority for Utilities staff to reasonably enter a property to investigate imminent
hazards to the City's MS4.
2. A mechanism for the City to recover`eost9lor abatement of imminentfiazards from the party responsible for
creating the hazard. ((( (( )� U
3. A mechanism for Utilities staff to_stop wofk_on/Con Itruction sites for violations of the Stormwater Article of
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Chapter 26.
4. The addition of a Code section requiring the proper maintenance and operation of private storm drainage
facilities by the owners of the real property that are directly served by those facilities
In addition to the MS4 permit program goals and requirements, the proposed Code changes also help support the
Stormwater Utility Repurposing effort by providing and refining regulatory and enforcement mechanisms to protect the
quality of the stormwater that flows from the MS4 into waters of the State.
FINANCIAL IMPACT 11 � f:�% FCD-� W-
\� /7 \� // IT- 1'1
The proposed Code changes will have•a:positive financial impact on the City because the City will be able to recover
costs for abatement of imminent hazards to the stormwater system. The cost of stormwater pollution will be the
responsibility of the responsible party.
March 2, 2010 -2- ITEM 14
SUSTAINABILITY: ECONOMIC, ENVIRONMENTAL AND SOCIAL IMPACTS
Environmental Impacts
1. The proposed Code changes reflect environmental regulatory requirements of CDPHE and the Environmental
Protection Agency(EPA). The regulatory requirements are promulgated to implement the goals of the Clean
Water Act to protect and improve the quality of the nation's water bodies.
2. The proposed changes will create a deterrent to potential violators who discharge pollution to the City's
stormwater system.
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3. Sediment from construction sites, a major water quality pollutant., will/be better controlled.
4. Requirementsfor proper op Irltiioon and rnainte�leD private storm drainagefacilitieswillimprovethequality
of discharged stormwater. J Li
Financial Impacts
1. The City will have a mechanism to recover costs associated with imminent hazards to the City's stormwater
facilities.
2. Violators will incur costs associated with pollutants discharged to the City's stormwater system.
Social Impacts ��� �� — �7
1. Protection and improvement of locahwater bodies from p�lution improves the overall health and well-being
of the community. `I I'`r==� 1v,�
2. Proper maintenance and operations of private-stormwater facilities-contributes to the health and safety of the
community by improving the quality of stormwater discharged and preventing flow obstructions which may
cause flooding.
3. Enforcement of stormwater requirements promotes education in the regulated community regarding the
purpose of the stormwater system.
STAFF RECOMMENDATION
Staff recommends adoption of the Ord na ce onFirst Re dip Y
L� U
BOARD / COMMISSION RECOMMENDATION
At its January 28,2010 meeting,the Water Board voted unanimously to recommend adoption of the Ordinance. There
have been two substantive changes to the Ordinance language since it was reviewed by the Water Board in January,
2010. The first was to modify the final subsection of the definition of imminent hazard in order to more specifically
describe types of potentially hazardous conditions. The second is to amend Section 26-548 pertaining to stop work
orders in order to specifically describe the type of activity that may be stopped and in order to clarify that such activity
may be stopped if the activity puts the City at risk of violating its MS4.
PUBLIC OUTREACH rn !
Public outreach has been conducted by Utilities staff regarding the prohibition of the discharge of pollutants and
contaminated water to the City's stormwater system. Education has included business educational outreach
March 2, 2010 -3- ITEM 14
campaigns,warning letters to first-time violators, education for developers and construction site employees on proper
erosion and sediment control measures, and education for homeowner associations related to proper operation and
maintenance of private storm drainage facilities.
ATTACHMENTS
1. Water Board draft minutes, January 28, 2010
D
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COPY
COP 'W
ORDINANCE NO. 019, 2010
OF THE COUNCIL OF THE CITY OF FORT COLLINS
AMENDING CHAPTER 26 OF THE CODE OF THE CITY OF FORT COLLINS
RELATING TO RIGHT OF ENTRY AND NUISANCE ABATEMENT AND
ARTICLE VII OF CHAPTER 26 RELATING TO STORMWATER
QUALITY AND ENFORCEMENT
WHEREAS,the City was issued a Municipal Separate Storm Sewer System("MS4")permit
to discharge stormwater into waters of the State of Colorado in 2003; and
WHEREAS, the Colorado Department of Public Health and Environment ("CDPHE")
administers MS4 permits issued to municipalities including the City; and
WHEREAS,the CDPHE has implemented statewide changes in regulatory mechanisms and
policies and has required MS4 permit holders to more actively enforce stormwater violations in order
to prohibit and address discharges of pollutants and contaminated water into stormwater facilities;
and
WHEREAS, the CDPHE has implemented permit changes that require the City to require
the proper maintenance and operation of private storm drainage facilities; and
WHEREAS, the City Council has determined that the Utility should have the authority to
abate imminent hazards and to seek abatement of such hazards.
NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF FORT
COLLINS as follows:
Section 1. That Section 26-1 of the Code of the City of Fort Collins is hereby amended
by the addition of a new definition of "Imminent hazard" which reads in its entirety as follows:
Imminent hazard shall mean the existence of a public nuisance or any other
condition or occurrence that,as determined by the Utilities Executive Director,poses
a threat to public health, safety and welfare. This includes, but is not limited to, a
condition that:
(1) poses a threat to any City utility system;
(2) interferes with the provision of utility services pursuant to this Chapter; or
(3) materially interferes with or impairs the utility's compliance with any
environmental restrictions, regulations or permits applicable to the utility.
Section 2. That Section 26-22 of the Code of the City of Fort Collins is hereby amended
to read as follows:
Sec. 26-22. Right of entry.
(a) In connection with the necessary discharge of their duties and the
enforcement of the provisions of this Chapter,the employees of the City shall, at all
reasonable times, have access to any premises within or without the City served by
one(1) or more of the utilities or the examination or survey thereof or for inspection
and repair of facilities and appurtenances,connection and disconnection of services,
reading meters. This provision is not intended to modify the right of access described
in §26-219.
(b) Whenever necessary to make an inspection to enforce any of the provisions
of this Chapter or whenever a City employee has reasonable cause to believe that
there exists in any building or upon any premises any condition or violation which
makes such building or premises unsafe, dangerous or hazardous or presents a
significant,immediate danger to human health or the environment,the City employee
may enter such building or premises at all reasonable times to inspect it or to perform
any duty imposed upon the City employee by this Chapter. If such building or
premises is occupied at the time entry is required, the City employee shall first
present proper credentials and request entry. If such building or premises is
unoccupied, the City employee shall first make a reasonable effort to locate the
owner or other persons having charge or control of the building or premises and
request entry. If such entry is refused,the City employee shall have recourse to every
remedy provided by law to secure entry.
(c) When the City employee has obtained an inspection warrant or other
remedy provided by law to secure entry,no owner or occupant or any other persons
having charge,care or control of any building or premises shall fail or neglect, after
proper request is made as herein provided, to promptly permit entry therein by the
City employee for the purpose of inspection and examination pursuant to this Article.
Any such failure to permit entry upon request pursuant to a valid inspection warrant
shall be a misdemeanor punishable by the provisions set forth in § 1-15.
Section 3. That Article II, Section 26 of the Code of the City of Fort Collins is hereby
amended by the addition of a new Section 26-28 which reads in its entirety as follows:
Sec. 26-28. Abatement of imminent hazards.
(a) If the Utilities Executive Director identifies a circumstance that constitutes
an imminent hazard,the Utilities Executive Director is authorized to take such steps
as the Director deems appropriate to prevent or mitigate the imminent hazard and to
recover any costs incurred by the City in these efforts. Failure to follow the
procedures described below does not preclude the City from recovering its abatement
costs through any legal means.
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(b) Except as otherwise specifically provided,if the Utilities Executive Director
certifies in writing that an imminent hazard exists, as defined in this Chapter, the
Utilities Executive Director may issue an order to the owner, agent of the owner,
occupant of the property or other responsible party pursuant to §26-547, stating that
the imminent hazard exists and requiring such actions as he deems necessary in order
to abate the imminent hazard.
(c) If the Utilities Executive Director issues an order regarding the abatement
of an imminent hazard, such order shall:
(1) be in writing;
(2) be personally served whenever feasible on the owner, owner's agent or
other responsible party pursuant to§26-547 or,when personal service is not
feasible,be posted conspicuously at the premises or be mailed to the person
by certified mail,return receipt requested,to his or her last known address;
(3) describe with reasonable specificity the condition existing on the premises
that gives rise to the issuance of the imminent hazard order;
(4) specify, if applicable,the maximum time period before the City itself will
abate the hazard;
(5) state that an appeal of the order is available under the provisions of
paragraph (g) of this Section;
(6) include a copy of this Section;
(7) state that, in the event the property owner, owner's agent or occupant fails
to immediately comply with the imminent hazard order, the City may take
any steps necessary to correct the imminent hazard,bill the property owner
for costs incurred to correct the hazard, and if unpaid, seek any and all
available legal remedies including but not limited to preventing the person
responsible for creating or allowing the imminent hazard from obtaining or
renewing any licenses, permits or certificates from the City.
(d) In the event the person to whom the imminent hazard order is issued fails
or refuses to comply with such order,the Utilities Executive Director may cause the
imminent hazard to be summarily abated in such manner or by such methods as are
necessary and appropriate under the circumstances of each case.
(e) If an imminent hazard has been abated by the City under this Section and
the responsible party under §26-547 fails,within thirty(30)days after receipt of the
City's bill for costs and expenses incurred in abating the imminent hazard,to pay said
costs and expenses, a lien in the amount due will be created by the owner's failure
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to pay the amount due and may be assessed against the property upon which the
imminent hazard exists or the property directly benefitting from a storm drainage
facility described in§26-547 and such lien shall be enforced consistent with§26-718
(b) and (d).
(f) To enforce an imminent hazard order,the Utilities Executive Director or his
designee may enter upon any premises or property in accordance with the provisions
of§ 26-22 for the purpose of inspecting, abating, repairing, removing or otherwise
preventing the condition which is an imminent hazard to the public health,safety and
welfare.
(g) Any party to whom an imminent hazard order has been issued and who
believes that he or she has been aggrieved by an imminent hazard order issued by the
Utilities Executive Director may appeal the order to a hearing officer, who shall be
appointed by the Executive Director, provided the aggrieved party makes written
application for such appointment within five (5) days of service of the imminent
hazard order. In no event, however, shall an appeal of an imminent hazard order in
any way stay or suspend the same,unless measures to avoid or mitigate the imminent
hazard have been approved by the Utilities Executive Director and are implemented
as approved. If a timely appeal is made, a hearing concerning the propriety of the
order shall be granted to the party to whom an imminent hazard order has been
issued, and, after notice thereof to the appellant, the hearing shall be held no more
than ten(10)calendar days after the filing of the notice of appeal. At the hearing,the
appellant and the City may be represented by an attorney,may present evidence and
may cross-examine witnesses. A verbatim transcript of the hearing shall be made.
The decision of the hearing officer shall be based upon competent evidence.
(h) The remedies discussed in this Section are available to the City in addition
to any other remedies which may be available to the City. Nothing contained in this
Section shall be construed to preclude the City or the Utilities Executive Director
from seeking any and all other available legal remedies.
Section 4. That Section 26-491 of the Code of the City of Fort Collins is hereby amended
by the addition of the following eight new definitions which read in their entirety as follows:
Best management practices shall mean treatment requirements, operating
procedures and practices to control site runoff, spillage or leaks, sludge or waste
disposal, or drainage from raw material storage and schedules of activities,
prohibitions of practices,maintenance procedures, and other management practices
to prevent or reduce the pollution of"state waters" that are described in the Urban
Drainage and Flood Control Manual, Volume 3, entitled "Best Management
Practices"published by the Urban Drainage and Flood Control District in Denver,
Colorado, in January 2007.
CDPS shall mean the Colorado Discharge Permit System.
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Connection shall mean a pipe,drain,any other conduit,or plumbing that conveys
or can be used to convey any water or other liquid or solid material to the stormwater
system.
Maintenance best management practices shall mean those management practices
that are described in the Urban Drainage and Flood Control Manual, Volume 3,
Chapter 6, entitled "Maintenance Recommendations" published by the Urban
Drainage and Flood Control District in Denver, Colorado, in January 2007.
Pollutant shall mean dredged spoil, dirt, slurry, solid waste, incinerator residue,
sewage,sewage sludge,garbage,trash,chemical waste,biological nutrient,biological
material, disease causing agents, radioactive material, heat, wrecked or discarded
equipment,rock,sand,automotive fluids,paint,cooking grease,process waste water,
swimming pool discharges,discharges from cleaning of Heat Transfer Equipment or
any industrial,commercial,construction,household,municipal or agricultural waste.
Private storm drainage facilities shall mean those storm drainage facilities that
do not meet the definition of public storm drainage facilities.
Public storm drainage facilities shall mean those storm drainage facilities that
have been formally and expressly accepted by the City for. City ownership and
maintenance or as otherwise expressly agreed by the City in writing.
Storm drainage facility shall mean those improvements designed,constructed or
used to convey or control stormwater runoff, and to remove pollutants from
stormwater runoff after precipitation.
Section 5. That the definition"Contaminated water"contained in Section 26-491 of the
Code of the City of Fort Collins is hereby amended to read as follows:
Contaminated water shall mean that water which contains constituents at
concentrations which could cause,directly or indirectly,impairment of human health
or the environment and which would not present in such concentrations in a natural
state. This includes any water contaminated from industrial processes, land use
activities, development or other man-induced practices. These constituents include,
but are not limited to, toxic pollutants as defined in § 26-206 of the Code, nutrients
such as nitrogen and phosphorous, substances which promote an excessive
biochemical oxygen demand (BOD) or chemical oxygen demand (Cod) as those
terms are defined in § 26-206, substances which cause the pH of such water to
deviate from acceptable standards, biological agents which may be the cause of
disease in either humans or other desirable organisms, and physical contaminants
such as excess sediments and/or temperature. U.S. Environmental Protection
Agency's current publication of "Quality Criteria for Water," and/or the State of
Colorado's"Basic Standards and Methodologies for Surface Water"and/or any other
federal or state regulation or guideline may be used to interpret the impact of a
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particular constituent upon a water body. This definition does not include the
following sources of water,unless water from such a source is determined to violate
other applicable water quality restrictions or requirements:
(1) flows incidental to emergency fire fighting activities;
(2) landscape irrigation and residential lawn watering;
(3) irrigation return flows;
(4) springs, diverted stream flows and flows from riparian habitats and
wetlands;
(5) flows incidental to street, sidewalk or median sweeping and not associated
with construction;
(6) flows from condensation formed from the operation of air conditioning
equipment installed and maintained in accordance with manufacturer's
specifications;
(7) uncontaminated pumped, infiltrated or rising ground water; and
(8) flows from a properly installed,operated and maintained and City-approved
footing, foundation or crawl space drain or pump.
Section 6. That the definition "Suitable treatment" contained in Section 26-491 of the
Code of the City of Fort Collins is hereby amended to read as follows:
Suitable treatment shall mean that treatment process authorized by and
undertaken pursuant to an appropriate permit(s)to discharge treated water under the
State of Colorado Department of Public Health and Environment's Colorado
Discharge Permit System ("CDPS") or pursuant to written guidance regarding low
risk categories of discharges issued by the Colorado Department of Public Health and
Environment, except that if the Executive Director has imposed more stringent
requirements as authorized in§26-498(d),suitable treatment means compliance with
those more stringent requirements.
Section 7. That Section 26-498 of the Code of the City of Fort Collins is hereby amended
to read as follows:
Sec. 26-498. Water quality control.
(a) The City storm drainage facilities are intended to be used only for the
purpose of collecting water deposited as a result of meteorological precipitation. No
person shall make or maintain at any time a connection to a storm drainage facility
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to convey flows other than storm drainage flows and uncontaminated groundwater
flows. Except where suitable treatment has been provided,no person shall discharge
any pollutant or contaminated water into or upon any:
(1) Public street, highway or other street right-of-way;
(2) Watercourse (whether natural or manmade);
(3) Storm drainage facility; or
(4) Other public or private property within the City or in an area under the
jurisdiction of the City if there is a significant potential for migration of
such pollutant or contaminated water from such property to a storm
drainage facility.
(b) No person shall maintain or permit property conditions that create a
significant potential for migration of pollutants or contaminated water to the City's
storm drainage facilities.
(c) No person shall fail to maintain stormwater quality improvements required
in connection with such person's development, occupation or use of any property in
the City.
(d) The General Manager is authorized to impose more stringent effluent
limitations than required by the CDPS and to add pollutant parameters to those
required by the CDPS in regulating flows into or upon the locations or facilities
described in Subsection (a) as the Utilities Executive Director determines to be
necessary to protect public storm drainage facilities,public streets,highways, other
rights-of-way,or any watercourse. The General Manager is also authorized to require
sampling for such pollutant parameters according to such schedule as the Utilities
Executive Director determines to be appropriate to ascertain water quality. Any such
requirements added by the General Manager shall be reported together with those
required by the CDPS to both the General Manager and the CDPS. The General
Manager is authorized to refuse, or restrict any discharge to public storm drainage
facilities if, in the best professional judgment of the General Manager, such refusal
or restriction is necessary to prevent impairment of the health,safety or welfare of the
citizens or the environment,or to prevent injury to any public storm drainage facility.
(e) Where CDPS discharge permits are required , the General Manager is
authorized to impose additional requirements as may be applicable pursuant to the
City's "Storm Drainage Design Criteria and Construction Standards" or pursuant to
best management practices.
(f) No person shall use any water well within the City as a cesspool or as a
place to deposit wastewater or wastes of any kind.
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(g) No person shall cause any obstruction in or interfere with the operation of
any public storm drainage facility or private storm drainage facility.
Section 8. That Article VII, Division 2 of Section 26 of the Code of the City of Fort
Collins is hereby amended by the addition of a new Section 26-499 which reads in its entirety as
follows:
Sec. 26-499. Violations and penalties.
Any person who violates any provision of this Article commits a criminal
misdemeanor and upon conviction, shall be subject to the provisions of §1-15.
Unless otherwise specified, each day that a prohibited condition is maintained shall
constitute a separate offense.
Section 9. That Section 26-518 of the Code of the City of Fort Collins is hereby amended
to read as follows:
Sec. 26-518. Enforcement.
Any charge due hereunder which is not paid when due may be recovered in an
action at law by the City. In addition to any other remedies or penalties provided by
this Chapter or the Code,failure of any user of City utilities within the City to pay the
charges promptly when due shall subject such user to discontinuance of such utility
services and the City Manager is hereby empowered and directed to enforce this
provision as to any and all delinquent users.
Section 10. That Section 26-547 of the Code of the City of Fort Collins is hereby amended
to read as follows:
Sec. 26-547. Maintenance of storm drainage facilities.
(a) Any person responsible for any private storm drainage facility required by the
City, whether by law or as a condition of development approval or development
agreement, shall maintain and operate said facility in accordance with maintenance
best management practices.
(b) The owner of that real property whose property is directly served by a private
storm drainage facility according to an applicable storm basin delineation is
responsible to the City for costs incurred by the City pursuant to §26-28.
Section 11. That Article VII, Division 3 of Chapter 26 of the Code of the City of Fort
Collins is hereby amended by the addition of a new Section 26-548 which reads in its entirety as
follows:
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Sec. 26-548. Stop work orders.
(a) The City Manager may, by service of written notice, order that any work
undertaken pursuant to a permit issued by the City or pursuant to a City-approved
development agreement be stopped if the City Manager or his or her designee
determines that such work falls within any of the following categories and if the City
Manager also causes a written notice to that effect to be served on the person
responsible for, or conducting, such activity:
(1) the work is not in compliance with this division of the Code;
(2) the work may cause injury to the City's storm drainage facility or waters of
the state; or
(3) the work materially interferes with or impairs the City's compliance with
any permit applicable to the stormwater utility.
(b) Except as specified in such notice,such person shall cease all activity until
authorized in writing by the City to proceed. If the appropriate responsible person
cannot be located,the notice to stop shall be posted in a conspicuous place in the area
where the activity is occurring.
(c) The notice shall state the nature of the violation or potential cause of harm.
A posted notice must not be removed until the violation or potential cause of harm
has been remedied or the City has given authorization to remove the notice.
(d) It is unlawful for any person to fail to comply with a stop work order.
(e) A person who has been issued a stop work order pursuant to this Section
and who believes he or she has been aggrieved by such order may appeal the order
pursuant to procedures described in § 26-28(g).
Introduced, considered favorably on first reading, and ordered published this 2nd day of
March, A.D. 2010, and to be presented for final passage on the th,day of March, A.D. 2010.
Mayo
ATTEST:
- V..� *
City Clerk
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Passed and adopted on final reading on the 16th day of March, A.D. 2010.
Mayor
ATTEST:
City Clerk
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