FRACTURED: Showdown in Boulder County
New oil and gas rules challenge the state’s open arms policy to drilling. Will they work?
Editor’s note: Daniel Glick and Ted Wood of The Story Group, along with Kelsey Ray of The Colorado Independent, have been reporting on oil and gas issues for our ongoing series: Fractured. Fractured examines the science, politics and humanity of oil and gas development and explores its impacts on Coloradans around the state.
ERIE, Colo. — It’s showdown time.
This morning, Boulder County’s five-year ban on new oil and gas development officially expired. In its place, new rules governing oil and gas development in the county will take effect, which county commissioners say are the “strongest set of regulations on oil and gas development in the State of Colorado.”
Oil and gas industry officials have already vowed to challenge the new rules, saying they are essentially a ban by another name.
Meanwhile, “fracktivists” in Colorado’s most politically progressive county say that lifting the ban defies the will of the people who live here, and are planning everything from civil disobedience to mass meditation to prevent new drilling.
Conflicts over oil and gas development in Colorado have escalated over the past decade, generating discord even in much less liberal strongholds such as Broomfield, Battlement Mesa, Greeley, Ft. Collins, and Colorado Springs. The rapid implementation of horizontal drilling technologies and hydraulic fracturing, or “fracking,” has propelled an increase in industrial activity closer to where people have been flocking to live. At the same time, as the recent fatal house fire in Firestone demonstrates — investigators are still searching for the cause, including examining a possible link to an older well about 170 feet from the explosion — there has also been a huge increase in housing developments sprouting near existing oil and gas development.
Tensions have increased as oil and gas companies continue to seek permits to inject a combination of water, sand, and chemicals deep underground to break open, or “frack,” reservoirs of hydrocarbons that had previously been impossible, uneconomical, or impractical to retrieve. A single modern drilling pad can launch dozens of horizontally drilled wells, with associated compressors, truck traffic, drilling rigs, separators, condensate tanks, noise, and other industrial activity.
The result over the past decade, in Colorado and around the country, is a gusher of new wells and an almost unfathomable flow of money into energy industry coffers. Exxon and Chevron just reported a combined profit of $6.68 billion for the first quarter of 2017. There are more than 54,000 active wells in Colorado today, compared to about 22,500 in 2002, according to the Colorado Oil and Gas Conservation Commission (COGCC), which regulates the industry. Of those, only 310 are in Boulder County, from wells that predate the moratorium.
Each successful well can produce millions of dollars of profit for a company. The resulting tax revenue and jobs have garnered substantial support for the industry at the statehouse and Gov. John Hickenlooper’s office. In 2014, according to an analysis by the University of Colorado Leeds School of Business, the state received a little more than $1 billion in revenue from property, severance, and state taxes from oil and gas companies.
This gush of money has also fueled what some people see as asymmetrical warfare in the political sphere, as the industry wields its substantial clout and resists change even as its impacts have generated deep – and widening – resistance.
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Colorado’s population has grown by more than 10 percent since 2010, while the number of producing gas wells has almost doubled during the same period. The resulting collision between residential sprawl and industry growth has given communities and local politicians whiplash. It has pitted decades-old laws against new realities that legislators never had to consider: 40-well industrial facilities next to million-dollar suburban homes; oil tank fires near elementary schools; a new house exploding near a decades-old well; and the increasingly urgent threat of an emerging climate crisis, fueled by burning the very fossil fuels that the industry strives to extract.
Boulder County’s five-year moratorium has shielded its 740 square miles of rolling hills and short-grass prairie from the drilling frenzy that has transformed neighboring Weld County to the east.
The coming months and years will test the resolve of the oil and gas industry to drill over the increasingly impassioned objections of local residents and governments. This resistance will push the courts to new legal frontiers, propel scientists to quantify the impacts of oil and gas developments, and deploy multiple political flanks in the state’s ongoing hydrocarbon wars.
It is showdown time, indeed.
Ghost of drilling future
The town of Erie, which straddles Boulder and Weld Counties, is one epicenter from which to assess the coming showdown. Erie’s population has quadrupled since the 2000 census, from a little more than 6,000 to an estimated 25,000 today. That is almost identical to the number of wells (23,279) operating in Weld County, which has received nearly two-thirds of the state’s new applications for drilling so far in 2017.
Here on the east side of County Line Road, where Weld County has enthusiastically embraced oil and gas development, the ghost of Boulder’s drilling future awaits.
On a recent spring day, bright red industry trucks and employees’ white Ford F-150s dot the landscape. The pneumatic gush of nail guns cinching plywood to rows of new, two-story homes offers a counterpoint to the staccato hum of drilling rigs actively working in the center of town. Near the recreation center, joggers wearing earbuds and dog-walkers talking on their iPhones promenade along bucolic bike paths, around a golf course, and past pocket parks with views of the Continental Divide.
For Eileen Rojas, Boulder County’s possible future has already arrived. A biomedical scientist and mother of two young children, Rojas, lives on the Boulder County side of Erie, about 400 feet from the Weld County line. She has watched with dismay as drilling operations on the other side of that jurisdictional border have turned her life upside down.
From her driveway, Rojas witnessed two giant drilling rigs moving into view, and saw workers erect a 30-foot-high green sound barrier, which didn’t block much sound. Now that the massive drilling rigs have moved out of sight but not out of mind, she can still feel the rumbling of trucks entering and leaving the drilling sites all day, and sense the flashing lights all night. At times, the acrid tang of the operations is so bad that she takes her kids and evacuates her house to seek refuge at the home of friends who live in the city of Boulder, 15 miles away.
When Rojas and her husband bought their house four years ago, she had heard about fracking but didn’t think it would hit them between the eyes. “I had no idea they were going to be developing across the street from us,” she said. When the drilling started and the noise and smells were literally driving her from her home, she made repeated calls to the company doing the drilling and the COGCC. Those efforts led to a runaround of wrong numbers, unreturned calls, and growing frustration.
Rojas doesn’t consider herself an activist or fracktivist. She is a scientist, however, and she’s read the studies about oil and gas air emissions and their impact on air quality. She is increasingly concerned about the possibility of health impacts on her and her family. Rojas viscerally feels the impacts of this development that seep into her everyday life, and is unnerved by the prospect of more. “We love living here,” she said, “but we’re thinking about moving.”
When she talks to friends in other parts of the county, she is dismayed when they say that none of this could happen to them.
“Oh, no,” she tells them. “They’re coming.”
Throwing down the gauntlet
Energy companies are indeed coming, but it’s still an open question how far they’ll get after they cross into Boulder County.
The Boulder County Commission passed their new regulations unanimously on March 23, 2017, after a lengthy and intensive review by its legal team and public health officials, and vociferous input from constituents at public hearings and in public comments.
The new rules include a provision to require companies who apply for drilling permits to engage in lengthy public comment periods, make “nuisance” payments to residents who are affected by oil and gas development, install intensive air and water monitoring systems, and face a review by the county’s land use staff before siting the wells. The new rules ban injection wells that are reservoirs for “produced” water that contains various chemicals used or released from the drilling process. They also make it clear that putting oil and gas facilities in floodplains won’t happen in a county that is still recovering from disastrous flooding in 2013 that, among other things, caused leaks and spills from oil production to contaminate the surrounding area.
Many county residents say that more stringent rules aren’t the answer, period. Those who advocate for continuing the ban argue that no new rule can be effective in protecting them from unwanted industrial activity and the risks to their health and safety, as well as the necessity to wean ourselves from fossil fuels to reduce the impacts of future climate disruptions. One group, calling itself Boulder County Protectors, vowed that, “not one inherently dangerous well should be allowed to harm the environment or the people of Boulder County.” They have planned “emergency meetings” around the county this week, and multiple citizen groups are ginning up support and resolve. “Negotiating the terms of this harm is not acceptable,” says one flyer that was passed out at a recent commission meeting.
The county’s three commissioners maintain they had no choice but to lift the moratorium. They argue that their new regulations are a forceful, if less than perfect, response to two May 2016 Colorado Supreme Court rulings that overturned bans on new oil and gas development in Ft. Collins and neighboring Longmont. The Court ruled that local bans were illegal since state law encouraging oil and gas development trumped local ordinances that tried to curtail it. Three other cities on the Front Range, including Broomfield, Lafayette, and Boulder, had also passed time-outs or bans on new permits.
Activists regrouped. After an often contentious internal debate among several fracktivist factions about the best strategy to pursue, a decision was made to try to gather enough signatures to place two ballot initiatives on the November 2016 ballot: one, 75, would have given local governments more say in siting and regulating oil and gas activity in their backyards; 78 would have increased the distance required between oil and gas development and houses, school, and water sources.
The industry responded with a fire hose, pouring millions of dollars into campaign against the measures, as well as a ballot initiative known as “Raise the Bar,” an effort that makes it harder to amend the Colorado Constitution by requiring those trying to get constitutional ballot initiatives to gather signatures from 2 percent of all voters in the 35 state Senate districts. It was, essentially, a ballot initiative to make it harder to float ballot initiatives.
According to campaign finance disclosure statements filed with the Secretary of State, Raise the Bar took in a total of $5.7 million in 2016, with the oil and gas industry contributing $4.5 million of that. Of that $4.5 million, $2.9 million came from Protect Colorado, an industry backed campaign committee that has funded several efforts to thwart anti-fracking initiatives. Protect Colorado took in $15.6 million in 2016, with all but $400,000 coming from the oil and gas industry, campaign finance statements show.
Measures 75 and 78 failed to gather enough signatures to make the ballot. “Raise the Bar” passed, and has subsequently been challenged in court as unconstitutional. That case is pending.
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The Supreme Court’s decisions in the Ft. Collins and Longmont cases didn’t specifically address Boulder, but county attorneys advised that the ruling applied to their county as well. Boulder tried a legal feint by rescinding its five-year ban and replacing it with a short-term moratorium in order to study the new landscape. State Attorney General Cynthia Coffman’s office responded by suing Boulder County twice: once for the original ban, and a second time for the more temporary one. Despite the promise of today’s end to the ban, the AG’s office continued to pursue its lawsuit. On Friday, a Boulder District Court judge ruled against the county’s motion to dismiss the suit, which presumably will become moot if the moratorium is lifted today.
At an emotional meeting on the third floor of the Boulder County Courthouse last week, the three commissioners took turns justifying their strategy to continue with a “multi-pronged approach” to curtail further development rather than continuing the ban and facing certain legal defeat. They outlined an approach that includes defending the new regulations against inevitable lawsuits, supporting other lawsuits pending across the state, funding scientific studies to document air and water impacts from oil and gas development, and pursuing alternative energy and conservation measures to put their money where their carbon footprint is.
Commissioner Elise Jones pleaded with her constituents to take their fight to the statehouse and Governor’s office, since county commissioners were powerless to change state law. “I’d extend the moratorium in a heartbeat if I thought it would help,” she said.
In an interview with The Colorado Independent, Jones said that in public comments received by commissioners, about 97 percent of residents opposed new oil and gas development. She argued that businesses providing jobs in the county (such as IBM, Google, Amgen, and Whole Foods) are interested in providing their workers recreational opportunities as well as both a clean environment and local policy makers who take progressive stances. These include supporting more renewable energy and efficiency and a commitment to aggressively address climate change. The city of Boulder passed a Climate Action Plan tax in 2006, which was hailed as the first tax in the country designed to promote climate change responses, and is pursuing a contentious utility municipalization to promote more renewable energy. It has spent millions of dollars buying open space with taxpayer dollars, even if it has not been able to purchase the mineral rights under much of that land.
Should energy companies who hold oil and gas leases on county open space choose to develop them, it’s easy to imagine a blockade of Camelback-sporting hikers and mountain bikers wearing colorful “Frack off!” jerseys amassing at the open space boundary.
Digging in for a fight
The oil and gas industry, meanwhile, has already vowed to fight the new regulations in court. Tracee Bentley, executive director of the Colorado Petroleum Council, a branch of the American Petroleum Institute, contends that the new rules will not stand legal scrutiny. “There is zero doubt in my mind that these regulations were written to take the place of the moratorium,” she told The Colorado Independent. If these regulations were allowed to stand unchallenged, she said, “It would take a miracle to get a permit.”
Dan Haley, president of the Colorado Oil and Gas Association (COGA), suggested that Boulder’s new regulations were not meant to work constructively with the industry, which he maintains is already regulated enough by the state. He called Boulder’s new rules “unrealistic regulatory standards designed to roadblock responsible energy production.”
Haley says that Boulder’s new regulations exceed the county’s reach on multiple fronts. “For example, Boulder County’s newly adopted regulations ban underground injection wells, granting themselves an authority they do not retain,” said Haley in a statement. “Boulder County further attempts to supersede state law on floodplain management and water quality testing, and even tries to grant themselves the authority to locate a well, something that only the State can do.”
In a shot fired across Boulder’s bow, Haley concluded, “Our legal team will be conducting a thorough analysis over the coming weeks.”
Haley said in an interview that the industry “is willing to work with local communities,” but that “oil and gas does not respect local boundaries.” He says that a patchwork of regulations that vary from jurisdiction to jurisdiction cannot work, especially when state law clearly gives oil and gas exploration and production wide berth to operate. Haley and others in the industry say they increasingly operate in an environment in Colorado that may put operators at a competitive disadvantage and force them to leave for places like Texas.
Boulder County officials would be happy to hasten that departure.
County commissioners and others concerned about the scale and pace of the development say there are many reasons to draw a line in the Boulder County sand. They say that regulation and inspection of the industry still falls far behind what is required to keep citizens safe, noting that Colorado still has a perverse incentive to allow marginal operators to keep operating so the state won’t have to pick up the tab for their cleanup. Operators with repeated violations have routinely been given fines that have not been paid, while continuing to operate, and only a handful of operators have ever been shut down by the COGCC.
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The list of concerns goes on. Older wells, such as the one that may be implicated in the recent Firestone house explosion that killed two people and seriously wounded two others, face much less scrutiny than new wells. After the explosion, Boulder County officials quickly asked all operators of older, vertical wells in the county to stop production pending inspections. Both Anadarko Petroleum and Great Western Oil and Gas have temporarily suspended some of their operations to inspect their equipment.
Boulder County officials say that the state’s requirements for operators to perform “Leak Detection and Repair” (LDAR) inspections are grossly inadequate because they are so infrequent and often lack follow-up. In response, Boulder County has instituted its own inspection of local oil and gas facilities, and in 45 percent of the inspections, it has discovered leaks, according to a presentation made to the commissioners. Companies have responded to the reports and fixed the leaks in most cases. However, return visits to the same sites have often revealed new leaks. “These leaks tend to be ongoing and are popping up at different parts of the operation,” said Pam Milmoe, the air quality coordinator for Boulder County Public Health, in her remarks to commissioners last week. She said there have been 15 documented spills since mid January, and “four of them threatened groundwater.”
Will Toor, a former Boulder mayor and county commissioner who is currently on the state Air Quality Control Commission, acknowledges that some substantial improvements have been made in governing the industry, including 2014 methane rules that instituted new regulations to include more inspections of oil and gas operations and upgraded infrastructure. In 2011, Colorado passed new policies requiring the disclosure of hydraulic fracturing fluids, mandating increased water quality monitoring near wells, and establishing improved air quality standards for well operations.
But even with those regulatory improvements, Toor said, “In a rational world, you would really be much more cautious about putting these [oil and gas operations] near people.”
On the health front, Milmoe said in an interview, Boulder County’s public health officials had lobbied the commissioners to keep the moratorium until a new comprehensive study of health impacts by the Colorado Department of Public Health and the Environment (CDPHE), due out in June 2018, would be released. She said that some health impacts from oil and gas development are already readily apparent, especially as a result of oil and gas activity’s documented contribution to the region’s repeated failure to meet federal ozone standards. Oil and gas operations release chemicals that are known as “ozone precursors,” including volatile organic compounds (VOC), which interact with other emissions to increase ozone levels. Higher ozone levels, in turn, lead to a host of other illnesses, including respiratory diseases and higher asthma rates. While oil and gas only contributes a part of the emissions to this ozone problem, its role is an important one. In one study by NOAA researchers, more than half of the VOC reactivity in the Denver Basin was attributed to oil and gas activities. “Increased oil and gas activity will likely exacerbate ozone formation on the Front Range,” Milmoe said.
Other potential health impacts, Milmoe said, are worrisome. Benzene exposures, she said, “can have carcinogenic effects and may be causing health impacts that it will take years for scientists to fully understand.” Milmoe understands that public health officials don’t make policy, but does say that “there is enough scientific information to cause concern. But we don’t have all the information we need.”
At a recent scientific meeting in Boulder where results of the Front Range Air Pollution and Photochemisty Experiment (FRAPPÉ) emissions monitoring program was discussed, Gabrielle Pfister and Frank Flocke from the National Center for Atmospheric Research reported that benzene levels at one of their monitoring sites in Platteville spiked so much at times that Flocke said that he personally wouldn’t live near there.
To the Courts
Besides the inevitable legal challenges to Boulder County’s new rules, a flurry of lawsuits already winding through the courts is collectively challenging the industry’s supremacy.
Recently, the Colorado Court of Appeals ruled in favor of a group of Boulder teenagers who sued to force state agencies to more directly consider the health and welfare of Colorado residents when reviewing oil and gas drilling applications. The lawsuit centers on an interpretation of the Colorado Oil and Gas Conservation Act, which states that it is “in the public interest to foster the responsible, balanced development, production, and utilization of the natural resources of oil and gas in the state of Colorado in a manner consistent with the protection of public health, safety, and welfare.”
The judges ruled that the statute requires oil and gas companies to ensure that public health and welfare is “a condition that must be fulfilled” rather than an afterthought or as a merely one consideration among many in regulating oil and gas companies.
What that means is that the courts realize that the right to drill “is not an unconditional right,” says Kevin Lynch, a University of Denver Sturm College of Law assistant professor who supervises the student legal clinic that helped file the suit.
Other lawsuits challenging the COGCC’s interpretation of “neighborhood drilling” regulations are also pending, as well as an even more recent case opposing the siting of drilling operations near a middle school near Greeley. Said Lynch: “We see these cases as an opportunity to make the agencies take the new rules more seriously.”
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Activists in Boulder have already stated, in forceful ways, that the commissioners’ stance isn’t tough enough. Facebook groups like East County United and Frack Free Boulder have vowed to fight any new development by conventional and unconventional means. Guerrilla light artists have flashed “Ban Fracking!” graffiti on the county courthouse during protests, and self-described “fracktivists” have begun training sessions on non-violent civil disobedience. One group of about 40 residents showed up at the doorstep of Boulder County Commissioner Cindy Domenico on April 17, knocking on her door and demanding more action. Her husband politely turned them away. In 2012, commissioners condemned “mob harassment” that led them to enact new security measures for meetings.
On a more karmic note, an Eco Dharma group plans to “meditate the frack out of Boulder” in several events this coming week to protest the lifting of the drilling ban.
What about climate change?
Almost completely absent in the current debates about oil and gas regulation is any consideration of the climate change impacts of the fossil fuel industry.
Some of this accelerated oil and gas development has been fueled by a belief that natural gas has fewer environmental impacts than coal when burned to produce electricity, and can be a “bridge fuel” to a carbon-free future.
However, drilling operations here produce both methane (natural gas) and oil. Weld County, for example, is the state’s number one producer of both oil and gas, according to county statistics.
Complicating this debate further is the fact that methane production may not be the carbon-offset program it’s billed to be. Methane is a much more potent greenhouse gas than carbon dioxide, and although it doesn’t last as long as CO2 in the atmosphere, it has a much more immediate impact on our warming planet. “Fugitive methane” – which leaks out during the production process – is so plentiful in some locations that scientists believe that any climate change advantages to burning methane are more than offset by the amount that leaks into the atmosphere during its production and transport. As Cornell engineering professor Anthony Ingraffea wrote in a New York Times editorial, “Natural gas isn’t a bridge fuel. It’s a gangplank.”
In a place like Boulder County, which probably has more atmospheric scientists per capita than anywhere in the world, methane matters.
After today, it’s unlikely that there will be an immediate rush of new applications to drill in Boulder County. A rush of lawsuits is likely to come first. Crestone Peak Resources has already applied for a “Comprehensive Drilling Plan” that affects about a 12-square mile swath of the county – an administrative move that could precede a drilling application.
Crestone Peak’s chess move will provide some interesting legal work for a lot of lawyers. In its application to the COGCC, the company has ironically asked to extend the moratorium on approving drilling applications in that area until its plan can be reviewed and approved. Crestone states it is interested in pursuing its drilling rights in a “collaborative, methodical, and transparent manner.” They are, in effect, calling Boulder’s bluff.
The move puts Boulder County officials in a bind. The Crestone applications will involve drilling on lands that either abut private property where people live, or are on county open space that many residents consider sacrosanct.
Boulder County already has about 310 operating wells within its boundaries that pre-date the 2012 ban. County government earns revenues from those wells – $338,544 in 2016 from royalties, mineral lease payments, and severance taxes – which Commissioner Jones says her board would gladly relinquish in return for a frack-free county.
The COGCC was scheduled to hold a hearing today to discuss Crestone’s plan, but that hearing was cancelled. All parties involved have agreed not to an extended moratorium, but to a “standstill.”
COMING WEDNESDAY: Meet the driller: Crestone Peak moves into Boulder
How this will all play out will be a matter of local urgency with national import. In a country where President Trump denies climate science, proposes to slash budgets for government oversight like the Environmental Protection Agency, and has tried to insert more “carbon” back into the phrase “carbon footprint,” would Boulder County’s quixotic effort even make a dent?
Statistically, the county’s policies would have little global impact. But activists say that’s not the point. Whether they came to activism during the Civil Rights movement in the ‘50s, the Vietnam-era ‘60s, the no-nukes ‘70s, the Rocky Flats ‘80s, the anti-Iraq war ‘90s, the World Trade Organization 2000s, or the climate marches of the 2010s, Boulder County residents hold dear the idea that individuals can still make a difference. Here and around Colorado, in less politically liberal places like Broomfield and Firestone and Thornton, ordinary people have also been energized to fight development in front of their schools and homes.
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For many who oppose new oil and gas development in Boulder County, fighting it not just a NIMBY issue, especially if you take the broader view that the planet is our Big Backyard. The growing “leave-it-in-the-ground” call is reaching fiscal conservatives, government watchdogs, democracy advocates, religious communities, business executives, pension managers, moms, dads, Millennials, and others new to the issue.
Take Mark Kadlecek. He is an Erie father of three and IT professional who lives on the Weld County side of Erie. Like his neighbor Rojas on the Boulder side of the city, Kadlecek is living with impacts from oil and gas development he never bargained for when he bought his family’s home.
As his three kids frolicked in the backyard, Kadlecek sat on his back deck and wondered where this is all going. “Just because we’ve been doing it for a hundred years doesn’t always mean it’s safe,” he said. “If it’s safe, is it smart? Is it moral? Is it logical?”
The frustration from citizens and elected officials alike is palpable along many Front Range communities, but especially in east Boulder County. Merrily Mazza, a member of the Lafayette City Council, wrote a Daily Camera op-ed that expressed her frustration about a public policy process she sees as rigged. At first, she said, residents were told to work through local government, but learned those elected officials didn’t have the authority to act on behalf. Then they were told to go to the state legislature, only to run into the buzzsaw of industry lobbying dominance.
“Justice and injustice are different than legal and illegal,” Mazza concluded. There is no alternative to right this blatant injustice other than accept our moral responsibility and use nonviolent civil disobedience to break unjust laws.”
The ongoing clash of worldviews between the industry and Coloradans whose lives are being adversely affected by fossil fuel development is likely to grow ever more vocal. Although it’s easy for many around the state to dismiss Boulder’s eco-dharma ways, resistance to new drilling is not a fleeting phenomenon. It is unlikely that drilling will ever be welcome in Boulder County, even if the courts rule that it is legal, the COGCC gives a company permission, and energy companies decide it is profitable.
“Opening up this county to more drilling,” Commissioner Elise Jones told The Colorado Independent, “is completely antithetical to everything Boulder County citizens want.” The new rules, she vowed, are not the county’s last word on the issue.
“It’s not game over yet.”
CORRECTION: A previous version of this story incorrectly stated that Coloradans for Responsible Energy Development (CRED) launched the Raise the Bar campaign. In fact, the effort grew out of conversations organized by the Building a Better Colorado coalition.
Photos and video by Ted Wood/The Story Group
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