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What are the main statutes and regulations relating to the environment?
The Belgian Constitution has enshrined the right to lead a life in keeping with human dignity, which, inter alia, includes the right to protection of a sound environment (article 23). The latter entails the standstill principle.
The Constitution organises Belgium on a federal basis, sharing competencies between the federal state and – notably – three regions: the Flemish, Walloon and Brussels Metropolitan regions.
These regions are competent for most aspects of environmental protection, inter alia, soil, water and air protection, waste, environmental permitting, nature conservation and planning and zoning.
The federal state remains competent for product standards and for protection against ionising radiations.
The main environmental, waste and soil legislative acts are as follows:
Infringing these regional statutes is sanctioned through a variety of administrative and criminal sanctions, the latter being imposed through prosecution in front of the courts organised by the federal authority.
Is there a system of integrated control of pollution?
Integrated environmental registration and permitting schemes have been organised by each region. These schemes transpose the EU’s Industrial Emissions Directive, addressing the environmental global performance of the listed facilities and activities, inter alia, their emissions to air, water and land, waste management, energy efficiency, noise, prevention of accidents and restoration of the site upon closure.
Listed facilities and activities with the lowest impact merely require a notification with the competent authority, whereas the others require an environmental permit. The competent authorities vary from region to region.
All three regions have now implemented a global permitting scheme, integrating the planning permission for the ‘mixed’ projects.
Unlike for other listed facilities, the authorisations for nuclear installations are awarded on the basis of federal legislation.
What are the main characteristics of the rules applicable to soil pollution?
Each region has now set up an administrative body managing a database containing the available information about the environmental quality of the soil of the various pieces of land, as mentioned in the official land registries.
Prior to concluding real estate transactions (the exact types of transactions varying from region to region), a (recent) soil certificate regarding the land has to be provided by the transferor to the transferee. Such certificates consist in excerpts of the soil inventory.
Regional legislation specifies the cases where soil investigations are mandatory, often prior to obtaining a soil certificate. In-depth soil investigations, soil remediation programmes, follow-up and security measures may then be required by the competent regional authority, depending on the level and type of the identified soil pollution.
Each region determines the types of pollution for which such measures are required. In the Flemish and Walloon regions, the applicable regimes mainly distinguish between ‘historic’ pollution (ie, caused prior to a certain date (29 October 1995 and 30 April 2007, respectively) and ‘new’ pollution. Historic pollutions are subject to a risk management based approach (only requiring remediation when causing a ‘serious threat’), whereas new pollutions require a remediation as soon as the pollutant exceeds the regulatory thresholds.
The Brussels Metropolitan region has a slightly more complicated (and indeed less ‘legible’) system, distinguishing between ‘unique’, ‘mixed’ and ‘orphan’ pollutions.
In principle, the soil management obligations are allocated to one of the following persons, according to the indicated order of priority:
Having executed its soil management obligations imposed by the competent regional authority, the person in question is allowed to try to recover the incurred costs with any third party potentially liable on the basis of common civil grounds (contractual or extracontractual (eg, tort) basis).
What types of waste are regulated and how?
Belgium being an EU member state, its three regions define ‘waste’ in accordance with the Waste Framework Directive 2008/98 of 19 November 2008 (WFD): ‘any substance or object which the holder discards or intends or is required to discard’.
EU case law has given a broad interpretation of this definition in accordance with the WFD and the EU objective for high level environmental protection.
Waste is mainly divided into various categories: household waste originating from household activities; industrial waste from industrial, commercial, scientific or craft activities; hazardous waste, displaying one or more of hazardous properties described in the WFD’s Annex III (eg, explosive, highly flammable); and inert waste.
The WFD sets out a framework for the definition of ‘by-products’ and ‘end-of-waste status’.
The three regions have transposed these definitions in their regional legislation. However, they have each set their own procedures to qualify ‘by-products’ and ‘end-of-waste’.
In the Brussels region, the ‘end-of-waste status’ must be requested in the application for an environmental permit. The waste that got an ‘end-of-waste’ status according to another regional legislation will be considered as a valuable material.
In the Walloon region, the ‘end-of-waste status’ and ‘by-products’ procedures are based on an authorisation regime. By way of derogation, a registration procedure applies for the substances or waste with the same characteristics as those having previously obtained an ‘end-of-waste’ or ‘by-products’ status.
In the Flemish region, a registration procedure applies for substances and materials that directly fulfil the criteria established at EU level or the criteria of raw materials that the operator wishes to put into the market. For certain materials, a raw material declaration can be requested from the competent regional authority.
In all three regions, environmental permits or notifications are required for waste storage and (pre-)treatment (by recovery or disposal).
In accordance with the EU legislation, obligations also apply to other types of waste management operations: registration or licensing imposed on collectors, transporters, brokers and dealers; keeping of waste productions registers; notifications of transboundary shipments; etc.
Specific regional regulations apply to a number of waste streams that are subject to take back-obligations, either in order to implement EU legislation on waste electrical and electronic equipment (WEEE), end of life vehicles (ELVs), batteries and packaging, or on a specific internal basis (eg, for spent oils, tyres or solar panels).
In general, the extended producer responsibilities that these various regional provisions impose are dealt with through collective take-back schemes, organised by the concerned industry sectors on a non-profit basis (eg, RECUPEL with respect to WEEE, BEBAT for batteries, FEBELAUTO for ELVs).
Noteworthy is the – quite uncommon – interregional cooperation agreement between the three Belgian regions, regarding the prevention and management of packaging waste (dated 4 November 2008). This interregional piece of legislation forms the basis for an integrated regulation of packaging waste across the whole of Belgium. It has resulted in two collective take-back schemes, organised by the concerned industries: FOST PLUS for household packaging waste and VAL-I-PAC for industrial packaging.
Obviously, waste management legislation is a key tool in the development of policies aiming at promoting a circular economy. Between 2016 and 2018, the three regions have announced a score of measures in this respect in their most recent waste prevention and management plans, while the federal government’s Ministers for Economy, Public Health and the Environment developed a road map for a transition towards a circular economy in 2016. A new federal plan for circular economy has been announced for the end of 2021.
The federal state, competent for the placing on the market of product, is preparing the transposition of Directive (EU) 2019/904 of the European Parliament and of the Council of 5 June 2019 on the reduction of the impact of certain plastic products on the environment.
What are the main features of the rules governing air emissions?
In all of Belgium’s three regions, air emissions, noise, odours and vibrations from industrial activities are mainly regulated under their respective integrated environmental permitting schemes.
Other regional regulations have set threshold levels regarding environmental noise and air quality.
The strict(er) conditions regarding these emission limits have recently given rise to a series of court cases, regarding, inter alia, low emission zones in cities (eg, Ghent and Antwerp) or for the whole of the Brussels Metropolitan region’s territory, aircraft noise, specific conditions in environmental permits and Best Available Techniques and even the country’s policies with respect to climate change.
Energy efficiency of buildings is mainly addressed through the regional regulations on planning and zoning, although obligations to carry out energy efficiency audits are imposed through the aforementioned regional environmental permitting regimes.
How are fresh water and seawater, and their associated land, protected?
Certain aspects of seawater protection have remained within the jurisdiction of the federal state. These are regulated under the federal law of 20 January 1999 on seawater protection in sea areas under the jurisdiction of Belgium.
At regional level, the main regulations with respect to the protection of water are as follows:
On the basis of this framework legislation, the three regional authorities are developing integrated water management policies, in accordance with the applicable EU legislation
This, inter alia, comprises regulating discharges into surface waters as well as groundwater extraction, based on their respective environmental permitting schemes.
In the three regions, drinking water supply is operated by publicly owned companies (eg, the Société Wallonne de Distribution d’Eau in the Walloon region, Vivaqua in the Brussels Metropolitan region and De Watergroep in the Flemish region).
What are the main features of the rules protecting natural spaces and landscapes?
As of the institutional reforms of 1980, the regions have based their nature conservation policies on the pre-existing federal nature conservation law of 2 July 1973.
Subsequently, the regions modified this law or adopted specific legislation (eg, the Flemish regional statute of 21 October 1997 on nature conservation).
Regarding the protection of natural spaces, certain areas qualified as sites of Community importance by the European Commission (based on a list submitted by the regions) have been designated as special areas of conservation under the EU-wide Natura 2000 network.
Any plan, programme or project under an environmental permitting regime that is likely to have a significant impact on a Natura 2000 site is subject to an appropriate impact assessment.
For nature conservation reasons, the regional authorities are empowered to carry out mandatory acquisitions of real estate in the public interest. For the same reasons, the Flemish and Brussels Metropolitan regional authorities are allowed to swap ownership rights, leases or land use rights.
Protection of natural spaces and landscapes is also organised through the regional legislation on planning and zoning, which limits the rights to use and develop land accordingly.
What are the main features of the rules protecting flora and fauna species?
Specific prohibitions and a monitoring system are provided for strictly protected species. For instance, regional governments are competent to adopt restricting measures on capturing and exploitation of such species.
What are the main features of the rules governing noise, odours and vibrations?
Noise, odours and vibrations from industrial activities are mainly regulated under the respective integrated environmental permitting schemes of Belgium’s three regions.
Other regional regulations have set threshold levels regarding environmental noise.
Is there a general regime on liability for environmental damage?
EU Directive 2004/35 on environmental liability with regard to the prevention and remedying of environmental damage has been transposed by the federal state with respect to its remaining environmental powers (eg, the Royal Decree of 3 August 2007 on the prevention and remedying of environmental damage during the placing on the market of products consisting of or containing genetically modified organisms) as well as by the three regions, through the adoption of the following acts of their respective parliaments:
The notion of ‘environmental damage’ covers adverse effects to protected species and natural habitats, as well as to water and soil. The ‘damage’ must constitute a measurable adverse change in a natural resource or a measurable impairment of a natural resource service that may occur directly or indirectly.
The regional legislation is based on two types of environmental liability regimes:
Is there any type of environmental tax?
According to article 170 of the Belgian Constitution, taxes may be imposed at each level of power (among others, by the federal state, the regions, the provinces and the municipalities).
The main applicable examples of ‘environmental taxes’ at present are the regional levies on certain types of waste treatment, on discharges of wastewater, on the catchment of surface waters and on the welling of groundwater.
Are there any notable environmental reporting requirements (eg, regarding emissions, energy consumption or related environmental, social and governance (ESG) reporting obligations)?
The three regions have transposed the obligations of reporting of emissions and discharges foreseen by Directive 2010/75/EU of the European Parliament and of the Council of 24 November 2010 on industrial emissions.
The operators of IED installations have to fill in annually the PISOE (Plan Interne de Surveillance des Obligations Environnementales) in the Walloon region and pluri-annual controls are made by the competent authorities.
The Brussels region has an environmental inspection plan and carries out annual checks of IED installations.
The Flemish region has a multi-year programme and does general evaluations of IED installations.
Greenhouse gas emissions have to be monitored according to the Commission Implementing Regulation (EU) 2018/2066 of 19 December 2018 pursuant to Directive 2003/87/EC of the European Parliament and of the Council of 13 October 2003 establishing a scheme for greenhouse gas emission allowance trading with the Community, as amended in 2018.
How would you describe the general government policy for environmental issues? How are environmental policy objectives influencing the legislative agenda?
Environmental issues are very high on the political agenda of the coming months.
Among the main drivers are:
This will trigger further regulatory developments, especially with respect to products in a ‘circularising’ economy, litigation (with respect to previously un(der)regulated contaminants (eg, PFAS)) and political tensions, both between the federal state and regional authorities and within the various governmental coalitions.
Hazardous activities and substances
Are there specific rules governing hazardous activities?
Apart from stricter environmental permitting rules, some types of activities are also subject to specific licensing regimes; for example, in the case of waste management (collection, transport, brokering, etc).
What are the main features of the rules governing hazardous products and substances?
The federal law of 21 December 1998 on product standards for the promotion of sustainable production and consumption, the protection of the environment, health and workers entitles the federal authorities to regulate the putting on the market of hazardous products and substances.
Especially with respect to highly debated products such as phytopharmaceuticals, biocides, single-use plastics and fireworks, the delineation between the federal state’s authority with respect to the putting on the market of certain products, on the one hand, and the regional authority with respect to environmental protection on the other hand, gives rise to a number of conflicting initiatives.
This issue has recently led to rulings from the Constitutional Court stating that the principle of federal loyalty is harmed when a region declares a region-wide ban on the use of a product.
In view of stimulating the development of a circular economy, such issues should call for more concertation between the federal state and the three regions.
What are the regulatory requirements regarding the prevention of industrial accidents?
Belgium has transposed Directive 2012/18/EU of 4 July 2012 on the control of major-accident hazards involving dangerous substances through a cooperation agreement of 16 February 2016 between the federal state, competent for civil security and the three regions, competent for the protection of the environment.
The prevention of major accidents is mainly implemented through emergency planning, public information, data and information sharing about industries, environmental permitting and planning and zoning (eg, with restrictions on rights to develop surrounding areas).
Environmental aspects in transactions and public procurement
What are the main environmental aspects to consider in M&A transactions?
Environmental aspects remain an important issue in M&A transactions.
In general, ‘share deals’ make the acquisition process easier, as such transactions do not trigger administrative burdens (eg, transferring environmental permits, soil management obligations) per se. Indeed, such transactions merely entail a change in the ownership of the shares in the capital of the legal entity, while the latter as such remains unchanged.
However, the main disadvantage for such transaction consists in the fact that the economic risks associated with any pre-existing liability – whether civil or criminal – is transferred to the new shareholders. Especially in times of higher litigation risks.
Although asset transactions allow the new owners to be more efficiently fenced off from liabilities (personally) burdening the previous owners, the downside to such deals is that they involve a lot more practical implications.
But, in any case, a thorough and careful due diligence exercise remains highly advisable. Moreover, an efficient assessment of the value of a company on environmental grounds shall not be limited to its industrial hardware, but also focus on its products and services.
What are the main environmental aspects to consider in other transactions?
Any transaction should duly address the potential impact of environmental legislation on the goods, products, assets or persons involved.
Is environmental protection taken into consideration by public procurement regulations?
Regulating public procurement is a federal competence. The legislation has been fundamentally reviewed through the federal law of 17 June 2016 concerning public procurement and its implementing royal decrees of 18 April and 18 June 2017.
Article 7 of the federal law of 17 of June 2016 provides that economic operators delivering publicly procured works, goods or services must ensure full compliance with environmental law, throughout the value chain. Violations of this obligation (including previous violations) can lead to the economic operator being excluded from the procurement process (article 69 of the law of 17 of June 2016).
More specific environmental protection aspects can be taken into consideration at every single stage of the public procurement procedure.
Procurement specifications may provide for clauses aiming at preserving the environment and reducing environmental footprints (eg, limiting waste production, energy consumption or carbon emissions, the insulation of buildings).
Which types of activities are subject to environmental assessment?
Two EU directives apply in the field of environmental assessments:
Both directives have been transposed by the federal state and the regions in Belgium, each concerning their own competencies.
Environmental impact assessments (report or study) are to be carried out prior to the adoption of a federal, regional or local plan or programme (eg, the development plan of the electricity transmission network; urban planning and zoning; regional waste management plans).
The European Court of Justice has given an extremely broad interpretation of the concept of ‘plans and programmes’: its 27 October 2017 judgment (No. 290/15, d’Oultremont) rules that the Walloon sectoral operating conditions for windmills constitutes a ‘plan’ requiring a prior environmental impact assessment. Hence, legislative or regulatory provisions that can have a significant environmental impact require a prior environmental impact assessment. Needless to say, this ruling has caused major turmoil, as it could invalidate any such provision enacted or adopted without such impact assessment having been carried out.
At the regional level, any environmental or planning permit application must include either an environmental impact assessment notice (EIN) or an environmental impact assessment study (EIS). Projects with a substantial potential impact are automatically subject to an EIS (eg, large combustion plants), whereas for other projects, the permit-issuing authority may decide to impose an EIS on a case-by-case basis, in view of significant environmental effects.
What are the main steps of the environmental assessment process?
The main steps of environmental assessment processes are the following.
Which authorities are responsible for the environment and what is the scope of each regulator’s authority?
At federal state level, the most important administrations are the Federal Public Services for Public Health, Safety of the Food Chain and Environment and the Directorate-General for Health and Prevention of the Federal Public Service of the Interior/for Home Affairs.
In the Flemish region, the main administrative bodies are the Department of the Environment of the Flemish administration and the OVAM, the Flemish agency for waste, materials and soils.
The Brussels Metropolitan region has an integrated environmental agency: Environment Brussels.
In the Walloon region, the main administration is the General Direction Agriculture, Natural Resources and Environment of the Walloon Public Service.
Local (municipal colleges of mayor and aldermen and – mainly in the Flemish region – provincial governments) or regional (specific agencies or the government or a single minister) are entrusted with delivering environmental permits, licences or authorisations. In general, this also entails the power to modify, suspend or revoke these decisions (eg, permits) or their specific conditions.
What are the typical steps in an investigation?
Both judicial authorities (typically the public prosecutors’ offices and the federal and municipal police), as well as the federal and regional environmental inspectorates are entrusted with investigative powers. The latter have limited powers, exclusively deriving from the specifically applicable environmental regulations, whereas the judicial authorities are competent for all infringements of any criminally sanctioned legislation.
In principle, any official report of a criminally sanctioned infringement has to be communicated to the territorially competent prosecutor’s office. The prosecutor has the option of whether or not to open a further investigation (through a criminal information or a judicial instruction – the latter automatically opening a pretrial phase, either resulting in formal prosecution or a judicial decision to dismiss the case) or to even directly initiate criminal proceedings.
In most situations where the prosecutor decides not to take criminal proceedings for the alleged infringement, the case is followed by an administrative sanctioning procedure, aiming at seeing administrative sanctions (generally speaking a fine) being imposed.
What is the procedure for making administrative decisions?
Administrative decisions potentially impacting the environment (eg, regarding environmental permits or soil remediation programmes) are organised by the various applicable pieces of legislation.
In many cases, the applications for such decisions trigger public inquiries, entailing interested third parties to submit (written or oral, or both) objections to the project. Similar principles apply when specific administrative measures relating to listed activities or installations are considered, then also entailing the right for the concerned operator to be heard in the process.
Competent authorities must abide by the general principles of Belgian administrative law including the principle of good administration and the principle of proportionality.
What are the sanctions and remedies that may be imposed by the regulator for violations?
Environmental infringements are classified according to their level of seriousness. This classification determines the level of the sanction and the applicable procedure.
Administrative authorities are also entitled to order measures, for instance ordering the immediate cessation of an activity or imposing a remediation plan.
To what extent may decisions of the regulators be appealed, and to whom?
Whenever this is provided for by the applicable legislation, decisions taken by regulatory authorities can be challenged with a (higher) administrative authority.
Final administrative decisions can be challenged with either the Council of State or, in the Flemish region, with the ad hoc jurisdiction called the Council for Permit Disputes. These administrative jurisdictions rule on requests in annulment of administrative decisions, whenever the claimant invokes an illegality, an excess or an abuse of powers. Suspension of such decisions as well as provisional measures can also be obtained in certain circumstances, especially in order to prevent material damages to the protected interests.
An oddity is that the administrative fines imposed on the basis of the Walloon Environmental Code are to be challenged with a judicial authority: the criminal court of first instance.
Are environmental law proceedings in court civil, criminal or both?
What are the powers of courts in relation to infringements of environmental law?
Both civil and criminal courts are empowered to act on infringements of environmental law.
The Belgian Judicial Code empowers any civil court to impose provisional and interim measures, pending its decision on the merits of a case. The Code also provides that the presidents of the courts of first instance are empowered to issue the same types of measures on summary proceedings, whenever the claimant invokes and demonstrates the urgency at stake.
Interestingly, a specific federal law – enacted on 12 January 1993 – establishes a right of civil action for the protection of the environment, open to environmental NGOs, authorities with environmental powers and to the public prosecutors’ offices, allowing the presidents of the civil court of first instance to impose measures aiming at ordering the cessation of any act or omission jeopardising the environment.
Apart from imposing criminal sanctions, such as imprisonment, fines and the confiscation of illegally acquired economic benefits (which can have very far-reaching financial consequences), the specific environmental legislation commonly empowers criminal courts to also impose material measures, such as orders to remediate polluted sites, orders to shut down operations or prohibitions on carrying out certain professional activities.
The criminal sanctions will vary depending on the category of environmental infringement.
Are civil claims allowed regarding infringements of environmental law?
Yes. Civil claims can be initiated both with civil courts or as an accessory to a criminal prosecution.
The claimant must evidence a fault and damage (personally suffered), and the causal link between these two elements.
In specific cases, non-fault liability regimes may apply (eg, in the case of disruption of neighbourhood and for damage caused by vitiated goods).
What defences or indemnities are available?
Liabilities towards third parties cannot be excluded. Such exclusions or limitations are only possible on a contractual basis, provided they are not excluded or regulated on specific grounds (eg, with respect to soil pollution when transferring rights in rem) or general principles (eg, for being considered to be against principles of public order).
Specific regulatory provisions may identify several persons as being jointly and severally liable (eg, for the management of soil pollution).
Whether waste legislation entails the strict liability of the producer of the waste is still debated in Belgium. However, the statute of limitations for the criminally sanctioned unauthorised abandoning of waste only starts when such waste has been handled in accordance with the applicable law.
Another complex issue is applying the statute of limitations to the act of maintaining unauthorised constructions.
Are there specific defences in the case of directors’ or officers’ liability?
When a legal entity (eg, a company) does not comply with environmental law, this very often constitutes a criminally sanctioned offence.
According to article 5 of the Belgian Criminal Code, the criminal liability of a legal entity does not exclude the criminal liability of the individuals who acted on its behalf. Hence, the company as well as its directors can be prosecuted.
This is very often the case for the company directors who hold executive powers. Managing the risk of seeing their criminal liability being invoked requires carefully designed and implemented delegations of powers within organisations.
Criminal liability automatically entails civil liability towards third parties.
The more general rules on the civil liability of company directors are governed by the Belgian Code on Companies and Associations. Articles 2.56 to 2.58 of this Code, inter alia, define the liability thresholds, varying according to the size of the company.
What is the appeal process from trials?
In general, the judicial rules regarding trials organise two degrees of full jurisdiction (concerning both the law and the factual merits of a case), in both criminal and civil proceedings.
Additionally, final judgments can again be challenged with the Supreme Court, but exclusively with respect to legal issues (not concerning the factual merits).
Any court has the possibility of referring prejudicial questions to the Constitutional Court (regarding issues of Belgian constitutional law) or to the European Court of Justice (regarding the interpretation of EU law).
International treaties and institutions
Is your country a contracting state to any international environmental treaties, or similar agreements?
Apart from the main source of supranational law constituted by the EU’s legislation and case law, Belgium is a contracting state to several international conventions related to environmental issues. To name but a few examples, Belgium ratified the International Convention on oil pollution preparedness, response and cooperation (1990), the Convention on Biological Diversity (1992), the Aarhus Convention (1998), the Stockholm Convention on persistent organic pollutants (2001) and the Statute of the International Renewable Energy Agency (2009). It is also worth mentioning that the Global Pact for the Environment is currently under negotiation.
To what extent is regulatory policy affected by these treaties?
The Belgian legal system is heavily influenced by developments at international level. Treaty ratification procedures often tend to be complicated though, owing to Belgium’s complex constitutional system (often requiring the federal as well as the regional parliaments to approve the treaties through a legislative act).
Update and trends
Are there any emerging trends or hot topics in environment law in your jurisdiction?
The enforcement judge considered that the Flemish plan against air pollution was insufficient (Court of First Instance, Brussels, 28 July 2020). The Flemish region has been ordered to pay €265,000 to Greenpeace, but appealed against the decision.
More recently, on 17 June 2021, legal proceedings concerning climate change against the three regions and the federal state introduced by NGO Climate Case in 2015 have conducted the Court of First Instance of Brussels to judge that these entities breach article 1382 of the Belgian Civil Code and articles 2 and 8 of the European Convention on Human Rights by failing to take all necessary measures to prevent the impact of climate change on the Belgian population. However, the Court did not order an injunction to these entities to meet stricter targets for the reduction of greenhouse gas emissions. NGO Climate Case intends to appeal.
What emergency legislation, relief programmes and other initiatives specific to your practice area has your state implemented to address the pandemic? Have any existing government programmes, laws or regulations been amended to address these concerns? What best practices are advisable for clients?
During the lockdown period, delays and time limits for administrative procedures and appeals were extended.
Many court cases were dealt with through written procedures, with the agreement of the parties.
Various measures were implemented by the federal government at different stages in the lockdown period. Some of these measures have given rise to appeals before the Council of State concerning discrimination between different business sectors (see, eg, Council of State, Case No. 247,452 of 27 April 2020, Stihl).
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