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30th Legislature(2017-2018)

Bill Text 30th Legislature


00 Enrolled SB 64                                                                                                          
01 Adopting the Uniform Environmental Covenants Act; relating to environmental real property                               
02 covenants and notices of activity and use limitation at contaminated sites to ensure the                                
03 protection of human health, safety, and welfare, and the environment; and providing for an                              
04 effective date.                                                                                                         
05                           _______________                                                                               
06    * Section 1. AS 46.04 is amended by adding new sections to read:                                                     
07               Article 2A. Uniform Environmental Covenants Act.                                                          
08            Sec. 46.04.300. Environmental covenant. (a) An environmental covenant is                                     
09       required if the department makes a remedial decision as part of an environmental                                  
10       response project and that environmental response project results in                                               
11                 (1)  residual contamination remaining in the environment in                                             
12       concentrations that are safe for some, but not all, uses; or                                                      
13                 (2)  an engineered feature or structure that requires monitoring,                                       
14       maintenance, or operation, or that will not function as intended if disturbed.                                    
15            (b)  An environmental covenant may be held by one or more holders. A holder                                  
01 may own an interest in the real property subject to an environmental covenant. The                                      
02       interest of a holder is an interest in real property.                                                             
03 (c)  A right of the department under AS 46.04.300 - 46.04.390 or under an                                               
04 environmental covenant, other than a right as a holder, is not an interest in real                                      
05       property.                                                                                                         
06 (d)  The department is bound by any obligation it specifically assumes in an                                            
07 environmental covenant, but the department does not assume obligations merely by                                        
08 signing an environmental covenant. A person other than the department that signs an                                     
09 environmental covenant is bound by the obligations the person assumes in the                                            
10 environmental covenant, but signing the environmental covenant does not change                                          
11 obligations, rights, or protections granted or imposed under law other than under                                       
12       AS 46.04.300 - 46.04.390 unless otherwise provided in the environmental covenant.                                 
13 (e)  The following apply to interests in real property in existence at the time an                                      
14       environmental covenant is created or amended:                                                                     
15 (1)  an interest that has priority under other law is not affected by an                                                
16 environmental covenant unless the person that owns the interest subordinates that                                       
17       interest to the environmental covenant;                                                                           
18 (2)  AS 46.04.300 - 46.04.390 do not require a person that owns a prior                                                 
19 interest to subordinate that interest to an environmental covenant or to agree to be                                    
20       bound by the environmental covenant;                                                                              
21 (3)  an environmental covenant may contain a subordination agreement,                                                   
22       or a subordination agreement may be contained in a separate record;                                               
23 (4)  the department may decide not to sign an environmental covenant                                                    
24 unless each person holding an interest in the land or any part of the land, including                                   
25 each mortgagee, lessee, lienor, and encumbrancer, irrevocably subordinates the                                          
26 interest to the environmental covenant; the department may waive the requirement in                                     
27       this paragraph;                                                                                                   
28 (5)  an agreement by a person to subordinate a prior interest to an                                                     
29 environmental covenant affects the priority of that person's interest but does not by                                   
30 itself impose any affirmative obligation on the person with respect to the                                              
31       environmental covenant;                                                                                           
01                 (6)  if the environmental covenant covers commonly owned property in                                    
02       a common interest community, the record may be signed by any person authorized by                                 
03       the governing board of the owners' association.                                                                   
04            Sec. 46.04.305. Contents of environmental covenant. (a) An environmental                                     
05       covenant must                                                                                                     
06                 (1)  state that the interest is an environmental covenant executed under                                
07       AS 46.04.300 - 46.04.390;                                                                                         
08                 (2)  contain a legally sufficient description of the real property subject                              
09       to the environmental covenant;                                                                                    
10                 (3)  describe the activity and use limitations on the real property;                                    
11                 (4)  identify every holder;                                                                             
12 (5)  be signed by the commissioner of the department, every holder,                                                     
13 and, unless waived by the department, every owner of the fee simple of the real                                         
14 property subject to the environmental covenant except that for an environmental                                         
15 covenant affecting a land or mineral interest of the Department of Natural Resources,                                   
16       the signature of the commissioner of natural resources may not be waived; and                                     
17 (6)  identify the name and location of any administrative record for the                                                
18       environmental response project reflected in the environmental covenant.                                           
19 (b)  In addition to the information required under (a) of this section, an                                              
20 environmental covenant may contain other information, restrictions, and requirements                                    
21       agreed to by the persons who signed it or required by the department, including                                   
22 (1)  requirements for notice following transfer of a specified interest in,                                             
23 or concerning proposed changes in use of, applications for building permits for, or                                     
24 proposals for any site work affecting the contamination on, the property subject to the                                 
25       environmental covenant;                                                                                           
26 (2)  requirements for periodic reporting describing compliance with the                                                 
27       environmental covenant;                                                                                           
28 (3)  rights of access to the property granted in connection with                                                        
29       implementation or enforcement of the environmental covenant;                                                      
30 (4)  a brief narrative description of the contamination and remedy,                                                     
31 including the contaminants of concern, the pathways of exposure, limits on exposure,                                    
01       and the location and extent of the contamination;                                                                 
02                 (5)  a limitation on the amendment or termination of the environmental                                  
03       covenant that is in addition to the limitations contained in AS 46.04.300 - 46.04.390;                            
04       and                                                                                                               
05                 (6)  rights of the holder in addition to the right of the holder to enforce                             
06       the environmental covenant under AS 46.04.335.                                                                    
07 (c)  In addition to other conditions for the department's approval of an                                                
08 environmental covenant, the department may require a specified person who has an                                        
09 interest in the real property that is the subject of the environmental covenant to sign                                 
10       the environmental covenant.                                                                                       
11 Sec. 46.04.310. Validity of environmental covenant; effect on other                                                     
12 instruments. (a) An environmental covenant entered into in accordance with                                              
13       AS 46.04.300 - 46.04.390 runs with the land.                                                                      
14            (b)  An environmental covenant is valid and enforceable even if                                              
15                 (1)  it is not appurtenant to an interest in real property;                                             
16 (2)  it can be or has been assigned to a person other than the original                                                 
17       holder;                                                                                                           
18 (3)  it is not of a character that has been traditionally recognized at                                                 
19       common law;                                                                                                       
20                 (4)  it imposes a negative burden;                                                                      
21 (5)  it imposes an affirmative obligation on a person having an interest                                                
22       in the real property or on the holder;                                                                            
23                 (6)  the benefit or burden does not touch or concern real property;                                     
24                 (7)  there is no privity of estate or contract;                                                         
25                 (8)  the holder dies, ceases to exist, resigns, or is replaced; or                                      
26 (9)  the owner of an interest subject to the environmental covenant and                                                 
27       the holder are the same person.                                                                                   
28 (c)  An instrument that creates restrictions or obligations with respect to real                                        
29 property that would qualify as activity and use limitations except for the fact that the                                
30 instrument was recorded before the effective date of AS 46.04.300 - 46.04.390 is not                                    
31 invalid or unenforceable because of any of the limitations on enforcement of interests                                  
01       described in (b) of this section or because it was identified as an easement, servitude,                          
02       deed restriction, or other interest. Except as provided in this section, AS 46.04.300 -                           
03       46.04.390 do not apply to an instrument described in this subsection.                                             
04            (d)  AS 46.04.300 - 46.04.390 do not invalidate or render unenforceable any                                  
05       interest, whether designated as an environmental covenant or other interest, that is                              
06       otherwise enforceable under the law of this state.                                                                
07            Sec. 46.04.315. Notice of environmental covenant. (a) A copy of the                                          
08       environmental covenant shall be provided by the persons and in the manner required                                
09       by the department to                                                                                              
10                 (1)  each person that signed the environmental covenant;                                                
11 (2)  each person holding a recorded interest in the real property subject                                               
12       to the environmental covenant;                                                                                    
13 (3)  each person in possession of the real property subject to the                                                      
14       environmental covenant;                                                                                           
15 (4)  each municipality or other unit of local government in which real                                                  
16       property subject to the environmental covenant is located; and                                                    
17                 (5)  any other person the department requires.                                                          
18 (b)  The validity of an environmental covenant is not affected by failure to                                            
19       provide a copy of the environmental covenant as required under this section.                                      
20 Sec. 46.04.320. Recording of environmental covenant. (a) An environmental                                               
21 covenant and an amendment or termination of the environmental covenant must be                                          
22 recorded in every recording district in which any portion of the real property subject to                               
23 the environmental covenant is located. For purposes of indexing, a holder shall be                                      
24       treated as a grantee.                                                                                             
25 (b)  An owner of land may not record an environmental covenant unless the                                               
26 owner simultaneously records any subordination documentation required under                                             
27       AS 46.04.300(e).                                                                                                  
28 (c)  Except as otherwise provided in AS 46.04.325(f), an environmental                                                  
29 covenant is subject to state law governing recording and priority of interests in real                                  
30       property.                                                                                                         
31 (d)  A holder shall provide a copy of the final recorded environmental                                                  
01       covenant, an amendment made to the environmental covenant, termination                                            
02       documentation, and documentation of other matters related to the environmental                                    
03       covenant to the department.                                                                                       
04            Sec. 46.04.325. Duration; modification or termination of environmental                                       
05       covenant by administrative or court action. (a) An environmental covenant is                                      
06       perpetual unless it is                                                                                            
07                 (1)  by its terms, limited to a specific duration or terminated by the                                  
08       occurrence of a specific event;                                                                                   
09                 (2)  terminated by consent under AS 46.04.330;                                                          
10                 (3)  terminated under (b), (e), or (g) of this section;                                                 
11 (4)  terminated by foreclosure of an interest that has priority over the                                                
12       environmental covenant; or                                                                                        
13 (5)  terminated or modified in an eminent domain proceeding, but only                                                   
14       if                                                                                                                
15                      (A)  the department is a party to the proceeding;                                                  
16 (B)  every person whose consent is required under                                                                       
17            AS 46.04.330(a) is given notice of the pendency of the proceeding; and                                       
18 (C)  the court determines, after hearing, that the activity and use                                                     
19 limitations subject to termination or modification are no longer required to                                            
20            protect human health, safety, or welfare, or the environment.                                                
21 (b)  The department may terminate or reduce the burden on the real property of                                          
22 an environmental covenant if the department finds that some or all of the activity and                                  
23 use limitations under the environmental covenant are no longer required to protect                                      
24 human health, safety, or welfare, or the environment, or modify the environmental                                       
25 covenant if the department determines that modification is required adequately to                                       
26       protect human health, safety, or welfare, or the environment.                                                     
27 (c)  The department shall provide notice of any proposed action under (b) of                                            
28 this section to each person with a current recorded interest in the real property subject                               
29 to the environmental covenant, each holder, all other persons who originally signed                                     
30 the environmental covenant, or their successors or assigns, and any other person with                                   
31 rights or obligations under the environmental covenant. The department shall provide                                    
01 60 days for comment on the proposed action by parties entitled to notice. A                                             
02 determination by the department under this subsection is a final agency decision. Any                                   
03 person entitled to notice under this subsection may request an adjudicatory hearing                                     
04       under the procedures established by the department under AS 46.04.890.                                            
05 (d)  A person entitled to notice under (c) of this section may apply in writing to                                      
06 the department for a determination under (b) of this section that an existing                                           
07 environmental covenant be terminated, that the burden of an environmental covenant                                      
08 be reduced, or that an environmental covenant be modified. The application must                                         
09 specify the determination sought by the applicant, the reasons why the department                                       
10 should make the determination, and the information that would support it. If the                                        
11 department fails to begin a proceeding under (b) of this section within 90 days after                                   
12 receiving the application, the applicant may bring a civil action in superior court for                                 
13 termination, reduction of burden, or modification of the environmental covenant under                                   
14       (e) of this section.                                                                                              
15 (e)  The superior court for a recording district in which the real property                                             
16 subject to an environmental covenant is located may, in a de novo action, under the                                     
17 doctrine of changed circumstances, terminate an environmental covenant, reduce an                                       
18 environmental covenant's burden on the real property, or modify the terms of an                                         
19 environmental covenant if the department fails to begin a proceeding within 90 days as                                  
20 provided under (d) of this section. The applicant under (d) of this section, a holder of                                
21 the environmental covenant, or another person identified in (c) of this section may                                     
22 begin an action under this subsection. The person beginning the action shall serve                                      
23 notice of the action on the department and any person entitled to notice under (c) of                                   
24 this section. The person bringing the action shall make the department a party to the                                   
25 action. The court shall terminate, reduce the burden of, or modify an environmental                                     
26 covenant if the court determines that the person bringing the action shows that some or                                 
27 all of the activity and use limitations under the environmental covenant do not, or are                                 
28       no longer required to, protect human health, safety, or welfare, or the environment.                              
29 (f)  An environmental covenant may not be extinguished, limited, or impaired                                            
30 through issuance of a tax deed, foreclosure of a tax lien, or application of the doctrine                               
31 of adverse possession, prescription, abandonment, waiver, lack of enforcement,                                          
01       acquiescence, or a similar doctrine.                                                                              
02 (g)  The department shall terminate an environmental covenant if the                                                    
03 environmental covenant was required under AS 46.04.300 solely because of the level                                      
04 or concentration of residual contamination on the property, and the department                                          
05 determines that level or concentration of residual contamination does not endanger                                      
06 human health, safety, or welfare, or the environment. The department shall provide                                      
07 notice of a termination under this subsection to each person with a current recorded                                    
08 interest in the real property subject to the environmental covenant, each holder, all                                   
09 other persons who originally signed the environmental covenant, or their successors or                                  
10 assigns, and any other person with rights or obligations under the environmental                                        
11       covenant.                                                                                                         
12 Sec. 46.04.330. Amendment or termination of environmental covenant by                                                   
13 consent. (a) An environmental covenant may be amended or terminated if the                                              
14       amendment or termination is consented to and signed                                                               
15                 (1)  by the department;                                                                                 
16 (2)  unless waived by the department, by the current owner of the fee                                                   
17       simple of the real property subject to the environmental covenant;                                                
18 (3)  by each person that originally signed the environmental covenant,                                                  
19       unless the person                                                                                                 
20 (A)  waived the right to consent to termination or modification                                                         
21 in the environmental covenant or in another signed and acknowledged                                                     
22            instrument recorded with the recording district;                                                             
23 (B)  fails to object to the amendment or termination within 60                                                          
24 days after a party to the covenant mails, by certified mail, return receipt                                             
25 requested, to the person's last known address, a notice requesting the person's                                         
26 consent to amendment or termination and the return receipt is signed by the                                             
27            person; or                                                                                                   
28 (C)  cannot be found, as determined by a court, because the                                                             
29 person no longer exists or cannot be located or identified with the exercise of                                         
30            reasonable diligence; and                                                                                    
31 (4)  except as otherwise provided in (d)(2) of this section, by the holder.                                             
01 (b)  If an interest in real property is subject to an environmental covenant, the                                       
02 interest is not affected by an amendment of the environmental covenant unless the                                       
03 current owner of the interest consents to the amendment or has waived in a signed                                       
04       record the right to consent to amendments.                                                                        
05            (c)  Except for an assignment undertaken under a governmental reorganization,                                
06       assignment of an environmental covenant to a new holder is an amendment.                                          
07            (d)  Except as otherwise provided in an environmental covenant,                                              
08                 (1)  a holder may not assign its interest without consent of the other                                  
09       parties specified in (a) of this section;                                                                         
10 (2)  a holder may be removed and replaced by agreement of the other                                                     
11       parties specified in (a) of this section; and                                                                     
12                 (3)  a court of competent jurisdiction may fill a vacant holder position.                               
13 Sec. 46.04.335. Enforcement of environmental covenant. (a) The department                                               
14 is the administrating agency for AS 46.04.300 - 46.04.390 and is empowered to                                           
15 administer and enforce AS 46.04.300 - 46.04.390 using the civil or administrative                                       
16 authority granted to it in AS 46.03. However, the department may, but is not required                                   
17 to, assume any administration or enforcement functions other than those directly                                        
18       related to the environmental covenant.                                                                            
19 (b)  A civil action for injunctive or other equitable relief for violation of an                                        
20       environmental covenant may be maintained by                                                                       
21                 (1)  a party to the environmental covenant;                                                             
22                 (2)  the department;                                                                                    
23 (3)  a person that the environmental covenant expressly grants the                                                      
24       power to enforce the environmental covenant;                                                                      
25 (4)  a person whose interest in the real property or whose collateral or                                                
26       liability may be affected by the alleged violation of the environmental covenant; or                              
27 (5)  a municipality or other unit of government that governs the real                                                   
28       property subject to the environmental covenant.                                                                   
29 (c)  AS 46.04.300 - 46.04.390 do not limit the regulatory authority of the                                              
30       department in an environmental response project.                                                                  
31 (d)  A person is not responsible for or subject to liability for environmental                                          
01 remediation solely because the person has the right to enforce an environmental                                         
02       covenant.                                                                                                         
03 Sec. 46.04.340. Notice of activity and use limitation. (a) If a legal                                                   
04 impediment prevents an environmental covenant from being entered into, an owner of                                      
05 real property shall, after receiving authorization from the department, record a notice                                 
06 of an activity and use limitation into the appropriate public land records. Failure to                                  
07 record a notice of an activity and use limitation may result in disapproval of the                                      
08       environmental response project.                                                                                   
09 (b)  Once the owner or other person assumes an obligation under a notice of                                             
10 activity and use limitation, that owner or person shall comply with those obligations in                                
11       accordance with AS 46.04.300 - 46.04.390.                                                                         
12 (c)  The enactment, modification, or termination of a notice of activity and use                                        
13       limitation is not valid until it is approved by the department.                                                   
14 (d)  A notice of activity and use limitation must remain in place for current and                                       
15       subsequent landowners unless it is terminated under (e) or (m) of this section.                                   
16 (e)  A person who proposes to create, modify, or terminate a notice of activity                                         
17 and use limitation shall provide written notice of the person's intention to the                                        
18 department, to all persons holding an interest of record in the real property that will be                              
19 subject to the notice of activity and use limitation, to all persons known to the person                                
20 to have an unrecorded interest in the property, and to all affected persons in possession                               
21 of the property before the creation, modification, or termination, and shall provide the                                
22       department with                                                                                                   
23                 (1)  a copy of the notice provided;                                                                     
24 (2)  a list of the persons to whom notice was given and the address or                                                  
25       other location to which the notice was directed; and                                                              
26                 (3)  title information required by the department.                                                      
27 (f)  Before unilaterally issuing a notice of activity and use limitation, the                                           
28 department shall provide a copy of the proposed notice of activity and use limitation to                                
29 all persons holding an interest of record in the real property subject to the notice of                                 
30 activity and use limitation, all persons known to the department to have an unrecorded                                  
31 interest in the property, and all affected persons in possession of the property, and                                   
01 shall offer the persons a minimum of 30 days to comment on the proposed notice of                                       
02 activity and use limitation, unless notice has already been provided under (e) of this                                  
03 section. In determining whether to issue the notice of activity and use limitation                                      
04 unilaterally, the department shall consider any comments received. For a notice of                                      
05 activity and use limitation affecting a land or mineral interest of the Department of                                   
06 Natural Resources, concurrence from the Department of Natural Resources is                                              
07       required.                                                                                                         
08 (g)  The department shall review and make a determination regarding all                                                 
09 requests to create, modify, or terminate a notice of activity and use limitation within                                 
10 90 days after receiving a request that includes all the information described in (a) of                                 
11       this section.                                                                                                     
12 (h)  Upon issuance or approval of a notice of activity and use limitation, the                                          
13 department shall record the notice in every recording district in which a portion of the                                
14 real property that is subject to the activity and use limitation is located. For approved                               
15 notices, the department may allow the owner of the property to record the notice. A                                     
16       person may not record a notice without the department's written approval.                                         
17 (i)  Unless there is a legal impediment that prevents entering into an                                                  
18 environmental covenant, the department may authorize that any notice of activity and                                    
19 use limitation created in accordance with this section be replaced by an environmental                                  
20 covenant on the property that is subject to the notice of activity and use limitation. The                              
21 department may condition its authorization and approval of the termination of the                                       
22 notice of activity and use limitation on the terms of the notice of activity and use                                    
23 limitation, department approval and acceptance, and the effective recording of the                                      
24       environmental covenant.                                                                                           
25 (j)  Modification or termination of a notice of activity and use limitation shall                                       
26 be recorded as provided in (h) of this section. A person may not record a modification                                  
27 or termination of a notice of activity and use limitation without the department's                                      
28       written approval.                                                                                                 
29 (k)  A determination by the department to issue, approve, modify, or terminate                                          
30 a notice of activity and use limitation is subject to appeal under the procedures                                       
31       described in AS 46.04.890.                                                                                        
01            (l)  A notice of activity and use limitation, whether recorded or unrecorded, is                             
02       not                                                                                                               
03                 (1)  a servitude arising from an environmental response project; or                                     
04                 (2)  an interest in real property.                                                                      
05 (m)  The department shall terminate a notice of activity and use limitation for                                         
06 real property if the notice of activity and use limitation was required solely because of                               
07 the level or concentration of residual contamination on the property, and the                                           
08 department determines that level or concentration of residual contamination does not                                    
09 endanger human health, safety, or welfare, or the environment. The department shall                                     
10 provide notice of a termination under this subsection to all persons holding an interest                                
11 of record in the real property subject to the notice of activity and use limitation, all                                
12 persons known to the department to have an unrecorded interest in the property, and                                     
13       all affected persons in possession of the property.                                                               
14 Sec. 46.04.345. Relationship to other land-use law. AS 46.04.300 -                                                      
15 46.04.390 do not authorize a use of real property that is otherwise prohibited under                                    
16 AS 29.40 or AS 38.05.037, by law other than AS 46.04.300 - 46.04.390 regulating use                                     
17 of real property, or by a recorded instrument that has priority over the environmental                                  
18 covenant or a notice of activity and use limitation. An environmental covenant or a                                     
19 notice of activity and use limitation may prohibit or restrict uses of real property that                               
20       are authorized by zoning or by law other than AS 46.04.300 - 46.04.390.                                           
21 Sec. 46.04.350. Registry. The department shall maintain a registry that                                                 
22 contains all environmental covenants and notices of activity and use limitation and any                                 
23 amendment or termination of those instruments. The registry may also contain any                                        
24 other information concerning environmental covenants and notices of activity and use                                    
25 limitation and the real property subject to them that the department considers                                          
26       appropriate.                                                                                                      
27 Sec. 46.04.355. Uniformity of application and construction. In applying and                                             
28 construing AS 46.04.300 - 46.04.390, consideration must be given to the need to                                         
29 promote uniformity of the law with respect to its subject matter among states that                                      
30       enact similar provisions.                                                                                         
31            Sec. 46.04.390. Definitions. In AS 46.04.300 - 46.04.390,                                                    
01 (1)  "common interest community" means a condominium, cooperative,                                                      
02 or other real property with respect to which a person, by virtue of the person's                                        
03 ownership of a parcel of real property, is obligated to pay property taxes or insurance                                 
04 premiums, or pay for maintenance, or improvement of other real property described in                                    
05       a recorded environmental covenant that creates the common interest community;                                     
06                 (2)  "environmental covenant" means a servitude arising under an                                        
07       environmental response project that imposes activity and use limitations;                                         
08                 (3)  "environmental response project" means a plan or work performed                                    
09       or maintenance of work performed under a federal or state program                                                 
10 (A)  including this chapter, AS 46.03, AS 46.09, 42 U.S.C.                                                              
11 9601 - 9675 (Comprehensive Environmental Response, Compensation and                                                     
12 Liability Act of 1980), as amended, and 42 U.S.C. 6901 - 6992k (Resource                                                
13 Conservation and Recovery Act of 1976), as amended, governing                                                           
14            environmental remediation and management of contaminated real property; or                                   
15 (B)  governing maintenance, closure, or corrective action of a                                                          
16            solid waste disposal facility or hazardous waste management unit;                                            
17 (4)  "holder" means the grantee of an environmental covenant as                                                         
18       specified in AS 46.04.300(b);                                                                                     
19 (5)  "notice of activity and use limitation" means a notice of a                                                        
20 restriction on or obligation concerning an activity on or use of real property, in                                      
21       accordance with AS 46.04.300 - 46.04.390;                                                                         
22                 (6)  "record" has the meaning given in AS 40.17.900.                                                    
23    * Sec. 2. The uncodified law of the State of Alaska is amended by adding a new section to                            
24 read:                                                                                                                   
25 TRANSITION: REGULATIONS. The Department of Environmental Conservation                                                   
26 and the Department of Natural Resources may adopt regulations necessary to implement this                               
27 Act. The regulations take effect under AS 44.62 (Administrative Procedure Act), but not                                 
28 before the effective date of the law implemented by the regulation.                                                     
29    * Sec. 3. Section 2 of this Act takes effect immediately under AS 01.10.070(c).                                      
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