546 N.E.2d 454 | Ohio Ct. App. | 1988
Lead Opinion
This is an appeal pursuant to R.C.
Paul Adams Coal Co. ("Paul Adams") obtained coal mining permit C-1337 in July 1980, and mined coal from pits No. 5 and No. 6 until April 1983. The permit, though expired, is still considered "active" because the area has not been reclaimed and bonds issued in support of the permit have not been released.
Paul Adams obtained industrial mineral mining permit IM-905 in May 1985, and removed clay from pit No. 5 prior to November 1985. On August 13, 1986, a bulldozer opened a window in pit No. 5 and acid water subsequently drained from pit No. 5 into pond No. 001. On August 28, 1986, the Division of Reclamation issued IM NOV 4499 for an industrial mineral mining permit violation involving the accumulation of acid water in pit No. 5, in violation of R.C.
The hearing officer found the acid water which entered pond No. 001 emanated from the pit No. 5 area. The hearing officer concluded NOV 14177 described a violation which occurred with regard to the industrial mineral mining permit, rather than with regard to the coal mining permit. She wrote:
"* * * Normally, the mere fact that acid water is discharging from a permit area would be sufficient to support a NOV with no inquiry into the source of that acid water. In this matter, however, I believe that an effort must be made to trace the acid water back to either the industrial minerals operation or the coal operation.
"* * *
"* * * Then, based upon that determination, the Division must elect to issue a NOV either on the IM permit or on the coal permit. The failure to make such an election could have the incongruous result of duplicative violations being issued on each permit." (Emphasis sic.)
The hearing officer further noted that while both R.C. Chapters 1513 and 1514 warn against acid water accumulation and discharge, NOVs received pursuant to R.C. Chapter 1513 may involve civil penalty assessments.
The Reclamation Board of Review adopted the findings, conclusions, and recommendation of the hearing officer, and vacated NOV 14177. We reverse.
Appellant contends that because appellee clearly violated R.C.
We find no merit to appellee's *176 arguments that the fact the Division of Reclamation issued IM NOV 4499 in August 1986 precludes issuance of NOV 14177 two months later. We note that while IM NOV 4499 cited appellee for the accumulation of acid water in pit No. 5, NOV 14177 cited appellee for the discharge of acid water from pond No. 001.
We also find no merit to appellee's arguments that since the acid water most likely resulted from the industrial mineral mining rather than from the coal mining, appellee may not be cited for a coal mining violation. Neither appellee nor the hearing officer cited any authority to support such an argument. In United States v. Batchelder (1979),
"This court has long recognized that when an act violates more than one criminal statute, the Government may prosecute under either so long as it does not discriminate against any class of defendants."
See, also, State v. Tipka (1984),
We sustain appellant's first and second assignments of error, and the decision of the Reclamation Board of Review is reversed.
Decision reversed.
STEPHENSON, J., concurs.
GREY, P.J., dissents.
Concurrence Opinion
I concur in the judgment and opinion reversing the decision of the Reclamation Board of Review but would add the following. R.C.
"The court shall affirm the decision of the board unless the court determines that it is arbitrary, capricious, or otherwise inconsistent with law, in which case the court shall vacate the decision and remand to the board for such further proceedings as it may direct."
Initially, I would agree, as even the dissent herein acknowledges, that an area covered by two distinct permits may, under the proper circumstances, lead to two separate violations. In her February 20, 1987 Report and Recommendation, the Reclamation Board of Review hearing officer stated, in pertinent part, as follows:
"Normally, the mere fact that acid water is discharging from a permit area would be sufficient to support a NOV with no inquiry into the source of that acid water. In this matter, however, I believe that an effort must be made to trace the acid water back to either the industrial minerals operation or the coal operation. Such an examination into the source of the acid water is pertinent because this area is covered by two separate permits, issued pursuant to different Chapters of Ohio law and regulated by distinct sets of rules.
"* * *
"The evidence presented by Mr. Adams persuaded me that the acid drainage entering pond #001 was most likely coming from the #5 clay pit, rather that [sic] the #6 coal pits. It appears thatsome of the toxic materials surrounding the #5 clay pit resultedfrom the original coal operation, and that acid water problemshad occurred prior to the clay affectment. However, I find that since this particular area had been reaffected by the IM operation, the reclamation responsibilities were shifted from permit C-1337 to permit IM-905.
"* * *
"This case is unique in that it deals with a violation which occurred on an *177 area covered simultaneously by an IM and a coal permit. I believe that the Division must determine the source of the deleterious water. Then, based upon that determination, the Division must elect to issue a NOV either on the IM permit or on the coal permit. The failure to make such an election could have the incongruous result of duplicative violations being issued on each permit.
"The burden of proof is shouldered by the Division in this matter. Based upon the evidence presented, I have made the factual finding that the acid water which entered sediment pond #001 emanated from the area of the #5 pit and was generated by the IM operation." (Emphasis added in part.)
Although, as the dissent herein notes, the hearing officer made the "factual finding" that the acid water discharge was from the No. 5 clay pit and was not generated by the coal mining operation, such quoted conclusion came only after the hearing officer's erroneous conclusion that when land is covered by two different permits, there can be only "one source" for the purpose of the issuance of notices of violation. Manifestly, acid water discharge on land covered by both industrial mining and coal mining permits could be engendered by both mining operations.
Furthermore, the hearing officer had already specified in her report that some of the toxic materials surrounding the No. 5 clay pit "resulted from the * * * coal operation," but then held that the mere reaffectment of the permit area by industrial mining automatically shifted "reclamation responsibilities," apparently in furtherance of the officer's erroneous search forone source. For the foregoing reasons, I believe that the decision of the board was arbitrary, capricious, and inconsistent with law and, hence, I concur in the reversal.
Dissenting Opinion
I respectfully dissent.
The majority analogizes to criminal law and holds that one act may constitute a violation of two separate and distinct statutes. One could just as easily analogize to R.C.
The board of review found that there was only one violation, only one source of deleterious water. The hearing officer found as follows:
"The burden of proof is shouldered by the Division in this matter. Based upon the evidence presented, I have made the factual finding that the acid water which entered sediment pond #001 emanated from the area of the #5 pit and was generated by the IM operation.
"NOV 14177 was issued pursuant to O.R.C.
The chief charged two violations, but based on the facts was only able to prove one. The Reclamation Board of Review is not a rubber stamp for the Division of Reclamation. It has a statutory mandate to make an independent evaluation of the facts in each case, R.C.
In Fisher, the defendant was using an illegal gill net and caught walleye, carp, bass, catfish, longnosed gar, sauger, steelhead and quillback suckers. The Division of Wildlife filed eight separate charges, but the Court of Appeals for the Sixth District said this was impermissible. I believe the board of review found the facts to be, just as in Fisher, one offense. That finding is amply supported by the record. I would not disturb it. Thus, I dissent.