The opinion
Grey, P.J. dissenting.
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. 2941.25, the crimes-of-similar-import statute, or
State
v.
Roberts
(1980), 62 Ohio St. 2d 170 , 16 O.O. 3d 201, 405 N.E. 2d 247 .1 agree with the majority that one act can constitute a violation of two statutes, but the issue here is whether or not there were, as a matter of fact, two violations.
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. 1513.02. This section provides that NOYs may be issued to a permittee where violations occur on a
coal mining 'permit
area. As I can not find that the acid water was generated by the coal mining operation, I do not believe that the NOV was properly issued under Chapter 1513. Therefore, I find that the issuance of NOV 14177 was arbitrary, capricious or otherwise inconsistent with law. O.R.C. 1513.13 (B).”
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. 1513.13(A)(1) and (B), and determine whether the NOV is ar
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bitrary and capricious. In this case, ap-pellee had a clay permit which was the source of the violation and the board found there was a violation. This would be a violation, whether there was a coal permit on the same land or not. If there is a coal permit, does this create a second violation? And would a third permit for some other purpose mean three violations? I think not. This kind of thinking was rejected in
State
v.
Fisher
(1977), 52 Ohio App. 2d 133 , 6 O.O. 3d 99, 368 N.E. 2d 324 .
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.