The opinion
Stephenson, J.,
concurring. I concur in the judgment and opinion reversing the decision of the Reclamation Board of Review but would add the following. R.C. 1513.14(A) provides, in pertinent part, as follows:
“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.
4c 4c
“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 that
some of the toxic materials surrounding the #5 clay pit resulted from the original coal operation, and that acid water problems had 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.
U
4« 4: 4s
“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 for
one
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.