This is an appeal pursuant to R.C. 1513.14 from a Reclamation Board of Review decision, dated March 25, 1987, vacating Notice of Violation 14177. Interestingly, the land in question is covered by both a coal mining permit issued under R.C. *Page 175 Chapter 1513 and an industrial mineral mining permit issued under R.C. Chapter 1514.
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.1514.02(A) and Ohio Adm. Code 1501:14-3-02. On October 24, 1986, the Division of Reclamation issued NOV 14177 for a coal mining permit violation involving the discharge of acid water from pond No. 001 in violation of R.C. 1513.16(A)(10)(a)(ii) and Ohio Adm. Code 1501:13-2-10(D).
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.
Assignment of Error I "Because water which passes over an area disturbed by coal mining operations, as defined in O.A.C. 1501:13-2-10(D), must meet that provision's effluent limitation, regardless of it's [sic] source, it was error for the board to vacate NOV 14177 since the issuance of a permit to mine industrial mineral in addition to coal does not relieve the operator from the obligation to comply with coal mining regulations."
Assignment of Error II "Because statutes should be construed harmoniously, nothing in R.C. Section 1514 exempts Paul Adams from complying with R.C. Section 1513 [sic]."
Appellant contends that because appellee clearly violated R.C.1513.16(A)(10)(a)(ii) and Ohio Adm. Code 1501:13-2-10(D), the board should not have vacated NOV 14177. We agree. We note appellee does not contest the fact the violation existed.
We find no merit to appellee's *Page 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), 442 U.S. 114, 123-124, the court wrote:
"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), 12 Ohio St. 3d 258, 12 OBR 337, 466 N.E.2d 898; State v. Oliver (1987), 31 Ohio App. 3d 100, 31 OBR 171, 508 N.E.2d 1048; State v. Miles (1983), 8 Ohio App. 3d 410, 8 OBR 533, 457 N.E.2d 944.
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.