dissenting. I must respectfully dissent in that the majority herein is engaging in redrafting R. C. Chapter 3745 of the Ohio laws relating to the conduct of the affairs of the Environmental Protection Agency and the Environmental Board of Review. This entails legislation by judicial action. Although, admittedly, such a course is inviting in many respects relative to this chapter of law, I shall refrain from indulging therein.
The Tenth District Court of Appeals has on many occasions spoken on the subject of the appellate jurisdiction of the EBR, and its duty to hold a hearing de novo in the event that an adjudicatory hearing is not conducted by the director of the EPA. This writer dwelled on the subject rather at length in the case of Cincinnati Gas & Electric Co. v. Whitman (November 19, 1974, No. 74AP-151), unreported. In Cincinnati Gas & *240Electric the court held that where an adjudicatory hearing has not been held by the Director of Environmental Protection, the EBR must hold a hearing de novo, and that the EBR has no authority under the law to remand the matter back to the director for such an adjudicatory hearing.
The same pronouncement was made by the Tenth District Court of Appeals in Citizens Committee to Preserve Lake Logan v. Williams (December 27, 1977, No. 77AP-504), unreported, Judges Holmes, Whiteside and McCormac concurring.
Again, the issue was addressed by the Tenth District Court of Appeals in Kripke-Tuschman Industries v. Williams (July 31, 1979, 78AP-865), unreported, wherein Judge Whiteside stated:
“It makes no difference whether or not the Director was required to conduct an adjudication hearing. If he does not do so upon an appeal from his order, the Environmental Board of Review is required to conduct a hearing de novo and is not authorized to remand the cause to the Director for the purpose of conducting such hearing.”
Judge Whiteside also addressed the issue of whether R. C. 119.06 would require the director to conduct an adjudicatory hearing and concluded as follows:
“***This court does not disagree with the philosophy expressed by the Board and by Kripke-Tuschman that the Director should afford an applicant for a permit adequate opportunity to present all pertinent evidence in support of granting the permit and that that purpose may in many instances be best achieved by an adjudication hearing. We must disagree with the conclusion that R. C. 119.06 requires the Director to conduct an adjudication hearing under the circumstances of this case. R. C. 119.06 provides in pertinent part, as follows:
“ ‘No adjudication order shall be valid unless an opportunity for a hearing is afforded in accordance with sections 119.01 to 119.13, inclusive, of the Revised Code. Such opportunity for a hearing shall be given before making the adjudication order except in those situations where this section provides otherwise.
“ ‘The following adjudication orders shall be effective without a hearing:
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“ ‘(C) Orders or decisions of an authority within an agency if the rules of the agency or the statutes pertaining to such agency specifically give a right of appeal to a higher authority within such agency or to another agency and also give the appellant a right to a hearing on such appeal.’
“Utilizing a somewhat strained interpretation of the statutory provisions, the Environmental Board of Review concluded that the exception did not apply because it, the Board, was not an agency as defined by R. C. 119.01 and is not an ‘authority’ within the Environmental Protection Agency. Such a hypertechnical interpretation of R. C. 119.06 is neither justified nor required. Reading R. C. 3745.05 and cognate sections in pari materia with R. C. 119.06, it becomes quite apparent that the Environmental Board of Review is an agency within the purview of that section whether it be deemed a higher authority within the same agency or another agency. The clearly expressed legislative intent is that an adjudication hearing is not required at the initial level if one be available on appeal from an adverse ruling at the initial level of administrative decision.”
The Tenth District Court of Appeals, in its decision in this cause, per Judge Moyer, reaffirmed the position of the court that an adjudicatory hearing is not required in the first instance by the director, by the following language in the decision:
“Our holding in Kripke-Tuschman Industries, supra, that a reading of R. C. 3745.05 and related sections in pari materia with R. C. 119.06 results in a conclusion that the Environmental Board of Review is an agency within the purview of R. C. 3745.05, applies to this case. One of the related statutes is R. C. 3745.07 which was enacted after R. C. 119.06 and is more specific. It provides, in pertinent part, that:
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“ ‘If the director issues, denies, modifies, revokes, or renews a permit, license, or variance without issuing a proposed action, an officer of an agency of the state or of a political subdivision, acting in a representative capacity, or any person who would be aggrieved or adversely affected thereby, may appeal to the environmental board of review, within thirty *242days of the issuance, denial, modification, revocation, or renewal.’
“That section clearly recognizes that the director may issue a denial without an adjudication hearing. If that occurs, as it did in this case, the permit applicant has a right to a full hearing before the board, rather than the director. We believe that a reading of all relevant sections of the Code in pari materia leads only to the conclusion that the General Assembly intended that an adjudication hearing is not necessary at the first administrative level if a hearing is available on appeal from an adverse ruling at the initial level of administrative decision. Kripke-Tuschman Industries, supra. ”
I am of the opinion that the interpretations of these sections of law, as rendered by the Tenth District Court of Appeals, are sound and should be adopted by this court. I would affirm the judgment of the Court of Appeals.