from the Environmental Review Appeals Commission (ERAC No.
Morgan, pro se.
Michael DeWine, Attorney General, and Cameron F. Simmons, and
Sarah Bloom Anderson, for appellant Craig W. Butler, Director
of Environmental Protection.
Cameron F. Simmons.
1} Appellee-appellant Ohio Environmental Protection
Agency ("EPA") appeals from a judgment of the
Environmental Review Appeals Commission
("commission") in favor of appellant-appellee,
Jenny Morgan, granting appellee's motion to compel
discovery of certain attorney-client communications. For the
reasons that follow, we reverse.
FACTS AND PROCEDURAL HISTORY
2} On August 19, 2014, Morgan filed a verified
complaint, pursuant to R.C. 3745.08, with EPA Director Craig
W. Butler alleging that an asphalt company by the name of
Scioto Materials, LLC, was violating Ohio environmental laws
pertaining to air pollution. R.C. 3745.08 pertains to the
investigation of complaints filed by persons aggrieved or
adversely affected by alleged violations of Ohio
environmental laws. The statute provides, in relevant part,
(A) [A]ny person who is or will be aggrieved or adversely
affected by a violation that has occurred, is occurring, or
will occur may file a complaint, in writing and verified by
the affidavit of the complainant, * * * with the director of
environmental protection, * * * alleging that another person
has violated, is violating, or will violate any law * * *
relating to air pollution.
(B) Upon receipt of a complaint authorized by this section,
the director shall cause a prompt investigation to be
conducted such as is reasonably necessary to determine
whether a violation, as alleged, has occurred, is occurring,
or will occur. * * * If, upon completion of the
investigation, the director determines that a violation, as
alleged, has occurred, is occurring, or will occur, the
director may enter such order as may be necessary, request
the attorney general to commence appropriate legal
proceedings, or, where the director determines that prior
violations have been terminated and that future violations of
the same kind are unlikely to occur, the director may dismiss
the complaint. If the director does not determine that a
violation, as alleged, has occurred, is occurring, or will
occur, the director shall dismiss the complaint.
3} In accordance with the provisions of the statute,
Director Butler initiated an investigation of the allegations
in Morgan's verified complaint. The record shows that
John Paulian, supervisor in the EPA Division of Air Pollution
Control, played an important role in EPAs review of the
verified complaint. The record also shows that Air Permitting
and Compliance Supervisor Bryon J. Marusek of EPAs Central
District Office participated in EPAs investigation of the
substantive allegations of the complaint.
4} On February 2, 2015, Director Butler sent a
letter to Morgan informing her that EPA had dismissed her
verified complaint because the investigation revealed that
Scioto Materials, LLC, had not violated the terms and
conditions of its EPA permit. Morgan appealed the judgment of
dismissal to the commission pursuant to R.C. 3745.04. In
Morgan's R.C. 3745.04 appeal to the commission, Morgan
named Director Butler as appellee in accordance with R.C.
3745.04(B). And in such proceedings, the Ohio Attorney
General provides the director's legal representation.
5} In connection with the discovery process in
Morgan's appeal to the commission, EPA inadvertently
forwarded a document to Morgan that EPA identified as a
confidential attorney-client communication. Immediately on
discovery of the error, EPA's legal counsel notified
Morgan and asked her to "sequester" the document in
accordance with Civ.R. 26(B)(6)(b). Morgan complied with the
request but filed a motion to compel production and for an in
camera review. Morgan also moved the commission to compel
production of several other documents that EPA had produced
but with significant redactions due to a claim of
attorney-client privilege. EPA opposed the motion arguing
that the documents at issue contained information that was
either irrelevant to the appeal or protected from disclosure
by the attorney-client privilege.
6} On May 31, 2016, the commission granted
Morgan's motion to compel with respect to eight of the
documents at issue and denied her motion as to the other
three. Pursuant to R.C. 3745.06, EPA appealed to this court
from the commission's ruling on the motion to compel.
ASSIGNMENT OF ERROR
7} Appellant alleges a single assignment of error as
The Environmental Review Appeals Commission erred by granting
Appellee's motion for in camera review and motion to
compel, since the three communications in question are