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Morgan v. Butler

Court of Appeals of Ohio, Tenth District

March 7, 2017

Jenny Morgan, Appellant-Appellee,
v.
Craig W. Butler, Director of Environmental Protection Agency et al., Appellees-Appellants.

         APPEAL from the Environmental Review Appeals Commission (ERAC No. 15-6830)

         On brief:

          Jenny Morgan, pro se.

          Michael DeWine, Attorney General, and Cameron F. Simmons, and Sarah Bloom Anderson, for appellant Craig W. Butler, Director of Environmental Protection.

         Argued:

          Dennis Hirsch.

          Cameron F. Simmons.

          DECISION

          SADLER, J.

         {¶ 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.

         I. 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, as follows:

(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.

(Emphasis added.)

         {¶ 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).[1] And in such proceedings, the Ohio Attorney General provides the director's legal representation. R.C. 109.02.

         {¶ 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).[2] 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.

         II. ASSIGNMENT OF ERROR

         {¶ 7} Appellant alleges a single assignment of error as follows:

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 ...

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