Terrence M. Fay

Practices

• Environmental

Professional Experience

Terry Fay is a partner, a member of the firms Environmental Practice Group, and is resident in the firm's Columbus, Ohio office. He has more than thirty-two years of experience in all aspects of environmental and public law. He is a former Assistant Attorney General of Ohio, former Chief Civil Attorney of the Environmental Enforcement Section of the Ohio Attorney Generals Office, former Chief Counsel to the Ohio Board on Unreclaimed Strip-Mined Lands, and the former judicial clerk to the Chief Administrative Law Judge of the Ohio Power Siting Board. While in public service, he participated in some of the most important events in environmental and public law in Ohio during the last three decades, including the Erie Nuclear Power Station power siting proceedings, the filing of the first state cost recovery action under the federal Superfund Act, the extensive re-drafting of Ohio's hazardous waste and strip-mining laws and regulations to conform them to the requirements of federal law, the defense of the exclusive licensing provision of Ohio's hazardous waste laws, and the letting of millions of dollars in state contracts for the clean up of unreclaimed strip-mined lands in Ohio.

Since leaving public service for private practice, he has been involved in major civil and criminal environmental litigation on behalf of firm clients, and has counseled companies ranging in size from publicly traded Fortune 500 companies to small family businesses in the environmental aspects of the acquisition and divestiture of business units and real property. He has also counseled private companies in securing and defending public contracts and the legal restrictions on gifts made to federal and state public officials, successfully enjoined the threatened termination of a multi-year, multi-million dollar public contract, and he has counseled debtors and creditors on the treatment of environmental liabilities under the federal Bankruptcy Code.

Education

• The Ohio State University Michael E. Moritz College of Law, J.D., 1978, cum laude
• Baldwin-Wallace College, B.A., 1975, cum laude
• Baldwin-Wallace College, B.S., 1974, cum laude

• CIVIL AND CRIMINAL JUDICIAL LITIGATION
• Defense of civil and criminal enforcement proceedings and citizen suit litigation under the federal Clean Air Act and analogous state laws, including representation of individual and corporate clients in federal and state actions alleging violations of applicable emission limitations and  reporting obligations contained Title V permits and analogous state permits, federal and state actions alleging the installation and operation of air pollution sources without required air pollution construction/installation permits, and allegations of falsification of emissions data.
• Defense of civil and criminal enforcement proceedings and citizen suit litigation under the federal Clean Water Act and analogous state laws, including representation of individual and corporate clients in federal  and state actions alleging failure to obtain required waste water discharge permits, actions alleging violations of point source effluent limitations, and actions alleging the illegal dredging and filling of jurisdictional wetlands.
• Defense of civil and criminal enforcement proceedings and citizen suit litigation under the federal Resource Conservation and Recovery Act and analogous state laws, including representation of individual and corporate clients in federal and state actions alleging unpermitted treatment, transportation storage or disposal of hazardous waste and violations of Part B permits.
• Defense of civil enforcement proceedings under the federal Emergency Planning Community Right to Know Act and analogous state laws.
• Defense of civil enforcement procedures under the federal Toxic Substances Control Act and analogous state laws.
• Both filed and defended high prerogative writ cases (mandamus, prohibition, procedendo and quo warranto) in federal and state trial and appellate tribunals, including the Ohio Supreme Court (State ex rel McMonagle).
• Defense of potentially responsible parties (including owners/operators, generators and transporters) in CERCLA litigation.
• Both filed and defended private CERCLA cost recovery actions in corporate buy/sell situations.
• Filed first state recovery action under CERCLA initiated by any state (State ex rel. Brown v. Gorgeoff, N.D. Ohio).
• Filed successful challenge to federal natural resource damages regulations.
• Successful defense of corporate and individual defendants in criminal prosecution for illegal storage and disposal of hazardous waste (State ex rel. Celebrezze v. Dixie Distributing, Co.).
• Successful defense of exclusive licensing provision of Ohio's hazardous waste license statue (Clermont Environmental Reclamation Co. v. Wiederhold, Ohio Supreme Court).
• Successful defense in jury trial of seven state employees accused of using excessive force in execution of a criminal search warrant.
• Successful defense of award of multi-million dollar county contact for the disposal of county waste at a waste-to-energy facility (Danis-Clarkco Landfill, Inc. v. Clark County Commissioner, Ohio Supreme Court).
• Represented buyer of heavily contaminated headquarters facility of major pump manufacturer in civil action against seller.
• Represented major creditor in Eagle Pitcher bankruptcy proceedings regarding valuation of debtor’s environmental liabilities.
• Oversaw notice and discharge of environmental liabilities in Industrial General Chapter 11 proceedings.
• Successful defense against threat of contract termination and debarment in case involving multi-million dollar public contract of private emissions testing contractor.
• Represented a metals finishing company during the execution of a federal search warrant and subsequent criminal investigation.
• Defended a aluminum refining company accused of installing and operating a hazardous waste treatment, storage and disposal facility by storing byproducts of the refining process for later use.
• ADMINISTRATIVE LITIGATION
• Administrative defense of annual operating licenses issued to national solid waste company for solid waste facility over multiple years.
• Administrative defense of state air and, solid waste permits to install authorizing the doubling of landfill disposal capacity of one of Ohio’s largest landfills.
• Administrative challenge to toxic hotspot provisions of state wastewater discharge permit issued to tool and die maker.
• Administrative challenge to state methodology for establishment of an emission factor for particulate emisions from iron and steel stag operation.
• Administrative challenge to state water quality regulations.
• Administrative challenge to NPDES permit effluent limitations issued to industrial discharger.
• Filing/litigating certified complaints of regulatory violations before state environmental agency.
• Litigated proposed issuance of certificate of environmental compatibility and public need to nuclear and conventional electrical generating facilities, electric transmission lines and natural gas transmission lines.
• Negotiated the terms of an Administrative Order on Consent issued to an anodizing company accused of installing and operating anodizing equipment without required air pollution permits to operate and permits to install.
• TRANSACTIONAL/COMPLIANCE COUNSELING
• Counselled major scrap dealer regarding environmental requirements applicable to business start-up.
• Negotiated the terms and conditions of air pollution waste water discharge and pretreatment permits issued to companies with anodizing, plating, and metals recovery operations.
• Counselled a metals recovery business regarding the requirements of state law regarding the cessation of regulated operations and federal law governing the export of hazardous waste.
• Advised a large metals recovery business regarding its environmental compliance obligations during the pendency of reorganization proceedings and the treatment of environmental claims and liabilities by the bankruptcy courts.
• Negotiated the terms and conditions of Title V Permits, NPDES permits, Part B permits and analogous state air, water, solid waste and hazardous waste installation, construction and operation permits and licenses.
• Oversaw environmental due diligence in acquisition of former U.S. Steel Homestead Works.
• Oversaw environmental due diligence in divestiture of manufacturing division of publicly traded company.
• Oversaw preparation of petition for waiver from state disclosure requirements on behalf of international business headquartered in Paris, France.
• Oversaw environmental due diligence in acquisition of South Carolina furniture manufacturing facility.
• Negotiated environmental representations and warrants and division of environmental liabilities in multiple corporate and real estate acquisitions and divestitures.

• "The Gift That Does Not Keep On Giving: Restrictions on Gifts to Public Officials Under Ohio Law", Lorman Educational Institute, Columbus, Ohio, August 16, 2008
• "Environmental Issue in Real Estate Development" Lorman Educational Institute, Columbus, Ohio, January 23, 2008
• "Negotiating Complex Real Estate Transactions in Ohio; Environmental Issues" Lorman Educational Institute,, Columbus, Ohio, July 12, 2006

• Named a 2012 Top Rated Lawyer in energy, environmental and natural resources law by The American Counsel/Corporate Counsel
• Listed in Super Lawyers Publication, 2006-2010, 2006-2008
• Selected for inclusion in Chambers USA®: America's Leading Lawyers for Business, Natural Resources & Environment, Ohio, 2000-2011
• AV Preeminent Rated by Martindale-Hubbell®
• Marquis' Who's Who in America®, 1992-2010, 1992-2008
• International Who's Who of Professionals, 2008-2010, 2008
• Capitol Press LLC 2008 Environmental Advocacy Award