Terrence M. Fay
Terry is a partner and a member of the firm's Environmental Practice Group and is resident in our Columbus office, the seat of state government in Ohio. He has more than 40 years of experience in all aspects of environmental and public law. Terry has been named one of LAW 360’s Environmental MVPs (one of the five best environmental lawyers in the nation). Terry is a former Assistant Attorney General of Ohio, former Chief Civil Attorney of the Environmental Enforcement Section of the Ohio Attorney General's 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 four 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 in 1986, Terry has been involved in major civil and criminal environmental and occupational health and safety litigation on behalf of firm clients, including federal and state environmental citizen suit litigation, 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. Terry 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, multimillion-dollar public contract, and he has counseled debtors and creditors on the treatment of environmental liabilities under the federal Bankruptcy Code.
Civil and Criminal Judicial Litigation
- 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 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 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).
• Defense of civil enforcement proceedings under the federal Emergency Planning Community Right to Know Act and analogous state laws.
- Defense of civil enforcement proceedings 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).
- 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 multimillion-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 for breach of environmental representations and warranties.
- Represented major creditor in Eagle Pitcher bankruptcy proceedings regarding valuation of debtor's environmental liabilities.
- Oversaw notice and discharge of environmental liabilities in Chapter 11 proceedings if a major manufacturer.
- Successful defense against threat of contract termination and debarment in case involving multimillion-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 an 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.
- Represented major auto parts manufacturer in federal environmental criminal investigation.
- Represented major chemical manufacturer in OSHA fatality investigation.
- Represented major chemical manufacturer in OSHA investigation of alleged process safety management (PSM) regulations.
- Filed administrative appeals on behalf of a major chemical manufacturer to the Federal Occupational Safety and Health Review Commission (OSHRC) from OSHA citations alleging violations of OSHA’s PSM and worker safety.
- 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 emissions factor for particulate emisions from iron and steel stag operations.
- 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.
- 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.
- AK Steel Corp. v. State, Case No. CA2002-02-042, Court of Appeals of Ohio, Twelfth Appellate District, Butler County, 2003 Ohio 1610; 2003 Ohio App. LEXIS 1534, March 31, 2003, Decided.
- Call v. G. M. Sader Excavating & Paving, Inc., Nos. F-79-3, F-79-9, Court of Appeals of Ohio, Sixth Appellate Division, Fulton County, 68 Ohio App. 2d 41; 426 N.E.2d 798; 1980 Ohio App. LEXIS 9635; 22 Ohio Op. 3d 36.
- Citizens Against Am. Landfill Expansion v. Korleski, Nos. 08AP-539 and 08AP-541, Nos. 08AP-540 and 08AP-542, No. 08AP-543, Court of Appeals of Ohio, Tenth Appellate District, Franklin County, 180 Ohio App. 3d 170; 2008 Ohio 6678; 904 N.E.2d 910; 2008 Ohio App. LEXIS 5566, December 18, 2008, Rendered.
- City of Independence v. Call, No. 45554, Court of Appeals, Eight Appellate District, Cuyahoga County, Ohio, 1983 Ohio App. LEXIS 12835.
- Clark County Solid Waste v. Schregardus, C.A. Case No. 94-CA-75, Court of Appeals of Ohio, Second Appellate District, Clark County, 1995 Ohio App. LEXIS 2068.
- Clermont Environmental Reclamation Co. v. Wiederhold, 82-280, Supreme Court of Ohio, 2 Ohio St. 3d 44; 442 N.E.2d 1278; 1982 Ohio LEXIS 755; 2 Ohio B. Rep. 587; 13 ELR 20466.
- Danis Clarkco Landfill Co. v. Clark County Solid Waste Management Dist., No. 94-1047, Supreme Court of Ohio, 73 Ohio St. 3d 590; 1995 Ohio 301; 653 N.E.2d 646; 1995 Ohio LEXIS 1869 September 6, 1995, Decided, As Amended.
- Hilsinger v. Chief, No. 86AP-21, Court of Appeals, Tenth Appellate District of Ohio, Franklin County, Ohio, 1986 Ohio App. LEXIS 6522.
- In re K.L.-F., Case No. 2009-G-2891, Court of Appeals of Ohio, Eleventh Appellate District, Geauga County, 2009 Ohio 2797; 2009 Ohio App. LEXIS 2371.
- J.V. Peters & Co. v. Ruckelshaus, Case No. 83-4436, United States District Court for the Northern District of Ohio, Eastern Division, 584 F. Supp. 1005; 1984 U.S. Dist. LEXIS 19365; 20 ERC (BNA) 2222; 14 ELR 20277.
- Lundblad v. Celeste, Nos. 87-3651, 87-3689, United States Court of Appeals for the Sixth Circuit, 874 F.2d 1097; 1989 U.S. App. LEXIS 6166; 13 Fed. R. Serv. 3d (Callaghan) 1369, November 5, 1987, Argued, May 4, 1989.
- Moore v. Hayman, No. 1-85-3, Court of Appeals of Ohio, Third Appellate District, Allen County, 1986 Ohio App. LEXIS 9464.
- Nat’l Solid Wastes Mgmt. Ass’n v. Stark-Tuscarawas-Wayne Joint Solid Waste Mgmt. Dist., No. 2009-0211, Supreme Court of Ohio, 124 Ohio St. 3d 197; 2009 Ohio 6765; 920 N.E.2d 978; 2009 Ohio LEXIS 3617.
- Nat’l Solid Wastes Mgmt. Ass’n v. Stark-Tuscarawas-Wayne Joint Solid Waste Mgmt. Dist., Case No. 2008CA00011, Court of Appeals of Ohio, Fifth Appellate District, Stark County, 2010 Ohio 228; 2010 Ohio App. LEXIS 198.
- Nat’l Solid Wastes Mgmt. Ass’n v. Stark-Tuscarawas-Wayne Joint Solid Waste Mgmt. Dist., Case No. 2008CA00011, Court of Appeals of Ohio, Fifth Appellate District, Stark County, 2008 Ohio 6585; 2008 Ohio App. LEXIS 5499.
- Northeast Ohio Regional Sewer Dist. v. Tyler, Nos. 86 AP-495, 86AP-593, Court of Appeals of Ohio, Tenth Appellate District, Franklin County, 34 Ohio App. 3d 129; 517 N.E.2d 972; 1986 Ohio App. LEXIS 10290.
- Ottawa Tribe of Okla. v. Ohio Dep’t of Natural Res., Case No. 3:05 CV 7272, United States District Court for the Northern District of Ohio, Western Division, 541 F. Supp 2d 971; 2008 U.S. Dist. LEXIS 27224.
- Spitzer Great Lakes Ltd. v. United States EPA, No. 97-3489, United States Court of Appeals for the Sixth Circuit, 173 F. 3d 412; 1999 App. LEXIS 7185; 1999 FED App. 0136P (6th Cir.); 48 ERC (BNA) 1321; 29 ELR 21117.
- State ex rel. Brown v. Georgeoff, Case No. C81-1961, United States District Court for the Northern District of Ohio, Eastern Division, 562 F. Supp. 1300; 1983 U.S. Dist. LEXIS 17239; 19 ERC (BNA) 1113; 13 ELR 20457.
- State ex rel. Celebrezze v. Denune, Case No. 2610, Court of Appeals of Ohio, Second Appellate District, Clark County, 1990 Ohio App. LEXIS 863.
- State ex rel. Celebrezze v. J.V. Peters & Co., Inc., No. 1088, Court of Appeals, Eleventh Appellate District, Geauga County, Ohio, 1985 Ohio App. LEXIS 6491.
- State ex rel. Tyler v. McMonagle, No. 86-518, Supreme Court of Ohio, 25 Ohio St. 3d 13; 494 N.E.2d 1144; 1986 Ohio LEXIS 678; 25 Ohio B. Rep. 11.
- Tube City Olympic of Ohio, Inc. v. Jones, No. 03AP-295, Court of Appeals of Ohio, Tenth Appellate District, Franklin County, 2004 Ohio 1464; 2004 Ohio App. LEXIS 1298.
- Waste Mgmt. of Ohio, Inc. v. Bd. of Health of the City of Cincinnati, No. 04AP-437, No. 04AP-438, No. 04AP-443, No. 04AP-444,Nos. 04AP-717 and 04AP-719, Court of Appeals of Ohio, Tenth Appellate District, Franklin County
- “Ohio Court Limits Localities’ Authority Over Energy Exploration,” Washington Legal Foundation, Vol. 22, No. 8, June 2013
- "Liability Under Federal Environmental Law for Crude Oil Spills from Rail Cars", Oil and Gas Monitor, September 2014
- “Fractured High Court Issues Limited Ruling in Ohio Oil and Gas Preemption Case,” Washington Legal Foundation, Vol. 24, No. 4, March 2015
- "The Gift That Does Not Keep On Giving: Restrictions on Gifts to Public Officials Under Ohio Law," Lorman Educational Institute, Columbus, Ohio, August 2008
- "Environmental Issue in Real Estate Development," Lorman Educational Institute, Columbus, Ohio, January 2008
- "Negotiating Complex Real Estate Transactions in Ohio; Environmental Issues," Lorman Educational Institute, Columbus, Ohio, July 2006
- Named a Law360 Environmental MVP – one of the top five U.S. environmental lawyers
- 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 to 2010 and 2018, 2019
- Selected for inclusion in Chambers USA: America's Leading Lawyers for Business, Natural Resources & Environment, Ohio, 2000 to 2019
- AV® Preeminent Rated by Martindale-Hubbell
- Marquis' Who's Who in America®, 1992 to 2015
- International Who's Who of Professionals, 2008 to 2010
- Capitol Press LLC 2008 Environmental Advocacy Award
- Listed in Columbus CEO, Top Lawyer for 2012 to 2015
- American Bar Association, Section on Natural Resources, Environmental and Energy Law
- Ohio State Bar Association, Environmental Law Committee
- Columbus Bar Association, Environmental Law Committee
- Member, National Landfill Institute
- Member of Ohio Oil and Gas Association
- Member, National Waste and Recycling Association
- The John Scott Academy, Board of Directors, 2007 to 2008