Ownership & Legal for Power Capture in the Closure Stage

Objective

Outline and implement legal regulatory requirements upon cessation of operation of the power plant and associated capture plant infrastructure.

Key deliverables 

• Legal input to board paper recommending decommissioning strategy
• Legal input to compliance with conditions, statutory compliance, site remediation requirements, surrender of operational consents and obtaining of all consents for decommissioning
• Negotiation, finalisation and execution of surrender of any leasehold interests, and packaging and sale of property interests, including allocation of any residual liabilities
• Negotiation, finalisation and execution of all contracts required for decommissioning and closure

Tasks

Compliance and regulatory issues 

• Map out options, evaluate them and then define and execute decommissioning and consent surrender strategy, including:
• Compliance with conditions in consents regarding decommissioning and site closure;
• Surrender of consents
• If necessary, assessment of site condition and subsequent remediation to bring back to the higher of the standard required by contract or by statute/consent conditions for acceptance of licence surrender
• Obtaining approval if required of decommissioning plan
• Obtaining all necessary consents for decommissioning works
• Discharge of any bond required as security for implementation of condition requiring decommissioning of site
• Advise on:
  • Potential liabilities attaching to site coming out of surveys
  • Any necessary discussions with regulators and stakeholders on remediation strategy
  • Mitigation and allocation of those risks in contracts for acquisition of the required property interests and/or among the investors in the project
• Legal review of application documents, including environmental impact assessment documents, for consents required for decommissioning
• Negotiation and agreement of draft conditions and statutory agreements attached to consents 
• Advice on discharge of pre-commencement conditions and documentation of discharge 
• Advice throughout process of consideration of applications, including representation at any inquiry, appeal or other proceedings required to reach a final decision
• Ensure co-ordination with the processes for consenting of decommissioning of transport and storage

Property issues 

• Review and apply property contract provisions relating to project closure – for example:
  • Land restoration obligations – including removal of infrastructure and remediation
  • Post restoration aftercare obligations
  • Previous owner take-back rights
  • Return of any bonds
  • Dilapidations obligations relating to project office accommodation and/or warehousing for spare plant and equipment
• Assess value of land interests not subject to previous owner take-back rights and consider:
• Immediate sale for restored use
• Investing time and other resources to make site fit for a higher value use with, in either case, allocation in sale contracts for residual liabilities attaching to the relevant site

Contractual issues 

• Negotiate and finalise:
• Demolition and deconstruction contract/s
• Site investigation and remediation contract/s
• Any insurance policies

Corporate structures and funding

• Negotiate, finalise and execute agreements with project partners and funders:
• Unwinding project vehicle (following third party assumption of storage facilities, assuming the vehicle holds storage liabilities)
• Discharging funding guarantees and security
• All necessary meetings, minutes, filings and certificates

Other tasks

• Summarise all above areas to input to board paper to inform decision on closure options 
• Legal review of and input to the Risk register and assessment of management of any post-closure liabilities
• Advise on legal aspects of Information Management Plan, in particular confidentiality agreements and application of freedom of information legislation
• Legal advice on identification, evaluation, definition and execution of industrial relations, employee relations and workforce strategies on closure, as well as all transfers of employees and any redundancies

Examples

Key Personnel

• Project Manager
• Legal Counsel
• Commercial Lead
• Procurement Lead
• Engineering Lead