ENGINEERING AND PROCESS PLANTS CAPABILITY
DAMIEN CRONIN
Damien Cronin is the principal of Law Managing litigation relating to process Projects, a specialist legal and company plant construction, operation and secretariat consultancy to the resources technology issues. and energy sectors. He is, and has been, a specialist legal and commercial consultant Major Engineering Plant Projects to Blue Energy, Global Petroleum, Queensland Gas, Sonoma Coal and Advised in relation to process engineering Sunshine Gas (serving as the Company and plant and equipment procurement, Secretary and General Counsel to Blue technology transfer and engineering and Energy and Sunshine Gas (both listed construction issues: public companies), a Non-Executive Director and Company Secretary of Global ERM’s A$470 million Braemar Power Petroleum (a listed public company), the Project (450 MW). Negotiated and General Counsel to Sonoma Coal and the documented the EPC Contract with Secretary of the Operating Committee of Alstom; the Sonoma Coal Joint Venture). He has ERM’s A$500 million Wagga-Wagga also been a specialist adviser to the Boards (Uranquinty) Power Project (650 MW) of Ergon Energy and Powerdirect Australia. for the project lenders. Reviewed the He was a consultant to McInnes Wilson a Design, Engineering and Procurement boutique commercial law practice. He was Contract with Siemens and the also a partner of, and remains a consultant Balance of Plant Contract with to, DLA Piper, the world’s largest Balfinger; international legal firm and a significant presence in the Australasian legal services ERM’s A$400 million SWIS (Kwinana) market. Damien has over 40 years’ Gas Fired Power Project (400 MW) for experience in private and corporate legal the project lenders. Reviewed the practice, including over 30 years’ Design, Engineering and Procurement experience in the resources and energy Contract with Siemens; sectors. He has held senior legal and commercial roles in the resources and QCoal’s Sonoma Coal Mine Project. energy sectors, including roles with Rio Negotiated and documented the A$85 Tinto, Comalco, Shell Coal, Incitec and million Design and Construct Contract Duke Energy. He is admitted to practice in with Sedgman for the Washplant every jurisdiction in Australia as well as in Stages 1, 2 and 3. Advised on Hong Kong, New Zealand and the United subsequent Washplant upgrade and Kingdom. improvement projects;
Areas of Expertise Metgasco’s A$61 million Casino Power Project (30 MW) and Extensive ‘hands-on’ experience in: associated gas gathering, gas pipeline and gas compression facilities; The procurement of speciality plant and equipment for engineering Queensland Gas’ Chinchilla Gas Fired facilities and process plants; Power Project;
The development, construction and Geodynamics’ Geothermal Generation operation of process plants utilising Project at Innamincka (50 MW) and proprietary technology; waste heat Co-Generation project at the Mount Keith Nickel Mine; Negotiating and documenting arrangements for the construction of, Ergon Energy’s 12 MW Moranbah and and transfer of technology to, process Dalby Power Projects; plants, and for their operation; Duke Energy’s A$400 million Eastern Obtaining environmental and planning Gas Pipeline and associated gas approvals for process plant processing facilities; construction and operation; and
Duke Energy’s Tasmanian Gas Pipeline (A$350 Power Station (300 MW). The plant consists of million) and the associated conversion of the two Siemens V94.2 gas turbine generator sets Bell Bay Power Station (345 MW) to gas fired installed to operate in open (simple) cycle mode. generation; Oakey was the first application in Australia of this generation of Siemens gas turbines. Duke Energy’s South East Australia (Iona to Wasleys) Gas Pipeline Project (A$115 million); Undertook on behalf of Duke Energy a legal due diligence in respect of its possible acquisition of Duke Energy’s Port Headland (175 MW) and an interest in the A$470 million Wambo Gas Newman (105 MW) Power Stations in the Fired Power Project (450 MW), a greenfield Pilbara and the Glenbrook Co-Generation Plant development in South East Queensland. This (74 MW) in New Zealand (A$375 million), the project again involved the use of Siemens new Port Kembla Co-Generation Plant ((225 MW) generation of gas turbines and the detailed A$235 million),and the Bairnsdale Gas Fired review of the EPC Contract and the O&M Generation Project ((86 MW) A$90 million); Contract.
Incitec’s A$50 million Urea Plant Expansion Negotiated and documented all the project Project; agreements for the Callide C Power Station (840MW), including the EPC, O&M and Station CS Energy/Shell Coal’s A$800 million 840 MW Services Contracts for the power station‘s Callide Power Project; construction and operation.
Sun Metal’s Townsville Zinc Smelter Project; Advised Comalco on the Operation and Maintenance Agreements for its Weipa Power WMC’s Phosphate Hill Project; Plant and Kaolin Plant, and its Gladstone Comalco’s A$1.9 billion Gladstone (Yarwun) (Yarwun) Alumina Refinery. Alumina Refinery Project; Advised Blue Energy on in-field generation Comalco’s A$1.5 billion expansion of the Boyne projects on its CSM tenements and negotiated Island and Tiwai Point Aluminium Smelters; and documented associated engineering study agreements. Comalco’s A$750 million acquisition, and subsequent management, operation and Advised Citic Pacific Mining and Sino Iron on an refurbishment, of the Gladstone Power Station Operation and Maintenance Agreement for the (1,680 MW); Cape Preston Mine Outlet Station on the Dampier to Bunbury Gas Pipeline supplying the mine’s Comalco’s A$50 million Kaolin Project, including dedicated 450 MW combined cycle Power the process plant and associated shiploader; Station. and Advised the project owner regarding the A$90 Queensland Alumina Refinery to Boyne Island million Powerhub (100 MW) Power Project. Aluminium Smelter Alumina Conveyor Project. Exploration Other Power Plants Negotiated and drafted agreements for drilling Advised ERM on its $180 million Cobar (120 services for onshore and offshore gas, mineral, MW) Power Project. coal and geothermal exploration, appraisal and development projects for Blue Energy, Comalco, Acted for Ergon Energy regarding its A$10 Duke Energy, Geodynamics, Pacific Oil and million Moranbah and Dalby Gas Fired Power Gas, Queensland Gas, Rio Tinto Exploration, Projects. Shell Coal, Sunshine Gas and Western Metals.
Undertook on behalf of InterGen Australia a Advised Mitchell Drilling on drilling rig inspection legal due diligence and risk management review procedures, drilling rig maintenance contracts of its acquisition of Shell Coal’s 50% interest in and drilling contracts. the Callide Power Project (in the Callide Valley near Biloela, Queensland). Particular emphasis Assisted in undertaking for Dalma Energy a was placed on a detailed review of the EPC detailed commercial and legal due diligence of Contract and delivery of the supercritical boiler Century Drilling, including a full review of its technology. operations and suite of onshore and offshore drilling arrangements. Undertook for Origin Energy a legal due diligence into its possible acquisition of Siemens’ 33.3% interest in the A$200 million Oakey
Other Mining Projects Advised Electrometals Technologies and Western Metals on Technology Transfer Consultant Australasian legal adviser to Agreements relating to Copper Electrolysis Bucyrus, Caterpillar and Sandvik in respect of Recovery Plants. their supply of specialist mining equipment and spares under large value procurement contracts Negotiated and documented the project with major mining houses, including BHP Billiton, management agreements that govern the basis Rio Tinto and Glencore Xstrata. on which the project manager managed both the Boyne Island and Tiwai Point Aluminium Smelter Advised other specialist mining equipment and Expansion Projects on behalf of the smelters’ spares suppliers. participants.
Advised Comalco in relation to various Prepared the invitation to tender and assisted in expansion and improvement projects at its the tender evaluation process in respect of the Weipa mining and processing operation, provision of engineering, procurement and including the A$25 million Andoom Upgrade construction management services for the Boyne Project. Island and Tiwai Point Aluminium Smelter Expansion Projects. Acted for Western Metals in the A$20 million expansion of its Mt Gordon Mine. Assisted in the negotiation of and documented the A$120 million Engineering Procurement and Advised Glencore Xstrata on the construction of Construction Management Contract for the Boyne surge bins at its Mount Isa Mine. Island Aluminium Smelter Expansion Project and the NZ$20 million Engineering Procurement and Advised Rio Tinto Iron Ore on all aspects of the Construction Contract for the Tiwai Point development and construction of its Marandoo Aluminium Smelter Expansion Project, both with Mine. Bechtel. The EPCM Contract for the Boyne Island Aluminium Smelter Expansion Project contained Other Minerals and Metals Processing innovative performance based fee modifiers set Plants against performance on capital cost, schedule, and work performance indicators and the EPC Prepared invitations to tender, requests for Contract for the Tiwai Point Aluminium Smelter proposals and full tender and contractual Expansion Project contained a number of documentation for the provision of engineering, innovative project objectives and performance procurement and construction management related criteria. services for major capital projects. Assisted in reviewing a number of differing Prepared project standard legal documentation, contracting strategies for both projects, including including invitations to tender, standard large package lump sum turnkey proposals. conditions and standardised consultancy and Assisted in undertaking detailed risk confidentiality agreements, with an emphasis on assessments of various contract strategies and ease of use functionality. contract package proposals.
Prepared for Blue Energy, Bougainville Copper, Negotiated and documented an A$60 million Boyne Smelters, Century Zinc, Comalco, Duke construction contract for the integrated paste Energy, Global Petroleum, Incitec, Mary plant for the Boyne Island Aluminium Smelter Kathleen Uranium, Minenco, New Zealand with Klöckner Humboldt Deutz. The construction Aluminium Smelters, Pacific Coal, Queensland of this unique plant was on the critical path of the Alumina, Queensland Gas, Rio Tinto project schedule and was originally envisaged as Exploration, Shell Coal, Sonoma Coal, Sunshine a lump sum turnkey contract. In order to manage Gas and Tarong Coal tender conditions and perceived industrial relations risks it was brought general conditions for specialised construction under the management of the engineering contracts. procurement and construction management contractor. The contract required particular Specialist adviser to Minenco (Rio Tinto’s integration with the separate agreement with specialist engineering and construction unit). VAW Aluminium for the transfer of paste plant Negotiated and documented a turnkey technology. The contract contained detailed construction contract for the delivery by schedule provisions, detailed performance Shedden Uhde of Incitec’s Brisbane Urea Plant guarantees, a number of innovative performance Expansion Project. The turnkey delivery also based incentives and an innovative approach to involved the delivery of process technology the documentation of the various responsibilities (from two separate suppliers) licenced to the of the project owner, the project operator, the contractor and sublicenced to Incitec. contractor, the technology supplier and the
engineering procurement and construction Liaised with American, British, French, German management contractor in relation to mechanical and Swiss legal advisers in relation to technology completion, performance testing and arrangements. commissioning. Documented sub-licences in relation to the use of Undertook primary responsibility for the the technologies licenced. negotiation and documentation of all Technology Transfer Agreements for use in relation to the Prepared detailed user guides incorporating a Boyne Island and Tiwai Point Aluminium simplified flow chart format for the ongoing Smelters Expansion Projects. These agreements administration of all technology arrangements for were with: projects and provided training in contract administration and in the use of those guides. Aluminium Pechiney in relation to the A$90 million acquisition of its AP30 aluminium Other Gas and Liquids Projects reduction technology. This is the core technology of the Boyne Island Aluminium Specialist adviser to Petro-Vietnam on EPC and Smelter Expansion Project. The agreement EPCIC contracts. provided for part of the technology fee to be payable as royalty on production, which Advised shipowners, shipbuilders and suppliers required careful consideration of the royalty on all forms of new-build shipbuilding contracts, withholding provisions of the Double Tax including those for LNG carriers and floating Treaty between Australia and France. This storage facilities, as well as ship repair and was the first such royalty based agreement maintenance contracts. Documented and negotiated with Aluminium Pechiney. The reviewed those forms of contract. agreement also contained an option to Advised Sunshine Gas on the establishment of acquire the technology for use at the Bell initial studies, including FEED studies, for the Bay Aluminium Smelter; Sun LNG and Lacerta Projects in joint venture Alumax Technology Corporation in relation to with Sojitz. the US$15 million acquisition of its anode Advised Blue Energy on initial engineering rodding and bath treatment technology. An scoping studies and FEED studies for the mid innovative approach to documenting the stream development of CSM development responsibilities of the technology supplier projects. was developed for this agreement; Acted for Enertrade on the pipeline development Alesa Alusuisse Engineering in relation to of the A$260 million North Queensland Gas the SF30 million acquisition of its anode Pipeline and the Townsville Power Station. baking technology for both the Boyne Island and Tiwai Point Aluminium Smelters Assisted in advising participants in the Bayu- Expansion Projects; and Undan LNG Project on construction and LNG technology transfer arrangements. VAW Aluminium in relation to the US$20 million acquisition of its past plant Assisted in advising suppliers to the PNG LNG technology. This agreement required detailed Project on supply and construction integration with the construction contract for arrangements. the construction of the paste plant. Assisted in advising the project proponents of Assisted in advising Hamersley Iron on the the Trombay LNG Receiving Facility Project in commercialisation of its Hismelt direct reduction India (US$540 million), including construction technology. and LNG technology transfer arrangements.
Negotiated and documented Technology Transfer Advised on the EPCIC Contracts for the and EPCM Agreements for Tiomin Resources for Mangahewa and McKee LNG Projects in New the Kwale Sand Mining Project in Kwale, Kenya. Zealand. Prepared letters of credit, letters of intent and Civil Projects options for use in connection with the technology arrangements. Acted for Queensland Motorways Limited (Gateway Bridge and Gateway and Logan Negotiated and documented confidentiality Motorways) in relation to the San Jose Del obligations for use in conjunction with the Monte Tollway Project in the Philippines. This technology arrangements. involved advising on, and negotiating and drafting, international procurement agreements for the supply of specialised equipment,
construction services, including testing and Made submissions to, represented various commissioning, site construction, and for the company and industry interests at, and transfer of e-tolling technology. The contract appeared before, Federal, State and Territory documentation involved innovative contractual parliamentary committees and local authorities approaches to securing smooth construction and on engineering and construction issues. technology interfaces between all stakeholders, including the EPCM Contractor. Liaised with all necessary government regulators for all required transactional approvals. Advised on, and negotiated and documented standard and bespoke specialist form civil Represented various company interests on the engineering design and construction contracts, Australian Minerals Council and various State and advised on design and construction risks and Territory Minerals and Resources Councils insurance. and other peak industry bodies, including the Association of Mining and Exploration Water Treatment Plants Companies, the Australian Aluminium Council, the Australian Coal Association, the Australian Specialist adviser to the Western Australian Water Petroleum Exploration and Production Corporation on process plant design and construction Association and the Clean Energy Council, and documentation. Undertook major contract and project represented the energy and resources sectors reviews and prepared reports for the Water on various government and industry committees Corporation’s Board and senior management on and working groups relating to engineering and process plant construction and documentation. construction issues. Corporate and Commercial Litigation
Director and Company Secretary of Global Managed significant litigation impacting on Petroleum. Executive Director of Rio Tinto engineering and construction projects to Exploration and Rio Tinto Aluminium Smelter contested hearings and trials in Australian State Development. Alternative Director of Rio Tinto and Federal Courts (and to contested appeals to Aluminium. Company Secretary and General appellate courts, including, the State Courts of Counsel of Rio Tinto Aluminium Smelter Appeal, the Full Federal Court and the High Court Development, Rio Tinto Exploration, Sunshine of Australia) and in superior and appellate courts Gas and Blue Energy. Secretary of the in London (including, the High Court of Justice, Operating Committee of the Sonoma Coal Joint the Court of Appeal and the Supreme Court and, Venture. previously, the House of Lords and the Privy Council) and other overseas jurisdictions Reviewed reports and announcements to the (including, the European Court of Justice). Australian Securities Exchange (ASX). Ensured Undertook the taking of evidence on commission compliance with all exchange listing, reporting on behalf of United States Courts. Managed and continuous disclosure requirements. arbitration (including ICC and LMAA arbitration in London), case appraisal, expert determination Additionally advised on the requirement for, and and other alternative dispute resolution the form and content of, expert reports under processes, as well as having conducted, and ASX Listing Rules and Regulatory Guides, represented parties at, mediations of large including prospectus reports, and reports on commercial disputes. Prosecuted and defended transactions involving process plant assets all manner of interlocutory procedures, and the requiring shareholder approval. taxation and assessment of contested legal Negotiated and documented share sale and costs. purchase agreements in relation to entities Successfully pursued and defended equitable holding process plant assets, and asset sale and remedies, including Mareva injunctions and purchase agreements in relation to direct Anton Piller orders, as well as specialised process plant assets. processes and procedures, such as tracing, in Stakeholder Liaison litigation in Australian and overseas jurisdictions. Advised Comalco in relation to prolongation and Represented various stakeholder interests on disruption claims by contractors. large scale engineering project joint venture operating committees. Advised Comalco Extruded, Fabricated, Foundry and Rolled Products Divisions in relation to Lobbied governments at senior executive and prolongation and disruption claims. ministerial level, and prepared and presented submissions to government on engineering and Advised Western Metals in relation to contractor’s construction issues. claims.
Represented Sandvik in relation to customers’ contractual claims litigated in the Queensland Supreme Court and which were successfully resolved on acceptable commercial terms at mediation.
Advised principals to engineering and construction contracts in relation to subcontractor’s charges given under the Subcontractors’ Charges Act 1974 (Qld).
Advised principals to engineering and construction contracts in relation to adjudications under the Building and Construction Industry Payments Act 2004 (Qld).
Advised Comalco and Sonoma Coal on the appropriate assessment of levies on construction and maintenance work under the Building and Construction Industry (Portable Long Service Leave) Act 1991 (Qld) and managed litigation challenging assessments resulting in reported Supreme Court decisions. Publications and Presentations
‘Project Study: Integrating Technology Transfer in Major Construction Projects’, PMINZ Conference, Wellington, 2001.
‘EPC Contracts Master Class’, Abu Dhabi, Kuala Lumpur and Vung Tau, 2014, Johannesburg, 2015.
‘EPCIC Contracts Master Class’, Singapore, 2014.