Discussion Paper
SOIL REMEDIATION FACILITIES
April 2012
SUMMARY
1.
There is no clear State Government policy around the need for and appropriate siting of soil
remediation facilities in Victoria. Consideration of such facilities has proceeded in fairly
'ad hoc' manner through individual commercial decisions, without any overarching or
coordinated recommendations from the State. A clear policy directive on what kinds of
sites or locales are considered appropriate for such facilities is yet to be issued.
2.
There are tensions between the EPA Works approval system and planning permit system
with regards to the determining the location of such facilities.
3.
Innova has applied and been issued with a works approval by the EPA under the
Environment Protection Act 1970 (EP Act) (WA66832) on 10 May 2011. The works
approval has now been appealed to VCAT by Renex Group Pty Ltd (Renex), and has been
listed for a combined hearing with the planning application scheduled on 12 November
2012.
4.
Innova has applied to Hobson Bay City Council for planning permit application for a soil
remediation facility located within the State significant Altona Petrochem complex
precinct. The Council considered this application on 22 March 2012 and determined not to
support the proposal for the following reasons.
a)
The proposal does not meet the following requirements of the SPPF within the
Hobsons Bay Planning Scheme:
Clause 13 (Environmental Risks)
Clause 18 (Transport)
Clause 19 (Infrastructure)
b) The proposed use is contrary to the vision, objectives and strategies of Clauses 21.092 and 22.02 of the Hobsons Bay Planning Scheme as the proposed use will not result
in a high amenity Environment.
c) The proposal fails to comply with the purpose of the Special Use 3 Zone.
d) The proposal fails to comply with the objectives of the Industrial Land management
Strategy 2008.
e) The proposed building works will adversely affect the amenity of nearby residential
areas.
f) The proposal will lead to traffic problems in Kororoit Creek Road.
g) The granting of a permit would prejudice the proper future planning of the area.
h) The proposed use is not consistent with the orderly planning of the area.
This matter will also be heard before VCAT on 12 November 2012.
5.
In the circumstances, where there are a number of facilities being progressed in Victoria,
but there is very little clear direction about the demand for and appropriate siting of soil
remediation facilities and the permit application is refused and the decision appealed, the
Council is now making an application to the Minister for Planning to have the permit
application VCAT appeal and the VCAT appeal against the works approval called-in, and
considered by an Advisory Committee.
BACKGROUND
6.
Although there is no published policy relating to the location of soil remediation facilities,
EPA management has expressed a view that these facilities should be located in strategic
locations in the east, west and north of the city.
7.
The current proposed facilities are located in South East at Dandenong (Renex and SITA),
the North West at Brooklyn (Veolia) and in the West at Altona (Innova).
8.
Innova lodged a planning permit application with Hobsons Bay City Council which
proposed to establish a soil remediation facility on the Dow Chemical Site in the State
significant Altona Petrochemical Complex area at 541-583 Kororoit Creek Road, Altona.
The proposal is to treat soil contaminated with hydrocarbons and organic compounds to
enable re-use instead of disposal to landfill. The facility is intended to accept contaminated
soil from the Dow property, other petrochemical industry sites in the Altona Petrochemical
Complex and other locations from around Melbourne1. Hobson Bay City Council has
determined not to support the Innova planning permit application on 22 March 2012 for the
following reasons:
a) The proposal does not meet the following requirements of the SPPF within the Hobsons
Bay Planning Scheme:
Clause 13 (Environmental Risks)
Clause 18 (Transport)
Clause 19 (Infrastructure)
b) The proposed use is contrary to the vision, objectives and strategies of Clauses 21.09-2
and 22.02 of the Hobsons Bay Planning Scheme as the proposed use will not result in a
high amenity Environment.
c) The proposal fails to comply with the purpose of the Special Use 3 Zone.
d) The proposal fails to comply with the objectives of the Industrial Land management
Strategy 2008.
e) The proposed building works will adversely affect the amenity of nearby residential
areas.
f) The proposal will lead to traffic problems in Kororoit Creek Road.
1
Innova Soil Technology Pt Ltd v Hobsons Bay CC [2010] VCAT 1658 (7 October 2010), para 14 - this
decision related to an application for declarations regarding the proposed soil remediation facility.
g) The granting of a permit would prejudice the proper future planning of the area.
h) The proposed use is not consistent with the orderly planning of the area.
9.
Innova has applied and been issued with a works approval by the EPA under the
Environment Protection Act 1970 (EP Act) (WA66832) on 10 May 2011. The works
approval has been appealed to VCAT by a competitor, Renex Group Pty Ltd (Renex). A
combined VCAT hearing with the planning application matter will now be heard on 12
November 2012.
STRATEGIC AND POLICY CONTEXT
Introduction
10.
11.
12.
2
Until recently Victoria has not had any permanent stationary facilities to treat contaminated
soil by thermal treatment technology. Such facilities (both stationary and mobile) have
been used in other States and mobile facilities have been used on some remediation projects
in Victoria. There are now at least four stationary thermal treatment facility projects in
Victoria. Two of these projects have been given the required regulatory approvals,
namely:2
10.1
The Renex, Dandenong South facility (Renex Facility); and
10.2
The SITA, Taylors Road, Dandenong South facility (SITA Facility).
In addition, the following projects are currently in the process of obtaining the required
approvals:
11.1
The Veolia Environmental Services, Brooklyn proposal (Veolia Proposal); and
11.2
The Innova proposal in Altona (Innova Proposal).
Notwithstanding the recent approvals of the Renex Facility and the SITA Facility, there is
currently no clear strategic direction in Victoria regarding the need and establishment of
soil remediation facilities. However, some guidance can be obtained from previous Panel
Reports and VCAT decision on the existing proposals, and from more general strategic and
policy publications on the management of hazardous waste in Victoria.3
Renex Group Pty Ltd v Greater Dandenong City Council [2010] VCAT 1397 (18 August 2010), Panel Report
for combined Amendment C125 and Planning Permit Application 2010/013898 dated 1 August 2011, SITA
Australia Pty Ltd and PWM (Lyndhurst) Pty Ltd v Greater Dandenong CC [2007] VCAT 156 (5 February
2007).
3
Such as the Panel Report for combined Amendment C125 and Planning Permit Application 2010/013898 dated
1 August 2011, Renex Group Pty Ltd v Greater Dandenong City Council [2010] VCAT 1397 (18 August 2010),
SITA Australia Pty Ltd and PWM (Lyndhurst) Pty Ltd v Greater Dandenong CC [2007] VCAT 156 (5 February
2007), Victoria's Towards Zero Waste Strategy (2005), the Metropolitan Waste Resource Recovery Strategy
Plan (DSE, March 2009), the Hazardous Waste Siting Advisory Committee Report (March 2010), and the
Hazardous Waste Consultative Committee Final Report (April 2000).
Relevant policy publications
13.
14.
As indicated above, there is currently no overarching policy or clear strategic direction in
Victoria regarding the need and establishment of soil remediation facilities. However,
since the early 1990s, the treatment and management of hazardous waste has been the
subject of many Government-driven initiatives, which have led to the development of a
general waste management strategy which focuses on:

The waste hierarchy (avoidance of waste, and re-use or recycling where
avoidance cannot be achieved);

Storage, containment or landfilling of hazardous waste as a last resort option; and

Focus on stewardship and cradle to grave responsibility for waste.
In absence of a more detailed strategic guidance in relation to soil treatment facilities, the
Municipal Association of Victoria (MAV), Hobsons Bay Council and other bodies have
called for a State-wide review of the siting and operation of soil treatment facilities. The
MAV made the following resolution at its State Council meeting on 28 October 2011:
'That the Municipal Association of Victoria calls on the State
Government for a statewide review of the siting and operation of
permanent and semi-permanent soil treatment facilities with a view to
establishing a policy that identifies appropriate sites and
environmental performance for these facilities, and processes to
ensure ongoing independent audits and reporting mechanisms to the
regulators and the community'.
15.
4
Hazardous Waste Consultative Committee (HWCC)
15.1
In February 1999, the Victorian Government established the HWCC to advise on
the development of an industrial waste management policy with the EPA.
15.2
The waste management strategy developed by the HWCC included a policy to
reduce the amount of waste going to landfills which included diverting
contaminated soil to specialist treatment facilities.
15.3
The HWCC issued a report dated April 2000 (HWCC Report) which made
various recommendations about the treatment of hazardous waste in Victoria,
including in relation to the establishment of soil remediation facilities and criteria
for the siting of and buffer distances from hazardous waste facilities.
15.4
The HWCC Report concluded that the concept of waste disposal needed to be
replaced with a system focussed on waste avoidance and reuse, recycling and
energy recovery, and that landfilling of hazardous waste should be "phased out".4
15.5
The HWCC Report identified that in 1998 contaminated soil constituted 35% of
all the hazardous waste going to landfills, primarily as a result of the
Hazardous Waste Consultative Committee - Final Report, April 2000, page 17.
redevelopment of contaminated sites,5 and identified that the introduction of soil
contamination facilities would substantially reduce the amount of hazardous
waste going to landfills in Victoria. The HWCC report therefore recommended
that the Government encourage and facilitate the establishment of appropriately
sized, designed and located soil remediation facilities to maximise opportunities
for diversion of contaminated soil into legitimate forms of reuse or storage.6
15.6
16.
5
The HWCC Report also specified siting criteria and buffer zones for hazardous
waste facilities. The HWCC recognised that the siting of hazardous waste
facilities should follow a selection process based on the principles of leadership
by the State Government, an expression of interest process for the private sector
and strong stakeholder and community engagement in the selection of
appropriate sites.7 The HWCC also concluded that buffer zones between
hazardous waste facilities and sensitive uses were crucial to protect safety and
amenity, and suggested a buffer zone of up to 2 kilometres may be required for
soil recycling facilities.
Government Response to HWCC
16.1
The Government published a response to the HWCC Report in December 2000
(Government Response), which accepted the HWCC Report recommendations
with some qualifications, and approved the phasing out of landfill for hazardous
waste and the development of safe and effective alternative facilities. Facilities
for soil recycling were designated as a priority.
16.2
However, the Government specified that while it agreed, in principle, with the
phasing out of landfilling of hazardous industrial waste, this "phasing out" was
only to occur when certain conditions were met, namely, when alternative
facilities were available, and conditions were such that there would be no
unacceptable short term consequences arising out of the change.
16.3
The Government accepted the HWCC buffer zone recommendations with the
proviso that appropriate site-specific risk assessments might lead to variations of
the buffer zones in specific situations.
16.4
The relevance of the HWCC Report and Government Response were quested by
the Tribunal in SITA Australia Pty Ltd and PWM (Lyndhurst) Pty Ltd v Greater
Dandenong CC [2007] VCAT 156 (5 February 2007) (which related to an
application to amend the permit to remedy an issue regarding legal interpretation
of permit conditions for the Lyndhurst facility). The Tribunal held that the
HWCC Report and Government Response were of 'limited relevance' to the
Lyndhurst facility, as the conditions specified in the Government Response did
not yet exist, and commented that the report is of an advisory nature only.8
Hazardous Waste Consultative Committee - Final Report, April 2000, page 25.
Hazardous Waste Consultative Committee - Final Report, April 2000, page 28.
7
Hazardous Waste Consultative Committee - Final Report, April 2000, page 39.
8
Paragraphs 139 to 147.
6
17.
18.
Industrial Waste Management Policy (Prescribed Industrial Waste) (IWMP)
17.1
The IWMP was developed by the EPA in close consultation with the HWCC and
takes into account the key recommendations of the HWCC. The IWMP was
adopted by the Government in December 2000.
17.2
The IWMP established the "waste management hierarchy" which informs all
policy and regulations in relation to waste management in Victoria. The waste
management hierarchy sets out the order of preference for waste management
with an overall goal of reducing waste in Victoria in the following order:
avoidance, re-use, recycling, recovery of energy, treatment, containment and
disposal.
Hazardous Waste Siting Advisory Committee (HWSAC)
18.1
Following its acceptance of the HWCC recommendations, in March 2001, the
Government established the HWSAC, to specifically advise the Government on
the siting for new hazardous waste and treatment facilities in Victoria.
18.2
HWSAC accepted and reproduced the siting criteria and buffer zones
recommended by the HWCC.
18.3
HWSAC recommended a three step process to phase out hazardous waste going
to landfills, the first stage being to establish soil recycling facilities. HWSAC
explained the process for siting these facilities should be as follows:
'Expressions of interest from industry or other bodies will be sought
and, after extensive consultation and assessment, a short list of
potential sites will be prepared for Ministerial consideration.
Applicants who successfully reach the approved short list will then
need to proceed through the normal statutory processes, including
substantial consultation processes, before final approvals are given'9.
[Emphasis added]
18.4
19.
Victoria’s Towards Zero Waste Strategy (Department of Sustainability and Environment,
2005) (TZW) and Metropolitan Waste Management Group (MWMG)
19.1
9
To the Councils’ knowledge, the recommended consultation process has not been
implemented, and State policy in this area has not progressed substantially since
these investigations in 2002. The siting of soil remediation facilities has instead
proceeded in fairly 'ad hoc' manner through individual commercial decisions,
without any overarching or coordinated recommendations from the relevant
Ministers.
TZW seeks to minimise waste and maximise recycling opportunities. It sets
goals for solid waste management from all sectors, including a commitment to a
target of zero hazardous waste to landfill by 2020.
Major Projects Victoria, Hazardous Waste Siting Project - Working towards a cleaner, safer future for
Victoria, 2002.
19.2
TZW is guided by three objectives:

to generate less waste;

to increase the amount of materials for recycling and reprocessing; and

to reduce damage to our environment caused by waste.
19.3
As part of the implementation of TZW, the State Government developed a
partnership with Local Government, and in 2006 established the MWMG. The
MWMG delivered the Metropolitan Waste Resource Recovery Strategy Plan
(DSE, March 2009) (Metro Plan) which builds on the policies established in
TZW. The Metro Plan aims to facilitate the transition towards zero hazardous
waste to landfill by placing an emphasis on all waste streams for reuse and
recycling by 2012. Whilst the Metro Plan does not directly identify soil
remediation facilities, it does encourage a reduction in the number of landfills in
Victoria, and encourages exploration of opportunities for producing commodities
(such as remediated soil that can be re-used) from recycling processes.
19.4
In keeping with the TZW objectives, the Government has progressively
increased landfill levies, providing a financial incentive to minimise the
generation of waste, as well as sending a signal to industry that the Government
supports efforts to develop alternatives to disposal to landfill, such as safe reuse
alternatives. Furthermore, the Government has tightened regulatory controls on
hazardous industrial waste through the Environment Protection (Industrial Waste
Resource) Regulations 2009.
EPA publications
20.
There is no published strategic assessment by DPCD or EPA on the need for soil
remediation facilities (based on estimates of likely contaminated soil volumes), the
location, siting and operation and performance of these facilities.
21.
The EPA has recently published the following relevant documents:
22.

Industrial Waste Resource Guidelines 622 - soil remediation technologies in
Victoria; and

Information bulletin - Thermal Treatment Technologies (Publication 1402,
September 2011).
The first of these publications sets out remediation options for contaminated soils and soil
remediation technologies that are currently available in Victoria. In summary, as an
alternative to disposal of landfill, contaminated soil can either be remediated in situ (soil is
left in place), ex situ (soil is removed from the ground to a treatment area/plant onsite) or
offsite (soil is transported to a treatment facility offsite). Available treatment technologies
include:

Bioremediation - composting offsite or
phytoremediation;
in situ or ex situ onsite or
23.

Thermal treatment - direct-fired thermal desorption (mobile, ex situ);

Enhanced thermal conduction process (ex situ);

Electro-thermal dynamic stripping process (in situ);

Chemical (reduction/oxidation or redox);

Physical/chemical (soil washing and soil immobilisation);

Physical (soil vapour extraction).
The EPA's Information Bulletin identifies four subcategories of thermal treatment
technologies (TTTs):

Direct and indirect fired thermal desorption;

Enhanced thermal conduction;

In situ thermal remediation; and

Indirect heated thermal desorption.
24.
The first three technologies are currently available in Victoria in temporary or mobile units
usually brought to the site for a particular remediation project. Several sites in Victoria
have been remediated using TTTs in recent years.10
25.
Regulation 11 of the Environment Protection (Industrial Waste Resource) Regulations
2009 provides that the EPA may provide for the classification of industrial waste as
prescribed industrial waste and the classification may determine the management option for
the particular industrial waste or prescribed industrial waste. On 21 June 2011 the EPA
made a classification published in the Victoria Government Gazette (No. S195) which
includes a definition of 'contaminated soil' which is defined to mean 'soil or a mixture of
soils that can be classified as Category A, B or C Contaminated Soil as provided for under
the Regulations and defined in the Industrial Waste Guidelines (published in Special
Gazette No. S177 on 9 June 2009). The classification provides for management options in
relation to contaminated soil which states as follows:
'The only offsite management options for contaminated soil are:
10
(a)
treatment, to remove, beneficially re-use or destroy any or
all contaminants, at a site licensed or authorised by the
Authority; or
(b)
where such treatment is not available, disposal at a site
licensed by the Authority to accept that contaminated soil.'
The Renex project is a TTT which uses indirect heated thermal desorption known as pyrolysis rotary kiln
technology. This project has a planning permit and works approval and is predicted to have a capacity to treat
around 70,000 tonnes of contaminated soil per year (and can store up to 40,000 tonnes). The SITA proposal is a
direct fired thermal desorption technology. The Veolia proposal in Brooklyn also appears to be proposing to use
indirect heated thermal desorption vacuum based technology.
26.
The EPA website states that EPA will enforce this classification by prohibiting the
acceptance of contaminated soils to landfill, when facilities are developed that can realise
opportunities for reuse-recycling, recovery of energy and treatment.11
Assessment of other projects
27.
As noted above, the SITA Facility and the Renex Facility have recently been given
planning and works approval.
28.
SITA, Taylors Road Facility - Dandenong South:
28.1
This facility was the subject of a Panel Report dated 1 August 2011 which
considered the combined Planning Scheme Amendment C125 and planning
permit application 2010/013898 (SITA Panel Report), authorising the
development of a soil treatment facility at SITA's Dandenong site.
28.2
The SITA Panel Report considered the strategic issues in relation to soil
remediation facilities. The SITA Panel Report included consideration of the
following matters12:
28.3
29.
Whether there is a need for the proposed soil remediation facility;

Whether the facility is supported by State and local policy in the
Planning Scheme and, in weighing up these policies, whether a net
community benefit will be achieved;

Whether there will be any significant adverse amenity and
environmental impacts;

Whether the buffer distance from the nearest sensitive use is adequate;
and

What permit conditions will be appropriate if the application is
approved.
The Panel concluded that in that instance the proposal to rezone the land to an
industrial zone and use the land for a soil processing facility was consistent with
State and local planning policy and would result in a net community benefit, and
recommended that the Amendment and planning permit application be approved.
Renex Facility - Dandenong South:
29.1
11

In Renex Group Pty Ltd v Greater Dandenong City Council [2010] VCAT 1397
(18 August 2010, the Tribunal granted a permit allowing the development and
use of land for an integrated waste treatment and resource recovery facility on an
EPA Industrial Waste Resource Guidelines - http://www.epa.vic.gov.au/waste/industrial-wasteguidelines.asp.
12
SITA Panel Report, page 26.
industrially zoned site. The facility is the first large-scale, permanent,
contaminated soil treatment facility in Victoria.
29.2
In that case, the Tribunal concluded that:

The site was suitable for the proposed use, being industrially zoned
and appropriately distanced from any sensitive uses;

The buffer zones were adequate to prevent any adverse impact on
sensitive receptors;

The quality of environmental controls and treatment proposed for the
facility would ensure that there would be no perceived or actual interindustry conflict with adjacent facilities.
Siting and buffer distances
30.
The question of where hazardous waste facilities generally and soil remediation facilities
specifically should be sited, and what buffer distances should be maintained between these
facilities and sensitive uses have been considered by the HWCC, HWSAC and TZW and is
a question canvassed in both the SITA Panel Report and the Renex decision.
31.
Despite this commentary, a clear policy directive on what kinds of sites or locales are
considered appropriate for such facilities is yet to be issued. Limited guidance can be
found in the HWCC and HWSAC siting criteria and in the Hazardous Waste Siting Project
which was undertaken by Major Projects Victoria during the period of 2000 to 2002.
32.
In the Renex case, the Tribunal found that the proposed site, zoned Industrial 2, was an
appropriate location for the development of a soil remediation facility. The Tribunal noted
that the site was suited for such a development as it was within the central core of the
Industrial 2 Zone which provided the greatest buffers to sensitive uses and that the
proposed development was compatible to other developments in the vicinity of the site.
The Tribunal asked the rhetorical question - if such a facility were not located in this zone
where else could it be located?13
33.
The SITA Panel approved the proposed rezoning of the site from Farming Zone 1 to
Industrial Zone 1, finding that the location of the proposed facility and suggested zoning
was appropriate as the facility would not result in unacceptable amenity impacts,
particularly having regard to the nearest sensitive use and residential zone.
State and local policies
34.
13
As with the assessment of any proposed use and development of land, the decision-maker
must assess whether a proposal to establish a soil remediation facility is supported by State
and local policy in the Planning Scheme and, in weighing up these policies, whether a net
community benefit will be achieved by allowing the facility.
Renex Group Pty Ltd v Greater Dandenong City Council [2010] VCAT 1397 (18 August 2010), page 8.
Options
35.
The Panel commented in the SITA Panel Report that a combined works approval, planning
scheme amendment and planning permit process adopted in that case (including joint
advertising under section 20AA of the EP Act) would have been more suitable for
consideration by an Advisory Committee (rather than the Panel consider 'planning issues'
and the EPA conduct a separate works approval assessment). The Panel stated (at pages 2122) that the combined process,
'made it difficult for the Panel hearing because it was not clear which
matters were relevant to land use planning and which matters are
relevant to the works approval ...
In the Panels' view, the establishment of a Advisory Committee with
terms of reference that required consideration of both land use
planning and works approval issues would have provided for a more
understandable, consultative and transparent process ...
Further, it appears to the Panel of the nature of the submissions that
addressed both planning and works approval issues reflect a
community expectation that there would be an opportunity for both
approvals to be assessed concurrently.'
36.
Hobson Bay City Council has now considered and determined the Innova planning permit
application. The applicants lodged an appeal against the Councils’ failure to determine this
application within the 60 day statutory time frame. The Council contested the validity of
this appeal as it believed the 60 day time limit had not expired. VCAT recently determined
to set aside a decision on the 60 day time frame instead opting to have both the Works
Approval and planning application refusal heard together on 12 November 2012.
37.
In the circumstances, where there are a number of facilities being progressed in Victoria,
but there is very little clear direction about the demand for and appropriate siting of soil
remediation facilities and the permit application is refused and the decision appealed, the
Council now considers an application to the Minister for Planning to have the permit
application VCAT appeal and the VCAT appeal against the works approval called-in, and
considered by an Advisory Committee the appropriate and responsible course of action.
38.
The Minister for Planning can call in:
39.

Appeals to VCAT against decisions made under the Planning and Environment
Act (i.e. decisions on permit applications) pursuant to section 58 of Schedule 1 of
the VCAT Act;

Section 97B of the EP Act empowers the Minister for Planning to "call in" a
planning permit decision if the Minister believes the application raises a major
policy issue. Section 97C provides that a responsible authority may request that
the Minister determine an application; and
Appeals to VCAT against decisions made under planning enactments other than the
Planning and Environment Act pursuant to section 59 of Schedule 1 of the VCAT Act.
“Planning enactments” are defined in section 2 of Schedule 1 to the VCAT Act as including
the Environment Protection Act. A VCAT appeal against the works approval can be called
in by the Minister for Planning. However, this can only occur if:
40.

The Minister administering the other enactment (e.g. the Minister for
Environment in the case of the Environment Protection Act) considers that the
proceeding raises a major issue of policy; and

The Minister administering the other enactment makes a formal request to the
Minister for Planning to call the proceeding in.
In conclusion the Council respectfully requests the Minister for Planning and Minister for
Environment to consider the direction and options outlined in the Paper and support the
establishment of an Advisory Committee to address this significant strategic policy matter.