Upset conditions and management of contaminant variability

1. The Renex case is inextricably tied to the expert evidence about the purported inability of the Innova process to deal with upset conditions arising from variability in contaminant species and / or concentrations. As we have set out earlier, such a case relies in part on the limited capacity of Innova's process system and in part on the capacity of industry practices for the sampling and testing regimes of contaminated soil to characterise conditions to an acceptable level.
2. In respect to the capacity of the Innova treatment system, it seems to us that there is no argument from Innova that its system is designed to deal with soils contaminated by a limited species of organic compounds. The limits it has proposed and the EPA has adopted are derived from prior Proof of Performance testing and use of its unit in specific contaminated site remediation campaigns involving this limited range of organic contaminants. This regime has also defined the limits to be applied to the concentrations of these contaminants. Not surprisingly Innova does not challenge these limits being applied through the works approval or anticipated licence conditions.
3. It is apparent from the testing and field works undertaken by Innova that it can deal with the regime of compounds being proposed for treatment. Any expansion of the list of contaminant compounds or concentrations would be subject to similar Proof of Performance testing under a regime overseen by the EPA. We rely on such a regime to run its proper course before any further approvals are given.
4. Messrs Acharya and Callaghan express concerns about variability of contaminant concentrations and/or the undetected presence of compounds or metals that the Innova facility was not designed to deal with. Much evidence was based around the example of mercury, a particularly problematic compound because of its toxicology and ready ability to migrate in its vapour form.
5. We first note that these witnesses are expert in thermal process engineering but neither has extensive or recognised experience with sampling regimes or assessment of contaminated soils, particularly under the Victorian regime. Their opinions are based to greater or lesser extents on their opinion of soil sampling guidelines and not on a working knowledge of assessment or soil cleanup campaigns. In contrast, Dr Nadebaum is an accredited auditor of contaminated land in Victoria[9] with extensive experience in soil contamination assessment and remediation campaigns. He gave evidence on the processes adopted in Victoria (and more generally applied in Australia) for assessing and characterising contaminated soil.
6. Dr Nadebaum's evidence addressed the specific issue of mercury notably that this contaminant is not widespread in the environment, being limited to specific site uses or industry practices. From his evidence, we also adduce that contaminated soils assessment programs are designed to identify the range of compounds that may be potentially on a site. Sampling and analysis programs are directed to testing for target compounds as well as wider screening to address uncertainties in information. Staged assessment programs are applied to refine and more intensively characterise soil conditions. In his view, the adopted industry practices lead to a high degree of confidence in characterising soil conditions.
7. No better example of this can be seen than from the material tabled about the Dow land itself, in the assessment of the Innova site. Renex claims that the detection of mercury hotspots on this site during a soil assessment program vindicates its concerns about sporadic variability, and the inability to screen out contaminants that the Innova plant is not designed to cope with. However, we observe that the very fact that such a site assessment identified the mercury and other contaminants supports the evidence of Dr Nadebaum and vindicates the position of Innova and the EPA. The detection of mercury on the Innova site came as no surprise to Dr Nadebaum given the industrial history of the site. He would have expected that such a compound be part of a targeted assessment campaign for this land.
8. We find Dr Nadebaum's considered approach to this issue to be persuasive. It is based on many years experience as a contaminated site auditor. We agree that the information relied on by Renex in fact highlights the value and veracity of assessment processes adopted in Victoria.
9. We are further reassured by evidence that in remediation campaigns, broad spectrum testing of soils occurs in order to characterise waste against EPA guidelines in compliance with the regulated for transport and disposal of such material.[10] This is no different to current requirements for the characterisation and disposal of soil to landfills.
10. The overall conclusion to be drawn from Dr Nadebaum's evidence is that by the time a batch of soil reaches the Innova facility, there would be a low risk of unidentified contaminants being present, and the variability of the contaminant concentrations would be characterised to a high degree of confidence.
11. Innova's soil receipt and management regime will include further sampling of soil to verify conditions and assist in blending to 'even out' feedstock properties such as calorific values. This process is one that Mr Acharya concedes is accepted, indeed a necessary practice for thermal treatment plants. Renex would need to manage its feedstock similarly even though its indirect thermal method has capacity to cope with a wider range of calorific variation.
12. We are satisfied that the combination of site characterisation practices adopted in Victoria, in conjunction with Innova's material receipt and assessment regime, addresses the risk of contaminant variability to the levels consistent with what are acknowledged to be accepted industry best practice.
13. In addition to the materials handling and assessment regime, Innova relies on its processes for dealing with up-set conditions as an added step in addressing uncertainties in soil contaminant species or loads. The response system comprises of continuous monitoring of stack emissions connected to PLC systems that will shut down operations across the system, from feedstock input to burner operations, release of soil contained within the system for retreatment and injection of activated carbon into the gas stream prior to the baghouse filter. It is put to us that the rapid response of such a system will result in small volumes of soil being dumped out of the system, which can be readily placed back into the contained building for retreatment, thereby limiting the exposure or release of vapours and dust.
14. We accept that the system contains sufficient backup to deal with upsets should such events occur. The small volumes of soil being put through the system, a fact Renex criticises on the one hand, limits the degree of exposure likely from a rapid release of part treated soils. Further the ability to inject activated carbon into the waste stream and capture such material in the baghouse filter provides another level of response to gas flows that might be generated under upset conditions.

1. Mr Acharya and Callaghan are critical of Innova's proposal to minimise waste by mixing filtrate from the baghouse filter as well as particulate that settles from gas stream post the conversion chamber with treated soil at the pugmill. They contend this raises the risk for cross contamination of the treated soil.
2. This might be so if the particulates were untreated. However Drs Forster and Nadebaum both highlight that these particulates are collected after the critical desorption and conversion phases. If these particulates were contaminated, then the system would not be performing to its specifications and would be shutdown by the real time monitoring. Their opinion, which we accept, is that the process in fact assists in minimising waste in a low risk manner given the treated nature of the particulates. Dr Foster's evidence is that if carbon injection or beds were used for additional treatment of the flue gas, as advocated by Renex, the spent carbon would add an additional waste stream.
3. The results of the prior testing and remediation campaigns support the evidence that there is a low risk of cross contamination.
4. Assertions that the particulates and dust may contain contaminants such as mercury because they are part of undetected components of the feedstock return to the issue of contaminant variability. We have addressed this issue and find the level risk of such variability is not substantiated.
5. The evidence from the past operation of Innova's system as well as the evidence of Dr Nadebaum and Forster persuades us that there is a low risk of cross contamination of the treated soil by recycling baghouse filtrate and entrained particulate floc. The confidence in this process of recycling is strengthened by the fact that the treated soil will be subject to verification testing before movement off-site. It would seem counter-intuitive to risk cross contaminating the soil and incur the cost and effort of retreating soils if there was such a risk.

Heat and energy efficiencies, green house gases and eco-efficiency

1. Renex claims that the Innova facility fails to be energy or greenhouse efficient because:
   • the energy source for the conversion chamber is natural gas rather than from the waste;
   • it does not pre-dry the soil, therefore a component of the desorber effort is lost to drying, lowering its efficiency in stripping contaminants per unit of energy consumed;
   • the use of co-current heating rather than counter-current is less efficient; and
   • the use of the fast quench system limits the degree of heat exchange that could otherwise occur and so opportunities to capture and re-use heat energy is lost.
2. Renex draws on comparisons with its own proposed facility to demonstrate its claims about the level of energy and greenhouse gas efficiencies that can be achieved.
3. None of the above points raised by Renex persuades us that the Innova facility is not sufficiently eco-efficient to warrant a finding that it is inconsistent with the SEPP (AQM).
4. We recognises that the fast quenching process will limit the ability for heat exchange and energy recovery. However, the proposed technology does take advantage of, and will apply technology Innova has developed to capture and re-use heating to assist in pre-heating air. It would be incorrect to say that Innova's proposal is devoid of any heat and energy recovery systems.
5. The comparison with the Renex mode of operation highlights that the its mode of operation will use more heat exchange systems to preheat and drive the desorber unit. We accept that this is an efficient use of energy. The Renex system also uses co-burning of waste to generate heat for the oxidiser / converter chamber. This also is an advantage in greenhouse gas terms if estimated on savings from external fuel sources. However, the cost of this arrangement is felt in downstream management of the flue gas, which is considerably more complex and generates more waste than the Innova processes. As we have noted, and as this example demonstrates, by introducing different wastes into its process stream the Renex facility does not always align with the Innova facility. Direct comparisons are not always appropriate.
6. In respect to greenhouse gas emissions, Dr Forster's assessment highlights that, when all sources of such emissions are taken into account, including the conversion of the contaminants, the difference in greenhouse gas generation intensities per tonne of soil treated are so small as to be insignificant in meaningful terms.
7. For the following reasons, we do not agree with submissions or cross-examination put to Dr Forster that greenhouse gas emissions should discount those generated from the conversion of the waste and should not be considered on the basis of treated waste to units of greenhouse gas generated.
8. Firstly, it is necessary to set out that we agree with submissions that greenhouse gas emissions are one of the costs of treating the waste with the associated benefit of being able to recycle the soil. By necessity, conversion of hydrocarbon, chlorinated and other organic compounds will result in greenhouse gas generation. The generation of greenhouse gases is balanced by the achievement of other policy outcomes for waste and contaminated land management.
9. Also, it is undisputed that in thermal treatment and subsequent combustion of desorbed compounds, the waste stream will have insufficient calorific value to combust on its own. An auxiliary fuel source will nearly always be required.[11] Thus, it is correct to account for the auxiliary fuel source just as it is to account for the emissions of greenhouse gases from the destruction of the contaminants. Nowhere in the SEPP (AQM) is there a direction to distinguish between the sources of these emissions. The division of greenhouse gas generation between auxiliary fuel and conversion of organic contaminants is to our minds an artificial construct that has no policy support.
10. Thus in the test of greenhouse gas emissions, all emissions should be accounted for in the remediation of the soil, recognising as we set out earlier, that this is to be balanced against other benefits from such remediation activity. In accounting for the totality of greenhouse gas emissions in the test of eco-efficiency and best practice, we consider the appropriate measure to be the intensity of greenhouse gas emissions per mass of soil treated. The more soil that can be treated per unit of greenhouse gas emission, the more eco-efficient and compliant with policy the facility will be.[12]
11. Dr Forster's evidence shows that the Renex and Innova facilities on a tonne for tonne basis of waste treated, including the co-burning of waste as fuel by Renex, generate comparable greenhouse gas emission intensities. There is therefore little advantage to be gained between one technology over another in the test of best practice for greenhouse gas emissions.
12. In terms of energy efficiency and recovery, it is apparent from the evidence that the Renex facility has a greater degree of heat exchange and therefore energy recovery. It also utilises some waste as an energy source. However in achieving higher energy recovery, its gas stream cooling regime is more open to dioxin pre-cursor formation and reformation. Accordingly, downstream pollution control treatments of the gas stream includes activated carbon beds and baghouse filters that will generate material containing contaminants. The filtrates and spent carbon beds will require off-site disposal. There is therefore a higher degree of waste to landfill generated by the Renex system.
13. We should not be seen to be critical of the Renex facility. It has received approvals and it is what it is. However, this comparison serves to exemplify that which is contended by Innova and the EPA. Each system can be seen to have its balances and compromises in achieving destruction of contaminants, the recycling of soil and energy recovery, efficiency and process waste generation.
14. Thus while the energy recovery of Innova may be less than that of Renex, it is no reason to conclude it does not achieve eco-efficiency in compliance with the terms of best practice. The combination of the technologies produces the best practice outcome for the waste stream emission. The fast quench method lowers the risk of dioxin formation and the overall process has a very low potential of generating waste. Further, heat exchange opportunities are applied when appropriate for energy recovery in balance with managing the risk of dioxin formation. When viewed this way, we find the Innova approach to be applying best practice in its combination of eco-efficient technologies and processes to minimise the risks from emissions.

1. The case bought by Renex has proceeded, in part, on the basis that only its facility can demonstrate best practice and that Innova's operations fall short of the mark in comparison. Whilst best practice calls for a comparative approach, we do not agree that the two facilities necessarily operate in exactly the same industry sector, although there is overlap in that both apply thermal treatment to organically contaminated soils. Even if operating in the same sector, we do not accept that it follows that one technology prevails over any or all others. The definition of best practice requires us to consider the best combination of eco-efficient processes, technologies etc in the treatment of the emission to minimise the operations impact.
2. It follows from our assessment of the evidence that the Innova proposal couples existing or proven technology with emerging technology, some developed by it, to minimise the impact of the thermal desorption of organic contaminants from soil. We are satisfied that, in balancing the overall combination of technologies and processes etc, there are some neutral outcomes in heat exchange and energy efficiencies or no particularly special gains in green house gas emissions. The balance in favour of Innova's facility is the gains made in the lowered risks of dioxin formation within the treated gas stream and the absence of secondary generation of waste from the process.
3. We are persuaded that a suitable level of management is proposed to monitor the waste stream and respond to upset conditions that minimises the risk to the environment from such events.
4. On balancing these outcomes, we conclude that the intent of cl 19 of the SEPP (AQM) is achieved in terms of applying best practice in the management of the emissions from the Innova facility.

Will Innova achieve reductions in Class 3 Indicators to the 'maximum extent achievable' (MEA)?

1. The thermal treatment of organically contaminated soils containing hydrocarbons, PAHs and PCBs introduces the prospect of generating dioxins emissions. Dioxins (and furans) are terms applied to a range of poly-chlorinated compounds, some of which are carcinogenic, mutagenic and teratogenic. Dioxins are a Class 3 air quality indicator within the definition of the SEPP (AQM).
2. Dr Forster's evidence highlights that other Class 3 indicator species may also be present in emissions, such as arsenic, cadmium, nickel, PAHs (measured as benzo(a)pyrene equivalents), benzene and butadiene. It is fair to say that the particular focus of the technological evidence and cross examination has been on the reduction of dioxins in the emissions. We have considered the range of Class 3 indicators and the response of Innova's proposal to achieve reductions to the maximum extent achievable.
3. The SEPP (AQM) requires that a generator of emissions containing Class 3 indicators '... reduce those emissions to the maximum extent achievable'.[13] Within the SEPP (AQM), "maximum extent achievable" (MEA) is defined to mean:

...a degree of reduction in the emission of wastes from a particular source that uses the most effective, practicable means to minimise the risk to human health from those emissions and is at least equivalent to or greater than that which can be achieved through the application of best practice

1. There was much forensic and legal exploration before us about what MEA means, and the terms of its definition - e.g. what 'most effective' should be read to mean.
2. In our view and consistent with our understanding of what 'best practice' means, we have proceed on the basis that a purposive approach is to be applied to understanding MEA that avoids overly legalistic interpretations. The starting point in understanding the purpose of such a level of emissions reduction is the definition within the SEPP (AQM) and the supporting material within the explanatory notes, the latter helpfully referred to us by the EPA.
3. The explanatory notes sets out that:

The expectation for reduction of emissions of Class 3 indicators to the maximum extent achievable imposes a higher expectation for emissions reduction than the expectation for reduction of emissions of Class 1 and 2 indicators (which is through the application of best practice). Best practice reflects the best combination of eco-efficient techniques, methods, processes or technology that apply across an industry, whereas reduction to the maximum extent achievable focuses on what is most effective and practicable for an individual premises. This may include innovative and new approaches. Reduction to the maximum extent achievable may be equivalent to application of best practice within an industry, but it may also go beyond that.

1. The following relevant points arise from this explanatory information. Firstly, the focus of achieving MEA is on the 'particular source' of the Class 3 indicator emission at a particular premise. A comparative assessment is not required. Rather, the control measures are tailored to the specific source. The site-specific control measures need to be the most effective and practicable that can be achieved in those circumstances.
2. We agree with Renex that the word 'practicable' should be taken to mean that the reduction measures must be capable of being put into practice within the available capacity of the particular premise.[14] The definition does not require the reduction measures to be so severe as to be impracticable or go beyond the capacity of the premises. Thus there may be other measures of reduction that might be more effective, but if they can be demonstrated to be impractical or beyond the capacity of the facility then such measures need not be applied. This does not mean that a lesser standard of risk may be accepted, but the definition of MEA leads to a view that it is no good proposing a level of reduction if it cannot be effected or put into practice.
3. The second observation to be made is that MEA requires at least best practice to be achieved. The reliance on best practice as a minimum standard of reduction in emissions invites a comparator approach. However, even this comparison is qualified in MEA to what reduction in emissions are being achieved across an industry but not how this might be occurring at any one particular facility. The means of reduction must be the most effective and practicable for the individual facility and thus may not be comparable to other premises. Therefore, MEA does not require a comparative assessment of the means of reduction with specific facilities. This provides the flexibility for a proponent or manager of emissions to explore innovate and new approaches, consistent with the intent of the SEPP (AQM).
4. Thirdly, the focus of minimising the emission is on minimising the risk to human health. MEA does not seek an absolute reduction in emissions to non-detection, or a reduction in the risk level to zero. A comparator may well be necessary against relevant human health criteria in order to assess whether the risk is indeed minimised.
5. Returning to the definition in the SEPP (AQM), we also note that the opening words refer to 'a degree of reduction in the emission of wastes'. This wording also does not require an absolute reduction to no emissions of Class 3 indicators. The degree of reduction is to be that which is necessary to minimise the human health risk.
6. Drawing these threads together, we conclude that the test of whether MEA will be achieved requires an examination of:
   • what technology or combination of technologies is proposed to address potential emissions of Class 3 indicators.
   • What level of emissions constitutes a risk to human health and a comparison of the predicted emissions post treatment to assess whether the human health risk is minimised and to what extent it has been minimised.
   • whether further reductions in the class 3 indicator emission is practical and will be effective in reducing the risk to human health.
   • whether the reduction in emissions is greater than or the same as that achieved through the application of best practice in comparable industries.

1. As set out earlier, the thermal treatment of organic contaminants containing amongst other things chlorine, introduces the prospect of generating dioxins. This is true of the Renex plant as well as Innova's. Each proposal takes a different approach to managing the potential formation of dioxins and subsequent emissions treatment. We have addressed most of the technicalities of the Innova approach and comparative approach by Renex in our assessment of best practice. We do not intend to repeat that here.
2. In respect of the Innova processes we conclude from the evidence that:
   • the target ranges for thermal desorption and conversion are appropriate to minimise the generation of dioxin precursors and dioxin reformation under normal operating conditions.
   • Innova's management of soil blending will limit excursions outside the range of calorific values it is capable of treating and thus avoid upset conditions that might generate dioxins.
   • the fast quench method of cooling the gas emissions after conversion is a recognised method for minimising as much as possible the potential for formation of dioxins. The issue with rapid cooling within the incineration industry is not that it doesn't work in minimising dioxin, but rather how to consistently achieve sufficiently rapid cooling of the gas. Innova's fast quench method is an innovation that Dr Nadebaum states is central to the Innova facility. This was not disputed by any of the other experts, with Mr Acharya acknowledging it is an advancement over other practices in the direct fired thermal units in the United States.
   • Other safeguards could be set in place to further reduce dioxins, if present. However, there is a question as to how much residual dioxin will be present in the gas stream post fast quenching and therefore the additional health risk benefit there is in further treatment.
3. The core of Mr Callaghan's criticism of the Innova proposal is that other methods, such as those adopted by Renex to treat the gas flow before emission, are available. His opinion is that these should be applied to achieve the greatest possible reduction in dioxin emissions.
4. There is no dispute that the technology Mr Callaghan refers to is available. However the evidence of Dr Cowan is that this additional technology is unnecessary, as the degree of further reduction achieved by activated carbon beds (or other technology) would be so small as to be insignificant in addressing the risk to human health. His evidence is that additional treatment systems:
   • will only reduce extremely low emissions by values that are within the error margin of forecast emissions. There will therefore be no effective difference to risk levels.
   • will add to the complexity of the operation.
   • will result in the generation of a secondary waste stream from contaminated activated carbon or filters.
5. Apart from the proven benefits of fast quenching, he highlights that the Innova proposal includes particulate filtering and wet acid scrubbing that add to the removal of trace dioxins, if present. Injection of powdered activated carbon is proposed to address upset conditions.
6. We are persuaded by such evidence that the additional treatments advocated by Mr Callaghan will, on balance, achieve no additional human health risk benefits while generating possible issues from added complexity in the flue gas processing stream and from generation of secondary waste. The additional treatments are not, in our view, the most effective, practicable means to minimise a risk to human health.
7. Renex has been critical of evidence and the position of the EPA to adopt EU criteria for Dioxins as a default measure of MEA. We consider this criticism to be an unfair misapplication of the EPA's approach.
8. A clear purpose of achieving reductions in emissions to MEA, consistent with the purposes and intent of the SEPP (AQM) is to minimise the risk to human health. In seeking to minimise rather than achieve an absolute reduction in risk to zero invites assessment of what is the risk pre and post treatment of the emission stream. Using health risk and other criteria are accepted means of assessing whether and by how much such health risks have been addressed.
9. The SEPP (AQM) establishes design criteria for new sources of emissions under clause 10 and Schedule A. The design criteria are to be applied to predictive modelling of emissions undertaken in accordance with Schedule C of the SEPP (AQM).
10. The additional information under Schedule A relevantly highlights that:
    • Class 3 indicator design criteria (or a risk assessment pursuant to Clause 16) are used to 'ensure that any emissions remaining after application of appropriate control practices are managed in such a way that the beneficial uses of the Policy are protected'.
    • the design criteria applied to all relevant class 3 indicator includes an additional safety factor of 10 to the toxicity based criteria.[15]
11. Air quality modelling was undertaken in support of Innova's works approval application. Dr Cowan has provided an independent review of this assessment. It is Dr Cowan's evidence that the modelling work was undertaken in a manner consistent with Schedule C of the SEPP (AQM) and that a number of underlying assumptions about emissions rates derived from past Innova plant performance and modelling techniques has built in elements of worst case conservatism into the predicted ground level concentrations. Even with such conservatisms, the modelling indicates that Class 3 indicator emissions will result in ground level concentrations, one, two or three orders of magnitude below the SEPP (AQM) design criteria.
12. In respect to dioxins, Dr Forster's analysis of predicted emissions data indicates that Innova will be some two orders of magnitude lower (a safety factor of approximately 50) and Renex will be almost four order of magnitude lower (a safety factor of almost 1,000). While much is made by Renex of its ability to achieve a lower safety factor, we note that the evidence is also that the Renex predictions are based on a German facility built and tested in the 1990's. It is not based on performance testing of conditions under which it intends to operate. This is to be compared to data obtained from Innova's operations on cleanup campaigns targeting soils and contaminants of comparable constitution and concentrations to that proposed to be treated at its Altona facility.
13. If we were to undertake a comparative assessment for MEA, which we are not persuaded is necessary given our earlier view on this subject, we consider that the extent of reduction achieved by both plants demonstrates a reduction that is specific to each mode of operation. Both achieve MEA reductions in terms of minimising risk to human health from dioxins. Renex in our view relies on a more contemporary and complex treatment train of its emissions that arises in part from the its facility's risk of dioxin reformation in the heat exchange and cooling process it has adopted to achieve certain levels of energy recovery. Innova proposes a system with a differing risk of dioxin formation due to its rapid quench technology. The cost of this is less opportunity for heat recovery. Both systems have redundancies in the event of upsets.
14. By minimising the risk of dioxin emissions and minimising the risk to human health to the extent practicable for its facility, as demonstrated by the predicted ground level concentrations being well below SEPP (AQM) design criteria, we are satisfied that reductions to MEA are achieved.
15. Dr Cowan and other experts have also drawn upon international criteria to assess the Innova proposal. Principally this includes a European Union directive to achieve a dioxin emission of less than 0.1ng/m3.[16] This criteria has been adopted by the EPA to demonstrate MEA in so far as compliance with the most stringent criteria demonstrates minimal human health risks.
16. Both Renex and Innova indicate compliance with this criteria. The Renex works approval application indicates a compliance level of less than 0.1ng/m3 based on a predicted destruction efficiency of 99.996% for its proposed flue gas treatment train and feed input of not more than 0.05mg/kg. Innova's past proof of performance testing indicates dioxin emission rates of between one to three orders of magnitude less than the EU criteria, dependant on the chlorinated organic contaminant load in the feed. A worst reported case of 0.076ng/m3 was adopted for emissions modelling.[17]
17. The ability to exceed the strict EU criteria for stack emissions using the primary treatment of rapid quenching for the target contaminants adds weight to submissions and evidence that the Innova proposal satisfactorily address the requirements for dioxin emissions to be reduced to the MEA. It is important to highlight that complying with the EU directive is not of itself sufficient. As we have set out above, we have considered how this level is achieved - i.e. the efficacy of the proposed technology and risks inherent in that technology.
18. In returning to our breakdown of the means by which to assess whether MEA has been achieved, we draw from the above and other expert evidence that:
    • the Innova proposal comprises of converter temperature and residence time that the experts agree is consistent with recognised world's best practice for the destruction of organic compounds, including chlorinated compounds such as dioxins and pre-cursor compounds to the formation of dioxin. The next important phase is the cooling of the flue gas, which is completed by rapid quench. A reduction in temperature from approximately 800oC to less than 200oC in much less than one second is accepted as one approach in preventing dioxin reformation from any pre-cursors that might have developed in the converter. Given the low risk of pre-cursors forming in the converter and then the low risk of reformation from cooling we are persuaded that dioxin formation is minimised to the most practicable extent achievable in this process.
    • the SEPP (AQM) sets a target human health criteria for dioxins of 0.0037ng/m3, which is a health based criteria with an added safety factor of 10 applied by the EPA. The predicted ground level concentrations from worst case emissions rates of Innova's proof of performance testing, at 0.000007 ng/m3 is some 50 times less than this.
    • the experts do not dispute that the inclusion of activated carbon beds or catalytic filter bags would treat dioxins (and other contaminants) in the emission stream after cooling. However Drs Forster, Nadebaum and Cowan all argue that given the low concentrations already achieved by the Innova process and the low level of risk to human health, the additional cost, complexity and management issues arising from the use of such technology does not warrant the incrementally small reduction in concentrations and comparative decrease in risk.
    • Drs Cowan and Forster have assessed the level of emissions against EU directives for emission concentrations. Dr Cowan has also reviewed the process against the same directives for best practice in the incineration of wastes, the most stringent world practice comparator he can identify, as well as assessments of Australian incineration practices.[18] Such an assessment indicates that the level of dioxin emission will be one if not two orders of magnitude below the EU directive emission target. Further, the qualitative comparison indicates that the reliance on combustion temperatures, residence time in the combustion chamber and rapid cooling of flue gas are a combination of measures that are accepted as one means of achieving the lowest possible dioxin emissions. The dry-wet system of rapid quenching, dry bag filtration and wet scrubber technology in combination is recognised as best available air pollution control plant.
19. We are satisfied from such an assessment that the Innova facility is capable of reductions in dioxins in its emissions to the maximum extent achievable.

1. Other class 3 indicators may be potentially present in the gas emissions stream of the Innova facility including traces of metals, benzene and butadiene.
2. The EPA assessment indicates that the flue gas treatment train of temperature and residence time in the converter chamber, rapid quenching, dry filter and wet scrubber are recognised technologies in minimising the emission of these contaminants, not just dioxins.
3. Dr Forster's assessment of the works approval application indicates that trace metals (nickel, cadmium and arsenic), benzene and butadiene will be reduced to concentrations that are two to three orders of magnitude below the criteria applied in the SEPP (AQM). At these concentrations he is of the opinion that Innova demonstrates an acceptable minimisation of risk to human health.
4. This evidence leads us to conclude that the Innova facility applies technology that is at least best practice and achieves reductions in other Class 3 indicators to the maximum extent achievable.

Will there be other inconsistencies with the SEPP AQM?

1. During submissions, Innova refers to treating low levels of contaminated soil. Renex alleges that Innova does not propose to limit its processing to low level contaminated soils, but rather the limit on petroleum hydrocarbons, PAHs and PCB correspond to Category A soils, the highest classification under the industrial waste regulations.
2. We are not troubled by this fact. References in Innova's submissions about the concentrations to be treated have been made in a comparative sense to levels that might be treated in other thermal plants, including those by Renex. We do not take such comparisons to limit Innova to category C soils, previously referred to in waste management policy as 'low level contaminated soils'.
3. In respect to allegations of non-adherence to limits of soil contaminants to be treated, we rely on our reasons and findings set out earlier about this issue.

1. Renex relies on the evidence of Mr Callaghan in submitting that Innova will produce oxides of nitrogen (termed NOx) that will be unacceptably high. Mr Callaghan raises such issues on the basis that this would occur if nitrogen containing contaminants are present in the soil and there are no abatement procedures to deal with this.
2. Innova and EPA argue that the proposed plant uses low NOx burners to ensure NOx emissions are minimised from the heating and conversion processes. Issues raised by Mr Callaghan will only be valid if nitrogen containing compounds were to be treated by Innova, which they are not.
3. We agree with Innova and EPA that Mr Callaghan's evidence about NOx proceeds on the same assumptions that are raised about mercury and other compounds - i.e. sampling and characterisation of the soils prior to treatment fail to capture extraneous contaminants. We rely on our findings on this issue to reject such a notion about NOx. In terms of processing technology, Mr Callaghan acknowledges that the use of low NOx burners is an appropriate response that represents best practice in gas fired technology.
4. It follows that we accept that the NOx emissions, as far as can be controlled by Innova - i.e. through low NOx burners, represents best practice.

1. While the main focus of submissions has been on the Innova processing of soils and its air emissions, matters raised by other parties in the planning application, such as those about groundwater impacts, and issues of on-site contaminated soil focussed on by Renex give rise to questions about consistency with State Environmental Protection Policies related to groundwater and contaminated soil.

1. The purpose and intent of State Environmental Protection Policies for water and groundwater in Victoria are about protecting and improving their respective qualities. These policies seek to protect existing beneficial uses of the respective water environments. Such beneficial uses are determined from natural or existing water quality and / or other environmental conditions. Like the SEPP (AQM), these policies take a risk management approach to potential impacts rather than seeking absolute mitigation of such risks.
2. In applying these policies to the Innova facility, it is necessary to be satisfied that wastewater and stormwater generated from the site are treated and managed to minimise the risk of impacts to surface water environments and groundwater. Similarly, potential for infiltration of leachate from untreated soils should avoid adverse impacts on groundwater beneficial uses.
3. Dr Watters and other residents raise particular concerns about such impacts. While not parties to the works approval application, their concerns are relevant in so far as these issues overlap with planning considerations.[19]
4. Innova's works approval and planning applications propose to treat the site in the following manner to avoid water quality impacts:
   • concreting of hard stand areas where soils will be stored or otherwise handled and all trafficked areas. Untreated soil will be contained within a roofed building which will be bunded to prevent stormwater inflows and / or outward flow of spills.
   • hardstand areas will drain into formed and sealed channels that will directed to the Dow plant's wastewater treatment plant that discharges trade waste to sewer.
   • internal recirculation of process water within the Innova soil treatment unit so that no discharges are required from the processing of the soil.
   • maintenance of bunds around the building and hardstand areas that will prevent mixing of stormwater from off the site with runoff from processing areas.
5. The proposed drainage works are all commonly applied and accepted practices in the management of stormwater to prevent impacts to surface water and groundwater. Notwithstanding concerns about seepage through concrete, as expressed by Dr Watters, we note that all untreated soils will be contained within the sealed and roofed main building. We envisage little risk of leaching of soils from this area of the facility due primarily to the lack of exposure to leaching water fractions.
6. We accept that properly maintained and sealed concrete will be required to reduce seepage pathways from outdoor areas. However, as only treated soil is to be stored in these areas, the risk of leaching is already diminished to all practical extent. The fact that these storage bays will be covered limits this risk even further.
7. We are not persuaded that the proposed management of soil or stormwater across the site presents a risk to surface waters or groundwater not withstanding Dr Watter's assertions about shallow groundwater and poor ground conditions.

1. The presence of contaminated soils across the proposed Innova site has been drawn to our attention by Renex. Apart from the presence of mercury, Renex highlights the presence of other contaminants and the potential worker health and environmental risks, particularly from elevated levels of volatile hydrocarbons. Renex asserts variously that Innova should undertake a base line assessment of its site, as Renex was required to do under its works approval and that Innova must address these issues before it commences its operations.
2. We first note that the information tabled by Renex arises from assessment of the whole of the Dow site and appear to be 'legacy' issues from past production activity conducted on this land. In our view, the EPA quite rightly indicates that such site conditions are the subject of other actions, such as the Clean Up Notice that applies to the Dow land.
3. If it were relevant, a position we do not accept, the fact that the site is subject to a Clean Up Notice and that the extent of contamination is identified give us comfort that this issue is being managed in accord with the Authority's responsibilities set out under the SEPP (Contaminated Land).[20]
4. While Renex says the EPA must require Innova to undertake a baseline site assessment as a condition of the works approval, the SEPP (Contaminated Land) makes such a requirement discretionary. Given the site has been subject to such an assessment and is subject to a Clean Up Notice, we are satisfied that the EPA has exercised its discretion appropriately on this issue. We see no meaningful or practical benefit in terms relevant to the SEPP (Contaminated land) in requiring further assessment of the land. Its condition has been satisfactorily characterised. Other arrangements between Dow and Innova are a private commercial risk management matter.
5. We return to the fact that what is before us is a contest as to whether the development and operation of the Innova facility would in some way be inconsistent with applicable SEPPs and that this adversely affects the interests of Renex.
6. The objectives of the SEPP (Contaminated Land) includes the prevention of land becoming contaminated. The EPA and the Responsible Authority have obligations to ensure that the relevant approvals issued by them are consistent with this objective.[21] Innova is also obliged to ensure its operation will not cause contamination of land, whether on its site or adjoining land.[22]
7. We have turned our minds to such issues in respect to how the waste is to be managed through the life cycle of the Innova processing and its overall operations. We rely on our findings expressed elsewhere in these reasons to conclude that the process for receiving, storing, treating and final dispatch of the material accords with the requirements of the SEPP (Contaminated Land) to prevent contamination by applying best practice and appropriate industry requirements and standards as required under Clause 17 of this SEPP.

1. Ms Szostakowska and other residents in the planning application submit that the separation distance of 950m between the Innova facility and sensitive uses is inadequate. They rely on the recommendations of the former Hazardous Waste Consultative Committee[23] to support a 2km separation distance as a minimum.
2. The SEPP (AQM) charges the EPA with the responsibility of developing protocols for environmental management on the provision of separation distances.[24] At the time of hearing of the applications, the protocol AQ 2/86[25] was in place with a draft policy being circulated for comment.[26] Subsequent to the hearing, EPA has released recommended separation distance guidelines.[27]
3. Guideline AQ 2/86 did not set a specific separation distance (termed buffer distances) for industries treating contaminated soil. Any proposal for incineration of organic compounds was to be assessed by the EPA on a case-by-case basis. The draft protocol put forward a distance of 500m. All parties cautioned that the 500m adopted under the draft could be given weight, but not be determinative given its status at the time of the hearing. This separation distance has been adopted in the recently released guideline.
4. The purpose of AQ 2/86 was, as its title[28] implied, the provision of separation distance guidance for residual air emissions from industry that may causse amenity or hazardous impacts. It therefore spanned a range of issues. However, the separation distances specified under this guideline were never intended to usurp the role of primary air pollution controls. The purpose was to provide sufficient buffer from sensitive uses in the event that an upset that resulted in emissions (fugitive emissions) had an opportunity to disperse before impacting on such uses.
5. We note that the new separation distance guidelines, as was promulgated in the draft, are limited to dealing with dust and odour emissions.[29] It does so on the basis of dealing only with fugitive emissions. The separation distances are not intended to replace the role of primary pollution controls. A separation distance is intended to deal with unintended or fugitive emissions. A separation distance therefore serves as one part in the overall risk management of air emissions and do not absolve a proponent from ensuring emissions are managed in accordance with the SEPP (AQM) and other relevant policy.
6. The SEPP (AQM) and the separation distances are the relevant means of assessing whether the Innova facility minimises risk to the community and sensitive land uses. While the Hazardous Waste Consultative Committee made recommendations about separation distances, such recommendations have not been adopted in the regulations.
7. The EPA and Innova submit that the 2km buffer distance recommended by this committee was qualified, a fact conceded by Ms Szostakowska's counsel in his submissions. While no copy of the committee's final report was produced at the hearing, we were referred to the Renex decision[30] where extracts from this report are cited. These citations confirm the qualifications applying to the purported 2km buffer distance - most particularly that on a risk assessed basis, emissions from a contaminated soil treatment plant could be addressed by a buffer of a few hundred metres.[31]
8. It follows from our earlier reasons about best practice and reductions in emissions to MEA, that we are satisfied that the Innova proposal applies appropriate levels of control to its emissions. At first instance, the level of emissions treatment reduces hazardous compounds to a level well below applicable human health criteria set out in the SEPP (AQM) and international guidelines. In the event of upset conditions, the operation of stack sensors and PLC controls will cause an immediate shutdown of the plant minimising upset emissions.
9. The ability to provide a 950m separation distance to the nearest sensitive receptor, at almost twice the now adopted recommended minima, adds a further positive tier in the management of risk that might arise from emissions. We are satisfied that the 950m buffer distance is sufficient for the proposed nature of Innova's operations.

1. The grounds of review bought by Renex require us to consider whether the Innova facility, when operated in accordance with the works approval will:
   • be inconsistent with the SEPP(AQM) or other relevant SEPP; and so
   • affect the interests of Renex;
2. As the EPA submitted, the two grounds are intrinsically linked in so far that Renex's interest can only be affected if the Innova facility was to operate in a way inconsistent with the SEPPs.
3. We have examined the substantive grounds put to us by Renex about possible inconsistencies with the SEPP (AQM) and other policies, where relevant. We find there is no inconsistency between the proposed works or use of the works (i.e. the Innova facility) and these policies.
4. We find that within the industry sector of 'storage and thermal treatment of contaminated soil involving desorption and destruction of organic compounds in a fixed facility', the Innova proposes to operate a mix of eco-efficient technologies and processes to achieve best practice emissions management. It will also achieve management of class 3 air quality indicators to the maximum extent achievable.
5. We are not troubled that achieving these outcomes necessarily requires Innova as part of its operational regime to limit the volume and nature of the contaminated soils it will treat. This would be true for any such facility because of limitations imposed by the chosen treatment technology, as similarly demonstrated by the Renex proposal. We are satisfied that the efficacy of contaminated soil assessment and characterisation systems in Victoria is such that there is a low risk of excursions outside these limitations. The systems proposed by Innova have, in any event, the capacity to manage such excursion to limit the risk to human health and sensitive uses.
6. We conclude that the combination of the proposed technology and its location, which is well separated from sensitive land uses is appropriate.
7. It follows that if the operation of the proposed Innova facility is consistent with the SEPP (AQM) and other policies, there cannot be said to be some disadvantage to Renex. Its interests, within the terms applicable to s33(2)(a) of the EP Act will not be unreasonably and adversely affected on the basis of claims advanced before us.
8. Accordingly the decision of the EPA to grant a works approval is supported. We will direct the grant of a works approval subject to conditions we have set out in our order rather than those contained in the EPA's original decision. Our reasons for varying these conditions albeit only in a minor way are set out below.

1. In the alternative that a works approval is directed to be issued, Renex submits that a number of additional conditions are necessary to address issues it has raised about the Innova facility. This list includes requirements for continuous monitoring of mercury, all soil processing and management occurring within an enclosed building with impermeable bases for untreated and/or un-validated soil and various additions to the inline treatment system pre- and post the conversion chamber.
2. We would consider the proposed Renex amendments if there were some sound basis for doing and if one or more of these conditions would advance the outcomes so as to make the Innova facility consistent with the SEPP (AQM) and other relevant policies. However that we have found no such inconsistencies. Our findings support the position of the EPA and Innova, that if constructed and operated in accordance with all the documentation forming part of the works approval application and this hearing, the facility will operate in a manner consistent with the purposes and intent of the SEPP (AQM).
3. We conclude therefore that apart from some minor editing of the conditions of the works approval as agreed between the EPA and Innova no substantive changes are required to this approval.

1. As indicated earlier, Innova seeks a planning permit to use and develop the land for the purposes of a contaminated soil remediation facility, and a reduction in car parking.
2. For planning purposes, the relevant site is an area of approximately 3 ha to be leased by Innova from Dow, within the south-eastern portion of Dow's larger landholding of approximately 31 ha.
3. The Dow land is located in the Special Use Zone (Schedule 3) under the Hobsons Bay Planning Scheme, with no overlay provisions. The SUZ-3 applies specifically to the "petrochemical complex area", with the zone also applying to land to the east and west of the Dow land, and part of the land to the south, within the broader Altona Petrochemical Complex. Apart from Dow, the broader petrochemical complex includes the operations of Orica, Qenos and BASF.
4. The Innova site is a disused section of the Dow land, part of which contains warehouse buildings and offices previously associated with the manufacture of styrene and polystyrene products. Most of the site is semi-sealed with concrete, bitumen and/or crushed rock. Innova's mobile soil remediation equipment, which is proposed to be used as the basis for its facility, is currently stored on the site.
5. Opposite the Dow land, on the north side of Kororoit Creek Road, is PrixCar Services, which conducts a major business receiving, storing and dispatching new cars imported into Australia. Nearby are other industries located in a Special Use Zone (Schedule 4) or an Industrial 1 Zone. The nearest 'sensitive' uses are residential properties about 950 metres to the south-east of the site.
6. Innova's proposal requires a planning permit under three permit triggers:
   • the use for an industry not meeting the Section 1 condition in the table of uses in cl 1.0 of SUZ-3. In Innova Soil Technology Pty Ltd v Hobsons Bay City Council (Innova #1)[32], the Tribunal made a declaration that the proposed use of the land for a contaminated soil remediation facility was not use for a 'petrochemical industry' (as defined, and where no permit was required), and thus required a permit by reference to cl 37.01-1 and cl 31.01 of the scheme;
   • buildings and works associated with the use, pursuant to cl 4.0 of the SUZ-3; and
   • a reduction in the car parking requirements that would otherwise be required, pursuant to cl 52.06 of the scheme. Technically, 136 car spaces may have been required, with only 24 being provided.
7. The Council officer report noted a fourth permit trigger, relating to loading facilities under cl 52.07 of the scheme. At the hearing, the Council's advocate indicated no permit was required on this basis, subject to plans showing the cl 52.07 requirements are met.
8. The application was advertised, with 58 objections received, including three petitions totalling 1,304 signatures. As the Council officer report notes, and the Council conceded at the hearing, not all of the concerns raised in the objections and petitions were planning related. The Council failed to decide Innova's permit application within 60 days, leading to an application to the Tribunal to review that failure. The Council subsequently resolved that, but for the review proceeding, it would have refused the application on a number of grounds.

1. The Council's grounds for refusal may be summarised as follows:
   • non-compliance with certain provisions or objectives of the State and Local Planning Policy Frameworks in the Hobsons Bay Planning Scheme;
   • not meeting the purposes of the Special Use Zone (SUZ-3);
   • non-compliance with the objectives of the Industrial Land Management Strategy 2008;
   • the proposed buildings and works will adversely affect the amenity of nearby residential areas;
   • the proposal will lead to traffic problems in Kororoit Creek Road;
   • the granting of the permit would prejudice the proper future planning of the area, and is not consistent with the orderly planning of the area.
2. A number of residents from Altona participated in the review proceeding, either as objector parties having lodged statements of grounds, or (with leave) as non-party submitters. Most supported the Council's grounds of refusal, but several also sought to oppose the application on other grounds. Some related to environmental issues more properly considered in the Works Approval application (where the residents are not parties to the review) and some also related to buildings and works issues (which are not subject to third-party rights of review). Given the overlap between some planning and environmental issues, Innova was content to have all issues canvassed at the hearing, although we have only had regard in our decision to those matters called-up by the relevant permit triggers and decision guidelines in the Hobsons Bay Planning Scheme.
3. Of particular concern to residents is the potential for dust and other emissions from the contaminated soil treatment plant in the transport, process and post-processing soil storage components of the proposal.
4. PrixCar Services maintains its objection on the basis that the Innova proposal will impact on its operations through dust emissions that may affect worker health and through the dispersal of dust on vehicles it stores in open areas.
5. Renex also opposes the grant of a planning permit. It generally supports the Council's grounds of refusal, but has also raised objection on the basis that the Innova proposal is contrary to a restrictive covenant on the title.
6. Unsurprisingly, Innova contests all of the grounds of refusal, and other planning-based objections and concerns, raised by the parties. We have grouped the various issues into a number of themes which we deal with below.

1. It is common ground that the relevant land title has a registered restrictive covenant, the relevant parts of which provide that Dow:

"... for itself and its successors and transferees the registered proprietor or proprietors for the time being of the land hereby transferred or any part thereof COVENANTS with [the covenantor] and its successors and transferees the registered proprietor or proprietors for the time being of the land comprised in the said Certificate of Title ... and every part thereof that it will not at any time hereafter use or permit the land hereby transferred except primarily for the manufacture of products derived from petroleum and other chemical products and IT IS REQUESTED that this Covenant shall be noted and appear on any future Certificate of Title to the land hereby transferred or any part or parts thereof as an encumbrance affecting the same." (The italics are ours)

1. Section 61(4) of the Planning and Environment Act 1987 provides as follows:

(4) If the grant of a permit would authorise anything which would result in a breach of a registered restrictive covenant, the responsible authority must refuse to grant the permit unless a permit has been issued, or a decision made to grant a permit, to allow the removal or variation of the covenant.

1. Renex, supported by one of the residents Ms Szostakowska, claim that the Innova proposal would result in a breach of a covenant, and that the Council (and, on review, this Tribunal) must refuse a permit on this threshold basis.
2. It is common ground that the Innova proposal is not a use of its site 'for the manufacture of products derived from petroleum and other chemical products'. The question is whether the Innova proposal would lead to the relevant land burdened by the covenant not being 'primarily' used for that purpose.
3. The issue is not a new one. In Innova #1[33], Deputy President Gibson made a declaration that the Innova proposal would not breach the covenant. Her decision was based on a finding that the words 'the land hereby transferred' (in the italicised part of the covenant extract above) referred to the whole of the land burdened by the covenant - which she concluded was some 205 acres (or approximately 83 ha) on the parent title to the land. Having regard to evidence about the use of the Dow, Qenos and BASF operations on this land, she found as a question of fact that the burdened land was being used primarily for the manufacture of products derived from petroleum and other chemical products. She then found that the use by Innova of 3 ha of this 83 ha land for a soil remediation facility would not mean the burdened land (considered as a whole) was no longer used 'primarily' for the required purpose. In conclusion, DP Gibson stated:

We consider it would be unduly restrictive to interpret the covenant as requiring that every use of every part of the land must be for the manufacture of products derived from petroleum and other chemical products. That is not what the covenant says. The use of the word 'primarily' allows some other uses so long as they do not eclipse the primary use of the land for the manufacture of products derived from petroleum and other chemical products.

1. The Council was a party in Innova #1. It considered itself bound by the earlier Tribunal decision, albeit that it had argued the contrary position then. It tacitly supported the position now advanced by Renex and Ms Szostakowska.
2. There is a preliminary issue. Innova contended strongly that the objectors should not be able to re-agitate a matter expressly determined in Innova #1, and that the Tribunal's earlier decision should be treated as a judgement in rem (i.e. conclusive as against all people) rather than a judgement in personam that was binding only to the parties in that proceeding.
3. Ultimately, given our view on the merits of the argument, we do not need to finally decide whether the decision in Innova #1 is a judgement in rem. Having said that, we tend to the view that Renex and Ms Szostakowska should not be able to re-agitate the covenant issue in this proceeding. This is because:
   • the Tribunal's earlier decision does not have the character of a judgement in personam, limited to private contractual rights in respect of the land, or matters solely between the parties to Innova #1. The status of the matter in issue in Innova #1 was not derived from any private agreement but rather it related to the role of a public authority exercising statutory powers conferred upon it, and thus involved public law[34].
   • we accept that there is some doubt whether the Tribunal's earlier decision is a judgement in rem. It did not determine for all purposes all matters as to the status or disposition of the covenant or Dow's title[35]. There is no clear authority to confirm that decisions in the planning jurisdiction of this Tribunal could have the character of a judgement in rem. However, the decision in Innova #1 did purport to settle the very issue of whether the covenant prohibited Innova's planning permit proposal. It was a formal declaration proceeding under s 149B of the Planning and Environment Act 1987 before a specialist Tribunal. It involved the responsible authority as contradictor (being the body bound by s 61(4) of the Act in relation to the effect of the covenant on its powers), and it was intended to give certainty to the very planning permit application subsequently made by Innova to that responsible authority.
   • although Renex and Ms Szostakowska were not parties to Innova #1, they do not own any land benefited by the covenant. They would not have standing to enforce the covenant against Dow or Innova as a matter of property law, nor would they receive notice of any application to vary or remove the covenant. There would be a clear public inconvenience if persons not directly affected by the covenant could re-agitate as an open question a matter already decided as between those who are directly affected by it[36].
4. Even if we are wrong on this, and Renex and Ms Szostakowska can re-agitate the issue of the covenant, we do not consider, having regard to their arguments on the merits, that the Innova proposal is in breach of the covenant.
5. We accept the detailed title history provided by Renex[37], which demonstrates the creation of the covenant on the parent title, and on the title to certain subdivided lots derived from it, including the title to the Dow land. This title history confirms that the parent title was 205 acres as found by DP Gibson. However, it does not appear that all of the title history was before DP Gibson in Innova #1. Upon the subdivision and transfer of a number of lots from this parent title, separate covenants were created in each relevant transfer, albeit in substantially identical terms[38]. The land burdened by each separate covenant (i.e. the 'land hereby transferred' referenced in each covenant) is the separate lot being transferred in each transfer, rather than the parent title. For the Dow land, forming part of what was Lot 1 on the relevant Plan of Subdivision 53077, the land transferred in the relevant transfer creating the covenant is the area of Lot 1, which was approximately 77.1 acres. (A small lot was later excised from this Lot 1, leaving the Dow land with 76.6 acres.)
6. This means that the land burdened by the covenant is the area of Lot 1 or Dow's land (i.e. approximately 37 ha), rather than the 205 acres (or approximately 83 ha) of the parent title found by DP Gibson on the more limited information then before her.
7. The issue then becomes whether this factual 'error' in Innova #1 changes the outcome. The land that must be 'primarily' used for the manufacture of products derived from petroleum and other chemical products is the 37 ha Dow land (not the 83 ha parent title that includes the land now operated by Qenos and BASF). The use of the Qenos and BASF land is no longer relevant to the consideration of the primary land use.
8. Renex contends that the use of the word 'primarily' in the covenant does not apply to a proportionate land area (i.e. Innova's 3 ha site within Dow's 37 ha landholding) but is rather a term that applies to the use or purpose for which each and every part of the land is to be used. It argues that this view is bolstered by the repeated use of the phrase 'or any part thereof' throughout the covenant. Based on this, Renex argues that the covenant (properly interpreted) restricts the whole of the land from being used other than in accordance with its primary purpose. It contends any other use must be ancillary to that primary purpose, rather than a separate use.
9. We agree that proportionate land area is not determinative of what is the 'primary' use, although it may be a relevant factor. Nor was it determinative in Innova #1. However, the references in the covenant to the land '... or any part thereof' are, where used and when properly construed, only references to ensure that all of the land remains burdened by the covenant if further subdivided. The actual operative part of the covenant, italicised above, refers only to 'the land' being primarily used for the required purpose. We therefore agree that the word 'primarily' attaches to the functional use of the land, but not in a manner that requires each and every part of the land to be used for that purpose. As DP Gibson stated in Innova #1, that is not what the covenant says. The word 'primarily' envisages some other use or uses, provided they do not become the primary use.
10. Having regard to the overall use of the Dow land, and based on the evidence from expert witnesses that have visited and considered the land from a number of perspectives (planning, traffic, technical etc), as well as our own inspection, we are satisfied that the land is presently being used 'primarily' for the manufacture of products derived from petroleum and other chemical products. In reaching this view, we have considered the land use holistically rather than looking at the actual areas devoted to plant and equipment, offices, etc. Based on the evidence before us about the Innova proposal, we are satisfied that, even with the Innova proposal in operation, the land will still be used primarily for the manufacture of products derived from petroleum and other chemical products. The Dow operations will continue to be, to a significant degree, the principal, dominant, prominent, and most important functional use of the Dow land. Although not determinative, this view is bolstered by the relatively small portion of the land that Innova will occupy.
11. We therefore find that, even if the decision in Innova #1 is re-agitated, and even if the burdened land is 37 ha rather than 83 ha, the Innova proposal will not lead to a breach of the covenant. Section 61(4) of the Planning and Environment Act 1987 does not therefore operate to prohibit the grant of a planning permit.
12. We thus turn to consider the key planning issues raised in this proceeding.

1. As indicated, the Council contends that there will be a non-compliance with the State and Local Planning Policy Frameworks in the Hobsons Bay Planning Scheme, specifically cl 13 (Environmental Risks), cl 18 (Transport), and cl 19 (Infrastructure) of the SPPF and cl 21.09-2[39] and 22.02 of the LPPF.
2. Before turning to these specific clauses, we note that the limited SPPF issues raised by the Council must be balanced within the overall planning policy framework. Having regard to that framework, and the evidence of Mr Barlow, we see a very strong strategic justification for this proposal in a location such as that proposed within the Dow land. As we have indicated earlier, the proposal responds to a policy and need to clean up historically contaminated land in and around Melbourne, both from a perspective of managing pollution and regenerating former industrial sites for new development and use. It meets an identified need to avoid the extent of solid waste and contaminated soil going to landfill by enabling its treatment and re-use. It deals with waste at the appropriate level in the waste hierarchy - i.e. in this case, treatment rather than disposal - and provides a semi-permanent facility capable of dealing with contaminated soil from sites where it is not practical, feasible or cost-effective to treat the soil on-site. The facility will be located in the west of Melbourne, closer to many areas of historically contaminated sites than other proposed facilities in Dandenong, thus reducing transport-related impacts. Given the need for buffers, the proposal conveniently uses the already existing and extensive buffers of the Altona Petrochemical Complex, without impacting on the primary and continuing use of the complex.
3. Clause 13 of the SPPF provides that planning should adopt a best practice environmental risk management approach which aims to avoid or minimise environmental degradation and hazards. The Council raised specific concerns with Innova's approach to air quality and noise.
4. We agree with the Council that the reference to 'best practice' in the planning scheme is, at least technically, not the same as its expressly defined meaning in the SEPP (AQM). However, on the issue of air quality, we see little difference from a practical perspective in the context of this case. The Council led no evidence to support its contention that there was some aspect of 'best practice' that might be met under the SEPP (AQM) but that was not best practice from a planning perspective. Moreover, cl 13.04-2 requires a responsible authority under the planning scheme to have regard to the SEPP (AQM) as part of its policy guidelines. We therefore consider our findings on best practice in the EPA proceeding that there will be compliance with this policy's objectives are equally applicable in the context of cl 13. We also reach this view separately from the EPA proceeding, having regard to the evidence of Dr Cowan about air quality in the soil treatment process, the measures now proposed for post-treatment soil management and dust suppression, and the EPA's recently updated buffer distances for a soil remediation facility.
5. Insofar as noise is concerned, the Council referred to cl 13.04-1 which seeks to ensure that community amenity is not reduced by noise emissions, and that land use separation techniques be used. The policy guidelines require consideration of SEPP N-1 (Control of Noise from Commerce, Industry & Trade). Again, the Council led no evidence to support its concerns.
6. The nearest sensitive use is more than 950 metres away, and the GHD assessment within the Works Approval application material indicates that the operations can comply with SEPP N-1, with further monitoring required in the commissioning phase to ensure compliance. There is a draft permit condition to this effect. We agree with the evidence of Mr Barlow that, based on this, there is no adverse amenity impact from a planning perspective.
7. Similarly, the Council submitted that there are 'demonstrated shortcomings and uncertainties' with the traffic-related issues on Kororoit Creek Road, such that there are concerns about compliance with cl 18. That clause seeks to regulate land use near existing transport routes to avoid detriment to those routes - in this case, Kororoit Creek Road. From a broader planning perspective, one of the very functions of Kororoit Creek Road is to operate as a transport route for heavy industrial traffic in the Altona area and to link with the nearby interchange with the Princes Freeway and Western Ring Roads. Far from being detrimental to its function, this proposal simply uses Kororoit Creek Road for its intended purpose. Having regard to the evidence of Mr Walsh, we are satisfied that Kororoit Creek Road has the capacity to carry and safely service the additional traffic generated by this proposal. We note that VicRoads does not object to the proposal.
8. The third SPPF provision relied upon by the Council is cl 19. No evidence was led by the Council to support its concerns about groundwater or stormwater. Consistent with our findings in the EPA proceeding, we are satisfied that these issues can and will in any event be dealt with through the proposed works and permit conditions- e.g. the requirement for a Stormwater Management Plan.
9. Insofar as the LPPF is concerned, the Council's grounds of refusal had referred to cl 21.09-2 of its MSS in the Hobsons Bay Planning Scheme, which has been largely replaced by the objectives and strategies in cl 21.08. In its written submission at the hearing, the Council's advocate claimed that the proposal failed to meet 15 parts of this clause. However, this bald assertion was not backed by any substance, supporting submission or evidence, and we do not propose to deal individually with each unsubstantiated claim.
10. We do not agree with the Council, for example, that the proposal is at the interface between industrial areas and residential areas, nor that it will create amenity conflicts with existing residential areas. We agree with Mr Barlow that the site is remote from residential areas - indeed, within the heart of the Altona Petrochemical Complex. We do not agree with the Council that the proposal will rely upon frequent visits by heavy vehicles using roads through residential areas. This is simply not what is proposed. Based on the evidence before us, we do not agree with the Council that the proposal fails to support the growth and development of core industrial areas. Indeed the contrary exists. The proposal is on an under-utilised site within the Dow land, avoids the use requiring other core industrial land or additional buffers, and has the potential to facilitate the clean up and beneficial re-use of other land in the core industrial areas.
11. A similar position applies in relation to cl 22.02 in the LPPF, where the Council again makes bald assertions lacking in substance. Based on the evidence before us, we do not agree, for example, that the proposal fails to remove conflict between industry and sensitive land uses. There is no conflict, given the significant separation distance of 950 metres between the proposal and the nearest residence (and an even greater distance to other sensitive uses such as schools, etc). The Council provided no evidence to support its assertion that the proposal does not embrace environmentally responsible behaviours. Again, we consider the contrary prevails. At a societal level, the proposal has a strong environmental base in dealing with the clean-up of contaminated land whilst avoiding its disposal to landfill. At a more detailed level, the EPA Works Approval and conditions provide for the treatment and storage processes to be undertaken in a secure and sound manner, within a site with substantial buffers to more sensitive uses.
12. Overall, we believe the Council has been extremely selective and disingenuous to its own planning scheme and policies in their application to this proposal. From a balancing of the SPPF and LPPF in the Hobsons Bay Planning Scheme, we consider that there is a strong level of policy support for the proposal. Indeed, having regard to cl 10 of the SPPF, we consider that the proposal well meets the objectives of planning, and satisfactorily integrates relevant environmental and social factors in the interests of net community benefit and sustainable development. We agree with and adopt Mr Barlow's summary assessment of the net community benefit of this proposal, as set out on page 12 of his witness statement.

Special Use zone and Industrial Land Management Strategy

1. Both the Council and a number of objectors contended that the proposal fails to meet the purposes of the Special Use Zone, in particular the first stated purpose of Schedule 3 to the Special Use Zone dealing specifically with the Petrochemical Complex Area, which is:

To provide for the operation and expansion of the petrochemical industry in a manner that does not affect the safety and amenity of nearby areas.

1. It was suggested that 'the historical belief of a range of people' was that no industry other than petrochemical industry was permissible in the SUZ-3. It was also agued that, given the importance of this industry, the alienation of part of the SUZ-3 land for a non-petrochemical use would prejudice the longer-term use and operation of the petrochemical complex and its expansion within a zone and buffers specifically dedicated to it.
2. The Council also relies on its Industrial Land Management Strategy (2008) which includes an objective to support the ongoing viability of the Petrochemical Industry at this location, and which contemplates a strategy formulated in conjunction with the state government before any surplus land is rezoned.
3. Based on the evidence and submissions before us, including in particular the evidence of Mr Barlow, we do not consider that the proposal is contrary to the purposes of the SUZ-3 or the objectives of the Industrial Land Management Strategy (2008).
4. As found in Innova #1, industry is a section 1 use in the SUZ-3 not requiring a permit, provided it is for a petrochemical industry. Given the structure of the planning scheme, an industry other than a petrochemical industry is not prohibited, but is a use for which a permit is required. The purpose of the zone must be read having regard to its express operative control regime, and not according to the 'historical belief' of those who do not properly understand its terms.
5. This is not to say that a non-petrochemical industry use is to be encouraged in the SUZ-3 - merely that it is contemplated as permissible, and that it cannot be arbitrarily refused. We agree with Mr Barlow that the SUZ-3 should be read as providing a strong and direct preference in support of the petrochemical industry rather than a prohibition of other activities. The requirement for a planning permit for 'other' industry sets up a process through which any potential impact on the protection and future expansion of the petrochemical industry can be properly considered.
6. We agree with the Council that the ongoing viability of the petrochemical industry is vital to Victoria. It is also vital to protect the existing and future operations of the petrochemical industry at the Altona Petrochemical Complex given the longstanding commitment to that location.
7. Here, however, we do not see any adverse impact on the operation, viability or future expansion of the petrochemical industry being created by this proposal. In particular:
   • the use of the 3 ha site within the Dow land for a contaminated soil treatment facility is not at all incompatible with the continuing existing use of other land in the SUZ-3 for petrochemical industry. Indeed, it is a relatively small site within the overall complex that is a compatible (albeit not directly complementary) use;
   • there has been a scaling back of petrochemical activities within the complex since the 1990's due in part to industry consolidation and technological improvements. Despite this, there are a number of undeveloped areas within the complex available for future expansion;
   • the surplus Dow land proposed to be used by Innova is in the core of the complex, where it would not be appropriate to deal with it as surplus land to be permanently rezoned or redeveloped in accordance with the Industrial Land Management Strategy (as has occurred with some other surplus land on the fringes of the complex);
   • given that Dow is leasing the 3 ha site to Innova, and has not used it since 2006, it is clear that Dow considers the site surplus to its short to medium term requirements. It will not therefore prevent or interfere with Dow's existing operations. Moreover, Dow is not selling the land, nor is the nature of the limited capital works proposed by Innova such that the site is being permanently alienated from its longer term potential use for expansion of the petrochemical industry. It is in that sense a sensible interim use of surplus land;
   • given that the site is owned and controlled by Dow centrally within its broader landholding, it is not land that is readily available to other petrochemical industry operators in the complex. Equally, it will not interfere with their operations or expansion. For example, Qenos has announced a $195 million expansion and modernisation of its site within the complex, whilst also seeking (through Amendment C40) to rezone and divest itself of other surplus land;
   • to the extent the Industrial Land Management Strategy suggests a careful strategy to deal with any surplus SUZ-3 land 'in conjunction with the state government' so as to protect the future viability of the complex, we note that the Department of Business and Innovation has filed a submission in the proceeding through which it expressly supports the proposal. The EPA also supports the proposal.
8. The SUZ-3 also contains a purpose to provide for the minimisation of exposure to risk to health or life of persons working in or visiting the area. Whilst the Council did not raise this purpose directly, we note for completion the evidence of Mr Barlow that Worksafe Victoria, which is a referral authority in the planning scheme in relation to the Dangerous Goods Act 1985 and the Occupational Health and Safety Act 1985, did not and does object to the proposal.

1. Under cl 52.06 of the Hobsons Bay Planning Scheme, 136 car spaces would technically be required for this proposal based on site area. Given the nature of the use (with most of the site area used for soil storage rather than workers), and a likely staffing level of 12 staff on-site at any time, Innova proposes to provide 24 car spaces. A waiver of 112 car spaces is therefore required under cl 52.06.
2. We accept the evidence of Mr Walsh about the likely peak parking demand generated by the proposal, and agree with his assessment that based on likely staffing levels and incidental visits, the 24 car spaces proposed 'easily satisfies' this demand.
3. The level of car parking was not materially contested, and the Council officer report had considered the reduced car parking rate to be sufficient. We therefore endorse the waiver of 112 car spaces.
4. Insofar as internal traffic movements within the Dow land are concerned, there was some concern raised by the Council and objectors about the swept path analysis for the large trucks (or tandem tip trucks with 'dogs') that would be delivering soil to and from the Innova site, and the area for vehicle wash-down and turning movements within Innova's leased area.
5. Having regard to the swept path diagrams prepared by Mr Walsh, we accept his evidence that both the Innova site and the internal road network within the Dow land can adequately and safely accommodate the likely number of heavy vehicle trips. Assuming full capacity and maximum soil volumes, and with 80% of trucks being 30-tonne tandem tip trucks, Mr Walsh projects an average of 7 trucks (or 14 truck movements) per hour, with perhaps 30 movements during peak periods. This may mean that, occasionally, a truck may need to queue or pause in 1st Avenue or 1st Road within the Dow land to enable another truck to make a turning movement or complete its dispatch. There is a very large area along these two internal roads, with very good open visibility to enable this to safely occur. Moreover, we are satisfied that these two internal roads are well within the Dow land and any short-term delay in truck movements will not create any off-site amenity impacts.
6. The Council pointed out a Dow owned pipe or meter close to the intersection of 2nd Avenue and 1st Street, well within the Dow site, that it suggested 'might' be impacted by truck turning movements. From his swept path diagrams, Mr Walsh was of the opinion that this Dow infrastructure was not at risk of being hit by a truck, but that it could be protected (if necessary) by an appropriate bollard. We agree, and consider this an internal site matter for Dow and Innova.
7. This leaves this issue of trucks entering the Dow land from Kororoit Creek Road and any potential impact on the surrounding road network. Kororoit Creek Road is a divided carriageway, primary arterial road, servicing the industrial areas of Altona, including the Altona Petrochemical Complex. It is under the care and management of VicRoads, which does not object to the proposal. It is a road already designed to carry high volumes of industrial traffic, with Kororoit Creek Road carrying two-way daily traffic volumes in the order of 30,000 vehicles per day. The Dow land provides direct access along Kororoit Creek Road to the Princes Freeway (about 1.6 km away) which is, in turn, proximate to that freeway's interchange with the Western Ring Road.
8. With the proposal likely to generate around 170 truck movements per day, we are satisfied on the evidence of Mr Walsh that the surrounding road network can comfortably accommodate this level of additional traffic. There is no need or likelihood, nor is it intended, that trucks accessing the Dow land will need to pass through residential areas.
9. The entrance to the Dow site is via a fully signalised intersection with Dow Chemical Access (2nd Avenue) and Kororoit Creek Road, including auxiliary turning lanes. We are also satisfied on the evidence of Mr Walsh (including through his detailed SIDRA analysis) that there will be no material change to the operating conditions of this intersection created by the proposal. The intersection currently operates in the 'good' through to 'excellent' categories in terms of its degree of saturation during morning and evening peaks, and we are satisfied based on Mr Walsh's analysis that it can adequately accommodate the additional truck turning movements through the intersection. Even in these peaks periods, there may be only about 30 additional truck movements per hour, compared with existing peak volumes through the intersection of 3,000 vehicles per hour.
10. Although the Council expressed concerns about the 'limited' (40 metre) length of the auxiliary turning lane for vehicles turning right into the Dow land from Kororoit Creek Road, it produced no evidence about particular problems suggesting at most that "it is unclear whether that slip lane will be sufficient ...". We prefer the more considered analysis by Mr Walsh on this issue. We do not agree with the Council that Innova should be required to undertake a 10 year traffic assessment given the relatively low traffic volumes projected for its operation.
11. Given the above, we are also satisfied that there will be no adverse impact on vehicles accessing the PrixCars site through its access road (i.e. opposite the Dow Chemical Access) at the same intersection.

1. The Council and several objectors raised a number of broadly based amenity concerns about the proposal, although we consider most to be perceived than real. In general, we agree with the assessment undertaken by Mr Barlow, and his conclusion that the closest residential areas and dwellings will not suffer any adverse amenity impacts.
2. The Council's advocate referred us to case references where the Tribunal has stated a principle to the effect that 'good planning keeps incompatible uses separate', and that an objective of planning is 'to provide for some segregation of land uses that have the potential to create undesirable off-site impacts'. We agree with that sentiment. In our opinion, the Innova proposal directly reflects and responds to that sentiment, rather than operating in a manner contrary to it.
3. The Innova site is remote from residential areas, being 950 metres from the nearest residence. Other potentially sensitive uses such as Altona College and Mount St Joseph Catholic Girls School are at least 1.5 km away. The Innova site has the benefit not just of the buffer provided by the balance of the Dow land and the balance of the land in the Altona Petrochemical Complex, but also the additional intervening land zoned and used for industrial purposes. Much of this is zoned as Schedule 4 to the Special Use Zone, with SUZ-4 itself having a stated purpose to not prejudice the operation of the petrochemical complex (and thus to act as part of the buffer to other uses).
4. Some residents (e.g. Ms Vass) had expressed concern about the lack of a prescribed buffer distance, approved by the government, for a contaminated soil treatment facility. This uncertainty created concerns about the quality of decision making about potential off-site amenity impacts, with different buffers being adopted for different sites on a case-by-case basis. These different buffers, in turn, created different expectations about what separation distance may be appropriate. The government, through its agency the EPA, has now purported to put that issue to rest through the adoption of a recommended 500 metre buffer for a contaminated soil treatment facility. We have earlier in these reasons dealt with the adequacy of such a buffer. A buffer of nearly double that amount (i.e. 950 metres) is actually provided to the nearest residence for this proposal.
5. Given the intent of the buffer, from an EPA Works Approval perspective, to deal with any amenity concerns created by residual industrial air emissions from the proposal, we consider it similarly appropriate from a town planning perspective as an appropriate 'amenity' buffer for those same matters. We adopt and apply to our planning consideration our findings adduced from the evidence of Dr Cowan and the other expert witnesses in this regard.
6. We also cannot conceive, particularly given proposed conditions for compliance with SEPP N-1, that noise will be an issue over a 950 metre distance, nor is there any evidence that odour will cause off-site amenity impacts.
7. Some objectors have raised concerns about potential impacts on the Altona Wetlands. These are also over 1 km from the Innova site. We agree with Innova that the concerns that have been raised amount to bald assertions, unsupported by any evidence. We accept that these wetlands provide important amenity to Altona residents and visitors, but no specific impact on the wetlands from a specific source or process within the Innova proposal has been identified to us. We note that the SEPP(AQM), and other relevant SEPP's, seek to protect beneficial uses other than the safeguarding of human health. This includes the protection of ecosystems and biodiversity. Through compliance with these SEPPs, the on-going amenity provided by the wetlands to local residents will also be maintained.
8. We have also dealt with local traffic issues, also raised as an amenity issue by some residents. To the extent some residents expressed concern about the potential 'leakage' of contaminated soil from trucks en route to the facility, we note that there are EPA/transport regulations requiring secure loads, and that the transport of contaminated soil is in any event proposed on the main arterial road network and will not impact on local residential streets in Altona.
9. The only issue of substance raised by the Council and objectors is the potential amenity impacts of airborne dust from the soil treatment or storage. We deal with that issue separately, below.

1. Part of the Dow land is itself contaminated or potentially contaminated, and issues arising from this have been dealt with earlier in these reasons, in the context of the Works Approval application - specifically the storage and treatment of contaminated soil, and arrangements to avoid the leaching of any contaminants into the ground or groundwater at the Innova site. The updated plans we received during the hearing satisfy us that the site will be sufficiently sealed and/or be impermeable to such contaminants.
2. Renex also argued that there was some impediment to the Innova proposal being established on the Dow land without a statement of environmental audit or baseline study.
3. From a planning perspective, it would seem counter-intuitive to us that a contaminated soil treatment facility could not be established on land that was itself contaminated. Many mobile treatment plants treat contaminated soil on-site, and we understand that the Innova plant may possibly be used to treat soil from part of the Dow land.
4. The Innova site is not being used or developed for a sensitive use, nor is the balance of the Dow land used for a sensitive use. From a planning perspective, and having regard to the evidence of Dr Nadebaum, we do not consider any potential contamination on the Dow land precludes its development or use for the Innova proposal.

1. The issue of the management of fugitive dust from the soil stockpiles on the site became a prominent issue in the proceeding. It was a key amenity concern of several objectors, and it at least has the potential to be a very real issue for PrixCars.
2. It is fair to reflect that we were far from satisfied with Innova's initial response to this issue. Its approach appeared to be that this was not an issue being pursued strongly by the Council or EPA, and that it was simply a matter capable of being managed as an operational issue. We note in particular that:
   • the open areas of the Dow land, including the Innova site, are susceptible to occasional periods of high wind and/or blustery conditions;
   • the soil storage and dust management plans provided by Innova differed significantly between the planning permit application and the Works Approval application - to the point where is was not possible for the Tribunal or the parties to understand what was proposed;
   • Dr Cowan's air dispersion modelling had dealt adequately with air emissions during the treatment of contaminated soil, but he had not been instructed to address fugitive dust emissions from the treated soil stockpiles in high wind conditions.
3. As a result, between the two hearings in the proceeding, we required Innova to file and serve a set of drawings for the planning permit application and EPA works approval application that addressed these inconsistencies. This included a description of key items such as the number, location and capacity of proposed soil stockpiles; whether the stockpiles are proposed to be covered and/or have sprinkler systems; and the location, height and proposed construction materials for wind-break walls and soil segregation walls. We also required Innova to file and serve an outline of matters proposed for inclusion in a dust management plan, including proposals for dust monitoring and/or any restrictions on soil movement during periods of high-wind.
4. Fortunately, Innova responded with a very detailed set of plans for both the Works Approval and planning permit applications, together with a statement of changes, and an outline of matters proposed for inclusion in a dust management plan[40].
5. Whilst dust monitoring is required as part of the Works Approval, we consider that there is a sufficient overlap with planning and amenity concerns such that we have also included a condition for a Dust Management Plan in the planning permit. The plan must include the matters proposed by Innova in its outline document.
6. Save for one issue, we consider that these matters adequately deal with the management and prevention of fugitive soil and dust emissions from the site during the receiving, storage and treatment of contaminated soil, and in the post-treatment storage, dispatch and transport of treated soil. The Dust Management Plan will deal with matters such as the covering of stockpiles, the use of sprinkler systems, the use of a covered shelter for truck loading and dispatch, and vehicle wheel wash facilities, and is tied where relevant to the specific plans produced at the hearing. In considering whether the outline of matters to be included in the plan is adequate, we have had regard to Dr Cowan's broader evidence about wind conditions at the site (including the wind rose he provided within his air dispersion modelling). We have also had regard to the buffers and separation distances to sensitive uses that we have discussed elsewhere in these reasons. If properly managed, fugitive dust from soil storage on the Innova site is unlikely to be an issue beyond its site (or at least not beyond the Dow land), and certainly not an issue for residential locations 950 metres or more away.
7. PrixCars represents a special issue. It stores newly imported vehicles for 26 major car importers in the open on its site to the north of the Dow land, just across Kororoit Creek Road. It has chosen to locate its business in a heavy industrial area, albeit to be proximate to the port and transport facilities, and to some extent must accept the consequences of that in terms of the level of amenity that it can expect. However, that level of amenity still entitles it to a reasonable expectation that its site will not be subject to fugitive dust emissions or particulates from the Innova site (or any other nearby industrial site), or from trucks accessing that site. This is to protect not only the vehicles, but also the workers on its site.
8. Despite best endeavours, management systems occasionally fail. PrixCars informed us of two occasions where dust or ash from Australian Vinyl's operations within the Altona Petrochemical Complex created a need for every car on the PrixCars site to be washed - apparently at a cost of some $10,000. A similar issue arose with problems from the Port Kembla smelter near to PrixCars' Sydney facility. We understand that, at least in one instance, the 'offending' emitter paid compensation. This suggests to us the issues confronting PrixCars are not limited to the Innova proposal, and stem more generally from its location in a heavy industrial area. We are nonetheless satisfied that the new plans for dust management and soil storage provided by Innova, and the proposal for a Dust Management Plan, if implemented, will adequately address PrixCars concerns.
9. We mentioned that there was one issue where we considered the outline for matters to be included in the Dust Management Plan may be deficient. The outline refers to dust and weather monitoring, and upper concentration levels that will trigger an alarm and response. We expect that this is intended to mean that, in high wind or blustery wind conditions, any elevated levels of fugitive dust would trigger the alarm. The outline does not however refer expressly to high wind conditions, where perhaps a more pro-active mechanism might be implemented. We therefore suggested, and Innova did not materially oppose, that the plan should specifically include a protocol for restricting soil movement and/or controlling the emission of fugitive dust from the site on high wind days.

1. The Council had indicated ground of refusal based on prejudice to the proper future planning of the area, and a lack of consistency with orderly planning for the area. At the hearing, the Council's advocate indicated these largely covered the same concept, and its submissions largely covered the existence of the restrictive covenant, the purpose of the SUZ-3, and the need to protect the existing and future operations of the Altona Petrochemical Complex. The inference we draw from the Council's submissions is that, through considering all of these matters holistically, the Innova proposal should not be encouraged or approved as an appropriate development or use for this site. For the reasons we have already set out above, we disagree.
2. We have considered, but not expressly dealt with, all of the specific decision guidelines in the SUZ-3 for use, or for the buildings and works. The preceding discussion deals broadly with those in dispute and we have not, for example, dealt separately with matters not in dispute such as the availability of or connection to services. Having regard to decision guidelines in the SUZ-3, we are satisfied that the proposal will not prejudice the continued operation and expansion of the Altona Petrochemical Complex, and will not lead to any unacceptable off-site amenity impacts.
3. Indeed, overall, we consider it an ideal development and use for this dis-used and surplus site within the Complex.

1. In deciding to grant a permit, we have imposed relevant conditions. These are based on the draft provided by the Council, but modified to take into account the submissions of other parties.
2. The Council expressed a concern that, if the facility was to be a temporary use of surplus land in the petrochemical complex, that did not impact on the longer-term operation and expansion of the complex, there needed to be a safeguard to ensure that the permitted use did not obtain the benefit of existing use rights. Such rights may arise through proof of continuous use for 15 years under cl 63.11 of the Hobsons Bay Planning Scheme, and thus frustrate the protection of the petrochemical complex. We have included a condition requiring the use to cease prior to the expiration of the15 year period, unless a further permit is granted.

TABLE OF PROCESS COMPARISONS BETWEEN INNOVA AND RENEX FACILITIES**

Petroleum hydrocarbons (expressed as TPH), PAH, PCB

TPH, phenols, volatile chlorinated compounds (VOCs), organochlorine pesticides (OCPs), mercury, organotin, hydrogen fluoride, waste oils, tyres, shredder flock and solid wastes contaminated with hydrocarbon and organic compounds.

TPH/VOCs/hydrocarbons with boiling points below 5000C/VOCs/OCPs/mercury/waste oils: 30,000 mg/kg

Rotating kiln in oxygen atmosphere co-current heating with temperature: 450 0C

Pyrolysis kiln (oxygen depleted) with temperature: 450 0C to 580 0C

Conversion chamber operating at 900 0C to 1,000 0C. Minimum residence time of 3 seconds

Burning chamber operating at 1,100 0C to 1,200 0C. Minimum residence time of 2 seconds.

Heat exchanger to pre-heat kiln gas temperature reduction to 800 0C.

Rapid quench: 800 0C to less than 200 0C in less than 100 milliseconds. .

Heat exchanger (indirect kiln gas heating); Temperature reduction 1,100/1,2000C to 750/8000C

Steam generator (heating dryer) heat exchangers; Temperature reduction to 260-3000C.

Heat exchanger (pre-carbon bed filter): to 30 0C above dew point.

Rapid quench to minimise re-formation or production of pre-cursor dioxin and furan products/compounds.

Baghouse filter (particulates recycled to pugmill and blending with soils from kiln).

Acid scrubber (liquor used to wet soil in pugmill or directed to wastewater treatment system).

Powdered activated carbon - pre-baghouse. Used in case of upset conditions (waste to landfill or subject to PO testing processed).

Absorbent reactor (acid gas and aerosols absorb to particles).

Baghouse filter (removes particles; disposal to landfill).

Two stage scrubber (liquor directed to spray drier).

In line activated carbon bed (dust, metals and any residual organics from a process failure).

Re-use subject to blending and amelioration for lost organic matter and soil structure.

Re-use subject to blending and amelioration for lost organic matter and soil structure.

Use and development of the site for the purposes of a contaminated soil remediation facility and a reduction in the statutory car parking rate in accordance with the endorsed plans.

1. Before the development starts, three copies of revised plans drawn to scale and dimensioned, must be submitted to and approved by the Responsible Authority. When approved the plans will be endorsed and will then form part of the permit.

The plans must be substantially in accordance with the plans submitted to the Tribunal in Proceedings No. P677/2012 on 3 December 2012, but modified to show to the satisfaction of the Responsible Authority:

1. The yellow text on all the plans changed to a bolder colour other than yellow and clearly distinguishable from ones otherwise used in the plans.
2. Plans 31-2433507-C005, 31-2433507-C008, 31-2433507-C009, and 31- 2433507-C011 amended to show:
   1. The clear location of the "Steel and sheet pile Fabricated Wall - 6m high";
   2. The dividing walls between each "soil awaiting validation" stockpiles to be blue to indicate the "steel and colourbond windbreak wall, 3.5m high";
   3. The correct layout of bay C1 by deleting the red line extending to the west;
   4. Changing the reference 857 "tons" to 857 "tonnes"; and
   5. Clarification of the colours indicated for walls characteristics for all bays, especially Bays V6 and V7.

1. Plan 31-2433507-C005 amended to show the dimensions of the length and width of the parking aisles in the vicinity of the car park together with details of any bollards, doors, islands, walls or fences and kerbs.

1. Before the development starts, three copies of a Dust Management Plan, must be submitted to and approved by the Responsible Authority. When approved the plan will be endorsed and will then form part of the permit.

The plan must satisfy the "Requirement for Dust Management Plan" document submitted to the Tribunal in Proceedings No. P677/2012 on 3 December 2012, but modified to show to the satisfaction of the Responsible Authority:

1. In the heading to (1)(a) and the wording of (1)(a)(ii), insert "and handling" after the word "storage".
2. In the wording of (1)(a)(i), insert the words "shown on Drawing 31-2433507 - C008" after the words (Receival building).

1. In the wording of (1)(c)(ii), the words "(and concrete base)" is to be inserted after the word "concrete".

1. Re-paragraph (1)(d)(iii) as a stand-alone sub-clause numbered (1e) as it deals with vehicles transporting soil both in and out of the site whereas (d) only otherwise deals with transport of soil from the site.
2. In (2), in the second line, insert after "design", "and manner of operation" and in the third line, replace the word "its" with "their".
3. A protocol for restricting soil movement and/or controlling the emission of fugitive dust from the site or on high wind days.

1. The use and development as shown on the endorsed plans must not be altered without the further written consent of the Responsible Authority.
2. All noise emanating from the proposed buildings and works and use must comply with the State Environment Protection Policy N-1.
3. The facility must only be accessed by vehicles, including tandem tipper trucks, with a maximum length of 16 metres. B-Double vehicles or other larger trucks associated with the use may only access the site with the written consent of the Responsible Authority.
4. Prior to the commencement of the use, three copies of a Stormwater Management Plan (SWMP) must be submitted to and be approved by the Responsible Authority. Once approved the SWMP will form part of the permit. The SWMP must include measures which ensure that:
   1. contaminated waste and contaminated effluent is not discharged into the stormwater system; and
   2. the wheel wash is maintained in good order and all liquid and solid waste or like material collected therein must be retained on the site for disposal to an appropriate facility.

The use and development must at all times be conducted and maintained in accordance with the SWMP all to the satisfaction of the Responsible Authority.

1. Once the development has started, it must be continued and completed in

accordance with the permit and endorsed plans, to the satisfaction of the Responsible Authority. 2. Prior to the commencement of the use hereby permitted, areas set aside for

parked vehicles and access lanes as shown on the endorsed plans must, to the satisfaction of the Responsible Authority, be:

1. Constructed; 2. Properly formed to such levels that they can be used in accordance with the plans;

Parking areas and access lanes must be kept available for these purposes at all times.

1. The loading and unloading of contaminated soils and other prescribed industrial wastes to or from vehicles must only be carried out within the building and within the respective loading docks/ bays as shown on the endorsed plans unless with the written consent of the Responsible Authority.
2. Contaminated soil and other prescribed industrial waste must not be stored outside the buildings. Soil awaiting validation must be stored within the allocated validation soil stockpile bays.
3. The amenity of the area must not be unreasonably affected by the

use or development for any reason including through the:

1. Transport of materials, goods or commodities to or from the land; 2. Appearance of any building, works or materials;

1. Emission of noise, artificial light, vibration, smell, fumes, smoke, vapour, steam, soot, ash, dust, waste water, waste products, grit or oil; or

all to the satisfaction of the Responsible Authority.

1. Forklift trucks associated with the use must be fitted with broadband reversing beepers or other types of beepers which are to the satisfaction of the Responsible Authority.
2. The Soil Remediation Facility must only accept a maximum of 30,000 tonnes for the first year of operation and a maximum amount of 100,000 tonnes yearly thereafter unless with the written consent of the Responsible Authority.
3. All vehicles accessing the site must enter and exit the DOW land via Gate 10 only.
4. The use authorised by this permit must cease not later than 14 years and 11 months after the commencement of the use, with the intent that there be no long-term existing use rights established under the Hobsons Bay Planning Scheme through continuous use for a period exceeding 15 years unless a further permit is granted by the Responsible Authority.
5. This permit will expire if one of the following circumstances applies:

1. The development is not started within two years of the date of this permit; 2. The development is not completed within four years of the date of this permit; or

1. The use does not commence within four years of the date of this permit.

The Responsible Authority may extend the periods referred to if a request is made in writing before the permit expires or within three months afterwards.

1. GENERAL CONDITIONS
   • 1.1 The works must be constructed in accordance with the works approval application accepted on 11 January 2011 as augmented or amended by the additional information dated 18 April 2011, 30 April 2011, 4 May 2011, 3 December 2012 ("the application") except that, in the event of any inconsistency arising:
     1. within information supplied on the abovementioned dates, later information prevails over earlier information; and
     2. between the application and the conditions of this works approval, the conditions of this works approval shall apply.
   • 1.2 This works approval will expire:

1. on the issue or amendment of a licence relating to all works covered by the works approval; or 2. on the issue of written notification from EPA confirming that all works covered by the works approval are complete and that no licence or licence amendment is required to operate the works; or

1. two years from the date of issue unless the works have been commenced by that date to the satisfaction of EPA.
   • 1.3 This works approval will not take effect until any permit which is required under the Planning and Environment Act 1987 has been issued by the Responsible Authority, and served on the EPA by the applicant and served on the EPA by the applicant.

1. WORKS CONDITIONS
   • 2.1 2.1 The occupier must construct discharge stacks in accordance with the application, so that:

1. the outlet of the stack will allow free vertical discharge of wastes; 2. the stacks are clearly labelled as "DP 1" for the building purification stack and "DP2" for the stack after the acid gas scrubber of flue gas cleaning system; and

1. provisions for sampling are included in accordance with EPA Publication No 440.1, A guide to the Sampling and Analysis of Air emissions and Air Quality.
   • 2.2 The occupier must install monitoring devices to:

1. continuously monitor particles, hydrogen fluoride, hydrogen chloride, sulphur dioxide, carbon monoxide, nitrogen dioxide, oxygen and volatile organic compounds at DP2;

b) continuously monitor dust levels at site boundaries and weather conditions at the site; 2. register an alarm when any measurement exceeds a set point; and

1. report the alarm condition to the control room.

1. REPORTING CONDITIONS
   • 3.1 Prior to construction, the occupier must submit to EPA a detailed design of:

1. the ventilation and air treatment system of the building; 2. the powdered activated carbon injection system; and

1. the dust monitoring system.
   • 3.2 Two months prior to commissioning, the occupier must submit to EPA:

1. quality control procedures for testing soil contaminant levels at receipt, during treatment of contaminated soils and despatch of treated soil for re- use; 2. a PCB environment improvement plan (PCB-EIP);

1. a reactive dust management plan; 2. a commissioning plan with detailed proof of performance testing; 3. a complete plant Hazard and Operability Study ("HAZOP") with confirmation that measures to address all r recommendations of the HAZOP have been implemented; and 4. written advice from WorkSafe Victoria regarding compliance with: * the Occupational Health and Safety Act 2004; and * the Occupational Health and Safety Regulations 2007.

[INSERT PLAN OF PREMISES - Drawing No. CSR001-SITE-102, Revision 2 dated 02/1212]

[1] Throughout our reasons we refer to dioxins. This should be taken to mean dioxins, furans and / or dioxin like chemicals: classes of chlorinated chemical compounds that have a range of toxicities, some of which are considered extremely hazardous to human health and the environment. For simplicity, we have adopted the common nomenclature of referring to all these compounds as dioxins.

[2] Dual Gas Pty Ltd & Ors v Environment Protection Authority [2012] VCAT 308 at [45].

[3] [2012] VCAT 308

[4] We note for the record that two of the Tribunal members in this case (Dwyer DP & Potts M) were also members of the Tribunal in Dual Gas.

[5] On 22 October 2012 the EPA released a draft guideline for public comment (Publication Number 1507). This was tabled and referred to in the course of the hearing. Subsequent to the hearing and prior to our decision, this guideline was finalised and released on 5 February 2013 (Publication Number 1517). We here refer to the draft as it was then discussed but note that the final guideline is the same in substance as the draft. Whether as draft or final form, the Guideline is non statutory instrument being produced to assist in interpreting and applying the SEPPs, as per clause 13(2)(d) of the SEPP (AQM). We refer to it here on this basis.

[7] Required to be considered in decision making pursuant to cl 13(1) of the SEPP (AQM).

[10] That is to say, such characterisation occurs in accordance with requirements under the Environment Protection (Industrial Waste Resource) Regulations 2009 and the relevant guidelines for Soil Hazard Categorisation and Management and Waste Transport Certificate.

[11] Statement of evidence of Dr Nadebaum at section 2.

[12] A kg/kg comparison of course also needs to account for any differences in greenhouse gas generation from different organic compounds. Higher end or heavier carbon compounds will by definition generate higher carbon based greenhouse gas loads when all other factors are equal.

[13] Clauses 18(3)(c), 19(2) and 20(1).

[14] At [57] of the Renex written submission.

[15] Footnote 6 to table of Schedule A and Dr Cowan's evidence at page 45.

[16] European Directive DIRECTIVE 2007/76/EC of the European Parliament and of the council of 4 December 2000.

[17] Dr Cowan's evidence at page 15. There was considerable focus on 0.033ng/m3 during a proof of performance test where PCB concentrations of 150 mg/kg were treated. The value of 0.076ng/m3 from a lesser PCB concentration of 30 mg/kg represents the more conservative case.

[18] Department of Sustainability, Environment, Water, Population and Communities report prepared by Unilabs Environmental, no date cited.

[19] Section 84B of the Planning and Environment Act 1987 requires the Tribunal to give effect to relevant SEPPs.

[26] Publication 1506, dated October 2012.

[28] Recommended buffer distances for industrial residual air emissions.

[29] Section 4, Scope of Guidelines.

[30] Renex Group Pty Ltd v Greater Dandenong CC [2010] VCAT 1397 at [30] to [32].

[32] [2010] VCAT 1658 per Gibson DP and Potts M

[33] [2010] VCAT 1658. Although DP Gibson sat with Member Potts in that proceeding, the declaration under s 149B of the Planning and Environment Act 1987 was made by DP Gibson alone.

[34] generally following PE Bakers Pty Ltd v Yehuda (1988) 66 LGRA 403, particularly at pp 442-3 (NSW Supreme Court) referred to in Innova's written submissions.

[35] Cf Wik Peoples v Queensland & Ors [1994] FCA 967 at [10] referred to in Renex's written submissions.

[36] Cf PE Bakers Pty Ltd v Yehuda, (op cit) at pp 410-11, and other cases cited in Innova's written submissions.

[38] Exhibit R-9 includes the transfers for Lots 1,2 and 4 on PS 53077. We have not sighted the transfer for Lot 3.

[39] Since the Council assessment, this clause has been largely replaced by cl 21.08, and Council's submission at the hearing dealt with the replacement clause.

[41] Throughput rates for both processes will vary with calorific (energy) value of compounds/load.

[42] The contaminant loadings vary with feed rates. We do not set out here what are the feed rates, but we note that for some contaminants the feed rates vary in the Renex process.