Volume fuel retailer. The concept is central because it determines who must comply with the minimum biofuel requirements (s 6 and s 7 of the Act) and the return obligations. The Regulation does not define the term itself - that is in the Act - but it sets the threshold for when a fuel service station is a “volume fuel service station”: sales of 1.8 million litres in each of the two immediately preceding relevant periods (s 5). Because a relevant period is six months (s 6), a retailer whose sales dip below that threshold in a single period can fall out of the definition, only to re-enter if sales recover. This creates a compliance cliff: a retailer just above the threshold in two consecutive periods is fully caught; one just below is not, even if the difference is small. The two-period look-back means a retailer cannot be a volume fuel retailer for a given period unless it has been above the line for the prior twelve months, which gives some stability but also means a retailer that expands suddenly may have a lag before obligations attach.

Biofuel sustainability standard. Rather than drafting a bespoke standard, the Regulation adopts two external standards “as in force from time to time” (s 4). The RSB Principles & Criteria cover environmental, social and economic sustainability for biomass, including greenhouse gas emissions, land use, and labour rights. ISO 13065 is a broader sustainability criterion for bioenergy. Incorporating them by reference means that any revision by the RSB or ISO automatically becomes part of the Regulation without a notice or amendment process. That reduces regulatory lag but also imposes compliance risk: a retailer or supplier that verified compliance against a previous version may find its product out of compliance after an external body changes the standard. The Regulation does not specify which standard or combination must be met, or whether meeting one is sufficient.

Primary wholesaler exclusion. The Act defines “primary wholesaler” and the Regulation excludes three named corporations (s 7). The effect is that those entities are not treated as primary wholesalers under the Act, which likely means they are exempt from certain reporting or supply obligations. The exclusion is corporate-specific, not function-specific, so it does not apply to any other entity that may engage in similar wholesale activities. Why those three? The Regulation does not say. Potential explanations include that they are refiners or importers that would otherwise be primary wholesalers but are already subject to separate Commonwealth fuel standards, or that the exclusion was negotiated to secure their participation in the ethanol supply chain. Regardless, the effect is to carve out a significant portion of the NSW fuel market from the definition, concentrating the regulatory burden on smaller wholesalers or retailers.

Defence steps. For the minimum ethanol and biodiesel requirements, the Regulation prescribes a set of steps that, if taken, constitute a defence to a prosecution (ss 9 and 10). These are not safe harbours that guarantee immunity; they are factual matters a court must consider. The steps include upgrading infrastructure, ensuring facilities, securing supply, and marketing. For ethanol, there is an additional requirement that E10 sold must contain at least 9 per cent ethanol; this is a quality minimum that is separate from the volumetric mandate. For the petrol-ethanol blend availability requirement under s 8, the defence is narrower: only inability to secure finance or economic non-viability of capital or transport costs (s 11). That defence is not available for the minimum volume requirements.

Exemption period. A volume fuel retailer that is taking steps to comply can apply for an exemption, and the Regulation sets a two-year period for that purpose (s 12). That period is prescribed for s 9B(5A)(b) of the Act, which likely limits how long an exemption can last or how long a retailer can be considered to be “taking steps”. Two years may be tight for installing new tanks, pumps and piping, especially in regional areas where contractors and approvals take longer. The Secretary can demand information to determine the application (s 13), which adds administrative delay.

Return and record obligations. The return is due electronically within one month after each six-month relevant period (s 14(1)). That means two returns per year, due by end of July and end of January. The required data includes the number of stations, bowsers and nozzles - not merely volume sold. Record-keeping must capture the biofuel sustainability standard compliance for each sale of ethanol or biodiesel blend (s 15(1)(f)). Given that compliance is determined against external standards that may change, this imposes a verification burden on the retailer or supplier at the transaction level.

The Regulation directly affects three categories of entity:

Volume fuel retailers. These are persons who operate at least one volume fuel service station in NSW. The threshold is volumetric: sales of 1.8 million litres in each of the two preceding relevant periods (s 5). That catches most major service station chains and large independent retailers with high throughput, but it may be below the fuel volume of a busy metropolitan site. Smaller rural stations with sales below 1.8 million litres per six-month period are not caught, even if they are the only fuel provider in a town. The Regulation imposes on them the obligation to make petrol-ethanol blend as accessible as regular unleaded (s 8), to meet minimum ethanol and biodiesel volume mandates (via the Act), to file returns (s 14), to keep detailed transaction records (s 15), and to face penalty notices for non-compliance (Schedule 1). They also have access to statutory defences and exemptions if they take prescribed steps or can show economic impracticability.

Relevant service station operators. These are operators who were registered as volume fuel retailers in the two relevant periods immediately before the period to which the return relates (s 14(3)). This category catches operators that have fallen out of the volume threshold but still have a history of being a volume fuel retailer. They are required to file returns under s 14 even though they are no longer subject to the minimum biofuel requirements. The rationale is presumably to monitor whether they are still making blend available or to track market trends, but it imposes a continuing administrative burden on businesses that may have downsized.

The three excluded primary wholesalers. Mobil Oil, Viva Energy and Freedom Fuels are expressly excluded from the definition of primary wholesaler (s 7). This means they are not subject to any obligations that attach to primary wholesalers under the Act - for example, reporting or supplying minimum volumes of biofuels to retailers. This exclusion creates a competitive asymmetry: competitors in the wholesale supply market that are not named (e.g., new entrants, other independent wholesalers) remain subject to primary wholesaler obligations. The exclusion appears permanent and not conditional on any performance standard.

Indirectly affected parties include ethanol and biodiesel producers, who will find their market shaped by the compliance decisions of retailers and wholesalers. The sustainability standard definition (s 4) affects their certification choices. Consumers are affected because the accessibility requirement (s 8) ensures that E10 is not hidden behind a separate queue or pump, but also because the minimum ethanol mandate reduces the availability of pure petrol (unless retailers choose to stock both, which increases capital costs). The Regulation does not mandate that ethanol blend must be cheaper than pure petrol; it only requires the E10 price to be displayed alongside other fuels (s 9(d)). The compliance costs of record-keeping and sustainability verification are ultimately borne by consumers through higher fuel prices, although the Regulation contains no cost-benefit analysis or consumer impact statement embedded in its text.

The Secretary and enforcement officials. The Secretary has the power to require information for exemption applications (s 13). The penalty notice regime (Schedule 1) creates a low-level enforcement tool: $1,100 and $5,500 fixed fines for record-keeping and return failures, without requiring a court prosecution. This shifts enforcement cost from the state to the alleged offender: a recipient can either pay or elect to have the matter heard in court, but court is more expensive.

Duty to make petrol-ethanol blend accessible. Under s 8 of the Act (prescribed by s 8 of the Regulation), a volume fuel retailer must ensure that petrol-ethanol blend is as accessible to a customer attending the volume fuel service station as regular unleaded petrol (or, if regular unleaded is not sold, another type of petrol). This is a comparative standard: the blend must not be placed in a less convenient location, have fewer pumps, or be harder to reach. It does not require the retailer to sell ethanol blend at all - the Act’s minimum ethanol requirement (s 6) does that separately - but if the retailer does sell it, it must be equally accessible. The duty is ongoing. Breach can lead to a fine under the Act.

Duty to comply with minimum ethanol and biodiesel requirements. The Act imposes volumetric minimums on volume fuel retailers (ss 6 and 7). The Regulation does not set the percentages; it sets the steps for a defence (ss 9, 10). The practical effect is that a retailer must sell enough ethanol blend and biodiesel blend to meet the minimum. If it fails, it can avoid conviction only if it can show it took the prescribed steps: infrastructure upgrades, securing supply, marketing, and (for ethanol) ensuring E10 contains at least 9 per cent ethanol. The burden of proving those steps is on the defendant, on the balance of probabilities. The steps are cumulative: all must be taken “on a continuing basis” (ss 9 and 10). A retailer that installs infrastructure but does not market the blend may not have a defence.

Defence for availability failure. If a retailer fails to make petrol-ethanol blend as accessible as regular unleaded, it has a defence only if it can show either that it used best efforts but could not secure finance for necessary infrastructure, or that the capital costs or (for remote/regional areas) transport costs were not economically viable given the price that would need to be charged to recover them (s 11). This defence is narrower than the steps defence for volume failures: it does not cover supply disruptions or marketing failures. It is also a complete defence, not a mitigating factor.

Right to apply for exemption. A volume fuel retailer that is taking steps to comply with the minimum biofuel requirements can apply to the Minister for an exemption for a period of up to two years (s 12). The Regulation does not set the application process; it only gives the Secretary power to require information (s 13). The exemption period is limited: once granted, it would seem to run for up to two years, after which the retailer must be fully compliant or face penalties. The retailer bears the risk of delays in infrastructure projects or supply contracts.

Duty to provide returns. A volume fuel retailer or relevant service station operator must give the Secretary an electronic return within one month after the end of each relevant period (s 14). The return must detail numbers of stations, bowsers and nozzles for each fuel. This is a recurring administrative burden. For a chain with dozens of stations, collating that data every six months in electronic form requires a system. Failure to provide a return is an offence carrying a $5,500 penalty notice (Schedule 1).

Duty to keep and retain records. For each transaction of petrol or diesel, the retailer must record volume, blend type, ethanol/biodiesel content, and whether the blend complies with a biofuel sustainability standard (s 15(1)). That last element is noteworthy: the retailer must know the sustainability status of the blend at the transaction level, which likely means obtaining certification or a declaration from the upstream supplier. Records must be kept for at least three years (s 15(2)). Failure to keep or retain records is an offence punishable by a $5,500 penalty notice (Schedule 1). The record-keeping duty applies to all sales of petrol or diesel fuel, not just biofuel blend sales, because the record must identify whether the petrol sold was ethanol blend (s 15(1)(b)). So a retailer must capture blend status even for sales that are not subject to any mandate, potentially increasing data collection costs.

Right to rely on defences and exemptions. The Regulation gives retailers the right to argue that the steps were taken or the economic impracticability existed. This is a procedural protection, but it is not a guarantee: a court may reject the evidence. The retailer also has the right to be informed of penalty notice amounts (Schedule 1) and to elect to contest the notice in court.

The Regulation establishes a penalty notice regime under the Act. The amounts are fixed:

• Offence under s 13(1A) of the Act: $1,100.
• Offence under s 13(1) for failing to provide a return in compliance with s 11 of the Act: $5,500.
• Offence under s 13(2) for failing to keep and retain records in compliance with s 12 of the Act: $5,500.

These are penalties that can be issued by an enforcement officer without a court proceeding. The penalty notice amounts are relatively low compared to the potential commercial consequences of non-compliance (e.g., loss of flexibility in fuel sourcing). For a large retailer, $5,500 per offence is a minor cost of doing business - it may be cheaper to pay the fine than to comply with the record-keeping requirement, especially if the system is difficult to implement. That creates a perverse incentive: the penalty may not deter non-compliance if the cost of compliance exceeds the fine. However, the Act itself likely provides for higher court-imposed penalties; the Regulation only sets the notice amounts.

The penalty notice schedule (Schedule 1) specifies that the notice may be issued only for the offence as described. For the return and record-keeping offences, the amounts are uniform. There is no escalation for repeat offences in the Regulation itself, though the Act may have provisions. The Secretary or an authorised officer can issue penalty notices. Recipients can pay the fine or elect to have the matter dealt with by a court, where the penalty could be different.

The enforcement mechanism for the minimum biofuel requirements and the accessibility standard is not through penalty notices under this Regulation; those are prosecuted under the Act (ss 6, 7, 8). The Regulation provides defences and exemptions that a defendant can raise in such a prosecution. The Secretary can require information for exemption applications (s 13) but the Regulation does not set consequences for failing to provide it - presumably a refusal would result in the exemption being refused.

Compliance costs include the cost of upgrading infrastructure (tanks, pumps, piping) to handle ethanol blends, the cost of securing supply contracts, the cost of marketing (including signage), and the administrative cost of returns and record-keeping. The economic viability defence (s 11) for the availability requirement is only relevant if the retailer is prosecuted; it does not reduce upfront costs. For a retailer facing a capital upgrade of, say, $500,000 at a single site, the two-year exemption period (s 12) may not be enough to recover that investment through sales, especially if margins are thin.

The record-keeping requirement includes verifying compliance with a biofuel sustainability standard (s 15(1)(f)). That requires the retailer to obtain evidence from its supplier that the ethanol or biodiesel meets RSB or ISO standards. That evidence must be kept for each transaction for three years. For a large retailer handling millions of litres per year, this is a significant data management task. The penalty for failure is $5,500, but if the record is missing, the retailer may not be able to prove its own compliance with the Act’s sustainability provisions if those are enforced. The Regulation does not prescribe how the sustainability compliance is to be demonstrated - declaration, certificate, chain-of-custody system - leaving retailers and suppliers to work that out independently.

The Regulation is made under the Biofuels Act 2007 (NSW). It sits within a broader regulatory framework:

Commonwealth fuel quality laws. The Fuel Quality Standards Act 2000 (Cth) sets national standards for petrol and diesel, including ethanol and biodiesel blends. The NSW Regulation does not override those; it adds state-level volumetric mandates and accessibility requirements. A retailer must comply with both - Commonwealth fuel quality standards (e.g., maximum ethanol content, volatility limits) and NSW minimum ethanol sales requirements. There is potential for conflict: if Commonwealth standards restrict ethanol blend percentages in certain seasons, a retailer may find it temporarily impossible to meet the NSW minimum if it cannot sell enough blend. The Regulation’s defence (s 9) does not explicitly cover compliance with Commonwealth law as a ground, though the “best efforts to secure supply” step (s 9(c)) might indirectly include supply availability that is constrained by national standards.

Competition and consumer law. The exclusion of three named corporations from the primary wholesaler definition (s 7) raises questions under the Competition and Consumer Act 2010 (Cth). If the exclusion confers a competitive advantage (e.g., exemption from supply obligations that otherwise raise costs), it may be a form of regulatory advantage that could be challenged, though state regulations are generally immune unless they are anti-competitive in effect and not authorised. The Regulation does not state that the exclusion is based on any public benefit test; it is a blanket prescription. The effect is to create three regulatory classes: major wholesalers (exempt), other wholesalers (subject to primary wholesaler obligations), and retailers (subject to volume retailer obligations). The asymmetry may reduce the number of potential supply partners for new retailers.

Environmental law and planning. Upgrading infrastructure to sell ethanol blend (tanks, piping, pumps) may require development approvals under the Environmental Planning and Assessment Act 1979 (NSW). The two-year exemption period (s 12) does not override planning delays; a retailer that cannot get planning approval within two years may lose its exemption and face penalties even if it has taken all reasonable steps. The Regulation’s defence for the availability requirement (s 11) mentions inability to secure finance but not inability to secure planning permits.

Other state regulations. The Regulation repeals and replaces the Biofuels Regulation (No 2) 2016 (s 16). Any act, matter or thing that had effect under the old regulation continues under the new one (s 16(2)), so there is no gap. However, the change in definitions - especially the sustainability standards (s 4) and the exclusion list (s 7) - may require updates to compliance programs.

Incorporation by reference of external standards. The RSB Principles & Criteria and ISO 13065 are private standards. Their adoption by reference means changes to those standards automatically alter the legal meaning of “biofuel sustainability standard” without any parliamentary process. This is constitutionally permissible but creates uncertainty: a change by RSB could require NSW retailers to immediately alter their record-keeping or sourcing without notice. The Regulation does not provide a transitional period for standard changes. This interacts with the record-keeping duty to record compliance (s 15(1)(f)): a supplier that was certified under an older version may become non-compliant under a new version, and the retailer would be recording non-compliant fuel in its records.

Penalty notice regime. The amounts in Schedule 1 are set under the Act s 29(2). They replace any default penalty amounts under the Fines Act 1996 or other laws. The amounts are not increased for inflation; they are fixed by the Regulation unless amended.

The Regulation was originally made on 1 September 2022 (the date of publication on the NSW legislation website) and commenced on that date (s 2). It repealed the Biofuels Regulation (No 2) 2016.

The only amendment noted in the current version is by Act No 25 of 2024, Schedule 7.4[1]-[3], which amended section 4. The amendment short-form is “Am 2024 No 25, Sch 7.4[1]-[3]”. The amending act is not named in the Regulation text. Based on the numbering, 2024 No 25 is likely a statute amendment act (e.g., the Statute Law (Miscellaneous Provisions) Act 2024 or similar). The amendment affected the definition of “biofuel sustainability standard” - possibly updating the listed standards or their descriptions. Because the Regulation incorporates the standards “as in force from time to time”, the amendment may have been to the text of the Regulation rather than to the standard itself - perhaps adding or replacing a standard. However, the exact nature of the amendment is not disclosed in the Regulation’s text beyond the marginal note. This patchy visibility is common in subordinate legislation: the amending act is not reproduced, and the reader must cross-reference.

No other amendments are shown. The regulation does not include a historical table of amendments; the only clue is the marginal note at s 4. The Regulation is less than three years old as of the date of this analysis, so there has been limited opportunity for significant amendment. The repeal and saving provision (s 16) means that any certificates, approvals or data that were valid under the 2016 regulation remain valid under the 2022 regulation, so transitional compliance is straightforward. The 2016 regulation would have been automatically repealed on 1 September 2022 by the Subordinate Legislation Act 1989, s 10(2), had the new regulation not been made - the note to s 2 makes that clear. So the 2022 regulation was essential to avoid a lapse.

The absence of amendment history in the source text is itself notable. A practitioner must consult the amending act separately to see what changed in s 4. This is a common frustration: the regulation as published may not include a full amendment history, only the originating text. The user’s text appears to be the current version as at the date of the regulation, including the 2024 amendment. But the full details of the amendment are not provided.

The Regulation itself has no reported litigation as of the time of analysis. It has only been in force since September 2022 and is a procedural instrument. Any litigation under the Biofuels Act 2007 would likely focus on the Act’s substantive provisions rather than the regulation’s definitions or defences. However, the Regulation creates the framework for defences and exemptions, and those could be tested in court.

Key potential litigation issues include:

• Whether the “best efforts” defence (ss 9, 10) has been made out. A court must decide whether a retailer took “upgrade” steps, “ensured” facilities, and “secured… on a continuing basis” sufficient supplies. The Regulation does not define “best efforts” or “on a continuing basis”. These are fact-intensive inquiries. A retailer that upgraded one station but not another may fail. A retailer that secured supply for two months but not for the full relevant period may fail. Defended prosecutions are the most likely source of interpretive case law.

• The economic viability defence (s 11) - whether capital costs or transport costs are “not economically viable, considering the price for the petrol-ethanol blend that would be charged to recover the costs.” That involves evidence about pricing, demand, and cost recovery. It is a narrow defence that requires a retailer to show that it could not charge a price high enough to recover the costs, but it does not consider whether consumers would accept that price; it is a hypothetical “would be charged” standard. The court may need expert economic evidence.

• Whether a retailer is a “volume fuel retailer” - the threshold of 1.8 million litres in each of the two immediately preceding relevant periods (s 5). Disputes could arise over how sales are measured (litres sold at the station, or delivered to storage, or some other metric). The Act may define “sold”, but the Regulation does not clarify. Also, if the retailer changes ownership or structure, the two-period history may be unclear.

• The sustainability standard record-keeping obligation (s 15(1)(f)). A prosecution for failing to keep records that show compliance with a biofuel sustainability standard will require the court to decide whether the regulation’s incorporation of RSB or ISO is valid, and what evidence is sufficient to show compliance. This could lead to challenges if the standard is vague or changes.

• Application of penalty notices. A person issued a $5,500 penalty notice for failure to provide a return may argue that the return was not required because the person was not a volume fuel retailer in the relevant period, or that the electronic return was impossible (e.g., no internet access). The Regulation does not allow paper returns; it requires electronic (s 14(1)). That could be challenged as impractical for rural operators.

Given the limited time in force, there is likely no case law yet. The 2016 regulation and earlier versions may have generated some precedent, but that is not provided. The note to s 2 says the 2016 regulation would have been repealed anyway; it may have been litigated, but the current Regulation’s definitions differ (e.g., the exclusion of three wholesalers is new - s 7 - and the threshold for volume fuel service station may have been different). Without access to the old regulation or case law, the analysis must note that the Regulation is largely untested.

1. The sustainability standard moves without notice. Section 4 incorporates RSB and ISO standards “as in force from time to time”. If RSB adds a new criterion that is difficult to meet, a retailer’s supply that was compliant in January may be non-compliant in February, and the retailer must record that non-compliance (s 15(1)(f)). There is no transitional period. The retailer cannot rely on a supplier’s older certification. The only way to manage this is contractual: require the supplier to notify of standard changes and guarantee compliance.

2. The 1.8 million litre threshold is per period, not annual. A retailer that sells 3.6 million litres a year might not be a volume fuel retailer if the sales are uneven - for example, 1.7 million in Jan-Jun and 1.9 million in Jul-Dec. The retailer would be caught for the July-December period (because the two preceding periods would be the previous Jul-Dec and the following Jan-Jun? Actually s 5 says “last 2 immediately preceding relevant periods”. So for a relevant period starting July 2023, the two preceding relevant periods are Jan-Jun 2023 and Jul-Dec 2022. If sales in Jul-Dec 2022 were 1.9M and Jan-Jun 2023 were 1.7M, total 1.8M in each? No - the threshold is 1.8M in each period, not average. So the retailer with 1.7M in one period is not a volume fuel retailer for the July 2023 period, even though its annual sales are high. That creates a compliance gap: a retailer that dips below for a single six-month period sheds all obligations until it has two consecutive periods above the threshold again.

3. The defence steps for ethanol require E10 to contain at least 9% ethanol (s 9(e)). Many retailers sell E10 that may contain less than 9% in practise - the fuel standard allows a range. If a retailer sells E10 with 8.5% ethanol, it cannot use the defence even if it has upgraded infrastructure and secured supply. This is a quality requirement hidden in the defence.

4. The returns must be electronic (s 14(1)). There is no paper alternative. A retailer in an area with unreliable internet cannot comply. The Secretary may have the power to accept otherwise, but the Regulation does not say. The penalty for failing to provide a return is $5,500 (Schedule 1). This may be a trap for smaller former volume fuel retailers who are now only relevant service station operators (s 14(3)) and may not have kept up the electronic systems.

5. Record-keeping requires recording compliance with a sustainability standard (s 15(1)(f)). The retailer must know for each sale whether the blend complies. The retailer will likely need a declaration from the supplier for each batch. If the supplier cannot provide that (e.g., because the biofuel is imported and not certified), the retailer cannot complete the record, and is technically in breach even if the fuel is otherwise fine.

6. The primary wholesaler exclusion is corporate-specific (s 7). Only Mobil Oil, Viva Energy and Freedom Fuels are excluded. If a subsidiary of one of those entities operates as a wholesaler, it is not excluded unless it is the exact named company. Also, if the entity changes its name or ACN, the exclusion may not apply. The Regulation does not contain a catch-all for successors.

7. The economic viability defence (s 11) does not cover operating losses. It only covers capital costs and transport costs (for regional areas). If a retailer cannot sell ethanol blend profitably because customers prefer pure petrol, that is not a defence. The economic viability test is based on the price that would be charged to recover the specified costs, not on overall profitability.

8. The two-year exemption period (s 12) is the maximum for “taking steps”. If a retailer applies for exemption and installs infrastructure but delays due to contractor shortages, the two years may expire before installation is complete. The Minister has no power to extend beyond two years under the Regulation. The retailer would then be liable.

9. The penalty notice amounts do not escalate with inflation or repeat offending. A retailer that fails to file a return multiple times gets the same $5,500 each time, but the total can add up. However, the fixed amount may be cheaper than the cost of compliance, creating an incentive to treat it as a tax rather than a deterrent.

10. The saving provision (s 16(2)) preserves acts or things under the old regulation, but not exemptions or approvals that have expired. If a retailer had an exemption under the 2016 regulation that was still running, it continues. But the new regulation’s definition of “volume fuel service station” threshold (1.8M L) may have changed from the old threshold; retailers that are no longer volume fuel retailers should check whether they still need to comply with old exemptions.

Step 1: Determine if you are a volume fuel retailer.
Calculate your sales of petrol and diesel at each service station for each six-month relevant period (January to June and July to December). If a service station sold more than 1,800,000 litres in each of the two immediately preceding relevant periods, it is a volume fuel service station. If you operate at least one such station, you are a volume fuel retailer and subject to all obligations. If you were a volume fuel retailer in the past but have since fallen below the threshold, check if you are a “relevant service station operator” (s 14(3)) and still required to file returns.

Step 2: Meet the minimum ethanol and biodiesel requirements.
The Act sets out the minimum percentages. You must sell enough ethanol blend and biodiesel blend to meet those percentages of your total fuel sales. The Regulation does not set the percentages; refer to the Act. To prepare for a potential defence if you cannot meet the minimum, start taking the steps outlined in ss 9 and 10:

• Upgrade infrastructure (tanks, pipes, pumps) to handle and dispense ethanol blend and biodiesel blend.
• Ensure facilities (pumps, signage) are available at your volume fuel service stations.
• Secure ongoing supply of ethanol, biodiesel or premixed blends from suppliers.
• Market the blends: advertise availability, and for E10, conspicuously display the price on a sign alongside other fuels (s 9(d)).
• For E10, ensure the blend you sell contains at least 9% ethanol by volume (s 9(e)). Verify this with batch certificates from your supplier.

Keep records of all these steps - purchase orders, infrastructure contracts, marketing materials, signage photographs, supplier certificates - because you will need them to prove the defence if prosecuted.

Step 3: Comply with the accessibility standard (s 8).
At each volume fuel service station, ensure that petrol-ethanol blend is at least as accessible as regular unleaded petrol. This means:

• Blend is available from a pump that is in a similar location (not hidden at the back).
• The same number of bowsers and nozzles? Not necessarily the same number, but the customer should not have to wait longer or navigate obstacles.
• If regular unleaded is not sold, compare to another type of petrol.

If you cannot meet this standard for economic reasons, you have a narrow defence (s 11). Document the capital cost estimates and transport cost projections, and obtain evidence that you could not secure finance for infrastructure. This defence is only available if you are prosecuted; it does not excuse ongoing compliance.

Step 4: File electronic returns within one month after each relevant period.
Returns are due by the end of July (for the Jan-Jun period) and the end of January (for the Jul-Dec period). Each return must include:

• Number of service stations where petrol-ethanol blend or regular unleaded is available for sale.
• Of those, the number that are volume fuel service stations (likely all of them, but check).
• Number of bowsers and nozzles at each service station for each fuel type.

Submit the return electronically to the Secretary (the NSW Department that administers the Act). If you have multiple stations, aggregate the data. Keep a copy of the return and proof of submission.

If you are a relevant service station operator (former volume fuel retailer), you must also file returns even though you no longer have the minimum volume obligations.

Step 5: Keep records for each transaction (s 15).
For each sale of petrol or diesel fuel (not just blend), record:

• Volume sold (in litres).
• Whether the petrol sold was petrol-ethanol blend.
• Whether the diesel sold was biodiesel blend.
• For blend sales: the amount of ethanol or biodiesel in the blend (as a percentage by volume).
• For blend sales: whether the blend complies with a biofuel sustainability standard (RSB or ISO 13065).

The last point is the most onerous. You need to have a system for verifying sustainability compliance at the transaction level. Options:

• Obtain a declaration from each supplier that the batch of ethanol or biodiesel meets the relevant standard (supplier may have RSB or ISO certification).
• Record the certificate number or audit trail.
• If the blend does not comply, you must record that it does not comply.

Records may be in written or electronic form, e.g., copies of invoices or other sale records (s 15(2)). Keep all records for at least three years after the end of the relevant period. If you dispose of records earlier, you face a $5,500 penalty.

Step 6: Apply for an exemption if needed.
If you cannot comply with the minimum biofuel requirements, you may apply to the Minister for an exemption for a period of up to two years (s 12). The exemption is only available if you are “taking steps” to comply. The Secretary may require additional information (s 13). Prepare a written application including:

• Details of the steps already taken (infrastructure, supply contracts, etc.).
• Timeline for achieving compliance.
• Any evidence of barriers (finance, approvals).

During the exemption period, continue taking the steps. If you cannot complete within two years, the exemption expires and you become liable.

Step 7: Respond to penalty notices.
If you receive a penalty notice for failing to provide a return or keep records, you can pay the $5,500 (or $1,100 for s 13(1A) offences) within the time stated, or elect to have the matter heard by a court. If you have a valid defence (e.g., you were not a volume fuel retailer, or the return was lost due to system failure), you may wish to contest. Keep legal advice.

Step 8: Monitor changes to sustainability standards and the Regulation.
Bookmark the RSB and ISO websites. If a new version of RSB Principles & Criteria or ISO 13065 is published, check whether your supply chain still meets the standard. If not, you must update your records and potentially change suppliers. Also monitor the NSW legislation website for amendments to the Regulation. The 2024 amendment changed s 4; further amendments may alter definitions, thresholds or defences.

Step 9: Review the excluded primary wholesalers list periodically.
If you are a wholesaler and believe you should be excluded like Mobil, Viva and Freedom Fuels, there is no mechanism in the Regulation to add your name. You must comply with primary wholesaler obligations unless the Act defines you otherwise. Consider lobbying for an amendment.

Step 10: Audit your compliance program annually.
Because the Regulation imposes ongoing obligations (keep records for 3 years, file returns every 6 months, maintain compliance with standards that change), a one-off check is insufficient. Establish an internal calendar for return filing, a supplier certification review, and a record-keeping audit. If you have multiple stations, centralise data collection. Consider using fuel management software that can capture blend percentages and sustainability compliance at the point of sale. The cost of non-compliance ($5,500 per offence) may be less than the cost of a full compliance system, but repeated non-compliance can lead to prosecution under the Act with higher court penalties and reputational damage.