Circular Economy (Waste Reduction and Recycling) (Risk, Consequence and Contingency Plans and Other Matters) Regulations 2023

The Regulations introduce and operationalise a small set of core regulatory concepts that determine who is regulated, what they must produce, and what information the regulator must publish.

1. Essential waste, recycling or resource recovery service (regulation 5 and Schedule 1). Schedule 1 lists 15 categories of services (for example landfill services, hazardous waste services, residual waste services, recycling services (commingled), organics services, container deposit scheme services). Each entry contains a description of the scope and, in many cases, specific exclusions (for example municipal landfill facilities servicing fewer than 5 000 people are excluded from “landfill services” Item 1). These prescribed categories determine which types of activities can trigger responsible entity status under the Act.

2. Responsible entity (regulation 6). The Regulations prescribe an entity as a responsible entity if it supplies an essential service (that is not an “essential service” under the Emergency Management Act 2013) and meets at least one of three objective thresholds:

   • market share threshold: holding 20 per cent or more of the Victorian market share for the service or for that service for a type of waste (regulation 6(1)(b)(i));
   • contract value threshold: holding one or more government contracts to deliver the service with total combined value over $50 million across the life of those contracts (regulation 6(1)(b)(ii)); or
   • geographic/temporal threshold: providing services under ongoing arrangements (defined as arrangements of at least 12 months) or at regular intervals (defined as at least once every two months) in five or more declared regions (regulation 6(1)(b)(iii); definitions in regulation 4).

   Substantial caveats are made: public sector bodies are excluded from responsible entity status unless the service is a statutory function or provided for reward or profit (regulation 6(2)). The market share criterion does not apply if the CERCC Plan is not in force or the total amount of waste managed in Victoria by all providers of the service (or of the type of waste) is not published in the CERCC Plan in force (regulation 6(3)‑(4)).

3. Victorian market share (regulation 7 and regulation 11). The market share is defined as the proportion of the total amount of waste managed in Victoria by an entity for the service (or for a type of waste) in a specified period, where the specified period is to be set under regulation 11(b). Regulation 11 prescribes that the CERCC Plan must include any available information on total amounts of waste managed for each essential service and type and the period to which that information applies for market share calculations. Thus the CERCC Plan supplies the denominators used to determine market shares for threshold assessment.

4. CERCC Plan process (regulation 10 and 11). The Head, Recycling Victoria must review the existing CERCC Plan when preparing subsequent plans, make a draft available for consultation for at least 14 days to responsible entities, affected public sector bodies and others the Head considers appropriate, consider submissions and revise the draft before providing it to the Minister (regulation 10). Regulation 11 prescribes the information the CERCC Plan must contain to support market share calculations (total amounts of waste managed by service/type and the relevant period).

5. Responsible Entity RERCC Plans (regulation 12 and regulation 13). Regulation 12 exhaustively lists content that RERCC Plans must include, spanning identification data (ACN, ABN), addresses and officer details, descriptions of services and the criteria met under regulation 6, governance roles, notifications history, lists of related entities, detailed risk identification and assessment, contingency actions and timeframes, monitoring and management of residual risks, and evaluation arrangements. Regulation 13 identifies certain RERCC Plan obligations with which failure to comply is an offence , specifically taking identified actions and contingency measures in the timeframes specified, ensuring employees carry out roles, monitoring and managing residual risks, and monitoring and evaluating implementation.

6. Notifications, offences and penalties (regulations 8 and 9, regulation 13). Responsible entities must notify the Head in writing and in an approved form and manner when they become or cease to be responsible entities (regulations 8(1)-(3) and 9(1)-(2)). The Regulations set penalty units for failures to notify and for non‑compliance with specified RERCC Plan requirements (regulations 8(1), 9(1), 13). The Endnotes provide monetary unit values applicable for calculating penalties and fees for the 2023‑24 year.

7. Exemptions (Part 3, regulations 14-16). The Regulations prescribe the required content of exemption applications under the Act, including extensive documentary and risk information (regulation 14), the content required when seeking amendments to an exemption (regulation 15), fee amounts for initial applications and amendments (regulations 14(4) and 15(4)) and a broad discretionary fee waiver power exercisable by the Head with illustrative considerations (regulation 16).

These concepts produce a system where the Head, Recycling Victoria supplies denominators (total waste figures and periods) via the CERCC Plan for market share computations, then the responsible entity thresholds flow from those denominators. Entities that meet thresholds must prepare RERCC Plans meeting detailed requirements, notify the Head, and implement specified elements under penalty of offence.

The Regulations affect three principal groups: providers of the services listed in Schedule 1, the Head, Recycling Victoria, and entities or persons interacting with exemption processes.

1. Providers of services listed in Schedule 1 (private operators, contractors and some councils). Schedule 1 prescribes 15 categories of essential waste, recycling or resource recovery services (for example landfill services, hazardous waste services, residual waste services, thermal waste‑to‑energy, e‑waste, construction and demolition waste services, organics services, container deposit scheme services). Providers of these services may be affected in two ways:

   • by qualifying as a responsible entity under regulation 6 if they meet at least one of the three thresholds; and
   • by being within scope of categories that the Head may consider when preparing the CERCC Plan (regulation 11).

   The Regulations explicitly exclude certain limited activities from these categories (see Schedule 1 Column 4). Examples are municipal landfill facilities serving fewer than 5 000 people from the “landfill services” category (Schedule 1 Item 1 exclusion), skip bin services for private domestic construction and demolition in Item 7, and certain limited temporary storage amounts for hazardous wastes in Item 2. These exclusions will be decisive for small operators and councils.

2. Entities that meet the responsible entity thresholds. An entity is prescribed as a responsible entity if it provides an essential service and either: holds 20 per cent or more Victorian market share; or has government contracts exceeding $50 million in combined value; or supplies services under ongoing arrangements (at least 12 months) or at regular intervals (at least once every two months) in five or more declared regions (regulation 6(1)). The Regulations therefore principally target:

   • large market participants (by the 20 per cent market share test);
   • contractors with substantial government contracts (the $50 million threshold excludes the value of options to extend: regulation 6(5)); and
   • operators with broad geographic reach and recurring arrangements across declared regions.

   Public sector bodies are excluded from being responsible entities unless the service is provided as a statutory function or for reward or profit (regulation 6(2)). This excludes many council activities unless they meet the two carve‑outs.

3. The Head, Recycling Victoria. The Head has specific duties and powers:

   • to prepare and publish the CERCC Plan with prescribed content and a minimum consultation window for subsequent plans (regulations 10 and 11);
   • to approve the form and manner for notifications from responsible entities (regulations 8(3) and 9(2));
   • to receive and consider exemption applications and requests for further information (regulations 14(2)-(3) and 15(2)-(3)); and
   • to waive fees where the Head considers it appropriate, including matters listed in regulation 16(3) such as public interest, financial hardship, not‑for‑profit status, emergency response or innovation.

4. Persons or entities applying for exemptions. Exemption applicants (including operators of waste‑to‑energy facilities seeking exemptions) must provide detailed information with their application, for example comprehensive greenhouse gas emission details and climate risk assessments if the exemption relates to a waste‑to‑energy facility or service standard (regulation 14(1)(b)(ix) and regulation 15(1)(b)(x)). Applicants will pay prescribed fees unless the Head waives them (regulation 14(4), regulation 15(4), regulation 16).

5. Other stakeholders who may be affected by CERCC Plan consultations. Regulation 10 requires the Head to make draft CERCC Plans available for at least 14 calendar days to responsible entities, public sector bodies that may be affected, and any other person or entity the Head considers appropriate. This binds the Head to consult certain stakeholder groups at minimum and creates an opportunity for affected parties to seek corrections to total waste data that are relevant to market share computations and responsible entity status.

In short, the Regulations concentrate obligations and potential criminal exposure on larger providers and those with significant government contracting or geographic presence, while giving the Head procedural responsibilities and discretion in administering market share denominators and exemptions.

The Regulations create explicit duties for the Head, Recycling Victoria and for prescribed responsible entities, and they grant the Head a set of discretionary rights relating to forms, consultations and fee waivers.

Duties on responsible entities (regulations 6, 8, 9, 12, 13)

• Notification duties:

  • An entity that is a responsible entity must notify the Head, Recycling Victoria in writing in a manner and form approved by the Head that it is a responsible entity (regulation 8(1)-(3)). Timeframes depend on the basis on which the entity is a responsible entity (regulation 8(2)). For contract/value and declared regions thresholds (regulation 6(1)(b)(ii) and (iii)) if those thresholds are met before the first CERCC Plan publication, notification must occur within 60 days after publication of that CERCC Plan; for entities that become responsible as a result of published market share information, the notification deadline is within 60 days after publication of a CERCC Plan that permits determination of market share or after the change that causes the entity to meet the threshold (regulation 8(2)(a)-(b).)
  • An entity must notify the Head within 60 days of ceasing to be a responsible entity (regulation 9(1)-(2)).
  • Non‑notification attracts penalties (regulation 8(1) and regulation 9(1)).

• RERCC Plan duties:

  • Responsible entities must prepare a Responsible Entity Risk, Consequence and Contingency Plan that contains specific content listed at regulation 12(a)-(n). That includes corporate identifiers (ACN, ABN), officer contact details, service descriptions, which responsible‑entity criteria are met and supporting detail (including the percentage Victorian market share where applicable), roles and responsibilities for plan implementation, notifications history, lists of related entities and service recipients, comprehensive risk identification and assessment and contingency actions, monitoring and management steps for residual risks, document lists used in preparation and an evaluation plan (regulation 12).
  • Certain RERCC Plan requirements are offences if the responsible entity fails to comply: taking actions and contingency measures identified in the RERCC Plan in the timeframes specified (regulation 13(a)); ensuring employees carry out the roles detailed in the RERCC Plan (regulation 13(b)); monitoring and managing inherent and residual risks as detailed (regulation 13(c)); and monitoring and evaluating implementation of the RERCC Plan (regulation 13(d)). These are prescribed as requirements of the RERCC Plan with which failure is an offence (regulation 13).

Duties on the Head, Recycling Victoria (regulations 10, 11, 14, 15, 16)

• CERCC Plan duties:

  • When preparing a second or subsequent CERCC Plan, the Head must review any CERCC Plan in force to inform the new plan, make a draft plan available for a consultation period of at least 14 calendar days to responsible entities and affected public sector bodies plus other persons the Head considers appropriate, consider submissions and revise the plan before providing it to the Minister (regulation 10( a)-(c)). This is an operational duty in respect of the Head’s planmaking function.

• Information duties:

  • The CERCC Plan must include any information available to the Head regarding total amounts of waste managed in Victoria for each essential service and type of waste and must specify the period to which that information applies for market share determination (regulation 11(a)-(b)). The Head therefore has the duty to gather, collate and publish denominators that directly determine entities’ responsible entity status where market share is the relevant threshold.

• Administrative powers and discretions:

  • The Head may approve forms and manners for notifications (regulations 8(3) and 9(2)); may request further information for exemption applications and amendments (regulation 14(2)-(3) and regulation 15(2)-(3)); and may waive fees in whole or part for exemption applications and amendments having regard to any matter the Head considers appropriate and with illustrative factors set out in regulation 16(3) such as public interest, financial hardship of the applicant, not‑for‑profit status, emergency response or innovation.

Rights and process protections

• Consultation right: Responsible entities and affected public sector bodies have a right to a minimum 14‑day consultation period on draft CERCC Plans (regulation 10( b)). The Head must consider submissions and may revise the CERCC Plan before sending it to the Minister (regulation 10(c)). This gives affected parties a targeted opportunity to influence the denominators used for market share calculations.

• Procedural right on exemptions: Exemption applicants must be given the opportunity to provide further information if requested; the Head must specify the information required and the timeframe for supply (regulations 14(2)-(3) and 15(2)-(3)).

Specified penalties and fee structure (regulations 8(1), 9(1), 14(4), 15(4); Endnotes)

• The Regulations specify penalties in penalty units for notification offences (regulation 8(1) and regulation 9(1)) and set prescribed fees for exemption applications (regulation 14(4)) and for amendment applications (regulation 15(4)). The Endnotes set the fee unit value for 2023 at $15.90 and the penalty unit value at $192.31 and provide rounding rules. Using those 2023 values, a failure by a natural person to notify they have become a responsible entity at 60 penalty units would be approximately $11 539; for a body corporate the 300 penalty unit figure equates to approximately $57 693. The prescribed fee for an exemption application is 47 fee units, equal to approximately $747.30 for the 2023 year, unless the Head waives it (regulation 14(4); Endnotes).

The Regulations therefore impose a combination of reporting, planning, implementation and monitoring duties on significant providers, with the Head both supplying the denominators for market share tests and holding administrative discretions over forms, information requests and fee waivers.

The Regulations specify criminal offences for particular failures to notify and for non‑compliance with enumerated RERCC Plan requirements; enforcement mechanisms and monetary calculations are set by reference to statutory units and the Endnotes.

Statutory offences and penalties

• Failure to notify when an entity becomes a responsible entity (regulation 8(1)). The penalty is specified in penalty units:

  • natural person: 60 penalty units;
  • body corporate: 300 penalty units.

• Failure to notify when an entity ceases to be a responsible entity (regulation 9(1)). The penalty is:

  • natural person: 10 penalty units;
  • body corporate: 50 penalty units.

• Failure to comply with certain RERCC Plan requirements (regulation 13). Regulation 13 prescribes four requirements of an RERCC Plan with which it is an offence to fail to comply: taking the actions and contingency measures identified in the plan in accordance with the plan and timeframes (regulation 13(a)); ensuring employees carry out their roles (regulation 13(b)); monitoring and managing inherent and residual risks as detailed (regulation 13(c)); and monitoring and evaluating implementation (regulation 13(d)). The Regulations themselves do not specify a separate penalty quantum for these RERCC Plan failures; they are prescribed as offences "for the purposes of item 1B.6 of Schedule 1 to the Act". The Act and Schedule 1 to the Act may set the applicable penalty units for such offences; the Regulations identify the conduct that will attract criminal liability under those Act provisions. Users must consult the Act and Schedule 1 for the specific penalty units for those RERCC Plan offences.

Monetary values and calculation (Endnotes)

• The Endnotes set the value of a fee unit for the financial year commencing 1 July 2023 at $15.90 and the penalty unit value for the same year at $192.31. The Endnotes instruct that amounts must be calculated by multiplying the number of fee or penalty units by the applicable unit value and rounded as specified: fees to the nearest 10 cents and penalties to the nearest dollar. Using those 2023 values yields approximate amounts (rounded as required): the 60 penalty unit natural person penalty in regulation 8(1) equates to about $11 539; 300 penalty units for a body corporate equates to about $57 693. The 47 fee unit exemption application fee equates to about $747.30. These calculations are based on figures published in the Endnotes; future years’ amounts will vary when the Treasurer fixes new unit values under the Monetary Units Act 2004 (Endnotes).

Enforcement mechanics implied by the Regulations

• The Regulations require notifications to be made "in writing and in the manner and form approved by the Head, Recycling Victoria" (regulations 8(3) and 9(2)). This establishes that the Head controls the administrative gateway for notifications, which is the nucleus of enforceable compliance and an enforcement starting point for identifying non‑notification.

• For RERCC Plan offences (regulation 13), the Regulations make plan implementation obligations criminally enforceable. The Head is placed in the position of the recipient of notifications and the reviewer of plans; enforcement will therefore require the Head to determine whether a plan specified particular actions and timeframes and whether those were followed. The Regulations do not specify inspection or audit powers in themselves; enforcement mechanisms such as notices, directions or injunctive relief would rest in the Act and general administrative law and criminal process.

• The Head has a discretion to request further information about exemption applications (regulation 14(2)-(3) and regulation 15(2)-(3)). Refusal to provide requested information may affect the outcome of an exemption application and indirectly trigger compliance action if the applicant continues to operate in contravention of regulations without an exemption.

Uncertainties and practical enforcement risk

• The market share threshold depends on denominators published in the CERCC Plan (regulation 6(3)-(4) and regulation 11). If the CERCC Plan does not publish total amount data, the market share criterion does not apply. This imposes an interdependency: enforcement of market share‑based obligations depends on the Head publishing accurate and up‑to‑date total waste figures in the CERCC Plan.

• The Regulations require many subjective assessments inside RERCC Plans, such as assessments of likelihood and consequences and the gravity of identified risks (regulation 12(j)). Determining whether an entity took contingency measures "in accordance with" their RERCC Plan (regulation 13(a)) will therefore depend on interpretive assessments of whether the actions taken align with plan commitments, and whether specified timeframes were met.

• The Head’s power to approve notification forms and to request further information (regulations 8(3), 9(2), 14(2)-(3), 15(2)-(3)) centralises administrative control over how compliance is demonstrated and creates practical points for enforcement action, but the Regulations do not set procedural timeframes for the Head’s decisions or publication of approved forms.

In summary, the Regulations prescribe criminal offences for failures to notify and for failures to implement elements of RERCC Plans. Monetary exposure is concrete for notification offences, with prescribed fee and penalty unit valuations published in the Endnotes. Enforcement, however, depends on data flows through the CERCC Plan, on the Head’s administrative form approvals and information requests, and on interpretive determinations about plan implementation.

The Regulations operate as subordinate legislation under the Circular Economy (Waste Reduction and Recycling) Act 2021 (regulation 2). They explicitly cross‑reference and interact with multiple statutory instruments and existing statutory frameworks; those interactions shape scope, exclusions and definitional import.

Primary enabling Act and linked provisions

• The Regulations are made under s 183 of the Circular Economy Act 2021 (regulation 2) and implement definitions and procedural items required or contemplated by the Act. They reference specific Act provisions when prescribing content or processes: for example, regulation 10 refers to item 1B.1 of Schedule 1 to the Act as the source of the Head’s duty to prepare the CERCC Plan; regulation 11 states it prescribes matters for the purposes of section 74B(2)(i) of the Act; regulation 12 refers to section 74F(2)(e) of the Act in prescribing RERCC Plan content; regulation 13 implements item 1B.6 of Schedule 1 to the Act to prescribe RERCC Plan requirements as offences.

Interaction with emergency management law

• The responsible entity prescription excludes services that are “essential services” within the meaning of section 74C of the Emergency Management Act 2013 (regulation 6(1)(a)). That creates a deliberate carve‑out for services captured by the Emergency Management Act emergency‑essential services regime, preventing overlap in coverage with that Act.

Cross‑references to environmental and industry statutes in the Schedule

• Schedule 1 uses terms defined in other Acts and regulations and draws exclusions based on those instruments:
  • “Dangerous goods” is given the meaning in the Dangerous Goods Act 1985 (Schedule 1 definitions).
  • “Designated waste” and “e‑waste” have the same meanings as in regulation 4 of the Environment Protection Regulations 2021 (Schedule 1 definitions and Endnotes).
  • “Reportable priority waste” references section 3(1) of the Environment Protection Act 2017.
  • “Radioactive material” references the Radiation Act 2005.
  • Exclusions for mining and extractive industry waste disposal reference the Mineral Resources (Sustainable Development) Act 1990 and for planning permissions reference the Planning and Environment Act 1987.
  • “Public utility” is defined by reference to the Electricity Industry Act 2000, Gas Industry Act 2001, Water Act 1989 and telecommunications carrier definitions.
    These cross‑references mean operators regulated by sectoral instruments must reconcile their existing obligations under those Acts with the new responsibilities that flow from being an essential service or responsible entity under these Regulations.

Penalties and monetary units legislation

• The Regulations adopt the Monetary Units Act 2004 method for fee unit and penalty unit calculations (Endnotes). They also rely on the Sentencing Act 1991 for the concept of penalty units when specifying penalties (Endnotes). This linkage standardises fee and penalty calculations with other Victorian instruments.

Interaction with the Act’s guideline and planmaking architecture

• Regulation 10 contains a note that section 74B(2) of the Act requires CERCC Plan preparation to be in accordance with any guidelines issued under section 74K of the Act. That indicates that the Head’s planmaking exercise will be framed both by these Regulations and by any Ministerial or Head‑issued guidelines under the Act, layering administrative requirements.

Administrative law and information flows

• The Head’s powers to approve the manner and form of notifications (regulations 8(3) and 9(2)) and to request further information relating to exemption applications (regulations 14(2)-(3) and 15(2)-(3)) embed administrative law interactions. Applicants and responsible entities will engage with the Head’s administrative decision‑making, reviewable to the extent the Act and Victorian administrative law allow.

Potential overlaps and delimiting mechanisms

• The Regulations carve out several narrow exclusions to avoid regulating very small municipal services, closed landfills, particular temporary hazardous storage situations and private domestic skip bin services (Schedule 1 Column 4). These exclusions are expressed by cross‑reference to other Acts and planning permissions and limit direct duplication of regulation where sectoral laws already apply.

In summary, the Regulations are tightly integrated with the parent Act’s planmaking and enforcement architecture and deliberately coordinate with existing sectoral laws (Environment Protection Acts and Regulations, Dangerous Goods Act, Radiation Act, Mineral Resources Act, planning law, and industry‑specific statutes) to define scope and exclusions. They also adopt standard Victorian financial and sentencing frameworks for unit calculations, so monetary exposures align with the broader statutory regime.

The Regulations were made on 19 December 2023 and commenced on 20 December 2023 (Endnotes). The Endnotes include a "Table of Amendments" which states that there are no amendments made to these Regulations by statutory rules, subordinate instruments, or Acts at the time of publication. The instrument therefore represents its original version (Version No. 001) with no subsequent variation recorded in the provided text.

Sunset and lifecycle provisions

• The Endnotes record that the Regulations will sunset 10 years after the day of making on 19 December 2033 pursuant to section 5 of the Subordinate Legislation Act 1994. Users should therefore be aware the Regulations have a finite legislative lifecycle unless renewed or replaced.

Versioning and interpretative material

• The Regulations include explanatory details and interpretation notes that form part of the Statutory Rule (Endnotes and Schedule 1 explanatory comment). These materials include:
  • citation that the Regulations were made under s 183 of the Circular Economy Act 2021;
  • comments on the definition of “designated waste” that cross‑reference other Statutory Rules (Endnotes reg. 5 note); and
  • the usual Victorian practice of referencing the Monetary Units Act 2004 for fee unit calculations and the Sentencing Act 1991 for penalty units (Endnotes).

No recorded past amendments or transitional arrangements

• The instrument does not show any prior versions or transitional arrangements beyond the commencement provision (regulation 3). It does, however, link to the CERCC Plan process which may itself create transitional effects for entities that become responsible entities either before or after the CERCC Plan is published (see regulation 6(3)-(4) and regulation 8(2)(a)).

Implication for monitoring amendments

• Practising advisers should monitor updates to (i) the CERCC Plan prepared by the Head, which will publish denominators and may thus change who qualifies as a responsible entity; (ii) regulations that may be remade or amended prior to the 2033 sunset; and (iii) related subordinate instruments or guidelines under the Act (for example under section 74K) that are likely to shape CERCC Plan content or RERCC Plan expectations, because these will materially affect who is regulated and the substantive obligations.

In sum, at the time of the instrument’s publication there are no recorded amendments to these Regulations, they are scheduled to sunset in 2033, and stakeholders should monitor the CERCC Plan and any guidelines under the Act as the primary vehicles through which further practical change will be introduced.

The Regulations as provided contain no references to any judicial decisions, litigation or declaratory proceedings. The instrument’s Endnotes include an "Explanatory details" section and a "Table of Amendments" but do not list any cases or litigation history. The Schedule of prescribed services and the RERCC Plan requirements are new regulatory prescriptions, and no statutory notes in this instrument record case law or prior adjudications.

Practical observation for lawyers and compliance professionals

• Because the Regulations create novel criminal offences tied to plan compliance and impose notification duties that hinge on administrative publications (the CERCC Plan), future litigation is most likely to revolve around:
  • the construction of RERCC Plan obligations and whether particular contingency actions or timeframes were "in accordance with" the plan (regulation 13(a));
  • whether published CERCC Plan denominators correctly reflect total amounts of waste managed, which affects Victorian market share calculations and an entity’s status as a responsible entity (regulations 7 and 11); and
  • challenges to enforcement action grounded on administrative process, for example whether the Head’s forms and information requests were validly issued and whether procedural fairness was observed in exemption decision‑making or in any Head‑led determinations.

Absence of reported litigation in the instrument means advisers must rely on standard administrative and criminal procedural principles should disputes arise under these Regulations; the Act and general Victorian administrative law will be the controlling legal context for review and judicial oversight. For now, no cases are named in the Regulations and no litigation history is recorded in the text provided.

Several provisions create traps for the unwary because obligations depend on administrative publications, particular definitions, or centralised approvals. These are the practical “gotchas” drawn directly from the Regulations.

1. Responsible entity depends on CERCC Plan data (regulations 6(3)-(4), 7, 11). The 20 per cent market share criterion only applies if a CERCC Plan is in force and the CERCC Plan publishes the total amount of waste managed for the service (or the type of waste). Entities cannot self‑determine market share obligations independently of the Head’s published denominators. If the CERCC Plan omits the total amount data, market share will not trigger responsible entity status. This creates timing and information risks: entities may be surprised by being classified as responsible entities only after the Head publishes aggregate figures, and notification windows are tied to that publication (regulation 8(2)(b)).

2. Notification deadlines tied to different triggers (regulation 8(2)). There are multiple notification triggers and different applicable timeframes:

   • entities meeting contract/value or declared region thresholds before the first CERCC Plan must notify within 60 days after publication of the first CERCC Plan (regulation 8(2)(a));
   • entities becoming responsible due to published market share must notify within 60 days of the CERCC Plan that allows determination or after the change that causes them to become responsible (regulation 8(2)(b));
   • entities that become responsible post‑CERCC publication due to other changes must notify within 60 days after the change (regulation 8(2)(c)).
     If an entity misses these triggers it could be exposed to the penalties in regulation 8(1). The notification must be in approved form and manner (regulation 8(3)), so late notifications paired with non‑standard form can double administrative risk.

3. Public sector bodies generally excluded but with narrow carve‑outs (regulation 6(2)). Councils and other public sector bodies will not be responsible entities unless the service is a statutory function or provided for reward or profit. That can create ambiguous cases for council activities run as commercial arms or joint ventures. The line between a statutory function and commercial operation will be factually sensitive.

4. Contract value threshold excludes options (regulation 6(5)). For the purposes of the $50 million test, contract value expressly excludes the value of any option to extend the contract. This is an important drafting detail for contractors: relying on options to reach the dollar threshold will not count.

5. Declared regions test excludes mere transport through a region (regulation 6(6)). A person does not provide a service in a declared region solely by transporting waste through it or to it for aggregation, storage, treatment or disposal at a facility operated by another party. Operators using transport routes across multiple regions must therefore check whether their service delivery is genuinely provided in those regions in a way that meets the criterion.

6. RERCC Plan content is detailed and operational (regulation 12). The RERCC Plan must include officer contact details, lists of related entities and entities receiving services, risk assessments with assessments of likelihood and consequences, timeframes for actions and contingency measures, monitoring and management steps for residual risks and evaluation procedures. These are non‑trivial business processes requiring cross‑functional input (legal, operations, safety, environment, compliance). Failure to align actual operational capacity with plan commitments would risk the offence provisions in regulation 13.

7. Some RERCC Plan obligations are criminalised (regulation 13). Four specific RERCC Plan requirements are designated as offences if not complied with. Entities must ensure the plan's commitments are implementable and that staff are trained and assigned responsibilities consistent with the plan. The criminalisation of implementation (not merely the absence of a plan) is a step that elevates operational risk.

8. Exemption applications for waste‑to‑energy require greenhouse gas and climate impact analysis (regulation 14(1)(b)(ix) and regulation 15(1)(b)(x)). Applicants seeking exemptions or amendments related to waste‑to‑energy must supply detailed emissions information and an assessment of climate change impacts and mitigation measures. These are technically demanding and may require external consultants and data collection.

9. Fees are payable unless the Head waives them (regulations 14(4), 15(4), 16). The prescribed fees for initial exemption applications (47 fee units) and amendments (12 or 22 fee units depending on amendment type) are modest but the Head can waive fees at their discretion. Entities should plan for fee payments and be prepared to present supporting evidence if seeking a waiver under regulation 16(3).

10. The CERCC Plan consultation period is minimal (regulation 10(b)). The minimum consultation period for subsequent CERCC Plans is only 14 calendar days. That is a short window for stakeholders to review and respond to possibly complex denominators determining market shares. Interested entities must therefore monitor publications closely and act quickly to correct or challenge published totals.

11. Penalty unit calculations change annually (Endnotes). Monetary equivalent penalties and fees are variable because unit values are fixed annually by the Treasurer. Compliance budgets should therefore anticipate annual adjustments.

These "gotchas" point to several concrete compliance tasks: monitor CERCC Plan publications; map services against Schedule 1 carefully including exclusions; check contract values excluding options; ensure notification processes are ready in the Head’s approved form; prepare a robust, implementable RERCC Plan with clear governance and monitoring; and plan for data‑intensive exemption applications where necessary.

Compliance requires a structured programme spanning identification, notification, planning, implementation and recordkeeping. Below are practical steps directly grounded in the Regulations.

1. Determine whether your activities fall within Schedule 1 (regulation 5 and Schedule 1).

   • Map your services against each of the 15 prescribed categories in Schedule 1 and review Column 3 for the description and Column 4 for exclusions. For example, councils operating municipal landfills servicing fewer than 5 000 people are explicitly excluded from Item 1 (landfill services) exclusions. Document the factual basis for inclusion or exclusion.

2. Assess whether you meet any responsible entity criteria (regulation 6).

   • Market share test: Prepare to compute your Victorian market share in accordance with regulation 7, using denominators that the CERCC Plan will publish for the specified period (regulation 11). Because market share only applies if the CERCC Plan publishes totals, plan to re‑assess once a CERCC Plan is in force.
   • Contract test: Identify any government contracts delivering the service and sum the combined value across the contracts’ life, excluding options to extend (regulation 6(5)). If the combined value exceeds $50 million, you meet this criterion.
   • Declared regions test: Map where you provide services under ongoing arrangements (minimum 12 months) or at regular intervals (minimum once every two months). If this spans five or more declared regions, you meet the geographic threshold (definitions in regulation 4 and regulation 6(1)(b)(iii)). Remember transporting waste through a region does not by itself count (regulation 6(6)).

3. Prepare for the notification duties (regulations 8 and 9).

   • If you become a responsible entity, you must notify the Head in writing and in the Head’s approved form and manner (regulation 8(1) and (3)). Notifications must be submitted within the applicable 60‑day windows described in regulation 8(2). If you cease to be a responsible entity, notify within 60 days (regulation 9(1)). Ensure internal triggers are set to detect the relevant changes (contract award, market share information publication, expansion into declared regions).

4. Develop a compliant RERCC Plan before implementation (regulation 12).

   • Draft an RERCC Plan addressing each item in regulation 12(a)-(n). This will require:
     • corporate identifiers (ACN, ABN) and site addresses;
     • names and contact details of directors and officers with control;
     • a clear description of the services provided and the specific responsible entity criterion met, with evidence (for market share, the percentage and the type of waste; for contracts, contract values and services; for regions, the declared regions and service intervals) (regulation 12(e));
     • named roles and responsibilities for employees involved in RERCC Plan preparation and compliance (regulation 12(f));
     • detailed risk registers with likelihood and consequence assessments and gravity assessments (regulation 12(j));
     • explicit contingency actions, triggers, and timeframes for implementation (regulation 12(k));
     • monitoring and management steps for residual risks and a monitoring and evaluation framework (regulation 12(l) and (n)); and
     • a list of documents used in preparation (regulation 12(m)).

5. Ensure the RERCC Plan’s enforceable elements are implementable (regulation 13).

   • Four elements of the RERCC Plan are offences if not complied with. Make sure that contingencies are resourced, timeframes are realistic, staff responsibilities are assigned and documented, and monitoring systems are in place. Train employees and maintain records proving actions taken and monitoring outcomes.

6. Engage with the CERCC Plan process (regulations 10 and 11).

   • Monitor the Head’s CERCC Plan publications closely. The CERCC Plan sets the denominators for market share and specifies the period used for market share calculation (regulation 11(b)). The Head must consult for at least 14 days on subsequent CERCC Plan drafts (regulation 10(b)). Use that consultation window to correct any factual errors in published totals or to submit evidence that affects market share calculations.

7. Manage exemption applications where needed (regulations 14-16).

   • If compliance with a regulation or service standard is not practicable, prepare a written exemption application containing the information required by regulation 14(1)(a)-(e) and 14(1)(b)(i)-(xii). Note special requirements for waste‑to‑energy related applications, including greenhouse gas emissions and climate change impact assessments (regulation 14(1)(b)(ix)). Pay the prescribed fee (47 fee units) unless seeking a waiver; if seeking a waiver, prepare evidence addressing considerations in regulation 16(3) such as public interest, financial hardship, not‑for‑profit status or innovation. If seeking an amendment to an existing exemption, follow the requirements in regulation 15 and pay the relevant amendment fee (regulation 15(4)).

8. Implement recordkeeping and audit evidence systems.

   • Maintain documentary evidence of notifications, RERCC Plan adoption and revisions (regulation 12(c)), contingency activations and timelines, employee role assignments, monitoring records and evaluation outputs (regulation 12(f), (k), (l) and (n)). These records will be decisive in any enforcement or review process given the Regulations’ focus on implementation.

9. Seek administrative clarity on forms and information requests.

   • Use the Head’s approved forms for notifications (regulations 8(3) and 9(2)). If the Head requests further information for an exemption application or amendment, comply within the specified timeframe and scope (regulations 14(2)-(3) and 15(2)-(3)). Keep records of requests and responses to avoid procedural non‑compliance issues.

10. Budget for fees and potential penalties and keep abreast of unit changes.

• The 2023 fee and penalty unit values are set out in the Endnotes. Budget for the prescribed fees (for example, the 47 fee unit exemption fee, approximately $747.30 at 2023 unit values) and for potential penalties. Note that unit values are fixed annually by the Treasurer, so update your compliance budgets accordingly.

11. Integrate the RERCC Plan with existing safety, environment and business continuity systems.

• The risk and contingency elements required by regulation 12 overlap with standard WHS, environmental management, business continuity and emergency response arrangements. Integrate RERCC Plan obligations with these systems to avoid duplication and to ensure that the “actions and contingency measures” specified are actionable.

12. Legal review and governance sign‑off.

• Given the criminalisation of certain implementation failures, subject RERCC Plans and exemption case submissions to legal review and ensure executive sign‑off and board oversight where appropriate. Ensure any declarations required in exemption applications are accurate and authorised (regulation 14(1)(c)-(e) and regulation 15(1)(c)-(e)).

Adopting these steps will help an entity identify whether it is caught by the Regulations, meet notification and plan content requirements, and establish the evidence trails that enforcement authorities may require.