--- kind: "section" citation: "40 C.F.R. § 96.304" title: "40" number: "96.304" heading: "Applicability." url: "https://uscodex.org/cfr/40/96.304" --- # §96.304. Applicability. - (a) **Except as provided in paragraph (b) of this section—** - (1) The following units in a State shall be CAIR NOX Ozone Season units, and any source that includes one or more such units shall be a CAIR NOX Ozone Season source, subject to the requirements of this subpart and subparts [BBBB](/cfr/40/subpartBBBB.md) through [HHHH](/cfr/40/subpartHHHH.md) of this part: any stationary, fossil-fuel-fired boiler or stationary, fossil-fuel-fired combustion turbine serving at any time, since the later of November 15, 1990 or the start-up of the unit's combustion chamber, a generator with nameplate capacity of more than 25 MWe producing electricity for sale. - (2) If a stationary boiler or stationary combustion turbine that, under [paragraph (a)(1)](#a-1) of this section, is not a CAIR NOX Ozone Season unit begins to combust fossil fuel or to serve a generator with nameplate capacity of more than 25 MWe producing electricity for sale, the unit shall become a CAIR NOX Ozone Season unit as provided in [paragraph (a)(1)](#a-1) of this section on the first date on which it both combusts fossil fuel and serves such generator. - (b) The units in a State that meet the requirements set forth in paragraph [(b)(1)(i)](#b-1-i), [(b)(2)(i)](#b-2-i), or [(b)(2)(ii)](#b-2-ii) of this section shall not be CAIR NOX Ozone Season units: - (1) - (i) **Any unit that is a CAIR NOX Ozone Season unit under paragraph (a)(1) or (2) of this section—** - (A) Qualifying as a cogeneration unit during the 12-month period starting on the date the unit first produces electricity and continuing to qualify as a cogeneration unit; and - (B) Not serving at any time, since the later of November 15, 1990 or the start-up of the unit's combustion chamber, a generator with nameplate capacity of more than 25 MWe supplying in any calendar year more than one-third of the unit's potential electric output capacity or 219,000 MWh, whichever is greater, to any utility power distribution system for sale. - (ii) If a unit qualifies as a cogeneration unit during the 12-month period starting on the date the unit first produces electricity and meets the requirements of [paragraphs (b)(1)(i)](#b-1-i) of this section for at least one calendar year, but subsequently no longer meets all such requirements, the unit shall become a CAIR NOX Ozone Season unit starting on the earlier of January 1 after the first calendar year during which the unit first no longer qualifies as a cogeneration unit or January 1 after the first calendar year during which the unit no longer meets the requirements of [paragraph (b)(1)(i)(B)](#b-1-i-B) of this section. - (2) - (i) Any unit that is a CAIR NOX Ozone Season unit under paragraph [(a)(1)](#a-1) or [(2)](#a-2) of this section commencing operation before January 1, 1985: - (A) Qualifying as a solid waste incineration unit; and - (B) With an average annual fuel consumption of non-fossil fuel for 1985-1987 exceeding 80 percent (on a Btu basis) and an average annual fuel consumption of non-fossil fuel for any 3 consecutive calendar years after 1990 exceeding 80 percent (on a Btu basis). - (ii) Any unit that is a CAIR NOX Ozone Season unit under paragraph [(a)(1)](#a-1) or [(2)](#a-2) of this section commencing operation on or after January 1, 1985: - (A) Qualifying as a solid waste incineration unit; and - (B) With an average annual fuel consumption of non-fossil fuel for the first 3 calendar years of operation exceeding 80 percent (on a Btu basis) and an average annual fuel consumption of non-fossil fuel for any 3 consecutive calendar years after 1990 exceeding 80 percent (on a Btu basis). - (iii) If a unit qualifies as a solid waste incineration unit and meets the requirements of paragraph [(b)(2)(i)](#b-2-i) or [(ii)](#b-2-ii) of this section for at least 3 consecutive calendar years, but subsequently no longer meets all such requirements, the unit shall become a CAIR NOX Ozone Season unit starting on the earlier of January 1 after the first calendar year during which the unit first no longer qualifies as a solid waste incineration unit or January 1 after the first 3 consecutive calendar years after 1990 for which the unit has an average annual fuel consumption of fossil fuel of 20 percent or more. ## Notes ### Amendments [71 FR 25392, Apr. 28, 2006, as amended at 71 FR 74794, Dec. 13, 2006] ### Source Source: 70 FR 25382, May 12, 2005, unless otherwise noted. ### Authority Authority: 42 U.S.C. 7401, 7403, 7410, 7601, and 7651, et seq. ### Source Source: 63 FR 57514, Oct. 27, 1998, unless otherwise noted. ### Amendments [71 FR 25392, Apr. 28, 2006, as amended at 71 FR 74794, Dec. 13, 2006]