N.Y. Comp. Codes R. & Regs. tit. 6, § 242-1.4 – Applicability.

(1) Any unit that, at any time on or after January 1, 2005, serves an electricity generator with a nameplate capacity equal to or greater than 25 MWe shall be a CO₂ budget unit, and any source that includes one or more such units shall be a CO₂ budget source, subject to the requirements of this Part; and
(2) Any unit that, at any time on or after January 1, 2021, serves an electricity generator with a nameplate capacity equal to or greater than 15 MWe shall be a CO₂ budget unit if either:
1. (i) that unit resides at a CO₂ budget source; or
2. (ii) that unit resides at a source where there are two or more units with a nameplate capacity equal to or greater than 15 MWe. Any source that includes one or more such units shall be a CO₂ budget source, subject to the requirements of this Part.
  (b) Limited exemption for units, subject under paragraph (a)(1) of this section, with electrical output to the electric grid restricted by permit conditions.
(1) Applicability. Notwithstanding paragraph (a)(1) of this section, any unit that, on or before December 1, 2008, applied for an enforceable permit condition restricting the supply of the unit's annual electrical output to the electric grid to less than or equal to 10 percent of the annual gross generation of the unit, and that from and after January 1, 2009 complies with the 10 percent restriction and the provisions in paragraph (3) of this subdivision, shall be exempt from the requirements of this Part, except for the provisions of this section, sections 242-1.2, 242-1.3, and 242-1.6 of this Subpart.
(2) Effective date. The exemption under paragraph (1) of this subdivision shall become effective as of January 1, 2009 and remain in effect unless and until the unit loses its exemption under subparagraph (3)(v) of this subdivision.
(3) Compliance.
1. (i) A unit exempt under paragraph (1) of this subdivision shall comply with the restriction on percentage of annual gross generation that may be supplied to the electric grid described in paragraph (1) of this subdivision.
2. (ii) A unit exempt under paragraph (1) of this subdivision shall report to the department the amount of annual gross generation and the amount of annual gross generation supplied to the electric grid during the year by the following February 1st.
3. (iii) For a period of 10 years from the date the records are created, the owners and operators of a unit exempt under paragraph (1) of this subdivision shall retain, at the source that includes the unit, records demonstrating that the conditions of the permit under paragraph (1) of this subdivision were met. The 10-year period for keeping records may be extended for cause, at any time prior to the end of the period, in writing by the department. The owners and operators bear the burden of proof that the unit met the restriction on the percentage of annual gross generation that may be supplied to the electric grid.
4. (iv) The owners and operators and, to the extent applicable, the CO₂ authorized account representative of a unit exempt under paragraph (1) of this subdivision shall comply with all the requirements of this Part concerning all time periods for which the exemption is not in effect, even if such requirements arise, or must be complied with, after the exemption takes effect.
5. (v) On the earlier of the following dates, a unit exempt under paragraph (1) of this subdivision shall lose its exemption:
  1. (a) the date on which the restriction on the percentage of annual gross generation that may be supplied to the electric grid described in paragraph (1) of this subdivision is removed from the unit's permit or otherwise becomes no longer applicable in any year that commences on or after January 1, 2009; or
  2. (b) the first date on which the unit fails to comply, or on which the owners and operators fail to meet their burden of proving that the unit is complying, with the restriction on the percentage of annual gross generation that may be supplied to the electric grid described in paragraph (1) of this subdivision during any year that commences on or after January 1, 2009.
6. (vi) A unit that loses its exemption in accordance with subparagraph (v) of this paragraph shall be subject to the requirements of this Part. For the purpose of applying permitting requirements under Subpart 242-3 of this Part, allocating allowances under Subpart 242-5 of this Part, and applying monitoring requirements under Subpart 242-8 of this Part, the unit shall be treated as commencing operation on the date the unit loses its exemption.
  (c) Limited exemption for units, subject under paragraph (a)(2) of this section, with electrical output to the electric grid restricted by permit conditions.
(1) Applicability. Notwithstanding paragraph (a)(2) of this section, any unit that meets the following conditions shall be exempt from the requirements of this Part, except for the provisions of this section and sections 242-1.2, 242-1.3, and 242-1.6 of this Subpart.
1. (i) The unit would otherwise be subject to this Part pursuant to paragraph (a)(2) of this section.
2. (ii) On or before December 1, 2020, the unit applied for an enforceable permit condition restricting the supply of the unit's annual electrical output to the electric grid to less than or equal to 10 percent of the annual gross generation of the unit.
3. (iii) From and after January 1, 2021, the unit complies with the 10 percent restriction and the provisions in paragraph (3) of this subdivision.
(2) Effective date. The exemption under paragraph (1) of this subdivision shall become effective as of January 1, 2021 and remain in effect unless and until the unit loses its exemption under subparagraph (3)(v) of this subdivision.
(3) Compliance.
1. (i) A unit exempt under paragraph (1) of this subdivision shall comply with the restriction on percentage of annual gross generation that may be supplied to the electric grid described in paragraph (1) of this subdivision.
2. (ii) A unit exempt under paragraph (1) of this subdivision shall report to the department the amount of annual gross generation and the amount of annual gross generation supplied to the electric grid during the year by the following February 1st.
3. (iii) For a period of 10 years from the date the records are created, the owners and operators of a unit exempt under paragraph (1) of this subdivision shall retain, at the source that includes the unit, records demonstrating that the conditions of the permit under paragraph (1) of this subdivision were met. The 10-year period for keeping records may be extended for cause, at any time prior to the end of the period, in writing by the department. The owners and operators bear the burden of proof that the unit met the restriction on the percentage of annual gross generation that may be supplied to the electric grid.
4. (iv) The owners and operators and, to the extent applicable, the CO₂ authorized account representative of a unit exempt under paragraph (1) of this subdivision shall comply with all the requirements of this Part concerning all time periods for which the exemption is not in effect, even if such requirements arise, or must be complied with, after the exemption takes effect.
5. (v) On the earlier of the following dates, a unit exempt under paragraph (1) of this subdivision shall lose its exemption:
  1. (a) the date on which the restriction on the percentage of annual gross generation that may be supplied to the electric grid described in paragraph (1) of this subdivision is removed from the unit's permit or otherwise becomes no longer applicable in any year that commences on or after January 1, 2021; or
  2. (b) the first date on which the unit fails to comply, or on which the owners and operators fail to meet their burden of proving that the unit is complying, with the restriction on the percentage of annual gross generation that may be supplied to the electric grid described in paragraph (1) of this subdivision during any year that commences on or after January 1, 2021.
6. (vi) A unit that loses its exemption in accordance with subparagraph (v) of this paragraph shall be subject to the requirements of this Part. For the purpose of applying permitting requirements under Subpart 242-3 of this Part, allocating allowances under Subpart 242-5 of this Part, and applying monitoring requirements under Subpart 242-8 of this Part, the unit shall be treated as commencing operation on the date the unit loses its exemption.

(a) Units.