(a) The commission shall levy a clean fuel incentive surcharge of 20 cents per MMBtu on fuel oil used between April 15 and October 15 of each year in an industrial or utility boiler that is:
(1) capable of using natural gas; and
(2) located in a consolidated metropolitan statistical area or metropolitan statistical area with a population of 350,000 or more that has not met federal ambient air quality standards for ozone.
(b) The commission may not levy the clean fuel incentive surcharge on:
(1) waste oils, used oils, or hazardous waste-derived fuels burned for purposes of energy recovery or disposal, if the commission or the United States Environmental Protection Agency approves or permits the burning;
(2) fuel oil used during:
(A) any period of full or partial natural gas curtailment;
(B) any period when there is a failure to deliver sufficient quantities of natural gas to satisfy contractual obligations to the purchaser; or
(C) a catastrophic event as defined by § 382.063;
(3) fuel oil used between April 15 and October 15 in equipment testing or personnel training up to an aggregate of the equivalent of 48 hours full-load operation; or
(4) any firm engaged in fixed price contracts with public works agencies for contracts entered into before August 28, 1989.