Exceptional event demonstration contracts (National Oceanic and Atmospheric Administration)

To Whom It May Concern:

Pursuant to the Freedom of Information Act, I hereby request the following records:

We are aware that state air quality management and state environmental protection agencies sometimes conduct "exceptional event demonstrations," which are analyses to demonstrate that emissions from potential exceptional events caused an exceedance of one or more NAAQS. These demonstrations are then submitted to the Regional EPA office in order to request that the office exclude the air quality monitoring data from use in certain regulatory determinations. A recent GAO report, found at https://www.gao.gov/products/gao-23-104723, stated, “According to officials from NOAA, states often reach out to NOAA’s subject matter experts, as well as subject matter experts from the National Aeronautics and Space Administration for assistance with using satellite data for exceptional event demonstrations.”

Concerning services related to these exceptional event analyses, we request:
1. Any and all executed contracts, memorandums of understanding (MOUs), or other equivalent agreements that are currently active, or have been active within the last five years;
2. Any addenda, amendments, attachments, exhibits, materials, and schedules;
3. Any and all correspondence, between the relevant air quality agency and the contracting individual, corporation, or other entity, related to the implementation of these agreements.

The requested documents will be made available to the general public, and this request is not being made for commercial purposes.

In the event that there are fees, I would be grateful if you would inform me of the total charges in advance of fulfilling my request. I would prefer the request filled electronically, by e-mail attachment if available or CD-ROM if not.

Thank you in advance for your anticipated cooperation in this matter. I look forward to receiving your response to this request within 20 business days, as the statute requires.

Sincerely,

Dillon Bergin

To whom it may concern:

Thank you for your response requesting a clarification of our initial request. We are happy to modify our request with additional descriptions which may be helpful to relevant employees there. We understand that “a request must be described with reasonably sufficient detail to enable government employees who are familiar with the subject area to locate records without placing an unreasonable burden upon the agency.” 14 C.F.R. § 1206.301(b).

BACKGROUND: CLEAN AIR ACT AND THE EXCEPTIONAL EVENTS RULE
From time to time, circumstances which elevate levels of known criteria pollutants in the atmosphere, including particulate matter and ozone, may occur as a result of “natural” processes that may not be reasonably controllable. These circumstances include stratospheric ozone intrusions, dust storms, volcanic eruptions, wildfires, and fireworks, and are defined as potential “exceptional events” by §319(b) of the Clean Air Act.

As a result of these potential exceptional events, local, regional, state and federal agencies who manage and oversee air basins may prepare documents called demonstrations: these generally include satellite data and modeling that help the relevant agency make a case that certain levels of criteria pollutants are due to circumstances beyond human control. That data generally comes from federal and other public air monitors, and the goal of modeling is to develop causal relationships between the potential exceptional event and the pollution exceedance(s) at those monitors.

Because of the GAO report, we are aware that the air regulating agencies that prepare such demonstrations may consult with subject matter experts about the following subjects: air monitors, satellite data, atmospheric modeling, stratospheric ozone intrusions, dust storms, wildfires, and the like. The GAO specifically says it has spoken to people from NOAA.

BACKGROUND: NOAA SUBJECT MATTER EXPERTS WORK ON ISSUES RELATED TO “EXCEPTIONAL EVENTS,” ATMOSPHERIC OZONE AND CONDITIONS, POLLUTION MONITORING, AND THE LIKE

NOAA is home to such subject matter experts; for example, Andy Langford, who has worked to understand stratospheric ozone, background ozone levels, and ozone intrusion, as described on NOAA’s website:

https://csl.noaa.gov/news/2022/344_0211.html

It is in this context we bring our request, by seeking documents about the partnerships between NOAA and air regulatory agencies like the one referenced above.

CLARIFICATION OF REQUEST
Originally, we referenced a report written by the Government Accountability Office, in which the GAO asserted that preparers of exceptional event demonstrations reach out to federal subject matter experts at NOAA and at NASA, “for assistance with using satellite data for exceptional event demonstrations.”

We then asked for records related to contracts or agreements under which NOAA may provide that assistance.

To further clarify our request, we continue to seek:

1. Any and all executed contracts, memorandums of understanding (MOUs), or other equivalent agreements between NOAA and air regulatory agencies, which are public entities seeking assistance with satellite data or modeling for exceptional events, that are currently active, or have been active within the last five years; 

2. Any addenda, amendments, attachments, exhibits, materials, and schedules to such agreements concerning assistance with exceptional events; 

3. Any and all correspondence, between NOAA subject matter experts and relevant air quality agencies and officials, related to the subject of the Clean Air Act’s exceptional events rule, stratospheric ozone intrusions, dust storms, or wildfire monitoring. 


FEE WAIVER - CLARIFICATION
This is an appeal of fee status. Specifically, I am appealing fee category determination that I am a "Other" rather than a journalist entitled to media requester status under a plain reading of the FOIA statute.
The FOIA statute directs that fees shall be limited "to reasonable standard charges for document duplication when records are not sought for commercial use and the request is made by a representative of the news media."
The 2007 FOIA amendments further define the news media category to include: "any person or entity that gathers information of potential interest to a segment of the public, uses its editorial skills to turn the raw materials into a distinct work, and distributes that work to an audience. the Government may also consider the past publication record of the requester in making such a determination."

I meet the definition of a media requester. I am the data reporter for the MuckRock (MuckRock.com) website, which publishes original news content on a regular basis. Much of MuckRock's content focuses either on FOIA itself or reports off of documents received via public records requests.

As a member of the news media working for Muckrock, and working on behalf of other media organizations including the California Newsroom, I am gathering information on the federal process of determining an exceptional event under the Clean Air Act, which is of current interest to the public because uncontrolled particulate pollution from exceptional events is a fast-growing airborne public health threat in the western United States. (Please take note of the Office of Management and Budget guidelines published March 27, 1987 (52 FR 10012) that include electronic publications and other nontraditional publishers as representatives of the news media.)

How a requester submits FOIA requests is immaterial to that individual's fee category. Rather, what matters is the purpose to which the requester intends to put the documents. I have no commercial interest in these documents but am requesting them purely for news gathering purposes. I have no intent to sell or otherwise profit from the information therein, but rather intend to post them in full online and write about them so that the public can better understand the workings of this agency and its operations. MuckRock doesn't have a paywall -- these documents will be available to anyone with a computer and curiosity about their community. For my part, I will derive only journalistic benefit from the requested documents.
In addition to conducting original investigations, MuckRock also facilitates users' requests, for which users do pay a nominal processing fee to cover administrative costs. If anyone who submits a FOIA request via MuckRock is a commercial requester, then so is every citizen who tracks their FOIA requests via Microsoft Excel or another spreadsheet application, or who files their requests from a commercial email address provider.

I am requesting a waiver of all fees under 5 U.S.C. Section 552(a)(4)(A)(iii). The information I seek is in the public interest because it will contribute significantly to public understanding of the operations or activities of the government and is not primarily in my commercial interest.

I believe I meet the criteria for a fee waiver recognized by the U.S. Justice Department – in its policy guidance of April 1987 – and by the federal courts, See Project on Military Procurement v. Department of the Navy, 710 F. Supp. 362 363, 365 (D.C.D. 1989).
My request concerns the operations or activities of government because I’m seeking to understand how federal subject matter experts in scientific, atmospheric and climatic matters advise agencies participating in a poorly-understood federal process that is obscure enough to require clarification when describing it to agencies who advise on it.

Also, the information sought has informative value, or potential for contribution to public understanding. Please note the decision in Elizabeth Eudey v. Central Intelligence Agency, 478 F. Supp. 1175 1176 (D.C.D. 1979) (even a single document has the potential for contributing to public understanding).

I and my journalistic partners have already begun to investigate exceptional events, and have published reporting in the past about pollution from wildfire smoke and about this topic. See here:
https://www.kqed.org/news/11950351/as-wildfire-smoke-worsens-public-health-government-watchdog-calls-epa-response-ad-hoc

I plan to disseminate this information to the public at large via radio and digital platforms.

In addition, the release of this information will have a significant impact on public understanding because the public does not broadly understand such subjects as the movement of ozone between the troposphere and stratosphere, and how federal subject matter experts advise local regulatory agencies on complex scientific, atmospheric and climatic matters, including whether to count criteria pollution or not.

In your deliberations, please take note of the following cases: Campbell v. U.S. Department of Justice, 334 U.S. App. D.C. (1998)(administrative and seemingly repetitious information is not exempt from fee-waiver consideration); Project on Military Procurement (agencies cannot reject a fee waiver based on the assumption that the information sought is covered by a FOIA exemption; and Landmark Legal Foundation v. Internal Revenue Service, 1998 U.S. Dist. LEXIS 21722 (D.C.D. 1998)(the fact that the information will soon be turned over to a public body does not exempt the material from fee-waiver consideration).

I thank you for your prompt attention, and let me know if you have any additional questions.

Hello Maria:

In response to your correspondence of June 11th, we had followed up with an explanation for why we are journalists, and a clarification. It is reproduced below.

To whom it may concern:

Thank you for your response requesting a clarification of our initial request. We are happy to modify our request with additional descriptions which may be helpful to relevant employees there. We understand that “a request must be described with reasonably sufficient detail to enable government employees who are familiar with the subject area to locate records without placing an unreasonable burden upon the agency.” 14 C.F.R. § 1206.301(b).

BACKGROUND: CLEAN AIR ACT AND THE EXCEPTIONAL EVENTS RULE
From time to time, circumstances which elevate levels of known criteria pollutants in the atmosphere, including particulate matter and ozone, may occur as a result of “natural” processes that may not be reasonably controllable. These circumstances include stratospheric ozone intrusions, dust storms, volcanic eruptions, wildfires, and fireworks, and are defined as potential “exceptional events” by §319(b) of the Clean Air Act.

As a result of these potential exceptional events, local, regional, state and federal agencies who manage and oversee air basins may prepare documents called demonstrations: these generally include satellite data and modeling that help the relevant agency make a case that certain levels of criteria pollutants are due to circumstances beyond human control. That data generally comes from federal and other public air monitors, and the goal of modeling is to develop causal relationships between the potential exceptional event and the pollution exceedance(s) at those monitors.

Because of the GAO report, we are aware that the air regulating agencies that prepare such demonstrations may consult with subject matter experts about the following subjects: air monitors, satellite data, atmospheric modeling, stratospheric ozone intrusions, dust storms, wildfires, and the like. The GAO specifically says it has spoken to people from NOAA.

BACKGROUND: NOAA SUBJECT MATTER EXPERTS WORK ON ISSUES RELATED TO “EXCEPTIONAL EVENTS,” ATMOSPHERIC OZONE AND CONDITIONS, POLLUTION MONITORING, AND THE LIKE

NOAA is home to such subject matter experts; for example, Andy Langford, who has worked to understand stratospheric ozone, background ozone levels, and ozone intrusion, as described on NOAA’s website:

https://csl.noaa.gov/news/2022/344_0211.html

It is in this context we bring our request, by seeking documents about the partnerships between NOAA and air regulatory agencies like the one referenced above.

CLARIFICATION OF REQUEST
Originally, we referenced a report written by the Government Accountability Office, in which the GAO asserted that preparers of exceptional event demonstrations reach out to federal subject matter experts at NOAA and at NASA, “for assistance with using satellite data for exceptional event demonstrations.”

We then asked for records related to contracts or agreements under which NOAA may provide that assistance.

To further clarify our request, we continue to seek:

1. Any and all executed contracts, memorandums of understanding (MOUs), or other equivalent agreements between NOAA and air regulatory agencies, which are public entities seeking assistance with satellite data or modeling for exceptional events, that are currently active, or have been active within the last five years; 

2. Any addenda, amendments, attachments, exhibits, materials, and schedules to such agreements concerning assistance with exceptional events; 

3. Any and all correspondence, between NOAA subject matter experts and relevant air quality agencies and officials, related to the subject of the Clean Air Act’s exceptional events rule, stratospheric ozone intrusions, dust storms, or wildfire monitoring. 


FEE WAIVER - CLARIFICATION
This is an appeal of fee status. Specifically, I am appealing fee category determination that I am a "Other" rather than a journalist entitled to media requester status under a plain reading of the FOIA statute.
The FOIA statute directs that fees shall be limited "to reasonable standard charges for document duplication when records are not sought for commercial use and the request is made by a representative of the news media."
The 2007 FOIA amendments further define the news media category to include: "any person or entity that gathers information of potential interest to a segment of the public, uses its editorial skills to turn the raw materials into a distinct work, and distributes that work to an audience. the Government may also consider the past publication record of the requester in making such a determination."

I meet the definition of a media requester. I am the data reporter for the MuckRock (MuckRock.com) website, which publishes original news content on a regular basis. Much of MuckRock's content focuses either on FOIA itself or reports off of documents received via public records requests.

As a member of the news media working for Muckrock, and working on behalf of other media organizations including the California Newsroom, I am gathering information on the federal process of determining an exceptional event under the Clean Air Act, which is of current interest to the public because uncontrolled particulate pollution from exceptional events is a fast-growing airborne public health threat in the western United States. (Please take note of the Office of Management and Budget guidelines published March 27, 1987 (52 FR 10012) that include electronic publications and other nontraditional publishers as representatives of the news media.)

How a requester submits FOIA requests is immaterial to that individual's fee category. Rather, what matters is the purpose to which the requester intends to put the documents. I have no commercial interest in these documents but am requesting them purely for news gathering purposes. I have no intent to sell or otherwise profit from the information therein, but rather intend to post them in full online and write about them so that the public can better understand the workings of this agency and its operations. MuckRock doesn't have a paywall -- these documents will be available to anyone with a computer and curiosity about their community. For my part, I will derive only journalistic benefit from the requested documents.
In addition to conducting original investigations, MuckRock also facilitates users' requests, for which users do pay a nominal processing fee to cover administrative costs. If anyone who submits a FOIA request via MuckRock is a commercial requester, then so is every citizen who tracks their FOIA requests via Microsoft Excel or another spreadsheet application, or who files their requests from a commercial email address provider.

I am requesting a waiver of all fees under 5 U.S.C. Section 552(a)(4)(A)(iii). The information I seek is in the public interest because it will contribute significantly to public understanding of the operations or activities of the government and is not primarily in my commercial interest.

I believe I meet the criteria for a fee waiver recognized by the U.S. Justice Department – in its policy guidance of April 1987 – and by the federal courts, See Project on Military Procurement v. Department of the Navy, 710 F. Supp. 362 363, 365 (D.C.D. 1989).
My request concerns the operations or activities of government because I’m seeking to understand how federal subject matter experts in scientific, atmospheric and climatic matters advise agencies participating in a poorly-understood federal process that is obscure enough to require clarification when describing it to agencies who advise on it.

Also, the information sought has informative value, or potential for contribution to public understanding. Please note the decision in Elizabeth Eudey v. Central Intelligence Agency, 478 F. Supp. 1175 1176 (D.C.D. 1979) (even a single document has the potential for contributing to public understanding).

I and my journalistic partners have already begun to investigate exceptional events, and have published reporting in the past about pollution from wildfire smoke and about this topic. See here:
https://www.kqed.org/news/11950351/as-wildfire-smoke-worsens-public-health-government-watchdog-calls-epa-response-ad-hoc

I plan to disseminate this information to the public at large via radio and digital platforms.

In addition, the release of this information will have a significant impact on public understanding because the public does not broadly understand such subjects as the movement of ozone between the troposphere and stratosphere, and how federal subject matter experts advise local regulatory agencies on complex scientific, atmospheric and climatic matters, including whether to count criteria pollution or not.

In your deliberations, please take note of the following cases: Campbell v. U.S. Department of Justice, 334 U.S. App. D.C. (1998)(administrative and seemingly repetitious information is not exempt from fee-waiver consideration); Project on Military Procurement (agencies cannot reject a fee waiver based on the assumption that the information sought is covered by a FOIA exemption; and Landmark Legal Foundation v. Internal Revenue Service, 1998 U.S. Dist. LEXIS 21722 (D.C.D. 1998)(the fact that the information will soon be turned over to a public body does not exempt the material from fee-waiver consideration).

I thank you for your prompt attention, and let me know if you have any additional questions.

Sincerely,

Molly Peterson
on behalf of Dillon Bergin/Muckrock
415.377.1760