Case 1:20-cv-10642-LJL Document 17 Filed 01/07/21 Page 1 of 2
`U.S. Department of Justice
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`United States Attorney
`Southern District of New York
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`86 Chambers Street
`New York, New York 10007
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`January 7, 2021
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`Via ECF
`Honorable Lewis J. Liman
`United States District Court
`Southern District of New York
`500 Pearl Street
`New York, New York 10007
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`Re:
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`State of New York et al. v. EPA et al.; Rural & Migrant Ministry et al. v. EPA et al.
`20 Civ. 10642 (LJL) (consolidated)
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`Dear Judge Liman:
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`This Office represents defendants the U.S. Environmental Protection Agency and
`Andrew Wheeler, named in his capacity as Administrator of the U.S. Environmental Protection
`Agency (together, “EPA”) in the above-referenced matter.
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`I write respectfully (1) to advise the Court that EPA consents to an extension of the
`temporary restraining order (“TRO”) entered on December 28, 2020, until January 19, 2021,
`pursuant to Fed. R. Civ. P. 65(b)(2); (2) to request a one-week extension of the hearing
`scheduled for tomorrow, January 8, 2021, at 2:30 p.m.; and (3) to request a one-week extension
`of tomorrow’s deadlines for the filing of record materials until January 15, 2021.
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`Yesterday, shortly before the filing of EPA’s opposition brief, EPA alerted this Office to
`an error in certain information underlying the rule at issue, Pesticides—Agricultural Worker
`Protection Standard: Revision of the Application Exclusion Zone Requirements (“2020 Rule”),
`85 Fed. Reg. 68,760 (Oct. 30, 2020). See No. 20 Civ. 10645 (LJL), Dkt. No. 55 (EPA
`preliminary injunction opposition brief) at 16 n.13 (noting the issue).
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`Specifically, the 2020 Rule states that “EPA-approved trainings since 2018 . . . have also
`incorporated EPA’s 2016 guidance on how to apply pesticides near establishment borders and
`provide information on various measures applicators or handlers can take to prevent individuals
`from being contacted by spray or through drift,” and listed examples of such measures. 85 Fed.
`Reg. at 68,770-71. However, EPA advised this Office yesterday that some trainings approved by
`EPA since 2018 have not included such information.
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`EPA is now in the process of considering the issue and determining its effect, if any, on
`the 2020 Rule. In order to permit the agency sufficient time for this determination, EPA
`consents to an extension of the TRO precluding the implementation of the 2020 Rule until
`January 19, 2021, pursuant to Fed. R. Civ. P. 65(b)(2). In this connection, the government also
`respectfully requests a one-week adjournment of the hearing scheduled for tomorrow, January 8,
`at 2:30 p.m.
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`Case 1:20-cv-10642-LJL Document 17 Filed 01/07/21 Page 2 of 2
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`Page 2
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`Last, the government has been conferring with Plaintiffs’ counsel regarding the contents
`of the record in this matter and anticipates that a supplement to the record will be appropriate. In
`order to permit the resolution of these issues, alongside EPA’s further consideration of the 2020
`Rule, the government respectfully requests that the January 8, 2021, deadline for the filing of
`record materials be extended by one week, until January 15, 2021.
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`This is the first request to adjourn the January 8 hearing; the Court previously granted
`one extension of the time for EPA to file certain record materials.
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`Plaintiffs provided the following position for inclusion in this letter, and advised that they
`intend to file a more detailed response with the Court later tonight:
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`We consent to an extension of the TRO and continuance of the hearing.
`However, we believe that, based on the information provided in [the
`government’s] letter, the extension of the TRO should be for the full 14
`days permitted by Rule 65, and the hearing should be pushed out further to
`allow us the opportunity to respond in writing to EPA’s determination
`regarding the effect of this new information on the 2020 Rule. This would
`also allow us time to respond to any new record materials provided by
`EPA.
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`Thank you for your consideration of this matter.
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`Respectfully submitted,
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`AUDREY STRAUSS
`Acting United States Attorney for the
`Southern District of New York
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`By:
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`cc: Counsel of record (via ECF)
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` /s/ Samuel Dolinger
`SAMUEL DOLINGER
`Assistant United States Attorney
`86 Chambers Street, 3rd Floor
`New York, New York 10007
`Tel.: (212) 637-2677
`E-mail: samuel.dolinger@usdoj.gov
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