Merrill & Ring appealed the Deputy Administrator’s refusal to approve the aerial application of Vision to logging sites near Discovery Passage and on East Thurlow Island. The Appellant sought an order that its Pesticide Use Permits for the sites be amended to allow the aerial application of Vision on the grounds that the Deputy Administrator’s refusal appeared to be arbitrary and was not based on concerns regarding the protection of public health and the environment. It further alleged that the aerial spraying was refused because of the Deputy Administrator’s dislike of helicopter applications of herbicides.
The Board found that the Deputy Administrator did not act arbitrarily or improperly exercise his discretion when he refused the aerial spraying. The Appellant had not provided sufficient details regarding the proposed spraying to the Deputy Administrator, there was uncertainty regarding the effects of the spraying on the Comox Indian Band’s traditional clam fishery, and the Site Inspection Reports suggested that the vegetation cover at the sites did not warrant treatment at that time. However, new evidence was presented at the hearing before the Board and these issues were addressed. Based on the new evidence, the Board concluded that the proposed aerial treatments would not cause an unreasonable adverse effect to human health or the environment provided that “low drift” nozzles are used, and other conditions for aerial spraying are included in the Permits. The appeal was allowed and the Permits were referred back to the Deputy Administrator with directions.
