IN RE NORTH CAROLINA PESTICIDE BD.

• Decision Date: 31 December 1998
• Docket Number: No. 139A98.,139A98.
• Citation: 349 N.C. 656,509 S.E.2d 165
• Parties: In the Matter of Before the NORTH CAROLINA PESTICIDE BOARD FILE NOS. IR94-128, IR94-151, IR94-155. H. Ray Meads, Petitioner, v. North Carolina Department Of Agriculture, Food And Drug Protection Division, Pesticide Section, Respondent.
• Court: North Carolina Supreme Court

509 S.E.2d 165

349 N.C. 656

In the Matter of Before the NORTH CAROLINA PESTICIDE BOARD FILE NOS. IR94-128, IR94-151, IR94-155.

H. Ray Meads, Petitioner, v. North Carolina Department Of Agriculture, Food And Drug Protection Division, Pesticide Section, Respondent.

No. 139A98.

Supreme Court of North Carolina.

December 31, 1998.

Hatch, Little & Bunn, L.L.P. by David H. Permar and Tina L. Frazier, Raleigh, for petitioner-appellant and -appellee.

Michael F. Easley, Attorney General by Melissa H. Taylor, Assistant Attorney General, for respondent-appellant and -appellee.

Southern Environmental Law Center by Donnell Van Noppen III, Senior Attorney, Chapel Hill, on behalf of Agricultural Resources Center, Inc., amicus curiae.

WYNN, Justice.

We are asked in this appeal to determine whether the North Carolina Pesticide Board properly penalized an aerial pesticide applicator for violating various North Carolina pesticide regulations. On initial review, our Court of Appeals affirmed the trial court's reversal of the Pesticide Board's decision. Finding error, we reverse the decision of the Court of Appeals and reinstate the Pesticide Board's decision.

On 26 August 1994, petitioner H. Ray Meads ("Meads") aerially sprayed the pesticide Pounce on James Duncan's ("Duncan") soybean field located on S.R. 1148¹ in Currituck County. On that same day, Mary Jo Windley ("Windley"), a Currituck County resident whose property adjoins the Duncan field, exited her home and encountered a vapor that made her eyes burn and her lips tingle. Consequently, Windley complained to the North Carolina Department of Agriculture, Food and Drug Protection Division, Pesticide Section ("NCDA").

In response, on 27 August 1994, an NCDA inspector collected vegetation samples from the east and west sides of S.R. 1148, the Windley yard, and the target soybean field. Analysis of the samples revealed varying levels of Permethrin, an active ingredient in Pounce, ranging from 1.6 parts per million ("ppm") in the sprayed target field to .10 ppm in the Windley yard. Permethrin traces were also discovered within twenty-five feet of S.R. 1148; one-hundred feet of Windley's residence; and three-hundred feet of Royster Clark, Inc., a nearby business open at the time of Meads' Pounce application.

On 28 November 1994, the NCDA issued Meads a notice violation citing his alleged violation of the North Carolina pesticide law and regulations.² Subsequently, the Pesticide Board held a hearing and concluded that Meads violated N.C.G.S. §§ 143-443(b); 143-469(b)(2); and 143-456(a)(2), (4), and (5) by applying Pounce in a manner inconsistent with its label. The Pesticide Board also concluded that Meads violated N.C.G.S. § 143-456(a)(4) by applying Pounce in a faulty, careless, or negligent manner. Lastly, the Pesticide Board concluded that Meads violated North Carolina Administrative Rule 2 NCAC 9L .1005(b), (c), and (e), respectively, by aerially depositing pesticide within threehundred feet of the nearby business Royster Clark, Inc.; twenty-five feet of S.R. 1148; and one-hundred feet of the Windley residence. Under N.C.G.S. §§ 143-469(a)(2) and 143-456(a)(5), the Pesticide Board assessed Meads a $1,000 fine and revoked his aerial pesticide license for one year. Thereafter, Meads sought judicial review of the Pesticide Board's decision in Superior Court, Wake County.

In an order entered 7 February 1997, the trial court concluded that the Pesticide Board improperly interpreted rule 2 NCAC 9L.1005 and erred in its application of obsolete labeling restrictions. Additionally, the court concluded that the Pesticide Board's decision was arbitrary, capricious, and unsupported by substantial evidence. Lastly, the court concluded that the buffer-zone regulations set forth in rule 2 NCAC 9L .1005 violated Meads' constitutional due process and equal protection rights. Accordingly, the trial court reversed the Pesticide Board's decision.

Our Court of Appeals, in an unpublished opinion, affirmed the trial court's ruling that the Pesticide Board's decision was arbitrary, capricious, and unsupported by substantial evidence. See Meads v. N.C. Dep't of Agric., 128 N.C.App. 750, 498 S.E.2d 210 (1998). Because this issue was determinative of the case, the Court of Appeals did not address the trial court's conclusion that the regulations and accompanying penalties violated Meads' constitutional due process and equal protection rights. In dissent, Judge Greene concluded that "the whole record contains substantial evidence to support the [Pesticide] Board's determination."

We are now asked to determine: (1) whether the Pesticide Board's decision was supported by substantial evidence, (2) whether the Pesticide Board's decision was based upon errors of law, and (3) whether the buffer-zone regulations set forth in rule 2 NCAC 9L .1005 violate the Due Process and Equal Protection Clauses of both the United States and North Carolina Constitutions. We address each issue seriatim.

I. WHETHER SUBSTANTIAL EVIDENCE SUPPORTED THE PESTICIDE BOARD'S DECISION

As an administrative agency, the Pesticide Board is subject to the North Carolina Administrative Procedure Act ("APA"), codified at chapter 150B of the General Statutes. See Amanini v. N.C. Dep't of Human Resources, 114 N.C.App. 668, 673, 443 S.E.2d 114, 117 (1994)

. Under the APA, a reviewing court may reverse or modify an agency's decision if the petitioner's substantial rights may have been prejudiced by findings, inferences, conclusions, or decisions which are arbitrary, capricious, or unsupported by substantial evidence. See N.C.G.S. § 150B-51(b) (1991).

Under N.C.G.S. § 150B-51(b), the proper standard of review "depends upon the issues presented on appeal." In re Appeal by McCrary, 112 N.C.App. 161, 165, 435 S.E.2d 359, 363 (1993). When the reviewing court is determining whether an agency's decision was arbitrary, capricious, or unsupported by substantial evidence, as we are in the instant case, it must apply the "whole record" test. See Amanini 114 N.C.App. at 674, 443 S.E.2d at 118.

"The `whole record' test requires the reviewing court to examine all competent evidence (the `whole record') in order to determine whether the agency decision is supported by `substantial evidence.'" Id. (quoting Rector v. N.C. Sheriffs' Educ. & Training Standards Comm'n, 103 N.C.App. 527, 532, 406 S.E.2d 613, 616 (1991)). "Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." State ex rel. Comm'r of Ins. v. N.C. Fire Ins. Rating Bureau, 292 N.C. 70, 80, 231 S.E.2d 882, 888 (1977). Therefore, if we conclude there is substantial evidence in the record to support the Board's decision, we must uphold it. See McCrary, 112 N.C.App. at 168, 435 S.E.2d at 365. We note that while the whole-record test "`does require the court to take into account both the evidence justifying the agency's decision and the contradictory evidence from which a different result could be reached,'" id. at 167-68, 435 S.E.2d at 364 (quoting Lackey v. N.C. Dep't of Human Resources, 306 N.C. 231, 238, 293 S.E.2d 171, 176 (1982)), the test "does not allow the reviewing court to replace the Pesticide Board's judgment as between two reasonably conflicting views, even though the court could justifiably have reached a different result had the matter been before it de novo," Thompson v. Wake County Bd. of Educ., 292 N.C. 406, 410, 233 S.E.2d 538, 541 (1977)

.

As stated, the Pesticide Board concluded that Meads violated 2 NCAC 9L.1005(b), (c), and (e) and N.C.G.S. §§ 143-443(b)(3), 143-456(a)(2), and 143-469(b)(2). We address each violation respectively.

Under 2 NCAC 9L .1005(b), it is unlawful to aerially apply a pesticide within threehundred feet of an occupied business. The Pesticide Board, in concluding that Meads violated this rule, initially noted that Meads aerially applied Pounce on Duncan's soybean field at some point between 9:30 and 11:00 a.m.—a time during which the nearby business Royster Clark, Inc., was occupied. The Pesticide Board found that vegetation samples collected approximately 234 feet from Royster Clark, Inc., contained .10 ppm of Permethrin. From these facts, the Pesticide Board concluded that Meads improperly applied pesticide within three-hundred feet of an occupied business in violation of 2 NCAC 9L .1005(b). We conclude that this evidence provides sufficient support for the Pesticide Board's ruling. Therefore, we reverse the Court of Appeals' decision that the Pesticide Board's holding with respect to this issue was arbitrary, capricious, and unsupported by substantial evidence.

Under 2 NCAC 9L .1005(c), pesticide may not be aerially applied within twentyfive feet of a roadway. The Pesticide Board, in determining that Meads violated this rule, found that a vegetation sample taken four feet from the pavement along the east side of S.R. 1148 contained .17 ppm of Permethrin, while a vegetation sample taken three feet from the pavement along the west side of S.R. 1148 contained .54 ppm of that same substance. This evidence constitutes substantial evidence to support the Pesticide Board's decision that Meads violated this rule. Thus, we reverse the Court of Appeals' decision to the extent that it found that the Pesticide Board's holding with respect to this rule was arbitrary, capricious, and unsupported by substantial evidence.

Under 2 NCAC 9L .1005(e), pesticide may not be aerially applied within one-hundred feet of a residence. In ruling that Meads violated this rule, the Pesticide Board noted that two vegetation samples collected within forty-seven and sixty feet of Ms. Windley's residence contained .10 ppm and.44 ppm of Permethrin, respectively. Moreover, the Pesticide Board noted that the Pounce label provides that the product "[c]auses moderate eye irritation." The Pesticide Board concluded that the evidence showing that Ms. Windley's eyes burned and her lips tingled showed that there were...