Full opinion text
OPINION BURNS, Chief Judge: HISTORY OF THIS CASE This diversity case is before the court on remand from the Ninth Circuit Court of Appeals for a retrial on the issue of punitive damages. Orchard View Farms, Inc. v. Martin Marietta Aluminum, Inc., No. 73 3080 (9th Cir. June 23, 1975). On March 31, 1971, Orchard View Farms, Inc. (Orchard View) filed this trespass action, seeking compensatory and punitive damages for injuries to its orchards between March 31, 1965 and the filing date. These injuries were alleged to have been caused by fluoride emitted from the aluminum reduction plant operated by Martin Marietta Aluminum, Inc. (the company or Martin Marietta). In April and May, 1973, the case was tried to a jury, which awarded Orchard View $103,655 compensatory damages and $250,000 punitive damages. The company appealed this judgment on numerous grounds. The Ninth Circuit affirmed the award of compensatory damages but reversed and remanded the punitive damages award because in various rulings at the trial I erroneously admitted evidence of certain events that had occurred before the 1965-71 claim period, events which had been insufficiently linked by the evidence to the company’s conduct and policies during the claim period. Upon retrial, evidence was presented in various forms. Much testimony was presented through written witness statements. Additional testimony, both on direct and cross-examination, was offered live. Most of the evidence was submitted in October, 1977, but a defense witness and the plaintiff’s responding rebuttal witness testified in 1978, and final arguments were heard in 1979. Both sides submitted pretrial and post-trial memoranda. Both parties and their counsel are to be complimented for their cooperation with each other and with the court, their observance of the local procedural rules, and the quality of their work. FACTUAL BACKGROUND Martin Marietta Aluminum, Inc., is a California corporation that owns and operates aluminum reduction plants, including plants located in The Dalles, Oregon, and Golden-dale, Washington. Harvey Aluminum, Inc. (Harvey) constructed the plant located at The Dalles, and owned and operated it when production began in 1958. In 1968 Martin Marietta Corporation purchased a controlling share of Harvey common stock. It voted its representatives into a majority of the Harvey directorship in 1969. In 1972, the name of Harvey Aluminum, Inc., was changed to Martin Marietta Aluminum, Inc. In 1974 Martin Marietta Aluminum, Inc., became a wholly-owned subsidiary of Martin Marietta Corporation. Orchard View Farms, Inc., is an Oregon corporation. It operates three orchards with a combined total acreage of approximately five hundred acres. The orchards are located between 2.5 and 5 miles from the aluminum plant. Donald Bailey is the president and treasurer of Orchard View; he, his wife, and five of their children are the sole stockholders. Orchard View owns part of the land; the Baileys own the rest and lease it to Orchard View. The Bailey family operates the orchards. This case is one of an ever-increasing number filed against Harvey, and later Martin Marietta, by orchardists who charged that fluorides emitted from the plant have damaged their crops. The first such suit, Renken v. Harvey Aluminum, Inc., 226 F.Supp. 169 (D.Or.1963), was filed in May, 1961. It was finally closed in 1966 when the court approved a consent decree providing for arbitration of the growers’ claims and dismissal of the related actions filed in state court during the interim. Since February, 1977, thirteen actions have been filed in the United States District Court. These suits seek compensatory and punitive damages for injury allegedly inflicted by emissions from the plant during the years 1971 through 1977. OPINION I. OREGON LAW OF PUNITIVE DAMAGES. II. SOCIETAL OBLIGATIONS OF BUSINESS ENTERPRISES. III. EVALUATION OF THE DEFENDANT'S CONDUCT IN LIGHT OF ITS SOCIETAL OBLIGATIONS. A. Ascertaining the Harm from Plant Emissions. 1. The Company's Efforts. a. Cherries. b. Peaches. c. Pines. d. Other Vegetation. 2. Efforts of Others. a. Cherries. 1) Observation of Trees, Leaves auu Fruit. 2) Scientific Inquiry. b. Peaches. c. Pines. d. Other Vegetation. 3. The Company's Response to Evidence of Harm from the Plant's Emissions. a. Cherries. b. Peaches. c. Pines. d. Other Vegetation. 4. Conclusion. B. Efficiently Controlling the Harmful Emissions. 1. Plant Siting. 2. Monitoring. a. Emissions. 1) Frequency of Monitoring. 2) Accuracy of Monitoring. a) Selection of Monitoring Location. b) Duration of Tests. c) Maintenance of Normal Operating Conditions. d) Sampling Technique. 3) Overall Evaluation. b. Ambient Concentrations. 3. Controlling Emissions. a. Fluoride Evolution at the Cell. 1) Operating Parameters. 2) Selection of Ore. b. Primary Emission Control System. 1) Collection Efficiency. a) Cell Hooding. b) Operating Procedures. 2) Treatment Efficiency. c. Secondary Emission Control System. 1) Collection Efficiency. 2) Treatment Efficiency. d. Overall Performance. 4. Mitigation Measures. a. Tall Stacks. b. Application of Lime Spray. 5. Conclusion. C. Arranging to Compensate for the Remaining Harm. IV. AWARD OF PUNITIVE DAMAGES. I. OREGON LAW OF PUNITIVE DAMAGES. The Oregon Supreme Court has provided specific guidance on punitive damage liability in the context of industrial air pollution. In McElwain v. Georgia-Pacific Corporation, 245 Or. 247, 421 P.2d 957 (1966), the court stated: Although this court has on occasion indulged in the dictum that punitive damages are not “favored in the law,” it has, nevertheless, uniformly sanctioned the recovery of punitive damages whenever there was evidence of a wrongful act done intentionally, with knowledge that it would cause harm to a particular person or persons.... The intentional disregard of the interest of another is the equivalent of legal malice, and justifies punitive damages for trespass. Where there is proof of an intentional, unjustifiable infliction of harm with deliberate disregard of the social consequences, the question of award of punitive damages is for the jury. 245 Or. at 249, 421 P.2d at 958. The court reversed the trial judge’s withdrawal of the issue of punitive damage liability from the jury because the “defendant knew when it decided to construct its kraft.mill in Toledo, that there was danger, if not a probability, that the mill would cause damage to adjoining property,” 245 Or. at 250, 421 P.2d at 958, and because of “the substantial evidence from which the jury could have found that during the period involved in this action the defendant had not done everything reasonably possible to eliminate or minimize the damage to adjoining properties by its mill.” 245 Or. at 252, 421 P.2d at 959. In Davis v. Georgia-Pacific Corporation, 251 Or. 239, 445 P.2d 481 (1968), the court remanded a jury’s award of punitive damages because the trial judge had refused to admit evidence pertaining to “the utility of defendant’s operations and its efforts, as compared with others similarly engaged, to prevent damage to surrounding properties.” 251 Or. at 245, 445 P.2d at 484. In a more recent review of punitive damages liability in Oregon, the court in Harrell v. Travelers Indemnity Company, 279 Or. 199, 567 P.2d 1013 (1977), noted: One whose business involves the operation of a plant which emits smoke, fumes or “particulates” may also have ... liability for punitive damages, even in the absence of any “wanton” or “fraudulent” conduct, upon the ground that he has “intentionally” permitted fumes, smoke or particles to be released and blown by the wind upon another’s property, for the reason that “[t]he intentional disregard of the interest of another is the legal equivalent of legal malice and justifies punitive damages for trespass.” 279 Or. at 210-11, 567 P.2d at 1018, quoting McElwain, 245 Or. at 249, 421 P.2d at 958 (and adding an additional “legal” to the quotation). Additional guidance, though of less precedential value, is provided by Reynolds Metals Company v. Lampert, 316 F.2d 272 (9th Cir. 1963). The District of Oregon trial judge had withdrawn the issue of punitive damages liability from the jury. The Ninth Circuit reversed and remanded. Where there is evidence that the injury was done maliciously or wilfully and wantonly or committed with bad motive or recklessly so as to imply a disregard of social obligations, punitive damages are justified. Fisher v. Carlin, 219 Or. 159, 346 P.2d 641. Here the record discloses that appellants had known for several years that fluorides from their plant were settling on appellees’ land, with resultant damage to appellees’ crops. It thus could have been found that their trespass was done knowingly and wilfully, that it was intentional and in wanton disregard of appellants’ social obligations. To justify an award of punitive damages, it is not necessary that the act have been done maliciously or with bad motive. Where it has become apparent, as it has here, that compensatory damages alone, while they might compensate the injured party, will not deter the actor from committing similar trespasses in the future, there is ample justification for an award of punitive damages.. .. Accordingly, the issue of punitive damages should have been submitted to the jury. 316 F.2d at 275. Upon remand a second jury denied any award of punitive damages, and the plaintiff appealed. In Lampert v. Reynolds Metals Company, 372 F.2d 245 (9th Cir. 1967), the court noted that its earlier view of punitive damages had been confirmed in the interim by the Oregon Supreme Court’s McElwain opinion. During the retrial, the District of Oregon judge hearing the case instructed the jury that, “with regard to punitive damages, it should weigh the apparent value to society of plaintiffs’ farming activities.” 372 F.2d at 247. The Ninth Circuit rejected this view, stating: Without doubt, the operation of the Reynolds Metals Company at Troutdale has social value in that community. But in legal contemplation, the company has no obligation to provide that social value, and certainly no right to do so in disregard of its legal obligation not to cause trespass injuries upon the property of plaintiffs. We find no Oregon decision nor, indeed, any decision from any jurisdiction, which supports the weighing process sanctioned by the trial court. 372 F.2d at 248. The decision was reversed and the cause remanded for a new trial. This guidance provided by the Oregon Supreme Court and the Ninth Circuit Court of Appeals, though specific to the context of industrial air pollution, does not define with precision the circumstances justifying the imposition of punitive damage liability. A broad synthesis of these opinions provides the conclusion that punitive damage awards may be imposed for business activities, harmful to others, carried out in disregard of the corporation’s societal obligations. In brief, the issue is whether the defendant has damaged the property of plaintiff by conduct evidencing an “I don’t give a damn” attitude. For a case as complex as this, however, it is important to describe in some greater detail the societal obligations of business enterprises. II. SOCIETAL OBLIGATIONS OF BUSINESS ENTERPRISES. In essence, any business -is socially obliged to carry on an enterprise that is a net benefit, or at least not a net loss, to society. The company’s management recognized this obligation in a 1960 letter to the Wasco County Fruit and Produce League. In closing I [Lawrence Harvey] would like to reemphasize our desire to foster the prosperity of the entire community. . . . We are doing, and will continue to do so, the best scientific job of control that is possible under the circumstances. These are obligations which we consider part of our community responsibility. Ex. 305a at 2. In a world where all costs of production were borne by the enterprise, determining whether a firm produced a net benefit, or at least not a net detriment, to society would be as simple as examining the company’s balance sheet of income and expenses. In the real world the task is more complex, because enterprises can sometimes shift a portion of their costs of production onto others. In the case of an industrial plant emitting pollution, those harmed by the emissions are, in effect, involuntarily bearing some of the firm’s production costs. Our society has not demanded that such externalized costs of production be completely eliminated. Instead, we tolerate ex-ternalities such as pollution as long as the enterprise remains productive: that is, producing greater value than the total of its internalized and externalized costs of production. A business that does not achieve net productivity is harmful to society, detracting from the standard of living it is designed to enhance. Because firms can sometimes impose a portion of their production costs upon others, the mere fact that a company continues to operate at a profit is not in itself conclusive evidence that it produces a net benefit to society. Our system of law attempts to ensure that businesses are, on balance, socially beneficial by requiring that each enterprise bear its total production costs, as accurately as those costs can be ascertained. A fundamental means to this end is the institution of tort liability, which requires that persons harmed by business or other activity be compensated by the perpetrator of the damage. In the context of pollution, however, the tort system does not always operate smoothly to impose liability for compensatory damages. Among the difficulties encountered are: (1) that the harm may be gradual or otherwise difficult to perceive; (2) that the cause of the harm may be difficult to trace to the pollution and from the pollution to its source; and (3) that the harm may be inflicted in small amounts upon a large number of people, none of whom individually suffer sufficient damage to warrant the time and expense of legal action and whose organization into a plaintiff class is hindered by what has come to be known as the tragedy of the commons. Because of these impediments to smooth operation of the tort system and to ensuring that each enterprise bears its own costs of production, the law imposes upon businesses a societal obligation not to obstruct legal procedures designed to provide compensation to persons harmed by externalized costs of production. Enterprises must cooperate with their neighbors in ascertaining the nature, severity and scope of the harm and in arranging to prevent the damage or to neutralize it through some form of compensation. A breach of societal obligations justifies the imposition of punitive damages to deter uncooperative behavior that impedes the legal system from ensuring that enterprises produce a net benefit to society. III. EVALUATION OF THE DEFENDANT’S CONDUCT IN LIGHT OF ITS SOCIETAL OBLIGATIONS. Although the company did not fail to carry out its societal obligations in every respect, I have concluded that the overall conduct of the business with respect to ascertaining the harm from the plant’s emissions, efficiently controlling the harmful emissions and arranging to compensate for the remaining harm constitutes breach of societal responsibility sufficient to justify the imposition of punitive damages. A. Ascertaining the Harm from Plant Emissions. A business enterprise has a societal obligation to determine whether its emissions will result in harm to others. Because the damage from pollution can be difficult to perceive due to its subtle or incremental nature, and because it can be difficult to trace to its cause, the obligation of the enterprise extends not only to observation of property in the surrounding region but also to initiation and completion of unbiased scientific studies designed to detect the potential adverse effects of the substances emitted. I find that the company failed to fulfill this obligation before or during the 1965-71 claim period by taking less than full cognizance of the damage inflicted upon the orchards and by generally shirking its responsibility to undertake competent scientific inquiry into the adverse effects of its emissions. 1. The Company’s Efforts. The company did not maintain throughout the 1965-71 period a regular program of inspecting the nearby orchards to detect damage that might have been caused by fluoride emissions from the plant. Since late 1961 the company has maintained its own orchard in the vicinity, operated by Frederick Scholes, as a means of monitoring the effects of the plant’s emissions upon fruit crops. Ex. 933 at 4. During the spring and summer of 1965 the neighboring orchards were inspected on several occasions by Scholes, Joseph Byrne (the company’s environmental control officer) and two consultants hired by the company to evaluate orchard conditions, Michael Treshow and Earle Blodgett. Similar inspections were carried out in 1966 by these same persons accompanied by three additional hired consultants: O. C. Taylor, Leonard Weinstein and R. F. Brewer. Treshow and Blodgett continued their inspections during the spring and summer of 1967 and were joined in August 1967 by Neis Benson of Washington State University. Neither company personnel nor hired consultants inspected the orchards during the years 1968-70, after the arbitration committee established by the 1966 Renken consent decree began its scrutiny of the surrounding vegetation. Scholes and two hired consultants, Treshow and David MacLean, visited the orchards in August, 1971, some four months after the close of the plaintiff’s March 31, 1965-71, claim period. Timothy Facteau of the Oregon State University Mid-Columbia Agricultural Experiment Station (MCAES) agreed that during these years the company did call in many recognized experts on the effects of fluoride exposure to fruit crops. TR 747. Neither before nor during the 1965-71 period did the company undertake or sponsor any scientific inquiry into the effects of fluoride upon vegetation. Ex. 339 at 178-80; TR 678-84, 873, 886. The company’s sole contribution seems to have been the donation of a $12,000 automatic material sample analyzer to Oregon State University to expedite analysis of the Mid-Columbia Agricultural Experiment Station (MCAES) fluoride fumigation experiments with cherry tree limbs in 1966. Ex. 339 at 163; TR 127, 805. a. Cherries. In 1960 the company hired a consultant, Burton Richards, to inspect the orchards. Ex. 305a. Along with Scholes and Byrne, Richards in 1961 was shown stylar dimpled cherries in the orchards. TR 387-88 (Bailey). During their 1965 inspections the company’s orchard observers noticed damage of various sorts but did not attribute any of it to fluoride exposure. See Exs. 501a-d, 502a-c, 503a-e. None of the inspectors in 1966 attributed the damage they observed, including cherry blossom petal browning and necrosis, to fluorides except for Brewer, who commented that a small amount of interveinal leaf chlorosis might have been associated with fluoride toxicity. Ex. 506c; see Exs. 501h, 502d, 503f-k, 505a-d, 507. Taylor reported that “no fluoride type symptoms were observed on foliage of sweet cherry in the 34 orchards inspected,” though he did find some chlorosis, leaf bronzing and rolling in all of the orchards and petal necrosis in several. Ex. 505a, 505d at 2. Treshow and Blodgett in 1967 again reported no fluoride-induced injury, although Treshow mentioned “marginal chlorosis and cupping which reminded somewhat of fluoride symptoms” before concluding that “fluorides were not involved.” Ex. 5031; see Exs. 501e-g, 5031-n. Byrne observed stylar dimple in the Hendricks orchard in 1969 but did not attribute this to fluoride exposure. TR 908-09. The company did not conduct orchard inspections again until August, 1971, when Scholes, Treshow and MacLean did not report any observed fluoride injury to cherries. Exs. 502d, 503o, 504a. Scholes considered the cherry crop from the company’s orchard to be “good” in 1970 and “satisfactory” in 1971. Ex. 933 at 17. b. Peaches. In 1965 the company’s orchard inspection team found no significant fluoride-induced harm to peaches, Exs. 501a-d, 502a-c, 503a-e, although Scholes noted “several light cases” of soft suture in the Curtis orchard. Ex. 502c. In 1966 Taylor reported 3-4% soft suture in the Francois and Curtis orchards, where “the combined injuries from split pit and soft suture may have affected as much as 20% of the crop.” Ex. 505d at 2. Other orchards showed less than 1% soft suture. Ex. 933 at 12 (Scholes). Taylor noted that soft suture was present only where the peach crops had earlier been reduced by the cold weather immediately following the blossoming period. Ex. 505d at 2. From the notes of the other company-hired observers, only Brewer also mentioned this soft suture. Ex. 506d. In 1967 Treshow noted one instance of soft suture at the Myers orchard and a trace of that type of injury in the Hazen and Curtis orchards. Ex. 503n; see Exs. 5031-m. Blodgett reported some soft suture in a sample of peaches provided by the plaintiff and well over 50% soft suture in the Fleck orchard. Benson considered 52 of 64 Fleck peaches to be stricken (81%); Blodgett stated that only about 40-42 had “really convincing symptoms” (63-66%). Ex. 501g at 1; see Ex. 342 at 60; TR 200, 379-80. He considered this high incidence of injury relatively insignificant because the orchard’s crop was too light to justify harvesting anyway. He found a few soft sutured peaches in the Francois orchard and less than 5% soft suture at the Myers orchard. He summarized as follows: ... It would appear that, considering the orchards observed, there was no significant injury to peach fruit in The Dalles area from Fluorine this year except in the Fleck, Company and possibly the Bill Myers orchards. Ex. 501g at 3. Blodgett also noted the presence of soft suture in peaches in the Mosier vicinity (approximately 12 miles northwest of the plant), “out of the contaminated area.” Ex. 501g at 3. The August, 1971, reports of Scholes, Treshow and MacLean did not mention any injury to peaches. Exs. 502d, 503o, 504a. Scholes stated that since 1963 he had seen “only a few instances” of soft suture in The Dalles area. Ex. 933 at 4. c. Pines. There is no evidence that the company undertook systematic observation of pine trees in the area around the plant either before or during the 1965-71 claim period. d. Other Vegetation. Scholes mentioned that he might have observed apricot leaf necrosis “on a small basis” in the company’s orchard during 1964-66. TR 689. Blodgett mentioned some insignificant prune leaf necrosis in 1965 he thought “not typical” of similar symptoms caused by fluoride. Ex. 501e at 2. In September, 1965, Treshow reported “trace amounts of fluoride-type necrosis ... on apricot foliage in the Folehn and Ericksen orchards.” Ex. 503e at 1. In 1966 Taylor noted “very light fluoride-type necrosis at the tips of some [apricot] leaves” in the Ericksen orchard. Ex. 505d at 3. No other damage to vegetation attributed to fluoride was reported by the company-hired inspectors. 2. Efforts of Others. a. Cherries. 1) Observation of Trees, Leaves and Fruit. Walter Mellenthin, O. C. Compton and others at MCAES made surveys of the amount of fluorine in vegetation in The Dalles area within six miles of the plant site in 1953 and twice during each growing season from 1957 through 1967. See Exs. 119-24. The plant began operating on July 26, 1958, after the MCAES July, 1958, survey. These studies reported average fluorine contents of sweet cherry foliage and forage in parts per million as follows (figures in parentheses are average fluorine contents at sampling locations 1-2 miles from the plant): At least part of the dramatic decrease in leaf fluorine content between 1962 and 1963 may be attributed to the initiation in 1963 of the practice of washing the leaves prior to crushing and analysis, see Ex. 342 at 97-98, although the first mention of this procedure in the reports appears in association with the 1965-67 data. Ex. 124 at 2. Each of these surveys found that the fluorine content of cherry leaves generally increased with proximity to the plant. None of these reports mentioned the observation of damage to cherry leaves or fruit from fluoride exposure. Nevertheless, Mellenthin testified that he first noticed scorching of cherry leaves and stylar dimpling of cherries in The Dalles area in 1959 and 1960. Ex. 342 at 20-21. In 1960 and 1961 he photographed scorched cherry leaves and dimpled cherries at the Hendricks, Myers and other orchards but did not know then what had caused these conditions. Ex. 342 at 40-47. U. S. Department of Agriculture inspector Warren Cyrus noticed stylar dimpling around 1960, a condition he had not seen during previous periods of cherry inspection in Medford, MiltonFreewater and Hood River. Ex. 330 at 2007. The cherries from The Dalles area were not dimpled every year but were so afflicted during about four of the six following years. Ex. 330 at 2008, 2022. In August, 1960, the Wasco County Fruit and Produce League complained in a letter to the company that the plant’s emissions were causing “severe damage to the fruit set, fruit, and foliage of our cherry trees.” Ex. 305b at 1. This year the general pattern of production showed that the farther away from Harvey Aluminum plant our cherry orchards were located, the better was our production..... Most of the distant orchards had a good crop while those close in generally had less than half a crop. The district was short of a normal crop by several thousand tons with the resultant loss in value of approximately $1,000,-000. Some of the fruit from orchards near your plant which was picked up for canning, in a fully ripe condition, showed suspicious symptoms. This consists of a blossom end deformity and withering of the fruit. In addition to this, we are receiving a substantial amount of marginal leaf burn and a rolling and drying of the foliage. We feel this will have a definite adverse effect on our cherry crop the next year. Ex. 305b at 2. The league in December, 1960, presented to the Oregon State Sanitary Authority in the presence of the company’s legal counsel an analysis showing that the 1960 cherry crop was reduced to one-third of the 1958-59 amount at orchards experiencing a cherry leaf fluorine content of at least 60 ppm, while the crop remained at 102% of the 1958-59 amount at the orchards 4-6 miles from the plant experiencing a cherry leaf fluorine content less than 60 ppm. Exs. 170g-l, 170g-2; TR 403. In April, 1962, the league adopted a statement linking cherry fruit set with fluoride exposure. Ex. 170b-l. Wasco County agricultural extension agent John Thienes did not notice any fluoride symptoms on cherries in his own orchard (about 4.5 miles from the plant) during the 1961-66 period but he did see cherry leaf burn prior to the “first major improvement” to the plant. TR 226; Ex. 345 at 32. He concluded that he has “over the years seen a definite pattern ... of crop reduction based on distance and direction from the [plant].” Ex. 345 at 33. After conducting fluoride aqueous spray and fumigation experiments, Mellenthin concluded by 1965 that fluoride was the cause of the cherry leaf burn and stylar dimple he had noticed in the orchards. Ex. 342 at 54-55. In a 1966 deposition taken by attorneys for the company he noted that the stylar dimple he had observed in the orchards in 1962 could be associated with the dimpling of cherries resulting from the fluoride fumigation experiments. TR 121. When the previous county extension agent, Elgar Nelson, in 1966 returned from 10 years abroad with the AID, he noticed stylar dimpling and a generally lighter crop of cherries compared to 1956. Ex. 344 at 12-14. The expenses of the arbitration committee established under paragraph 6 of the 1966 Renken consent decree were shared equally between the company and the Renken plaintiffs. This committee visited the orchards in April, 1967, found cherry blossom petal necrosis in several areas, but stated: ... The consistent location of damage to petals of cherry blossoms on the trees and fruiting spurs at each of the three locations is not consistent with expected damage by an atmospheric pollutant but rather with damage mediated through an environmental phenomenon, such as low temperature or rapid temperature changes. Ex. 907. Later that month one of the arbitrators, Taylor, reported: . . . The symptom most commonly attributed to fluoride injury on cherry blossoms was a peripheral burning or necrosis of petals .... This symptom was observed throughout The Dalles cherry growing area, even in the most distant and remote orchard visited, one located on a ridge some six or more miles south of the aluminum plant.. . . Identical petal burn symptoms were prevalent on Royal Ann blossoms at the Oregon State University Station near Mosier [approximately 12 miles northeast of the plant]. Many environmental factors may contribute to the petal burn symptom but there is very strong evidence that cold temperatures, and not necessarily frost or freezing temperatures, are the primary causal agent. There was no evidence that exposure to gaseous pollutants played any part in producing the petal burn. ... No injury was observed on blossoms or leaves of sweet cherries and peaches in The Dalles area that was considered to be attributable to exposure to air pollutants and not to adverse climatic conditions. Ex. 908. During the spring of 1968, orchardist Walter Ericksen recruited temporary county extension agent Robert Smith to assist him in gathering documentation of fluoride damage to cherry blossoms. They selected cherry tree limbs and photographed them each morning during the blossom period from March 30 through April 9. Ex. 226 at 6. They observed a petal browning effect within a day following the presence of smoke from the plant, an effect different from the petal browning caused by frost they observed at lower elevations. Petal browning from frost shows “a water-soaked effect,” while browning observed after exposure to smoke from the plant shows a “cupping or crinkling on the edge of the petal [with] some browning ... in towards the center of the flower itself.” Ex. 343 at 285-86 (Smith). Smith compiled his observations into a report, which noted that the temperature at the nearest weather station fell below freezing on March 30 and 31, just prior to his observation of abnormal petal browning on the mornings of March 31 and April 1. He did not believe that the blossoms had been injured by this frost, because no water-soaked petal browning was noticed and because the weather station recording the freezing temperatures was located about 400 feet below the trees under observation and had been deliberately placed in a “frost pocket” that was expected to experience the coldest temperatures in the orchards. Ex. 226 at 2-3; Ex. 338 at 514. Smith stated that he observed no other symptom of damage and that the browning of the petals “in itself would probably not be significant.” Ex. 343 at 288. In August 1968 the arbitration committee noticed cherry leaf necrosis in one orchard but attributed it to disease rather than to exposure to air pollutants. Ex. 909 at 3. In April, 1969, the committee visited several orchards and observed cherry blossom necrosis ... throughout the area, and this condition did not appear to be related to direction from the fluoride source or proximity to [the plant]. There was no evidence that this condition was associated with fluorides in the atmosphere. Ex. 508 at 1. Nelson reported, however, that on the morning of April 21, 1969, cherry blossoms in the Hendricks’ orchard began to brown rapidly after the nearby analyzer registered a sharp increase in the atmospheric concentration of gaseous fluoride. Ex. 344 at 30-31, 50-51. He distinguished this effect from the normal browning that overtakes cherry blossom petals within about two weeks of blooming by noting the rapidity of the browning and its association with a cupping of the petals, which ordinarily remain flat as they brown with maturity. Ex. 344 at 61. He also noted a scorching of the pistils and filaments, scorched cherry leaves and “burned matchsticks” (infertile cherry fruit with stems) elsewhere near the plant. Ex. 344 at 61, 75-76, 79-80. Another inspection by the arbitration committee in late June, 1970, again found “no fluoride type symptoms.” Ex. 510. Conversely, Mellenthin again observed and photographed stylar dimpling of cherries in the Cherry Heights area near the plant in 1970 and 1971. Ex. 342 at 72-74. 2) Scientific Inquiry. In 1961 MCAES researchers selected 10 pairs of Royal Ann cherry trees in the Mosier area (about 12 miles northeast of the plant) and sprayed one of each pair with a 500 ppm ammonium fluoride solution seven times between April 7 and July 18. The leaf fluorine content in the sprayed trees increased to 119 ppm after six spray applications-more than 100 times the fluorine content of cherry leaves from the unsprayed trees; about equivalent to the average fluorine content of cherry leaves in The Dalles area tested by MCAES in August, 1959, July, 1960, and October, 1962; and about half of the fluorine content of cherry leaves in The Dalles area tested by MCAES in September, 1960. Ex. 121 at 5, Ex. 119 at 23; Ex. 120 at 11; Ex. 122 at 16. The MCAES researchers found “no visible leaf abnormalities” in the sprayed trees but noted that cherries from the sprayed trees showed “the presence of a slight depression near the tip” and contained 8.3 ppm fluorine in the tip half compared to 4.4 ppm fluorine in the tip half of cherries from the nonsprayed trees. Ex. 121 at 5; see Ex. 342 at 50-51. In April, 1962, the Wasco County Fruit and Produce League issued a statement describing the conclusions of a presentation by Mellenthin of MCAES given at a horticultural meeting: A 50 ppm ammonium fluoride spray reduces cherry pollen viability and, when applied to female flower parts, reduces cherry fruit set by more than 50% and decreases individual cherry fruit weight. In 1965 MCAES conducted fluoride fumigation experiments with cherry trees in Mosier and found that exposure to fluoride-containing gas during 12-15 hours beginning about 5:00 P.M. every day produced stylar dimple in cherry fruit. Ex. 342 at 54-57. Compton had at that time drawn no conclusions about the effect of fluoride exposure upon cherry fruit set. Ex. 342 at 58. In the spring and summer of 1966 MCAES conducted additional fluoride fumigation experiments with cherry trees in Mosier. The trees were exposed to a concentration of 4 micrograms of hydrogen fluoride gas per cubic meter of air (4 mg/m3), which produced dimpled fruit. TR 128 (Mellenthin). The results of this work were presented at a “field day” session attended by representatives of the company, among others. TR 384. In a July, 1966 deposition Mellenthin testified in the presence of attorneys representing the company that the fluoride fumigation reduced cherry fruit set and size. TR 118-19. The possible deleterious effects of the limb cages used in the experiment were accounted for by “caging” several control limbs not exposed to fluoride gas inside the cages. Ex. 342 at 69. The researchers at MCAES could not promptly measure the concentration of fluoride inside the cages due to the lack of an analyzing device. Air samples were sent to Oregon State University for analysis but the results were delayed for months. Ex. 342 at 71-72; TR 128. Mellenthin did conclude, however, that caging could not produce the observed stylar dimpling. Ex. 342 at 80. Dr. Timothy Facteau conducted cherry fruit set studies in 1967, 1969 and 1970. In 1970 he concluded that ambient atmospheric fluoride concentrations in The Dalles area resulting from the plant’s emissions were capable of reducing cherry fruit set, and he so testified in a deposition taken in the presence of attorneys representing the company. TR 736-37. His 1969 fumigation experiment at 20 mg/m3 “effectively reduced [cherry fruit] set to nothing.” TR 738. His 1970 deposition noted that fluoride exposure reduced cherry fruit set but included no conclusions about the ultimate effect upon cherry production. TR 739^40, 780. Mellenthin, however, concluded that a reduced fruit set “would generally reduce the crop.” Ex. 342 at 26. In 1970 Facteau began to examine the effect of fluoride exposure on the cherry pollen tube. TR 740. It wasn’t until 1977 that Facteau, based upon 1976 experimentation, tentatively identified a threshold exposure to hydrogen fluoride below which there is no adverse effect upon cherry fruit set: 5 mg/m3. Ex. 934 at 47. Five weeks later he stated to the contrary that he had not found a threshold level below which no fruit set reduction may be observed. TR 725. ... I’d have to go back to the original idea that any time we can decipher an elevated level of fluoride in our sampling stations during the blooming in The Dalles, I would have to give the opinion I think there is a probability there could be a reduction in set. TR 726. Meanwhile, Curtis Mumford, an agricultural economist at Oregon State University, in February, 1970, issued the results of a study of cherry crop yields in The Dalles from 1951-67 initiated in late -1967 at the behest of the Wasco County Fruit and Produce League and based upon confidential production data supplied by the League. See Ex. 938. The report stated that the average yield of sweet cherries after the plant began operating (1959-67) was 4.16% higher than the average yield before (1951-58). In addition, the data failed “to disclose any definite pattern in sector by sector changes as related to distance from the aluminum plant.” Ex. 695 at 3. Mumford noted, however, that the study had not been controlled to account for changes in the varieties of sweet cherries cultivated, in the number and spacing of trees, and in various horticultural practices, including irrigation, fertilization, pollenization, spraying and management. Ex. 695 at 2. ... It is known that production technology has improved generally, and that yields of all types of crops have increased during the study period. Even though yields of sweet cherries increased slightly during the study period, it is possible that the increase would have been even greater in the absence of hydrogen fluoride in the environment; however, as indicated above, the data do not warrant conclusions concerning yields in the absence of hydrogen fluoride. Ex. 695 at 3. Orchardist Ericksen testified that fruit production in The Dalles had been increased by irrigation, interplanting of additional trees or replanting orchards more densely, and the use of tractors, speed sprayers, fertilizer and aerial spraying for cherry fruit flies. Ex. 338 at 515-20. The combination of irrigation and denser spacing of trees “can increase up to double the production.” Ex. 338 at 518. Considering the potential for increased cherry production offered by these horticultural innovations, the finding of Mumford’s study that cherry crops increased by slightly more than 4% during the 8-year period following commencement of the plant’s operations compared to the prior 8-year period is not strong evidence that the plant’s emissions had no adverse effect upon cherry production in The Dalles. b. Peaches. The 1953-67 MCAES surveys reported average fluorine contents of peach foliage in parts per million as follows (figures in parentheses are average fluorine contents at sampling locations 0 — 1 mile from the plant): As noted earlier, at least part of the dramatic decrease in leaf fluorine content between 1962 and 1963 may be attributed to the practice initiated in 1963 of washing the leaves prior to crushing and analysis. See Ex. 342 at 97-98, Ex. 124 at 2. Each of these surveys found that the fluorine content of peach leaves generally increased with proximity to the plant. The MCAES survey in 1959 found soft suture in peaches “not observed previously in this area.” Ex. 119 at 1, 6. Bailey noted “a serious condition appearing in some of the peaches delivered at the Columbia Fruit Growers dock” in 1959. A representative from the plant observed this damage but could not identify the cause. TR 422. The U. S. Department of Agriculture inspector confirmed that peaches from The Dalles area began to show soft suture beginning in 1960. Ex. 330 at 2009. The Wasco County Fruit and Produce League requested the Department to inspect the peach orchards, and Inspector Cyrus found that the percentage of peaches with soft suture increased with proximity to the plant. Ex. 330 at 2012. Normally the percentage of peaches rejected by USDA inspectors as “culls” averages 6-7% and may range up to a maximum of 20%. After the appearance of soft suture in The Dalles, however, the inspectors began to reject 71-93% of the peaches as unmarketable. Ex. 330 at 2017-18. In August, 1960, the Wasco County Fruit and Produce League complained of damage to peaches in a letter to the company. In 1959 our crops of apricots and peaches showed some signs of damage with which we were not familiar at the time, and we did not become too alarmed about the problem then. In our 1960 crop, we are suffering extreme damage in an area within four to five miles from your local plant, and our growers are greatly concerned. .. . The peach damage consists of a premature ripening and blossom end breakdown of the fruit. The peaches affected are very irregular in shape and color in this blossom end area. This renders from eighty to one hundred per cent cullage in some cases close in to the aluminum plant.... The above described symptoms have been identified by experts in the field as fluoride injury. Ex. 305b at 1. Of 100 Red Haven and Golden Jubilee peaches picked at random from each of six trees at the MCAES orchard at The Dalles, 73-95% showed soft suture. Ex. 120 at 5. The September, 1960 MCAES survey found soft suture in 0.8-33.3% of the Elberta peaches from various orchards inspected at the Columbia Fruit Packing House; Elberta peaches in the Myer orchards showed 77.6-98.6% soft suture. The J. H. Hale peaches inspected at the packing house showed 0 — 40% soft suture; 39.6-55.8% of Myer’s J. H. Hales were afflicted. None of the 79 J. H. Hale peaches from the Troxel orchard in the Mosier area (about 12 miles northwest of the plant) showed soft suture. Ex. 120 at 19-20. MCAES reported that normal Elbertas from The Dalles area had an average fluorine content of 5.3 ppm on the suture side and 4.6 ppm on the dorsal side, while soft sutured Elbertas had 9.0 ppm on the suture side and 5.4 on the dorsal side-about a 70% greater concentration on the suture side and 17% more on the dorsal side than the normal Elbertas. Ex. 120 at 18. In September, 1961 MCAES found 2 ■ 36% soft suture in the Improved Elbertas in The Dalles area compared to 0% in the Mosier area and 2% in the Hood River area; 10-52% soft suture in The Dalles J. H. Hales compared to 0% in Mosier. Ex. 121 at 22. Orchardist Ericksen testified that Scholes visited his orchard that very month and conceded that his early ripening varieties of peaches were a total loss. Ex. 338 at 545 — 46. In 1964 extension agent Thienes testified by means of affidavit in Renken before the Ninth Circuit Court of Appeals that the 1964 peach crop in Wasco County was “near normal” with good quality fruit and “soft suture being a very minor factor this year.” Ex. 749. A U. S. Department of Agriculture inspection of Improved Rochester peaches from the Ellett orchard on August 4, 1965, found that all the peaches showed “serious damage caused by dryness, cracking and/or breakdown on blossom end and premature ripening of lower suture area.” Ex. 154t. An August, 1966 inspection of eight lots of peaches from The Dalles area revealed that 45-60% of the Elbertas suffered this same type of damage, as did 100% of the Improved Elbertas from the Francois orchard. Of the J. H. Hale peaches examined, only 9% showed this injury at the Fleck orchard and 36% at the Myers orchard, but similar damage appeared in 67-70% of the J. H. Hales at the Francois and Ellett orchards. Exs. 1541-s. Scholes and Byrne were present during these inspections. TR 375 (Bailey). In April, 1967, Taylor, on behalf of the arbitration committee, reported the observation of no injury to blossoms or leaves of peach trees attributable to air pollution. Ex. 908 at 2. The arbitration committee visited the orchards in The Dalles area in August, 1968, accompanied by representatives of the company. The committee reported the observation of “split-pit ... but no typical suture-red-spot symptoms” in the Ellett orchards, split-pits and a “very light incidence” of suture-red-spot in the Fleck orchards, no suture-red-spot in the Hendricks orchard (but in half of the 10 peaches from his refrigerator), much split-pit but no suture-red-spot in the Francois orchard, and no evidence of fluoride injury in the Curtis Brothers or Bailey orchards. Ex. 909. In April, 1969, the committee noted severe winter injury to peaches in the Cherry Heights area but not in the Mill Creek area. Ex. 508 at 1. Former extension agent Nelson in August, 1969, observed and photographed “close to 100%” soft suture in the El'lett orchard in the Cherry Heights area. Ex. 344 at 98; see Ex. 344 at 85-102. In June, 1970, Taylor reported on behalf of the arbitration committee that no “fluoride type symptoms” were observed in the Francois peach orchard. Ex. 510. Orchardist Myer in August or early September, 1970, photographed soft-sutured peaches he found lying on the ground in the company’s orchard after some harvesting. Ex. 332a at 18-20. Myer believed that these were worthless peaches that had been thrown on the ground during picking, but Scholes stated that these were ripe peaches that had been detached by a squall wind before he had a chance to gather them up. TR 675. Finally, Mellenthin testified that he observed soft suture in peaches in The Dalles in 1970 and 1971. TR 124. c. Pines. The Stanford Research Institute’s 1955 proposal to the company “for an investigation of potential air pollution conditions in the vicinity of your future aluminum reduction plant at The Dalles, Oregon,” noted: With some vegetation (such as gladioli and pine trees), a relatively low level of accumulation of fluorides causes injury to the plant material, and even death. Ex. 220d at 1. In 1959 agricultural extension agent Thienes noticed damage to spruce that he attributed to fluoride exposure, and he showed this condition to a representative of the company. TR 196-97. Thienes also observed needle burn or “blight” in Ponderosa pine “from high level of fluoride ... locally associated with the areas immediately surrounding The Dalles.” Ex. 345 at 24. Mellenthin observed “so-called die-back of the needles .. . which we hadn’t seen before.” Ex. 342 at 15. He and MCAES researchers in 1961 surveyed one-year-old pine tree needles at 13 sites from one to four miles from the plant and at one site in Hood River, 20 miles west of the plant. At each site 5-10 trees were examined, and from each tree 5-10 branches were cut off and the needles stripped, inspected for needle burn or scorch, chopped and analyzed for fluorine content. At the Hood River site they found needle fluorine contents of 6.5 and 19.3 ppm; at the locations around the plant, an average needle fluorine content of about 65 ppm. None of the Hood River needles suffered the scorch or “blight” previously “associated with abnormal concentrations of fluorine in the needles.” Ex. 159 at 1, 6. In contrast, needles from The Dalles showed scorch averaging from 0.9% the length of the needles at the site 4 miles south of the plant to 67.6% the length of the needles at the site 1.2 miles northwest of the plant. The researchers specifically discounted any connection between this injury and insects or soil conditions. “There was no pathological, entomological, or soil condition that would account for the needle scorch found in the area.” Ex. 159 at 5. Instead, they attributed the injury to exposure to fluorides. ... Generally, the greater amount of scorch was associated with higher fluorine content. The correlation coefficient between scorch and fluorine content was + .50 and was significant at the 5% probability level. Ex. 159 at 4. The researchers also measured the sapwood resin pressure of the trees and found “an abnormal increase in the pressure of the water in the stem” of trees showing the most severe needle scorch. Ex. 159 at 4. They concluded that “[t]he severely affected trees may eventually die of starvation because of the greatly reduced leaf area.” Ex. 159 at 5. During a 1961 tour of the pine groves, Oregon state pollution control administrator Richard Hatchard saw “considerable damage to the needles, which presented a dying tree appearance.” Ex. 346 at 8. In July, 1965, the MCAES researchers found 24.1-104.4 ppm fluorine in one-year-old pine needles near The Dalles and scorch averaging 21.8-47.5% of their length. Needles taken from Hood River contained an average of 7.3 ppm fluorine and showed no scorch. Ex. 124 at 4-5, 23. In August, 1968, the arbitration committee found heavy pine needle tip necrosis on the Hendricks property but did not attribute this affliction to fluoride exposure. Ex. 909 at 3. d. Other Vegetation. Extension agent Thienes in 1958 was alerted by orchardists to the browning of apricot leaves, which he attributed to fluoride exposure. Ex. 345 at 17, 31. In 1959 Mellenthin of MCAES observed and photographed apricot leaf scorch in the Bunn orchard. He did not then know the cause but later concluded it to have been fluoride. Ex. 342 at 38. Also in 1959 MCAES researchers noticed “a small amount of marginal burn characteristic of fluoride scorch on apricot leaves taken from [two stations within 4 miles of the Plant]” in June. In August they found leaf scorch in all apricot orchards at five other sampling stations, as well as prune leaf scorch. The scorched apricot leaves contained about 16% more fluorine than non-scorched leaves; the scorched prune leaves, about 37% more fluorine. Ex. 119 at 6. In 1960 MCAES researchers reported a “marginal burn characteristic of fluoride scorch ... on apricot leaves taken from most of the stations" and on prune leaves at one location. Ex. 120 at 5. Again in 1961 and 1962 they noticed slight marginal necrosis “characteristic of fluoride injury” in some of the orchards. In 1962 injured leaves contained an average 35.4 ppm fluoride; non-in jured leaves, 20.1 ppm fluoride. Ex. 121 at 4; Ex. 122 at 7. 3. The Company’s Response to Evidence of Harm from the Plant’s Emissions. a. Cherries. As noted previously, the Wasco County Fruit and Produce League complained of damage to cherries in a letter to the company in 1960. Since that time, company representatives, particularly Scholes and Byrne, were repeatedly alerted to the possibility of harm by the orchardists, the county extension agents, the federal fruit inspectors and the MCAES researchers. See Ex. 339 at 168; Ex. 343 at 293; TR 153-54, 197-98, 375, 385, 396-98, 419. Though this evidence was sufficient to convince the jury in this case in 1973 to award the plaintiff $88,135 for damage to cherry crops during the 1965-71 period (85% of the total compensatory damage judgment), it was not taken so seriously by the company. Scholes consistently reported to the company that the plant’s emissions were causing no damage to cherry crops. Ex. 933 at 6. Byrne testified that he had never seen damage to cherry trees caused by fluoride emissions, even though Scholes had reported to him his observation of “snubbed-nose cherries” around the United States Steel plant in Utah. Ex. 935 at 2; Ex. 339 at 55; TR 865. Plant manager Taylor Gibson testified that “the most competent scientists available to us ... uniformly report that any unusual symptoms observed in the orchards are not caused by emissions from our plant.” Ex. 931 at 4. After Byrne was hired by the company in 1961 to evaluate the orchardists’ claims that their crops were being damaged, he undertook no survey of the scientific literature on the subject of fluoride effects upon vegetation. Ex. 339 at 51. He discounted the applicability of the research with which he was familiar, concluding that the fluoride fumigation studies performed by Donald Adams and others at Washington State University prior to 1961 found cherry leaf necrosis only at very high concentrations of airborne fluoride. Ex. 339 at 55-58, 155. Instead, he concluded that the marginal chlorosis in cherry leaves in The Dalles was caused by a manganese deficiency. Ex. 339 at 155-56. Byrne was present at the 1963 and 1966 MCAES field days when the researchers discussed the results of their ammonium fluoride spray and hydrogen fluoride fumigation experiments. His evalúation of the experiments was that fluoride damages cherries only “at substantially high levels,” Ex. 339 at 166, “in excess of those levels measured in the ambient air in The Dalles.” Ex. 935 at 6. This appraisal was not entirely accurate. The 1961 MCAES 500 ppm ammonium fluoride spray experiment found stylar dimple corresponding to a cherry leaf fluorine content of 119 ppm-a level frequently exceeded in the area around the plant from its commencement of operations through 1962, if not later. The 1966 MCAES hydrogen fluoride fumigation experiment found a reduction in cherry fruit set at an exposure level of 4 mg/m3 (approximately 4 parts per billion) — a concentration not infrequently experienced in The Dalles during bloom season in 1963. Ex. 122 at 10-11, 34. In contrast, the highest daily average concentration measured by MCAES during bloom season in 1964 was 2.5 mg/m3, Ex. 123 at 5; in 1965 was 3.31 mg/m3, in 1966 was 4.92 mg/m3 and in 1967 was 4.65 mg/m3. Ex. 124 at 5-6, 24-28. These daily average figures, of course, smooth over the peaks and troughs of actual atmospheric hydrogen fluoride concentrations during any particular day, and even Byrne eventually agreed that an ambient concentration of 4-5 mg/m 3 for a period of just 4 hours during bloom season could harm the cherry fruit set. TR 866. In my evaluation, this evidence, combined with the frequent complaints of the orchardists, renders disingenuous Byrne’s claim to a well-founded and sincere belief that the plant’s emissions never damaged cherry crops in The Dalles. Instead of considering seriously the results of the MCAES research, Byrne concluded that the spray and fumigation studies were worthless. TR 416 (Bailey), 817, 874-75. Byrne visited the MCAES facilities only once during the 1967-71 period when Facteau was continuing this research; no other company representatives paid any visits. TR 775. The company’s response to independent research into the effects of fluorides upon vegetation appeared to be somewhat hostile. Spokesmen opposed a proposal before the state legislature for additional funds for MCAES research, instead proposing a “jointly-sponsored research project by the Company and by the growers.” Ex. 339 at 163. Byrne met with the orchardists and MCAES researchers to propose a “comprehensive evaluation of The Dalles cherry growing area.” TR 800. The orchardists rejected the proposal because they felt “there were too many strings attached.” TR 802. ... [Tjhey didn’t want us [the company] in the program. They felt if the company had funds in the program, we would control it, and they didn’t want any part of it. So that ended the cooperative aspect of the investigation. TR 802 (Byrne). The company offered to,fuñid a “reverse fumigation” experiment to compare the viability of fruit crops in The Dalles area with fruit trees shrouded by a material to filter out the fluorides in the surrounding air, but MCAES did not respond. TR 802-04. The company was admittedly capable of undertaking its own experimentation in the company-owned orchard. Byrne stated that he could have conducted a reverse fumigation study for the company but “really didn’t know” why he never did. TR 874. When Facteau of MCAES concluded on the basis of a 1970 fruit set survey that fluoride from the plant was harming the cherry crop in The Dalles, the company hired a statistician to provide an alternative interpretation of the data. TR 819. Prior to March, 1972, the company began negotiations with the Boyce-Thompson Institute for replication of Facteau’s research, yet Facteau was not invited to participate in this study and was not even aware of it until after its conclusion in 1976. TR 775a-76, 875-76. The preponderance of the evidence shows that, before and during the 1965-71 period, the company was more concerned with denying its responsibility for damage to cherry crops than with accurately detecting any adverse effects from exposure to fluorides from the plant. b. Peaches. Scholes evaluated the damage to peaches from the plant’s emissions as follows: ... I agree that prior to 1963 there was significant damage to peaches caused by emissions from the plant. Since 1963, I have seen only a few instances where peaches from The Dalles suffered soft suture. I believe that a lime spray will prevent soft suture. We ha.ve agreed to supply lime spray to growers who wish to use it. However, the incidence of soft suture has been so insignificant that I no longer feel that lime spray is necessary. Ex. 933 at 4. Byrne agreed that “fluorides were involved to some extent” with soft suture in peaches. Ex. 339 at 8. “[T]o the extent that there is soft suture, it is probably caused by fluoride from the plant.” Ex. 339 at 26. See Ex. 339 at 172. Byrne realized the connection between fluoride emissions and damage to peaches when he first began working for the company in The Dalles in 1961. Ex. 339 at 50. Though he was aware of the orchardists’ continued complaints and the results of the 1965 and 1966 U. S. Department of Agriculture inspections and the 1967 inspections by its hired consultants Benson and Blodgett, Byrne concluded that fluoride injury to peaches “hasn’t been a substantial problem since about 1963.” Ex. 339 at 173; see Ex. 935a at 28. The credibility of this statement is somewhat strained by Byrne’s admission that an atmospheric fluoride concentration of 1 part per billion (roughly 1 mg/m3) during the “particular time period when the peaches are particularly susceptible” would produce soft suture. Ex. 339 at 155. The 1965-67 MCAES measurements, the 1967-71 arbitration committee measurements and the 1963-71 company measurements indicate that the 1 ppb level was frequently exceeded in the orchards around the plant during the 1965-71 claim period. Ex. 701a; Ex. 123. at 5; Ex. 124 at 24-28. Nevertheless, Byrne was willing to admit only, “Yes, there was a single peach in the period 1965 to 1971 that might have had soft suture.... There may have been, yes.” Ex. 935a at 27-28. As with cherries, I find the company’s efforts to ascertain what harm the plant’s emissions might be causing to peach crops in the vicinity to have been less than diligent and the company’s reaction to evidence of harm produced by the efforts of others to have been obstructionist. The company’s attempts to blame what reasonably appeared to be damage from fluoride upon plant diseases, weather conditions (including wind), soil conditions (including nutrient deficiencies), horticultural practices, insects, pesticides and a lack of water are not persuasive. c. Pines. Scholes agreed “that in the early years of the plant’s operations, i. e., 1960-1963, there was damage to pine trees caused by hydrogen fluoride emissions from the plant.” Ex. 933 at 3. Since then, the unhealthy condition of the trees, according to Scholes, is “the result of natural stresses, including lack of irrigation and scale.” Byrne knew about the problem of pine blight around an aluminum reduction plant in Spokane County, Washington,