Full opinion text
TABLE OF CONTENTS INTRODUCTION AND BACKGROUND.1435 FINDINGS OF FACT.1435 I. The Parties.1435 II. The Site.1436 III. Activities at the Site.1437 A. ASARCO .1437 B. KCSS 1.1437 C. KCSS II.1437 D. Trinity/Mosher.1438 E. BACC.1441 TV. The Contamination and Cleanup.1442 A. The Initial Investigation and Response.1442 B. EPA Negotiations, Orders, and Actions.1443 C. BACC’s Cleanup Activities.1445 D. ASARCO’s Cleanup Activities.1445 V. Cleanup Costs.1446 A. BACC.1446 B. ASARCO .1448 VI. Sources of Contamination.1448 A. Barrels.1448 B. Asbestos.1448 C. Lead.1449 CONCLUSIONS OF LAW.1450 I. CERCLA Claims.1450 A. Nature of the Action — Cost Recovery vs. Contribution.1450 B. Liability of Trinity and Mosher Steel .1450 1. Consistency with the National Contingency Plan.1451 2. Trinity and Mosher Steel as Responsible Parties.1454 a. Trinity and Mosher Steel as Operators.1454 b. Hazardous Substance Disposal.1455 C. BACC’s Liability .1455 D. Response Costs...1458 1. BACC’s Response Costs...1458 a. Barrel Removal.1459 b. Underground Storage Tank Remediation.1461 c. Asbestos Remediation.1462 d. Lead Removal .1463 e. Guard Costs.1463 f. Attorney Fees and Expenses.1463 g. EPA Oversight Costs.1466 2. ASARCO’s Response Costs .1467 a. Lead Removal .1467 b. Attorney Fees .1468 3. Prejudgment Interest.1469 4. Summary — Response Costs.1470 E. Apportionment and Allocation.1470 1. Apportionment of Harm.1470 2. Allocation of Costs.1472 3. Allocating Specific Costs.1474 a. Barrel Removal.1474 b. Security Guards.1475 e. Lead Removal .1475 d. Attorney Fees .1475 F. Summary — CERCLA Liability and Allocation of Costs.1475 II. Indemnification.1475 III. Breach of Contract.1477 A. Condition of Premises.1477 B. Diminution in Value.1478 C. Property Taxes.1479 D. Attorney Fees.1480 E. Summary — Breach of Contract Claims.1481 CONCLUSION.1481 Appendix A: BACC Attorney Fee Response Costs Adjustments.1482 Appendix B: BACC Attorney Fee Response Costs Summary.1487 Appendix C: ASARCO Attorney Fee Response Costs Adjustments .1488 MEMORANDUM AND ORDER VAN BEBBER, Chief Judge. INTRODUCTION AND BACKGROUND This action involves the environmental cleanup of a 27-acre industrial site located at 2100 Metropolitan Avenue in Kansas City, Kansas (the “Site”). Plaintiffs Bancamerica Commercial Corporation (“BACC”) and AS-ARCO Incorporated (“ASARCO”) seek to hold defendants Trinity Industries, Inc. (“Trinity”) and Mosher Steel Company (“Mosher Steel”) liable under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (“CERCLA”), 42 U.S.C. §§ 9601 et seq., as amended, for costs incurred by the plaintiffs in response to a release of hazardous substances at the Site. BACC is the current owner of the Site and ASARCO is the successor corporation to a company that operated one of the largest lead smelters in the country at the Site in the 1890s. Trinity and Mosher Steel operated a structural steel fabrication facility at the site during the 1980s. In addition to the CERC-LA claims, BACC also asserts pendent state law claims against Trinity for indemnification and breach of contract. Trinity has asserted an indemnity counterclaim against BACC. BACC began this suit by bringing a CERCLA action against Trinity and Mosher Steel on September 14, 1990. Trinity and Mosher Steel impleaded ASARCO as a third party defendant on December 31, 1990, and BACC added ASARCO as a defendant on July 9, 1991. ASARCO filed counterclaims against BACC, Trinity, and Mosher Steel. BACC also added three individual defendants who had been officers and directors of Kansas City Structural Steel, a company that operated at the Site from 1907 until 1982. The individual defendants entered into settlement agreements and are no longer part of this suit. BACC and ASARCO also settled the claims between themselves, and ASAR-CO was realigned as a party plaintiff. The court denied a number of summary judgment motions, and no substantive issues were resolved prior to trial. A trial to the court was held over 17 days during the period January 18 to April 15, 1994. After the United States Supreme Court issued a ruling in June 1994 regarding the treatment of attorney fees as CERCLA response costs, the court reopened the record and the parties returned to present additional testimony and evidence on September 22, 1994. All parties have submitted proposed findings of fact and conclusions of law, in addition to a variety of other trial and post-trial briefs. The court has considered the testimony, evidence, and arguments of the parties. Pursuant to Fed.R.Civ.P. 52(a), the court makes the following findings of fact and conclusions of law. FINDINGS OF FACT I. The Parties 1. Plaintiff BACC, a Pennsylvania corporation, is the current owner of the property which is the focus of this litigation. 2. Plaintiff ASARCO operated a smelter at the property from 1899 until 1901 through a subsidiary, Consolidated Kansas City Smelting and Refining Company (“Consolidated”). (Exh. 750, 752, 754, 758.) In 1899 ASARCO purchased the assets of Consolidated which had operated the smelter from 1880 until 1899. (Exh. 650, 739, 742.) 3. Defendant Trinity, a Texas corporation, operated a structural steel plant at the property from 1985 until 1987. During 1984 and 1985, the structural steel plant was run by a wholly owned subsidiary of Trinity. 4. Defendant Mosher Steel is a separate subsidiary of Trinity. 5. ASARCO, BACC, Trinity, and Mosher Steel are all “persons” as that term is used in CERCLA § 107(a)(2), 42 U.S.C. § 9607(a)(2). 6. Mosher Steel of Kansas, Inc. (“Mosher Kansas”) was a Texas corporation incorporated on October 25, 1984 and dissolved on December 18, 1985. (Stipulation Nos. 4, 6.) During this period Mosher Kansas operated a structural steel plant on the site in question. Upon dissolution, Mosher Kansas distributed all its assets to Trinity, its sole shareholder. Mosher Kansas was dismissed as a defendant in this action by an order dated August 13, 1993. 7. Kansas City Structural Steel Company, a Missouri corporation (“KCSS I”), operated a structural steel plant at the site from 1907 until 1982. (Stipulation Nos. 1, 2.) KCSS I was dissolved and liquidated shortly after it ceased operations. KCSS I was not subject to suit because of its dissolved status, and was not named as a party to this action. Certain directors and officers of KCSS I were, however, named as defendants. Those defendants are John S. Harrow (now deceased and represented by James E. Harrow), Thomas M. Fitch, and James E. Harrow. Because a settlement between these individual defendants and the plaintiffs was pending, these defendants did not participate in the trial. By an order entered on July 5, 1994, the court approved the settlement agreement and dismissed with prejudice all claims against the individual defendants. 8. John S. Harrow became general manager of KCSS I in 1960, and president in 1962. He served as president until 1975 when he became chief executive officer. He also served on KCSS I’s board of directors from 1958 until his resignation in 1981. Mr. Harrow died on May 1, 1993, and James E. Harrow was appointed personal representative of the estate. 9. Thomas Fitch began his employment with KCSS I in 1959 as a senior management executive. He became executive vice president in 1962 and later became president and chief operating officer in 1975. He also served on the board of directors beginning in 1960. 10. James E. Harrow began employment with KCSS I in 1972 and was named vice president in 1976. He served as an officer until KCSS I was sold in 1982. II.The Site 11. This litigation is focused on environmental contamination and cleanup of a 27-aere industrial site located at 2100 Metropolitan Avenue in Kansas City, Kansas (the “Site”). 12. The Site is a “facility” as defined by CERCLA § 101(9), 42 U.S.C. § 9601(9). 13. The Site lies within the Kansas River floodplain and is located within 600 feet of the river. Residential areas border the Site to the south and west, an expressway runs to the east of the Site, and a Santa Fe railroad yard is to the north. 14. At one time, the Site included open-air work yards with overhead crane structures, a railroad spur, and several separate structures. The buildings were demolished as part of the environmental cleanup activities. Most of the buildings were of steel and metal construction with either dirt or concrete floors. One building was a brick warehouse that had been constructed in the 1890s. One area outside the buildings consisted of a concrete slab with crane rails overhead which was used for storing steel members prior to fabrication. (Kaiser, 53:16-54:14.) 15. A 7-acre portion of the property which contains an office building is situated at a higher elevation than the rest and was unaffected by the contamination. Tobin Construction Company leased this building for office space from May 1986 to December 1988. BACC subdivided the property and offered this portion for sale as a separate parcel. (Kaiser, 87:3-23.) This upper parcel was not included in any cleanup activities. III. Activities at the Site A. ASARCO 16. In 1881 Consolidated Kansas City Smelting and Refining began smelting and refining operations at the Site. In 1899 AS-ARCO purchased Consolidated’s capital stock (Exh. 650, 739, 742), and the smelting operations continued at the Site until 1902 when the smelter was shut down (Exh. 750, 752, 754, 758). 17. At the time, this was one of the largest lead smelters in the world. (Exh. 745.) In its peak year (1898), the smelter produced one-fifth of the lead produced in the United States; one-eighth of all the silver; and one-twelfth of all gold. (Exh. 131 at 11; Exh. 797.) 18. The smelting operation resulted in tons of lead being disposed of at the Site. (Exh. 638 at 66-67; Exh. 131 at 11; Exh. 28 at 7.) This lead took the form of slag and smelter ash. In 1908, after KCSS I took over the Site, workers found deposits of “gold, silver, lead and other metals” left in the ground by ASARCO’s operations. The workers found a twenty-ton deposit of lead which apparently had leaked through the floor of an old blast furnace and was covered when a new floor was laid. This was refined and smelted for gold, silver, and lead. In 1929, the interior of the large smelter stack was cleaned and the soot refined for precious metals. (Exh. 638 at 66-67.) B. KCSS I 19. After ASARCO closed the smelter in 1902, the Site was not in use until 1907 when it was purchased by KCSS I. KCSS I owned and operated a steel fabrication facility at the Site from 1907 until 1982. 20. KCSS I primarily used the Site for its steel fabrication business which involved fabrication of highway bridges and girders under various state and federal highway contracts. In connection with this work KCSS I painted structural steel on the Site. During this period, many government contracts required that lead-based solvents and paints be used on the steel bridges and girders. KCSS I followed the specifications and used lead-based solvents, primer paints, and final coat paints. (Kenney, 2311-2329; Exh. 781; John S. Harrow deposition, 23:16-25, 43:2-8; Meiners deposition, 204:23-205:16; Manahan deposition, 45:16-24; James E. Harrow deposition, 79:15-20, 80:3^1, 8-10.) 21. Lead paint was used on a significant proportion of the projects. During the period 1954 to 1969, KCSS I completed over 200 projects that used lead based paint. (Exh. 781.) KCSS I also used lead-based paint prior to 1954 and after 1969. (Kenney, 2336:22-2337:9; James E. Harrow deposition, 80:3-4, 8-10.) 22. KCSS I’s painting was performed primarily at one building on the Site but painting also occurred from time to time throughout the Site. When steel structures were painted, paint overspray and drippings came to rest on walls, buildings, and exposed soil. Paint overspray congealed and formed spherical objects referred to as “paint balls” (Ken-ney, 603:6-9; Niemeyer, 369:1-14; Walker, 1546:3-11) which contain elevated levels of lead (Walker, 1548:19-1549:21). C.KCSS II 23. In 1982 Kansas City Structural Steel Company of Kansas (“KCSS II”) acquired the Site and assets of KCSS I in a leveraged buyout by KCSS I management. At the same time, BACC entered into a Loan and Security Agreement with KCSS II under which BACC could advance up to $4.5 million in working capital to KCSS II based upon a formula contained in the agreement. 24. Robert Kenney was the plant manager of KCSS II from 1982 to 1984. He had previously worked at the plant for KCSS I from 1973 to 1982. Mr. Kenney also was the plant manager for Mosher Steel from 1984 to 1985. Mr. Kenney testified that while he was plant manager for KCSS II, the paint balls around the Site were cleaned up every four to six months. (Kenney, 625:5-11.) In 1984, when the work was very slow and KCSS II was winding down, Mr. Kenney ordered his crews to clean up all paint balls left in the paint bays and contiguous shop areas. (Kenney, 624:13-625:16; 661:16-662:14.) 25. KCSS II operated at the Site until BACC accepted the deed in lieu of foreclosure from KCSS II on October 26, 1984. (Stipulation No. 3.) D. Trinity/Mosher 26. BACC leased the Site to Mosher Kansas pursuant to a Commercial and Industrial Lease dated October 26, 1984. BACC also sold to Mosher Kansas all the equipment, machinery, and inventory which it had acquired from KCSS II. (Exh. 116, 117.) 27. Under the terms of the lease agreement, Mosher Kansas was responsible for paying all taxes, insurance, expenses, maintenance, and assessments associated with the Site. 28. Under the lease, Mosher Kansas acknowledged that it had inspected the premises and accepted the Site in its then-present condition. Mosher Kansas also agreed to take good care of the premises and fixtures and, at the expiration of the lease term, to surrender the premises in as good condition as when received, except for reasonable wear and tear. Mosher Kansas agreed to repair all damage to the premises not caused by fire or other casualty. Mosher Kansas further agreed to comply with all laws affecting the premises and to hold BACC harmless from expense or damage resulting from failure to do so. 29. Also on October 26, 1994, BACC, Mosher Kansas, and Trinity entered into an agreement of representations, indemnity and guaranty. (Exh. 118.) Under this agreement, BACC is required to indemnify and hold harmless Trinity and Mosher Kansas from any loss or liability resulting from: Any claim or demand asserted against Mosher [Kansas] in which it is alleged that Mosher [Kansas] is a transferee or successor to Kansas City Structural Steel Company [KCSS II] or BACC. or resulting from: All liens or claims for lien or other liabilities existing as of the date hereof which are subsequently asserted against any of the assets transferred to Mosher [Kansas] under the Bill of Sale or leased to Mosher [Kansas] under the Lease or against Buyer. 30. 'By letter dated May 19, 1992, after this litigation began, Trinity demanded that BACC’s claims against Trinity and Mosher Steel be dismissed on the grounds that BACC had indemnified Trinity against all liability related to Trinity’s lease of the Site, including liability for removal of lead on the Site which existed prior to the date of the indemnity agreement. (Exh. 802.) 31. Mosher Kansas was not a successor to KCSS II. Neither Mosher Kansas nor Trinity assumed the liabilities of KCSS II. Mosher Kansas had the right to select what work in progress it would complete. (Phelps, 2155:1-12, Echternach, 1442:7-21; Exh. 166.) The purchase of assets from KCSS II was structured so that Mosher Kansas would not be considered a successor to KCSS II. (Phelps, 2156:4-20.) 32. As part of the October 26,1984 transaction, BACC sold to Mosher Kansas all equipment and machinery which BACC had acquired from KCSS II, including overhead cranes. In consideration for these and other assets, Mosher Kansas issued to BACC a negotiable promissory note in the principal amount of $910,000.00. 33. Although Mosher Kansas was created in 1984 to operate the structural steel plant, Trinity and Mosher Steel were in actual control of the operations. 34. Trinity and Mosher Steel officials directed the Kansas City plant’s operations from Dallas (Trinity’s headquarters) and Houston (Mosher Steel’s headquarters), and Kansas City plant management reported directly to those officials. (Phelps, 2155:22-24.) Trinity and Mosher Steel also had management on-site at the Kansas City plant. (Phelps, 2155:18-22.) 35. Trinity’s Safety and Environmental Director monitored safety and compliance matters for the Kansas City plant, including the storage of hazardous materials and industrial waste. (Riddles, 2169:7-2170:7, 2181:13-2182:9.) 36. Mosher Steel officials dictated personnel matters for the Kansas City plant, including the firing and replacement of the plant manager. (Peters deposition dated 7/17/92, 19:10 — 12; Stewart deposition dated 8/5/92, 27:10-23.) Mosher Steel also controlled purchasing, plant layout, sales, and engineering for the Kansas City plant. (Benton deposition dated 10/22/91, 32:1-21, 48:7-22, 50:6-12, 51:7-17.) 37. Mosher Kansas was dissolved on December 18, 1985 (Stipulation No. 6.), and all its assets were distributed to Trinity, its sole shareholder. At that time, Trinity agreed to complete all work of Mosher Kansas in progress. (Phelps, 2156:21-2157:2.) Mosher Kansas assigned its lease to Trinity. No change in personnel or operations occurred upon the dissolution of Mosher Kansas. (Phelps, 2157:3-6.) Trinity agreed to pay the creditors of Mosher Kansas and also took assignment of the lease with BACC. (Phelps deposition dated 10/21/91, 216:19-217:1; Exh. 118, 153.) 38. Mosher Steel and Trinity assumed all significant work in progress from KCSS II. (Kenney, 2445:1-2.) In addition, work was transferred to the Kansas City plant from Trinity operations located in other parts of the United States. (Kenney 648:23-649:1.) The plant grew in size from 30 employees to 180 employees, and by 1985 Mosher Steel and Trinity produced about the same tonnage of steel as KCSS I had produced in its peak period in the late 1970s and early 1980s. (Kenney, 2444:1-18.) 39. Mosher Steel and Trinity used lead-based paint at the Site from 1984 to 1987. The majority of work performed at the Site during this period was bridge fabrication which usually required the use of lead-based paints and thinners. (Kenney, 608:13-609:25, 611:11-15, 613:20-25, 614:1-4, 618:9-22, 619:3-25, 620:20-624:5, 2431:24-2432:21.) Painting was performed both within and outside Buildings 1 and 4. (Kenney, 601:20-603:3; Niemeyer, 383:8-384:14.) Mosher Steel and Trinity used airless spray nozzles to apply paint. This method necessarily resulted in some overspray. (Kenney, 599:13-24, 603:10-16, 655:18-656:3; Walker, 1611:1-4.) Paint overspray routinely landed on the ground and often created paint balls. (Ken-ney, 603:10-25, 655:18-656:3.) Trinity and Mosher Steel also used chromium and zinc-based paint at the Site during this period. (Kenney, 601:20-603:25, 608:13-610:5, 613:11-614:4, 618:9-13, 621:12-18, 639:14-17.) 40. Hazardous materials were generated at Trinity’s plants, including the Kansas City plant. (Niemeyer, 367:21-368:23; Riddles, 2207:15-19.) The hazardous materials were identified in Trinity’s Industrial Hazardous Waste Management Program and Operations Manual. (Exh. 155.) Trinity’s policy required that Material Safety Data Sheets (“MSDS”) be kept for each hazardous substance purchased for use at the Site, as required by the federal Occupational Health and Safety Act. MSDSes were kept for all paints used and were to be made available to employees. (Niemeyer, 335:10-336:19, 338:13-22.) 41. Underground storage tanks were present when Trinity leased the Site from BACC. Trinity used one of the tanks containing gasoline for a short period of time after commencing operations at the Site. (Kenney, 652:21-653:1, 660:18-661:4.) 42. The Kansas City plant was not operating profitably and, after reviewing various options, Trinity decided that it would shut down the operation. (Phelps, 2128:1-19.) 43. On December 4, 1986, BACC and Trinity entered into a lease cancellation agreement in which the parties agreed to cancel the lease effective March 1, 1987. (Exh. 153.) 44. Trinity ceased operations at the Site in February 1987 and engaged in plant closure activities from February through May 1987. (Langford, 2049:17-25.) During this period, Trinity performed general cleanup and hired a contractor to remove trash from the Site. (Langford, 2069:5-10, 2085:16-2087:8.) Trinity also hired a scrap dealer to haul off small pieces of steel which could not be used at other Trinity plants. (Langford, 2054:22-2055:4.) 45. Trinity disassembled various pieces of equipment, including mobile cranes, forklifts, wire feeders, and a wheelabrator, and shipped the equipment to maintenance facilities in Dallas and Houston, and to other structural steel plants. (Langford, 2056:2-2057:2.) 46. Trinity also gathered up various liquid products, such as, paint, paint thinner, hydraulic fluid, and oils, and shipped those products to its maintenance facility. (Lang-ford, 2070:3-2075:6.) Some of the material from the Kansas City plant was later shipped out of the maintenance facility and treated as hazardous waste. (Riddles, 2208:22-25.) No hazardous waste manifests were completed in connection with the material shipped from the Kansas City plant. (Langford, 2110:14-16.) 47. Three concrete pits were left open after machinery had been removed. Trinity arranged for Tobin Construction Company to fill those pits with material called “crush and run” which is crushed limestone. (Langford, 2078:23-2080:21.) 48. At the same time, a number of barrels were also buried in one of those pits. (Langford, 2082:20-24.) It was later discovered that over 80 barrels had been buried in the pit. (Skach, 279:15-280:5; Exh. 33.) 49. In addition to the barrels that had been buried, Trinity also left over 200 55-gallon barrels at various locations around the Site. (Langford, 2090:4-10.) For the most part, the barrels had been used for trash, but some of the barrels contained small amounts of hazardous materials. 50. At BACC’s request, Trinity left cranes and compressors at the Site. (Stipulation No. 12; Langford, 2053:1-13.) Trinity agreed that the compressors were fixtures and therefore not part of Trinity’s assets. (Phelps, 2134:22-2135:21.) 51. When Trinity left the Site, the compressors, which hold 3-12 barrels of oil each, were fully operational and had oil in ? them. (Langford, 2064:1-2065:5, 2099:23-2100:5; Serrone, 2473:20-22.) The compressors were later removed, and some oil may have spilled in the process. (Langford 2101:8-2102:20.) 52. As part of the Lease Cancellation Agreement, Trinity granted to BACC the option to purchase the overhead cranes and crane ways located on the Site. On March 1, 1987, BACC and Trinity entered into an Agreement and Bill of Sale in which BACC agreed to purchase from Trinity some of the overhead cranes and crane ways. (Exh. 832.) BACC agreed to pay to Trinity $200,000.00 on March 1, 1989, or earlier if BACC should sell or otherwise convey the real property. The agreement provided that if BACC failed to pay the amounts due, then Trinity could elect to offset any amount due against any payments of principal or interest on the $910,000.00 note issued to BACC in October 1984 in exchange for the assets that BACC sold to Mosher Kansas. Trinity’s vice-president testified by deposition that BACC failed to pay the amount due for purchase of the cranes. (Phelps depo., vol. 1, 120:10-121:11, 123:11-124:6.) There is, however, no other evidence of default by BACC in connection with the March 1, 1987 Agreement and Bill of Sale. 53. As part of the March 1, 1987 agreement, BACC also agreed to assume Trinity’s interest in a lease agreement entered into between Trinity and J.A. Tobin Construction Company dated May 1, 1986. (Exh. 832.) Trinity had sub-leased the upper portion of the Site to the construction company. (Phelps, 2133:21-24.) In assuming the lease, BACC also agreed to perform Trinity’s obligations under the lease and to indemnify Trinity against possible liability or loss related to the lease. 54. Trinity completed its plant closure and left the Site in May 1987. (Langford, 2091:21-23.) 55. After Trinity left the Site, BACC complained to Trinity about the condition of the Site. (Phelps, 2137:1^.) Trinity directed Gregg Langford, its employee who had coordinated the plant closure activities, to return to the Site in June 1987. (Langford, 2092:11-2093:6.) Scrap material had been left at the Site and the office buildings had been vandalized. (Langford, 2093:7-19; Phelps, 2137:14r-24.) 56. During this second cleanup, Trinity hired a scrap metal dealer to remove the remaining structural steel, cleaned up some of the trash remaining on the Site, disposed of the remaining office furniture, and moved the barrels to various staging locations on the Site. (Langford, 2096:1-2098:5.) These cleanup activities lasted for about one month, and Trinity left the Site for the second time in July 1987. 57. At the end of the second cleanup, Mr. Louis Serrone, the real estate agent hired by BACC, told Trinity representatives that the Site had been cleaned up to his satisfaction. Mr. Serrone also walked through the Site with Mr. Langford at the end of the second cleanup and did not identify any remaining problems. (Phelps, 2138:19-2139:13; Lang-ford, 2098:6-2099:22.) Mr. Serrone testified that no walk-through occurred and that he never approved the condition of the Site. (Serrone, 2469:14-16, 2470:19-2471:14.) The court find’s Mr. Serrone’s testimony on this point to be not credible. 58. Trinity received no further communication from BACC regarding the condition of the Site until January 1989 when BACC sent a letter to Trinity requesting payment for environmental testing work related to the barrels left at the Site. (Phelps, 2139:22-2140:17; Exh. 15.) 59. On April 30, 1990, BACC made a demand that Trinity pay real estate taxes due on the Site for 1986 and 1987. (Transcript, 562:20-563:1.) In June 1990, BACC paid the real estate taxes due to Wyandotte County, Kansas. The taxes paid totalled $59,466.91 for 1986 and $64,206.94 for 1987. (Exh. 210.) Trinity did not reimburse BACC for the payment of the 1986 and 1987 taxes. (Rotticci, 1860:24-1861:1.) E. BACC 60. BACC’s involvement at the Site began in 1982 when it entered into a Loan and Security Agreement with KCSS II. 61. Under the loan agreement, BACC took a security interest in the accounts receivable, inventory, machinery, equipment, and real estate. The agreement provided a formula to determine the maximum amount that KCSS II could borrow at any one time. The agreement gave BACC certain rights which included receipt of periodic financial statements, the ability to inspect the inventory on the premises, and the option to notify KCSS II’s customers to send remittances directly to BACC. The loan agreement also contained several “negative covenants” which restricted actions that KCSS II could take without BACC’s approval. These negative covenants included restrictions on the following activities, among others: increases in executive compensation, material changes in management, creation of additional liens, material changes in the type of business, and purchase of fixed assets valued at more than $50,000.00. (Exh. 3; Echternach, 1410:9-1413:8.) 62. During the period that the loan agreement was in effect, BACC visited the Site and reviewed KCSS II’s operations. The court heard conflicting testimony regarding the frequency of these visits and the extent of review. 63. Alfred San Martin, a former BACC senior credit loan officer responsible for monitoring the KCSS II loan, testified that he visited the Site to review accounts receivable and to analyze inventory and raw materials (San Martin, 673:4-674:3), that the visits never lasted for more than one day (San Martin, 675:3-13), and that the frequency of the visits in the beginning was once eveiy two months and later increased as KCSS II’s financial condition worsened (San Martin, 672:11-20). Mr. San Martin also testified that he never instructed KCSS II officials on whether to bid on or accept projects. (San Martin, 680:19-681:4.) 64. Harold Echternach, a former BACC senior account officer, had been responsible for monitoring the KCSS II loan prior to the appointment of Mr. San Martin, and was later Mr. San Martin’s supervisor. Mr. Echternach testified that he made quarterly visits to the Site and that each visit lasted four to six hours. (Echternach, 1417:12-1418:3.) Mr. Echternach further testified that BACC did not control the KCSS II operations or restrict KCSS II projects, nor did BACC discuss environmental conditions at the Site with KCSS II officials. (Echter-nach, 1424:19-1425:3, 1434:10-20.) 65. James E. Harrow, who was president of KCSS II, testified by deposition that BACC ran KCSS II’s operations and that Mr. San Martin was present at the Site on a daily basis for a period shortly before KCSS II ceased operation. Mr. Harrow further testified that BACC required KCSS II to obtain BACC’s approval before submitting bids on contracts, and that BACC did not allow KCSS II to bid on particular jobs that BACC deemed to be unworthy. 66. The court finds the testimony of Mr. San Martin and Mr. Echternach to be credible and accepts as true their version of the relationship between BACC and KCSS II. 67. In addition to the visits and reviews, BACC also instituted a lock box arrangement under which KCSS II customers sent remittances directly to a receiving bank for processing. The bank then forwarded the remittances to BACC. This type of arrangement was permitted by the loan agreement and is common in the commercial loan business. BACC implemented the arrangement only after it had evidence that KCSS II had been diverting some of its funds. 68. The loan and security agreement expired on May 15, 1983. BACC and KCSS II then agreed to continue the agreement through August 31, 1983. BACC continued to extend financing pending receipt of audited March 1983 financial statements. On November 11, 1983, BACC sent a letter to KCSS II notifying it that BACC agreed to continue financing through December 31, 1983, while KCSS II attempted to secure replacement financing. Ultimately, BACC extended financing to October 1984. (Exh. 109, 110, 111; Echternach, 1433:15-18.) 69. BACC gave formal notice of default under the loan and security agreement by a letter to KCSS II dated August 23, 1984. After receiving the notice of default, KCSS II continued to operate the business and continued to try to either sell the company or refinance the debt. (Echternach, 1433:19— 1434:4.) 70. On October 26, 1984, BACC and KCSS II entered into a surrender in lieu of foreclosure agreement. Pursuant to that agreement, KCSS II transferred to BACC the real estate and personal property secured by the security agreements. At the time of the surrender, KCSS II owed over $4,000,000 to BACC. (Exh. 114.) 71. After the lease was entered into with Mosher Kansas, BACC listed the property for sale with commercial realtor B.A. Kar-bank. (Echternach, 1455:15-21, 1457:11-14.) 72. The lease with Mosher Kansas granted it an option to purchase the property at its fair market value after the 48th month of the lease term, as well as a right of first refusal if other offers to buy the property were made. (Exh. 117.) 73. After Trinity discontinued operations, BACC retained another commercial realtor, Mr. Louis Serrone of Cohen-Esrey, who actively tried to sell the property. The listing agreement with Mr. Serrone was in effect from March 9,1987 through September 1988. BACC received four offers to purchase the property in April, May, and July, 1988, but BACC rejected them. The offers ranged in amount from $500,000 to $750,000. (Kaiser, 86:17-18; Serrone, 221:1-223:6, 225:22-226:13, 241:13-20.) After the contamination was found at the Site, BACC split off the non-eontaminated upper portion of the property and has attempted to sell that portion. (Kaiser, 87:3-88:5.) 74. The City of Kansas City, Kansas, had issued industrial revenue bonds (IRBs) to finance certain capital improvements made by KCSS II. As a part of that transaction, the city took legal title to a portion of the Site as security for the bond debt. (Echter-nach, 1447:1-3.) BACC paid $896,849.48 on February 28, 1985, in order to retire the IRBs and obtain clear title to the entire Site. (Exh. 127.) Legal title of that portion of the Site was then transferred from the city to BACC. IV. The Contamination and Cleanup A. The Initial Investigation and Response 75. BACC hired Woodward Clyde Consultants to conduct an environmental site assessment at the Site in May 1988. (Skach, 254:10-255:7.) During the initial assessment, the Woodward Clyde team observed that soil was either wet or stained near a number of the barrels. Many of the barrels contained liquid material which could not readily be identified. According to Robert Skach, Woodward Clyde’s project manager, the barrels were the primary concern at the time. Soil was also found to be stained in other locations, and large deposits of slag were also observed. (Skach, 255:1-261:20.) As a result of the initial assessment, additional soil and groundwater samples were collected in and around the Site area. (Kaiser, 57:1-25.) 76. In July 1988, Woodward Clyde developed a program to inventory and sample the materials contained in all the barrels. A total of 272 barrels were inventoried and then separated into the following categories according to their contents: empty, trash materials only, and non-trash materials. The non-trash containers were further separated according to suspected contents into water, solvent, oils, and solids. Sampling results indicated that 222 barrels were empty or contained trash, 30 barrels contained petroleum products, and 20 barrels contained potentially hazardous compounds including solids, acids and caustics, and one drum of salvageable lead/acid batteries. (Exh. 28 at p. 68-71.) 77. Woodward Clyde observed that the barrels buried in the wheelabrator pit contained leaking material and that some liquid was present in the pit. Since the nature of the material was unknown, Woodward Clyde determined that the barrels should be removed and samples from the barrels should be tested. (Skach, 279:15-280:5.) 78. Woodward Clyde developed a health and safety plan which documented the precautions that would be taken in connection with barrel sampling and characterization activities. (Skach, 268:6-18.) 79. Woodward Clyde soil and groundwater testing detected lead present in surface soils at the Site at levels up to 45,100 parts per million (ppm) inside the buildings, and up to 12,000 ppm in exterior surface soils. Lead was also detected in unfiltered groundwater samples from the Site at levels up to 690 parts per billion (ppb). No lead was detected in filtered groundwater samples. 80. The Woodward Clyde study also detected chromium, zinc, iron, and arsenic in surface soils at the Site and barium, cadmium, chromium, zinc, and arsenic in unfiltered groundwater samples from the Site. Asbestos was also found in piles of refractory brick stored at the Site. 81. Lead is a hazardous substance as de ■ fined by CERCLA § 101(14), 42 U.S.C. § 9601(14). The lead found at the Site constituted an actual or threatened release of hazardous substances into the environment. 82. In August 1988, a contractor excavated and removed three underground storage tanks from the northwest corner of the Site. The tank contents, consisting solely of gasoline, were pumped into drums and removed from the Site along with the tanks. (Exh. 28 at p. 66.) Discolored or moist soils were observed in the material surrounding the tanks during removal. (Exh. 28, App. H.) Woodward Clyde collected soil samples from the bottom of each excavation pit. Testing revealed that petroleum hydrocarbons were present in the subsurface in the vicinity of the storage tank locations. The concentration of hydrocarbons in those locations exceeded the action level set by the Kansas Department of Health and Environment (KDHE). The underground storage tank remediation activities were conducted under KDHE’s oversight. 83. BACC contracted for security guard service beginning in August 1988 after the testing by Woodward Clyde indicated that some barrels had been buried at the Site. BACC took this action in light of the uncertainty regarding possible contamination at the Site and the occurrences of vandalism. After BACC reported its findings, EPA advised BACC to continue the 24-hour guard service. (Kaiser, 60-61, 84-86, 118-122.) B. EPA Negotiations, Orders, and Actions 84. After Woodward Clyde completed its initial investigation, BACC turned over to EPA the Woodward Clyde reports and information regarding other former Site owners and operators. (Kaiser, 60:9-25.) 85. During a conference on July 10, 1989, EPA gave oral notification to counsel for BACC, Trinity, and ASARCO, that the parties faced potential liability under CERCLA. EPA gave formal notification of potential liability to the parties by letter dated August 4, 1989. (Exh. 73.) 86. During a meeting on October 12, 1989, EPA indicated that it would continue negotiations only if the parties agreed to conduct work under an Administrative Consent Order drafted by EPA. (Exh. 22, 35.) Negotiations regarding a possible consent order between EPA and the three private parties continued into December 1989. (Exh. 37; Kaiser, 76:23-77:1.) 87. BACC and EPA entered into an Administrative Consent Order concerning the Site on February 7, 1990. (Exh. 95.) Trinity and ASARCO faded to reach agreement with the EPA regarding a consent order. The Administrative Consent Order required that BACC undertake a removal action to be performed in two separate phases. 88. Under the Administrative Consent Order, BACC agreed to prepare for EPA review a Removal Action Workplan Phase I (RAW I) which was to include: a stabilization/solidification treatability study workplan for addressing the contamination in the soil; a soil sampling and analysis plan to quantify the extent of contaminated soil requiring treatment; a container characterization, removal and disposal plan; information regarding the contamination associated with the underground storage tanks; a plan for continuous ambient air sampling; documentation regarding efforts to locate former fume tunnels and smoke stacks; a plan to install groundwater monitoring wells; quality assurance and health and safety plans; and, a plan for maintaining security at the Site during the removal action. The RAW I was to be implemented after EPA approval. 89. BACC also agreed in the Administrative Consent Order to submit additional studies for EPA approval, including a Removal Action Workplan Phase II (RAW II), according to the schedule set forth in the Administrative Consent Order. The RAW II was to include a plan for the stabilization/solidification of surface fill material containing concentrations of lead at 1,000 ppm or greater and placement of a protective cover over areas containing treated fill material, and a plan to extend the cover over the exposed existing solidified slag deposit. The RAW II was to be implemented after EPA approval. 90. The stabilization/solidification process is the physical and chemical binding of lead-containing fill material so that it is not available for contact or off-site migration. 91. BACC also agreed to reimburse EPA for all response and oversight costs incurred by EPA in connection with the Site. 92. EPA agreed in the Administrative Consent Order that the work to be performed, if properly performed, would be consistent with the provisions of the National Contingency Plan (“NCP”), 40 C.F.R. Part 300, pursuant to 42 U.S.C. § 9605, as well as with the provisions of 42 U.S.C. § 9621. The Administrative Consent Order also required that all actions taken pursuant to the terms of the order should be undertaken in accordance with the requirements of all applicable local, state, and federal laws and regulations. 93. On September .3,1991, BACC notified EPA that based on proposed regulations regarding a CERCLA provision exempting from CERCLA liability secured lenders who take title to property to protect their security interests, BACC did not believe it was obligated to continue cleanup of the Site. (Exh. 86.) BACC discontinued its cleanup work at the Site. EPA did not attempt to enforce the Administrative Consent Order, but instead proposed a modified consent order to which BACC did not agree. (Kaiser, 95:5-96:13.) 94. On December 12, 1991, EPA issued a Unilateral CERCLA § 106 Order (“106 Order” or “Unilateral Order”) to ASARCO, requiring it to work with BACC in completing the cleanup actions and to perform specific response actions for lead at the Site. The 106 Order was modified on December 15, 1992. (Exh. 38.) 95. The modified 106 Order requires either stabilization and solidification or onsite landfilling of material that exceeds 500 ppm lead in the zero to two foot depth range and 1,000 ppm lead in the two to four foot depth range. In connection with the onsite landfill, the order requires that ASARCO include in its landfill design “all local, state and federal landfill requirements including, but not limited to, ... the Kansas Solid Waste Statute, Kan.Stat.Ann. § 65-34 (1991), and the Kansas Solid Waste Management Regulations, Kan.Admin.Regs. § 29 (1991).” 96. On June 9, 1993, EPA conducted a public meeting for residents living near the Site. EPA also prepared and distributed fact sheets summarizing cleanup activities, and made documents available for public review. (Exh. 215; Krohn, 1180:9-23.) 97. In August 1993, Hydrometrics, an environmental consulting firm hired by ASAR-CO, collected soil samples from a neighboring city park and from nearby private property after some flooding had occurred in the area. EPA notified the property owners of the test results in September 1993. EPA concluded that none of the samples contained lead levels that would pose a risk to residents. (Exh. 215.) 98. EPA notified BACC and ASARCO on December 21, 1993, that based on EPA’s monitoring of the cleanup activities, it appeared that the cleanup had been performed in accordance with the 106 Order and was consistent with the NCP. (Exh. 39.) C. BACC’s Cleanup Activities 99. After signing the Administrative Consent Order, BACC hired Tetra Tech Engineering to complete and implement the RAW I and the other provisions contained in the order. (Kaiser, 79:15-19.) During 1990, Tetra Tech collected surface soil samples on a grid system that it had established at the Site in order to determine which soils required treatment. (Krohn, 1041:17-1042:11.) This soil sampling detected lead in surface soils inside the buildings at levels up to- 26,-720 ppm and in exterior surface soil samples at levels up to 13,440 ppm. Based on the ■results of the sampling, it was estimated that a minimum of 15,000 cubic yards of soil would require landfilling or solidification. 100. Tetra Tech also performed additional testing on the barrel contents. Some of the testing was duplicative of that performed by Woodward Clyde. The additional testing was required because regulatory changes had occurred which affected the usefulness of leachability tests conducted by Woodward Clyde. In addition, Woodward Clyde’s tests had focused on whether the materials were compatible for storage, and did not include the level of detail required by EPA to allow for disposal of the materials. The costs associated with this additional testing totalled approximately $25,000.00. (Krohn, 1117-1120.) The analytical results indicated that the barrels contained primarily waste oil and industrial cleaners. 101. Tetra Tech oversaw the removal of all barrels and their contents. Barrels containing trash were removed in October 1990 (Exh. 46), and all barrels were removed from the Site by September 1991 (Krohn, 1031:23-1032:1; Exh. 50). 102. During the period August to December 1990 Tetra Tech conducted further testing and removed contaminated soils in the areas where the underground storage tanks were formerly located. (Krohn, 1038:7-12; Exh. 56.) In November 1990, more than 2,000 cubic yards of petroleum contaminated soils were removed from the storage tank locations and taken to a landfill. (Exh. 56.) 103. Tetra Tech took groundwater samples from monitoring wells on the Site in August 1990 and February 1991. Samples were analyzed for total metals; total petroleum hydrocarbons; and benzene, toluene, ethyl benzene and xylene. Metal contents in the samples were reported to be below the maximum contaminant levels set by EPA. Concentrations of total petroleum hydrocarbons and benzene, toluene, ethyl benzene, and xylene were nondetectable. The results of this analysis indicated that the groundwater had not been affected by lead contamination in the soil or by hydrocarbon leakage from the underground storage tanks. 104. Tetra Tech completed a draft RAW II in February 1991, with revisions completed in June and August 1991. (Exh. 45.) EPA did not give final approval to the August 1991 revised RAW II, and it was never implemented at the Site. (Krohn, 1083:25-1084:15.) D. ASARCO’s Cleanup Activities 105. ASARCO hired Hydrometrics, an environmental consulting firm, to prepare the RAW II and implement the 106 Order. (Whig, 1210:23-1211:1.) Hydrometrics is a subsidiary of a firm known as Encycle which in turn is a subsidiary of ASARCO. (Wing, 1210:2-8.) Plaintiffs did not challenge the propriety of using a subsidiary of ASARCO to conduct the work, or the reasonableness of the amount charged for the work performed. 106. Various drafts of the RAW II were prepared and sent to EPA beginning in February 1992. The EPA made technical comments to each draft which resulted in changes incorporated by Hydrometrics into the next draft. (Wing, 1238:1-14.) After receiving conditional approval from the EPA for the RAW II in September 1992, Hydro-metrics was allowed to begin work under the 106 Order. (Wing, 1211:13-25.) The final version of the RAW II was prepared on January 11, 1993. (Exh. 107.) 107. EPA required that the stabilization/solidification procedure be used for treating soils for which test results showed total lead as greater than 1,000 ppm and lead concentrations greater than five ppm by the toxicity characteristics leaching procedure (TCLP) test. The TCLP test measures the potential of the lead to be dissolved in water and to be mobile in a water environment. (Wing, 1224:16-1225:2, 1225:23-1226:18.) 108. Under the stabilization/solidification procedure, cement is added to the lead contaminated soil to stabilize and immobilize the lead so that it cannot migrate into groundwater. The action of the cement also creates solid blocks which possess strength and resistance to breaking. (Wing, 1225:13-22.) The soils that were so treated were then placed in a landfill area in the southeast corner of the Site. The treated soils were placed on top of other soils that had been moved to the landfill. 109. In addition to the soils which were required to be treated under the stabilization/solidification process, other soils containing lead concentrations greater than 500 ppm from the surface to two feet in depth, and greater than 1,000 ppm at two to four feet in depth were required to be removed and placed in the landfill or at a lower depth. Lead concentrations of between 500 and 1,000 ppm were permitted to be covered with two feet of uncontaminated soil, and concentrations of greater than 1,000 ppm were permitted to be covered with four feet of uncontaminated soil. (Wing, 1265:17-1266:9.) 110. After all the contaminated soils, both treated and non-treated, had been moved to the landfill, a six inch layer of gravel material was placed on top. A geotextile fabric was then placed on top of the gravel material. Imported soil was placed on top of the geo-textile fabric. (Wing, 1267:23-1270:2.) 111. Hydrometrics designed the landfill with the approval of the Kansas Department of Health and Environment (KDHE), the state agency responsible for enforcing landfill regulations. (Wing, 1396:6-15.) A closure plan was also incorporated as part of the RAW II. (Exh. 107.) At the time of the trial, work at the Site had only recently been completed, and Hydrometrics was still in the process of developing post-closure activities. (Wing, 1343:21-1344:7.) 112. Under the RAW II, ASARCO was also required to develop a plan to decontaminate, demolish, and dispose of buildings, concrete, asphalt, crane rails, railroad tracks, and other structures on the Site. Initially, BACC and ASARCO did not intend to remove the buildings. During 1993, however, EPA and the City of Kansas City, Kansas, informed BACC and ASARCO that the soil under the buildings would require testing and treatment at some point, and if the soil was left in place, BACC and ASARCO would be liable for that work at some point in the future. (Wing, 1399:15-25.) If the soil beneath the buildings was not addressed, EPA and the city would provide only a conditional release at the completion of the work, and deed restrictions would be imposed on the property. (Wing, 1400:2-12.) 113. The decision was then made to demolish the buildings. The decision was influenced by the belief that the Site’s marketability would be improved. (Wing, 1383:16-1384:2.) After demolition, the soil at the building sites was left in place, clean soil was imported as cover, and the remaining concrete floors or slabs were broken up to provide drainage. (Wing, 1401:4-13.) 114. The RAW II also required development of a plan to place a protective cover of clean imported fill over the Site. Hydrome-trics contracted to have the fill dirt brought to the Site. Y. Cleanup Costs A. BACC 115. Some of BACC’s costs related to the Site cleanup were actually paid by Bank of America National Trust and Savings Association (BOA), a separate entity. Both BACC and BOA are subsidiaries of BaneAmerica Corporation, a bank holding company. BACC reimbursed BOA for those costs that BOA paid directly. This reimbursement was made pursuant to a service agreement between BACC and BOA under which BOA provided certain administrative services to BACC. (Rotticci, 1846:1-1848:22; Exh. 209.) 116. BACC incurred costs totalling $192,-616.66, paid to Woodward Clyde and Tetra Tech, in connection with investigation and removal of the barrels found at the Site. 117. BACC’s barrel removal costs paid to Woodward Clyde consist of $92,272.74 incurred in 1988 and $36,367.90 incurred in 1989. Woodward Clyde’s services included site reconnaissance, preparation of a health and safety plan, soil testing, report preparation, and activities directly related to barrel storage and removal. (Exh. 32.) In addition, a portion of the groundwater testing conducted by Woodward Clyde was also attributable to the barrels. (Skach, 976:18-25.) Woodward Clyde has computed that portion to be two-ninths of the cost of all groundwater testing, and the court finds this to be a reasonable computation. 118. Tetra Tech’s costs attributable to barrels were incurred in 1990, 1991, and 1992. The amounts incurred were $11,844.88 in 1990, $52,077.39 in 1991, and $53.75 in 1992. (Exh. 98, 99, 204.) These expenses included the cost of removing all barrels and their contents from the Site. 119. BACC incurred costs related to underground storage tank remediation totalling $163,889.47. This total comprises Woodward Clyde charges of $2,920.60 in 1988 and $15,-519.58 in 1989 (Exh. 96), and Tetra Tech charges of $78,354.65 in 1990, $55,735.25 in 1991, $6,389.00 in 1992, and $4,970.39 in 1993 (Exh. 98, 99, 204). 120. BACC’s costs associated with asbestos removal totalled $6,625.24. Woodward Clyde charged $4,185.80 in 1988 (Exh. 96), and Tetra Tech charged $2,358.94 in 1990 and $80.50 in 1991 (Exh. 78, 99, 204). 121. BACC incurred costs totalling $499,-207.38 for lead removal activity during the period 1988 through 1993. Woodward Clyde costs were $115,402.21 for 1988 and $120,-782.00 for 1989. (Exh. 96.) Tetra Tech costs were $149,305.16 in 1990, $76,925.42 in 1991, $12,130.63 in 1992, and $24,661.96 in 1993. (Exh. 98, 99, 100, 204.) 122. BACC incurred $570,395.02 in security guard costs during the period 1988 through 1993. BACC paid Woodward Clyde $11,878.02 for guard services during 1988 before undertaking the contracting for services directly. (Exh. 96.) BACC’s costs for guard services were incurred as follows: 1988: $21,702.02 (includes Woodward Clyde amount) 1989: 131,400.00 1990: 131,400.00 1991: 108,528.00 1992: 122,645.00 1993: 54,720.00 (Exh. 102, 103.) 123. BACC claims that attorney fees paid to the law firm Lewis, Rice & Fingersh, and its predecessor firm, Brown, Koralchik & Fingersh, were CERCLA response costs. At least some of these attorney fees are directly related to the cleanup and include activities such as designing the removal action, determining technical cleanup requirements to be contained in the work plan, negotiating contracts with environmental service providers, preparing and carrying out the work plans approved by EPA, and monitoring work progress. (Exh. 135, 136, 137.) Additional fees were also associated with obtaining information related to other potentially responsible parties (PRPs) that could be made to share in the costs of cleanup. (Aniel testimony, Sept. 22, 1994, 35-41; Exh. 217, 218, 219, 220, 221, 222.) The hourly rates charged are reasonable under the circumstances. 124. As explained more fully later in this Memorandum and Order, the court finds that not all the fees which BACC claims are directly related to the cleanup. In addition, the court finds that none of the fees sought by BACC related to identifying other PRPs are reasonable and necessary costs of response. 125. In addition to attorney fees, BACC also seeks recovery of related expenses of counsel. As discussed more fully later, the court finds that some of the expenses claimed are not recoverable. 126. BACC paid $37,672.07 to EPA in April 1990 as reimbursement for certain oversight costs incurred by EPA. BACC paid this amount pursuant to a provision in the Administrative Consent Order and in response to an invoice from EPA dated March 21, 1990. (Exh. 75.) B. ASARCO 127. ASARCO’s costs associated with lead removal were all paid to Hydrometrics. Through February 9, 1994, ASARCO had paid Hydrometrics a total of $2,887,868.73. (Exh. 211.) Hydrometrics invoices reflect total charges as of February 9, 1994, to be $3,058,932.51, resulting in an unpaid balance of $171,063.78. (Exh. 106.) In addition to these costs, Hydrometrics also billed ASAR-CO for $26,995.86 in a final invoice which represented charges for the period January through April 1994. (Exh. 216.) As a result, the costs associated with lead removal incurred by ASARCO total $3,085,928.37. 128. ASARCO seeks to recover as CERCLA response costs $24,410.10 in attorney fees paid to the law firm Swidler & Berlin. (Exh. 34, 212.) The court finds that these costs were primarily incurred in either negotiations with EPA or in activities related to litigation. In addition, most of the invoice entries do not adequately describe the work being performed. (Craig, 2278:4-24; Exh. 838.) 129. ASARCO also seeks recovery of attorney fees totalling $72,026.55 paid to the firm Bradley, Campbell, Carney & Madsen for work directly related to implementing the 106 Order. (Exh. 34.) Some of these fees represent work related to determining cleanup steps, complying with the 106 Order, reviewing technical matters related to the Site, meeting with EPA regarding required cleanup actions, and negotiating work plans. As explained in more detail later in this Memorandum and Order, only a portion of these fees are reasonable and necessary costs of response. Some of the fees are related to negotiations with EPA or to litigation, or otherwise not necessary costs of response. 130. In addition to the attorney fees just discussed, ASARCO also claims fees totalling $47,733.90 paid to the law firm Bradley, Campbell, Carney & Madsen, and $29,332.34 paid to consultants for work related to identifying other PRPs. (Exh. 223.) As explained in more detail later, the court finds that none of these fees are reasonable and necessary costs of response. VI. Sources of Contamination A. Barrels 131. Based on the weight of the evidence, the court finds that the barrels and their contents were left at the Site by Trinity. 132. Gregg Langford, Trinity’s employee in charge of the plant closure and cleanup, testified that over 200 barrels had been left at the Site, that those barrels had contained oil, hydraulic fluid, paint thinner, and antifreeze, and that residual amounts were left in some of the barrels. (Langford, 2090:4-2091:8.) Mr. Langford also testified that at least several barrels had been buried in the wheelabrator pit. (Langford, 2082:20-24.) The court does not find Mr. Langford’s testimony that the barrels were completely empty at the time Trinity left the Site to be credible. 133. Evidence showing that barrel labels corresponded to products received at the Site by Trinity and Mosher Kansas further supports the court’s finding. (Exh. 30, App. C-2; Exh. 148, 149, 182-189, and 190.) B. Asbestos 134. Asbestos containing material was found in Building 7 and in an outside disposal area near the northeast corner of Building 4. The disposal area contained used refractory bricks and pieces of cement. The asbestos containing material covered an area of approximately 2,500 square feet and was in a damaged, friable condition. (Exh. 28, at pp. 63-64.) 135. Refractory bricks were most likely used in- connection with an operation exposing the bricks to high temperatures, such as a smelter or smokestacks leading from a smelter. (Skach, 933:24-934:13.) 136. Trinity, Mosher Kansas, and Mosher Steel were not responsible for constructing, renovating, or demolishing any buildings at the Site. (Kenney, 655:1-8; Kaiser, 140:24-142:1.) C. Lead 137. The lead at the Site originated from three sources: slag, smelter ash, and paint. (Walker, 1566:4-7.) ASARCO’s smelter operation is solely responsible for the slag and smelter ash found at the Site. The structural steel operations of KCSS I and II, and Trinity and Mosher Kansas are the sources of the lead-based paint. 138. The court heard testimony from expert witnesses who had conducted studies to determine the relative volume of lead at the Site from each of the three sources. The studies revealed that slag accounted for 74% of the lead at the Site, smelter ash 16%, and lead paint 10%. (Walker, 1578:14-1579:2; Zindler, 2411:1-6; Exh. 131 at p. 34.) In the top two feet of soil at the Site approximately 14% of the lead is from paint. That percentage declines to approximately 5.8% in the top eight feet of soil. (Zindler, 2410:7-15.) 139. Defendants’ expert witness, Dr. Alan Zindler, testified that older paint at the Site was distinguishable from newer paint that might have been used by Trinity or Mosher Kansas. He testified that the newer paints had a higher zinc content and lower lead content than the older paints. Dr. Zindler concluded that the newer paint accounts for less than 10% of the total lead contamination at the Site attributable to paint. (Zindler, 2388:11-2391:7.) Dr. Zindler did not testify concerning the time frames in which the newer or older paint was used. 140. KCSS I used lead paints throughout the time that it operated a structural steel plant at the Site. (Kenney, 2311-2329; Fitch Depo., 19:3-20; Meiners Depo., 204:23-205:16; Exh. 781.) During the period 1954— 1969, KCSS I completed over 200 projects that required lead based paint. (Exh. 781; Kenney, 2311-2329.) 141. KCSS II also used lead based paint on ce