                                                                               [DO NOT PUBLISH]

                    IN THE UNITED STATES COURT OF APPEALS

                               FOR THE ELEVENTH CIRCUIT
                                ________________________                              FILED
                                                                             U.S. COURT OF APPEALS
                                        No. 04-16239                           ELEVENTH CIRCUIT
                                                                                   MAY 8, 2006
                                  ________________________
                                                                                THOMAS K. KAHN
                                                                                     CLERK
                              D. C. Docket No. 01-10930 CV-JEM

MIAMI-DADE COUNTY, FLORIDA,
a political subdivision of the State of Florida,

                                                                          Plaintiff-Appellant,

                                                  versus

UNITED STATES OF AMERICA,

                                                                          Defendant-Appellee.

                                  ________________________

                    Appeal from the United States District Court for the
                               Southern District of Florida
                              _________________________

                                             (May 8, 2006)

Before ANDERSON, FAY and SILER*, Circuit Judges.

PER CURIAM:


_____________________
*Honorable Eugene E. Siler, Jr., United States Circuit Judge for the Sixth Circuit, sitting by designation.
      This is an appeal from the United States District Court for the Southern

District of Florida. It concerns the United States’s purported obligation to

reimburse Miami-Dade County, Florida (“the County”) for the cost of treating the

soil and groundwater contamination affecting the Miami International Air Depot.

(“The Depot”). The County sued the United States pursuant to CERCLA, 42

U.S.C. § 9607(a)(2), et. seq., and the Resource Conservation and Recovery Act

(RCRA), 42 U.S.C. § 6972(b)(2)(B). We affirm the district court’s decision that

the United States has no obligation to reimburse the County for its cleanup costs.

      I.     BACKGROUND

      The County owns the Miami International Airport, which includes the

Depot. From 1943 to 1966, the United States maintained and repaired Air Force

aircraft engines at the Depot. From 1943 to 1948, it owned the Depot itself and

after it passed title to the County, it subsequently leased back various Depot

buildings from the County. Another tenant on the Depot was Aerodex, a company

that cleaned aircraft engines for commercial airlines and the Air Force. It went

bankrupt in 1976. In 1988, the EPA issued a report detailing the level of

environmental damage the Airport’s soil and groundwater had suffered as a result

of the disposal of trichloroethylene (TCE) and other chlorinated solvents that

Aerodex had used to clean engines. Pursuant to a 1998 consent order with the

                                          2
Florida Department of Environmental Protection, the County admitted liability for

the contamination. In 2001, the County sued the United States for contribution of

cleanup costs.

       Following a sixteen day bench trial, the district court found in favor of the

United States on all counts. In support of its decision, the district court made

extensive findings of fact. Most importantly, it found that none of the

contaminants in the Depot could have resulted from the United States’ activities on

the Depot during the period in question.

       II.   DISCUSSION

       On appeal, the County makes the following arguments in favor of having the

United States share cleanup costs. First, it contends that the United States’

admission during trial that it was a “former owner” of the Depot for the purposes of

CERCLA liability necessarily requires contribution from the United States.

Second, it asserts that the United States faces “arranger liability” under CERCLA

because, even if it did not pollute the site, it procured services from an entity that

did, Aerodex. Finally, the County argues that the United States’ tenure on the site

prohibits it from invoking sovereign immunity and makes the United States

susceptible to Florida environmental laws pursuant to the RCRA. We discuss each

in turn.

                                           3
             A. Did the District Court Fail to Credit Properly the United States’
             Admission that It Was a “Former Owner” of the Depot when
             Determining the United States’ Potential Contribution under
             CERCLA ?

      Section 113(f) of CERCLA provides that a court “may allocate response

costs among liable parties using such equitable factors as the court determines are

appropriate.” 42 U.S.C. § 9613(f). A plaintiff seeking contribution must prove

both that the defendant is a liable party and must demonstrate how equitable factors

weigh in favor of the defendant’s contribution. See, e.g., Minyard Enterprises, Inc.

v. Southeastern Chemical & Solvent Co., 184 F.3d 373, 385 (4th Cir. 1999).

Even if a party is liable under CERCLA, a court may reasonably find that it should

not pay contribution costs. See, e.g., Western Properties Service Corp. v. Shell Oil

Co., 358 F.3d 678, 690 (9th Cir. 2004); Acushnet Co. v. Mohasco Corp., 191 F.3d

69, 78 (1st Cir. 1999).

      The County makes a clever argument that the government’s concession that

it was a “former owner” relieved the County of proving both that there were

releases of hazardous substances during the time that the property was owned by

the United States, and also relieved the County of proving that such hazardous

substances contributed to clean-up costs that it incurred. Whatever might be the

case with respect to the former, the County is clearly wrong with respect to the



                                          4
latter. As noted above, proof of a defendant’s liability is necessary but not

sufficient to compel the defendant’s contribution. The concession of the United

States clearly did not relieve the County of its burden of proving its entitlement to

contribution.1 It is also clear that the government’s responsibility, or lack thereof,

for the contamination is a relevant and appropriate factor in the equitable allocation

inquiry. Redwing Carriers, Inc. v. Saraland Apartments, 94 F.3d 1489, 1514 n.32

(11th Cir. 1996) (noting that causation of contamination is “unquestionably an

‘appropriate’ factor for a court to consider in making a fair division of liability”).

Thus, we readily conclude that the County’s argument is without merit.

       Moreover, after careful review of the arguments of the parties and the

relevant parts of the record, we conclude that there is ample support for the district

court’s finding that there were no releases during the government’s ownership of

pollutants that contributed to the necessity for the subsequent clean-up. The

district court found no evidence that the United States released TCE or any other

chlorinated solvents during the Forties, when all maintenance and repairs were

       1
          We also readily conclude that the County was not misled by the government’s
concession or the district court’s ruling accepting same. It was clear from the district court’s
partial summary judgment ruling, from the relevant case law, and from the proceedings during
the bench trial, that the County had the burden of proving its entitlement to contribution. It was
also clear throughout the bench trial that issues relating to what substances, if any, were released
or disposed of and whether they contributed to the need for remediation were both relevant and
hotly disputed.


                                                  5
performed by the Air Force, rather than outside contractors. Moreover, the district

court found that even if such solvents had been used, they could not have helped

cause the contamination at issue because the length of time meant that the solvents

would have either degraded into harmless compounds or that the groundwater

would have carried solvent deposits in the other direction and far from the Depot.

      Likewise, the district court found no evidence that once the Air Force

outsourced some of its maintenance and repair operations to Aerodex, the Air

Force itself released any chlorinated solvents onto the site. We conclude that the

district court neither abused its discretion nor committed any clear errors of fact

when it decided that the United States should not have to contribute to the costs of

cleanup.

                   B.     Is the United States an “Arranger” for the Purposes of
                          CERCLA?

      While there is no evidence that the United States released chlorinated

solvents onto the site, the parties agree that Aerodex did. The County claims that

the United States should be held responsible for Aerodex’s actions.

      CERCLA allows suits against “any person who by contract, agreement, or

otherwise arranged for disposal or treatment, or arranged with a transporter for

transport for disposal or treatment, of hazardous substances owned or possessed by


                                           6
such person, by any other party or entity, at any facility or incineration vessel

owned or operated by another party or entity and containing such hazardous

substances[.]” 42 U.S.C. § 9607(a)(3). In determining whether a party arranged

for the disposal or treatment of hazardous substances, “[r]elevant factors include:

(1) whether a sale involved the transfer of a “useful” or “waste” product; (2)

whether the party intended to dispose of a substance at the time of the transaction;

(3) whether the party made the “crucial decision” to place hazardous substances in

the hands of a particular facility; (4) whether the party had knowledge of the

disposal; and (5) whether the party owned the hazardous substances.” Concrete

Sales and Services, Inc. v. Blue Bird Body Co., 211 F.3d 1333, 1336-37 (11th Cir.

2000).

      The County makes a conclusory argument that the United States should be

liable as an “arranger” pursuant to 42 U.S.C. § 9607(a)(3), and that such liability

should somehow affect the equitable allocation that the district court denied the

County. In this regard, the County does not challenge the extensive findings of fact

of the district court to the effect that the contamination requiring the remediation

expenditures was caused by the disposal of volatile organic compounds, including

primarily TCE, and findings to the effect that the Government had no authority

with respect to or management responsibility with respect to Aerodex’s operation

                                           7
and in particular with respect to Aerodex’s waste disposal activities. Indeed, the

district court found that such waste disposal activities were governed solely by

Aerodex and the County. The County’s conclusory assertion that there were other

hazardous substances which also contributed to the necessity for the remediation

work and with respect to which the Government may have had more responsibility

is wholly unpersuasive as an effort to demonstrate clear error. We cannot conclude

that the district court’s extensive findings of fact are clearly erroneous or that it

abused its discretion in concluding that the United States was not an “arranger.”

                    C.     Did the United States Waive Its Sovereign Immunity
                           Rendering It Susceptible to Suits Pressing State Law
                           Claims?



      The County identifies three potential grounds for the United States’

jurisdiction over the Depot: its tenure on the site, from 1943 to 1966; the Defense

Environmental Restoration Program Act (DERPA); and its 1948 quitclaim deeds.

We agree with the district court that none of these grounds suffice to establish

jurisdiction.

      RCRA provides that if the federal government “ha[s] jurisdiction over any

solid waste management facility or disposal,” it waives its sovereign immunity

against lawsuits alleging that the maintenance of the facility or disposal has failed


                                            8
to comply with state environmental laws. 42 U.S.C. § 6961(a). The district court

rejected the argument that the United States’ tenure on the site could constitute

jurisdiction because the court understood “jurisdiction” to mean “current legal

control or power.” Without challenging the district court’s holding that the

jurisdiction must be current, the County quibbles over the district court’s definition

of “jurisdiction” as meaning legal control or power. The County argues that the

proper meaning should be “the right to say or the power to act.” We reject the

County’s argument as unhelpful; the United States in the instant case has neither

“legal control or power” nor “the right to say or the power to act.”

      In addition, the County argues that the Defense Environmental Restoration

Program Act (DERPA) somehow operates to waive the Government’s sovereign

immunity and subject it to suit by the County pursuant to state law. The County’s

brief is vague and conclusory. The County quotes from 10 U.S.C. § 2701(b)(1)

that “[t]he Secretary of Defense shall carry out a program of environmental

restoration at facilities under the jurisdiction of the Secretary.” Among other flaws

in the County’s argument, the County fails to explain how even mandatory

language directed to the Secretary of Defense could operate to waive the sovereign

immunity of the United States and subject it to suit by the County pursuant to state

law. We find the County’s argument wholly without merit.

                                          9
      We find no error in the district court’s ruling under Florida real estate law

that the United States has no title or ownership interest pursuant to the 1948

quitclaim deeds. Moreover, we are confident that even if the interests retained in

the 1948 quitclaim deeds have not been fully relinquished as the government

contends, any such remote and contingent interests would not constitute “having

jurisdiction over any ... disposal site” which might trigger the sovereign immunity

waiver provision.


             III.   CONCLUSION

      The judgment of the district court is

AFFIRMED.




                                         10
