      Application of 31 U.S.C. § 3302(b) to Settlement of Suit
                   Brought by the United States
The requirem ent in 31 U.S.C. § 3302(b) that money received for the Government be deposited in
  the U nited States Treasury does not apply in a case in which the United States asserted no
  claim for money dam ages or penalties, and will receive no money from a health care program
  m anaged for private plaintiffs.

                                                                                   February 18, 1983

  M   em orandum      O   p in io n f o r t h e   C h ie f , E n v ir o n m e n t a l E n f o r c e m e n t
               S e c t io n , L and   and    N    atural     R e s o u r c e s D iv is io n


   You have requested the views of this Office regarding the proposed settle­
ment in United States v. Olin Corp., a civil action now pending in the District
Court for the Northern District of Alabama. The action was brought for
equitable relief, including an injunction ordering remedial action, and for
recovery of costs and expenses as a result of the unlawful discharge by Olin of
DDT into the waters of the United States and into a federal wildlife refuge. The
first amended complaint alleged causes of action based upon the Refuse Act, 33
U.S.C. 407; the Resource Conservation and Recovery Act, 42 U.S.C. 6973a;
the Clean Water Act, 33 U.S.C. § 1364; the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980 (CERCLA), 42 U.S.C.
§ 9606; the common law of nuisance; and restitution.
   With regard to the CERCLA count in particular, the complaint alleged that
“[t]here is or may be an imminent and substantial endangerment to the public
health or the environment because of the actual or threatened release of
hazardous substances from the [defendant’s] chemical plant site and drainage
ditch.” On the basis of this and the other allegations, the complaint prayed for
entry of a mandatory permanent injunction requiring, among other things, that
Olin restore the environment in the vicinity of its chemical plant. The prayer
for relief also included a requirement that Olin assure the performance of
comprehensive health studies on the residents living in the vicinity of its plant
and long-term monitoring of their health. The Government sought no monetary
damages or penalties.
   A number of private plaintiffs brought separate actions against Olin. Al­
though the cases were never consolidated with the Government’s action, one
settlement was proposed in satisfaction of all claims. On December 16, 1982,
the court set forth the terms on which all parties had tentatively agreed to settle
the litigation. The private damages claims would be settled for a total of $24
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million, to be paid by Olin over a period of five years. In satisfaction of the
Government’s claim relating to health care, the proposed settlement provides
that out of each annual payment to the private plaintiffs, $1 million would be
paid into a trust fund established and managed to provide medical monitoring
and assistance to all claimants over a period of ten years. The proposed
settlement further provides that “[t]he details of the program will be established
by the federal government and the plaintiffs;” that “[a]ny impasse will be
resolved in favor of the federal government position;” and that “[a]ny money
left in the fund at the end of 10 years will be returned to the settling plaintiffs.”
Finally, the proposed settlement provides that medical monitoring would be
available to any person in the immediate area of Traina, Alabama, near Olin’s
chemical plant, upon that person’s executing a full release to the United States
and to Olin.
   You have asked whether the proposed settlement is consistent with 31
U.S.C. § 3302(b) (former § 484),1 which provides:
           An official or agent of the Government receiving money for the
           Government from any source shall deposit the money in the
           Treasury as soon as practicable without deduction for any charge
           or claim.
This Office has previously considered the effect of 31 U.S.C. § 484,2 the
predecessor to § 3302(b), in the context of a settlement in In the Matter o f
Steuart Transportation Co., a civil action brought by the United States and the
State of Virginia following an oil spill in the Chesapeake Bay. In that case, each
plaintiff sought damages for the death of waterfowl, statutory penalties, and
cleanup costs. The settlement provided that Steuart Transportation would pay
damages of $115,000, which would be donated to a waterfowl preservation
organization designated jointly by the State of Virginia and the Department of
the Interior. In 1980, this Office concluded that Federal participation in accept­
ing and directing the payment would violate 31 U.S.C. § 484. We reasoned that
under the facts of that case, it could not be concluded that the money was not
“received” or that it was not received “for the use of the United States” on the
theory that it was received in trust for the people of Virginia and the citizens of
the United States. “Effect of 31 U.S.C. § 484 on the Settlement Authority of the
Attorney General,” 4B Op. O.L.C. 684 (1980).3

  1 By Pub. L. No. 97 -2 5 8 , 96 Stat. 877 (1982), C ongress enacted Title 31, U nited States Code, into law.
Former § 484 was codified as § 3302(b).
  2 Form er § 484 provided in pertinent part*
      The gross am ount o f all m oneys from w hatever source shall be paid by the officer or agent
       receiving the same into the Treasury, at as early a day as practicable, w ithout any abatem ent or
      deduction on account o f salary, fees, costs, charges, expenses, or claim of any description
       w h a tev e r.. . .
No substantive change was intended by the enactm ent o f form er § 484 as § 3302(b). See Pub. L. No. 9 7 -2 5 8 ,
§ 4, 96 Stat. 877, 948 (1982); H.R. Rep. No. 9 7 -7 5 1 , 97th Cong., 2d Sess. 2 (1982).
  3 The relevant language under current § 3302(b) is “re c eiv [e d ]. . . for the G overnm ent.” T he House R eport
accom panying the bill indicates that the change was made “ to elim inate unnecessary w ords.” H.R. Rep. No.
97-651, supra, at 98. N o substantive change w as intended. See supra note 2.

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   In our view, the proposed settlement in the Olin case presents no problem
under § 3302(b). Because the Government asserted no claim for money dam­
ages or penalties, we do not believe that any portion of the $24 million is
appropriately viewed as “receiv[ed] . . . for the Government” within the
meaning of § 3302(b). The entitlement to the funds belongs solely to the
private plaintiffs who asserted monetary claims against Olin. The Government’s
specific request that the court earmark $5 million of the $24 million general
settlement to be used in satisfaction of its health-care claim does not change the
entitlement to or receipt of the funds. The proposed settlement, in fact, specifi­
cally reflects that any money remaining in the trust fund at the end of ten years
will be returned to the settling private plaintiffs.
   The Government’s prayer for a health care remedy would undoubtedly have
entailed a financial cost to Olin, but the monetary expenditure required of a
defendant in order to comply with a court injunction does not constitute money
received for the Government by an official or agent of the Government. Section
3302(b) is a statutory aid to the control by Congress over public expenditures,
committed to the Legislative Branch by Article I, § 8, cl. 1 of the Constitution.
The earliest version of the statute was proposed to curb unlimited discretion
previously enjoyed by the Executive to take deductions from revenue collec­
tions. According to the bill’s sponsor, the provision required that all money
received as revenue be paid into the Treasury and thereafter be expended only
upon appropriation by Congress. See 18 Cong. Globe 46364 (1848) (remarks of
Rep. McKay). An equitable remedy obtained by the Government in litigation,
albeit one with financial cost to the defendant, is simply not within the purview
of § 3302, either by its terms or its purpose.
   Similarly, we do not believe that federal participation in working out the
details of the health care program implicates the restrictions of § 3302(b). This
participation is not appropriately equated with the designation of the waterfowl
preservation organization that was at issue in Steuart Transportation Co.
Because no money is received by the Government as a result of the settlement,
no Government money is redirected or expended simply by the Government’s
participation in the administration of the health care program.

                                                   Ra lph W . T arr
                                          Deputy Assistant Attorney General
                                              Office o f Legal Counsel




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