The Bay cleanup effort won't get a windfall from the company convicted of polluting a Virginia tributary of the Chesapeake.

A judge had wanted the $12.6 million pollution fine she levied against Smithfield Foods Inc. to be used toward the restoration of the Chesapeake Bay, but in the end she decided that federal law required the money be paid to the U.S. Treasury.

U.S. District Judge Rebecca Beach Smith said in a December ruling that she "reluctantly" agreed with the Justice Department's position that civil penalties owed to the United States must go the Treasury. "Simply depositing civil penalties into the vast reaches of the United States Treasury does not seem to be the most effective way of combating environmental problems caused by a specific polluter," she said in a six-page ruling. "However, it is not the court's role to legislate, but rather to enforce the law Congress has passed."

The judge levied the fine, a record for the Clean Water Act, on Aug. 8. A federal lawsuit accused the meat-packing company of polluting the Pagan River, and falsifying and destroying documents to cover it up. The judge had suggested that at least some of the money go toward restoring the Bay and its tributaries, including the Pagan. The company has two hog-slaughtering plants along the Pagan in Isle of Wight County. But the judge concluded in a Nov. 26 ruling that the law does not permit her to direct a penalty toward a specific activity. The Clean Water Act does not specify where penalties are to be paid, the judge said. But the federal Miscellaneous Receipts Act requires such "public money" to be paid to the Treasury.

The Chesapeake Bay Foundation will ask the state's congressional delegation to seek a $12.6 million federal appropriation for Virginia's efforts to clean up the Bay, said Chuck Epes, a spokesman for the environmental group.

"We are disappointed that Smithfield Foods, which for years profited from its pollution of the Pagan River and the Chesapeake Bay, will not have to contribute to its restoration," Epes said. Smithfield Foods is contesting the judge's decision to levy the fine, and it has said it will appeal the decision.

The judge said two identical bills pending before the U.S. Senate and the House of Representatives may help her change the way the fine is allocated, if they become law before Smithfield's appeal is concluded. The bills would amend the Clean Water Act to allow courts to order fines to be used for projects that enhance public health or the environment.