Case Information

*1 Emergency Authority of the Secretary of Health and Human

Services Under 42 U.S.C. § 243(c)(2)

U n d e r § 311 o f th e P ub lic H ealth S e rv ice A c t, 42 U .S .C . § 243(c)(2), w h ic h au th o rizes the S e c re ta ry o f H ealth and H u m an S ervices, at the request o f th e a p p ro p ria te sta te o r local a u th o rity , to ex ten d te m p o ra ry assistance to states and localities in m eetin g health em erg en cies, th e P u b lic H e a lth S e rv ice m ay p ro v id e relo catio n assistance to residents living n ear th e L o v e C an al fo r a p erio d not to exceed 45 days, for p u rp o ses o f assessing an d d ealin g w ith th e h ealth e m e rg e n c y in th a t area.

May 17, 1980 M EM ORANDUM OPINION FOR T H E ASSISTANT TO TH E PR ESID EN T FOR IN TER G O V ER N M EN TA L A FFAIRS

This responds to your request for our opinion whether the Secretary of Health and Human Services is authorized by 42 U.S.C. § 243(c)(2) to assist state and local authorities in temporarily relocating certain resi dents who now live near the Love Canal in Niagara Falls, New York, to cities removed from health hazards of the Canal.* In our opinion, this section does give the Secretary that authority.

The section in question was enacted in 1967 as an addition to § 311 of the Public Health Service Act. Partnership for Health Amendments of 1967, Pub. L. No. 90-174, §4, 81 Stat. 533, 536 (1967). As enacted, the statute provided:

The Secretary may enter into agreements providing for cooperative planning between Public Health Service med ical facilities and community health facilities to cope with health problems resulting from disasters and for participa tion by Public Health Service medical facilities in carry ing out such planning. He may also, at the request o f the appropriate State or local authority, extend temporary (not in excess o f forty-five days) assistance to States or localities in • N o t e : L ove C anal, an uncom pleted excavation originally designed to link the N iagara R iver and Lake O ntario, was used as a chem ical dum psite betw een 1920 and 19S3. D uring the 1970's, homes bordering the landfill began to smell o f chem icals, and residents o f the area w ere found to be suffering unusually high rates o f cancer, birth defects, and o th e r illnesses. In 1978, an investigation by the N ew Y ork State D epartm ents o f H ealth and E nvironm ental C onservation led to the discovery that the landfill was leaking dangerous chem ical com pounds, and the area w as declared by the State to be “an extrem ely serious threat to health and w elfare.” O n M ay 21, 1980, President C arter signed an em ergency o rd e r authorizing federal assistance in the tem porary relocation o f the 710 families w ho had rem ained in the area. Ed. meeting health emergencies o f such a nature as to warrant Federal assistance. The Secretary may require such reim bursement of the United States for aid (other than plan ning) under the preceding sentences of this subsection as *2 he may determine to be reasonable under the circum stances. Any reimbursement so paid shall be credited to the applicable appropriation of the Public Health Service for the year in which such reimbursement is received.

Id. (Emphasis added). In 1976, the section was amended to authorize the Secretary to develop and implement a plan to use resources of the Public Health Service and other agencies under the Secretary’s jurisdic tion to control epidemics and to meet other health emergencies. Na tional Consumer Health Information and Health Promotion Act of 1976, Pub. L. No. 94-317, § 202(b), 90 Stat. 695, 703 (1976). The 1976 amendment divided § 243(c) into two parts. Section 243(c)(1) author ized the development and implementation of plans to meet emergencies or problems resulting from disasters or epidemics. Section 243(c)(2), which sets forth the Secretary’s authority to extend assistance to states or localities in meeting health emergencies, is the section which grants the authority about which you have inquired. This section now provides:

The Secretary may, at the request of the appropriate State or local authority, extend temporary (not in excess of forty-five days) assistance to States or localities in meeting health emergencies of such a nature as to warrant Federal assistance. The Secretary may require such reim bursement of the United States for assistance provided under this paragraph as he may determine to be reason able under the circumstances. Any reimbursement so paid shall be credited to the applicable appropriation for the Service for the year in which such reimbursement is re ceived.

Id. The 1976 amendment did not substantively change the Secretary’s authority respecting temporary health emergency assistance to states or localities.

To determine the scope of the Secretary’s authority under this sec tion, we have reviewed the legislative history of both the 1967 and the 1976 Acts. This review yielded little guidance as to the meaning of the operative phrases in the statute, such as the 45-day limitation on assist ance. There is also little indication of the legislative intent as to what may satisfy the requirement of a request from “the appropriate State or local authority” or as to what type of health emergency was contem plated. We found nothing in this review to indicate that the Secretary

may not extend federal assistance for relocating Love Canal residents to temporary housing.1

The 1967 amendment, which added the section authorizing the Secre tary to act in health emergencies, was part of a lengthy bill which modified the Public Health Service Act. The House Committee on Interstate and Foreign Commerce explained the new section as follows:

This section adds a new subsection (c) to section 311 of the Public Health Service Act. Under this proposed new subsection, the Secretary would be authorized to enter into agreements providing for cooperative planning be tween public health medical facilities and community health facilities to cope with health problems resulting from disasters, and for participation by Public Health Service medical facilities in carrying out such planning. He could also, at the request o f appropriate State or local *3 authority, extend temporary (not in excess o f 45 days) assist ance to States or localities in meeting health emergencies o f such a nature as to warrant Federal assistance. He could also require such reimbursement of the United States for aid (other than planning) received under this subsection as he determines to be reasonable under the circumstances. Any such reimbursement would be credited to the appli cable appropriation of the Public Health Service.2 H.R. Rep. No. 538, 90th Cong., 1st Sess. 38 (1967) (emphasis added). The reference to the new section in the Senate report indicates that the Congress intended the section to grant broad authority to the Secretary so that the Public Health Service could play an active role in delivering disaster assistance services. In explaining this expanded role, the com mittee wrote:

Under present statutory authority, the Public Health Service may provide emergency care and treatment in its hospitals and outpatient facilities to persons who are not legal beneficiaries of the Service, but the Service does not have clear authority to provide such emergency care or treatment outside of its own facilities. If Public Health Service hospitals are to be responsible members of the medical communities in which they are located, they must be able to play a more active role in meeting such com munity emergency health needs as arise in the case of floods, fires, and other disasters. The proposed new au 1 T h e re are no judicial decisions o r regulations interpreting this section. 2 T h e S ecretary must determ ine w h e th er to require reim bursem ent from the state or locality. In 1967, it was suggested to the com m ittee that the reim bursem ent be m andatory, but this suggestion was not follow ed. See H .R . Rep. No. 538, 90th C ong., 1st Sess. 49 (1967).

thority would not create any direct Federal obligation to provide such emergency assistance, but it would authorize Public Health Service medical facilities to cooperate with other community agencies in the development and execu tion of disaster assistance services.

S. Rep. No. 724, 90th Cong., 1st Sess. 13 (1967). Although this refer ence could be read to suggest that the section authorizes only emer gency assistance in the form of assistance by Public Health Service facilities, we do not believe the section properly should be construed so narrowly. In its section-by-section analysis, the committee noted that § 4 authorized agreements for cooperative planning between public health medical facilities and community health facilities and that the Secretary could also extend temporary assistance to meet health emer gencies. There is no limitation on the type of temporary assistance that may be provided. See S. Rep. No. 724, 90th Cong., 1st Sess. 25 (1967).3

Most of the discussion on the floor focused on other, more contro versial sections of the bill. The few comments on § 4 simply refer to the strengthened role of the Public Health Service in assisting states and localities to cope with health emergencies and disasters. See, e.g., 113 Cong. Rec. 26,016 (1967) (Statement of Mr. Donohue). Hearings on the bill were held by the Senate Committee on Labor and Public Welfare. As with the floor debates, the few comments on § 4 at the hearings summarily referred to the section as a clarification and strengthening of existing authority for assistance to states and localities. See, e.g., Partner ship For Health Amendments o f 1967: Hearings on S. 1131 and H.R. 6418 Before the Subcomm. on Health o f the Sen. Comm, on Labor and Public *4 Welfare, 90th Cong., 1st Sess. 62 (1967).

The 1976 amendment, as stated earlier, did not substantively modify the Secretary’s authority to assist during emergencies. The amendment to § 4 appeared in the House bill. The committee simply paraphrased the existing provision in its report, without shedding any light on the meaning of the section. H.R. Rep. No. 1007, 94th Cong., 2d Sess. 30 (1976).

The plain language of the statute authorizes the Secretary to provide the assistance at the request of the appropriate state or local authority. This request is a prerequisite to the provision of any assistance. The Secretary must determine whether the authority requesting the aid is the appropriate authority.4 The Secretary must determine whether the circumstance is a health emergency of such a nature as to warrant 3 A conference com m ittee was convened to resolve differences on o ther portions o f the bill. T h e conference report does not discuss this section. H .R. Rep. No. 974, 90th C ong., 1st Sess. (1967). 4 A lthough the A ct states that "the" state o r local authority may make the request, w e d o not think this m eans that there is only one official so authorized. In the absence o f regulations, the Secretary must determ ine in each circum stance w hether the request com es from an appropriate authority.

federal assistance.5 Once the Secretary makes this determination, tem porary federal assistance may be provided for a period of 45 days. The legislative sources cited above do not reveal the purpose of the 45-day limitation. Because the purpose of the section is to authorize temporary assistance to states and localities, it may be inferred that the provision was added to prevent prolonged federal involvement. Financial com mitments may not be made beyond the 45-day period. If the financial commitments are made within the 45-day period, and if they are in tended to provide “temporary” aid, we believe the section allows the benefits of the commitments to extend beyond the 45 days.

Finally, based upon our review of the statute and its legislative history, as discussed above, at least in the circumstances as you have described them in the case, the Public Health Service is authorized to provide temporary relocation assistance. Any removal of families, and their temporary relocation in other housing, will be for purposes closely related to assessing and dealing with the health emergency. Congress intended to confer on the Secretary of Health and Human Services authority broad enough to respond as contemplated here.

L a r r y A . H a m m o n d Acting Assistant Attorney General Office o f Legal Counsel *5 8 W e have been advised by the G eneral C ounsel's O ffice o f th e D epartm ent o f H ealth and H um an Services that a standard internal operating procedure requires that the Surgeon G eneral determ ine that there is indeed a “ health em ergency.*’ T h e statute itself does not require this procedure, and the process is not set forth in the Public H ealth S ervice's regulations.