Emergency Authority of the Secretary of Health and Human

Services Under 42 U.S.C. § 243(c)(2)

U nder § 311 o f the Public H ealth S ervice A ct, 42 U .S.C . § 243(c)(2), w hich authorizes the 

S ecretary o f H ealth and H um an Services, at the request o f the ap p ropriate state or 

local auth o rity , to extend tem p o rary assistance to states and localities in m eeting health 

em ergencies, the Public H ealth S ervice m ay provide relocation assistance to residents 

living near th e L ov e C anal for a period not to exceed 45 days, for purposes o f assessing 

and dealing w ith th e health em erg en cy in th at area.

May 17, 1980

MEMORANDUM OPINION FOR TH E ASSISTANT TO THE 

PRESIDENT FOR INTERGOVERNM ENTAL AFFAIRS

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 residents 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 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 may also, at the request of 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 : Love Canal, an uncom pleted excavation originally designed to link the Niagara R iver and 

Lake Ontario, was used as a chem ical dumpsite between 1920 and 19S3. D uring the 1970's, homes 

bordering the landfill began to smell of chemicals, and residents of the area w ere found to be suffering 

unusually high rates o f cancer, birth defects, and other illnesses. In 1978, an investigation by the New 

York State Departm ents o f Health and Environm ental Conservation led to the discovery that the 

landfill was leaking dangerous chem ical compounds, and the area was declared by the State to be “an 

extrem ely serious threat to health and welfare.” O n M ay 21, 1980, President C arter signed an 

em ergency order authorizing federal assistance in the tem porary relocation o f the 710 families who 

had remained in the area. Ed.

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meeting health emergencies o f such a nature as to warrant

Federal assistance. The Secretary may require such reimbursement of the United States for aid (other than planning) under the preceding sentences of this subsection as 

he may determine to be reasonable under the circumstances. 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 jurisdiction to control epidemics and to meet other health emergencies. National 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) authorized 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 reimbursement of the United States for assistance provided 

under this paragraph as he may determine to be reasonable 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 received.

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 section, 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 assistance. 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 contemplated. We found nothing in this review to indicate that the Secretary

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may not extend federal assistance for relocating Love Canal residents to 

temporary housing.1

The 1967 amendment, which added the section authorizing the Secretary 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 between 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

authority, extend temporary (not in excess of 45 days) assistance to States or localities in meeting health emergencies of

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 applicable 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 committee 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 community emergency health needs as arise in the case of 

floods, fires, and other disasters. The proposed new au1 T here are no judicial decisions o r regulations interpreting this section.

2 T he Secretary must determ ine w hether to require reimbursement from the state or locality. In 

1967, it was suggested to the com m ittee that the reimbursement be mandatory, but this suggestion was 

not followed. See H.R. Rep. No. 538, 90th C ong., 1st Sess. 49 (1967).

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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 execution of disaster assistance services.

S. Rep. No. 724, 90th Cong., 1st Sess. 13 (1967). Although this reference could be read to suggest that the section authorizes only emergency 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 emergencies. 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 controversial 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., Partnership For Health Amendments o f 1967: Hearings on S. 1131 and H.R. 6418

Before the Subcomm. on Health of the Sen. Comm, on Labor and Public

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 other portions of the bill. The 

conference report does not discuss this section. H.R. Rep. No. 974, 90th Cong., 1st Sess. (1967).

4 A lthough the Act states that "the" state or local authority may make the request, we do not think 

this means 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 comes from an appropriate authority.

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federal assistance.5 Once the Secretary makes this determination, temporary 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 commitments may not be made beyond the 45-day period. If the financial 

commitments are made within the 45-day period, and if they are intended 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

8 W e have been advised by the G eneral C ounsel's Office o f the D epartm ent o f H ealth and Human 

Services that a standard internal operating procedure requires that the Surgeon G eneral determ ine that 

there is indeed a “ health emergency.*’ T he statute itself does not require this procedure, and the 

process is not set forth in the Public Health Service's regulations.

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