78.10—Ex parte communications during pendency of a hearing.
(a)
(1)
No party or interested person outside EPA, representative of a party or interested person, or member of the EPA trial staff shall make, or knowingly cause to be made, to any member of the decisional body an ex parte communication on the merits of a proceeding under this part.
(2)
No member of the decisional body shall make, or knowingly cause to be made, to any party or interested person outside EPA, representative of a party or interested person, or member of the EPA trial staff, an ex parte communication on the merits of any proceeding under this part.
(3)
A member of the decisional body who receives, makes, or knowingly causes to be made an ex parte communication prohibited by this paragraph shall file with the Environmental Appeals Board (or, if the proceeding is pending before an Administrative Law Judge, with the Hearing Clerk) for inclusion in the record of the proceeding under this part any such written ex parte communications and memoranda stating the substance of any such oral ex parte communication.
(b)
Whenever any member of the decisional body receives an ex parte communication made, or knowingly caused to be made by a party or representative of a party to a proceeding under this part, the person presiding over the proceedings then in progress may, to the extent consistent with justice, require the party to show good cause why its claim or interest in the proceedings should not be dismissed, denied, disregarded, or otherwise adversely affected on account of these ex parte communications.
(c)
The prohibitions of paragraph (a) of this section shall begin to apply upon publication by the Administrator of the notice of the filing of a petition under § 78.9 of this part. This prohibition terminates on the date of final agency action.