40 CFR § 78.10 - communications during pendency of a hearing.

---
identifier: "/us/cfr/t40/s78.10"
source: "ecfr"
legal_status: "authoritative_unofficial"
title: "40 CFR § 78.10 - communications during pendency of a hearing."
title_number: 40
title_name: "Protection of Environment"
section_number: "78.10"
section_name: "communications during pendency of a hearing."
chapter_name: "ENVIRONMENTAL PROTECTION AGENCY"
subchapter_number: "C"
subchapter_name: "AIR PROGRAMS"
part_number: "78"
part_name: "APPEAL PROCEDURES"
positive_law: false
currency: "2026-03-24"
last_updated: "2026-03-24"
format_version: "1.1.0"
generator: "[email protected]"
authority: "42 U.S.C. 7401-7671q."
regulatory_source: "58 FR 3760, Jan. 11, 1993, unless otherwise noted."
cfr_part: "78"
---


# 78.10 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 paragraph (a)(1) or (2) of this section 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. These prohibitions terminate on the date of final agency action.

[58 FR 3760, Jan. 11, 1993, as amended at 86 FR 23180, Apr. 30, 2021]