Your Phase I ESA Comes With Homework: The User Questionnaire Explained
Updated: Oct 27
You just hired an environmental professional to conduct a Phase I Environmental Site Assessment. So why did a questionnaire immediately land in your inbox asking you about liens, purchase price, and your knowledge of the property?
Well, that's because EPA’s All Appropriate Inquiries (AAI) rule assigns part of the investigation to you, not to your consultant. The User Questionnaire is how that part gets completed, documented, and folded into the report. If you skip it, or only fill out a portion of it, the liability protection you're paying for with a Phase I ESA has a hole in it.
The Short Answer Up Front
The User Questionnaire collects information that the buyer, lender, or other party commissioning the Phase I (the "User") can provide. Under EPA's All Appropriate Inquiries (AAI) rule (40 CFR Part 312) and ASTM E1527-21, those items are the User's responsibility, not the environmental professional's. The questionnaire is the standard vehicle for capturing them so the report can document that all appropriate inquiry was completed.
Why the User of a Phase I ESA Has Obligations At All
A Phase I ESA is usually commissioned to qualify for CERCLA's landowner liability protections: the bona fide prospective purchaser, contiguous property owner, and innocent landowner defenses. To claim any of them, a purchaser must conduct all appropriate inquiries before acquiring the property.
The AAI rule divides that inquiry into two sets of tasks:
Environmental professional tasks: records review, site reconnaissance, interviews, historical research, and the professional opinion on recognized environmental conditions (RECs) (40 CFR 312.21).
User tasks: items that depend on what the purchaser knows, what the purchaser is paying, and what is recorded against the title (40 CFR 312.22). AAI lets you share the results with us or keep them yourself; only shared results make it into the report. Commonly known information and obviousness are shared obligations: both of us have to account for them.
ASTM E1527-21 sets out the User's responsibilities in Section 6 and provides a sample User Questionnaire in an appendix. The form itself is optional; the obligations are not.
What the Phase I ESA User Questionnaire Asks, And Why
Excelsior's Phase I ESA User Questionnaire is set up to be as easy to complete as possible by the User, but there are some constraints. Here are the questions that have to be included:
1. Environmental Liens (40 CFR 312.25). Are you aware of any environmental cleanup liens filed or recorded against the property? A lien signals that public money was spent on cleanup there. Under E1527-21, the search is yours to run unless you hire a title company to do it.
2. Activity and Use Limitations (AULs). Are there engineering controls, institutional controls, or land use restrictions in place or recorded? An AUL means contamination may have been managed in place rather than removed. In Florida, these often show up as restrictive covenants recorded with the county or as institutional controls tied to an FDEP closure.
3. Specialized Knowledge or Experience (40 CFR 312.28). Do you have expertise that bears on the property? A buyer who runs dry cleaners and is purchasing a former dry cleaner knows things a generalist doesn't. The AAI requires that knowledge to be considered.
4. Purchase Price Versus Fair Market Value (40 CFR 312.29). Does the price reasonably reflect the value of the property if it were not contaminated? If not, is the discount related to known or suspected contamination? AAI doesn't require you to give us the purchase price. The question is whether a below-market price is telling you something about the condition of the property.
5. Commonly Known or Reasonably Ascertainable Information (40 CFR 312.30). Do you know past uses, chemicals used or stored, spills, or environmental cleanups at the property, from any source?
6. Obviousness of Contamination (40 CFR 312.31). Based on your knowledge and experience, are there obvious indicators of contamination?
7. Reason for the Assessment. Why are you having the Phase I conducted? A purchase for LLP purposes, a lender's credit decision, and a refinancing don't always call for the same scope. Telling us the purpose shapes how we plan the assessment and frame the findings.
The User should also provide anything already in hand: title records, prior environmental reports, permits, and correspondence with regulators. A previous Phase I or a closure letter can save time and sharpen the findings.
What Happens If It Isn't Completed?
The environmental professional can run the lien and AUL search if you engage us to. We can't supply what only you know: your specialized knowledge and your read on the asking price for the property. If the questionnaire doesn't come back, or comes back blank, our report has to say so. We document the gap and evaluate whether it affects the REC determination.
The consequence that matters most is legal, not technical. If the User's inquiries weren't conducted, all appropriate inquiry isn't complete (for specialized knowledge, 40 CFR 312.28(b) says so outright), and the liability protection the Phase I was bought for is open to challenge. On a contaminated parcel, that's the difference between a closing cost and a cleanup bill.
Deals slip, and AAI runs on a clock. Components including the lien search must be conducted or updated within 180 days before acquisition. A Phase I finished in March for a closing that slides to October has a lien search, site visit, and interviews past their 180 days. When we update those, update your questionnaire answers too.
Common Mistakes We See on the User Questionnaire
Sending it to the wrong person. A broker or seller filling out the User Questionnaire doesn't satisfy the buyer's obligations. The party claiming liability protection should complete it. (Asking the current owner to complete a separate owner questionnaire is a good practice, but that's a different document).
Answering "N/A" or "unknown" across the board. If you truly don't know, say so. If you haven't looked, look. Remember that this document is for your protection from environmental liability.
Treating the price question as confidential. You don't have to give the number. But you do have to say whether the price reflects contamination concerns.
Assuming the lien search is included. Confirm whether a title company is running it or not.
Returning it after the report is drafted. Late answers can change findings, and a revised report the week before closing costs time the deal doesn't have.
Where This Matters Most: Florida's Development Frontiers
The Florida counties that are growing fastest are the ones that are still converting farmland. Between 2020 and 2025, households grew 28.4% in Sumter, 26.5% in St. Johns, 24.3% in Osceola, and 22.4% in Flagler, while Polk added more than 46,000. Close behind are Nassau, St. Lucie, Manatee, Lake, Marion, and Pasco, much of it on former grove, pasture, and row-crops.
Some of that land has a history that isn't obvious during a site walk. For example, Florida built more than 3,200 cattle dip vats (CDVs) for tick eradication between 1906 and 1961, most of which were loaded with arsenic. Polk has 168 documented CDVs, the most of any county, and Osceola, Lake, and Marion each have more than 75.
Many citrus groves stored thousands of gallons of diesel, kerosene, or used oil in aboveground storage tanks (ASTs) or underground storage tanks (USTs) to keep smudge pots lit in the groves during cold winter nights. In fact, the photo at the top of this post is of an AST in Lake Wales (Polk County) that was used for this very purpose.
A dip vat can be a low concrete rim under a palmetto thicket that used to be a pasture, and an AST or UST that leaked may no longer be present on-site. Discovering either during the due diligence period requires localized soil and groundwater testing. Finding it after the property transaction is completed may mean a total site redesign or cancellation of a redevelopment project. A property buyer who grew up two houses over from a site often knows where a historical site feature used to be located, and the User Questionnaire puts that knowledge on the record.
The Bottom Line on the Phase I User Questionnaire
Clients may often feel like the User Questionnaire is paperwork for its own sake. It's not. It's the part of all appropriate inquiry that runs through you as the User. Complete it early and completely, and the Phase I ESA supports the liability protection that you paid for. Excelsior conducts Phase I ESAs and environmental due diligence across Florida. If you have questions about the Phase I ESA process or your obligations as a User, contact us today at 855-720-2333 or contact@excelsiorflorida.com. __________________________________________________________________________________
Note: This post is provided for general information only and is not legal advice. Consult your attorney on how AAI and the CERCLA landowner liability protections apply to your transaction. Sources
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