I’m always asked the same question by my client when I tell them to fill out and return the User Questionnaire as part of their Phase I ESA:
“Why do I have to fill out a questionnaire about the property, isn’t that why I hired you, the environmental consultant?”
It seem counter intuitive. The client hired the consultant to do their due diligence but the consultant is asking the client about environmental knowledge on the property. Why?
Let’s back up a few steps. In 2005 and again 2013, the ASTM 1527 was issued for conducting Phase I ESAs. The standard was determined to be compliant with the new Federal regulation rule known as All Appropriate Inquiry (AAI), also know as 40 CFR Part 312. The AAI rule established specific requirements necessary to establish the landowner defense under CERCLA and was born out of the Small Business Liability Relief and Brownfields Revitalization Act of 2002 (but that’s a story for a different day).
The ability to establish the landowner defense is what created the new User responsibilities.
Who exactly is the User?
As defined by ASTM 1527-13, the User is the “the party seeking to use Practice 1527 to complete an environmental site assessment of the property. A user may include, without limitation, a potential purchaser of property, a potential tenant of property, an owner of property, a lender, or a property manager.” The definition goes on to state, “The user has specific obligations for completing a successful application of this practice.”
This leads us to the importance of the User Questionnaire. There are other responsibilities of the User in order to be compliant with ASTM 1527-13, but again, that is an article for another day.
The User may have information or perspective on the property that the environmental consultant does not have and is responsible for disclosing that information. This information includes any specialized knowledge or experience, commonly known or reasonably ascertainable information, and knowledge of the presence or likely presence of a release at the property. Any and all information must be disclosed to the environmental consultant for inclusion with the Phase I ESA Report. Completing the User questionnaire will usually satisfy this responsibility and is required by the ASTM 1527-13.
If the User fails to provide this information, the environmental consultant is required to determine if the absence of this information is significant. If significant, this could lead to a recognized environmental condition at the property. If deemed not significant, it could lead to a data gap, limitation or language in the Phase I ESA report that would question whether the User completed its environmental due diligence and in turn, open up the User to liability.
In summary, the User Questionnaire should always be completed in order to ensure the Phase I ESA is compliant with ASTM 1527-13.