In regard to the Environmental Protection Agency’s Renovation, Repair and Painting (RRP) rule, what should a contractor do about ceramic tile and enamel surfaces? It is nearly impossible to remove a gutter, sink, tub liner, shower pan, or bathtub without “disturbing” the surface of the component for purposes of lead paint dust. Don’t look for guidance in your lead paint test kit instructions: These kits are unable to test ceramic or enamel surfaces.

In Title X and the EPA’s implementing regulations, the term “lead-based paint” means paint or other surface coatings that contain lead in excess of 1.0 milligrams per centimeter squared or 0.5% by weight.

Unfortunately, the EPA’s definition of “surface coating” seems to depend on the day.

“Glaze” and “enamel” don’t even appear in the regulations governing contractor renovations. The commentary in the law suggests the rules apply to “tile contractors,” but the law never says exactly how or why.

Questions Remain

For contractors willing to consider a more aggressive stance with the EPA, we have advised that neither the glaze on ceramic tile nor the enameled metal in older gutters technically triggers the requirements in the law and should not, if tested in court, be considered part of the otherwise undefined term “surface coatings.”

Indeed, in the EPA’s informal Internet lead paint Q&A, the agency recently appeared to support such a position, writing that ceramic tile glaze is not subject to the RRP rule. But this is not a binding legal statement and still leaves a client open to possible attack from the EPA and from the customer.

—D.S. Berenson is the Washington, D.C., managing partner of Johanson Berenson LLP, specializing in the home improvement industry. [email protected].

This article is for informational purposes only and should not be construed as legal advice.