New Mexico forbids anyone to construct, install or modify an on-site liquid waste system
without a contractor’s license in an appropriate classification, issued by the state. The
prohibition lives in the Environmental Improvement Board’s liquid waste rule rather than in
the licensing act — it opens “No person shall construct, install or modify an on-site liquid
waste system” — while the license it demands is issued by the construction industries
division of the state’s regulation and licensing department. The classification written for
this trade is a mechanical specialty for septic tanks and sewer; the plumbing classification
and the combined mechanical classification reach the same work. A contractor who reads only
the licensing rules, or only the environmental ones, comes away with half of that.
That duty does not reach every person who puts a system in the ground, and the rule says
precisely whom it releases, in a clause of the same sentence: “except that a qualified
homeowner may install or modify permitted septic tanks and conventional trench or bed disposal
fields.” A qualified homeowner is a defined and examined person — the rule “means a person who
is the owner residing at the property who has been provided homeowner installation training
materials and who has passed an exam administered by the department” — and the release is
bounded four more times after that. It runs to that person’s own personal residence; a
qualified homeowner “shall not install or modify an on-site liquid waste system serving a
rental unit”; the qualification is valid for a year unless the department extends it for good
cause; and “A qualified homeowner may install no more than one liquid waste system during a
twelve month period.” So it is not a general homeowner exemption, and it is not a way round
the license for anyone working for hire: a qualified homeowner who self-installs “shall not
compensate any person to perform any phase of the system construction” unless that person
holds the license.
The credential is two documents, which a sole operator should read twice. The license is
issued to the business entity, and that entity has to employ or be owned by a natural person
the division has certified as its qualifying party for the classification; the license grants
“only the authority to engage in contracting in the classification specified on the license
issued to the entity, and on the certificate issued to its qualifying party”. One person
trading alone holds both, and an entity that ceases to be qualified by a certified qualifying
party loses the license. Initial licensure and every renewal also turn on a bond
“underwritten by a corporate surety authorized to transact business in New Mexico”, and
“Maintaining the bond for the entire period of licensure is a condition of licensure.” Read
that bond for what it is. It is not liability insurance and it does not answer to an injured
third party: payment from it “shall be used to cure division certified code violations caused
and not corrected by the licensee”.
The license and the per-system permit are separate instruments. A system is permitted job by job, on an application that goes “to the field
office of the department having jurisdiction for the area where the system is to be installed
or modified”, so a business working both ends of the state files with more than one office
under one statewide rule. Nobody may operate or use the system before the department grants
final approval, which makes a misfiled permit a work stoppage rather than paperwork.
A voluntary certification changes how the inspection step runs: the state environment
department certifies installer specialists, and where a specialist has given the required
notice and the department’s inspector has not arrived within an hour of the notified time, the
specialist photographs the components, completes a departmental inspection form and may
complete the installation. One county — Bernalillo — runs its own onsite wastewater ordinance,
on the department’s own statement, and it runs only in the unincorporated part of that county;
the incorporated municipalities inside it are regulated by the department. Even there the
installer’s own credential does not change, because no county issues it.
A property transfer brings a compulsory evaluation, and New Mexico issues no license for the
evaluator. The duty attaches to the transaction rather than to the system: before a property
with an established on-site liquid waste system is transferred, “the transferor of the property
shall have the system evaluated”, by an evaluator qualified under the rule. Six routes lead to
that qualification, and the rule names each one. One is “a valid and appropriate classification
of licensure by the construction industries division of the regulation and licensing
department”. Another is “licensure as a professional engineer”. A third is “accreditation in
on-site wastewater inspection by the national sanitation foundation (NSF)”. A fourth is
“certification by the national environmental health association (NEHA) as an installer of
on-site wastewater treatment systems”. A fifth is “certification as a registered environmental
health specialist (REHS) or a registered sanitarian (RS)”. The last is “demonstration of a
similar accreditation or certification or a combination of training and experience as approved
by the department”. Three of those are private accreditations the rule adopts by reference, and none
of them is a New Mexico body. So the role is compulsory while the state licenses no inspector,
and the license that is required to install is merely one of six ways to qualify to evaluate. Advanced treatment
systems are carved out of all six and left to maintenance service providers.
What attaches to the evaluation report is a filing duty and a fifteen-day clock. Every evaluation goes
to the department within fifteen days, and the rule is emphatic that an abandoned or unwelcome
one goes as well: “Once an evaluation is requested, all results, whether complete or not,
shall be submitted to the department.” Where the evaluation identifies a deficiency, a permit
or variance application follows within fifteen days from whoever owns the property on the
fifteenth day — so an evaluator’s report is a document with a deadline attached to it.
One more New Mexico rule closes a loop most states leave open. The compensation Act reaches
employers by a worker count in general, and then applies to every employer whose activities
the Construction Industries Licensing Act requires to be licensed, in words set out in full
below — “regardless of the number of employees”. A septic contractor here is exactly
that employer, because the environmental rule forbids the work without the license, so the
duty starts at the first worker rather than at a headcount. Failing to comply with
compensation law is also among the events that can make the license itself invalid, which
means the cover and the right to work are not two separate compliance items.
The sections below set out each finding beside the authority it rests on, so none of it has to be taken on
our word.
