Can a Virginia public service authority charge a fee to residents who refuse to use its trash collection service?

Plain-English summary

The Tazewell County Public Service Authority Board was thinking about starting a refuse collection and disposal service along certain routes. The Board wondered whether it could charge a "nonuser fee" to homeowners along those routes who declined the service, the way the water and sewer side of utility law often charges nonuser fees to households that stay on private wells or septic. County Attorney Eric Young asked the AG.

AG Cuccinelli said no. Section 15.2-5137 is the statute that authorizes nonuser service charges, and it lists exactly two situations: § 15.2-5137(B) for water service where the resident uses a private well, and § 15.2-5137(C) for sewer service where the resident uses a private septic system. Refuse collection is not on the list. Under the Dillon Rule, a Virginia local body has only the powers expressly granted, fairly implied, or essential to its delegated functions, and under the expressio unius canon, listing some categories implies the exclusion of unlisted ones. So the Board had no authority to charge a nonuser fee for refuse collection.

A PSA can still set rates "for the use of and for the services furnished" by the PSA (§ 15.2-5136(A)). What it cannot do is bill households that have chosen not to receive the service.

Currency note

This opinion was issued in 2010. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: Why can a PSA charge a nonuser fee for water but not refuse?
A: Because the General Assembly only said so for water and sewer. The Dillon Rule does not let local bodies extend their own statutory authority by analogy.

Q: Could a locality enact an ordinance making refuse pickup mandatory and bill everyone?
A: That is a different question, governed by separate locality powers and not addressed by this opinion. The opinion only addresses whether a PSA can charge for service that a resident has declined.

Q: What about a "standby fee" or "availability fee" for refuse collection?
A: Whatever the label, if the fee is imposed on persons who decline the service, the AG's analysis applies: the statute lists water and sewer only. A refuse-collection availability charge would face the same expressio unius problem.

Q: Does this affect existing refuse contracts?
A: It does not bind existing arrangements; AG opinions are persuasive, not binding. But a PSA that has been billing nonusers for refuse collection should look at this opinion and its enabling statute carefully.

Background and statutory framework

Chapter 51 of Title 15.2 (§§ 15.2-5100 through 15.2-5159) governs Virginia public service authorities. Section 15.2-5102(A) lets a locality create a refuse collection and disposal authority. Section 15.2-5121 lets the Board establish a refuse system. Section 15.2-5136 sets the general rate-setting authority "for the use of and for the services furnished." Section 15.2-5137 is the specific nonuser-fee provision: subsection (B) covers water; subsection (C) covers sewer. There is no subsection (D) for refuse.

The Dillon Rule cases cited (City of Richmond v. Bd. of Supvrs.; Commonwealth v. County Bd.) restate the same point: if the power cannot be found in the express grant or by necessary implication, the inquiry ends.

Citations

• Va. Code Ann. § 15.2-5137 (nonuser service charges; water and sewer only)
• Va. Code Ann. § 15.2-5136 (general PSA rate-setting authority)
• Va. Code Ann. § 15.2-5102(A) (locality authority to create refuse PSA)
• Va. Code Ann. § 15.2-5121 (refuse collection systems)
• City of Richmond v. Bd. of Supvrs., 199 Va. 679 (1958) (Dillon Rule)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2010/10-022-Young.pdf

Original opinion text

COMMONWEALTH OF VIRGINIA
Office of the Attorney General
Kenneth T. Cuccinelli, II

900 East Main Street
Richmond, Virginia 23219
804-786-2071

Attorney General

April 20, 2010

C. Eric Young, Esq.
Tazewell County Attorney
108 East Main Street
Tazewell, Virginia 24651

Dear Mr. Young,

I am responding to your request for an official advisory opinion in accordance with § 2.2-505 of the Code of Virginia.

Issue Presented

You ask whether the Tazewell County Public Service Authority Board may charge a nonuser fee to persons whose properties front the streets along a proposed refuse collection and disposal service route, and who decline the collection service.

Response

It is my opinion that the Tazewell County Public Service Authority Board may not assess a nonuser service charge to persons who decline to accept its refuse collection services.

Background

You state that the Tazewell County Public Service Authority Board ("Board") was organized pursuant to Chapter 51 of Title 15.2, §§ 15.2-5100 through 15.2-5159. You relate that pursuant to § 15.2-5121, the Board is considering the establishment of a refuse collection and disposal system within Tazewell County. The Board is seeking advice regarding whether it may charge a nonuser fee to persons whose properties front on the streets along the proposed route, but who decline to use the collection service.

Applicable Law and Discussion

Section 15.2-5102(A) authorizes the governing body of a locality to create "a refuse collection and disposal authority." Section 15.2-5136(A) authorizes a public service authority ("PSA") to establish "rates, fees and other charges … for the use of and for the services furnished or to be furnished" by a PSA. Section 15.2-5136(F) specifically authorizes the setting of rates and charges for a refuse collection system.

Virginia follows the Dillon Rule of strict construction applicable to the powers of local governing bodies, limiting such powers to those conferred expressly by law or by necessary implication from such conferred powers. The Dillon Rule provides that municipal corporations have only those powers expressly granted, those necessarily or fairly implied therefrom, and those that are essential and indispensable.[1] "[T]he Dillon Rule is applicable to determine in the first instance, from express words or by implication, whether a power exists at all. If the power cannot be found, the inquiry is at an end."[2]

Section 15.2-5137 authorizes a PSA to charge nonuser fees for particular services. Specifically, § 15.2-5137(B) authorizes a PSA to assess a "monthly nonuser service charge" to persons for whom PSA water service is available, but who use private water systems instead. Similarly, § 15.2-5137(C) authorizes a "monthly nonuser service charge" for persons to whom public sewer service is available, but who use private septic systems. I find nothing in § 15.2-5137 that specifically allows a PSA to assess a nonuser service charge to persons who decline refuse collection services or that generally allows nonuser service charges for any nonspecified services a PSA provides.

Section 15.2-5137 specifically authorizes nonuser service charges for water systems and public sewer services; however, I find no similar authority for nonuser service charges for refuse collection services.[3] Therefore, based on the applicable rules of statutory construction,[4] the Board is not authorized to assess nonuser service charges to persons who decline its refuse collection services.

Conclusion

Accordingly, it is my opinion that the Tazewell County Public Service Authority Board may not assess a nonuser service charge to persons who decline to accept its refuse collection services.

With kindest regards, I am

Very truly yours,

Kenneth T. Cuccinelli, II
Attorney General

1. City of Richmond v. Bd. of Supvrs., 199 Va. 679, 684, 101 S.E.2d 641, 645 (1958).
2. Commonwealth v. County Bd., 217 Va. 558, 575, 232 S.E.2d 30, 41 (1977).
3. When a statute creates a specific grant of authority, the authority exits only to the extent specifically granted in the statute. See 2A NORMAN J. SINGER & J.D. SHAMBIE SINGER, SUTHERLAND STATUTORY CONSTRUCTION § 47:23 (7th ed. 2007) (explaining maxim of statutory construction, "expressio unius est exclusio alterius"); Op. Va. Att'y Gen.: 2002 at 117, 118; 1992 at 145, 146; 1989 at 252, 253; 1980-1981 at 209, 209-10. Where a statute specifies certain things, the intention to exclude that which is not specified may be inferred. See id.; 1999 Op. Va. Att'y Gen. 215, 217-18.
4. See supra notes 1-3 and accompanying text.