Can the private operator of the Midtown and Downtown Elizabeth River Tunnels add extra processing and administrative fees on top of the toll just to make more money?

Plain-English summary

The Elizabeth River Tunnels (Midtown and Downtown) in Hampton Roads are operated by a private company, Elizabeth River Crossings, under a 58-year concession from the state. They're electronic-only, meaning no toll booths: cars with EZ-Pass transponders get charged automatically, and cars without one get billed after the system reads their license plate.

By 2015, drivers were complaining about the size of the processing and administrative fees being added to unpaid-toll invoices. A toll that started at a few dollars could balloon to $100+ once fees were stacked on. Senator Kenneth Alexander asked the Attorney General whether the operator could legally use these fees as a revenue stream, not just as cost recovery.

Attorney General Herring's answer was a clean no. Section 46.2-819.3:1 authorizes two specific types of fees:

1. A processing fee, to cover "the direct cost of use of and processing for a video-monitoring system and to cover the cost of the invoice." Capped at double the base toll.

2. An administrative fee (added if the invoice isn't paid in 30 days), capped at $25 if paid within 30-61 days, or $100 if paid later. The legislature said this fee must be "reasonably related to the actual cost of collecting the unpaid toll."

Both fee types are tied by statute to specific costs. Herring applied the canon "mention of a specific item in a statute implies that omitted items were not intended to be included," and concluded that general revenue recovery is not on the list of permitted purposes. Therefore the operator may not use these fees to pad its bottom line.

Herring was careful about what he didn't decide. He didn't pass judgment on whether any specific fee then being charged was actually reasonable in relation to the underlying costs. That would require a fact-specific inquiry. He also offered no comment on whether the policy itself made sense; the General Assembly set the framework, and his role was to interpret it.

Currency note

This opinion was issued in 2015. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Virginia's toll-collection statutes and consumer-protection regimes have been amended repeatedly in the years since, and litigation between drivers and ERC produced significant rulings about fee reasonableness. Verify current law before relying on any specific rule or remedy mentioned here.

Common questions

Did the AG say drivers could get refunds for past fees?

No. The opinion was an interpretation of the statute, not an enforcement order. It didn't address remedies or refunds, and Herring explicitly declined to comment on whether any specific fees actually charged exceeded what the statute authorized.

What's the difference between a "processing fee" and an "administrative fee"?

The processing fee was for actually identifying and billing the driver (the video-monitoring system and the invoice). It's added automatically when the driver gets the bill. The administrative fee is added later if the driver doesn't pay the bill within 30 days, and is supposed to cover the cost of chasing them down.

What were the legal caps?

Processing fee: double the base toll, at most.
Administrative fee: $25 if paid within 31-61 days; $100 if paid later. Per violation.

Could ERC just raise the base toll to make more money?

That's outside the scope of this opinion. The opinion only addressed processing and administrative fees, not the base toll itself.

What happens if a driver disputes the fee?

The invoice has to inform drivers of available statutory defenses and provide a form to contest liability (per § 46.2-819.6). Beyond that, drivers may have remedies in court if a fee is unreasonably high relative to the actual costs the statute authorizes.

Background and statutory framework

The Midtown and Downtown Tunnels operate under § 46.2-819, which makes it unlawful to "use a toll facility without payment of the specified toll." When a driver without an EZ-Pass or alternate account goes through, the operator must identify the vehicle's owner from license plate data, mail an invoice, and follow the procedure in § 46.2-819.6.

Section 46.2-819.3:1, enacted in 2010, is the key statute. It authorizes electronic-only toll facilities with video-monitoring systems to charge two specific fees:

1. Processing fees, levied for "the direct cost of use of and processing for a video-monitoring system and to cover the cost of the invoice." Capped at double the base toll. Conspicuous warning signage must be posted.

2. Administrative fees, added when the driver fails to pay within 30 days. The General Assembly expressly said these fees are "to recover the expenses of collecting the unpaid toll" and must be "reasonably related to the actual cost of collecting the unpaid toll." Cap of $25 if paid 31-61 days late, $100 if later.

A driver's total exposure for a single unpaid toll could reach the base toll plus a doubled processing fee plus a $100 administrative fee. The AG's interpretation matters because if either fee were used for general revenue, the cap would mean nothing in practice (the operator could just keep raising the base toll and the fees would track upward).

Herring's statutory interpretation rested on the established Virginia canon that "when a statute creates a specific grant of authority, the authority exists only to the extent specifically granted in the statute" (2010 Op. Va. Att'y Gen. 10; Turner v. Wexler, 244 Va. 124, 127).

Citations

• Va. Code Ann. § 2.2-505 (AG advisory opinions)
• Va. Code Ann. § 33.2-503 (HOT lanes)
• Va. Code Ann. § 46.2-819 (unlawful to use toll facility without payment)
• Va. Code Ann. § 46.2-819.1 (photo-monitoring system)
• Va. Code Ann. § 46.2-819.3 (electronic toll collection)
• Va. Code Ann. § 46.2-819.3:1 (video-monitoring, processing and administrative fees)
• Va. Code Ann. § 46.2-819.6 (invoice requirements and driver defenses)
• 2010 Va. Acts ch. 839 (enabling legislation)
• Davenport v. Little-Bowser, 269 Va. 546 (2005)
• Turner v. Wexler, 244 Va. 124 (1992)
• 2010 Op. Va. Att'y Gen. 10

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2015/Alexander_14-086.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

COMMONWEALTH of VIRGINIA
Office of the Attorney General
Mark R. Herring
Attorney General

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

July 9, 2015

Honorable Kenneth C. Alexander
Member, Senate of Virginia
120 West Berkley Avenue
Norfolk, Virginia 23523

Dear Senator Alexander:

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 operator of the toll facilities at the Midtown and Downtown Tunnels crossing the Elizabeth River may impose processing and administrative fees on drivers to recover general revenue.

Applicable Law and Discussion

The toll facilities at the Midtown and Downtown Tunnels in Hampton Roads are operated by Elizabeth River Crossings, a private corporation that holds a concession to operate and maintain the tunnels for a period of 58 years. These facilities are "electronic-only," meaning they lack traditional toll booths where a driver can stop to make manual payment and instead provide a "drive-through" system that automatically debits a driver's account after detecting an EZ-Pass transponder mounted inside his vehicle. If a driver proceeds through one of the facilities without a transponder, or without having made other payment arrangements, the toll is unpaid.

In order to collect the unpaid toll, the toll facility operator must identify and locate the vehicle's registered owner using license plate information captured by the facility's video monitoring system. The operator then mails an invoice to the individual. By law, the invoice must contain the following information: (i) the name and address of the registered owner; (ii) the registration number of the vehicle or information obtained from an automatic vehicle identification system; (iii) the location of the violation; (iv) the date and time of the violation; (v) the amount of the toll not paid; (vi) the amount of the administrative fee; (vii) the date by which the toll and administrative fee must be paid; (viii) available statutory defenses; (ix) a warning describing the penalties for nonpayment; and (x) a form for the driver to contest liability.

Pursuant to legislation passed by the General Assembly in 2010 and codified at § 46.2-819.3:1, the operator of an electronic-only tolling facility equipped with a video-monitoring system may include processing fees in an invoice. Specifically, the statute provides that the operator "may levy charges for the direct cost of use of and processing for a video-monitoring system and to cover the cost of the invoice, which are in addition to the toll and may not exceed double the amount of the base toll . . . ." As the plain language of the statute indicates, the processing fee, which may not exceed double the base toll, is levied to cover the direct costs of using the video-monitoring system and preparing the invoice. Thus, the legislature has effectively excluded other purposes, including general revenue recovery, as permissible bases for the fee.

If a driver does not pay the invoice within 30 days, he incurs a toll violation. At this point, § 46.2-819.3:1 authorizes the toll facility operator to charge the driver an administrative fee. If the driver pays the invoice within 30 days after incurring the toll violation, the amount of the administrative fee shall not exceed $25 per violation. Otherwise, the amount of the fee shall not exceed $100 per violation. Any administrative fee charged is in addition to the amount of the base toll and processing fee. Thus, to summarize, a driver will owe (i) the amount of the base toll plus processing fee if paying within 30 days after receiving an invoice, (ii) the amount of the base toll, processing fee, and an administrative fee of up to $25 if paying within 31 to 61 days after receiving an invoice; and (iii) the amount of the base toll, processing fee, and an administrative fee of up to $100 if paying more than 61 days after receiving an invoice.

The General Assembly has specifically stated that the purpose of the administrative fee is "to recover the expenses of collecting the unpaid toll" and that the amount of the fee must "be reasonably related to the actual cost of collecting the unpaid toll." By providing that the administrative fee, like the processing fee, may be levied only for recovery of certain expenses incurred by the toll facility operator, the legislature has effectively excluded other purposes for imposition of the fee, including general revenue recovery.

Conclusion

Accordingly, it is my opinion that the operator of the toll facilities at the Midtown and Downtown Elizabeth River Tunnels may not impose processing and administrative fees on drivers for the purpose of general revenue recovery. The operator may, however, impose processing fees to recover the direct costs of use of a video-monitoring system and the cost of the invoice, and under the conditions set forth in § 46.2-819.3:1, may impose administrative fees to recover the expenses of collecting the unpaid toll.

This Opinion does not address the legitimacy of any particular fees billed to any individual, nor does it opine on whether the current amounts of processing and administrative fees charged by the operator are reasonably related to expenses incurred. Furthermore, I offer no comment as to the wisdom of the policy embodied in current law. It is within authority of the General Assembly to set the procedure governing the collection of processing and administrative fees as it has done in § 46.2-819.3:1.

With kindest regards, I am

Very truly yours,

Mark R. Herring
Attorney General