(dissenting). We respectfully dissent. The statutes to be interpreted herein deal with determining DEC’s jurisdiction to impose fees under the Laws of 1983 (ch 15). Their interpretation presents a question of statutory reading and, therefore, special deference need not be afforded to the agency’s interpretation in such instances (Kurcsics v Merchants Mut. Ins. Co., 49 NY2d 451, 459).
Fees for the State’s hazardous waste program are governed by ECL article 72, title 4. The statute provides that the program applies to DEC’s activities related to hazardous waste regulations under ECL article 27, titles 3, 7, 9 and 11. It is to be noted that ECL article 27, title 13, which regulates inactive hazardous waste disposal sites, is not included. It is conceded that petitioner’s site is an inactive one.
The Governor’s memorandum and legislative findings rebut the interpretation that DEC now attempts to find in the legislative history of ECL article 72, title 4 to support its imposition of fees. The omission of ECL article 27, title 13 from the hazardous waste fees speaks clearly to program legislative intention. We note that legislative findings in enacting title 13 state: "Article twenty-seven of the environmental conservation law * * * provides for the management and control of wastes now being generated and sites now being used for disposal of such wastes” (L 1979, ch 282, § 1; emphasis supplied). The Governor’s memorandum approving the bill stated: "Present state law is directed at hazardous wastes now being generated and disposed of. It does not address directly the need to identify sites no longer used” (Governor’s program memorandum, 1979 NY Legis Ann, at 185). In passing ECL 27-0918, the Legislature stated: "The legislature hereby finds and declares that all owners and operators of facilities for the treatment, storage and disposal of hazardous wastes should establish adequate financial assurances and guarantees so that sufficient funds will be available to fully pay for the costs of site closure” (L 1982, ch 855, § 1; emphasis supplied).
*242We conclude that ECL 27-0918 applies to sites currently regulated which will be closed in the near future, and ECL 27-1313 applies to sites which were never regulated when active, have been closed, and were subsequently discovered to be dangerous inactive sites. We therefore conclude that petitioner was not subject to regulation under ECL article 27, title 9, and it follows that activity at petitioner’s site does not fall under the meaning of "generator” as that term is used in ECL article 72, title 4. For the same reason, petitioner is also not required to obtain a permit for the lagoons it maintains to catch and retain leachate. Having concluded that petitioner is not subject to ECL article 27, title 9, it is not necessary to address other issues raised herein as to the implications of the settlement agreement vis-á-vis the imposition of regulatory fees. Accordingly, the judgment should be affirmed.
Mahoney, P. J., and Kane, J., concur with Levine, J.; Mikoll and Harvey, JJ., dissent and vote to affirm in an opinion by Mikoll, J.
Judgment modified, on the law, without costs, by reversing so much thereof as annulled the determination by respondent that petitioner was liable to pay an annual fee as a "generator” of hazardous waste, and, as so modified, affirmed.