dissenting.
I dissent from the Majority’s conclusion that two statutory provisions which proscribe the identical conduct, but prescribe two different penalties without drawing any distinction for when either penalty is constitutional.
Albert E. Fuchs, Parker White Metal Co.,1 Penn Iron and Metal Co., Inc., and Limco, d/b/a Liberty Iron and Metal Co. (Appellees), were all charged with the commission of third degree misdemeanors under Section 606(b) of the Solid Waste Management Act.2 Albert E. Fuchs was charged *101with dumping non-hazardous solid waste without a permit under 35 P.S. § 6018.610(1)3 and the other Appellees were charged with transporting non-hazardous solid waste to an unlicensed facility under 35 P.S. § 6018.610(6).4
Appellees filed omnibus pre-trial motions with the Honorable James B. Dwyer, President Judge of the Court of Common Pleas of Erie County, seeking to dismiss the charges against them because, inter alia, Section 606 of the Solid Waste Management Act (35 P.S. § 6018.606) is constitutionally vague. The trial court agreed with Appellees and dismissed the charges against them. The Commonwealth appealed that decision to the Commonwealth Court which, by its order of May 17, 1985, transferred the appeal to this Court pursuant to 42 Pa.C.S. § 722 which vests jurisdiction in this Court of appeals from final orders where the common pleas court holds a statute constitutionally infirm.
The Commonwealth argues, as it did before the trial court, that the provisions of § 606(a) and (b) of the Solid Waste Management Act proscribe the same conduct in two sections and provide two different punishments, leaving to the prosecutor for the Commonwealth absolute discretion to choose which penalty section should be invoked, and that depositing such discretion in the Commonwealth does not offend federal or state constitutional liberties.
*102Appellees argue, on the other hand, that any statute that proscribes identical conduct and punishes with different penalties, without distinguishing when each penalty is applicable, offends the Equal Protection and Due Process Clauses of the State and Federal Constitutions. Because I find Appellees’ arguments persuasive, I dissent from the Majority’s contrary conclusions which uphold the constitutionality of the statutory provisions sub judice.
I
The provisions with which Appellees were charged, 35 P.S. § 6018.606(b), and the preceding section, 35 P.S. § 6018.606(a), read in pertinent part:
§ 6018.606. Criminal penalties
(a) Any person, other than a municipal official exercising his official duties, or any municipality who violates any provision of this act, the rules and regulations of the department, or any order of the department, or any term or condition of any permit upon conviction thereof in a summary proceeding, shall be sentenced to pay a fine of not less than $100 and not more than $1,000 and costs and, in default of the payment of such fine and costs, to undergo imprisonment for not more than 30 days.
(b) Any person other than a municipal official exercising his official duties who violates any provision of this act, any rule or regulation of the department, any order of the department, or any term or condition of any permit, shall be guilty of a misdemeanor of the third degree and, upon conviction, shall be sentenced to pay a fine of not less than $1,000 but not more than $25,000 per day for each violation or to imprisonment for a period of not more than one year, or both.
As can be seen, both sections make any violation of the Solid Waste Management Act a crime. Violations of Section 606(a) are summary offenses and can be punished by a fine of not less than $100 and not more than $1,000 plus costs. Violations of Section 606(b) are classified as misdemeanors of the third degree and are punishable by fines of *103$1,000 to $25,000 per day for each violation or imprisonment for up to one year or both. From the very terms of the statute, it is obvious that the same conduct can be both a summary offense and a third degree misdemeanor, without distinction. The inquiry raised by such a statutory scheme is whether the legislature has the power to draft a criminal statute that treats similarly situated individuals differently for no apparent reason.
II
It is recognized that the legislature has the exclusive power to pronounce which acts are crimes, to define crimes, and to fix the punishment for all crimes. The legislature also has the sole power to classify crimes and designate the procedure at trial and after sentence. Article II, § 1, Pennsylvania Constitution; Commonwealth v. Wright, 508 Pa. 25, 494 A.2d 354 (1985); Commonwealth v. Graves, 461 Pa. 118, 334 A.2d 661 (1975); Commonwealth v. Glover, 397 Pa. 543, 156 A.2d 114 (1959); Commonwealth v. Cano, 389 Pa. 639, 133 A.2d 800 (1957); Commonwealth v. Sweeney, 281 Pa. 550, 127 A. 226 (1924); Commonwealth v. Kalck, 239 Pa. 533, 87 A. 61 (1913).
The legislative power of classification necessarily flows from the general power to enact regulations for the health, welfare and safety of the community. Harris v. State Board of Optometrical Examiners, 287 Pa. 531, 135 A. 237 (1926).
Statutory classifications, however, must conform to the provisions of the Equal Protection Clause of the Fourteenth Amendment to the Federal Constitution and our similar Article III, Section 32, constitutional guarantees. Laudenberger v. Port Authority of Allegheny County, 496 Pa. 52, 67 n. 13, 436 A.2d 147, 155 n. 13 (1981)5.
*104The classification must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation so that all persons similarly circumstanced shall be treated alike. James v. SEPTA, 505 Pa. 137, 477 A.2d 1302 (1984); Commonwealth v. Kramer, 474 Pa. 341, 378 A.2d 824 (1977); Commonwealth v. Webster, 462 Pa. 125, 337 A.2d 914 (1975); Moyer v. Phillips, 462 Pa. 395, 341 A.2d 441 (1975); Baltimore & Ohio R. Co. v. Commonwealth, Dept. of Labor and Industry, 461 Pa. 68, 334 A.2d 636 (1975); Reed v. Reed, 404 U.S. 71, 76, 92 S.Ct. 251, 254, 30 L.Ed.2d 225 (1971) quoting Royster Guano Co. v. Virginia, 253 U.S. 412, 415, 40 S.Ct. 560, 64 L.Ed. 989 (1920); Harris v. State Board of Optometrical Examiners, 287 Pa. 531, 135 A. 237 (1926); Commonwealth v. Sweeney, 281 Pa. 551, 127 A. 226 (1924).
Under a typical fourteenth amendment analysis of governmental classifications, there are three different types of classifications calling for three different standards of judicial review. The first type — classifications implicating neither suspect classes nor fundamental rights — will be sustained if it meets a “rational basis” test. Singer v. Sheppard, [464 Pa. 387, 346 A.2d 897 (1975)], (citation omitted). In the second type of cases, where a suspect classification has been made or a fundamental right has been burdened, another standard of review is applied: that of strict scrutiny. San Antonio School District v. Rodriguez, 411 U.S. 1, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973). Finally, in the third type of cases, if “important,” though not fundamental rights are affected by the classification, or if “sensitive” classifications have been made, the United States Supreme Court has employed what may be called an intermediate standard of review, or a height*105ened standard of review. U.S. Dept. of Agriculture v. Murry, 413 U.S. 508, 93 S.Ct. 2832, 37 L.Ed.2d 767, 775 (1973) (concurring opinion of Mr. Justice Marshall), citing Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972). There are, in summary, three standards of review applicable to an equal protection case, and the applicability of one rather than another will depend upon the type of right which is affected by the classification. James [505 Pa.] at 145, 477 A.2d at 1305-1306.
First, I disagree with the Majority’s conclusion that Sections 606(a) and 606(b) do not create any classifications (Majority Opinion, 84). Quite to the contrary, both sections classify conduct and then unequally impose burdens for violations of that conduct. No party alleges that Appellees have been denied a fundamental or important right and, therefore, I would review this statute under the rational basis test which requires the sustaining of the classification unless it is patently arbitrary and bears no rational relationship to a legitimate government interest. Frontiero v. Richardson, 411 U.S. 677, 683, 93 S.Ct. 1764, 1768, 36 L.Ed.2d 583 (1973); James; Singer v. Sheppard, 464 Pa. 387, 402, 346 A.2d 897, 904-905 (1975).
Ill
Applying the “rational basis” test, my review reveals that this statutory classification is both patently arbitrary and bears no rational relationship to a legitimate government interest.
Where the legislature considers an offense created of a petty nature or of a lesser gravity than an indictable offense, it exercises a legitimate government interest in providing that the act be prosecuted as a summary proceeding. Similarly, where the legislature indicates its intent that an offense is of a greater nature or harm to society, it may provide that the act shall be prosecuted as a misdemeanor or felony. The statutory classifications under consideration here, however, do not relate to the government *106interest of defining and classifying crimes because the legislature indicates that the same conduct can be of a petty nature and, at the same time, be of a greater severity. This is not legal classification, it is legal chaos. (See, Bell v. Alaska, 598 P.2d 908 (Alaska, 1979)).
On its face, Sections 606(a) and (b) treat persons within the same defined classification unequally for no rational reason. The same identical conduct, under the same circumstances, may constitute a summary offense when committed by one-person and a misdemeanor when committed by another. Strictly speaking, the statute categorizes punishments, but does not delineate the circumstance to which the diverse punishments are to be applied. Such unequal punishments for the identical conduct is patently arbitrary because the punishment clauses, being different, are irreconcilable and create a standardness application.6
By prescribing different penalties for the identical conduct, the accused is irrationally discriminated against because no even-handed application of the law by law enforcement officials, prosecutors or the courts can be assured in the adjudicatory and sentencing processes.
The statutory scheme also violates the purpose sections of § 104(3), (4) and (5) of our Crimes Code, which are applicable when reviewing all criminal statutory proscriptions (18 Pa.C.S. § 107(a)), and which the Majority conveniently has ignored.
Among the purposes of all criminal legislation is: 1) to safeguard offenders against excessive, disproportionate or arbitrary punishment (18 Pa.C.S. § 104(3)); 2) to give fair warning of the nature of the conduct declared to constitute an offense and of the sentences that may be imposed on *107conviction of an offense (18 Pa.C.S. § 104(4)); and 3) to differentiate on reasonable grounds between serious and minor offenses, and to differentiate among offenders with a view to a just individualization of their treatment (18 Pa. C.S. § 104(5)).
By imposing different penalties for the same conduct, a safeguard against excessive, disproportionate or arbitrary punishment, is not provided for because similarly situated offenders are not guaranteed like treatment by the law.
Secondly, because the same conduct is classified as two offenses with two vastly different punishment schemes, fair warning is not given to offenders of the nature of the conduct declared to be an offense. It is impossible to know before being charged whether the act committed will be a misdemeanor or summary offense. Thirdly, no differentiation is made on any grounds between the classifications created by the legislation and, consequently, serious and minor offenses are not distinguished and offenders cannot be assured of just individualization of treatment by the courts.
Since the classifications of 35 Pa. 6018.606(a) and (b) have no reasonable relationship to the persons involved or the public purpose to be achieved, I find them to be arbitrary and would not let them stand.
I find inappropriate to a disposition of the issues raised by this case the Majority’s gratuitous comments concerning its perceived roles as one of the trustees of the public estate (Majority Opinion, pp. 82, 82-88, 96-107). As I see the matter, our duty in this case has little to do with the court’s conservation and maintenance of clean Commonwealth streams, but has everything to do with ascertaining whether legislative enactments are being drawn in such a manner as to protect all the rights guaranteed all the people of the Commonwealth by our Bill of Rights.
I also find the Majority’s heavy reliance on United States v. Batchelder, 442 U.S. 114, 99 S.Ct. 2198, 60 L.Ed.2d 755 (1979), to be misplaced. That case concerned two over*108lapping provisions of the Omnibus Crime Control and Safe Streets Act of 1968. The United States Supreme Court held that the provisions in question “unambiguously specified] the activity proscribed and the penalties available upon conviction.” 442 U.S. at 123, 99 S.Ct. at 2204, 60 L.Ed.2d at 764. The Court held that Congress intended to enact two independent gun control statutes, each fully enforceable on its own terms.
Conversely, our legislature, in one statute, has designated that a single violation of one statute can be two crimes. On this basis alone, Batchelder is inapplicable. There is no designation as to what conduct will bring an actor under the minimal penalty of Section 606(a) or the more stringent provisions of Section 606(b).
There is cited by the Majority dictum from Batchelder that theorizes that:
Although the statutes create uncertainty as to which crime may be charged and therefore what penalties may be imposed, they do so to no greater extent than would a single statute authorizing various alternative punishments. So long as overlapping criminal provisions clearly define the conduct prohibited and the punishment authorized, the notice requirements of the Due Process Clause are satisfied.
442 U.S. at 123, 99 S.Ct. at 2204,
The Majority cites this dictum to support its conclusion that due process requirements are satisfied in the case sub judice where the statute under review “unambiguously” identifies the conduct proscribed and the range of penalties available upon conviction.
The requirement for clearly defined criminal provisions is not satisfied by declaring that any violation of any section of a complicated multi-chaptered statute is a crime which can be prosecuted as either a summary offense or misdemeanor. Nor is such sloppy legislative drafting justified to me under the Majority’s rationale that the legislature could in no clearer way arm our enforcement officers against the threat of pollution and environmental catastrophe that has *109accompanied man’s “progress toward a highly mechanized, industrial and disposable society” (Majority Opinion, p. 96).
Our holding in Commonwealth v. Heinbaugh, 467 Pa. 1, 5, 354 A.2d 244, 246 (1977), is particularly instructive here:
That ... the terms of a penal statute creating a new offense must be sufficiently implicit to inform those who are subject to it what conduct on their part will render them liable to its penalties, is a well recognized requirement, consonant alike with ordinary notions of fair play and the settled rules of law. And a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process.
Quoting Connolly v. General Construction Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 332, 328 (1926).
I also cannot agree with the Majority in its conclusion that “it would be unreasonable to expect the legislature to have been able to identify every imaginable type of solid waste disposal and assign a carefully calebrated penalty to each” (p. 90). Somehow, our legislature enacted a comprehensive Crimes Code, Liquor Code, and Motor Vehicle Code and in each Code took great care to distinguish between minor and serious violations of the public peace and to assign carefully tailored penalties for each violation. I expect no less from our legislature in dealing with polluters of our public resources and dissent from the Majority’s contrary conclusion.
I also find unpersuasive the Majority’s arguments that a duplicative statute that provides for two penalties for the same conduct merely transfers to the prosecutor the decision of whether the offense should be prosecuted as a misdemeanor or a summary offense, and that such a delegation of discretion is constitutionally permissible. The decision to charge and prosecute an individual is certainly within the prosecutor’s discretion. In the way these sections are drafted, however, the district attorney is permitted to pre-determine the penalty applicable by charging under *110Section 606(a) or 606(b).7 In chosing to prosecute under either of those sections, he must weigh the severity of the actions and charges against the individual and determine whether, to his mind, the alleged violations are petty, minor or serious. Only the legislature has the constitutional power to specify and define the offense and prescribe the procedure of prosecution to be utilized, because only the legislature can weigh the severity of the offense. That is a legislative judgment with which the executive and judiciary are powerless to interfere.
The conclusion reached here can also be distinguished from Commonwealth v. Wright, 508 Pa. 25, 494 A.2d 354 (1985), where this Court concluded that the mandatory minimum sentencing guidelines of 42 Pa.C.S. § 9712 8 do *111not violate the separation of powers principle by vesting discretion in the prosecutor to invoke the mandatory sentencing procedure. In Wright, the Court reviewed a sentencing scheme where, upon conviction of certain clearly delineated first and second degree felonies, the prosecutor could elect to have the defendant sentenced to a minimum five-year term of imprisonment. The minimum penalty provision can only be invoked if the defendant is convicted of specified crimes while visibly in possession of a firearm.
The five-year minimum sentencing provision did not vest unauthorized discretion in the prosecutor, especially since: 1) the provision can only be invoked if the defendant is convicted of specifically enumerated felonies; 2) the maximum penalties for the applicable first and second degree felonies range from ten to twenty years, well over the prescribed minimum; and 3) the provision can only be invoked under the specific aggravating circumstance of committing the crime while brandishing a weapon and is applied under a controlled review scheme. The trial court is given discretion on whether Section 9712 is applicable, the Commonwealth and the defendant may submit evidence in favor or against the imposition of the minimum penalty and the court’s decision is reviewable.
In contrast, none of these safeguards against arbitrary applications are present in this statutory scheme. There is *112no special criterion which separates the applicability of § 606(a) from § 606(b); no review mechanism is afforded to determine whether § 606(a) or (b) is properly imposed and the range of imposable penalties depends only on whether the prosecutor decides to prosecute the matter as a summary offense or misdemeanor and not on whether some aggravating circumstance statutorily prescribed is present.
For all of the above reasons, I conclude that 35 P.S. § 6018.606(a) and (b) treat similarly situated individuals unequally for no reason, and that, consequently, these provisions are unconstitutionally infirm. Accordingly, I would affirm the Order of the Court of Common Pleas of Erie County.
NIX, C.J., joins this dissenting opinion.. Appellee Parker White Metal Co. has applied for a discontinuance of its appeal in this matter as to it.
. Act of July 7, P.L. 1980, No. 97, § 101, et seq., 35 P.S. § 6018.101, et seq.
. 35 P.S. § 6018.610(1) provides:
It shall be unlawful for any person or municipality to:
(1) Dump or deposit, or permit the dumping or depositing, of any solid waste onto the surface of the ground or underground or into the waters of the Commonwealth, by any means, unless a permit for the dumping of such solid wastes has been obtained from the department; provided, the Environmental Quality Board may by regulation exempt certain activities associated with normal farming operations as defined by this Act from such permit requirements.
. 35 P.S. § 6018.610(6) provides that it is illegal to:
(6) Transport or permit the transportation of any solid waste to any storage, treatment, processing or disposal facility or area unless such facility or area possesses a permit issued by the department to accept such wastes, or contrary to the rules or regulations adopted under this act, or orders of the department, or in such a manner as to adversely affect or endanger the public health, safety and welfare or environment through which such transportation occurs.
. The Federal Equal Protection Clause of the Fourteenth Amendment to the Constitution, in pertinent part, provides:
No state shall ... deprive any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Article III, Section 32, of the Pennsylvania Constitution provides: *104The General Assembly shall pass no local or special law in any case which has been or can be provided for by general law.
These sections have been construed to be in purpose and meaning sufficiently similar to warrant like treatment. Laudenberger; Baltimore & Ohio R. Co. v. Comm. Dept. of Labor and Industry, 461 Pa. 68, 334 A.2d 636 (1975); Moyer v. Phillips, 462 Pa. 395, 341 A.2d 441 (1975); Kroger Co. v. O’Hara Twp., 481 Pa. 101, 392 A.2d 266 (1978).
. Similar logic has been applied by our sister states when considering multiple penalty legislation for the same act. State v. Chavez, 77 N.M. 79, 419 P.2d 456 (1966); Spillers v. State, 84 Nev. 23, 436 P.2d 18 (1968); State v. Shondel, 22 Utah 2d. 343, 453 P.2d 146 (1969); State v. Rentfrow, 552 P.2d 202, 15 Wash.App. 837, 552 P.2d 202 (1976); Bell v. State, 598 P.2d 908 (1979) Alaska; Palmore v. U.S., 290 A.2d 573 (1972) (DC Appeal); State v. Modica, 58 Hawaii 249, 567 P.2d 420 (1977); People v. Marcy, 628 P.2d 69 (1981 Colorado).
. See p. 93 of the Majority Opinion where it is assumed that the sentencing authority somehow can sentence an offender prosecuted under one section, say 606(a), using the provisions of 606(b), or vice versa. There is no support for this proposition under a reading of the statute, but there was such an assumption in the statutes involved in Batchelder which is another reason why I find Batchelder inapposite to this case.
. Section 9712 entitled "Sentences for offenses committed with firearms," provides as follows:
(a) Mandatory sentence. — Any person who is convicted in any court of this Commonwealth of murder of the third degree, voluntary manslaughter, rape, involuntary deviate sexual intercourse, robbery as defined in 18 Pa.C.S. § 3701(a)(l)(i), (ii) or (iii) (relating to aggravated assault) or kidnapping, or who is convicted of attempt to commit any of these crimes, shall, if the person visibly possessed a firearm during the commission of the offense, be sentenced to a minimum sentence of at least five years of total confinement notwithstanding any other provisions of this title or other statute to the contrary.
(b) Proof of sentencing. — Provisions of this section shall not be an element of the crime and notice thereof to the defendant shall not be required prior to conviction, but reasonable notice of the Commonwealth’s intention to proceed under this section shall be provided after conviction and before sentencing. The applicability of this section shall be determined at sentencing. The court shall consider any evidence presented at trial and shall afford the Commonwealth and the defendant an opportunity to present any necessary additional evidence and shall determine, by a preponderance of the evidence, if this section is applicable.
(c) Authority of court in sentencing. — There shall be no authority in any court to impose on an offender to which this section is applicable any lesser sentence than provided for in subsection (a) or *111to place such offender on probation or to suspend sentence. Nothing in this section shall prevent the sentencing court from imposing a sentence greater than that provided in this section. Sentencing guidelines promulgated by the Pennsylvania Commission on Sentencing shall not supersede the mandatory sentences provided in this section.
(d) Appeal by Commonwealth. — If a sentencing court refused to apply this section where applicable, the Commonwealth shall have the right to appellate review of the action of the sentencing court. The appellate court shall vacate the sentence and remand the case to the sentencing court for imposition of a sentence in accordance with this section if it finds that the sentence was imposed in violation of this section.
(e) Definition of firearm. — As used in this section "firearm” means any weapon (including a starter gun) which will or is designed to or may readily be converted to expel a projectile by the action of an explosive or the expansion of gas therein. 42 Pa.C.S. § 9712.