dissenting.
The majority affirms the Board's determination to assess against UTC five knowing violations of the Indiana Occupational Safety and Health Act of 1972. I dissent from that determination upon my conclusion that the violations UTC committed were not "knowing".
As the majority notes, the relevant IOSHA provisions set forth three levels of violations, nonserious, serious, and knowing, but do not define the levels or explain how the levels differ from one another. Although it is undisputed that "knowing" is the most serious of the three levels, it is not entirely clear how a "knowing" violation differs from a "serious" one. It is certain, however, that the penalty for a knowing violation is more severe than that imposed for a serious violation.
The majority correctly points out that in Gary Steel, 643 N.E.2d 407, this court adopted a definition of "knowing" that does not include the element of bad motive. I am not entirely satisfied by the distinction made in Gary Steel between "serious" and "knowing". The Gary Steel court quoted with approval the following explanation from Georgia Elec. Co. v. Marshall, 595 F.2d 309, 318-19:
A "bad purpose" requirement is not necessary to preserve the distinction between [knowing] and serious violations. To prove a [knowing] violation, the Secretary must show that the employer acted voluntarily, with either intentional disregard of or plain indifference to OSHA requirements. To prove a serious violation, a quite different showing need only be made. The gravamen of a serious violation is the presence of a "substantial probability" that a particular violation could result in death or a serious physical harm.
Pursuant to this view, acting with indifference to an OSHA requirement, irrespective of the consequences to worker safety, is more serious than committing a violation when there is a substantial probability that the violation could result in death or serious bodily harm.
It is not apparent to me that, so viewed, "knowing" is more serious than "serious". In my view, bad purpose or motive is logically the element that justifies elevating a serious violation to an even more serious level, ie., knowing. Be that as it may, I conclude that the violations committed by UTC do not rise to the highest level: even under the Gary Steel standard.
In Gary Steel, the court noted that the Act does not define "knowing" but that the term "knowing" in IC § 22-8-1.1-27.1 is synonymous with the term "willful" as used in the federal OSHA regulations. The court further noted that the term "willful" has been fully developed under federal law and means "intentional disregard" or "plain indifference". Gary Steel, 643 N.E.2d at 411 (citing Frank Irey, Jr. v. Occupational Safety and Health Review Comm'n, 519 F.2d 1200 (3rd Cir.1974)). Thus, in order to support a knowing violation under Gary Steel, the Board must necessarily have found that the violation was committed with intentional disregard or plain indifference to the relevant IOSHA regulations.
It is significant that, at the time UTC committed the violations, there were no for*893mal state or federal OSHA rules pertaining to confined spaces. In fact, an IOSHA official admitted that, in the absence of OSHA rules, there were more than 140 different potential recommended industry standards and regulations available for UTC's review when it developed its own program. The rule UTC was found to having knowingly violated was not adopted until after the violation had already occurred. Therefore, there were no specific rules or regulations then in existence that UTC could have intentionally disregarded or toward which UTC could have been plainly indifferent. Rather, the citations were issued to UTC under the following general duty clause of the Act:
Each employer shall establish and maintain conditions of work which are reasonably safe and healthful for employees, and free from recognized hazards that are causing or are likely to cause death or serious physical harm to employees.
Ind.Code Ann. § 22-8-1.1-2 (West 1991).
The Board ruled that UTC committed five knowing violations concerning failure to comply with the Act in the areas of establishing procedures for a safe confined space entry program and training UTC personnel in following such procedures. The record reveals that UTC did, in fact, create and implement a written confined space entry program and that UTC employees received training concerning the proper procedures to be observed for safe entry into confined spaces. UTC also provided its employees with the equipment necessary to safely enter confined spaces. I cannot agree that these actions exhibited plain indifference and intentional disregard for its general duty to provide a safe and healthful workplace for its employees. To the contrary, after reviewing UTC's policies, procedures, and actions, I am left with the firm conviction that UTC undertook a good faith effort to comply with the provisions of the Act and that UTC's efforts in this regard were, at worst, merely inadequate.
In an analogous case arising under the federal counterpart to the Act, the court indicated that a party cannot be found to have committed a knowing violation if it demonstrates that a good-faith effort to comply with the Act was made. See Secretary of Labor v. Mobil Oil Corp., 10 OSHC 1606, 1982 WL 22378 (1982). I agree with this proposition. A good-faith effort to satisfy the general duty to provide a safe workplace, which ultimately turned out to be inadequate, cannot supply the basis for a knowing violation of the Act. This is especially so where, as here, the violation is, in reality, premised upon noncompliance with rules and regulations adopted after the complained-of actions occurred.
I would reverse the Board's decision upon my conclusion that the violations committed by UTC did not rise to the most serious level, ie., knowing, as defined in Gary Steel.