## Facts

- Dana Container, Inc. operated a facility that washed chemical tanker trailers; tanks sometimes retained chemical residue and sludge.
- Cleaning typically involved draining, mechanical washing with a rotating spinner and solvents, rinsing, and forced-air drying; employees sometimes entered tanks for manual cleaning.
- A supervisor entered a tank to address a drain/valve problem before mechanical cleaning occurred.
- The supervisor entered without a permit, without required pre-entry atmospheric testing and monitoring, and without using a mechanical retrieval device connected to his harness.
- The supervisor was overcome by toxic vapors and lost consciousness inside the tank; emergency responders rescued him.
- OSHA inspected shortly after the incident and issued citations alleging serious and willful violations of the permit-required confined space (PRCS) standard, 29 C.F.R. § 1910.146.
- An ALJ vacated certain items, finding Dana eligible for “alternate entry procedures” under § 1910.146(c)(5), but the Occupational Safety and Health Review Commission reversed and reinstated key citation items.
- Dana petitioned for judicial review of the Commission’s order.

## Issues

1. Whether Dana qualified for alternate entry procedures under 29 C.F.R. § 1910.146(c)(5), which apply only when the sole hazard is a hazardous atmosphere controllable by continuous forced-air ventilation.
2. Whether substantial evidence supported the Commission’s findings and whether its interpretation and application of the PRCS standard warranted deference on review.

## Decision

- The court denied the petition for review and affirmed the Commission’s order sustaining the cited violations and penalties.
- The court held the Commission reasonably found Dana ineligible for alternate entry procedures because tank hazards were not limited to atmospheric risks controllable solely through ventilation.
- The court held substantial evidence supported the Commission’s findings regarding the violations and their characterization as serious and, in part, willful.

## Legal Principles

- Alternate entry procedures under 29 C.F.R. § 1910.146(c)(5) are unavailable unless the employer proves (1) the only hazard is an actual or potential hazardous atmosphere and (2) continuous forced-air ventilation alone controls that hazard.
- Where residue or sludge creates additional hazards beyond air quality (including contact or engulfment-type dangers), the PRCS permit system requirements apply.
- Courts uphold Commission factfinding if supported by substantial evidence and defer to reasonable Commission interpretations of OSHA regulations.
- An employer remains responsible for implementing and enforcing confined-space protections; characterizing an incident as employee misconduct does not, by itself, defeat OSHA liability when the record supports program or enforcement deficiencies.

## Conclusion

The Seventh Circuit upheld OSHA confined-space citations against Dana because the record supported the Commission’s finding that the tanks presented hazards beyond ventilable atmospheric conditions, foreclosing the alternate-entry exception and supporting the Commission’s determinations under the substantial-evidence standard.


Dana Container, Inc. v. Sec’y of Lab., 847 F.3d 495 (7th Cir. 2017)