Dana Container, Inc. v. Secretary of Labor, No. 16-1087 (7th Cir. 2017)Annotate this Case
Dana operates a Summit, Illinois truck‐tank washing facility. Dana employees drain residual product from the truck’s metal tank; insert a mechanical spinner that rotates scrubbers, dousing it with soap or solvents; then rinse the tank with water. Occasionally, employees have to enter a tank and manually clean residual sludge. OSHA has regulations for entering these “permit‐required conﬁned spaces (PRCSs),” 29 C.F.R. 1910.146: the employee must obtain an entry permit and checklist of required safety precautions; must hook a full‐body harness to a mechanical retrieval device that can pull him out of the tank; must test the tank air; and must wear a respirator and conduct continuous atmospheric testing. While an employee is in the tank, automatic blowers force fresh air into it. Another employee must be on standby. Employees may not enter a tank before it has been mechanically cleaned. Fox encountered a problem with a tank before beginning the mechanical cleaning. He entered the tank without attaching the retrieval device or following permit procedures. After a short time, another employee saw Fox unconscious in the chemical sludge and called the fire department. A TV news crew broadcast the rescue. An OSHA inspector saw it; she arrived at the facility within three hours of the accident, inspected and issued citations for serious and willful violations of the Occupational Safety and Health Act. An ALJ vacated some of the citation items, finding that Dana qualiﬁed for the less stringent “alternate entry procedures.” The Commission held that Dana was not eligible for the alternate entry procedures and reinstated the citation items. The Seventh Circuit rejected a petition for review. Dana did not provide a compelling reason to overturn the Commission’s determinations.