![]() ![]() HIGGINSON, Circuit Judge: On September 12, 2016, an employee of Excel Modular Scaffold & Leasing Company (“Excel”) was killed when a scaffold he was constructing collapsed into Galveston Bay in Texas City, Texas. DEPARTMENT OF LABOR, Respondents Petition for Review of an Order of the Occupational Safety and Health Review Commission Before WIENER, HIGGINSON, and HO, Circuit Judges. ![]() OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION EUGENE SCALIA, SECRETARY, U.S. Cayce Clerk EXCEL MODULAR SCAFFOLD & LEASING COMPANY, doing business as Excel Scaffold & Leasing, Petitioner v. Finally, the court held that the ALJ's conclusion that the absence of a skiff exposed Excel's employees to a substantial probability of death or serious injury was amply supported by the record.Ĭase: 19-60067 Document: 00515214651 Page: 1 Date Filed: IN THE UNITED STATES COURT OF APPEALS Court of Appeals FOR THE FIFTH CIRCUIT United States Fifth Circuit FILED No. Even if Excel had not abandoned its infeasibility defense, Excel had not met its burden of proving that it was entitled to the defense on the merits. The Fifth Circuit denied Excel's petition for review, holding that Excel repeatedly failed to preserve the affirmative defense of infeasibility, and the ALJ did not abuse its discretion by determining that it would have been prejudicial to the Secretary to allow Excel to pursue its infeasibility defense. The ALJ upheld the Commission's decision declining to conduct further review, and Excel petitioned for review. Excel contested the issuance of the citation charging the company with a serious violation of a regulation which required Excel to ensure the presence of a "lifesaving skiff" at all jobsites where employees were required to work over water. After an employee of Excel was killed when a scaffold he was constructing collapsed into Galveston Bay, OSHA conducted an investigation into the incident and issued Excel a number of safety citations. ![]()
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