Excel Modular Scaffold & Leasing Co. v. Occupational Safety and Health Review Commission, No. 19-60067 (5th Cir. 2019)
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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. 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. The ALJ upheld the Commission's decision declining to conduct further review, and Excel petitioned for review.
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. 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. 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.
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