In drafting the Act, Congress did not wish to include every  person whose employment has required the worker to have significant exposure to coal dust. Johnson v. Weinberger, 389 F.Supp. 1296 (S.D. W.Va. 1974). Rather, Congress included only those individuals who work or have worked in or around a coal mine or coal preparation facility in the extraction or preparation of coal. See 30 U.S.C. �2(d). In addition, Congress included individuals who work or have worked in coal mine construction or transportation in or around a coal mine, to the extent such individuals were exposed to coal dust as a result of such employment. Id. In William Brothers, Inc. v. Pate, 833 F.2d 261, 10 BLR 2-333 (11th Cir. 1987), the court held that coal dust and coal mine dust are the same; i.e., dust arising from the extraction and preparation of coal. The court nonetheless rejected the Director's contention that "coal mine dust" encompassed any dust found at a coal mine site and distinguished Williamson Shaft Contracting Co. v. Phillips, 794 F.2d 865 (3d Cir. 1986). Similarly, in reversing the Board's affirmance of an ALJ's finding that an employer qualified as the responsible operator, the court held in Bridger Coal Co. v. Director, OWCP, 927 F.2d 1150, 15 BLR 2-47 (10th Cir. 1991) that the putative miner, a construction worker, was not regularly exposed to coal mine dust as required by Section 725.202(a) for a cumulative period of one year or more. In so concluding, the court was critical of the Board's construction of coal mine dust as including all dusts generated by coal mining as overly broad. 2. STATUS/FUNCTION/SITUS & SITUS FUCTION TEST In Whisman v. Director, OWCP, 8 BLR 1-96 (1985), the Board fashioned the three pronged test of status, function and situs for determining whether the duties performed by a claimant met and satisfied the statutory definition of "miner." In Swinney v. Director, OWCP, 7 BLR 1-524, 1-528 (1984), the Board stated that it is "a fundamental principle of black lung law that workers not directly related to the production of coal are not covered by the Act." The Board has emphasized, and continues to emphasize, that, first and foremost, the factual questions of status of the coal, the functions performed by the worker, and the work area must be resolved by the ALJ; Shaw v. Director, OWCP, 7 BLR 1-652 (1985); Price v. Peabody Coal Company, 7 BLR 1-671 (1985). See Dawson v. Old Ben Coal Co., 11 BLR 1-58, 1-60 n.1 (1988), where the Board set out the procedure which the ALJ should follow in determining years of coal mine employment pursuant to Parts 410, 718 and 727; see also Director, OWCP v. Cargo Mining Co., Nos. 33-3531 and 3578 (6th Cir., May 11, 1989)(unpub.). The courts, however, have generally followed a two- pronged (situs-function) test, although in Stroh v. Director, OWCP, 810 F.2d 61, 9 BLR 2-212 (3d Cir. 1987), the court included the "status of the coal" inquiry as part of the function test. See also Mitchell v. Director, OWCP, 855 F.2d 485 (7th Cir. 1988). Furthermore, while a miner involved in extraction of coal must prove a situs prong (i.e., in or around a coal mine), miners involved in the preparation of coal need not establish a geographical nexus to a coal mine. Director, OWCP v. Zeigler Coal Co., 853 F.2d 529 (7th Cir. 1988); see also Foreman v. Director, OWCP, 794 F.2d 569, 9 BLR 2-90 (11th Cir. 1986)(a facility used in preparation of coal, wherever it is located, constitutes a mine under the Act). The phrase "in or around a coal mine" does not necessarily mean "on coal mine property." In Baker v. United States Steel Corp., 867 F.2d 1297, 12 BLR 2-213 (11th Cir. 1989), the court held that, in determining "situs", the geographical distance of the work area from a mine is but one relevant factor to be considered in determining whether the miner worked "in or around a coal mine"; however, application of a rigid "fixed distance" rule is not appropriate, and the ALJ must consider all relevant circumstances underlying each particular claim. In determining "function," the court in Falcon Coal Co. v. Clemons, 873 F.2d 916, 12 BLR 2- 271 (6th Cir. 1989), ruled that the worker's duties must be an "integral" or a "necessary" part of the coal mining process in order to meet the definition of miner under the Act. In addition, the court stated: In general, those individuals who handle raw coal or who perform tasks necessary to keep the mine operational, and in repair are generally classified as "miners." Those whose tasks are merely convenient but not vital or essential to production and/or extraction are generally not classified as "miners." Id. at 922-23, 2-279. Furthermore in Fox v. Director, OWCP, 889 F.2d 1037, 13 BLR 2-156 (11th Cir. 1989), the court held: The fact that a company owns and operates its own coal mines does not bring workers employed at its other coal utilization facilities under the umbrella of the Act's coverage. Benefits under this Act must be denied to those who work with coal once it has been processed by the mine and shipped to consumers. Whether or not these consumers are a part of the same corporate entity which initially extracted the coal is of little use in an attempt to determine if an employee performed coal preparation work as contemplated by the Act. Id. at 1042 (footnote omitted). 3. CONSTRUCTION/TRANSPORTATION WORKERS For workers involved in the transportation of coal, coal mine construction, or maintenance work, the worker must establish the appropriate two or three pronged test before being entitled to invocation of the presumption found at 20 C.F.R. �5.202(a). Garrett v. Cowin & Company, Inc., BLR , No. 87-841 BLA (Dec. 21, 1990); Ray v. Williamson Shaft Contracting Co., 14 BLR 1-105 (1990). To rebut the Section 725.202(a) presumption, the party opposing entitlement must establish that the maintenance, transportation, or construction worker was not regularly exposed to coal mine dust, or that such worker was not regularly employed in or around a mine or mine site. See Garrett, supra; Ray, supra; Tressler v. Allen & Garcia Co., 8 BLR 1-365 (1985); Conley v. Roberts and Schaefer Co., 7 BLR 1-309 (1984); Ritchey v. Blair Electric Service Co., 6 BLR 1-966 (1984). For purposes of invocation of Section 411(c)(4) of the Act, 30 U.S.C. �1(c)(4), the miner who works in a coal mine other than an underground mine bears the additional burden of producing evidence that the surface conditions were substantially similar to those found in an underground mine. In Director, OWCP v. Midland Coal Co., 855 F.2d 509 (7th Cir. 1988), the court ruled that the claimant is required only to produce sufficient evidence of the surface mining condition under which the miner worked. It is then the function of the ALJ to compare the surface mining conditions to conditions known to prevail in underground mines. In making such a comparison, the ALJ relies on his or her expertise, knowledge, and that which the court referred to as "certain appropriate objective factors." The claimant need not establish conditions prevailing in an underground mine. For Part 727 claims (filed prior to March 31, 1980), however, a claimant need not satisfy a comparability requirement. Peabody Coal Co. v. Director, OWCP, 778 F.2d 358 (7th Cir. 1985). While the courts have not addressed the issue regarding at what beginning point (during the extraction and preparation of coal process) an individual falls under the definition of "miner", the tipple traditionally marks the demarcation point between mining and the marketing of coal; when the coal leaves the tipple, extraction and preparation are complete and it is entering into the stream of commerce. Collins v. Director, OWCP, 795 F.2d 368, 9 BLR 2-58 (4th Cir. 1986); Roberts v. Weinberger, 527 F.2d 600 (4th Cir. 1975); Norfolk & Western Railway Co. v. Roberson, 918 F.2d 114, 13 BLR 1-6 (4th Cir. 1990); Norfolk & Western Railway Co. v. Director, OWCP [Shrader], 5 F.3d 777, 18 BLR 2-35 (4th Cir. 1993). Thus, in Southard v. Director, OWCP, 732 F.2d 66, 6 BLR 2-26 (6th Cir. 1984), the court found that one who works with prepared coal which has been or is in commerce fails to fall within the Act's definition of coal miner. In Amax Coal Company v. Fagg, 865 F.2d 916, 12 BLR 1-77 (7th Cir. 1989), the court held that work involving the extraction or preparation of coal includes all work which is part of the "modern commonly-applied process of extracting and preparing coal." For transportation workers, the worker is considered a miner if his work relates to the preparation of coal for delivery rather than the delivery of the finished product to consumers in the stream of commerce. Mitchell v. Director, OWCP, 855 F.2d 485 (7th Cir. 1988); see also Spurlin v. Director, OWCP, 956 F.2d 163, 16 BLR 2-21 (7th Cir. 1992)(transporting empty railroad cars from a railroad depot to a point near the tipple from which other employees released the cars to go to the tipple); Shrader, supra (delivery of empty cars to coal preparation facility is integral to the process of loading coal at the preparation facility and therefore is part of coal preparation. DIGESTS The Fourth Circuit held that this electrical construction worker worked in coal mine construction and was exposed to coal dust as a result of such employment and thus was a miner under the Act's definition. 30 U.S.C. � 902(d); 20 C.F.R. � 725.202(a). The Court further distinguished its analysis regarding transportation workers, see Norfolk & Western Railway Co. v. Roberson, 918 F.2d 1144, 14 BLR 2-106 (4th Cir. 1990), cert. denied, 111 S.Ct. 2012 (1991); Eplion v. Director, OWCP, 794 F.2d 935, 9 BLR 2-52 (4th Cir. 1986), and held that the two-step test should not be applied in cases involving coal mine construction workers because if this test were applied, rarely if ever would a coal mine construction worker qualify as a miner under the Act. The Glem Co. v. McKinney, 33 F.3d 340, 18 BLR 2-368 (4th Cir. 1994).

4. GENERAL CASE LISTINGS FOR COVERED AND NOT COVERED COAL MINE EMPLOYMENT [Listed in Circuit Order] a. Cases in which the court found claimant's duties to be COVERED coal mine employment include:

Stroh v. Director, OWCP, 810 F.2d 61, 9 BLR 2- 212 (3d Cir. 1987)(a coal hauler who purchased raw coal from mines and hauled it to a coal processor who later sold it); Dowd v. Director, OWCP, 846 F.2d 193 (3d Cir. 1988)(a miner who purchases and bags unprocessed coal for later resale); Hanna v. Director, OWCP, 860 F.2d 88, 12 BLR 2- 15 (3d Cir. 1988)(a barge worker who loaded processed coal on to a barge directly from the tipple); Amigo Smokeless Coal Co. v. Director, OWCP, 642 F.2d 68 (4th Cir. 1981)(laboratory technician who collected coal samples for processing and analysis); Sexton v. Mathews, 538 F.2d 88 (4th Cir. 1976)(shoveling coal from a tipple to a lorry); Hughes v. Heyl & Patterson, Inc., 647 F.2d 452, 3 BLR 2-15 (4th Cir. 1981)(a construction firm which erected and repaired coal preparation facilities is a coal mine operator); Norfolk & Western Railway Co. v. Roberson, 914 F.2d 35, 13 BLR 1-6 (4th Cir. 1990)(a railway worker loading and hauling raw coal to a preparation plant); and Freeman v. Califano, 600 F.2d 1057 (5th Cir. 1979)(a miner who repaired railroad track at a coal mine); and Roberts v. Weinberger, 527 F.2d 600 (4th Cir. 1975)(a truck driver hauling coal between a strip mine and a tipple). Director, OWCP v. Consolidation Coal Co., 884 F.2d 926, 13 BLR 2-38 (6th Cir. 1989)(repairing mine equipment at a centrally located repair shop); see also Louisville & Nashville R. Co. v. Donovan, 713 F.2d 1243, 10 BLR 2-133 (6th Cir. 1983); Adelsberger v. Mathews, 543 F.2d 82 (7th Cir. 1976)(a clerical employee who determined what kind of coal is prepared and shipped); Amax Coal Company v. Fagg, 865 F.2d 916, 12 BLR 1-77 (7th Cir. 1989) (individuals performing reclamation work); Consolidation Coal Company v. McGrath, 866 F.2d 1004, 12 BLR 2-152 (8th Cir. 1989)(miners who work in open pit lignite mines); Baker v. United States Steel Corp., 867 F.2d 1297, 12 BLR 2-213 (11th Cir. 1989)(a miner employed one mile from closest mine is a miner under the facts of that case); Skipper v. Weinberger, 448 F.Supp 390 (M.D. Pa. 1977) (individuals maintaining mining equipment).

b. Cases in which the court found claimant's duties NOT COVERED coal mine employment include:

Wisor v. Director, OWCP, 748 F.2d 176, 7 BLR 2- 46 (3d Cir. 1983)(a clay miner who is required to remove quantities of coal before reaching the clay is not a coal miner where the extracted coal is left unprepared or is discarded); Zimmerman v. Benefits Review Board, 749 F.2d 29 (3d Cir. 1984)(employee in a charcoal briquette production facility); Kopp v. Director, OWCP, 877 F.2d 307, 12 BLR 2- 299 (4th Cir. 1989)(court infers that federal coal mine inspectors are not miners under the Act); Director, OWCP v. Consolidation Coal Co. and Krushansky, 923 F.2d 38, 14 BLR 2-139 (4th Cir. 1991)(a dockworker in a loading facility handling fully prepared coal). Collins v. Director, OWCP, 795 F.2d 368, 9 BLR 2-58 (4th Cir. 1986)(driver who hauled slate, a coal byproduct from tipple); Eplion v. Director, OWCP, 794 F.2d 935, 9 BLR 2-52 (4th Cir. 1986)(only contact with coal occurred after it had been fully processed and delivered to market); Richmond v. Director, OWCP, 813 F.2d 1228 (4th Cir. 1987)(table)(movement of waste coal in process of making charcoal briquettes); Hagy v. Director, OWCP, No. 88-3809 (4th Cir., Aug. 16,1988)(unpub.) (delivery of limestone to a mine); Frost v. Director, OWCP, 821 F.2d 649 (6th Cir. 1987)(a delivery man carrying lunches to underground miners); Falcon Coal Co. v. Clemons, 873 F.2d 916, 12 BLR 2-271 (6th Cir. 1989)(nightwatchmen are beyond the scope of the Act); Director, OWCP v. Cargo Mining Co., Nos. 88- 3531 and 3578 (6th Cir., May 11, 1989)(unpub.)(a claimant is not a miner for the period of time he was on strike); Director, OWCP v. Zeigler Coal Co., 853 F.2d 529 (7th Cir. 1988)(where the repairing of mining equipment occurred one and a half miles away from the mine site); Kennedy v. Director, OWCP, 860 F.2d 1321 (8th Cir. 1988) (transporting coal to residences and commercial establishments for their consumption); Hon v. Director, OWCP, 699 F.2d 441, 5 BLR 2-43 (8th Cir. 1983)(work in a blacksmith's shop is not coal mine work); Foreman v. Director, OWCP, 794 F.2d 569, 9 BLR 2-90 (11th Cir. 1986)(work in an ore mine power plant utilizing raw materials from company owned mines); William Brothers, Inc. v. Pate, 833 F.2d 261, 10 BLR 2-239 (11th Cir. 1987)(construction worker who was involved in surface mine construction project that was not yet operable and who did not work in the vicinity of an operable mine); Fox v. Director, OWCP, 889 F.2d 1037, 13 BLR 2- 156 (11th Cir. 1989) (preparing delivered coal in a coke plant).

B. SURVIVORS/DEPENDENTS            DIGESTS Widow-Subsequent Remarriage The Sixth Circuit held that the plain language and legislative history of 30 U.S.C. �2(e)(which defines a "widow" as an individual who "is not married" rather than who "has not remarried") allows for the resumption of eligibility when an intervening marriage is terminated. Wolfe Creek Collieries v. Robinson, 872 F.2d 1264, 12 BLR 2-259 (6th Cir. 1989). SSA Benefits As Miner's Property Social Security benefits received by a miner's widow as a result of a miner's employment are not the miner's property. Consequently, such a widow is not dependent on the miner for support within the meaning of the Act. Director, OWCP v. Ball, 826 F.2d 603, 10 BLR 2-210 (7th Cir. 1987); see also Director, OWCP v. Hill, 831 F.2d 635, 10 BLR 2- 308 (6th Cir. 1987); Director, OWCP v. Logan, 868 F.2d 285, 12 BLR 2-175 (8th Cir. 1989); Taylor v. Director, OWCP, 967 F.2d 961, 16 BLR 2-84 (4th Cir. 1992). Impact of State Law Widowhood is determined under the laws of the state where the miner was domiciled at the time of death. Quigley v. Anderson Creek and Clay Co., No. 90-3394 (3d Cir., Dec. 13, 1990)(unpub.). Disabled Child The intent of Congress in enacting 30 U.S.C. �2(g) of the Act was to provide benefits for children who were permanently disabled prior to age 18 and have remained so continuously to the present time. Reyes v. Secretary of Health, Education and Welfare, 476 F.2d 910, 914 n.5 (D.C. 1973); Kidda v. Director, OWCP, 769 F.2d 165, 7 BLR 1-202 (1985). Conveyance of a Home The conveyance of a home pursuant to the divorce decree is not a "substantial contribution" to the divorced spouse's continued support, as defined in the Act and regulations. Ensinger v. Director, OWCP, 833 F.2d 678, 680 (7th Cir. 1987). Eligible Survivors at Section 725.545(c)(4-7) The Sixth Circuit, with an extensive discussion of 30 U.S.C. �2(b), incorporating 42 U.S.C. �4(d)(1) - (7), held that DOL did not err in adopting Section 204 of the Social Security Act (SSA) to disburse outstanding benefits upon the miner's death. Here, although Section 725.545(c)(1-3) conditions eligibility on a personal entitlement to survivor's benefits, subsections 4 through 7 look to next of kin and, if none, then the legal representative of the miner's estate receives payment. In agreeing with the Fourth Circuit in Charles v. Director, OWCP, 1 F.3d 251, 254 (4th Cir. 1993), the Court noted that "unlike a survivor's benefit, which is the personal claim of the dependent spouse, child, or parent, the miner's claim for underpayment of benefits during his life passes by a quasi-inheritance system." Therefore, the miner's son, although not a dependant of the miner's at the time of his death and therefore ineligible for survivor's benefits, is eligible to pursue his father's claim for benefits as a successor in interest. The Youghiogheny & Ohio Coal Co. v. Webb, 49 F.3d 244, 19 BLR 2-123 (6th Cir. 1995). C. PNEUMOCONIOSIS                                     DIGESTS Anthracosis in Lymph Nodes The Fourth Circuit, citing Bueno v. Director, OWCP, 7 BLR 1-337, 1-340 (1984) and Dobrosky v. Director, OWCP, 4 BLR 1-680, 1-684 (1982), held that anthracosis found in lymph nodes may be sufficient to establish pneumoconiosis. Daugherty v. Dean Jones Coal Co., 895 F.2d 130, 13 BLR 2-134 (4th Cir. 1989); see also Youghiogheny & Ohio Coal Co. v. Milliken, 866 F.2d 195, 12 BLR 2-136 (6th Cir. 1989); Consolidation Coal Co. v. Smith, 837 F.2d 321, 11 BLR 2-37 (8th Cir. 1988); Peabody Coal Co. v. Shonk, 906 F.2d 264, BLR (7th Cir. 1990). D. TOTAL DISABILITY

                                             DIGESTS

Establishing Total Disability Under the Act The Act provides for the payment of benefits to miners found to be totally disabled due to pneumoconiosis arising out of employment in the nation's coal mines. Peabody Coal Co. v. Director, OWCP, 778 F.2d 358 (7th Cir. 1985). Age As a Cause of Disability Eventually, every coal miner, whether they suffer from pneumoconiosis or not, will no longer be able to engage in the level of coal mining or comparable work as they could when they were younger. However, the Act does not compensation disability due to age, it compensates disability due to pneumoconiosis caused by coal mining. Meyer v. Zeigler Coal Co., 894 F.2d 902, 13 BLR 2-285 (7th Cir. 1990). E. LENGTH OF COAL MINE EMPLOYMENT The burden is on the claimant to establish the length of the miner's coal mine employment. Trusty v. Director, OWCP, 709 F.2d 1059 (6th Cir. 1983). F. USUAL COAL MINE EMPLOYMENT Voluntary Overtime In Shreve v. Director, OWCP, 864 F.2d 32, 12 BLR 2- 85 (4th Cir. 1988), the Fourth Circuit held that voluntary overtime may not be considered as a part of a miner's usual coal mine employment. Thus, in determining whether a miner can perform his usual coal mine work, voluntary overtime work duties are not considered. However, the Eleventh Circuit has held that the mere fact that an employee performed certain duties "voluntarily" did not necessarily put those duties outside of the scope of the employee's employment. Jim Walter Resources, Inc. v. Allen, No. 92-6094 (11th Cir., July 16, 1993). G. COMPARABLE AND GAINFUL WORK H. RESPONSIBLE OPERATOR For purposes of identifying a responsible operator, the miner must have been regularly employed by the operator for a period of at least one year, i.e., 365 days. Director, OWCP v. Gardner, 882 F.2d 67, 13 BLR 2-1 (3d Cir. 1989). To constitute "regular employment," the miner must have worked for that operator for at least 125 days during that 365 day period. Gardner, supra. See also Falcon Coal Co. v. Clemons, 873 F.2d 916, 12 BLR 2-271 (6th Cir. 1989). Part-time employment or employment which is not year-round must be prorated. Frost v. Director, OWCP, 821 F.2d 649 (6th Cir. 1987). DIGESTS The operator is liable for attorney fees where the operator declines to pay the claim thirty days after it receives notice of potential liability. Bethlehem Mines Corp. v. Director, OWCP [Markovich], 854 F.2d 632, 11 BLR 1- 105 (3d Cir. 1988). Citing Zavora v. United States Steel Corp., 2 BLR 1-1202 (1980), the court held that where the identified operator did not employ claimant as a miner, the operator cannot be held liable as the Responsible Operator for purposes of payment of benefits. Falcon Coal Co. v. Clemons, 873 F.2d 916, 12 BLR 2-271 (6th Cir. 1989). The employer's bare reservation of a legal right of re-entry, combined with a requirement of minimum royalty payments, a right to an accounting for the tonnage produced from the leased land, and a right to monitor compliance with state and federal regulations did not demonstrate continuing operation as a matter of law. Whether employer had the power to exercise substantial control was a question of fact to be resolved by the alj. Elliot Coal Mining Co., Inc. v. Director, OWCP [Kovalchick], 17 F.3d 616, 16 BLR 2-24 (3d Cir. 1994). Changing Form of Business Entity An operator cannot escape liability for benefit payments by effectively changing its business form. Donovan v. McKee, 845 F.2d 70, 10 BLR 2-133 (4th Cir. 1988). Withdrawal of Controversion Where the operator withdraws its objection to a claim, operator will be considered to have waived its right to contest the claim. Bethlehem Mines Corp. v. Director, OWCP [Markovich], 854 F.2d 632, 11 BLR 1-105 (3d Cir. 1988). Federal Government as Operator The Fourth Circuit held that the federal government as employer of the claimant, a coal mine inspector, is not a "responsible operator" pursuant to 20 C.F.R. �5.492. The court declined to address the issue regarding whether coal mine inspectors may be "miners" under the Act; however, see Kopp v. Director, OWCP, 877 F.2d 307, 12 BLR 2-299 (4th Cir. 1989) where the court infers that inspectors are not miners. Eastern Associated Coal v. Director, OWCP and Patrick, 791 F.2d 1129 (4th Cir. 1986). Notice to Carrier Due process requires the carrier be given adequate notice and an opportunity to defend on the question of direct liability to the claimant. Warner Coal Company v. Director, OWCP, 804 F.2d 346 (6th Cir. 1986); see also Caudill Construction Company v. Abner, 878 F.2d 179, 12 BLR 2-335 (6th Cir. 1989); Tazco v. Director, OWCP, 892 F.2d 482, 13 BLR 2-313 (4th Cir. 1990); see generally Harmar Coal Co. v. Director, OWCP, 926 F.2d 302 (3d Cir. 1991)(in which the court dismissed employer's appeal as premature and thus did not reach the issue of whether the question of whether employer had demonstrated good cause under Section 725.413 for its failure to timely controvert should be heard by an ALJ). Identifying the Responsible Operator The Sixth Circuit, declining to follow the Board's holding in Crabtree v. Bethlehem Steel Corp., 7 BLR 1-354 (1984), held that, under the facts of this case, the district director was not prohibited from naming a new responsible operator after an earlier operator had been dismissed. Note, in this case, a hearing on the merits of the miner's claim had not occurred prior to the dismissal of the first operator. In Crabtree, the claim had been fully litigated. Director, OWCP v. Ogelbay Norton Co., 877 F.2d 1300, 12 BLR 2-357 (6th Cir. 1989); see also Beckett v. Raven Smokeless Coal Co., 14 BLR 1-43 (1990). The Fourth Circuit upheld the Board, rejecting the Director's argument that Trace Fork cannot be a responsible operator unless it qualifies as a prior operator under Section 725.493(a)(2). The Court held that the Board's interpretation of Section 725.493(a)(2),(4), that an employer cannot be designated as a responsible operator unless it qualifies as a prior operator under Section 725.493(a)(2), was erroneous. The Court noted its prior interpretation in Eastern Asso. Coal Corp. v. Director, OWCP, 791 F.2d 1129 (4th Cir. 1986)["the...language {of �5.493(a)(4)} simply indicates that prior and successor operators of a previous employer may also be liable for the payment of benefits as provided by �5.493(a)(2)."] was not followed by the Board. Holding, however, that the Board correctly affirmed the ALJ's finding that the burden to identify, notify and develop evidence regarding potential responsible operators and their ability to pay lies with the Director, the Court affirmed the Board's and ALJ's dismissal of Trace Fork. Finally, the Court affirmed the Board's reliance on Crabtree in its refusal to remand the case for further development of potential responsible operators to prevent piecemeal litigation and avoid due process concerns. Judge Hall concurred in part but dissented with the majority holding that the Director should only have a prima facie burden of showing that Trace Fork met the criteria of Section 725.492. "[I]nstead place the substantial burden of raising and resolving [here ability to pay under Section 725.492(a)(4)(iii) and cancellation of insurance] on the party with the strongest incentive to discover the answer - the employer who wishes to avoid liability for the claim." Director, OWCP v. Trace Fork Coal Co., F.3d , No. 93-2379 (4th Cir. Oct. 17, 1995).

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