Argued: September 12, 2017
Petition for Review of an Order of the Benefits Review Board.
Lou Smith, HOWE, ANDERSON & SMITH, P.C., Washington,
D.C., for Petitioner.
Marie Hurley, UNITED STATES DEPARTMENT OF LABOR, Washington,
D.C.; Joseph E. Wolfe, WOLFE WILLIAMS & REYNOLDS, Norton,
Virginia, for Respondents.
Patricia Smith, Solicitor of Labor, Maia S. Fisher, Acting
Associate Solicitor, Gary K. Stearman, Counsel for Appellate
Litigation, Office of the Solicitor, UNITED STATES DEPARTMENT
OF LABOR, Washington, D.C., for Respondent Director, Office
of Workers' Compensation Programs.
WILKINSON, MOTZ, and DIAZ, Circuit Judges.
Constructors, Inc. ("Frontier-Kemper") appeals the
Decision and Order of the U.S. Department of Labor Benefits
Review Board holding Frontier-Kemper responsible for the
payment of benefits to a coal miner, Grat M. Smith, under the
Black Lung Benefits Act (the "BLBA"), 30 U.S.C.
§ 901 et seq. Frontier-Kemper does not contest
Smith's eligibility for benefits, but instead disputes
its liability for the claim. We find that Frontier-Kemper is
liable and therefore affirm.
discussing the details of Frontier-Kemper's challenge, we
provide a brief overview of the statutory and regulatory
framework through which the BLBA imposes liability on
employers for the payment of miners' claims.
BLBA provides benefits to miners who are disabled by
pneumoconiosis.  30 U.S.C. §§ 901(a), 922(a),
932(c). The disabled miner's most recent employer is
generally liable for payment of those benefits, but if no
employer is found liable (or the employer is no longer in
business), the Black Lung Disability Trust Fund pays the
benefits. 26 U.S.C. § 9501(d)(1).
"operators, " as defined by the Federal Mine Safety
and Health Act (the "FMSHA"), can be liable for
black lung benefits claims. Prior to 1977, the FMSHA defined
"operator" as "any owner, lessee, or other
person who operates, controls, or supervises a coal
mine." 30 U.S.C. § 802(d) (1976). In 1977, Congress
amended this definition to include "any independent
contractor performing services or construction at such
mine." 30 U.S.C. § 802(d).
operator is acquired or reorganizes, liability for benefits
claims transfers to the "successor operator."
See 30 U.S.C § 932(i). Successor operators are
liable to pay such benefits for "miners previously
employed by [a] prior operator as if the acquisition had not
occurred and the prior operator had continued to be an
operator." 30 U.S.C § 932(i)(1) To that end, the
BLBA regulations provide that "any employment with a