According to the Fourth Circuit, "the statutory definition of "in business' is broad, including within its scope not only (1) an entity that "conducts' business activity, but also (2) one who "derives revenue' from business activity." Lindsey Coal Mining Co. v. Chater, 90 F.3d 688, 692 (3d Cir. 1996); see also District 29, United Mine Workers of America v. United Mine Workers of America 1992 Benefit Plan, 179 F.3d 141, 145 (4th Cir. 1999). In District 29, the Fourth Circuit held that, because Patsy Trucking held over $639,000.

We agree with our sister courts that this is a broad definition, "including within its scope not only (1) an entity that `conducts' business activity, but also (2) one who `derives revenue' from business activity." Lindsey Coal Mining Co. v. Chater, 90 F.3d 688, 692 (3d Cir.1996) (stating that because "the `conducts' prong is provided for separately, the `derives revenue' prong does not require the party liable under the Coal Act to itself `conduct' a business activity"); Dist. 29, United Mine Workers of Am. v. United Mine Workers of Am. 1992 Benefit Plan, 179 F.3d 141, 145 (4th Cir.1999) ("The Act employs an expansive definition of `in business' that includes `conducting or deriving revenue from any business activity, whether or not in the coal industry.'") (quoting 26 U.S.C. § 9701(c)(7)) (emphasis removed).

Before the Coal Act, a collection of union agreements called "NBCWAs" required coal operators to provide benefits to their own retirees through Individual Employer Plans and to make contributions to a multiemployer fund that provided benefits to "orphaned" workers whose employers had gone out of business. Dist. 29, United Mine Workers of Am. v. United Mine Workers of Am. 1992 Ben. Plan , 179 F.3d 141, 143 (4th Cir. 1999). But when coal operators began exiting the industry—or, in some cases, shifting to non-union workforces—"the number of orphaned retirees rose rapidly," id. , and the NBCWAs faced a "serious financial crisis," Barnhart v. Sigmon Coal Co. , 534 U.S. 438, 444, 122 S.Ct. 941, 151 L.Ed.2d 908 (2002).

In that sense, it is a coverage “backstop.” See Dist. 29, United Mine Workers of Am. v. United Mine Workers of Am. 1992 Benefit Plan, 179 F.3d 141, 143 (4th Cir. 1999). In ERISA terms, it is a multiemployer employee welfare benefit plan.

It is clear from the plain language of the Coal Act that Congress intended the 1992 Plan to act as a catch-all -- or “backstop” -- for retirees otherwise eligible for, but not receiving, benefits from the two other vehicles outlined in the statute. See Dist. 29, United Mine Workers of Am. v. United Mine Workers of Am. 1992 Ben. Plan, 179 F.3d 141, 143 (4th Cir. 1999) (citing 26 U.S.C. § 9712; Holland v. Double G Coal Co., 898 F.Supp. 351, 354 (S.D. W.Va. 1995) (the Coal Act's three-vehicle structure “points to the conclusion that the 1992 Benefit Plan is designed to ‘backstop' the first two vehicles of health coverage and provide coverage for those who do not receive benefits under the Combined Fund or individual employer plans”)).

Thus, in essence, the Plan provides “backstop” coverage to beneficiaries who, for whatever reason, do not receive the coverage they have a right to receive under § 9711. See Dist. 29, United Mine Workers of Am. v. United Mine Workers of Am. 1992 Ben. Plan, 179 F.3d 141, 143 (4th Cir. 1999).

Several Courts of Appeals have examined the provision and have adopted an expansive interpretation. See, Holland v. Williams Mtn. Coal Co., 256 F.3d 819 (D.C.Cir.2001) (regarding "in business" in successor in interest context); District 29, United Mine Workers of America v. United Mine Workers of America 1992 Benefit Plan, 179 F.3d 141 (4th Cir.1999); Lindsey Coal Mining Co. v. Chater, 90 F.3d 688, 692 (3rd Cir.1996)("The statutory definition of 'in business' is broad, including within its scope not only (1) an entity that 'conducts' business activity, but also (2) one who 'derives revenue' from business activity"). Moreover, the scope and meaning of the "in business" provision has been addressed in the bankruptcy context.

Prior to the Coal Act, the Debtors had entered into a series of National Bituminous Coal Wage Agreements (“NBCWAs”). The NBCWAs required that the signatory operators fund and maintain IEPs for their own retirees as well as to contribute to different UMWA pension funds. SeeDistrict 29, United Mine Workers of Am. v. United Mine Workers of Am.1992 Benefit Plan, 179 F.3d 141 (4th Cir.1999). The Combined Fund consolidated the 1950 UMWA Benefit Plan, and the 1974 UMWA Benefit Plan.