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Judge scolds DEP mining official again

A second state Division of Environmental Protection official was scolded Thursday by a federal judge for evading questions about the largest mountaintop removal permit in West Virginia history.Nick Schaer, a geologist with the DEP Office of Mining and Reclamation, was the agency's second witness in defense of the 3,100-acre permit granted to Arch Coal Inc. subsidiary Hobet Mining.Schaer dodged repeated questions from Joe Lovett, a lawyer for environmentalists who are challenging the permit.Several times, Schaer laughed at Lovett's inquiries. That prompted a stern warning from Chief U.S. District Judge Charles H. Haden II."You are fencing with counsel and you have been with the court and I will not have it," the judge said. "You either answer the question, or say you do not know the answer."DEP lawyer Tom Clarke tried to defend Schaer, but Haden cut him off."Instruct your witness to answer questions or to profess ignorance of the answers," Haden told Clarke. Schaer was part of a DEP permit review team that recommended agency Director Michael Miano issue the permit for Hobet to strip a five-square-mile area along Pigeonroost Branch near Blair, Logan County.Haden has already halted state and federal permits for the mine until Feb. 23. The judge is hearing testimony on whether to grant a longer delay with a preliminary injunction requested by the West Virginia Highlands Conservancy.Schaer testified that he studied the proposed mine's potential impacts on water quality and found them to be negligible."I found that ... adverse effects to the ecological balance were unlikely," Schaer told Haden.
Schaer said that burying several miles of Spruce Fork headwaters along Pigeonroost will not damage the quality or quantity of water downstream."Once discharge from the valley fills and the ponds reaches equilibrium, the inputs for surface and groundwater would be the same as prior to mining and, therefore, the discharge would be the same as prior to mining," Schaer said.On cross-examination by Lovett, Schaer said he did not study the possible effects on water quality further downstream from the Hobet mine and numerous other mines in the area."To go on and examine the Little Coal or Coal rivers would be to discuss literally thousands of permits," Schaer said. "There's a point where I can't handle, as one human being, that much data."
Also Thursday, former A.T. Massey Coal executive Eugene Kitts testified on Arch Coal's behalf that mountaintop removal valley fills do not harm the environment.Kitts, now a coal industry engineering consultant, said valley fills make streams flow more consistently and help hold back rainfall to avoid flooding."In my experience, based on my observations, a valley fill tends to act as a sponge," Kitts said."Water that falls due to rainfall onto the fill soaks into the fill," he said. "It's collected in the fill itself, gradually drops to the bottom, where it is eventually picked up by the under-drains and discharged," Kitts said."It makes the flow more even and steady," he said. 
To contact staff writer Ken Ward Jr., call 348-1702.
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