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WEEHAWKEN PLANNING BOARD HEARING
OCTOBER 28, 1999
FULL TRANSCRIPT
PAGES 101 TO 150

Michael Friedman
Environmental Witness Direct Testimony
Cross-Examination by James Segreto

Below is the transcript from the Weehawken Planning Board Hearing on
October 28, 199
9.

This hearing was conducted at the Weehawken High School. For the record, the FWW staged a big rally to protest the Roseland development application. Over 80 citizens attended the rally at Hamilton Park. After the rally, we marched to the high school and held a five minute demonstration to express our objections.

This html document follows the format of the official transcript. The transcript format has 25 lines per page. Each page is numbered. Because the transcript is so long, the file has been broken down into 4 different web pages.

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101
1 A I believe they are.
2 Q There is a whole series of heavy
3 metals which the biological discipline has
4 determined and the medical discipline have
5 determined to be cancer inducing. Isn't that so?
6 A Yes, I believe you are correct.
7 Q Can you tell me, based on anything
8 you and your associates or any consultants that
9 you have hired so far who have done subsurface
10 exploration, can you tell me how many times -- how
11 many tons of carcinogenic contaminants are on this
12 property?
13 A No, I cannot.
14 Q And your generic present state of
15 mind about remediation is that no matter how many
16 tons of cancer-inducing heavy metals and
17 contaminants are there, that your solution is to
18 let them stay there and put a cap on them. Right?
19 A I think your characterization of
20 "tonnage," your characterization of my "solution"
21 is an inaccurate characterization, so I believe
22 that the whole premise behind my testimony is not
23 indicative of just this particular site, but
24 rather it is indicative of what the legislature in
25 the State of New Jersey, what the federal
Friedman - Cross - Segreto
102
1 government through the auspices of the United
2 States Environmental Protection Agency have
3 researched and promulgated through a series of
4 regulations throughout the United States,
5 specifically in the State of New Jersey, with
6 regard to substances, many of which you have
7 described as carcinogenic and the ability to cap
8 them and end up with a safe property.
9 I think it's from those derivatives that I
10 have yielded some of my statements in concert with
11 site specific investigations, which I have
12 discussed this evening.
13 Q Mr. Friedman, I am not
14 cross-examining any of those governmental
15 agencies. I am cross-examining you.
16 Have you not in your direct testimony said
17 that the ultimate remediation will be to identify
18 the contaminants and then cap them?
19 Do you remember having said that?
20 A Yes, I do.
21 Q And you said that modality could
22 either be with paving, concrete walks, buildings
23 and liners. Isn't that so?
24 A Liners in concert with soil, yes,
25 that's so.
Friedman - Cross - Segreto
103
1 Q Now, part of the cap is going to sit
2 over those cancer-inducing heavy metals, and
3 contaminants are going to be the slab of the
4 buildings where the people are going to be living
5 day in and day out. Isn't that so?
6 A Yes, sir, the same way that those
7 same substances exist on the site within Weehawken
8 today in an uncapped environment.
9 Q But you, sir, are testifying on
10 behalf of a client who wants this board to give
11 him permission to build thousands of residential
12 units into which men and women and their babies
13 and their children and their mothers and their
14 fathers will come and live, and you are telling me
15 that what's going to happen is that these people
16 are going to be living in dwellings, which are the
17 cap for the carcinogenics below them?
18 A No, I believe you incorrectly
19 characterized my testimony.
20 I have not testified that the residential
21 properties will be constructed over carcinogenics
22 as you have identified the substances.
23 In fact, the vast majority of the property
24 consists of historic fill. Historic fill consists
25 of organics, base neutral substances, heavy
Friedman - Cross - Segreto
104
1 metals.
2 I have indicated through my testimony and
3 my remarks previously that the federal government
4 has specifically in the State of New Jersey, the
5 legislature, the enabling regulations, recognize
6 that much of the waterfront of New Jersey or many
7 parts of New Jersey consist and exist of historic
8 fill and that encapsulation of that historic fill
9 containing a cross section of contaminants is a
10 healthy and correct solution for the remediation
11 of those types of sites.
12 That has been and is my testimony, sir.
13 Q Well, let's see if we understand
14 something.
15 Doesn't your ultimate plan that you have
16 described so far, your remediation plan,
17 contemplate the vast quantities of extant
18 contaminants, if you have your way, and if the
19 board let's you do it your way, that those
20 contaminants are going to stay there and on top of
21 those contaminants, build things where people are
22 going to live will be built?
23 Is that what's going to happen?
24 A In some cases, yes, Mr. Segreto.
25 In my earlier testimony when you were not
Friedman - Cross - Segreto
105
1 present, I used as an example --
2 Q I read your transcript, so you don't
3 have to worry about that.
4 A I used as an example PCBs, which, as
5 you indicated this evening, are a carcinogenic
6 compound.
7 I indicated the United States Environmental
8 Protection Agency has issued regulations such that
9 with concentrations in excess of 100 parts per
10 million, PPM, that material has to be excised or
11 extracted from the site and cannot remain, and
12 that concentrations lower than 100 PPM can, in
13 fact, remain and safely be capped.
14 Q Isn't it true, sir --
15 A I haven't finished my answer.
16 Q Forgive me. Go ahead.
17 A On this particular site, we have no
18 instances of PCB contamination in excess of 100
19 parts per million, and, in fact, the levels of
20 PCBs, very discrete and limited levels of PCBs
21 found on this site are substantially,
22 substantially below that level, and most of them
23 are below ten parts that can safely be remediated
24 under the cap that I have described in the generic
25 fashion.
Friedman - Cross - Segreto
106
1 Q Now, with regard to the PCBs, before
2 you really know the qualitative and the
3 quantitative extent of the PCBs and the other
4 contaminants that are on the different parts of
5 this property, you have to have done soil testing
6 and then you have to have a laboratory analysis
7 done. Right?
8 A That is correct.
9 Q And you have only had some soil
10 testing done so far. Isn't that right?
11 A With respect to the PCBs and the
12 specific example I used and the reason I used that
13 example --
14 Q I didn't say that to you.
15 A I haven't finished my answer.
16 The reason I used PCBs as an example in my
17 response to your question is because we have
18 completed the PCB testing and analysis of the lab
19 results, and I was able to use that example to
20 make the conclusionary statements which I just
21 made.
22 Q With respect to the -- to any soil
23 testing reports that you have received, and you
24 have them, don't you?
25 A I have some of them, sir.
Friedman - Cross - Segreto
107
1 Q The ones that you have, have you
2 filed them with the board so the board knows
3 what's happening on an ongoing basis? Have you
4 done that yet?
5 A No, I haven't, sir.
6 Q Do you plan to?
7 A No, I do not, sir.
8 Q You don't plan to.
9 Don't you want the board to know what's
10 happening out there?
11 MR. KIENZ: Mr. Chairman, I am
12 going to object.
13 He is badgering the witness.
14 MR. SEGRETO: It's not badgering.
15 It's an absolutely lucid question that
16 should be on the minds of everybody in this
17 room.
18 I say that most respectfully.
19 MR. KIENZ: Mr. Chairman, we
20 indicated we will supply every information
21 that this board requested. You have
22 requested information. We have always
23 provided it to you. When you request it we
24 give it to you.
25 That's an inappropriate question.
Friedman - Cross - Segreto
108
1 MR. DUNN: All right.
2 Let's move on.
3 MR. SEGRETO: I would ask that the
4 board give its thought for consideration
5 directing them as to any soil reports which
6 they already have, and any laboratory
7 reports which they filed -- they file with
8 the board.
9 I can only express I don't want to
10 be pontificating. I don't know how the
11 board could consider an application when
12 there is important extant documentation
13 that this applicant has about the
14 contamination which they have not given to
15 you.
16 MR. DUNN: Mr. Segreto, the
17 board has a qualified environmental
18 consultant and a qualified environmental
19 attorney.
20 If those consultants suggest that
21 more information is required, I am sure the
22 board will take that advice to heart.
23 Q Sir, are those reports, the soil log
24 reports and the laboratory reports, part of the
25 file?
Friedman - Cross - Segreto
109
1 A Mr. Segreto, my answer to you is no,
2 and let me tell you why the answer is no.
3 In order for our firm or any firm, doing
4 the kind of work that we have been retained to do,
5 to submit that information to the board or to the
6 state of New Jersey, that information has to go
7 through a series of review protocols, quality
8 assurance, quality control, electronic
9 deliverables in accordance with the technical
10 requirements of the State of New Jersey that have
11 to be prepared.
12 The information has to be tabulated based
13 on the raw data that comes to our New Jersey
14 analytical laboratory, and only then is it really
15 in a position to be submitted to review agencies,
16 be that the board, yourself, consultants for the
17 municipality or the State of New Jersey, it is not
18 in that state at this point.
19 As a matter of course, we, and, to the best
20 of my knowledge, any firm doing the kind of
21 business that I am doing doesn't release raw data
22 for review during an ongoing investigation.
23 Q My question to you -- I thank you
24 for your response -- but my question was, do you
25 have those soil log reports, as well as the
Friedman - Cross - Segreto
110
1 laboratory reports, in your file in your office?
2 A We have portions of the reports in
3 my office. I have every piece of paper that has
4 been transmited to us by our laboratory, as I
5 indicated earlier.
6 Every test that we have taken has not
7 completed its laboratory procedures, and, so,
8 obviously, the conclusionary statement is I don't
9 have the results for which the laboratory hasn't
10 supplied me with results.
11 Q I take it then this raw data has not
12 been verified and, therefore, should not be
13 disseminated, that you don't draw any conclusions
14 from this unverified data?
15 A That's not a true statement.
16 Q You are relying on the data. Right?
17 A I am relying on the data and the
18 information I use for my response to a prior
19 question.
20 Q And you have in connection with your
21 testimony in this case, the documents which are
22 the predicate upon which you have given this
23 testimony; i.e., the reports that you filed.
24 Right?
25 A That's correct.
Friedman - Cross - Segreto
111
1 Q I would certainly expect that you
2 will when I come in to review the file of those
3 documents there.
4 Now, by the way, you don't intend to take
5 them out of the file, do you?
6 A I don't know what you mean by that
7 question, sir.
8 Q Well, they are in your file now.
9 When I come down I expect that those reports will
10 still be in the file and available for my
11 inspection.
12 MR. KIENZ: Mr. Chairman, I am
13 going to object.
14 He is alleging wrongdoing by Mr.
15 Friedman that he is going to sanitize the
16 file. This isn't what this is about.
17 Mr. Friedman responded to that
18 question about five minutes ago when he
19 said certain information is not in there
20 yet because it's not in the condition to
21 put it in there yet.
22 MR. SEGRETO: He has indicated it's
23 in his file.
24 MR. DUNN: The objection is
25 sustained.
Friedman - Cross - Segreto
112
1 Let's move on with this
2 cross-examination.
3 Q Now, with regard to the Memorandum
4 of Agreement between the property owner and the
5 NJDEP, you referred to it last time in your
6 testimony, you referred to it this evening, and
7 you told us some things about it.
8 Do you have a copy of that Memorandum of
9 Agreement with you?
10 A Yes, I do.
11 Q Would you take it out and let me
12 look at it, please.
13 MR. KIENZ: We have a copy of it,
14 but he needs it to refer to if you are
15 going to ask a question.
16 MR. SEGRETO: I want to look at it
17 first.
18 I would like, Mr. Chairman, to have
19 this document, which is the Memorandum of
20 Agreement dated 9/22/97, marked as Objector
21 1 for identification.
22 MR. DUNN: All right. Mr.
23 Kienz, may we borrow one of your labels?
24 MR. KIENZ: This is part -- no.
25 Yes, of course, you can.
Friedman - Cross - Segreto
113
1 MR. DUNN: On cross-examination
2 he is allowed to have it marked as an
3 exhibit.
4 MR. KIENZ: This is part of our
5 exhibit. Why is it all of a sudden -- this
6 is part of the file, is it not, Michael?
7 THE WITNESS: It was not contained
8 in the report.
9 MR. DUNN: It's not contained in
10 the report.
11 MR. KIENZ: I think it was in the
12 file from the previous --
13 MR. DUNN: All right. Let's not
14 waste time with it.
15 Let's mark it as Exhibit O-1.
16 How are you -- do you folks propose
17 to --
18 MR. SEGRETO: Let him have it. If
19 I ask him some questions, he should have
20 it.
21 THE WITNESS: Thank you.
22 Q Now, sir --
23 MR. DUNN: Just a minute,
24 please.
25 MR. KIENZ: Just a second, Mr.
Friedman - Cross - Segreto
114
1 Segreto.
2 We are good, not that good.
3 Q Now, has that agreement been
4 submitted formerly to the board as part of this
5 application?
6 A It's my understanding that it had,
7 but I believe you have to ask Mr. Kienz that
8 question.
9 Q I am sorry.
10 A It's my understanding that it has,
11 but I believe you would have to ask Mr. Kienz that
12 question for a certain answer. I have not
13 personally delivered it to the board.
14 MR. DUNN: Is it in your box,
15 Mr. Segreto? Is it in your box?
16 Everything that's been submitted to
17 the board is in the box that's been
18 delivered to you.
19 MR. SEGRETO: I have not seen that.
20 MR. DUNN: You are not
21 representing to the board that it's not in
22 the box?
23 MR. SEGRETO: No, that's why I
24 asked the question. I simply --
25 MR. DUNN: All right.
Friedman - Cross - Segreto
115
1 MR. SEGRETO: Let me say this, that
2 I think that one of my clients, however,
3 does have a copy, so I now have a copy in
4 front of me.
5 Q Now, this particular conceptual
6 agreement, did this arise out of any notice of
7 pending enforcement action, which was served on
8 your client?
9 A Mr. Segreto, to the best of my
10 knowledge, the answer is no.
11 This is a legal document that was prepared
12 by counsel for my client. I did not prepare this
13 document.
14 Q That's not my question. If you
15 don't know one way or the other, just tell me
16 that.
17 The question was, were there any
18 notifications to your client, if you know of any
19 impending enforcement action that they were going
20 to take unless there was a consentual agreement?
21 A To the best of my knowledge, the
22 answer to that question is no. This is a document
23 that arose out of what's known as a "volunteer
24 cleanup program."
25 Q Now, in connection with this
Friedman - Cross - Segreto
116
1 Memorandum of Agreement and its elements, were you
2 consulted by the client back in 1997 when it was
3 signed?
4 A I was part of a team at that point.
5 We consulted with the environmental counsel with
6 the applicant.
7 As I indicated, this document and the
8 preparation and submission was handled in large
9 part by counsel, not by myself.
10 Q Would it be correct to say that in
11 connection with what preceded the execution of
12 this Memorandum of Agreement, the only document
13 that you have in your file is the agreement itself
14 and you don't have any antecedent documents? Is
15 that so?
16 A Could you explain what you mean by
17 that?
18 Q Prior documents, anything that led
19 up to this.
20 A To the best of my knowledge, I do
21 not have any prior documents on this matter.
22 Q Okay. Now, this defines some things
23 that you undertake to do?
24 A That is correct.
25 Q Is that right?
Friedman - Cross - Segreto
117
1 A That is correct.
2 Q And it has an escape clause which
3 says that "Anytime the client decides not to
4 proceed any further with developing the plan of
5 remediation, it may terminate the agreement"?
6 Doesn't it say that?
7 A That's my understanding this does
8 and every other agreement similar to this does.
9 Q Now, do you have the time line for
10 us in terms of how long it's going to take for you
11 to do the continued and the remaining soil
12 exploration?
13 A No, I do not.
14 Q Do you have a time line as to once
15 that is done, how long it will take to get the
16 laboratory analysis done?
17 A I can give you an approximate time
18 frame.
19 Q Tell me.
20 A Two months.
21 Q And after that has happened, what's
22 the time line about getting the verification done
23 by the regulatory agencies?
24 A The regulatory agencies have
25 prescribed, I believe, either 30 or 45 days in
Friedman - Cross - Segreto
118
1 this document to review submissions.
2 If that's -- are you asking me a question
3 how long will the regulators take to review the
4 information once it's submitted, am I correct, is
5 that your question?
6 Q I am talking about the laboratory
7 data, the soil log process.
8 A We are planning to submit the
9 laboratory data and the remedial investigation
10 reports, which is the amalgam of that data in
11 segregated format for this property since the
12 property is so large, in sections, sections
13 corresponding to different elements of this
14 project.
15 Q What I am interested in, if you have
16 any informed opinion as to when the complete
17 process of soil investigation and laboratory
18 analysis had been completed for the entirety of
19 the property, which is the subject of this
20 presently pending application.
21 A The entire submission to the state
22 should be done somewhere in the spring of the year
23 2000
24 However, portions will be submitted
25 substantially prior to that date.
Friedman - Cross - Segreto
119
1 Q So now we are going to have soil
2 investigation and laboratory work in the spring of
3 2000?
4 A No, that's not what I said.
5 I didn't mean to cut you off.
6 Q Maybe I misunderstood.
7 A You asked me when the work had
8 already been done. I testified this evening that
9 the soil, that the sampling work, the field
10 activities, the acquisition of data, has been
11 done, and the work.
12 Q For the entire site?
13 A For the entire site.
14 That work was sent to the laboratories, and
15 a portion of that work has been received in our
16 office; hence, my analysis and my submission of my
17 conclusions on PCB data, but also I testified and
18 I am retestifying that portions of that work has
19 not been yet received in my office from the
20 laboratories.
21 That work will be completed within -- my
22 answer earlier to one of your earlier questions --
23 in approximately two months from now.
24 Between that two-month period or the latter
25 part of 1999 and the spring of the year 2000, we
Friedman - Cross - Segreto
120
1 anticipate making our submissions to the DEP on
2 that work. We do not -- I will repeat, we do not
3 anticipate being in the field in the year 2000.
4 Q Well, if by the spring you are going
5 to be submitting data in terms of the inventory of
6 what's there, how long thereafter will it take you
7 to work up and submit the remediation plan for the
8 entirety of the property, all of it?
9 A I would envision that in the spring
10 of the year 2000 various documents, which have not
11 yet been completed, had been completed and
12 submitted to the state, so between now and the
13 spring of the year 2000, we have, essentially, two
14 submissions, the remedial investigation report,
15 which, as I indicated earlier, will be submitted
16 in several documents linked to different
17 components of the project, and for each remedial
18 investigation report there will be a corresponding
19 remedial action report which is, essentially, the
20 solution, the plan of remediation for that
21 component of the property, and that work will all
22 be completed, as we currently stand here, my
23 estimate is in the spring of the year 2000.
24 Q And thus if, for example, the board
25 is ready to deliberate on this application before
Friedman - Cross - Segreto
121
1 the spring of 2000, you contemplate that before
2 they even know what the remediation plan is that
3 they should proceed to judgment on this case?
4 MR. KIENZ: Mr. Chairman, I am
5 going to object.
6 Mr. Segreto knows that under the
7 Municipal Land Use Law an application can
8 be filed, a board can process it, and if
9 there are other agency approvals that are,
10 in fact, necessary, the applicant can
11 pursue them and they become conditions of
12 the approval pursuant to NJSA 40:55D-22.
13 Q Are you familiar, sir -- I will
14 withdraw the last question -- are you familiar
15 with the environmental components of the zoning
16 and the site plan and the planning developing
17 ordinance of this municipality?
18 A No, I am not. I am familiar with
19 the environmental ordinance. I am not familiar
20 with the planning ordinance.
21 Q Well, does the site plan ordinance
22 speak to things that have to be done by an
23 applicant?
24 MR. KIENZ: Mr. Chairman, I am
25 going to object to that, too.
Friedman - Cross - Segreto
122
1 MR. SEGRETO: If he doesn't know,
2 just say, "I don't know."
3 MR. KIENZ: It shouldn't even be
4 asked as a question. He was not qualified
5 for that. This is far beyond --
6 MR. DUNN: The cross-examiner
7 has a limited time for his
8 cross-examination. If he wants to indulge
9 in questions that he knows the witness
10 doesn't know the answer to, I suppose you
11 -- we can't stop him, can we?
12 MR. SEGRETO: By the way, before we
13 answer that, respectfully, I would like to
14 put on the record my reflections about a
15 two-for-one kind of a limitation and what
16 the cases say about it.
17 Q Right now do you know, sir, if there
18 is anything in the site plan ordinance -- if you
19 don't know just tell me that -- which deals with
20 what proofs must be submitted to the board on
21 environmental issues?
22 A I am not conversant with the site
23 plan ordinance.
24 Q Would it be correct to say that
25 until about the spring of the year 2000, you will
Friedman - Cross - Segreto
123
1 not be able to definitively represent to this
2 board what remediation is going to occur on this
3 property?
4 A No, that is not a correct
5 characterization, sir.
6 Q Do you know right now what
7 remediation is going to occur?
8 A Yes, I do.
9 Q Even before you have analyzed the
10 data to find out what's down there?
11 MR. KIENZ: Mr. Chairman, let's
12 not badger the witness.
13 He is answering questions. He can
14 be asked in a civil tone and appropriately.
15 MR. SEGRETO: I am sorry. I
16 apologize.
17 A Fortunately, Mr. Segreto, I am 50
18 years old. I have been in this position many
19 times in front of many people who are learned
20 counsel such as yourself, so your tone of voice
21 has not shaken my roots.
22 Q Thank goodness. My tone of voice is
23 not meant to be intimidating.
24 A There is a presumption in the
25 legislature.
Friedman - Cross - Segreto
124
1 Q I say this not as a crutch, but with
2 this one thing missing in my ear, this one is
3 working, the volume on my voice, I compensate for
4 it because I am not hearing it as loud as you
5 apparently are.
6 Next time when I have the next one in
7 there, you will see I will be soft spoken and
8 gentle as I usually am.
9 Q Now, can you tell us right now,
10 before you even have gotten all the data in, about
11 how many tons of things are down there, that you
12 know right now what the remediation plan is going
13 to be?
14 A Yes, I can.
15 Q So why bother doing all that
16 expensive exploration? Just get your report and
17 send it down to DEP and say, "I already know what
18 we are going to do. Here is what we are going to
19 do, DEP. Please be good enough to approve it."
20 Why don't you do that?
21 A There is a presumption -- I am not
22 testifying as an attorney, obviously -- the
23 statute, the legislature in the State of New
24 Jersey has made a presumption that on ground field
25 sites with historical fill such as this site is,
Friedman - Cross - Segreto
125
1 and I have testified to that, and, clearly, my
2 opinion and I would dare say the opinion of any
3 independent consultant looking at this site, we
4 have a site composed of predominantly, if not all,
5 of historic fill.
6 The presumption in the statute which
7 carries forth into the regulation, that
8 encapsulation is safe and the preferred remedy of
9 sites of this nature.
10 The reason -- the reason that we have done
11 all the work and spent all the money, and, in
12 fact, we have spent substantial moneys of our
13 clients to characterize the site, to see and to
14 insure that there are not elements on this site
15 which have to be taken off prior to the capping of
16 the site, and to the extent that there are, the
17 reports that I have yet to submit to the State of
18 New Jersey and the analysis which I have not yet
19 completed, will show that to be the case, and if
20 that is, in fact, borne out, then there will be
21 selective areas that maybe, in fact, excised out
22 of the site prior to the implementation of
23 encapsulation through a cap, taken off-site to a
24 select qualified disposal facility.
25 Q Now, I have a passing familiarity
Friedman - Cross - Segreto
126
1 with many of those regulations and statutes that
2 you keep talking about, both the USCA, as well as
3 NJSA, and is it your testimony that those
4 regulations contemplate that a remediation plan
5 can be devised before the soil examination
6 analysis has occurred?
7 A A partial answer to that question,
8 Mr. Segreto, I am going to quote, and I am going
9 to quote from a document that I will give to you
10 after I finish quoting it, from the State of New
11 Jersey. New Jersey statutes recognize this fact.
12 Let me start -- let me strike --
13 Q Just tell me what you are reading
14 from.
15 A I am reading from the New Jersey
16 Department of Environmental Protection bulletin
17 board, which is posted on the Internet.
18 Q I thought you were going to read the
19 regulation or a statute.
20 You are not reading either of those?
21 A I am not reading a statute or
22 regulation. I am reading an advisory document put
23 out under the manner -- under the auspices of the
24 NJDEP.
25 The heading is the "Brownfields Process."
Friedman - Cross - Segreto
127
1 The subheading is "Historic Fill."
2 I am not -- there are only two lines in
3 here. I will be very brief.
4 "Many of New Jersey's urban centers were
5 built decades ago on land that was created by
6 filling of tidal and freshwater wetlands."
7 Parenthetically, that site -- that sentence
8 describes my testimony over the last two sessions
9 here.
10 Back quoting again, "New Jersey statutes
11 recognize this fact an established -- and
12 establish a presumption that encapsulation is the
13 remedy for choice with sites with historic fill
14 that is contaminated.
15 That's the end of my quotation. It goes
16 on.
17 Q Now, please, do you have any statute
18 or regulation or any policy memorandum of the DEP
19 or USPEA which says that you can get a remedial
20 action approval before you have done a Preliminary
21 Assessment?
22 A Mr. Segreto, I think you are trying
23 to put words in my mouth. I don't believe I ever
24 --
25 Q I am asking you a question.
Friedman - Cross - Segreto
128
1 A I don't think I ever said that.
2 MR. DUNN: Don't argue with the
3 witness. Let him answer your question.
4 A I don't believe I said that in my
5 testimony. If I did, I apologize to the board.
6 I am sure upon reading of my testimony you
7 will see that I never said that an approval can be
8 gained prior to completion of the process in an
9 orderly fashion.
10 I have attempted two weeks ago, and I have
11 reattempted this evening, to spell out in great
12 detail provisions of the Memorandum of
13 Understanding and explicitly, more importantly,
14 the steps that we are taking, EcolSciences, on
15 behalf of the applicant, Port Imperial, LLC, in
16 compliance with that document, which you have
17 entered into evidence, and at no point in my
18 testimony have I ever indicated that we will be
19 seeking approval prior to the submission of the
20 request documents.
21 Q Now, with regard to what you have
22 done so far, can you tell me, if you know now, as
23 part of your remediation plan, how many cubic
24 yards of contaminated material will be excavated
25 from the site and transported elsewhere?
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129
1 A I do not know the answer to that
2 question, sir.
3 Q Can you tell me anything about how
4 much of a cap will be in terms of square footage,
5 the cap membrane, how much of it is going to be
6 pervious and how much of it is going to be
7 impervious?
8 A I can't tell you with any more
9 precision than my gross characterization this
10 evening that the vast majority of the site will be
11 pervious, will be a pervious liner with soil, as
12 opposed to the impervious cap.
13 Q And can you tell me how many square
14 feet of asphalt of surface is going to be part of
15 the impervious coverage?
16 A No, I cannot, sir.
17 Q And how much of the footprint of
18 residential buildings is going to be part of the
19 cap?
20 A I cannot tell you that, but that is
21 a quantitatively number that a subsequent witness
22 undoubtedly can tell you.
23 Q But not knowing all of those, you
24 still think you can comfortably tell us you right
25 now know what the remediation plan is going to be?
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130
1 A Yes, sir.
2 Q Doesn't the remediation plan have to
3 be accompanied by construction documents prepared
4 by a professional engineer?
5 A The plan has to be accompanied by a
6 set of plans, which are available as part of this
7 application, and a set of plans which have not yet
8 been prepared which talk to the specifics of the
9 capping plan, yes.
10 Q Have plans, capping plans --
11 MR. GOULD: Hold on.
12 Okay.
13 Q Has a capping plan been submitted to
14 this board?
15 A No. No, it has not.
16 Q Has it been done?
17 A No, it has not.
18 Q Has the engineer, who is going to do
19 the capping plan, been selected?
20 A The team that will be doing the
21 capping plan consists of EcolSciences and Paulus,
22 Sokolowski & Sartor.
23 Q But they will be doing the
24 engineering work, won't they?
25 A They are the licensed professional
Friedman - Cross - Segreto
131
1 engineers on the project.
2 Q Now, contaminants, when they are in
3 the ground, often get into the water table, don't
4 they?
5 A And contaminants can get into the
6 water table.
7 Your use of the word "often" is a very
8 qualitative, undefined adjective.
9 Q And, of course, the water table
10 gravitates horizontally rather than vertically,
11 doesn't it, except in times of precipitation when
12 it rises because of the quantity? Right?
13 A The groundwater flows vertically as
14 well as horizontally through because of all means
15 of scientific principle.
16 Q If you put the cap on the surface
17 that inhibits vertical gravitation upward. Right?
18 A In the same way that the
19 construction of a single-family house or apartment
20 building would.
21 Q Why don't you answer the question?
22 Isn't that so?
23 A No, it doesn't.
24 Q Is this membrane going to prevent
25 the plume phenomenon which gravitates
Friedman - Cross - Segreto
132
1 horizontally?
2 A You made a presumption. I am not
3 sure I agree with your presumption about a
4 horizontal plume. I am not aware of a horizontal
5 plume that you are talking about.
6 Before I can answer your question, you need
7 to define your question.
8 I don't mean to be argumentative.
9 Q You never heard about contaminants
10 pluming their way from one area to another and
11 following the water table, you never heard of
12 that?
13 A I have heard of that. I don't
14 believe that condition is applicable to this site,
15 sir.
16 Q Well, would this cap that you plan
17 to put on the property, much of which at one time
18 was part of the Hudson River, and you have
19 indicated over many years it was filled. Right?
20 A That's correct.
21 Q So if these contaminants are going
22 to stay there in this fill material where the
23 river used to flow, are you going to put a cap on
24 the surface of your property where you are going
25 to build all these improvements?
Friedman - Cross - Segreto
133
1 Aren't the dynamics below the cap and the
2 pressures that are created going to cause it to
3 want to gravitate into the Hudson River?
4 A No.
5 Q There could be optimal tons of
6 contaminants there, and there never could -- going
7 to get into the Hudson River. Is that your
8 testimony?
9 A I never used the word "never," sir.
10 My testimony is, the contamination that
11 exists throughout the historic fill of this site
12 is a nonmobile type of contamination.
13 The research done at the federal level, at
14 the state level, which has led to the promulgation
15 of the statutes that you have referred to, that I
16 have referred to, more specifically here in New
17 Jersey, the Grown Field Remediation Act have made
18 that presumption, the presumption which I
19 paraphrased, which I have quoted from the DEP
20 policy, a similar presumption is contained in the
21 statute, if you would like me to find it.
22 I will find it for a subsequent meeting.
23 That presumption is that historic areas receiving
24 historic fill or existing with historic fill can
25 be safely encapsulated and encapsulation is a
Friedman - Cross - Segreto
134
1 remedy.
2 The presumptive remedy of choice to lead to
3 a safe environment and, again, the type of
4 contamination contained within the historic fill
5 in New Jersey, and more specifically on this site,
6 is the type that is a nonmobile type of
7 contamination bound within the soil column that
8 will be unaffected by the imposition of buildings
9 or additional soil piles due to the layering of
10 soil upon a cap.
11 Q Well, if the presence of these
12 contaminants subsurface on this property is so
13 benign, why don't you save your client a lot of
14 money and instead of having him pay the
15 extraordinary cost of excavating soil that's
16 contaminated, trucking it with all of the
17 safeguards to an acceptable site somewhere, why
18 don't you just have him let it all stay there and
19 just put a great big cap over it? Why are you
20 taking the stuff out of it when it's so benign
21 when it's there?
22 A Mr. Segreto, again, I think you are
23 putting words in my mouth or taking my prior
24 testimony out of context.
25 At no point in time did I ever conclude
Friedman - Cross - Segreto
135
1 that materials would be taken off the site.
2 I used as an example, and, again, I go back
3 to my PCB example, if we find -- and I have
4 indicated in direct testimony that we have not
5 found any PCB contamination in excess of 100 parts
6 per million. If we were to find that level of
7 contamination, it would have to be taken off-site.
8 However, since we have not found any
9 contamination in excess of 100 PPM, the low level
10 of PCB contamination on the site can remain under
11 the cap.
12 Again, in furtherance of my testimony, I at
13 no time indicated that we have found any
14 constituents to date that required, under statute
15 or policy, that were required to be taken
16 off-site. I have used that only in the most
17 hypothetical example.
18 Q Is it your testimony that you have
19 done PCB testing for the entirety of the
20 approximately 90 acres?
21 A Yes, it is.
22 Q Pardon?
23 A Yes, it is.
24 Q How many soil logs did you do?
25 A 242.
Friedman - Cross - Segreto
136
1 Q And other than the PCBs, have you
2 done any other soil testing?
3 A Yes, we have.
4 Q And why don't you just list for us
5 some of the contaminants that you found so far.
6 You found PCBs. You found chromium.
7 Right?
8 A Yes.
9 Q What else have you found?
10 A We have tested for heavy metals. We
11 have tested for pesticides and herbicides. We
12 have tested for asbestos. We have tested for
13 PCBs, which we talked about. We tested for base
14 neutral. We have tested for volatile organics.
15 We tested for total petroleum hydrocarbons.
16 Q You found all of those nice things
17 there. Right?
18 A We found all of them, yes.
19 Q And your reports would reflect the
20 quantities of them?
21 A Let me correct my statement.
22 I am not sure that we found volatile
23 organics. We tested for it. I am not sure that
24 we found them.
25 Q Now, how do you -- what standard do
Friedman - Cross - Segreto
137
1 you use to quantify, for example, PCBs, what
2 quantities of PCB contaminated soil did you find?
3 Can you express that in terms of tons,
4 cubic yards, liters, what?
5 A Let me first state for the record,
6 Mr. Segreto, I am not a chemist.
7 We have utilized a certified federal state
8 laboratory to do the analytical work for our
9 sampling. The sampling results are reported back
10 in units that are prescribed and acceptable in
11 accordance with laboratory protocols, again,
12 prescribed by the technical requirements.
13 The generic answer to your question,
14 though, so that I give you your answer, most
15 constituents are found in parts per million or
16 PPM.
17 Q Well, that's the concentration, sir.
18 I am asking you for an example.
19 Do you know how many cubic yards of soil on
20 this 90-acre site are contaminated with the
21 presence of PCBs?
22 A No, I do not know that answer.
23 Q Can you express it in terms of a
24 percentile, what percentage of the cubic yards on
25 this 90 acres is contaminated with PCBs?
Friedman - Cross - Segreto
138
1 A I cannot answer. I do not know the
2 answer to that question.
3 I might add also that one typically doesn't
4 estimate those types of answers or estimate those
5 values in terms of submissions to the State of New
6 Jersey.
7 They are not, to the best of my knowledge,
8 a required part of the technical requirements, and
9 one doesn't usually follow that type of logic,
10 although it's conceivable that, theoretically, one
11 could conclude that type of information, it is not
12 typically done.
13 Q How can you in your report opine on
14 the environmental impact of this project when you
15 don't even know the quantity of contaminants that
16 are in the 90 acres? How can you do that?
17 A Because we can opine based on the
18 concentrations of the parameters in relationship
19 to the residential standards, and then, finally,
20 we can opine that the presumed solution, the
21 encapsulation of the entire property through a
22 mechanism that -- that has, No. 1, been utilized
23 in many sites throughout the State of New Jersey
24 for similar contaminants, No. 1; that, No. 2, a
25 level of encapsulation that will ultimately be
Friedman - Cross - Segreto
139
1 designed and approved by members of the State of
2 New Jersey that have the ultimate control of this
3 particular matter is sufficient to meet the
4 identified contaminants that exist on this
5 property.
6 Q Since you have said that based upon
7 your testing for PCBs you didn't find any that
8 exceed the permissible concentration levels, does
9 that mean that you and your clients intend to let
10 all of the PCB contaminated soil stay right where
11 it is and you don't intend to take any of it out
12 and take it away? Is that right?
13 A First I will answer your question.
14 The answer to your question is correct, is
15 yes, we do not intend to remove any of the PCB
16 contaminated soil off-site.
17 Your characterization -- let me finish,
18 please -- your characterization and the
19 utilization of your voice, at least as interpreted
20 by myself, would lead members of the planning
21 board and, more importantly, members of the
22 Weehawken public to conclude that vast areas of
23 the site are contaminated by PCBs.
24 I need to state for the record and, more
25 importantly, for the residents of this
Friedman - Cross - Segreto
140
1 municipality that that is not a correct
2 presumption. You should not characterize
3 statements that I make in terms of quantity or
4 extent. In fact, very, very limited areas of the
5 site, very limited areas have historic PCB
6 contamination.
7 Q On that limited area where the PCB
8 contamination is concentrated, what does your
9 client plan to build over those PCBs that are
10 going to stay there?
11 A I would have to look at the
12 analytical data, the location of that analytical
13 data and superimpose the plan as it is now
14 contemplated. That information can be derived for
15 you, but I do not know it as I stand in front of
16 you this evening.
17 Q How can you submit a 51-page
18 Environmental Impact Statement when you don't know
19 what kind of improvements your client wants to put
20 on areas where PCB contamination exists?
21 Didn't you think it was relevant to an
22 Environmental Impact Statement to at least let the
23 board and the people of Weehawken know what's
24 going to be built?
25 MR. DUNN: Which question is the
Friedman - Cross - Segreto
141
1 witness to answer?
2 MR. SEGRETO: The last one.
3 A The answer to the question very
4 simply, Mr. Segreto, is no.
5 I think it's, perhaps, a better answer than
6 just a single two-letter word would be, when did
7 the PCB -- the existing PCB concentrations, which
8 exceed for those areas with PCBs concentrations in
9 excess of residential standards are located under
10 parking lots, under the new ferry maintenance
11 facility, under a residential dwelling, under a
12 tennis court, it makes no difference.
13 The remedy for each one of those areas
14 and/or any other area on the property is the same,
15 and that remedy is one that will leave that area
16 in a safe and acceptable manner, and the current
17 condition of the property and the current
18 condition of what those -- where those
19 constituents are, in my opinion, a very unsafe
20 condition for the residents of Weehawken.
21 Q Earlier in your testimony this
22 evening you said there are four -- 14 areas of
23 potential environmental contamination.
24 I would like you to please tell us what
25 those 14 areas are and then also tell us what your
Friedman - Cross - Segreto
142
1 client proposes to build over those 14 areas of
2 potential environmental contamination.
3 A You asked me a two-part question. I
4 answered the first part, but I will resummarize in
5 response to your question.
6 Q If I can respectfully ask that we
7 combine it, the environmental potential area, No.
8 1, and then tell us what your client is going to
9 build on top of it and tell us where, No. 2, what
10 they are going to build on it, and we can quickly
11 without my interruptions have you go through all
12 14 of them.
13 A If it were that sample, I will be
14 happy to, Mr. Segreto.
15 MR. KIENZ: Mr. Chairman --
16 MR. DUNN: Let the witness
17 finish the answer, please, Mr. Kienz.
18 I am sorry.
19 MR. KIENZ: I am going to state
20 my objection for the record.
21 MR. DUNN: State your objection.
22 MR. KIENZ: This is beyond what
23 he testified to.
24 The EIS speaks for itself. We keep
25 going round and round. He told you where
Friedman - Cross - Segreto
143
1 the sites are. We told you that other
2 witnesses are going to come in and testify
3 to the land use plan.
4 This is just going to go on and on.
5 It's not what Mr. Friedman was put up here
6 for.
7 MR. DUNN: Your objection is
8 overruled.
9 The witness testified to 14 areas of
10 concern. He can testify -- if Mr. Segreto
11 wants to use his cross-examination time to
12 have him repeat what he testified to on
13 direct examination, that's fine, and if the
14 witness can or cannot answer what's going
15 to be built over each area concerned, he
16 can say so.
17 Q If you don't know, tell us right up
18 front so we can move on.
19 A I will attempt to answer the
20 question to the best of my ability, Mr. Segreto.
21 The first four areas I mentioned in my
22 direct testimony were areas of concern related to
23 former railroad operations, and they consisted of
24 former railroad sidings, a former railroad cove,
25 and pier trestle areas, former railroad
Friedman - Cross - Segreto
144
1 maintenance buildings, and former railroad oil
2 houses.
3 If I were to draw your attention and the
4 public's attention and the board's attention to
5 the two graphics that are in front of us, one can
6 see here all of these areas that I am --
7 MR. DUNN: What is a graphic?
8 THE WITNESS: The graphic is a
9 slide.
10 MR. WARE: 146.
11 THE WITNESS: Slide 146, as well as
12 Exhibit A-5.
13 On Exhibit A-5 first, the vast
14 majority of the property, the vast majority
15 of the property on my examination of this
16 exhibit shows the existence of railway and
17 railroad operations circa -- not "circa" --
18 exactly in the year 1947. These areas were
19 examined as an area of concern.
20 The answer to the second part of
21 your question, the entirety of the proposed
22 project, residential, commercial, park
23 facilities, retail operations, hotel, will
24 be placed in part on former railroad
25 operations.
Friedman - Cross - Segreto
145
1 Q Is that one of the PCB contaminated
2 areas?
3 A That was not one of the PCB
4 contaminated areas within the context of your
5 question and my direct testimony, which was PCBs,
6 were separate PCBs that were identified as a
7 separate area of concern.
8 Q I understand, but were the PCBs
9 found in the railroad areas where all of those
10 improvements are intended to be constructed?
11 A The discrete areas of PCBs found on
12 the property in the order of three or four areas,
13 you are correct.
14 Some of those areas, and, as I stand here,
15 I don't know how many of those three, four or five
16 discrete PCB areas were associated with railroad
17 operations as compared to or as compared to
18 unrelated railroad operations such as an
19 electrical machine shop or a transformer house.
20 The fifth area of -- the fifth and sixth
21 areas of concern that I testified to were
22 miscellaneous former buildings, specifically
23 buildings such as mill buildings, and the ice
24 plant.
25 I cannot answer your question without doing
Friedman - Cross - Segreto
146
1 a superimposition of the project upon the maps
2 that I have in front of me this evening.
3 The seventh area of concern was the former
4 boiler house constructed circa -- that existed
5 circa 1910 to 1950 and one 1936 to 1979 on what
6 were formerly known as F and H, Lots F and H.
7 Again, I can't tell you the answer to your
8 question -- second question what proposed aspects
9 of this project will be built upon those areas.
10 The ninth area of concern was the
11 transformer buildings located in the vicinity of
12 former Lot F, and former lot L. Again, I cannot
13 tell you without superimposing the planned
14 development upon my analytical data and mapping to
15 determine which components of the project will be
16 located within that area of concern.
17 The tenth and 11th areas of concern I
18 identified were aboveground and underground
19 storage tanks, and, again, I cannot tell you with
20 precision what aspects of the project will be
21 located within the areas of historic tanks.
22 The 12th area was historic fill. My
23 testimony throughout much of this evening has
24 indicated that virtually if not the entire project
25 is going to be constructed on historic fill, so,
Friedman - Cross - Segreto
147
1 again, my answer would be all components, a cross
2 section of components will be constructed within
3 and on top of areas of historic fill.
4 The 13th area was chromate waste materials,
5 and, as I testified earlier, those materials were
6 found in two discrete portions of the property,
7 one being the most southerly property adjacent to
8 the off-site Douglas Holding Property and another
9 significantly smaller area directly south of
10 Pershing Road, to the best of my knowledge, the
11 new ferry maintenance building and a portion of
12 the proposed park property will be constructed in
13 one area, and I am not sure what will be
14 constructed in the other area without doing an
15 overlay exercise.
16 The last area of concern, the 14th area of
17 concern, which I testified to, was PCB hot spots,
18 and, again, I cannot without doing an overlay
19 analysis indicate to you which components of the
20 project will be identified in those areas.
21 I think, as a concluding answer to your
22 question, the identification of areas of concern
23 is by no means a conclusion that one has
24 constituents differing from, constituents found in
25 historic fill where the identification of
Friedman - Cross - Segreto
148
1 parameters or contaminants that are different or
2 worse or better than what is found in historic
3 fill is merely the identification of areas that
4 are deemed worthy of further examination and, in
5 fact, have been further examined by the conduct of
6 the tests that I have described.
7 Q Now, in your report you have
8 included Attachment A, which is portions of, I
9 would call, the Township of Weehawken EIS
10 ordinance.
11 Would it be correct to say that the
12 sections that you have put into Attachment A are
13 the ones that you reviewed and you are familiar
14 with and addressed?
15 A That is correct.
16 Certainly, I included a series of four or
17 five or six pages and portions, perhaps, the
18 majority of those pages are relevant to the EIS.
19 There are certain subsections that are not.
20 Q In any event, the pages -- photo
21 copies of those pages and sections of the
22 ordinance that you relied upon and you addressed
23 and that you reviewed are contained in Attachment
24 A. Is that right?
25 A That is correct.
Friedman - Cross - Segreto
149
1 Q And would it be correct to say, if
2 there are other provisions in the ordinances, the
3 land use ordinance of this municipality that
4 applied to environmental issues, you did not make
5 yourself familiar with nor did you attempt to
6 address them in this report? Isn't that so?
7 A That's correct with the statement
8 that I made and Mr. Kienz made earlier that there
9 are other experts covering other aspects.
10 Q I am only talking about you, sir.
11 A Yes. That's correct.
12 Q I just want to get a benchmark that
13 if there is something else, other than the ones
14 here, you haven't addressed them, you didn't try,
15 you didn't become familiar with them. Is that
16 right?
17 A That's generally correct.
18 Q All right. Now --
19 MR. DUNN: Mr. Segreto, may I
20 ask, would you let us know when there is a
21 convenient time to interrupt your
22 cross-examination.
23 What we would like to do, I think,
24 is to allow members of the public who are
25 not represented by you who may have some
Friedman - Cross - Segreto
150
1 interest in this environmental testimony to
2 ask questions tonight.
3 MR. SEGRETO: I am going to,
4 obviously, continue when I have reviewed
5 the report, so what I will do is collate my
6 notes, and, frankly, I have, as a process
7 which I think will help the board, I have
8 asked that if any of the people who are
9 part of our association have any questions
10 from time to time, since, as I understand
11 the discipline, if they are represented by
12 me as direct clients, questions have to
13 come from me, and they have been from time
14 to time sending me questions that they
15 would ask, and I am going to cull through
16 all of these, and where I think they are
17 relevant I will include them the next time
18 after I reviewed the file.
19 MR. DUNN: I am not suggesting
20 we are necessarily ready to quit. We have
21 another 40 minutes to go.
22 I just thought we might ask whether
23 members of the public who wanted -- who are
24 not represented by you who might have
25 questions that they might want to ask of
Friedman - Cross - Segreto

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